Senate Bill No. 89
Introduced By beck
By Request of the Blue Ribbon Telecommunications Task Force
A Bill for an Act entitled: An Act generally revising the laws relating to the regulation of telecommunications services in response to the federal telecommunications act of 1996; providing for the registration of telecommunications providers; establishing a duty to interconnect telecommunications carriers and providing for negotiated, mediated, and arbitrated interconnection agreements; requiring limited public service commission approval of interconnection agreements; providing for the designation of carriers eligible for federal universal service support; providing for the authorization of federally funded discounts for intrastate services under certain circumstances to schools, libraries, and health care providers; establishing standards for wholesale pricing of telecommunications services, including individual network elements; prohibiting certain subsidies; amending the laws regarding promotional offerings by regulated telecommunications providers; increasing the amount of assistance in the telephone low-income assistance program; establishing an interim universal access to the advanced telecommunications services program administered by the public service commission; providing a discount for use of advanced telecommunications services for certain public access points, schools, libraries, health care providers, and access points, schools, libraries, health care providers, and tribal colleges; establishing a surcharge on retail revenue derived from intrastate telecommunications services in the state; requiring the public service commission to make recommendations to the 56th legislature regarding universal access and service; creating a universal service fund for telecommunications services; providing for the telecommunications services supported by the fund and operation of the fund through a contribution from telecommunications carriers based upon a percentage of the telecommunications carriers' retail revenue; providing that the fund be administered by a privately contracted entity under the direction of the public service commission; providing for distributions from the fund to eligible telecommunications carriers; establishing a committee to monitor federal implementation of the federal telecommunications act of 1996; appropriating funds for the committee; amending sections 2-4-102, 69-3-305, 69-3-803, 69-3-805, 69-3-806, 69-3-807, and 69-3-1001, MCA; repealing sections 69-6-101, 69-6-102, and 69-6-103, MCA; and providing an immediate effective date and a termination date.
STATEMENT OF INTENT
A statement of intent is required for this bill because rulemaking authority is granted to the public service commission.
[Section 3] authorizes the public service commission to adopt procedural rules relating to mediation and arbitration for interconnection proceedings.
Under the interim universal access provisions of [sections 20 through 26], the public service commission is to establish surcharge rates as provided in [section 25]. The surcharge rates must take into account different cost structures among telecommunications carriers, particularly the wireless and CATV industry. The retail revenue for these providers should be based on an equitable, per access line, revenue equivalent. The commission shall also set the surcharge rate to produce the amount of revenue necessary to fund the program. The formulation should consider any overlapping federal discounts. The commission should appoint an oversight group, consisting of users and industry participants, to meet quarterly with the commission to review revenue, discounts, and the administration of [sections 20 through 26]. The public service commission shall also establish a method for paying discount reimbursements in accordance with [section 25]. The public service commission shall cooperate with the department of revenue in determining rates, administering offsets against any surcharges, and other matters necessary for the administration of [sections 20 through 26].
The department of revenue shall administer the collection of the surcharge by rule. Because of the limited duration of the program, it is contemplated that the rules and administration be minimal, flexible, and as unobtrusive as possible while ensuring that there are sufficient administrative powers to enable the implementation of [sections 20 through 26].
Under [section 13], the public service commission shall administer a contract with a third party that will manage the universal service fund for telecommunications services on a daily basis. The third party is responsible for the collection of contributions to the fund. The third party is also responsible for setting the amount of contribution based on total retail revenue of telecommunications carriers operating in Montana. The public service commission shall adopt procedural rules for the collection of the contributions. The public service commission shall also adopt rules allowing the third party to assess late fees and interest on late payments of contributions. The rules must set interest rates and penalties for late payments.
[Section 14] authorizes the public service commission to adopt procedural rules relating to the collection of contributions to the universal service fund. [Section 14] authorizes the public service commission to adopt rules for the assessment of late fees and interest on contributions to the fund.
[Section 15] requires the public service commission to adopt rules establishing affordability benchmarks for local service.
Be it enacted by the Legislature of the State of Montana:
Section 1. Interconnection -- construction and effect. [Sections 1 through 19] do not grant any jurisdiction to the commission over telecommunications carriers except as expressly set forth in [sections 1 through 19], and [sections 1 through 19] may not be construed to limit or repeal exemptions from the commission's jurisdiction otherwise recognized by statute or law. Legislation may not be considered to supersede or modify any provision of [sections 1 through 19] except to the extent that the legislation does so expressly.
Section 2. Interconnection -- jurisdiction. In addition to the authority granted to the commission in 69-3-102 to supervise and regulate public utilities, the commission has authority, for the purposes of implementing [sections 1 through 9], over all telecommunications carriers.
Section 3. Rulemaking authority. The commission may adopt rules of procedure to implement [sections 6 through 10].
Section 4. Duty to interconnect. (1) The purpose of this section is to implement specific provisions of the federal Telecommunications Act of 1996, Public Law 104-104.
(2) (a) Each telecommunications carrier shall perform the duties enumerated in 47 U.S.C. 251(a).
(b) Each local exchange carrier shall perform the duties enumerated in 47 U.S.C. 251(b).
(c) In addition to the duties provided for in subsection (2)(b), each incumbent local exchange carrier shall perform the duties enumerated in 47 U.S.C. 251(c).
(3) (a) Except under the circumstances set forth in subsection (4), the provisions of subsection (2)(c) do not apply to a rural telephone company until:
(i) the company has received a bona fide request for interconnection, services, or network elements; and
(ii) the commission determines under subsection (3)(b) that the request is not unduly economically burdensome, is technically feasible, and is consistent with 47 U.S.C. 254 (other than 47 U.S.C. 254(b)(7) and (c)(1)(D)).
(b) The party making a bona fide request of a rural telephone company for interconnection, services, or network elements shall submit a notice of its request to the commission. The commission shall conduct an inquiry for the purpose of determining whether to terminate the exemption provided by subsection (3)(a). Within 120 days after the commission receives notice of the request, the commission shall terminate the exemption if the request is not unduly economically burdensome, is technically feasible, and is consistent with 47 U.S.C. 254 (other than 47 U.S.C. 254(b)(7) and (c)(1)(D)). Upon termination of the exemption, the commission shall establish an implementation schedule for compliance with the request that is consistent in time and manner with the federal communications commission's regulations.
