12. Assignment of Proceeding
Timothy Alan Simon is the assigned Commissioner and W. Anthony Colbert is the assigned ALJ in this proceeding.
1. Notice of the application appeared on the Daily Calendar on August 25, 2010. No protests have been filed. A hearing is not required.
2. XYN seeks authorization to provide limited facilities-based and resold local exchange service and interexchange service, and switched access service, in the California service territories of AT&T and Verizon.
3. XYN has a minimum of $100,000 cash or cash equivalent that is reasonably liquid and readily available to meet its start-up expenses.
4. XYN has sufficient additional cash or cash equivalent to cover deposits that may be required by other telecommunications carriers in order to provide the proposed service.
5. XYN's management possesses sufficient experience, knowledge, and technical expertise to provide local exchange and interexchange services to the public.
6. No one associated with or employed by XYN as an affiliate, officer, director, partner, or owner of more than 10% of XYN was previously associated with a telecommunications carrier that filed for bankruptcy, or was sanctioned by the Federal Communications Commission or any state regulatory agency for failure to comply with any regulatory statute, rule, or order.
7. No one associated with or employed by it as an affiliate, officer, director, partner, or owner of more than 10% of XYN was previously associated with any telecommunications carrier that has been found either civilly or criminally liable by a court of appropriate jurisdiction for a violation of § 17000 et seq. of the California Business and Professions Code, or for any actions which involved misrepresentations to consumers, nor is currently under investigation for similar violations.
8. Except for the deficiencies identified in Attachment A to this decision, XYN's draft tariffs comply with the Commission's requirements.
9. XYN provided a map of the location of its proposed service territory.
10. XYN provided an estimate of its customer base for the first and fifth year of operation.
11. XYN does not propose to construct any facilities.
1. XYN should be granted a CPCN to provide limited facilities-based and resold local exchange telecommunications service, interexchange service and switched access service, in the California service territories of AT&T and Verizon, subject to the terms and conditions set forth in the Ordering Paragraphs.
2. XYN has the financial ability to provide the proposed service.
3. XYN once granted a CPCN, should be subject to the applicable Commission rules, decisions, General Orders, and statutes that pertain to California public utilities.
4. Applicant should be granted nondominant carrier status, subject to Commission rules and regulations as detailed in D.85-01-008 and modified in D.85-07-081 and D.85-11-044.
5. XYN's initial tariff filing should correct the tariff deficiencies shown in Attachment A to this decision.
6. Since XYN does not propose to construct any facilities, it can be seen with certainty that granting it authority to provide local exchange service will not have a significant adverse effect upon the environment.
IT IS ORDERED that:
1. A certificate of public convenience and necessity is granted to XYN Broadband Initiatives LLC, to provide limited facilities-based and resold local exchange and interexchange telecommunications service in the service territories of Pacific Bell Telephone Company d/b/a AT&T California and Verizon California, Inc., in California, subject to the terms and conditions set forth below.
2. XYN Broadband Initiatives LLC may not offer competitive local exchange, interexchange services, and switched access service until tariffs are filed with and authorized by this Commission, in accordance with General Order 96-B and has corrected for deficiencies set forth in Attachment A.
3. The corporate identification number assigned to XYN Broadband Initiatives LLC, U7207C, must be included in the caption of all original filings with this Commission, and in the titles of other pleadings filed in existing cases.
4. XYN is a nondominant carrier, subject to the Commission rules and regulations as detailed in Decision (D.) 85-01-008 and modified in D.85-07-081 and D.85-11-044.
5. XYN Broadband Initiatives LLC must file, in this docket, a written acceptance of the certificate granted in this proceeding within 30 days of the effective date of this order. This filing does not reopen the proceeding.
6. XYN Broadband Initiatives LLC must annually pay the user fee and public purpose surcharges specified in Attachment B. Per the instructions in Exhibit E to Decision 00-10-028, the Combined California PUC Telephone Surcharge Transmittal Form must be submitted even if the amount due is $0. Under Public Utilities Code Section 405, carriers that are in default of reporting and submitting user fees for a period of 30 days or more will be subject to penalties including suspension or revocation of their authority to operate in California. Therefore, carriers must report user fees even if the amount due is $0.
7. Prior to initiating service, XYN Broadband Initiatives LLC must provide the Commission's Consumer Affairs Branch with the name and address of its designated contact person(s) for purposes of resolving consumer complaints. This information must be updated if the name or telephone number changes, or at least annually.
8. XYN Broadband Initiatives LLC must notify the Director of the Communications Division in writing of the date that local exchange service is first rendered to the public, no later than five days after service first begins.
9. XYN Broadband Initiatives LLC must file an affiliate transaction report with the Director of the Communications Division, in compliance with Decision 93-02-019, on a calendar-year basis with the information contained in Attachment D.
