Date of Issuance: January 27, 2011
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Communications Division |
RESOLUTION T- 17273 |
Carrier Oversight & Programs Branch |
January 27, 2011 |
R E S O L U T I O N
Resolution T-17273 Addresses Adjustment Requests from Eight Small Local Exchange Carriers Requesting Modifications to their Draws From the California High Cost Fund-A Administrative Committee Fund for Calendar Year 2010.
Summary
This resolution adopts the Calendar Year (CY) 2010 California High Cost Fund-A (CHCF-A) adjustment requests and late interest, in the amount of $2,327,455.40, for Calaveras Telephone Company (Calaveras), Foresthill Telephone Company (Foresthill), Kerman Telephone Company (Kerman), Pinnacles Telephone Company (Pinnacles), Ponderosa Telephone Company (Ponderosa), Sierra Telephone Company (Sierra), Siskiyou Telephone Company (Siskiyou), and Volcano Telephone Company (Volcano).
Background
On or about October 1, 2009, the 14 small Incumbent Local Exchange Carriers (ILECs) made their annual CHCF-A advice letter filings in accordance with Decision (D.) 91-09-042. The 14 small ILECs requested a total CY 2010 CHCF-A support of approximately $38.886 million.
On January 21, 2010, Resolution T-17247 was approved by the California Public Utilities Commission (Commission) and authorized CY 2010 funding for the 14 Small ILECs in the amount of $35.535 million and deferred a decision on carrier adjustments, in the amount of $2.638 million, due to the complexity of the issues and the short time frame in which to review the adjustments.
The issues deferred in Resolution T-17247 are: 1. the revenue effect associated with National Exchange Carrier Association (NECA) separations methodology changes; 2. the revenue effect associated with virtual NXX calls; and 3. the revenue effect associated with wireless intercarrier compensation.
Discussion
The Commission's Communications Division (CD) reviewed the annual advice letter filings made by the eight small ILECs in connection with their 2010 CHCF-A revenue requirement adjustment requests pursuant to the implementation rules and guidelines as set forth in D.88-07-022 and as modified by D.91-05-016, D.91-09-042, Resolution T-16117, D.00-09-072 and D.01-02-018. 1
Section B of the Implementation Rules state, "In each succeeding year, each rural and small metropolitan company shall file with the Commission an advice letter incorporating the net settlements effects upon such company of regulatory changes ordered by the Commission and the Federal Communications Commission."
D.91-09-042 also states, "Utilities shall be eligible for support from the fund limited to the amount which are forecasted to result in earnings not to exceed authorized intrastate rates of return or to the current funding level amount for the year for which HCF (CHCF-A) is being requested, whichever amount is lower."
Each adjustment request item is further discussed below:
NECA Separations Methodology Changes
In their annual advice letter filing, Calaveras, Pinnacles and Ponderosa included adjustments in the amount of $270,865, $46,462.50, and $145,010, respectively, in response to NECA separations methodology changes. The total amount of these adjustments is $462,337.50.
The carriers state that in a memorandum dated December 29, 2008, NECA, a membership association of U.S. local telephone companies, announced that it, "will not accept cost studies where COE [Central Office Equipment] and CWF [Cable and Wire Facilities] cost allocation of plant which includes both voice services and data services is done using a voice grade equivalent or related capacity equivalent methodology 2."
Calaveras, Pinnacles and Ponderosa assert that they have, as of 2008, adopted the NECA approved methodology, "a circuit is a circuit". This change, carriers contend, has resulted in an increase to their intrastate revenue requirement and they are therefore, in response, requesting an increase to their CHCF-A draws.
CD had discussions with NECA to verify the authority delegated to them by the Federal Communications Commission (FCC). NECA's role is defined in Part 69 Access Charges 3 of the FCC Rules and Regulations.
Additionally, the FCC Safeguards Order4, states that "The NECA is an association of ILECs established in 1984, at the direction of the Federal Communications Commission, to administer important Commission programs". "In the Order, the Commission reiterates that, in preparing interstate access tariff filings and distributing interstate revenue, NECA must correct any data that it reasonably believes do not comply with our rules." "NECA, however, is an organization established at the Commission's direction, whose structure and principal functions are specified by Commission rules."
