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State of Florida
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Public Service Commission
Capital Circle Office Center ● 2540 Shumard
Oak Boulevard
Tallahassee, Florida 32399-0850
-M-E-M-O-R-A-N-D-U-M-
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DATE:
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May 28, 2020
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TO:
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Office of Commission Clerk (Teitzman)
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FROM:
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Division of Economics (Kunkler, Galloway,
McNulty, Mick)
Office of the General
Counsel (Passidomo, Dziechciarz)
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RE:
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Docket No. 20200141-TA – Compliance
investigation of AAV Certificate No. 7790, issued to A.SUR Net, Inc., for
apparent fourth-time violation of Rule 25-4.0161, F.A.C., Regulatory
Assessment Fees; Telecommunications Companies.
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AGENDA:
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06/09/20 – Regular Agenda – Interested Persons May Participate
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COMMISSIONERS ASSIGNED:
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Staff
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PREHEARING OFFICER:
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Administrative
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CRITICAL DATES:
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None
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SPECIAL INSTRUCTIONS:
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None
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Case Background
A.SUR Net, Inc.
(A.SUR Net or the Company) is a regulated telecommunications company located in
North Miami Beach, Florida. The Company’s application for an alternative access
vendor (AAV) certificate was approved by the Commission on March 15, 2001, by
Order No. PSC-01-0647-PAA-TA. Pursuant to Section 364.336, Florida Statutes
(F.S.), certificate holders must pay a minimum annual Regulatory Assessment Fee
(RAF) if the certificate was active during any portion of the calendar year.
Pursuant to
Section 350.113(4), F.S., RAF forms are mailed to regulated companies for the
period January 1 through December 31, at least 45 days prior to the date that
payment of the fee is due. Pursuant to Rule 25-4.0161(2), Florida
Administrative Code (F.A.C.), the RAF form and applicable fees are due to the
Commission by January 30 of the subsequent year.
In keeping with
Commission rules and statutes, 2019 RAF forms were mailed on December 9, 2019,
for the period January 1, 2019 through December 31, 2019. The RAF form and
applicable fees were due on or before January 30, 2020. As of the date of this
recommendation, the Commission has not received payment from A.SUR Net.
On February 20, 2020, the Commission mailed a
letter to the Company informing them that, according to Commission records,
their RAF payment had not yet been received, and was past due. The letter also
informed the Company that payment would need to be postmarked within 15
calendar days of receipt of the notice, as evidenced by the certified mail
receipt, and, if not received by that date, a RAF rule violation penalty would
be imposed. Pursuant to Rule 25-4.0161, F.A.C., a RAF rule violation penalty of
$500, $1,000, or $2,000, is automatically imposed, depending on the number of
previous dockets opened against the entity for violation of the RAF rule.
A.SUR Net had three prior dockets opened for violation of Rule
25-4.0161, F.A.C.— Docket No. 20060463-TA, Docket No. 20070346-TA, and Docket
No. 20090222-TA. Because this docket was opened for an apparent fourth
violation of Rule 25-4.0161, F.A.C., by the Company, staff is required
to file a recommendation addressing the fourth violation for the Commission’s
consideration and further action.
The Commission has jurisdiction over this matter
pursuant to Sections 350.113, 364.336, and 364.285, F.S.
Discussion
of Issues
Issue 1:
Should the Commission impose a penalty and a cost of
collection, together totaling $4,000, or cancel the A.SUR Net, Inc. tariff and
remove A.SUR Net, Inc., TA057, from the register for an apparent fourth
violation of Section 364.336, F.S., and Rule 25-4.0161, F.A.C., Regulatory
Assessment Fees; Telecommunications Companies?
Recommendation:
A.SUR Net, Inc. should pay a penalty and the cost of
collection, together totaling $4,000, as well as remit any unpaid Regulatory
Assessment Fees, along with accrued statutory late payment charges, or have its
AAV tariff cancelled and its name removed from the register. (Kunkler,
Dziechciarz, Passidomo)
Staff Analysis:
The Commission has opened three
prior dockets, in 2006, 2007, and 2009, to address the same rule violation by
A.SUR Net, Inc. In all three dockets, the Company’s failure to pay past due RAFs
by the delinquency notice deadlines resulted in the Company paying not only the
delinquent RAFs, but also the statutory late payment penalties and interest
amounts, and additional penalties per Rule 25-4.0161(12), F.A.C.
Due to the failure to timely pay
the past due RAFs, A.SUR Net. Inc. paid additional rule penalties of $500 in
2006, $1,000 in 2007, and $2,000 in 2009, along with all RAF amounts, statutory
penalties, and interest charges.
