NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[34 Pa.B. 3503] Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 57-232 Pennsylvania Public Utility Commission
Establishing Local Service Provider Abandonment Process for Jurisdictional Telecommunication Companies
(34 Pa.B. 1795 (April 3, 2004))5/18/04 6/17/04 57-230 Pennsylvania Public Utility Commission
Changing Local Service Providers
(34 Pa.B. 1748 (April 3, 2004))5/18/04 6/17/04
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Pennsylvania Public Utility Commission Regulation #57-232 (IRRC #2393)
Establishing Local Service Provider Abandonment Process for Jurisdictional Telecommunications Companies
June 17, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Pennsylvania Public Utility Commission (PUC) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on May 18, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
The section designations differ between the original version submitted by the PUC and the version published by the Legislative Reference Bureau in the Pennsylvania Bulletin. These comments use the section numbering published in the Pennsylvania Bulletin.
1. Subchapter N. Local service provider abandonment process.--Feasibility.
This regulation assigns responsibilities to local service providers (LSPs), network service providers (NSPs), local service resellers and wholesale customers involved in the abandonment of service process. It requires the abandoning LSP to perform multiple functions over a period of several months in conjunction with the other affected parties.
LSPs typically abandon service because of poor financial health. While the regulation provides protections under the best case scenario, it would appear further protection of the end-use-customer is needed if that process breaks down. The final-form regulation should include provisions to reassign functions of the abandoning LSP if it fails to, or is unable to, perform its required duties.
2. Agreements between NSPs and LSPs.--Implementation procedures; Economic impact; Reasonableness.
The time frames and requirements in the regulation may differ from existing agreements between an LSP and an NSP. Under these regulations, the PUC may order a time extension that was not in the interconnection agreement. If nonpayment is involved, the extension would be costly to the NSP. The regulation should address how implementation of the new regulatory requirements will affect existing and future interconnection agreements and whether the regulation supersedes existing agreements.
3. Section 63.302. Definitions.--Clarity.
Telephone service, local service, service and telecommunications service
This proposed rulemaking uses these terms throughout the regulation. Only the term ''local service'' is defined. The defined term ''local service'' should be used throughout the regulation.
LSP--Local Service Provider
We have two concerns. First, this definition includes the undefined terms ''unbundled network elements (with or without platform)'' and ''nonjurisdictional services.'' The final-form regulation should include definitions of these terms.
Second, the terms ''NLSP'' (new LSP) and ''OLSP'' (old LSP) should have stand alone definitions so that they can easily be found by the reader.
NSP--Network Service Provider
This definition includes the term ''carrier.'' This term should be defined in the final-form regulation.
4. Section 63.303. NSP embargo process.--Reasonableness; Clarity.
Subsection (a)
Paragraph (1) uses the date the bill is ''rendered'' as the trigger for the 30-day period. Is this the date sent, date postmarked, date of the bill or date received? The regulation should specify the beginning of the 30-day period.
Under paragraphs (2)--(4), an NSP may embargo services if the wholesale customer: fails to abide by the terms of a PUC-approved interconnection agreement; fails to comply with the terms of a payment agreement; or fails to comply with a PUC order. Initiation of an embargo allows an NSP to refuse to process local service change requests or initiate new local service requests. Who makes the determination that the wholesale customer has failed to abide by the agreements? What remedy does the wholesale customer have if they disagree?
Subsection (c)
Paragraph (1) requires 10 days notice prior to initiation of an embargo. Is this sufficient time for the wholesale customer to evaluate and respond to the NSP embargo notice to avoid § 63.304(a)?
Paragraph (2) lists information required in an embargo notice. However, it does not require a reason for the embargo or a breakdown of the amount owed. Without this information it may be difficult for the wholesale customer to evaluate the embargo notice and respond to it. Therefore, the regulation should require this information.
5. Section 63.304. NSP termination process for wholesale customers.--Reasonableness; Clarity.
Subsection (a)
Paragraph (3) requires a ''properly filed dispute.'' We have three questions. First, who makes the determination that the dispute is properly filed? If the determination is made by the NSP, the regulation should specify how this determination can be appealed.
