WSR 97-17-026

EMERGENCY RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[Docket No. UT-970317, General Order No. R-441--Filed August 12, 1997, 4:20 p.m.]

In the matter of amending WAC 480-80-330 and 480-120-027 and adopting WAC 480-123-010.

This is an emergency rule-making proceeding that is designed to amend and adopt rules to become effective when filed.

The Washington Utilities and Transportation Commission is conducting this rule making pursuant to RCW 80.01.040 and 34.05.350. This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

The facts requiring emergency action are as follows:

On May 8, 1997, the Federal Communications Commission (FCC) released its Report and Order, FCC Order No. 97-157, (FCC Order) implementing key portions of Section 254 of the Telecommunications Act of 1996 (the federal act), which addresses universal service. Among other matters, the order identified services to be supported by federal universal service funding and the mechanisms whereby such funding will be provided. Discounts on telecommunications services and certain nontelecommunications services for schools and libraries are among the items earmarked for federal funding. The rule making also addresses contracts pursuant to the federal universal service program providing services to rural health care providers.

The FCC Order provides for funding of both interstate and intrastate services for schools and libraries. The federal act provided that the FCC set the discounts for such interstate services for schools and libraries and reserved to the states the authority to set such discounts for intrastate services.

The FCC Order setting federal discounts and the parameters for the intrastate discounts was not issued until May 8 and was not published in the Federal Register until June 17, 1997. The intrastate discounts must be set immediately in order to permit Washington state schools and libraries to receive the available funds, it is appropriate under RCW 34.05.350(b) for the commission to adopt emergency rules pending the final permanent rule adoption.

The commission has filed a preproposal notice of its intention to promulgate permanent rules on the subjects addressed by these emergency rules. The commission has also provided notice of the proposed emergency rule adoption to interested persons and provided the opportunity for comment.

The Washington Utilities and Transportation Commission finds that an emergency exists. It finds that the federal law and rules require immediate adoption of a new commission rule and amendment of existing rules. It finds that immediate adoption of a new rule and immediate amendment of existing rules are necessary for the preservation of the public health, safety, or general welfare, and that observing the statutory requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

This adoption of a new rule and amendment to existing rule affect no economic values and have no adverse environmental effect, in that they merely provide a means for Washington state institutions to take advantage of the federal program and no intrastate funds are involved.

In reviewing the entire record, the commission determines that it should amend WAC 480-80-330 and 480-120-027 and it should adopt WAC 480-123-010, to read as set forth in Appendix A, as a rule of the Washington Utilities and Transportation Commission, to be effective when filed. These rule changes will make commission regulations consistent with the federal requirements.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 1, amended 2, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

order


THE COMMISSION ORDERS That WAC 480-80-330 and 480-120-027, as set forth in Appendix A, is amended, to take effect as an emergency rule of the Washington Utilities and Transportation Commission pursuant to RCW 34.05.350 and 34.05.380(2), to be effective when filed.

THE COMMISSION FURTHER ORDERS That WAC 480-123-010, as set forth in Appendix A, is adopted, to take effect as an emergency rule of the Washington Utilities and Transportation Commission pursuant to RCW 34.05.350 and 34.05.380(2), to be effective when filed.

THE COMMISSION FURTHER ORDERS That this order and the rules set forth in Appendix A, after being first recorded in the order register of the Washington Utilities and Transportation Commission, be forwarded to the code reviser for filing pursuant to chapters 34.05 RCW and 1-21 WAC.

DATED at Olympia, Washington, this 30th day of July 1997.

Washington Utilities and Transportation Commission

Sharon L. Nelson, Chairman

William R. Gillis, Commissioner

APPENDIX "A"




AMENDATORY SECTION (Amending Order R-301, Docket No. U-88-1704-R, filed 6/1/89)

WAC 480-80-330 Telecommunications contracts. (1) Contracts to be filed. All contracts with end use customers for the retail sale of regulated intrastate telecommunications services which contain or state rates or conditions not in conformance with any applicable tariff or which provide for telecommunications services which are not specifically addressed in the telecommunications company's published tariffs shall be filed with the commission in accordance with this section. For purposes of this section the modification of a previously executed contract will be treated as a new contract. This section shall not apply to contracts which offer services subject to a price list filed pursuant to WAC 480-120-027.

(2) Application. This section shall apply prospectively to all contracts as defined in subsection (1) of this section executed after the effective date of this section.

(3) Time for filing and effectiveness. With the exception of firm bid contracts allowed under subsection (4) of this section, each contract shall be filed with the commission in accordance with this subsection. A contract which does not qualify for treatment under subsection (4) of this section shall be filed with the commission not less than thirty days prior to the proposed effective date of the contract, and shall become effective according to its terms unless earlier approved or rejected by the commission: Provided, That upon application and for good cause shown, the commission may approve the contract as of an effective date prior to the date that the contract would have become effective in accordance with this section.

(4) Federal contracts. Where a federal agency asserts its authority to solicit a firm offer of services and a contract subject to this section is submitted in response to that solicitation, the provisions of subsection (3) of this section will not apply. Upon the acceptance of such a contract offer by the federal agency, the telecommunications company shall immediately file the contract with the commission and must include the same documentation required for approval by subsection (5) of this section.

