Case Background
On December 23,
2020, TruConnect Communications, Inc. (TruConnect), filed a petition for
declaratory statement (Petition). TruConnect asks the Commission to declare
that, based on the facts presented, the Commission can and should assert
jurisdiction over wireless telecommunications, specifically commercial mobile
radio service (CMRS) providers, for the sole purpose of Lifeline-only eligible
telecommunications carrier (ETC) designation. In its Petition, TruConnect also
requests that the Commission hold a hearing before issuing its decision.
Overview
of ETC Designation
ETC designation
is a requirement for telecommunications carriers to receive federal Universal
Service Funds (USF) for the Lifeline and High Cost programs. The Lifeline
program enables low-income households to obtain and maintain basic telephone
and broadband services, and offer qualifying households a discount on their
monthly bills. The High Cost program helps carriers provide voice and broadband
service in remote and underserved communities.
Federal law, 47
U.S.C. § 214(e)(2), authorizes state commissions to designate common carriers
as an ETC. Section 214(e) provides in pertinent part:
(2)
Designation of eligible telecommunications carriers
A State
commission shall upon its own motion or upon request designate a common carrier
that meets the requirements of paragraph (1) as an eligible telecommunications
carrier for a service area designated by the State commission. Upon request and
consistent with the public interest, convenience, and necessity, the State
commission may, in the case of an area served by a rural telephone company, and
shall, in the case of all other areas, designate more than one common carrier
as an eligible telecommunications carrier for a service area designated by the
State commission, so long as each additional requesting carrier meets the
requirements of paragraph (1). Before designating an additional eligible
telecommunications carrier for an area served by a rural telephone company, the
State commission shall find that the designation is in the public interest.
Federal law, 47
U.S.C. § 214(e)(6), also provides that the Federal Communications Commission
(FCC) will make such ETC designations in cases where a state commission lacks
jurisdiction over the common carrier. Section 214(e) provides in pertinent
part:
(6) Common
carriers not subject to State commission jurisdiction
In the case
of a common carrier providing telephone exchange service and exchange access
that is not subject to the jurisdiction of a State commission, the Commission
shall upon request designate such a common carrier that meets the requirements
of paragraph (1) as an eligible telecommunications carrier for a service area
designated by the Commission consistent with applicable Federal and State law.
Upon request and consistent with the public interest, convenience and
necessity, the Commission may, with respect to an area served by a rural
telephone company, and shall, in the case of all other areas, designate more
than one common carrier as an eligible telecommunications carrier for a service
area designated under this paragraph, so long as each additional requesting
carrier meets the requirements of paragraph (1). Before designating an
additional eligible telecommunications carrier for an area served by a rural
telephone company, the Commission shall find that the designation is in the
public interest.
Florida
Law Applicable to TruConnect’s Petition
Section 364.10,
Florida Statutes (F.S.), sets forth the framework for Lifeline service in
Florida and provides the Florida Legislature’s definition of an ETC. Section
364.10(1), F.S., provides in relevant part:
(a) An
eligible telecommunications carrier shall provide a Lifeline Assistance Plan to
qualified residential subscribers, as defined in the eligible
telecommunications carrier’s published schedules. For the purposes of this
section, the term “eligible telecommunications carrier” means a telecommunications
company, as defined by s. 364.02, which is designated as an eligible
telecommunications carrier by the commission pursuant to 47 C.F.R. s. 54.201.
Section 364.02,
F.S., outlines the definition of a telecommunications company for purposes of
Chapter 364, F.S. Section 364.02(13), F.S., states, in pertinent part, that:
“Telecommunications
company” includes every corporation, partnership, and person and their lessees,
trustees, or receivers appointed by any court whatsoever, and every political
subdivision in the state, offering two-way telecommunications service to the
public for hire within this state by the use of a telecommunications facility.
The term “telecommunications company” does not include:
***
(c) A commercial mobile radio service
provider;
***
However,
each commercial mobile radio service provider and each intrastate interexchange
telecommunications company shall continue to be liable for any taxes imposed
under chapters 202, 203, and 212. Each intrastate interexchange
telecommunications company shall continue to be subject to s. 364.163 and shall
continue to pay intrastate switched network access rates or other intercarrier
compensation to the local exchange telecommunications company or the
competitive local exchange telecommunications company for the origination and
termination of interexchange telecommunications service.
