NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Section 3015(f) Review Regarding the Lifeline Tracking Report, Accident Report and Service Outage Report; Doc. No. M-00051900
[36 Pa.B. 250] Public Meeting held
December 15, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick, dissenting statement follows
Final Order By the Commission:
On October 5, 2005, the Commission entered at this docket a tentative order (Tentative Order) regarding section 3015(f)1 review of certain reporting requirements for Local Exchange Carriers (LECs). In its Tentative Order, the Commission directed that further review of certain reporting requirements be conducted in accordance with section 3015(f)(1) of Chapter 302 to determine whether the Lifeline tracking reports and the accident and service outage reports can be required. In accordance with section 3015(f)(1) and the comments submitted in this matter, the Commission finds that the Lifeline tracking reports and the service outage reports meet the standards prescribed in this section and, therefore, continue to be required by the Commission. The Commission also finds that accident reports are no longer required to be filed by LECs in accordance with sections 3015(f)(1) and 3015(e).
Background
In December 2004, the General Assembly enacted Act 183 which substantially amends the Public Utility Code relating to alternative forms of regulation for LECs and, in particular, contains provisions designed to reduce the present level of annual, quarterly and other periodic reporting requirements for LECs. Act 183 or Chapter 30 provides that the general filing and reporting requirements for LECs are limited to the nine reports specified in the statute, to be ''submitted in the form determined by the Commission.'' 66 Pa.C.S. § 3015(e).
Section 3015(e) provides that the Commission's filing and audit requirements for a LEC that is operating under an amended network modernization plan are limited to the following: 1) network modernization reports filed pursuant to Section 3014(f); 2) an annual financial report consisting of a balance sheet and income statement; 3) an annual deaf, speech-impaired and hearing-impaired relay information report; 4) an annual service report; 5) universal service reports; 6) an annual access line report; 7) an annual statement of gross intrastate operating revenues for purposes of calculating assessments for regulatory expenses; 8) an annual state tax adjustment computation for years in which a tax change has occurred, if applicable; and 9) for those companies with a bona fide retail request program, a bona fide retail request report under Section 3014(c)(9).
Chapter 30 also provides for exceptions to this limitation. In particular, section 3015(f)(1) of Chapter 30 provides that ''no report, statement, filing or other document or information, except as specified in subsection (e), shall be required unless the Commission, upon notice to the affected LEC and an opportunity to be heard, has first made specific written findings supporting conclusions in an entered order that:
(i) the report is necessary to ensure that the LEC is charging rates that are in compliance with the chapter and its effective alternative form of regulation;
(ii) the benefits of the report substantially outweigh the attendant expense and administrative time and effort required by the LEC to prepare it.''
Section 3015(f)(2) also provides that nothing should be construed to impede the ability of the Commission to require the submission of further information to support the accuracy or to seek an explanation of the reports in subsection(e). Further, section 3019 retains the Commission's power to seek information necessary to review and revise its quality of service standards and establish customer protection requirements.4
On April 15, 2005, in accordance with the newly-enacted Chapter 30, the Commission entered a Tentative Implementation Order5 directing the continuation, consolidation, and/or elimination of the general filing and reporting requirements presently imposed on LECs operating in Pennsylvania. In its Tentative Order, the Commission sought comments on its initial determinations to maintain, streamline or eliminate certain LEC reports. Upon review of Chapter 30 and the submitted comments, the Commission entered a Final Implementation Order6 on October 5, 2005 determining which LEC reporting requirements should be maintained, streamlined or eliminated. Also, in the Final Implementation Order, the Commission found that the Lifeline tracking reports and the accident and service outage reports are not within the scope of reports listed in section 3015(e). Therefore, the Commission directed that a new proceeding be opened to address the issue of whether these reports can meet the exception standard set forth in section 3015(f)(1).7
Also, on October 5, 2005, the Commission entered a Tentative Order at this docket ordering a section 3015(f)8 review of certain reporting requirements for Local Exchange Carriers (LECs). In its Tentative Order, the Commission directed that further review of certain reporting requirements be conducted in accordance with section 3015(f)(1) of Chapter 309 to determine whether the Lifeline tracking reports and the accident and service outage reports can be required. In doing so, the Commission provided the affected LECs and other interested participants notice and opportunity to be heard concerning the continued reporting of the previously mentioned reports. The Pennsylvania Telephone Association (PTA), the Office of Consumer Advocate (OCA) and Representatives Raymond Bunt, Jr. and William F. Adolph, Jr. submitted comments at this docket.
