Title 52--PUBLIC UTILITIES PENNSYLVANIA PUBLIC UTILITY COMMISSION [52 PA. CODE CH. 53] [30 Pa.B. 6202] [L-00940095]
Updating and Revising Existing Filing Requirement The Pennsylvania Public Utility Commission (Commission) on June 2, 2000, adopted a final rulemaking order amending existing regulations to lessen the regulatory burdens on all jurisdictional telecommunications providers. The contact persons are Gary Wagner, Bureau of Fixed Utility Services (717) 783-6175 and Carl Hisiro, Law Bureau (717) 783-2812.
Executive Summary
In 1994, the Commission entered an order that initiated a rulemaking proceeding to revise and streamline existing filing requirements for all telecommunications providers so as to lessen their regulatory burden and promote competition. Since then, many significant events have occurred to effectuate the deregulation of the telecommunications industry and the promotion of competition in its stead, including the enactment of the Federal Telecommunications Act of 1996.
The rulemaking went through three advance notices published in the Pennsylvania Bulletin, and the Commission received comments from a number of parties. This rulemaking was then subsequently included in the proceeding to consider global resolution of telecommunications issues at P-00991648 and P-00991649. In the global proceeding, all participating incumbent and competitive local exchange carriers and interexchange carriers supported the same set of proposed regulations that were approved as final, with minor modifications, in this rulemaking.
The regulations streamline filing requirements by reducing the review period from 60 days to either 30, 10, or 1 day, depending generally on whether the filing is made by an incumbent or competitive local exchange carrier and on whether the proposed rates represent increases or decreases from existing rates or are for new services. The regulations also streamline filing requirements for intraLATA toll rates, bundled service packages and promotional offerings.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 29, 2000, the Commission submitted a copy of the notice of proposed rulemaking, published at 29 Pa.B. 6257 (December 11, 1999), to IRRC and to the Chairpersons of the House and Senate Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing these final-form regulations, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on October 1, 2000, these final-form regulations were deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 19, 2000, and approved the final-form regulations.
Commissioners Present: John M. Quain, Chairperson; Robert K. Bloom, Vice Chairperson; Nora Mead Brownell; Aaron Wilson, Jr.; Terrance J. Fitzpatrick
Public Meeting
June 2, 2000Final Rulemaking Order By the Commission:
On October 7, 1999, the Commission entered an order proposing to amend its regulations relating to existing tariff filing requirements imposed upon telecommunications providers. The Commission proposed these amendments at least partially in response to recent State and Federal efforts to effectuate the deregulation of, and the promotion of competition in, the telecommunications industry.
The October 7, 1999, Order was published at 29 Pa.B. 6257 (December 11, 1999). Comments were hereafter received from Bell Atlantic-Pennsylvania, Inc. (BA-PA), the Pennsylvania Telephone Association (PTA) with the exception of members GTE and Sprint who did not join in the filing of comments, and the Independent Regulatory Review Commission (IRRC).1 While the October 7, 1999, Order did not contemplate the filing of reply comments, three parties--the Office of Consumer Advocate (OCA), the Office of Trial Staff (OTS), and MCI WorldCom, Inc. (MCI)--filed reply comments. All three parties ask the Commission to accept their reply comments in order to respond to issues raised in the BA-PA and PTA comments.
The three parties that filed reply comments object to the fact that BA-PA and the PTA are now complaining about specific provisions of the proposed regulations which BA-PA and the individual members of the PTA previously supported in the Commission's Global proceeding at Docket Nos. P-00991648 and P-00991649. OCA Reply Comments at 3-4; OTS Reply Comments at 1-2; MCI Reply Comments at 1-7. They each contend that BA-PA's current comments particularly should not be considered because the proposed regulations adopted by this Commission are identical to the filing requirement proposal offered by BA-PA itself in the Global proceeding.
On March 1, 2000, BA-PA filed a response to MCI's reply comments stating that BA-PA's petition in the Global proceeding was expressly conditioned on the Commission approving the entire petition without modification. Because that petition was not accepted, BA-PA argues that it should not be bound by its own proposal.
This Final Rulemaking Order discusses the comments and reply comments received and sets forth, in Annex A, final amendments to the Commission's regulations regarding updating and streamlining existing filing requirements for telecommunications utilities. As an initial matter, we agree with the three reply commentators that BA-PA should not now be heard to complain about specific provisions of the regulations that BA-PA itself submitted for approval in the Global proceeding. Furthermore, for the most part, the issues BA-PA raises in its comments were addressed in the October 7, 1999, Order and rejected. We see no need to resurrect them again in this order.
General Comments
IRRC raises the concern that §§ 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) each require compliance with ''directives'' and/or ''guidelines.'' IRRC recommends that references to these terms should be deleted and replaced, if appropriate, with specific statutory requirements that the applicable within the final regulation. IRRC states that ''guidelines,'' by definition, are nonbinding and should not be required in a regulation. While IRRC does not give a specific reason why the word ''directive'' is of concern, we assume the reason is that there is ambiguity as to the mandatory nature of the term ''directive.''
