[38 Pa.B. 758]
[Saturday, February 9, 2008]
[Continued from previous Web Page]
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart C. FIXED SERVICE UTILITIES
CHAPTER 63. TELEPHONE SERVICE
Subchapter O. ABBREVIATED PROCEDURES FOR REVIEW OF TRANSFER OF CONTROL AND AFFILIATE FILINGS FOR TELECOMMUNICATIONS CARRIERS Sec.
63.321. Purpose. 63.322. Definitions. 63.323. Applicability. 63.324. Commission approval of a general rule transaction subject to 66 Pa.C.S. §§ 1102(a)(3) and 1103. 63.325. Commission approval of a pro forma transaction subject to 66 Pa.C.S. §§ 1102(a)(3) and 1103. 63.326. Approval of contracts between a carrier or public utility and an affiliated interest under 66 Pa.C.S. §§ 2101(a), 3016(f)(1), and 3019(b)(1). § 63.321. Purpose.
This subchapter establishes cost-effective review and approval periods that abbreviate the traditional time for approving transactions involving an acquisition, diminution in control, merger, stock sales or transfers, transfer of assets or transfer of control of a telecommunications public utility requiring a certificate of public convenience under 66 Pa.C.S. § 1102(a)(3) (relating to enumeration of acts requiring certificate) or approval of a contract between public utilities and affiliates.
§ 63.322. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Affiliated interest--An entity associated with a public utility as set forth in 66 Pa.C.S. § 2101(a) (relating to definition of affiliated interest).
Carrier--An entity defined as a ''public utility'' in 66 Pa.C.S. 102 (relating to definitions) or defined as a ''public utility'' in 66 Pa.C.S. § 102 and certificated by the Commission under 66 Pa.C.S. § 1102(a).
Competitive carrier--An entity that provides information service or telecommunications service as defined in section 3 to the Telecommunications Act of 1934 (47 U.S.C.A. § 153), or an alternative service provider as defined in 66 Pa.C.S. § 3012 (relating to definitions) including a certificated carrier under 66 Pa.C.S. § 1102(a).
Controlling interest--An interest, held by a person or group acting in concert, which enables the beneficial holder or holders to control 10% or more of the voting interest in the telecommunications public utility or its parent, regardless of the remoteness of the holder or holders or the transaction. A contingent right may not be included.
Diminution of control--A reduction in the controlling interest of 10% or more held by a person or group acting in concert, which reduces the beneficial holders ability to control a telecommunications public utility through the voting interest in the telecommunications public utility or its parent, regardless of the remoteness of the holder or the transaction. A contingent right may not be included.
Dominant market power--A carrier that has or will have a moderately concentrated or concentrated market using the Herfindal-Hirschman Index (HHI) utilized by the United States Department of Justice Antitrust Division in any service following Commission approval of a merger under 66 Pa.C.S. § 1102(a) or as otherwise alleged or documented by a party or the Commission in a proceeding seeking Commission approval under 66 Pa.C.S. 1102(a).
Formal complaint--The term as defined in § 1.8 (relating to definitions) of the Commission's rules of practice and procedure.
Formal investigation--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Formal proceeding--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Herfindahl-Hirschman Index--The commonly accepted measure of market concentration utilized by the United States Department of Justice in which market concentration is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers.
Incumbent local exchange carrier--A local exchange carrier as defined in section 3(26) of the Telecommunications Act of 1934 or a local exchange telecommunications company as defined in 66 Pa.C.S. § 3012 including a certificated carrier under 66 Pa.C.S. § 1102(a).
Informal complaint--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Informal investigation--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Informal proceeding--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Party--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Pennsylvania legal counsel--The attorney of record appearing before the Commission as required under §§ 1.21 and 1.22 (relating to appearance; and appearance by attorney or certified legal intern) of the Commission's rules of practice and procedure.
Person--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Predominant market presence--A utility that could or would possess market power in any service following approval of a Commission merger under 66 Pa.C.S. § 1102(a) using the nonhorizontal merger guidelines of the United States Department of Justice Antitrust Division or as otherwise alleged or documented by a party or the Commission in a proceeding seeking Commission approval under 66 Pa.C.S. § 1102(a).
