BEFORE THE CORPORATION COMMISSION OF OKLAHOMA

Transcription

1 IPA BEFORE THE CORPORATION COMMISSION OF OKLAHOMA APPLICATION OF BIG RIVER TELEPHONE COMPANY, LLC TO EXPAND LOCAL EXCHANGE SERVICE TERRITORY TO INCLUDE TERRITORY SERVED BY OKLAHOMA COMMUNICATIONS SYSTEM, INC. CHOUTEAU TELEPHONE CO., MCCLOUD TELEPHONE CO., PANHANDLE TELEPHONE COOPERATIVE, INC., POTTAWATOMIE TELEPHONE CO. AND SALINA-SPAVINAW TELEPHONE CO. ) CAUSE NO. PUD FILED JUN 01 Z011 COURT CLERK'S OFCE - OKC CORPORATION COMMON OF OKLAHOMA HEARING: March 24, 2011, in Courtroom B 2101 North Lincoln Boulevard, Oklahoma City, Oklahoma Before Maribeth D. Snapp, Administrative Law Judge APPEARANCES: Nancy Thompson, Attorney representing Big River Telephone Company Ron Comingdeer, Mary Kathryn Kunc and Kendall W. Parrish, Attorneys representing McLoud Telephone Company and Panhandle Telephone Cooperative J. Fred Gist and Jennifer H. Kirkpatrick, Attorneys representing Salina- Spavinaw Telephone Company and Pottawatomie Telephone Company Kimberly J. Argenbright, Attorney representing Chouteau Telephone Company Bennett Abbott, Assistant General Counsel representing Public Utility Division, Oklahoma Corporation Commission; REPORT OF ADMINISTRATIVE LAW JUDGE This Report of the Administrative Law Judge ("AU") concerns the application of Big River Telephone Company ("Big River") to expand its local exchange service territory to include territory served by Oklahoma Communications System, Inc., Chouteau Telephone Co., McLoud Telephone Co., Panhandle Telephone Cooperative, Inc., Pottawatomie Telephone Co. and Salina-Spavinaw Telephone Co. Procedural History Big River filed its application and written affirmation in this case on October 21, Chouteau Telephone Co. filed its entry of appearance on October 27, Pottawatomie Telephone Co. ("Pottawatomie"), Salina-Spavinaw Telephone Co. ("Salina- Spavinaw") and Cimarron Telephone Company ("Cimarron") filed entries of appearance on

2 Cause No. PUD Report ofadministrative Law Judge Page 2 of 8 November 2, 2010, and Panhandle Telephone Cooperative, Inc. ("Panhandle") and MeLoud Telephone Co. ("McLoud") filed entries of appearance on November 5, Big River filed a Motion for Procedural Schedule and Notice of Hearing on November 5, 2010, and Order No , Order Establishing Procedural Schedule was thereafter entered on December 8, On December 9, 2010, Big River filed Direct Testimony cf Gerard J. Howe. On January 11, 2011, Chouteau Telephone Company ("Chouteau") filed its Statement of Position. On January 20, 2011, Statements of Position were filed by McLoud, Salina-Spavinaw and Pottawatomie. Also, on January 20, 2011, Panhandle filed Testimony of Gary Burke. On March 4, 2011, Public Utility Division Staff ("Staff') filed Prefiled Direct Testimony of Barbara L. Mallett, followed by corrected testimony on March 8, On March 10, 2011, Big River filed its Rebuttal Brief in lieu of Rebuttal Testimony and Panhandle filed its Rebuttal Testimony of Gary Burke. On March 24, 2011, a merit hearing was conducted before the AU. Summary of Evidence and Summary of Briefs A summary of the witnesses' testimony that was presented at the hearing on the merits, along with a summary of the briefs filed by Big River, is attached hereto as "Attachment A". The entire cross-examination of the witnesses is contained in the court reporter's recording of this case. Findings of Fact 1. Big River has requested to expand its local service territory to include the identified exchanges served by the following incumbent local exchange companies: Inola exchange in territory served by Oklahoma Communications Systems, Inc.; Chouteau exchange in territory served by Chouteau Telephone Co. dlb/a FairPoint Communications; McLoud and Newalla exchanges in territory served by McLoud; Guymon exchange in territory served by Panhandle; Earlsboro exchange in territory served by Pottawatomie; and Salina and Locust Grove exchanges in territory served by Salina-Spavinaw. 2. The legal authority relied upon by Big River is OAC 165: which provides as follows: 165: Designation of service territory (a) The Commission shall determine whether a competitive LEC's service territory is in the public interest at the time the competitive LEG seeks certification or proposes changes to its service territory. In determining whether the proposed service territory meets the public interest, the Commission shall consider factors, including but not limited to, the existence and location of the competitive LEG 's facilities, the number of potential customers to be served and the potential impact on universal service. (b) No service territory shall be changed except by Order of the Commission after such notice and hearing, if any, as directed by the Commission.

3 Cause No. PUD Report ofadministrative Law Judge Page 3 of 8 Applications for change to an existing service territory shall be accompanied by revised tarffpages reflecting the proposed new service territory. 3. The ALJ finds that Big River's application, affidavit, prefiled testimony of Mr. Howe, and briefs address each of the factors set forth in OAC 165: as follows: a. Big River's application and Mr. Howe's prefiled testimony and testimony at the hearing identify the existence and location of facilities, and explain that Big River may, if necessary, construct, acquire or lease additional facilities to the communities listed in its application. b. Big River's pleadings and prefiled testimony also address the number of potential customers to be served. Big River identified its initial wholesale customer, Allegiance Communications, LLC ("Allegiance"), and indicated that Big River's initial expanded service area will be those exchanges in which Allegiance provides cable service and the Earlsboro exchange. C. Big River's pleadings and testimony also address the impact of its application on universal service. The wholesale services provided by Big River enable the retail provider to offer customers some of the same options available to consumers in larger markets. In other words, the wholesale services provided by Big River enable the retail provider of its services to promote the goal of universal service and offer quality services at just, reasonable and affordable rates. This is consistent with the recognition of the FCC in its Time Warner' order, that services such as Big River's wholesale services enable even small cable providers to expand their service offerings - faster and at lower cost - and thus promote investment in areas previously under-served and lacking choices for consumers. Big River's wholesale offering thus promotes the goals of universal service. d. Big River explained that it did not submit revised tariffs with its application because the services it initially intends to provide are wholesale services. Staff testified that Commission rules do not require wholesale services to be tariffed. The ALJ finds that a revised retail tariff is not required in this case because the services Big River intends to provide at this time are wholesale services. As Big River acknowledged, if Big River offers retail service in these exchanges at some point in the future, Big River will first have to revise its tariffs to include these exchanges. The Commission has previously found in similar cases that a revised retail tariff is not required under similar circumstances. See, e.g., Order No in Cause No , Order No in Cause No. PUD , and Order No in Cause No. PUD e. Big River addressed the issue of public interest in its prefiled testimony and briefs, indicating that both the federal Telecommunications Act of 1996 and the Commission recognize that competition is in the public interest. Big River's expansion will present the first facilities-based competition for many customers in these In re: Time Warner Cable request for Declaratory Ruling that Competitive Local Exchange Carriers May Obtain Interconnection Under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, WC Docket No (Memorandum Opinion and Order, filed March 1, 2007)

