NOTICES
PENNSYLVANIA PUBLIC
UTILITY COMMISSION
Application of Service Electric Cable T.V., Inc. for Approval to Offer, Render, Furnish or Supply Telecommunications Services to the Public as a Competitive Local Exchange Carrier in the Service Territories of all Thirty-Five Incumbent Local Exchange Carriers within the Commonwealth of Pennsylvania
[51 Pa.B. 7823]
[Saturday, December 11, 2021]Public Meeting held
November 18, 2021Commissioners Present: Gladys Brown Dutrieuille, Chairperson, Statement, concurring in result only; John F. Coleman, Jr., Vice Chairperson; Ralph V. Yanora
Application of Service Electric Cable T.V., Inc. for Approval to Offer, Render, Furnish or Supply Telecommunications Services to the Public as a Competitive Local Exchange Carrier in the Service Territories of all thirty-five Incumbent Local Exchange Carriers within the Commonwealth of Pennsylvania; A-2021-3026335
Tentative Order By the Commission:
On June 8, 2021, Service Electric Cable T.V., Inc. (Applicant or SECTV) filed an Application seeking a Certificate of Public Convenience (CPC) under our orders issued pursuant to the Telecommunications Act of 1996, 47 U.S.C. §§ 201 et seq., (TA-96)1 and to Chapter 11 of the Public Utility Code (Code) (66 Pa.C.S. §§ 1101 et seq.) evidencing authority to provide the following telecommunications services to the public as a Competitive Local Exchange Carrier (CLEC) in the Service Territories of all thirty-five Incumbent Local Exchange Carriers (ILECs) within the Commonwealth of Pennsylvania.
The Applicant was granted provisional authority pursuant to our Secretarial Letter of August 19, 2021, to provide the proposed CLEC services in the service territories of Verizon Pennsylvania LLC and Verizon North LLC pursuant to its proposed tariffs during the pendency of the application process. As required by 52 Pa. Code § 5.14, the Application also was published in the Pennsylvania Bulletin.2 The Applicant was granted a waiver concerning publishing notice of its Application in newspapers of general circulation. The protest period for this Application expired September 20, 2021. The assigned utility code is 310605.
The Applicant complied with notice requirements set forth in our TA-96 Implementation Orders by serving a copy of its Application upon the aforementioned ILECs, the Office of Consumer Advocate, the Office of Small Business Advocate, and the Office of Attorney General. No protests were filed. No hearings were held.
Information concerning the Applicant is as follows:
• The Applicant is a Pennsylvania corporation with its principal place of business at 2200 Avenue A, Bethlehem, PA 18017, phone (610) 625-8579, facsimile (610) 626-5877.
• The Applicant complied with Pennsylvania law relating to a domestic corporation.
• The Applicant's Pennsylvania Emergency Management Agency contact is Jeffery Kelly, Director of Engineering, at SECTV's headquarters; phone (610) 625-8579; facsimile (610) 626-5877; email kellyj@sectv.com.
• Correspondence to resolve complaints may be directed to Jennifer Brown, at SECTV's headquarters, phone (610) 625-8669, facsimile (610) 865-5031, email jbrown@sectv.com.
• The Applicant will not be using a fictitious name.
• The Applicant is not operating as a public utility in other states.
• The instant Application was filed as part of a General Rule Transfer of Control filing associated with the Applicant's acquisition of assets and operations from Service Electric Telephone Company, LLC.3
In its Application, SECTV avers that it proposes to offer facilities-based business and residential cable (television), internet, data and voice service via Voice over Internet Protocol (''VoIP'') in Pennsylvania.4 Based on its Application, SECTV is a provider of fixed interconnected VoIP service.
Historically, the Commission has regulated the entry of jurisdictional telecommunications carriers offering service in Pennsylvania through the examination and adjudication of applications for a CPC. These applications are filed pursuant to Chapter 11, Subchapter A of the Public Utility Code (Code).5 Specifically, this Subchapter requires an entity that is a public utility under Pennsylvania law to obtain a CPC to operate lawfully in the Commonwealth. However, Pennsylvania has since enacted the VoIP Freedom Act (Act), which limits the Commission's regulatory reach over fixed interconnected VoIP service providers like SECTV. Specifically, the Commission's jurisdiction is limited to the five prescribed circumstances in the Act.6
The threshold question presented by this Application is whether the Commission can grant a CPC to SECTV, based on its status as a provider of interconnected VoIP service. To answer this threshold question, we first must determine whether SECTV is a public utility under Pennsylvania law. If not, the Commission cannot grant it a CPC. If SECTV is a public utility, we must then determine whether certification is prohibited by the VoIP Freedom Act.