Second, if a dispute was properly filed, how will the wholesale customer be notified?
Third, if a dispute was not properly filed, how will the wholesale customer be notified and what opportunity will the wholesale customer be given to correct the filing?
6. Section 63.305. Initiation of abandonment.--Clarity.
There are two concerns.
First, if the wholesale customer submits a properly filed dispute, there would be no need to initiate the abandonment of service. Therefore, the opening paragraph should end with the phrase ''unless a properly filed dispute is filed under § 63.304(a)(3)'' or similar language.
Second, paragraph (3) deals with voluntary abandonment, but only requires the 90-day notice to the PUC '' . . . when financial or operational data indicates there is a likelihood that the LSP may not be able to provide service . . . .'' The 90-day notice should always be required. For example, if the LSP simply elects to exit a market area, but is otherwise in sound operational and financial condition, notice to the PUC should still be required.
7. Section 63.306. Abandoning LSP obligation for abandonment.--Economic impact; Reasonableness; Clarity.
Subsection (a)
This subsection requires the abandoning LSP to make a ''good faith effort to secure an acquiring carrier to serve the customers it plans to abandon.'' The term ''acquiring carrier'' is not defined and should be replaced by an appropriate defined term such as ''acquiring LSP.''
Subsection (b)
The example in paragraph (13) uses the terms ''UNE-P (x carrier), resale (y carrier), UNE-L (x carrier) and Full Facilities.'' It is not clear what these terms mean. They should be explained within the example or defined.
Paragraph (17) requires ''details of a transfer of assets or control that requires Commission approval.'' A cross reference to the provisions that describe the ''transfer of assets or control'' that require PUC approval should be added.
Paragraph (22) refers to ''default LSP provisions.'' The final-form regulation should provide a citation to § 63.310.
Paragraph (22) also requires customer service records to be provided '' . . . 28 days prior to the exit date . . . .'' Should this state '' . . . at least 28 days prior to the exit date . . . .''?
Subsection (c)
Paragraph (1) requires compliance with the ''National Emergency Numbering Association's (NENA) standards.'' A more specific reference is needed to indicate where these standards can be found and which specific standards must be met.
Subsection (e)
Paragraph (1) uses the term ''acquiring carrier,'' which is not defined. Should this be ''acquiring LSP''?
The second requirement of paragraph (2) states that the abandoning LSP must direct customers to choose a service provider ''to replace the service it has been providing.'' While basic dial tone service would need to be replaced, a customer would be free to add or delete other services. The notice to the customer should include this flexibility in acquiring new service.
Paragraph (4) lists the information required in the customer notice. This list should include who the customer should contact if the customer encounters problems with the transfer of service, such as the program manager appointed under § 63.307 or the PUC.
Paragraph (4)(i) requires ''A printed teaser . . . .'' What specifically qualifies as a ''teaser''?
Paragraph (4)(vii) requires the abandoning LSP to provide their customers with ''a list of alternative LSPs, including contact numbers and addresses, that serve the customer's area.'' To be competitively fair, this list should include all available alternative LSPs. How can an abandoning LSP obtain a comprehensive list of alternative LSPs that serve the area being abandoned?
8. Section 63.307. Abandonment process management.--Protection of the public safety.
Subsection (b) lists the parties to whom the program manager is accountable in the abandonment. Why doesn't this list include the customers? Related to our comment on § 63.306(e)(4), who would customers contact if they are experiencing problems during the transition?
9. Section 63.309. Acquiring LSP provisions and obligations.--Protection of the public welfare; Clarity.
The notice to customers does not include the provision in § 63.301(a)(4) to ''ensure customers have . . . the opportunity to select a new LSP of their choice.'' This provision should be included in this notice so that customers are aware that the transfer of their service to the acquiring LSP does not affect their right to select a different LSP of their choice.
