CHAPTER 272

FORMERLY

HOUSE BILL NO. 417

AS AMENDED BY

HOUSE AMENDMENT NOS. 1,2 & 3

AN ACT TO AMEND SUBCHAPTER VII-A OF TITLE 26 OF THE DELAWARE CODE RELATING TO THE TELECOMMUNICATIONS TECHNOLOGY INVESTMENT ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 704(a), Title 26 of the Delaware Code by deleting the comma after the word “provider”.

Section 2. Further Amend § 704(a), Title 26 of the Delaware Code by inserting the phrase “or any other provider offering competitive services as defined in § 705(c)(2)” between the words “subchapter” and “may”.

Section 3. Further Amend § 704(a), Title 26 of the Delaware Code by inserting the phrase “or any telecommunication service provider that has previously elected may re-elect,” between the words “elect” and “upon” as they appear in the first sentence.

Section 4. Further Amend § 704(a), Title 26 of the Delaware Code by deleting the phrase “8, 1993” and inserting in lieu thereof the phrase “15, 2008”.

Section 5. Further Amend § 704(a), Title 26 of the Delaware Code by inserting the phrase “or re-election, §§ 209(a), 215 and” between the words “election” and “subchapter” in the second sentence.

Section 6. Further Amend § 704(a), Title 26 of the Delaware Code by deleting the third sentence in its entirety and inserting in lieu thereof the following:

“If any provision of subchapter II of this Title is inconsistent with the intent or provisions of this subchapter, the provisions of this subchapter shall control.”.

Section 7. Amend § 704(b), Title 26 of the Delaware Code by deleting said subsection it in its entirety and replacing it with a new subsections “(b)” and “(c)” to read as follows:

“(b) An election by a service provider to be governed by this subchapter shall be effective for a term of not less than three (3) years and shall automatically be extended for additional three (3) year terms except as described below. Not less than one (1) year prior to the expiration of any term, the service provider shall notify the Commission if it no longer wishes to be governed by this subchapter. Upon receipt of such notification, the Commission shall commence an open and public proceeding to determine what appropriate form of regulation should be applied to such provider under § 703 of this Title. The Commission shall conclude any such proceeding by final order within 12 months from the filing of such notification and, in making its determination, the Commission shall give appropriate consideration to the form of regulation, if any, then applicable to competitors of such service provider.

(c) Nothing in this subchapter shall be construed to affect the rights, duties or obligations of telecommunications carriers, including those carriers who are parties to interconnection agreements approved by the Commission on or before January, 1, 2008, set forth in sections 251-252 of the federal Telecommunications Act, 47 U.S.C. § 251-252, including but not limited to, the duty to negotiate interconnection agreements, to provide interconnection, to provide access to unbundled network elements, and to provide resale, nor shall anything in this subchapter affect the exercise of authority assigned to the Commission by sections 251-252 of the federal Telecommunications Act, 47 U.S.C. § 251-252, including but not limited to the authority to arbitrate and approve interconnection agreements.”

Section 8. Amend § 705 of Title 26 of the Delaware Code by deleting subsections “(a)”, “(b)” and “(c)” by deleting them in their entirety and replacing them with new subsections “(a)”, “(b)” and “(c)” to read as follows:

“(a) ‘Basic services’ shall mean :

(1) Individual residential local exchange access line and residential local usage;

(2) Individual business local exchange access line and business local usage to the extent the services are provided to business customers ordering single-line business at a particular address;

(3) Switched access services;

(4) White pages listings; whether listed, nonlisted or private;

(5) Telecommunications relay service;

(6) 911 enhanced emergency system; and

(7) Touchtone service.

(b) ‘Bundle’ means a combination of retail services offered as a package, either at a single price or with the availability of the price for one (1) or more services contingent on the purchase of other services, and includes any telephone service combined with any other telephone service or any nontelephone services, including services offered by an affiliate of a telephone company or an unregulated entity.

(c) ‘Competitive services’ shall mean (1) all services which are not classified as ‘basic’ in subsection (a) above; (2) any bundled service, even if the bundled service includes one (1) or more basic services; or; (3) any new service other than switched access service, offered after July 15, 2008. For purposes of reclassifying basic service as competitive under section 706(c), competitive service shall be defined as services for which: (a) there are similar or substitute services or products which are offered and generally available within the relevant geographic area from at least one (1) unaffiliated provider; (b) there is at least one (1) unaffiliated service provider which is present and viable; and (c) there are no significant barriers to market entry. The Commission may also consider any other factors it deems relevant and in the public interest in making determinations regarding the classification of services as competitive.”

Section 9. Amend § 705(d), Title 26 of the Delaware Code by inserting the phrase “or in the industry” after the word “Commission” as it appears in the first sentence.

