ORDER NO. 99-441

ENTERED JUL 14 1999

This is an electronic copy. Appendices and footnotes may not appear.

UD 8

DISPOSITION: PETITION DENIED

On December 9, 1998, U S WEST Communications, Inc. (USWC) filed a petition to price list unspecified packaged services pursuant to OAR 860-032-0035(1). After reviewing the application, Commission Staff (Staff) submitted a recommendation at the February 16, 1999, public meeting that the Commission further investigate USWC’s petition. That recommendation was adopted. By Order No. 99-190, the Commission opened an investigation into USWC’s petition.

A prehearing conference was held in this matter on March 5, 1999, before Ruth Crowley, Administrative Law Judge. At the conference, parties agreed that the matter could be decided on briefs.

On March 12, 1999, Staff sent the Commission a letter with a list of stipulated issues for this docket. Those issues are:

Whether USWC’s petition qualifies for price listing under ORS 759.030 or must rather be considered under ORS 759.195.

Whether the petitioner’s proposed packages are nonessential products or services under ORS 759.030.

Whether approval of petitioner’s petition is in the public interest.

Staff concedes that USWC’s proposed packages are nonessential products or services under ORS 759.030. Therefore, Issue 2. is already decided. The public interest issue arises only if USWC’s petition qualifies for price listing. Because we decide that it does not qualify, that issue is moot and the parties’ positions on that issue are not set out.

Petitions to intervene were received from American Telephone Technology, Inc., Frontier Telemanagement, Shared Communications Services, and United Telephone. All petitions were granted. Staff and USWC filed briefs and testimony in support of their respective positions.

ORS 759.030 provides in relevant part:

(6) If the commission determines that a product or service offered by a telecommunications utility as part of local exchange telecommunications services can be demonstrated by the utility to be subject to competition, or if a product or service is not an essential product or service, the commission may authorize the utility to file a price list, which shall contain the description, terms, conditions and prices of such services or products. No other schedule for price listed services need be filed with the commission. The price list or any revision thereof is not subject to the provisions of ORS 759.180 to 759.190 and shall become effective immediately on filing with the commission unless a later date is specified  . . . .

(7) Within 60 days of a filing under subsection (2), (3) or (6) of this section, the commission shall either determine the appropriateness of the filing or determine that further investigation is necessary. If the commission determines that further investigation is necessary, the commission may suspend operation of the filing for a period not longer than five months from the end of the initial 60-day period. Upon a showing of good cause, any party may request extension of the suspension period for an additional three months.

ORS 759.195 provides in pertinent part:

Except as provided in subsection (6) of this section, upon petition of a telecommunications utility which provides local exchange service directly, or is affiliated with a utility which provides local exchange service, and after notice and hearing, the Public Utility Commission may authorize the utility to set rates for toll and other telecommunications services by filing a price list containing the price and terms for the service. The price list or any revisions thereof shall not be subject to the provisions of ORS 759.180 to 759.190 and shall become effective as determined by the commission. The commission may prescribe conditions on an authorization to establish rates by price list, including conditions relating to the sharing of revenues received by the utility which are in excess of allowances provided for in the order of authorization.

* * * * *

(3) Prior to granting a petition to set rates by price list under this section, the commission shall find that pricing flexibility:

(a) Is reasonably necessary to enable the utility to respond to current and future competitive conditions for any or all telecommunications services;

(b) Will maintain the appropriate balance between the need for price flexibility and the protection of consumers;

(c) Is likely to benefit the consumers of fixed rate services; and

(d) Is unlikely to cause any undue harm to any customer class.

OAR 860-032-0035(1) provides:

Any public utility may petition the Commission to price list a service. The petition shall contain the following information:

(a) The name of the public utility;

(b) The service territory of the public utility;

(c) The service proposed to be price listed, including the initial price list with the proposed terms and prices of the service;

(d) The public utility’s jurisdiction for price listing the service; and

(e) A statement from

(A) Each joint provider of the service that it agrees to the price list; or

(B) The petitioner indicating how the price list will affect the rates and services of all joint providers of the service.

