DATE:	January 10, 2007
TO:	Director, Division of the Commission Clerk & Administrative Services (Bayó)
FROM:	Division of Competitive Markets & Enforcement (Casey) Office of the General Counsel (Teitzman, Scott)
RE:	Docket No. 060581-TP – Petition of Alltel Communications, Inc. for designation as eligible telecommunications carrier (ETC) in certain rural telephone company study areas located partially in Alltel's licensed area and for redefinition of those study areas.   Docket No. 060582-TP – Petition of Alltel Communications, Inc. for designation as eligible telecommunications carrier (ETC) in certain rural telephone company study areas located entirely in Alltel's licensed area.
AGENDA:	01/23/07 – Regular Agenda – Proposed Agency Action – Interested Persons May Participate – Application for Designation as Wireless Eligible Telecommunications Carrier
COMMISSIONERS ASSIGNED:		All Commissioners
PREHEARING OFFICER:		Littlefield
CRITICAL DATES:		None
SPECIAL INSTRUCTIONS:		None
FILE NAME AND LOCATION:		S:\PSC\CMP\WP\060581.RCM.DOC

 

 Case Background

On September 23, 2003, the Commission issued Order No. PSC-03-1063-DS-TP (Declaratory Statement), in Docket Nos. 030346-TP and 030413-TP regarding its jurisdiction over commercial mobile radio service (CMRS) providers for purposes of determining eligibility as eligible telecommunications carriers (ETC).  (See Attachment A)  In the Declaratory Statement, the Commission ruled that it does not have the jurisdiction because the Florida Legislature expressly excluded commercial mobile radio services (CMRS) providers  from the jurisdiction of the Commission. 

On August 30, 2006, Alltel Communications, Inc. (Alltel) filed two Applications for Designation as an Eligible Telecommunications Carrier in the State of Florida (Applications).[1]  Docket 060581-TP was opened to address Alltel’s application for redefinition of the service area requirement in the rural telephone company areas.  Docket 060582-TP was opened to address the application requesting ETC designation in rural telephone company service areas that are located entirely within Alltel’s licensed service area in the State of Florida.

According to Alltel, it intends to obtain high cost support in the rural telephone company areas to expand its coverage to include unserved or underserved areas, to increase the service quality and reliability of its network, and to speed the delivery of advanced wireless service to the citizens of Florida.  Furthermore, if designated as an ETC, Alltel asserts that it will offer a basic universal service package to subscribers who are eligible for Lifeline support.         

Alltel claims that it satisfies all of the statutory and regulatory prerequisites for designation as an ETC.  Alltel asserts that 47 U.S.C §214(e)(2) of the Telecommunications Act of 1996 (the Act) authorizes state commissions to designate ETC status for federal universal service purposes, including wireless ETCs.  As further support, Alltel cites to the Federal Communications Commission’s (FCC) March 17, 2005, Federal-State Joint Board on Universal Service Report and Order, which states that 47 U.S.C §214(e)(2) of the Act ‘provides state commissions with the primary responsibility for designating ETCs.’

Alltel also claims that the Commission has jurisdiction over CMRS providers in order to designate them as ETCs.  In its Applications, Alltel acknowledges the Commission’s aforementioned Declaratory Statement, but notes that the Florida Legislature has since enacted Section 364.011, Florida Statutes, which, Alltel asserts, sets forth an exception.  Alltel states that this exception allows the Commission oversight to the extent “specifically authorized by federal law.”  Since §214(e)(2) of the Act authorizes state commissions to designate eligible telecommunications status on CMRS providers, Alltel contends that the recent change in Florida law, i.e. Section 364.011, now confers upon the Commission the authority to grant Alltel’s request for designation as an ETC.

On October 11, 2006, Embarq Florida, Inc. (Embarq) petitioned to intervene in both dockets.  On January 8, 2007, Order No. PSC-07-0020-PCO-TP was issued granting intervention to Embarq in this proceeding.  On December 12, 2006, Embarq filed a Notice of Withdrawal of Petition to Intervene in Docket No. 060582-TP.

This recommendation addresses whether the Commission has jurisdiction to designate CMRS providers as ETCs.

Discussion of Issues

Issue 1:  Does the Commission have authority to designate a commercial mobile radio service provider as an eligible telecommunications carrier?