Pro forma transaction--A transaction that is seamless to the customer and does not result in a change in rates or conditions of service which, taken together with all previous internal corporate restructurings, does not change the telecommunications public utility's controlling interest, or result in a diminution of control greater than 10%.
Staff--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Statutory Advocate--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
Telecommunications public utility--An entity that provides information service or telecommunications service as defined in section 103 of the Telecommunications Act of 1934 or 66 Pa.C.S. § 3012 or as a carrier.
Verification--The term as defined in § 1.8 of the Commission's rules of practice and procedure.
63.323. Applicability.
This subchapter applies to a telecommunications public utility seeking Commission approval for an acquisition, diminution in control, merger, stock sales or transfers, transfer of assets or transfer of control of a telecommunications public utility requiring a certificate of public convenience under 66 Pa.C.S. § 1102(a)(3) (relating to enumeration of acts requiring certificate) or approval of a contract between public utilities and affiliates.
§ 63.324. Commission approval of a general rule transaction subject to 66 Pa.C.S. §§ 1102(a)(3) and 1103.
(a) General rule transactions. The following transactions of a telecommunications public utility involving a change in conditions of service or rates that seeks Commission approval for acquisition, diminution in control, merger, stock sales or transfers, transfer of assets or transfer of control of a telecommunications public utility requires notification to the Commission and approval by the Commission as a general rule transaction:
(1) A transaction resulting in the transfer of 10% or more of the assets of a carrier.
(2) A transaction resulting in the transfer of 10% or more of the direct or indirect control of a carrier.
(3) A transaction resulting in the diminution of 10% or more in the control of a carrier.
(4) A transaction requiring a certificate of public convenience issued under 66 Pa.C.S. § 1102(a) (relating to enumeration of acts requiring certification).
(5) A transaction subject to evaluation under the statement of policy on transfer of control. See § 69.901 (relating to utility stock transfer under 66 Pa.C.S. § 1102(a)(3)).
(6) A transaction that transfers the customer base of a telecommunications public utility or carrier and involves a change in conditions of service or rates.
(7) A transaction subjected to this subchapter by decision of the Commission, including a transaction no longer classified as a pro forma transaction by the Commission.
(b) Reclassification of a general rule transaction. When a telecommunications public utility seeks review and approval of a transaction as a general rule transaction and the Commission reclassifies the general rule transaction, the transaction shall be subject to the requirements of a pro forma transaction in § 63.325 (relating to Commission approval of a pro forma transaction subject to 66 Pa.C.S. §§ 1102(a)(3) and 1103) unless determined otherwise for good cause shown.
(1) Review of a general rule transaction reclassified as a pro forma transaction. The 30-day review and approval period for a general rule transaction reclassified as a pro forma transaction shall begin on the date that the telecommunications public utility is notified in writing that the general rule transaction is reclassified.
(2) Review of a general rule transaction reclassified as other than a pro forma transaction. The review and approval of a general rule transaction not reclassified as a pro forma transaction shall begin on the date that the telecommunications public utility is notified in writing that the transaction is reclassified. A transaction classified under this section shall be reviewed within the time governing review and approval under 66 Pa.C.S. §§ 1102 and 1103 (relating to enumeration of acts requiring certification; and procedure to obtain certificates of public convenience).
(3) Right of appeal for reclassification of a transaction. When a telecommunications public utility is notified in writing by staff that a general rule transaction will be reclassified, the determination shall be subject to appeal as an appeal from an action of staff. The provisions governing an appeal shall be those governing appeals from an action of staff under § 5.44 (relating to petitions for appeal from actions of the staff) of the rules of practice and procedure. The writing will inform the telecommunications public utility of the right of appeal.
(c) Notification requirements for general rule transactions. Notification shall be filed with the Commission on the date of filing with a Federal regulatory agency seeking Federal approval of a general rule transaction or no later than 60 days prior to the closing of a transaction subject to this subchapter, whichever is longer. The telecommunications public utility filing the notification shall comply with the Commission's rules of practice and procedure governing applications. (See §§ 5.11--5.14 (relating to applications.)) A telecommunications public utility shall provide an updated copy to the Commission and the statutory advocates of filings in the following circumstances:
(1) Filing with the Federal Communications Commission (FCC) of an application seeking approval of the transaction (FCC application).
