Case Background
Section 366.04(9)(a), Florida Statutes (F.S.), Jurisdiction of Commission, requires that the Commission regulate
the safety, vegetation management, repair, replacement, maintenance, relocation, emergency response, and storm restoration requirements
for communications services providers' poles that have public utility (i.e., investor-owned electric utility) attachments. Rule
25-18.020, Florida Administrative Code (F.A.C.), Pole Safety, Inspection,
Maintenance, and Vegetation Management, became effective and applies to
communications services providers that own poles, as defined in Section
366.02(5), F.S., with attached public utility electrical overhead facilities.
This rule applies to all communications services providers as defined in
Section 366.02(3), F.S. This rule does not apply to poles used solely to
support wireless communications service facilities or poles with no public
utility electrical overhead facilities attached.
Pursuant to Rule 25-18.020(6), F.A.C., a communications
services provider that falls under the rule must file an Annual Report
detailing the pole inspections and vegetation management activities for the
prior year is required to be filed by June 1 of each year. In addition, the
Annual Report should contain activities that the communications services
provider has planned for the upcoming year. Rule 25-18.020 (7), F.A.C., also
requires the Commission to impose upon a non-compliant utility a penalty of
$500 for the first violation, and up to $5,000 for the fifth violation of the
Rule pursuant to
Section 366.095, F.S.
Consolidated Communications of Florida Company
(Consolidated Communications) is subject to Rule 25-18.020(6), F.A.C., because
it is a communications services provider that owns poles as defined in Section
366.02(5), F.S. Florida Power & Light (FPL) and Duke Energy Florida (DEF)
have pole attachments to Consolidated Communications’ poles. However,
Consolidated Communications did not file an Annual Report on June 1, 2023, and
thus, is not in compliance with the rule.
To achieve compliance, Commission staff contacted
Consolidated Communications by email on June 5, 2023, and June 12, 2023, but
Consolidated Communications did not respond (Attachment A). On July 13, 2023,
Commission staff sent a letter, by certified mail, to Consolidated Communications
requesting the Annual Report be submitted by August 3, 2023 (Attachment B). The
certified letter was received on July 25, 2023, and signed for by James Warta
(Attachment C). Consolidated Communications did not respond. As a result,
Consolidated Communications is not in compliance with Rule 25-18.020(6), F.A.C.
at this time.
The Commission have jurisdiction pursuant to 366.04(9), F.S.
Discussion
of Issues
Issue 1:
Should the Commission order Consolidated
Communications to show cause, in writing, within 21 days from the issuance of
the order for apparent violation of Rule 25-18.020(6), F.A.C., why it failed to
produce the Annual Report by June 1, 2023, as required by the rule, and why it
should not be fined $500 for failure to comply with Rule 25-18.020(6), F.A.C.?
Recommendation:
Yes.
Consolidated Communications should be ordered to show cause, in writing, within
21 days from the issuance of the order for apparent violation of Rule
25-18.020(6), F.A.C., why it failed to produce the Annual Report by June 1,
2023, as required by the rule, and why it should not be fined $500 for failure
to comply with Rule 25-18.020(6), F.A.C. Alternatively, Consolidated
Communications may file its Annual Report and include its $500 payment for the
late filing with the Commission Clerk within the 21 day period. If the
Commission is in receipt of both the Annual Report and the $500 payment within
the 21 day period, staff recommends that the Commission no longer pursue its
Show Cause proceedings. (Imig, Marquez, Buys)
Staff Analysis:
Law
Section 366.04(9)(a), F.S., requires
the Commission to regulate the safety, vegetation management, repair,
replacement, maintenance, relocation, emergency response, and storm restoration
requirements for communications services providers’ poles. Rule
25-18.020(6), F.A.C., requires communication services providers that own poles
with attached public utility electrical overhead facilities to file an annual
report each year by June 1. The Rule requires the Commission to impose upon a non-compliant
utility a penalty of $500 for the first violation, and up to $5,000 for the
fifth violation of the Rule.
Analysis
Consolidated Communications is a communications services
provider as defined by Section 366.02(3), F.S. Consolidated Communications owns
poles as defined by Section 366.02(5), F.S. Public utilities, FPL and DEF, have
pole attachments, as defined by Section 366.02(6), F.S., on Consolidated
Communications owned poles. Rule 25-18.020, F.A.C. applies to all
communications services providers that own poles. Consolidated Communications
meets the requirements of Rule 25-18.020, F.A.C.
