NOTICES

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Proposed Modifications to the Application Form for Approval of Authority to Offer, Render, Furnish or Supply Telecommunications Services to the Public in the Commonwealth of Pennsylvania; M-00960799

[37 Pa.B. 486]
[Saturday, January 27, 2007]

Public Meeting held
December 21, 2006

Commissioners Present:  Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson, statement and directed questions follow; Kim Pizzingrilli; Terrance J. Fitzpatrick

Tentative Order

By the Commission:

   Before the Commission for consideration is a staff recommendation to revise the application filed by new entrants seeking certification to provide telecommunications services in the Commonwealth. On June 3, 1996, the Commission entered an Order (Implementation Order) at Docket No. M-00960799 implementing provisions of the Telecommunications Act of 1996 (TA-96) in Pennsylvania. Included in the Implementation Order were specific procedures and requirements for the entry of new telecommunications carriers in the state. Part of that procedure was an application form for new entrants to file with the Commission. Subsequently, on September 9, 1996, the Commission entered an Order on Reconsideration, which, inter alia, modified the application in the Implementation Order to include additional information.

   A considerable amount of technological and legal changes have taken place in the ten-year period since the Commission implemented those provisions of federal law relating to the Application. The Bureau of Fixed Utility Services (FUS) staff recommends revision of the Application content and format.

   We agree that the Commission should consider revisions to our Application. By this order, the Commission seeks comments on the Staff draft revised Application Form for Approval of Authority to Offer, Render, Furnish or Supply Telecommunications Services to the Public in the Commonwealth of Pennsylvania (Application Form).

   By this Order, we are establishing a 60-day comment period and a 30-day reply comment period dating form publication in the Pennsylvania Bulletin. The Law Bureau, Bureau of Fixed Utility Services, and Office of Special Assistants are instructed to prepare a final recommendation following review of the Comments and Reply Comments.

DISCUSSION

   Our Implementation Orders prescribed entry procedures that we believed would achieve a balance between the Telecom Act's Section 253(a) prohibition against entry barriers¹ while still safeguarding consumers from potential predatory and illegal practices by irresponsible carriers.² We stated in the Implementation Order that:

New entrants seeking to commence the provision of intrastate service in Pennsylvania will file an application with the Commission following the form of the application attached as Appendix A to this order. The form of application contains information required by the Commission to monitor the carrier's activities on an ongoing basis. The form of application includes a fitness affidavit in which the carrier must swear and affirm its ability and commitment to providing the proposed services in full compliance with all provisions of Pennsylvania law.

(Implementation Order at 7)

   The new entrant application requested the necessary information to fulfill the above responsibility. The information included a contact person for the application, applicant's attorney, customer complaint contact, proof of compliance with Department of State filing requirements, a listing of affiliates and/or predecessors doing business in Pennsylvania and whether they are public utilities, the applicant's present and proposed operations, proposed service area, financial information (which included the applicant's capitalization, corporate stock structure, a tentative operating balance sheet, and a projected income statement), operations start date, and an affidavit and verification attesting to the validity of the applicant information.

   Since the approval of the original application, circumstances have occurred that warrant a revision of the application. Additionally, Commission staff review of the Application Form's current format has also shown a need for a revision of the application.

   Act 183,³ enacted in November 2004, provides Interexchange Carriers (IXCs) with three options regarding tariffs: 1) file and maintain tariffs with the Commission, 2) file and maintain price lists with the Commission, or 3) detariff, making it subject to Pennsylvania state contract law. The Application Form was subsequently revised to provide the IXC applicant with an opportunity to select its desired tariffing option.

   The original application requested all applicants, whether seeking Competitive Local Exchange Carrier (CLEC), Competitive Access Provider (CAP) or IXC authority, to designate its proposed service territory. IXC authority and CAP authority are issued on a statewide basis. CLEC authority is granted on an Incumbent Local Exchange Carrier service-territory-specific basis. The Application Form was revised to only request that the proposed service territory be designated by a CLEC, not applicants seeking other types of authority.

   The original application failed to require an Applicant to designate a Pennsylvania Emergency Management Agency (PEMA) contact. The Application Form now contains this requirement. The affidavit in the Application Form has also been revised to include language certifying that the applicant has contacted each county 911 coordinator where the applicant proposes to operate. This provision only applies to CLECs and is designated as such in the proposed revised application.

   Finally, the format of the Application Form has been revised regarding the ordering of questions. Staff has renumbered and changed the order of the requested information to facilitate the ease of review by FUS staff.

