NOTICES

Petition of The United Telephone Company of Pennsylvania LLC d/b/a CenturyLink for a Waiver of the Commission's Regulation Governing Toll Presubscription

[44 Pa.B. 7310]
[Saturday, November 15, 2014]

Public Meeting held
October 23, 2014

Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; James H. Cawley; Pamela A. Witmer; Gladys M. Brown

Petition of The United Telephone Company of Pennsylvania LLC d/b/a CenturyLink for a Waiver of the Commission's Regulation Governing Toll Presubscription, 52 Pa. Code Section 64.191(e); P-2014-2439191

Tentative Order

By the Commission:

 The United Telephone Company of Pennsylvania LLC d/b/a CenturyLink (''CenturyLink'') has petitioned for a waiver of various provisions of our IntraLATA Presubscription Implementation Order that resulted from the Petition of the United Telephone Company of Pennsylvania LLC d/b/a CenturyLink for a Waiver of the Commission's Order Dated May 9, 1997, Docket No. I-00940034 (Order entered May 9, 1997) (May 9, 1997 Implementation Order), and for a waiver of our regulation at 52 Pa. Code § 64.191(e). That order and the regulation require local exchange carriers (LECs) to give unbiased and objective interLATA and intraLATA toll presubscription options to customers. The Pennsylvania-specific requirement is a companion to the Federal requirement governing equal access scripting pursuant to section 251(g) of the Telecommunications Act of 1996 (TA-96), 47 U.S.C. § 251(g), which requirement has been eliminated relative to the Bell Operating Companies (BOCs).

 The Petition, filed on August 20, 2014, was served on the Office of Consumer Advocate, the Office of Small Business Advocate, and the Commission's Bureau of Investigation and Enforcement. No responses were received.

 Upon review, we shall tentatively eliminate the requirement that CenturyLink respond to customer inquiries ''with the list of carriers (including [CenturyLink]) subject to a 'rotation' so that each carrier's list position regularly changes.'' We shall also tentatively eliminate the rule that unless the customer affirmatively requests the information, CenturyLink is not allowed to inform a customer applying for new service of its specific packages, including calling bundles.

Background

 Currently, all LECs throughout Pennsylvania are required by our regulation at 52 Pa. Code § 64.191(e) to provide to new service applicants competitively neutral explanations of a customer's access to competing interLATA and intraLATA long-distance carriers. This regulation provides in relevant part as follows:

(e) The explanations of toll presubscriptions, whether interLATA, intraLATA, or both, shall be objective and unbiased.

52 Pa. Code § 64.191(e).

 Section 64.191(e) by itself does not impose the rotating script requirement that CenturyLink is seeking to have waived. The final rulemaking order that promulgated section 64.191(e) discussed the regulations as follows:

Additionally, AT&T [then an IXC] recommends that the Commission insert the words ''objective and unbiased'' into the language which requires LEC representatives to explain the choices for toll service. AT&T states:

 This explanation should be for informational purposes and should not be an opportunity to give the customer a ''sales pitch'' for the LEC or one of its affiliates. Furthermore, the language of the regulation should be clarified to include intraLATA toll services once presubscription is available.

*  *  *

[Disposition] Another important decision for an applicant is choosing a Primary Interchange Carrier (PIC). Further, as noted by AT&T, the recent Federal telecommunication legislation will eventually allow an applicant to decide whether the provider of both intraLATA and interLATA toll service will be the same or different parties. The Commission, therefore, agrees with AT&T that the LEC, acting as the gatekeeper for the toll presubscription process, should provide an explanation of the choices or options for toll services in an ''objective and unbiased'' manner so as to safeguard the rights of consumers. The final form regulation [section 64.191(e)] reflects this general requirement.

Telephone and Residential Telephone Service, Docket L-00950103 (Entered May 23, 1995), 28 Pa.B. 3394 (July 18, 1998).

 The rotating script requirement was established, prior to promulgation of section 64.191(e), by the competitive neutrality requirements found in our May 9, 1997 Implementation Order. The May 9, 1997 Implementation Order, at pages 6-7, provides that:

1. Customer service representatives (CSRs) shall be prohibited from commenting on a customer's choice of intraLATA PIC (Primary Interexchange Carrier) when the customer contacts the CSR to change the PIC.

[. . . and . . .]

3. CSRs should respond to customer inquiries about intraLATA carriers in a competitively neutral way, with the list of carriers (including the CSR's own LEC) subject to ''rotation'' so that each carrier's list position regularly changes.

