WSR 99-13-097

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[ Docket No. UT-980083, General Order No. R-464-- Filed June 15, 1999, 9:40 a.m. ]

In the matter of amending WAC 480-121-010, 480-121-020, 480-121-030, 480-121-040, and 480-121-050 and adopting WAC 480-121-015, 480-121-023, 480-121-026, 480-121-060 and 480-121-070, relating to applications for registration, petitions for competitive classification, classification, and filing of price lists for telecommunications companies.

STATUTORY OR OTHER AUTHORITY: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 99-07-106, filed with the code reviser on November 4, 1998 [March 23, 1999]. The commission brings this proceeding pursuant to RCW 80.01.040.

STATEMENT OF COMPLIANCE: 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 of 1971 (chapter 34.21C [43.21C] RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

DATE OF ADOPTION: The commission adopts this rule on June 11, 1999.

CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: The proposed rules will implement the requirements of Executive Order 97-02, requiring agencies to review rules for clarity, intent and statutory authority, need, effectiveness and efficiency, coordination, cost, and fairness. The proposed rules also make several changes to existing rules. This proposed rule making accomplishes placing into rule a streamlined process for telecommunications company applications for registration, petitions for competitive classification, and price list filings; minimizing the burden of entry; and establishing criteria for cancellations of registration.

New section WAC 480-121-023 When a supplemental application is required. This rule lists the requirements for a telecommunications company that proposes to expand the services it offers.

New section WAC 480-121-026 Rejection of registration application, competitive classification petition, and price list. This rule establishes the basis for rejecting an application and returning it to the applicant.

New section WAC 480-121-050 Cancellations. This rule identifies what a telecommunication company must submit to the commission before it ceases business in this state.

New section WAC 480-121-060 Revocation. This rule identifies reasons for revocation of a registration.

WAC 480-121-070 Petition for competitive classification. This rule establishes the requirements for filing petitions for competitive classification.

REFERENCE TO AFFECTED RULES: These rules amend the following sections of the Washington Administrative Code: WAC 480-121-010 Filing of registration applications, competitive classification, and price list, 480-121-020 Requirements for registration applications, competitive classification petitions, and price lists, 480-121-030 Additional information, 480-121-040 Grant or denial of registration, and 480-121-050 Form.

PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a preproposal statement of inquiry (CR-101) on June 17, 1998, at WSR 98-13-117, and an amended CR-101 on August 5, 1998, at WSR 98-16-101.

ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The statement advised interested persons that the commission was considering undertaking a rule making on rules relating to regulation of registration, competitive classification, and price lists of telecommunications companies. The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3), and by sending notice to regulated telecommunications companies. Pursuant to the notice, the commission held a stakeholder meeting on December 16, 1998.

NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on March 23, 1999, at WSR 99-07-106. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 99-07-106 at 9:30 a.m., Wednesday, April 28, 1999, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

COMMENTERS (WRITTEN COMMENTS): The commission received written comments from U S WEST Communications, Inc., Telecommunications Resellers Association, and from GST Telecom Washington, Inc.

RULE-MAKING HEARING: The rule proposal was considered for adoption, pursuant to notice, at the commission's April 28, 1999, open public meeting, before Chairwoman Marilyn Showalter and Commissioner Richard Hemstad. At the meeting, Sondra Walsh commented on behalf of commission staff. No other persons made oral comments at the meeting.

COMMISSION ACTION: After considering all of the information regarding this proposal, the commission adopts the proposed rules, with the changes described below.

CHANGES FROM PROPOSAL: The commission adopts the proposal with the following changes from the text noticed at WSR 99-07-106 (underlined text added).

The commission has determined that good cause exists to change the language initially proposed as WAC 480-121-010(2), relating to commission waivers of its own rules, and to place the subsection entirely within WAC 480-121-015. The changed language does not alter the commission's existing standards or procedures. The change does, however, make it more clear how the commission will act and what are its standards for acting, and makes it clear how and when the commission will make its decision whether to grant a rule exemption.

