Wisconsin Legislature: PSC 168.03(1)(a)

(1) The purpose of this chapter is to set forth the regulation of resellers and resale, to identify those entities that are telecommunications providers that must be certified as resellers under s. 196.01 (1d) (c), Stats., and to state the requirements for consideration of petitions from telecommunications providers requesting certification as alternative telecommunications utility resellers. Regulations regarding the provision of operator services by telecommunications resellers and providers of private pay telephone services are specified. This chapter also describes the telecommunications services of telecommunications utilities and specified alternative telecommunications utilities that are, or are not, available for resale. This chapter sets forth procedures for petitioning to add or remove a service from those available for resale, or to impose, remove, or modify any restriction or condition unreasonably impairing the ability of a reseller to resell a specific telecommunications service. This chapter addresses neither the right nor the manner by which a telecommunications utility may secure or claim an exemption, suspension, or modification of the duty to resell, as addressed in s. 196.219 (2), Stats., and 47 USC 251 (f).

(2) Except as specified in ss. PSC 168.02 (12) and 168.03, this chapter does not apply to telecommunications utilities or telecommunications carriers.

(3) Nothing in this chapter shall preclude special and individual consideration being given to exceptional or unusual situations and upon due investigation of the facts and circumstances involved, the adoption of requirements as to individual providers or services that may be lesser, greater, other or different than those provided in this chapter.

History: Cr. Register, November, 1997, No. 503, eff. 12-1-97.

PSC 168.02 Definitions. In this chapter:

(1) “Alternative telecommunications utility” has the meaning given in s. 196.01 (1d), Stats.

(2) “Alternative telecommunications utility reseller” means that category of telecommunications provider referred to in s. 196.01 (1d) (c), Stats.

(3) “Collect call” means a call paid for by the party receiving the call where the receiving party does not have a standing arrangement for reversed charge calling.

(4) “Control of transmission facilities” includes leasing transmission facilities, but does not include the use of transmission facilities obtained pursuant to tariff filed under any provision of ch. 196, Stats., or an agreement under 47 USC 252 approved by the commission.

Note: “Dark fiber” leases or rental agreements that identify specific facilities constitute control of transmission facilities. In contrast, however, a long-term subscription to, or putative “lease” of, a transmission service, e.g., a “lease” of DS-3 transmission capacity, does not constitute control of transmission facilities, even though the nature of the service is largely defined by reference to the principal facility involved.

(5) “Customer dialed calling card call” means a call which is dialed by the customer, and for which the customer enters a calling card number directly, without operator intervention.

(6) “Holding company” has the meaning given in s. 196.795 (1) (h), Stats., and includes for purposes of this chapter only any company which owns, operates, manages or controls a telecommunications utility.

(7) “Holding company system” has the meaning given in s. 196.795 (1) (i), Stats., and includes for purposes of this chapter only a telecommunications utility as a public utility.

(8) “Operator assisted calling card call” means a call which is dialed by the customer and paid for with a calling card, but which requires operator intervention.

(9) “Pay telephone service provider” means a person who owns or leases a pay telephone located on property owned or leased by that person and telecommunications providers furnishing customer-owned, coin-operated telephones, also commonly known as “COCOTs” or COCOT providers, but does not include telecommunications utilities or telecommunications carriers.

(10) “Person to person call” means a call in which the calling party requests to speak to a particular person, and the call is put through only if that person comes to the telephone.

(11) “Telecommunications provider” has the meaning given in s. 196.01 (8p), Stats.

(12) “Telecommunications reseller” or “reseller” means a telecommunications provider that resells message or wide-area telecommunications services or other telecommunications services approved for resale pursuant to this chapter or commission order, and includes the following:

(a) Alternative telecommunications utility resellers.

(b) Alternative telecommunications utilities authorized to engage in resale.

(c) Pay telephone service providers, as defined in sub. (9), that provide operator services, resale of telecommunications services, or both.

(d) For purposes of s. PSC 168.03 only, telecommunications carriers and telecommunications utilities certificated pursuant to s. 196.50 (2), Stats., when engaged in reselling services of another telecommunications provider.

