PROPOSED RULEMAKING
[ 52 PA. CODE CH. 53 ]
[ L-2014-2411278 ]
Paper Billing Fees
[45 Pa.B. 1264]
[Saturday, March 14, 2015]The Pennsylvania Public Utility Commission (Commission), on December 4, 2014, adopted a proposed rulemaking order amending existing regulations to prohibit tariff provisions that charge customers a fee to receive a paper bill.
Executive Summary
Section 1509 of the Public Utility Code imposes the obligation on all energy, water, wastewater and telecommunications utilities, including all varieties of telecommunications utilities certificated by the Commission, to send customers a monthly bill and it establishes the right of the customer to receive that bill. In addition, recovering costs regarding monthly bills allows for an excessive recovery of these costs and failing to provide customers with an itemized monthly bill free of charge constitutes unreasonable and inadequate service, actionable under Section 1501 of the Public Utility Code. 66 Pa.C.S. §§ 1501 and 1509. Pursuant to that authority and Section 501 of the Public Utility Code, the Pennsylvania Public Utility Commission (Commission) is amending its existing regulations in Chapter 53 (Tariffs for Noncommon Carriers) of the Pennsylvania Code to add Section 53.85 as a new section.
In an Opinion and Order entered June 7, 2010, the Commission initiated an investigation into the practice of charging a paper billing invoice fee (PBIF). On March 20, 2014, the Commission concluded the Investigation issued and an Order finding that imposing a separate line item charge to recover the costs for the provision of monthly paper bills is not consistent with the Public Utility Code, Commission regulations, long standing precedent, and well-established practices of Pennsylvania public utilities.
Public Meeting held
December 4, 2014Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; James H. Cawley; Pamela A. Witmer; Gladys M. Brown
Amendment to 52 Pa. Code Chapter 53; Paper Billing Fees; Doc. No. L-2014-2411278
Proposed Rulemaking Order By the Commission:
In accordance with Section 501 of the Public Utility Code, 66 Pa.C.S. § 501, the Commission formally commences its rulemaking process to amend its existing regulations in Chapter 53 (Tariffs for Noncommon Carriers) of the Pennsylvania Code. Specifically, the rulemaking proposes to add Section 53.85 as a new section and is in Annex A.
This matter came before the Commission when Cordia Communications Corporation (Cordia) filed, on October 1, 2008, a Petition for Designation as an Eligible Telecommunications Carrier (ETC) for applicable federal universal service funding purposes (Petition). The Office of Consumer Advocate (OCA) filed formal comments to Cordia's Petition, wherein the OCA disclosed that Cordia is charging a fee of $1.25 to customers who elect to receive a paper bill.
In an Opinion and Order entered June 7, 2010, the Commission denied Cordia's petition without prejudice, directed the draft of a policy statement on ETC Standards, and initiated an investigation into the practice of paper invoice charges and whether tariff provisions of certain facility-based and non-facility-based telecommunication carriers for paper billing invoice fees (PBIFs) are inconsistent with the Public Utility Code, Commission billing regulations, and other relevant authority. Petition of Cordia Communication Corp., for Designation as an Eligible Telecommunications Carrier under Section 214(e) of the Telecommunications Act of 1996 and 47 C.F.R. §§ 54.101, 201—207, P-2008-2014444 (June 7, 2010). Pending the results of the investigation, the Commission did not rule on Cordia's tariff in the June 7, 2010 Opinion and Order.
On May 14, 2010, Cavalier Telephone Mid-Atlantic, LLC (Cavalier) filed with the Commission revised local tariff pages for its Telephone Tariff Pa. P.U.C. No. 1, seeking to introduce a PBIF of $3.95 for business customers who wish to receive paper invoices rather than electronic invoices (Tariff Supplement 35). On May 26, 2010, Cavalier filed revised intrastate interexchange tariff pages for its Tariff Pa. P.U.C. No. 2, seeking to introduce a PBIF for long-distance business customers who wish to receive paper invoices rather than electronic invoices (Tariff Supplement 3). FUS staff requested that Cavalier withdraw both proposed tariff supplements because of its belief that Cavalier was in violation of the law and regulations.
Cavalier filed a Petition for Review and Answer to a Material Question (Petition for Review) on June 11, 2010. The question presented was: should Cavalier's proposed Tariff Supplements introducing a Paper Bill Invoice Fee for business customers be permitted to become effective on July 1, 2010. On June 21, 2010, Cavalier filed a Brief in Support of its Petition for Review, in which it reiterated and expanded upon the arguments made in its Petition for Review and Answer to a Material Question. In its Brief, Cavalier also noted that its proposed tariff supplements would apply only to business customers, as distinguished from residential customers in the Cordia's ETC Petition.
In an Order entered July 29, 2010, the Commission, inter alia, permitted Cavalier's proposed tariff supplements to go into effect, subject to the results of a final Commission Order in Investigation of Practice of Paper Invoice Charges (Investigation) at Docket No. I-2010-2181481. Pennsylvania Public Utility Commission v. Cavalier Telephone Mid-Atlantic, L.L.C., R-2010-2176403 and R-2010-2179527 (July 29, 2010). The Commission also ordered that the Investigation include additional issues referenced in the body of the Order. Finally, Cavalier's Petition for Review was granted in part, and denied in part, consistent with this Order, without prejudice to the right of Cavalier to raise the PBIF issues in the Investigation at Docket No. I-2010-2181481. Id. at pages 6—7.