Upon review, SECTV appears to meet the statutory definition of ''public utility'' under the Code. A telecommunications public utility is defined by the Code as follows: ''Any person or corporations now or hereafter owning or operating in this Commonwealth equipment or facilities for. . .(vi) Conveying or transmitting messages or communications, except as set forth in paragraph (2)(iv), by telephone or telegraph or domestic public land mobile radio service including, but not limited to, point-to-point microwave radio service for the public for compensation.''7 Thus, a person or corporation that is transmitting (wireline) communications to the public for compensation is a jurisdictional public utility under the Code. Here, SECTV transmits and conveys intrastate wireline voice communications utilizing IP-technology, and it is paid by its customers to do so. As such, it is public utility.
However, our certification analysis does not end there. The Commission also must determine whether the VoIP Freedom Act prohibits certification of SECTV. Under the Act, the Commission is prohibited from enacting or enforcing, either directly or indirectly, any law, rule, regulation, standard, order or other provision having the force or effect of law that regulates, or has the effect of regulating the rates, terms and conditions of VoIP service.8 Here, granting certification results in the imposition of numerous regulatory compliance obligations on SECTV.9 In our view, such a result equates to regulating/having the effect of regulating the rates, terms, and conditions of SECTV's VoIP service, which ostensibly is prohibited by the Act.
Moreover, the prohibitions in the Act can be considered as not only intending to prevent the Commission from regulating the rates and terms and conditions of the actual retail VoIP service provided to the customer, but also, intending to prevent the Commission from establishing market entry requirements applicable to the provider. The question of whether the Act applies to market entry is specifically addressed by the General Assembly in the following legislative findings/declarations:
The General Assembly finds and declares as follows:
(1) Growth and enhancement of services using Internet protocol technology provide Pennsylvania consumers more choice in voice, data and video service than at any other time.
(2) The proliferation of new technologies and applications and a growing number of providers developing and offering innovative services using Internet protocol is due in large part to little regulation, including freedom from regulations governing traditional telephone service, that these new technologies and the companies that offer them have enjoyed in this Commonwealth. The economic benefits, including consumer choice, new jobs and significant capital investment, will be jeopardized and competition minimized by the imposition of traditional State entry and rate regulation on voice-over-Internet protocol and Internet protocol-enabled services.10
The Commission is required to give effect to all provisions of a statute, especially those that are clear and unambiguous.11 As made clear by this language, the General Assembly did not intend for the Act to support imposing traditional public utility-type market entry requirements on interconnected VoIP providers. Thus, granting certification to SECTV would seem to conflict with the General Assembly's declaration that it does not support imposing market entry requirements on VoIP service providers.
For these reasons, we believe the VoIP Freedom Act prohibits the Commission from granting a CPC to SECTV. Therefore, SECTV's Application for CLEC authority is tentatively denied.
Before issuing a final decision on the merits, we believe it is in the public interest to provide an opportunity for interested parties to file comments regarding SECTV's Application. Comments will be due within thirty (30) days after the date of publication of this Tentative Order in the Pennsylvania Bulletin. Reply comments will be due fifteen (15) days thereafter; Therefore,
It Is Ordered That:
1. The Application of Service Electric Cable T.V., Inc. at Docket No. A-2021-3026335, for authority to operate as a Competitive Local Exchange Carrier in the service territories of all thirty-five Incumbent Local Exchange Carriers within the Commonwealth of Pennsylvania is tentatively denied.
2. The Secretary's Bureau shall duly certify this Tentative Order and deposit it with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
3. Within thirty (30) days after the date that this Tentative Order is published in the Pennsylvania Bulletin, interested parties may file comments concerning the Application of Service Electric Cable T.V., Inc. at Docket No. A-2021-3026335. Reply comments will be due fifteen (15) days thereafter.
ROSEMARY CHIAVETTA,
SecretaryORDER ADOPTED: November 18, 2021
ORDER ENTERED: November 29, 2021
Statement of Chairperson Gladys Brown Dutrieuille The case before us today is the Application by Service Electric Cable Company, Inc. (SECTV or Company) in which it is seeking a Certificate of Public Convenience (CPC) from the Commission in order to operate as a competitive local exchange carrier (CLEC) in the certificated service territories of all thirty-five Incumbent Local Exchange Carriers (ILECs) within the Commonwealth of Pennsylvania.