Recommendation:  Yes.  Staff believes with the enactment of Section 364.011, Florida Statutes, the legislature has granted the Commission limited authority over CMRS providers to those matters specifically authorized by federal law.  Because pursuant to §214(e)(2) of the Act, states are authorized to designate eligible telecommunications carrier status on CMRS providers, staff believes the Commission has authority to consider applications by CMRS providers for ETC designation.  (Teitzman, Scott)

 

Staff Analysis:  As stated in the Case Background, Alltel has filed two Applications for designation as an ETC for federal universal service purposes.  The threshold question is whether the Commission has the authority to designate Alltel as an ETC under the current statutory language.  As of the filing of this recommendation, no party has intervened in opposition to Alltel’s arguments regarding the Commission’s authority to consider applications by CMRS providers for ETC designation.         

            The crux of Alltel’s argument is that subsequent to the Commission’s Declaratory Statement, the Legislature enacted Section 364.011, Florida Statutes, setting forth that Wireless telecommunications, including CMRS providers, are exempt from Commission jurisdiction except to the extent specifically authorized by federal law.  Alltel argues further that pursuant to §214(e)(2) of the Act, state commissions are authorized to designate ETC status on CMRS providers.  Consequently, Alltel asserts that pursuant to Section 364.011, Florida Statutes, in concert with §214(e)(2) of the Act, the Commission now has the authority to consider applications for ETC designation filed on behalf of CMRS providers.  Upon review of current state and federal law, staff agrees with Alltel’s assertion.     

            Although staff’s recommendation results in a different conclusion than the Commission’s holding in the Declaratory Statement, staff does not believe its recommendation is inconsistent with the Commission’s rationale as set forth in the Declaratory Statement.  In the Declaratory Statement the Commission recognized that as a legislatively created body, the jurisdiction of the Commission is that conferred by statute.  Consequently, the Commission held that pursuant to  Section 364.02(12)(c), Florida Statutes, CMRS providers were not telecommunications companies and therefore, the Commission lacked jurisdiction over these providers.  The Commission also noted that the legislature provided one exception at that time, although not applicable in its consideration, CMRS providers were liable for any taxes imposed by the State pursuant to Chapters 202, 203, and 212, Florida Statutes, and any fees assessed pursuant to Chapter 364, Florida Statutes. (Attachment A at 3)

 

            Staff believes that after the enactment of Section 364.011, Florida Statutes, a similar analysis leads to the conclusion that the Commission now has jurisdiction to consider CMRS applications for ETC designation.  Although Section 364.011, Florida Statutes, clearly excludes CMRS providers from the Commission’s jurisdiction, the legislature provided an exception to the Commission’s lack of authority in matters specifically authorized by federal law.  As noted by Alltel, §214(e)(2) of the Act sets forth that a “state commission shall upon its own motion or upon  request designate a common carrier that meets the requirements of paragraph (1)[2] as an eligible telecommunications carrier for a service area designated by the State commission.”

 

            Staff notes that in the Act, Congress has specifically designated areas in which it anticipates that state commissions should have a role.[3]  However, as noted by the Commission in the Declaratory Statement, the Commission’s powers, duties and authority are only those conferred expressly or impliedly by statute of the state. (Attachment A at 5-6) For example, although the Act sets forth in §252 that state commissions shall arbitrate interconnection agreements, this does not by itself confer jurisdiction upon the Commission.  Rather, it is Section 364.012(2), which authorizes the Commission to arbitrate and enforce interconnection agreements pursuant to federal law where the Commission derives its authority. 

           

            The U.S. District Court for the Northern District of Florida has upheld the cooperative federalism set forth in the Act.  The Court found that “[n]othing in the United States Constitution prevents the federal and state governments from taking cooperative action, nor does the Constitution prevent Congress from allowing state administrative agencies to participate in a federal regulatory scheme if they so choose.  MCI Telecommunications Corp. v. BellSouth Telecommunications, Inc., 112 F. Supp. 2d 1286 at fn 2 (N.D. Fla. 2000), affirmed by 298 F.3d 1269(11^th Cir. 2002).