(4) The exemption provided by subsection (3)(a) does not apply with respect to a request from a cable operator providing video programming and seeking to provide any telecommunications service in the area in which the rural telephone company was providing video programming on February 8, 1996.
(5) (a) A local exchange carrier with fewer than 2% of the nation's subscriber lines, installed in the aggregate nationwide, may petition the commission for a suspension or modification of the application of a requirement of subsection (2)(b) or (2)(c) to telephone exchange service facilities specified in the petition. The commission shall grant the petition for the suspension or modification to the extent and for the duration that the commission determines:
(i) is necessary:
(A) to avoid a significant adverse economic impact on users of telecommunications services generally;
(B) to avoid imposing a requirement that is unduly economically burdensome; or
(C) to avoid imposing a requirement that is technically infeasible; and
(ii) is consistent with the public interest, convenience, and necessity.
(b) The commission shall act upon any petition filed under subsection (5)(a) within 180 days after receiving the petition. Pending action, the commission may suspend enforcement of the requirement to which the petition applies with respect to the petitioning carrier.
Section 5. Voluntary negotiation of interconnection agreements. Upon receiving a request for interconnection, services, or network elements pursuant to [section 4], an incumbent local exchange carrier may negotiate and enter into a binding agreement with the requesting telecommunications carrier without regard to the duties set forth in [section 4(2)(b) or (2)(c)]. The agreement must include a detailed schedule of itemized charges for interconnection and each service or network element included in the agreement.
Section 6. Mediation of interconnection agreements. Upon the written request of any party negotiating an agreement for interconnection with another telecommunications carrier, the commission may designate a mediator, who may be a commission member, to mediate any differences arising in the course of the negotiation.
Section 7. Arbitration of interconnection issues. (1) The commission has the authority to arbitrate any open interconnection issues pursuant to 47 U.S.C. 252(b), as it existed on February 8, 1996, according to the duties in subsections (3) through (14) of this section. Except as expressly provided in this section, the provisions of the Montana Administrative Procedure Act do not apply to arbitrations conducted under the authority granted by this section.
(2) During the period from the 135th to the 160th day, inclusive, after the date on which an incumbent local exchange carrier receives a request for negotiation under [section 4], the carrier or any other party to the negotiation may petition the commission to arbitrate any open issues. A party that petitions the commission under this section shall, at the same time as it submits the petition, provide the commission all relevant documentation concerning the following:
(a) the unresolved issues;
(b) the position of each of the parties with respect to those issues; and
(c) any other issue discussed and resolved by the parties.
(3) A party petitioning the commission under this section shall provide a copy of the petition and any documentation to the other party or parties not later than the day on which the commission receives the petition.
(4) A nonpetitioning party to a negotiation under [section 4] may respond to the other party's petition and provide any additional information that it wishes within 25 days after the commission receives the petition.
(5) The commission shall limit its consideration to those issues set forth by the parties to the negotiation in the petition for arbitration and the response to the petition.
(6) The commission may appoint a hearings examiner for arbitration proceedings under this section. The hearings examiner shall file with the commission a proposed decision within the time set by order of the commission. A hearings examiner must be assigned with regard to the expertise required for the particular matter. On the filing by a party, in good faith, of a timely and sufficient affidavit of personal bias, lack of independence, disqualification by law, or other disqualification of a hearings examiner or on the hearings examiner's own motion, the commission shall determine the affidavit or motion as a part of the record in the case. The commission may disqualify the hearings examiner and appoint another hearings examiner. The affidavit must state the facts and the reasons for the belief that the hearings examiner should be disqualified and must be filed not less than 10 days before the original date set for the hearing.
(7) Participation in the arbitration proceeding must be limited to the telecommunications carrier requesting the arbitration, the telecommunications carrier from which interconnection is being sought, and the Montana consumer counsel.
(8) Negotiations among the telecommunications carriers may continue, pending a final decision by the arbitrator.
(9) Unless otherwise agreed to by the parties, the commission shall, within 10 days of the filing of a request for arbitration, conduct a conference with the parties for the purpose of establishing a schedule for the orderly and timely disposition of the arbitration. The schedule must include discovery deadlines and a hearing date.
(10) The hearing must be conducted pursuant to the Montana Rules of Evidence, and the parties are entitled to be heard, present evidence material to the issues, and cross-examine witnesses appearing at the hearing. Parties must be allowed to conduct discovery pursuant to the schedule determined by the arbitrator, and the discovery must be conducted pursuant to the Montana Rules of Civil Procedure.
(11) The commission may issue subpoenas for the attendance of witnesses and the production of books, records, documents, and other evidence relevant to the issues being arbitrated and may administer oaths. Subpoenas must be served and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action in district court. The commission shall regulate the course of the hearings and the need for filing briefs and may direct the parties to appear and confer to consider simplification of the issues by consent of the parties.
(12) The commission shall issue its final decision no later than 9 months after the request for negotiations on a petition issued under [section 4]. When the commission files its final decision or when the hearings examiner files the proposed decision with the commission, each party must be simultaneously given a copy delivered personally or by certified mail. The decision must:
(a) ensure the resolution of issues presented by the parties and ensure that the resolution meets the requirements of [section 4] and this section;
(b) establish rates for interconnection, services, or access to unbundled network elements pursuant to 47 U.S.C. 252(d); and
(c) provide a schedule for implementation of the terms and conditions of the decision by the parties.
(13) If the person who conducted the hearing becomes unavailable to the commission, the commission is not precluded from issuing a final decision based on the record if the demeanor of the witnesses is considered immaterial by all parties.
(14) Unless required for the disposition of ex parte matters authorized by law, the person or persons who are charged with the duty of rendering a decision or of making findings of fact and conclusions of law in an arbitration proceeding, after issuance of notice of hearing, may not communicate with any party or a party's representative in connection with any issue of fact or law in the case unless there is notice and opportunity for all parties to participate.