We agree with IRRC's recommendation and will make the following changes to the affected subsections. In § 53.57's definition of ''Lifeline Plan,'' the language in the final rulemaking will be changed from ''in accordance with applicable directives and guidelines of the Commission and of the Federal Communications Commission'' to read ''in accordance with applicable state or federal law or regulations.'' The language in § 53.59(e)(3) (as discussed below, this subsection becomes § 53.59(f)(7) in the final rulemaking) will be changed from ''a statement of compliance with all applicable guidelines . . .'' to read ''a statement of compliance with all applicable regulations . . .'' Sections 53.60(a)(2), 53.60(b)(2), and (c) will simply delete the reference to ''and a statement of compliance with applicable guidelines'' as unnecessary. Finally, § 53.60(b)(1) will be modified from ''shall meet the appli-cable guidelines that have issued by the Commission in the form of regulations, orders or other directives regarding cost justification . . .'' to read ''shall meet any applicable state law or regulation regarding cost justification . . .''
Section 53.57. Definitions.
The terms ''cost support'' and ''documentary support'' are used throughout the proposed regulation without being defined. IRRC believes that it would improve clarity if these terms were defined in the final regulation.
In the context of this rulemaking, we believe that these terms do not need to be more fully defined. These terms have been used for a number of years by Commission staff in eliciting data from telecommunications carriers to justify tariff changes. Telecommunications carriers are familiar with the meaning of these terms. Furthermore, as various telecommunications markets open up to competition over time, both the type and amount of documentary and cost support information demanded by the Commission to justify tariff revisions may change. We are satisfied, therefore, that these terms do not require further definition in the final regulation.
IRRC also suggests that subsection (i) of the definition for ''joint or bundled service packages'' should be amended to change ''composed by'' to ''composed of.'' We agree with the change and incorporate it, along with the elimination of the phrase ''that may be'' before the word ''composed'' as unnecessary, into the phrase ''that may be'' before the word ''composed'' as unnecessary, into the final regulations.
The other suggested change offered by IRRC in the definition section is to move subsection (ii) of the ''promotional service offerings'' definition to § 53.60 (relating to supporting documentation for promotional offerings). Specifically, subparagraph (ii) provides that promotional service offerings may not be longer than 6 months in any rolling 12-month period. IRRC contends that this is a substantive requirement that should not be included within the definition.
We agree in part with IRRC that the time-limitation aspect of promotional service offerings is a substantive requirement which should be covered in § 53.60. IRRC's concern, however, also prompted us to reconsider the definition of ''promotional service offering'' in toto. This review has led us to provide a clearer, more concise definition of the term ''promotional service offering,'' spelling out that promotional services are designed to increase usage and are only of limited duration. This change should further satisfy IRRC's concern.
§ 53.58. Offering of competitive services.
Section 53.58(a) and (c) provide that when a service is designated ''competitive'' by the Commission, that service may then be offered by any CLEC or ILEC as a competitive service in the relevant service territory. IRRC asserts that § 53.58(a) and (c), to the extent they are interpreted to relieve competitive local exchange carriers (CLECs) from the requirements for filing a petition for an alternative form of regulation or a network modernization plan, appear to be inconsistent with sections 3003--3005 of Chapter 30 of the Public Utility Code. 66 Pa.C.S. §§ 3003--3005. IRRC asks the Commission to explain its statutory authority for these two provisions.
As an initial matter, we should state that our primary goal in this rulemaking is to establish streamlined tariff filing requirements for both CLECs and ILECs and not to provide a definitive statement on the applicability of Chapter 30's provisions to CLECs. In undertaking this task to streamline our tariff filing requirements, we have incorporated the ''competitive service'' designation under Chapter 30 as one of the mechanisms for streamlining the tariff filing requirements. This rulemaking proceeding does not otherwise affect our recent holdings that telecommunications providers are required to submit a network modernization plan unless the company can show good cause why it has not done so, Petition of Hancock Telephone Co. for Waiver of Sections 3003 and 3006 of Chapter 30 of the Public Utility Code, Docket No. O-00981445 (Order entered November 8, 1999); Petition of Citizens Telecommunications Co. of New York, Inc. d/b/a Citizens Communications Services Co. for Waiver of Sections 3003 and 3006 of chapter 30 of the Public Utility Code, Docket No. P-00981444 (Order entered November 8, 1999).
