C07-0380Decision No. C07-0380
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
06R-495TDOCKET NO. 06R-495T
IN THE MATTER OF THE PROPOSED RULES regulating telecommunications, 4 Code of colorado regulations 723-2.
order partially granting exceptions, 
lifting stay, and adopting rules
Mailed Date:     May 10, 2007
Adopted Date:  April 25, 2007
TABLE OF CONTENTS
I.	BY THE COMMISSION	2
A.	Statement	2
B.	History	2
C.	Discussion	5
1.	Rule 2001(eee) and (jjj).	5
2.	Rule 2002(d).	5
3.	Rule 2002(d)(IV).	6
4.	Rule 2006(b).	7
5.	Rule 2008(b).	7
6.	Rule 2123(c)(V) .	8
7.	Rule 2401(b).	8
8.	Rules 2893 and 2894.	9
D.	Conclusion	9
II.	ORDER	9

I.	BY THE COMMISSION
A.	Statement
1.	This matter comes before the Commission for consideration of exceptions to Recommended Decision No. R07-0137, filed by Qwest Corporation (Qwest) and the Office of Consumer Counsel (OCC) on March 12, 2007.  AT&T Communications of the Mountain States, Inc. (AT&T) filed a response to the exceptions of the OCC, and the OCC filed a motion for leave to reply to AT&T’s response and the OCC’s reply.
2.	Having been advised in this matter, we grant the OCC’s motion because it clarifies the OCC's comments, and we partially grant the exceptions.  We also lift the stay we ordered in Decision No. C07-0190, adopt the rules appended to this decision as Attachment A, and set an effective date for the rules of August 1, 2007.  
B.	History
3.	By Decision No. C06-1067, The Colorado Public Utilities Commission (Commission) issued a Notice of Proposed Rulemaking (NOPR) regarding its Rules Regulating Telecommunications, 4 Code of Colorado Regulations (CCR) 723-2. The NOPR was published in the Colorado Register on October 10, 2006, and began this proceeding.
4.	A hearing on the proposed rules was set for November 15, 2006, at 9:00 a.m. in a Commission Hearing Room in Denver, Colorado.  Prior to the hearing, written comments were filed by Qwest, AT&T Communications of the Mountain States, Inc., TCG Colorado, SBC Long Distance, LLC, and AT&T Long Distance (collectively AT&T), and Data Protection Group, LLC. Oral comments were presented during the hearing by Staff of the Commission (Staff) and Qwest.  An Administrative Law Judge issued Decision No. R07-0137 on February 20, 2007, which contained recommendations regarding the telecommunications rules.
5.	By Decision No. C07-0190, issued March 7, 2007, we stayed the Recommended Decision.
6.	The Commission repealed and reenacted its entire body of rules on April 1, 2006.  Due to the complexity of such an undertaking, additional improvements to these rules are necessary.
7.	In its NOPR, the Commission stated that the basis and purpose of the proposed amendments was to amend emergency rules and make them permanent; make the rules related to telecommunications providers consistent, to the extent possible, with other Commission rules; centralize common tariff and advice letter provisions in the Rules of Practice and Procedure and make conforming amendments to the substantive telecommunications rules; clarify and supplement customer notice provisions and related definitions; modify the administration of interconnection agreement and amendment processing; modify filings requirements; restructure and update incorporations by reference; and make various stylistic, formatting, and grammatical changes.
8.	The following rules were excluded from the NOPR: Rules 2170 through 2179 (Deregulation Of InterLATA Interexchange Telecommunications Services), rule 2187 (Annual Reporting Requirements For Eligible Telecommunications Carriers), rules 2200 through 2203 (default regulation of competitive local exchange carriers), rules 2210 through 2211 (Deregulation Of IntraLATA Interexchange Telecommunications Services), rules 2740 though 2799 (Provisioning Of The Abbreviated Dialing Code 8-1-1), and rule 2855 (High Cost Support Mechanism And Prescribing The Procedures For The Colorado High Cost Administration Fund). These rules were the subject of rulemaking in Docket Nos. 05R-528T, 05R-537T, 05R-538T, 05R-527T, 06R-316T, and 05R-529T, respectively.
9.	The statutory authority for the proposed rules is found in §§ 29-11-106(3); 39-32-104; 40-2-108; 40-3-101; 40-3-102; 40-3-103; 40-3-107; 40-3-110; 40-3.4-106; 40-4-101; 40-15-101; 40-15-108(2); 40-15-109(3); 40-15-201; 40-15-203.5; 40-15-208(2)(a); 40-15-301; 40-15-302(1)(a) and (2); 40-15-302.5; 40-15-305; 40-15-404; 40-15-502(1), (3)(a), and (5)(b); 40-15-503; 40-17-103(2) and (3), C.R.S.