(13) “Telecommunications service,” for purposes of this chapter, means a telecommunications service, as defined in s. 196.01 (9m), Stats., that must be offered in a tariff pursuant to state or federal statute, or a rule or order of the commission or the federal communications commission.

Note: The Wisconsin statutes requiring tariffs are ss. 196.19 and 196.194 (1), Stats. The latter permits the execution of individual customer contracts, provided an authorizing tariff complying with the requirements of s. 196.194 (1), Stats., is filed with the commission.

(14) “0” or “0-” or “0 minus” call means a call for which the caller only dials “0,” and does not dial additional digits.

(15) “0+” or “0 plus” call means a call for which the caller dials “0” and additional digits such as on a calling card call when the caller dials “0” and then the telephone number.

History: Cr. Register, November, 1997, No. 503, eff. 12-1-97.

PSC 168.03 Services available for resale.

(1) Whether offered at wholesale, retail, or both, all telecommunications services of telecommunications utilities and of alternative telecommunications utilities that are required to allow resale by commission rule or order are approved for resale by resellers, except the following:

(a) Trunks for 911 and E911 service.

(b) Telephone relay services.

(d) Telecommunications services offered in a market trial. “Market trial” means an offering of a new service for technical or market feasibility testing for a period not exceeding one year, and is offered only to a small subgroup of all intended customers.

(e) Telecommunications services offered at promotional rates that are restricted against resale by the offering utility. “Promotional rate” means a temporary price discount or other incentive offered to customers that will be effective for not more than 90 days for the purpose of encouraging the purchase of new or additional telecommunications services.

(f) Telecommunications services offered at a discount to institutions providing educational, library and health care services, as defined in 47 USC 254 and any rules of the commission or federal communications commission implementing that statute.

(g) Telecommunications services that have been grandfathered, unless the services are resold to customers that are eligible for the grandfathered services. In such cases, the reseller shall be charged no more than the grandfathered price, less any applicable wholesale discount and any other discounts, such as for volume or term, for which the reseller qualifies.

Note: Consistent with the last sentence of s. PSC 168.01 (1), this subsection does not compel the creation of a wholesale rate, when, for example, a small telecommunications utility is claiming that it is a rural telephone company exempt from such duty under the provisions of 47 USC 153 (37) and 251 (f) (1).

(2) Where prices for residential services are set below those for similar business services, telecommunications services bought at residential rates may not be resold to business customers.

(3) Upon its own motion, or upon petition by a reseller telecommunications provider, or other interested person, the commission may investigate the resale or potential resale of a service that is offered by a telecommunications utility or an alternative telecommunications utility and is not identified in sub. (1). The commission may determine whether the service should be ordered available for resale, what terms, restrictions and conditions, if any, are necessary or appropriate for resale, and whether under 47 USC 251 any present or proposed term, restriction, or condition unreasonably impairs the resale of the service. The commission may issue an order to protect or promote the public interest. An order may approve, restrict, condition, or remove a restriction on, the resale of a service.

Note: This paragraph authorizes the commission to broadly deal with tariff terms and conditions that in operation unreasonably impair the ability of a reseller to resell a tariffed telecommunications service, as defined in s. PSC 168.02 (13). To be subject to this paragraph, a tariff need not contain an explicit restriction against resale, which is prohibited by s. PSC 168.03 (1).

(4) The ownership or management of a private shared telecommunications system, as defined in s. 196.201 (1), Stats., by itself does not constitute resale of telecommunications services for purposes of this chapter, provided the resold services are furnished only to retail end-user customers at a discrete premises, such as a building complex or multi-tenant office building, served by the private shared telecommunications system.

History: Cr. Register, November, 1997, No. 503, eff. 12-1-97.

PSC 168.04 Providers subject to reseller certification.

(1) Any entity offering resold telecommunications services is a reseller requiring certification under this chapter, unless it is an exempt entity under sub. (2) or it is certificated as an alternative telecommunications utility, other than a reseller pursuant to s. 196.01 (1d) (c), Stats., and its certification includes authorization to resell intrastate telecommunications services.