4 Cause No. PUD Report ofadministrative Law Judge Page 4 of 8 communities and will make available some of the same options available to customers in larger markets. Consumers will have an opportunity to receive services at prices that reflect a competitive market, and competition will encourage providers to be efficient, innovative and responsive to customers. With a choice in providers and the competition such a choice brings, it is likely that end users will "receive timely benefits from lawful market-driven price and service competition" as stated by the Commission in OAC 165:55-1-1(c). Further, as Big River noted in its briefs, the FCC found in Time Warner that wholesale service such as that offered by Big River holds particular promise in rural areas, indicating that such service is in the public interest. 4. Big River's Application does not address any issue related to interconnection agreements or the rural exemption set forth in 46 U.S.C. 251(f). Pottowatomie and Salina- Spavinaw argue that under Commission rules and regulations, Big River will have to file additional applications seeking approval of any interconnection agreements. The ALJ finds that prior to Big River actually providing wholesale service, interconnection agreements between Big River and the affected rural telephone companies will need to be finalized and approved by the Commission. To the extent a rural company has an exemption from the obligations of 47 U.S.C. 251(f), the rural companies have not waived their right to claim the exemption, by virtue of the AL's recommendation in this cause. 5. Intervenors Panhandle, McLoud, Pottawatomie and Salina-Spavinaw raised numerous objections and requested that the Commission impose additional requirements on Big River and/or its wholesale customer, including a requirement that Big River's wholesale customer must provide evidence of its experience, financial qualifications and management expertise and comply with Commission rules; that Big River's wholesale services should be regulated in accordance with Commission rules relating to retail services; that Big River should contribute to the OUSF on the basis of its wholesale revenues and/or that Big River's wholesale customer should contribute to the OUSF based upon any VoIP revenues; and that Big River and/or its wholesale customer providing VoIP should contribute to the Public Utility Division ("PUD") Assessment Fee beyond the requirements currently applicable to the PTJD Assessment Fee. These issues, all of which would require a change in Commission rules and/or Oklahoma statutes and in some cases, changes in FCC requirements, are not addressed in this case. The ALJ finds that these kinds of issues should be addressed in separate proceedings in which all affected parties have notice and the opportunity to participate. The ALJ finds that the Commission should determine, as it has in similar cases previously that this cause does not address the issue of whether, and if so, what type of regulatory treatment is appropriate for retail providers who utilize Big River's wholesale services to provide retail service to end-users. See, e.g., Order No in Cause No. PHD , Order No in Cause No. PUD , and Order No in Cause No. PHD Pottawatomie and Salina-Spavinaw's request that relief be limited to expansion of service territory for the sole purpose of providing wholesale service to Allegiance, with a requirement that prior to Big River providing wholesale service to other customers or providing retail service, it must file another application seeking supplemental authority, should not be granted. As Big River's application and testimony indicate, even though Allegiance has indicated it no longer has plans to provide service in the Earisboro exchange, Big River continues to seek authority to expand its service territory to include the Earlsboro exchange and the other identified exchanges, without restricting its request to a particular customer or type of

5 Cause No. PUD Report ofadministrative Law Judge Page 5 of 8 service. The ALJ finds that Big River's application is not limited to requesting expansion only for the purpose of providing wholesale service to a specific customer. 7. The ALJ further finds that it is not in the public interest to limit relief in the manner requested by Pottawatomie and Salina-Spavinaw. Such a result would impose significant additional costs and delay on new entrants and this Commission by requiring new entrants, Staff and this Commission to use time and resources to process new applications every time a carrier has a new customer or offers a new service. There is nothing in OAC 165: that requires this result, and to interpret the rule in this manner would constitute a barrier to entry in violation of 47 USC 253(a) which provides that "[n] State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." Imposing unnecessary costs, and the attendant delay of processing an application for "supplemental authority" would have the effect of prohibiting the ability of an entity to provide intrastate telecommunications service in Oklahoma, and would also be an unnecessary burden on Commission resources. 8. Panhandle's arguments that Big River's application is not in the "best interest of the consumer" because Panhandle might lose customers and thus the member/customers of Panhandle might receive smaller distributions, as well as its argument that Panhandle already offers "state of the art, reliable, quality, reasonably priced services" and granting this application will not make any additional services available to customers in Panhandle's territory, are not grounds for denying this application. To accept an argument that competition might result in the loss of some customers and some profits by the incumbent would mean that competition should never be allowed. That result is directly contrary to the federal Telecommunications Act as well as the pro-competitive goals of this Commission. Moreover, if the Commission were to accept Panhandle's arguments, there likely would be no reason to allow competition anywhere in the state, as long as the incumbent provider provided adequate service to its customers. Prior to 1996, the test set forth in 17 O.S. 131 for obtaining the ability to operate within another telephone company's service territory required the Commission to "first determine that the existing facilities are inadequate to meet the reasonable needs of the public, or that the person operating the same is unable to or refuses or neglects, after hearing, on reasonable notice, to provide reasonably adequate service." A determination that the existing facilities or service is inadequate is no longer required, as a direct result of the federal Telecommunications Act and the Oklahoma Telecommunications Act. 9. Panhandle also argued that the application should be denied because it could result in a loss to Panhandle of federal universal service funding if the FCC adopts proposed rules which would eliminate or reduce such funding where wireline competition exists. The AU finds that this argument should be rejected, because Panhandle's argument is based on speculation concerning a proposal which has not yet been adopted by the FCC. 10. Panhandle also argued that competition could negatively impact Panhandle's ability to offer service in more rural areas of its service territory. However, Panhandle offered no evidence to support this statement. Panhandle is not rate regulated, nor has it offered any evidence in this Cause of the cost to offer service in any Panhandle exchange, or evidence of how it uses the federal and any state funding it receives. Thus, there is no basis to conclude that

