Rule-Making Notices (Hearing Notices)

There are no known comparable rules at the federal level under the jurisdiction of the Federal Communications Commission.

Comparison with similar rules in adjacent states

Section 196.859, Stats., relates to an assessment by the commission for telecommunications utility trade practices. Such an assessment is apparently unique to Wisconsin. There is no similar rule in any of the neighboring states of Illinois, Iowa, Michigan and Minnesota.

The neighboring states do not have regulations comparable to the proposed rule amendments to provide flexibility in granting re-certification and streamlining the revocation process. Michigan does not certify resellers at all. While the other three states do have reseller certification procedures, if a reseller lost its certification and then re-applied, each of those states would treat the applicant reseller as if it were seeking an original certification. However, such an applicant would be subject to limited additional staff scrutiny as to whether the cause for the termination of the prior certification had been remedied. Such additional scrutiny is not codified in any rules, however. None of the three states has Wisconsin's refund obligation for revenues obtained during unauthorized operations. The criteria in proposed PSC 168.06 (5) (b) would be unique to Wisconsin.

Effect on Small Business

No specific factual or analytical studies were conducted as to the proposed changes, or with respect to the effects on small businesses. The proposed amendment to PSC 168.09 (2) is intended to avoid smaller reselling entities, especially as the administrative costs for both the commission and the provider would likely exceed the annual assessment liability, which in many cases, based on other assessment statutes administered by the commission, could be quite small.

Anecdotal experience from prior commission applications and proceedings support the amendment of PSC 168.13 (2) and PSC 168.06 (5) (b), as simplifying procedures and thus creating savings and efficiencies in administrative operations for both the reseller and the commission.

Initial regulatory flexibility analysis

The proposed rule changes may affect small businesses, but generally in a way that affords them benefits. No new professional skills will be required of a small business on account of the rule.

The establishment of criteria that may mitigate the current refund of revenues received while operating without certification will provide an opportunity for a small business to present facts, without need of counsel, to show why refunds would not be fair or could adversely affect the economic viability of the company. The proposed rule essentially allows equitable arguments to be made to reduce the refund without imperiling the company and to expedite a reseller's return to certification in good standing.

The insertion of s. 196.859, Stats. (telecommunications utility trade practices), among those assessment statutes applicable to certain larger resellers has already been applied by order in docket 5-TI-1990. The order in that docket applied s. 196.859, Stats., to large resellers having annual gross operating revenues derived from Wisconsin intrastate operations of $200,000 or more. The smallest resellers will continue to be exempt from reporting if they have gross operating revenues under $200,000 in a calendar year, as they would otherwise have no duty to file any revenue data with the commission. It would not be worth the commission expense to force small resellers to file annual reports to permit levying assessments under s. 196.859, Stats., that likely would not exceed the cost of preparing and filing the necessary reports.

The last rule change proposing an amendment to the certification revocation procedure clarifies the process. It permits resellers to quickly comprehend their choices: (a) compliance to retain good standing; (b) default to permit the revocation without opposition; or (c) opposition to revocation by going to a contested case hearing. The current rule's lack of clarity suggests an additional petition process for hearing when it was originally intended that there be one proceeding to encompass both an opportunity to cure deficiencies and the right to resort to hearing, if necessary.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

State Fiscal Effects

There are no estimated state fiscal effects from the draft revisions to the Telecommunications Resellers and Resale Rule (PSC 168). A state fiscal effect would occur if the revisions increased or decreased state staff workload, but the proposed rule is not anticipated to change workload for state staff.

The Telecommunications Resellers and Resale Rule revision 1) clarifies the process under which the Commission considers the amount of customer refunds required of resellers who operate without certification, 2) clarifies the process under which resellers may file an objection to revocation of certification, and 3) makes administrative rule consistent with Commission order under docket 5-TI-1990 and applies s. 196.859 to resellers with annual gross operating revenues, derived from Wisconsin intrastate operations, of $200,000 or more. The rule change to apply s. 196.859 to resellers with intrastate revenues of $200,000 or more is consistent with current policy and will not change state staff workload. The revisions clarifying the information the Commission will consider in calculating potential refunds to consumers and in finalizing revocation proceedings could streamline state staff work processes. The volume of reseller recertification requests is very small, but can be time-consuming in the one element usually of concern to resellers, the amount of refund due to operations without proper certification. It is anticipated that the flexibility provided in the proposed criteria applicable to establishing and/or reducing required refunds would likely permit much faster resolution of this primary issue of contention. A small, but unquantifiable, increment in staff processing efficiency is expected. Therefore, the proposed rule is estimated to have no state fiscal effect.

