RULES AND REGULATIONS
Title 52--PUBLIC UTILITIES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[52 PA. CODE CHS. 63, 64, 71 AND 73]
[L-00050176]
PUC Filing and Reporting Requirements on Local Exchange Carriers
[36 Pa.B. 7558]
[Saturday, December 16, 2006]The Pennsylvania Public Utility Commission, on August 17, 2006, adopted a final rulemaking order which eliminates certain filing and reporting requirements for local exchange carriers (LEC).
Executive Summary
By Order entered on August 21, 2006, at Docket No. L-00050176, the Commission adopted a Final Rulemaking Order to amend §§ 63.11, 64.22, 64.23(a) and (b), 64.41, 64.201(a) and (b), 71.3(b), 73.3(a) and (b), 73.5(b), and 73.7(b). The purpose of the final-form rulemaking is to eliminate or modify the current language of the previously-mentioned regulations to reflect the Commission's action in its Proposed Rulemaking Order at Docket No. L-00050176 entered August 21, 2006, and its Final Implementation Order at PUC Filing and Reporting Requirements on Local Exchange Carriers at Docket No. M-00041857 entered October 5, 2005. At Docket No. M-00041857, the Commission determined that certain LECs reporting requirements should be maintained, streamlined or eliminated in accordance with the provisions of Chapter 30 and the submitted comments in the docket. In addition, the rescission of § 63.11 is in accordance with the Commission's action in its Final Order at Section 3015(f) Review Regarding the Lifeline Tracking Report, Accident Report and Service Outage Report at Docket No. M-00051900 entered December 30, 2005.
Under the current language of § 63.11, a public utility providing telecommunications service is required to file an accident report involving its facilities or operations resulting in injury or death to a person or public utility employee. The amendment to § 63.11 eliminates this regulation since this report can no longer be required in accordance with section 3015(e) and (f)(1) of the Public Utility Code.
Also, § 64.23 provides that LECs report instances of unauthorized charges and changes to customers' bills known as cramming and slamming. Section 64.41 also requires LECs to pay interest on customers' deposits and, subsequently, report the paid interest rate to the Commission. In addition, § 64.201(a) and (b) requires LECs to file residential account information reflecting billing and collection practices including customer disputes on a quarterly or annual basis depending upon the size of the LEC. In Chapter 64, the Commission is changing the regulations to require LECs to maintain instances of slamming and cramming but to eliminate the quarterly requirement to report the unauthorized activity to the Commission. Also, the Commission is modifying the interest rate to be paid on customers' deposits to reflect current practice by the telecommunications industry. In addition, the Commission is reducing the filing of residential account information to an annual reporting requirement for all LECs regardless of the number of residential accounts that the companies serve.
In Chapter 71, LECs with annual intraState gross revenues in excess of $10 million currently are required to file financial reports on an annual basis. The Commission is rescinding § 71.3(b) because Chapter 30 of Title 66 does not permit the filing of a separate financial earnings report of the type required by this regulation.
In Chapter 73, LECs are required to submit an annual depreciation report (§ 73.3) and a triennial service life study report (§ 73.5) and capital investment plan report (§ 73.7). The Commission is eliminating all of these filings because Chapter 30 of Title 66 does not permit the filing of a separate financial earnings report of the type required by this regulation.
On an administrative note, the Commission is correcting a ministerial oversight that occurred in 1998 in a prior Final Rulemaking Order regarding Chapter 64 Standards and Billing Practices for Residential Telephone Service at L-00960113. That order referenced the deletion of § 64.22(1); however, neither the ordering paragraphs nor Annex A included the deletion.
The order was published at 28 Pa.B. 3379 (July 18, 1998) and revised § 64.2. The order retained the elimination of interexchange carrier billing data as disputable subject matter under Chapter 64 provisions and stated that the final regulations will delete § 64.22(1) since the local exchange carriers will no longer be responsible for settling interexchange carrier related complaints. Although the definition of ''dispute'' was revised in the order, neither the ordering paragraphs nor the Annex A regulations attached to the order included the deletion. Therefore, to correct the oversight and to ensure the language is consistent between §§ 64.2 and 64.22, the Commission directed that § 64.22(1) be deleted to correct the administrative oversight in the prior rulemaking. Since the passage of the 1998 final rulemaking, the Commission noted this oversight and has taken steps to revise internal procedures accordingly, but has awaited this rulemaking opportunity to formally correct the text of the regulation.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 11, 2006, the Commission submitted a copy of the notice of proposed rulemaking, published at 36 Pa.B. 1897 (April 22, 2006), to IRRC and the Chairpersons of the House Committee on Consumer Affairs and the Senate Committee on Consumer Protection and Professional Licensure for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 1, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 2, 2006, and approved the final-form rulemaking.
