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A5 of 2005, R402, H3080
Sponsors: Reps. Easterday and Hinson
Document Path: l:\council\bills\pt\1107mm03.doc
Introduced in the House on January 14, 2003
Introduced in the Senate on April 23, 2003
Last Amended on June 1, 2004
Passed by the General Assembly on June 2, 2004
Governor's Action: December 3, 2004, Signed
Summary: Utility service provider required to have customer authorization before changing to another provider
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/4/2002 House Prefiled 12/4/2002 House Referred to Committee on Labor, Commerce and Industry 1/14/2003 House Introduced and read first time HJ-36 1/14/2003 House Referred to Committee on Labor, Commerce and Industry HJ-37 4/9/2003 House Committee report: Favorable with amendment Labor, Commerce and Industry HJ-5 4/22/2003 House Amended HJ-25 4/22/2003 House Read second time HJ-26 4/23/2003 House Read third time and sent to Senate HJ-18 4/23/2003 Senate Introduced and read first time SJ-13 4/23/2003 Senate Referred to Committee on Judiciary SJ-13 6/3/2003 Senate Recalled from Committee on Judiciary SJ-29 6/4/2003 Senate Read second time SJ-92 6/4/2003 Senate Ordered to third reading with notice of amendments SJ-92 5/13/2004 Senate Special order SJ-40 5/19/2004 Senate Debate interrupted SJ-90 5/20/2004 Senate Debate interrupted SJ-50 6/1/2004 Senate Amended SJ-63 6/1/2004 Senate Read third time and returned to House with amendments SJ-63 6/2/2004 House Concurred in Senate amendment and enrolled HJ-29 6/3/2004 Ratified R 402 12/3/2004 Signed By Governor 12/7/2004 Copies available 12/7/2004 Effective date See Act for Effective Date 2/16/2005 Act No. 5
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VERSIONS OF THIS BILL
(A5, R402, H3080 of 2004)
AN ACT TO AMEND TITLE 58, CHAPTER 3, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PUBLIC SERVICE COMMISSION, BY ADDING SECTION 58-3-230 SO AS TO PROHIBIT THE UNAUTHORIZED CHANGE OF A CUSTOMER'S UTILITY SERVICE PROVIDER, TO REQUIRE THAT THE AUTHORIZATION BE OBTAINED PURSUANT TO APPROPRIATE STATE AND FEDERAL REGULATIONS, TO PROVIDE THAT THE AUTHORIZATION FOLLOWS THE CUSTOMER, AND TO ESTABLISH PENALTIES; TO AMEND SECTION 58-9-280, AS AMENDED, RELATING TO THE REQUIREMENTS FOR A TELEPHONE UTILITY TO BE GRANTED A CERTIFICATE OF NECESSITY BEFORE THE CONSTRUCTION, OPERATION, OR EXTENSION OF A PLANT OR SYSTEM, SO AS TO PROVIDE THAT TELECOMMUNICATIONS CARRIERS THAT HAVE ELECTED TO HAVE RATES, TERMS, AND CONDITIONS DETERMINED PURSUANT TO THE PLAN DESCRIBED IN SECTION 58-9-576(B) SHALL PROVIDE ACCESS TO THESE CONTRACTS TO THE OFFICE OF THE REGULATORY STAFF OF THE PUBLIC SERVICE COMMISSION AS REQUIRED; TO ADD SECTION 58-9-285 SO AS TO PROVIDE FOR DEFINITIONS, TO PROHIBIT THE COMMISSION FROM REGULATING A BUNDLED OFFERING OR CONTRACT OFFERING BY A CARRIER AND REQUIRE A CARRIER TO ADHERE TO AN ALTERNATIVE REGULATORY PLAN UNTIL IT EXPIRES OR IS TERMINATED BY THE COMMISSION, WHICHEVER IS SOONER, TO PROVIDE THAT A LOCAL EXCHANGE CARRIER PROVIDING BUNDLED OFFERINGS OR CONTRACT OFFERINGS IS OBLIGATED TO PROVIDE CERTAIN UNIVERSAL SERVICE FUND (USF) CONTRIBUTIONS, AND TO PROVIDE FOR THE MANNER IN WHICH ACCESS MINUTES OF USE MUST BE CLASSIFIED AND REPORTED FOR PURPOSES OF ADMINISTERING THE INTERIM LOCAL EXCHANGE CARRIER FUND; TO AMEND SECTION 58-9-576, AS AMENDED, RELATING TO THE ELECTION A LOCAL EXCHANGE CARRIER MAY MAKE WITH REGARD TO ITS REGULATION, SO AS TO PROVIDE FURTHER CONDITIONS UNDER WHICH A LOCAL EXCHANGE CARRIER MAY MAKE THIS ELECTION, TO DEFINE "ABUSE OF MARKET POSITION", AND REQUIRE THE COMMISSION TO RESOLVE COMPLAINTS WITHIN ONE HUNDRED TWENTY DAYS; TO AMEND SECTION 58-3-580, AS AMENDED, RELATING TO THE OFFICE OF THE REGULATORY STAFF OF THE PUBLIC SERVICE COMMISSION, SO AS TO PROVIDE FOR OTHER APPROPRIATIONS; TO AMEND SECTION 58-4-60, RELATING TO CERTIFICATIONS BY THE OFFICE OF THE REGULATORY STAFF, SO AS TO EXCEPT THE CERTIFICATION DEADLINE FOR 2004; TO AMEND SECTION 58-4-100, RELATING TO PAYMENT OF EXPERT WITNESSES, SO AS TO ALLOW THE PARTIES TO AGREE TO COMPENSATION AND EXPENSES; AND TO PROVIDE VARIOUS EFFECTIVE DATES.