(2) Filing of a notice with the United States Department of Justice (DOJ) under the Hart-Scott-Rodino Antitrust Improvements Act (15 U.S.C.A. §§ 15c-15h, 18a and 66) (HSR Filing).
(3) Filing by a telecommunications public utility of a pleading responding to a formal or informal complaint, investigation, or proceeding undertaken by the FCC or the DOJ or other State or Federal regulatory agency involving the transaction.
(4) Filing required by the Commission from a telecommunications public utilty in response to a notification by the Commission that simultaneous notification is appropriate to protect the public interest.
(5) Filing required by the Commission from a carrier in response to a request by any of the following:
(i) A request by a statutory advocate.
(ii) A request by a carrier with a certificate of public convenience obtained under 66 Pa.C.S. 1102(a) for a copy.
(iii) A request by the Commission or staff for a copy.
(iv) A request by a person or party for a copy.
(d) Content of notification for general rule transactions. In addition to the information required by § 5.12 (relating to contents of applications) of the Commission's rules of practice and procedure, a general rule transaction must contain the following information:
(1) The name, address and telephone number of each party or applicant to the transaction.
(2) The government, state or territory under the laws of which each corporate or partnership applicant to the transaction is organized.
(3) The name, title, post office address and telephone number of the officer or contact point, including legal counsel in this Commonwealth, to whom correspondence concerning the transaction is to be addressed.
(4) The name, address, citizenship and principal place of business any person, party or entity that directly or indirectly owns more than 10% of the equity of the applicant, and the percentage of equity owned by each of those entities (to the nearest 1%).
(5) A summary description of the transaction.
(6) A description of the geographic areas subject to the transactions and what services are provided in the geographic area.
(7) A verified statement as to how the transaction fits into one or more of the categories subject to the general rule for notification.
(8) Identification of other transactions related to the transaction.
(9) A verified statement whether the transaction warrants special consideration because either party to the transaction is facing imminent business failure.
(10) Identification of a separately filed waiver request sought in conjunction with the transaction.
(11) A verified statement showing:
(i) How the transaction will serve the public interest, convenience and necessity.
(ii) A description of the general and specific affirmative public benefit to this Commonwealth and its consumers warranting approval of the transaction.
(iii) Additional information that may be necessary to address the effect of the transaction on dominant market power or predominant market presence.
(12) A verified statement affirming that the utility is in compliance with Commission obligations and filings.
(13) A verified statement affirming that customers received notice.
(14) A verified statement containing a copy of any Commonwealth utility certificates held by the telecommunications public utility.
(15) A verified statement on the effect of the transaction on existing Commonwealth tariffs. If applicable or in response to a request from staff, a telecommunciations public utility shall provide a red-line document identifying changes in existing Commonwealth tariffs before and after the transaction for which the telecommunications public utility seeks approval from the Commission.
(16) A verified statement on the transaction's effect on the existing affiliate interest agreements of the utility.
(17) A verified statement establishing that no State or Federal regulatory agency is expected to undertake an informal or formal investigation, complaint or proceeding relating to the transaction.
(18) A verified statement that no State or Federal regulatory undertaking is appropriate regarding the transaction because the telecommunications public utility lacks dominant market power or predominant market presence.
(19) Organizational charts showing the effect on the applicant's organization before and after the transaction.
(20) A copy of the application filed at the FCC or a notice filed with the DOJ, if any.
(e) Continuing obligations for notification of general rule transactions. When a Commission or Federal proceeding related to the general rule transaction is pending, the telecommunications public utility to the transaction shall file with the Commission copies of all procedural motions, public responses to discovery, and orders or other actions addressing or terminating the proceeding. The telecommunications public utility shall supplement the notification filing with any FCC or DOJ public notice issued concerning the transaction.
(f) Commission publication of general rule transactions.
(1) The Secretary will publish notice of a general rule transaction in the Pennsylvania Bulletin under § 5.14(a) and (b) (relating to applications requiring notice) of the Commission's rules of practice and procedure and, as directed by the Secretary, require additional publication in a newspaper of general circulation serving the geographic territory affected by the general rule transaction unless the Commission determines otherwise for good cause shown.
