49-21 Telecommunications Companies

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CHAPTER 49-21TELECOMMUNICATIONS COMPANIES49-21-01. Definitions. As used in this chapter, unless the context otherwise requires:1."Access" means telecommunications services to connect a telecommunications customer or end user with a telecommunications company that allows for the origination or the termination, or both, of WATS, 800, and message toll telecommunications services and private line transport services.2."Competitive local exchange company" means any telecommunications company providing local exchange service, other than an incumbent local exchange carrier, whether by its own facilities, interconnection, or resale.3."Eligible telecommunications carrier" means a telecommunications company designated under section 214(e) of the federal act as eligible to receive universal service support in accordance with section 254 of the federal act.4."Essential telecommunications service" means the following services:a.Switched access;b.Installation of the service connection for other essential services from the end user's premises to the local exchange network; andc.Primary flat rate residence basic telephone service including the following service elements:(1)Billing and collecting of the telecommunications company's charges for the service.(2)Primary directory listing.(3)Access to directory assistance.(4)Access to emergency 911 service and emergency operator assistance in local exchange areas in which emergency 911 service is not available.(5)Except as provided in section 49-02-01.1, mandatory, flat-rate extended area service to designated nearby local exchange areas.(6)Transmission service necessary for the connection between the end user's premises and the local exchange central office switch including a trunk connection that has inward dialing and necessary signaling service such as touchtone used by end users for the service.5."Federal act" means the federal Communications Act of 1934, as amended by the federal Telecommunications Act of 1996 [47 U.S.C. 151 et seq.].6."Incumbent local exchange carrier" means a telecommunications company that meets the definition of section 251(h) of the federal act.7."Inside wire" and "premise cable" mean the telecommunications wire on the customer's side of a demarcation point or point of interconnection between the telecommunications facilities of the telecommunications company and the customer or premise owner established under title 47, Code of Federal Regulations, part 68, section 68.105.Page No. 18."Interexchangetelecommunicationscompany"meansapersonprovidingtelecommunications service to end users located in separate local exchange areas.9."Local exchange area" means a geographic territorial unit established by a telecommunications company for the administration of telecommunications services as approved and regulated in accordance with chapter 49-03.1.10."Management costs" means the reasonable direct actual costs a political subdivision incurs in exercising its police powers over the public rights of way.11."Mutual telephone company" means a telephone cooperative organized and operating subject to the provisions of this chapter, and such a cooperative shall also be subject to the general law governing cooperatives, except where such general law is in conflict with this chapter.12."Nonessential telecommunications service" means any telecommunications service, other than those essential telecommunications services listed in subsection 4 that a customer has the option to purchase either in conjunction with or separate from any essential telecommunications service.13."Price" means any charge set and collected by a telecommunications company for anytelecommunicationsserviceofferedbyittothepublicorothertelecommunications companies.14."Private line transport service" means a telecommunications service to a customer over a circuit dedicated to the customer's exclusive use, within a local exchange area, or between or among local exchanges. Private line transport service includes services to customers who are end users and services to telecommunications companies.15."Public right of way" means the area on, below, or above a public roadway, highway, street, bridge, cartway, bicycle lane, or public sidewalk in which a political subdivision has a legal interest, including other dedicated rights of way for travel purposes, utility easements, and all the area within seventy-five feet [22.86 meters] of the centerline of any county or township highway right of way over which a board of county commissioners or a board of township supervisors has control under section 24-01-42. The term does not include the airwaves above a public right of way with regard to cellular or other wireless telecommunications or broadcast service or utility poles owned by a political subdivision or a municipal utility or a telecommunications company, in whole or part.16."Rural telephone company" means a telecommunications company that meets the definition of section 153(37) of the federal act.17."Service element" means a telecommunications function or service component that is not useful to the user unless it is combined with one or more other telecommunications functions or service components.18."Switched access" means access to include:a.Local exchange central office switching and signaling;b.Operator and recording intercept of calls;c.Termination of end user lines in the local exchange central office;d.The carrier common line charge for the line between the end user's premises and the local exchange central office;Page No. 2e.Billing and collection recording for interexchange carriers to which the local exchange carrier provides access service; andf.Telecommunicationsservice,includingconnections,providedtoallowtransmission service and termination between an interexchange company's premises and the local exchange central office switch for the origination or termination of the interexchange company's switched telecommunications services.19."Telecommunications company" means a person engaged in the furnishing of telecommunications service within this state.20."Telecommunications service" means the offering for hire of telecommunications facilities, or transmitting for hire telecommunications by means of such facilities whether by wire, radio, lightwave, or other means.49-21-01.1.Inapplicability of provisions of chapter.Telecommunications servicedoes not include and the provisions of this title do not apply to:1.The one-way transmission of radio or television signals for broadcast purposes, including the one-way transmission of videoprogramming or other programming service by a cable system as well as subscriber interaction, if any, which is required for the selection of such videoprogramming or other programming service.2.A hospital, hotel, motel, or similar place of temporary accommodation owning or operating message switching or billing equipment solely for the purpose of reselling telecommunications services to its patients or guests.3.Telegraph