Amendment ASA1-AB615

LRBs0631/1

MDK:kmg&kaf:ch

1997 - 1998 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1997 ASSEMBLY BILL 615

March 18, 1998 - Offered by Joint committee on Information Policy.

AB615-ASA1,2,2 An Act to repeal 196.01 (1d) (d), 196.01 (5m), 196.202 (1) and 196.219 (2m) (b); to renumber 196.205; to renumber and amend 196.202 (2), 196.219 (1), 196.219 (2m) (a), 196.219 (4m), 196.26 (1) and 196.499 (1); to amend 146.70 (1) (cm), 146.70 (2) (h) and (i), 196.01 (1g), 196.01 (5), 196.01 (8m), 196.202 (title), 196.202 (5), 196.219 (2) (a), 196.219 (2) (d), 196.219 (3) (intro.) and (a), 196.219 (3) (e), 196.219 (3) (em), 196.219 (3) (f), 196.219 (3) (h), 196.219 (3) (m), 196.219 (4), 196.219 (5), 196.26 (1m), 196.26 (2) (a), 196.26 (2) (b), 196.28 (3), 196.44 (2) (a), 943.455 (1) (b) and 968.27 (14) (d); and to create 196.01 (2g), 196.01 (2i), 196.199, 196.202 (2) (a), 196.205 (2), 196.215 (2d), 196.215 (2m) (e), 196.219 (1) (b), 196.219 (4m) (b), 196.26 (1) (a) 2. and 3., 196.26 (1) (b), 196.26 (4) (c), 196.43 (3) and 196.499 (1) (f) of the statutes; relating to: enforcement of interconnection agreements by the public service commission, protections for users of certain telecommunications services, granting rule-making authority and providing a penalty.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB615-ASA1, s. 1 Section 1. 146.70 (1) (cm) of the statutes is amended to read:

AB615-ASA1,2,5 146.70 (1) (cm) "Cellular Commercial mobile radio telecommunications utility service provider" has the meaning given in s. 196.202 (1) 196.01 (2g).

AB615-ASA1, s. 2 Section 2. 146.70 (2) (h) and (i) of the statutes are amended to read:

AB615-ASA1,2,10 146.70 (2) (h) A cellular commercial mobile radio telecommunications utility, service provider shall permit a user of the utility provider to access a basic or sophisticated system if the utility provider operates within the boundaries of a system.

AB615-ASA1,2,15 (i) If a user reaches a basic or sophisticated system through a cellular commercial mobile radio telecommunications utility service provider and the service requested is to be provided outside of the jurisdiction served by the system, the public agency operating the system shall transfer the request for services to the appropriate jurisdiction.

AB615-ASA1, s. 3 Section 3. 196.01 (1d) (d) of the statutes is repealed.

AB615-ASA1, s. 4 Section 4. 196.01 (1g) of the statutes is amended to read:

AB615-ASA1,3,4 196.01 (1g) "Basic local exchange service" means the provision to residential customers of an access facility, whether by wire, cable, fiber optics or radio, and essential usage within a local calling area for the transmission of high-quality 2-way interactive switched voice or data communication. "Basic local exchange service" includes extended community calling and extended area service. "Basic local exchange service" does not include additional access facilities or any discretionary or optional services that may be provided to a residential customer. "Basic local exchange service" does not include cable television service or services provided by a cellular commercial mobile radio telecommunications utility or any other mobile radio telecommunications utility service provider.

AB615-ASA1, s. 5 Section 5. 196.01 (2g) of the statutes is created to read:

AB615-ASA1,3,8 196.01 (2g) "Commercial mobile radio service provider" means a telecommunications provider that is authorized by the federal communications commission to provide commercial mobile service.

AB615-ASA1, s. 6 Section 6. 196.01 (2i) of the statutes is created to read:

AB615-ASA1,3,11 196.01 (2i) "Commercial mobile service" has the meaning given in 47 USC 332 (d).

AB615-ASA1, s. 7 Section 7. 196.01 (5) of the statutes is amended to read:

AB615-ASA1,4,8 196.01 (5) "Public utility" means every corporation, company, individual, association, their lessees, trustees or receivers appointed by any court, and every sanitary district, town, village or city that may own, operate, manage or control any toll bridge or all or any part of a plant or equipment, within the state, for the production, transmission, delivery or furnishing of heat, light, water or power either directly or indirectly to or for the public. "Public utility" does not include a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power or water to its members only. "Public utility" includes any person engaged in the transmission or delivery of natural gas for compensation within this state by means of pipes or mains and any person, except a governmental unit, who furnishes services by means of a sewerage system either directly or indirectly to or for the public. "Public utility" includes a telecommunications utility. "Public utility" does not include a holding company, as defined in s. 196.795 (1) (h), unless the holding company furnishes, directly to the public, telecommunications or sewer service, heat, light, water or power or, by means of pipes or mains, natural gas. "Public utility" does not include any company, as defined in s. 196.795 (1) (f), which owns, operates, manages or controls a telecommunications utility unless the company furnishes, directly to the public, telecommunications or sewer service, heat, light, water or power or, by means of pipes or mains, natural gas. "Public utility" does not include a cellular commercial mobile radio telecommunications utility service provider.