 

            Similar to the legislature’s grant of authority to the Commission over interconnection agreements in accordance with federal law, staff believes that the exception contained in Section 364.011, Florida Statutes, affirmatively sets forth that the Commission may assert jurisdiction over CMRS providers to the extent specifically authorized by federal law, i.e., where Congress has deemed it appropriate.  In the instant case, §214(e)(2) of the Act sets forth that state commissions are authorized to designate ETC status on CMRS providers.  Unlike the statutory scheme at the time of issuance of the Declaratory Statement, staff believes with the enactment of Section 364.011, Florida Statutes, the legislature has set forth a limited area upon which the Commission may assert authority over CMRS providers.  Accordingly, because it is authorized by federal law, staff believes, the Commission has authority to consider applications by CMRS providers for ETC designation.

 

            For purposes of clarity, staff notes that this recommendation is limited to the Commission’s authority, pursuant to state and federal law, to consider applications by CMRS providers for ETC designation.  Section 364.011, Florida Statutes, is quite clear that unless authorized by federal law, the Commission retains no jurisdiction over CMRS providers.  Furthermore, this recommendation is limited to the jurisdictional question and reaches no conclusion on the merits of Alltel’s Application.  If the Commission approves staff’s recommendation and finds that it does have authority to address Alltel’s Application, the Commission will have an opportunity to consider the merits of Alltel’s Application at a later date.

Conclusion

            Staff believes with the enactment of Section 364.011, Florida Statutes, the legislature has granted the Commission limited authority over CMRS providers to those matters specifically authorized by federal law.  Because pursuant to §214(e)(2) of the Act, states are authorized to designate ETC status on CMRS providers, staff believes the Commission has authority to consider applications by CMRS providers for ETC designation. 

 

 

 

 

 

 

Issue 2:  Should these dockets be closed?

Recommendation:  No. If the Commission approves staff’s recommendation in Issue 1, then the dockets should remain open for further proceedings relating to Alltel Wireless’ Application.    A person whose substantial interests are affected may file a protest within 21 days of the Commission Order.  If no protest is filed by a person whose interests are substantially affected within 21 days of the Commission order, the Commission order shall become final upon the issuance of a consummating order.  

            If the Commission denies staff’s recommendation in Issue 1 and no protest is filed by a person whose interests are substantially affected within 21 days of the Commission order, the dockets should be closed upon the issuance of a consummating order.  If a timely protest is filed by a person whose substantial interests are affected within 21 days of the Commission Order, the dockets should remain open pending the resolution of the protest.  (Teitzman, Scott)

Staff Analysis:   No. If the Commission approves staff’s recommendation in Issue 1, then the dockets should remain open for further proceedings relating to Alltel Wireless’ Application.    A person whose substantial interests are affected may file a protest within 21 days of the Commission Order.  If no protest is filed by a person whose interests are substantially affected within 21 days of the Commission order, the Commission order shall become final upon the issuance of a consummating order. 

            If the Commission denies staff’s recommendation in Issue 1 and no protest is filed by a person whose interests are substantially affected within 21 days of the Commission order, the dockets should be closed upon the issuance of a consummating order.  If a timely protest is filed by a person whose substantial interests are affected within 21 days of the Commission Order, the dockets should remain open pending the resolution of the protest.

BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION

 

 

In re: Petition for declaratory statement that NPCR, Inc. d/b/a Nextel Partners, commercial mobile radio service provider in Florida, is not subject to jurisdiction of Florida Public Service Commission for purposes of designation as “eligible telecommunications carrier.”	DOCKET NO. 030346-TP
In re: Petition for declaratory statement that ALLTEL Communications, Inc., commercial mobile radio service provider in Florida, is not subject to jurisdiction of Florida Public Service Commission for purposes of designation as “eligible telecommunications carrier.”	DOCKET NO. 030413-TP ORDER NO. PSC-03-1063-DS-TP ISSUED: September 23, 2003

           

 

            The following Commissioners participated in the disposition of this matter:

 

LILA A. JABER, Chairman

J. TERRY DEASON

BRAULIO L. BAEZ

RUDOLPH "RUDY" BRADLEY

CHARLES M. DAVIDSON

 

DECLARATORY STATEMENT

 

BY THE COMMISSION:

 

I.          Introduction

                                                                                                      