service.4.Except as provided in section 49-21-01.5, home, business, and coinless or coin-operated public or semipublic telephone terminal equipment and the use of such equipment.5.The lease of telecommunications equipment by a telecommunications company from a person whose business is the leasing or sale of such equipment.6.Billing and collection services.7.Inside wire and premise cable installation and maintenance.8.Directory services that are not essential.9.Private line transport service.10.Services or facilities provided by a system or institution of higher education to:a.Institution employees or students at institution facilities or housing owned or leased by the institution;b.Affiliated organizations, including alumni operations and research foundations, formed for the purpose of supporting the institution or leased by the institution and offering products and services intended primarily for the benefit of institution employees, students, or guests;c.Other persons or entities located on property owned or leased by the institution and offering products and services intended primarily for the benefit of institution employees, students, or guests;Page No. 3d.Casual users using the institution's facilities for conferences, seminars and other similar special events, and broadcasters of athletic events;e.Occupants of technology parks, or business incubators receiving secretarial or business startup support in facilities owned or leased by the institution during a business startup phase for a term not to exceed four years or until August 1, 2005, whichever is later; andf.Educational, governmental, and nonprofit users of system or institution interactive videoconferencing site facilities and associated network services.Institutions may not unreasonably restrict access by a telecommunications company to institution facilities for the purpose of furnishing telecommunications services to residents in institution housing or to other persons or entities leasing institution facilities, except institutions may limit access to residence halls. Institutions may require reasonable payment for and adopt reasonable restrictions on the use of institution telecommunications infrastructure to avoid service interruptions or increased maintenance or administrative burdens.49-21-01.2. Exemption - Rate regulation. Except as provided for in this chapter andsections 49-02-01.1, 49-02-21, 49-02-22, and 49-04-02.1, telecommunications companies and all telecommunications services are exempt from the provisions of chapters 49-02, 49-04, 49-05, and 49-06. Telecommunications companies and services are not subject to rate or rate of return regulation. Any telecommunications company may elect not to be subject to the provisions of this section and section 49-21-01.3, and to be subject to rate and rate of return regulation, by filing an election with the commission in writing. For telecommunications companies with over fifty thousand subscribers, the election not to be exempt from rate and rate of return regulation is a one-time, irrevocable election.Notwithstanding an election filed under this section, atelecommunications company is not obligated to pay any fee for filing a price schedule or tariff.49-21-01.3.Certain price increases prohibited - Essential telecommunicationsservices. Changes in essential telecommunications services prices are prohibited except as specifically provided for in chapter 49-21 and section 49-02-01.1.1.All increases or decreases in governmentally imposed surcharges and any financial impact on cost of essential telecommunications services caused by governmentally imposed changes in taxes, accounting practices, or separations procedures or resulting in relocation, change, or removal of facilities must be fully reflected in any price for those services within thirty days of the effective date of the surcharge or change, except price changes related to the costs of relocation, change, or removal of facilities are not subject to a thirty-day implementation requirement. This section does not prohibit the lowering of a price of an essential service based on reasonable business practices in a competitive environment provided that no price change may be anticompetitive or otherwise in violation of antitrust or unfair trade practice laws.2.Whenever a price change provided for in this section is less than three percent of the existing price, notwithstanding any time limitations in this section, a telecommunications company may accumulate such changes in price subject to the following conditions:a.Price increases may be accumulated up to a percentage total of five percent.b.Price decreases may be accumulated only to the extent that there is an offsetting accumulated price increase of an equal or greater percentage. Accumulated price decreases may never exceed accumulated price increases.c.Price decreases may be accumulated only for two years beginning January first of the year in which the change is allowed.Page No. 4d.Accumulated price increases may be implemented at the discretion of the telecommunications company.e.The effective date of implementation of an accumulated price change may be prospective only, and in accordance with the filing requirements of section 49-21-04.3.The monthly price of residence service for telecommunications companies with over fifty thousand subscribers may be up to eighteen dollars.4.Subject to the limitations of this section, this chapter does not prohibit an incumbent local exchange carrier from deaveraging local exchange service prices provided the incumbent local exchange carrier agrees to amend its commission-approved interconnection agreements to allow for deaveraged interconnection prices effective concurrently with the deaveraged retail prices.49-21-01.4. Purchase of essential telecommunications services. Customers of anytelecommunications company that provides essential telecommunications services must be permitted to purchase essential telecommunications services separate from all other telecommunications services. A telecommunications company may disconnect local exchange or essential telecommunications services only pursuant to rules adopted by the commission.49-21-01.5. Access code number usage. A person who, in the ordinary course ofoperations, makes telephones available to the public or to transient users of that person's premises, for intrastate telephone calls using a provider of operator services shall ensure that each of its telephones presubscribed to a provider of operator services allows the consumer to use "toll free '8XX'", "950", or "101XXXX 0+" access code numbers to obtain access to the provider of operator services desired by the consumer. Each such person shall ensure that no charge to the consumer for using a "toll free '8XX'", "950", or "101XXXX 0+" access code number is greater than the amount charged for calls placed using the presubscribed provider of operator services.49-21-01.6. Call identification services - Charges prohibited - Notice - Exceptions.1.Any telephone call identification service offered