Consistent with U S WEST's recommendation, the commission changes WAC 480-121-020 (1)(d) removing the following language: "must be accompanied by declaration of positive regulatory performance on the form prescribed by the commission." The commission substitutes WAC 480-121-020 (4)(a). The language, adopted at U S WEST's suggestion, provides a clear basis for determining whether a potential applicant has met a minimal financial standard for approval of its registration application.

The commission moves to safeguard the public by adding subsection (7) to WAC 480-121-020 to delineate the requirements that must be met if an applicant proposes to collect advance customer deposits.

Consistent with GST Telecom Washington's recommendation, the commission changes WAC 480-121-023 to identify which additional services require an applicant to submit a supplemental application. This change clarifies that a supplemental application is needed only if a company intends to collect deposits from customers and to expand its proffered service to include alternate operator service, local exchange service, or prepaid calling services.

Consistent with U S WEST's recommendation, the commission changes the language in WAC 480-121-060 (1)(f) and (g) for clarity from "Comply with all federal law" to "Comply with applicable federal law."

The commission also adopts minor typographical changes.

SUGGESTIONS FOR CHANGE THAT ARE REJECTED: U S WEST proposes adding to WAC 480-121-060 the following: "Supply at the end of the first year of service, and again each subsequent year of service, maps showing where the provider has deployed service, points of interconnection with other providers and any known future plans for deployment within the next calendar year. Applicant must also include in this annual filing, a description of the class or classes of customer (e.g., business or residential) it serves and plans to serve and the number of lines and customers served in each exchange." The commission does not agree with U S WEST that the maps should be required. If the commission determines that this type of information is required in order for the commission to monitor the status of competition, then the commission should require all telecommunications companies to provide information about the services they provide in their annual reports to the commission. The commission does not believe that collecting this information only from applicants and new registrants would provide the commission with adequate and sufficient information to the ends for which it is recommended.

COMMISSION ACTION: After considering all of the information regarding this proposal, the commission adopts the proposed rules, with changes specified below from the text noticed at WSR 98-22-110.

STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: In reviewing the entire record, the commission determines that WAC 480-121-010, 480-121-020, 480-121-030, 480-121-040, and 480-121-050 should be amended, and that WAC 480-121-015, 480-121-023, 480-121-026, 480-121-060, and 480-121-070 should be adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

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 0, Amended 0, 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 5, Amended 5, 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:

1. WAC 480-121-010, 480-121-020, 480-121-030, 480-121-040, 480-121-050 are amended, and 480-121-015, 480-121-023, 480-121-026, 480-121-060, and 480-121-070 are adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect on the thirty-first day after the date of filing with the code reviser, pursuant to RCW 34.05.380(2).

2. This order and the rules set out in Appendix A, after being recorded in the register of the Washington Utilities and Transportation Commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.

3. The commission adopts the commission staff open public meeting memoranda, presented when the commission considered filing a preproposal statement of inquiry, when it considered filing the formal notice of proposed rule making, and when it considered adoption of this proposal in conjunction with the text of this order, as its concise explanatory statement of the reasons for adoption and for rejection of proposed changes as required by RCW 34.05.025.

DATED at Olympia, Washington, and effective this 11th day of June 1999.

Washington Utilities and Transportation Commission

Richard Hemstad, Commissioner

William R. Gillis, Commissioner

OTS-2924.3

Chapter 480-121 WAC

REGISTRATION, COMPETITIVE CLASSIFICATION AND PRICE LISTS OF TELECOMMUNICATIONS COMPANIES


AMENDATORY SECTION(Amending Order R-237, Cause No. U-85-43, filed 9/19/85)

WAC 480-121-010
Filing of registration application, competitive classification petition, and price list.