A.        The Parties

            By petitions filed April 16, 2003, and April 29, 2003, respectively, NPCR, Inc., d/b/a Nextel Partners (Nextel), and ALLTEL Wireless Holdings, L.L.C. and New York NEWCO Subsidiary, Inc., subsidiaries of ALLTEL Communications, Inc. (ALLTEL), both of which are commercial mobile radio service (CMRS) providers, requested declaratory statements pursuant to Section 120.565, Florida Statutes, and Rule 28-105.002, Florida Administrative Code, that the Florida Public Service Commission (Commission) lacks jurisdiction to designate CMRS carriers eligible telecommunications carrier (ETC) status for the purpose of receiving federal universal service support.¹

 

            Northeast Florida Telephone Company (Northeast Florida) and GTC, Inc. d/b/a GT COM (GT Com) filed petitions to intervene in these dockets on May 22, 2003.  TDS TELECOM/Quincy Telephone (Quincy) filed a petition to intervene on May 29, 2003.  ALLTEL filed a response but did not oppose the intervention.  The petitions were granted by Order Nos. PSC-03-0712-PCO-TP and PSC-03-0713-PCO-TP, respectively, on June 16, 2003.

 

            B.        Summary of Ruling

 

            After careful consideration and as discussed, infra, the Commission grants Nextel’s and ALLTEL’s petitions for declaratory statements.

 

            ETC status is a prerequisite for a carrier to be eligible to receive universal service funding.  The Federal Communications Commission (FCC) has determined that CMRS carriers, such as Nextel and ALLTEL, may be designated as ETCs.  Section 214(e)(6) of the federal 1996 Telecommunications Act (1996 Act) provides that where a carrier is not subject to the jurisdiction of a state commission, then the FCC shall make the ETC determination.  The FCC has ruled that, in order for it to consider requests for ETC status, the requesting carrier must provide an “affirmative statement” from the state commission or a court of competent jurisdiction that the state commission lacks the jurisdiction to make the designation.²  See Federal-State Joint Board on Universal Service: Promoting Deployment and Subscribership in Unserved and Underserved Areas, Including Tribal and Insular Areas, Twelfth Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, CC Docket No. 96-45, FCC 00-208 (released June 30, 2000) at ¶ 93.³

 

            As discussed, infra, this Commission does not have jurisdiction over CMRS carriers for purposes of determining eligibility for ETC status.  Indeed, the Florida Legislature has expressly excluded CMRS providers from the jurisdiction of the Commission.  As the Commission lacks jurisdiction over CMRS providers, the FCC is the appropriate venue for Nextel and ALLTEL to seek ETC status.

 

II.        The Commission Lacks Jurisdiction over CMRS Providers

 

A.        Lack of Jurisdiction Over CMRS Providers

 

            As a legislatively created body, the jurisdiction of the Commission is that conferred by statute – but no more than that.  Chapter 364, Florida Statutes, governs our resolution of this threshold, and dispositive, jurisdictional issue.  For present purposes, Chapter 364 expressly limits our jurisdiction to jurisdiction over “telecommunications companies” as set forth in that chapter.⁴  A telecommunications company does not include a CMRS provider.  Indeed, the Legislature specifically provided to the contrary in Section 364.02(12), Florida Statutes, which expressly states that:

 

The term “telecommunications company” does not include:

…

(c)       A commercial mobile radio service provider;

 

§ 364.02(12)(c), Fla. Stat. (emphasis added).⁵

 

            The Commission has previously recognized, correctly so, that it lacks jurisdiction over CMRS providers.  Specifically, in In re: Application for certificate to provide pay telephone service by Radio Communications Corporation, and request for waiver of Rule 25-24.515(6), (10), and (14), F.A.C., the Commission noted that, pursuant to Section 364.02(12)(c), Florida Statutes, CMRS providers are “not regulated by this Commission” and that CMRS providers are “not subject to Commission rules.”  See Order No. PSC-00-1243-PAA-TC, Docket No. 991821-TC (July 10, 2000).⁶

 

            B.        The Arguments of the Intervenors

 

            Intervenors’ reliance on the Commission’s Order in In re: Establishment of Eligible Telecommunications Carriers Pursuant to Section 214(e) of the Telecommunications Act of 1996 is misplaced.  See Commission Order No. PSC-97-1262-FOF-TP, issued October 14, 1997, in Docket No. 970644-TP.  That order states, in pertinent part:

 

We believe that the requirements of the 1996 Act can be met initially by designating the incumbent LECs as ETCs.  Upon consideration, we hereby designate the incumbent LECS (ILECs) as ETCs.  LECs should continue to serve their current certificated service areas.  All other carriers (non-ILECs) who wish to receive ETC status in the service area of a non-rural LEC should file a petition with the Commission for ETC status . . .

