5. Comments on Proposed Decision

The proposed decision of the Administrative Law Judge (ALJ) in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed on May 18, 2010 by North County, and reply comments were filed on June 1 by MetroPCS and the Wireless Coalition.

North County argues that this order "misapplies the MetroPCS decision" and "ignores the FCC's prior ruling in the First Order and Report on CMRS Traffic [11 FCC Rcd. 15499] where the FCC specifically found that reciprocal compensation obligations do apply to CMRS providers within the intra-MTA areas."⁴⁴ North County further argues that this Commission must follow the FCC's order or risk an enforcement action.

In reply, MetroPCS argues that the FCC has not ordered this Commission to do anything. MetroPCS notes that the FCC's Order on Review states that the Commission "may employ whatever non-tariff procedural mechanism it deems appropriate under state law."⁴⁵ Concerning the issue of reciprocal compensation, MetroPCS argues that "the FCC expressly rejected Section 251(b)(5) as a basis for finding compensation to North County here. The [Bureau Merits Order] found that `as a CMRS provider, MetroPCS is not subject to the obligations arising directly from Section 251(b)(5) itself ... [a]ccordingly, we deny North County's claim ... that MetroPCS is violating Section 251(b)(5) of the Act.'"⁴⁶ MetroPCS brings attention to the analysis offered in the decision that cites to the FCC's Bureau Order and its conclusion that the FCC makes "no determination ...[concerning] obligations to pay compensation in the absence of an agreement."⁴⁷ Furthermore, MetroPCS argues that this Commission will not be subject to FCC enforcement action because the FCC "did not order this Commission to do anything" and because this case is "completely distinguishable" from the case cited by North County.⁴⁸

In reply, the Wireless Coalition argues that "the FCC and the Ninth Circuit have held in cases involving [North County] that Section 251(b)(5) does not `explicitly address the type of arrangement necessary to trigger the payment of reciprocal compensation ... when carriers exchange traffic without making prior arrangements with each other.'"⁴⁹

The Wireless Coalition also argues that the FCC has not ordered the Commission to set a rate, and that North County's rights are not affected by the dismissal without prejudice.

We note that North County has failed to address the substance of our analysis. As MetroPCS has pointed out in June 1 reply, the FCC has provided no indication as to whether it will use a Commission-determined cost in resolving this matter. Thus, we have not misread the FCC's order.

Second, the question of whether the exchange of this traffic creates obligations for reciprocal compensation is, as MetroPCS and the Wireless Coalition point out, still undecided. Reciprocal obligations are generally resolved pursuant to the terms of an interconnection agreement, which is lacking in this situation.

Finally, North County errs in asserting that this Commission's failure to act invites an enforcement action by the FCC. As MetroPCS and the Wireless Coalition point out, the FCC has not ordered this Commission to do anything. In addition, the facts of this case are readily distinguishable from the facts in the case cited by North County, which set forth explicit order that the Hawaii PUC subsequently ignored. There is no order given to this Commission. Moreover, under § 252 of the Telecommunications Act, which guides state action pertaining to interconnection issues, any failure of a state to carry out its obligations results in FCC preemption, not an enforcement proceeding against the state. We note, however, that this Commission stands ready to act on any interconnection agreement filed with us pursuant to § 252 of the Telecommunications Act.