Applications ((shall)), petitions, and price lists must be filed at the office of the commission in Olympia, Washington, by mail or in person((, and shall be signed by the applicant or its attorney, dated, and verified)).  Applicants must submit a declaration signed and dated by applicant or its attorney certifying the accuracy of the application, petition, and price list. Applications, petitions, and price lists will be assigned a docket number((, and)). All additional exhibits and data thereafter filed, and correspondence in connection with the ((application)) filing, should bear that docket number. Applications ((shall)) for registration, petitions for competitive classification, and price lists must be ((in the form prescribed by WAC 480-121-050, and shall in all respects adhere to the rules set out herein.  Applications not in substantial compliance with these rules may be rejected by the commission and returned to the applicant)) submitted at the same time. The applicant must file with the commission an original application, petition, and price list and any additional copies as the commission may require.

[Statutory Authority: RCW 80.01.040.  85-20-002 (Order R-237, Cause No. U-85-43), 480-121-010, filed 9/19/85.]


NEW SECTION
WAC 480-121-015
Exemptions from rules.

(1) The commission may grant an exemption of any rule in this chapter, when doing so is consistent with the public interest, the purposes underlying regulation, and applicable statutes.

(2) To request a rule exemption, a person must file with the commission a written request identifying the rule for which an exemption is sought and giving a full explanation of the reason the exemption is requested.

(3) The commission will assign the request a docket number, if needed, and schedule the request for consideration at one of its regularly scheduled open meetings or, if appropriate under chapter 34.05 RCW, in an adjudication. The commission will notify the person requesting the exemption, and other interested persons, of the date the commission will consider the request.

(4) The commission will enter an order granting or denying the request or setting it for hearing, pursuant to chapter 480-09 WAC.

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AMENDATORY SECTION(Amending Order R-237, Cause No. U-85-43, filed 9/19/85)

WAC 480-121-020
((Number of copies.)) Requirements for registration applications, competitive classification petitions, and price lists.

((Applicant shall file with the commission an original application and such additional copies as the commission may require.)) (1) Applications for registration must:

(a) Be in the form prescribed by the commission;

(b) Comply with the rules set forth in chapter 480-120 WAC; and

(c) Be accompanied by the applicant’s current balance sheet, latest annual report, if any, and a description of the telecommunications service it intends to offer.

(2) Petitions for competitive classification must meet the requirements of WAC 480-120-023.

(3) Price lists must meet the requirements of WAC 480-120-027.

(4) As a condition to registration, with or without hearing, the commission may require an applicant clearly show that:

(a) The applicant possesses adequate financial resources to provide the proposed service;

(b) The applicant possesses adequate technical competence to provide the proposed service;

(c) The applicant is in compliance with all applicable federal, state and local telecommunications technical and business regulations.

(5) The commission may request an applicant to provide information regarding the applicant's regulatory performance in other states in which it operates.

(6) Applicants intending to collect customer prepayments must meet the requirements of WAC 480-120-058.

(7) Applicants collecting customer deposits pursuant to WAC 480-120-056 may be required to procure a bond or establish a federally insured interest-bearing trust account.

[Statutory Authority: RCW 80.01.040.  85-20-002 (Order R-237, Cause No. U-85-43), 480-121-020, filed 9/19/85.]


NEW SECTION
WAC 480-121-023
When a supplemental application is required.

Supplemental registration applications, competitive classification petitions, and price lists are required if a telecommunications company intends to amend its registration to include collecting deposits or providing alternate operator services, local exchange services, or prepaid calling services.

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NEW SECTION
WAC 480-121-026
Rejection of registration application, competitive classification petition, and price list.

Registration applications, competitive classification petitions, and price lists not in substantial compliance with these rules and chapter 480-120 WAC will be rejected by the commission and returned to the applicant.

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AMENDATORY SECTION(Amending Order R-237, Cause No. U-85-43, filed 9/19/85)

WAC 480-121-030
Additional information.

The commission may ((at its discretion)) require ((the production of data and)) additional information to supplement ((that contained in)) the registration application, competitive classification petition, and price list.  Unless a different time is specified, such information shall be provided within ten days of the written request.

[Statutory Authority: RCW 80.01.040.  85-20-002 (Order R-237, Cause No. U-85-43), 480-121-030, filed 9/19/85.]