Public Meeting held
August 17, 2006Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick, dissenting statements follow
Rulemaking re: PUC Filing and Reporting Requirements on Local Exchange Carriers; L-00050176
Final Rulemaking Order By the Commission:
On January 3, 2006, the Commission entered a Proposed Rulemaking Order to promulgate regulations to eliminate certain local exchange carrier (LEC) filing and reporting requirements in compliance with the new Chapter 301 and to amend existing regulations so as to require the filing of residential account information on an annual basis rather than on a quarterly basis as currently prescribed by 52 Pa. Code § 64.201(b). Annex A of the Order contained the proposed revised regulations.
The January 3, 2006 Order was published April 22, 2006 at 36 Pa.B. 1897. The Order established a 30-day comment period that closed on May 22, 2006.
On May 22, 2006, the Commission received written comments from the Pennsylvania Telephone Association (PTA). This Final Rulemaking Order discusses the comments and sets forth, in Annex A, the final regulations.
Discussion
As a preliminary matter, we note that it is well settled that we are not required to consider expressly or at length each contention or argument raised by the parties. Consolidated Rail Corporation v. Pa. P.U.C., 625 A. 2d 741 (Pa. Cmwlth. 1993); U. of Pa. v. Pa. P.U.C., 485 A.2d 1217 (Pa. Cmwlth. 1984). Accordingly, any issue raised by PTA that we do not specifically address has been duly considered and rejected and will not be further discussed. Further, ministerial edits that do not have a substantive effect have been included in the final form regulations without specific 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 LECs operating under an amended network modernization plan are limited to nine enumerated reports.
On April 15, 2005, in accordance with the newly-enacted Chapter 30, the Commission entered a Tentative Implementation Order2 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 Order3 on October 5, 2005, determining which LEC reporting requirements should be maintained, streamlined or eliminated. The order directed the Law Bureau to initiate a rulemaking proceeding to eliminate the following reports: Financial Earnings Report, Annual Depreciation Report, Interest on Deposits Report, Service Life Study Report, Capital Investment Plan Report, Residential Account Information on a quarterly basis, Quarterly Cramming Report, Quarterly Slamming Report, and Collocation Report. Also, in the Final Implementation Order, the Commission found that the Lifeline Tracking, the Accident, and the Service Outage Reports are not within the scope of reports listed in section 3015(e). Therefore, the Commission directed that a new proceeding (M-00051900) be opened to address the issue of whether these reports can meet the exception standard set forth in section 3015(f)(1).4
By Final Order entered on December 30, 2005, in the section 3015(f)(1) proceeding, the Commission determined that Accident Reports are no longer required because there is no adequate nexus relating to whether rates are just and reasonable as prescribed by Chapter 30 and Title 66. Accordingly, the Commission found that telecommunications companies do not have to file Accident Reports as required by § 63.11. The Commission found, however, that the Lifeline Tracking Reports and Service Outage Reports met the standards prescribed in section 3015(f) and therefore required the continuation of filing these reports. The Commission directed the Lifeline Tracking report be reviewed and a more streamlined version be developed as well as the establishment of a process to file these reports electronically.5
On January 3, 2006, the Commission issued a proposed rulemaking to promulgate regulations to eliminate certain LEC filing and reporting requirements. The January 3, 2006, Order was published on April 22, 2006 in the Pennsylvania Bulletin, 36 Pa.B. 1897 and established a 30-day comment period. On May 22, 2006, the PTA filed written comments. After reviewing the filed comments in the proposed rulemaking, the Commission proposes eliminating the following reports: Financial Earnings Report (52 Pa. Code § 71.3); Annual Depreciation Report (52 Pa. Code § 73.3); Accident Report (52 Pa. Code § 63.11); Service Life Study Report (52 Pa. Code § 73.5); Capital Investment Plan Report (52 Pa. Code § 73.7); Quarterly Cramming Report (52 Pa. Code § 64.23); Quarterly Slamming Report (52 Pa. Code § 64.23) and the Collocation Report.6 In addition, the Commission proposes to modify the Interest Rate on Deposits Report (52 Pa. Code § 64.41 and Order entered November 5, 1998 at P-00981357) so interest is calculated pursuant to the Loan Interest and Protection Law, 41 P. S. § 101, et seq. and to amend its regulations to require the filing of residential account information on an annual basis rather than on a quarterly basis as currently prescribed by 52 Pa. Code § 64.201(b).
