Subchapter VII-A. Telecommunications Technology Investment Act
TITLE 26
Public Utilities
CHAPTER 1. PUBLIC SERVICE COMMISSION
Subchapter VII-A. Telecommunications Technology Investment Act
§ 704. Election of a telecommunications service provider to be governed by this subchapter.
(a) A telecommunications service provider offering services as defined within § 705 of this title or any other provider offering competitive services as defined in § 705(c)(1)b. of this title may elect or any telecommunication service provider that has previously elected may reelect, upon or after July 15, 2008, to determine its rates and prices for its telecommunications services pursuant to this subchapter. Upon the filing of written notice to the Commission of such an election or reelection, §§ 209(a), 215 of this title and, subchapter III of this chapter shall no longer apply except as specifically provided hereinafter and, in lieu thereof, this subchapter shall govern. If any provision of subchapter II of this chapter is inconsistent with the intent or provisions of this subchapter, the provisions of this subchapter shall control.
(b) An election by a service provider to be governed by this subchapter shall be effective for a term of not less than 3 years and shall automatically be extended for additional 3-year terms except as described below. Not less than 1 year prior to the expiration of any term, the service provider shall notify the Commission if it no longer wishes to be governed by this subchapter. Upon receipt of such notification, the Commission shall commence an open and public proceeding to determine what appropriate form of regulation should be applied to such provider under § 703 of this title. The Commission shall conclude any such proceeding by final order within 12 months from the filing of such notification and, in making its determination, the Commission shall give appropriate consideration to the form of regulation, if any, then applicable to competitors of such service provider.
(c) Nothing in this subchapter shall be construed to affect the rights, duties or obligations of telecommunications carriers, including those carriers who are parties to interconnection agreements approved by the Commission on or before January, 1, 2008, set forth in §§ 251-252 of the federal Telecommunications Act, 47 U.S.C. §§ 251-252, including but not limited to, the duty to negotiate interconnection agreements, to provide interconnection, to provide access to unbundled network elements, and to provide resale, nor shall anything in this subchapter affect the exercise of authority assigned to the Commission by §§ 251-252 of the federal Telecommunications Act, 47 U.S.C. §§ 251-252, including but not limited to the authority to arbitrate and approve interconnection agreements.
69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, §§ 1-7.;
§ 705. Definitions.
(a) "Basic services" shall mean:
(1) Individual residential local exchange access line and residential local usage;
(2) Individual business local exchange access line and business local usage to the extent the services are provided to business customers ordering single-line business at a particular address;
(3) Switched access services;
(4) White pages listings; whether listed, nonlisted or private;
(5) Telecommunications relay service;
(6) 911 enhanced emergency system; and
(7) Touchtone service.
(b) "Bundle" means a combination of retail services offered as a package, either at a single price or with the availability of the price for 1 or more services contingent on the purchase of other services, and includes any telephone service combined with any other telephone service or any nontelephone services, including services offered by an affiliate of a telephone company or an unregulated entity.
(c)(1) "Competitive services" shall mean:
a. All services which are not classified as "basic" in subsection (a) of this section above;
b. Any bundled service, even if the bundled service includes 1 or more basic services; or
c. Any new service other than switched access service, offered after July 15, 2008.
(2) For purposes of reclassifying basic service as competitive under § 706(c) of this title, competitive service shall be defined as services for which:
a. There are similar or substitute services or products which are offered and generally available within the relevant geographic area from at least 1 unaffiliated provider;
b. There is at least 1 unaffiliated service provider which is present and viable; and
c. There are no significant barriers to market entry.
(3) The Commission may also consider any other factors it deems relevant and in the public interest in making determinations regarding the classification of services as competitive.
(d) Phrases used to identify specific services within the foregoing classifications shall be given the meanings commonly ascribed to them in proceedings before the Commission or in the industry. In the event the Commission concludes any of such phrases to have uncertain meaning, the Commission shall, by order after a duly noticed hearing, adopt an appropriate definition.
69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, §§ 8, 9.;
§ 706. Offering, classification and abandonment of service.
(a) A service provider is not required to provide notice to the Commission for any new service.
(b) Competitive services, including new services, are not subject to mandatory tariff or other filing requirements.
(c) Upon application by the service provider, the Commission may, after notice and hearing, reclassify basic services as competitive. Any party proposing any such reclassification shall have the burden of supporting its proposal.
(d) Basic services may be abandoned pursuant to § 203A of this title. Notwithstanding the provisions of § 203A(c) of this title, a service provider may abandon a competitive service after providing the Commission and public with 30 days notice of its intention to do so.
(e) A service provider governed under this subchapter shall obtain Commission approval for mergers as set forth in § 215(a)(1) of this title or transfers of control as set forth in § 215(b) of this title; provided, however, that this subsection shall not apply to or restrict transactions between parent and subsidiary corporations or between entities of which at least 50% of the beneficial ownership is held by the same persons or entities prior to such merger or transfer of control. Applications and Commission approval of mergers or transfers of control shall be governed by § 215(c), (d) and (g) of this title.
