NOTICES
Order
[33 Pa.B. 1907] Public Meeting held
March 6, 2003Commissioners Present: Glen R. Thomas, Chairperson; Robert K. Bloom, Vice Chairperson; Aaron Wilson, Jr.; Terrance J. Fitzpatrick; Kim Pizzingrilli
Law Bureau Prosecutory Doc. No. Staff v. EZ Talk Communications, LLC (2001.0352); C-20027739
Petition to Reinstate EZ Talk Communications, LLC; A-310691
Order By the Commission:
On May 23, 2002, Law Bureau Prosecutory Staff filed a Formal Complaint against EZ Talk Communications, LLC (EZ Talk), an IXC reseller certificated at A-310691. In the Complaint, Prosecutory Staff alleged that the Commission sent by certified mail prior written notices to EZ Talk that its 2000 Annual Report was due. The complaint charged that EZ Talk violated 66 Pa.C.S. § 504 by failing to file its 2000 Annual Report. The Complaint requested that the Commission issue an order canceling EZ Talk's certificate of public convenience for failure to file its 2000 Annual Report.
According to the United States Postal Service return receipt, the Complaint was unclaimed. As a result of EZ Talk's failure to respond to the complaint, the Commission entered a Default Order on October 29, 2002, that sustained the complaint and cancelled EZ Talk's certificate of public convenience. The notice of the Default Order was published at 32 Pa.B. 5597 (November 9, 2002).
Subsequent to the issuance of the Default Order and cancellation of EZ Talk's certificate effective December 9, 2002, EZ Talk filed both its 2000 and 2001 Annual Reports, on December 12, 2002. After receiving these annual reports, Commission staff notified EZ Talk through a telephone conversation of the option to petition for reinstatement.
On January 10, 2003, EZ Talk filed a Letter-Petition to Reinstate its certificate of public convenience. In its Petition, EZ Talk states that its 2000 Annual Report was originally filed on March 22, 2002. Furthermore, EZ Talk avers that it was unaware of the delinquency or of the default action canceling its certificate until late November of last year. EZ Talk states that upon learning of our action, it immediately refiled its 2000 Annual Report by both mailing and e-mailing a copy of its report to the Fixed Utilities Services Bureau, but avers that the report was then misplaced. EZ Talk avers that upon further contact by Commission staff, it then refiled on December 12, 2002, its 2000 Annual Report along with its 2001 Annual Report.
EZ Talk offers no explanation as to why it failed to respond to our prosecution for noncompliance nor as to why the Commission has no record of the alleged March 22, 2002, filing or November refiling of its 2000 Annual Report, but argues that because it has filed its outstanding 2000 Annual Report as well as its 2001 Annual Report, its certificate should be reinstated.
It is well settled that decisions such as whether to grant a petition for reinstatement are left to the Commission's discretion and will be reversed on appeal only if that discretion is abused. 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 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 andthe 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 canceled, 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 approximately 5 weeks elapsed between the effective date of the cancellation on December 9, 2002, and EZ Talk's request for reinstatement on January 10, 2003.
In regard to the second factor, EZ Talk does not have a record of habitually violating the Public Utility Code. Since the issuance of its certificate in 1998, EZ Talk has had one additional complaint issued against it for failure to file its initial tariff. That complaint was resolved by EZ Talk's compliance.
In considering the third and fourth factors, a review of Commission records failed to either confirm or refute EZ Talk's averment that it had timely filed and then refiled its 2000 Annual Report. However, as a result of EZ Talk's past record of compliance with Commission rules and regulations, we will at this time, give EZ Talk the benefit of the doubt with regard to its excuse. As noted earlier, EZ Talk has already filed its 2001 Annual Report and reorganized its compliance officers' duties so as to ensure that its regulatory compliance remains in good standing. The fact that EZ Talk 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 EZ Talk currently has no unpaid fines or assessments.
Based upon the foregoing, we grant EZ Talk's petition for reinstatement. However, we caution EZ Talk that in the future annual reports must be timely filed and all Commission correspondence must be answered in a timely manner. EZ Talk is hereby put on notice that any future failure to submit an Annual Report may subject EZ Talk to penalties under section 3301 of the Public Utility Code, 66 Pa.C.S. § 3301, or it may otherwise be required to file a new application along with the applicable $350 fee. Therefore,
It Is Ordered That:
1. The Letter-Petition to Reinstate filed by EZ Talk Communications, LLC at C-20027739 on January 10, 2003, is hereby granted.
2. The certificate of public convenience held by EZ Talk Communications, LLC at A-310691 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. 03-690. Filed for public inspection April 11, 2003, 9:00 a.m.]
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