Note: New and existing telecommunications utilities certified pursuant to s. 196.50 (2), Stats., and telecommunications carriers certified pursuant to s. 196.499, Stats., are, under statutory or certificate specification of statewide authority to engage in telecommunications, necessarily authorized to engage in resale without need of express certification. Such authority narrowed the application of this chapter as specified in s. PSC 168.01 (2). Section PSC 168.07 (4) governs the treatment of certificates containing resale authority issued to alternative telecommunications utilities, reseller or otherwise, prior to December 1, 1997.

(2) An entity that otherwise must be certified under sub. (1) need not obtain certification under this chapter if the entity, as a whole, is one or more of the following:

(a) A marketing agent or employee that has no discretion with respect to the prices, discounts, terms or conditions of the resale of any telecommunications service.

(b) A broker, acting as an intermediary, that assists end-user customers to obtain services directly from underlying providers at rates, terms and conditions that the customers could normally obtain on their own.

(c) A wholly owned subsidiary that is doing business in Wisconsin and is owned by a reseller previously certificated under this chapter, if the owning reseller notifies the commission in writing that it desires to extend its authorization to the subsidiary and will consolidate all requested or reportable revenue and service information of the subsidiary in its own responses or reports when complying with the information filing requirements of this chapter and ch. PSC 160, governing the Wisconsin Universal Service Fund. Upon the commission’s receipt of a notice under this paragraph, the owning and subsidiary entities shall be considered a single certificated entity for all purposes under this chapter.

(d) A vendor of prepaid calling cards, provided that another telecommunications provider certificated by this commission supplies the underlying telecommunications services for the prepaid cards and that the viability of the prepaid cards does not depend on actions of the vendor.

(e) A member of a definable class or type of reseller that the commission by order under this subsection has excluded from those resellers requiring certification under this chapter.

(f) A provider or a reseller of service that is exempt from commission regulation under s. 196.202, Stats.

Note: Under this paragraph, cellular mobile radio telecommunications utilities that are exempt from commission regulation under s. 196.202, Stats., are not required to obtain certification to resell telecommunications services obtained from other providers. This rule also exempts from certification those entities engaged solely in the resale of cellular services. If a cellular service reseller, however, seeks to resell services from other providers other than cellular mobile radio telecommunications utilities, it would no longer be able to characterize its operations as wholly cellular resale and would be obliged under s. PSC 168.04 (1) to secure certification under this chapter.

(g) A reseller whose telecommunications reselling activities are exempt from commission regulation by federal statute or a rule or order of the federal communications commission.

History: Cr. Register, November, 1997, No. 503, eff. 12-1-97.

PSC 168.05 Qualifying providers.

(1) A telecommunications provider that is certified as a telecommunications reseller under s. PSC 168.06 may do all of the following:

(a) Resell services approved for resale by the commission, as set forth in s. PSC 168.03, and purchase and use access services from telecommunications providers.

(b) Own, operate, manage or control switches, processors, routers, and other equipment customarily found in a telecommunications utility switching office or wire center.

(d) Own, operate, manage, or control, in Wisconsin, transmission facilities, including wire, cable, fiber optics, or radio, and associated electronics, whose cost basis, including capital leases as defined by generally accepted accounting principles, does not exceed $400,000. The requirements of this paragraph shall be determined for the reseller as of the date of its application for certification and as of December 31 of each calendar year, based upon responses to annual commission questionnaires filed under s. 168.12.

(2) Upon a petition from a reseller, or the commission’s own motion, the commission may, after investigation, notice and opportunity for hearing, exempt the reseller from sub. (1) (d), or reclassify the reseller as another type of telecommunications provider. When considering exempting or reclassifying a reseller, the commission may grant an exemption or order reclassification, with or without conditions to protect the public interest, based on the facts of the situation and any other information supplied by the provider.

(3) Nothing in this section authorizes a telecommunications reseller to provide facilities-based local exchange services, as defined in s. 196.219 (1) (b), Stats., in municipalities served by small telecommunications utilities having 150,000 or fewer access lines in service in this state and for which certification in compliance with ss. 196.203, 196.499 (16), or 196.50 (2), Stats., is required.