(5) Documentation. Each contract and substantial contract modification filed pursuant to this section shall be accompanied by documentation to show that the contract does not result in undue or unreasonable discrimination between customers receiving like and contemporaneous service under substantially similar circumstances; and provides for the recovery of all costs associated with the provision of the services. In addition, the telecommunications company shall file the following information in conjunction with each contract submitted:

(a) A statement summarizing the basis of the rate or charge proposed in the contract and an explanation of the derivation of the proposed rate or charge;

(b) An explanation of all cost computations involved in arriving at the derivation of the level of the rate or charge in the contract; and

(c) A statement indicating the basis for the use of a contract rather than a filed tariff for the specific service involved.

(6) Duration of contract. All contracts shall be for a stated time period.

(7) Confidentiality. Filings under this section may be submitted with portions designated "confidential" pursuant to WAC 480-08-015. However, any filing which designates as "confidential" the essential terms and conditions will be rejected by the commission.

(8) Federal universal service contracts with schools, libraries, and rural health care providers pursuant to 47 CFR, Part 54. When a telecommunications company enters into a contract to provide service to a school or library as part of the federal universal service program, the telecommunications company must file the contract if the rates, terms, or conditions of the prediscounted contract service depart from the tariff. The contract must be filed immediately upon acceptance by the administrator of the federal universal service program for schools and libraries. The filing must include the same documentation required for approval by subsection (5) of this section.

[Statutory Authority: RCW 80.01.040. 89-12-038 (Order R-301, Docket No. U-88-1704-R), 480-80-330, filed 6/1/89; 88-22-037 (Order 291, Docket No. U-88-2337-R), 480-80-330, filed 10/28/88; Order R-5, 480-80-330, filed 6/6/69, effective 10/9/69.]

AMENDATORY SECTION (Amending Order R-301, Docket No. U-88-1704-R, filed 6/1/89)

WAC 480-120-027 Price lists. (1) Pursuant to RCW 80.36.310 telecommunications services classified by the commission as competitive will be offered under price lists. All services of competitive telecommunications companies as classified by the commission under RCW 80.36.310 will be offered under price lists.

(2) All price lists filed with the commission must describe the service being offered and all prices, charges, terms, and conditions pertaining thereto. Each page of every price list shall contain, in general, the company name, the page number, and the effective date. All subsequent revisions of a price list shall bear consecutive revision numbers. Price lists must provide sufficient detail for customers and potential customers reasonably to determine what is being offered and what charges the customer incurs in obtaining the service.

(3) Contracts (including modifications to previously executed contracts) for services which are governed by this section may be offered subject to the requirements of this subsection.

(a) Contracts of companies classified "competitive" under RCW 80.36.310 shall be filed with the commission not later than five business days after execution. A contract filed pursuant to this subdivision will not be rejected by the commission in the absence of competent evidence that the contract is unlawful.

(b) Contracts which offer services classified as "competitive" under RCW 80.36.330 shall be filed with the commission at least ten days prior to the effective date. Such contracts may not include both "price listed" and "tariffed" services unless the tariffed services are set forth separately and offered under an approved tariff or contract (see WAC 480-80-330). A contract filed pursuant to this subdivision may be rejected if the telecommunications company is unable to document that the price charged covered its relevant costs under either a long run incremental cost analysis or a fully distributed cost analysis whichever is lower, or any other commission-approved cost method. A contract filed pursuant to this subdivision may also be rejected upon a showing that it is otherwise unlawful. To meet its burden of proving that the contract is cost-based, the company shall, at a minimum, provide the following information at the time of filing:

(i) A statement summarizing the basis of the rate or charge proposed in the contract and an explanation of the derivation of the proposed rate or charge; and

(ii) An explanation of all cost computations involved in arriving at the derivation of the level of the rate or charge in the contract.

(c) All contracts filed pursuant to this subsection shall be for a stated time period.

(d) Filings under this subsection may be submitted with portions designated "confidential" pursuant to WAC 480-08-015. However, any filing which designates as "confidential" the essential terms and conditions will be rejected by the commission.

(4) Federal contracts. Where a federal agency asserts its authority to solicit a firm offer of services and a contract subject to this section is submitted in response to that solicitation, the provisions of subsection (3) of this section will not apply. Upon the acceptance of such a contract offer by the federal agency, the telecommunications company shall immediately file the contract with the commission and must include the same documentation otherwise required by this section.

(5) Federal universal service contracts with schools, libraries, and rural health care providers pursuant to 47 CFR, Part 54. When a telecommunications company enters into a contract to provide competitively classified service to a school or library as part of the federal universal service program, the telecommunications company must file the contract if the rates, terms, or conditions of the prediscounted contract service depart from the tariff. The contract must be filed immediately upon acceptance by the administrator of the federal universal service program for schools and libraries. The filing must include the same documentation required for approval by subsection (3)(b) of this section.

[Statutory Authority: RCW 80.01.040. 89-12-038 (Order R-301, Docket No. U-88-1704-R), 480-120-027, filed 6/1/89; 87-24-055 (Order R-282, Cause No. U-86-125), 480-120-027, filed 11/30/87.]

NEW SECTION

WAC 480-123-010 Federal universal service contracts. For purposes of schools and libraries receiving federal universal service funding under 47 CFR, Part 54 of the Federal Communications Commission rules, the following discounts shall apply:

schools and

libraries discount

matrix how

disadvantaged? discount level

% of students

eligible for

national school urban rural

lunch program discount discount

(%) (%)

<1 20 25

1-19 40 50

20-34 50 60

35-49 60 70

50-74 80 80

75-100 90 90



[]

Legislature Code Reviser

Register

Washington State Code Reviser's Office