NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Monitoring and Enforcement of Network Modernization Plans
[35 Pa.B. 6291] Public Meeting held
October 27, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson, statement concurring in part and dissenting in part follows; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick, dissenting statement follows
Monitoring and Enforcement of Network Modernization Plans; M-00051872
Verizon Pennsylvania Inc. Petition and Plan for Alternative Form of Regulation under Chapter 30; 2000 Biennial Update to Network Modernization Plan (Amendment to NMP); P-00930715F0002
Verizon Pennsylvania Inc. Petition and Plan for Alternative Form of Regulation Under Chapter 30; 2000 Biennial Update to Network Modernization Plan (Petition For Reconsideration of May 15, 2002 Order); P-00930715
Re: Structural Separation of Bell Atlantic-Pennsylvania, Inc. Retail and Wholesale Operations; M-00001353
Final Order By the Commission:
This docket is intended to develop appropriate monitoring and enforcement procedures in incumbent local exchange carriers' (ILECs) network modernization plans (NMPs) consistent with the provisions of the new Chapter 30, commonly known as Act 183. 66 Pa.C.S. §§ 3011--3019.
A. Background and Procedural History Prior to August 31, 2005 Tentative Order at this Docket
On September 17, 2003, the Commission entered an Order (September Order) in the above ''P'' dockets concerning Verizon Pennsylvania Inc.'s (Verizon PA) Petition and Plan for Alternative Form of Regulation under Chapter 30; 2000 Biennial Update to Network Modernization Plan. In the September Order, the Commission, at Ordering Paragraph No. 16, directed Commission staff to prepare a recommendation dealing with the nature and scope of an appropriate audit plan regarding the network plans of Verizon PA and other Chapter 30 companies. Verizon Pennsylvania Inc. Petition and Plan for Alternative Form of Regulation under Chapter 30; 2000 Biennial Update to Network Modernization Plan, Docket No. P-00930715F0002, et al., Ordering Paragraph No. 16 (Order entered September 17, 2003). In directing such a recommendation, the Commission was determined to ensure that the public had full confidence in the representations made by telecommunications carriers in their respective network modernization filings through an audit program that independently verifies the reported progress of each Chapter 30 plan.1
Effective November 30, 2004, Act of 2004, P. L. 1398, No. 183 (Act 183), became the new Chapter 30 to Title 66 of the Pennsylvania Consolidated Statutes. Prior to Act 183, ILECs who submitted NMPs were able to seek an alternate form of regulation. 66 Pa.C.S. § 3003 (repealed 2004). Act 183 continued the NMPs that were then currently in effect but also allowed ILECs to amend them so as to accelerate broadband deployment.2
Act 183 also requires that the Commission ''monitor and enforce companies' compliance with their interim and final 100% commitments for broadband availability in their amended network modernization plans.''3 ILECs failing to meet their NMP commitments may be required to provide refunds and may also be subject to civil or other penalties pursuant to the Commission's general authority under Chapter 33. 66 Pa.C.S. §§ 3301--3316.
At our Public Meeting of March 23, 2005, the Commission had before it a proposed Tentative Order setting forth the details for an audit of the NMP of Verizon PA in response to our previous directive in the September Order. Because of the statutory change, however, which occurred after we announced our intent to audit Verizon PA's NMP, we concluded that further evaluation was necessary to determine the best way to fulfill our statutory role of monitoring and enforcing companies' compliance with the NMP provisions of Act 183. We, therefore, directed staff to prepare an appropriate order seeking comments.
Thereafter, an Order was entered on April 15, 2005, asking for comments from interested parties on all relevant issues related to ensuring that the Commission had the information needed to develop a useful, comprehensive and appropriate NMP monitoring and enforcement program in accordance with Act 183. The Commission was particularly interested in comments addressing the nature, extent and funding of any monitoring and enforcement program that may be needed to verify independently each company's network deployment as reported in its NMP updates. Additionally, we sought comments on the appropriate timing of embarking upon such a program in consideration of the time lapse between the Commission's decision to implement an NMP audit program and the passage of Act 183 allowing ILECs to amend their NMPs. Due to the complexity of the issues raised, we directed that comments be due within 30 days of the publication of this Order in the Pennsylvania Bulletin with replies due 20 days thereafter.