10.	Considering the limited scope of the proceeding as set forth in the NOPR and the Commission’s desire to refine the product of the preceding rulemakings, the Commission requested that interested persons limit their comments to the proposed amendments only.  This docket was not to be construed as an opportunity to reopen contentious issues that have already been resolved in previous rulemakings.
11.	A public hearing was set before an Administrative Law Judge (ALJ) for November 15, 2006 at 9:00 a.m. in a Commission Hearing Room in Denver, Colorado. Prior to the hearing, written comments were filed by Qwest Corporation (Qwest); AT&T Communications of the Mountain States, Inc., TCG Colorado and SBC Long Distance, LLC d/b/a and AT&T Long Distance (collectively, AT&T); the Colorado Office of Consumer Counsel (OCC); and Data Protection Group, LLC.  At the assigned time and place the ALJ called the matter for hearing. Oral comments were received from Staff of the Colorado Public Utilities Commission and Qwest.  At the conclusion of the hearing, the matter was taken under advisement.  The ALJ then issued Recommended Decision No. R06-0137 which contained the recommended rules.
12.	We address the exceptions to that Recommended Decision by rule numeric order.
C.	Discussion
13.	We begin with two changes we make on our own motion.  The ALJ adopted rules that contained the Commission’s old address.  We update the rules to reflect the Commission’s new address:  1560 Broadway, Suite 250, Denver, Colorado 80202.
14.	We also add the following subsection (X) to Rule 2122(b):
	(X) Initial Tariff:  Each provider shall file an initial Tariff accompanied by an initial Advice Letter, in compliance with this rule and any relevant Commission order, on not less than 30-days notice to the Commission.  If the provider chooses to also file a Price List, the Tariff shall state the provider’s maximum or range of rates whereas the Price List shall identify the actual prices that will be charged to its customers.
We make this addition because the same language was deleted from the rules of Practice and Procedure, 4 CCR 723-1, but still applies to telecommunications services.  Initial tariffs are specific to telecommunications providers, and thus the language is appropriately included here rather than in the Rules of Practice and Procedure.
1.	Rule 2001(eee) and (jjj).
15.	The OCC states that the definitions for ‘local newspaper’ and ‘newspaper having general circulation’ have been omitted without comment, and should be reinserted.  We disagree.  The definition of ‘newspaper having general circulation’ is contained in the generally applicable rules of Practice and Procedure, and thus is not required in the telecommunications rules.  The term ‘local newspaper’ is not used in the telecommunications rules and is therefore not a necessary definition.  We therefore deny the OCC’s exceptions to this rule.
2.	Rule 2002(d).
16.	This rule pertains to customer notice.  The OCC takes exception to the numbering conventions within this rule, arguing that we should be consistent.  We certainly endeavor to be consistent.  For the public’s information, the convention used throughout our rules is that numbers including and less than ten are spelled out, while numbers 11 and higher use numerals.
3.	Rule 2002(d)(IV).
17.	The OCC takes exception to the ALJ’s recommendation on Rule 2002(d)(IV), which concerns customer notice.  As noted above, we have granted the OCC’s motion for leave to reply to AT&T’s response.  The OCC argues that the Recommended Decision should not delete language of quantification of rate impact for affected services.  The OCC requests that we reinsert “monthly customer rate impact by customer class” which was stricken by the ALJ.  We deny the OCC’s exceptions to this rule, in part.  AT&T argues that the language the OCC wants to add back to this rule would turn all applications into an extremely expensive and arduous task for carriers because they would have to perform an analysis for each class of affected customer.  AT&T argues further that customer classes are not homogeneous enough to make this exercise meaningful.
18.	In the response to AT&T, the OCC argues that the rule affects only applications, and that only a limited set of applications are affected.  The OCC does not believe that its proposal will cause the burden claimed by AT&T.  The OCC is not requesting an analysis on an individual customer basis or on a customer category basis, but simply a generic revelation of the amount of the rate impact for residential and business customers.  
19.	We agree with AT&T that it is all but impossible to define meaningful customer classes.  Residential and business customers can have vastly different services within those two classes.  In addition, the information that the OCC is concerned with is adequately covered by the recommended language of (d) (III) and (IV) of that rule.  Customers should have enough information as to their rate increase, if any.  The Commission can always require additional notice if a particular application requires it.  We will, however modify the language of the rule as follows, to better inform consumers about potential rate impacts:
	(III)	Provide a brief description of the proposal and the scope of the proposal, including an explanation of the possible impact, including rate impact, if applicable, upon persons receiving the notice.
	(IV)	Identify which customers will be affected and identify the affected product or service.
