NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania
[46 Pa.B. 1293]
[Saturday, March 5, 2016]Public Meeting held
January 28, 2016Commissioners Present: Gladys M. Brown, Chairperson; Andrew G. Place, Vice Chairperson; Pamela A. Witmer; John F. Coleman, Jr.; Robert F. Powelson
Review of Issues Relating to Commission
Certification of Distributed Antennae
System Providers in Pennsylvania;
Doc. No. M-2016-2517831
Order By the Commission:
In reviewing the applications and relevant certification requests for competitive telecommunications carriers that seek to offer their services in Pennsylvania, certain questions have arisen, about the operations of distributed antennae systems (DAS), the relevant regulatory oversight of the Commission under applicable Pennsylvania and federal law, and other attendant issues. Accordingly, the Commission is initiating a formal proceeding in order to examine the relevant issues in accordance with this Order and Appendix A.
Background
The Commission regulates the entry of telecommunications carriers offering public utility service in Pennsylvania through the adjudication of applications for a certificate of public convenience (CPC). These applications are filed pursuant to Section 1101 of the Public Utility Code (Code).1 In fact, a telecommunications carrier that is a public utility as defined by Pennsylvania law cannot operate lawfully in Pennsylvania without a CPC from the Commission.
Additionally, the Commission has implemented and enforces the mandates of the federal Telecommunications Act of 1996 (TA-96). The relevant certification process was established so as to not present any barrier to entry and to not ''prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.'' 47 U.S.C. § 253(a) (emphasis added). This process has been refined through subse-quent case adjudications, court appeals, and other proceedings including various mergers.2
To date, the Commission has issued CPCs to several telecommunications carriers that provide DAS service in Pennsylvania. DAS carriers gather, transport, and deliver wireless traffic3 through a distributed antenna service network in combination with other network facilities and equipment. DAS carriers often provide wholesale radio frequency and landline transport and backhaul services to commercial mobile radio service (CMRS)4 providers that offer wireless services to retail end-users. Essentially, DAS carriers collect traffic from the CMRS provider's end-user customers and deliver it to the CMRS provider's network. DAS providers in Pennsylvania typically have applied for and been certificated as Competitive Access Providers (CAPs).5
More recently, the Commission approved the application of SQF, LLC (SQF) to operate as a CAP in Pennsylvania.6 SQF is a DAS provider and was granted authority to provide both interstate and intrastate wholesale services in Pennsylvania.
In supporting the Commission's decision to certificate SQF in Pennsylvania, the written statement of Commissioner John F. Coleman, Jr. noted that SQF's application was unopposed and noted that by granting the application, the Commission was treating SQF like the other DAS providers that have come before the Commission requesting a CPC. Commissioner Coleman's statement in SQF also noted that there is a legitimate question as to whether the Commission can certificate DAS providers. Specifically, Commissioner Coleman questioned whether a DAS provider is a ''public utility'' as defined by Pennsylvania law that can be certificated or whether a DAS provider is expressly excluded from the definition of ''public utility'' and, thus, cannot be certificated under state law. This statement also questioned whether the Commission is required under federal law to certificate a DAS provider, including whether denying a CPC to an otherwise fit DAS provider prohibits or has the effect of prohibiting DAS service in Pennsylvania in violation of federal law.7
Furthermore, the DAS applications for authority that the Commission previously granted were all uncontested. This means that the legal and factual issues surrounding whether to certificate DAS providers have yet to be fully and openly vetted in an on-the-record proceeding before the Commission.
Discussion
For the reasons expressed above, the Commission is initiating a formal proceeding to examine the issues surrounding Commission certification of DAS providers in Pennsylvania. The issues to be examined include, among other things: (1) whether DAS providers are public utilities under Pennsylvania law that can be certificated;8 (2) whether the Commission should or is required to certificate these carriers in furtherance of federal law; (3) whether DAS service is an interstate service, intrastate service, or both; and (4) whether a CPC is needed to confer property rights to DAS providers to site the facilities/equipment used to provide DAS service, including access to rights-of-way and eminent domain. Our examination also includes other aspects of our regulatory oversight for DAS providers, such as tariffs and complaints, and any other considerations that an interested party believes should be examined.
