NOTICES
Order
[35 Pa.B. 6297] Public Meeting held
October 27, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick
Law Bureau Prosecutory Staff v. NECC Telecom, Inc. (2004.0267); Doc. No. C-20044040
NECC Telecom, Inc. Petition for Reinstatement; Doc. No. A-311209
Order By the Commission:
On December 14, 2004, Law Bureau Prosecutory Staff filed a Formal Complaint against NECC Telecom, Inc. (NECC), a reseller of toll service certificated at A-311209. In the Complaint, Prosecutory Staff alleged that the Commission sent by certified mail prior written notices to NECC that its 2003 Annual Report was due. The Complaint charged that NECC violated 66 Pa.C.S. § 504 by failing to file its 2003 Annual Report. The Complaint requested that the Commission issue an order canceling NECC's certificate of public convenience for failure to file its 2003 Annual Report.
According to the U. S. Postal Service return receipt, the Complaint was served on December 20, 2004, but NECC failed to file an answer or its 2003 Annual Report. As a result of NECC's failure to respond to the Complaint, the Commission entered a Default Order on July 20, 2005 that sustained the Complaint and cancelled NECC's certificate of public convenience. The notice of the Default Order was published August 6, 2005 at 35 Pa.B. 4516 with a 20-day comment period.
On September 29, 2005, NECC filed a letter-petition for reconsideration along with its 2003 and 2004 Toll Reseller Annual Report, but failed to include a check for the late-filing fee in the amount of $250. NECC was then advised by Commission Staff that it needed to pay the late-filing fee in order to satisfy the Complaint. On October 12, 2005, NECC paid the late-filing fee. In its petition, NECC seeks reconsideration of the Default Order and reinstatement of its certificate. We will treat this petition as a request for reinstatement.
In its Petition, NECC apologized for failing to timely file its 2003 Annual Report. NECC states that it has taken steps to ensure that it timely complies with future filing deadlines.
It is well-settled that decisions such as whether to grant a petition for reinstatement are left to the Commission's discretion. Hoskins Taxi Service v. Pa. P.U.C., 486 A.2d 1030 (Pa. Cmwlth. 1985). In ruling upon a reinstatement petition, it is incumbent upon this Commission to examine all relevant factors in order to reach an equitable result. Medical Transportation, Inc., 57 Pa. P.U.C. 79 (1983).
The Commission has identified five factors that are particularly relevant to the adjudication of a petition to reinstate: 1) the amount of time that elapsed between the cancellation of the certificate of public convenience and the filing of the petition, 2) whether the petitioner has a record of habitually violating the Public Utility Code, 3)the reasonableness of the excuse given for the violation that caused the certificate to be cancelled, 4) whether the petitioner has implemented procedures to prevent a recurrence of the circumstances giving rise to the cancellation, and 5) whether the petitioner is current in the payment of all Commission fines and assessments. Re: M. S. Carriers, Inc., Docket No. A-00110601 (May 4, 1999).
In considering the first factor, we note that only 34 days elapsed between the effective date of the cancellation on August 26, 2005 and NECC's request for reinstatement on September 29, 2005. This short period of time supports reinstatement.
In regard to the second factor, NECC does not have a record of habitually violating the Public Utility Code. NECC was issued its certificate of public convenience in 2002. Since the issuance of its certificate, only one Formal Complaint has been issued against NECC in addition to the instant Complaint. That Complaint, which involved a billing dispute, was resolved by the parties. NECC's record also supports reinstatement.
In considering the third and fourth factors, NECC is appropriately apologetic in its Petition for the delinquency in filing its 2003 Annual Report. NECC further stated that it has taken steps to ensure that its regulatory compliance remains in good standing. In the meantime, NECC has also filed its 2004 Annual Report. The fact that NECC has now complied with our reporting requirements and has taken steps to ensure future compliance militates toward reinstatement. Specifically, NECC has hired a CPA and assistant CPA, and are in the process of moving its regulatory compliance function in house. NECC is also planning to implement a new computer system to ensure its timely regulatory compliance in the future.
The fifth factor requires that all outstanding fines and/or assessments be paid prior to reinstatement. A review of Commission records shows that NECC has no unpaid fines or assessments.
Based upon the foregoing, we will grant NECC's petition for reinstatement. However, we caution NECC that in the future annual reports must be complete and timely filed. We also emphasize that all Commission correspondence must be answered in a timely manner. Therefore,
It Is Ordered That:
1. The Petition to Reinstate filed by NECC Telecom, Inc. at C-20044040 on September 29, 2005, is hereby granted.
2. The certificate of public convenience held by NECC Telecom Inc. at A-311209 is hereby reinstated.
3. The Secretary cause a copy of this Order to be published in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary
[Pa.B. Doc. No. 05-2104. Filed for public inspection November 11, 2005, 9:00 a.m.]
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