Section R746-349-10 - Competitive Entry into an Area Eligible for Universal Public Telecommunications Service Support Fund Requirements(1) Applications for competitive entry to any area eligible for Universal Public Telecommunications Service Support Fund (UUSF) pursuant to Section 54-8b-2.1 and consistent with Section 54-8b-15 shall comply with Section R746-349-10.(2) In addition to the requirements set forth in Section R746-349-3, each applicant for a certificate as a COLR in a certificated area eligible for support from the UUSF shall include in its application: (a) a statement identifying the exchanges where the applicant is planning to serve;(b) a statement confirming that the applicant intends to provide public telecommunications services to any customer or class of customer who requests service within each exchange;(c) a statement identifying: (i) the services to be offered by the applicant;(ii) the technology to be installed by the applicant; and(iii) performance metrics of the offered services including projected upload and download speed, latency, capacity, and any other applicable measures;(d) a pro forma detailed build-out plan for serving as the COLR in the local exchanges that identifies, with particularity: (i) the areas where facilities will be installed including a detailed map;(iii) projected revenue; and(iv) an overall timeline for completion of the build-out that includes a beginning date, completion date, and relevant major milestone dates; and(e) an estimate of the required UUSF support using the relevant tabs of the current Utah Division of Public Utilities' Incumbent Local Exchange Carrier Annual Report form, found on the Division's website.(3)(a) Notice provided to the existing telecommunications corporation holding a certificate to provide public telecommunications service within the geographic area where the applicant is seeking to provide service, the existing COLR, made pursuant to Subsection 54-8b-2.1(3)(b) shall include a copy of the application; and(b) the application provided to the existing COLR with the initial notice may be redacted pursuant to Sections R746-1-601 through R746-1-606, but it shall include at least:(i) a detailed map identifying areas within each exchange served by the existing COLR where the applicant's facilities will be installed;(ii) the services provided by the applicant;(iii) the technology to be installed by the applicant;(iv) performance metrics of the offered services including projected upload and download speed, latency, capacity, and any other applicable measures;(v) the projected timeline for the build-out that includes a beginning date, completion date, and relevant major milestone dates; and(vi) projected UUSF support.(4) Claims of confidentiality with respect to the application and any additional information to be provided pursuant to Subsections R746-349-10(2), R746-349-10(3), and R746-349-10(5), will be addressed consistent with Sections R746-1-601 through R746-1-606.(5) The existing COLR: (a) pursuant to Subsection 54-8b-2.1(3)(b), shall be granted automatic status as an intervenor in the proceeding addressing the application of competitive entry; and(b) may challenge the applicant's application with the Commission on the following grounds: (i) the information provided by the applicant is flawed or otherwise insufficient to justify competitive entry;(ii) affordable high quality public telecommunications service is available in the relevant service areas and the applicant's proposed service offering is unlikely to materially improve the service quality or affordability for customers;(iii) the existing COLR has a reasonable build-out plan that will result in the investment in more efficient development, more timely deployment, or both, of telecommunications infrastructure and facilities in the proposed local exchange that are superior to the investments proposed by the applicant; or(iv) granting the application is otherwise not in the public interest.(6) If an existing COLR seeks to challenge the application on the grounds that it has a competing plan pursuant to Subsection R746-349-10(5)(b)(iii), 90 days after the filing of the application unless otherwise modified by the Commission, the existing COLR shall submit a filing with the Commission which contains the information required by Subsection R746-349-10(2), including information required by Section R746-349-3, and provide notice to the applicant that includes the information required by Subsection R746-349-10(3).(7) Other interested persons may seek intervention pursuant to Commission rules to challenge an application on the grounds that the application is not in the public interest.(8) In determining whether granting the application is in the public interest, and whether the proposed expenditures are reasonable, the Commission shall consider the following factors: (a) whether the proposed infrastructure duplicates current telecommunications infrastructure in the proposed service area;(b) the current service quality in the proposed service area;(c) the commitment level of both the applicant and the existing COLR in the proposed service territory; and(d) any other factor the Commission considers appropriate.