ORDER NO. 97-310

ENTERED AUG 15 1997

This is an electronic copy

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

CP 311

DISPOSITION: APPLICATION GRANTED

Note: By issuing this certificate, the Commission makes no endorsement or certification regarding the certificate holder’s rates or service.

The Application

On April 8, 1997, Simply Cellular (applicant) filed with the Commission an application for certification to provide telecommunications service in Oregon as a competitive provider. Applicant seeks authority to provide local exchange telecommunications service to residential customers in an area coextensive with one local exchange, the Portland exchange, of U S WEST Communications, Inc. (USWC).

Applicant will operate as a reseller of USWC local exchange services. Applicant will confine its service area to USWC’s Portland exchange. Applicant will resell local exchange service to residential customers only. No long distance service will be available, and no customers will have the ability to receive collect calls. The Commission interprets this description by the applicant to mean that all long distance, toll and 1+ dialing will be blocked, and that applicant will subscribe to Toll Restriction Service (TRS) and Billed Number Screening (BNS), or their equivalents, from USWC for all the applicant’s local exchange customers. This order will grant authority only for resale of residential local exchange service with TRS and BNS, or their equivalents, in place.

Applicant will not directly provide operator services, but limited operator services will be made available through USWC, the underlying local exchange carrier. In the application the applicant acknowledged its responsibility to insure that all services provided comply with Commission rules and with state law.

The Commission served notice of the application on the Commission’s telecommunications mailing list on April 14, 1997. The Commission did not receive any protests. However, USWC was considered a party to this proceeding.

On June 13, 1997, an Administrative Law Judge (ALJ) with the Commission issued a ruling that adopted procedures for the processing of this docket. The ALJ set forth a procedural schedule.

On July 7, 1997, the Commission Staff (Staff) distributed a proposed order for review by the parties. No party filed exceptions to the proposed order.

The Commission has reviewed the proposed order, and the record in this matter. Based on a preponderance of the evidence, the Commission makes the following:

FINDINGS AND CONCLUSIONS

Applicable Law

Applications to provide telecommunications service and for classification as a competitive telecommunications services provider are filed pursuant to ORS 759.020. ORS 759.020 provides that:

(1) No person [or] corporation * * * shall provide intrastate telecommunications service on a for-hire basis without a certificate of authority issued by the commission under this section.

* * * * *

(5) The commission may classify a successful applicant for a certificate as a * * * competitive telecommunications services provider. If the commission finds that a successful applicant for a certificate has demonstrated that its customers or those proposed to become customers have reasonably available alternatives, the commission shall classify the applicant as a competitive telecommunications services provider[.] For purposes of this section, in determining whether there are reasonably available alternatives, the commission shall consider:

(a) The extent to which services are available from alternative providers in the relevant market.

(b) The extent to which services of alternative providers are functionally equivalent or substitutable at comparable rates, terms, and conditions.

(c) Existing economic or regulatory barriers to entry.

(d) Any other factors deemed relevant by the commission.

Applications to provide local exchange (intraexchange) telecommunications services are reviewed pursuant to ORS 759.050, the "competitive zone law." Under ORS 759.050(2)(a), the Commission may:

certify one or more persons, including another telecommunications utility, to provide local exchange telecommunications service within the local exchange telecommunications service area of a certified telecommunications utility, if the commission determines that such authorization would be in the public interest. For the purpose of determining whether such authorization would be in the public interest, the commission shall consider:

(A) The effect on rates for local exchange telecommunications service customers both within and outside the competitive zone.

(B) The effect on competition in the local exchange telecommunications service area.

(C) The effect on access by customers to high quality innovative telecommunications service in the local exchange telecom-munications service area.

(D) Any other facts the commission considers relevant.

Under ORS 759.050(2)(b), the Commission shall:

[u]pon certification of a telecommunications provider under paragraph (a) of this subsection, establish a competitive zone defined by the services to be provided by the telecommunications provider and the geographic area to be served by the telecommunications provider.

Under ORS 759.050(2)(c), the Commission may:

impose reasonable conditions upon the authority of [the applicant] to provide competitive zone service within the competitive zone * * * at the time of certification of a telecommunications provider, or thereafter.

Subsection (5)(a) of ORS 759.050 provides that:

unless the commission determines that it is not in the public interest at the time a competitive zone is created, upon designation of a competitive zone, price changes, service variations, and modifications of competitive zone services offered by a telecommunications utility in the zone shall not be subject to [the notice, hearing and tariff suspension procedures in] ORS 759.180 to ORS 759.190, and at the telecommunications utility’s discretion, such changes may be made effective upon filing with the commission.