Therefore, we are opening a proceeding and issuing the information requests in Appendix A for comments and reply comments. The Law Bureau, with assistance from the Bureau of Technical Utility Services, shall review the comments and reply comments, and all the information provided therein, and shall present an order to the Commission for consideration. The order shall summarize the information and present any recommendations for Commission action, subject to and in compliance with due process.9 This process helps ensure that no individual DAS provider is singled out and that all DAS providers are treated in a competitively-neutral manner regarding their certification status. Lastly, commenters are welcome to provide any additional input on issues not otherwise specifically presented in Appendix A that a commenter believes is relevant to the Commission's examination here, Therefore,
It Is Ordered That:
1. A formal proceeding to examine the issues surrounding certification of DAS providers in Pennsylvania is initiated.
2. The Order, including Appendix A to this Motion, shall be published in the Pennsylvania Bulletin.
3. Comments shall be due within forty-five (45) days following publication in the Pennsylvania Bulletin, with reply comments due twenty-five (25) days after comments are due.
4. The Law Bureau, with assistance from the Bureau of Technical Utility Services, shall review the comments, reply comments and all the information provided therein, and shall present an order to the Commission for consideration.
ROSEMARY CHIAVETTA,
Secretary
APPENDIX A Interested parties are asked to respond to the following questions. Comments and replies should be written in plain English. Particularly with technical issues, explanations should be sufficiently detailed to adequately explain the relevant concepts but should be written in a manner that allows individuals with nontechnical backgrounds to comprehend. Comments and replies should also include proper citations to the relevant legal authority, where appropriate. Commenters should reference their responses so as to correspond with the specific questions posed. However, a party is free to address any additional matters it believes are relevant to the Commission's examination here.
1. What is Distributed Antenna System (DAS) service?
a. Explain what DAS service is, including the following: (1) the network components used to provide DAS service; (ii) the demarcation point between a DAS provider's network and the provider's network that it serves, as determined in legal agreements or otherwise; and (iii) how traffic is collected, transported, and delivered over a DAS network, including any protocol conversions that occur along the transmission path of the traffic.
2. Whether a DAS provider is a ''public utility'' as defined by Pennsylvania law that can be certificated by the Commission.
a. Does a DAS provider meet the definition of ''public utility'' under Section 102(1)(vi) of the Public Utility Code (Code)10 or is a DAS provider expressly excluded from the definition of ''public utility'' under Section 102(2)(iv) of the Code?
b. Is granting public utility status to DAS providers consistent with Commission precedent, including Commission certification of carriers that provide wholesale intrastate telecommunications service in Pennsylvania to retail Internet Service Providers11 and retail Voice over Internet Protocol Providers?12
3. Whether the operations of a DAS provider can be certificated in Pennsylvania.
a. Is DAS service in Pennsylvania interstate service, intrastate service or both?
b. What is the legal and/or factual basis, if any, for the Commission to certificate a DAS provider in Pennsylvania that is engaged in the provision of interstate services only?
c. In reference to 3.b., please address the statutory definition of a ''public utility'' under Section 102(1) of the Code (''Any person or corporation now or hereafter owning or operating in this Commonwealth equipment or facilities for: . .'') in conjunction with Sections 102(1)(vi), 102(2)(iv), and 3012 (''[t]elecommunications service'') of the Code and whether these sources provide a basis for Commission certification.
d. Is the Commission preempted from certificating a DAS provider engaged in the provision of interstate service only under Section 104 of the Code and applicable federal law, including Section 152(a) of the Communications Act of 193413 and related case law?
4. Whether the Commission is required by federal law to certificate a DAS provider seeking a Certificate of Public Convenience (CPC) in Pennsylvania.
a. Does denying a CPC to a DAS provider prohibit or have the effect of prohibiting DAS service in Pennsylvania in violation of Section 253(a) of the Telecommunications Act of 1996 (TA-96)?
b. Does denying a CPC to a DAS provider violate Section 253(b) of TA-96, which preserves state authority to impose requirements, on a competitively-neutral basis, related to intrastate telecommunications services?
c. Does denying a CPC to a DAS provider violate any other federal statutory provision, any decision of the Federal Communications Commission, and/or any federal court decision?
5. Separation of DAS provider operations.
a. If the antenna equipment of a DAS provider used to collect wireless traffic is owned and/or operated by a separate legal entity (e.g., a subsidiary or affiliate) than the owner and/or operator of the wireline facilities/equipment used to perform the transport function, how, if at all, would this impact whether the owner and operator of the wireline transport function is a ''public utility'' under Pennsylvania law? Would such an arrangement facilitate the Commission's certification process for such providers?
b. What are the potential advantages and disadvantages with such an approach?