Local Fiscal Effects

The revised Telecommunications Resellers and Resale Rule is not estimated to have a local fiscal effect. A local fiscal effect would occur if telecommunication service rates or refunds for customers, which include Local Governments, were affected by this proposed rule. The revisions to the rule are not anticipated to change service rates. In addition, the revisions clarifying process under which the Commission considers the amount of customer refunds required of resellers who operate without certification will not change Commission policy in determining the amount of customer refunds required; so the proposed rule will not affect refund amounts. Therefore, the revised Telecommunications Resellers and Resale Rule is not estimated to have a local fiscal effect.

State fiscal effect

No State Fiscal Effect.

Local fiscal effect

No local government costs.

Long-range fiscal implications

None.

Text Of Proposed Rule

Section 1. PSC 168.06 (5) is renumbered 168.06 (5) (a).

SECTION 2. PSC 168.06 (5) (b) is created to read:

PSC 168.06 (5) (b) If a reseller is seeking recertification after a prior certification under this chapter expired or was revoked by the commission and it had operated in Wisconsin without certification, the commission may consider the following factors in determining any repayment, refund, or credit respecting the reseller's void arrangements, contracts, and billings under sub. (1):

1. The reason for the failure to obtain certification of its operations under this chapter.

2. The cooperation of the reseller in resolving past deficiencies in conjunction with the application for re-certification.

3. The past conduct of the reseller during the period in which it operated without valid certification under this chapter.

4. The number and type of prior and pending consumer complaints against the reseller based upon violations of this chapter or regulations of any other governmental unit.

5. The impact of repayment, refund, or credit upon the financial viability of the reseller.

SECTION 3. PSC 168.09 (2) is amended to read:

PSC 168.09 (2) Alternative telecommunications utility resellers having gross operating revenues derived from Wisconsin intrastate operations of $200,000 or more in a calendar year shall comply with and be subject to assessment as provided in ss. 196.85, and 196.858, and 196.859, Stats.

SECTION 4. PSC 168.13 (2) is renumbered 168.13 (2) (a) and amended to read:

PSC 168.13 (2) (a) If the commission has determined that grounds for revocation exist, the commission may commence a revocation proceeding by mailing to the affected reseller, at its last known address on file with the commission, a written notice of the reasons for the proposed revocation of certification under this section. Within 30 days of the mailing date of said notice, a reseller may file a written petition for continued certification. The petition shall contain a statement of any corrective action taken and state whether a hearing is requested or waived. Depending upon the information received, the commission may determine that the grounds for revocation have been remedied, proceed to revoke the reseller's certificate, or take other action as may be appropriate in the circumstances. Failure of a reseller to respond under this subsection shall result in revocation of certification without hearing.

SECTION 5. PSC 168.13 (2) (b) and (c) are created to read:

PSC 168.13 (2) (b) Within 30 days of the mailing date of said notice under par. (a), a reseller may file a written petition for continued certification. The petition shall contain a statement of any corrective action taken and state whether a hearing is requested or waived. file a written response that may contain one or more of the following:

1. A showing that one or more of the commission's reasons for revocation have been resolved or cured.

2. A showing that one or more of the commission's reasons may be resolved in a remedial compliance plan for which the reseller requests commission acceptance and deferral of certificate revocation.

3. An objection to the commission's reasons for revocation and a request for hearing.

(c) Depending upon the information received in the reseller's response, the commission may determine that the grounds for revocation have been remedied, proceed to revoke the reseller's certificate, or take other action as may be appropriate in the circumstances. Failure of a reseller to respond under this subsection shall result in revocation of certification without hearing.

SECTION 6. EFFECTIVE DATE. This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s. 227.22 (2) (intro.), Stats.

Agency Contact Person

Questions regarding this matter should be directed to the docket coordinator, Gary A. Evenson, at [phone]. Small business questions may be directed to Gary A. Evenson at the foregoing telephone number, or [e-mail]. Media questions should be directed to Teresa Weidemann-Smith, Communications Specialist, Governmental and Public Affairs, at [phone]. Hearing- or speech-impaired individuals may also use the commission's TTY number; if calling from Wisconsin, dial [phone]; if calling from outside Wisconsin, dial [phone].