(2) Any notice will contain a 15-day general comment period and a formal protest period established under § 5.14(d) of the Commission's rules of practice and procedure, unless the Commission determines otherwise for good cause shown.
(i) A general comment addressing the general rule transaction involving a change in conditions of service or rates does not constitute a formal protest under § 5.14 of the Commission's rules of practice and procedure nor reclassify the general rule transaction, unless the Commission determines otherwise for good cause shown.
(ii) A formal protest objecting to the general rule transaction involving a change in conditions of service or rates shall constitute a formal protest under § 5.14 of the Commission rules of practice and procedure and may reclassify the general rule transaction, unless the Commission determines otherwise for good cause shown.
(iii) A formal protest objecting to a general rule transaction involving a change in conditions of service or rates by a statutory advocate shall constitute a formal protest under § 5.14 of the Commission's rules of practice and procedure and shall reclassify a general rule transaction as a pro forma transaction or a transaction subject to the review and approval for transactions under 66 Pa.C.S. §§ 1102 and 1103, unless the Commission determines otherwise for good cause shown.
(g) Telecommunications public utility notice to customers.
(1) General rule transactions involving a change in conditions of service or rates. A telecommunications public utility shall prepare and distribute notice to the customers of a general rule transaction involving a change in conditions of service or rates with the approval of the Commission's Bureau of Consumer Services. Notice to the customers shall occur prior to Commission approval unless circumstances make distribution prior to approval impractical or unnecessary.
(2) Transfers of customer base subject to the general rule.
(i) A transaction transferring a customer base involving a change in conditions of service or rates shall require additional notice to the customer base prepared with the approval of the Commission's Bureau of Consumer Services.
(ii) A general comment addressing the transfer of a customer base involving a change in conditions of service or rates does not constitute a formal protest under § 5.14 of the Commission's rules of practice and procedure nor reclassify the general rule transaction, unless the Commission determines otherwise for good cause shown.
(iii) A formal protest objecting to transfer of a customer base involving a change in conditions of service or rates shall constitute a formal protest under § 5.14 of the Commission's rules of practice and procedure and may reclassify the general rule transaction, unless the Commission determines otherwise for good cause shown.
(iv) A formal protest objecting to a general rule transaction involving a change in conditions of service or rates by a statutory advocate shall constitute a formal protest under § 5.14 of the Commission's rules of practice and procedure and shall reclassify a general rule transaction as either a pro forma transaction or a transaction subject to the review and approval for transactions under 66 Pa.C.S. §§ 1102 and 1103.
(h) Commission review of transactions subject to the general rule. The Commission retains the discretion to make inquiries and, after notice and opportunity to be heard, take action to protect the public interest, including the imposition of conditions on approval of the transaction when deemed necessary or proper under 66 Pa.C.S. § 1103 and to establish affirmative public benefit as required by law of the Commonwealth.
(i) Formal protests to a general rule transaction. A protest filed to a transaction subject to the general rule must comply with the Commission's rules of practice and procedure. (See Subpart A (relating to general provisions).)
(j) Reclassification of a transaction from the general rule. The Commission will reclassify a general rule transaction in the following circumstances:
(1) The filing of a formal protest by a statutory advocate or the filing of a formal protest warranting reclassification for good cause shown, including competitive impact.
(2) The filing involves a major acquisition or merger between telecommunications firms with substantial market shares.
(3) The filing involves an acquisition, merger or other transaction that raises novel or important issues.
(4) The Commission determines that reclassification is necessary to protect the public interest.
(k) Commission approval for a general rule transaction. A transaction subject to this subchapter will be deemed to be in the public interest and approved in law and fact 60 days after public notice in the Pennsylvania Bulletin unless the Commission determines otherwise for good cause shown.
(1) The Commission will issue a Secretarial letter or order approving a general rule transaction and issue a certificate of public convenience authorizing the transaction under 66 Pa.C.S. §§ 1102(a) and 1103.