Section 8. Approval of arbitration decision. (1) If the commission has not approved or rejected in its entirety an agreement adopted by arbitration under [section 7(12)] within 30 days of submission by the parties, the agreement is considered approved.
(2) The commission may reject the agreement only if the commission finds that the agreement does not meet the requirements of 47 U.S.C. 251 and the regulations prescribed to implement that section by the federal communications commission or the standards set forth in 47 U.S.C. 252(d). Upon rejection of an agreement, the commission shall provide the parties with written findings as to any deficiencies.
Section 9. Approval of interconnection agreements. (1) Within 90 days of filing of an interconnection agreement adopted by negotiation of the parties to an agreement, the commission shall approve or reject the agreement, or the agreement is considered approved.
(2) The commission may reject an agreement filed under this section only if the commission finds that:
(a) the agreement or a portion of the agreement discriminates against a telecommunications carrier not a party to the agreement; or
(b) the implementation of the agreement or portion is not consistent with the public interest, convenience, and necessity.
(3) Upon rejecting an agreement filed under this section, the commission shall issue written findings detailing any deficiencies in the agreement.
Section 10. Determination of eligible carrier status -- universal service support. (1) The commission is authorized to designate telecommunications carriers as eligible for federal universal service support, in accordance with 47 U.S.C. 214(e)(1) and 47 U.S.C. 254, and for any Montana universal service funds. This authorization applies to all telecommunications carriers notwithstanding the carrier's exemption from further regulation by the commission.
(2) Upon the petition of a telecommunications carrier, or upon its own motion, the commission shall designate a telecommunications carrier that meets the requirements of 47 U.S.C. 214(e)(1) as an eligible telecommunications carrier for a service area designated by the commission. In the case of an area served by a rural telephone company, the term "service area" means the company's "study area" for federal universal service support unless the federal communications commission establishes a different definition of service area for the company. The term "service area" for all other telecommunications carriers means a geographic area such as a census block or grid block as established by the commission for the purpose of determining federal universal service obligations and support mechanisms.
(3) Upon receiving a petition from a telecommunications carrier and consistent with the public interest, convenience, and necessity, the commission may, in the case of an area served by a rural telephone company, and shall, in the case of all other areas, designate more than one telecommunications carrier for a service area, so long as each additional requesting telecommunications carrier meets the requirements of 47 U.S.C. 214(e)(1). Before designating an additional eligible telecommunications carrier for an area served by a rural telephone company, the commission shall find that the designation is in the public interest.
(4) If no telecommunications carrier will provide the services that are supported by universal service support mechanisms under 47 U.S.C. 254(c) to all or a part of an unserved community that requests service, the commission shall determine which telecommunications carrier is best able to provide the service to the requesting unserved community. Any telecommunications carrier ordered to provide service under this section shall meet the requirements of 47 U.S.C. 214(e)(1) and must be designated as an eligible telecommunications carrier for that community or the unserved portion of the community.
(5) The commission shall permit an eligible telecommunications carrier to relinquish its designation as an eligible carrier in any area served by more than one eligible telecommunications carrier. An eligible telecommunications carrier that seeks to relinquish its eligible telecommunications carrier designation for an area served by more than one eligible telecommunications carrier shall give advance notice to the commission of the relinquishment. Prior to permitting a telecommunications carrier designated as an eligible telecommunications carrier to cease providing universal service in an area served by more than one eligible telecommunications carrier, the commission shall require the remaining eligible telecommunications carrier to ensure that all customers served by the relinquishing carrier will continue to be served and shall require sufficient notice to permit the purchase or construction of adequate facilities by any remaining eligible telecommunications carrier. The commission shall establish a time, not to exceed 1 year after the commission approves relinquishment under this section, within which the purchase or construction must be completed.
Section 11. Universal service policies. The legislature finds that universally available telecommunications services are essential to the health, welfare, and economic well-being of the citizens of Montana. The federal Telecommunications Act of 1996, Public Law 104-104, requires a transition to local competition. Implicit subsidies have historically been used to further the public policy of keeping local rates to customers in high-cost areas at affordable levels. The federal act and the transition to competition require that all subsidies used to keep local rates at affordable levels be explicit. Additionally, the federal act's universal service provisions establish a system of discounts for schools, libraries, and health care providers. Securing these discounts can be dependent on state actions. In order to preserve and advance the goal of universal service in the new competitive environment established by the federal act, the legislature finds that a new Montana universal service fund, supported by contributions from the telecommunications carriers operating in Montana, should be created that will:
(1) not duplicate the federal universal service fund mandated by the Telecommunications Act of 1996 but that will complement the federal fund by providing additional funding as necessary to ensure universal service in the state of Montana;
(2) be competitively and technologically neutral in both funding and distribution;
(3) provide a specific, predictable, and sufficient mechanism of support for high-cost areas; and
(4) allow for implementation of the federal support system for telecommunications services provided to schools, libraries, and health care providers.
Section 12. Universal service fund established -- purpose. (1) Pursuant to a determination of need, the commission shall establish and administer a fund to assist eligible telecommunications carriers in providing affordable telecommunications services in high-cost areas. The fund must provide support for the following services:
(a) voice grade access to the public switched network, including some usage;
(b) dual-tone multifrequency (DTMF or "touch tone") signaling or its equivalent;
(c) single-party service;
(d) access to emergency services, including access to 9-1-1, where available, and access to enhanced 9-1-1 when requested by a telecommunications carrier's local community and when the telecommunications carrier has technical capacity to provide it;
(e) access to operator services;
(f) access to interexchange services; and
(g) access to directory assistance.
(2) The fund must support only access to the services listed in subsections (1)(d) through (1)(g) and not support the services themselves.
(3) The fund must be administered to ensure that its operation is competitively and technologically neutral.
Section 13. Fund administrator. (1) A fiscal agent and daily administrator must be selected to receive and distribute funds under [sections 11 through 15].