Based on information gathered from NECA and the FCC, the small ILECs' requests for lost revenue adjustments due to NECA's separations methodologies are approved.
Virtual NXX Calls
In their annual advice letter filing, Foresthill and Kerman included adjustments, in the amount of $35,261 and $42,711, respectively, for the revenue loss associated with virtual NXX calls. The total amount of these adjustments is $77,972.
This issue is in regards to intercarrier compensation for traffic transported over the networks of small ILECs utilizing disparate rating and routing points. NXX refers to the three-digit prefix used to identify blocks of telephone numbers assigned to a central office "rate center". Virtual NXX refers to codes that are assigned throughout a Local Access and Transport Area without regard to the location of the end use customer.
In D.07-02-031, issued February 20, 2007, Opinion Regarding Treatment of Virtual NXX Calls, small ILECs and Competitive ILECs are each directed to interconnect, transport and terminate traffic, and to pay intercarrier compensation in a manner consistent with the Decision. Ordering Paragraph 4 of D.07-02-031 directs the carriers as follows, "carriers that are impacted by the intercarrier compensation provision in this decision are hereby authorized to enter into negotiations pursuant to Section 252, of the Act [Telecommunications Act of 1996] to reach agreement on the rates, terms, and conditions applicable to intercarrier compensation."
In D.07-02-031, Conclusions of Law Paragraph 10, states, "Under provisions of Section 252 of the Act (FCC), VNXX carriers...have authority to demand negotiations with a Small LEC with whom traffic is exchanged through indirect interconnection..."
Foresthill and Kerman assert that they have entered into an agreement with O1 Communications as directed, and as a result of the newly agreed upon rates, have lost intrastate revenue due to the requirement to utilize negotiated rates rather than their previous tariffed rates. In response, the small ILECs are requesting an increase to their CHCF-A draw to make up their asserted lost revenue.
Foresthill and Kerman's General Rate Case (GRC) Test Years were 2007 and 2008, respectively. Given the issue date of D.07-02-031, CD does not believe that these issues could have been included in their respective GRC's and agree that the annual advice letter process is the appropriate venue to review these adjustment requests.
Since D.07-02-031 authorizes VNXX carriers to request negotiations of an intercarrier compensation agreement with Small ILECs, the Commission approves Foresthill's and Kerman's request for lost revenue related to the intercarrier compensation agreements with O1 Communications.
Wireless Intercarrier Compensation
In their annual advice letter filing, Foresthill, Kerman, Ponderosa, Sierra, Siskiyou and Volcano have submitted adjustment requests due to entering into negotiated wireless intercarrier compensation agreements with Commercial Mobile Radio Service Providers (CMRS) and these negotiated agreements resulted in lower interconnection rates than their tariff rate. The carriers assert this has resulted in lost revenues which will require a larger draw from the CHCF-A fund. Below are the asserted impacts for each carrier:
· Foresthill requested $341,456 for non-recurring lost revenues for the period of June 2005 through December 2009, and $46,290 for recurring lost revenues.
· Kerman requested $597,631 for non-recurring lost revenues from October 2003 through December 2009.
· Ponderosa requested $618,593 for non-recurring lost revenues from October 2003 through December 2008.
· Sierra requested $88,391 for non-recurring lost revenues from August 2006 through June 2009, and $29,414 for recurring lost revenues.
· Siskiyou requested $167,773 for non-recurring lost revenues from May 2003 through August 2009, and $38,885 for recurring lost revenues. Their latest GRC will be for Test Year 2011.
· Volcano requested $164,020 for non-recurring lost revenues prior to 2009, and $5,300 for recurring lost revenues.
· The total non-recurring and recurring lost revenues amount requested is $2,097,753.