B. Interested Parties' Comments to April 15, 2005 Order
Following publication of the April 15, 2005 Order on April 30, 2005, at 35 Pa.B. 2708, the Commission received initial comments on or about May 31, 2005, from Verizon PA and Verizon North Inc. (collectively, ''Verizon''), the Pennsylvania Telephone Association (PTA), and the Rural Company Coalition (RCC).4 No reply comments were received.
Verizon argued in its initial comments that the Commission's review should conform to Act 183's mandate of focusing on whether the ILEC has met its broadband availability commitments. As such, Verizon maintained that the review can be done by internal staff only and does not require the hiring of outside experts. If, however, the Commission decided it must use an external consultant to perform some or all of the review, then the Commission should pay for these services through its normal budgeting process. Alternatively, Verizon asserted it would not object to paying for outside consultants if they were paid for from the unspent monies in the ''Escrow Fund'' established by the Commission's April 11, 2001 Order in the Verizon PA Structural Separation proceeding at M-00001353 (April 11, 2001 Order). This fund was originally established to hire an outside consultant to train and to assist Commission staff in the analysis of Verizon PA performance metric reports. Verizon also stated that any audit should wait until after the first biennial report filed that covers the time period subsequent to enactment of Act 183, i.e., the biennial report to be filed in June 2007 covering the period from January 1, 2005, through December 31, 2006.
In its comments, the PTA took a very narrow view of the Commission's monitoring abilities, arguing that the Commission is limited to reviewing the biennial reports filed under 66 Pa.C.S. § 3014(f). In making this argument, the PTA asserted that Act 183 specifies the nine ''filing and audit requirements'' that may be required of ILECs, and that section 3015(f) prevents the Commission from requiring any other report or filing requirement. Thus, according to the PTA, any further review of company records or on-site inspection beyond the report specified in section 3014(f) is not permitted. On the funding issue, the PTA asserted that the Commission's monitoring role must be paid from the assessments currently paid by the utilities subject to our jurisdiction.
The RCC in its initial comments took the position that the underlying proceeding giving rise to the entire audit question never involved or implicated the RCC companies and that all the RCC companies have been controversy free regarding Chapter 30 compliance; therefore, they should not be subject to an audit as contemplated in this proceeding. Alternatively, the RCC companies urged the Commission to defer considering audits for them until after their final deployment obligations are met, given that all the RCC companies, except one, have elected to expedite deployment of 100% broadband availability to December 31, 2008. Under these facts, they contended, performing audits before the end of 2008 would entail an unwarranted expenditure of time and resources. They also found support for their position of deferment in the Secretarial Letter issued by the Commission dated April 21, 2004, which stated that the Commission would defer addressing to a later time the need and merit of NMP audits for non-Verizon companies.
C. August 31, 2005 Tentative Order
After reviewing the initial comments filed by interested parties, the Commission entered a Tentative Order on August 31, 2005. In this Order, the Commission tentatively concluded that Verizon's alternative plan to pay for Verizon PA's amended NMP audits by using the unspent monies in the ''Escrow Fund'' established in our April 11, 2001 Order is reasonable and should be adopted.5 In reaching this tentative conclusion, the Commission made clear in its August 31, 2005 Order that Verizon would still be obligated to make up any funding shortfall if the Escrow Fund is insufficient to cover the full cost of the NMP audit. Recognizing, however, that others might find this redirection of funds to a different purpose inappropriate, the Commission established a second comment period to address Verizon's alternative funding proposal. Following publication of the August 31, 2005 Order on September 17, 2005, at 35 Pa.B. 5209, comments were received from Verizon, the RCC, and the Office of Consumer Advocate (OCA) and late comments were filed by the PTA.
