28920.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

in the matter of THE JOINT PETITION OF XO IDAHO, INC. AND AVISTA COMMUNICATIONS OF IDAHO, INC. FOR A WAIVER OF THE COMMISSION’S SLAMMING RULE 702, IDAPA 31.41.01.702.
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CASE NO. GNR-T-01-23

ORDER NO. 28920

On December 11, 2001, Avista Communications of Idaho and XO Idaho filed a Joint Petition requesting the Commission waive the verification requirements contained in the Commission’s Telephone Customer Relations Rule 702, IDAPA 31.41.01.702(T). This temporary and pending rule adopts federal anti-slamming procedures that require telecommunications carriers to verify with the affected customer a change in the customer’s carrier. Avista and XO have entered into an agreement to sell Avista’s service operations in the Coeur d’Alene area to XO thereby transferring approximately 150 customers from Avista to XO. These customers currently take local telephone service from Avista. The parties are concerned that the sales transaction may be viewed as an unauthorized change to either the local or long-distance carriers.
THE APPLICATION
As part of the sales transaction, Avista and XO intend to individually notify all affected customers of the proposed transfer via a separate mailing. Application, Exhs. A & B. It is XO’s intent that it would only provide those telecommunication services currently provided by Avista. In other words, if Avista is providing local service but another carrier is providing long-distance services, XO would only replace Avista as the local service provider and not replace the previously selected long-distance carrier. XO does reserve the right to market its long-distance services to these customers.
The Application also states that once the Avista customers are transfered, XO will maintain the existing Avista rates for a period of at least 90 days. Application at 2. The parties do acknowledge that Avista has bundled some telecommunication services in slightly different ways than existing XO services but “those bundles will continue to be offered to migrated customers in their current form for at least ninety (90) days after the transaction.” Id. In addition to sending each customer a transition letter, XO will send a “welcome letter” to “reiterate the information disclosed in the first letter and provide the customer with other information on XO services.” Id. at 3.
In their Petition, the parties asked the Commission to waive the adopted Federal Communications Commission (FCC) verification procedures encompassed in Rule 702. The Commission’s Rule 702 adopts the FCC’s Slamming Rules that establish procedures to “verify” that the customer has consented to a change in his or her local or toll carrier. Given that XO and Avista intend to notify each customer individually of their intent to switch the customer from Avista to XO as a result of the sales transaction, they believe that a waiver of this rule is in the public interest. The parties also request that the Commission expedite its consideration of this matter.
FINDINGS AND DISCUSSION
Based upon our review of the Joint Petition and the Staff’s analysis, we find that granting a waiver of our Telephone Customer Relations Rule 702 is not necessary in this instance. First, the “transfer” of customers from Avista to XO is the result of a sales transaction between the two companies. XO will only replace those telecommunication services currently offered by Avista. A customer’s selection of other carriers will not be affected. Second, as the Commission noted in its Order adopting the FCC slamming rules, the revised rules were implemented “to take the profit out of slamming by absolving subscribers of liability for some slamming charges.” Order No. 28644 at 2. In this instance, XO will continue to charge the same rates and maintain bundled services at the same level that Avista did for at least 90 days. Consequently, customers will not be disadvantaged as to rates because the rates for the two companies will remain the same for a period of at least 90 days.
Third, in the initial letter that the parties intend to send to all customers, it specifically advises customers that they “have the right to select a different carrier for the telecommunication services currently provided to you by Avista if such alternative carrier is available.” Application, Exh. A. Thus, customers will be individually notified of the impending transaction and they retain the ability to choose a different telecommunications carrier if they so choose.
Rather than granting a waiver of our Rule 702, we believe the more appropriate course of action would be to issue this declaratory ruling. Based on the reasons set out above, the Commission finds that a waiver of our Rule 702 is not necessary given the facts portrayed in the Petition.
Given their pending transaction, the parties have urged us to expeditiously rule on this matter. The Commission further finds that it is in the public interest to expeditiously rule on this matter and issue this Declaratory Order. The change in carriers from Avista to XO is the result of a sales transaction, complete with customer notification and rate safeguards. Given the limited nature of this transaction, and the fact that the transaction will not affect the selection of non-Avista carriers, the Commission finds that it is appropriate to issue this Declaratory Order. See Rule 102, IDAPA 31.01.01.102.
O R D E R
IT IS HEREBY ORDERED AND DECLARED that Avista Communications of Idaho and XO Idaho’s Petition for a Waiver is denied because a waiver of Telephone Customer Relations Rule 702 is unnecessary. Instead, the Commission grants this Declaratory Order authorizing the carriers to convert Avista Communications’ customers to XO customers in the Coeur d’Alene service area under the conditions set forth in their Petition.
IT IS FURTHER ORDERED that the Companies provide each affected customer with the individual notices (Exhibits A & B) as set out in their Petition.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. GNRT0123 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this order or in interlocutory Orders previously issued in this Case No. GNRT0123. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61626.

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of December 2001.

PAUL KJELLANDER, PRESIDENT

Commissioner Smith Out of the Office
MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

vld/O:GNR-T-01-23_dh
The term “slamming” refers to the unauthorized change in a telephone customer’s selection of the local or long-distance carrier.

ORDER NO. 28920 1

Office of the Secretary
Service Date
December 20, 2001