The small ILECs included recovery of revenues attributable to the T-Mobile Order5 that was effective on April 29, 2005. The T-Mobile Order states, "...we find that it would not have been unlawful for incumbent LECs to assess transport and termination charges based upon a state tariff." Further, the T-Mobile Order states, "Going forward, however, we amend our rules to make clear our preference for contractual arrangements by prohibiting LECs from imposing compensation obligations for non-access CMRS traffic pursuant to tariff." The Commission will permit recovery of lost revenues for wireless intercarrier compensation on or after the effective date of the T-Mobile Order.
In the Final Arbitrator's Report A.06-02-028, eleven rural ILECs filed petitions for arbitration of interconnection agreements between themselves and the entities comprising Cingular Wireless. The Commission arbitrated wireless interconnection rates between Cingular Wireless and the small ILECs.
Small ILECs seeking recovery of lost revenues from wireless intercarrier compensation shall receive recovery for lost revenues occurring on or after April 29, 2005, only if there is an agreement between the small LEC and the CMRS carrier, and the carrier is not currently in a GRC.
Foresthill, Sierra and Volcano have met the above requirements. Therefore, the Commission hereby approves their requested amounts.
However, the following carriers' requests are denied because they are requesting recovery of non-recurring lost revenues that occurred prior to April 29, 2005::
· Kerman's request for Verizon Wireless $96,705.95 and Leap/Cricket $1,504.47 for a total disallowance of $98,210.42;
· Ponderosa's request for Verizon Wireless $118,847.86;
· Siskiyou's request for Verizon Wireless $26,120.59.
Kerman's request for recovery of wireless intercarrier compensation from T-Mobile for non-recurring lost revenues, in the amount of $34,752.93, is also denied as there is no contract between the parties.
Lastly, we also deny Siskiyou's request for recurring lost revenues because it should have made its request in its 2011 Test Year GRC . Thus, we deny its request in the amount of $38,885.
Summary of adjustments review
The development of the CHCF-A adjustments for each of the eight small ILECs is shown in Appendix A and summarized below. The late interest calculation factors are shown in Appendix B. Late interest for the adjustments for the period January 1, 2010, through November 30, 2010, will be included in the December 2010 payment, to be paid in January 2011. The table below summarizes the CY 2010 CHCF-A adjustments approved in this resolution for each of the eight small ILECs seeking an adjustment:
Payment Process
This resolution directs the CD, in concert with the Information and Management Services Division, to pay the respective small ILECs support for adjustments as indicated above in January 2011. The prompt payment of support to the small ILECs is contingent on the availability of funds and the Commission and State adoption of the budgets covering the payment of the 2010 CHCF-A adjustment support. Should the monthly adjustment support payments due the small ILECs not be paid within 30 days after the close of each calendar month, CD shall include in those payments interest equal to the 3-month commercial paper rate and consistent with directives set forth in D.01-02-018 and D.01-09-064.
Comments on Draft Resolution
In compliance with PU Code § 311(g)(1), a notice letter was emailed on December 28, 2010, informing the 14 small ILECs, CHCFA-AC, parties of record in Rulemaking 01-08-002 and parties on the service list of Application 99-09-044 of the availability of this revised draft Resolution on the Commission's web site http://www.cpuc.ca.gov. This letter also informed parties of the opportunity to comment and that the final Resolution adopted by the Commission will be posted and will be available at the same web site.
Cooper, White & Cooper LLP (Cooper) filed comments on October 13, 2010, in response to the Draft Resolution mailed out September 28, 2010, asserting the following points:
1. The Draft Resolution would disallow the claims of several Small ILECs for $2,097,753 for wireless-related lost revenues. This amount represents the revenue effect of changes to the Small ILECs wireless intercarrier compensation arrangements.
2. The Draft Resolution would reject inclusion of the revenue impact of the shift in separations methodology implemented by NECA in its role as administrator of the interstate access pools, as defined in Part 69 of the FCC Rules.
The Commission has considered the comments of Cooper in response to the proposed resolution and upon further review, addresses their comments as follows.