(2) The Commission or staff may extend the review and approval period, reject the filing or transaction, remove a transaction from the general transaction rule or take other action deemed appropriate to protect the public interest.
(3) A staff action will be in writing and inform the telecommunications public utility of the right of appeal. An appeal from an action of staff shall be governed by the procedures governing appeals from an action of staff under § 5.44 (relating to petitions to appeal from actions of the staff) of the Commission's rules of practice and procedure.
(l) Limitations on general rule transactions.
(1) Bankruptcy proceedings. General rule transactions related to bankruptcy remain subject to §§ 1.61 and 1.62 (relating to matters before other tribunals) of the Commission's rules of practice and procedure.
(2) Scope of general rule transactions. A general rule transaction may not operate to permit a telecommunications public utility to circumvent an obligation by doing or refraining from doing anything that a telecommunications public utility must do or cannot do.
§ 63.325. Commission approval of a pro forma transaction subject to 66 Pa.C.S. §§ 1102(a)(3) and 1103.
(a) Pro forma transactions. The following transactions of a telecommunications public utility not involving a change in conditions of service or rates that seeks Commission approval for acquisition, diminution in control, merger, stock sales or transfers, transfer of assets or transfer of control of a telecommunications public utility requires notification to the Commission and approval by the Commission as a pro forma transaction:
(1) A transaction resulting in the transfer of less than 10% of the assets of a carrier.
(2) A transaction resulting in the transfer of less than 10% of the direct or indirect control of a carrier.
(3) A transaction resulting in the diminution of less than 10% in the control of a carrier.
(4) A transaction requiring a certificate of public convenience issued under 66 Pa.C.S. § 1102(a) (relating to enumeration of acts requiring certificate).
(5) A transaction subject to evaluation under the statement of policy on transfer of control, § 69.901 (relating to utility stock transfer under 66 Pa.C.S. § 1102(a)(3)).
(6) A transaction that transfers the customer base of a telecommunications public utility and does not involve a change in conditions of service or rates.
(7) A transaction subjected to this subchapter by decision of the Commission, including a general rule transaction reclassified as a pro forma transaction.
(b) Reclassification of a pro forma transaction. When a telecommunications public utility seeks review and approval of a transaction as a pro forma transaction and the Commission reclassifies the pro forma transaction, the pro forma transaction shall be subject to the requirements of a general rule transaction in § 63.324 (relating to Commission approval of a general rule transaction subject to 66 Pa.C.S. §§ 1102(a) and 1103) unless the Commission determines otherwise for good cause shown.
(1) Review of a pro forma transaction reclassified as a general rule transaction. The 60-day review and approval period for a pro forma transaction reclassified as a general rule transaction shall begin on the date that the telecommunications public utility is notified in writing that the pro forma transaction is reclassified.
(2) Review of a pro forma transaction reclassified as other than a general rule transaction. The review and approval of a pro forma transaction reclassified as other than a general rule transaction shall begin on the date that the telecommunications public utility is notified in writing that the pro forma transaction is reclassified but not as a general rule transaction. A pro forma transaction reclassified under this section shall be reviewed within the period governing review and approval under 66 Pa.C.S. §§ 1102 and 1103 (relating to enumeration of acts requiring certificate; and procedure to obtain certificates of public convenience).
(3) Right of appeal for reclassification of a pro forma transaction. When a telecommunications public utility is notified in writing by staff that a pro forma transaction will be reclassified, the determination shall be subject to appeal as an appeal from an action of staff. The provisions governing an appeal shall be those governing appeals from an action of staff under § 5.44 (relating to petitions for appeal from actions of the staff) of the Commission's rules of practice and procedure. The writing will inform the telecommunications public utility of the right of appeal.
(c) Notification requirements for pro forma transactions. Notification of a pro forma transaction shall be filed with the Commission on the date of filing with a Federal regulatory agency seeking Federal approval of a pro forma transaction or no later than 30 days prior to the closing of a pro forma transaction subject to this subchapter, whichever is longer. The utility filing the notification shall comply with the Commission's rules of practice and procedure governing applications. A telecommunications public utility shall provide an updated copy to the Commission and the statutory advocates of filings in the following circumstances:
(1) Filing with the Federal Communications Commission (FCC) of an application seeking approval of the transaction (FCC application).