Discussion
Chapter 30 sets forth reporting requirements for LECs. Although various sections of Chapter 30 provide the Commission with the authority to require information from LECs, as stated previously, section 3015(e) provides that the Commission's filing and audit requirements for a LEC that is operating under an amended network modernization plan are limited to nine enumerated reports, subject to the previously mentioned exceptions. In addition, section 3015(f)(1) requires Commission review to determine additional reporting requirements pursuant to the previously mentioned exceptions in section 3015(f)(1).
As an initial matter, the Commission requested comments in the Tentative Order as to the interpretation of the standards set forth in section 3015(f)(1). Specifically, the Commission requested input on whether both standards articulated in section 3015(f)(1) must be met, or whether satisfaction of either one would allow for the report to be requested pursuant to this same section.
Representatives Bunt and Adolph comment that section 3015(f) is a two-pronged test that the PUC must undertake prior to requiring additional reports outside of the nine reports statutorily required by current law.10 Representatives Bunt and Adolph also comment that a proposed additional report satisfying one of the two standards contained in section 3015(f) cannot be mandated by the Commission.11 The legislators further state that the language in section 3015(f) is clearly written and that the Commission should implement the provisions in accordance with legislative intent.12
PTA comments that section 3015(f)(1)(i) and (ii) operate in the conjunctive resulting in two distinct tests that must both be met in order for the Commission to require any report other than the nine set forth in section 3015(e).13 Also, PTA submits that the word ''or'' cannot be inserted between the two subsections of section 3015(f)(1) because a reviewing body may not insert words into a statute that the legislature omitted.14 PTA contends that inserting language into section 3015(f) would be improper and defeat the plain meaning of this particular section.15
OCA submits that the Commission should interpret section 3015(f)(1)(i) and (ii) as providing two separate grounds for requiring a report that is not specifically identified in 3015(e).16 OCA also contends that to require that a report meet both statutory requirements would lead to results counter to the express will of the General Assembly and would produce unreasonable results.17
In this case, it is the Commission's view that the reports discussed in this Order meet both exceptions articulated in section 3015(f)(1)(i) and (ii). Therefore, at this time, we decline to decide the issue of whether both standards must be met, or whether satisfaction of either of the subsections would permit the Commission to allow additional reports pursuant to section 3015(f)(1).
1. Lifeline Tracking Report
The Lifeline tracking report is required by the Commission's February 21, 2003 Order18 on an annual basis in order to monitor customer enrollment and funding levels in the statewide Lifeline 150, and Link-Up programs, the Verizon19 companies' Lifeline programs and Verizon Pennsylvania Inc.'s Universal Telephone Assistance Program (UTAP). The Commission collects the necessary data through a standard form available from the Commission's website.20 In the Final Implementation Order at Docket No. M-00041857, the Commission required LECs to continue the Lifeline Tracking report pending the outcome of this proceeding herein.
In its Tentative Order, the Commission requested that interested participants comment on whether the Lifeline tracking report is necessary for the Commission to ensure that the rates charged by LECs are in compliance with Chapter 30 and are in accordance with the LECs' current alternative forms of regulation. In particular, the Commission sought comment on whether there is a relationship between rates that are in compliance with the goals of Chapter 30 and the actual availability of discounted Lifeline rates for local telephone service. Also, the Commission requested input addressing the expense and administrative time and effort involved in the preparation of the individual reports and the benefits of the report in relation to the Commission's duties under Title 66.
In their comments, Representatives Bunt and Adolph indicate that the provisions of Chapter 30 to enhance the Lifeline program do not support the Commission's requiring Lifeline tracking reports.21 Representatives Bunt and Adolph submit that filing Lifeline enrollment statistics at the state level is duplicative because LECs report this information to the Federal Communications Commission (FCC).22 The legislators also indicate that, since the Lifeline tracking reports have no correlation to Lifeline rates and can be obtained from the FCC, this reporting requirement does not meet both subsections in section 3015(f)(1) and cannot be required.23
PTA comments that Chapter 30 does, in fact, encourage Lifeline enrollment through publication requirements and removal of service restrictions.24 PTA also contends that Lifeline is not a rate but rather, a credit set by federal law and given to qualifying customers.25 In addition, PTA notes that the Commission's Lifeline tracking report contains no information about the rates charged to Lifeline customers.26 In the spirit of compromise, however, PTA has volunteered to provide a courtesy copy of the Lifeline report that individual companies submit to the FCC.27
OCA strongly supports the continuation of the Lifeline tracking reports because it is essential for the Commission to fulfill its statutory obligation to oversee Pennsylvania's Lifeline program set forth at section 3019(f) of Chapter 30.28 OCA submits that it is necessary for the Commission to have a Lifeline tracking report requirement so that it monitors customer participation in the LEC's Lifeline programs and to assess the success of the program. OCA also submits that it would be contrary to the will of the General Assembly for the Commission to abandon monitoring the provision of Lifeline service in light of the statutory provisions set forth in Chapter 30.29