Subsection (a)
This subsection requires the acquiring LSP to send notice to customers of the pending changes 60 days in advance of the exit date. We note that the abandoning LSP must also send notice under § 63.306(e)(1) in the same time frame. Multiple notices may be confusing to the customer, especially if the acquiring LSP notice arrives before the abandoning LSP notice. Therefore, these notices should be combined into one notice sent by the abandoning LSP.
Subsection (c)
This subsection states the change of the customer's LSP won't be considered slamming. A cross reference to the slamming provision under § 64.23(b) should be added.
Subsection (d)
If the abandoning LSP either refuses or is unable to pay the carrier change charges under this subsection, can the acquiring LSP then bill the customer for those charges?
Subsection (e)
This subsection includes the phrase ''unable to provide'' as it relates to an acquiring carrier providing service to a customer. This provision is broad. For example, would these circumstances be limited to processing and capacity problems, or could the credit history of the customer also be a reason the acquiring LSP is unable to provide service? The regulation should specify the circumstances under which an acquiring LSP would be permitted to make the determination that it is unable or unwilling to provide service. Furthermore, given the requirement placed on NSPs to serve as the default LSP under § 63.310, the PUC should explain why this provision is reasonable to a default NSP.
Subsection (e) also requires the abandoning LSP to continue to provide service if the acquiring carriers cannot and the customer is unable to select another carrier. What happens if the abandoning LSP discontinues service anyway?
10. Section 63.310. NSP obligations to serve as the default LSP.--Economic impact; Clarity.
In the public comments submitted on this regulation, an NSP and an LSP oppose this section. The LSP is concerned that NSPs will gain customers that the LSPs should get a chance to acquire. The NSP is concerned that they will be forced to accept customers they would otherwise reject. The PUC should explain the need for this section in a competitive market.
Related to our concern with § 63.309(e), what customers will the NSP be required to serve and under what circumstances? For example, if the acquiring LSP is permitted to reject customers who are not paying their bills, would the NSP also be allowed the same option?
11. Other miscellaneous clarity issues.
a. Should § 63.301(a)(2) state '' . . . under any of the following circumstances: . . . .''? (Emphasis added.)
b. In the definition of ''Abandoning LSP'' in § 63.302, why is the phrase ''in a service area'' needed?
c. The title of § 63.306(d)(2) should be ''NANPA abandonment notice'' to be consistent with the format of paragraph (1).
d. Section 63.308(a) mentions the PUC's website. The website address should also be included.
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Pennsylvania Public Utility Commission Regulation #57-230 (IRRC #2394)
Changing Local Service Providers
June 17, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Pennsylvania Public Utility Commission (PUC) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on May 18, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
The section designations differ between the original version submitted by the PUC and the version published by the Legislative Reference Bureau in the Pennsylvania Bulletin. These comments use the section numbering published in the Pennsylvania Bulletin.
1. Section 63.191. Statement of purpose and policy.--Clarity.
This section states that the purpose of this rulemaking is to ''establish general rules, procedures and standards governing the migration of customers between LSPs.'' The final-form rulemaking should specify that the regulation applies to both residential and business customers.
2. Section 63.192. Definitions.--Clarity.
Telephone service, local service, local basic service, service, vertical service, optional services and telecommunications service
This proposed rulemaking uses these terms throughout the regulation. Only the term ''local service'' is defined. The defined term ''local service'' should be used throughout the regulation.
Facilities and telephone facilities
Similar to the previous comment, this proposed regulation uses the terms ''facilities'' and ''telephone facilities.'' One term should be defined and used consistently.
LSC--Local service confirmation
This definition includes the term ''unbundled loop connections.'' The final-form regulation should define this term.
LOA--Letter of authorization
This definition contains two parts. The first part of this definition states the following: ''Sometimes used in a general sense as the data or record indicating that the customer has authorized the new local service provider (NLSP) to act as the customer's agent.'' The phrase ''sometimes used in general sense'' is vague and ambiguous. Therefore, it should be deleted from the final-form regulation. In addition, the phrase ''the term is used to indicate'' that begins the second part of the definition should be deleted.