(2) The fiscal agent must be selected by the commission based upon a competitive bidding process after an opportunity for public comment on the specific qualifications required of the fiscal agent. A telecommunications carrier is not eligible to be the fiscal agent. The duties of the fiscal agent must be determined by a contract consistent with [sections 11 through 15]. The contract term of the fiscal agent must expire December 31, 1999.
(3) The fiscal agent shall provide quarterly reports of fund activities to the commission and shall provide audits annually by a certified public accountant in a manner determined by and under the direction of the commission.
(4) The financial accounts of the fiscal agent must be available at reasonable times to any telecommunications carrier in the state and to the public. The commission may investigate the accounts and practices of the fiscal agent and enter orders concerning the accounts and practices.
Section 14. Contributions to fund. (1) The fiscal agent shall collect contributions from all telecommunications carriers on a quarterly basis, based on a July 1 to June 30 fiscal year. Initial contributions to the fund may only be collected for the 2-month period prior to the effective date of distributions from the fund and must be calculated as follows:
(a) determine the total retail revenue for all telecommunications carriers for the immediately preceding calendar year;
(b) determine the total funds needed for distributions in the next fiscal year as authorized pursuant to [section 15];
(c) compute a uniform percentage of the amount determined in subsection (1)(a) that will produce an amount equal to the fund total calculated in subsection (1)(b);
(d) adjust the percentage multiplier computed in subsection (1)(c) to recover or reimburse any fund shortfalls or excesses in the previous fiscal year; and
(e) send notice of the current uniform percentage and appropriate remittance forms to each telecommunications carrier at least 2 months prior to the effective date of the application of the percentage.
(2) The commission shall adopt procedural rules to govern collection of the contributions required by this section, as well as rules allowing the fiscal agent and daily administrator to assess late fees and interest on delinquent payments from telecommunications carriers. The fiscal agent is specifically authorized to enforce the contribution requirements of this section through suit in the district courts of Montana.
(3) Any reduction in telecommunications carrier access expenses because of the removal of implicit subsidies inherent in telecommunications carrier access rates must be passed through to Montana end-user customer retail rates.
Section 15. Distributions from fund -- calculation of costs. (1) Subject to the requirements of this section, payments from the fund must be made by the fiscal agent to qualifying eligible telecommunications carriers, on a monthly basis, pursuant to rules adopted by the commission.
(2) Only eligible telecommunications carriers that offer the telecommunications services described in [section 12(1)] to all customers in a designated support area and that advertise the availability of the telecommunications services and the charges for the telecommunications services using media of general distribution may receive support from the fund for the designated support area.
(3) Distributions must be calculated for the designated support areas established by the commission. In the case of an area served by a rural telephone company, the term "designated support area" means the rural telephone company's Montana service area unless the rural telephone company voluntarily adopts a proxy model for the calculation of the rural telephone company's cost of telecommunications services under subsection (6). After adoption of a proxy model, the rural telephone company's designated support area must be an area designated by the commission, which may be smaller than a wire center. The term designated support area for all other telecommunications carriers means a geographic area as established by the commission, which must be smaller than a wire center.
(4) Support for the services listed in [section 12(1)] must be calculated as the difference between the costs determined in each designated support area and the affordability benchmark in that support area. The commission shall adopt rules to determine affordability benchmarks.
(5) Except as provided in subsection (6), for rural telephone companies and other eligible telecommunications carriers offering services in a designated support area served by a rural telephone company, the average cost for each line must be calculated and submitted, based on the preceding calendar year, to the fiscal agent as follows:
(a) If an additional eligible telecommunications carrier has not been designated pursuant to [section 10(3)], the rural telephone company's total unseparated loop cost, as defined by federal separation rule methodology in effect on December 31, 1996, must be added to the switching costs, local transport costs, and customer operations costs assigned to the telecommunications services set forth in [section 12(1)], which must be calculated using the methodology set forth in federal communications commission jurisdictional separation rules in effect as of December 31 of each calendar year. This total cost must be reduced by any federal universal service support, interstate allocation of loop costs, and loop costs recovered through intrastate telecommunications carrier common line charges to long-distance companies.
(b) Upon the designation of an additional eligible telecommunications carrier pursuant to [section 10(3)] in a designated support area served by a rural telephone company, the additional eligible telecommunications carrier has access to the fund on the same basis as the rural telephone company. Upon the designation of the additional eligible telecommunications carrier, both the carrier and the rural telephone company must receive distributions from the fund based upon the rural telephone company's average cost for each line disaggregated to geographic areas smaller than a wire center. The support for each line for each geographic area must be based upon the rural telephone company's costs, as determined in subsection (5)(a), distributed to each of the geographic areas on the basis of relative distribution factors established by a cost proxy model adopted by the commission.
(6) Except as provided in subsection (5)(b), for companies that are not rural telephone companies and for rural telephone companies voluntarily electing to use a cost proxy model, the average cost for each line in designated support areas must be calculated based on the cost proxy model adopted by the commission. This total per-line cost must be reduced by any federal universal service support, interstate allocation of loop costs, and loop costs recovered through intrastate telecommunications carrier common line charges to long-distance companies.
(7) In determining any proxy mechanism under this section, the commission shall use a model that:
(a) targets support to a geographic area smaller than a wire center;
(b) uses acceptable outside plant design and costing principles;
(c) uses reasonable switch design and costing principles;
(d) includes a reasonable share of the joint and common costs of the telecommunications carrier;
(e) meets standards for documenting model logic and the sources of cost data input; and
(f) meets reasonableness tests to ensure that model outputs are representative of costs that can be reasonably expected in the construction of a network and that the network is capable of providing telecommunications services that meet the telecommunications services quality standards of the commission and federal regulators.
(8) An eligible telecommunications carrier providing telecommunications services through resale of another telecommunications carrier's telecommunications services or facilities may not receive support for those telecommunications services or facilities if the rates charged to an eligible telecommunications carrier by the other telecommunications carrier have been reduced by a contribution from universal service funds under this section.
(9) Costs of administering the fund must be paid from the fund.
Section 16. Discounts for schools, libraries, and health care providers. The commission is authorized to establish intrastate discounts to schools, libraries, and health care providers and to perform administrative functions necessary as a condition of federal universal service support if the discounts are recovered through the federal universal service fund.