AMENDATORY SECTION(Amending Order R-332, Docket No. UT-900733, filed 12/5/90, effective 1/5/91)

WAC 480-121-040
Grant or denial of registration.

((As a condition to registration, with or without hearing, an applicant must clearly show that:

(1) Applicant possesses adequate financial resources to provide the proposed service;

(2) Applicant possesses adequate technical competence to provide the proposed service; and

(3) Applicant has procured and will maintain:

(2) A performance bond satisfactory to the commission sufficient to cover any customer advances or deposits; or

(b) Provision has been made for deposit of customer advances or deposits in a federally insured interest bearing trust account maintained by applicant solely for customer advances or deposits, in a bank, savings and loan association, mutual savings bank, or licensed escrow agent located in Washington, with access to such funds only for the purpose of applying an amount to a delinquent bill in accordance with commission deposit rules, or for the purpose of refunding advances or deposits to customers.  In any order granting certification, the commission may require either bond or trust account or escrow as a condition.

Such)) An application may be granted without hearing upon a determination by the commission that the application is consistent with the public interest, ((and)) that the applicant meets ((financial and technical requirements,)) the requirements of this section and RCW 80.36.350 and that the applicant has provided adequately for the protection of customer ((advances or)) deposits((,)) or prepayments. The application may be set for hearing in accordance with notice issued by the commission.  If, ((upon)) after hearing, the commission finds that registration is not consistent with the public interest, or that the applicant ((is not financially or [technically] [technical] able to provide the contemplated service)) does not meet the requirements of RCW 80.36.350, or that customer ((advances or)) deposits or prepayments cannot be adequately protected, it will deny the application.

The commission ((may)) will deny an application for registration submitted by ((a company providing)) an alternate operator services provider if, after hearing, the commission finds that the ((alternate)) operator services offered by the company or the charges for those services are not ((for)) consistent with the public convenience and advantage.

[Statutory Authority: RCW 80.01.040 and chapter 80.36 RCW.  90-24-090 (Order R-332, Docket No. UT-900733), 480-121-040, filed 12/5/90, effective 1/5/91.  Statutory Authority: RCW 80.01.040.  85-20-002 (Order R-237, Cause No. U-85-43), 480-121-040, filed 9/19/85.]


AMENDATORY SECTION(Amending Order R-237, Cause No. U-85-43, filed 9/19/85)

WAC 480-121-050
((Form.)) Cancellations.

((Applications for registration as a telecommunications company pursuant to the provisions of chapter 450, Laws of 1985, shall be submitted in the following form.


APPLICATION FOR REGISTRATION

OF TELECOMMUNICATIONS COMPANY

FILED WITH THE

WASHINGTON UTILITIES AND TRANSPORTATION

COMMISSION

HIGHWAYS-LICENSES BUILDING, OLYMPIA, WA 98504



((IN THE MATTER OF

THE APPLICATION OF (here insert

name of applicant) FOR AN

ORDER authorizing the

registration of applicant

as a telecommunications

company

|

|

|

>

|

||

NO.. . . . .

(Number to

be inserted

by secretary

of the

Commission)))


Application is hereby made to the Washington utilities and transportation commission for an order authorizing (here insert name of applicant) to register as a telecommunications company

pursuant to the provisions of chapter 450, Laws of 1985.  The following general information and specific exhibits are furnished in support thereof:


GENERAL INFORMATION


1. Name of applicant.
2. Address of principal office of applicant.
3. Name and address of registered agent of applicant if any.
4. State or states under which applicant is organized and form of organization (corporation, partnership, association, firm, individual, etc.).  Date of organization and term or duration thereof.
5. A general description of the property owned by applicant and the field of its operations.
6. If a corporation, the names and addresses of the ten common stockholders of applicant owning the greatest number of shares of common stock and the number of such shares owned by each, as follows:

((Name

and

Address

Shares

Owned

Percentage of

all Shares

Issued &

Outstanding

Percentage of

Voting Control))


7. Names and addresses of the officers and directors of applicant.
8. Name and address of any corporation, association, or similar organization holding a 5% or greater ownership or a management interest in the applicant.  As to ownership, the amount and character of the interest must be indicated.  A copy of any management agreement must be attached.
9. Names and addresses of subsidiaries owned or controlled by applicant.