However, as we explained in our October 7, 1999 Order, the adoption of the instant regulation is necessitated, in large part, by our responsibility to implement the Federal Telecommunications Act of 1996 (TA-96), 47 U.S.C.A. §§ 251--276, and its goal (and that of Chapter 30 as well) of promoting a competitive telecommunications market. As we further explained at pages 16-17 of our Order:
[W]e do not believe that the proposed regulations contradict the statutory requirements of Chapter 30. Indeed, . . . the absence of an alternative or streamlined regulation plan for a new entrant CLEC does not in any way damage the public interest. In reality, CLEC operations are not currently regulated on the basis of a rate base/rate-of-return method . . . Thus, the filing of a Chapter 30 alternative or streamlined regulation plan by a CLEC would simply formalize existing regulatory parameters, albeit at a rather high administrative cost for the CLEC concerned and for this Commission.
TA-96 preempts State or local statutes or regulations that erect barriers to entry among telecommunications providers in the provision of any telecommunications service. 47 U.S.C.A. § 253. Indeed, the United States Court of Appeals for the Tenth Circuit just this past January affirmed the Federal Communications Commission's preemption of a Wyoming statute that unreasonably restricted competition in rural markets. RT Communications, Inc. v. F.C.C., 2000 U.S. App. Lexis 430 (10th Cir. January 13, 2000).
In proposing that a service designated competitive for an ILEC or CLEC under Chapter 30 can be offered by any other CLEC or ILEC as a competitive service in the same service territory, the Commission was cognizant of the preemption provision in TA-96 and the necessity of promulgating regulations that do not restrict entry, especially for CLECs. This could be construed as the case, however, if the Commission's regulation interpreted Chapter 30 to require a CLEC to file for a competitive classification under Chapter 30 (with the 9-month statutory period normally required for the disposition of a Chapter 30 petition) after an ILEC had already obtained such a classification for the service. Similarly, if the Commission's regulation required a CLEC to file an alternative regulation plan when CLECs are currently not regulated on a rate base/rate-of-return basis, the statute or regulation could conceivably be construed as a barrier to entry, thereby invoking the section 253 preemption provision.
Thus, we find that the adoption of § 53.58(a) and (c), without modification, is consistent with the competitive goals of both Chapter 30 and TA-96.2
The PTA requests that subsection (a) be expanded so as to require a new entrant to provide the ILEC with a courtesy copy of the tariffs and price lists referenced in subsection (d) that the new entrant intends to offer in the ILEC's service territory. The PTA contends that this change will give the ILEC an opportunity to prepare to make ''services'' available to the new entrant by the time the services are needed. Final Comments of PTA at 3.
We decline to accept this recommendation as there is no evidence that adopting such a price exchange will materially aid the availability of services such as the leasing of network elements to new entrants. In addition, the exchange of current prices among competitors could facilitate collusive activity in violation of the Federal and State antitrust laws. See, e.g., United States v. Container Corp., 393 U.S. 333, 335 (1969) (Court held that exchanges of information concerning the ''most recent price charged or quoted'' among sellers of corrugated containers unlawfully stabilized prices in violation of the Sherman Act).
Next, IRRC states that subsection (b) contains negative phrasing that makes this provision confusing. We will revise the language consistent with the suggestion offered by IRRC.
IRRC also requests that we clarify in subsection (e) that the ''proceeding'' to reclassify a service from competitive to noncompetitive would be a complaint, and that we clarify the process, procedure and parties that are permitted to participate by including a reference to the Commission's existing regulations on filing formal complaints. We believe both of IRRC's concerns can be fully resolved by adding the phrase, ''Pursuant to Chapter 5 (relating to formal proceedings),'' at the beginning of the first sentence in the subsection.
IRRC further suggests that the Commission should explain any factors that it uses to determine the ''level of dominant market power'' under subsection (e). After carefully considering IRRC's position, we conclude that the phrase ''level of dominant market power'' is not necessary and have removed it from the regulation. We find that the language in section 3005(d) of the Public Utility Code, 66 Pa.C.S. § 3005(d), sufficiently explains the factors and process the Commission will use to determine if a reclassification is necessary and have added language to that effect in the regulation.
IRRC also suggests that subsection (e)(4)(vii), providing that the Commission will consider ''other factors deemed relevant by the Commission,'' is too vague and is in need of further clarification. We disagree. The catchall language in question was extracted verbatim from regulations that are already in force in § 63.106(d)(5) for reclassifying competitive and noncompetitive services of-fered by interexchange telecommunications carriers. In an ever-changing market, we believe it would be unwise not to include the generic, catchall provision for reclassifying competitive and noncompetitive services for other telecommunications providers that subsection (e)(4)(vii) provides.
Finally, on our own motion the Commission has amended § 53.58(d) to include ministerial administrative tariff changes, which typically involve non-price, non-substantive type changes. The amendment also clarifies that tariff filings involving competitive services are effective on 1-day's notice, which simply codifies existing practice.
Section 53.59. Cost support requirements and effective filing dates for tariff filings of noncompetitive services.
In subsection (a), IRRC recommends that we replace the phrase ''is relieved from any obligation'' with the phrase ''is not required'' to increase clarity. This suggestion is incorporated in the final regulations.