Section 17. Wholesale pricing standards. (1) Except as provided in subsection (2), if the commission is requested by a telecommunications carrier to establish wholesale prices for services provided by a telecommunications carrier, the commission may not establish a wholesale price using a default proxy discount value to be applied to the applicable retail price. The commission shall establish wholesale prices using company-specific costs.
(2) This section does not apply to the prices, terms, and conditions of a final or interim arbitrated interconnection agreement, arbitration decision, or appeal from an agreement or decision if the request for arbitration was filed on or before March 1, 1997.
Section 18. Pricing of individual network elements. (1) Except as provided in subsection (4), if the commission is requested by a telecommunications carrier to establish the prices of the individual network elements used to provide telecommunications services, the commission shall set those prices at a just and reasonable level sufficient to recover the actual cost of providing those elements, including:
(a) a reasonable share of the joint and common costs so that the telecommunications carrier has a reasonable opportunity to recover these costs;
(b) depreciation costs that are based upon forward-looking asset lives consistent with asset lives of other telecommunications carriers and that reflect an amortization of any underdepreciated investment;
(c) a reasonable share of the costs associated with fill factors, recognizing spare capacity required to fulfill eligible telecommunications carrier responsibilities; and
(d) a fair return on investments.
(2) The actual cost of providing the elements included in subsections (1)(a) through (1)(d) must be determined without reference to a rate-of-return or other rate-based proceeding.
(3) If a telecommunications carrier uses average prices for services to end users without regard to the customer's location, the commission shall similarly establish an average cost and wholesale price for each individual network element sold to other telecommunications carriers. The commission may depart from average pricing for network elements only to the extent that the retail prices to end users of a telecommunications carrier have departed from average pricing.
(4) This section does not apply to the prices, terms, and conditions of a final or interim arbitrated interconnection agreement, arbitration decision, or appeal from an agreement or decision if the request for arbitration was filed on or before March 1, 1997.
Section 19. Prohibited subsidies. The commission may not subsidize the price of any telecommunications service, including wholesale prices or the prices of individual network elements, by reducing the prices to reflect an allocation or credit of revenue from the operations of an affiliated company of the carrier of telecommunications services, including a publishing affiliate.
Section 20. Interim universal access program -- purpose. (1) There is an interim universal access program.
(2) The purpose of the interim universal access program is to further the goal of universal access to advanced telecommunications services in Montana by:
(a) increasing safety net coverage through which advanced telecommunications services would, at a minimum, be available through a library, school, or other specified type of public institution in every community in the state;
(b) encouraging innovation in communities to bring advanced services to Montana's rural areas; and
(c) assisting communities that have already succeeded in obtaining services when ongoing transport costs threaten the continued availability of these services.
Section 21. Interim universal access program -- definitions. As used in [sections 20 though 27], the following definitions apply:
(1) "Administrator" means the public service commission.
(2) "Advanced services" means high-speed (56 kbps and above), dedicated or switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.
(3) "Health care provider" means any one of, or a consortium of, the following institutions located in Montana:
(a) postsecondary educational institutions offering health care instruction;
(b) community health care centers or health centers providing health care to migrants;
(c) local health departments or agencies;
(d) community mental health centers;
(e) not-for-profit hospitals; and
(f) rural health clinics.
(4) "Library" means a library located in Montana that is eligible for participation in state-based plans for funds under Title III of the Library Services and Construction Act (20 U.S.C. 335c, et seq.).
(5) "School" means:
(a) an elementary school or secondary school that meets the definition set forth in subsections (14) and (25), respectively, of section 14101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801) and that does not have an endowment of more than $50 million; or
(b) a bureau of Indian affairs elementary and secondary school.
(6) "Tribal college" means a college recognized by the United States government as a tribal college.
Section 22. Interim universal access program -- public access points. At a minimum, all public access points must provide the general public access to advanced telecommunications services that are not subscription-based. The access must be provided free of charge and at convenient hours on a walk-in basis. Public access points may offer subscription- based services, such as electronic mail, but are not required to administer these types of services.
Section 23. Interim universal access program -- funded services -- application for services. (1) The universal access program provides funding through discounts only for advanced services for use by public access points, schools, tribal colleges, libraries, and health care providers approved by the administrator.
(2) The first priority of the program is to provide funding for at least one public access point in each Montana community. Subject to available funding, the program shall also provide funding for advanced services to schools, tribal colleges, libraries, and health care providers.
(3) The administrator shall establish discount levels for services in each of the following categories:
(a) public access points;
(b) education services to schools and tribal colleges for distance learning, electronic access to educational resources, and electronic delivery or reception of educational programming;
(c) library services for libraries not serving as public access points for electronic access to information and library services; and
(d) rural health services to rural health care providers for access to similar services as urban health care providers and to ensure electronic access to health care services.
(4) To receive discounted services under the interim universal access program, public access providers, schools, tribal colleges, libraries, and health care providers shall apply for the discounts. The application must be accompanied by a resolution of support from the governing body of the appropriate city, county, or tribal government in which the applicant is located.
Section 24. Interim universal access program -- services provided at discounts -- reimbursements. (1) Telecommunications carriers shall provide advanced services to eligible users at specified discounts. The amount of the discount must be reimbursed to the provider from the interim universal access account established in [section 26].
(2) Except as provided in subsection (3), the advanced discount is equal to 50% of the best cost rate available to any business customer for an equivalent of one 56 kbps dedicated circuit to the nearest access point for the requested service. However, the cost to the eligible user may not exceed $100 a month.
(3) If funds from the interim universal access account are not sufficient to fully reimburse for discounts authorized in subsection (2), the amount of the discounts to each eligible user must be reduced proportionally.
(4) Even if best cost rates available to any business customer increase by more than 5%, the amount payable by an eligible user may not increase by more than 5% during the period from [the effective date of this section] to January 1, 2000.
(5) Subject to restrictions in federal law, if interstate universal access services are established by the federal communications commission, federal funding for universal access services must be used to reduce state funding for intrastate services.
