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PA Bulletin, Doc. No. 03-2297



Lightship Telecomm, LLC Petition to Reinstate

[33 Pa.B. 5892]

Public Meeting held
November 13, 2003

Commissioners Present: Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland

Law Bureau Prosecutory Staff v. Lightship Telecom, LLC (2002.0398); Doc. No. C-20039274

Lightship Telecom, LLC Petition to Reinstate; A-310943


By the Commission:

   On January 17, 2003, Law Bureau Prosecutory Staff filed a Formal Complaint against Lightship Telecom, LLC (Lightship), a competitive access provider, a toll carrier, a switched access carrier and a competitive local exchange carrier certificated at A-310943. In the Complaint, Prosecutory Staff alleged that the Commission sent by certified mail prior written notices to Lightship that its 2001 Annual Report was due. The complaint charged that Lightship violated 66 Pa.C.S. § 504 by failing to file its 2001 Annual Report. The Complaint requested that the Commission issue an order canceling Lightship's certificate of public convenience as well as impose a $1,000 monetary penalty as a result of the violation. According to the United States Postal Service return receipt, service of the Complaint was perfected, but no date was noted on the certified mail card.

   Lightship failed to file an answer to the Complaint or file its 2001 Annual Report. As a result, the Commission entered a Default Order on August 26, 2003, that sustained the Complaint and cancelled Lightship's certificate of public convenience. Notice of the Default Order was published September 6, 2003, at 33 Pa.B. 4530.

   On October 3, 2003, Lightship filed both its 2001 and 2002 Annual Reports and a Petition for an Emergency Order Staying and Reversing the Commission's August 21, 2003, Default Order. Under 52 Pa. Code § 3.1, an ''emergency'' is a situation which presents a clear and present danger to life or property or which is uncontested and requires action prior to the next scheduled public meting. The petition filed by Lightship for reinstatement of its cancelled certificate due to failure to file its 2001 Annual Report does not rise to the level of an emergency. As such, we will treat its petition as a Petition to Reinstate. We note that this petition was filed after the 20-day comment period imposed in Ordering Paragraph No. 2, but within the 30-day cancellation period stated in Ordering Paragraph No. 4 of the Default Order.

   In its Petition, Lightship states that the delinquent filing of its 2001 Annual Report was due to several reasons. First, Lightship notes that although it received its certificate of public convenience in 2000, it has not yet begun providing service. Lightship intends to begin providing service within the next calendar year. Lightship then states that beginning in mid-2001, Lightship went through a number of organizational changes, including changes with respect to the personnel responsible for regulatory compliance. As a result of these organizational changes and because Lightship had no intrastate Pennsylvania operating revenues in 2000 and 2001, it inadvertently failed to filed its 2001 and 2002 Annual Reports. Lightship states that it understands the importance of timely complying with regulatory reporting requirements. Lightship informs the Commission that it has taken steps to ensure that it timely complies with future filing deadlines. Lightship requests reinstatement since it has now filed both its 2001 and 2002 Annual Reports.

   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 reinstatement petition, 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 adjudication 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; (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 the petitioner has implemented procedures to prevent a recurrence of the circumstances giving rise to the cancellation; and (5) whether the petitioner is current in the payment of all Commission fines and assessments. Re: M.S. Carriers, Inc., A-00110601 (Order entered May 4, 1999).

   In considering the first factor, we note that the petition was filed 3 days prior to the effective date of the scheduled cancellation.

   In regard to the second factor, Lightship does not have a record of habitually violating the Public Utility Code. Lightship has had no additional complaints issued against it since the issuance of its certificate in 2000.

   In considering the third and fourth factors, Lightship states that its failure to file its 2001 Annual Report was due to reorganizational and personnel changes. Lightship states that it has taken steps to ensure that its regulatory compliance remains in good standing. Lightship's basis for the violation appears reasonable. The fact that Lightship has now complied with our reporting requirements and has taken steps to ensure future compliance militates toward reinstatement.

   The fifth factor requires that all outstanding fines and/or assessments be paid prior to reinstatement. A review of Commission records shows that Lightship has no unpaid fines or assessments. However, in the August 26, 2003, Default Order, the Commission expressly put Lightship on notice that if it sought relief from the Default Order it would be subject to monetary penalties under section 3301 of the Public Utility Code (66 Pa.C.S. § 3301). Because Lightship has sought to reinstate its certificate, Lightship is subject to a maximum penalty of $1,000 as provided for in 66 Pa.C.S. § 3301.

   Based upon the foregoing, we grant Lightship's petition for reinstatement. However, in accord with our prior warning about ignoring Commission correspondence directed to Lightship in our August 26, 2003, Default Order, we believe a civil penalty is warranted in this matter. Accordingly, we shall assess a civil penalty in the amount of $500 instead of the $1,000 sought in the Complaint. This leniency is in recognition of Lightship's prompt compliance, no record of prior violations and apparently sincere commitment to future compliance with our regulations. We find that this action on the part of Lightship indicates negligent rather than intentional conduct. Based upon the standards set forth in Joseph A. Rosi v. Bell Atlantic-PA, Inc and Sprint Communications Company, C-00992409 (Order entered March 16, 2000), the presumption is that the penalty will be in the range of $0 to $500 per day.

   In determining the amount of this fine, we believe that Lightship's relative quick action is a mitigating factor; however, Lightship was notified in the Complaint that Prosecutory Staff would recommend dismissing the complaint if it paid a civil penalty of $250 along with the filing of the delinquent annual report within 30 days of service of the complaint. Because Lightship failed to respond within the 30-day time frame, a $500 civil penalty is warranted. Given that the Commission retains broad discretion in determining a total civil penalty amount that is reasonable on an individual basis, Rosi at 10, we believe that this amount based on a ''per occurrence'' violation is large enough to deter future violations of Commission regulations by Lightship. Nevertheless, if Lightship again fails to comply with Commission regulations, we will not be so favorably disposed and will revoke Lightship's certificate of public convenience, absent extreme extenuating circumstances.

   We also note that because Lightship was never given any NXX codes, there are no numbering compliance issues; Therefore,

It Is Ordered That:

   1.  The Petition to Reinstate filed by Lightship Telecom, LLC at C-20039274 on October 3, 2003, is hereby granted.

   2.  The certificate of public convenience held by Lightship Telecom, LLC at A-310943 is hereby reinstated.

   3.  Lightship Telecom, LLC pay a civil penalty of $500 under section 3301 of the Public Utility Code (66 Pa.C.S. § 3301) by sending a certified check or money order within 30 days of the entry date of this order to Pennsylvania Public Utility Commission, P. O. Box 3265, Harrisburg, PA 17105-3265.

   4.  The Secretary cause a copy of this Order to be published in the Pennsylvania Bulletin.


[Pa.B. Doc. No. 03-2297. Filed for public inspection November 26, 2003, 9:00 a.m.]

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