Order [35 Pa.B. 6298] Public Meeting held
October 27, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick
Law Bureau Prosecutory Staff v.Worldxchange Corp. (2004.0267); Doc. No. C-20044007 Worldxchange Corp. Petition for Reinstatement;
Doc. No. A-310972Order By the Commission:
On December 13, 2004, Law Bureau Prosecutory Staff filed a Formal Complaint against Worldxchange Corp. (Worldxchange), a facilities based toll carrier and CLEC carrier certificated at A-310972. In the Complaint, Prosecutory Staff alleged that the Commission sent by certified mail prior written notices to Worldxchange that its 2003 Annual Report was due. The Complaint charged that Worldxchange violated 66 Pa.C.S. § 504 by failing to file its 2003 Annual Report. The Complaint requested that the Commission issue an order canceling Worldxchange'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 presumably not served, but the post office did not return the green card. As a result of Worldxchange's failure to respond to the Complaint, the Commission entered a Default Order on July 22, 2005 that sustained the Complaint and cancelled Worldxchange's certificate of public convenience. The notice of the Default Order was published August 6, 2005 at 35 Pa.B. 4534 with a 20-day comment period.
On September 19, 2005, Worldxchange filed a letter-petition for reconsideration along with its 2003 Toll Reseller Annual Report, and a check for the late-filing fee in the amount of $250. Worldxchange was then advised by Commission Staff that it needed to file separate annual reports for its 2003 CLEC and Toll operations in order to be in compliance with Commission regulation. On September 26, 2005, Worldxchange filed separate annual reports for its Toll and CLEC operations. In its petition, Worldxchange seeks reconsideration of the Default Order and reinstatement of its certificate. We will treat this petition as a request for reinstatement.
In its Petition, Worldxchange apologized for failing to timely file its 2003 Annual Reports. Worldxchange states 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. Cmwlth. 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 canceled, 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 24 days elapsed between the effective date of the cancellation on August 26, 2005 and Worldxchange's request for reinstatement on September 19, 2005.
In regard to the second factor, Worldxchange does not have a record of habitually violating the Public Utility Code. Worldxchange was issued its certificate in 2000. However, Worldxchange's certificate was incorrectly cancelled due to an administrative error by Default Order entered October 29, 2002. That Default Order was rescinded by Order entered January 16, 2003. On December 9, 2004, Rising Tide Development, a property manager, filed a Formal Complaint against Worldxchange for failure to release a line so that a new tenant could receive service from Verizon. That Complaint was resolved by mediation and the case was closed by Secretarial Letter dated July 8, 2005. On February 4, 2005, Sandra Brletic-Smith filed a Formal Complaint alleging slamming by Worldxchange. On March 14, 2005, Worldxchange filed an answer denying the slamming allegation and stating that its investigation revealed that no slamming occurred. That Complaint has not yet been resolved. World- xchange's record is not so egregious as to prohibit reinstatement.
In considering the third and fourth factors, Worldxchange is extremely apologetic in its Petition for the delinquency in filing its 2003 Annual Report. Worldxchange further stated that it has taken steps to ensure that its regulatory compliance remains in good standing. In the meantime, Worldxchange has also filed its 2004 CLEC and Toll Annual Reports. The fact that Worldxchange has now complied with our reporting requirements and has taken steps to ensure future compliance militates toward reinstatement.
The fifth factor requires that all outstanding fines and/or assessments be paid prior to reinstatement. A review of Commission records shows that Worldxchange has no unpaid fines or assessments.
Based upon the foregoing, we grant Worldxchange's petition for reinstatement. However, we caution Worldxchange that in the future annual reports must be complete and timely filed. We also emphasize that all Commission correspondence must be answered in a timely manner. Therefore,
It Is Ordered That:
1. The Petition to Reinstate filed by Worldxchange Corp. at C-20044007 on September 19, 2005, is hereby granted.
2. The certificate of public convenience held by Worldxchange Corp. at A-310972 is hereby reinstated.
3. The Secretary cause a copy of this Order to be published in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary[Pa.B. Doc. No. 05-2105. Filed for public inspection November 11, 2005, 9:00 a.m.]