Section 364.011,
F.S., lists the telecommunications services that are exempt from oversight by
the Commission, except as otherwise set forth in Chapter 364, F.S. Section
364.011, F.S., exempts:
(1)
Intrastate interexchange telecommunications services.
(2)
Broadband services, regardless of the provider, platform, or protocol.
(3)
VoIP.
(4) Wireless telecommunications, including
commercial mobile radio service providers.
(5)
Basic service.
(6)
Nonbasic services or comparable services offered by any telecommunications
company.
Section 364.01,
F.S., sets forth the powers of the Commission under, and the legislative intent
of, Chapter 364, F.S. Section 364.01, F.S., provides in relevant part:
(1)
The Florida Public Service Commission shall exercise over and in relation to
telecommunications companies the powers conferred by this chapter.
***
(3)
Communications activities that are not regulated by the Florida Public Service Commission
are subject to this state’s generally applicable business regulation and
deceptive trade practices and consumer protection laws, as enforced by the
appropriate state authority or through actions in the judicial system. This
chapter does not limit the availability to any party of any remedy or defense
under state of federal antitrust laws. The Legislature finds that the
competitive provision of telecommunications services, including local exchange
telecommunications service, is in the public interest and has provided
customers with freedom of choice, encouraged the introduction of new
telecommunications service, encouraged technological innovation, and encouraged
investment in telecommunications infrastructure.
Procedural
Matters
Pursuant to
Section 120.565(3), F.S., and Rule 28-105.0024, Florida Administrative Code (F.A.C.),
a Notice of Declaratory Statement was published in the December 29, 2020
edition of the Florida Administrative Register to inform interested persons of
the Petition. No requests to intervene were filed, and the time for filing such
a request expired on January 19, 2021.
This
recommendation addresses TruConnect’s Petition. Pursuant to Section 120.565(3),
F.S., a final order on a request for a declaratory statement must be issued
within 90 days. As such, the statutory deadline to issue a final order on the
Petition is March 23, 2021.
This
recommendation addresses whether TruConnect’s request for a hearing on its Petition
should be granted and whether the Commission should grant TruConnect’s petition
for declaratory statement. The Commission has jurisdiction to consider this
matter pursuant to Section 120.565 and Chapter 364, F.S.
Discussion
of Issues
Issue 1:
Should the Commission grant TruConnect’s request
for hearing on its Petition?
Recommendation:
No. TruConnect’s request for hearing on its Petition
should be denied. Pursuant to Rule 28-105.003, F.A.C., the Commission should
rely on the facts set forth in TruConnect’s petition without taking any
position with regard to the validity of the facts. However, the Commission has
the discretion, pursuant to Rule 25-22.0021(7), F.A.C., to allow TruConnect to participate
informally at the agenda conference. (DuVal)
Staff Analysis:
Citing to Rule 28-105.003, F.A.C., TruConnect
requests that the Commission hold a hearing before issuing its decision on the
Petition. Rule 28-105.003, F.A.C., addresses agency disposition of petitions
for declaratory statement and states that an agency may hold a hearing to
consider a petition for declaratory statement. Additionally, the rule states the
agency may rely on the statements of fact set out in the petition without
taking any position with regard to the validity of the facts. Thus, under Rule
28-105.003, F.A.C., the Commission has the discretion to forgo a hearing on a
petition for declaratory statement and rely solely on the statement of facts
set forth in the petition without vetting those facts through a formal hearing
process under Sections 120.569 and 120.57, F.S.
Staff recommends that TruConnect’s request for hearing
should be denied because staff does not believe a hearing is necessary to
dispose of TruConnect’s Petition. The Commission should, instead, rely on the
facts set forth in TruConnect’s petition without taking any position with
regard to the validity of the facts.