In addition, OCA submits that the Commission may require the Lifeline tracking report pursuant to its section 3015(f)(1) authority because either or both of the requirements in subsections (i) and (ii) are met in regard to this report.30 Regarding section 3015(f)(1)(i), OCA submits that Lifeline services is intrinsic to rates as defined in section 3012 of Chapter 30.31 Without the Lifeline tracking report, the OCA contends that the Commission cannot ensure that LECs are making Lifeline rates available in compliance with Chapter 30. The OCA further states that the Lifeline tracking report is a necessary tool to assess year-to-year changes in customer access to various LEC Lifeline rates, in order to assure that rates are affordable, to assure that Lifeline rates are universally available throughout the Commonwealth, and to assure that funds set aside to support Lifeline rates are properly used.32 Further, OCA maintains that the Commission's efforts to fulfill its duty to maintain universal service telecommunications at affordable rates as prescribed at section 3011(2) will diminish without the Lifeline tracking report.33
Concerning section 3015(f)(1)(ii), OCA submits that the public benefit of section 3019(f) compliant Lifeline services is very high in comparison to the burden of preparing the Lifeline tracking report.34 OCA points out that the Verizon and Verizon North Lifeline tracking report consists of four pages of fill-in-the-blank data, and the non-Verizon company report consists of three pages of fill-in-the-blank data35 resulting in minimal hours (1-10) to complete.36 Also, OCA comments that, during the Legislative Budget and Finance Committee's (LB & FC) review of LEC reporting requirements, both the Commission and PTA agreed that the Lifeline tracking report is necessary and that PTA indicated that no changes to this reporting requirement is needed.37
Based on the comments submitted at this docket, we find that the Lifeline tracking report continues to be required in accordance with the exceptions set forth in section 3015(f)(1)(i) and (ii). Regarding section 3015(f)(1)(i), the Commission finds that the Lifeline tracking report is necessary to ensure that the LECs providing Lifeline service are charging rates in compliance with Chapter 30. First, under the provisions at section 3019(f), LECs are required to provide Lifeline service to eligible customers who subscribe to the service at the prescribed discounted rate for the local service offering as defined in section 3012 of the statute. Second, there clearly exists a relationship between the rates that are in compliance with the goals of Chapter 30 and the actual availability of discounted Lifeline rates for local telephone service.38 Third, we agree with OCA that, without the Lifeline tracking report, the Commission cannot ensure that LECs are making Lifeline rates available in compliance with Chapter 30. Because the Commission must ensure that LECs are charging rates in compliance with Chapter 30, including discounted rates for local service to eligible customers, the Commission finds that there is an adequate nexus between the Lifeline tracking report and the provision of Lifeline service at discounted rates to satisfy the requirements of section 3015(f)(1)(i).
In addition, regarding section 3015(f)(1)(ii), the Commission finds that the benefits of the Lifeline tracking report substantially outweigh the attendant expense and administrative time and effort of the LEC to prepare the report. It is clear that the benefits of the Lifeline tracking report are many including the imposition of rates in compliance with Chapter 30 and LECs alternative form of regulation, the measurement of customer enrollment and disconnection in the Lifeline programs in light of the newly enacted section 3019(f), and the tracking and monitoring of Lifeline notice and enrollment to determine future statutory changes, where appropriate.
Regarding the LECs' attendant expense and administrative time and effort to prepare the Lifeline tracking report, PTA did not fully address this requirement of section 3015(f)(1) in their comments outside of a footnote reference to its position in the Legislative Budget & Finance Committee's (LB & FC) Report. Rather, PTA refers the Commission to the LB & FC Report in which the carriers estimate that the cost to produce this report, on an annual basis, is between 1 and ten hours.39 However, as mentioned previously, PTA offers to provide to the Commission a courtesy copy of its Lifeline reports submitted to the FCC as a compromise position to continue this reporting requirement.
We find that the current annual filing of Lifeline information in the Commission's standardized format is less burdensome on LECs than PTA's proposed compromise. While we appreciate PTA's willingness to reach agreement on this reporting requirement, PTA's position actually increases their reporting requirement to this Commission. PTA is proposing to provide to us its quarterly filings to the FCC, thus increasing the amount of Lifeline information to be submitted from an annual basis to four times a year.
In addition, we find that the federal Lifeline report is not sufficient to address the needs of the Commission. These needs include the measurement of customer enrollment and disconnection activity in the Lifeline programs as well as the tracking and monitoring of Lifeline year end enrollment levels. This information, as provided on the Pennsylvania Lifeline form, will allow this Commission to evaluate utility compliance with section 3019 of Chapter 30.
