Introduced Version






SENATE BILL No. 528

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 8-1.

Synopsis: Penalties for telecommunications carriers. Prohibits a commissioner, an administrative law judge, or an employee of the Indiana utility regulatory commission (IURC) who is assigned to a formally docketed proceeding from communicating with a party to the proceeding unless the party files a notice of the communication for inclusion in the public record. Provides that certain telephone companies that are certified for local exchange service and that serve less than 40,000 local exchange access lines are exempt from the IURC's jurisdiction over the issuance of bonds or common stock. Allows the IURC to establish service standards for telecommunications carriers and penalties for the violation of the standards. Provides that a telecommunications carrier violates a service standard if the carrier fails to meet the standard on an average basis for one month. Provides that penalties for the violation of service standards may not exceed $500,000 per month for each telecommunications carrier that fails to meet the standards established by the commission.

Effective: July 1, 2001.





Server, Lewis




    January 22, 2001, read first time and referred to Committee on Commerce and Consumer Affairs.







Introduced

First Regular Session 112th General Assembly (2001)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2000 General Assembly.

SENATE BILL No. 528



    A BILL FOR AN ACT to amend the Indiana Code concerning utilities and transportation.

Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 8-1-1-5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 5. (a) The commission shall in all controversial proceedings heard by it be an impartial fact-finding body and shall make its orders in such cases upon the facts impartially found by it. The commission shall in no such proceeding, during the hearing, act in the role either of a proponent or opponent on any issue to be decided by it. All evidence given in any such proceeding shall be offered on behalf of the respective parties to, or appearing in, the proceeding and not in the name or behalf of the commission itself.
    (b) Any report, audit, examination, or analysis prepared by the commission staff at the request or direction of the commission may be made a part of the record of the proceeding, subject to cross-examination by any party of the person who performed or directed the preparation of the report, audit, examination or analysis.
    (c) If in any such proceeding the public interest is not otherwise adequately represented by counsel, in the opinion of the commission, it shall be the duty of the utility consumer counselor, if requested by the

commission, to make adequate preparation for the presentation of the interests of the public in such proceeding and he shall at the hearing represent the public interests therein involved.
    (d) However, nothing in this section prevents the commission from instituting, prosecuting, hearing, or determining any investigation or proceeding which it is authorized to do, or make, on its own motion by any law with the administration of which it is charged.
    (e) Except as otherwise provided in this chapter, No member or commissioner, administrative law judge, or staff employee of the commission assigned to make findings of fact and conclusions of law in a formally docketed evidentiary proceeding may communicate in connection with any issue of fact, or law, or policy disputed in that proceeding with any party or his representative, except on notice and with opportunity for all parties to participate. unless the party agrees to report the communication in the manner provided in this subsection, and regardless of whether the communication is initiated by the party or by the commissioner, administrative law judge, or staff employee. A party shall report a communication described in this subsection not later than three (3) working days after the date on which the communication occurs by submitting a notice of ex parte communication to the administrative law judge or commissioner assigned to the proceeding and to the secretary of the commission for inclusion in the public record. A notice provided under this subsection must include the following information:
        (1) The date, time, and location of the communication and whether it was oral, written, or a combination thereof.
        (2) The identity of:
            (A) all participants in the communication;
            (B) the person initiating the communication; and
            (C) any other persons present during the communication.
        (3) A description of the communication and a summary of the content of communication.
The party shall attach to the notice required under this subsection a copy of any written material or text used during the communication.
A person who violates this section commits a Class C infraction.
    SECTION 2. IC 8-1-2-88.5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 88.5. (a) This section applies to each telephone company (as defined in section 88 of this chapter) that is certified for local exchange telephone service before January 1, 1995, and that is serving less than forty thousand (40,000)

local exchange access lines. However, this section does not apply to rural telephone cooperatives formed under IC 8-1-17.
    (b) Upon receiving a petition requesting the commission to issue an order under subsection (c) from:
        (1) a telephone company; or
        (2) the lesser of:
            (A) ten percent (10%) of the current access line subscribers of the telephone company; or
            (B) five hundred (500) subscribers;
the commission shall publish notice of the petition in a newspaper of general circulation published in each county in which the telephone company provides service.
    (c) Unless within thirty (30) days after publication of the notice of the petition the office of the utility consumer counselor or a person with a substantial interest in the subject matter of the petition files with the commission a request for a hearing on the petition, a hearing is not required and the commission shall issue an order removing the telephone company from the jurisdiction of the commission for approval of rates, charges, and financing. If a hearing is requested, the party requesting the hearing has the burden of proving that public convenience and necessity require the commission to continue to have jurisdiction of approval of the telephone company's rates, charges, and financing. If a hearing is requested by a competitor of the telephone company, the commission may impose sanctions in the form of awarding to the telephone company the costs, including reasonable attorney's fees, to be paid by the competitor if the commission finds that the request for a hearing or the pursuance of the request is frivolous. As used in this subsection, "frivolous" means that at least one (1) of the following conditions is met:
        (1) The competitor's primary purpose in initiating the proceeding was to harass, embarrass, or injure the telephone company.
        (2) The competitor had no reasonable basis to believe that the facts underlying its legal position were true.
        (3) The competitor's legal position was devoid of arguable legal merit.
    (d) In considering a petition for exemption under this section, the commission may not find that public convenience and necessity require the petitioning or respondent telephone company to be subject to the commission's jurisdiction over its rates, charges, and financing unless the commission finds that no other telephone company has been issued a certificate of territorial authority under section 88 of this chapter to provide the functional equivalent of local exchange access service (as

