Order [36 Pa.B. 86] Public Meeting held
December 15, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick
Law Bureau Prosecutory Staff v. Budget Phone, Inc. (2004.0267); Doc. No. C-20044068 Budget Phone, Inc. Petition for Reinstatement; Doc. No. A-311159 Order By the Commission:
On December 14, 2004, Law Bureau Prosecutory Staff filed a Formal Complaint against Budget Phone, Inc. (Budget Phone), a reseller of toll service and a CLEC certificated at A-311159. In the Complaint, Prosecutory Staff alleged that the Commission sent by certified mail prior written notices to Budget Phone that its 2003 Annual Report was due. The Complaint charged that Budget Phone violated 66 Pa.C.S. § 504 by failing to file its 2003 Annual Report. The Complaint requested that the Commission issue an order canceling Budget Phone's certificate of public convenience for failure to file its 2003 Annual Report.
According to the U. S. Postal Service return receipt, the Complaint was served on December 17, 2004, but Budget Phone failed to file an answer or its 2003 Annual Report. As a result of Budget Phone's failure to respond to the Complaint, the Commission entered a Default Order on July 20, 2005 that sustained the Complaint and cancelled Budget Phone's certificate of public convenience. The notice of the Default Order was published August 6, 2005 at 35 Pa.B. 4512 with a 20-day comment period.
The Commission received Budget Phone's 2003 Annual Report on October 18, 2005, and the $250 late-filing fee on November 10, 2005. On December 5, Budget Phone filed a letter-petition for reinstatement. In its petition, Budget Phone seeks reconsideration of the Default Order and reinstatement of its certificate. Budget Phone apologized for failing to timely file its 2003 Annual Report and stated that it has taken steps to ensure that it timely complies with future filing deadlines.
It is well-settled that decisions such as whether to grant a petition for reinstatement are left to the Commission's discretion. Hoskins Taxi Service v. Pa.P.U.C., 486 A.2d 1030 (Pa. Comwlth. 1985). In ruling upon a reinstatement petition, it is incumbent upon this Commission to examine all relevant factors in order to reach an equitable result. Medical Transportation, Inc., 57 Pa.P.U.C. 79 (1983).
The Commission has identified five factors that are particularly relevant to the adjudication of a petition to reinstate: 1) the amount of time that elapsed between the cancellation of the certificate of public convenience and the filing of the petition, 2) whether the petitioner has a record of habitually violating the Public Utility Code, 3) the reasonableness of the excuse given for the violation that caused the certificate to be cancelled, 4) whether the petitioner has implemented procedures to prevent a recurrence of the circumstances giving rise to the cancellation, and 5) whether the petitioner is current in the payment of all Commission fines and assessments. Re: M. S. Carriers, Inc., Docket No. A-00110601 (May 4, 1999).
In considering the first factor, we note that only three months and nine days elapsed between the effective date of the cancellation on August 26, 2005 and Budget Phone's request for reinstatement on December 5, 2005. This short period of time supports reinstatement.
In regard to the second factor, Budget Phone does not have a record of habitually violating the Public Utility Code. Budget Phone was issued its certificate of public convenience in 2002. No other Complaints have been issued against Budget Phone in addition to the instant Complaint. Thus, Budget Phone's record also supports reinstatement.
In considering the third and fourth factors, Budget Phone is appropriately apologetic in its Petition for the delinquency in filing its 2003 Annual Report. Budget Phone further stated that it has taken steps to ensure that its regulatory compliance remains in good standing. The fact that Budget Phone has now complied with our reporting requirements and has taken steps to ensure future compliance militates toward reinstatement. Specifically, Budget Phone has hired an in-house CPA to specifically address financial reporting requirements. Moreover, in an effort to ensure timely compliance with all Commission reporting deadlines, Budget Phone has hired TCS, a regulatory compliance company based in Alpharetta, GA. TCS provides regulatory compliance services for numerous Pennsylvania jurisdictional utilities.
A review of Commission records shows that Budget Phone has not yet filed its 2004 Annual Report, which was due to be filed on or before October 31, 2005. We will therefore condition reinstatement of the certificate on filing the delinquent 2004 Annual Report within 30 days of the entry date of this order.
The fifth factor requires that all outstanding fines and/or assessments be paid prior to reinstatement. A review of Commission records shows that Budget Phone has no unpaid fines or assessments.
Based upon the foregoing, we will grant Budget Phone's petition for reinstatement. However, as stated above, we condition reinstatement on Budget Phone filing its 2004 Annual Report within 30 days of the entry date of this order. If the report is not received within the time given, Budget Phone's certificate will remain cancelled. Furthermore, the Commission may take other appropriate action, including the imposition of penalties under section 66 Pa.C.S. § 3301, if Respondent seeks relief beyond the 30-day time period. Therefore,
It Is Ordered That:
1. The Petition to Reinstate filed by Budget Phone, Inc. at C-20044068 on December 5, 2005, is hereby granted.
2. The certificate of public convenience held by Budget Phone, Inc. at A-311159 is hereby reinstated.
3. Reinstatement is conditioned upon Budget Phone filing its delinquent 2004 Annual Report within 30 days of the entry date of this order. Failure to adhere to this order may result in further penalties pursuant to 66 Pa.C.S. § 3301.
4. The Secretary cause a copy of this Order to be published in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary[Pa.B. Doc. No. 06-45. Filed for public inspection January 6, 2006, 9:00 a.m.]