                                                                                                                       

Id. at 4.  In that order, the Commission also opined that “mobile carriers may serve those areas [where ALECs were prohibited from offering basic local telecommunications services within the territory served by a small LEC before January 1, 2001, unless the small LEC has elected price regulation], and may apply for ETC status.”  Id. at 4.

            Reliance on this statement to conclude that this Commission has jurisdiction to designate CMRS carriers as having ETC status is misguided.  Simply put, the Commission cannot by fiat simply declare its own jurisdiction where, as the Florida Legislature has made clear, no jurisdiction exists.⁷  See, e.g., Gulf Coast Hospital, Inc. v. Dept. of Health and Rehabilitative Services, 424 So. 2d 86, 91 (Fla. 1^st DCA 1982) (noting that even if an agency’s policy concerns might be valid, “[a]rguments concerning the potential effect of the legislation or questioning the wisdom of such legislation are matters which should be presented to the Legislature itself.").

 

            Intervenors’ public interest argument must likewise fail.  Intervenors argue that Florida’s public interest would not be served by having competitive carriers, including CMRS providers such as petitioners, designated as ETCs in rural areas.  They continue that this Commission is best situated to make the public interest inquiry.  This argument is fundamentally flawed.  It is only if this Commission has jurisdiction over CMRS carriers in the first instance that the Commission could exercise that jurisdiction to perform the inquiry proposed by Intervenors.

 

            C.        Intervenors Run Afoul of Cape Coral and its Progeny

 

The arguments of the Intervenors run counter to the clear teachings of Cape Coral and its progeny.  Florida law makes clear that the Commission does not have jurisdiction over CMRS carriers.  Even if there was doubt about that proposition, which the Florida Legislature has made clear there is not, such doubt would have to be resolved against finding jurisdiction.  As the Florida Supreme Court made clear in City of Cape Coral v. GAC Utilities, Inc., of Florida:  

 

All administrative bodies created by the Legislature are not constitutional bodies, but, rather, simply mere creatures of statute. This, of course, includes the Public Service Commission.... As such, the Commission's powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State.... Any reasonable doubt as to the lawful existence of a particular power that is being exercised by the Commission must be resolved against the exercise thereof,... and the further exercise of the power should be arrested.

 

281 So. 2d 493, 495-96 (Fla. 1973).  See also Lee County Elec. Co-op., Inc. v. Jacobs, 820 So. 2d 297 (Fla. 2002) (“any reasonable doubt regarding its regulatory power compels the PSC to resolve that doubt against the exercise of jurisdiction”); Dept. of Transp. v. Mayo, 354 So. 2d 359 (Fla. 1977) (“any reasonable doubt as to the existence of a particular power of the Commission must be resolved against it”); Schiffman v. Dept. of Professional Regulation, Board of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1^st DCA 1991) ("An administrative agency has only the authority that the legislature has conferred it by statute"); Lewis Oil Co., Inc. v. Alachua County, 496 So. 2d 184, 189 (Fla. 1^st DCA 1986) ("Administrative agencies have only the powers delegated by statute").

 

            The Commission has previously (and correctly) recognized the limited nature of its jurisdiction.  See In re: Complaint Against Florida Power & Light Company Regarding Placement of Power Poles and Transmission Lines, Docket No. 010908-EI, Order No. PSC-02-0788-PAA-EI, Florida Public Service Commission, June 10, 2002; In re: Complaint and Petition by Lee County Electric Cooperative, Inc. for an Investigation of the Rate Structure of Seminole Electric Cooperative, Inc., Docket No. 981827-EC, Order No. PSC-01-0217-FOF-EC, Florida Public Service Commission, January 23, 2001 (recognizing that any doubt as to the Commission’s jurisdiction must be resolved against an exercise of jurisdiction).

 

            The authority of this Commission is derived from state law as written by the Florida Legislature, and that authority is expressly limited as it pertains to CMRS providers. Regardless of the merits of the debate of state versus federal designation of ETC status for wireless providers, the Commission must remain cognizant of our role and not regulate beyond our specific mandate.  Despite good intentions, we should avoid even the appearance that we are replacing the Legislature's judgment with our own.