In its comments to the alternative funding proposal, Verizon argues that use of the remaining Escrow Fund dollars for Verizon PA's NMP audits is appropriate for three reasons. First, there is no legal restriction, Verizon argues, prohibiting the Commission from exercising its discretion to redirect the use of these monies to another purpose. The Escrow Fund was established by the Commission's April 11, 2001 Order, and the fund has no separate legal existence or other restrictions that would prevent the remaining monies being devoted to another purpose.
Second, Verizon asserts that the monies are no longer needed for their original purpose, and, therefore, the monies can now be diverted to another purpose. To support this argument, Verizon argues that additional training is not needed as Commission staff has developed sufficient expertise in analyzing metric reports. Verizon finds support for this conclusion from the fact that the average monthly payment has dwindled from about $25,000 per month to $10,000 per month, and from the fact that no new deposits have been made into the Escrow Fund since April 2003 when new Carrier-to-Carrier guidelines and performance metrics were adopted by this Commission. Thus, Verizon concludes, it is appropriate that monies from the Escrow Fund now be diverted to another regulatory purpose related to Verizon PA.
Finally, Verizon states that use of the remaining Escrow Fund monies for Verizon PA's NMP compliance reviews will avoid the legal issue of whether the Commission has the power to require Verizon PA to pay the cost of outside consultants used to perform the compliance review. Verizon argues that the Commission lacks the authority to require ILECs to pay the cost of outside consultants used to perform amended NMP audits as Act 183 makes no provision for this outcome. However, Verizon further states that Verizon PA will not object to the proviso that it be required to make up any funding shortfall if the Escrow Fund is inadequate to cover the costs of any Verizon PA NMP audit, so long as Verizon PA reserves the right to contest the size, scope and total cost of any such audits.
The OCA, in its comments, asserts that the Commission's rationale for using the Escrow Fund for a purpose other than intended is unclear and should be reconsidered. The OCA states that our Tentative Order is unclear in explaining why we tentatively concluded to use the Escrow Fund to pay for Verizon PA's amended NMP audits in 2007 and possibly beyond. For example, the OCA asserts that the Tentative Order does not make clear whether we now believe that competitive performance metrics and remedies no longer merit analysis, whether Commission staff no longer needs training relating to performance metrics, or whether the Commission is no longer concerned about Verizon PA's compliance with the performance metrics established by this Commission. The OCA agrees with the Vice Chairman's dissent in the August 31, 2005 Order that the Commission has the authority under section 516 of the Public Utility Code to require Verizon or any other ILEC to pay for such audits directly.
While the comments to be filed pursuant to the August 31, 2005 Order were to be limited to the alternative funding issue, the OCA also argues in its comments that the Commission should not delay Verizon PA's amended NMP audit until 2007. The OCA asserts that any such delay will not be in the public interest and it also may be contrary to section 3015(a)(2) of the Public Utility Code, which establishes the Commission's enforcement duty to ensure that ILECs comply with their interim deployment goals. 66 Pa.C.S. § 3015(a)(2).6
D. Discussion
The first issue we address is our authority to conduct an audit of the network plans of Verizon PA and other Chapter 30 companies. The PTA particularly questions the Commission's authority to conduct NMP audits, citing section 3015(f) of the new Chapter 30 that specifies nine filing requirements. The PTA then argues that NMP audits as contemplated in this proceeding are not covered by this section, and thus, by implication, not authorized.
We disagree with the PTA's position on this issue. We do not believe that section 3015(f) can be read in isolation from the rest of Chapter 30. Section 3014(f), which addresses NMP reports, states that local exchange telecommunications companies operating under a NMP shall continue to file biennial reports with the Commission ''in the form and detail required by the commission as of July 1, 2004 [which is before the enactment of Act 183],'' and that ''[n]othing in this subsection shall be construed to impede the ability of the commission to require the submission of further information to support the accuracy of or to seek an explanation of'' the biennial reports filed by the Chapter 30 companies. 66 Pa.C.S. § 3014(f)(1) and (2) (emphasis added).