6. Whether public utility status is needed for a DAS provider to site its facilities/equipment used to provide service in Pennsylvania.
a. Explain how, if at all, the following rights under federal and/or state law are impacted if a DAS provider is not a public utility under Pennsylvania law: (i) the right of a DAS provider to access public rights-of-way to install its own poles/structures in Pennsylvania, to attach its own facilities/equipment to poles/structures owned by other entities in Pennsylvania, or to access their conduits; (ii) the right of a DAS provider to attach its own facilities/equipment to poles/structures in Pennsylvania owned by other, non-governmental entities, including public utilities, and/or access their conduits; and (iii) the right of a DAS provider to attach facilities/equipment to state or local government-owned poles/structures in Pennsylvania.
b. When DAS providers attach facilities/equipment to poles/structures or access conduits owned by non-governmental entities in Pennsylvania, including public utilities, is it the practice of the pole/structure owners to require the DAS provider to obtain a CPC from the Commission prior to allowing the attachment? If so, what is the legal basis for this practice?
c. Explain what impact, if any, conferring public utility status to DAS providers has on the property rights of state and/or local governments and/or private property owners in Pennsylvania.
7. What is the business value of a CPC to a DAS provider?
a. Is it the practice of a customer or potential customer in Pennsylvania to require a DAS provider to obtain a CPC from the Commission prior to entering into a business relationship with the DAS provider? If so, what is the legal basis for this practice?
b. Even if not required by customers or potential customers, is having a CPC from the Commission something that wholesale or retail customers or potential customers in Pennsylvania prefer prior to entering into a business relationship with a DAS provider? If so, why?
c. How do other state commissions deal with the applications and certifications of DAS providers?
8. DAS providers and wholesale interconnection/collocation.
a. Explain whether DAS providers interconnect with the Public Switched Telephone Network (PSTN).
b. To the extent DAS providers interconnect with the PSTN, explain whether they enter into wholesale interconnection and/or collocation agreements with Incumbent Local Exchange Carriers (ILECs) pursuant to Section 252 of TA-9614 or obtain interconnection through commercial agreements with ILECs that are not approved by the Commission.
c. To the extent DAS providers interconnect with the PSTN, explain whether their wholesale interconnection and/or collocation agreements with ILECs utilize or potentially can utilize unbundled network elements or UNEs.
d. To the extent a DAS provider seeks to enter into a wholesale interconnection and/or collocation agreement with an ILEC that is subject to Commission approval, explain whether the failure to obtain a CPC from the Commission impedes or otherwise affects the commencement of negotiations with the ILEC for wholesale interconnection/collocation.
e. To the extent a DAS provider seeks to enter into a wholesale interconnection and/or collocation agreement with an ILEC that is subject to Commission approval, explain whether failing to obtain a CPC from the Commission impedes or otherwise affects the ability of the provider to timely and effectively obtain wholesale interconnection/collocation and hence, amounts to a barrier to entry under Section 253(a) of TA-96.
9. DAS providers and E911/911 Service.
a. Explain whether DAS providers transport or otherwise handle wireless 911/E911 call and data traffic15 where such traffic eventually needs to timely and reliably reach the appropriate public safety answering point or PSAP.
10. Assuming DAS providers are public utilities under Pennsylvania law, what services and rate elements should be included in a DAS provider's intrastate tariff with the Commission?
11. Assuming DAS providers are public utilities under Pennsylvania law, does the Commission have jurisdiction under Section 1501 of the Code or other applicable law to adjudicate informal and/or formal complaints filed at the Commission against DAS providers, including complaints involving the siting of DAS facilities/equipment?
12. Provide non-proprietary physical network diagram(s) of typical DAS provider network(s). Such diagram(s) should include appropriate legends, explain any technical terminology abbreviations, depict traffic flows, and depict interconnection and/or collocation arrangements with other telecommunications carriers or communications providers.
[Pa.B. Doc. No. 16-393. Filed for public inspection March 4, 2016, 9:00 a.m.] _______
1 66 Pa.C.S. § 1101.
