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COMMONWEALTH OF PENNSYLVANIA

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Pennsylvania Code



Subchapter K. COMPETITIVE SAFEGUARDS


Sec.


63.141.    Statement of purpose and policy.
63.142.    Definitions.
63.143.    Code of conduct
63.144.    Remedies.

Authority

   The provisions of this Subchapter K issued under the Public Utility Code, 66 Pa.C.S. § §  501, 1501 and 3001—3009, unless otherwise noted.

Source

   The provisions of this Subchapter K adopted December 12, 2003, effective December 13, 2003, 33 Pa.B. 6047, unless otherwise noted.

§ 63.141. Statement of purpose and policy.

 (a)  This subchapter establishes competitive safeguards to:

   (1)  Assure the provision of adequate and nondiscriminatory access by ILECs to CLECs for all services and facilities ILECs are obligated to provide CLECs under any applicable Federal or State law.

   (2)  Prevent the unlawful cross subsidization or support for competitive services from noncompetitive services by ILECs.

   (3)  Prevent LECs from engaging in unfair competition.

 (b)  These competitive safeguards are intended to promote the Commonwealth’s policy of establishing and maintaining an effective and vibrant competitive market for all telecommunications services.

 (c)  The code of conduct in §  63.143 (relating to code of conduct) supersedes and replaces the code of conduct adopted by Commission order entered September 30, 1999, at P-00991648, et al.

§ 63.142. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

 CLEC—Competitive local exchange carrier—

     (i)   A telecommunications company that has been certificated or given provisional authority by the Commission as a CLEC under the Commission’s procedures implementing the Telecommunications Act of 1996, the act of February 8, 1996 (Pub. L. No. 104-104, 110 Stat. 56), or under the relevant provisions in 66 Pa.C.S. §  3009(a) (relating to additional powers and duties), and its successors and assigns.

     (ii)   The term includes any of the CLEC’s affiliates, subsidiaries, divisions or other corporate subunits that provide local exchange service.

 Competitive service—A service or business activity offered by an ILEC or CLEC that has been classified as competitive by the Commission under the relevant provisions of 66 Pa.C.S. §  3005 (relating to competitive services).

 ILEC—Incumbent local exchange carrier—

     (i)   A telecommunications company deemed to be an ILEC under section 101(h) of the Telecommunications Act of 1996 (47 U.S.C.A. §  251(h)), and its successors and assigns.

     (ii)   The term includes any of the ILEC’s affiliates, subsidiaries, divisions or other corporate subunits that provide local exchange service.

 LEC—Local exchange carrier—A local telephone company that provides telecommunications service within a specified service area. LECs encompass both ILECs and CLECs.

 Market price—Prices set at market-determined rates.

 Noncompetitive service—Any protected telephone service as defined in 66 Pa.C.S. §  3002 (relating to definitions), or a service that has been determined by the Commission as not a competitive service.

 Telecommunications service—A utility service, involving the transmission of messages, which is subject to the Commission’s jurisdiction.

§ 63.143. Code of conduct.

 All LECs, unless otherwise noted, shall comply with the following requirements:

   (1)  Nondiscrimination.

     (i)   An ILEC may not give itself, including any local exchange affiliate or division or other corporate subunit that performs that function, or any CLEC any preference or advantage over any other CLEC in the preordering, ordering, provisioning, or repair and maintenance of any goods, services, network elements (as defined under section 3(29) of the Communications Act of 1934 (47 U.S.C.A. §  153(29)), or facilities.

     (ii)   An ILEC may not condition the sale, lease or use of any noncompetitive service on the purchase, lease or use of any other goods or services offered by the ILEC or on a written or oral agreement not to deal with any CLEC. In addition, a LEC may not condition the sale, lease or use of any noncompetitive service on a written or oral agreement not to deal with any other LEC. Nothing in this paragraph prohibits an ILEC from bundling noncompetitive services with other noncompetitive services or with competitive services so long as the ILEC continues to offer any noncompetitive service contained in the bundle on an individual basis.

     (iii)   An ILEC shall offer to CLECs for resale any bundled competitive and noncompetitive services it provides to end-users at the same price it offers the bundled services to end-users less any applicable wholesale discount approved by the Commission, and shall make the unbundled network elements associated with those services available to CLECs as may be required by any applicable State or Federal law.

