SB 245-11_ Filed 01/23/2006, 10:30 Merritt

SENATE MOTION


MADAM PRESIDENT:

    I move
that Senate Bill 245 be amended to read as follows:

SOURCE: Page 51, line 3; (06)MO024509.51. -->     Page 51, between lines 3 and 4, begin a new paragraph and insert:
SOURCE: IC 8-1-29.5; (06)MO024509.54. -->     "SECTION 54. IC 8-1-29.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]:
     Chapter 29.5. Enforcement Remedies for Prohibited Actions by Telecommunications Service Providers
        Sec. 1. This chapter applies to a provider that is:
        (1) exempt from commission jurisdiction after June 30, 2009, under IC 8-1-2.6-1.4;
        (2) exempt from commission jurisdiction under IC 8-1-2-88.5 or IC 8-1-17-22.5; or
        (3) subject to the
terms and conditions of a settlement agreement approved by the commission before July 29, 2004.
    Sec. 2. Except as otherwise provided in this chapter, the definitions in IC 8-1-2.6 apply throughout this chapter.
    Sec. 3. As used in this chapter, "commission" refers to the Indiana utility regulatory commission created by IC 8-1-1-2.
    Sec. 4. As used in this chapter, "customer", with respect to a provider, refers to any of the following:
        (1) A retail customer of the provider, including a residential customer or a business customer.
        (2) Another provider that obtains retail or wholesale services from the provider.
    Sec. 5. A provider shall not do any of the following:
        (1) With respect to any service provided at the retail or wholesale level, establish a rate, term, condition, or practice that is anticompetitive or unreasonably preferential, prejudicial, or discriminatory. For purposes of this subdivision, the following apply:
            (A) A rate, term, or condition for, or practice in connection with, retail service is unreasonably preferential,

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


        (3) the commission's authority to approve an interconnection agreement under 47 U.S.C. 252(e).".
SOURCE: Page 64, line 37; (06)MO024509.64. -->     Page 64, line 37, delete "section," and insert " chapter,".
    Renumber all SECTIONS consecutively.
    (Reference is to SB 245 as printed January 12, 2006.)

________________________________________

Senator MERRITT


MO024509/DI 101
2006