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Montana Administrative Register Notice 37-479 No. 14   07/30/2009    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM37.36.101, 37.36.201, 37.36.202, 37.36.206, and 37.36.604 pertaining to the Montana Telecommunications Access Program (MTAP)

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On August 19, 2009, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

            2.  The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on August 10, 2009, to advise us of the nature of the accommodation that you need.  Please contact Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

            3.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.36.101  DEFINITIONS  For purposes of this chapter, the following definitions apply:

            (1)  "Appropriate communication device" means the communication device which most efficiently allows access to the telephone an ordinary telecommunications system by a person with a telephone telecommunications usage disability.

            (2) remains the same.

            (3)  "Deaf" means having hearing in both ears which is impaired to the degree that the person is unable to understand speech on the telephone without the use of specialized telecommunications equipment a full or partial decrease in the ability to detect or understand sounds or discriminate speech.

            (4)  "Deaf-blind" means:

            (a)  being deaf, severely hearing impaired disabled or hard of hearing; and

            (b)  being blind or visually impaired disabled; and

            (c)  requiring the use of specialized telecommunications equipment to communicate effectively on the telephone using an ordinary telecommunications system.

            (5)  "Department" means the Department of Public Health and Human Services.

            (6) remains the same but is renumbered (5).

            (6)  "End user connection" means a customer's connection to a service provider's network.

            (7)  "Family" means the person with a telephone telecommunications usage disability and the relatives with whom the person resides as specified in (7)(a) through (7)(d), except that if the person with a telephone telecommunications usage disability is a foster child, "family" means the foster child only and does not include the persons with whom the foster child resides, whether related or unrelated to the child.  Relatives of the person with a telephone telecommunications usage disability included in the household when the person is not a foster child are:

            (a) remains the same.

            (b)  the mother and/or father, if the person with a telephone telecommunications usage disability is a minor child.  This includes biological parents and parents by adoption and, at the option of the person with a telephone usage disability, may include stepparents;

            (c)  minor children.  This includes biological children and children by adoption and, at the option of the person with a telephone telecommunications usage disability, may include stepchildren; and

            (d)  minor siblings, but only if the person with a telephone telecommunications usage disability is a minor.  This includes half-siblings and, at the option of the person with a telephone telecommunications usage disability, may include stepsiblings.

            (8)  "Family income" means the combined income of all members of the family of the person with the telephone telecommunications usage disability.

            (9)  "Hard of hearing" means having a hearing loss to the extent that the person requires specialized telecommunications equipment to communicate effectively on the telephone using an ordinary telecommunications system.

            (10) remains the same.

            (11)  "Local exchange company" means a telecommunications company which provides telephone access lines or wireless service to members of the public who are its customers.

            (12) remains the same but is renumbered (11).

            (13) (12)  "Mobility impaired disabled" means having reduced function of the arms and hands, making activities related to moving, turning or pressing objects difficult or impossible.  The term includes difficulty in using a wide range of telecommunications equipment.

            (14) (13)  "Person with a telephone telecommunications usage disability" means an individual who is deaf, deaf-blind, hard-of-hearing, speech impaired disabled, or mobility impaired disabled and is in need of specialized telecommunications equipment.

            (15) remains the same but is renumbered (14).

            (16)  "Provider" means a telecommunications company which provides telephone access lines or wireless service to members of the public; a local exchange company.

            (15)  "Service provider" means an entity that offers services to subscribers in Montana to allow two or more persons in different locations to communicate orally, without regard to the technology or medium the entity uses to provide the telecommunications service and access to the telecommunications relay service.  The term includes providers of telecommunications service including but not limited to providers of internet protocol-enabled voice communications service.

            (17) (16)  "Specialized telecommunications equipment" means any telecommunications device which enables or assists a person with a telephone telecommunications usage disability to communicate with others by means of the conventional telephone network public switched telephone network or internet protocol-enabled voice communications service.  The term includes but is not limited to telecommunications devices, puff-blow devices, electronic artificial larynx devices, amplified handsets, telebraille, and equipment for the mobility impaired disabled.

            (18) (17)  "Speech impaired disabled" means having a speech impediment which renders speech on an ordinary telephone telecommunications system unclear and susceptible to misunderstanding.

            (19)  "Telephone access line" means the telephone exchange access line or channel or wireless service that provides the customer of a local exchange company with access to the telecommunications network to effect the transfer of information.

(18)  "Subscriber" means an end user who receives telecommunications network access from a service provider. 

            (19)  "Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing without a change in the form or content of the information upon receipt.

 

AUTH:  53-19-305, 53-19-307, MCA

IMP:  53-19-305, 53-19-307, MCA

 

            37.36.201  ASSESSMENT  (1)  A charge fee of 10 ten cents per month shall be assessed on each telephone access line end user connection provided and billed and against any prepaid options by a service provider.