Rule 25-18.020(6) F.A.C., requires each communications
services provider to file an Annual Report with the Commission Clerk by June 1 of
each year. Consolidated Communications failed to file the report by June 1,
2023. To achieve compliance, Commission staff subsequently contacted
Consolidated Communications three times and received no response, and the
company never filed its Annual Report with the Commission. Consolidated
Communications has failed to comply with the requirements of 25-18.020(6),
F.A.C.
Compliance with Rule 25-18.020 F.A.C. is not optional.
Moreover, staff believes compliance with the rule is important because
it involves the safety of communications services providers’ poles. Consolidated
Communications’ failure to comply will result in a penalty assessed by the
Commission of $500 under Section 366.095, F.S., and Rule 25-18.020(7), F.A.C.,
as this is its first violation of Rule 25-18.020(6), F.A.C. Alternatively,
Consolidated Communications may late file its Annual Report with a $500 penalty
with the Commission Clerk. If the Commission is in receipt of
both the Annual Report and the $500 payment within the 21 day period, staff
recommends that the Commission no longer pursue its Show Cause proceedings.
Conclusion
Staff recommends that the Commission order Consolidated
Communications to show cause, in writing, within 21 days from the issuance of
the order, why it did not file its Annual Report by June 1, 2023, in violation
of Rule 25-18.020(6), F.A.C., and why it should not have be fined $500 for
failure to comply with Rule 25-18.020(6) F.A.C. Alternatively, Consolidated
Communications may late file its Annual Report with a $500 penalty with the Commission
Clerk. If the Commission is in receipt of both the
Annual Report and the $500 payment within the 21 day period, staff recommends
that the Commission no longer pursue its Show Cause proceedings.
Staff
recommends that the order incorporate the following conditions:
1. This
Show Cause Order is an administrative complaint by the Florida Public Service
Commission, as petitioner, against Consolidated Communications of Florida
Company, as respondent.
2. Consolidated
Communications shall respond to the Show Cause Order within 21 days of service
on the Company, and the response shall reference Docket No. 20230107-TL,
Initiation of show cause proceeding against Consolidated Communications of
Florida Company for apparent violation of Rule 25-18.020(6), F.A.C.
3. Consolidated
Communications has the right to request a hearing to be conducted in accordance
with Sections 120.569 and 120.57, F.S., and to be represented by counsel or
other qualified representative.
4. Requests
for hearing shall comply with Rule 28-106.2015, F.A.C.
5. Consolidated
Communications’ response to the show cause order shall identify those material
facts that are in dispute. If there are
none, the petition must so indicate.
6. If
Consolidated Communications files a timely written response and makes a request
for a hearing pursuant to Sections 120.569 and 120.57, F.S., a further
proceeding will be scheduled before a final determination of this matter is
made.
7. A
failure to file a timely written response to the Show Cause Order will
constitute an admission of the facts alleged herein, and a waiver of the right
to a hearing on this issue.
In the event
that Consolidated Communications fails to file a timely response to the Show
Cause Order, or fails to provide its Annual Report and $500 fine, the Company’s
will be fined $500, and a final order would be issued.
Issue
2:
Should this docket be closed?
Recommendation:
If the Commission orders Consolidated Communications
to show cause as to Issue 1, and Consolidated Communications timely responds in
writing to the Show Cause Order, this docket should remain open to allow for
the appropriate processing of the response. If the Commission orders Consolidated
Communications to show cause as to Issue 1, and Consolidated Communications
does not timely respond to the Show Cause Order, then the Commission should
issue a Final Order, and this docket should remain open until the fine is
collected. (Imig, Marquez)
Staff Analysis:
If the Commission orders Consolidated Communications
to show cause as to Issue 1, and Consolidated Communications timely responds in
writing to the Show Cause Order, this docket should remain open to allow for
the appropriate processing of the response. If the Commission orders Consolidated
Communications to show cause as to Issue 1, and Consolidated Communications
does not timely respond to the Show Cause Order, then the Commission should
issue a Final Order, and this docket should remain open until the fine is
collected.
