DATE:	February 18, 2010
TO:	Office of Commission Clerk (Cole)
FROM:	Division of Regulatory Analysis (Curry) Office of the General Counsel (Brooks) Division of Service, Safety, & Consumer Assistance (Lewis)
RE:	Docket No. 100039-TL – Petition to Terminate Service Guarantee Plan, by Windstream Florida, Inc.
AGENDA:	03/02/10 – Regular Agenda – Proposed Agency Action – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Administrative
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\RAD\WP\100039.RCM.DOC

 

 Case Background

On January 20, 2010, Windstream Florida, Inc. (Windstream) filed a petition (Attachment A) with the Florida Public Service Commission (Commission) to terminate its Service Guarantee Plan (SGP).  Windstream currently operates under a SGP, as well as the Commission’s service quality rules.[1]

Windstream is an incumbent local exchange company (ILEC) and is authorized by the Commission, pursuant to Certificate No. 10, to provide local exchange telecommunications services in Florida.  By Order No. PSC-06-0425-PAA -TP,[2] issued May 19, 2006, the Commission accepted Windstream’s offer to initiate a SGP, in addition to meeting the Commission’s rules regarding customer service. 

 

In 2009, the Florida Legislature amended Chapter 364, Florida Statutes (F.S.).  These changes became effective July 1, 2009.[3]  The Legislative amendments to the statutes redefined the terms “basic local telecommunications service”[4] and “nonbasic service.”[5]  In October 2009, the Commission amended its rules to reflect the statutory changes.  The Commission’s rule amendments included amendments to the Commission’s service quality rules.  The service quality rules pertain to the establishment of primary service and repair of interrupted service within specific time frames, and the measurement of answer time for subscribers who call the residential business or repair office.  As a result of these changes, Windstream believes that its current SGP and the Commission’s service quality rules are duplicative and that operating under the Commission’s rules will adequately protect its customers.  Therefore, Windstream seeks to terminate its SGP.

On February 8, 2010, staff sent Windstream a data request.  The primary purpose of the data request was to obtain Windstream’s position on the various combinations of dial tone and associated services that would either qualify or disqualify customers’ eligibility for coverage under the service quality rules.  Windstream filed a response (Attachment B) to staff’s data request on February 15, 2010.  On February 16, 2010, staff e-mailed Windstream seeking further clarification of Windstream’s February 15 response to staff’s data request.  Windstream’s clarification was received via e-mail on February 17, 2010 (Attachment C).

The Commission is vested with jurisdiction over this matter pursuant to Sections 364.01, 364.03, 364.035, and 364.386, Florida Statutes. 

 

Discussion of Issues

Issue 1: 

 Should the Commission grant Windstream Florida, Inc.'s petition to terminate its Service Guarantee Plan?

Recommendation: 

 Yes, the Commission should grant Windstream Florida, Inc.’s petition to terminate its Service Guarantee Plan.  (Curry, Brooks)

Staff Analysis: 

  Rule 25-4.085, Florida Administrative Code (F.A.C.), Service Guarantee Program, states that a company may petition the Commission for approval of a Service Guarantee Program, which would relieve the company from the rule requirement of each service standard addressed in the approved Service Guarantee Program. 

 

            As stated in the Case Background, by Order No. PSC-06-0425-PAA-TP, issued May 19, 2006, the Commission approved Windstream’s SGP.  The Commission’s Order became final and effective, by Order No. PSC-06-0503-CO-TP, issued June 13, 2006.  The SGP was granted in conjunction with the Commission’s approval to transfer control of the company from Alltel Florida, Inc. to Windstream.  In an effort to ensure the Commission that the transfer was in the public interest and that the company’s service quality would not decline after the transfer was complete, Windstream agreed to operate under a SGP in addition to the Commission’s service quality rules.

 

            Typically, when a company operates under a SGP that company is not subject to the Commission’s service quality rules.  Subjecting a company to both a SGP and the service quality rules could cause the company economic hardship by imposing duplicate penalties.  SGPs exempt the company from specific service quality rules but still allow the company to meet the quality of service provisions of Chapter 364, F.S., by providing a quick response time and compensation to qualifying customers should service issues arise.  Windstream has operated under both a SGP and the Commission’s service quality rules since June 2006.  However, the company now seeks to terminate its SGP and operate solely under the Commission’s service quality rules.

 

            As a result of the statutory changes and the changes to the Commission’s rules, the number of customers protected by the Commission’s service quality rules has decreased.  Only customers who receive services classified as basic telecommunications services, as defined by Section 364.02, F.S., are eligible for protections.  Therefore, if the Commission grants Windstream’s petition to terminate its SGP, Windstream customers who subscribe to nonbasic services are not eligible for protection under the service quality rules.  As described later, use of certain nonbasic services will not disqualify customers for protection under the service quality rules.

            On February 8, 2010, staff sent a data request to Windstream seeking clarification as to which services a Windstream customer is eligible for protection under the Commission’s service quality rules.  In its responses to staff’s data requests filed on February 15 and 17, Windstream listed its rationale for classifying a service as basic or nonbasic.  See Attachments B and C.

Windstream identifies in Attachment B and in its clarification response to staff’s February 16 e-mail (Attachment C) several nonbasic services, if used by a customer, that will not disqualify the eligibility of local service for protection under the Commission’s service quality rules.  Examples of these nonbasic services are 911 calls, directory assistance calls, relay calls, etc.  Customers who subscribe to bundled packages which include Internet and video will not be protected.

 

            Windstream concurs with the Commission’s findings in Docket No. 090461-TL, In Re: Petition for modification of Service Guarantee Program by BellSouth Telecommunications, Inc. d/b/a AT&T Florida, that basic local telecommunications service as defined in Section 364.02, F.S., does not include a primary interexchange carrier (PIC) or a local primary interexchange carrier (LPIC).  In other words, if a customer selects a local toll or long distance toll provider, the customer’s line is not basic service and will not be protected by the Commission’s service quality rules.

 

For more than three years Windstream has been subject to both the SGP and the Commission’s service quality rules.  Windstream has consistently exceeded the Commission’s rules on service quality.  Windstream will continue to submit reports that are currently required by the Commission’s service standards rules.  Windstream understands and has acknowledged that it will be subject to enforcement for the entire set of performance data it files with the Commission.

 

Based on the above, staff recommends that the Commission grant Windstream Florida, Inc.’s petition to terminate its Service Guarantee Plan.
Issue 2:  Should this docket be closed?

 

Recommendation: 

 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.  If the Commission’s Order is not protested this docket should be closed administratively upon issuance of the Consummating Order.  (Brooks)

Staff Analysis: 

 Staff recommends that the Commission take action as set forth in the above staff recommendation.