In its Application, the Company avers that it has been providing voice service as an interconnected Voice-over-Internet Protocol (VoIP) service provider and it will continue to provide local exchange service to future customers via its interconnected VoIP network. VoIP technology allows customers to use an internet connection to make and receive voice phone calls while also receiving internet and data services. With the rise of broadband, VoIP has become the definitive choice for phone service for consumers and businesses alike. Interconnected VoIP service may be ''nomadic'' or ''fixed.''12
The Commission recognizes that the Federal Communications Commission (FCC) has not yet classified VoIP as a ''telecommunications service'' or ''information service'' although that has been pending since 2004.13 While it has not yet addressed this classification issue, the FCC ruled that state certification of Interconnected VoIP services was preempted because of the impossibility of distinguishing between the intrastate and interstate features of VoIP services.14 Nonetheless, as some courts have determined, I believe that the FCC did not preempt the entire field of VoIP regulation.15 Additionally, the FCC did not declare that all VoIP services could not be separated into interstate and intrastate communications and has stated itself that it reads the FCC's preemption determination narrowly to apply to ''nomadic'' interconnected VoIP service only and not to apply to fixed interconnected VoIP service.16 Conversely, the 5th Circuit Court of Appeals recently rejected the FCC's brief explaining its position on VoIP and determined that no state commission can certify any VoIP under state law—a position the FCC does not share.17 However, I am mindful that a decision in one circuit is not binding in the 3rd circuit should we decide to certify VoIP.18
Essentially, VoIP service uses different technology protocols to provide voice service or local exchange service to customers. Notwithstanding, this particular type of certification presents complex issues involving the interplay of two state laws—the VoIP Freedom Act, 73 Pa.C.S. 2251.1 et seq., and the Public Utility Code (Code), 66 Pa.C.S. §§ 1101 and 1103. The VoIP Freedom Act governs the manner in which Internet Protocol-enabled voice service, specifically, Voice over Internet Protocol (VoIP)) may be regulated by state agencies, and the Commission's certification authority telecommunications public utilities is set forth in Sections 1101 and 1103 of the Code, 66 Pa.C.S. §§ 1101 and 1103.
The offering and provisioning of local exchange service remains within the Commission's jurisdiction and is subject to regulation under the Public Utility Code. In particular, the Code requires entities offering and providing local exchange service to obtain state certification from the Commission as evidence of their authority to provide voice service in Pennsylvania. At the same time, the VoIP Freedom Act limits this Commission's authority over interconnected VoIP service and preserves its authority over protected services provided under tariff, 911, intercarrier compensation, telecommunications relay service (TRS), and universal service although the Commission's traditional authority over entry, rates, and terms of service is limited.
When read together, Sections 2251.2(2) and 2251.4 of the VoIP Freedom Act, 73 P.S. §§ 2251.2(2) and 2251.4, prohibit a Commonwealth agency from imposing traditional state entry and rate regulation over interconnected VoIP service, but not all forms of state certification or its equivalent are prohibited, particularly when doing so furthers the Commission's enforcement of its retained authority in Section 2251.6 of the VoIP Freedom Act, 73 P.S. 2251.6. Thus, a blanket prohibition effectively renders the word ''traditional'' as surplusage.
Section 2251.6 of the VoIP Freedom Act, 73 P.S. § 2251.6, preserves the Commission's authority over protected services provided under tariff, 911, TRS, intercarrier compensation, and universal service. This retained authority includes the consumers receiving protected service under tariff today from their certificated provider. Interconnected VoIP service customers should not lose the Commission's consumer protections simply because their provider is using a different technology to provide voice service.
Additionally, the proposed approach creates a two-tier structure in which ILECs and some CLECs that may be using VoIP service continue to have the benefits that accompany having a CPC such as zoning exemption and eminent domain, while their uncertificated voice service competitors that are also using the same VoIP service have no such corresponding rights, privileges or benefits. This detrimentally impacts competition and that may contravene Section 253(a) of the Telecommunications Act of 1996. Section 253 permits a state to impose conditions on telecommunications providers so long as they are competitively neutral. The two-tier result does not appear to be competitively neutral and risks preemption of the General Assembly's law.
Finally, the focus on VoIP ignores the fact that the Applicant will provide voice service, a service certificated by this Commission. Moreover, this instant case is not a case of first impression when it comes to an interconnected VoIP service provider seeking to obtain a CPC from the Commission so that it might operate as a certificated CLEC in Pennsylvania.19 This departure from that precedent is not explained.
Accordingly, I agree that this matter should be put out for public comment. However, I disagree that we should tentatively deny a request for a certificate of public convenience. I encourage the public and interested stakeholders to comment on these observations and any others during the Comment and Reply Period.
In the interim, for these reasons, I concur in the result only.