LSP--Local Service Provider
We have two concerns. First, this definition includes the undefined terms ''unbundled network elements (with or without platform)'' and ''nonjurisdictional services.'' The final-form regulation should include definitions of these terms.
Second, subparagraph (i), which explains the terms ''NLSP'' (new LSP) and ''OLSP'' (old LSP), should be deleted. These terms are defined separately in this section.
LSP-to-LSP end user migration guidelines or migration guidelines
Subparagraphs (i) and (ii) of this definition explain how the migration guidelines will be developed and state that they will be amended from time to time. These provisions are substantive because they require certain parties to take action. Substantive provisions in a definition are not enforceable. In addition, they are not needed in the definition because § 63.203, regarding migration guidelines and industry work group, contains these provisions. Therefore, these subsections should be deleted.
NSP--Network Service Provider
This definition includes the term ''carrier.'' Clarity would be improved if this term were defined in the final-form regulation.
3. Section 63.201. General migration standard.--Clarity; Reasonableness.
Subsection (b)
This subsection states that a NLSP shall communicate certain information to the customer ''when applicable.'' We have two questions. First, under what circumstances would an NLSP not have to communicate that information to the customer? Second, what specific information is required to be communicated and explained?
Subsection (c)
This subsection states, in part, ''the OLSP has the right to protect itself from potential loss as permissible by Commission regulations.'' The final-form rulemaking should provide a citation to the applicable regulations. In addition, how can an OLSP protect itself from loss?
Subsection (e)
This subsection references the ''interfering station procedure.'' The final-form regulation should include a citation to §§ 63.211--63.214.
Subsection (f)
This subsection states that ''each LSP shall ensure that its 9-1-1 and Directory Listings/White Pages databases are accurate, accessible and updated as appropriate.'' We have two questions. First, if an LSP does not have its own ''facilities,'' can it maintain accurate databases of the required information? If not, we recommend that this provision be amended to identify the actual party that maintains the database.
Second, the phrase ''as appropriate'' is unclear. When should a database be updated?
4. Section 63.202. Migration responsibilities of the NLSPs and the NSPs.-- Clarity; Reasonableness; Need.
This section lists four responsibilities for NLSPs and one responsibility for NSPs. OLSPs are also involved in the migration process. This section of the final-form regulation should list the responsibilities of an OLSP when a migration occurs.
Subsection (a)
This subsection repeats the requirements contained in § 63.201(b), regarding general migration standards. Therefore, this subsection should be deleted from the final-form regulation.
Subsection (b)
This subsection states the following: ''The prospective NLSP shall be responsible for coordinating the migration of the customer's local service with its NSP, if any, and with the OLSP.'' How can a prospective NLSP be responsible for coordinating a migration that depends on the cooperation of the OLSP?
Subsection (e)
This subsection includes the phrase ''working days.'' This phrase is not defined. To improve clarity, the final-form regulation should use the phrase ''business days.''
5. Section 63.203. Migration guidelines and industry work group.--Noncompliance with Commonwealth Documents Law.
This section attempts to incorporate as yet undeveloped guidelines and enforce them against LSPs and NSPs. These guidelines, however, will constitute a statement of policy, not a regulation. Regulations have the force of law, and establish binding norms of general applicability and future effect. As such, they must be promulgated in compliance with the Commonwealth Documents Law. DER v. Rushton Mining Co., 591 A.2d 1168 (Pa. Cmwlth. 1991), allocatur denied, 600 A.2d 541 (Pa. 1991).
In contrast, statements of policy are not binding on the agency, and may be challenged by regulated parties on a case-by-case basis. If the PUC wants to have enforceable migration standards, the standards should be published as a new proposed regulation, in compliance with the Commonwealth Documents Law.
6. Section 63.204. Standards for the exchange of customer service information.--Clarity; Reasonableness; Need.
The phrase ''customer service information'' is used in the title of this section, but is not defined in this proposed rulemaking. Does ''customer service information'' differ from the defined term ''customer service record''? For clarity, the final-form regulation should either use the defined term or a definition of ''customer service information'' should be added.
