SB48 (2012) Detail

(New Title) relative to state regulation of telephone service providers and clarifying the authority of the public utilities commission to regulate pole attachments.


CHAPTER 177

SB 48 – FINAL VERSION

01/18/12 0200s

05/23/12 2371EBA

2012 SESSION

11-1025

06/03

SENATE BILL 48

AN ACT relative to state regulation of telephone service providers and clarifying the authority of the public utilities commission to regulate pole attachments.

SPONSORS: Sen. Odell, Dist 8; Sen. Lambert, Dist 13; Sen. Luther, Dist 12

COMMITTEE: Energy and Natural Resources

AMENDED ANALYSIS

This bill defines excepted local exchange carriers and modifies laws regulating rates, charges, and billing as pertain to such carriers.

This bill authorizes the public utilities commission to regulate the safety, vegetation management, emergency response, and storm restoration requirements for poles, conduits, ducts, pipes, pole attachments, wires, cables, and related plant and equipment of public utilities and other private entities located within public rights-of-way and on, over, or under state lands and water bodies.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

01/18/12 0200s

05/23/12 2371EBA

11-1025

06/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT relative to state regulation of telephone service providers and clarifying the authority of the public utilities commission to regulate pole attachments.

Be it Enacted by the Senate and House of Representatives in General Court convened:

177:1 New Sections; Telephone Utilities. Amend RSA 362 by inserting after section 6 the following new sections:

362:7 Telephone Utilities.

I. In this title:

(a) “End user” means any telecommunications services customer that is not a telecommunications carrier or telecommunications public utility except that a telecommunications carrier or public utility shall be deemed to be an “end user” when such carrier uses a telecommunications service for administrative purposes.

(b) “Incumbent local exchange carrier” shall have the meaning as defined in 47 U.S.C. section 251 (h).

(c) “Excepted local exchange carrier” means:

(1) An incumbent local exchange carrier providing telephone services to 25,000 or more lines; or

(2) An incumbent local exchange carrier providing service to less than 25,000 lines that elects to be excepted, upon the filing with the commission of a written notice advising of said election; or

(3) Any provider of telecommunications services that is not an incumbent local exchange carrier.

(d) “Voice over Internet Protocol (“VoIP”) service” means any service that:

(1) Enables real-time, 2-way voice communications that originate from or terminate in the user’s location in Internet Protocol or any successor protocol;

(2) Requires a broadband connection from the user’s location; and

(3) Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.

(e) “IP-enabled service” means any service, capability, functionality, or application provided using Internet Protocol, or any successor protocol, that enables an end user to send or receive a communication in Internet Protocol format or any successor format, regardless of technology; provided, however, that no service included within the definition of “Voice over Internet Protocol service” shall be included within this definition.

II. Except as set forth in paragraph III, notwithstanding any other provision of law to the contrary, no department, agency, commission, or political subdivision of the state, shall enact, adopt, or enforce, either directly or indirectly, any law, rule, regulation, ordinance, standard, order, or other provision having the force or effect of law that regulates or has the effect of regulating the market entry, market exit, transfer of control, rates, terms, or conditions of any VoIP service or IP enabled service or any provider of VoIP service or IP-enabled service.

III. The prohibitions of paragraph II shall not be construed to:

(a) Affect or limit the application or enforcement of criminal or other laws that apply generally to the conduct of business in the state, including, without limitation, consumer protection, or unfair or deceptive trade practice protections;

(b) Affect, mandate, or prohibit the assessment of taxes or nondiscriminatory 911 fees, telecommunications relay service fees, or other fees of general applicability;

(c) Modify or affect the rights or obligations of any telecommunications carrier, or any duties or powers of the public utilities commission, under 47 U.S.C. section 251 or 47 U.S.C. section 252, as applicable;

(d) Affect the authority of the state or its political subdivisions, as applicable, to manage the use of public rights-of-way, including, but not limited to, any requirement for the joint use of poles or other structures in such rights-of-way;

(e) Affect or limit the application or enforcement of RSA 371:17 through RSA 371:24, RSA 374:2-a, RSA 374:28-a, RSA 374:34-a, RSA 374:48 through RSA 374:56, RSA 374:59, RSA 378:44 through RSA 378:48, or RSA 374:30, II;

(f) Affect or modify any obligations for the provision of video service by any party under applicable law.

IV. Nothing in this chapter shall be construed to give the commission any additional authority over wireless carriers.

362:8 Obligations on Excepted Local Exchange Carriers. Notwithstanding any other law, rule, or order, the commission shall have no authority to impose or enforce any obligation on any excepted local exchange carrier that is not also applicable to all other excepted local exchange carriers, excluding providers of commercial mobile radio service, except:

I. Such obligations that arise pursuant to the commission’s authority under the Communications Act of 1934, as amended; or

II. Such obligations that arose prior to February 1, 2011 that relate to the availability of broadband services, soft disconnect processes and capital expenditure commitments within the state; or

III. Such obligations that relate to the provision of services to competitive local exchange carriers, interexchange carriers, and wireless carriers, regardless of technology; or

IV. Such obligations that arise under RSA 374:22-p and RSA 374:30, II.

177:2 Public Utilities Commission; Investigations of Interstate Matters. Amend RSA 363:22 to read as follows:

363:22 Investigations. Except as pertains to any end user of an excepted local exchange carrier or services provided to such end user, the commission may investigate all existing or proposed interstate rates, fares, charges, classifications and rules and regulations relating thereto, where any act thereunder may take place within this state.