 In effect, these two requirements (i.e., section 64.191(e) and the May 9, 1997 Implementation Order) prevent LECs from using their position as a customer's primary carrier to place competing stand-alone interLATA and intraLATA long-distance carriers at a competitive disadvantage. These provisions were put into place shortly after the passage to TA-96 in order to foster competition for toll services by preventing primary carriers from giving ''sales pitches'' for their own services.¹

 Section 251(g) of TA-96 placed similar equal access requirements on LECs.² The federal Equal Access (EA) Scripting Requirement required ILECs ''to inform customers calling to obtain new local exchange service that they may obtain stand-alone long distance service from other carriers, and to read the customers a list of carriers offering long distance service in their area upon request.''³ By order released August 31, 2007, the Federal Communications Commission (FCC) concluded that the application of the EA Scripting Requirement was ''no longer justified,'' as it related to the BOCs, due to the existing competition between service bundles and customers' myriad options for making low-cost or free long distance telephone calls that were not available at the time the rule was enacted.⁴ The FCC also found that the requirement ''may, in fact, confuse or mislead consumers and cause them not to investigate alternative means of making long distance calls.''⁵ For those reasons, the FCC granted forbearance from the EA Scripting Requirement for former BOCs and their independent LEC affiliates.⁶

 In addition, in 2013 the FCC extended this forbearance to all independent ILECs, relying on much of the same rationale as it had in its Order in the AT&T Forbearance Petition in 2007. The FCC stated:

We conclude that the EA Scripting Requirement provides de minimum, if any, benefits. At the same time, it imposes costs on independent ILECs. Their customer service representatives must spend time advising customers that they can obtain stand-alone long distance service and be prepared to read lists of carriers that can provide such service if customers request this. Given the lack of benefits generated by this requirement, we also conclude that its removal would foster competition by removing regulatory requirements and the resulting costs that affect only ILECs subject to the rule and not their competitors. We therefore forbear from the requirement for all ILECs that have not previously been granted forbearance.⁷

 Further, on November 30, 2004, Act 183 of 2004, 66 Pa.C.S. §§ 3011—3019 (2004 Chapter 30), became effective, replacing 66 Pa.C.S. §§ 3001—3009. The stated policy of Act 183 of 2004 is to reduce ''the regula- tory obligations imposed upon the incumbent local exchange telecommunications companies [i.e., incumbent LECs] . . . to levels more consistent with those imposed upon competing alternative service providers.''⁸ Specifically, when reviewing quality of service standards found in Title 52 of the Pennsylvania Code, the Commission ''shall take into consideration the emergence of new industry participants, technological advancements, service standards and consumer demand.''⁹

 In support of the petition, CenturyLink avers that, due to changes in the long distance market, the equal access scripting requirement is unnecessary. As argued by CenturyLink, consumers increasingly have the choice between various competitive service providers including CLECs, cellular providers, and other intermodal carriers, such as cable and voice over Internet protocol (VoIP) for the provision of local and long distance service. Further, according to CenturyLink, these alternative providers generally offer both services as part of a bundle. CenturyLink, citing the FCC's decision to grant a forbearance from the federal equal access rule to all ILECs, argues that this bundling of services causes the equal access requirements, which focus on stand-alone toll service, to have a negative effect on competition and actually add to customer confusion.

Discussion

 In practice, section 64.191(e) and the May 9, 1997 Implementation Order require CenturyLink to ask customers for their preferred intraLATA toll providers and to read a list of providers if the customer does not have a preferred company. CenturyLink also is not allowed to inform the customer of any of its specific packages, including calling bundles,¹⁰ unless the customer affirmatively requests the information. These are the so-called equal access ''scripting requirements for toll presubscription.'' With its Petition, CenturyLink seeks relief from having to follow the presently required message (or script) used by CenturyLink CSRs when a customer calls the Company to apply for new service, including stand-alone local service and bundled service packages. CenturyLink also wants to be able to market its own long-distance services and all-distance service bundles when a customer calls the Company to apply for new service, just as their competitors do.

 We have considered the implications of the FCC's decisions in 2007 and 2013 to grant forbearance from the EA Scripting Requirements pursuant to section 251(g) of TA—96. The FCC's abrogation of the federal EA Scripting Requirement, similar to this Commission's requirements but relating to all former BOCs and their independent local exchange carrier affiliates, was based on the premise that application of the rule was ''no longer justified'' due to the existing competition between service bundles and customers' myriad options for making low-cost or free long distance telephone calls that were not available when the rule was enacted. We also note that, although served with CenturyLink's petitions, the statutory advocates did not intervene in this proceeding.

 In our opinion, in an increasingly competitive telecommunications market, one in which a significant percentage of customers makes voice calls—and particularly long distance calls—using the services of wireless providers and/or VoIP, it is important that this Commission not unnecessarily distort the marketplace by perpetuating asymmetrical regulations. Wireless carriers and cable companies offering voice services today do not have the scripting obligation from which CenturyLink seeks relief. Given these competitive realities, we can understand why the FCC and numerous state commissions have concluded that the ''equal access'' script is no longer necessary or appropriate.