6 Cause No. PUD Report ofadministrative Law Judge Page 6 of 8 Panhandle's ability to offer service in any area will be negatively impacted by approval of this application. 11. Staff expressed a concern that Big River's request to expand only into the Guymon exchange in Panhandle's territory could be characterized as "cherry picking," and may negatively impact Panhandle's ability to compete with a wholesale competitor. However, as Ms. Mallett's testimony also indicates, that term (or the term "cream-skimming") is used by the FCC in cases involving requests for ETC designation by a competitor for purposes of receiving federal high cost support in rural areas. As Big River discussed in its Rebuttal Brief, the FCC's concerns are directly related to the request for federal high cost support, and the concern that a competitive ETC could seek to provide service only in higher density rural areas while obtaining high cost support based on the incumbent's costs of serving its entire service territory, including lower density areas. Thus, that concern applies only in the context of designations for eligibility to receive such federal support. In fact, the FCC has specifically indicated that a "creamskimming" analysis is not even necessary with regard to ETC designations in non-rural areas, because the potential for a windfall in federal subsidies is not present in non-rural areas due to the lack of high cost funding for ETC providers. As all of the parties in this case have recognized, this case does not involve any request for ETC designation. Accordingly, there is no potential for a windfall in federal subsidies to Big River as a result of this application. 12. The AU finds there is no indication that Panhandle's ability to compete will be damaged by Big River's expansion into the Guymon exchange. Therefore the AU finds that the proposed territory expansion, including into the Guymon exchange, serves the public interest. 13. The AU finds that the requirements of OAC 165: , as they apply to the provision of wholesale services as described in Big River's application in this case, 2 do not require a different analysis than would be applied to a provider of retail services, other than the recognition that certain requirements do not apply to a wholesale provider. For example, the requirement to submit revised tariffs does not apply to wholesale services because the services are not tariffed. See, e.g., OAC 165: defining "Regulated telecommunications services" as "the offering of telecommunications services directly to the public where the rates and/or terms and conditions for such service(s) are regulated by the Commission." 14. Although the wholesale services Big River initially intends to offer in the exchanges included in this application are not "regulated telecommunications services," in that they are not services offered directly to the public, the AU finds that wholesale providers such as Big River have no practical alternative to seeking an expansion of service territory from this Commission in order to provide wholesale services to its wholesale customers. In order to provide telephone numbers to their wholesale customers, wholesale providers such as Big River must obtain numbers from the North American Numbering Plan ("NANP"). As discussed by the FCC in In re Telephone Number Requirements for IP-Enabled Services Providers, Report and Order, Declaratory Ruling, Order on Remand, and Notice of Proposed Rulemaking, WC Docket No (released November 8, 2007) at 12: Interconnected VoIP service enables users, over their broadband connections, to receive calls that originate on the public switched telephone 2 These findings do not address all issues which may arise under OAC 165: involving providers of services which are not regulated by the Commission.

7 Cause No. PUD Report ofadministrative Law Judge Page 7of8 network (PSTN) and to terminate calls to the PSTN. In order to have this capability, an interconnected VoIP service provider must offer consumers NANP telephone numbers. Interconnected Vo1P providers generally obtain NANP telephone numbers for their customers by partnering with a local exchange carrier (LEC) through a commercial arrangement rather than obtaining them directly from the numbering administrator, because the numbering administrator provides numbers only to entities that are licensed or certificated as carriers under the Act. In order for a wholesale provider to obtain NANP telephone numbers for use by their wholesale customers, Big River and other wholesale providers must demonstrate to the North American Numbering Plan Administrator ("NANPA") that they are authorized to provide service in a particular area. This puts the wholesale provider in the position of seeking authorization from the appropriate state commission or alternatively, seeking some other form of official statement from the state commission that the carrier does not need authorization to offer wholesale service in that state, even if the state commission, like this Commission, does not otherwise regulate such carriers. See, e.g., Order No in Cause No. PUID , in which Sprint Communications Company LP sought to expand its service territory for the purpose of providing wholesale services. The Order at p.3 includes the following explanation of the application: Counsel for Sprint further explained that even though this is not the typical type of application because it involves wholesale service rather than retail service, Sprint is seeking an expansion of its service territory to ensure that it complies with any applicable regulatory requirements, and because such certification facilitates the ability to order telephone numbers from NANPA. 15. Given the fact that wholesale providers need some form of proof that they are authorized to provide service in order to obtain numbers from NANPA, the AU finds that it is appropriate for such providers to file applications under OAC 165: and for the Commission to evaluate such applications pursuant to that rule. Further, to the extent that the applicant satisfactorily addresses each of the factors set forth in OAC 165: , it is appropriate to expand the applicant's service territory both for purposes of wholesale and retail service, since the rule by its terms applies to retail service. This result satisfies the requirements of the rule, and avoids concerns regarding barriers to entry for new providers due to the cost and time involved in repeated applications to expand service territory in the same areas. Further, to the extent that the provider initially intends to offer only wholesale service, it is appropriate to find that a revised retail tariff is not required until the provider intends to offer such service, and to find that in the event the provider decides to offer retail services, it must first submit the appropriate revised retail tariffs to include the additional exchanges. 16. The AU finds, for all of the reasons identified herein, that Big River has adequately addressed each of the factors set forth in OAC 165: and met its burden of proof. 17. The ALJ finds that this application does not address the issue of what type regulatory treatment, if any, is appropriate for retail providers who utilize Big River's wholesale services to provide retail service to end-users.

