Order [34 Pa.B. 3214] Public Meeting held
May 27, 2004Commissioners Present: Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland
Digizip.com Inc. Petition for Reinstatement of Certificate of Public Convenience (2003.0096.01); A-311173 Order By the Commission:
On May 23, 2003, the Commission entered a Tentative Order at this docket against Digizip.com Inc. (Digizip), a telecommunications interexchange reseller certificated at A-311173, tentatively revoking Digizip's certificate of public convenience for failure to return the Annual Assessment Report for Fiscal Year 2003/2004 under section 520(b) of the Public Utility Code (66 Pa.C.S. § 520(b)). A Tentative Order was entered rather than the filing of a complaint and subsequent Default Order because the company had failed in its responsibility to notify the Commission of any address or phone number changes so there was no reasonable means for filing a complaint with the expectation that Digizip.com would receive it and thereafter file a response. The Tentative Order was published June 7, 2003, in the Pennsylvania Bulletin at 33 Pa.B. 2727, with a 30-day comment period. When no adverse comments regarding the certificate revocation were filed during the comment period, the Tentative Order became final without further action of this Commission; however, Digizip's certificate was never officially cancelled by the Secretary's Bureau.
On June 9, 2003, Digizip filed its 2003/2004 Annual Assessment Report with the Commission. However, at the time of the filing, Digizip was unaware that the Commission had commenced revocation of Digizip's certificate through issuance of the Tentative Order and was not aware of the process required to request reconsideration of the Tentative Order before it became final. It was only after the Tentative Order became final that Digizip learned about the separate revocation proceedings. Thereafter, on August 11, 2003, Digizip filed a Petition for Reinstatement of Certificate of Public Convenience.
In its Petition, Digizip states that to avoid additional failures to file annual assessment reports, it has set up a new internal system for monitoring the filing of these reports, as well as other State compliance requirements. Digizip states that taking these steps will ensure that it timely complies with future filing deadlines. Digizip requests reinstatement since it has now filed its 2003/2004 Annual Assessment Report and has taken necessary steps to ensure that it will not again be delinquent with these filings.
It is well-settled that decisions such as whether to grant a petition for reinstatement are left to the Commission's discretion and will be reversed on appeal only if that discretion is abused. Hoskins Taxi Serv. 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 to reach an equitable result. Re: 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., Dkt. No. A-00110601 (May 4, 1999).
In considering the first factor, we note that only approximately 11 weeks elapsed between when the Tentative Order was entered on May 23, 2003, and Digizip's request for reinstatement on August 11, 2003, and that Digizip actually filed its overdue 2003/2004 Annual Assessment Report in early June during the 30-day comment period.
In regard to the second factor, Digizip does not have a record of habitually violating the Public Utility Code. Digizip has had no additional complaints issued against it since the issuance of its certificate in 2002.
In considering the third and fourth factors, Digizip's excuse for the violation was that its internal system for monitoring the compliance filing requirements was inadequate and that it has taken the necessary steps to ensure that its regulatory compliance remains in good standing in the future. The fact that Digizip has now complied with its Annual Assessment reporting requirements for 2003/2004 and has represented to the Commission that it has taken action internally 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 Digizip has no unpaid fines or assessments.
Based upon the foregoing, we grant Digizip's petition for reinstatement. However, we caution Digizip that in the future annual assessment reports required to be filed with the Commission must be timely filed and all Commission assessments must be paid in a timely manner; Therefore,
It Is Ordered That:
1. The Petition for Reinstatement filed by Digizip.com Inc. at A-311173 on August 18, 2003, is hereby granted.
2. The certificate of public convenience held by Digizip.com Inc. at A-311173 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. 04-1100. Filed for public inspection June 18, 2004, 9:00 a.m.]