In the case of A.SUR Net, Inc.’s failure to pay its 2019
RAF, staff reached out by phone to the Company on February 13, 2020, and on May
12, 2020. On each occasion, the Company was unresponsive. Additionally, staff
emailed the Company on May 13, 2020, and as of the date of this recommendation,
the Company has not responded.
For a company’s fourth-time failure to pay the RAF, Rule
25-4.0161(13), F.A.C., provides that staff shall file a recommendation for the
Commission’s consideration and further action. Pursuant to this rule, the
Commission has authority, and also discretion, to either cancel the company’s
certificate, or waive the cancellation if a penalty, plus the outstanding RAF,
including accrued statutory late payment charges, are paid in full. While the
Company has had three prior violations of this Rule, the most recent violation
for RAF non-compliance occurred over 10 years ago, in Docket No. 20090222-TA.
Considering that the Company has paid the outstanding RAFs
and penalties three times previously (2006, 2007, and 2009), as well as taking
into account the extended amount of time that has elapsed since its last RAF
rule violation (11 years), staff believes that if the Company pays the
outstanding 2019 RAFs, including accrued statutory late payment charges, along
with an appropriate penalty, A.SUR Net Inc.’s certificate should not be
cancelled.
Rule 25-4.0161, F.A.C., does not specify a penalty amount
for a fourth rule violation. As stated earlier, the rule prescribes a penalty
of $500, $1,000, or $2,000, depending on the number of previous violations
(i.e. dockets opened due to a utility’s failure to pay). Staff notes that the
penalty amount per the rule doubles each time a subsequent RAF rule violation
occurs up to three violations. Since this is the Company’s fourth RAF rule
violation, staff believes an appropriate penalty is $4,000, which equates to a
doubling of the $2,000 penalty amount for a third RAF rule violation. Pursuant
to Section 364.285, F.S., the Commission has authority to penalize up to
$25,000.
Staff has calculated a total amount due based on the
above. Pursuant to Section 350.113(4),
F.S., 5 percent of the 2019 RAF amount due is imposed as a
penalty for each 30 days or fraction thereof during the time in which the
failure continues, not to exceed a total penalty of 25 percent. Additionally,
an interest rate of 12 percent per annum is also applied to any delinquent
amounts. Thus, as of May 28, 2020, the Company owes an estimated 2019 RAF
amount of $2,217.45, plus a late penalty in the amount of $443.48 (5 percent x
4 months x $2,217.45), plus accrued interest in the amount of $88.68, which
results in a total amount due of $2,749.61.
This amount, added to the staff-proposed fourth violation penalty amount of
$4,000, including cost of collections, results in a total amount due to the
Commission of $6,749.61.
It is relevant to this docket to note that, pursuant to
Rule 25-4.0161(14), F.A.C., if a
company reapplies for a certificate, the company must pay all prior unpaid
regulatory assessment fees, plus the penalty and interest, and any prior unpaid
penalty assessed in accordance with subsection (11).
Therefore, staff recommends it is appropriate for the
Commission to require A.SUR Net, Inc. to pay the outstanding RAF, including
accrued statutory late payment charges, along with the $4,000 penalty in full, for a total of $6,749.61, within 21
days of the issuance of the Proposed Agency Action Order. Furthermore, staff recommends it is
appropriate that, if the Company fails to pay this amount by that date, the
Company’s AAV tariff and registration should be cancelled and removed from the
register; in which case, staff requests administrative authority to cancel the
Company’s AAV tariff and certificate.
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, F.A.C., within 21
days of the issuance of the Proposed Agency Action Order. As provided by
Section 120.80(13)(b), F.S., 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, F.S., 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, and Regulatory Assessment Fee,
including statutory late payment charges, in full, prior to the expiration of
the Proposed Agency Action Order, then the Company’s AAV tariff should be
cancelled administratively and its name removed from the register, and the collection
of the past due Regulatory Assessment Fee, including any accrued statutory late
payment charges, should be referred to the Florida Department of Financial
Services for further collection efforts. If the Company’s AAV tariff is
cancelled and its name removed from the register in accordance with the
Commission’s Order from this recommendation, the Company should be required to
immediately cease and desist providing alternative access telecommunications
service in Florida. This docket should be closed administratively either upon
receipt of the payment of the penalty and cost of collection, and Regulatory
Assessment Fee, including accrued statutory late payment charges, or upon
cancellation of the Company’s AAV tariff and removal of its name from the register. (Passidomo, Dziechciarz)
Staff Analysis:
Staff recommends that the
Commission take action as set forth in the foregoing staff recommendation
statement.