Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania; Doc. No. M-2016-2517831
[50 Pa.B. 6110]
[Saturday, October 31, 2020]
With this Notice, the Pennsylvania Public Utility Commission (Commission) advises that pursuant to the Pennsylvania Supreme Court's recent ruling in Crown Castle,1 all neutral-host distributed antenna system (DAS) network owners or operators have been declared to be jurisdictional telecommunications public utilities under Section 102(1)(vi) of the Public Utility Code, 66 Pa.C.S. § 102(1)(vi) (relating to the definition of ''public utility''). Specifically, the Commission issues this Notice to owners or operators of DAS networks2 in Pennsylvania that are either (1) regulated Pennsylvania jurisdictional telecommunications public utilities already holding a certificate of public convenience (CPC) from the Commission or (2) currently unregulated de facto jurisdictional telecommunications public utilities that have not obtained a CPC from the Commission.
The Commission advises that all neutral-host DAS network services offered to the public for compensation in Pennsylvania fall under the regulatory jurisdiction of the Commission. Neutral-host DAS network owners or operators that are not currently certificated must immediately apply for a CPC from the Commission, if they have not already done so.
This Notice (1) provides an overview of the procedural background leading up to the Supreme Court's decision; (2) provides guidance to currently uncertificated neutral-host DAS network owners or operators for obtaining a CPC from the Commission and coming into compliance with their public utility status; and (3) reminds all neutral-host DAS network owners or operators of their statutory and regulatory obligations under the Public Utility Code.
By Order entered February 23, 2016, the Commission initiated a formal investigatory proceeding in order to examine issues relevant to the jurisdictional status of owners or operators of neutral-host DAS networks as competitive access providers.3 After reviewing numerous comments and reply comments from various stakeholders, the Commission concluded in its DAS Certification Final Order that neutral-host DAS networks fall under the ''wireless'' exemption to the definition of a jurisdictional telecommunications public utility that is set forth at Section 102(2)(iv) of the Code, 66 Pa.C.S. § 102(2)(iv), and, therefore, are not public utilities subject to Commission jurisdiction and are not eligible for a CPC from the Commission.4 The DAS Certification Final Order also directed Commission staff to conduct an investigation to identify all certificated neutral-host DAS networks, conduct a review of the services such entities provided to determine whether they provide services within the Commission's jurisdiction, and initiate a process to rescind the CPCs of entities that do not provide any jurisdictional services.5
Existing CPC holders appealed the DAS Certification Final Order to the Commonwealth Court, which by Order issued June 7, 2018, unanimously reversed the Commission's DAS Certification Final Order.6 The Commission petitioned and was granted allowance to appeal to the Supreme Court, which on July 21, 2020, issued an opinion unanimously affirming the Commonwealth Court.7 The Supreme Court found that neutral-host DAS network owners or operators are jurisdictional telecommunications public utilities under 66 Pa.C.S. § 102(1)(vi), and as such fall under the regulatory jurisdiction of the Commission. Accordingly, the Court overturned the Commission's DAS Certification Final Order at Docket No. M-2016-2517831.
As a result of the Supreme Court's ruling in Crown Castle, all neutral-host DAS network owners or operators that currently are operating in Pennsylvania without a CPC from the Commission are operating unlawfully as de facto telecommunications public utilities. Under Crown Castle, these de facto public utilities must obtain a CPC from the Commission to operate lawfully in Pennsylvania. With this Notice, the Commission hereby directs these de facto public utilities to apply for a CPC from the Commission within 90 days of this Notice. Instructions and forms for filing for and requesting a CPC to provide telecommunications service can be found on the Commission's website at the following webpage:
Please contact Derek Vogelsong in the Commission's Bureau of Technical Utility Services at 717-787-3861 or by email at firstname.lastname@example.org with any questions about the Commission's CPC application process.
Any non-compliant neutral-host DAS network owner or operator that does not apply for a CPC within 90 days of publication in the Pennsylvania Bulletin, as instructed by this Notice, is providing unauthorized service in violation of Pennsylvania law. Any such non-compliant entity will become subject to referral to the Commission's Bureau of Investigation and Enforcement for investigation and potential prosecution for providing de facto public utility service in violation of Sections 102(1)(vi), 502, 1101, and 1102(a)(1) of the Code, 66 Pa.C.S. §§ 102(1)(vi), 502, 1101, and 1102(a)(1).
With this Notice, the Commission also reminds currently-certificated neutral-host DAS network owners or operators of their statutory obligations as jurisdictional public utilities. Such statutory obligations include reporting gross intrastate revenues and paying fiscal assessments under Section 510 of the Code, 66 Pa.C.S. § 510. Failure to report revenues and/or pay fiscal assessments will result in referral to the Commission's Bureau of Investigation and Enforcement, which could result in penalties up to and including revocation of any non-compliant entity's CPC. Certificated entities that did not report gross intrastate revenues and/or did not pay their assessments pending the outcome of the appeal of the DAS Certification Final Order and that wish to review the status of their assessments and pay any past-due balances should, within 30 days of the publication of this Notice in the Pennsylvania Bulletin, contact Amy Zuvich in the Commission's Fiscal Office at 717-783-6806 or by email at email@example.com.
Additionally, the Commission reminds all currently-certificated neutral-host DAS networks that they must comply with all of the existing reporting requirements that are applicable to all other jurisdictional telecommunications utilities. A full list of telecommunications carrier reports required by the Commission can be found at: www.puc.pa.gov/general/onlineforms/doc/Telco_Reporting_Requirements.docx.
Please direct questions about this Notice to Assistant Counsel Tiffany L. Tran at 717-783-5413 or by email at firstname.lastname@example.org. This Notice concludes this proceeding at Docket No. M-2016-2517831, and it will be marked closed by the Secretary's Bureau.
[Pa.B. Doc. No. 20-1518. Filed for public inspection October 30, 2020, 9:00 a.m.]
1 Crown Castle NG E. LLC v. Pa. PUC, 234 A.3d 665 (Pa. 2020), 2020 Pa. LEXIS 3835 (Crown Castle).
2 A DAS network transports the wireless traffic of its wireless service provider (WSP) customers, consisting of voice, data, and video traffic generated by a consumer's mobile device (smartphone), over terrestrial fiber optic lines between ''nodes'' and ''hubs.'' The nodes are located on utility, streetlight, or traffic poles in public rights-of-way. They are comprised of small, low power antennae that receive radio frequency (RF) signals and additional equipment that converts the RF signals to optical signals. The optical signals are then transported over the DAS provider's fiber optic lines to a WSP's central hub, which is typically housed in a building on private property, where the signals are returned to the WSP customers. Crown Castle, 234 A.3d 665, __ , 2020 Pa. LEXIS 3835, at 2.
3 See Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Docket No. M-2016-2517831 (Order entered February 23, 2016) (DAS Investigation Order).
4 See Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Docket No. M-2016-2517831 (Order entered March 17, 2017) (DAS Certification Final Order).
6 Crown Castle NG East LLC v. Pa. PUC, 188 A.3d 617 (Pa. Cmwlth. 2018).
7 See Crown Castle, supra note 1.
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