The Commission has carefully reviewed the FCC Decision for Intercarrier Compensation. 6 The FCC Decision for Intercarrier Compensation, states that local exchange carriers may not impose compensation obligations for traffic not subject to access charges upon commercial mobile radio service providers pursuant to tariffs on or after April 29, 2005.
CD finds that claims for lost revenues that occurred on or after April 29, 2005, for wireless intercarrier compensation between the small ILECs and the wireless carriers, are eligible for recovery. However, the small ILECs must have an agreement with the wireless carrier. In addition, carriers, such as Siskiyou, with GRC's for Test Year 2011 may not now request recurring 2010 lost revenues. The proper venue to recover this revenue was in their Test Year 2011 GRC.
Upon further review of the revenue effects of recent changes in NECA's separations methodologies, CD had discussions with NECA to verify the authority delegated to them by the FCC. NECA's role is defined in Part 69 Access Charges 7 of the FCC Rules and Regulations.
Additionally, the FCC Safeguards Order 4, states that "The NECA is an association of ILECs established in 1984, at the direction of the Federal Communications Commission, to administer important Commission programs". "In the Order, the Commission reiterates that, in preparing interstate access tariff filings and distributing interstate revenue, NECA must correct any data that it reasonably believes do not comply with our rules." "NECA, however, is an organization established at the Commission's direction, whose structure and principal functions are specified by Commission rules."
Based on information gathered from the meeting with NECA representatives and the directives of the Safeguards Order, the small ILECs request for lost revenue adjustments due to NECA's separations methodologies are approved.
Cooper filed comments on January 12, 2011, in response to the revised draft Resolution mailed December 29, 2010, asserting the following points:
1. The Draft Resolution should permit recovery of non-recurring lost revenue impacts occurring prior to the T-Mobile Order dated April 29, 2005.
2. The Draft Resolution contains citation errors and misstatements that should be corrected.
3. The Draft Resolution fails to include valid recurring lost revenue adjustments for Sierra.
The Commission has considered the comments of Cooper in response to the revised draft Resolution and upon further review addresses their comments as follows.
As to the first point raised by Cooper, the FCC T-Mobile Order, states, "...we find that it would not have been unlawful for incumbent LECs to assess transport and termination charges based upon a state tariff."
The FCC's Order states that ILECs can have tariffs on transport and termination charges prior to the T-Mobile Order. The Commission concurs and is also concerned that awarding recovery of lost revenues for a time period outside of the FCC decision may set a problematic precedent for future FCC decisions.
Further, the T-Mobile Order states, "Going forward, however, we amend our rules to make clear our preference for contractual arrangements by prohibiting LECs from imposing compensation obligations for non-access CMRS traffic pursuant to tariff." For this reason, the Commission will permit lost revenues for wireless intercarrier compensation on or after the effective date of the T-Mobile Order.
As to the second point raised by Cooper, the Commission made changes to the revised draft Resolution to quote directly from the T-Mobile Order itself and not from the Federal Register.
As to the third point raised by Cooper, the Commission adjusted the lost revenue for Sierra for $29,414 in valid recurring lost revenues as requested by Cooper.
Findings
1. Communications Division (CD) reviewed the 2010 California High Cost Fund (CHCF)-A adjustment requests submitted by the eight small Local Exchange Carriers (ILECs) in accordance with the Implementation Rules and Guidelines set forth in Decision (D).88-07-022 as modified by D.91-05-016, D.91-09-042, Resolution T-16117, D.00-09-072 and D.01-02-018.
2. Calaveras Telephone Company, Pinnacles Telephone Company, and Ponderosa Telephone Company included adjustments for lost revenues associated with the National Exchange Carriers Association (NECA) reinterpretation of the Federal Communications Commission (FCC) separations methodology.
3. CD conducted a telephone meeting with representatives of NECA and agrees with NECA's role in interpreting the FCC rules correctly and implement those interpretations. FCC Rules and Regulations Part 69 Access Charges, Subpart G-Exchange Carrier Association § 69.601 states NECA's role and responsibilities. This request is approved.