Further, the federal Lifeline form--Form 497--is currently being revised by the Federal Communications Commission and, without knowing the extent of the revisions and how they will impact information needed by this Commission, we decline to adopt PTA's compromise. At this time, the Commission is not prepared to forego the information currently required in its Lifeline tracking report.
In addition, PTA does not provide sufficient grounds to demonstrate that this reporting requirement is burdensome on its member companies. In our view, having to produce a standardize report once a year comprised of only 3 to 4 pages does not constitute a burdensome reporting requirement.
We also are persuaded by OCA's comments stated previously that the on-line standard format Lifeline tracking reports are of minimal burden to the carriers and does not outweigh the benefit of the Commission having the necessary information about Lifeline enrollment and application of the proper rate for this program. However, we direct our staff, the Bureau of Consumer Services, to review and develop a more streamlined version of the Lifeline tracking report as appropriate and to establish a process to file these reports electronically with the Commission.
Accordingly, we find that the Lifeline tracking report meets the standards prescribed in section 3015(f)(1) and, therefore, directs that this reporting requirement be maintained.
2. Service Outage Reports
The Commission's regulations at section 67.1 require all public utilities, including LECs, to report service outages when 2,500 or 5 percent, whichever is less, of a public utility's customers have an unscheduled service interruption in a single incident for six or more projected consecutive hours.40 The Commission reviews the service outage reports to ensure that all necessary steps were taken in the utility's restoration efforts and to monitor the level of service outages occurring in the state.41 In the Final Implementation Order at Docket No. M-00041857, the Commission required LECs to continue the service outage reporting requirement pending the outcome of this proceeding herein.
In its Tentative Order, the Commission requested that interested participants comment on whether service outage reports are necessary for the Commission to ensure that the rates charged by LECs are in compliance with Chapter 30 and are in accordance with the LECs' current alternative forms of regulation. In particular, the Commission sought input on whether there is a relationship between rates that are just and reasonable and the frequency, duration and extent of service outages given that Chapter 30 requires that all rates shall be just and reasonable. In addition, the Commission requested comments addressing the expense and administrative time and effort involved in the preparation of the individual reports and the benefits of the report in relation to the Commission's duties under Title 66. Further, the Commission sought input on the frequency of service outage reports filed by individual LECs in prior years as well as whether this reporting requirement could be streamlined and submitted to the Commission electronically.
In their comments, Representatives Bunt and Adolph indicate that it is unclear how service outage reports documenting a previously occurred outage assists the Commission in responding to emergency situations including managing the utility's response to the situation.42 Also, the Representatives question how the service outage reports provide information to assist the Commission in maintaining overall safe and reliable utility services.43
PTA comments that the frequency, duration and extent of service outages do not have any relationship with whether a LEC's rates are in compliance with its Chapter 30 plan. PTA also notes that service outage information is not identified as a component in the setting of a LEC's rates under its Chapter 30 plan. PTA comments that, had the Legislature intended to include service outage information in the setting of rates in a Chapter 30 plan, they would have included it as an explicit provision in the statute.44 In its comments, the PTA proposes a compromise concerning this reporting requirement in that its member companies agree to inform the Commission verbally of an outage as dictated in section 67.1 of our regulations with follow up written documentation.45
OCA, in its comments, states that the Commission has the authority to require service outage reports under sections 3015(f) and 3019(b) of Chapter 30. OCA indicates that this reporting requirement is on a per occurrence requirement that all public utilities file to alert the Commission, in a timely fashion, of prolonged and widespread service failures.46 OCA states that the service outage reporting requirement is important to the Commission's duty to ensure reasonable, adequate and reliable utility service for the benefit of consumers and is consistent with the Commission's obligations to ensure safe and adequate service at section 1501 of Title 66.