History: Cr. Register, November, 1997, No. 503, eff. 12-1-97; CR 13-025: am. (1) (d), (3) Register January 2014 No. 697, eff. 2-1-14; correction in (1) (c) made under s. 13.92 (4) (b) 7., Stats., Register January 2014 No. 697.

PSC 168.06 Petition; certification.

(1) A telecommunications provider that must be certified as a telecommunications reseller under this chapter may not resell intrastate telecommunications services in Wisconsin without receiving and maintaining certification as provided in this chapter. If a telecommunications provider fails to obtain or maintain certification as a telecommunications reseller as required under this chapter, the provider’s arrangements, contracts, and billings for resold intrastate telecommunications services rendered in Wisconsin without proper certification, are void.

(2) A telecommunications reseller seeking certification as an alternative telecommunications utility reseller shall file a petition with the commission containing the following information:

(a) The legal name, address and telephone number of the telecommunications reseller.

(b) A list of marketing, trade or other names under which the reseller intends to conduct business.

(d) An affidavit, signed by a corporate officer authorized to bind petitioner, that demonstrates that petitioner does not own, operate, manage or control, directly or indirectly, transmission facilities that are technologically capable of providing telecommunications service within Wisconsin and whose cost basis exceeds the limits specified in s. PSC 168.05 (1) (d).

(e) If the petitioner is part of a holding company system, the names of all system affiliates and a description of the nature of their affiliations with the petitioner in the holding company system.

(f) As appropriate, a copy of a Wisconsin certificate of incorporation or a certificate from the department of financial institutions authorizing the petitioner to transact business in Wisconsin, and petitioner’s state tax number.

(g) Identification of the services and activities under s. PSC 168.05 (1) for which certification is requested. A petition may include a request for exemption under s. PSC 168.05 (2).

(h) An affidavit, signed by a corporate officer authorized to bind petitioner, that verifies that all information provided in the petition is true and correct to the best of the officer’s knowledge or belief, and that the officer understands the commission’s requirement that each year, in order to continue certification in Wisconsin, an annual report must be timely filed and any required fee must be paid.

(i) Any other information as required by the commission.

(3) An original of the petition, and such number of copies as the commission may order, shall be filed with the secretary of the commission.

Note: The mailing address of the commission is P.O. Box 7854, Madison, WI 53707-7854.

(4) A fee for processing shall accompany a petition. A petition without the accompanying fee will not be accepted for filing and will be returned. The commission may determine by order the amount of the fee and the permissible form or forms of fee payment, which may include use of certified check, cashier’s check or money order and shall be made payable to the public service commission of Wisconsin. The amount of the fee will not be returned to the petitioner if the petition is ultimately rejected by the commission.

(5)

(a) On receipt of a reseller’s completed petition for certification and fee, the commission shall review the petition and conduct such additional investigation, including hearing, as may be appropriate. Upon concluding its investigation, the commission may certify the petitioner, with or without conditions, as an alternative telecommunications utility reseller, unless the commission determines that grant of the petition is not in the public interest.

Note: The current fee is $250, payable in any type of check or by money order. Cash is not acceptable.

(b) If a reseller is seeking recertification after a prior certification under this chapter expired or was revoked by the commission and it had operated in Wisconsin without certification, the commission may consider the following factors in determining any repayment, refund, or credit respecting the reseller’s void arrangements, contracts, and billings under sub. (1):

1. The reason for the failure to obtain certification of its operations under this chapter.

2. The cooperation of the reseller in resolving past deficiencies in conjunction with the application for re-certification.

3. The past conduct of the reseller during the period in which it operated without valid certification under this chapter.

4. The number and type of prior and pending consumer complaints against the reseller based upon violations of this chapter or regulations of any other governmental unit.

5. The impact of repayment, refund, or credit upon the financial viability of the reseller.

(6) If, upon petition by an interested person, the commission finds that a term or condition imposed in an alternative telecommunications utility certificate issued pursuant to this chapter is unnecessary for the protection of the public interest or is not competitively neutral in its effect, the commission shall modify or rescind the term or condition.