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DATE: |
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TO: |
Director, Division of the Commission Clerk & Administrative Services (Bayó) |
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FROM: |
Division of Competitive Markets & Enforcement (Isler) Office of the General Counsel (McKay) |
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RE: |
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AGENDA: |
04/18/06 – Regular Agenda – Proposed Agency Action – Interested Persons May Participate |
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COMMISSIONERS ASSIGNED: |
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PREHEARING OFFICER: |
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SPECIAL INSTRUCTIONS: |
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FILE NAME AND LOCATION: |
S:\PSC\CMP\WP\060200.RCM.DOC |
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Issue 1:
Should the Commission grant Electronic Store Value Services, Inc. d/b/a eSVS, INC., as listed in Attachment A, cancellation of its IXC tariff and remove its name from the register with an effective date of March 8, 2006, due to bankruptcy; notify the Division of the Commission Clerk and Administrative Services that any unpaid Regulatory Assessment Fees, including statutory late payment charges, should not be sent to the Florida Department of Financial Services and request permission to write-off the uncollectible amounts; and require the company to immediately cease and desist providing intrastate interexchange telecommunications service in Florida?
Recommendation:
Yes, the company’s IXC tariff and Registration No. TJ958 should be granted a bankruptcy cancellation with an effective date of March 8, 2006. (Isler, McKay)
Staff Analysis:
See attached proposed Order.
Issue 2:
Should this docket be closed?
Recommendation:
Yes, if no protest is filed and upon issuance of a Consummating Order. (McKay)
Staff Analysis:
The Order issued from this recommendation will become final upon issuance of a Consummating Order, unless a person whose substantial interests are affected by the Commission’s decision files a protest within 21 days of the issuance of the Proposed Agency Action Order. The docket should then be closed upon issuance of a Consummating Order.
BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
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In re: Bankruptcy cancellation by Florida Public Service Commission of IXC Registration No. TJ958, issued to Electronic Stored Value Services, Inc. d/b/a eSVS, Inc., effective March 8, 2006. |
The following Commissioners participated in the disposition of this matter:
LISA POLAK EDGAR, Chairman
J. TERRY DEASON
ISILIO R. ARRIAGA
MATTHEW M. CARTER II
KATRINA J. TEW
NOTICE OF PROPOSED AGENCY ACTION ORDER
GRANTING CANCELLATION OF INTRASTATE INTEREXCHANGE COMPANY
TARIFF AND REMOVAL FROM THE REGISTER DUE TO CHAPTER 7 BANKRUPTCY
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.
Electronic Stored Value Services, Inc. d/b/a eSVS, Inc. currently holds Registration No. TJ958, issued by the Commission on October 4, 2004, authorizing the provision of intrastate interexchange telecommunications company (IXC) service.
Pursuant to Section 364.336, Florida Statutes, telecommunications companies must pay a minimum annual Regulatory Assessment Fee of $50 by January 30 of the subsequent year and provides for late payment charges as outlined in Section 350.113, Florida Statutes, for any delinquent amounts.
On March 3, 2006, this Commission received a letter dated February 27, 2006, from the company’s attorney, Eleanor Wm. Dahar, advising the company had filed for Chapter 7 bankruptcy protection on January 13, 2006. On March 3, 2006, our staff called the company’s attorney and was advised that a letter would be filed requesting cancellation due to the bankruptcy. On March 8, 2006, this Commission received a letter from Ms. Dahar, which advised the company had no customers and requested cancellation of the company’s IXC tariff and removal from the register due to the bankruptcy proceedings. The company also asked that any unpaid Regulatory Assessment Fees be written off.
The company has filed for bankruptcy, and pursuant to Section 362(b)(5) of the US Bankruptcy Code, the filing of a petition for bankruptcy relief acts as an automatic stay that enjoins a governmental entity from exercising its regulatory authority to collect a pre-petition debt. Additionally, in any bankruptcy liquidation or reorganization, secured creditors are given the highest priority in the distribution and, normally, receive all of the distributed assets. Regulatory Assessment Fees, late payment charges, and penalties owed by a company to the Florida Public Service Commission, as well as monetary settlements of cases resolving issues of failure to pay such fees, are not secured debts and, as a practical matter, are uncollectible in a bankruptcy proceeding where liquidation occurs. Therefore, this Commission would be prevented from collecting the Regulatory Assessment Fees owed by this company, and from assessing and collecting a penalty for failure to pay the fees.
We are vested with jurisdiction over this matter pursuant to Sections 364.02, 364.336, and 364.285, Florida Statutes. Accordingly, we hereby find that Electronic Stored Value Services, Inc. d/b/a eSVS, Inc. shall be granted cancellation of its IXC Registration No. TJ958 due to Chapter 7 bankruptcy, effective March 8, 2006. In addition, the 2005 and 2006 Regulatory Assessment Fees, and the statutory late payment charges for the year 2005, shall not be sent to the Florida Department of Financial Services for collection, and permission for this Commission to write-off the uncollectible amount shall be requested. Electronic Stored Value Services, Inc. d/b/a eSVS, Inc. shall immediately cease and desist providing intrastate interexchange telecommunications service in Florida.
Based on the foregoing, it is
ORDERED by the Florida Public Service Commission that Electronic Stored Value Services, Inc. d/b/a eSVS, Inc.'s Registration No. TJ958 to provide intrastate interexchange telecommunications service is hereby cancelled, effective March 8, 2006, due to bankruptcy. It is further
ORDERED that the outstanding Regulatory Assessment Fees, including statutory late payment charges, shall not be sent to the Department of Financial Services for collection. The Division of the Commission Clerk and Administrative Services, instead, shall request permission to write-off the uncollectible amount. It is further
ORDERED that if Electronic Stored Value Services, Inc. d/b/a eSVS, Inc.'s IXC tariff is cancelled and its name removed from the register in accordance with this Order, it shall immediately cease and desist providing intrastate interexchange company service 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.
By ORDER of the Florida Public Service Commission this day of , .
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BLANCA S. BAYÓ, Director Division of the Commission Clerk and Administrative Services |
( S E A L )
VM
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.