Positions of the Parties. Summary. USWC wishes authority from the Commission to price list packages of products and services that meet certain criteria, without specifying in its petition exactly what products and services those might be. Staff concedes that petitioner’s proposed packages are nonessential under 759.030(6). However, Staff contends that USWC’s petition is not proper under ORS 759.030(6).

USWC’s Position. ORS 759.030(6) or ORS 759.195? USWC argues that its petition is proper under ORS 759.030(6). That statute allows telecommunications utilities to price list products and services that are not essential. The products and services addressed in USWC’s petition are not essential because the individual components of such products and services can be purchased at tariffed rates. USWC notes that the Commission has determined that packages of individually tariffed services that contain as components both essential and nonessential services qualify for price listing. Staff does not contest this representation.

According to USWC, the purpose of its petition here is to gain authorization to price list packages of services that meet certain criteria, in order to avoid the delay associated with the current process. USWC points out that under ORS 759.030(7), the Commission has the right to disapprove any price listing made under its petition in any case.

In support of its position, USWC argues that ORS 759.030(6) does not specify a particular form for the price-listing petition. However, USWC argues, legislative history indicates that the petition need only identify the products and services to allow the Commission to determine whether they are essential or not.

Staff argues that USWC may apply for general authority to price list products and services only under ORS 759.195. Under that statute, if the criteria set out in the Applicable Law section are met, a utility may price list its complete range of telecommunications services. ORS 759.030(6) permits fewer than all of a utility’s services to be price listed. USWC argues that nothing in the plain language of ORS 759.195 requires petitions seeking price listing authority for generally described nonessential packages to be considered only under ORS 759.195 and not under 759.030(6).

Staff’s Position. ORS 759.030(6) or ORS 759.195? According to Staff, USWC’s petition is defective. First, it does not comply with the requirements of ORS 759.030(6), because it does not identify the specific products or services to be price listed. Second, USWC’s petition seeks general authority to price list packages of products and services. It is Staff’s position that such general authority is available only under ORS 759.195.

Staff also argues that if the Commission were to authorize USWC to price list packages under ORS 759.030(6), USWC would have to file a price list containing the description, terms, conditions, and prices of such services. Staff maintains that it merely seeks the information USWC is required to file under ORS 759.030(6).

Staff argues that in ORS 759.030(6), the legislature intended the Commission to authorize a telecommunications utility, as part of its local exchange telecommunications services, to price list specific nonessential products or services. That statute also requires the utility to file a price list containing the description, terms, conditions, and prices of the services or products to be price listed. Staff argues that USWC must include more specific information about the packages it intends to offer to be in compliance with the statutory requirements.

Discussion. ORS 759.030(6) or ORS 759.195? ORS 759.030(6) is the statute under which USWC’s petition should be processed. ORS 759.195 governs petitions for an alternative form of regulation, under which all a telecommunications utility’s services are price listed. That is not what USWC’s petition requests. USWC requests authority to price list unspecified packages of products and services. A linguistic confusion seems to have arisen under which Staff believes that a general request to price list a subset of the utility’s services equates to a request for general price listing authority under ORS 759.195. That is not the case. We disagree with Staff that USWC’s petition should be processed under ORS 759.195. The petition qualifies for price listing under ORS 759.030(6).

ORS 759.030(6) plainly allows the Commission to authorize a utility to file price lists for nonessential local exchange products and services. The statute does not set out requirements for a petition to price list products. However, we note that the administrative rule governing USWC’s petition does specify that a petition to price list services must include the service proposed for price listing with the proposed terms and prices of the service. OAR 860-032-0035(1)(c). USWC’s petition does not contain this information. Therefore, USWC’s petition should be denied.

ORDER

IT IS ORDERED that USWC’s petition to price list packages of services and products is denied.

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 in 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(2). A party may appeal this order to a court pursuant to applicable law.