DATE:	November 23, 2004
TO:	Director, Division of the Commission Clerk & Administrative Services (Bayó)
FROM:	Division of Competitive Markets & Enforcement (Isler) Office of the General Counsel (Rockette-Gray)
RE:	Docket No. 040990-TA – Compliance investigation of NUMINA COMMUNICATIONS CORP. for apparent violation of Rule 25-4.0161, FAC, Regulatory Assessment Fees; Telecommunications Companies.
AGENDA:	12/07/04 – Regular Agenda – Proposed Agency Action – Interested Persons May Participate
CRITICAL DATES:		None
SPECIAL INSTRUCTIONS:		None
FILE NAME AND LOCATION:		S:\PSC\CMP\WP\040990.RCM.DOC

 

 Discussion of Issues

Issue 1:  Should the Commission impose a penalty and a cost of collection, together totaling $500, or cancel the alternative access vendor (AAV) Certificate No. 8342 issued to NUMINA COMMUNICATIONS CORP., with an effective date of December 31, 2004, for an apparent first violation of Rule 25-4.0161, Florida Administrative Code, Regulatory Assessment Fees; Telecommunications Companies, incorporated by Rule 25-24.745, Florida Administrative Code?

Recommendation:  Yes.  (Isler; Rockette-Gray)

Staff Analysis:  See attached proposed Order.

 

Issue 2:  Should this docket be closed?

Recommendation:  Staff recommends that the Order issued from this recommendation will become final and effective upon issuance of a Consummating Order, unless a person whose substantial interests are affected by the Commission’s decision files a protest that identifies with specificity the issues in dispute, in the form provided by Rule 28-106.201, Florida Administrative Code, within 21 days of the issuance of the Proposed Agency Action Order.  As provided by Section 120.80(13)(b), Florida Statutes, any issues not in dispute should be deemed stipulated.  If the company fails to timely file a protest and to request a Section 120.57, Florida Statutes, hearing, the facts should be deemed admitted and the right to a hearing waived.  If the company fails to pay the penalty and cost of collection, together totaling $500, and Regulatory Assessment Fees, including statutory late payment charges, within fourteen (14) calendar days after the issuance of the Consummating Order, the company’s certificate should be cancelled administratively and the collection of the past due Regulatory Assessment Fees, including statutory late payment charges, should be referred to the Florida Department of Financial Services for further collection efforts.  If the company’s certificate is cancelled in accordance with the Commission’s Order from this recommendation, the company should be required to immediately cease and desist providing alternative access vendor services in Florida.  This docket should be closed administratively either upon receipt of the payment of the penalty and cost of collection, and Regulatory Assessment Fees, including statutory late payment charges, or upon cancellation of the company’s certificate.  (Rockette-Gray)

Staff Analysis:  Staff recommends that the Commission take action as set forth in the foregoing staff recommendation statement.

BEFORE THE PUBLIC SERVICE COMMISSION

 

                                                                       

In re: Compliance investigation of NUMINA COMMUNICATIONS CORP. for apparent violation of Rule 25-4.0161, FAC, Regulatory Assessment Fees; Telecommunications Companies.

DOCKET NO. 040990-TA ORDER NO. ISSUED:

 

The following Commissioners participated in the disposition of this matter:

 

BRAULIO L. BAEZ, Chairman

J. TERRY DEASON

LILA A. JABER

RUDOLPH “RUDY” BRADLEY

CHARLES M. DAVIDSON

 

 

NOTICE OF PROPOSED AGENCY ACTION ORDER IMPOSING PENALTY AND COLLECTION COST, AND REQUIRING PAYMENT OF DELINQUENT REGULATORY ASSESSMENT FEE OR CANCELLING AAV CERTIFICATE FOR VIOLATION OF RULE 25-4.0161, F.A.C., REGULATORY ASSESSMENT FEES; TELECOMMUNICATIONS COMPANIES

 

BY THE COMMISSION:

 

            NOTICE is hereby given by the Florida Public Service Commission that the action discussed herein is preliminary in nature and will become final unless a person whose interests are substantially affected files a petition for a formal proceeding, pursuant to Rule 25-22.029, Florida Administrative Code.