Be it enacted by the General Assembly of the State of South Carolina:
Change of a customer's utility service provider
SECTION 1. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-230. (A) A utility, as defined in Sections 58-5-10, 58-9-10, and 58-27-10, may not submit a change request for a customer's utility service until the customer's authorization for the change is obtained by using marketing or anti-slamming guidelines approved by the appropriate federal and state regulatory agencies. In the case of utilities defined by Section 58-9-10, the appropriate regulatory agencies are the Federal Communications Commission and the South Carolina Public Service Commission. If a utility other than that directly receiving the customer authorization subsequently effects the change into billing or operational systems, it is not:
(1) required to secure additional customer authorization; and
(2) liable pursuant to this section for errors, omissions, or unauthorized changes submitted by the utility originating the request.
(B) A utility defined in Sections 58-5-10 and 58-27-10 that violates subsection (A) is liable to the customer for all charges incurred by the customer, in excess of those normally incurred through his designated provider, during the period of the unauthorized change.
(C) A utility defined in Section 58-9-10 that violates subsection (A) is liable as specified in Federal Communications Commission guidelines promulgated pursuant to the United States Code of Laws, Chapter 1, Title 47.
(D) A utility, as defined in Sections 58-5-10, 58-9-10, and 58-27-10, that wilfully, knowingly, or repeatedly violates the provisions of subsection (A) is subject to a fine of not less than two thousand dollars nor more than ten thousand dollars for each violation. The fines collected by the Public Service Commission pursuant to this section must remain with the commission and be used to offset costs associated with this section.
(E) As used in this section 'customer' means:
(1) the party identified in the account records of a utility as the one responsible for payment of the utility bill;
(2) an adult person authorized by the responsible party to change utility services or to charge services to the account; or
(3) a person contractually or otherwise lawfully authorized to represent the responsible party."
SECTION 2. Section 58-9-280(I) of the 1976 Code, as last amended by Act 354 of 1996, is further amended to read:
"(I) The incumbent LECs subject to this section are authorized to meet the offerings of any local exchange carrier serving the same area by packaging services together, using volume discounts and term discounts, and by offering individual contracts for services, except as restricted by federal law. Individual contracts for services or contracts with other providers of telecommunications services must not be filed with the commission, except as required by federal law; however, such contracts may be obtained by the Office of Regulatory Staff pursuant to Sections 58-4-50 and 58-4-55."
Regulating bundled offerings
SECTION 3. Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-285. (A) As used in this section:
(1) 'Bundled offering' means:
(a) for a qualifying LEC, an offering of two or more products or services to customers at a single price provided that:
(i) the bundled offering must be advertised and sold as a bundled offering at rates, terms, or conditions that are different than if the services are purchased separately from the LEC's tariffed offerings;
(ii) each regulated product or service in the offering is available on a stand-alone basis under a tariff on file with the commission; and
(iii) the qualifying LEC has a tariffed flat-rated local exchange service offering for residential customers and for single-line business customers on file with the commission that provides access to the services and functionalities set forth in Section 58-9-10(9).
(b) for a qualifying IXC, an offering of two or more products or services to customers at a single price provided that:
(i) the bundled offering must be advertised and sold as a bundled offering at rates, terms, or conditions that are different than if the services are purchased separately from the IXC's tariffed offerings; and
(ii) each regulated product or service in the offering is available on a stand-alone basis under a tariff on file with the commission.
(2) 'Contract offering' means any contractual agreement, memorialized in writing, by which a qualifying LEC or a qualifying IXC offers any tariffed product or service to any customer at rates, terms, or conditions that differ from those set forth in the qualifying LECs or qualifying IXCs tariffs.
(3) 'Qualifying IXC' means any interexchange carrier operating under alternative means of regulation authorized by the commission.