8 Cause No. PUD Report ofadministrative Law Judge Page 8of8 Conclusions of Law The Commission has jurisdiction over the above styled cause pursuant to Article IX, Section 18 of the Oklahoma Constitution, and 17 Okla. Stat. 131 et seq. Recommendation The Administrative Law Judge recommends that Big River's application to extend its local exchange service territory to include the Inola exchange in territory served by Oklahoma Communications Systems, Inc.; Chouteau exchange in territory served by Chouteau Telephone Co. dlb/a FairPoint Communications; McLoud and Newalla exchanges in territory served by McLoud Telephone Co.; Guymon exchange in territory served by Panhandle Telephone Cooperative, Inc.; Earlsboro exchange in territory served by Pottawatomie Telephone Co.; and Salina and Locust Grove exchanges in territory served by Salina-Spavinaw Telephone Co., be granted. Big River has presented sufficient facts upon which this Commission can rely to grant the relief requested by Big River. Big River has presented evidence with respect to each of the factors set forth in OAC 165: , and granting Big River's application is in the public interest. Based on that evidence, the ALJ recommends the Commission grant Big River's application for an expansion of its service territory to include the exchanges listed above. The Administrative Law Judge further recommends that the Commission find that a revised local exchange tariff is not required in this case because the services Big River intends to provide at this time are wholesale services. The Administrative Law Judge further recommends that the Commission find that this cause does not address the issue of whether, and if so, what type of regulatory treatment is appropriate for retail providers who utilize Big River's wholesale services to provide retail service to end-users. Respectfully submitted this day of June, MARIBETH D. SNAPP Administrative Law Judge

9 ATTACHMENT "A" SUMMARY OF EVIDENCE Big River Telephone Company Gerard J. Howe Direct Testimony Big River Telephone Company ("Big River") submitted Direct Testimony of Gerard J. Howe on December 9, Mr. Howe, CEO of Big River, explained that Big River initially intends to provide wholesale telecommunications service to Allegiance Communications, LLC ("Allegiance"), which will provide retail "voice over IP" services along with its cable television and Internet services to its own customers. Mr. Howe testified regarding the facilities Big River has in Oklahoma, and further testified that it initially plans to operate only as a wholesale provider in these new territories and currently has one customer, Allegiance Communications, Inc. Mr. Howe explained that Big River did not submit revised local exchange and interexchange tariffs with the application because it initially plans to only offer wholesale services. He testified that if Big River offers retail service in these exchanges at some point in the future, Big River acknowledges that it will first have to revise its local and long distance tariffs to include these exchanges. Mr. Howe also testified that the requested expansion is in the public interest and is consistent with the goals of universal service, i.e., to promote the availability of quality services at just, reasonable and affordable rates to all consumers. Big River's expansion will present the first facilities-based competition for many customers in these communities and will make available some of the same options available to customers in larger markets. Consumers will have an opportunity to receive services at prices that reflect a competitive market, and competition will encourage providers to be efficient, innovative and responsive to customers. Mr. Howe stated that Big River's experience and expertise in providing telecommunication services will guarantee an excellent quality of service to the customer. At the hearing on the merits, Mr. Howe testified that he had recently been informed by Allegiance that plans have changed and it will not offer telephone service in the Earlsboro exchange at the present time. Consequently, that portion of the application and testimony indicating that Big River currently has one wholesale customer in each of the referenced exchanges is now incorrect as to the Earlsboro exchange. Mr. Howe testified that Big River is not changing its application and is still requesting that its service territory be expanded to include the Earlsboro exchange. Mr. Howe explained that there may be other parties who would like to take advantage of Big River's wholesale services, and as explained in its application, it could offer retail service at some point in the future. Big River's Brief in Support of Application In Big River's Brief in Support of Application, filed on December 9, 2010, Big River indicated that its initial business plan is to provide wholesale telecommunications service to Allegiance Communications in the identified exchanges following the business model discussed in In re: Time Warner Cable request for Declaratory Ruling that Competitive Local Exchange

10 Cause No. PUD Attachment "A" - Summary of Evidence Page 2 of 13 Carriers May Obtain Interconnection Under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, WC Docket No (Memorandum Opinion and Order, filed March 1, 2007) ("Time Warner"). In its Time Warner decision, the FCC declared that "wholesale telecommunications carriers are entitled to interconnect and exchange traffic with incumbent local exchange carriers (LECs) when providing services to other service providers, including voice over Internet Protocol (VoIP) service providers pursuant to sections 251(a) and (b) of the Communications Act of 1934, as amended (the Act)," and further concluded that "state commission decisions denying wholesale telecommunications service providers the right to interconnect with incumbent LECs pursuant to sections 251(a) and (b) of the Act are inconsistent with the Act and Commission precedent and would frustrate the development of competition and broadband deployment." Id. at 1. areas: The FCC further found that its decision holds particular promise for consumers in rural 13. We further find that our decision today is consistent with and will advance the Commission's goals in promoting facilities-based competition as well as broadband deployment. Apart from encouraging competition for wholesale services in their own right, ensuring the protections of section 251 interconnection is a critical component for the growth of facilities-based local competition. We further conclude that such wholesale competition and its facilitation of the introduction of new technology holds particular promise in rural areas. 38 Note 38 to paragraph 13 cites the comments of various carriers for the FCC's conclusion that wholesale competition holds particular promise in rural areas, including the comment that "wholesale carrier services are particularly important to smaller cable operators, which often serve low density areas and lack the resources, scale or desire to enter the telephony market alone" and the comment that such services "enable even small cable providers to expand their service offerings - faster and at lower cost - and thus promote investment in areas previously under-served and lacking choices for consumers." In addition to the FCC's decision in Time Warner, the Commission can take judicial notice of this Commission's rules, prior decisions, court decisions and FCC orders which find that competition is in the public interest, as well as the preamble to the federal Telecommunications Act which provides that the act is "an act to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." On its website, the FCC lists one of its strategic goals as competition, stating: Competition in the provision of communications services, both domestically and overseas, supports the Nation's economy. The competitive framework for communications services should foster innovation and offer consumers reliable, meaningful choice in affordable services.