ORS 759.690 and OAR 860-032-0005 establish certain requirements providers of operator services must meet. Included are the following conditions:

The certificate holder involved in provision of operator services shall:

1. Notify all callers at the beginning of the call of the telecommunications provider’s name and allow a sufficient delay period to permit a caller to terminate the call or advise the operator to transfer the call to the customer’s preferred carrier.

2. Disclose rate and service information to the caller when requested.

3. Not transfer a call to another operator service provider without the caller’s notification and consent.

4. Not screen calls and prevent or "block" the completion of calls which would allow the caller to reach an operator service company different from the certificate holder. In addition, the certificate holder shall, through contract provisions with its reseller clients, prohibit the reseller from blocking a caller’s access to his or her operator service company of choice.

5. When entering into operator service contracts or arrangements with clients, who in turn resell or provide telephone service to the general public, include in that contract provisions for public notification. A sticker or name plate identifying the name of the certificate holder shall be attached to, or in close proximity to, each telephone that has public access.

OAR 860-032-0015(1) authorizes the Commission to suspend or cancel the certificate if the Commission finds that: (a) the holder made misrepresentations when it filed the application; or (b) the applicant fails to comply with the terms and conditions of the certificate.

Designation as a Competitive Provider

Applicant has met the requirements for classification as a competitive telecommunications service provider. Applicant’s customers or those proposed to become customers have reasonably available alternatives. The incumbent telecommunications utility, USWC, provides the same or similar local exchange services in the local service area requested by applicant. Subscribers to applicant’s services can buy comparable services at comparable rates from other vendors. Economic and regulatory barriers to entry are relatively low.

Conditions of the Certificate

As part of the application, the applicant agreed to, or acknowledged, several conditions listed in the application. Those conditions are adopted and are made conditions of this certificate of authority.

The Commission first applied the competitive zone law, ORS 759.050, in dockets CP 1, CP 14, and CP 15. After full evidentiary hearings and consideration of the public interest criteria set forth in ORS 759.050(2)(a), the Commission designated three competitive providers of switched local exchange services as alternate exchange carriers (AECs) in the Portland metropolitan area. See Order No. 96-021. The Commission subsequently applied those findings and conclusions to dockets CP 132, CP 139, and CP 149, and certified two AECs to provide switched local exchange services in areas located throughout the state.

The Commission takes official notice of the record in dockets CP 1, CP 14, and CP 15. In Order No. 96-021, the Commission established conditions applicable to AEC certificates. Since applicant, Simply Cellular, proposes to offer switched local exchange services, applicant seeks certification as an AEC. Pursuant to ORS 759.050(2)(c) and Order No. 96-021, applicant as an AEC shall comply with the following conditions:

1. Applicant shall terminate all intrastate traffic originating on the networks of other telecommunications services providers that have been issued a certificate of authority by the Commission.

2. Whenever applicant terminates intrastate long distance traffic directly or indirectly from interexchange carriers or from its own toll network to its end user customers, applicant shall contribute to the Oregon Customer Access Fund (OCAF), or its equivalent, in accordance with provisions of the Oregon Customer Access Plan (OCAP) or any successor plan approved by the Commission. Applicant shall contribute using rates approved by the Commission on intrastate terminating carrier common line access minutes, or on any other basis determined by the Commission. Applicant may not participate in (i.e., receive money from) pooling arrangements established under the OCAP or any successor plan unless authorized by the Commission.

3. Applicant shall comply with the Oregon Exchange Carrier Association’s (OECA) informational and operational needs as specified by the OCAP or any successor plan approved by the Commission.

4. Applicant shall offer E-911 service. Applicant has primary responsibility to work with the E-911 agencies to make certain that all users of their services have access to the emergency system. Applicant will deliver or arrange to have delivered to the correct 911 Controlling Office its customers’ voice and dialable Automatic Number Identification (ANI) telephone numbers so the lead 911 telecommunications services provider can deliver the 911 call to the correct Public Safety Answering Point (PSAP). Applicant agrees to work with each 911 district and lead 911 telecommunications services provider to develop database comparison procedures to match applicant’s customer addresses to the 911 district’s Master Street Address Guide in order to obtain the correct Emergency Service Number (ESN) for each address. Applicant agrees to provide the lead 911 telecommunications services provider with daily updates of new customers, moves, and changes with the corresponding correct ESN for each.