10. XYN Broadband Initiatives LLC must file an annual report with the Director of the Communications Division, in compliance with General Order 104-A, on a calendar-year basis with the information contained in Attachment C to this decision.
11. XYN Broadband Initiatives LLC must file a tariff within 12 months of the effective date of this order, or its certificate of public convenience and necessity will be cancelled.
12. XYN Broadband Initiatives LLC must comply with the Consumer Protection Rules contained in General Order 168.
13. In addition to all the requirements applicable to competitive local exchange carriers and interexchange carriers included in Attachments B, C, and D to this decision, XYN Broadband Initiatives LLC is subject to all applicable Commission rules, decisions, General Orders, and statutes that pertain to California public utilities.
14. Application 10-08-013 is closed.
This order is effective today.
Dated January 13, 2011, at San Francisco, California.
MICHAEL R. PEEVEY
President
TIMOTHY ALAN SIMON
NANCY E. RYAN
Commissioners
ATTACHMENT A
Page 1
List of deficiencies in draft tariff submitted by XYN Communications of California, LLC in A.10-08-018 to be corrected in its initial tariff compliance filing.
Please state company California business address at which tariff is available for public inspection, or provide a web URL where tariffs are available on-line (GO96B Section 8.1.3).
(END OF ATTACHMENT A)
ATTACHMENT B
REQUIREMENTS APPLICABLE TO COMPETITIVE LOCAL EXCHANGE CARRIERS AND INTEREXCHANGE CARRIERS
1. Applicant must file, in this docket, a written acceptance of the certificate granted in this proceeding within 30 days of the effective date of this order.
2. Applicant is subject to the following fees and surcharges that must be regularly remitted. Per the instructions in Exhibit E to Decision (D.) 00-10-028, the Combined California PUC Telephone Surcharge Transmittal Form must be submitted even if the amount due is $0.
a. The current 1.15% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the Universal Lifeline Telephone Service Trust Administrative Committee Fund (Pub. Util. Code § 879; Resolution T-17071, dated March 1, 2007, effective April 1, 2007);
b. The current 0.20% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California Relay Service and Communications Devices Fund (Pub. Util. Code § 2881; D.98-12-073 and Resolution T-17127, dated December 20, 2007, effective January 1, 2008);
c. The user fee provided in Pub. Util. Code §§ 431-435, which is 0.18% of gross intrastate revenue (Resolution M-4819), dated June 7, 2007, effective July 1, 2007;
d. The current 0.00% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California High Cost Fund-A (Pub. Util. Code § 739.3; D.96-10-066, pp. 3-4, App. B, Rule 1.C; Resolution T-17128, dated December 20, 2007, effective January 1, 2008); Resolution T-17299, dated November 29, 2010, effective December 1, 2010);
e. The current 0.45% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California High Cost Fund-B (D.96-10-066, p. 191, App. B, Rule 6.F., D.07-12-054); Resolution T-17215, dated October 15, 2009, effective December 1, 2009;
f. The current 0.00% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California Advanced Services Fund (D.07-12-054); and
g. The current 0.079% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California Teleconnect Fund (D.96-10-066, p. 88, App. B, Rule 8.G, Resolution T-17142, dated April 29, 2008, effective June 1, 2008).
Note: These fees change periodically. In compliance with Resolution T-16901, December 2, 2004, Applicant should check the joint tariff for surcharges and fees filed by Pacific Bell Telephone Company (d/b/a AT&T California) and apply the current surcharge and fee amounts in that joint tariff on end-user bills until further revised.
3. Applicant is a competitive local exchange carrier. The effectiveness of its future tariffs is subject to the requirements of General Order 96-B and the Telecommunications Industry Rules (D.07-09-019).
4. Applicant is a nondominant interexchange carrier (NDIEC). The effectiveness of its future NDIEC tariffs is subject to the requirements of General Order 96-B and the Telecommunications Industry Rules (D.07-09-019).
5. Tariff filings must reflect all fees and surcharges to which Applicant is subject, as reflected in 2 above.
6. Applicant must file a service area map as part of its initial tariff.
7. Prior to initiating service, Applicant must provide the Commission's Consumer Affairs Branch with the name and address of its designated contact person(s) for purposes of resolving consumer complaints. This information shall be updated if the name or telephone number changes, or at least annually.
8. Applicant must notify the Director of the Communications Division in writing of the date that local exchange service is first rendered to the public, no later than five days after service first begins.
9. Applicant must keep its books and records in accordance with the Generally Accepted Accounting Principles.
10. In the event Applicant's books and records are required for inspection by the Commission or its staff, it must either produce such records at the Commission's offices or reimburse the Commission for the reasonable costs incurred in having Commission staff travel to its office.
11. Applicant must file an annual report with the Director of the Communications Division, in compliance with General Order 104-A, on a calendar-year basis with the information contained in Attachment C to this decision.
12. Applicant must file an affiliate transaction report with the Director of the Communications Division, in compliance with Decision 93-02-019, on a calendar-year basis with the information contained in
Attachment D.