177:3 Office of the Consumer Advocate. Amend RSA 363:28, II to read as follows:

II. Except as pertains to any end user of an excepted local exchange carrier or services provided to such end user, the consumer advocate shall have the power and duty to petition for, initiate, appear or intervene in any proceeding concerning rates, charges, tariffs, and consumer services before any board, commission, agency, court, or regulatory body in which the interests of residential utility consumers are involved and to represent the interests of such residential utility consumers.

177:4 Residential Ratepayers Advisory Board. Amend RSA 363:28-a, V(b) to read as follows:

(b) Except as pertains to any end user of an excepted local exchange carrier or services provided to such end user, the board shall advise the consumer advocate on matters concerning residential ratepayers.

177:5 New Section; Complaints to the Commission; Exceptions. Amend RSA 365 by inserting after section 1 the following new section:

365:1-a Exceptions. Except for complaints about RSA 371:17 through RSA 371:24, RSA 374:2-a, RSA 374:22-p, RSA 374:28-a, RSA 374:34-a, RSA 374:48 through RSA 374:56, RSA 374:59, and RSA 378:44 through RSA 378:48, the provisions of this chapter shall not apply to any end user of an excepted local exchange carrier, nor to any service provided to such end user. Such end users may, however, make complaints to the commission regarding the provision of basic service by excepted local exchange carriers.

177:6 New Section; Affiliates of Public Utilities; Exceptions. Amend RSA 366 by inserting after section 1 the following new section:

366:1-a Exceptions. The provisions of this chapter shall not apply to any excepted local exchange carrier.

177:7 New Section; Issuance of Stock and Securities; Exceptions. Amend RSA 369 by inserting after section 1 the following new section:

369:1-a Exceptions. The provisions of this chapter shall not apply to any excepted local exchange carrier.

177:8 New Section; Service Equipment of Public Utilities; Exceptions. Amend RSA 370 by inserting after section 1 the following new section:

370:1-a Exceptions. The provisions of this chapter shall not apply to any excepted local exchange carrier.

177:9 New Section; General Regulations; Exceptions. Amend RSA 374 by inserting after section 1 the following new section:

374:1-a Exceptions. Except as provided otherwise in this chapter, and except for RSA 374:2-a, RSA 374:28-a, RSA 374:34-a, RSA 374:48 through RSA 374:56, and RSA 374:59, the provisions of this chapter shall not apply to any end user of an excepted local exchange carrier, nor to any service provided to such end user.

177:10 Other Public Utilities. Amend RSA 374:22, I to read as follows:

I. No person or business entity, including any person or business entity that qualifies as an excepted local exchange carrier, shall commence business as a public utility within this state, or shall engage in such business, or begin the construction of a plant, line, main, or other apparatus or appliance to be used therein, in any town in which it shall not already be engaged in such business, or shall exercise any right or privilege under any franchise not theretofore actually exercised in such town, without first having obtained the permission and approval of the commission.

177:11 Affordable Telephone Service; Rulemaking; Standards. Amend RSA 374:22-p, I to read as follows:

I.(a) For the purposes of this section, “Federal Telecommunications Act” means the federal Telecommunications Act of 1996, Public Law [104-458] 104-104, 110 Stat. 56.

(b) For purposes of this section “basic service” means:

(1) Safe and reliable single-party, single line voice service;

(2) The ability to receive all noncollect calls, at telephone lines capable of receiving calls, without additional charge;

(3) The ability to complete calls to any other telephone line, which is capable of receiving calls, in the state;

(4) The opportunity to presubscribe to interLATA toll carriers;

(5) The opportunity to presubscribe to intraLATA toll carriers;

(6) Dialing parity;

(7) Number portability;

(8) Enhanced 911, pursuant to the requirements of the department of safety, bureau of emergency communications, or its successor agency;

(9) Access to statewide directory assistance;

(10) Telecommunications relay service (TRS);

(11) A published directory listing, at the customer’s election;

(12) A caller identification blocking option, on a per-call basis;

(13) A caller identification line blocking option that is available to all customers without a recurring charge and is provided upon customer request without charge to customers who have elected nonpublished telephone numbers and is available without a nonrecurring charge to customers who certify that caller identification threatens their health or safety and is available without a nonrecurring charge when requested with installation of basic service;

(14) A blocking option for pay-per-call calls, such as blocking all 900 or all 976 area code calls;

(15) The ability to report service problems to the customer’s basic service provider on a 24-hour basis, 7 days a week; and

(16) Automatic Number Identification (ANI) to other carriers which accurately identifies the telephone number of the calling party.