In addition, OCA submits that the service outage reports clearly relate to the Commission's statutory obligation at section 3019(b) to review and revise safety, adequacy and reliability of service regulations. OCA submits that it would be unreasonable for the Commission to be able to establish rules governing these aspects of telephone service but then not have a reporting mechanism to enforce them.47 OCA further submits that the section 3019(b) not only provides the Commission the authority to establish a reporting mechanism relating to safety, adequacy and reliability of services but also establishes an affirmative duty for the Commission to review whether telephone utility services meet these standards.48
Regarding section 3015(f)(1)(ii), OCA contends that the risks to public safety far outweigh the expense and administrative time and effort involved in notifying the Commission of a widespread and prolonged service failure.49 OCA also submits that the assertion that making a telephone call to alert the Commission of a prolonged and widespread service failure event represents too much of a burden on a telephone utility is patently unreasonable. OCA further points out that the information required by section 67.1 of the Commissions regulations is provided in a one page format on a very limited frequency.50
Based on the comments submitted at this docket, we find that the service outage report continues to be required in accordance with the exceptions set forth in section 3015(f)(1)(i) and (ii). Concerning section 3015(f)(1)(i), the Commission's request for service outage information satisfies the requirements of this section in that the service outage report is necessary information to ensure that the LECs are charging rates in compliance with Chapter 30. Chapter 30 requires that rates be just and reasonable as also stated in Chapter 13 of the Public Utility Code.51 In fact, the fundamental principle that rates for utility services be just and reasonable is peppered throughout the statute. First, section 3011 declares that charges for protected service must be ''reasonable.'' Also, section 3015(g) specifically states that nothing in Chapter 30 limits the requirements of section 1301 that rates shall be ''just and reasonable.'' In addition, this same section states that the annual rate change limitations set forth in a LEC's effective commission-approved alternative form of regulation plan shall be deemed ''just and reasonable'' under section 1301.52 Further, if a LEC fails to meets an interim or final 100% commitment for broadband availability under its Chapter 30 plan, the Commission can require the LEC to refund to customers an amount that is ''just and reasonable under the circumstances.''53 Finally, Chapter 30 itself links ''just and reasonable'' rates to a LEC's rates in its alternative form of regulation.54
Moreover, it is long standing precedent in Pennsylvania that quality of service is directly related to just and reasonable rates. We have determined, and the Pennsylvania courts have affirmed, that the quality of service provided by a public utility is not a neutral factor in determining the just and reasonable level of rates that may be charged. National Utilities Inc. v. Pa. PUC, 709 A. 2d 972 (Pa. Cmwlth. 1998); 66 Pa.C.S § 523(a); Pa. P.U.C v. Aqua Pennsylvania, Inc., 2004 Pa. PUC LEXIS 39; 236 P.U.R.4th 218 (Order entered August 5, 2004); Policy Statement on Acquisitions of Water and Wastewater Systems, Docket Nos. M-00051926, P-00052155 (Order entered December 5, 2005).55 Service outage reports bear on service quality and, for that reason, are critical to the Commission to ensure that LECs are charging just and reasonable rates as required by Chapter 30.56
For these reasons, the Commission finds that there is an adequate nexus between service outage reports and whether rates are in compliance with Chapter 30 to satisfy the requirements at section 3015(f)(1)(i). Indeed, we find that there is a direct and fundamental nexus between the service quality information in this report and the justness and reasonableness of a LEC's rates, and that Chapter 30 does not de-couple the long-standing link between service quality and regulated rates.
Further, we find that the benefits of the service outage report substantially outweigh the attendant expense and administrative time and effort of the LEC to prepare the report, and therefore, satisfy the requirements at section 3015(f)(1)(ii). In our view, the benefits of the service outage reporting requirement are numerous. First, this reporting requirement informs the Commission of significant outages in order that utilities, public officials and Commission personnel can quickly and adequately respond to the service interruption. Second, this reporting requirement is necessary to ensure that the Commission is meeting its statutory obligations of requiring utilities to provide reasonable, continuous service and of reviewing and revising its safety, adequacy, and reliability of service standards as prescribed in Chapter 30.57 Third, the Commission finds that the service outage information from utilities is necessary so that they can explain the circumstances surrounding a significant outage ensuring that the Commission has adequate information to determine whether enforcement action is warranted under section 1501 of the Public Utility Code.58 Accordingly, we determine that the benefits of having service outage information as prescribed by section 67.1 of our regulations are numerous and this reporting requirement is necessary for the Commission to fulfill its statutory duties as set forth in Chapter 30 and Title 66.
Regarding the LECs' attendant expense and administrative time and effort to prepare the service outage report, PTA did not fully address this requirement in their comments. Instead, PTA's member companies agreed to supply service outage information verbally and in writing to the Commission as prescribed in section 67.1 of our regulations.59 While we appreciate PTA's willingness to reach agreement on this report requirement, we view their compromise as simply requiring the same information as stated in our regulation. Therefore, we find that PTA has not demonstrated that the service outage reporting requirement, required on a per incident basis, is too expensive, time-consuming or burdensome.
Also, we are persuaded by OCA's comments that the standardized form of the report on service outages is of minimal burden to LECs. In addition, we point out that service outage reports are on a per occurrence basis and are not filed on a quarterly or annual basis. Based on the comments submitted at this docket, we determine that the attendant expense and administrative time and effort to prepare the service outage reports does not outweigh the benefit of the Commission having the necessary information about significant outages that affect service quality and the rates for that service.
Accordingly, we find that the service outage reporting requirement meets the standards prescribed in section 3015(f)(1) and, therefore, direct that this reporting requirement be maintained.