Rule 25-22.0021, F.A.C., is the Commission rule addressing
agenda conference participation. Subsection (7) of Rule 25-22.0021, F.A.C.,
states that in certain types of cases in which the Commission issues an order
based on a given set of facts without hearing, such as declaratory statements,
the Commission allows informal participation at its discretion. Thus, the
Commission has the discretion to allow TruConnect to participate informally at
the Commission’s agenda conference.
Issue 2:
Should the
Commission grant TruConnect’s Petition for Declaratory Statement?
Recommendation:
While the Commission should find that TruConnect
satisfies the requirements for the issuance of a declaratory statement, it should
decline to issue the affirmative declaration requested by TruConnect. Instead,
the Commission should issue a declaratory statement that the Commission cannot
and will not assert jurisdiction over TruConnect for the sole purpose of
Lifeline-only ETC designation because TruConnect is a commercial mobile radio
service provider exempted from the Commission’s jurisdiction under Sections
364.011(4), 364.02(13)(c), and 364.10, F.S. (DuVal, Deas, Fogleman)
Staff Analysis:
Law Governing Petitions for Declaratory
Statement
Section 120.565, F.S., sets forth the necessary elements
of a petition for declaratory statement. This 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, F.A.C., states
the purpose of a declaratory statement:
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. A
petition for declaratory statement may be used to resolve questions or doubts
as to how the statutes, rules, or orders may apply to the petitioner’s
particular circumstances. A declaratory statement is not the appropriate means
for determining the conduct of another person.
Rule 28-105.002(5), F.A.C., requires that a petition for
declaratory statement include a description of how the statutes, rules, or
orders may substantially affect the petitioner in the petitioner’s particular
set of circumstances. A party seeking a declaratory statement must not only
show that it is in doubt as to the existence of some right or status, but also
that there is a bona fide, actual, present, and practical need for the
declaration. State Department of
Environmental Protection v. Garcia, 99 So. 3d 539, 544-45 (Fla. 3d DCA
2011). A declaratory statement is intended to enable members of the public to
definitively resolve ambiguities of law in the planning of their future affairs
and to enable the public to obtain definitive binding advice as to the
applicability of agency law to a particular set of facts. Department of Business and Professional Regulation, Div. of Pari-Mutual
Wagering v. Investment Corp. of Palm Beach, 747 So. 2d 374, 382 (Fla.
1999).
TruConnect’s Petition
In its Petition, TruConnect states that it is a commercial
mobile radio service provider that delivers prepaid wireless telecommunications
services to consumers. TruConnect further states that it currently has an
application for Lifeline-only ETC designation pending before the FCC. However,
TruConnect explains that it believes the FCC has not acted upon its ETC
application in a timely manner and, therefore, filed its Petition with the
Commission to remedy the situation. TruConnect further provides that if its
requested declaratory statement is granted, it will withdraw its ETC
application from the FCC and file an ETC application with the Commission.
TruConnect maintains that the Commission should be able to
assert jurisdiction over commercial mobile radio service providers for the sole
purpose of Lifeline-only ETC designation. The Petition contains the following four
arguments in support of this belief. TruConnect’s arguments are as follows:
·
TruConnect argues that Section 364.011, F.S., is
ambiguous because it does not contain a provision explicitly addressing the
Commission’s authority, or lack of authority, over ETC designations. TruConnect
maintains that the Commission erroneously relies upon the 2011 Florida
Legislature’s revisions to Section 364.011, F.S., in order to defer wireless
ETC designation requests to the FCC and further suggests that, through those
revisions, the Legislature unwittingly undermined its intent to foster
competition in telecommunications services.
·
TruConnect argues that an ETC designation
request does not require the Commission to regulate the provider or the
services that will be offered. Accordingly, TruConnect asserts that the
Commission may simply grant ETC designation to non-jurisdictional entities and
defer regulation to the FCC.
·
TruConnect argues that the Commission’s
continued deferral of jurisdiction over wireless Lifeline-only ETC applications
is contrary to the expressed legislative intent of Chapter, 364, F.S.
·
TruConnect argues that, regardless of Florida
law, the Commission should recognize that the Telecommunications Act of 1996
grants it the authority to designate ETCs.