   (2)  Employee conduct.

     (i)   A LEC employee, while engaged in the installation of equipment or the rendering of services to any end-user on behalf of a competitor, may not disparage the service of the competitor or promote any service of the LEC to the end-user.

     (ii)   A LEC employee, while processing an order for the repair or restoration of service or engaged in the actual repair or restoration of service on behalf of a competitor, may not either directly or indirectly represent to any end-user that the repair or restoration of service would have occurred sooner if the end-user had obtained service from the LEC.

   (3)  Corporate advertising and marketing.

     (i)   A LEC may not engage in false or deceptive advertising with respect to the offering of any telecommunications service in this Commonwealth.

     (ii)   A LEC may not state or imply that the services provided by the LEC are inherently superior when purchased from the LEC unless the statement can be factually substantiated.

     (iii)   A LEC may not state or imply that the services rendered by a competitor may not be reliably rendered or are otherwise of a substandard nature unless the statement can be factually substantiated.

     (iv)   An ILEC may not state or imply that the continuation of any requested service from the ILEC is contingent upon taking other services offered by the ILEC that are not technically necessary to provide the requested service.

   (4)  Cross subsidization.

     (i)   An ILEC may not use revenues earned or expenses incurred in conjunction with noncompetitive services to subsidize or support any competitive services.

   (5)  Information sharing and disclosure.

     (i)   An ILEC shall simultaneously make available to CLECs network information not in the public domain that is used for sales purposes by the ILEC or the ILEC’s competitive local exchange affiliate or division or other corporate subunit that performs that function.

       (A)   The term ‘‘network information’’ means information concerning the availability of unbundled network elements or information necessary for interconnection to the ILEC’s network.

       (B)   Network information does not include information obtained during the processing of an order or service on behalf of the ILEC or the ILEC’s competitive local exchange affiliate or division or other corporate subunit that performs that function.

     (ii)   An ILEC’s employees, including its wholesale employees, shall use CLEC proprietary information (that is not otherwise available to the ILEC) received in the preordering, ordering, provisioning, billing, maintenance or repairing of any telecommunications services provided to the CLEC solely for the purpose of providing the services to the CLEC. ILEC employees may not disclose the CLEC proprietary information to other employees engaged in the marketing or sales of retail telecommunications services unless the CLEC provides prior written consent to the disclosure. This provision does not restrict the use of aggregated CLEC data in a manner that does not disclose proprietary information of any particular CLEC.

     (iii)   Subject to customer privacy or confidentiality constraints, a LEC employee may not disclose, directly or indirectly, any customer proprietary information to the LEC’s affiliated or nonaffiliated entities unless authorized by the customer under §  63.135 (relating to customer information).

   (6)  Sharing of employees and facilities. The ILEC’s wholesale employees who are responsible for the processing of a CLEC order or service of the operating support system on behalf of a CLEC may not be shared with the retail portion of the ILEC’s business, shall have offices physically separated from the ILEC’s retail employees and shall have their own direct line of management.

   (7)  Adoption and dissemination. Every LEC shall formally adopt and implement the applicable code of conduct provisions as company policy or modify its existing company policy as needed to be consistent with the applicable code of conduct provisions. Every LEC shall also disseminate the applicable code of conduct provisions to its employees and take appropriate steps to train and instruct its employees in their content and application.

Cross Referencs

   This section cited in 52 Pa. Code §  63.141 (relating to statement of purpose and scope).

§ 63.144. Remedies.

 (a)  A violation of this subchapter allegedly harming a party may be adjudicated using the Commission’s Interim Guidelines for Abbreviated Dispute Resolution Process, at Doc. Nos. P-00991648 and P-00991649, which were published at 30 Pa.B. 3808 (July 28, 2000), or any successor Commission alternative dispute resolution process, to resolve the dispute. This action, however, does not preclude or limit additional available remedies or civil action, including the filing of a complaint concerning the dispute or alleged violations with the Commission under 66 Pa.C.S. §  701 (relating to complaints) and §  5.21(a) (relating to formal complaints generally).

 (b)  The Commission may also, when appropriate, impose penalties under 66 Pa.C.S. §  3301 (relating to civil penalties for violations) or refer violations of the code of conduct provisions in this subchapter to the Pennsylvania Office of Attorney General, the Federal Communications Commission or the United States Department of Justice.



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