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PA Bulletin, Doc. No. 02-1502




[32 Pa.B. 4214]

Public Meeting held
August 8, 2002

Commissioners Present:  Glen R. Thomas, Chairperson; Robert K. Bloom, Vice Chairperson; Aaron Wilson, Jr.; Terrance J. Fitzpatrick; Kim Pizzingrilli

Petition to Reinstate Airnex Communications, Inc. Doc. No. A-310794


By the Commission:

   On June 18, 2001, Law Bureau Prosecutory Staff filed a Formal Complaint proceeding against Airnex Communications, Inc. (Airnex), an IXC reseller certificated at A-310794. In the Complaint, Prosecutory Staff alleged that the Commission sent by certified mail prior written notices to Airnex that its 1999 Annual Report was due. The complaint charged that Airnex violated 66 Pa.C.S. § 504 by failing to file its 1999 Annual Report. The Complaint requested that the Commission issue an order canceling Airnex's certificate of public convenience for failure to file its 1999 Annual Report.

   According to the U.S. Postal Service return receipt, service of the Complaint was perfected on June 22, 2001. Airnex did not answer or file its 1999 Annual Report within the time given. By order entered April 4, 2002, the Commission cancelled Airnex's certificate of public convenience. On June 13, 2002, Airnex filed a Petition to Reinstate and attached its 1999 Annual Report.

   It is well settled that decisions such as whether to grant a petition for reinstatement are left to the Commission's discretion and will be reversed on appeal only if that discretion is abused. Hoskins Taxi Service v. Pa. P.U.C., 486 A.2d 1030 (Pa. Comwlth. 1985). In ruling upon a petition for reinstatement, it is incumbent upon this Commission to examine all relevant factors in order to reach an equitable result. Medical Transportation, Inc., 57 Pa. P.U.C. 79 (1983).

   The Commission has identified five factors that are particularly relevant to the determination of a petition to reinstate: 1) the amount of time that elapsed between the cancellation of the certificate of public convenience and the filing of the petition to reinstate, 2) whether the petitioner has a record of habitually violating the Public Utility Code, 3) the reasonableness of the excuse given for the violation that caused the certificate to be canceled, 4) whether petitioner has implemented procedures to prevent a recurrence of the circumstances giving rise to the subject complaint, and 5) all assessments must be current prior to reinstatement. M.S. Carriers, Inc., Docket No. A-00110601 (May 4, 1999).

   In considering the first factor, we note that approximately 10 weeks elapsed between the cancellation on April 4, 2002, and Airnex's request for reinstatement on June 13, 2002.

   In regard to the second factor, a review of Commission records shows that Airnex had a formal complaint filed against it for failure to timely pay its 2001-2002 Annual Assessment. However, Airnex satisfied its outstanding assessment on April 4, 2002. Airnex has had a total of two formal complaints instituted against it since the issuance of its certificate in 1999. While this is not a stellar record, it is not so egregious as to militate against reinstatement.

   In considering the third and fourth factors, Airnex states that its failure to file its 1999 Annual Report was due to an administrative oversight. Airnex states that it has contracted the services of Telecom Compliance Services, Inc. to ensure that its regulatory compliance remains in good standing. Airnex's excuse for the violation appears reasonable, and the fact that Airnex has taken steps to ensure future compliance supports reinstatement.

   The fifth factor requires that all outstanding fines and/or assessments be paid prior to reinstatement. A review of Commission records show that Airnex currently has no unpaid fines or assessments.

   Based upon the foregoing, we grant Airnex's petition for reinstatement. However, we caution Airnex that in the future annual reports must be timely filed and all Commission correspondence must be answered in a timely manner. Therefore,

It is Ordered:

   1.  That the Petition to Reinstate filed by Airnex Communications, Inc. at C-00015633 on June 13, 2002 is hereby granted.

   2.  That the certificate of public convenience held by Airnex Communications, Inc. at A-310794 is hereby reinstated.

   3.  That the Secretary serve a copy of this Order upon all jurisdictional telecommunications carriers and also cause a copy of this Order to be published in the Pennsylvania Bulletin.


[Pa.B. Doc. No. 02-1502. Filed for public inspection August 23, 2002, 9:00 a.m.]

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