in this state by a telecommunications company must allow a caller on a per-call and a per-line basis to withhold display of a caller's telephone number from the telephone instrument of the individual receiving the telephone call placed by the caller.2.A telecommunications company offering call identification services may not charge any person who requests that the call identification services be blocked on a per-call basis. Per-line blocking must be provided without charge for residential customers and business customers with special needs, such as law enforcement and domestic violence agencies.3.A telecommunications company offering a call identification service shall notify its subscribers that their calls may be identified to a called party at least thirty days before the service is offered.4.This section does not apply to:a.An identification service that is used within the same limited system, including a Centrex, Centron, or private branch exchange (PBX) system, as the recipient telephone.b.An identification service that is used on a public agency's emergency telephone line or on a line that receives the primary emergency telephone number (911).Page No. 5c.An identification service provided in connection with legally sanctioned call tracing or tapping procedures.d.An identification service provided in connection with any "700", "800", or "900" access code telecommunications service, or any voice or data store and forward service.e.Any other service that, after investigation by the commission, the commission finds that a nondisclosure or similar agreement will protect the privacy interests of a calling party.49-21-01.7. Powers in general. The commission has the power to:1.Investigate all methods and practices of telecommunications companies.2.Require telecommunications companies to conform to the laws of this state and to all rules, regulations, and orders of the commission not contrary to law.3.Require reports as to rates, prices, and terms and conditions of service in effect and used by the company, and all other information deemed relevant and necessary by the commission in the exercise of its authority.4.Compel obedience to its lawful orders by proceedings of mandamus or injunction or other proceedings, in the name of the state, in any court having jurisdiction of the parties or of the subject matter.5.Hold hearings on good cause being shown, upon notice and subject to the provisions of chapter 28-32.6.Employ and fix the compensation of experts, engineers, auditors, attorneys, and other such assistance for complaints, investigations, and other proceedings relating to telecommunications companies.The expense of any hearings, and thecompensation and actual expenses of any employees of the commission while engaged upon any such hearings must, upon the order of the commission, be paid by the telecommunications company involved in such hearings. The commission shall ascertain the exact cost and expenditure. After giving the telecommunications company notice and opportunity to demand a hearing, and after a hearing, if any, is held, the commission may render a bill and make an order for payment. The bill and order must be delivered by certified mail or personal delivery to the managing officer of the telecommunications company. Upon receipt of the bill and order for payment, the telecommunications company has thirty days within which to pay the amount billed. All amounts not paid within thirty days after receipt of the bill and order for payment thereafter draw interest at the rate of six percent per annum. Amounts collected by the commission under this subsection must be deposited in a special account within the public service commission.7.Act upon an application for a certificate of public convenience and necessity under chapter 49-03.1 consistent with section 253 of the federal act, provided a telecommunications company is not required to obtain a certificate of public convenience and necessity to resell telecommunications services.8.Mediate or arbitrate agreements for interconnection, services, or network elements under sections 251 and 252 of the federal act.9.Approve or reject agreements for interconnection, services, or network elements under sections 251 and 252 of the federal act.10.Receive and approve or reject a statement of generally available terms under section 252(f) of the federal act.Page No. 611.Determine whether to terminate a rural telephone company's exemption under section 251(f) of the federal act.12.Designate telecommunications companies as eligible telecommunications carriers to receive universal service support under sections 214 and 254 of the federal act.13.Designate geographic service areas for the purpose of determining universal service obligations and support mechanisms under the federal act.14.Investigate and resolve numbering issues relating to assignment of NII dialing codes and resolve numbering resource conservation administration and area code assignment issues in accordance with the federal communications commission's numbering resource orders. The commission's jurisdiction with regard to numbering resource conservation administration is limited to those prefixes that are unassigned on January 1, 2005.15.Adopt rules consistent with state law as are necessary to carry out the powers in subsections 7 through 13 provided the rules may not impose obligations on a telecommunications company that are greater than obligations imposed under the act.16.Grant suspensions or modifications under section 251(f) of the federal act.49-21-01.8.Eligibletelecommunicationscompanyrequirements.Atelecommunications company may not be an eligible telecommunications carrier unless the company offers all services supported by federal universal service mechanisms throughout the study area.49-21-02. Telecommunications companies - Common carriers - Public policy. Allpersons providing telecommunications service within this state shall be common carriers and are hereby declared to be affected with a public interest and subject to regulation and general supervision by the commission.Among the purposes to be served by such regulation andsupervision are:1.Tomakeavailabletoallpeopleofthisstatemodernandefficienttelecommunications services at the most economic and reasonable cost.2.To allow the development of competitive markets for telecommunications services where such competition does not unreasonably distract from the efficient provision of telecommunications services to the public, and to lessen regulation in whole or in part of those telecommunications services which become subject to effective competition.3.To establish and maintain reasonable charges for telecommunications services without unreasonable discrimination, or unfair or destructive competitive practices.4.To ensure that regulated charges do not include the costs of unregulated activities.5.To encourage the establishment and maintenance of a strong telecommunications industry.49-21-02.1. 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49-21 Telecommunications Companies