Date: November 18, 2021
GLADYS BROWN DUTRIEUILLE,
Chairperson
[Pa.B. Doc. No. 21-2096. Filed for public inspection December 10, 2021, 9:00 a.m.] _______
1 In light of the policy objectives of TA-96, market entry requirements for telecommunication service providers are set out in In Re: Implementation of the Telecommunications Act of 1996, Docket No. M-00960799 (Order entered June 3, 1996; Order on Reconsideration entered September 9, 1996) (TA-96 Implementation Orders).
2 See 51 Pa.B. 5809 (September 4, 2021).
3 Application at 4-5. Revised Application pages filed September 10, 2021. Applicant entered into an agreement to acquire assets and operations from its affiliate Service Electric Telephone, LLC, utility code 310651, a certificated CLEC in all ILEC territories, via a General Rule Transfer of Control. See Joint Application of Service Electric Cable T.V., Inc., Service Electric Telephone Company, LLC, and Ironton Telephone Company for Approval of a General Rule Transfer of Control, Docket Nos. A-2018-3006314 and A-2018-3006315.
4 Application, ¶¶ 8, 10.
5 66 Pa.C.S. §§ 1101—1104.
6 The Commission has retained jurisdiction over: (i) the provision and administration of enhanced 911 service and nondiscriminatory enhanced 911 fees; (ii) telecommunications relay service fees; (iii) universal service fund fees; (iv) switched network access rates or other intercarrier compensation rates for interexchange services provided by a local exchange telecommunications company; and (v) the rates, terms or conditions of protected services provided under tariffs which are subject to approval by the Commission. 73 P.S. § 2251.6(1)(i)—(v).
7 66 Pa.C.S. § 102(1)(vi) (emphasis supplied).
8 73 P.S. § 2251.4.
9 These regulatory compliance obligations include but are not limited to those under Chapter 13 of the Code pertaining to rates and tariffing, Chapter 15 of the Code pertaining to service and facilities, Chapter 63 of the Commission's regulations pertaining to quality of service, Chapter 63 of the Commission's regulations pertaining to transfers of control, and Chapter 64 of the Commission's regulations pertaining to billing and suspension/termination and restoration of service.
10 73 P.S. § 2251.2 (emphasis added).
11 1 Pa.C.S. § 1921(a), (b).
12 Nomadic service allows a customer to use the service by connecting to the Internet wherever a broadband connection is available, making the geographic originating point difficult or impossible to determine. Fixed VoIP service, however, originates from a fixed geographic location.
13 In the Matter of IP-Enabled Services, 19 FCC Rcd. 4863 (2004). Accord Charter Communications v. Minnesota Public Utilities Commission, Docket No. 17-2290 (September 18, 2018), n. 2.
14 See In re Vonage Holdings Corp. Petition for Declaratory Ruling Concerning an Order of the MPUC, Memorandum Opinion and Order, 19 FCC Rcd 22404, 22417—22424 ¶¶ 22—32 (2004), aff'd sub nom., Minn. Pub. Utils. Comm'n v. FCC, 483 F.3d 570 (8th Cir. 2007) (Vonage Preemption Order).
15 Comcast IP Phone v. Missouri Public Service Commission, (W.D. Mo. January 17, 2007) (Comcast IP Phone of Missouri, 2007).
16 Comcast IP Phone of Missouri, 2007; see also In the Matter of Universal Service Contribution Methodology, 21 FCC Rcd 7518, 7545-46 ¶ 56 (2006) (The FCC determined that the interstate and intrastate operations of interconnected VoIP providers can be distinguished for the limited purpose of assessing universal service contributions.).
17 See Charter Advanced Services vs. Minnesota Public Utilities Commission, Docket No. 17-2990 (9/18/18) at n. 2, cert denied Lipschultz v. Charter Advanced Services, Docket No. 18-1386 (October 21, 2019).
18 Mast, Foos & Co v. Stover Mfg., 177 U.S. 485, 488 (1900); Consumers Union of America v. Consumer Product Safety Commission, 590 F.2d 1209, 1217—19 (D.C. Cir. 1978) rev'd on other grounds GTE Sylvania v. Consumers Union of the US 445 U.S. 375 (1980); In re: Aspinwall's Estate, 90 F.675, 678 (3rd Cir. 1898). See also Joseph W. Mead, ''Stare Decisis in the Inferior Courts of the United States,'' 12 Nevada Law Journal 787, 790 and https://www.manatt.com/Manatt/media/Media/PDF/03-What-Every-Lawyer-Should-Know-About-Stare-Decisis,-Cal-Defender-70,.pdf
19 Approval of Claverack Communications LLC Authority to Operate as an Interexchange Carrier Reseller throughout the Commonwealth of Pennsylvania, Docket No. A-2021-3024004 (Order entered April 15, 2021).
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