Senate Bill S5789

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5789

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 16, 2011
                               ___________

Introduced  by  Sen.  ALESI  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the public service law, in  relation  to  modifying  the
  current  regulatory  framework  for  telephone  corporations and cable
  television companies to better reflect the current  realities  of  the
  telecommunications and cable industries

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "telecommunications reform act of 2011".
  S 2. Legislative findings and purpose. The legislature finds that:
  1.  (a)  Pervasive  competition  for  communications services that are
provided by telephone corporations subject to regulation by  the  public
service commission has been firmly established in New York.
  (b)  In large part competition is provided by fully "facilities-based"
companies that utilize their own networks to provide service rather than
relying on the networks of incumbent  wireline  telephone  corporations;
and  fully  facilities-based  competition is supplemented by competition
from providers that utilize some incumbent facilities but that  rely  in
substantial part on their own facilities.
  (c) In large part competition is provided through the use of modes and
technologies  other  than  those  traditionally used to provide wireline
telephone service ("intermodal competition").
  (d) Pervasive, facilities-based, intermodal competition extends to the
full range of services provided to both business and residential custom-
ers.
  (e) Sound public policy favors allowing competition, rather than regu-
lation, to set the prices and other terms and conditions of service.
  2. Intermodal competitors are to a large extent able  to  offer  their
services  free  of regulation by the public service commission, and this
gives them a competitive advantage over regulated telephone corporations

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13090-01-1
              

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that is not based on superior price, quality, or reputation, but  simply
on differential regulation.
  3.  (a) The public service law does not adequately reflect the current
realities of the market for the services provided by regulated telephone
corporations, and regulatory reform is therefore necessary  and  desira-
ble.
  (b)  The  pervasive,  facilities-based,  intermodal  competition  that
exists today is sufficient to ensure that the prices and other terms and
conditions of the full range of services provided by  traditional  tele-
phone  corporations remain just and reasonable without the necessity for
detailed regulation.
  (c) The current regulatory scheme for traditional  wireline  telephone
corporations  impairs  rather  than  facilitates competition by imposing
asymmmetrical burdens upon such corporations.
  (d)  Significant  deregulation  of  traditional   wireline   telephone
services  is  necessary  and appropriate to ensure fair competition on a
level playing field, and thus to maximize the public benefits created by
competition.
  (e) Accordingly, it is the intent of the legislature to  significantly
reduce  the  regulatory  burdens  that  the law currently imposes on the
services provided by telephone corporations subject to the  commission's
jurisdiction.
  4.  (a)  Various provisions of current law generally require telephone
corporations to  set  forth  prices  and  other  information  concerning
certain   services   that   they  offer  in  published  "schedules"  (or
"tariffs"), generally require changes in such tariffs be filed with  the
public  service  commission  a  specified  number of days prior to their
effective date, and generally give the commission power to disapprove or
suspend the effectiveness of such schedules.
  (b) Such requirements impose an  administrative  burden  on  regulated
companies, slow the introduction of innovative new services, and inhibit
rapid  changes in price and other terms and conditions of service offer-
ings in response to market conditions.
  (c) Intermodal providers that offer services to end-user customers  in
competition  with  regulated  telephone  corporations  are generally not
subject to such requirements.
  (d) As a result, such requirements impose an unfair  and  asymmetrical
competitive  burden  upon telephone corporations that are subject to the
commission's jurisdiction.
  (e) Accordingly, it would be consistent with the  public  interest  to
relieve  telephone  corporations  of  such  requirements with respect to
services offered primarily to end-user customers.
  5. (a) Allowing competing service providers to  offer  services  using
the technologies of their choice encourages competition, investment, the
adoption of innovative new technologies, and technological diversity.
  (b)  Accordingly,  it  would be consistent with the public interest to
preclude the commission from  prohibiting  telephone  corporations  from
utilizing,  or from requiring telephone corporations to utilize, partic-
ular transport, switching, distribution, or other  technologies  in  the
provision of their services.
  S  3.  Section  5 of the public service law is amended by adding a new
subdivision 7 to read as follows:
  7. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, NO  PROVISION  OF  THIS
CHAPTER, AND NO REGULATION, ORDER OR SETTLEMENT ADOPTED PURSUANT TO THIS
CHAPTER,  SHALL  APPLY  TO  ANY TELEPHONE CORPORATION IN ANY EXCHANGE IN
WHICH THERE ARE AT LEAST TWO PROVIDERS OFFERING VOICE SERVICES TO RETAIL