Section 10. Amend § 706, Title 26 of the Delaware Code by deleting said section in its entirety and inserting in lieu thereof the following:

Ҥ 706. Offering, classification and abandonment of service.

(a) A service provider is not required to provide notice to the Commission for any new service.

(b) Competitive services, including new services, are not subject to mandatory tariff or other filing requirements.

(c) Upon application by the service provider, the Commission may, after notice and hearing, reclassify basic services as competitive. Any party proposing any such reclassification shall have the burden of supporting its proposal.

(d) Basic services may be abandoned pursuant to § 203A of this Title. Notwithstanding the provisions of § 203A(c) of this Title, a service provider may abandon a competitive service after providing the Commission and public with 30 days notice of its intention to do so.

(e) A service provider governed under this subchapter shall obtain Commission approval for mergers as set forth in § 215(a)(1) or transfers of control as set forth in § 215(b) of this Title; provided, however, that this subsection shall not apply to or restrict transactions between parent and subsidiary corporations or between entities of which at least 50% of the beneficial ownership is held by the same persons or entities prior to such merger or transfer of control. Applications and Commission approval of mergers or transfers of control shall be governed by § 215(c), (d) and (g) of this Title.” 

Section 11. Amend § 707(a), Title 26 of the Delaware Code by deleting the number “305” as it appears in the first sentence.

Section 12. Amend § 707(b), Title 26 of the Delaware Code by inserting the phrase “or re-election” between the words “election” and “made”.

Section 13. Further Amend § 707(b), Title 26 of the Delaware Code by inserting the phrase “, which for any re-electing provider shall be the rates in existence as of July 15, 2008,” between the words “services” and “may” as they appear in the first sentence.

Section 14: Amend § 707(c), Title 26 of the Delaware Code by inserting a new subsection (1) as follows and renumbering the remaining subsections.

“(1) A service provider may not increase switched access rates unless required to maintain parity with its interstate switched access rates.”

Section 15. Amend § 707(c), Title 26 of the Delaware Code, by inserting a new subsection “(4)” to read as follows and renumbering the remaining subsections:

“(4) Upon request by a service provider, the Commission may, after notice and hearing, establish a different rate change formula than that set forth in subsection (b) for basic services provided by that service provider in light of the degree of competition, including intermodal competition, the service provider faces, if the Commission determines that the new formula will result in rates that are just and reasonable.”.

Section 16. Amend § 707, Title 26 of the Delaware Code by adding a new ‘subsection (e)’ to read as follows:

“(e) Notwithstanding subsection (b) of this Section, no service provider may assess switched access rates pursuant to tariff that are higher than the switched access rates set forth in the tariffs of the service provider serving the largest number of local exchange access lines in the State.”.

Section 17. Amend § 707(d) of the Title 26, Delaware Code by deleting the phrase “(c)(4) and (5)” and replacing it with the phrase “(c)(5), (6) and (7)”.

Section 18. Amend § 708, Title 26 of the Delaware Code by deleting said section in its entirety and redesignating existing § 709 as new § 708.

Section 19. Amend new § 708, Title 26 of the Delaware Code by inserting the phrase “(a) Except as otherwise provided in subsection (b) below,” before the word “Any”.

Section 20. Further Amend new § 708, Title 26 of the Delaware Code by deleting the phrase “subject only to the following requirements:” and inserting in lieu thereof the phrase “and subchapter II of this Title shall not apply to the provision of such services.”.

Section 21. Further Amend new § 708, Title 26 of the Delaware Code by deleting existing subsections 1-4 and inserting new subsections (b) and (c) to read as follows:

“(b) When a basic service that has not been reclassified pursuant to § 706(c) is included in a bundle that is deemed a competitive service under this subchapter, the efficiency, sufficiency, consistency and adequacy of such basic portion of the bundle shall be governed by subchapter II of this Title, except as otherwise provided in this subchapter. In adopting or enforcing any regulations pursuant to this provision, the Commission may consider the degree of regulatory obligations imposed upon competing alternative service providers, including intermodal service providers.

(c) The Commission may, upon the filing of a written complaint, investigate claims related to predatory pricing of competitive services consistent with principals of federal and state antitrust law. If the Commission opens a proceeding to investigate such claims, the burden of proof shall be on the complainant. If the Commission finds that predatory pricing has occurred, the Commission may enjoin the conduct, but may not otherwise determine the price or other terms and conditions under which a competitive service will be offered.”.

Section 22. Amend § 710, Title 26 of the Delaware Code by deleting said section in its entirety.

Section 23. Amend § 711, Title 26 of the Delaware Code by deleting said section in its entirety.

Approved June 30, 2008