defined in IC 8-1-2.8-7 ) in any part of the petitioning or respondent telephone company's local exchange access service area.
    (e) The commission may revoke the exemption or impose restrictions on the continued exercise of the exemption after notice and hearing either on its own motion, or after receiving a petition filed by:
        (1) the utility consumer counselor; or
        (2) the lesser of:
            (A) ten percent (10%) of the telephone company's current access line subscribers; or
            (B) five hundred (500) of the telephone company's subscribers;
if the person filing the petition proves that the public interest requires the revocation or restriction.
    (f) A telephone company that is exempt from commission jurisdiction under this section shall file an annual report with the commission that includes:
        (1) an income statement and balance sheet in a form prescribed by the commission; and
        (2) any other information that the commission prescribes in rules adopted under IC 4-22-2.
The telephone company shall notify its customers that the income statement and balance sheet are on file with the commission.
    (g) A telephone company that is exempted from commission jurisdiction under this section:
        (1) shall file its tariffs for rates and charges and any subsequent change in its tariffs with the commission; and
        (2) remains subject to the commission's jurisdiction concerning only:
            (A) certificates of territorial authority under section 88 of this chapter;
            (B) payment of public utility fees under IC 8-1-6 ;
            (C) access and interconnection charges to other telephone companies under section 5 of this chapter;
            (D) customer service complaints under section 34.5(b) of this chapter; and
            (E) administration of federal law for which responsibility has been delegated to the commission by federal statute.
The commission shall not deny relief requested pursuant to federal law under clause (E) by a telephone company that is exempt from commission jurisdiction under this section solely because of the exemption.
     (h) A telephone company to which this section applies is not

subject to the commission's jurisdiction under section 79 or 80 of this chapter.
    SECTION 3. IC 8-1-2.6-3.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 3.5. (a) As used in this section, "telecommunications carrier" has the meaning set forth in 47 U.S.C. 153(44) and includes a telephone company (as defined in IC 8-1-2-88 and IC 8-1-2-88.6 ).
    (b) In a proceeding initiated by the commission under section 3 of this chapter, the commission may establish nondiscriminatory and competitively neutral:
        (1) quality of service standards for telecommunications carriers that are not exempt from the commission's jurisdiction under:
            (A) IC 8-1-2-88.5 ;
            (B) section 2 of this chapter; or
            (C) IC 8-1-17-22.5 ; and
        (2) penalties for the violation of standards established under subdivision (1), subject to the limitation prescribed in subsection (e).
    (c) Subject to the limitation prescribed in subsection (e), the commission may:
        (1) on its own motion;
        (2) at the request of the utility consumer counselor;
        (3) at the request of one (1) or more telecommunications carriers; or
        (4) at the request of any class satisfying the standing requirements of IC 8-1-2-54 ;
impose penalties established under subsection (b)(2) on a telecommunications carrier if the commission determines, after notice and hearing, that the telecommunications carrier has willfully violated one (1) or more standards established by rule or by final and unappealable order under subsection (b)(1).
    (d) Notwithstanding any other statute, a telecommunications carrier violates a standard established by the commission under subsection (b)(1) only if the telecommunications carrier fails to meet the standard on an average basis for one (1) month. Each month during which the telecommunications carrier fails to meet the standards established by the commission under subsection (b)(1) constitutes a separate violation for purposes of any penalties that may be imposed.
    (e) Total penalties imposed by the commission under this section

may not exceed five hundred thousand dollars ($500,000) per month for each telecommunications carrier that fails to meet the standards established by the commission under subsection (b)(1).
    (f) Unless directed to do otherwise by the commission, a telecommunications carrier shall apply penalties imposed under this section as credits against the bills of retail end use consumers according to the directions of the commission.
    (g) Standards adopted under this section must be consistent with the federal Telecommunications Act of 1996 (47 U.S.C. 151 et seq.) and do not apply to commercial radio service (as defined in 47 U.S.C. 332(d)(1)).