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RESIDENTIAL CUSTOMERS USING ANY TECHNOLOGY, INCLUDING BUT NOT LIMITED TO
PROVIDERS OF COMMERCIAL MOBILE SERVICE AS DEFINED IN 47 U.S.C.  S 332(D)
AND PROVIDERS OF VOICE OVER INTERNET PROTOCOL SERVICE; PROVIDED,  HOWEV-
ER,  THAT  NOTHING IN THIS SUBDIVISION SHALL BE INTERPRETED TO GRANT THE
COMMISSION ANY AUTHORITY THAT IT DID NOT HAVE  PRIOR  TO  THE  EFFECTIVE
DATE  THEREOF;  AND  PROVIDED  FURTHER  THAT NOTHING IN THIS SUBDIVISION
AFFECTS:
  (A) THE COMMISSION'S AUTHORITY UNDER ARTICLE ELEVEN OF THIS CHAPTER;
  (B) ANY DUTIES IMPOSED UPON THE COMMISSION BY FEDERAL LAW;
  (C) THE APPLICABILITY OF, AND  ANY  AUTHORITY  OF  THE  COMMISSION  TO
IMPLEMENT OR ENFORCE, ANY LAW, RULE, TARIFF, OR REGULATION GOVERNING THE
RIGHTS,  DUTIES  OR OBLIGATIONS OF ANY PARTY RELATING TO INTERCONNECTION
OR CARRIER-TO-CARRIER SERVICES, INCLUDING ANY AUTHORITY OF  THE  COMMIS-
SION  TO  ENFORCE  ANY RIGHTS, DUTIES, OR OBLIGATIONS UNDER 47 U.S.C. SS
251 AND 252;
  (D) THE COMMISSION'S EXISTING JURISDICTION OVER THE  LEVEL  OF  INTRA-
STATE  SWITCHED  ACCESS  RATES  CHARGED BY A LOCAL EXCHANGE TELECOMMUNI-
CATIONS COMPANY;
  (E) THE APPLICABILITY OR ENFORCEMENT OF CONSUMER PROTECTION AND UNFAIR
OR DECEPTIVE TRADE PRACTICES LAWS THAT APPLY GENERALLY TO THE CONDUCT OF
BUSINESS IN THE STATE;
  (F) THE COMMISSION'S EXISTING AUTHORITY TO  REQUIRE  TELEPHONE  CORPO-
RATIONS TO SUBMIT REPORTS OF MAJOR NETWORK OUTAGES;
  (G) THE COMMISSION'S EXISTING AUTHORITY TO IMPOSE AND ENFORCE REQUIRE-
MENTS RELATED TO TELEPHONE RELAY SERVICE OR EMERGENCY CALLING (911/E911)
SERVICE;
  (H) THE COMMISSION'S EXISTING AUTHORITY TO IMPOSE AND ENFORCE REQUIRE-
MENTS  RELATED  TO  CHANGES IN A CUSTOMER'S SERVICE PROVIDER WITHOUT THE
CUSTOMER'S CONSENT;
  (I) THE COMMISSION'S EXISTING  AUTHORITY  WITH  RESPECT  TO  TELEPHONE
RELAY SERVICE;
  (J)  THE  COMMISSION'S  EXISTING  AUTHORITY TO REQUIRE THE OFFERING OF
LIFELINE SERVICE AT A DISCOUNT, PROVIDED FURTHER THAT ANY TECHNOLOGY MAY
BE USED TO SATISFY LIFELINE  OBLIGATIONS  WITHOUT  OTHERWISE  SUBJECTING
LIFELINE  SERVICES  TO ANY GREATER REGULATION THAN NON-LIFELINE SERVICES
PROVIDED USING THAT TECHNOLOGY; OR
  (K) THE CORPORATION'S STATUS AS  A  TELEPHONE  CORPORATION  UNDER  THE
TRANSPORTATION CORPORATIONS LAW.
  S 4. The public service law is amended by adding a new section 92-g to
read as follows:
  S  92-G.  TARIFF  OR SCHEDULE FOR RETAIL SERVICES. 1.  NOTWITHSTANDING
ANY OTHER PROVISION OF THIS CHAPTER, OR ANY REGULATION OR  ORDER  ISSUED
BY  THE  COMMISSION  PURSUANT TO THIS CHAPTER, ON OR AFTER THE EFFECTIVE
DATE OF THIS SECTION, NO TELEPHONE CORPORATION SHALL BE REQUIRED TO: (A)
PREPARE, MAINTAIN, ISSUE, OR FILE WITH  THE  COMMISSION  ANY  TARIFF  OR
SCHEDULE, OR STATEMENT OR DESCRIPTION OF ANY KIND, OF THE RATES OR OTHER
TERMS AND CONDITIONS OF ANY OF ITS RETAIL SERVICES; OR
  (B)  PROVIDE  NOTICE TO OR OBTAIN APPROVAL FROM THE COMMISSION FOR ANY
TARIFF, SCHEDULE, RATE,  TERM,  OR  CONDITION  APPLICABLE  TO  A  RETAIL
SERVICE.
  2.  ANY  TARIFF  OR  SCHEDULE FOR RETAIL SERVICES FILED BY A TELEPHONE
CORPORATION PRIOR TO THE EFFECTIVE DATE OF THIS SECTION MAY BE WITHDRAWN
AT ANY TIME AFTER SUCH DATE UPON THIRTY DAYS' NOTICE TO THE  COMMISSION,
BUT SHALL REMAIN IN EFFECT UNTIL SUCH WITHDRAWAL.
  S  5.  Section  5 of the public service law is amended by adding a new
subdivision 8 to read as follows:

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  8. THE COMMISSION SHALL HAVE NO AUTHORITY  TO  REQUIRE  ANY  TELEPHONE
CORPORATION  TO  USE,  OR  TO  PROHIBIT SUCH CORPORATION FROM USING, ANY
PARTICULAR TRANSPORT, DISTRIBUTION, SWITCHING, OR OTHER  TECHNOLOGY  FOR
THE  PROVISION  OF  ITS  SERVICES.  THE SELECTION OF APPROPRIATE NETWORK
TECHNOLOGIES  SHALL  LIE  WITHIN  THE DISCRETION OF THE TELEPHONE CORPO-
RATION.
  S 6. Severability. If any provision of this act or its application  to
any  person  or  circumstance  is held invalid, this invalidity does not
affect other provisions or applications of this act that  can  be  given
effect without the invalid provision or application, and to this end the
provisions of this act are declared to be severable.
  S 7. This act shall take effect immediately.