(2) Filing of a notice with the United States Department of Justice (DOJ) pursuant to the Hart-Scott-Rodino Antitrust Improvements Act (15 U.S.C.A. §§ 15c-15h, 18a and 66) (HSR Filing).
(3) Filing by a telecommunications public utility of a pleading responding to a formal or informal complaint, investigation, or proceeding undertaken by the FCC or the DOJ or other State or Federal regulatory agency involving the transaction.
(4) Filing required by the Commission from a telecommunications public utility in response to a notification by the Commission that simultaneous notification is appropriate to protect the public interest.
(5) Filing required by the Commission from a carrier in response to a request by any of the following:
(i) A request by a statutory advocate.
(ii) A request by a carrier with a certificate of public convenience obtained under 66 Pa.C.S. § 1102(a) for a copy.
(iii) A request by the Commission or staff for a copy.
(iv) A request by a person or party for a copy.
(d) Content of notification for pro forma transactions. In addition to the information required by § 5.12 (relating to contents of applications) of the Commission's rules of practice and procedure, a pro forma transaction must contain the following information:
(1) The name, address and telephone number of each party or applicant to the transaction.
(2) The government, state or territory under the laws of which each corporate or partnership applicant to the transaction is organized.
(3) The name, title, post office address and telephone number of the officer or contact point, including Pennsylvania legal counsel, to whom correspondence concerning the transaction is to be addressed.
(4) The name, address, citizenship and principal place of business any person, party or entity that directly or indirectly owns more than 10% of the equity of the applicant, and the percentage of equity owned by each of those entities (to the nearest 1%).
(5) A summary description of the transaction.
(6) A description of the geographic areas subject to the transactions and what services are provided in the geographic area.
(7) A verified statement as to how the transaction fits into one or more of the categories subject to the pro forma rule.
(8) Identification of other transactions related to the transaction.
(9) A verified statement whether the transaction warrants special consideration because either party to the transaction is facing imminent business failure.
(10) Identification of a separately filed waiver request sought in conjunction with the transaction.
(11) A verified statement showing:
(i) How the transaction will serve the public interest, convenience and necessity.
(ii) A description of the general and specific affirmative public benefit to this Commonwealth and its consumers warranting approval of the transaction.
(iii) Additional information that may be necessary to address the effect of the transaction on dominant market power or predominant market presence.
(12) A verified statement affirming that the utility is in compliance with Commission obligations and filings.
(13) A verified statement affirming that customers received or will receive notice.
(14) A verified statement containing a copy of any Commonwealth utility certificates held by the telecommunications public utility.
(15) A verified statement on the effect of the transaction on existing Commonwealth tariffs. When applicable or in response to a request from staff, a telecommunications public utility shall provide a red-line document identifying changes in existing Commonwealth tariffs before and after the transaction for which the utility seeks approval from the Commission.
(16) A verified statement on the effect of the transaction on the existing affiliate interest agreements of the utility.
(17) A verified statement establishing that no State or Federal regulatory agency is expected to undertake an informal or formal investigation, complaint, or proceeding relating to the transaction.
(18) A verified statement that no State or Federal regulatory undertaking is appropriate regarding the transaction because the carrier lacks dominant market power or predominant market presence.
(19) Organizational charts showing the effect on the applicant's organization before and after the transaction.
(20) A copy of the application filed at the FCC or a notice filed with the DOJ, if any.
(e) Continuing obligations for notification of pro forma transactions. When a Commission or Federal proceeding related to the pro forma transaction is pending, a telecommunications public utility seeking approval of a pro forma transaction shall file with the Commission copies of all procedural motions, public responses to discovery, and orders or other actions addressing or terminating the proceeding. The telecommunications public utility shall supplement the notification filing with any FCC or DOJ public notice issued concerning the transaction.
(f) Commission publication of pro forma transactions.
(1) The Secretary may publish notice of a pro forma transaction in the Pennsylvania Bulletin. The Secretary may post notice of the pro forma transaction on the Commission's web site, unless the Commission determines otherwise for good cause shown.