On May 22, 2006, PTA filed Comments stating that the proposed rulemaking does not address in a comprehensive way the entire issue of limiting LEC filing and reporting due to the bifurcation of the reporting issue into: (1) the Interim and Final Orders at this docket (L-00050176) and (2) the continuation, at other dockets, of the Lifeline Tracking Report, Accident Report and Service Outage Report at M-000519007 and the Standard Service Surveillance Level Report at P-00021985.8 PTA contends that these reports should be omitted because the reports are not specifically listed as any of the required reports in section 3015(e) of Act 183, that none of these reports are necessary to ensure the LEC is charging rates that are compliant with the statute and its Chapter 30 Plan, and that the benefits of the reports do not outweigh the expense of producing them. In addition, PTA does not agree that service quality issues have rate implications.
As noted earlier, the Commission addressed the Lifeline Tracking, Accident and Service Outage Reports in separate orders at M-00051900. After issuing a Tentative Order and soliciting comments, the Commission issued a Final Order on December 30, 2005, in which we found that the Lifeline Tracking and Service Outage Reports met the prescribed standards in section 3015(f)(1) and should continue. The Commission found, among other things, that the Lifeline Tracking report was necessary to ensure that the LECs providing Lifeline service are charging rates in compliance with Chapter 30 and 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.
Regarding the Service Outage Report, the Commission also found that the report satisfied the exceptions in section 3015(f)(1)(i) and (ii). Specifically, the Commission found that the Service Outage Report was necessary to ensure that the LECs are charging just and reasonable rates in compliance with Chapter 30. The Commission noted that it is long standing precedent in Pennsylvania that quality of service is directly related to just and reasonable rates. Since Service Outage Reports bear on service quality, they are crucial to ensuring that the rates the LECs are charging are just and reasonable. In addition, the Commission found that the benefits of Service Outage Reports outweigh the expense and time and effort to prepare the report by the LEC.
After reviewing the comments, however, the Commission found that Accident reports did not meet the exceptions in section 3015(f)(1). The reports did not have direct nexus to the rates charged by LECs in accordance with Chapter 30 and the alternative forms of regulation sufficient to satisfy the exceptions set forth in section 3015(f)(1)(i). Therefore, the Commission decided to eliminate the Accident Report.
PTA's comments on these reports are outside the scope of this rulemaking. The Commission bifurcated the process and has rendered a decision on the issue of the Lifeline Tracking, Service Outage, and Accident Reports in its December 30, 2006, Order.
None of the commenting parties to that separate proceeding appealed the Commission's decision. Therefore, the Commission's Final Order stands.
The Commission did not receive any other comments to the proposed rulemaking. Thus, the Commission's regulations should be amended in accordance with Annex A attached. The amendments include eliminating the financial (earnings) report, the annual depreciation report, the capital investment plan report, service life study report, the quarterly cramming reports, the quarterly slamming reports, and the accident reports. In addition, the regulations will be updated to incorporate the interest rate for customer deposits as set forth in Chapter 149 and to amend the language to require the filing of residential account information on an annual basis rather than on a quarterly basis as currently prescribed by 52 Pa. Code § 64.201(b).
On an administrative note, the Commission would like to correct a ministerial oversight that occurred in 1998 in a prior Final Rulemaking Order regarding Chapter 64 Standards and Billing Practices for Residential Telephone Service at L-00960113. The Final Rulemaking Order there referenced the deletion of § 64.22(1); however, neither the ordering paragraphs nor Annex A included the deletion of § 64.22(1).