4. Foresthill Telephone Company (Foresthill) and Kerman Telephone Company (Kerman) included adjustments for lost revenue associated with virtual NXX calls. As this lost revenue is the result of a Commission Decision, this request is approved.
5. Foresthill, Kerman, Sierra Telephone Company, Siskiyou Telephone Company and Volcano Telephone Company requested recovery of lost revenues attributable to FCC wireless intercarrier compensation rule changes (CC Docket No. 01-92, FCC 05-42).
6. The small ILECs can seek lost revenues occurring on or after April 29, 2005, from Commercial Mobile Radio Service (CMRS) providers attributable to wireless intercarrier rule changes when there is an agreement between the parties. Siskiyou cannot seek recurring lost revenues as their General Rate Case for Test Year 2011 was the proper venue to address that request.
7. In compliance with PU Code § 311(g)(1), a notice letter was emailed on December 28, 2010, informing the 14 small ILECs, CHCFA-Administrative Committee, parties of record in Rulemaking 01-08-002 and parties on the service list of Application 99-09-044 of the availability of this revised draft Resolution on the Commission's web site http://www.cpuc.ca.gov. Cooper, White and Cooper, LLP commented on the revised draft Resolution.
8. The Commission finds CD's recommended CHCF-A adjustment support for each of the eight small ILECs as summarized in Appendix A of this Resolution reasonable and consistent with Commission orders and should be adopted.
THEREFORE, IT IS ORDERED that:
1. The California High Cost Fund-A draws for calendar year 2010 adjustment support and late interest for Calaveras Telephone Company, Foresthill Telephone Company, Kerman Telephone Company, Pinnacles Telephone Company, Ponderosa Telephone Company, Sierra Telephone Company, Siskiyou Telephone Company and Volcano Telephone Company are shown below:
2. The respective California High Cost Fund-A support for each of the eight small Local Exchange Carriers, as described in the body and summarized in Appendix A of this Resolution, is adopted.
This Resolution is effective today.
I hereby certify that this Resolution was adopted by the Public Utilities Commission at its regular meeting on January 27, 2011. The following Commissioners approved it:
/s/ Paul Clanon |
PAUL CLANON Executive Director |
MICHAEL R. PEEVEY
President
MICHEL PETER FLORIO
CATHERINE J.K. SANDOVAL
Commissioners
Commissioner Timothy Alan Simon, being necessarily
absent, did not participate.
APPENDIX A
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Late Interest Calculation Factor
1 D.88-07-022 was modified by D.91-05-016, D.91-09-042, Resolution T-16117, D.00-09-072, D.01-02-018, and D.01-05-031. These guidelines are summarized in the Appendix of D. 91-09-042, which are hereinafter referred to as the Implementation Rules.
2 NECA Cost Guidelines Paper, 12/29/08, page 4.
3 FCC Rules and Regulations Part 69 Access Charges, Subpart G-Exchange Carrier Association § 69.601
4 FCC, 47 CFR Part 69, [CC Docket No. 93-6; FCC 95-94], as published in Federal Register Vol. 60, No. 75, Wednesday, April 19, 1995, pp. 19528, Safeguards to Improve the Administration of the Interstate Access Tariff and Revenue Distribution Process "Safeguards Order"
5 Developing a Unified Intercarrier Compensation Regime, T-Mobile et al. Petition for Declaratory Ruling Regarding Incumbent LEC Wireless Termination Tariffs, CC Docket 01-92, Declaratory Ruling and Report and Order, FCC 05-42 (released February 24, 2005) (the "T-Mobile Order")
6 Developing a Unified Intercarrier Compensation Regime, T-Mobile et al. Petition for Declaratory Ruling Regarding Incumbent LEC Wireless Termination Tariffs, CC Docket 01-92, Declaratory Ruling and Report and Order, FCC 05-42 (released February 24, 2005) (the "T-Mobile Order")
7 FCC Rules and Regulations Part 69 Access Charges, Subpart G-Exchange Carrier Association § 69.601