Notwithstanding the PTA's comments to the contrary, the Commission concludes that performing the type of NMP audit program outlined in our April 21, 2004 Secretarial Letter and as envisioned by the September Order is consistent with the newly enacted Act 183's mandate to the Commission to investigate and confirm the accuracy of the information contained in the NMP biennial reports. 66 Pa.C.S. § 3014(f). Under section 3014(f), as discussed above, the Commission has a duty to ensure that the information in the NMP report is accurate and reliable. In our judgment, we cannot fulfill our statutory obligation under section 3014(f) without performing the type of NMP audit program envisioned in the April 21, 2004 Secretarial Letter.
Further, we disagree with Verizon that the type of review that needs to be done can be performed by internal staff only and does not require outside experts. Based on the audit scope and plan developed by the Commission prior to asking for comments in this proceeding, the Commission concluded, at least as to Verizon PA's NMP, that it was necessary to issue a Request for Proposals (RFP) to retain an outside consultant pursuant to sections 331(a) and 516 of the Public Utility Code, 66 Pa.C.S. § 331(a) and 516, to assist Commission staff in the NMP verification process. This conclusion was based on our own internal assessment that we do not have the resources to conduct the type of audit contemplated nor does our staff possess sufficient technical expertise to audit Verizon PA's compliance with its network deployment commitments without such technical assistance. Nothing in the comments filed herein has convinced us to change our view that the RFP process should be utilized to retain an outside consultant to assist us in performing the audit of Verizon PA's NMP.
We also disagree with Verizon and the PTA that this audit should be paid from the assessments of utilities as part of our normal budgeting process. Examining prior Commission decisions and the language of section 516, we are of the opinion that the NMP audit contemplated by our September Order and the April 21, 2004 Secretarial Letter, because it is directed at ensuring the ''effectiveness'' of the specific reporting company's process for reporting on its NMP implementation progress, falls within the purview of section 516. We, therefore, conclude that the audited telecommunications company can legally be required to pay for the audit pursuant to section 516(c).7
Additionally, while the enactment of Act 183 raises issues regarding changes to an existing NMP and, in particular, restricts the Commission's authority at 66 Pa.C.S. § 3013(b) to make any changes to an NMP without the utility's consent, in the Commission's judgment, the imposition of costs pursuant to section 516 is not a change to the NMP requiring the consent of the audited telecommunications company pursuant to section 3013(b). Rather, the audit is simply an investigative tool used by the Commission to perform its assessment of the company's NMP reporting accuracy under section 516 and is consistent with the Commission's duty to exercise oversight over the NMPs and to confirm the accuracy of the information contained in the NMP biennial reports. 66 Pa.C.S. §§ 3013(d) and 3014(f).
As we previously held in In re: Pennsylvania Telecommunications Infrastructure Study; Petition of the Pennsylvania Telephone Association for Reconsideration or in the Alternative, Supersedeas, Docket No. M-00910284 (Order entered June 27, 1991), the Commission has implicit authority to require mandatory funding of this audit under its general investigatory powers granted at 66 Pa.C.S. § 331(a). As we stated in that earlier decision, it is clear that utilities are required to cooperate and assist in the conduct of Commission investigations, and ''the imposition of costs on the utility in the first instance does not merely facilitate the work of an investigation but actually makes the investigation possible, such funding is a necessary function of a utility's adherence to the applicable provisions of the Code.'' Id. at 7. It is also worth noting that neither section 331 nor 516 have been repealed or otherwise modified by Act 183.
Having established our authority to conduct NMP audits and the ILECs' responsibility to pay for them, we next turn our attention to Verizon's recommendation to use the Escrow Fund established by the Commission's April 11, 2001 Order to pay for Verizon PA's amended NMP audits. Only two comments were received that provided substantive input on this topic; one by Verizon in favor and one by the OCA in opposition. After reviewing the comments filed by both parties, we agree with Verizon that there is no legal restriction prohibiting the Commission from exercising its discretion to redirect the use of these monies to pay for Verizon PA's NMP audit. In addition, we also reviewed how the Escrow Fund monies have been spent in the past and the proposed usage for the remaining amount, which Commission staff estimates is approximately $800,000, and agree that the original purpose for the monies has generally been satisfied. In particular, our staff now has more experience and knowledge regarding the analysis of metric reporting results than when the fund was created.