Statutory Provisions Identified in The Petition
TruConnect states in its Petition that Sections 364.011
and 364.01(3), F.S., are the statutory provisions applicable to the
jurisdictional question raised in its Petition. For ease of reference, the
relevant text of these provisions are included in the Case Background of this
recommendation.
TruConnect’s Requested Declaratory Statement
TruConnect asks the Commission to issue the following
affirmative declaratory statement:
The Commission can and should assert jurisdiction over
wireless telecommunications, specifically CMRS providers, for the sole purpose
of Lifeline-only ETC designation.
Staff’s Analysis of the Petition for Declaratory
Statement
Threshold Requirements of Petition
The purpose of a declaratory statement is to address the
applicability of statutory provisions, orders, or rules of the agency in
particular circumstances. Section 120.565, F.S.; See Chiles v. Department of State, Division of Elections, 711 So.
2d 151, 154 (Fla. 1st DCA 1998). Further, pursuant to Rule 28-105.001, F.A.C.,
a petition for declaratory statement may be used to resolve questions or doubts
as to how an agency’s statutes and rules may apply to the petitioner’s
particular circumstances.
TruConnect’s Petition contains specific facts as required
by Section 120.565(2), F.S., and provides that TruConnect believes Sections
364.01(3) and 364.011, F.S., apply to its set of circumstances. TruConnect
alleges that it is substantially affected by these statutory provisions because
they are ambiguous as to the Commission’s jurisdiction, or lack of
jurisdiction, over commercial mobile radio service providers (such as itself)
for Lifeline-only ETC designation.
TruConnect further asserts that there is a need for its
requested declaratory statement and that the statement will enable it to plan
its future affairs. Specifically, TruConnect provides that, if the Commission
issues its requested declaratory statement, TruConnect will withdraw its ETC
application from the FCC and file a new ETC application with the Commission.
As shown above, staff recommends that TruConnect has
satisfied the requirements for the issuance of a declaratory statement. Based
on the information provided in the Petition, it appears that any declaratory
statement issued to resolve TruConnect’s questions or doubts about the provided
statutes has the potential to apply to other individuals with an identical fact
pattern. However, an agency has an obligation to issue a declaratory statement
explaining how a statute or rule applies in the petitioner’s particular
circumstances even if the explanation would have a broader application than to
the petitioner. Society for Clinical
& Medical Hair Removal, Inc. v. Department of Health, 183 So. 3d 1138,
1144 (Fla. 1st DCA 2015).
Jurisdictional Question Raised by Petition
Although
staff is recommending that TruConnect has satisfied the requirements for the
issuance of a declaratory statement, staff recommends that the Commission not
issue the affirmative declaratory statement requested by TruConnect in its Petition.
As discussed in more detail below, Sections 364.01, 364.011, 364.02, and
364.10, F.S., establish that the Commission does not have jurisdiction to
designate TruConnect, a CMRS provider, as a Lifeline-only ETC.
Section 364.10, F.S., Lifeline Service, and
Section 364.02, F.S., Definition of Telecommunications Company
Section 364.10, F.S., addresses Lifeline service in Florida.
Section 364.10(1)(a), F.S., states that an ETC for the purposes of the section
means a telecommunications company, as defined by Section 364.02, F.S., which
the Commission designates as an ETC pursuant to the federal law provisions
provided in 47 C.F.R. § 54.201.
Section
364.02, F.S., defines the term “telecommunications company” as used in Chapter
364, F.S. Section 364.02(13)(c), F.S., provides that a commercial mobile radio
service provider does not qualify as a telecommunications company. As
such, a commercial mobile radio service provider does not fall within the
definition of an ETC for purposes of Chapter 364, F.S.
The remainder of Section 364.10, F.S., sets forth the
duties of ETCs designated by the Commission and the Commission’s power to
regulate Lifeline service in Florida. Under Florida law, if the Commission
designates a telecommunications company as an ETC, that company is then subject
to the Lifeline service requirements set forth in Section 364.10, F.S.
In its Petition, TruConnect argues that the Commission may
consider commercial mobile radio service providers’ applications for ETC
designation because such a request does not require the Commission to regulate
the provider or the services that will be offered and that the Commission can
merely confer ETC designation and defer regulation to the FCC. However, Section
364.10, F.S., unambiguously states otherwise. In Florida, an ETC designation by
the Commission does require the
Commission to regulate the provider or services that will be offered.
