Discussion
of Issues
Issue 1:
Should the Commission cancel Pac-West Telecomm,
Inc.’s, CLEC certificate, service schedule (if any), and change the company’s
status to “cancelled” in the Master Commission Directory on its own motion
effective the date the company’s Chapter 11 Bankruptcy case was terminated;
direct the Division of Administrative and Information Technology Services (AIT)
to write off any statutory late payment charges, or penalty and interest
instead of requesting collection services; and require the company to
immediately cease and desist providing telecommunications services in Florida?
Recommendation:
Yes, the Pac-West’s CLEC certificate should be
cancelled on the Commission’s own motion due to the company lack of payment of
regulatory fees. AIT should write off
any unpaid statutory late payment charges, or penalty and interest instead of
requesting collection service. (Wooten,
Bates, McCoy)
Staff Analysis:
See attachment A, proposed Order. (staff analysis)
Issue 2:
Should this docket be closed?
Recommendation:
If no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, this docket should be closed upon the issuance of a
consummating order. (Cuello)
Staff Analysis:
At the conclusion of the protest period, if no
protest is filed this docket should be closed upon the 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 CLEC Certificate No. 8604 issued to
Pac-West Telecomm, Inc., effective March 19, 2013.
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DOCKET NO. 20170217-TX
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The following
Commissioners participated in the disposition of this matter:
ART GRAHAM, Chairman
JULIE I. BROWN
DONALD POLMANN
GARY F. CLARK
ANDREW GILES FAY
NOTICE
OF PROPOSED AGENCY ACTION
ORDER CANCELLING COMPETITIVE LOCAL EXCHANGE
TELECOMMUNICATIONS
COMPANY CERTIFICATES
AND SERVICE
SCHEDULES DUE TO BANKRUPTCY
ON THE
COMMISSION’S OWN MOTION
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.
Pac-West
Telecomm, Inc. (Pac-West) currently holds competitive local exchange
telecommunications services (CLEC) Certificate No. 8604, issued by the
Commission on December 2, 2005.
Pursuant to
Section 364.336, Florida Statutes, telecommunications companies must pay a
minimum annual Regulatory Assessment Fee (RAF) if the certificate was active
during any portion of the calendar year and provides for late payment charges
as outlined in Section 350.113, Florida Statutes, for any delinquent amounts.
Pursuant to 11
U.S.C. § 362 (b)(4) 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. RAFs, 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. Therefore, this Commission would be prevented
from collecting the RAFs owed by these companies, and from assessing and collecting
a penalty for failure to pay the fees.
This Commission
monitors companies that have previously filed for bankruptcy protection to
further attempt collection of the past due RAFs. Monitoring is conducted using internet-based
Public Access to Court Electronic Records (PACER). In many cases, companies under bankruptcy
protection discontinue providing telecommunications services and close their
operations.
PACER indicates
that Pac-West filed for Chapter 11 bankruptcy protection in the US Bankruptcy Court
for the Western District of Texas – Austin Division on April 30, 2007. On December 8, 2011, the Federal Communications
Commission granted a transfer of control of Pac-West Telecomm, Inc. to UPH
Holdings, Inc., which is not certificated in Florida. The bankruptcy case was
terminated on March 19, 2013. All mail
from this Commission is being returned by the US Postal Service marked “unable
to forward” and the telephone numbers on file for the company are out of
service. There has been no response for requests to update contact information
and data requests from the Commission.
Pac-West has not paid regulatory fees and penalties and interest in years 2013,
2014, 2015 and 2016. We have researched the Florida Department of State,
Division of Corporations’ records, which show that the company’s last Annual
Report was filed on April 26, 2012, and its corporate status was listed as
“revoked for annual report” on September 27, 2013. It has no agent, and the
last registered agent resigned on September 30, 2016. The Federal
Communications Commission Form 499 Filer Database listed Pac-West Telecomm,
Inc. as “(n)o longer active as of Jan 1, 2014.” It also stated “(a)ll assets of
this company have been sold to another party.”
Pac-West’s
bankruptcy case has closed, and it appears to no longer be providing service in
Florida and to no longer exist. We are
vested with jurisdiction over this matter pursuant to Sections 364.02, 364.336,
364.285, Florida Statutes.
Accordingly, we
shall cancel Pac-West’s CLEC certificate, service schedule (if any), and remove
its name from the Master Commission Directory on this Commission’s own motion,
effective March 19, 2013, In addition, any unpaid statutory late payment
charges, or penalty and interest 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.
Based
on the foregoing, it is
ORDERED
by the Florida Public Service Commission that Pac-West Telecomm, Inc.’s CLEC
Certificate No. 8604 is cancelled and its status changed to “cancelled” in the
Master Commission Directory, effective March 19, 2013. It is further
ORDERED
that each entity’s unpaid statutory late payment charges, or penalty and
interest, shall not be sent to the Department of Financial Services for
collection. The Division of
Administrative and Information Technology Services shall request permission to
write-off the uncollectible amount. It
is further
ORDERED that if Pac-West Telecomm, Inc.’s respective CLEC certificate and
service schedule (if any) are cancelled and its status changed to “cancelled”
in the Master Commission Directory in accordance with this Order, the entity
shall immediately cease and desist providing telecommunications 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, F.A.C., is
received by the Office of Commission Clerk, 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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Carlotta Stauffer
Commission Clerk
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Florida Public Service Commission
2540 Shumard Oak Boulevard
Tallahassee, Florida 32399
(850) 413‑6770
www.floridapsc.com
Copies furnished: A copy of this
document is provided to the parties of record at the time of issuance and, if
applicable, interested persons.
SAC