The Order was published July 18, 1998 at 28 Pa. B. 3379. The Order contained the following discussion explaining the revision of § 64.2, Definition of Dispute:
Accordingly, the final version of the definition of ''dispute'' will retain the elimination of IXC billing data as disputable subject matter under the chapter 64 provisions. Given this change in the definition of ''dispute,'' the final regulations will delete § 64.22(1) since the LECs will no longer be responsible for settling IXC-related complaints.Although the definition of ''dispute'' was revised as set forth above in the Order, the Annex A regulations attached to the Order did not include the deletion. Therefore, to correct the oversight and to ensure the language is consistent between §§ 64.2 and 64.22, the Commission hereby directs that § 64.22(1) be deleted to correct the administrative oversight in the prior rulemaking. Since the passage of the 1998 final rulemaking, the Commission noted this oversight and has taken steps to revise internal procedures accordingly, but has awaited this opportunity to formally correct the text of the regulation.
Conclusion
Accordingly, under sections 501 and 1501 of the Public Utility Code (66 Pa.C.S. §§ 501 and 1501); sections 201 and 202 of the act of July 31, 1968 (P. L. 769 No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1, 7.2 and 7.5; section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732.204(b)); section 745.5 of the Regulatory Review Act (71 P. S. § 745.5); and section 612 of The Administrative Code of 1929 (71 P. S. § 232), and the regulations promulgated thereunder at 4 Pa. Code §§ 7.231--7.235, we find that the regulations amending the general rules, procedures, and standards to eliminate certain reports and other amendments as set forth in Annex A should be approved; Therefore,
It Is Ordered That:
1. The regulations of the Commission, 52 Pa. Code Chapters 63, 64, 71 and 73, are amended by amending §§ 64.23, 64.41, 64.201, 71.3, 73.5 and 73.7 to read as set forth at 36 Pa.B. 1897; and by deleting § 63.11 and by amending §§ 64.22 and 73.3 to read as set forth in Annex A.
(Editor's Note: The amendment of § 64.22 was not included in the proposed rulemaking published at 36 Pa.B. 1897.)
2. The Secretary shall certify this order, 36 Pa.B. 1897 and Annex A and deposit them with the Legislative Bureau for publication in the Pennsylvania Bulletin.
3. The Secretary shall submit this order, 36 Pa.B. 1897 and Annex A to the Office of Attorney General for approval as to legality.
4. The Secretary shall submit this order, 36 Pa.B. 1897 and Annex A to the Governor's Budget Office for review of fiscal impact.
5. The Secretary shall submit this order, 36 Pa.B. 1897 and Annex A for review by the designated standing committees of both houses of the General Assembly, and for review and approval by the Independent Regulatory Review Commission.
6. A copy of this order, 36 Pa.B. 1897 and Annex A shall be served upon the Pennsylvania Telephone Association, the Office of Consumer Advocate, the Small Business Advocate and active parties to this proceeding.
7. The final regulations become effective upon publication in the Pennsylvania Bulletin.
8. The contact person for this rulemaking is Kimberly Hafner, Assistant Counsel, Law Bureau, (717) 787-5000. Alternate formats of this document are available to person with disabilities and may be obtained by contacting Sherri Delbiondo, Regulatory Coordinator, Law Bureau, (717) 772-4597.
JAMES J. MCNULTY,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 7082 (November 18, 2006).)
Fiscal Note: Fiscal Note 57-247 remains valid for the final adoption of the subject regulations.
Dissenting Statements of Commissioner Terrance J. Fitzpatrick
Section 3015(f) Review Regarding the Lifeline Tracking Report, Accident Report and Service Outage Report; Public Meeting December 15, 2005; DEC-2005-L-0128*; 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 the above reasons, I respectfully dissent.
Final Rulemaking Order Regarding PUC Filing
and Reporting Requirements of Local Exchange Carriers; Public Meeting August 17, 2006; AUG-2006-L-0053*; L-00050176This matter involves a Final Rulemaking Order regarding filing and reporting requirements for Local Exchange Carriers. This Rulemaking Order eliminates certain reporting requirements in compliance with the new Chapter 30 Law, 66 Pa.C.S. §§ 3011--3019. For the following reasons, I respectfully dissent.
First, I agree with the elimination of the reports specified in the Rulemaking Order. However, consistent with my Dissenting Statement in a related docket,10 I also believe that Lifeline Tracking Reports and Service Outage Reports should be eliminated. Accordingly, in my view, the list of reports to be eliminated by this Rulemaking is incomplete.