Under these circumstances, it is appropriate and reasonable for the Commission to accept Verizon's proposal to apply the remaining, unencumbered monies towards Verizon PA's NMP audits. Finally, this acceptance is subject to the requirement that Verizon PA will make up any funding shortfall if the Escrow Fund is insufficient to cover the full cost of the Verizon PA NMP audits(s) in 2007 or beyond.8
Finally, we must address the question of timing. The RCC companies contend that they should not be subject to an audit given their controversy-free history regarding Chapter 30 compliance, or, alternatively, that any decision be deferred until their final deployment obligations are met after December 31, 2008. For its part, Verizon argues that any Verizon NMP audit should cover a post-Act 183 reporting period. In Verizon PA's case, that would be the biennial NMP report to be filed on June 30, 2007, covering the years 2005-2006, and for Verizon North Inc., it would be the report due on March 31, 2007.
Taking Verizon's concerns first, we agree that deferring their audits until after their 2007 biennial reports are filed is the best course under the circumstances. In reaching this decision, we do not intend to infer in any way that Act 183 somehow limits our ability to audit pre-Act 183 compliance (especially given that Verizon's amended NMPs do not change the compliance benchmarks established in the earlier-approved plans). It may be recalled that Verizon PA's June 2005 report was the subject of our earlier proposed audit in this proceeding. However, the delay that has been created while we examined the impact of Act 183 on our ability to conduct NMP audits has effectively eliminated the possibility of conducting a meaningful audit of the June 2005 filing. This is because we have not issued an RFP to hire an outside consultant, and the RFP process--from drafting the RFP to starting the fieldwork--is expected to take up to six months. This means that an audit could not be started before mid-2006 and by then the data will have become outdated. Further, we will, at that point, be only one year away from receiving Verizon PA's 2007 biennial report. Under these circumstances and given the other changes that were created by Act 183, we conclude that the best course is to wait until Verizon's next filings in 2007 to conduct any audit of Verizon's NMP commitments.
As for all the other local exchange carriers, including the RCC, we do not agree that their ''controversy-free history'' exempts them from being audited at all to ensure NMP compliance. However, we do agree that deferring any audits until after December 31, 2008, is the best course in light of enactment of Act 183 and the election by many of those same companies to expedite deployment of 100% broadband availability by the end of 2008. This deferment will also ensure that the Verizon PA audit in 2007-2008 will be the first one conducted by the Commission, and the experience gained therein will help ensure a more thorough and efficient audit of the other Chapter 30 companies with less involvement, or even possibly the elimination, of an outside consultant.
To conclude, after considering the impact of Act 183 and the input of interested parties, we find that the audit plan adopted herein will allow the Commission to fulfill its statutory responsibility of monitoring and enforcing ILECs' NMP commitments. In this way, the Commission will be able to ensure that all Pennsylvanians have the opportunity to receive the benefit of the advanced broadband services contemplated by both the previous version of Chapter 30 as well as Act 183; Therefore,
It Is Ordered That:
1. The Commission has the authority under the Public Utility Code to perform an investigative-type audit for the purpose of independently verifying the reported progress of any incumbent local exchange carrier Chapter 30 network modernization plan and to require the audited incumbent local exchange carrier to pay for the audit.
2. Any unencumbered monies remaining as of June 30, 2005, in the Escrow Fund established by the Commission's April 11, 2001 Order in the Verizon Pennsylvania Inc. Structural Separation proceeding at M-00001353, be redirected to pay for Verizon Pennsylvania Inc.'s amended network modernization plan audits in 2007 and beyond.