AB615-ASA1, s. 8 Section 8. 196.01 (5m) of the statutes is repealed.

AB615-ASA1, s. 9 Section 9. 196.01 (8m) of the statutes is amended to read:

AB615-ASA1,4,17 196.01 (8m) "Telecommunications carrier" means any person that owns, operates, manages or controls any plant or equipment used to furnish telecommunications services within the state directly or indirectly to the public but does not provide basic local exchange service, except on a resale basis. "Telecommunications carrier" does not include an alternative telecommunications utility, or a cellular commercial mobile radio telecommunications utility or any other mobile radio telecommunications utility service provider.

AB615-ASA1, s. 10 Section 10. 196.199 of the statutes is created to read:

AB615-ASA1,4,21 196.199 Interconnection agreements. (1) Definition. In this section, "interconnection agreement" means an interconnection agreement that is subject to approval by the commission under 47 USC 252 (e).

AB615-ASA1,4,24 (2) Commission powers. (a) The commission has jurisdiction to approve and enforce interconnection agreements and may do all things necessary and convenient to its jurisdiction.

AB615-ASA1,5,2 (b) The commission may promulgate rules that require an interconnection agreement to include alternate dispute resolution provisions.

AB615-ASA1,5,7 (c) The commission shall promulgate rules that specify the requirements for determining under sub. (3) (a) 1m. a. whether a party's alleged failure to comply with an interconnection agreement has a significant adverse effect on the ability of another party to the agreement to provide telecommunications service to its customers or potential customers.

AB615-ASA1,5,10 (3) Enforcement. (a) 1. Upon the filing of any of the following, the commission may investigate whether a party to an interconnection agreement approved by the commission has failed to comply with the agreement:

AB615-ASA1,5,14 a. A complaint by a party to the agreement that another party to the agreement has failed to comply with the agreement and that the failure to comply with the agreement has a significant adverse effect on the ability of the complaining party to provide telecommunications service to its customers or potential customers.

AB615-ASA1,5,17 b. A complaint filed under any provision of this chapter by any person that the commission determines may involve a failure to comply with the agreement by a party to the agreement.

AB615-ASA1,6,3 1g. The commission may investigate whether a party to an interconnection agreement approved by the commission has complied with the agreement upon the filing of a petition by the party for a determination of whether the party has complied with the agreement if the petition demonstrates that a controversy has arisen over the party's compliance with the agreement. If the commission initiates an investigation under this subdivision, the commission may determine that a party to an interconnection agreement has failed to comply with the agreement only if a complaint is filed under subd. 1. a. in which the complaining party alleges that the party's failure to comply with the agreement has a significant adverse affect on the complaining party's ability to provide telecommunications service to its customers or potential customers.

AB615-ASA1,6,12 1m. a. Within 5 business days after the filing of a complaint under subd. 1. a. or the receipt of notice under par. (b) 1. b., the party who is the subject of a complaint or the party who is identified in a notice under par. (b) 1. b. as a party who has allegedly failed to comply with an agreement may request that the commission determine whether the alleged failure to comply has a significant adverse effect on the ability of the complaining party or any other party to the agreement to provide telecommunications service to its customers or potential customers. If a request is made under this subd. 1m. a., the commission shall make a determination within 30 business days after receipt of the request.

AB615-ASA1,6,17 b. If the commission determines under subd. 1m. a. that an alleged failure to comply has not had a significant adverse effect on the ability of a complaining party or any other party to an agreement to provide telecommunications service to its customers or potential customers, the commission shall terminate a proceeding on the complaint under this subsection and proceed on the complaint under s. 196.26.

AB615-ASA1,6,20 2. If the commission does not terminate a proceeding under subd. 1m. b., the commission may, after an investigation under subd. 1. or 1g. and after notice and hearing, do one of the following:

AB615-ASA1,6,23 a. Issue an order under this subd. 2. a. that includes a finding of a failure to comply with an interconnection agreement and that requires compliance with the agreement.

AB615-ASA1,6,25 b. Issue an order that interprets any provision of an interconnection agreement.

AB615-ASA1,7,3 c. If the commission determines that a party specified in subd. 1g. has complied with an agreement, issue an order requiring any other action that the commission determines is necessary to resolve a controversy specified in subd. 1g.