A commentator expressed concern with the potential for abuse of consumer confidentiality under this section. What guarantees are there that confidential consumer information will be protected?
Subsections (a) and (d)
These subsections include the phrase ''additional procedures as may be authorized by the FCC or the Commission.'' We have two questions regarding this phrase. First, how will the additional procedures be developed and communicated to the affected parties? Second, why aren't the additional prospective procedures from the PUC included in this rulemaking?
In addition, these subsections include a 2-year recordkeeping requirement. What is the reason for keeping these records for 2 years?
Subsection (a)
The terms ''third-party verification,'' ''recording verifying permission'' and ''appropriate retained documentation'' are used in this subsection. For clarity, the final-form regulation should explain or define these terms.
Subsection (c)
Under this subsection, a current LSP is prohibited from contacting a customer to retain or keep that customer as a result of a request for a customer service record (CSR). We have three questions. First, why is this protection needed? Second, when does this prohibition expire so the LSP can attempt to regain that customer? Third, what constitutes contact? For example, would a current LSP's typical advertising practices, such as including new rate information in billing notices or phone solicitation, be considered ''contact''?
Subsection (d)
We have two concerns with this subsection. First, it states that when a prospective NLSP has verified authorization to switch a customer's LSP, the NLSP shall request the customer's ''network servicing arrangements and a CSR from the OLSP.'' The term ''network serving arrangements'' is not clear. For clarity, the final-form regulation should either define this term or explain within this subsection what specific information is required.
Second, this subsection states that a prospective NLSP is not required to provide proof that it has verified authorization for the migration. Since prospective NLSPs are not required to show that that they have obtained authorization to migrate a customer, how will the consumer and the OLSP be protected from illegal business activities such as ''slamming''? ''Slamming'' is defined in § 64.2 as the unauthorized changing of a customer's telecommunications provider, whether for local exchange service, intraLATA toll or interLATA toll.
Subsection (e)
We have three concerns with this subsection.
First, it requires 13 pieces of information when a CSR is requested. Is this information typically part of a CSR? If so, why is it necessary to list each piece of information separately? If this information is not typically found in a CSR, we recommend that those pieces of information should be included in the definition of CSR in § 63.192. If this approach is adopted, this subsection could be deleted.
Second, do any of the 13 pieces of information comprise what is referred to as ''network serving arrangements'' referenced in subsection (d)? If not, subsection (e) should also require the OLSP to provide ''network serving arrangements'' to the prospective NLSP.
Third, the terms ''interLATA,'' ''intraLATA,'' ''UNE-P'' and ''unbundled loop'' should be defined.
Subsection (f)
This subsection provides timetables for OLSPs to provide CSRs to prospective NLSPs. We have three concerns.
First, subsection (d) requires prospective NLSPs to request CSRs and ''customer's network serving arrangements'' from OLSPs. Must OLSPs provide a ''customer's network serving arrangements'' using the same timetable? If so, subsection (f) should be amended to reflect that fact.
Second, under paragraphs (1) and (2), CSRs are required to be provided within 48 and 24 hours respectively. What is the reason for establishing the timetables in hours instead of days?
Third, paragraph (3) uses the word ''day.'' Is it the PUC's intent to interpret the meaning of ''day'' as a calendar day or a business day. The final-form regulation should make this distinction.
7. Section 63.205. Removal or lifting of LSPFs.--Clarity; Reasonableness; Need; Conflict with Federal regulations.
A commentator has alleged that these regulations conflict with Federal Communication Commission (FCC) regulations on the topic of antislamming found in 47 CFR 64.1130. The PUC should explain how these regulations are consistent with FCC regulations.
Subsection (a)
This subsection establishes the procedures for lifting an LSP freeze (LSPF). We have two concerns with this section.
First, it is unclear who can authorize the lifting of a LSPF. Paragraph (2) states that an applicant or ''appropriate agent'' shall contact the OLSP to have a freeze lifted. However, it is not clear who can be an ''appropriate agent.'' This term should be explained or defined in the regulation.