Section 364.011, F.S., Exemptions from
Commission Jurisdiction
TruConnect
argues that ambiguity exists within Section 364.011, F.S., that allows the
Commission to consider commercial mobile radio service providers’ applications
for Lifeline-only ETC designation. TruConnect further argues that the
Commission may assert jurisdiction over commercial mobile radio service
providers for Lifeline-only ETC designation because the Florida Legislature has
not explicitly prohibited the Commission from doing so. Section 364.011, F.S.,
as currently enacted, unambiguously exempts commercial mobile radio service
providers from any Commission oversight, thus, leaving the Commission with no
authority to assert jurisdiction over such entities under Chapter 364, F.S., for
purposes of ETC designation.
Section
364.011, F.S., as originally enacted in 2005, listed the services exempt from the
Commission’s oversight, “except to the extent delineated in [Chapter 364, F.S.]
or specifically authorized by federal law.” The Commission subsequently relied on
the phrase, “specifically authorized by federal law,” to find that it had new
authority to consider commercial mobile radio service providers’ requests for
ETC designation. However, in 2011, pursuant to H.B. 1231,
the Florida Legislature removed that language from Section 364.011, F.S. As a
result, effective July 1, 2012, in compliance with Florida law, the Commission
only evaluates wireline ETC applications.
Staff
notes that the House of Representatives Staff Analysis of H.B. 1231 expressly
noted that the Commission previously relied upon this statutory language as the
basis for its authority to designate wireless carriers in Florida as ETCs for
purposes of receiving support from the USF that supports Lifeline and Link-up
programs. The House of Representative Staff Analysis further mentioned the
Commission’s assertion that without state authority to designate wireless ETCs
in Florida, that authority would default to the FCC. Thus, it appears that the
Legislature was aware that the 2011 change in the law would affect the
Commission’s jurisdiction to designate wireless carriers as ETCs.
The Commission is a creature of statute and only has the
powers, duties, and authority that have been conferred expressly or impliedly
to it by the Florida Legislature through statute. City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d
493, 495-96 (Fla. 1973). Further, the Commission is barred from exercising a
power when there is any reasonable doubt as to the lawful existence of that
power. See id. The Florida
Legislature specifically exempted wireless providers, including commercial
mobile radio service providers, from the Commission’s jurisdiction and, in
2011, deliberately removed a statutory provision that the Commission previously
relied upon to grant ETC designation to wireless carriers. As such, contrary to
TruConnect’s arguments, the Florida Legislature has both expressly and
impliedly barred the Commission from exercising jurisdiction over wireless
providers, including commercial mobile radio service providers, through its
promulgation of Section 364.011(4), F.S., and its removal of statutory language
that could be construed to allow for such Commission oversight. Moreover,
Section 364.011, F.S., provides that any exceptions to the statutory exemptions
are delineated within Chapter 364, F.S. Staff notes that no other section of
Chapter 364, F.S., contains language that permits the Commission to exercise
jurisdiction over wireless providers for purposes of Lifeline-only ETC designation.
Ultimately, Florida law provides that wireless
telecommunications, including commercial mobile radio service providers, are
exempt from the Commission’s oversight. In its Petition, TruConnect submits
that it is a commercial mobile radio service provider. TruConnect is,
therefore, exempt from the Commission’s oversight. Accordingly, staff
recommends that the Commission does not have jurisdiction to consider any
potential request from TruConnect seeking ETC designation.
Section 364.01, F.S., Powers of the Commission,
Legislative Intent
TruConnect argues that the Commission is operating against
the expressed legislative intent set forth in Section 364.01(3), F.S., by only
evaluating wireline ETC applications. However, as previously addressed, the
2011 changes to Section 364.011, F.S., and the limitations on the definition of
an ETC under Sections 364.02(13) and 364.10, F.S., are intended to clarify that
the Commission should only evaluate wireline ETC applications.
