MADAM PRESIDENT:
I move
that Senate Bill 245 be amended to read as follows:
prejudicial, or discriminatory if the rate, term, condition,
or practice:
(i) is not offered or not applicable to all comparably
situated customers in a metropolitan statistical area; or
(ii) violates IC 8-1-2-103(a) or IC 8-1-2-105, to the extent
the provider is subject to IC 8-1-2-103(a) or IC 8-1-2-105.
(B) A rate, term, or condition for, or practice in connection
with, services provided to another provider may be
anticompetitive, regardless of whether the rate, term,
condition, or practice constitutes a breach of:
(i) the access, interconnection, or resale obligations of the
provider under 47 U.S.C. 251; or
(ii) an agreement negotiated under 47 U.S.C. 252 with
respect to any request by another provider for
interconnection, services, or access to network elements.
(2) With respect to basic or nonbasic telecommunications
service offered by the provider in an unregulated exchange
area, establish a retail rate that is subsidized either directly or
indirectly by another service for which rates are regulated by
the commission.
(3) Engage in predatory pricing, or attempt to engage in
predatory pricing, for any service provided at the retail or
wholesale level. For purposes of this subdivision, a rate is
considered predatory if a service is not set at or above the
service's long run incremental cost.
Sec. 6. (a) This section applies if:
(1) a dispute arises under this chapter between a customer and
a provider; or
(2) a customer alleges a violation of this chapter by a provider.
(b) As used in this section, "complaining party" refers to a
customer or provider who first acts to:
(1) file a complaint with the commission under subsection (c);
or
(2) provide notice of intent to seek arbitration under
subsection (d);
with respect to a dispute or an allegation described in subsection
(a).
(c) Any party to a dispute or an allegation described in
subsection (a) may file a complaint with the commission to have the
dispute or allegation decided by the commission after notice and
hearing. The commission has all necessary authority to resolve
disputes or allegations arising under this chapter, including the
authority to provide and enforce remedies, including the awarding
of damages and injunctive relief. In the case of a dispute involving
a customer described in section 4(2) of this chapter, the
commission's authority to resolve the dispute under this section is
in addition to the commission's authority under
IC 8-1-2.6-1.5(b)(5).
(d) Instead of filing a complaint with the commission under
subsection (c), the complaining party may elect to have the dispute
or allegation decided by arbitration by providing the other party
written notice of the party's intention to seek arbitration. If the
complaining party elects arbitration by providing the other party
written notice under this subsection, the dispute or allegation must
be expeditiously determined by binding arbitration before a panel
of three (3) arbitrators. Each party to the dispute shall select one
(1) member of the panel, and the members chosen by the parties
shall select the third member. If the members chosen by the parties
are unable to agree on the third member of the panel, the members
shall request a list of candidates from an independent alternative
dispute resolution organization. The third member shall then be
selected in accordance with the alternative dispute resolution
organization's published procedures. An arbitration panel selected
under this subsection is authorized to do any of the following:
(1) Award damages, including punitive damages.
(2) Order preliminary or permanent injunctive relief.
The arbitration panel shall issue a final determination in the matter
not later than one hundred eighty (180) days after the date of the
complaining party's notice under this subsection. The decision of
the arbitration panel is final, subject to any grounds for appeal
defined by the panel. The expenses of the parties and the
arbitration panel shall be allocated between the parties by the
panel in a manner consistent with the decision and any relief
granted. This subsection does not void an alternative dispute
resolution clause, or any other agreement by the parties with
respect to resolving disputes, contained in an interconnection
agreement or other contract between the parties.
(e) Subject to any regulations adopted by the Federal
Communications Commission, subsections (c) and (d) do not affect:
(1) the commission's authority to mediate a dispute between
providers under 47 U.S.C. 252(a);
(2) the commission's authority to arbitrate a dispute between
providers under 47 U.S.C. 252(b); or