Conclusion

   To assist us with revising the Application Form, we are hereby requesting comments, as well as reply comments, on the proposed revised Application Form, contained in Attachment A to this Tentative Order. We request comments from interested parties, including telecommunications carriers, the general public, and the statutory advocates; Therefore,

   It is Ordered That:

   1.  This Tentative Order be published in the Pennsylvania Bulletin and a copy be served on all jurisdictional Local Exchange Carriers, Interexchange Carriers, and Competitive Access Providers operating in the Commonwealth, the Pennsylvania Emergency Management Agency, the Office of Consumer Advocate, the Office of Small Business Advocate, and the Attorney General.

   2.  An original and eight copies of comments regarding the proposed revised Application Form for Approval of Authority to Offer, Render, Furnish or Supply Telecommunications Services to the Public in the Commonwealth of Pennsylvania shall be filed within 60 days from the date of publication in the Pennsylvania Bulletin. Reply comments shall be due within 90 days of publication in the Pennsylvania Bulletin. Comments should be addressed to Secretary James J. McNulty, PA Public Utility Commission, P. O. Box 3265, Harrisburg, PA 17105-3265.

   3.  An electronic copy of the comments should also be sent in Word format to Tony Rametta, Bureau of Fixed Utility Services, at arametta@state.pa.us, Robert Marinko, Office of Special Assistants, at rmarinko@ state.pa.us, Joseph Witmer, Law Bureau, at joswitmer@ state.pa.us, and Louise Fink Smith, Law Bureau, at finksmith@state.pa.us.

   4.  Staff shall prepare a joint recommendation following review of the Comments and Reply Comments.

JAMES J. MCNULTY,   
Secretary

ATTACHMENT A
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement and Directed Questions of Vice Chairperson James H. Cawley

Public Meeting: December 21, 2006; DEC-2006-FUS-0439*

Proposed Modifications to the Application Form for Approval of Authority to Offer, Render, Furnish or Supply Telecommunications Services to the Public in the Commonwealth of Pennsylvania; Doc. No. M-00960799

In Re:  Implementation of the Telecommunications
Act of 1996

   Before us is the Staff recommendation that solicits comments on the proposed modifications to the Application Form (PUC-377) and related instructions that are used by telecommunications carriers for market entry and certification purposes within Pennsylvania. Although I agree with the overall thrust of the Staff recommendation, I believe that it is imperative to solicit public comment to clarify certain issues.

   Our procedures for adjudicating certification applications from telecommunications carriers seeking to offer intrastate services to the public within Pennsylvania date back to our Implementation of the Telecommunications Act of 1996 Orders (Implementation Orders).⁴ Although the Implementation Orders have served this Commission and the regulated telecommunications industry for more than ten years for the introduction and enhancement of competitive telecommunications services within the Commonwealth, the market-entry process of telecommunications competitors in Pennsylvania has not been without problems, and, in certain situations, it has taken place only after much delay and litigation costs. This Commission should always work to simplify its regulatory processes and procedures, while striving to protect the legitimate interests and the public safety and welfare of end-user consumers of intrastate telecommunications services. The continuously changing nature of telecommunications technologies, services, and industry structures always present us with new challenges on how to effectively and efficiently reconcile these goals.

   For this purpose, I request that the parties who respond to this Tentative Order submit comments and responses to the Directed Questions in the following areas:

A.  CLEC Provisional Operating Authority and Related Procedures

   I encourage the commenting parties to address the Commission's processes and procedures relating to the grant of provisional operating authority (provisional authority) for competitive local exchange carriers (CLECs) seeking to enter the service areas of non-rural incumbent local exchange carriers (ILECs). Of particular interest are the following areas:

   1.  Sufficiency of Interim Tariffs Filed With Application: Under the current system, a grant of provisional operating authority allows an applicant CLEC to offer services under the terms and conditions of its Interim Tariff that accompanies its certification Application while this Application is pending before the Commission. The comments should address to what extent the Interim Tariff should be perfected in accordance with the existing Implementation Orders and existing Commission regulations so that end-user consumers enjoy requisite regulatory protections, including those that involve basic health and safety protection requirements, e.g., availability of 911/E911 calling capabilities for end-user consumers and appropriate CLEC coordination with 911/E911 Administrators. Similarly, the parties should address what type of continuing imperfections in an Interim Tariff can constitute valid grounds for the revocation of provisional operational authority.

   2.  Revocation and Restoration of Provisional Operational Authority: The Commission and its Staff have utilized the issuance of Secretarial Letters in circumstances that involved the revocation and subsequent restoration of provisional authority. The comments should address whether this procedure is compatible with the Implementation Orders, affords to interested applicant CLECs requisite due process protections, or whether this procedure is unduly burdensome and should be discontinued. Assuming that the revocation and restoration of provisional authority is a necessary practice that should stay in place, address whether the Commission and its Staff should establish transparent and publicly available guidelines under which the revocation and subsequent restoration of provisional authority should be evaluated. All comments supporting abandonment or revisions to the existing procedures should provide concrete and pragmatic alternatives to the current process.