Section 25. Interim universal access program -- funding -- surcharge rate. (1) (a) The interim universal access program is funded by a surcharge based on the retail revenue for all intrastate telecommunications services in the state. The surcharge must be determined by the administrator by rule. The surcharge must be set and applied to all telecommunications carriers on a competitively neutral basis.
(b) The rate of the surcharge must be set to raise $250,000 during the fiscal year ending June 30, 1998, and $500,000 during the fiscal year ending June 30, 1999. The rate may be changed, by rule, as necessary.
(c) The payment of the surcharge is an explicit subsidy and may be shown as a separate line item on each carrier's retail telecommunications services bills.
(d) The surcharge may be applied only to telecommunications services. Customer premise equipment is not considered a telecommunications service.
(2) The surcharge is payable quarterly to the department of revenue and deposited by the department in the interim universal access account established in [section 26]. The department may by rule:
(a) establish the form of a reporting statement to be filed by telecommunications carriers subject to the surcharge;
(b) set the date after the end of a fiscal quarter that the quarterly payment must be made;
(c) provide for recordkeeping by telecommunications providers subject to the surcharge; and
(d) provide methods to pay the surcharge, including offsets of surcharges owed against discounted services to be reimbursed, and to pay refunds of overpayment of the surcharge.
(3) (a) The collection of a surcharge under this section is subject to:
(i) the deficiency assessment, review, interest, and penalty provisions of 15-53-105;
(ii) the penalty and interest for delinquency and waiver provisions of 15-53-111;
(iii) the estimation of tax on failure to file a statement provisions of 15-53-112;
(iv) the warrant for distraint provisions of 15-53-113; and
(v) the statute of limitations provisions of 15-53-115.
(b) Any reference to the tax under sections listed in subsection (3)(a), either by cite to a section of law or literally to the tax, refer, for the purposes of this section, to the surcharge imposed by this section.
Section 26. Interim universal access program -- account. An interim universal access account is established in the state special revenue fund in the state treasury. All money received by the department of revenue pursuant to [section 25] must be paid to the state treasurer for deposit in the account. After payment of refunds, the balance of the account must be used for the purposes described in [section 24].
Section 27. Commission to make recommendations on universal access and service. The public service commission shall examine and make recommendations to the 56th legislature on universal access and service. The commission shall:
(1) review the impact on universal access and service in Montana of any federal universal service fund that results from current federal communications rulemaking under the federal Telecommunications Act of 1996; and
(2) evaluate the extent to which the federal universal service fund falls short of supporting legislatively defined universal access and service goals in Montana.
(3) The commission may develop plans and propose legislation that would ensure the attainment of universal access and service goals in Montana.
Section 28. Section 2-4-102, MCA, is amended to read:
"2-4-102. Definitions. For purposes of this chapter, the following definitions apply:
(1) "Administrative code committee" or "committee" means the committee provided for in Title 5, chapter 14.
(2) (a) "Agency" means an agency, as defined in 2-3-102, of the state government, except that the provisions of this chapter do not apply to the following:
(i) the state board of pardons and parole, except that the board is subject to the requirements of 2-4-103, 2-4-201, 2-4-202, and 2-4-306 and its rules must be published in the Administrative Rules of Montana and the Montana Administrative Register;
(ii) the supervision and administration of a penal institution with regard to the institutional supervision, custody, control, care, or treatment of youths or prisoners;
(iii) the board of regents and the Montana university system;
(iv) the financing, construction, and maintenance of public works
(v) the public service commission when conducting arbitration proceedings pursuant to 47 U.S.C. 252 and [section 7].
(b) Agency does not include a school district, unit of local government, or any other political subdivision of the state.
(3) "ARM" means the Administrative Rules of Montana.
(4) "Contested case" means a proceeding before an agency in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing. The term includes but is not restricted to ratemaking, price fixing, and licensing.
(5) "License" includes the whole or part of any agency permit, certificate, approval, registration, charter, or other form of permission required by law but does not include a license required solely for revenue purposes.
(6) "Licensing" includes any agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, limitation, transfer, or amendment of a license.
(7) "Party" means a person named or admitted as a party or properly seeking and entitled as of right to be admitted as a party, but nothing in this chapter may be construed to prevent an agency from admitting any person as a party for limited purposes.
(8) "Person" means an individual, partnership, corporation, association, governmental subdivision, agency, or public organization of any character.
(9) "Register" means the Montana Administrative Register.
(10) "Rule" means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. The term includes the amendment or repeal of a prior rule but does not include:
(a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;
(b) formal opinions of the attorney general and declaratory rulings issued pursuant to 2-4-501;
(c) rules relating to the use of public works, facilities, streets, and highways when the substance of the rules is indicated to the public by means of signs or signals;
(d) seasonal rules adopted annually or biennially relating to hunting, fishing, and trapping when there is a statutory requirement for the publication of the rules and rules adopted annually or biennially relating to the seasonal recreational use of lands and waters owned or controlled by the state when the substance of the rules is indicated to the public by means of signs or signals;
(e) rules implementing the state personnel classification plan, the state wage and salary plan, or the statewide budgeting and accounting system;
(f) uniform rules adopted pursuant to interstate compact, except that the rules must be filed in accordance with 2-4-306 and must be published in the Administrative Rules of Montana.
(11) "Substantive rules" are either:
(a) legislative rules, which if adopted in accordance with this chapter and under expressly delegated authority to promulgate rules to implement a statute have the force of law and when not so adopted are invalid; or
(b) adjective or interpretive rules, which may be adopted in accordance with this chapter and under express or implied authority to codify an interpretation of a statute. The interpretation lacks the force of law."
Section 29. Section 69-3-305, MCA, is amended to read:
"69-3-305. Deviations from scheduled rates, tolls, and charges. (1) A public utility may not:
(a) charge, demand, collect, or receive a greater or less compensation for a utility service performed by it within the state or for any service in connection with a utility service than is specified in the printed schedules, including schedules of joint rates, that may at the time be in force;
(b) demand, collect, or receive a rate, toll, or charge not specified in the schedules; or
(c) grant a rebate, concession, or special privilege to a consumer or user that, directly or indirectly, has or may have the effect of changing the rates, tolls, charges, or payments.