4.	Rule 2006(b).
20.	Qwest objects to our decision on this rule which concerns CPA-prepared annual reports.  Qwest requests that the rule be modified to state that, if a provider publishes an annual report containing the opinion of a CPA, the provider shall post the annual report to its website within ten days of its publication.  If the provider does not have a website, it shall file two copies of this annual report with the Commission within 30 days of its publication.  We deny Qwest’s exceptions to this rule, and require that two copies of the annual report be filed with the Commission.  It is often quite difficult to navigate carriers’ websites to find documents.  It should not be burdensome for companies to file two copies of a report that is already published.  This rule is consistent with an energy rule containing the same requirement.
5.	Rule 2008(b).
21.	Qwest objects to this rule which relates to incorporation by reference.  Qwest suggests that Rule 2008(f) should incorporate by reference the FCC’s LNP First Report and Order, Decision No. FCC 96-286 in CC Docket No. 95-116.  The ALJ struck this rule because it was improper under § 24-4-103(12.5)(c)(I), C.R.S, the statute governing incorporation by reference.  The ALJ does not state which portion of the statute he believes the rule runs afoul of, but we agree with Qwest, and reincorporate the rules set forth in the FCC’s Order.  It is not ideal that the citation in our rules is to an FCC order, instead of the Code of Federal Regulations, but § 24-4-103(12.5)(I) requires only that the rules be published in the Federal Register, in which the rules attached to the FCC’s order have been published.  In a future rulemaking, we will change the citation from the FCC’s Order to the Code of Federal Regulations.  Rule 2008(f) shall read:
	(f)	The Commission incorporates by reference the rules promulgated by the FCC’s LNP First Report and Order, Decision No. FCC 96-286 in CC Docket No. 95-116, released July 2, 1996.  No later amendments to or editions of these requirements are incorporated into these rules.
6.	Rule 2123(c)(V) .
22.	The OCC does not object to the ALJ’s deletion of the proposed language contained in 2123(c)(V) which governed transmittal letters, as long as the current practice regarding transmittal letters is not changed by the rules.  This language was an attempt to formalize the process by which Staff obtained information when it has questions regarding transmittal letters.  We agree with the deletion because the current process works well, will remain unchanged, and because no carrier argues that this language is required.
7.	Rule 2401(b).
23.	The OCC argues that the definition of ‘fully distributed costs’ set forth in this rule needs modification to emphasize its context in this rule, and in relationship to the applicability language in Rule 2400(a).  The OCC proposes that we follow “economic standard” with: “FDC is a costing approach that fully allocates all costs to determine the revenue contribution of regulated and non-regulated affiliate operations.”   Alternatively, the OCC asks that language analogous to Gas Rule 4106(n) be inserted.  We deny the OCC’s exception to this rule.  The rest of Rule 2400 goes into great detail regarding cost segregation.  It is very clear what costs can be included and what may not.
8.	Rules 2893 and 2894.
24.	Qwest and the OCC point out an administrative error which we correct.  Rules 2893 and 2894 pertain to the No-Call list.  The Recommended Decision preserves the requirement that LECs provide certain information to the designated agent, but the rules attached to the Decision as Appendix A show a portion of rule 2893(a) and all of 2894 as stricken.  The language stricken should be retained, and we reinsert it in this order.
D.	Conclusion
25.	We grant Qwest’s and the OCC’s exceptions in part, and make other modifications to the rules on our own motion, as discussed above.  We lift the stay of the rules ordered in Decision No. C07-0190, and set an effective date of August 1, 2007.
II.	ORDER
A.	The Commission Orders That:
1.	The Office of Consumer Counsel’s motion for leave to reply to AT&T Communication of the Mountain States’ response to the OCC’s exceptions is granted.
2.	The Exceptions filed by Qwest Corporation and the OCC, are partially granted as set forth in the discussion above.
3.	The Telecommunication Rules appended to this Order as Attachment A are hereby adopted.
4.	We lift the stay ordered in Decision No. C07-0190.
5.	The rules shall become effective on August 1, 2007.
6.	The 20-day time period provided by § 40-6-114(1), C.R.S. to file an application for rehearing, reargument or reconsideration shall begin on the first day after the effective date of this Order.
7.	The opinion of the Attorney General of the State of Colorado shall be obtained regarding the constitutionality and legality of the rules.
8.	A copy of the rules adopted by the Order shall be filed with the Office of the Secretary of State for publication in The Colorado Register.  The rules shall be submitted to the Office of Legislative Legal Services, for review by the Committee on Legal Services as to whether the adopted rules conform with § 24-4-103, C.R.S.
9.	This Order is effective upon its Mailed Date.
B.	ADOPTED IN COMMISSIONERS’ WEEKLY MEETING
April 25, 2007.

	THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO

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Commissioners

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