Second, I disagree with the implication on page 6 of the Rulemaking Order that the Commission's earlier Order (which determined that the Lifeline Tracking Report and Service Outage Report may continue to be required) is binding because it has not been appealed. In my view, this Order was unappealable because it was not an ''adjudication.'' The Order was similar to the Commission's ''Implementation Orders'' in which it announced how it would interpret Chapter 14 of the Public Utility Code. The Commission has determined that these Implementation Orders constituted statements of policy rather than adjudications;11 therefore, such orders were unappealable.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart C. FIXED SERVICE UTILITIES
CHAPTER 63. TELEPHONE SERVICE
Subchapter B. SERVICES AND FACILITIES § 63.11. (Reserved).
CHAPTER 64. STANDARDS AND BILLING PRACTICES FOR RESIDENTIAL TELEPHONE SERVICE
Subchapter B. PAYMENT AND BILLING STANDARDS § 64.22. Billing service for interexchange carriers.
A LEC may provide billing services for interexchange carriers when the LEC applies its deposit rules.
CHAPTER 73. ANNUAL DEPRECIATION REPORTS, SERVICE LIFE STUDIES AND CAPITAL INVESTMENT PLANS § 73.3. Annual depreciation reports.
(a) A public utility providing electric service, gas service or water service which has gross intraState revenues in excess of $20 million per year, except telecommunications interexchange carriers and gas and petroleum transportation pipeline companies, shall file an annual depreciation report with the Bureau of Fixed Utility Services under this chapter.
(b) The due dates for the annual depreciation report are as follows:
(1) Electric, water and gas public utilities reports are due on or before June 30.
(2) When a public utility is also required to file a service life study report in the same year, the public utility shall notify the Secretary in writing, on or before the date its annual depreciation report would be due, stating that both the service life study and the annual depreciation report will be filed on or before August 31.
(3) When a public utility is required to file a depreciation report in response to a Commission Order, the report shall be prepared consistent with formats and filing deadlines specified in this chapter.
(c) The public utility shall file a copy of its annual depreciation report required by this chapter with the Office of Consumer Advocate and the Office of Small Business Advocate at the same time that it files the report with the Office of Special Assistants.
[Pa.B. Doc. No. 06-2449. Filed for public inspection December 15, 2006, 9:00 a.m.] _______
1 66 Pa.C.S. §§ 3011--3019.
2 PUC Filing and Reporting Requirements on Local Exchange Carriers, M-00041857 (Order entered April 15, 2005).
3 PUC Filing and Reporting Requirements on Local Exchange Carriers, M-00041857 (Order entered October 5, 2005).
4 Section 3015(f) Review regarding the Lifeline Tracking Report, Accident Report and Service Outage Report, M-00051900 (Order entered October 5, 2005).
5 Section 3015(f) Review regarding the Lifeline Tracking Report, Accident Report and Service Outage Report, M-00051900 (Order entered December 30, 2005).
6 Presently, the collocation report requires ILECs or CLECs that collocate switches in Verizon Pennsylvania Inc.'s central offices to report such activity in accordance with the Commission's September 4, 2001 Order. Bell-Atlantic Supplement to Pa. P.U.C. No. 216 and Pa. P.U.C. No. 218 to become effective July 27, 1999 regarding the FCC's New Requirements on Incumbent Local Exchange Carriers for the Provision of Collocation Service used for Exchange Access and Mandated Compliance via State Tariffs, SGATS and/or Individual Interconnection Agreements, R-00994697 (Order entered September 4, 2001). On February 14, 2005, the Commission eliminated this reporting requirement through a Secretarial Letter to all ILECs and CLECs. In the Final Implementation Order, we affirmed our determination concerning collocation reports and concluded that no further action is necessary. Since there is no current regulation concerning this reporting requirement, the elimination of this reporting requirement is in accordance with section 703(g) of Title 66 as discussed in our Tentative and Final Implementation Orders at M-00041857.
7 Section 3015(f) Review regarding the Lifeline Tracking Report, Accident Report and Service Outage Report, M-00051900 (Order entered December 30, 2005).
8 Petition of the Office of Consumer Advocate for a Rulemaking to Amend 52 Pa. Code Chapter 63 (relating to Telephone Service), P-00021985 (Order entered February 13, 2006).
9 66 Pa.C.S. § 1404(c)(6).
10 Section 3015(f) Review Regarding the Lifeline Tracking Report, Accident Report, and Service Outage Report, Dkt. No. M-00051900, Dissenting Statement dated December 15, 2005.
11 Chapter 14, Implementation, Dkt. No. M-00041802 F0002, Declaratory Order entered November 21, 2005.
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