3. Accident Reports
Accident reports, as required by the Commission's regulations at section 63.11 and section 1508 of Title 66,60 require all public utilities, including LECs, to file reports following an accident resulting in the death of a person or an occurrence of an unusual nature. The purpose of the report is to have information provided to the Commission so that it can monitor serious accidents involving facilities or operations of all public utilities.61 At the time of the LB & FC report, the PTA indicated that accident reports are only required on a per incident basis and stated that no changes in this reporting requirement are necessary.62
In the Tentative Order, the Commission requested that interested participants comment on whether accident reports are necessary for the Commission to ensure that the rates charged by LECs are in compliance with Chapter 30 and are in accordance with the LECs' current alternative forms of regulation. In particular, the Commission sought input on whether there is a relationship between the level of rates and the frequency and severity of accidents given that Chapter 30 requires that all rates shall be just and reasonable. In addition, the Commission requested comments addressing the expense and administrative time and effort involved in the preparation of the individual reports and the benefits of the report in relation to the Commission's duties under Title 66. Further, the Commission sought input on the frequency of accident reports filed by individual LECs in prior years as well as whether this reporting requirement could be streamlined and submitted to the Commission electronically.
In their comments, Representatives Bunt and Adolph also address accident reports in the same manner as service outage reports. The legislators state that they are unclear how accident reports documenting a previously occurred incident assists the Commission in responding to emergency situations. In addition, the Representatives question how accident reports provide information to assist the Commission in maintaining overall safe and reliable utility services.63
PTA comments that there is no reasonable connection between whether an ILEC is charging rates in compliance with Chapter 30 or its alternative regulation plan and the number or severity of accidents suffered by a LEC.64 However, the PTA member companies have agreed to voluntarily inform the Commission in writing of an accident which meets the requirements of the Commission regulations at section 63.11.
In addition, OCA comments that the Commission may require accident reports under both sections 3015(f) and 3019(b). OCA submits that accident reports clearly relate to the Commission's duty to assure that utilities provide safe, adequate and reliable telephone service to the public and are consistent with the Commission's obligations under section 1501 of the Public Utility Code.65 OCA also submits that section 3019(b) adds to the powers of section 3015(f) of the statute in providing the Commission the authority to review and revise service quality regulations. In doing so, OCA contends that it would be unreasonable for the Commission to be able to establish rules governing these aspects of telephone utility services but could not enforce those same regulations through a reporting mechanism.66
Further, regarding section 3015(f)(1)(ii), OCA contends that the risks to public safety far outweigh the expense and administrative time and effort involved in notifying the Commission of an accident resulting in serous injury or death.67 OCA also submits that the assertion that making a telephone call to alert the Commission of a utility's services or facilities having been involved in a death or serious injury to an employee or the public represents too much of a burden on a telephone utility is patently unreasonable. OCA also points out that the information required by section 63.11 of the Commission's regulations is provided in a two page format on a very limited frequency.68 OCA further comments that PTA indicated, at the time of the LB & FC Report, that accident reports are only required on a per incident basis and no changes to the reporting requirement are necessary.69
Based upon our review of the comments in this docket and section 3015(f) of Chapter 30, we find that accident reports do not meet the exceptions set forth in section 3015(f)(1). Upon further analysis, we are persuaded by Representative Bunt and Adolph's comments as well as PTAs' that accident reports do not have a direct nexus to the rates charged by LECs in accordance with Chapter 30 and their alternative forms of regulation sufficient to satisfy section 3015(f)(1)(i). However, we note that, if a serious or fatal accident occurs that results in a significant service outage, in that event, the service outage report would capture the incident, bear directly on service quality, and therefore be reported to the Commission. As such, any potential nexus between the information in an accident report is at least one-step removed from the information that would appear in a service quality report even if the accident caused a significant service outage. Under these circumstances, there is no adequate nexus relating to whether rates are just and reasonable.
Although we are persuaded by OCA's comments that accident reports are not burdensome since they comprise only two standardized pages submitted on a per incident basis, we shall decline to require accident reports from telephone companies since any accident that substantially affects service quality will be reported separately pursuant to section 67.1. While we appreciate PTA's willingness to reach agreement on this reporting requirement by agreeing to voluntarily submit accident reports, we determine, at this time, that this reporting requirement is no longer necessary for telecommunications companies.
In addition, we find that our obligation under section 1508 of Title 66 to require telephone utilities to report accidents involving death or serious injury to a person has been removed by the enactment of Chapter 30. Section 1971 of the rules of statutory construction provides that, if two statutes are irreconcilable, the statute latest in date of enactment prevails.70 Accordingly, we find that accident reports for telephone utilities are no longer required under Chapter 30 or section 1508 of the Public Utility Code.
Therefore, we direct staff to eliminate this reporting requirement, for telecommunications carriers only, through the proposed rulemaking proceeding at Docket No. L-00050176, in accordance with the discussion herein.