(2) A notice posted on the Commission web site may contain a general comment period established according to § 5.14(d) (relating to applications requiring notice) of the Commission's rules of practice.
(3) There shall be no formal protest period under § 5.14(d) of the Commission's rules of practice and procedure, unless the Commission determines otherwise for good cause shown.
(4) A pro forma transaction subject to publication in the Pennsylvania Bulletin, in addition to any additional publication or posting on the Commission's web site, shall be subject to a general comment period and a formal protest period established under § 5.14(d) of the Commission's rules of practice and procedure, unless the Commission determines otherwise for good cause shown.
(i) A general comment addressing a transaction not involving a change in conditions of service or rates will not constitute a formal protest under § 5.14 of the Commission's rules of practice and procedure nor reclassify the general rule transaction, unless the Commission determines otherwise for good cause shown.
(ii) A formal protest objecting to a transaction not involving a change in conditions of service or rates constitutes a formal protest under § 5.14 of the Commission rules of practice and procedure and may reclassify the general rule transaction, unless the Commission determines otherwise for good cause shown.
(iii) A formal protest objecting to a transaction not involving a change in conditions of service or rates by a statutory advocate constitutes a formal protest under § 5.14 of the Commission's rules of practice and procedure and reclassify a general rule transaction either as a general rule transaction or as a transaction subject to the review and approval for transactions under 66 Pa.C.S. §§ 1102 and 1103.
(g) Telecommunications public utility notice to customers.
(1) Pro forma transactions not involving a change in conditions of service or rates. A telecommunications carrier shall prepare and distribute notice of a pro forma transaction not involving a change in conditions of service or rates to the customers of a telecommunications carrier. Notice and distribution may also be required for transactions that do not reduce an applicant's control by more than 10%. Notice shall be distributed prior to Commission approval of a pro forma transaction unless the circumstances make distribution prior to approval impractical or unnecessary.
(2) Notice of pro forma transfers of customer base.
(i) A pro forma transaction transferring a customer base not involving a change in conditions of service or rates or not reducing an applicant's control by more than 10% does not require additional notice to the customer base beyond the general notice in this subchapter.
(ii) A general comment addressing the transfer of a customer base not involving a change in conditions of service or rates will not constitute a formal protest under § 5.14 of the Commission's rules of practice and procedure nor reclassify the pro forma transaction, unless the Commmission determines otherwise for good cause shown.
(iii) A formal protest objecting to transfer of a customer base not involving a change in conditions of service or rates constitutes a formal protest under § 5.14 of the Commission rules of practice and procedure but does not reclassify the pro forma transaction, unless the Commission determines otherwise for good cause shown.
(h) Commission review of pro forma transactions. The Commission retains the discretion to make inquiries and, after notice and opportunity to be heard, take action to protect the public interest, including the imposition of conditions on approval of the transaction when deemed necessary or proper under 66 Pa.C.S. § 1103 and to establish affirmative public benefit as required by law of the Commonwealth.
(i) Formal protests to a pro forma transaction. A protest filed to a transaction subject to the general rule must comply with the Commission's rules of practice and procedure.
(j) Removal of a transaction as a pro forma transaction. The Commission will remove a transaction as a pro forma transaction and reclassify the transaction in the following circumstances:
(1) The filing of a protest by a statutory advocate or the filing of a formal protest warranting reclassification for good cause shown, including competitive impact.
(2) The filing involves a major acquisition or merger between telecommunications firms with substantial market shares.
(3) The filing involves an acquisition, merger or other transaction that raises novel or important issues.
(4) The Commission determines that reclassification is necessary to protect the public interest.
(k) Commission approval for a pro forma transaction. A transaction subject to this subchapter will be deemed to be in the public interest and approved in law and fact 30 days after filing with the Commission or posting on the Commission's web site, whichever is longer, unless the Commission determines otherwise for good cause shown.
(1) The Commission will issue a Secretarial letter or order approving a pro forma transaction and issue a certificate of public convenience authorizing the transaction under 66 Pa.C.S. §§ 1102(a) and 1103.
(2) The Commission or staff may extend the consideration period, reject the filing or transaction, remove a transaction from the pro forma rule or take other action deemed appropriate to protect the public interest.