3. The Commission will defer conducting any such audits consistent with the discussion in the body of this Order.
4. The Secretary serve a copy of this Order on all incumbent local exchange telecommunications carriers, the Office of Consumer Advocate, the Office of Small Business Advocate, and the Pennsylvania Telephone Association and also cause a copy of this Order to be published in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary
Statement of Vice Chairperson James H. Cawley
Concurring in Part and Dissenting in Part
Public Meeting: October 27, 2005; OCT-2005-L-0109*
Monitoring and Enforcement of Network Modernization Plans; M-00051872
Verizon Pennsylvania Inc. Petition for Alternative Form of Regulation under Chapter 30; 2000 Biennial Update to Network Modernization Plan (Amendment to NMP); P-00930715F0002
Verizon Pennsylvania Inc. Petition and Plan for Alternative Form of Regulation Under Chapter 30; 2000 Biennial Update to Network Modernization Plan (Petition For Reconsideration of May 15, 2002 Order); P-00930715
Re: Structural Separation of Bell Atlantic-Pennsylvania, Inc. Retail and Wholesale Operations; M-00001353 Consistent with my Dissenting Statement during the Public Meeting of August 11, 2005, I concur in part to and dissent in part from the recommended disposition of the Commission's Procedures for the Monitoring and Enforcement of the incumbent local exchange carrier (ILEC) Chapter 30 amended Network Modernization Plans (NMPs). I agree that this Commission possesses the requisite statutory authority to conduct the necessary audits of the ILECs' amended NMPs, and that such authority has not been impaired by the new Chapter 30. See generally 66 Pa.C.S. § 516(a) and 66 Pa.C.S. §§ 3011--3019. Furthermore, I believe that this auditing function is a vital enforcement tool at the disposal of this Commission that is consistent with this agency's statutory mandate and regulatory obligations under Section 3015(a)(2) of the new Chapter 30, 66 Pa.C.S. § 3015(a)(2).
I completely disagree with the recommended postponement of the contemplated audit activities of the ILECs' amended NMPs until the 2007-2008 time frame. I reiterate my previous position that, without the utilization of timely, comprehensive, and independent audits of the ILECs' amended NMPs, this Commission will be unable to exercise, in any meaningful or timely way, its oversight duties under Chapter 30.
I also continue to be opposed to the use of the ''Escrow Fund'' monies established by the Commission through its April 11, 2001 Order in the Verizon Pennsylvania Inc. (Verizon PA) Structural Separation proceeding at Docket No. M-00001353, in order to offset the contemplated costs of the independent audit of the Verizon PA amended NMP in 2007 and beyond. I continue to believe that the ''Escrow Fund'' monies should continue to be used for purposes that pertain to issues of interconnection and competition between Verizon PA and other telecommunications services providers, and that the costs of the contemplated NMP audit can be fully borne by Verizon PA.
For these reasons, I concur in part and dissent in part.
Dissenting Statement of
Commissioner Terrance J. Fitzpatrick
Public Meeting: October 27, 2005; OCT-2005-L-0109*
Monitoring and Enforcement of Network Modernization Plans; M-00930715F0002; P-00930715F0002; P-00930715; M-00001353 This matter involves the Final Order to develop monitoring and enforcement procedures related to network modernization plans (NMPs) of incumbent local exchange carriers (ILECs) under the new Chapter 30 law, 66 Pa.C.S. § 3011, et seq. In the Order, a majority of the Commission concludes, among other things, that the Commission has legal authority to impose a new set of audit requirements upon ILECs to ensure compliance with NMPs. I respectfully dissent from this conclusion.
As the Pennsylvania Telephone Association (PTA) points out, the new Chapter 30 law specifically restricts the authority of the Commission to impose ''filing and audit requirements'' beyond the nine listed, existing requirements set forth in the law. 66 Pa.C.S. § 3015(e). This list of permissible requirements includes biennial NMP reports described in Section 3014(f), but does not include an across-the-board audit requirement for the NMPs of ILECs. Accordingly, it must be assumed that a generic NMP audit requirement is not permitted under this section.