 

Florida as a state certainly has an interest in universal service issues.  That interest, however, does not create jurisdiction in this Commission to determine whether CMRS carriers should be granted ETC status (a status, we note, that is one of federal creation),⁸ especially where the Legislature has specifically provided that the Commission does not have jurisdiction over CMRS providers.⁹  As a creature of statute, this Commission is not free to operate according to its “own “inscrutable wisdom, ‘an administrative Frankenstein, once created, (acting) beyond the control of its Legislature creator.’” Turner v. Wainwright, 379 So. 2d 148 (Fla. 1^st DCA 1980) (discussing the Parole Commission).  Indeed, “[a]rguments concerning the potential effect of the legislation or questioning the wisdom of such legislation are matters which should be presented to the Legislature itself."  Gulf Coast Hospital, Inc. v. Dept. of Health and Rehabilitative Services, 424 So. 2d 86, 91 (Fla. 1^st DCA 1982).

 

            D.        Conclusion

 

            Based on the foregoing, the Commission does not have jurisdiction over CMRS providers for purposes of determining eligibility for ETC status pursuant to 47 U.S.C. §  214(e).

 

III.       A Declaratory Judgment of “No Jurisdiction” is Proper

 

            Section 120.565, Florida Statutes, governs the issuance of a declaratory statement.  In pertinent part, that section provides:

 

(1)  Any substantially affected person may seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.

 

(2)  The petition seeking a declaratory statement shall state with particularity the petitioner’s set of circumstances and shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances.

 

            Rule 28-105.001, Florida Administrative Code, further explains that: “a declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the agency has authority.”  The purpose of a declaratory statement by an administrative agency is to allow a petitioner to select a proper course of action in advance. Novick v. Dept. of Health, Bd. of Medicine, 816 So. 2d 1237 (Fla. 5^th DCA 2002).

 

Petitioners have satisfied the requirements for the issuance of a declaratory statement by the Commission.  At issue is the applicability of Chapter 364, Florida Statutes, which excludes CMRS providers from Commission jurisdiction.  As CMRS providers seeking ETC status, which status is a prerequisite to being eligible to receive federal universal service funds, petitioners are “substantially affected persons” within the meaning of Section 120.565, Florida Statutes.  Petitioners have stated with particularity their circumstances and have identified the statutory provision that applies to their circumstances.

            Intervenors urge us to deny the petitions for declaratory statement.  Intervenors first assert that to receive ETC status in the service area of a rural LEC, a non-ILEC must file a petition proposing an appropriate service area and demonstrating that designation as an ETC is in the public interest, a determination that they assert can properly be made only after a formal administrative hearing and not in a declaratory statement proceeding.  They next assert that the petitions require a response that amounts to a rule stating that CMRS providers are not subject to the jurisdiction of the Commission for purposes of designation as an ETC.  Finally, Intervenors assert that the petitions fail to allege an uncertainty about a Commission statute, rule, or order and thus, fail to meet the pleading requirements of Rule 28-105.001, Florida Administrative Code.

 

            Intervenors’ arguments fail.  Regarding their first assertion, where the Commission lacks jurisdiction, as it does here, it would be illogical for a party to seek to have the Commission exercise jurisdiction to do something it does not have the power to do.  To exercise jurisdiction, the Commission would have to determine that the petitioners are telecommunications companies, a determination that is expressly precluded by the statute.  As the Commission does not have jurisdiction to make the ETC designation for CMRS providers, it is not necessary for Nextel or ALLTEL to file an application that addresses the eligibility requirements to be designated an ETC.

 

We also disagree that we should deny the petitions for declaratory statement because the statement requested would amount to a rule.  On numerous occasions, the Commission has resolved controversies about the scope of our jurisdiction in declaratory statement proceedings.  See In re:  Petition of St. Johns Service Company for declaratory statement on applicability and effect of 367.171(7), Florida Statutes, Order No. PSC-99-2034-DS-WS, issued October 18, 1999, in Docket No. 982002-WS; In re: Petition of PW Ventures, Inc., for declaratory statement in Palm Beach County, Order No. 18302, issued October 16, 1987, in Docket No. 870446-EU, aff’d on other grounds, PW Ventures, Inc. v. Nichols, 533 So. 2d 281 (Fla. 1988). 

