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PA Bulletin, Doc. No. 00-355



Notice of Comments Issued

[30 Pa.B. 1221]

   Section 5(g) of the Regulatory Review Act (act) (71 P. S. § 745.5(g)) provides that the designated standing committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the committee comment period. The Commission comments are based upon the criteria contained in section 5a(h) and (i) of the act (75 P. S. § 745.5a(h)(i)).

   The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulations must be submitted by the dates indicated.

Reg. No. Agency/Title Issued Deadline
57-209 Pennsylvania Public Utility Commission
2/10/00 1/10/02
Updating and Revising Existing Filing Requirement
(29 Pa.B. 6257 (December 11, 1999))

Pennsylvania Public Utility Commission
Regulation No. 57-209
Updating and Revising Existing Filing Requirement
February 10, 2000

   We have reviewed this proposed regulation from the Pennsylvania Public Utility Commission (PUC) and submit for consideration the following objections and recommendations. Subsections 5.1(h) and 5.1(i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to statutory authority, reasonableness, need and clarity. We recommend that these Comments be carefully considered as you prepare the final regulation.

1.  References to directives and guidelines.--Reasonableness; Clarity.

   In Sections 53.57, (in the definition of ''Lifeline Plan''), 53.59(e)(3), 53.60(a)(2), 53.60(b)(1) and (b)(2), and 53.60(c), the PUC has included general references to and is requiring compliance with, directives and guidelines. By definition, guidelines are nonbinding and compliance with guidelines should not be required in a regulation. The PUC should delete references to directives and guidelines in the above-mentioned sections. However, if there are specific statutory requirements that are applicable, the PUC should provide those citations within the final regulation.

2.  Section 53.57.  Definitions.--Clarity.

Cost support and documentary support

   These terms are used in sections 53.59(d) and (e)(3), 53.60(a)(2), (b)(2) and (c) throughout the proposed regulation, but are not defined. To improve clarity, the PUC should define these terms in the final regulation. If references to these terms have different meanings in different sections, the PUC should replace these terms with a specific explanation of what supporting information is required.

Joint or bundled service packages

   Subsection (i) of this definition states ''Service packages that may be composed by one or more . . . .'' (Emphasis added.) It should be amended to read ''Service packages that may be composed of one or more . . . .'' (Emphasis added.)

Promotional service offerings

   Subsection (ii) of this definition contains the following substantive requirement: ''. . . may not have a duration of longer than 6 months in any rolling 12-month period which commences as of the effective date of the filed promotion.'' The rule for statutory drafting provides that substantive requirements shall not be included within definitions. Since this is a substantive requirement, it should be relocated to section 53.60 relating to ''Supporting documentation for promotional offerings . . . .''

3.  Section 53.58. Offering of competitive services.--Statutory Authority; Clarity.

Subsections (a) and (c)

   Under these subsections, when the PUC designates a service as competitive, that service is competitive for any competitive local exchange carrier (CLEC) and incumbent local exchange carrier (ILEC) in the relevant service territory. In the Preamble, the PUC explains that it is reinterpreting Chapter 30 requirements contrary to its previous holding in In re Petition of TCG Pittsburgh for a Determination of Whether Certain Services are Competitive Under Chapter 30 of the Public Utility Code, Docket No. P-00950998 (Order entered March 29, 1996). Consequently, CLECs will be relieved of the requirements for filing a petition requesting an alternative form of regulation and a network modernization plan for services that have been previously classified as competitive.

   Subsections (a) and (c) appear to be inconsistent with sections 3003 through 3005 of Chapter 30 (66 Pa.C.S. §§ 3003--3005). We have not found any provision in Chapter 30 that exempts a local exchange carrier from: (1) petitioning for an alternate form of regulation; and (2) filing a network modernization and implementation plan. Therefore, we request that the PUC explain its statutory authority for these provisions.

   Additionally, in subsections (a) and (c) the phrase ''. . . subject to §§ 53.57, 53.59, 53.60 and this section.'' is confusing. This phrase implies the competitive services are still subject to all the provisions in this regulation. However, section 53.57 contains definitions, not substantive requirements. Section 53.59 and portions of Section 53.60 address noncompetitive services. How would competitive services be ''subject to'' these provisions? We request the PUC clarify this provision in the final regulation, or delete references to these sections.

