Wholesale Rate for Resale of Telecommunications Services Provided by Verizon Pennsylvania Inc. [33 Pa.B. 6388] Public Meeting held
December 4, 2003Commissioners Present: Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland
Wholesale Rate for Resale of Telecommunications Services Provided By Verizon Pennsylvania Inc.; R-00038516 (Order Certifying a Material Question and Staying Proceedings; Stipulation Regarding Material Question Certified to Commission) Opinion and Order By the Commission:
Before the Commission for consideration are: (1) an Order Certifying a Material Question and Staying Proceedings issued by Administrative Law Judge (ALJ) Michael C. Schnierle on October 23, 2003 (Order Certifying Material Question); and (2) a Stipulation Regarding Material Question Certified to Commission (Stipulation) in the previously captioned proceeding.1 ALJ Schnierle, for reasons explained more fully, has stayed the proceeding relative to the previously captioned rate proceeding pending the Commission's Answer to the following Material Question:
Should this proceeding be terminated immediately and a new investigation begun into the combined resale rates of Verizon Pennsylvania, Inc. and Verizon North, [Inc.] or does the Commission wish to reconsider its original order regarding the scope of this proceeding, expand the scope to include Verizon North, [Inc.], and publish its reconsideration order in the Pennsylvania Bulletin with a new deadline for petitions to intervene?
Discussion
The underlying proceeding was initiated by the Commission for the purpose of establishing new wholesale rates for the resale of telecommunications services by Verizon Pennsylvania Inc. (formerly Bell Atlantic-Pennsylvania, Inc.) (Verizon PA) to retail subscribers under 47 U.S.C. § 252(d)(3) and other applicable law.2 Verizon PA's existing wholesale rates had been declared unlawful by the United States Court of Appeals for the Third Circuit.3
By Order entered October 1, 2003, ALJ Schnierle denied a Petition filed by FSN to intervene in Verizon PA's wholesale rate proceeding. ALJ Schnierle denied the Petition based on timeliness, as FSN's Petition was filed almost 2 months after the date for intervention set by the Commission. The ALJ explained in his Order Certifying a Material Question that publication of the document in the Pennsylvania Bulletin constituted constructive notice ofthe order to all persons. 45 Pa.C.S. § 904; 52 Pa. Code § 5.201. Furthermore, the ALJ indicated in his Order Certifying a Material Question that he reviewed the list attached to the Commission's Order in the Commission's document folder for the case and determined that FSN was listed as one of the carriers served. (Order Certifying Material Question at 3.)
On October 3, 2003, FSN filed a Motion for Reconsideration or Certification of a Material Question and Stay of Proceedings, or in the alternative, to certify the ALJ's denial to the Commission. FSN also sought a stay of proceedings pending consideration of the certification question. On October 7, 2003, Curry filed its Petition to intervene. Curry's Petition is currently being held in abeyance pending Commission action on the Material Question.
On October 8, 2003, Verizon PA filed its direct testimony. That testimony included resale cost studies for both Verizon PA and Verizon North. Verizon's witness, Bruce Meacham, proposed in his testimony to expand the scope of the investigation to include Verizon North and set a single discount rate for both Verizon PA and Verizon North. (Verizon St. 1.0 at 31.) Verizon witness Meacham testified that ''it would be an expeditious and efficient use of party and Commission resources to set a statewide discount for both companies in the same proceeding.'' (Verizon St. 1.0 at 7-8.)
FSN, joined by the OTS and the OCA, are all of the opinion that FSN should not be held to the deadlines established in the Commission's June 16, 2003 Order, because FSN does not subscribe to the Pennsylvania Bulletin and it has no record of ever having received the Order in the mail. These Parties argue that the June 16, 2003 Order, instituting this proceeding, was not served by certified mail, and consequently, the Commission has no proof that FSN actually received the order.4
In addition to the previous arguments in support of FSN, the OCA individually argues that because Verizon PA has attempted to expand the scope of this proceeding by including Verizon North, as well as Verizon PA, publication of the Commission's Order, which mentioned and concerned only Verizon PA, was inadequate to serve as notice of the true scope of the proceeding. Verizon PA responded that the Pennsylvania Bulletin may be viewed on the Pennsylvania World Wide Web site for free and that granting the relief sought by FSN would defeat the purpose of setting a deadline for intervention and publishing said deadline in the Pennsylvania Bulletin.
The ALJ agreed with the OCA's argument concerning the scope of this proceeding. The ALJ reasoned that if Verizon PA's belated attempt to expand the proceeding to include Verizon North is allowed, then the publication of the Commission's Order in the Pennsylvania Bulletin constitutes inadequate notice. At the same time, the ALJ agrees with Verizon PA that addressing both companies' wholesale discount rates in the same proceeding would be more efficient, but that it can be done only after the public is given proper notice. Based on the foregoing, the ALJ reasoned that this case must either be terminated and a new one, begun with proper notice published in the Pennsylvania Bulletin or that the Commission must reconsider its June 16, 2003 Order, modify the scope of the proceeding and publish its reconsideration order in the Pennsylvania Bulletin with a new deadline for petitions to intervene.