 Accordingly, under these facts, including today's competitive market realities, we shall tentatively eliminate the requirement that CenturyLink respond to customer inquiries ''with the list of carriers (including [CenturyLink]) subject to a 'rotation' so that each carrier's list position regularly changes.'' We shall also tentatively eliminate the rule that unless the customer affirmatively requests the information, CenturyLink is not allowed to inform a customer applying for new service of its specific packages, including calling bundles. We note that eliminating asymmetrical regulation is consistent with the stated policy objective of Chapter 30 to reduce incumbent local exchange carrier regulatory obligations to levels more consistent with those imposed upon competing alternative service providers.¹¹ We further note that the Commission previously granted similar relief to the Verizon companies, based on these same competitive market realities of increasing competition.¹²

Conclusion

 Under these facts, the Commission finds, pursuant to its authority under 66 Pa.C.S. § 3019(b)(2), that CenturyLink's request to waive 52 Pa. Code § 64.191(e) and to alter the equal access scripting requirements, found in the May 9, 1997 Implementation Order and established in accordance with 52 Pa. Code § 64.191(e), is reasonable and unopposed. The Commission tentatively approves the request, as being in the public interest. Parties have ten (10) days within which to file comments following the publication of this Tentative Order in the Pennsylvania Bulletin. Absent the submission of any comments, this Tentative Order will become final by operation of law; Therefore,

It Is Ordered That:

 1. The petition filed by CenturyLink on August 20, 2014, for a waiver of the requirements in 52 Pa. Code § 64.191(e) is hereby tentatively granted for a period of three (3) years.

 2. The petition filed by CenturyLink on August 20, 2014, for alteration of the equal access scripting requirements in the IntraLATA Presubscription Implementation Order, Docket No. I-00940034 (May 9, 1997), is hereby tentatively granted.

 3. A copy of this Opinion and Order be served on the Office of Consumer Advocate, the Office of Small Business Advocate, and the Commission's Bureau of Investigation and Enforcement, and shall be timely published in the Pennsylvania Bulletin.

 4. Interested parties may file comments to this Tentative Order with the Secretary's Bureau at the following address within ten (10) days after the date of publication of the Tentative Order in the Pennsylvania Bulletin:

Secretary
Pennsylvania Public Utility Commission
400 North Street
Harrisburg, Pennsylvania 17120

 The contact person for this Tentative Order is Jennedy Johnson, Esq., 717-787-5000, jennejohns@pa.gov. An electronic version of any comments filed must also be provided via e-mail to Ms. Johnson at the time of filing. The mailbox rule does not apply.

 5. This Tentative Order shall become final by operation of law if no comments are received within ten (10) days after publication of this Tentative Order in the Pennsylvania Bulletin. The mailbox rule does not apply.

ROSEMARY CHIAVETTA, 
Secretary

[Pa.B. Doc. No. 14-2408. Filed for public inspection November 14, 2014, 9:00 a.m.]

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¹  See 25 Pa.B. 3394.

²  47 U.S.C. § 251(g).

³  Petition of AT&T for Forbearance under 47 U.S.C. Section 160(c) with Regard to Certain Dominant Carrier Regulations for In-Region, Interexchange Services, WC Docket No. 06-120, Report and Order rel. August 30, 2007 at ¶ 117 (AT&T Forbearance Petition).

⁴  AT&T Forbearance Petition at ¶¶ 118-122.

⁵  AT&T Forbearance Petition at ¶ 122.

⁶  The forbearance granted by the FCC in August 2007 did not extend to non-BOC ILECs. ¶ 126.

⁷  Petition of US Telecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy Telecommunications Regulations, et al., FCC WC Docket 12-61 et al., Memorandum Opinion and Order and Report Order and Further Notice of Proposed Rulemaking and Second Further Notice of Proposed Rulemaking, issued May 17, 2013 at ¶ 17 (US Telecom Forbearance Petition).

⁸  66 Pa.C.S. § 3011.

⁹  66 Pa.C.S. § 3019(b)(2).

¹⁰  By ''bundle,'' we mean the grouping of local and toll services together into a single package at one price point.

¹¹  See 66 Pa.C.S. § 3011(13).

¹²  Joint Petition of Verizon Pennsylvania Inc. and Verizon North Inc. for a Waiver of the Commission's Order Dated May 9, 1997, et al., Docket Nos. I-00940034 and P-00072348 (Tentative Order entered September 24, 2008, that per Secretarial Letter dated January 22, 2009 became Final October 6, 2008).

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