(9) If the Commission grants the applicant competitive entry in a certificated area eligible for support from the UUSF: (a) the Commission shall, except as otherwise provided in Section R746-349-10: (i) approve the build-out plan of the applicant as contained in the application, as may be amended by the applicant, or agreed to by the parties, including a finding of total projected costs, initial milestones, and reporting requirements;(ii) include a provision that, subject to Subsections R746-349-10(9)(b) and R746-349-10(9)(c), the applicant will reasonably adhere to the approved build-out plan and shall be entitled to recovery of the costs reasonably incurred in completion of the build-out plan as determined by the Commission pursuant to Section 54-8b-15;(iii) provide that the existing COLR, to the extent that it remains a rate of return regulated utility, shall continue to be eligible for ongoing UUSF support on existing used and useful rate base consistent with Section 54-8b-15 and Section R746-8-401;(iv) provide that the existing COLR will not be entitled to recover capital expenditures for facilities that duplicate any portion of the approved build-out plan of the applicant without a showing of good cause and a specific finding by the Commission that the existing COLR's proposed expenditures are cost effective and reasonable costs for UUSF support. If the existing COLR is not permitted to upgrade facilities pursuant to Subsection R746-349-10(9), service to the customer who receives a reasonably comparable quality of service from the other COLR will be provided at the customer's request pursuant to a line extension tariff as set forth in Subsection R746-349-10(13); and(v) provide that the applicant will not be entitled to recover capital expenditures for facilities not approved as part of the order that duplicate existing facilities without a showing of good cause and a specific finding by the Commission that the applicant's proposed expenditures are cost effective and reasonable costs for UUSF support;(b) if a person reasonably believes that the applicant is materially departing from the approved build-out plan, that person may file a request for agency action with the Commission pursuant to Section 54-7-9; and(c) notwithstanding Section R746-349-10, the Commission may conduct a hearing to disallow any of the costs incurred by the applicant associated with an approved build-out plan upon a finding by the Commission that the applicant is responsible for intentional underbidding, material misrepresentation, or concealment associated with the competitive entry process.(10) In a proceeding where an existing COLR challenges an application for competitive entry with an alternative build-out plan, pursuant to Subsection R746-349-10(5)(b)(iii), the existing COLR shall petition the Commission for pre-approval of proposed expenditures in the local exchanges.(a) If the Commission denies competitive entry, the Commission shall: (i) approve the alternative build-out plan of the existing COLR, including a finding of total projected costs, initial milestones, and reporting requirements;(ii) require the existing COLR to proceed with its alternative build-out plan; and(iii) include a provision that, subject to Subsections R746-349-10(10)(b) and R746-349-10(10)(c), the existing COLR will reasonably adhere to the approved build-out plan and shall be entitled to recovery of the costs reasonably incurred in completion of the build-out plan as determined by the Commission pursuant to Section 54-8b-15;(b) if a person reasonably believes that the existing COLR is materially departing from the approved build-out plan, that person may file a request for agency action with the Commission pursuant to Section 54-7-9; and(c) notwithstanding Section R746-349-10, the Commission may disallow any of the costs incurred by the existing COLR associated with an approved build-out plan upon a finding by the Commission that the existing COLR is responsible for intentional underbidding, material misrepresentation, or concealment associated with the competitive entry process. (11) The Commission in its order on the application may: (a) establish additional reporting requirements for the applicant or existing COLR; and(b) schedule a final review of the applicant's or existing COLR's build-out or capital projects to ensure the approved plan was implemented prudently.(12) In a local exchange where the Commission has granted competitive entry to more than one COLR, any COLR may petition the Commission for relief from its COLR obligations in a competitive local exchange pursuant to Section 54-8b-3.(13) In local exchanges served by two or more COLRs, the COLRs shall be required to implement line extension tariffs to prevent the UUSF from supporting duplicative infrastructure. (a) To achieve this objective, the COLR's line extension tariffs shall include language that ensures that a customer who has access to functionally equivalent public telecommunications service at a reasonably comparable quality of service from another provider, but who seeks service from a COLR not currently serving the customer, the non-serving COLR, may request service from the non-serving COLR; and(b) if service is requested from the non-serving COLR, the non-serving COLR's obligation to provide the service shall be subject to the non-serving COLR's line extension tariff.Utah Admin. Code R746-349-10
Adopted by Utah State Bulletin Number 2022-23, effective 11/21/2022