Second, there is an inconsistency between paragraph (3) and the preamble. Paragraph (3) states that a prospective NLSP may not authorize the removal of an applicant's LSPF. However, the preamble states '' . . . that status as a prospective NLSP should not preclude an entity from exercising an explicit delegation of freeze-lifting authority from its prospective customers.'' Consumers who have established LSPFs should be protected from NLSPs who may attempt to circumvent the customer's established LSPF. The final-form regulation should clearly establish who can lift an LSPF and, if that authority can be delegated, the specific consumer protections required before delegating that authority.
Subsection (c)
This subsection states that LSPs shall provide various methods to customers for lifting LSPFs, as required by the PUC or the FCC. Those methods are not specified. The final-form regulation should include the methods or provide a reference to where those methods can be found.
8. Section 63.207. Discontinuance of billing.--Reasonableness.
Subsection (b) requires a customer's OLSP to issue a final bill within 42 days of receiving notification from the prospective NLSP that the customer has requested to migrate service. Commentators believe that the trigger for final billing is inappropriate because in their experience many requests are never processed. Why is the final bill required upon request to change service rather than after the migration is final?
9. Section 63.211. Duties of OLSPs and NSPs when an interfering station condition is identified.--Clarity; Reasonableness; Need.
Subsections (a) and (b)
These subsections require either the OLSP or the NSP to perform certain duties. The final-form regulation should establish parameters that would clearly indicate when either the OLSP or the NSP must perform the required duty.
Subsection (b)
Under subsection (b), a commentator questioned the authority of an OLSP to review local service requests (LSR). What is the need for an OLSP to review LSRs?
Paragraph (2) requires an OLSP or the NSP to correct an incorrect LSR. Why is the responsibility placed on the OLSP or the NSP to correct this information?
10. Section 63.212. Duties of the prospective NLSP and the applicant when an interfering station condition is identified.--Clarity.
Subsections (c) and (d) are directly related and should be merged into a single subsection. Likewise, subsections (e) and (f) should be merged.
11. Section 63.213. Duties of the OLSP if notified by the prospective NLSP that an interfering station exists at a location where the existing service is provided by the OLSP and the applicant has shown proof of ownership or right of occupancy.--Reasonableness.
Subsection (a)
Under this subsection, timeframes for an OLSP to notify and terminate service are established. The termination date is 7 days from the date of mailing of the notice by first class mail. Is this a reasonable timeframe for a customer of record to respond to a termination notice?
Subsection (b)
This subsection requires the OLSP to remove the customer of record from billing and to release the facilities to the prospective NLSP when the customer of record does not respond to the termination notice. What is the reason for removing the customer of record from billing?
12. Section 63.221. Consumer complaint procedures.--Clarity.
The title of this section includes the word ''consumer.'' That term is not defined and it is not used anywhere in this section except the title. The PUC should amend the title of this section to ''Customer complaint procedures.''
Subsection (b)
This subsection references §§ 64.141--64.182. Should this reference be amended to §§ 64.131--64.182?
Subsection (c)
This subsection refers to an applicant, customer or third party. Who is a ''third party'' and when would it have standing to file a complaint?
Subsections (c) and (d)
These subsections require the PUC and the service provider to perform certain actions, but do not indicate the timeframes for performing these actions. The final-form regulation should provide timeframes that indicate when either the PUC or a service provider must perform the required duty.
13. Section 63.222. Expedited dispute process.--Clarity.
Subsection (a)
This subsection states that the PUC will designate contact persons through which LSPs and NSPs may request expedited resolutions. We have two questions. First, can a customer or applicant file a complaint under this section? Second, are the ''contact persons'' PUC employees?
Subsection (d)
This subsection refers to the PUC's alternate dispute or formal dispute resolution processes. Is this reference to the procedures under Subchapter G? The final-form regulation should include a cross reference to the processes to be used.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 04-1209. Filed for public inspection July 2, 2004, 9:00 a.m.]
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