11 Cause No. PUD Attachment "A "- Summary of Evidence Page 3 of 13 The FCC further states that in fulfilling its obligation to take action to remove statutory, regulatory, economic, and operational barriers to local telephone services competition, today's focus is on, inter alia, "ensuring that American consumers can choose among multiple reliable and affordable communications services." The FCC also notes that competition and universal service are not mutually exclusive, but are in fact compatible goals, stating another focus as "promoting pro-competitive and universal access policies worldwide." Finally, the FCC lists its objectives for competition as follows: Foster sustainable competition across the entire telecommunications sector. Facilitate a more effective wholesale market through interconnection policy and other competition-related rules. Promote and advance universal service. Ensure that consumers have choices among communication services and are protected from anti-competitive behavior in the increasingly competitive telecommunications landscape. Continually evaluate and report on the competitive environment for communications services. Competition and universal service are not mutually exclusive goals. Congress, the FCC, and this Commission have all recognized the benefits of competition and the need to "ensure that consumers have choices among communication services." This Commission has recognized the benefits of competition in the telecommunications industry. Indeed, one of the stated purposes of Chapter 55 is to provide consumers with the benefits of competition. OAC 165: (c) provides: (c) This Chapter is further intended to allow Oklahoma consumers to receive timely benefits from lawful market-driven price and service competition among interexchange carriers ("IXCs") and telecommunications service providers in the long distance and local exchange markets by applying such regulatory requirements as are necessary to assure public access to long distance and local exchange services under tariff provisions which are not unjustly discriminatory and to preclude unjust and unreasonable rates or charges in such markets. [Emphasis added]. The Oklahoma Supreme Court has recognized the importance of this Commission's consideration of FCC determinations on related issues when considering public interest in cases pending before the Commission. In Data Transmission Co. v. Corporation Commission, 1976 OK 148 at , 561 P.2d 50, the Court stated:

12 Cause No. PUD Attachment "A "- Summary of Evidence Page 4 of Bell argues the authority granted by FCC for Video to build and operate a competing private telephone service on an interstate basis should not be conclusive upon a decision by Commission. While we agree the decision of FCC is not binding on this court, we would be injudicious to ignore the conclusions of the FCC, gained after extensive research and study. FCC found by permitting the entry of SCC, users would be provided with flexibility and a wider range of choices as to how they might best satisfy their expanding and changing requirements for specialized communication service. The FCC concluded competition in the microwave and private line services is good for the industry and its consumers. Where the FCC establishes competition by a carrier in a new area is healthy and will best serve the public interest on a national level, Commission should not use a limited interpretation of a statute such as 131(b) as the basis for summarily denying an entry of a carrier at the state level. 16 Granted, the FCC and Commission have separate spheres of regulatory authority over the operations of the telephone industry. But where this authority is divided, the public interest demands the policies of the two jurisdictions be sufficiently consistent to prevent an impasse under which business cannot be conducted because of one jurisdiction thwarting the mandates of the other. A uniform policy of interstate and intrastate authorization is certainly an important element of public convenience and necessity, consequently Commission was correct in considering the action taken by the FCC. [Emphasis added] Just as in Data Transmission, the FCC has made findings relevant to Big River's application pending before this Commission which can and should be considered in finding Big River's application to be in the public interest. The FCC found that the wholesale business model which Big River seeks authority to provide in the exchanges listed in this application is a favorable development on a national level. It found the business model to be one that holds "particular promise" for consumers in rural areas, a finding which applies to consumers in rural areas of Oklahoma, including consumers in the listed exchanges. This Commission should not use a limited interpretation of OAC 165: to find that Big River's requested relief is not in the public interest. To do so would create "an impasse under which business cannot be conducted because of one jurisdiction thwarting the mandates of the other." Indeed, this Commission has previously determined that such applications are in the public interest. In Cause No. PTJD , Application of Big River Telephone Company, LLC to Expand Local Exchange Service Territory to include Territory Served by Cherokee Telephone Company, the Commission approved Big River's application to expand its service territory. In that application, Big River sought to expand its service territory to provide wholesale telecommunications service to ConimuniComm Cable using the same business model it intends to use in this case. In Order No , issued on August 25, 2010, the Commission adopted the AL's Report as the Findings of Fact and Conclusions of Law of the Commission and granted the application. In that Report, the ALJ found in pertinent part as follows (AU Report at 11-12): 5. With regard to the impact of this application on universal service, the ALJ finds that the wholesale services provided by Big River enable the retail

13 Cause No. PUD Attachment "A "- Summary of Evidence Page 5 of 13 provider to offer customers some of the same options available to consumers in larger markets. In other words, the wholesale services provided by Big River enable the retail provider of its services to promote the goal of universal service and offer quality services at just, reasonable and affordable rates. This is consistent with the recognition by the FCC in its Time Warner order, that services such as Big River's wholesale services enable even small cable providers to expand their service offerings - faster and at lower cost. Therefore, Big River's wholesale offering promotes the goals of universal service. 8. Cherokee argued that it provides the "highest quality and reliable telecommunications service at fair and reasonable rates to its customers" and "authorizing Big River to provide wholesale services to retail providers such as CommuniComm would not provide any additional services that the customers do not already have access to." Cherokee argued that granting the application "would be to encourage competition just for competition's sake with no benefits accruing to the customers." Contrary to Cherokee's assertions, the ALJ finds Big River presented evidence that its wholesale services would enable retail providers to offer consumers a choice of providers and the very benefits that competition allows. If the Commission were to accept Cherokee's arguments, there likely would be no reason to allow competition anywhere in the state, as long as the incumbent provider provided adequate service to its customers. Prior to 1996, the test set forth in 17 O.S. 131 for obtaining the ability to operate within another telephone company's service territory required the Commission to "first determine that the existing facilities are inadequate to meet the reasonable needs of the public, or that the person operating the same is unable to or refuses or neglects, after hearing, on reasonable notice, to provide reasonably adequate service." A determination that the existing facilities or service is inadequate is no longer required, as the direct result of the federal Telecommunications Act and the Oklahoma Telecommunications Act. See also Order No , Cause No. PUD , Application of Sprint Communications Company L.P. to Expand Local Exchange Service Territory to Include the Territory Served by Hinton Telephone Company, Inc., in which this Commission made similar findings in granting Sprint's application to expand its service territory. As in Big River's earlier application, Mr. Howe's initial testimony on behalf of Big River in this case indicates that the requested expansion of service territory will present the benefits of competition, (Howe testimony at 5): Big River's expansion will present the first facilities-based competition for many customers in these communities and will make available some of the same options available to customers in larger markets. Consumers will have an opportunity to receive services at prices that reflect a competitive market. Competition will encourage providers to be efficient, innovative and responsive to customers.