2 See generally In re: Implementation of the Telecommunications Act of 1996, Docket No. M-00960799 (Order entered June 3, 1996), 1996 WL 482990; (Order on Reconsideration entered September 9, 1996), 26 Pa.B. 4588 (1996), 1996 WL 482990 (collectively Implementation Orders); Application of Intrado Communications, Inc. for Approval to Offer, Render, Furnish or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the Public in the Service Territories of Verizon Pennsylvania Inc.; Verizon North Inc.; The United Telephone Company of Pennsylvania d/b/a Embarq Pennsylvania, Docket Nos. A-2008-2027726, A-2008-2027733, A-2008-2027713 (Order entered August 1, 2008) (CLEC supplying alternative 911/E911 connectivity services is entitled to rights and responsibilities of Sec, 251 and 252 of TA-96, 47 U.S.C. §§ 251 and 252); Application of Comcast Business Communications, LLC d/b/a Comcast Long Distance for Expanded Authority to Offer, Render, Furnish or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the public in the Commonwealth of Pennsylvania, et al., Docket Nos. A-2008-2029089 et al. (Order entered September 29, 2008); Final Order Regarding the Commission's Plan to Implement A One-Year Timeframe for Inactive Telecommunications Carriers To Provide Service On An Annual Basis Within the Commonwealth of Pennsylvania, Docket Nos. M-2011-2273119 and M-00960799 (Order entered July 19, 2012); Proposed Modifications to the Application Form for Approval of Authority to Offer, Render, Furnish, or Supply Telecommunications Services to the Public in the Commonwealth of Pennsylvania, Docket No. M-00960799 (Final Order entered May 22, 2014); Application of Momentum Telecom, Inc. for approval of the Abandonment or Discontinuance of Competitive Local Exchange Carrier and Interexchange Carrier Reseller Services to the Public in the Commonwealth of Pennsylvania, Docket No. A-2014-2450071 (Order entered May 20, 2015).
3 The traffic typically consists of commingled transmissions of voice, data, and video traffic, including Internet traffic.
4 CMRS is a defined term in the federal Communications Act but not in the Pennsylvania Public Utility Code (Code). However, we view CMRS as synonymous with ''mobile domestic cellular radio telecommunications service,'' which is the term used in the Code to describe wireless service.
5 In the Commission's application form for a CPC, CAP service is referred to as a ''dedicated point-to-point or multipoint service; voice or data.'' Besides CAPs and Incumbent Local Exchange Carriers, the Commission also certificates Competitive Local Exchange Carriers (both resellers and facilities-based carriers) and interexchange carriers (both resellers and facilities-based carriers).
6 Application of SQF, LLC for approval to offer, render, furnish or supply telecommunication services as a Competitive Access Provider to the Public in the Commonwealth of Pennsylvania, Docket No. A-2015-2490501 (Order entered November 19, 2015) (http://www.puc.state.pa.us/pcdocs/1395676.docx). See also the Statement of Vice Chairman John F. Coleman, Jr. (http://www.puc.state.pa.us//pcdocs/1392246.pdf) and the Dissenting Statement of Commissioner Robert F Powelson (http://www.puc.state.pa.us//pcdocs/1392235.pdf).
7 See 47 U.S.C. § 253(a).
8 The Commission has held that the provision of wholesale services can fall within the definition of public utility services, which is evident with the existence of numerous certificated utilities currently offering wholesale services in Pennsylvania. See generally Application of Core Communications, Inc. for Authority to amend its existing Certificate of Public Convenience and Necessity and to expand Core's Pennsylvania operations to include the provision of competitive residential and business local exchange telecommunications services throughout the Commonwealth of Pennsylvania, Docket Nos. A-310922F0002AmA & AmB (Order entered December 4, 2006), aff'd, Rural Telephone Co. Coalition v. Pa. PUC, 941 A.2d 751 (Pa. Cmwlth. 2008). Thus, a retail service component is not a requirement to be a public utility in Pennsylvania.
9 We note that any potential fines, penalties, or other remedial action against DAS providers that currently are certificated in Pennsylvania is not within the scope of this proceeding.
10 66 Pa.C.S §§ 101, et seq.
11 See Application of Core Communications, Inc. for Authority to amend its existing Certificate of Public Convenience and Necessity and to expand Core's Pennsylvania operations to include the provision of competitive residential and business local exchange telecommunications services throughout the Commonwealth of Pennsylvania, Docket Nos. A-310922F0002AmA & AmB (Order entered December 4, 2006), aff'd, Rural Telephone Co. Coalition v. Pa. PUC, 941 A.2d 751 (Pa. Cmwlth. 2008).
12 See Application of Sprint Communications Company, L.P. for Approval of the Right to Offer, Render, Furnish or Supply Telecommunications services as a Competitive Local Exchange Carrier to the Public in the Service Territories of Alltel Pennsylvania, Inc., Commonwealth Telephone Company and Palmerton Telephone Company, Docket Nos, A-310183F0002AMA-AMC (Order entered December 1, 2006).
13 47 U.S.C. § 152(a).
14 47 U.S.C. §§ 201, et seq.
15 Potentially handled by next generation 911 (NG911) systems and network configurations.
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