Pa. PUC Splits 3-2 on Intrastate Revenue Reporting Policy

not special access, are subject to an annual fiscal assessment to cover PUC operational costs (see 1905020023). Verizon, cable and other industry say federal law pre-empts the PUC statement in docket M-2018-3004578 (see 1904170059). The PUC adopted two related enforcement matters, with commissioners voting 3-2 for a motion in docket M-2019-3010251 to tentatively cancel certificates of public convenience for telecom utilities reporting zero intrastate operating revenue for multiple years, and 5-0 for an item in docket M-2019-3011090 to cancel certificates for telecom utilities that failed to file annual intrastate revenue reports for multiple years. The policy statement and related actions are meant to “clean up the telecom space,” and “make sure that all carriers are paying their fair share,” said Commissioner Norman Kennard at the livestreamed meeting. Chairman Gladys Brown Dutrieuille and Commissioner Andrew Place dissented from the policy statement and the first decertification item. Place shares the providers’ legal and technical concerns with the policy statement, and thinks the matter should be further studied and handled through a “collaborative process” or legislation, he said. Adopting it “will inevitably lead to a conflict with the FCC’s applicable jurisdictional separations rules,” and litigation, he said. Brown Dutrieuille questioned PUC procedure: “I am concerned that we are not considering other approaches and have not chosen to pursue a rulemaking.” Place said the 3-2 “decertification action against competitive carriers that affirmatively invoke or utilize the FCC’s long-standing ten percent contamination rule and do not report intrastate operating revenue to this Commission is plainly wrong. This action does not afford appropriate due process to the affected carriers, it is unfairly discriminatory because it singles out only competitive carriers that invoke or use” the 10 percent rule, “and violates federal law and regulations.” The action might violate a state court stay on the PUC’s 2017 decision that distributed antenna systems aren't utilities requiring state certification under state law (see 1901040044), said Brown Dutrieuille. That case is pending in Pennsylvania Supreme Court. Commissioners can’t say DAS providers aren’t utilities “and then, in the middle of an appeal on that very issue,” revoke their certificates for failing to report intrastate revenue, she said. “A stay is a stay.”