IRRC next raises a concern with subsections (b) and (c) which apply to CLEC tariff filings for new services or for existing services when the proposed rates are higher than ILEC rates for the same service. If the rulemaking's purpose is to encourage competition, IRRC asks why we require a 30-day notice period for a CLEC that wants to reduce its rate to a rate that is still above the ILEC's rate. IRRC suggests that the regulation should specify instead the 1-day's notice provided in subsection (a).
Generally, one would expect a CLEC's rates to be at or below those of the ILEC if the CLEC expects to take market share away from the ILEC and be a successful long-term competitor in the ILEC's service territory. As we stated in our October 7, 1999, Order, however, some CLECs operating in Pennsylvania ''are offering their services to targeted end-user customers with poor credit histories at rates that are higher than those charged by ILECs and other CLECs for the same services.'' Proposed Rulemaking Order and Final Interim Guidelines, Dockets No. L-00940095, et al., at 18 (Order entered October 7, 1999). We concluded that tariff changes form these CLECs ''should be subjected to an additional degree of scrutiny in order to afford the necessary protection for its 'high-risk' end-user customers'' Id. at 19.
Moreover, our interest in protecting these customers, who may also be economically disadvantaged, is the same even if the CLEC is proposing to reduce its rates to a level that is still above those offered by the ILEC serving the same service territory. This is because price is not, and should not, be the only factor we look at in these circumstances. We are equally concerned that the CLEC not change other terms and conditions in a way that may be burdensome or misleading to the customer. For example, the CLEC could lower its rate at a level that is still above the corresponding ILEC's rate, but the CLEC could also add a tie-in provision requiring the consumer to take an unwanted service as part of a required service package. We believe that a 30-day review period in these circumstances properly balances our desire to protect consumers and the public interest goal of reducing regulatory burdens while still giving our staff sufficient review time.
Finally, we also think it is significant that this provision was universally accepted by all participants, including many CLECs, in the Global proceeding, and that not one CLEC filed comments objecting to this provision in the present proceeding. For all these reasons, we decline to adopt the IRRC recommendation.
Both IRRC and the PTA assert that the final regulation should include a notice and review period regarding ILECs filing for new services. Subsection (c)(2) requires a 30-day notice and review period for new services offered by CLECs, but there is no parallel provision for ILECs. The inclusion of the phrase ''new services'' was first raised by one or more CLECs during the Global proceeding and was incorporated into the proposed rulemaking without objection from any party.
We agree with this suggestion and will incorporate language in subsection (f)(3) of the final rulemaking so that the same 30-day notice and review standard applies to ILECs and to CLECs for new services. We believe it was simply an oversight that identical language was not incorporated into the subsection relating to ILECs during the Global proceeding. Applying the same standard is also supported by the fact that introducing a new service in a market is generally viewed as promoting competition in that market; therefore, a shortened notice and review period is appropriate for both CLECs and ILECs.3
IRRC also suggests that subsections (e)(1), now subsection (f) in the final regulations, should be broken down into separate paragraphs to improve clarity. In order to improve the clarity of not only this subsection but subsection (c) as well, we have incorporated this change in the final regulations.
In its comments, the PTA questions the reasonableness of the ''in person'' notice requirement stated in subsections (c)(1) and (e)(1),4 complaining that it is unnecessarily burdensome. Final Comments of PTA at 2-3. Both the OCA and OTS strongly object to the PTA's position on this issue in this proceeding as its members had the opportunity to object to this provision during the Global proceeding but did not do so. OCA Reply Comments at 7-8; OTS Reply Comments at 3-5. They assert that in return for agreeing to this ''in person'' notice provision, the PTA members and other ILECs received the abbreviated 10- and 30-day notice and review periods established in the original subsection (e). The notice and review period contained in subsection (c) simply modeled after the language agreed to in subsection (e). Both the OCA and OTC suggest, however, that the PTA's proposal to use e-mail instead of ''in-person'' service may be acceptable so long as the party filing the tariff immediately following its e-mail with service by mail on each of the statutory parties.
We agree with the OCA and OTC that the ''in person'' notice requirement was the quid pro quo for these parties agreeing not to oppose the shortening of the review process to 30 or 10 days, depending on whether the ILEC tariff filing represented a rate increase or a rate decrease. The ''in person'' notice requirement was meant to ensure that these agencies would receive the tariff filing on the same date that it is filed with the Commission. Especially for the 10-day notice period, an in-hand type notice requirement was acknowledged during the Global proceeding as being critically important to ensuring that the statutory agencies have sufficient time to review the tariff before it becomes effective.
We believe, however, that there are other service avenues available to the telecommunications carriers other than the ''in person'' approach that would satisfy the in-hand requirement that was of concern to the statutory agencies. For example, the provider could send the statutory agencies its tariff filing the day before filing with the Secretary's Bureau by an overnight delivery service, or the provider could utilize e-mail so long as it verified that the tariff filing was actually received by the three agencies. We, therefore, have changed the language in § 53.59(c)(3) and (f)(5) to require that the tariff filing be ''received'' by the statutory agencies on the date the filing is filed with the Secretary's Bureau.