(c) Any combination of basic service along with any other service offered by the telecommunications service provider is nonbasic service.

(d) Any telecommunications service provider which is not an incumbent local exchange carrier shall not be required to provide basic service.

177:12 New Paragraph; Affordable Telephone Service. Amend RSA 374:22-p by inserting after paragraph VII the following new paragraph:

VIII. Notwithstanding the provisions of RSA 374:1-a:

(a) Incumbent local exchange carriers, whether qualified as an excepted local exchange carrier or otherwise, may not discontinue residential basic service, regardless of technology used, in any portion of their franchise area unless the commission determines that the public good will not be adversely affected by such withdrawal of service;

(b) Rates for basic service of incumbent local exchange carriers which qualify as excepted local exchange carriers may not increase by more than 5 percent for Lifeline Telephone Assistance customers and by more than 10 percent for all other basic service customers in each of the 8 years after the effective date of this paragraph or the effective date of an existing alternative plan of regulation, except for additional rate adjustments, with public utilities commission review and approval, to reflect changes in federal, state, or local government taxes, mandates, rules, regulations, or statutes; and

(c) Incumbent local exchange carriers which qualify as excepted local exchange carriers shall report the rates for basic service to the commission within 60 days of the effective date of this paragraph and upon any changes to the rates.

177:13 Other Public Utility Leases. Amend RSA 374:30 through 374:33 to read as follows:

374:30 Other Public Utility Leases, Etc.

I. Any public utility may transfer or lease its franchise, works, or system, or any part of such franchise, works, or system, exercised or located in this state, or contract for the operation of its works and system located in this state, when the commission shall find that it will be for the public good and shall make an order assenting thereto, but not otherwise, except that commission approval shall not be required for any such transfer, lease, or contract by an excepted local exchange carrier. The commission may, by general order, authorize a public utility to transfer to another public utility a part interest in poles and their appurtenances for the purpose of joint use by such public utilities.

II. An incumbent local exchange carrier that is an excepted local exchange carrier may transfer or lease its franchise, works, or system, or any part of such franchise, works, or system, exercised or located in this state, or contract for the operation of its works and system located in this state, when the commission finds the utility to which the transfer is to be made is technically, managerially, and financially capable of maintaining the obligations of an incumbent local exchange carrier set forth in RSA 362:8 and RSA 374:22-p.

374:31 Leases, Etc., When Void. If commission approval is required pursuant to RSA 374:30 for any transfer, lease, or contract, any such attempted transfer, lease, or contract shall be void unless the same shall have been approved by the commission.

374:32 Corporate Authorization. Except when the public utility is an excepted local exchange carrier, if such public utility, or the other party to any such transfer, lease, or contract, be a corporation and if the commission shall find that the public good so requires, such transfer, lease, or contract shall first be authorized by the vote of 2/3 of the shares of the capital stock of each of the interested corporations present and voting at meetings duly called to consider the subject; and all statutes regulating, protecting, and determining the rights of a dissenting stockholder of a railroad in the case of a lease or union with another railroad shall be applicable, and the rights of any stockholder of such corporation dissenting from such transfer, lease, or contract, if the same shall be authorized as above provided, shall be regulated, protected, and determined by such statutes.

374:33 Acquiring Stocks, Etc. No public utility or public utility holding company as defined in section 2(a)(7)(A) of the Public Utility Holding Company Act of 1935 shall directly or indirectly acquire more than 10 percent, or more than the ownership level which triggers reporting requirements under 15 U.S.C. section 78-P, whichever is less, of the stocks or bonds of any other public utility or public utility holding company incorporated in or doing business in this state, unless the commission finds that such acquisition is lawful, proper, and in the public interest, except that commission approval shall not be required for any acquisition of an excepted local exchange carrier. Nothing in this section shall prevent a public utility being in fact the owner on June 1, 1911, of the majority of the capital stock of any other public utility, or leasing or operating such other public utility, from acquiring the balance or all of the outstanding capital stock of such other public utility a majority of which stock is so owned or which is so leased or operated.

177:14 New Paragraph; Pole Attachments. Amend RSA 374:34-a by inserting after paragraph VII the following new paragraph:

VIII. The commission shall retain its authority to regulate the safety, vegetation management, emergency response, and storm restoration requirements for poles, conduits, ducts, pipes, pole attachments, wires, cables, and related plant and equipment of public utilities and other private entities located within public rights-of-way and on, over, or under state lands and water bodies.

177:15 New Section; Rates and Charges; Exceptions. Amend RSA 378 by inserting after section 1 the following new section:

378:1-a Exceptions. Except as provided otherwise within this chapter and except for RSA 378:44 through RSA 378:48, the provisions of this chapter shall not apply to any end user of an excepted local exchange carrier, nor to any service provided to such end user. Excepted local exchange carriers shall post the rates, fares, charges, prices, terms, and conditions of all such services on its publicly available website.

177:16 Effective Date. This act shall take effect 60 days after its passage.

Approved: June 11, 2012

Effective Date: August 10, 2012