Subsection (b)

   This subsection establishes that a CLEC ''is not prohibited from offering services classified. . . .'' The negative phrasing makes this provision confusing. Subsection (b) would be more clearly written if the PUC simply stated that a CLEC may offer noncompetitive services in an ILEC service territory when the CLEC has been certificated to offer service.

Subsection (e)

   This subsection provides that the PUC may initiate a proceeding to reclassify a service from competitive to noncompetitive. The PUC should clarify that the proceeding would be a complaint. The PUC should also clarify the process, procedure and parties that are permitted to participate in the proceeding in subsection 53.58(e). This could be done by including a reference to the PUC's existing regulations on Commission complaints.

   Subsection (e)(1) states that the PUC ''will decide which ILEC or CLEC has demonstrated that level of dominant market power to warrant reclassification of a competitive service to a noncompetitive status.'' The PUC should explain any factors and processes it may use to determine the ''level of dominant market power.''

   Subsection (e)(4)(vii) provides that the PUC will consider ''other factors deemed relevant by the Commission'' when reviewing whether a service should be reclassified. This is too vague. The PUC should specify that it will consider other factors affecting the competitive nature of the market and identify them.

4.  Section 53.59.  Cost support requirements and effective filing dates for tariff filings of noncompetitive services.--Need; Clarity.

Subsection (a)

   This subsection includes the phrase ''is relieved from any obligation.'' This phrase is unclear. The PUC should consider replacing the phrase ''is relieved from any obligation'' with ''is not required.''

Subsections (c) and (d)

   These subsections apply to CLEC tariff filings for rate changes to existing or new services, or new services, when their rates are higher than ILEC rates for the same service. The CLEC's tariff will become effective if the PUC takes no action within 30 days from the date the CLEC filed the tariff. Additionally, the PUC may ask for supporting documents to review the tariff filing. These requirements are more restrictive than the requirements in subsection (a), which allow rates to become effective on 1 day's notice, and do not require cost support data.

   If the purpose of this rulemaking is to encourage competition, why would the PUC impede the CLEC's ability to adjust its rates? Further, if a CLEC wants to lower its rate for an existing service, to a rate that is still above the ILEC's rate, the CLEC should be allowed to do so in an expedited manner. We request the PUC modify this provision to mirror subsection (a), or explain the need for these provisions.

Subsection (e)

   Subsection (e)(1) requires a 10-day waiting period for ILEC rate adjustments. New services are not addressed. Consistent with subsection (c), the PUC should revise this subsection to establish a 10-day waiting period for tariff filings for new services.

   Also, subsection (e)(1) is lengthy and difficult to read. To improve clarity, we suggest that the PUC break the subsection into separate paragraphs.

Subsection (g)

   The Pennsylvania Bulletin version of the proposed regulation refers to ''Liftime Plan Statement.'' ''Lifeline Plan'' is the defined term, and Subsection (g) should be corrected.

5.  Section 53.60.  Supporting documentation for promotional offerings, joint or bundling service packages, and toll services.--Reasonableness; Clarity.

Subsection (a)

   This subsection states, ''CLECs and ILECs do not have an automatic obligation to provide cost support for tariff filings . . . .'' The phrase ''automatic obligation'' is confusing. For clarity, the PUC should consider replacing the phrase ''do not have an automatic obligation'' with ''are not required.''

Subsection (a)(1)

   This subsection requires ILECs and CLECs to give advance notice to resellers of a promotional service offering as outlined in subsection 53.60(a)(1). We understand the advance notice allows resellers to react to the ILEC and CLEC's promotional service offering. However, advance notice of a local exchange carrier's promotional offering to any competitor contradicts established practice in a competitive marketplace. The PUC should delete this provision or explain why any competitor should get preferential treatment.

Subsection (a)(3)

   This subsection states, ''No filing requirements exist for promotional offerings involving competitive services.'' However, the definition of ''promotional service offerings'' defines these services as noncompetitive. The PUC should resolve this discrepancy.


[Pa.B. Doc. No. 00-355. Filed for public inspection February 25, 2000, 9:00 a.m.]

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