14 Cause No. PUD Attachment "A" Summary of Evidence Page 6 of 13 The requested authority serves several public interest goals as set forth by the FCC, including the goals of fostering sustainable competition across the entire telecommunications sector, facilitating a more effective wholesale market through interconnection policy and other competition-related rules, and ensuring that consumers have choices among communication services and are protected from anti-competitive behavior in the increasingly competitive telecommunications landscape. Further, with a choice in providers and the competition such a choice brings, it is likely that end users will "receive timely benefits from lawful market-driven price and service competition" as stated by this Commission in OAC 165:55-1-1(c). Rebuttal Brief of Big River Big River filed its Rebuttal Brief on March 10, 2011 to rebut positions taken by parties objecting to the application. In response to McLoud Telephone Company's ("McLoud") contention that the Time Warner decision has no effect on the Commission's decision in this case, Big River noted that the Time Warner decision discusses the promise that the wholesale business model holds for consumers in rural areas, enabling the retail provider to offer customers some of the same options available to consumers in larger markets. Big River noted that this discussion is important to the determination that the requested relief is in the public interest, and that this Commission has previously cited Time Warner on these issues. In response to McLoud's contention that the Commission must consider evidence of Big River's wholesale customer's experience, financial qualifications, or management expertise, as required of a new provider of telecommunications services, and that the wholesale provider must comply with Commission rules, Big River responded that such a contention would require, at a minimum, a change in Commission rules and thus is appropriately considered in a rulemaking in which all affected parties have notice and an opportunity to participate. Further, this case does not involve an application by a VoIP provider, and as the Commission has previously found in similar cases, the issue of what type of regulatory treatment is appropriate for retail providers utilizing Big River's wholesale services is not an issue in these cases. Finally, the Federal Communications Commission's ("FCC") declaratory ruling in In re Universal Service Contribution Methodology, Petition of Nebraska Public Service Commission and Kansas Corporation Commission for Declaratory Ruling or, in the Alternative, Adoption of Rule Declaring that State Universal Service Funds May Assess Nomadic VoIP Intrastate Revenues, Declaratory Ruling, WC Docket No (Released November 5, 2010) cited by McLoud and others includes a statement indicating that the FCC has preempted many state regulatory requirements that operate as "conditions to entry" for VoIP providers. Big River argued that even if the Commission were to address these issues in a rulemaking, it could not impose upon Vo1P providers many of the requirements urged by McLoud, since the FCC has preempted those requirements. In response to arguments by McLoud that the Commission should enforce rules relating to the provision of retail service on Big River's wholesale operations, that Big River should be required to tariff its wholesale service offering, and that Big River should be ordered to contribute to the Oklahoma Universal Service Fund ("OUSF") assessment on the basis of its wholesale operations, Big River again noted that the arguments require a change in current Commission rules and in some instances, a change in current statutes.

15 Cause No. PUD Attachment "A " - Summary of Evidence Page 7 of 13 In response to Pottawatomie Telephone Company's ("Pottawatomie") and Salina- Spavinaw Telephone Company's ("Salina-Spavinaw") argument that any order be limited to expansion of service territory for the limited purpose of providing wholesale service to Allegiance, with a further requirement that if Big River ever seeks to provide retail service or to provide wholesale service in the listed exchanges to any customer other than Allegiance it would have to file a new application, Big River responded that its application is not limited to the relief suggested by Pottawatomie and Salina-Spavinaw. Moreover, a request that relief be limited in this manner would, if granted, constitute a barrier to entry in violation of 47 U.S.C. 253(a). Big River noted that the United States Department of Justice ("DOJ") addressed the issue of rural telephone companies delaying entry by new competitors in a proceeding before the Pennsylvania Public Service Commission in The DOJ complained about the practice of rural telephone companies delaying entry "simply by filing protests, regardless of the merits of the objections raised, triggering long and expensive administrative processes" with the result that "[t]hese procedures not only delay entry, but also raise costs for a new entrant, thereby erecting barriers to entry in tension with Section 253(a) of the Telecommunications Act." The argument in this case that relief should be limited to wholesale service to a single customer, with any additional relief requiring a new application does nothing more than delay this case and raise the costs of processing applications, "thereby erecting barriers to entry in tension with Section 253(a) of the Telecommunications Act." In response to Pottawatomie and Salina-Spavinaw's argument that Big River and/or its customer should be ordered to pay into the OUSF, Big River responded that not only is this issue not appropriately considered in this case, but also noted that Pottawatomie and Salina-Spavinaw have themselves argued, in a pending rulemaking, that the issue should not be considered in that rulemaking, because the "specific rules addressing the assessment of VoIP providers were not included in the NOPR," and "[i}n order to avoid potential legal challenges, the Companies [i.e., Pottawatomie, Salina-Spavinaw and Cimarron Telephone Company] would recommend that the Commission defer action on this item until appropriate notice has been given to all affected parties." In response to Panhandle Telephone Cooperative's ("Panhandle") argument that Big River must contribute to the Public Utility Assessment Fee on the basis of its wholesale operations, and complaint that VoIP providers are not currently required to contribute to the OUSF, Big River again noted that these issues would require changes to current rules and statutes which are not appropriately considered in this cause. In response to Panhandle's arguments that competition will not benefit the member/customers of the cooperative because it could impact Panhandle's profitability, Big River pointed out that such an argument would mean that competition is never in the best interest of the consumer, a position directly contrary to the 1996 Telecommunications Act, as well as statements by the FCC and this Commission. In response to Panhandle's argument that allowing big River to expand into Panhandle's territory might result in a loss of federal USF funding if the FCC adopts certain proposed rules, and that loss of funding could jeopardize Panhandle's ability to offer service, Big River noted that arguments with respect to a pending FCC rulemaking, and rules which have not been adopted, are at best speculative. Moreover, Panhandle offered no evidence to support a claim that its ability to offer service will be impaired. Panhandle is not rate regulated, nor did Panhandle offer any evidence of its cost to offer service in any of its exchanges, or evidence of