(3) A staff action will be in writing and inform the telecommunications public utility of the right of appeal. An appeal from an action of staff shall be governed by the procedures governing appeals from an action of staff under § 5.44 of the Commission's rules of practice and procedure.
(l) Limitations on pro forma transactions.
(1) Bankruptcy proceedings. Pro forma changes related to bankruptcy remain subject to §§ 1.61 and 1.63 (relating to matters before other tribunals) of the Commission's rules of practice and procedure.
(2) Scope on pro forma transactions. A pro forma transaction may not operate to permit a telecommunications public utility to abandon a condition of service or rate. A pro forma transaction may not operate to permit a telecommunications public utility to circumvent an obligation by doing or refraining from doing anything that a telecommunications public utility must do or cannot do.
§ 63.326. Approval of contracts between a carrier or public utility and an affiliated interest under 66 Pa.C.S. §§ 2101(a), 3016(f)(1) and 3019(b)(1).
(a) A written or oral contract or transaction between a telecommunications utility and an affiliated interest is governed by 66 Pa.C.S. §§ 3016(f)(1) and 3019(b)(1) (relating to competitive services; and additional powers and duties). A written or oral contract between a telecommunications utility and an affiliate requires approval by the Commission and may not violate the prohibition against subsidization of competitive services by noncompetitive services.
(b) Written contract or transaction. The carrier or public utility shall file a copy and written summary of a written contract or transaction between a carrier or public utility and an affiliated interest with the Commission. A written contract or transaction shall remain subject to examination, audit or other action to ensure compliance with 66 Pa.C.S. § 3016(f)(1) and other applicable sections of the code.
(c) Oral contract or transaction. The filing of a written summary of an oral contract or transaction shall be deemed compliant with this subchapter. An oral contract or transaction shall remain subject to examination, auditing or other action to ensure compliance with 66 Pa.C.S. § 3016(f)(1) and other applicable sections of the code.
(d) Retention of contract or transaction. A public utility or carrier shall retain and make available copies or summaries of the contract or transaction and shall file the copies or summaries at the request of the Commission.
(e) Commission discretion. The Commission retains discretion to make inquiries, audits and other investigations and, after notice and opportunity to be heard, take action to protect the public interest.
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1 Streamlined Regulation Order, paragraph 28. The FCC carefully distinguishes between applicants that are not dominant with regard to ''any service'' compared to those that are dominant in one service and not another. This approach apparently reflects federal definitions of service set out in 47 USC 153.
2 Streamlined Regulation Order, paragraph 30 and n. 65.
3 In the Matter of the Review of Chapter 4901:1-6, Ohio Administrative Code, Case No. 06-1345-TP-ORD (June 6, 2007), Proposed Rule 4901:1-6-09(D) Affiliate Transactions, p. 48.
4 Streamlined Regulation Order, paragraphs 51 and 52.
5 Telephone Company in Pennsylvania Eliminates Provisions Restricting Competition to Address Justice Department Concerns, Procompetitive Changes to Rural Incumbent Telephone Company's Settlements with New Entrants Will Deter Misuse of Regulatory Challenges and Benefit Rural Pennsylvania Telephone Customers, United States Department of Justice, Antitrust Division, Press Release 07-448, June 25, 2007 (Pennsylvania Telco Release).
6 52 Pa. Code § 5.14(a); Streamlined Regulation Order, paragraphs 16 and 17.
7 Streamlined Regulation Order, paragraph 22.
8 Streamlined Regulation Order, paragraph 19.
9 Streamlined Regulation Order, paragraph 52.
10 Streamlined Regulation Order, paragraph 22.
11 Streamlined Regulation Order, paragraph 19.
12 Streamlined Regulation Order, paragraph 21.
13 Pennsylvania Telco Release, Department of Justice Release 07-448, June 25, 2007.
14 Streamlined Regulation Order, paragraph 52.
15 Level 3 Selected as Exclusive Network Provider for the Commonwealth of Pennsylvania's ''Wall Street West,'' Level 3: Broomfield, CO, (June 7, 2007).
[Pa.B. Doc. No. 08-218. Filed for public inspection February 8, 2008, 9:00 a.m.]
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