The Final Order adopted by the Majority concludes that the Commission is empowered to establish a generic NMP audit requirement under Section 3014(f). This subsection provides, first, that ILECs shall continue to file biennial NMP reports as previously required, unless the Commission reduces this reporting requirement. 66 Pa.C.S. § 3014(f)(1). The subsection goes on to state:
(2) Nothing in this subsection shall be construed to impede the ability of the commission to require the submission of further information to support the accuracy of or to seek an explanation of the reports specified in this subsection.66 Pa.C.S. § 3014(f)(2) (Emphasis added). The ''reports specified in this subsection'' obviously refers to the biennial NMP reports authorized in Section 3014(f)(1).
The language quoted in the preceding paragraph clarifies that the Commission retains authority to seek additional information from ILECs upon reviewing an ILEC's biennial NMP report. The language does not authorize the Commission to impose an across-the-board requirement9 for audits of NMPs--a requirement that is obviously independent of the specific contents of the biennial reports.
Accordingly, it is clear to me that the NMP audit requirement is a new regulatory requirement that is not authorized by 66 Pa.C.S. §§ 3014(f) or 3015(e). For this reason, I respectfully dissent.
[Pa.B. Doc. No. 05-2102. Filed for public inspection November 11, 2005, 9:00 a.m.] _______
1 A Secretarial Letter dated April 21, 2004, was thereafter issued noticing our intent to ''commence the NMP audit program envisioned by the September Order'' to ensure that the progress of each NMP ''can be adequately tracked and independently verified.'' After setting forth the specific areas targeted for the audit, the Secretarial Letter indicated that a Request for Proposal (RFP) would be released in the first quarter of 2005 ''in order to commence the audit program in a timely manner upon receipt of Verizon's 2004 Biennial Update which is due by June 30, 2005.'' Finally, while the initial audit would be limited to Verizon PA, the Secretarial Letter stated that the NMP audit program ''may extend to other ILECs in subsequent years,'' and it was served on all ILECs with Chapter 30 plans.
2 See 66 Pa.C.S. § 3014(a)--(b). Since the effective date of Act 183, the Commission has received petitions to amend from all 33 ILEC NMPs currently in effect and has approved all these petitions.
3 See 66 Pa.C.S. § 3015(a)(2).
4 The RCC is a group of rural ILECs, all of which except for ALLTEL Pennsylvania, Inc., have elected to amend their existing NMPs to expedite the provision of 100broadband availability to December 31, 2008.
5 As of the date of this Order, the unspent monies in the Escrow Fund is approximately $800,000.
6 The third set of comments were filed by the RCC that simply attached a copy of the comments it filed on May 31, 2005, so additional discussion of these comments is not necessary.
7 See, e.g., Final Opinion and Order on Performance Measures and Remedies for Wholesale Performance for Verizon Pennsylvania Inc., Docket No. M-00011468 (Order entered December 10, 2002) (Commission directed Bureau of Audits to issue an RFP to hire an outside consulting firm to provide an independent analysis/audit to be paid for by Verizon PA of the results of the first three months of metrics and remedies reports for Verizon PA's wholesale performance); In re: Pennsylvania Telecommunications Infrastructure Study; Petition of the Pennsylvania Telephone Association for Reconsideration or in the Alternative, Supersedeas, Docket No. M-910284 (Order entered June 27, 1991) (Commission finds that it has authority under both sections 331(a) and 516 to order comprehensive study of Pennsylvania's telecommunications infrastructure and to have major utilities pay for it).
8 In determining that Verizon PA is responsible for any funding shortfall, however, our decision today is not intended to deprive Verizon PA of its ability to reserve its right to contest the size, scope, or resultant cost of any amended NMP audit conducted by this Commission to meet its statutory obligations under the new Chapter 30.
9 This general requirement for NMP audits is in the nature of a regulation, even though the Commission is attempting to impose it through an Order. See, Commonwealth, DER v. Rushton Mining Co., 591 A.2d 1168 (Pa. Commw. Ct. 1991), allocatur denied, 600 A.2d 591 (Pa. 1991).
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