Based on our review of the comments submitted in this docket and of Chapter 30, the Commission directs the continuation of the annual Lifeline tracking reports and service outage reports currently required. At the same time, the Commission eliminates the accident report requirement for telecommunications companies only in accordance with Chapter 30,
Therefore:
It Is Ordered That:
1. In accordance with Chapter 30, the Lifeline tracking report as required by Docket No. P-00991648 and Service Outage reports, per occurrence, as required by 52 Pa. Code § 67.1, shall remain in place.
2. In accordance with the discussion in this Order, the Bureau of Consumer Services shall review and develop a streamlined version of the Lifeline tracking report, as appropriate, and shall establish a process to file these reports electronically with the Commission.
3. In accordance with Chapter 30, the Accident reports, per occurrence, as required by 52 Pa. Code § 63.11 and 66 Pa.C.S. § 1508 shall be eliminated for telecommunications companies only.
4. The elimination of accident reports for telecommunications carriers at section 63.11 of the Commission's regulations shall be included in the proposed rulemaking proceeding at Docket No. L-00050176.
5. A copy of this final order be served on all incumbent and competitive local exchange telecommunications carriers, the Office of Consumer Advocate, the Office of Small Business Advocate, and the Pennsylvania Telephone Association. Notice of this order shall be published in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary
Dissenting Statement of Commissioner Terrance J. Fitzpatrick
Public Meeting December 15, 2005; DEC-2005-L-0128*
Section 3015(f) Review Regarding the Lifeline Tracking Report, Accident Report and Service Outage Report; M-00051900 I respectfully dissent from the Majority's conclusion that it may continue to require local exchange carriers (LECs) to file lifeline tracking reports and service outage reports pursuant to 66 Pa.C.S. § 3015(f), despite the fact that the General Assembly left these two reports off the list of reports that are authorized under Section 3015(e).
First, I would conclude that in order to require a report not listed in Section 3015(e), the Commission must find that both of the standards set forth in Section 3015(f)(1) have been met--that the report is necessary to ensure that a LEC's rates are in compliance, and that the benefits of the report substantially outweigh the expense and effort of preparing it. While these two requirements are not joined by a conjunction--''and'' or ''or''--that would make the intention of the General Assembly plain, a conclusion that both requirements must be met is consistent with the legislative intent to restrict the authority of the Commission to impose reporting requirements. See, 1 Pa.C.S. § 1921(b) (If the words of a statute are ambiguous, the intention of the General Assembly may be ascertained by considering, among other things, the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained, and the consequences of a particular interpretation.)
Neither the lifeline tracking report nor the service outage report satisfy the requirement that the report is necessary to ensure that a LEC's rates are in compliance. With regard to the lifeline tracking report, an examination of that report makes clear that it is designed to track enrollment levels, not how rates are calculated. The mere fact that the Act defines ''lifeline service'' as a ''discounted rate'' offering (66 Pa.C.S. § 3012) does not change this conclusion since the report does not seek information as to whether any rate complies with applicable law.
Second, the argument that the service outage report may be required because quality of service is relevant to setting rates is unpersuasive. These reports seek information regarding isolated incidents rather than broad information that could be used to evaluate whether a utility is, in general, providing adequate service. Moreover, the Commission uses many tools to evaluate and improve service quality, but rate cuts are used very rarely. Since the nexus between these reports and a LEC's rates is remote, at best, the outage reports may not be required.
For these reasons, I respectfully dissent.
[Pa.B. Doc. No. 06-80. Filed for public inspection January 13, 2006, 9:00 a.m.] _______
1 66 Pa.C.S. § 3015(f)(1).
2 66 Pa.C.S. § 3015(f)(1).
3 Id.
4 66 Pa.C.S. §§ 3019(b)(2) and (3).
5 PUC Filing and Reporting Requirements on Local Exchange Carriers, Docket No. M-00041857 (Order entered April 15, 2005).
6 PUC Filing and Reporting Requirements on Local Exchange Carriers, Docket No. M-00041857 (Order entered October 5, 2005).
7 Section 3015(f) Review regarding the Lifeline Tracking Report, Accident Report and Service Outage Report, Docket No. M-00051900 (Order entered October 5, 2005).
8 66 Pa.C.S. § 3015(f)(1).
9 66 Pa.C.S. § 3015(f)(1).
10 Representatives Raymond Bunt, Jr. and William F. Adolph, Jr. October 24, 2005 Comments at 1-2.
11 Id. at 2.
12 Id.
13 PTA October 25, 2005 Comments at 3.
14 Id. at 4. In its comments, PTA includes legal precedent that forbids a court to add provisions which the legislature has omitted.