16 Cause No. PUD Attachment "A" - Summary of Evidence Page 8 of 13 how it uses federal and state subsidies received by Panhandle. Finally, in response to Panhandle's argument that it offers reliable service and authorizing Big River to provide wholesale service will not make any additional services available to customers in Panhandle's territory, Big River noted that similar arguments have been rejected by this Commission, and that if such arguments were accepted, there would be no reason to allow competition anywhere in the state, as long as the incumbent provider provides adequate service to its customers. That approach has changed as the direct result of the federal Telecommunications Act and the Oklahoma Telecommunications Act. In response to Staffs concerns regarding the potential for "cherry picking" in the Guymon exchange, Big River noted that this concept (under the term "creamskimming") is used by the FCC in addressing situations in which a competitor seeks ETC designation for purposes of federal high cost support, and receives more federal high cost support than is reflective of the rural incumbent's costs in serving its entire service area, by serving only a densely populated area in the incumbent's area. In a case such as this one, which does not involve a request for ETC designation and no request for any kind of support, the cream skimming concept simply does not apply. Instead, a competitor in any of Panhandle's exchanges must compete with a subsidized incumbent and its subsidized affiliate, without the competitor receiving y federal USF subsidies. Moreover, as Staff noted, no evidence was presented to indicate that Panhandle's ability to compete will be damaged by Big River's expansion into the Guymon exchange. Thus, Staff recommended that the application should be granted with respect to all of the requested exchanges. Panhandle Telephone Cooperative Gary Burke Mr. Gary Burke, Outside Plant Manager for Panhandle Telephone Cooperative, testified on behalf of Panhandle. Mr. Burke testified that it is not in the public interest for Big River to receive expanded authority as requested in its Application. Mr. Burke testified that Big River does not seek to expand its service area to offer retail telecommunications service on a nondiscriminatory basis to all residential and business customers in Panhandle's territory. Rather, Big River seeks to expand its service territory so that an unregulated entity, Allegiance, can offer Voice over Internet Protocol ("VoIP") services to its cable television customers located in Guymon, its franchised area. Mr. Burke further testified that Big River's proposal conflicts with the public interest in several areas. First, the Commission currently does not require VoIP providers to contribute to the Public Utility Assessment Fee ("PUD Fee"). Therefore, as customers migrate to Big River's wholesale customer's VoIP service, the base for calculating each regulated company's assessment will decrease, causing regulated carriers to bear a greater burden of the PUD Fee. Unless the PUD Fee is assessed on Big River as a wholesale carrier, Big River's wholesale customer will enjoy a competitive advantage over regulated carriers that are required to pay the PUD Fee. Second, the Commission currently does not require VoIP providers to contribute to the OUSF. This contributes to lower cost for the unregulated VoIP provider that competes on price with regulated entities that are required to contribute to the OUSF, thereby placing

17 Cause No. PUD Attachment "A" - Summary of Evidence Page 9of13 regulated carriers at a competitive disadvantage to the unregulated wholesale customer of Big River. Mr. Burke further testified that the FCC recently issued a Declaratory Ruling at the request of the Kansas Corporation Commission and the Nebraska Public Service Commission that confirms the authority of States to assess VoIP providers for universal service contributions. Third, Panhandle was created under state cooperative corporation laws for the benefit of all of its members. Enabling an unregulated entity to operate in duplication with Panhandle does not result in benefit to all of the members of the cooperative association. Instead, members may be forced to bear a disproportionate share of the cost to provide service, thereby conflicting with universal service principles and the public interest. Accordingly, Panhandle states it is not in the public interest for the Commission to approve Big River's Application. Mr. Burke further testified that Big River's request to expand its service territory to provide wholesale services to an unregulated entity is contrary to the principles of universal service. Big River's proposed service territory expansion will adversely impact universal service principles because it facilitates the entry of another wireline provider in Panhandle's service area. Mr. Burke testified that a Petition for Rulemaking is under consideration by the FCC which, if granted, would eliminate or significantly reduce USF funds where wireline competition exists. Mr. Burke testified that under such a plan, the presence of an additional wireline carrier could result in complete elimination of federal USF funding for Panhandle's network that serves the Guymon Community. Mr. Burke further testified that the cable and wire facilities of Panhandle that are located in the community of Guymon not only serve the lower cost area of the city of Guymon, but extend to the higher cost areas outside the community which neither Big River nor Allegiance will serve. Mr. Burke testified that granting Big River's application could have a devastating effect on the members of the cooperative and jeopardize Panhandle's ability to offer comparable services at comparable rates in more rural areas of its service territory. Such a result is contrary to universal service principles. Mr. Burke further testified that Big River's application is contrary to universal service principles in that neither Big River nor its wholesale customer will contribute on an equal basis to the Commission's PUD Assessment Fee or the OUSF fee. Mr. Burke testified that the federal act established "equitable and nondiscriminatory contributions" as one of the principles of universal service. Big River's application is contrary to that principle. Mr. Burke further testified that all of the customers within Panhandle's certified territory currently have access to all the supported universal services and that authorizing Big River to provide wholesale services to retail providers such as Allegiance will not make any additional services available to customers in Panhandle's service territory. Similarly, authorizing Big River to expand its service territory to offer wholesale service to an unregulated entity will not ensure access to advanced services. Mr. Burke testified that granting Big River's application is not consistent with universal service principles. Mr. Burke further testified that Big River will need to establish a direct connection to Panhandle's network to permit the exchange of local calls between it and Panhandle's customers.

18 Cause No. PUD Attachment "A "- Summary of Evidence Page 10 of 13 If Big River does not maintain a connection to Panhandle's network, local calls from Panhandle customers will not complete to Big River's customers. Any calls which leave Panhandle's service areas are toll calls carried over AT&T or other IXC's toll facilities. Panhandle cannot route local calls over such facilities because such calls will be rejected by AT&T's toll tandem and therefore, will not complete. Mr. Burke further testified that it is necessary for Big River to have a connection to Panhandle's network in order to comply with FCC local number portability rules. The FCC's porting rules require a carrier that is requesting to port telephone numbers to have facilities and numbering resources in the rate center from which the number to be ported is assigned. Big River has no facilities or numbering resources in any Panhandle rate center. In summary, Mr. Burke testified that granting approval to Big River would not be in the best interest of the consumer, as granting Big River authority would dilute the profitability of the cooperative and inadvertently result in less distribution to the member/customer. Panhandle provides state of the art, reliable, quality, reasonably priced services to every end user within its certified territory today. If the Commission grants Big River's request, Big River must obtain connectivity with Panhandle's network for local calls to complete. Big River is also required to obtain such connectivity under the FCC's local number portability rules. Public Utility Division Staff Barbara L. Mallett Barbara Mallett recommended that the service territory expansion proposed by Big River be granted. Ms. Mallett evaluated the request for service territory expansion based on the applicable Commission rule at OAC 165: by considering several factors, including the existence and location of Big River's facilities, the number of potential customers to be served, the potential impact on universal service, and other relevant factors, including but not limited to, issues raised by intervenors in this cause. After considering all the evidence and arguments presented in this cause, Ms. Mallett concluded that the service territory expansion sought by Big River should be granted and is in the public interest. Pottawatomie Telephone Company Salina-Spavinaw Telephone Company STATEMENTS OF POSITION Pottawatomie and Salina-Spavinaw rely on statements made by Big River in the Direct Testimony of Gerard J. Howe and Brief in Support of its Application filed December 9, 2010, that Big River only seeks expansion of its service territory to include the exchanges listed for the purpose of providing wholesale services to Allegiance. Therefore, Pottawatomie and Salina- Spavinaw request that any order issued from the Commission in this Cause be limited to the granting of that specific relief. Should Big River seek to provide retail service in the rural telephone exchanges listed in the Application, Potawatomie and Salina-Spavinaw request that the Commission require Big River to file the appropriate application seeking supplemental authority to provide additional services.