 

Pursuant to Section 364.336, Florida Statutes, alternative access vendors (AAVs) must pay a minimum annual Regulatory Assessment Fee of $50 if the certificate was active during any portion of the calendar year.  Pursuant to Rule 25-4.0161(2), Florida Administrative Code, the form and applicable fees are due to the Florida Public Service Commission by January 30 of the subsequent year.  Pursuant to Section 350.113(4), Florida Statutes, the Regulatory Assessment Fee return forms, for the period of January 1 through December 31, are mailed to entities at least 45 days prior to the date that payment of the fee is due.  All entities that apply for certification receive a copy of our rules governing alternative access vendor telecommunications service.

The Division of the Commission Clerk & Administrative Services advised our staff that NUMINA COMMUNICATIONS CORP. had not paid the Regulatory Assessment Fee required by Section 364.336, Florida Statutes, and Rule 25-4.0161, Florida Administrative Code, for the year 2003.  Also, accrued statutory late payment charges required by Section 350.113(4), Florida Statutes, for the year 2003 had not been paid.  The entity was scheduled to remit its 2003 Regulatory Assessment Fee by January 30, 2004.  In addition, on May 7, 2004, our staff wrote the company and advised that payment of the 2003 Regulatory Assessment Fee should be paid by May 28, 2004, to avoid a docket from being established.  As of November 15, 2004, the company has not paid the past due Regulatory Assessment Fee, including statutory late payment charges, requested cancellation of its certificate as required by Rule 25-24.735, Florida Administrative Code, or proposed a settlement.

Pursuant to Section 364.285, Florida Statutes, this Commission may impose a penalty or cancel a certificate if a company refuses to comply with Commission rules.  Rule 25-24.735, Florida Administrative Code, establishes the requirements for cancellation of a certificate.  The rule provides for this Commission to cancel a certificate on its own motion for violation of Commission Rules, Florida Statutes, or Orders.

Accordingly, we hereby find it appropriate to cancel NUMINA COMMUNICATION CORP.’s certificate for failure to comply with Section 364.336, Florida Statutes, and Rule 25-4.0161, Florida Administrative Code, unless the company pays a penalty and cost of collection, together totaling $500, and remits the past due Regulatory Assessment Fee, along with accrued statutory late payment charges, to the Florida Public Service Commission.  The company must comply with these requirements within 14 days after the issuance of the Consummating Order, as explained in the Notice of Further Proceedings attached to this Order.  The payment should be identified with the docket number and the company’s name.  For any payment (full or partial) of the penalty and cost of collection received, the cost of collection will be subtracted and will be deposited in the Florida Public Service Regulatory Trust Fund, pursuant to Section 350.113, Florida Statutes.  Any monetary amount exceeding the cost of collection will be remitted to the Florida Department of Financial Services for deposit in the State of Florida General Revenue Fund, pursuant to Section 364.285(1), Florida Statutes.

            When the appropriate fee, statutory late payment charges, penalty and collection cost are received, this docket shall be closed.  Should the company fail to comply with this Order within 14 days after the issuance of the Consummating Order, the entity shall have its certificate cancelled, effective December 31, 2004.  The collection of the past due Regulatory Assessment Fee, including statutory late payment charges, shall be referred to the Florida Department of Financial Services for further collection efforts, and the docket shall be closed.  The cancellation of the certificate in no way diminishes the entity’s obligation to pay applicable delinquent Regulatory Assessment Fees and accrued statutory late payment charges.  If the entity’s certificate is cancelled in accordance with this Order, it shall immediately cease and desist providing alternative access vendor services in Florida.  We are vested with jurisdiction over this matter pursuant to Sections 350.113, 364.336, 364.337, and 364.285, Florida Statutes.