While Section 364.01(3), F.S., contains the general intent
of the Legislature to promote competition in the telecommunications industry,
Sections 364.011, 364.02(13)(c), and 364.10, F.S., contain specific provisions
that exclude commercial mobile radio service providers from the Commission’s oversight.
Accordingly, if the Commission finds that it lacks jurisdiction to consider any
potential ETC designation application from TruConnect, such a decision would be
in accordance with the requirements and intent of Chapter 364, F.S.
Federal Law Provisions
TruConnect argues that the Commission must acknowledge
that, regardless of the change in Florida Statutes, the FCC rules authorize the
Commission to designate ETCs. Pursuant to Rule 28-105.001, F.A.C., 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. Accordingly, staff recommends that the Commission deny
TruConnect’s petition to the extent TruConnect may be requesting the Commission
interpret federal law. Moreover, staff recommends that the Commission should
make clear that it is not providing any interpretation of federal law in its
declaratory statement. However, in an effort to address TruConnect’s argument,
staff makes the following observations regarding federal law that appear to
support the interpretation that the Commission lacks jurisdiction over
TruConnect under Florida law.
TruConnect correctly points out that, pursuant to 47
U.S.C. § 214(e)(2), a state commission shall designate carriers that meet
certain requirements as ETCs. However, staff notes that 47 U.S.C. § 214(e)(6)
provides that the FCC will make such ETC designations if the state commission
lacks jurisdiction over the carrier requesting the designation.
Specifically, 47 U.S.C. § 214(e)(6) states that it will
consider a common carrier’s ETC application if the state does not have
jurisdiction over that common carrier’s telephone exchange service and exchange
access. Under federal law, telephone exchange service is defined as:
(A) service within a telephone exchange, or within a
connected system of telephone exchanges within the same exchange area operated
to furnish to subscribers intercommunicating service of the character ordinarily
furnished by a single exchange, and which is covered by the exchange service
charge, or (B) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
47 U.S.C. § 153(54). Exchange access is defined as the
offering of access to telephone exchange services or facilities for the purpose
of the origination or termination of telephone toll services. 47 U.S.C. § 153(20).
Staff further notes that the courts have found that a
state agency is not authorized to take administrative action based solely on
federal statutes. See Curtis v. Taylor,
648 F.2d 946, 948 (5th Cir. 1980)(finding that a state administrative hearing
officer lacks jurisdiction to consider federal constitutional issues or to
consider the invalidity of state regulations under applicable federal statutes).
Additionally, state agencies, as well as federal agencies, are only empowered
by the statutes pursuant to which they were created. Louisiana Public Service Commission v. FCC, 476 U.S. 355, 374-75
(1986); Florida Public Service Commission
v. Bryson, 569 So. 2d 1253, 1254-55 (Fla. 1990); Charlotte County v. General Development Utilities, Inc., 653 So. 2d
1081 (Fla. 1st DCA 1995).
As provided above, the Commission can only issue a declaratory
statement concerning the applicability of statutory provisions, rules, or
orders over which it has authority. Therefore, looking only to the controlling
Florida Statutes, staff recommends that the Commission cannot consider
commercial mobile radio service providers’ applications for ETC designation
because the Commission lacks jurisdiction and regulatory authority over such
providers, pursuant to Sections 364.011(4), 364.02(13)(c), and 364.10, F.S.
Conclusion
While the Commission should find that TruConnect satisfies
the requirements for the issuance of a declaratory statement, it should decline
to issue the affirmative declaration requested by TruConnect. Instead, staff
recommends that the Commission issue the following declaratory statement:
The Commission cannot and will not assert jurisdiction
over TruConnect for the sole purpose of Lifeline-only ETC designation because
TruConnect is a commercial mobile radio service provider exempted from the
Commission’s jurisdiction under Sections 364.011(4), 364.02(13)(c), and 364.10,
F.S.
Issue 3:
Should this docket be closed?
Recommendation:
Yes. If the Commission votes to either grant or deny
the Petition for Declaratory Statement, the docket should be closed. (DuVal)
Staff Analysis:
Whether the Commission grants or denies TruConnect’s
Petition, a final order will be issued. Upon issuance of the final order, the
docket should be closed.
