TITLE 26

Public Utilities

CHAPTER 1. PUBLIC SERVICE COMMISSION

Subchapter VII-A. Telecommunications Technology Investment Act


(a) A telecommunications service provider offering services as defined within § 705 of this title or any other provider offering competitive services as defined in 705(c)(1)b. of this title may elect or any telecommunication service provider that has previously elected may reelect, upon or after July 15, 2013, to determine its rates and prices for its telecommunications services pursuant to this subchapter. Upon the filing of written notice to the Commission of such an election or reelection, subchapters II and III of this chapter shall no longer apply except as specifically provided hereinafter and, in lieu thereof, this subchapter shall govern.

(b) An election by a service provider to be governed by this subchapter shall be effective for a term of not less than 3 years and shall automatically be extended for additional 3-year terms except as described below. Not less than 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)(1) 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 §§ 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 §§ 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.

(2) Nothing in this subchapter shall be construed to affect the applicability or enforcement of the provisions of Chapter 100 of Title 16 ("911—Enhanced Emergency Number Service") or the applicability or enforcement of the provisions of Chapter 101 of Title 16 ("Enhanced 911 Emergency Reporting System Fund").

69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, §§ 1-7; 79 Del. Laws, c. 53, § 1.;

(a) "Basic services" shall mean:

(1) Individual residential local exchange access line and residential local usage at a location where there is no alternative provider of telephone service available to retail residential customers determined in accordance with subsection (d) of this section below; and

(2) Switched access services;

(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 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)(1) "Competitive services" shall mean:

a. All services which are not classified as "basic" in subsection (a) of this section above;

b. Any bundled service, even if the bundled service includes 1 or more basic services; or

c. Any new service other than switched access service, offered after July 15, 2008.

(2) For purposes of reclassifying basic service as competitive under § 706(c) of this title, 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 1 unaffiliated provider;

b. There is at least 1 unaffiliated service provider which is present and viable; and

c. There are no significant barriers to market entry.

(3) 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.

(d)(1) With respect to subsection (a) of this section above, "alternative provider of telephone service" means, but is not limited to, a provider of a wireline telephone service, commercial mobile service as defined in § 332(d), Communications Act of 1934 [47 U.S.C. § 332(d)], or Voice over Internet Protocol service as defined in § 202(i)(2) of this title.

(2) If a retail residential customer disagrees with a telecommunications service provider's classification of its location as having an alternative provider of telephone service, the customer may bring the dispute to the Secretary of the Department of Technology and Information or his or her designee to determine if an alternative provider of telephone service is available to retail residential customers at the location. This standard shall be satisfied if the Secretary determines that a service that provides the ability to transmit and receive voice communications, including E-911 communications, is available from an alternative provider of telephone service at the location.

(e) Phrases used to identify specific services within the foregoing classifications shall be given the meanings commonly ascribed to them in proceedings before the Commission or in the industry. In the event the Commission concludes any of such phrases to have uncertain meaning, the Commission shall, by order after a duly noticed hearing, adopt an appropriate definition.

69 Del. Laws, c. 99, § 2; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 272, §§ 8, 9; 79 Del. Laws, c. 53, § 1.;

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

(b) Competitive services, including new services, and basic services, other than switched access, are not subject to mandatory tariff or other filing requirements except as specifically provided in this subchapter.

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

(d) Basic services other than switched access 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 at any time.

(e) A service provider governed under this subchapter and offering services defined in § 705(a)(1) of this title shall obtain Commission approval for mergers as set forth in § 215(a)(1) of this title 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.

(f) A service provider offering competitive services under this subchapter shall be subject to the provisions of §§ 202 and 216-222 of this title.

(g) Notwithstanding any order or regulation of the Commission or law to the contrary, the Commission may not investigate or adjudicate retail customer complaints for services governed by this subchapter except complaints related to the adequate provisioning of basic services.

(h) A service provider offering services under this subchapter shall comply with the certificate of public convenience and necessity requirements as set forth in § 203A(a) and (b) of this title.

69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, § 10; 79 Del. Laws, c. 53, § 1.;

(a) Except for the determination of rate changes for basic services, which determinations shall be made pursuant to the provisions of this section, the offering of basic services in this State shall be subject to the provisions of subchapters I and V of this chapter and §§ 201, 202, 203A(c), 204, 206, 212, 217, 218, 222, and 303(a) of this title and all Commission procedures, rules and regulations shall apply except to the extent inconsistent with this subchapter.