EXHIBIT A


Detailed description of the telecommunications services applicant intends to offer, designating geographic areas of operation, and the location of other areas in which applicant is providing or has provided service, either independently or in conjunction with any other telecommunications company.


EXHIBIT B


Current detailed balance sheet.


EXHIBIT C


Detailed income and profit and loss statement of applicant reflecting current and prior year balances for the twelve months ended as of the date of the balance sheet submitted as Exhibit B, or, if more readily available, for the period since the close of the preceding calendar year.  If balance sheet and income statement are not available, applicant must submit financial data sufficient to establish it possesses adequate financial resources to provide the proposed service.


EXHIBIT D


Latest annual report, if any.


EXHIBIT E


Detail of the type and quantity of equipment to be used in the operation, capacity and expected use of such equipment, the method of transmission (i.e., copper cable, microwave, fiber optic, etc.), and a map depicting the physical route of transmission.


EXHIBIT F


A commitment for issuance of a performance bond by a company authorized to do business in Washington to cover any advances or deposits, or a detailed description of the account to be maintained for customer deposits including the name of the depository and a copy of the deposit arrangement.


EXHIBIT G


Proposed initial tariff setting forth rates, rules and regulations applicable to the contemplated service.


EXHIBIT H


Such other facts, not set forth in preceding exhibits, as in the opinion of the applicant may be pertinent in support of the application.

WHEREFORE, the undersigned applicant requests that the Washington utilities and transportation commission, enter an order granting the application, in accordance with the provisions of chapter 450, Laws of 1985.

((DATED at . . . . . this . . . . . day of . . . . . , 19 . . .
. . . . . . . . . . . .
(Applicant)
By . . . . . . . . . . . .
Title . . . . . . . . . . . .
STATE OF WASHINGTON

County of . . . . . . . . . . . .

|

>

|

ss.

. . . . . , being first duly sworn, deposes and says that

. . . . . is (Title) of (name of applicant) , the applicant in the proceeding entitled above, that . . . . . has read the foregoing application and knows the contents thereof; that the same are true of . . . . . knowledge, except as to matters which are therein stated on information or belief, and as to those matters . . . . . believes them to be true.

. . . . . . . . . . . .
Subscribed and sworn to before this . . . . . day of, . . . . ,
19 . . .
. . . . . . . . . . . .
Notary Public in and for the

state of Washington, residing at

. . . . . ))

(1) A request to cancel registration as a telecommunications company must be submitted in writing to the commission.

(2) Registered telecommunications companies collecting prepayments that cease operations must comply with WAC 480-120-058(10).

[Statutory Authority: RCW 80.01.040.  85-20-002 (Order R-237, Cause No. U-85-43), 480-121-050, filed 9/19/85.]


NEW SECTION
WAC 480-121-060
Revocation of registration.

The commission may revoke a registration, after hearing, for good cause. Good cause includes, but is not limited to, failure to:

(1) File an annual report;

(2) Pay regulatory fees;

(3) Comply with the requirements of WAC 480-120-058;

(4) Provide adequate service;

(5) Maintain correct contact information, including current address and telephone number;

(6) Comply with applicable federal, state and local telecommunications and business regulations; or

(7) Comply with applicable federal, state, and local technical regulations imposed on the carrier.

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NEW SECTION
WAC 480-121-070
Petition for competitive classification.

(1) In addition to meeting the requirements of WAC 480-120-023, a petition for competitive classification must state an effective date no sooner than thirty days from the filing date.

(2) The petitioner must provide notice in the same manner as provided in WAC 480-80-120 for tariff changes.

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Washington State Code Reviser's Office