            Based on the foregoing, it is

 

ORDERED by the Florida Public Service Commission that NUMINA COMMUNICATIONS CORP. shall pay a penalty and cost of collection, together totaling $500, the past due Regulatory Assessment Fee, and statutory late payment charges to the Florida Public Service Commission for failure to comply with Section 364.336, Florida Statutes, and Rule 25-4.0161, Florida Administrative Code, within 14 days after the issuance of the Consummating Order.  The cost of collection will be subtracted from any monies collected as payments (full or partial) of the penalty and cost of collection, and will be deposited, along with the past due Regulatory Assessment Fees, in the Florida Public Service Regulatory Trust Fund, pursuant to Section 350.113, Florida Statutes.  The statutory late payment charges and any portion of the penalty and cost of collection exceeding the cost of collection will be remitted to the Florida Department of Financial Services for deposit in the State of Florida General Revenue Fund, pursuant to Section 364.285(1), Florida Statutes.  It is further

            ORDERED that should the entity fail to comply with this Order, NUMINA COMMUNICATIONS CORP.’s certificate shall be cancelled, effective December 31, 2004, and this docket shall be closed.  It is further

 

            ORDERED that the cancellation of the certificate in no way diminishes the entity’s obligation to pay applicable delinquent Regulatory Assessment Fees, and accrued statutory late payment charges.  Any unpaid Regulatory Assessment Fees, and accrued statutory late payment charges, shall be referred to the Florida Department of Financial Services for further collection efforts.  It is further

 

            ORDERED that if the entity’s certificate is cancelled in accordance with this Order, that entity shall immediately cease and desist providing alternative access vendor telecommunications services in Florida.  It is further

 

            ORDERED that the provisions of this Order, issued as proposed agency action, shall become final and effective upon the issuance of a Consummating Order unless an appropriate petition, in the form provided by Rule 28-106.201, Florida Administrative Code, is received by the Director, Division of the Commission Clerk and Administrative Services, 2540 Shumard Oak Boulevard, Tallahassee, Florida 32399-0850, by the close of business on the date set forth in the "Notice of Further Proceedings" attached hereto.  It is further

 

            ORDERED that in the event this Order becomes final, this docket shall be closed upon receipt of the imposed penalty and cost of collection, together totaling $500, and Regulatory Assessment Fee, including statutory late payment charges, or upon cancellation of the certificate.

            By ORDER of the Florida Public Service Commission this            day of                               ,             .

 

 

 

 

	BLANCA S. BAYÓ, Director Division of the Commission Clerk and Administrative Services

 

 

( S E A L )

 

DRG

NOTICE OF FURTHER PROCEEDINGS OR JUDICIAL REVIEW

 

            The Florida Public Service Commission is required by Section 120.569(1), Florida Statutes, to notify parties of any administrative hearing that is available under Section 120.57, Florida Statutes, as well as the procedures and time limits that apply.  This notice should not be construed to mean all requests for an administrative hearing will be granted or result in the relief sought.

 

            Mediation may be available on a case-by-case basis.  If mediation is conducted, it does not affect a substantially interested person's right to a hearing.

 

            The action proposed herein is preliminary in nature. Any person whose substantial interests are affected by the action proposed by this order may file a petition for a formal proceeding, in the form provided by Rule 28-106.201, Florida Administrative Code.  This petition must be received by the Director, Division of the Commission Clerk and Administrative Services, 2540 Shumard Oak Boulevard, Tallahassee, Florida 32399-0850, by the close of business on                               .

 

             In the absence of such a petition, this order shall become final and effective upon the issuance of a Consummating Order.

 

            Any objection or protest filed in this/these docket(s) before the issuance date of this order is considered abandoned unless it satisfies the foregoing conditions and is renewed within the specified protest period.