The Commission followed this with a Notice of Investigation secretarial letter, published August 14, 2010, in the Pennsylvania Bulletin (40 Pa.B. 4728). The Notice identified the PBIF issues and sought comment from interested parties. On September 8, 2010, as part of this Investigation, the Commission issued a secretarial letter that enclosed a questionnaire seeking information on paper billing practices of all telecommunication carriers.
The Notice sought comments about billing practices in general. Comments were sought from interested parties on the issues of ''tariff parity,'' the legality of the application of paper billing fees for customers receiving bundled services, whether the paper billing fee is a price deregulated rate, and the effect of the ETA on the interpretation of Section 1509. Comments were received from Verizon Companies (Verizon),1 AT&T,2 Cavalier, the OCA, the Pennsylvania Utility Law Project (PULP), and the Pennsylvania Telephone Association (PTA). OCA, Cavalier, Verizon, and AT&T also filed reply comments.
The Commission concluded, in the March 20, 2014 Order, that imposing a separate line item charge to recover the costs for the provision of monthly paper bills is not consistent with the Public Utility Code, Commission regulations, long standing precedent, and well-established practices of Pennsylvania public utilities. The Commission also concluded that recovering costs regarding monthly bills allows for an excessive recovery of these costs and failing to provide customers with an itemized monthly bill free of charge constitutes unreasonable and inadequate service, actionable under Section 1501. 66 Pa.C.S. § 1501.
On April 4, 2014, Verizon filed a Petition for Reconsideration of the Commission's March 20, 2014 Order. See 52 Pa. Code § 5.572. Verizon argued that the Order contravenes the plain language of the Public Utility Code and exceeds the Commission's legal authority. On July 24, 2014, the Commission denied Verizon's Petition for Reconsideration and found that the regulation of paperless billing is clearly within the bounds of the law and the Commission's legal authority.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 27, 2015, the Commission submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Consumer Affairs Committee and the Senate Consumer Protection and Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commission, the General Assembly and the Governor of comments, recommendations or objections raised.
Conclusion
The Commission's March 20, 2014 Order directed Law Bureau to prepare a narrowly focused Notice of Proposed Rulemaking addressing the paper billing fee issue. The Commission, therefore, formally commences its rulemaking process to amend its existing regulations by adding 52 Pa. Code § 53.85 to prohibit tariff provisions that charge customers a fee to receive a bill. The proposed regulation identified in Annex A is applicable to the entire telecommunications industry and implements the Commission's March 20, 2014 Order to prohibit the charging of a fee for paper bills. In addition, the language and location of the proposed regulation in Subpart C. Fixed Service Utilities shall make the prohibition applicable to all noncommon carrier public utility industries.
Accordingly, pursuant to its authority under sections 501 and 1501 of the Public Utility Code (66 Pa.C.S. §§ 501 and 1501) and sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2 and 7.5; section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732.204(b)); section 745.5 of the Regulatory Review Act (71 P. S. § 745.5); and section 612 of The Administrative Code of 1929 (71 P. S. § 232) and the regulations promulgated thereunder at 4 Pa. Code §§ 7.231—7.234, we are considering adopting the proposed regulations as set forth in Annex A; Therefore
It Is Ordered That:
1. A proposed rulemaking be opened to consider the regulations set forth in Annex A.
2. The Secretary shall submit this proposed rulemaking Order and Annex A to the Office of Attorney General for review as to form and legality and to the Governor's Budget Office for review of fiscal impact.
3. That the Secretary shall submit this proposed rulemaking Order and Annex A for review and comments to the Independent Regulatory Review Commission and the Legislative Standing Committees.
4. The Secretary shall submit this proposed rulemaking Order and Annex A and deposit them with the Legislative Reference Bureau to be published in the Pennsylvania Bulletin.
5. An original of any written comments referencing the docket number of the proposed regulations be submitted within 30 days of publication in the Pennsylvania Bulletin to the Pennsylvania Public Utility Commission, Attn: Secretary, P. O. Box 3265, Harrisburg, PA 17105-3265.
6. A copy of this Proposed Rulemaking Order and Annex A shall be served on the Bureau of Investigation and Enforcement, the Office of Consumer Advocate, and The Office of Small Business Advocate.
7. The contact person for this proposed rulemaking is Terrence J. Buda, Assistant Counsel, Law Bureau, (717) 787-5000. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Sherri DelBiondo, Regulatory Coordinator, Law Bureau, (717) 772-4597.
ROSEMARY CHIAVETTA,
SecretaryFiscal Note: 57-308. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart C. FIXED SERVICE UTILITIES
CHAPTER 53. TARIFFS FOR NONCOMMON CARRIERS
PAYMENTS, DEPOSITS AND CHARGES § 53.85. Paper billing fees.
A public utility may not impose a supplemental fee, charge or other rate for furnishing a paper bill or invoice for the services provided by the public utility.
[Pa.B. Doc. No. 15-458. Filed for public inspection March 13, 2015, 9:00 a.m.] _______
1 Verizon Companies' filed on behalf of Verizon Pennsylvania, Inc.; Verizon North Retain Co.; Bell Atlantic Communications, Inc. d/b/a Verizon Long Distance; MCImetro Access Transmission Service, LLC d/b/a Verizon Access Transmission Services, and MCI Communications Services, Inc.
2 AT&T filed on behalf of its three Pennsylvania-certificated entities-AT&T Communications of Pennsylvania, LLC, TCG Pittsburgh, and TGG New Jersey Inc. (collectively ''AT&T'').
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