Moreover, as advocated by the OCA and OTS, the Commission has clear authority under section 1308(a), authority under section 1308(a) of the Public Utility Code, 66 Pa.C.S. § 1308(a), to adopt an ''in hand'' notice requirement. Section 1308(a) provides that a utility must give notice of proposed rate changes ''to other interested parties as the commission in its discretion may direct.''5
IRRC also recommends that the misspelling of ''Lifeline'' in old subsection (g), now subsection (h), be corrected. This was a typographical error that occurred when the proposed rulemaking was re-printed in the Pennsylvania Bulletin. We will endeavor to ensure that the spelling is corrected in the final printing that will appear in the Pennsylvania Bulletin.6
Finally, similar to the changes we made in § 53.58(d), we have added new § 53.59(d) and (f)(4) to address CLEC and ILEC ministerial administrative changes affecting noncompetitive service offerings. CLEC ministerial changes will be effective on 1-day's notice and ILEC ministerial changes will be effective on 10-day's notice.
Section 53.60. Supporting documentation for promotional offerings, joint or bundled service packages, and toll services.
IRRC asserts that the phrase ''do not have an automatic obligation'' in subsection (a) is confusing and should be replaced with ''are not required.'' We agree. This change is incorporated into the final regulations.
Next, IRRC contends that subsection (a)(1)'s requirement on ILECs and CLECs to give advance notice to resellers of a promotional service offering contradicts accepted practice in a competitive marketplace. IRRC suggests that we delete this provision or explain why any competitor should get preferential treatment.
This provision was suggested during the Global proceeding by resellers who were fearful that, without this notice provision, they would not be able to compete effectively with the ILEC or CLEC from whom they purchase the promotional service offering for resale. No CLEC or ILEC objected then or in the comments filed herein when we incorporated the language in the proposed rulemaking. We, therefore, conclude that this provision should remain in the final regulations.7
The last comment offered by IRRC relates to subsection (a)(3). IRRC believes there is an inconsistency between the definition of ''promotional service offerings'' in § 53.57, which defines these services as noncompetitive, and subsection (a)(3), which provides that there are no filing requirements for promotional service offerings involving competitive services.
We agree that there is an apparent discrepancy. The new definition of ''promotional service offering'' in § 53.57 and revised language in the final rulemaking, however, addresses this concern. In addition, we changed the order of the old subsection (a)(3) and (4) to improve clarity as well.8
Conclusion
Accordingly, under sections 501 and 1501 of the Public Utility Code, 66 Pa.C.S. §§ 501 and 1501; sections 201 and 202 of the Commonwealth Documents Law (45 P. S. §§ 1201 and 1202), and the regulations promulgated thereunder in 1 Pa. Code §§ 7.1, 7.2 and 7.5; section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732.204(b)); section 5 of the Regulatory Review Act (71 P. S. § 745.5); and section 612 of The Administrative Code of 1929 (71 P. S. § 232); and the regulations promulgated thereunder in 4 Pa. Code §§ 7.251--7.235, we find that the regulations governing tariff filing requirements for the telecommunications industry in §§ 53.52--53.53 should be amended by adding §§ 53.57--53.60 as set forth in Annex A.
Therefore,
It Is Ordered that:
1. The regulations of the Commission, 52 Pa. Code Chapter 53, are amended by adding §§ 53.57--53.60 to read as set forth in Annex A.
2. The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
3. The Secretary shall submit this order and Annex A to the Office of Attorney General for approval as to legality.
4. The Secretary shall submit this order and Annex A to the Governor's Budget Office for review of fiscal impact.
5. The Secretary shall submit this order and Annex A for review by the designated standing committees of both houses of the General Assembly, and for review and approval by IRRC.
6. A copy of this order and Annex A shall be served upon the Pennsylvania Telephone Association, all jurisdictional telecommunications utilities, the Office of Trial Staff, the Office of Consumer Advocate and the Small Business Advocate.
7. The final regulations embodied in Annex A shall become effective upon publication in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 30 Pa.B. 5807 (November 4, 2000).)
Fiscal Note: Fiscal Note 57-209 remains valid for the final adoption of the subject regulations.
Annex A TITLE 52. PUBLIC UTILITIES PART I. PENNSYLVANIA PUBLIC UTILITY COMMISSION Subpart C. FIXED SERVICE UTILITIES CHAPTER 53. TARIFFS FOR NONCOMMON CARRIERS TARIFF FILING REQUIREMENTS FOR INCUMBENT LOCAL EXCHANGE CARRIERS AND COMPETITIVE LOCAL EXCHANGE CARRIERS § 53.57. Definitions.