69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, § 10.;
§ 707. Provision of basic services.
(a) Except for the determination of rate changes for basic services, which determinations shall be made pursuant to the provisions of this section, the offering of basic services in this State shall be subject to the provisions of subchapters I, II and V of this chapter and §§ 301, 303(a), 304 and 308 of this title and all Commission procedures, rules and regulations shall apply except to the extent inconsistent with this subchapter. Changes to the terms and conditions for the offering of a basic service, other than rate changes, shall continue to require Commission approval.
(b) After January 1 of the year immediately following the initial election or reelection made pursuant to § 704 of this title, rates for basic services, which for any reelecting provider shall be the rates in existence as of July 15, 2008, may be changed by the service provider or upon Commission initiative according to the following formula; provided, however, that a rate for a basic service may not be changed more than once in any calendar year:
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Change in Rate |
= |
Change in Gross Domestic Product-Price |
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_________________________________ |
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Inflater since last rate change minus 3%. |
The Gross Domestic Product-Price Inflation Index shall be that published by the United States Department of Commerce with the most recent available data for the relevant period or, in the event that such index is discontinued, the index determined by the Commission to most closely approximate the discontinued index.
(c) The following exceptions to the rate changes otherwise determined by the foregoing formula shall apply:
(1) A service provider may not increase switched access rates unless required to maintain parity with its interstate switched access rates.
(2) A service provider may elect not to implement all or a portion of a rate increase otherwise required by the formula.
(3) A service provider may elect to decrease rates in circumstances where the formula would require otherwise.
(4) Upon request by a service provider, the Commission may, after notice and hearing, establish a different rate change formula than that set forth in subsection (b) of this section for basic services provided by that service provider in light of the degree of competition, including intermodal competition, the service provider faces, if the Commission determines that the new formula will result in rates that are just and reasonable.
(5) In circumstances where a rate decrease would result from an application of the formula, the decreased rate shall not be lower than the incremental cost of providing that basic service as determined by the Commission.
(6) Upon application by a service provider, the rate structure for a basic service may be adjusted by the Commission where such adjustments would neither increase nor decrease the total revenue to the service provider from that particular basic service.
(7) Upon application by a service provider other than a local exchange carrier, the rates charged for a basic service which is purchased as a necessary component by such other provider of telecommunications services in order to offer its telecommunication services may be adjusted by the Commission upon a showing by such other service provider that the rate is not just and reasonable.
(8) Upon the application by any ratepayer or the service provider, rates for basic services may be adjusted with approval by the Commission in order to reflect an unforeseen change in the service provider's costs of providing telecommunications services, which change occurs for reasons beyond the control of the applicable service provider. Such change may include, but not be limited to, legal or regulatory changes which affect such costs, the method of accounting for such costs or taxes applicable to the service provider.
(d) Rate adjustments made pursuant to paragraphs (c)(5), (6) and (7) of this section may be made with the Commission's approval at any time and shall not be limited to once in any year.
(e) Notwithstanding subsection (b) of this section, no service provider may assess switched access rates pursuant to tariff that are higher than the switched access rates set forth in the tariffs of the service provider serving the largest number of local exchange access lines in the State.
69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, §§ 11-17.;
§ 708. Provision of competitive services.
(a) Except as otherwise provided in subsection (b) of this section below, any provider of a competitive service may determine its price and other terms and conditions under which such competitive service will be offered, and subchapter II of this chapter shall not apply to the provision of such services.
(b) When a basic service that has not been reclassified pursuant to § 706(c) of this title is included in a bundle that is deemed a competitive service under this subchapter, the efficiency, sufficiency, consistency and adequacy of such basic portion of the bundle shall be governed by subchapter II of this chapter, except as otherwise provided in this subchapter. In adopting or enforcing any regulations pursuant to this provision, the Commission may consider the degree of regulatory obligations imposed upon competing alternative service providers, including intermodal service providers.
(c) The Commission may, upon the filing of a written complaint, investigate claims related to predatory pricing of competitive services consistent with principals of federal and state antitrust law. If the Commission opens a proceeding to investigate such claims, the burden of proof shall be on the complainant. If the Commission finds that predatory pricing has occurred, the Commission may enjoin the conduct, but may not otherwise determine the price or other terms and conditions under which a competitive service will be offered.
69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, §§ 18-21.;
§ 709. Provision of competitive services.
Transferred by 76 Del. Laws, c. 272, § 18, eff. June 30, 2008, to § 708 of this title.
§§ 710, 711. Prohibition against cross-subsidization of competitive services; cost allocation.
Repealed by 76 Del. Laws, c. 272, § 22, eff. June 30, 2008.