13. Applicant must ensure that its employees comply with the provisions of Public Utilities (Pub. Util.) Code § 2889.5 regarding solicitation of customers.
14. Within 60 days of the effective date of this order, Applicant must comply with Pub. Util. Code § 708, Employee Identification Cards, and notify the Director of the Communications Division in writing of its compliance.
15. If Applicant is 90 days or more late in filing an annual report, or in remitting the surcharges and fees listed in 2 above, and has not received written permission from the Communications Division to file or remit late, the Communications Division shall prepare for Commission consideration a resolution that revokes Applicant's CPCN.
16. Applicant is exempt from Commission Rule of Practice and Procedure 3.1(b).
17. Applicant is exempt from Pub. Util. Code §§ 816-830.
18. Applicant is exempt from the requirements of Pub. Util. Code § 851 for the transfer or encumbrance of property whenever such transfer or encumbrance serves to secure debt.
19. If Applicant decides to discontinue service or file for bankruptcy, it shall immediately notify the Communications Division's Director.
20. Applicant must send a copy of this decision to concerned local permitting agencies not later than 30 days from the date of this order.
(END OF ATTACHMENT B)
ATTACHMENT C
ANNUAL REPORT
An original and a machine readable copy using Microsoft Word or compatible format must be filed with the California Public Utilities Commission, State Office Building, 505 Van Ness Avenue, Room 3107, San Francisco, CA 94102-3298, no later than March 31st of the year following the calendar-year for which the annual report is submitted.
Failure to file this information on time may result in a penalty as provided for in §§ 2107 and 2108 of the Pub. Util. Code.
Required information:
1. Exact legal name and U # of the reporting utility.
2. Address.
3. Name, title, address, and telephone number of the person to be contacted concerning the reported information.
4. Name and title of the officer having custody of the general books of account and the address of the office where such books are kept.
5. Type of organization (e.g., corporation, partnership, sole proprietorship, etc.).
If incorporated, specify:
a. Date of filing articles of incorporation with the Secretary of State.
b. State in which incorporated.
6. Number and date of the Commission decision granting the Certificate of Public Convenience and Necessity.
7. Date operations were begun.
8. Description of other business activities in which the utility is engaged.
9. List of all affiliated companies and their relationship to the utility. State if affiliate is a:
a. Regulated public utility.
b. Publicly held corporation.
10. Balance sheet as of December 31st of the year for which information is submitted.
11. Income statement for California operations for the calendar-year for which information is submitted.
12. Cash Flow statement as of December 31st of the calendar-year, for which information is submitted, for California operations only.
For answers to any questions concerning this report, call (415) 703-2883.
(END OF ATTACHMENT C)
ATTACHMENT D
CALENDAR-YEAR AFFILIATE TRANSACTION REPORT
1. Each utility must list and provide the following information for each affiliated entity and regulated subsidiary that the utility had during the period covered by the annual Affiliate Transaction report:
· Form of organization (e.g., corporation, partnership, joint venture, strategic alliance, etc.);
· Brief description of business activities engaged in;
· Relationship to the utility (e.g., controlling corporation, subsidiary, regulated subsidiary, affiliate);
· Ownership of the utility (including type and percent ownership)
· Voting rights held by the utility and percent; and
· Corporate officers.
2. The utility must prepare and submit a corporate organization chart showing any and all corporate relationships between the utility and its affiliated entities and regulated subsidiaries in #1 above. The chart should have the controlling corporation (if any) at the top of the chart; the utility and any subsidiaries and/or affiliates of the controlling corporation in the middle levels of the chart and all secondary subsidiaries and affiliates (e.g., a subsidiary that in turn is owned by another subsidiary and/or affiliate) in the lower levels. Any regulated subsidiary should be clearly noted.
3. For a utility that has individuals who are classified as "controlling corporations" of the competitive utility, the utility must only report under the requirements of #1 and #2 above any affiliated entity that either (a) is a public utility or (b) transacts any business with the utility filing the annual report excluding the provision of tariff services.
4. Each annual report must be signed by a corporate officer of the utility stating under penalty of perjury under the laws of the State of California (CCP 2015.5) that the annual report is complete and accurate with no material omissions.
5. Any required material that a utility is unable to provide must be reasonably described and the reasons the data cannot be obtained, as well as the efforts expended to obtain the information, must be set forth in the utility's annual Affiliate Transaction Report and verified in accordance with Section I-F of Decision 93-02-019.
6. Utilities that do not have affiliated entities must file, in lieu of the annual transaction report, an annual statement to the Commission stating that the utility had no affiliated entities during the report period. This statement must be signed by a corporate officer of the utility, stating under penalty of perjury under the laws of the State of California (CCP 2015.5) that the annual report is complete and accurate with no material omissions.
(END OF ATTACHMENT D)