AB615-ASA1,7,7 2n. The commission may not issue an order under subd. 2. more than 120 days after the filing of a complaint or petition under subd. 1. or 1g., unless all of the parties to the proceeding consent to a longer time period that is approved by the commission. An order issued under subd. 2. may be reviewed under s. 227.52.

AB615-ASA1,7,12 (b) 1. Before initiating an investigation of a complaint specified in par. (a) 1. b., the commission shall notify the parties to the agreement about the complaint. Within 5 business days after the parties receive notice under this subdivision, or within a shorter period of time specified by the commission in the notice, the commission shall do one of the following:

AB615-ASA1,7,15 a. If the alleged failure to comply is resolved to the satisfaction of the commission, the commission shall dismiss the complaint with respect to any issues that involve an alleged failure to comply.

AB615-ASA1,7,18 b. If the alleged failure to comply is not resolved to the satisfaction of the commission, the commission shall provide a notice to the parties that identifies the party who has allegedly failed to comply with the agreement.

AB615-ASA1,8,2 2. No party to an interconnection agreement may file a complaint under par. (a) 1. a. or a petition under par. (a) 1g. unless the party has first notified the other parties to the agreement and provided an opportunity to resolve the alleged failure to comply or controversy over compliance to the satisfaction of the complaining or petitioning party within 5 business days, or a shorter period of time approved by the commission, after receipt of the notice. The commission shall promulgate rules establishing standards and procedures for approving a period of time shorter than 5 business days.

AB615-ASA1,8,7 (c) No person may make any filing in a proceeding under this subsection unless there is a nonfrivolous basis for doing so. A person may not make any filing in a proceeding under this subsection unless, to the best of the person's knowledge, information and belief, formed after a reasonable inquiry, all of the following conditions are satisfied:

AB615-ASA1,8,8 1. The filing is reasonably supported by applicable law.

AB615-ASA1,8,11 2. The allegations and other factual contentions in the filing have evidentiary support or, if specifically so identified in the filing, are likely to have evidentiary support after reasonable opportunity for further investigation or discovery.

AB615-ASA1,8,12 3. The filing is not intended to harass a party to an interconnection agreement.

AB615-ASA1,8,14 4. The filing is not intended to cause unnecessary delay in implementing an interconnection agreement or create a needless increase in the cost of litigation.

AB615-ASA1,9,4 (d) If, at any time during a proceeding under this subsection, the commission determines, after notice and reasonable opportunity to be heard, that a person has made a filing in violation of par. (c), the commission shall order the person to pay to any party to the proceeding the amount of reasonable expenses incurred by that party because of the filing, including reasonable attorney fees, and the commission may directly assess a forfeiture against the person of not less than $25 nor more than $5,000. A person against whom the commission assesses a forfeiture under this paragraph shall pay the forfeiture to the commission within 10 days after receipt of notice of the assessment or, if the person petitions for judicial review under ch. 227, within 10 days after receipt of the final decision after exhaustion of judicial review. The commission shall remit all forfeitures paid under this paragraph to the state treasurer for deposit in the school fund. The attorney general may bring an action in the name of the state to collect any forfeiture assessed by the commission under this paragraph that has not been paid as provided in this paragraph. The only contestable issue in such an action is whether or not the forfeiture has been paid.

AB615-ASA1,9,8 (e) At any time during a proceeding under this subsection, the commission may, without holding a hearing, order a party to the interconnection agreement to take an action or refrain from taking an action that is related to complying with the agreement upon a showing by any other party to the proceeding of all of the following:

AB615-ASA1,9,11 1. That there is a substantial probability that, at the conclusion of the proceeding, the commission will find that the party against whom the order is sought has failed to comply with the interconnection agreement.

AB615-ASA1,9,16 2. For a complaint or petition filed by a party to an interconnection agreement, that the party against whom the order is sought is taking an action or failing to take an action that has a substantial adverse effect on the ability of the complaining or petitioning party to provide telecommunications service to its customers or potential customers.

AB615-ASA1,9,17 3. That the order is in the public interest.

AB615-ASA1,9,23 (f) The commission may require a bond or other security of a person seeking an order under par. (e) to the effect that the person shall pay the party against whom the order is issued such damages and expenses, excluding attorney fees, in an amount specified by the commission, as that party may sustain by reason of the order if the commission determines under par. (g) that the person seeking the order was not entitled to the order.

AB615-ASA1,9,25 (g) Within 5 business days after receiving an order issued under par. (e), the party against whom the order is issued may request the commission to review the order. Within 30 days after receiving a request under this paragraph, the commission shall determine whether the person who sought the order under par. (e) was entitled to the order and shall terminate, continue or modify the order on such terms as the commission determines are appropriate. If the commission determines that the person was not entitled to the order, the commission may order the person to pay the damages and expenses, excluding attorney fees, sustained, by reason of the order, by the party against whom the order was issued. In making a determination under this paragraph, the commission may consider only the factors specified in par. (e) 1. to 3. and may consider information that the commission receives after the commission issued the order under par. (e).