(2) The rates, tolls, and charges named in the printed schedules are the lawful rates, tolls, and charges until the rates, tolls, and charges are changed, as provided in this chapter.
(3) The commission may order refunds or credits of rates, tolls, or charges collected in violation of this section and may order payment of interest at a reasonable rate on the refunded amount.
(4) The provisions of this section do not prohibit the sharing of profits or revenues with customers in conjunction with an alternative form of regulation approved under 69-3-809.
(5) (a) A provider of regulated telecommunications service may offer, for a limited period of time,
either rebates, price or
reductions, or waivers of installation charges in conjunction with promotions, market trials, or other sales-related activities
that are common business practices. Promotional pricing of services that remain fully tariffed requires for services other
than basic local exchange access to end users does not require advance approval of the commission. Informational price
lists must be filed with the commission on or before the date that the promotion begins. Promotional offerings for basic
local exchange access to end users and packaged services that include basic local exchange access to end users require
advance approval of the commission. The commission shall approve, deny, or upon a showing of good cause set for hearing
an application for a promotional discount within 30 days of the filing of the application. If the commission has not acted on
the application within the permitted time period, the application is considered granted. A promotional offering may not
combine monopoly services with competitive services unless authorized by the commission.
(b) A public utility providing electricity or natural gas may offer grants and subsidized loans to install energy conservation and nonfossil forms of energy generation systems in dwellings.
(c) The commission may define the appropriate scope of promotions, rebates, market trials, and grants and subsidized loans, either by rule or in response to complaints. The commission may determine whether a particular sales activity or grant or subsidized loan program under this subsection is unfairly discriminatory or is not cost-effective. Costs and expenses incurred or revenue foregone with respect to sales activities and grant and subsidized loan programs that the commission determines are unfairly discriminatory or not cost-effective are the responsibility of the provider's shareholders in rates set by the commission.
(6) A public utility violating the provisions of this section is subject to the penalty prescribed in 69-3-206.
However, this does not have the effect of suspending, rescinding, invalidating, or in any way affecting existing contracts."
Section 30. Section 69-3-803, MCA, is amended to read:
"69-3-803. Definitions. As used in this part, the following definitions apply:
(1)(1) "Commission" means the public service commission.
(2) "Eligible telecommunications carrier" means a telecommunications provider designated by the commission under [section 10].
(3) "Fund" means the universal service fund established in [section 12].
(4) "Incumbent local exchange carrier" means, with respect to an area, the local exchange carrier that:
(a) on February 8, 1996, provided telephone exchange service in the area; and
(b) on February 8, 1996, was considered to be a member of the exchange carrier association pursuant to 47 CFR 69.601(b) or is a person or entity that, after that date, became a successor or assign of a member of the exchange carrier association.
(2)(5) "Private telecommunications service" means a system, including the construction, maintenance, or operation thereof
of the system, for the provision of telecommunications service or any portion of such the service, by a person or entity for
the sole and exclusive use of that person or entity and not for resale, directly or indirectly. For purposes of this definition,
the term "person or entity" includes a corporation and all of its affiliates and subsidiaries if the corporation, affiliates, and
subsidiaries have a common ownership or control of 80% of the outstanding voting shares. (3)(6) (a) "Regulated telecommunications service" means two-way switched, voice-grade access and transport of
communications originating and terminating in this state and nonvoice-grade access and transport if intended to be
converted to or from voice-grade access and transport.
Regulated telecommunications service The term does not include the provision of terminal equipment used to originate
or terminate such the regulated service, private telecommunications service, resale of telecommunications service, one-way
transmission of television signals, cellular communication, or provision of radio paging or mobile radio services. (4) "Resale of telecommunications service" means the resale of regulated telecommunications service, with or without
adding value, provided any value added would not otherwise be subject to regulation.
(7) "Retail revenue" means the gross Montana revenue from telecommunications services that originate or terminate in Montana and are billed for a service address in Montana, excluding revenue from the resale of telecommunications services to another telecommunications services provider that uses the telecommunications services to provide telecommunications services to the ultimate retail consumer who originates or terminates the transmission.
(8) "Rural telephone company" means a local exchange carrier operating entity to the extent that the entity:
(a) provides common carrier service to any local exchange carrier study area that does not include either:
(i) all or any part of an incorporated place of 10,000 inhabitants or more based on the most recently available population statistics of the United States bureau of the census; or
(ii) any territory, incorporated or unincorporated, included in an urbanized area, as defined by the United States bureau of the census as of August 10, 1993;
(b) provides telephone exchange service, including exchange access, to fewer than 50,000 access lines;
(c) provides telephone exchange service to any local exchange carrier study area with fewer than 100,000 access lines; or
(d) has less than 15% of its access lines in communities of more than 50,000 on February 8, 1996.
(9) "Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing without a change in the form or content of the information upon receipt.
(10) "Telecommunications carrier" or "carrier" means any provider of telecommunications services. A person providing other products and services in addition to telecommunications services is considered a telecommunications carrier only to the extent that it is engaged in providing telecommunications services. The term does not mean aggregators of telecommunications services as defined in 47 U.S.C. 226."
Section 31. Section 69-3-805, MCA, is amended to read:
Manner of regulation Registration of telecommunications service providers. (1) Before any person or
entity provides regulated telecommunications service within the state of Montana, it shall file with the commission a notice
(a) the name,
and address, and telephone number of the provider;
a narrative description of the regulated telecommunications service to be offered and the geographic area and markets
to be served; (c) initial tariffs for the regulated telecommunications service; (d) such other information as the commission may require to accomplish the purpose of this chapter. the name, address,
and telephone number of the person responsible for regulatory contacts and customer dispute resolution on behalf of the
(c) a description of the provider's existing operations and general service and operating areas in any other jurisdictions;
(d) a list of the provider's parent, subsidiary, and affiliated companies, together with principal addresses and telephone numbers of each;
(e) initial tariffs or price lists for regulated telecommunications services, including a narrative description of the regulated telecommunications to be offered and the geographic area and markets to be served;
(f) a general description of the facilities and equipment that will be used to provide services, including whether the service will be offered on a facilities basis, a resale basis, or a combination of both of them;
(g) a statement of whether the provider intends to draw from the federal or state universal service fund or other explicit support funds, including a statement of whether the provider intends to seek the commission's designation as an eligible telecommunications carrier;
(h) disclosure of any formal actions against it by any court or state or federal regulatory agency that resulted in any type of penalty or sanction within the 5 years prior to the date of filing the notice;
(i) if the provider is other than a corporation, a description of the form of ownership, the names and addresses of all principal owners and managers, the provider's agent for service of process in Montana, and the date of creation of the business entity; and
(j) other information from regulated telecommunications carriers as the commission may require to accomplish the purposes of this chapter.