(b) After January 1 of the year immediately following the initial election or reelection made pursuant to § 704 of this title, rates for basic services, which for any reelecting provider shall be the rates in existence as of July 15, 2013, may be changed by the service provider or upon Commission initiative according to the following formula; provided, however, that a rate for a basic service may not be changed more than once in any calendar year:

Change in Rate<equalsign>Change in Gross Domestic Product-Price

_______________

Inflater since last rate change.

The Gross Domestic Product-Price Inflation Index shall be that published by the United States Department of Commerce with the most recent available data for the relevant period or, in the event that such index is discontinued, the index determined by the Commission to most closely approximate the discontinued index.

(c) The following exceptions to the rate changes otherwise determined by the foregoing formula shall apply:

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

(2) A service provider may elect not to implement all or a portion of a rate increase otherwise required by the formula.

(3) A service provider may elect to decrease rates in circumstances where the formula would require otherwise.

(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) of this section 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.

(5) In circumstances where a rate decrease would result from an application of the formula, the decreased rate shall not be lower than the incremental cost of providing that basic service as determined by the Commission.

(6) Upon application by a service provider, the rate structure for a basic service may be adjusted by the Commission where such adjustments would neither increase nor decrease the total revenue to the service provider from that particular basic service.

(7) Upon application by a service provider other than a local exchange carrier, the rates charged for a basic service which is purchased as a necessary component by such other provider of telecommunications services in order to offer its telecommunication services may be adjusted by the Commission upon a showing by such other service provider that the rate is not just and reasonable.

(8) Upon the application by any ratepayer or the service provider, rates for basic services may be adjusted with approval by the Commission in order to reflect an unforeseen change in the service provider's costs of providing telecommunications services, which change occurs for reasons beyond the control of the applicable service provider. Such change may include, but not be limited to, legal or regulatory changes which affect such costs, the method of accounting for such costs or taxes applicable to the service provider.

(9) Notwithstanding any other provision to the contrary, effective January 1, 2014, a service provider may increase rates for basic services, other than switched access services, up to 10% per calendar year for a period of 5 years. Effective January 1, 2019, rates for basic services, other than switched access service, may be increased up to 5% per calendar year. A rate for a basic service may not be changed more than once in any calendar year. The service provider shall provide 30 days advance notice to customers of the first increase in rates.

(d) Rate adjustments made pursuant to paragraphs (c)(5), (6) and (7) of this section may be made with the Commission's approval at any time and shall not be limited to once in any year.

(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 incumbent local exchange carrier in the same service territory.

(f) Notwithstanding any provision to the contrary, the amount of any change in rates resulting from application of the formula in subsection (b) of this section but not implemented by the service provider as of July 1, 2013, shall be deposited into the Delaware Broadband Fund identified in § 709 of this title in lieu of implementing these amounts through changes in rates.

69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, §§ 11-17; 79 Del. Laws, c. 53, § 1.;

(a) Any provider of a competitive service may determine its price and other terms and conditions under which such competitive service will be offered, and subchapter II of this chapter shall not apply to the provision of such services except as provided in § 706(f) of this title herein.

(b) 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.

69 Del. Laws, c. 99, § 2; 76 Del. Laws, c. 272, §§ 18-21; 79 Del. Laws, c. 53, § 1.;

(a) The State shall create a fund designated as the "Delaware Broadband Fund'' (the "Fund'') to be used to support and enhance broadband services in the State's public schools and public libraries and for rural broadband initiatives in unserved areas of the State.

(b) The Fund shall be administered by the Secretary of the Department of Technology and Information. The Secretary shall develop a plan to carry out the purposes of subsection (a) of this section and, after concurrence of the Controller General and Director of the Office of Management and Budget, may distribute moneys from the Fund to implement such plan.

(c) All moneys in the Fund shall be distributed by July 1, 2018, and the Fund shall terminate at that time.

79 Del. Laws, c. 53, § 1.;

In lieu of the regulatory assessment imposed under § 115 of this title, a service provider shall pay an assessment into the Delaware Broadband Fund. On August 1, 2013, the service provider shall pay into the fund 1/2 of the amount of its 2011 regulatory assessment in lieu of the amounts due under § 115 of this title for the period January 1, 2013, through June 2013 and shall continue making payments into the Fund in lieu of any amounts due under § 115 of this title for an additional 3 years beginning on January 30, 2014, and ending on January 30, 2016, in an amount equal to the regulatory assessment for the year 2011, after which time the obligation under § 115 of this title or to make payments under this section shall cease.

79 Del. Laws, c. 53, § 1.;

epealed by 76 Del. Laws, c. 272, § 23, eff. June 30, 2008;