Current through Register Vol. 39, No. 6, September 16, 2024
(a) For purposes of this rule, the following
definitions shall apply:
(1) "Development"
means a residential subdivision, office park, shopping center or other area
with clearly defined boundaries being developed as a unified entity by one or
more landlords or developers.
(2)
"Electing provider" means a preferred provider that has chosen to make subloops
available to competitors pursuant to subsections (f) and (h) of this
rule.
(3) "Exclusive access
provisions" are provisions of a preferred provider contract that prohibit the
developer, manager, owner or other party controlling access to a development
from allowing competitors of the preferred provider to enter upon the
development premises or easements and rights-of-way appurtenant thereto, or
provisions of a preferred provider contract that require the developer,
manager, owner or other party controlling access to a development to impose
restrictions or requirements on such third party access which are not imposed
on the preferred provider and which are anticompetitive in nature.
(4) "Exclusive provisioning provisions" are
provisions of a preferred provider contract that prohibit the developer,
manager, owner or other party controlling access to a development from allowing
competitors of the preferred provider to provide services in a development or
provisions of a preferred provider contract that require the developer,
manager, owner or other party controlling access to a development to impose
restrictions or requirements on the provisioning of such third party service
which are not imposed on the preferred provider and which are anticompetitive
in nature.
(5) "Exempted provider"
means a preferred provider that is a local exchange company and is not required
under federal law to make subloops available to its competitors, or a preferred
provider that is a competing local provider and would not, if it were a local
exchange company, be required to make subloops available to its
competitors.
(6) "Local service
provider" includes any competing local provider, as defined in
G.S.
62-3(7a), and any local
exchange company, as defined in
G.S.
62-3(16a).
(7) "Preferred provider" means a local
service provider that has entered into a preferred provider contract.
(8) "Preferred provider contract" means a
contract between a particular local service provider and the owner or developer
of a development, giving the preferred provider special status or rights not
available to other local service providers.
(9) "Weighted commission provisions" are
provisions of a preferred provider contract providing for the payment of
commissions to an owner or developer that (A) are based on the number of
customers in the development who purchase service from the preferred provider,
or (B) are based on a percentage of the revenues received by the preferred
provider from customers in the development, or (C) otherwise provide a
financial incentive for the owner or developer to exclude competitors of the
preferred provider from the development.
(b) Exclusive provisioning provisions in
preferred provider contracts are anticompetitive and void.
(c) Exclusive access provisions in preferred
provider contracts are anticompetitive and void.
(d) Weighted commission provisions in
preferred provider contracts are contrary to public policy and void, except as
provided in subsections (f) and (g) below.
(e) Every preferred provider shall file with
the Commission a Preferred Provider Notice. There shall be a single notice for
each preferred provider, rather than separate notices for each development
where a preferred provider contract exists. The notice shall comply with the
following requirements:
(1) For each
development where the provider has entered into, or will enter into, a
preferred provider contract, the Preferred Provider Notice shall provide the
following information:
(A) The name and
location of the development.
(B)
The identity of the parties to the contract.
(C) The identity of the local exchange
company, if any, in whose franchise area the development is located.
(D) Whether the contract includes exclusive
provisioning provisions.
(E)
Whether the contract includes exclusive access provisions.
(F) Whether the contract includes weighted
commission provisions, and if so, whether the provider is filing an Electing
Provider Attachment under subsection (f) of this rule or an Exempted Provider
Attachment under subsection (g) of this rule.
(2) The Preferred Provider Notice shall be
filed within 21 days after the effective date of this rule, if the provider is
a party to any existing preferred provider contract. Before entering into any
new preferred provider contract, a local service provider shall file an updated
Preferred Provider Notice (or a new notice, if it has not filed such a notice
previously) containing the information provided in subdivision (1) above with
respect to the new preferred provider contract. Before amending any preferred
provider contract in a manner that affects the information in the Preferred
Provider Notice, a local service provider shall file an updated Preferred
Provider Notice.
(f) A
preferred provider may become an electing provider by filing with the
Commission an Electing Provider Attachment that meets the requirements of
subdivisions (1) through (3) below. An electing provider, within the
developments specified in its Electing Provider Attachment, may enter into
preferred provider contracts containing weighted commission provisions and may
continue to enforce existing preferred provider contracts containing such
provisions.
(1) The Electing Provider
Attachment shall be attached to the electing provider's Preferred Provider
Notice. It shall identify the name and location of each development to which it
is applicable.
(2) The Electing
Provider Attachment shall state that within the developments to which it
applies, the electing provider will make unbundled subloops available to its
competitors pursuant to this rule. It shall specify the basic terms under which
subloops will be offered, and such terms shall be consistent with this rule and
any applicable orders of the Commission.
(3) The Electing Provider Attachment may be
updated to specify additional developments to which it is applicable. Any such
update shall be filed before the electing provider enters into any preferred
provider contract with weighted commission provisions relating to any of the
additional developments.
(g) A preferred provider may become an
exempted provider by filing with the Commission an Exempted Provider Attachment
that meets the requirements of subdivisions (1) through (3) below. An exempted
provider, within the developments specified in its Exempted Provider
Attachment, may enter into preferred provider contracts containing weighted
commission provisions and may continue to enforce existing preferred provider
contracts containing such provisions.