AB615-ASA1,10,20 (4) Penalties. (a) 1. If the commission issues an order under sub. (3) (a) 2. a. in which the commission finds that a party to an interconnection agreement has failed to comply with the agreement, the party shall forfeit not more than $15,000 or, if the failure is wilful, not more than $40,000, except that if the party is a holding company that provides access under an interconnection agreement to 50,000 or less access lines in this state through affiliates that are small telecommunications utilities, or if the party is a small telecommunications utility, the forfeiture under this subdivision shall be not more than $7,500. For purposes of this subdivision, each day that a party fails to comply with an interconnection agreement is a separate failure to comply.

AB615-ASA1,10,23 2. The maximum forfeiture that may be imposed under subd. 1. shall be trebled if either of the following conditions is satisfied and shall be sextupled if both of the following conditions are satisfied:

AB615-ASA1,10,25 a. The party's failure to comply causes death or life-threatening or seriously debilitating injury.

AB615-ASA1,11,2 b. The party's failure to comply continues after the party receives written notice of the commission's order requiring compliance with the interconnection agreement.

AB615-ASA1,11,6 3. In addition to a forfeiture imposed under subd. 1., a party to an interconnection agreement, approved by the commission, who has wilfully failed to comply with the agreement shall forfeit an amount equal to not more than 2 times the gross value of the party's economic gain resulting from the failure to comply.

AB615-ASA1,11,8 (b) A court shall consider each of the following in determining the amount of a forfeiture under par. (a):

AB615-ASA1,11,10 1. The appropriateness of the forfeiture to the volume of business of the party that failed to comply with the agreement.

AB615-ASA1,11,11 2. The gravity of the failure to comply.

AB615-ASA1,11,13 3. Any good faith attempt to comply with the agreement after the party receives notice of a failure to comply

AB615-ASA1,11,14 4. Any other factor that the court determines is relevant.

AB615-ASA1,11,18 (c) In an action to recover a forfeiture under par. (a), a finding by the commission in a proceeding under this subsection that a party to an interconnection agreement has failed to comply with the agreement shall be, subject to review under s. 227.52, conclusive proof that the party failed to comply with the agreement.

AB615-ASA1, s. 11 Section 11. 196.202 (title) of the statutes is amended to read:

AB615-ASA1,11,21 196.202 (title) Exemption of cellular commercial mobile radio telecommunications service providers.

AB615-ASA1, s. 12 Section 12. 196.202 (1) of the statutes, as affected by 1997 Wisconsin Act 27, is repealed.

AB615-ASA1, s. 13 Section 13. 196.202 (2) of the statutes, as affected by 1997 Wisconsin Act 27, is renumbered 196.202 (2) (intro.) and amended to read:

AB615-ASA1,12,4 196.202 (2) Scope of regulation. (intro.) A cellular commercial mobile radio telecommunications utility service provider is not subject to ch. 184 or this chapter, except a cellular mobile radio telecommunications utility if any of the following is satisfied:

AB615-ASA1,12,12 (b) A commercial mobile radio service provider is subject to s. 196.218 (3) to the extent not preempted by federal law. If the application of s. 196.218 (3) to a cellular commercial mobile radio telecommunications utility service provider is not preempted, a cellular commercial mobile radio telecommunications utility service provider shall respond, subject to the protection of the cellular commercial mobile radio telecommunications utility's service provider's competitive information, to all reasonable requests for information about its operations in this state from the commission necessary to administer the universal service fund.

AB615-ASA1, s. 14 Section 14. 196.202 (2) (a) of the statutes is created to read:

AB615-ASA1,12,20 196.202 (2) (a) If a commercial mobile radio service provider is a party to an interconnection agreement, as defined in s. 196.199 (1), the provider shall, for purposes of approving or enforcing the agreement, be subject to ss. 196.02 (3), 196.32, 196.33, 196.39, 196.395, 196.40, 196.41, 196.43, 196.44 (3) and 196.48 and be treated as a party to the agreement under ss. 196.199 and 196.26, as a public utility under ss. 196.02 (5) and (6), 196.14, 196.24, 196.44 (2) (a), 196.66 and 196.85 (1) and as a telecommunications provider under ss. 196.25 (3) and 196.65 (3).

AB615-ASA1, s. 15 Section 15. 196.202 (5) of the statutes is amended to read:

AB615-ASA1,12,23 196.202 (5) Billing. A cellular commercial mobile radio telecommunications utility service provider may not charge a customer for an incomplete call.

AB615-ASA1, s. 16 Section 16. 196.205 of the statutes is renumbered 196.205 (1m).