The following words and terms, when used in this section and §§ 53.58--53.60, have the following meanings, unless the context clearly indicates otherwise:
CLEC--Competitive local exchange carrier--A telecommunications company that has been certificated by the Commission as a CLEC under the Commission's procedures implementing the Telecommunications Act of 1996, the act of February 8, 1996 (Pub.L. No. 104-104, 110 Stat. 56), or under the relevant provisions of 66 Pa.C.S. § 3009(a) (relating to additional powers and duties).
Competitive service--A service or business activity offered by an ILEC or CLEC that has been classified as competitive by the Commission under the relevant provisions of 66 Pa.C.S. § 3005 (relating to competitive services).
ILEC--Incumbent local exchange carrier--A telecommunications company deemed to be an ILEC under section 101(a)(h) of the Telecommunications Act of 1996 (47 U.S.C.A. § 251(h)).
Joint or bundled service packages--
(i) Service packages composed of one or more distinct categories of noncompetitive and competitive services and service options or features, inclusive of toll services, when the service packages are offered by CLECs and ILECs under a single rate or charge and a unified set of terms and conditions for service as defined in a tariff approved by the Commission.
(ii) The term does not include ILEC or CLEC tariff filings that involve simultaneous changes in rates and charges for noncompetitive services in a revenue neutral manner.
Lifeline plan--A tariffed service offering, approved by the Commission, which provides telecommunications services to qualified low-income end-user consumers at reduced rates and charges in accordance with applicable State or Federal law or regulations.
New service--A service that is not substantially the same or functionally equivalent with existing competitive or noncompetitive services.
Noncompetitive service--A protected telephone service as defined in 66 Pa.C.S. § 3002 (relating to definitions) or a service that has been determined by the Commission as not a competitive service.
Promotional service offerings--A service offered by a CLEC or ILEC at rates, terms and conditions that are designed to promote usage and available for a duration of no longer than 6 months in any rolling 12-month period.
§ 53.58. Offering of competitive services.
(a) ILEC services that have been classified as competitive under the relevant provisions of 66 Pa.C.S. § 3005 (relating to competitive services), may also be offered by CLECs as competitive services without prior competitive determination and classification by the Commission subject to this section.
(b) Under § 53.59 (relating to cost support requirements and effective filing dates for tariff filings of noncompetitive services), a CLEC may offer services classified as noncompetitive in an ILEC service territory when the CLEC has been certificated to offer service.
(c) When the Commission approves a CLEC petition under the relevant provisions of 66 Pa.C.S. § 3005 for classification of a noncompetitive service to a competitive service, the ILEC serving that petitioning CLEC's service territory and other certificated CLECs within the petitioning CLEC's service territory may offer the service approved by the Commission as a competitive service subject to this section.
(d) CLECs and ILECs offering services classified by the Commission as competitive shall file with the Commission appropriate informational tariffs, price lists, and ministerial administrative tariff changes. These filings will become effective on 1-day's notice.
(e) Under Chapter 5 (relating to formal proceedings), the Commission may initiate a proceeding for the potential reclassification from competitive to noncompetitive a service that is offered by either or both an ILEC and CLECs in a specific service territory under the relevant provisions of 66 Pa.C.S. § 3005(d).
(1) The Commission will decide which competitive service of an ILEC or CLEC warrants reclassification to noncompetitive status under relevant provisions of 66 Pa.C.S. § 3005(d).
(2) The Commission will provide an opportunity to participate in the proceeding to the ILEC and to those CLECs that offer substantially the same or functionally equivalent competitive service within the service territory of the ILEC or specific CLEC for which there is a reclassification proceeding.
(3) The Commission will separately determine whether the substantially same or functionally equivalent service that is offered by the competing ILEC or CLECs in the relevant service territory will continue to be classified as a competitive service.
(4) When reviewing whether a service should be reclassified, the Commission will consider the following factors:
(i) The ease of entry by potential competitors into the market for the specific service at issue.
(ii) The presence of other existing telecommunications carriers in the market for the specific services at issue.
(iii) The ability of other telecommunications carriers to offer the service at competitive prices, terms and conditions.
(iv) The availability of like or substitute service alternatives in the relevant geographic area for the service at issue.
(v) Whether the service is provided under conditions that do not constitute unfair competition.
(vi) Whether the service, including its availability for resale under the relevant provisions of the Telecommunications Act of 1996, the act of February 8, 1996 (Pub.L. No. 104-104, 110 Stat. 56), is provided on a nondiscriminatory basis.
(vii) Other factors deemed relevant by the Commission.
§ 53.59. Cost support requirements and effective filing dates for tariff filings of noncompetitive services.
(a) CLEC services priced below ILEC rates. A CLEC that offers services that are substantially the same or functionally equivalent with noncompetitive services by an ILEC in the service territory of the ILEC, at rates and charges that are at or below the level of the corresponding rates and charges of the ILEC for these services, is not required to provide cost support for tariff filings and rate changes involving these services. These tariff filings will be effective on 1-day's notice if the following apply:
(1) The CLEC offers these services in the same service territory as the ILEC.