19 Cause No. PUD Attachment "A" - Summary ofevidence Page 11 of 13 Big River's Application does not address any issue related to interconnection agreements or the rural exemption set forth in 47 U.S.C. 251(f). Pottawatomie and Salina-Spavinaw agree that under Commission rules and regulations, Big River will have to file additional applications seeking approval of any interconnection agreements. Additionally, Pottawatomie and Salina- Spavinaw affirmatively state that they are rural telephone companies under the Telecommunications Act of 1996 exempt under Section 251(f) from any obligation regarding interconnection arising under 251(c). No statement made is intended as a waiver of that exemption. Finally, Pottawatomie and Salina-Spavinaw note the potentially negative impact resulting from the granting of Big River's Application. Expansion of Big River's service territory could reduce the customer base of rural carriers and also negatively impact the size of the OUSF. Therefore, the Commission should carefully consider the question of whether the granting of Big River's Application is in the public interest. To minimize any negative impact resulting from the granting of Big River's Application, Allegiance should be required to pay into the OUSF in accordance with the Federal Communications Commission Declaratory Ruling issued on November 5, 2010 in the Matter of Universal Service Contribution Methodology - Petition of Nebraska Public service Commission and Kansas Corporation Commission for Declaratory Ruling, or, in the Alternative, Adoption of Rule Declaring that State Universal Service Funds may Assess Nomadic VoIP Intrastate Revenues, WC Docket No Choutean Telephone Company On January 11, 2011, Chouteau filed its Statement of Position indicating that Big River has made no request to lift the rural exemption in this application nor has it made a request for ETC designation. Chouteau further stated that should an interconnection request be made of Chouteau, any issues surrounding such request should be addressed in a separate proceeding. Chouteau stated that it does not acquiesce to any position Big River takes regarding interconnection, the rural exemption and/or Big River's interpretations of the Time Warner case. McLoud Telephone Company The Commission has sole jurisdiction over Big River's operations in the state, including the designation of its service territory. Even though Big River places great emphasis on the FCC's ruling in In re: Time Warner Cable Request for Declaratory Ruling that Competitive Local Exchange Carriers May Obtain Interconnection Under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, WC Docket No (Memorandum Opinion and Order, filed March 1, 2007) ("Time Warner"), that case has no binding effect on this Commission's authority over designation of telecommunications service providers' service areas. In fact, the FCC's decision in Time Warner has little, if any, difference to the third party interconnection permitted by the FCC nearly 15 years ago. In the Matter of Implementation of the Local Competition Provision in the Telecommunications Act of 1996, CC Docket No , Interconnection between Local Exchange Carriers and Commercial Mobile Radio Service Providers, CC Docket No , First Report and Order (rel. August 8, 1996) ("First Report and Order"). As a result, the Commission should segregate issues of interconnection, which were addressed in Time Warner,

20 Cause No. PUD Attachment "A" - Summary of Evidence Page 12 of 13 from issues pertaining to CLEC operations such as service territory designation. Big River itself concedes that its application does not address interconnection or the rural exemption under 17 U.S.C. 251(f). Therefore, the Commission should limit its review to designation of Big River's service territory and the conditions under which Big River may operate in its service territory. It is the position of McLoud Telephone that Big River has failed to meet its burden under the Commission's rules. The Commission rules require Big River to demonstrate that it is in the public interest to permit expansion of its service territory. While Big River provides information on its experience and expertise as a telecommunications service provider, it provides no evidence to support a finding that it is in the public interest to grant its request to expand its service territory to facilitate the provision of telecommunications service by an unregulated third party. There is no evidence of Big River's customer, Allegiance has the experience, financial qualifications, or management expertise that would normally be required of a new provider of telecommunications services. There is also no evidence that Big River's customer, Allegiance, will comply with Commission rules governing rates, customer complaints, quality of service and fee assessment. Where will retail customers go to resolve disputes over Allegiance's provision of telecommunications service? District court is the most likely forum - a costly and timeconsuming exercise. It is further the position of McLoud Telephone that Big River also ignores longstanding Commission rules requiring companies to file tariffs applicable to wholesale operations. The Commission has jurisdiction over Big River's rates and charges, including its rates and charges for its wholesale operations, just as the Commission does over other retail and wholesale services. In short, there is no evidence that the retail service that will be facilitated by Big River expanding its service territory to serve Allegiance, will serve the public interest. In the event the Commission finds Big River's wholesale service offering to be in the public interest, McLoud Telephone believes the Commission should enforce measures to ensure the public interest is served. For example, the Commission should enforce its rules governing the provision of retail telecommunications services on a nondiscriminatory basis on Big River's wholesale operations. This would ensure nondiscriminatory assessment of fees, including assessment of OUSF fees, which the FCC recently ruled states could assess on VoIP providers. In the Matter of Universal Service contribution Methodology, Petition of Nebraska Public Service Commission and Kansas Corporation Commission for Declaratory Ruling or, in the Alternative, Adoption of Rule Declaring that State Universal Service Funds May Assess Nomadic VoIP Intrastate Revenues, WC Docket No (Declaratory Ruling released November 5, 2010). This would also provide the Commission a mechanism to protect retail customers through its regulation of Big River, the entity holding a certificate of convenience and necessity. In addition, the Commission should require Big River to tariff its wholesale service offering just as other wholesale service offerings are required to be tariffed for other telecommunications service providers. In short, McLoud Telephone takes the position that the Commission should not forego its opportunity and ability to serve the public through regulation of Big River, the wholesale provider. In conclusion, McLoud does not believe that granting Big River's application is in the public interest. However, should the Commission disagree with McLoud, McLoud contends that the Commission should remain focused on the issues in this case that are fully and exclusively within its jurisdiction. The Commission should not concede that Big River's provision of wholesale services is in the public interest without reserving the ability to protect the public