SDLRC - Codified Law 49-31-3 - General supervision of telecommunications companies offering common carrier services by commission where not preempted--Filing application with commission--Demonstration of capabilities--Rules--Offering services without certificate of authority ...

49-31-3. General supervision of telecommunications companies offering common carrier services by commission where not preempted--Filing application with commission--Demonstration of capabilities--Rules--Offering services without certificate of authority as misdemeanor.

The commission has general supervision and control of all telecommunications companies offering common carrier services within the state to the extent such business is not otherwise regulated by federal law or regulation. The commission shall inquire into any complaints, unjust discrimination, neglect, or violation of the laws of the state governing such companies. The commission may exercise powers necessary to properly supervise and control such companies.

Each telecommunications company that plans to offer or provide interexchange telecommunications service shall file an application for a certificate of authority with the commission pursuant to this section. Telecommunications companies seeking to provide any local exchange service shall submit an application for certification by the commission pursuant to §§ 49-31-1 through 49-31-89. The commission shall have the exclusive authority to grant a certificate of authority. Each telecommunications company shall submit a two hundred fifty dollar application fee with its application which shall be deposited into the gross receipts tax fund established pursuant to § 49-1A-2. Unless an evidentiary hearing is required by the commission, the commission shall act on an application for a certificate of authority to provide interexchange telecommunications service within sixty days of receiving a complete application. If an evidentiary hearing is required, the commission shall act on the application within one hundred twenty days of receipt of a complete application. A telecommunications company has the burden to prove in its application that it has sufficient technical, financial and managerial capabilities to offer the telecommunications services described in its application before the commission may grant a certificate of authority. The commission may rule upon a telecommunications company's application for a certificate of authority with or without hearing.

Any certificate of authority granted by the commission may be suspended or revoked pursuant to chapter 1-26 for a willful violation of the laws of this state, a willful failure to comply with a rule or order of the commission, or other good cause. The commission shall, by rules promulgated pursuant to chapter 1-26, prescribe the necessary procedures to implement this section. A telecommunications company that had lawful authority immediately prior to July 1, 1998, to provide interexchange telecommunications services shall continue to have such authority. Any certificate of authority to provide such telecommunications service may not be sold, assigned, leased, or transferred without commission approval. The offering of such telecommunications services by a telecommunications company without a certificate of authority or inconsistent with this section is a Class 1 misdemeanor.

Source: SDC 1939, §§ 52.0202, 52.1302; SDCL, § 49-3-4; SL 1979, ch 307, § 20; SL 1987, ch 345, § 43; SL 1988, ch 375, § 7; SL 1992, ch 328, § 3; SL 1994, ch 352, § 9; SL 1998, ch 274, § 5; SL 1998, ch 275, § 1; SL 2005, ch 244, § 1.

49-31-3.2. Waiver, modification, etc., of rules and orders for fully competitive or emerging competitive service--Application for classification--Factors in determining classification--Time for approval or denial.

The commission, after notice and hearing, shall waive, eliminate or modify any of its rules or orders affecting telecommunications services if it finds that a telecommunications service is a fully competitive service or an emerging competitive service. A person, or the commission on its own motion, may apply to have an emerging competitive service of a telecommunications company classified as a fully competitive service or a noncompetitive service classified as an emerging competitive service or a fully competitive service. The application shall be filed with the commission and served on any other person designated by the commission. The application shall be in a form prescribed by the commission. The commission, in determining how a telecommunications service is to be classified, shall consider:

(1) The number and size of alternative providers of the service and the affiliation to other providers;

(2) The extent to which services are available from alternative providers in the relevant market;

(3) The ability of alternative providers to make functionally equivalent or substitute services readily available at competitive rates, terms, and conditions of service;

(4) The market share, the ability of the market to hold prices close to cost, and other economic measures of market power; and

(5) The impact on universal service.

The commission shall approve or deny any such application within ninety days after the filing of the application. However, the commission may, by order, defer the period within which it must act for one additional period of ninety days, upon a finding that the proceeding cannot be completed within ninety days and that the additional time period is necessary for the commission to adequately and completely fulfill its duty under this title. If the commission has not acted on any such application within the appropriate time period permitted, the application shall be deemed granted.

Source: SL 1988, ch 375, § 9; SL 1992, ch 328, § 5.

49-31-3.3. Investigation of telecommunications services--Ninety-day period--Reclassification--Burden of proof--Reclassification after 90 days.

The commission may, within ninety days after July 1, 1988, conclude an investigation into any or all of the telecommunications services listed in §§ 49-31-1.1, 49-31-1.2, and 49-31-1.3 to determine if any service is properly classified pursuant to the standards found in subdivisions 49-31-3.2(1) to (5), inclusive. The commission may, after notice and hearing, reclassify any service to conform the classification of the service to the evidence and the standards in § 49-31-3.2. The telecommunications company providing the service has the burden of proving the classification is appropriate. During this ninety-day period, any service subject to the investigation will remain under rate of return regulation. Upon expiration of the ninety-day period, reclassification of any service, even if hearings had commenced within the ninety days, will be pursuant to the provisions of § 49-31-3.4.

Source: SL 1988, ch 375, § 5.

49-31-3.4. Reclassification proceeding--Factors in determining reclassification--Burden of proof--Stay of price change--Penalties and costs for spurious petition.

The commission, on its own motion or upon petition, shall commence regulation or reclassify a telecommunications service previously classified by the Legislature or the commission as a fully competitive service or an emerging competitive service if, after hearing or investigation, the commission finds:

(1) That the market for that emerging competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over twenty percent of the telecommunications company's customers for that service; or

(2) That the market for that fully competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over fifty percent of the telecommunications company's customers for that service.

In any proceeding to reclassify a telecommunications service, the person initiating the petition has the burden of proving that the existing classification is inappropriate, except the telecommunications company providing the service has the burden of proving that the classification is appropriate if the proceeding is commenced by the commission on its own motion. Upon the filing of a petition under this section and upon application, the commission may enter an order staying a price change, for not more than thirty days, for the disputed service pending a hearing on the merits of the petition, for reasonable cause shown. If a petition under this section is found to be spurious or vexatious, the commission may assess reasonable penalties and costs against the petitioning party, which may include reasonable attorney fees. However, the penalties and costs may not be assessed against the commission.

Source: SL 1988, ch 375, § 10; SL 1992, ch 328, § 6.