(2) The CLEC tariff filing does not contain any material changes in the CLEC's tariff rules, terms or conditions.
(3) The CLEC specifically states in its accompanying cover letter that the filing is being made on 1-day's notice in accordance with this subsection, and that the tariff filing does not contain material changes in the CLEC tariff rules, terms or conditions.
(4) The CLEC provides copies of the ILEC's effective tariffs designating the corresponding rates and charges of the same or functionally equivalent noncompetitive services.
(b) CLECs operating in multiple ILEC territories. When a CLEC offers services in the service territories of more than one ILEC, and the rates and charges for these services satisfy the criteria of subsection (a), the CLEC may file separate tariff schedules when the rates and charges for these services correspond to the rates and charges of the different ILECs in their respective service territories.
(c) CLEC services priced above ILEC rates and CLEC new services.
(1) CLEC tariff filings for services that are substantially the same or functionally equivalent with noncompetitive services offered by an ILEC in the same service territory of the ILEC, at rates and charges that are higher than the corresponding rates and charges of the ILEC, will become effective as filed if the Commission does not take any action within 30 days from the date when all consumers subject to the rate increase shall have received individual notice.
(2) CLEC tariff filings for new services will become effective as filed if the Commission does not take any action within 30 days from the date the tariff filing is filed with the Commission.
(3) The tariff filings in this subsection shall be received by the Office of Consumer Advocate, the Office of Small Business Advocate and the Commission's Office of Trial Staff on the date of filing with the Commission's Secretary's Bureau.
(4) The Commission may extend the review period in this subsection by up to an additional 30 days upon notice to the Office of Consumer Advocate, the Office of Small Business Advocate, the Commission's Office of Trial Staff and the affected CLEC.
(5) The CLEC shall include the following summary documentation for tariff filings involving the services:
(i) A brief statement indicating whether the CLEC offers these services solely on the basis of resale of an ILEC's retail services, through its own facilities, or a combination of both.
(ii) A brief statement indicating whether the tariff filing represents an increase or decrease in existing rates and charges.
(iii) A summary justification of the tariff filing, including an explanation of whether the proposed changes have been caused by a corresponding change in rates and charges of the resold services of the underlying ILEC.
(d) CLEC ministerial administrative changes. CLEC ministerial administrative tariff filings for services that are substantially the same or functionally equivalent with noncompetitive services offered by an ILEC in the same service territory of the ILEC, will be effective on 1-day's notice.
(e) Cost support for CLEC filings. When new or revised CLEC rates for service are higher than those of the ILEC in that ILEC's service territory, the Commission may request relevant documentary support, including cost support and a statement of compliance with applicable guidelines. The requests can be made either before or after the rates become effective, and will only occur when it is necessary to protect consumers such as, without limitation, when the service is targeted to the economically disadvantaged or customers with poor credit histories.
(f) ILEC rate changes.
(1) Rate reductions. ILEC tariff filings for noncompetitive services that represent rate reductions from current rates and charges of that ILEC, will become effective as filed if the Commission does not take any action within a 10-day notice and review period. To obtain the 10-day notice and review period, the ILEC shall provide copies of its current tariff for the noncompetitive service for which it seeks a rate reduction.
(2) Rate increases. ILEC tariff filings for noncompetitive services that represent rate increases from current rates and charges of that ILEC will become effective as filed if the Commission does not take any action within 30 days from the date when all consumers subject to the rate increase shall have received individual notice.
(3) New services. ILEC tariff filings for new services will become effective as filed if the Commission does not take any action within 30 days from the date the tariff filing is filed with the Commission.
(4) Ministerial administrative changes. ILEC ministerial administrative tariff filings for noncompetitive services will be effective on 1-day's notice.
(5) Notice. The tariff filings in this subsection shall be received by the Office of Consumer Advocate, the Office of Small Business Advocate and the Commission's Office of Trial Staff on the date of filing with the Commission's Secretary's Bureau.
(6) Extension of review period. The Commission may extend the review period in this subsection by up to an additional 30 days upon notice to the Office of Consumer Advocate, the Office of Small Business Advocate, the Commission's Office of Trial Staff and the affected ILEC.
(7) Documentary support. Nothing in this subsection affects the type of documentary support, including cost support and a statement of compliance with all applicable regulations, that will be necessary for an ILEC to file with the Commission for approval of tariff filings involving noncompetitive service offerings.
(g) Executive overview. ILECs and CLECs that file tariff filings in accordance with subsection (c) or (f) shall file an executive overview summarizing the reason for the filing. The executive overview shall include relevant information regarding the safety, adequacy, reliability and privacy considerations related to the proposed or revised service.
(h) Lifeline plan statement. When a CLEC proposes increases in rates and charges for any of its basic local exchange services, the CLEC shall also state whether it has implemented a Lifeline Plan that has been approved by the Commission.