 

Intervenors confuse the notion of a rule with the issue of jurisdiction.  Commission jurisdiction over a matter either exists or it does not.  It cannot be created or denied by a rule.  Indeed, the Commission could only issue a rule where it has jurisdiction over the subject matter of the rule.  Further, determining whether the Legislature has vested the Commission with jurisdiction is typically a one-time determination, whereas rulemaking is more appropriate for such matters as recurring issues, implementation of statutes, and codification of policy.

 

            Finally, we dismiss the assertion that the petitions should be denied for failing to allege an uncertainty about a Commission statute, rule, or order.  The petitions seek a statement that our statutes, rules, and orders are not applicable to ALLTEL or Nextel as CMRS providers, for the purposes of determining whether they are eligible to receive federal universal service funding.  As set forth herein, we agree.  And on the facts presented, this determination is properly made in a declaratory statement proceeding.  We therefore conclude that the petitions satisfy the requirements for a declaratory statement.

 

            Based on the foregoing, we grant the petitions and declare that Nextel and ALLTEL, as commercial mobile radio service providers, are not subject to the jurisdiction of the Florida Public Service Commission for purposes of designation as an eligible telecommunications carrier under 47 U.S.C. § 214(e).

 

            Now, therefore, it is

 

            ORDERED by the Florida Public Service Commission that the Petitions for a Declaratory Statement filed by Nextel & ALLTEL are granted.  It is further

 

            ORDERED that the substance of the Declaratory Statement is as set forth in the body of this Order.  It is further

 

            ORDERED that this docket should be closed.

 

            By ORDER of the Florida Public Service Commission this 23rd Day of September, 2003.

 

BLANCA S. BAYÓ, Director

Division of the Commission Clerk

and Administrative Services

 

By:/s/ Kay Flynn                                                       

Kay Flynn, Chief

Bureau of Records and Hearing

Services

 

This is a facsimile copy. Go to the Commission’s Web site, http://www.floridapsc.com or fax a request to 1-850-413-7118, for a copy of the order with signature.

 

 

( S E A L )

 

CTM

 

 

            Commissioner Baez dissents.  Chairman Jaber dissents from the majority's decision with the following opinion:

 

            Rule 28-105.001, Florida Administrative Code, states in part: "A declaratory statement is not the appropriate means for determining the conduct of another person or for obtaining a policy statement of general applicability from an agency."  The circumstances brought before us in these two cases are not limited to the two wireless providers that have filed petitions for declaratory statement.  Rather, our decision will impact not only all of the wireless carriers and other telecommunications service providers in Florida, but, more importantly, will impact the state's overall universal service policy.  This is a case of first impression, and will result in a policy of general applicability.  I do not believe a declaratory statement is the appropriate mechanism for deciding this very important issue.  I would rather establish an expedited proceeding that allows us to hear from other providers in the form of testimony, if appropriate, or legal briefs on federal and state law regarding ETC status and the impact of such on Florida's stance on universal service.  In making a decision regarding the jurisdictional issues in this matter, it is critical to fully understand the ramifications of our decision on the size and applicability of the federal universal service fund to Florida's ratepayers.  The declaratory statement process does not allow an opportunity for that critical review.  Without input from all affected parties on the legal and policy implications of this decision, I am uncomfortable with the conclusion that we do not have jurisdiction in this matter.  For these reasons alone, I dissent.

 

 

 

 

 

 

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 or judicial review of Commission orders that is available under Sections 120.57 or 120.68, 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 or judicial review will be granted or result in the relief sought.

 

            Any party adversely affected by the Commission's final action in this matter may request: 1) reconsideration of the decision by filing a motion for reconsideration with the Director, Division of the Commission Clerk and Administrative Services, 2540 Shumard Oak Boulevard, Tallahassee, Florida 32399-0850, within fifteen (15) days of the issuance of this order in the form prescribed by Rule 25-22.060, Florida Administrative Code; or 2) judicial review by the Florida Supreme Court in the case of an electric, gas or telephone utility or the First District Court of Appeal in the case of a water and/or wastewater utility by filing a notice of appeal with the Director, Division of the Commission Clerk and Administrative Services and filing a copy of the notice of appeal and the filing fee with the appropriate court.  This filing must be completed within thirty (30) days after the issuance of this order, pursuant to Rule 9.110, Florida Rules of Appellate Procedure.  The notice of appeal must be in the form specified in Rule 9.900(a), Florida Rules of Appellate Procedure.