5. Applicant shall not take any action that impairs the ability of other certified telecommunications services providers to meet service standards specified by the Commission.

6. At the request of the Commission, applicant shall conduct and submit to the Commission traffic studies regarding traffic exchanged with telecommunications services providers and other entities designated by the Commission.

7. For purposes of distinguishing between local and toll calling, applicant shall adhere to local exchange boundaries and Extended Area Service (EAS) routes established by the Commission. Applicant shall not establish an EAS route from a given local exchange beyond the EAS area for that exchange.

8. When applicant is assigned one or more NXX codes, applicant shall limit each of its NXX codes to a single local exchange and shall establish a toll rate center in each exchange that is proximate to the toll rate center established by the telecommunications utility serving the exchange.

9. Applicant shall comply with universal service requirements as determined by the Commission.

10. Unless otherwise provided pursuant to an interconnection agreement adopted by the Commission pursuant to Section 252 of the Telecommunications Act of 1996, applicant shall enter into interconnection agreements with telecommunications utilities for exchange of local and EAS traffic, ancillary services (i.e., directory listings, directory assistance, 911 arrangements, mutual repair referral) and other interconnection matters in accordance with requirements the Commission established in Order No. 96-021 as otherwise modified by the Commission.

The applicant, Simply Cellular, stated that for all local exchange customers it will restrict access to interexchange services. The Commission established policies related to toll restriction services and billed number screening services in Order

No. 97-165, docket UM 775. Such policies will affect applicant’s services and operations. Applicant will be required to abide by the conditions and requirements of Order No. 97-165 as a condition of this certificate.

Public Interest

The Commission’s Findings and Decisions in dockets CP 1, CP 14, and

CP 15, Order No. 96-021 at pages 6-21, entered pursuant to ORS 759.050(2)(a)(A)-(C), are adopted. Based on a review of those findings, as well as information contained in the application, the Commission concludes that it is in the public interest to grant the application of Simply Cellular to provide local exchange telecommunications service as a competitive telecommunications provider in the Portland exchange of USWC.

Competitive Zones

The Portland exchange is designated a competitive zone for local exchange residential service, pursuant to ORS 759.050(2)(b).

Pricing Flexibility

The Commission’s Findings and Decisions in dockets CP 1, CP 14, and CP 15, Order No. 96-021 at pages 82 and 83, entered pursuant to ORS 759.050(5)(a)-(d), are adopted. Accordingly, USWC will gain pricing flexibility in the Portland exchange when:

1. Applicant, or an authorized AEC, has received a certificate of authority to provide local exchange service.

2. USWC files a tariff which satisfies the Commission’s requirements regarding the provision of interim number portability, as set forth in Order No. 96-021, and the Commission approves the tariff. USWC has satisfied this requirement, as set forth in Order No. 96-277.

3. Staff notifies the Commission that a mutual exchange of traffic exists between USWC and an authorized AEC, including but not limited to, applicant. If Staff previously provided the required notice regarding an exchange, no additional notice is required for that exchange.

As used in paragraph 3 above, "mutual exchange of traffic" means a mutual exchange of traffic between USWC and the AEC within each exchange on an exchange-by-exchange basis. For example, if there is a mutual exchange of traffic in the Bend exchange, USWC would get pricing flexibility in the Bend exchange only.

As used in paragraph 3 above, for an AEC who is a reseller (i.e., an AEC does not use its own lines or switches to provide the particular service at issue), a "mutual exchange of traffic" exists when the AEC orders and receives one service, at a wholesale rate, from the LEC for resale pursuant to a certificate granted under ORS 759.050.

ORDER

IT IS ORDERED that:

The application of Simply Cellular to provide the local exchange residential service described in the application is in the public interest and is granted with conditions described in this order.

2. Applicant is designated as a competitive telecommunications service provider of local exchange service for the Portland exchange.

3. The Portland local exchange of USWC is designated as a competitive zone for residential service.

4. USWC shall receive pricing flexibility on an exchange-by-exchange basis as set forth in this order.

5. Pursuant to ORS 759.050(2)(c), applicant shall comply with Commission imposed universal service requirements as a condition of authority to provide local exchange service.

Made, entered, and effective _________________.

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of service of this order. The request must comply with the requirements of OAR 860-014-0095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-013-0070. A party may appeal this order pursuant to ORS 756.580.