Consistent with the previous reasoning, the ALJ stayed the proceeding pending the Commission's Answer to the subject Material Question. Instead of having the Commission respond to the certified Material Question posed by the ALJ, the Stipulating Parties5 propose that the case proceed in the following manner:
* * * 3. The Stipulating Parties consent to the entry of an order stating that the scope of this proceeding will include determining the wholesale rate for resale of telecommunications services provided by Verizon Pennsylvania Inc. and Verizon North Inc. to retail subscribers pursuant to 47 U.S.C. § 252(d)(3). The order will promptly be published in the Pennsylvania Bulletin and will provide that, in light of the addition of Verizon North to this proceeding, a new intervention deadline will be established and any Petition to Intervene must be filed within 20 days after publication of such order in the Pennsylvania Bulletin. A proposed form of Order is attached.
4. The Stipulating Parties agree that the petitions to intervene of FSN and Curry should be granted.
5. Within one week after the new intervention deadline, the Stipulating Parties and any additional parties that file timely interventions will submit an agreed-upon procedural schedule to the presiding officer, or to the extent the parties are unable to agree will submit any unresolved scheduling matters to the presiding officer for resolution.
(Stipulation at 2.)
Based on our review and evaluation of the Stipulation, we conclude that the proposed resolution, as set forth in the Stipulation, is in the public interest and would result in an efficient use of the Parties' and this Commission's time and resources. Therefore, we shall grant the Stipulation Regarding Material Question Certified to Commission, consistent with the ordering paragraphs drafted by the Stipulating Parties, with minor modifications, and which are incorporated in the Ordering Paragraphs of this Opinion and Order. Finally, we note that our granting of the Stipulation will render the certified Material Question moot; Therefore,
It Is Ordered That:
1. The proceeding initiated by our Order entered June 16, 2003, at Docket No. R-00038516, is modified and shall include the determination of wholesale rate(s) for resale of telecommunications services provided by Verizon Pennsylvania Inc. and Verizon North Inc. to retail subscribers under 47 U.S.C. § 252(d)(3) and other applicable law.
2. The expanded proceeding shall be assigned to the Office of Administrative Law Judge (OALJ), for further proceedings before the OALJ as shall be consistent with this Opinion and Order.
3. The Petitions to Intervene filed by Full Service Computing Corporation t/a Full Service Network and Curry are granted.
4. The Secretary shall cause this Opinion and Order to be published in the Pennsylvania Bulletin.
5. Any Petition to Intervene must be filed within 20 days after publication in the Pennsylvania Bulletin.
6. The certified Material Question presented by ALJ Schnierle on October 22, 2003, is rendered moot.
JAMES J. MCNULTY,
Secretary______
1 The Stipulation was filed by the following: Verizon Pennsylvania Inc. (Verizon PA), Verizon North Inc. (Verizon North), the Office of Consumer Advocate (OCA), the Office of Trial Staff (OTS), the Office of Small Business Advocate (OSBA), Full Service Computing Corporation t/a Full Service Network (FSN) and Curry Communications Inc. (Curry) (collectively referred to as Stipulating Parties).
2 See Wholesale Rate for Resale of Telecommunications Services Provided by Verizon Pennsylvania Inc.; Docket No. R-00038516 (Order entered June 16, 2003) (hereinafter, June 16, 2003 Order).
3 MCI Telecom. Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 519-520 (3d Cir. 2001), cert. denied 123 S. Ct. 340 (2002) (reversing District Court judgment upholding the rates). The relevant District Court proceeding is MCI Telecom. Corp v. Bell Atlantic-Pa., Civil Action No. 03-685 (E.D. Pa.), originally filed at Civil Action No. CV-97-1857 (M.D. of Pa.).
4 It is noted that, in addition to publication in the Pennsylvania Bulletin, the Commission mass-mailed supplemental notices to all telecommunications resellers of record. That mass mailing was not mailed as ''certified mail.'' The ALJ opined that although the noncertified mailing of supplemental notice was not necessary, it is not prohibited (45 Pa.C.S. § 907) and the supplemental, noncertified, mailing of notice to all resellers did not undermine the effectiveness of the notice published in the Pennsylvania Bulletin. (Order Certifying Material Question at 3.)
5 Stipulating Parties comprise the following: Verizon PA, Verizon North, the OCA, the Commission's OTS, the OSBA, FSN and Curry.
[Pa.B. Doc. No. 03-2436. Filed for public inspection December 19, 2003, 9:00 a.m.]