§ 53.60. Supporting documentation for promotional offerings, joint or bundled service packages, and toll services.
(a) Promotional offerings. CLECs and ILECs are not required to provide cost support for tariff filings involving a promotional service offering for noncompetitive services so long as the promotional offering does not result in any type of price increase to customers.
(1) ILEC and CLEC tariff filings involving a promotional service offering for noncompetitive services will become effective on 1-day's notice. ILECs and CLECs shall provide a 10-day advance notice to any resellers that purchase the promotional service offering from the ILEC or CLEC making the tariff filing.
(2) The Commission may request relevant documentary support, including cost support for tariff filings involving promotional service offerings for noncompetitive services.
(3) CLECs and ILECs that file promotional service offerings for noncompetitive services under this subsection shall confirm in their filing that subscribers to the promotional service offerings will be required to respond affirmatively at any time the promotional service is being offered if they wish to continue the service beyond the promotional period.
(4) Promotional service offerings 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.
(5) No filing requirements exist for promotional service offerings involving competitive services.
(b) Joint or bundled service packages. CLECs and ILECs are relieved from an automatic obligation to provide cost support for tariff filings involving the offering of joint or bundled service packages.
(1) When ILEC joint or bundled service packages include both competitive and noncompetitive services, these service packages shall meet any applicable State law or regulation regarding cost justification, discrimination and unfair pricing in joint or bundled service package offerings, and their component competitive and noncompetitive services.
(2) The Commission may request relevant documentary support, including cost support, for tariff filings involving joint or bundled services.
(3) No filing requirements exist for the offering of joint or bundled service packages composed entirely of competitive services.
(c) Toll services. CLECs and ILECs may file tariffs with changes in their rates and charges for existing noncompetitive toll services alone that can become effective on 1-day's notice. A 16-day notice period is required for the filing of a new toll service or the specific noncompetitive services defined in 66 Pa.C.S. § 3008(a) (relating to interexchange telecommunications carrier). For tariff filings and rate changes involving noncompetitive toll services, the Commission may request relevant documentary support, including cost support.
[Pa.B. Doc. No. 00-2061. Filed for public inspection December 1, 2000, 9:00 a.m.] _______
1 AT&T Communications of Pennsylvania, Inc. submitted a letter in lieu of formal comments concerning the proposed Rulemaking Order supporting the adoption of the proposed regulations but noting that other steps are necessary to promote the ability of new entrants to compete with incumbent local exchange carriers (ILECs).
2 IRRC also asserts that the phrase ''subject to §§ 53.57, 53.59, 53.59, 53.60 and this section'' in both subsections (a) and (c) of section 53.58 is confusing. As originally proposed, the phrase in question read simply ''subject to the provisions in this subpart.'' The Legislative Reference Bureau changed the language before publishing the text of the proposed rulemaking language in the Pennsylvania Bulletin in an effort to clarify the meaning of the word ''subpart.'' We will revise the language so that it reads ''subject to this section'' to achieve the meaning originally intended in the October 7, 1999 Order and at the same time eliminating any confusion created by the subsequent language appearing in the Pennsylvania Bulletin.
3 In IRRC's comments on this issue, IRRC states that ''[c]onsistent with Subsection (c), the PUC should revise this subsection to establish a 10-day waiting period for tariff filings for new services.'' IRRC Comments at 3. As discussed above, however, subsection (c) actually establishes a 30-day waiting period for tariff filings by CLECs for new services. IRRC's comments make clear they were looking for consistency between the two subsections so we assume adopting the same 30-day period for both CLECs and ILECs will satisfy IRRC's concerns.
4 As revised in the final regulations, the language in question that appeared in original subsection (e)(1) now appears in subsection (f)(5).
5 We also, for the sake of clarity, have changed the phrase ''when all consumers subject to the rate increase shall have received notice to each individual consumer'' in both subsections (c)(1) and (f)(2) to read ''when all consumers subject to the rate increase shall have received individual notice.''
6 On our own motion, we added the word ''affected'' before ''CLEC'' and ''ILEC,'' respectively, in subsections (c)(4) and (e)(5).
7 We are not concerned with the United States v. Container Corp.-type price exchange issue noted above in this context because it is generally acknowledged that resellers of telecommunications services in the current marketplace do not have market power. We believe the advance-notice requirement here will have a procompetitive effect by creating a more level playing field for resellers competing against the more established market participants. If it later develops that this provision may be having a price-setting or price-stabilizing effect or other anticompetitive effect in the market, we can revisit the issue at that time to determine if the provision has outlived its usefulness and should be repealed.
8 Again, on our own motion, we changed the phrase ''effective with a 1-day's notice'' in subsections (a)(1) and (c) to ''effective on 1-day's notice'' to improve clarity and to be consistent with the language used elsewhere in the final regulations.