15 Id.
16 OCA October 25, 2005 Comments at 2.
17 Id.
18 Joint Petition of Nextlink PA, Inc., Senator Vincent J. Fumo, Senator Roger Madigan, Senator Mary Jo White, et al, for Adoption of Partial Settlement Resolving Telecommunications Issues, Docket Nos. P-00991648 and P-00991649 (Order entered February 21, 2003).
19 Verizon North Inc. and Verizon Pennsylvania Inc.
20 See Section 3015(f) Review regarding the Lifeline Tracking Report, Accident Report and Service Outage Report, Docket No. M-00051900 (Order entered October 5, 2005) at Appendix A.
21 Representatives Raymond Bunt, Jr. and William F. Adolph, Jr. October 24, 2005 Comments at 2.
22 Id.
23 Id.
24 PTA October 25, 2005 Comments at 7.
25 Id.
26 Id.
27 Id. at 9.
28 OCA October 25, 2005 Comments at 4. 66 Pa.C.S. § 3019(f).
29 OCA October 25, 2005 Comments at 5.
30 Id.at 6.
31 Id.at 8. Section 3012 defines Lifeline service as a discounted rate local service offering. 66 Pa.C.S. § 3012. In addition, section 3019(f) permits customers who subscribe to Lifeline service to subscribe to any number of other telecommunications services at the tariffed rates for such services. 66 Pa.C.S. § 3019(f)(2).
32 OCA October 25, 2005 Comments at 8.
33 Id.
34 Id.at 7.
35 Id. See also Section 3015(f) Review regarding the Lifeline Tracking Report, Accident Report and Service Outage Report, Docket No. M-00051900 (Order entered October 5, 2005) at Appendix A.
36 LB & FC Report at 17.
37 OCA October 25, 2005 Comments at 7-8. See also LB & FC Report at S-2 and 17.
38 Under the provisions of section 3019(f)(2), eligible Lifeline customers may now subscribe to any number of competitive services on a tariffed basis. 66 Pa.C.S. §§ 3019(f)(2).The opportunity to subscribe to additional competitive services by Lifeline customers clearly will impact both enrollment and disconnection in the Lifeline program. We note that Lifeline enrollment and disconnection data is currently required on the Lifeline tracking report.
39 LB & FC Report at 17. In this same report, the PTA advocated that no changes to this reporting requirement was needed at the time.
40 52 Pa. Code § 67.1.
41 LB & FC Report at 32.
42 Representatives Raymond Bunt, Jr. and William F. Adolph, Jr. October 24, 2005 Comments at 2.
43 Id.
44 PTA October 25, 2005 Comments at 7-8.
45 Id. at 9. Also, PTA indicated in the LB & FC Report that no changes to this reporting requirement should be made. LB & FC Report at 32.
46 OCA October 25, 2005 Comments at 9-10.
47 Id. at 13-14.
48 Id. at 14.
49 Id. at 18.
50 Id. at 18 and 20. 52 Pa. Code § 67.1.
51 66 Pa.C.S. §§ 3019(h), 1301.
52 66 Pa.C.S. §§ 1301, 3011--3019.
53 66 Pa.C.S. § 3015(a)(2).
54 54 66 Pa.C.S. § 3015(g).
55 In National Utilities Inc. v. Pa. PUC, 709 A. 2d 972 (Pa. Cmwlth. 1998), the Court held that the Fifth and Fourteenth Amendments to the U.S. Constitution are not violated when a public utility is denied an increase in rates when it fails to provide adequate service to the public, even if the result is a rate of return less than it would otherwise be entitled to receive. Because the evidence supports the PUC's finding that NUI provided inadequate service to its customers, its determination to refuse NUI's request to increase its rates which consequently may result in a reduced rate of return is not in violation of the United States Constitution.
56 66 Pa.C.S. § 3015(g).
57 66 Pa.C.S. § 1501, 3019(b)(2).
58 66 Pa.C.S. § 1501.
59 PTA October 25, 2005 Comments at 9, 52 Pa. Code § 67.1.
60 52 Pa. Code § 63.11 and 66 Pa.C.S. § 1508. Specifically, section 1508 provides that every public utility give immediate notice to the Commission of any accident in or about, or in connection with, the operation of its service and facilities, when a person has been killed or injured.
61 LB & FC Report at 28.
62 Id.
63 Representative Raymond Bunt, Jr. and William F. Adolph, Jr. October 24, 2005 Comments at 2.
64 PTA October 25, 2005 Comments at 8.
65 OCA October 25, 2005 Comments at 9 - 11. 66 Pa.C.S. § 1501.
66 OCA October 25, 2005 Comments at 13-14.
67 Id. at 18.
68 Id. at 18 and 20. 52 Pa. Code § 63.11.
69 Id. at 20. LB & FC Report at 28.
70 1 Pa.C.S. § 1971. Lewis v. School District of Philadelphia, 538 A.2d 862, 867-68 (1988).
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