(4) 'Qualifying LEC' means any LEC operating under an alternative means of regulation pursuant to Section 58-9-575; any LEC that has elected to have rates, terms, and conditions for its services determined pursuant to the plan described in Section 58-9-576(B); and any LEC that has elected to have rates, terms, and conditions determined pursuant to alternative means of regulation under Section 58-9-577.
(B) The commission must not:
(1) impose any requirements related to the terms, conditions, rates, or availability of any bundled offering or contract offering of any qualifying LEC or qualifying IXC that a customer accepts after the effective date of this act; or
(2) otherwise regulate any bundled offering or contract offering of any qualifying LEC or qualifying IXC that a customer accepts after the effective date of this act. Without limiting the foregoing, upon the filing of a complaint by an end use purchaser of a bundled offering or a contract offering, the commission may enforce the terms and conditions of a bundled offering or a contract offering under the same principles that apply when a court of general jurisdiction enforces the terms and conditions of an unregulated contract between two parties. No person or entity other than the end user purchaser that filed the complaint and the qualifying LEC or qualifying IXC that provides the bundled offering or contract offering that is the subject of such complaint shall be a party to any such complaint proceeding before the commission.
(C) A qualifying LEC or qualifying IXC providing bundled offerings or contract offerings is obligated to provide contributions to the Universal Service Fund (USF), and the commission shall ensure that contributions to the state USF, pursuant to Section 58-9-280(E), are maintained at appropriate levels. Nothing in this section affects the commission's jurisdiction over distributions from the USF pursuant to Section 58-9-280(E).
(D) Access minutes of use must continue to be classified and reported for purposes of administering the Interim LEC Fund, pursuant to Section 58-9-280(M), in the same manner as they were classified and reported before the effective date of this subsection.
(E) Nothing in this section affects any jurisdiction conferred upon the commission by 47 U.S.C. Section 254(k).
(F) Nothing in this section affects the commission's jurisdiction over complaints alleging that a change in a subscriber's selection of a provider of telecommunications service was made without appropriate authorization or that services that the customer did not order appear on the customer's bill.
(G) The State Regulation of Public Utilities Review Committee may request the Office of Regulatory Staff to compile information to enable the review committee to monitor the effect of bundled offerings and contract offerings on the provision of telecommunications services in South Carolina."
Election as to regulation of a local exchange carrier
SECTION 4. Section 58-9-576 of the 1976 Code, as added by Act 354 of 1996, is amended to read:
"Section 58-9-576. (A) Any LEC may elect to have rates, terms, and conditions determined pursuant to the plan described in subsection (B), if the commission: (1) has approved a local interconnection agreement in which the LEC is a participant with an entity determined by the commission not to be affiliated with the LEC, (2) determines that another provider's service competes with the LEC's basic local exchange telephone service, or (3) determines that at least two wireless providers have coverage generally available in the LEC's service area and that the providers are not affiliates of the LEC. A determination by the commission under subitem (3) of this subsection shall not constitute a determination under Section 58-9-280(E)(3) or (G)(1), or any other applicable provision of law, that a wireless provider is providing services that compete with a local telecommunications service in this State for purposes of participation in the state Universal Service Fund.
(B) Notwithstanding any other provision of this chapter, effective July 1, 1996, any LEC may elect to have its rates, terms, and conditions for its services determined pursuant to the plan described in this subsection, in lieu of other forms of regulation including, but not limited to, rate of return or rate base monitoring or regulation, upon the filing of notice with the commission as follows:
(1) If the provisions of subsection (A) have been complied with, the plan under this subsection becomes effective on the date specified by the electing LEC, but in no event sooner than thirty days after the notice is filed with the commission.
(2) Except as provided in item (8), on the date a LEC notifies the commission of its intent to elect the plan described in this section, existing rates, terms, and conditions for the services provided by the electing LEC contained in the then-existing tariffs and contracts are considered just and reasonable.
(3) The rates for flat-rated local exchange services for residential and single-line business customers on the date of election shall be the maximum rates that the LEC may charge for these local exchange services for a period of two years from the date the election is filed with the commission. During this period, the local exchange company may charge less than the authorized maximum rates for these services. For those small LECs whose prices are below the statewide average local service rate, weighted by number of access lines, the commission shall waive the requirements of this paragraph until the time as the flat-rated local exchange service rate for residential customers equals the statewide average local residential service rate, weighted by the number of access lines, and the flat-rated local exchange service rate for single-line business customers equals two times the statewide average local residential service rate.
(4) For those companies to which item (3) applies, after the expiration of the period set forth above, the rates for flat-rate local exchange residential and single-line business service provided by a LEC may be adjusted on an annual basis pursuant to an inflation-based index.