B.  Adjudication of Protested Applications

   The litigation of protested competitive telecommunications carrier applications that seek to offer services in the service areas of ILECs, and specifically in the service areas of rural ILECs, is a very lengthy process. In addition, once the Commission reaches a decision on the market-entry applications of competitive telecommunications carriers, the same entities may also be obliged to engage in additional litigated interconnection arbitration proceedings if they do not reach a negotiated interconnection agreement with one or more ILECs. I encourage the submission of comments in the following areas:

   1.  Consolidated Procedures: Address whether the Commission should revisit and revise the Consolidated Procedures for market entry and interconnection of competitive telecommunications carriers in the service areas of rural ILECs that are contained in the original Implementation Orders and in what manner.⁵

   2.  Procedural Time Limitations: Address whether the Commission, absent the agreement of the interested parties to the contrary in individual protested application adjudications, should impose time limitations for the issuance of Initial or Recommended Decisions, and, if so, what these time limitations should be.

C.  CLEC Classification

   The proposed modified Application Form introduces the classification of the Competitive Local Exchange Carrier Limited to Data Services (CLEC-Data). See generally Proposed PUC-377, ¶¶ 4, 9.B, at. 2, 4. This classification essentially codifies past practice of the Commission where CLEC-Data entities have been certified by the Commission. The same practice of the Commission has relieved in the past CLEC-Data entities from certain conventional voice telephony regulatory obligations and tariff requirements, including those relating to the processing of 911/E911 emergency calls.⁶ In view of the continuous advances in telecommunications technologies and offered services that appear to blur the boundaries between ''conventional'' landline CLECs and CLEC-Data entities, I encourage the submission of comments in the following areas:

   1.  Classification of CLECs and CLEC-Data Entities: Address whether the proposed CLEC and CLEC-Data classification serves and can continue to serve in the foreseeable future a material need for distinguishing between applicant CLECs. Also address whether such classification is sustainable where CLECs are increasingly utilizing networks and technologies for the provision of voice and data services other than the conventional circuit switched technologies.

   2.  CLEC-Data Entities' Obligations: Address whether the proposed CLEC-Data classification should be accompanied by a presumptive relief from certain regulatory obligations that relate to the provision of voice telecommunications services, including but not limited to the availability of 911/E911 call processing capabilities.

   3.  Retail and Wholesale CLEC Classification: In view of the Commission's recent decisions regarding Sprint Communications Company L.P. (Sprint) and Core Communications, Inc. (Core),⁷ should the Commission establish a Retail CLEC and a Wholesale CLEC classification rather than focusing on a CLEC and CLEC-Data classification? The parties should also address what provisions of the Public Utility Code and federal law, including TA-96, and recent FCC decisions on 911/E911 and CALEA (Communications Assistance to Law Enforcement Agencies) support their respective positions.

   It is my hope that informative comments will be submitted by interested parties in response to these directed questions, and that these comments will be of use in our deliberations on the proposed modified Application Form. In advance, my sincere thanks to those parties who respond to these questions.

[Pa.B. Doc. No. 07-143. Filed for public inspection January 26, 2007, 9:00 a.m.]

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¹  Section 253(a) of the Telecom Act states that ''No state or local statute or regulation, or other state or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.''

²  Section 253(b) of the Telecom Act states that ''Nothing in this section shall affect the ability of a state to impose, on a competitively neutral basis and consistent with Section 254, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services and safeguard the rights of consumers.''

³  66 Pa.C.S. §§ 3011--3019.

⁴  In Re: Implementation of the Telecommunications Act of 1996, Order entered June 3, 1996, Order on Reconsideration entered September 9, 1996.

⁵  Order of June 3, 1996, at 16-17, Reconsideration Order of September 9, 1996 at 12-13.

⁶  See generally Letter-Petition of BlueStar Networks, Inc. for Waiver of Certain Tariff Requirements Pertaining to Voice-grade Service, Docket Nos. A-310862, A-310862F0002 et al., Order entered August 17, 2000, Interim Order adopted March 30, 2000, 30 Pa.B. 2436 (May 13, 2000).

⁷  Application of Sprint Communications Company L.P. For Approval of the Right to Offer, Render, Furnish or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the Public in the Service Territories of Alltel Pennsylvania, Inc., Commonwealth Telephone Company and Palmerton Telephone Company, Docket Nos. A-310183F0002AMA, A-310183F0002AMB, A-310183F0002AMC, Order entered December 1, 2006, Application of Core Communications, Inc. for Authority to amend its existing Certificate of Public Convenience and necessity and to expand Core's Pennsylvania operations to include the Provision of competitive residential and business Local exchange telecommunications services throughout the Commonwealth of Pennsylvania, Docket Nos. A-310922F0002AmA, A-310922F0002AmB, Order entered December 4, 2006.

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