The provision of any regulated telecommunications service does not subject the provider thereof to regulation of any
other telecommunications services otherwise exempt under this chapter. The commission may waive any of the
requirements set forth in subsection (1).
(3) The provider shall file with the commission a report of any judgment, penalty, or sanction entered in any other jurisdiction that could adversely affect the provider's ability to provide communications services in Montana."
Section 32. Section 69-3-806, MCA, is amended to read:
"69-3-806. Prohibition against cross-subsidization.
(1) No A provider of regulated telecommunications service services
may not use current revenues revenue earned or expenses incurred in conjunction with services subject to regulation under
this chapter to subsidize services which that are not regulated or are not tariffed. Expenses incurred in conjunction with
services that are not regulated or that are not tariffed under this chapter may not be attributed to services which that are
subject to regulation for any reason. (2) Nothing in this section is to be construed to effect the regulatory treatment of revenues, expenses, and investment for
telephone directory services currently authorized under this title."
Section 33. Section 69-3-807, MCA, is amended to read:
"69-3-807. Regulation of rates and charges. (1)
As to telecommunications service that is provided under regulation, the
The commission may establish specific rates, tariffs, or fares for the provision of the regulated telecommunications service
to the public. The rates, tariffs, or fares must be just, reasonable, and nondiscriminatory.
(2) Alternatively, the commission may authorize the provision of regulated telecommunications service under terms and
conditions that best serve the declared policy of this state. For a service detariffed under this subsection, the provider shall
maintain a current price list on file with the commission and shall provide notice of changes in the price list as prescribed
by the commission. The commission is not required to fix and determine specific rates, tariffs, or fares for the service and
lieu thereof the alternative may:
(a) totally detariff the service;
(b) detariff rates for the service but retain tariffs for service standards and requirements;
(c) establish only maximum rates, only minimum rates, or permissible price ranges as long as the minimum rate is cost compensatory; or
such other rate or service regulation as will promote the purposes of this part.
(3) Except as provided in subsection (4), in determining applications under subsection (2), the commission shall consider the following factors:
(a) the number, size, and distribution of alternative providers of service;
(b) the extent to which services are available from alternative providers in the relevant market;
(c) the ability of alternative providers to make functionally equivalent or substitute services readily available;
(d) the overall impact of the proposed terms and conditions on the continued availability of existing services at just and reasonable rates; and
(e) other factors that the commission may prescribe through rulemaking that are appropriate to fulfill the purposes of this part.
(4) Notwithstanding the provisions of subsection (3), the commission may exercise its power under subsection (2)(c) with respect to any services of a telecommunications provider if the commission finds that action consistent with the provisions of 69-3-802 and with the public interest. Noncompetitive local exchange access to end-users and carrier access services may not be detariffed.
(5) A provider of regulated message telecommunications service and related services shall average its service rates on its
routes of similar distance within the state unless otherwise authorized by the commission.
Nothing contained in this This
subsection may not be construed to prohibit volume discounts, discounts in promotional offerings, or other discounts as
long as the discounts are not offered in a discriminatory manner. (6) All providers of comparable regulated telecommunications services within a market area must be subject to the same
standards of regulation. For purposes of this section, regulated telecommunications services are comparable to the extent
alternative providers can make functionally equivalent substitutes or substitute services readily available."
Section 34. Section 69-3-1001, MCA, is amended to read:
"69-3-1001. Creation of program -- amount of assistance. (1) There is a telephone
low income low-income assistance
program to provide an eligible subscriber with a discount in the monthly charge for local exchange service in the telephone
This The commission shall set the discount in the charge for local exchange service is the greater of: (a) $2 that is at least $3.50 a month for each eligible subscriber ; or (b) but not more than the amount necessary to obtain the matching waiver available under applicable orders and
regulations of the federal communications commission that is the difference between the otherwise applicable current rate
for local exchange service and the rate as it was on [the effective date of this section]."
Section 35. Telecommunications committee. (1) There is a telecommunications committee. The committee consists of:
(a) two members of the senate, one from each political party, appointed by the committee on committees of the senate;
(b) two members of the house of representatives, one from each political party, appointed by the speaker of the house; and
(c) a representative of the public service commission appointed by the public service commission.
(2) The committee shall monitor federal implementation of the federal Telecommunications Act of 1996, Public Law 104-104. The committee shall recommend to the 56th legislature policies, practices, and statutory changes that are required to implement or conform to the federal implementation.
(3) The office of the consumer counsel shall provide staff assistance to the committee.
Section 36. Appropriation. (1) Subject to funds being available pursuant to subsection (2), there is appropriated from the state special revenue fund up to $30,000 to the office of the consumer counsel for purposes of [section 35].
(2) The telecommunications committee may accept gifts, grants, and donations for deposit in the state special revenue fund for purposes of [section 35].
Section 37. Codification instruction. [Sections 1 through 27] are intended to be codified as an integral part of Title 69, chapter 3, part 8, and the provisions of Title 69, chapter 3, part 8, apply to [sections 1 through 27].
Section 38. Repealer. Sections 69-6-101, 69-6-102, and 69-6-103, MCA, are repealed.
Section 39. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
Section 40. Effective date. [This act] is effective on passage and approval.
Section 41. Termination. [Sections 11 through 15] terminate December 31, 1999.