(5) The LECs shall set rates for all other services on a basis that does not unreasonably discriminate between similarly situated customers. All of these rates are subject to a complaint process for abuse of market position. The commission shall resolve any complaint alleging abuse of market position within one hundred eighty days of the date the complaint is filed with the commission. Rates that exceed the total service long run incremental cost of an offering or that satisfy Section 58-9-280(I) do not constitute an 'abuse of market position.' Other rates constitute an 'abuse of market position' if they constitute any anticompetitive pricing action that prohibits a new firm from entering a market or that would cause a firm to exit a market. Additionally, during any given twelve-month period, the aggregate increases in the tariffed rates for other services must not exceed five percent of the aggregate revenues from tariffed other services during the prior twelve-month period.
(6) A LEC subject to this section shall file tariffs for its local exchange services that set out the terms and conditions of the services and the rates for these services. The tariff shall be presumed valid and become effective seven days after filing for price decreases and fourteen days after filing for price increases and new services.
(7) Any incumbent LEC operating under an alternative regulatory plan approved by the commission before the effective date of this section must adhere to the plan until the plan expires or is terminated by the commission, whichever is sooner.
(8) On the date a LEC notifies the commission of its intent to elect the plan described in this section under the criteria established by the provisions of subsection (A)(3), existing rates, terms, and conditions for the services provided by the electing LEC contained in the then-existing tariffs and contracts are considered just and reasonable; however, a LEC's election to be regulated pursuant to the plan described in this section under the criteria established by the provisions of subsection (A)(3) must not be used as the basis for dismissing or not adjudicating a pending complaint relating to the LEC's rates, terms, or conditions."
Office of Regulatory Staff
SECTION 5. Section 58-3-580 of the 1976 Code, as added by Act 175 of 2004, is amended to read:
"Section 58-3-580. The review committee must allocate personal service positions and other appropriations within the commission to either the commission or the Office of Regulatory Staff. The review committee must organize appropriate divisions within the commission and, as submitted by the executive director, within the Office of Regulatory Staff. Notwithstanding any other provision of law, the review committee is authorized to approve position descriptions and compensation schedules for each position within the Office of Regulatory Staff. Notwithstanding any other provision of law, the salary of the Executive Director of the Office of Regulatory Staff shall not be construed as limiting the maximum salary that may be paid to other employees of the Office of Regulatory Staff. The review committee's authority to reorganize the agencies and assign personal service positions and other appropriations supersedes any provision of law to the contrary. In effectuating the review committee's assignment of positions between agencies, the Budget and Control Board is directed to assign through transfer both the position and the appropriation for the position. Notwithstanding this section or any other provision of law, the Executive Director of the Office of Regulatory Staff has sole authority to select and employ personnel of the Office of Regulatory Staff. On and after June 30, 2004, a commission employee whose position is transferred to the Office of Regulatory Staff is, upon application to the executive director, entitled only to due consideration for the position."
SECTION 6. Section 58-4-60(C) of the 1976 Code, as added by Act 175 of 2004, is amended to read:
"(C) The Office of Regulatory Staff must certify to the Department of Revenue annually on or before May first the amounts to be assessed; however, the deadline shall not apply to the certification made to the Department of Revenue in 2004."
Compensation of witnesses
SECTION 7. Section 58-4-100 of the 1976 Code, as added by Act 175 of 2004, is amended to read:
"Section 58-4-100. To the extent necessary to carry out regulatory staff responsibilities, the executive director is authorized to employ expert witnesses and other professional expertise as the executive director may consider necessary to assist the regulatory staff in its participation in commission proceedings. The compensation paid to these persons may not exceed compensation generally paid by the regulated industry for such specialists. The compensation and expenses therefor must be paid by the public utility or utilities participating in the proceedings upon agreement between the public utility or utilities participating in the proceedings and the Office of Regulatory Staff or upon approval by the Review Committee or from the regulatory staff's budget. If paid by the public utility or utilities, the compensation and expenses must be treated by the commission, for ratemaking purposes, in a manner generally consistent with its treatment of similar expenditures incurred by utilities in the presentation of their cases before the commission. An accounting of compensation and expenses must be reported annually to the review committee, the Speaker of the House of Representatives, and the Chairman of the Senate Judiciary Committee."
SECTION 8. The duties and responsibilities of the Office of Regulatory Staff, as delineated in and established by Act 175 of 2004, take effect with respect to small LECs on October 1, 2004. The duties and responsibilities of the Consumer Advocate, as delineated in Part 6, Chapter 6 of Title 37, cease with respect to small LECs on October 1, 2004. To the extent there are any such pending matters on October 1, 2004, in which the Consumer Advocate is a party, the Office of Regulatory Staff must be substituted as a party instead of and in place of the Consumer Advocate.
SECTION 9. Upon approval by the Governor, this act takes effect on July 1, 2004, except that Sections 58-9-576(A) and (B)(2), (3), and (8) take effect October 1, 2004, and Sections 58-3-580, 58-4-60(C), and 58-4-100 take effect immediately.
Ratified the 3rd day of June, 2004.
Approved the 3rd day of December, 2004.
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