(1) The
Exempted Provider Attachment shall be attached to the exempted provider's
Preferred Provider Notice. It shall identify the name and location of each
development to which it is applicable.
(2) The Exempted Provider Attachment shall
state either (A) that the exempted provider is a local exchange company and is
not required by federal law to make subloops available to competitors in any of
the developments to which the attachment is applicable, or (B) that the
exempted provider is a competing local provider, and if it were a local
exchange company, it would not be required by federal law to make subloops
available to competitors in any of the developments to which the attachment is
applicable.
(3) The Exempted
Provider Attachment may be updated to specify additional developments to which
it is applicable. Any such update shall be filed before the exempted provider
enters into any preferred provider contract with weighted commission provisions
relating to any of the additional developments. For each development for which
exemption is asserted in an initial or updated Exempted Provider Attachment,
the provider shall submit an affidavit, signed by an engineer with direct
personal knowledge of the facilities serving the development, that specifies
with particularity the provider's factual and legal basis for asserting the
exemption.
(4) A local service
provider may challenge an Exempted Provider Attachment by filing a petition
seeking review of such Attachment with the Commission. In the event of such a
challenge, the Public Staff shall investigate such challenge and file its
report and recommendations concerning the merits of such challenge within 30
days of the filing of the challenge. The party asserting exemption shall bear
the burden of demonstrating entitlement to the exemption by clear and
convincing evidence. Any such challenge shall, to the extent practicable, be
given priority on the Commission's docket.
(h) No local service provider may maintain a
preferred provider contract in effect in any development unless it has duly
filed with the Commission a Preferred Provider Notice that makes reference to
the development, together with any applicable Electing Provider Attachment or
Exempted Provider Attachment.
(i)
Preferred Provider Notices, Electing Provider Attachments and Exempted Provider
Attachments shall be subject to the following filing requirements:
(1) Each preferred provider shall file its
Preferred Provider Notice, together with any Attachments, in a docket to be
designated by the Commission.
(2)
The first Preferred Provider Notice filed by a particular preferred provider
shall be labeled "Preferred Provider Notice - Version 1." The first updated
Preferred Provider Notice filed by such provider shall be labeled "Preferred
Provider Notice - Version 2," and subsequent updates shall be numbered
sequentially.
(3) Whenever an
Electing Provider Attachment or Exempted Provider Attachment is updated, the
provider shall file an update of the entire Preferred Provider Notice,
including the Attachments, with a new version number, even if the only changes
are in one of the Attachments.
(j) When a competing local provider that is
an electing provider receives a request from a competitor for subloops in a
given development, the parties shall negotiate in good faith. If they are not
able to reach agreement, the following requirements shall apply:
(1) The subloops shall be provisioned within
the same time period that the local exchange company in whose franchise area
the development is located makes subloops available. If no such period exists,
such subloops shall be provisioned within seven days.
(2) At any point 60 or more days after the
receipt of a bona fide request for subloop interconnection, either party may
request the Commission to set a subloop rate for the electing
provider.
(3) There is a rebuttable
presumption that the appropriate rate for a subloop is the applicable subloop
rate of the local exchange company in whose franchise area the development is
located. If there is no such rate in existence, then the rebuttably presumptive
subloop rate is BellSouth's Zone 1 subloop rate.
(4) The party seeking a departure from the
rebuttably presumptive subloop rate shall have the burden of proof to
demonstrate that such rate is not just and reasonable.
(5) The Commission will fix the subloop rates
for a competing local provider that is an electing provider on a company-wide
basis in an initial contested proceeding. If the rate fixed by the Commission
is different from the rate previously being paid by the subloop purchaser in
the contested proceeding, a true-up shall be performed.
(k) Every preferred provider, within the
development to which its preferred provider contract applies, shall make its
service available to competitors for resale. If the preferred provider is a
competing local provider, the following requirements shall apply:
(1) Unless the competing local provider and
the reseller agree on a different rate, the wholesale discount percentage
offered by the competing local provider shall be the same wholesale discount
percentage offered by the local exchange company in whose franchise area the
development is located. If no such wholesale discount percentage has been
determined, the discount percentage established for BellSouth in Docket No.
P-140, Sub 50 shall apply.
(2) If
either party contends that the discount percentage provided for in subdivision
(1) above is inappropriate, it may request the Commission to calculate the
discount based specifically on the circumstances of the competing local
provider. If the discount percentage fixed by the Commission is different from
the percentage previously being paid by the reseller in the contested
proceeding, a true-up shall be performed.
(l) In every development where a local
service provider has entered into a preferred provider contract containing
provisions that are void under subsections (b), (c) or (d) of this rule, the
local service provider shall, within 21 days after the effective date of this
rule, mail to each of the parties to the preferred provider contract a letter
advising such party that certain portions of the contract have been determined
to be void. The following materials shall be attached to the letter: a copy of
the preferred provider contract, with the void provisions conspicuously marked;
a copy of this rule; and a copy of the Commission's order adopting this
rule.
NCUC Docket No. P-100.
Sub 152, 01/12/06
