NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Default Order
[37 Pa.B. 1103]
[Saturday, March 3, 2007]Public Meeting held
February 8, 2007Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Kim Pizzingrilli; Terrance J. Fitzpatrick
Pennsylvania Public Utility Commission Law Bureau Prosecutory Staff; Doc. No. C-20066112;
v.
Covista, Inc.; Doc. No.; A-310640; 2006.0116.
Order By the Commission
On April 6, 2006, Law Bureau Prosecutory Staff filed a Formal Complaint against Covista, Inc. (Covista), a non-facilities based CLEC certificated at A-310640. In the Complaint, Prosecutory Staff alleged that the Commission sent by certified mail prior written notices to Covista that its 2004 Annual Report was due. The Complaint charged that Covista violated 66 Pa.C.S. § 504 by failing to file its 2004 Annual Report. The Complaint requested that the Commission issue an order canceling Covista's certificate of public convenience for failure to file its 2004 Annual Report.
Service of the Complaint was perfected on April 12, 2006. However, Covista failed to file an answer or file its 2004 annual report within the 20-day time period specified in the Complaint. Consequently, on November 15, 2006, the Commission entered a Default Order that sustained the complaint and cancelled Covista's certificate of public convenience. Notice of the Default Order was published on December 2, 2006 at 36 Pa.B. 7377 with a 20-day comment period.
Commission records show that on December 28, 2006, Covista paid the $250 late-filing fee specified in the Formal Complaint. On January 10, Covista filed its 2004 delinquent Annual Report along with its 2005 Annual Report, which was also delinquent but not yet the subject of any Commission enforcement proceeding. On January 17, Covista and filed a letter requesting rescission of the Default Order and reinstatement of its certificate. With its request, Covista filed an additional $250 late-filing fee for the 2005 delinquent Annual Report filing. In its petition, Covista stated that it has taken steps to ensure that it timely complies with future filing deadlines. Because the request for rescission was filed beyond the 20-day comment period, we will treat this letter as a Petition to Reinstate.
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. Comwlth. 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 26 days elapsed between the effective date of the cancellation on December 22, 2006 and Covista's request for reinstatement on January 17, 2006. This short period of time supports reinstatement.
In regard to the second factor, Covista does not have a record of habitually violating the Public Utility Code. Within the last three years, the Commission has instituted only one additional Formal Complaint against Covista. That Complaint was issued at C-20044061, for Covista's' failure to file the paper copy of its 2003 Annual Report. That complaint was dismissed as satisfied when Covista filed the paper copy. Thus, Covista's record also supports reinstatement.
In considering the third and fourth factors, Covista is appropriately apologetic in its petition for the delinquency in filing its 2004 Annual Report. Specifically, Covista states that it has experienced a tremendous amount of change within the last few years. During this time period, Covista has moved its headquarters from New Jersey to Tennessee and suffered from extensive employee turnover. In an effort to ensure timely filings of all financial reports, Covista is currently undergoing a major shift in process improvements which include hiring a third-party tax firm to prepare all future reports in a timely manner. Moreover, Covista has noted its compliance requirements on its in-house financial compliance matrix. As stated earlier, Covista has also filed its 2005 Annual Report with an accompanying $250 late-filing fee. The fact that Covista has now complied with our reporting requirements and has taken steps to ensure future compliance militates toward reinstatement.
The fifth factor requires that all outstanding fines and/or assessments be paid prior to reinstatement. A review of Commission records shows that Covista has no unpaid fines or assessments.
Based upon the foregoing, we will grant Covista's petition for reinstatement. However, we caution Covista that in the future annual reports must be timely filed. We also emphasize that all Commission correspondence must be answered in a timely manner. The Commission hereby puts Covista and the rest of the industry on notice that we will not hesitate to invoke our authority under the Public Utility Code to ensure timely compliance with our regulations and orders including the ordering of such other remedy as the Commission may deem appropriate; Therefore,
It is Ordered That:
1. The Default Order entered November 15, 2006 against Covista, Inc. at this docket is hereby rescinded.
2. The certificate of public convenience held by Covista, Inc. at A-310640 is hereby reinstated.
3. A copy of this order be published in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary
[Pa.B. Doc. No. 07-377. Filed for public inspection March 2, 2007, 9:00 a.m.]
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