            (a)  A service provider that periodically bills subscribers for services shall bill subscribers for the fee.

            (b)  In the case of subscribers who are not billed periodically, including but not limited to subscribers who purchase prepaid wireless telecommunication services for a flat fee, the service provider shall collect the fee using one of the following methods:

            (i)  by including in the price of the service a fee of ten cents for each 30-day period during which the subscriber is authorized to use the services;

            (ii)  by collecting the fee on a monthly basis from each subscriber whose account balance is equal to or greater than the fee; or

            (iii)  by collecting the fee of ten cents per month times the number of prepaid subscribers.  The service provider shall calculate the number of prepaid subscribers by dividing total intrastate monthly revenue by the average revenue for each prepaid subscriber of the wireless industry.

            (2)  Subscribers are not required to pay the assessment in the month they are connected to the local exchange company first receive access to the telecommunications network but must pay the assessment in the month they are disconnected their access terminates.

 

AUTH:  53-19-305, 53-19-307, MCA

IMP:  53-19-311, MCA

 

            37.36.202  EXEMPTIONS  (1)  The following are exempt from the assessment provided in ARM 37.36.201:

            (a) remains the same.

            (b)  Indian tribes, with regard to access lines end user connections on the tribe's reservation only;

            (c)  enrolled members of Indian tribes, with regard to access lines end user connections on a reservation only;

            (d) through (2) remain the same.

 

            AUTH:  53-19-307, MCA

            IMP:     53-19-305, 53-19-311, MCA

 

            37.36.206  REPORTING REQUIREMENTS  (1)  Each service provider must complete and file with the Department of Revenue a quarterly reporting form on or before the last day of the month following the end of each calendar quarter.

            (2)  The quarterly reporting form must provide the following information:

            (a) and (b) remain the same.

            (c)  total number of exempt and nonexempt access lines end user connections for the calendar quarter;

            (d)  number of nonexempt access lines end user connections for the quarter;

            (e)  amount of fee computed by multiplying the total number of nonexempt access lines end user connections times ten cents per month of service during the quarter;

            (f) through (i) remain the same.

 

AUTH:  53-19-305, 53-19-307, MCA

IMP:  53-19-305, 53-19-311, MCA

 

            37.36.604  FINANCIAL ELIGIBILITY CRITERIA  (1)  Individuals whose annual family income during the 12 months immediately preceding the month of application is less than 250% of the 2006 2009 poverty guidelines published by the U.S. Department of Health and Human Services (HHS) are eligible for a loan of specialized telecommunications equipment based on income.  250% of the HHS 2006 2009 annual poverty guidelines for families of various sizes are shown in (2).

            (2)  250% of the annual poverty guidelines is as follows: 

 

 

FAMILY SIZE

250% OF ANNUAL POVERTY

GUIDELINE

One

$24,500 $27,075

Two

  33,000   36,425

Three

  41,500   45,775

Four

  50,000   55,125

Five

  58,500   64,475

Six

  67,000   73,825

Seven

  75,000   83,175

Eight

  84,000   92,525

Each Additional Person, Add

    8,500     9,350

 

            (3) remains the same.

 

AUTH:  53-19-305, 53-19-307, MCA

IMP:  53-19-305, 53-19-307, MCA

 

            4.  The Montana Telecommunications Access Program (MTAP) provides specialized telecommunications equipment to low income persons who need such equipment to communicate effectively using a telecommunications system.  MTAP is administered by the Committee on Telecommunications Access Services for Persons with Disabilities (the Committee).  Persons whose gross family income is less than 250% of the poverty guidelines established by the U.S. Department of Health and Human Services (HHS) are eligible for MTAP services.

 

ARM 37.36.604

 

ARM 37.36.604 currently provides that persons whose gross family income is less than 250% of HHS' 2006 poverty guidelines are eligible for MTAP services.

HHS updates the poverty guidelines each year to take into account increases in the cost of living.  It is therefore necessary to amend ARM 37.36.604 to provide that the 2009 poverty guidelines, which are higher than the 2006 guidelines, will be used to determine eligibility for MTAP.  If the committee did not use the most current poverty guidelines, some persons might be ineligible for MTAP due to inflationary increases in their household income that do not reflect an increase in actual buying power.

 

ARM 37.36.604 contains a table showing the level of income equal to 250% of the federal poverty guidelines for households of various sizes.  The table is currently based on the 2006 poverty guidelines.  It is therefore necessary to amend the rule to insert the new income amounts based on the 2009 poverty guidelines.

 

In addition to ARM 37.36.604 it is necessary to amend several other rules to incorporate changes to MTAP's governing statute made by Montana's 60th Legislature in House Bill 611 (HB 611).  The most significant change was the amendment of 53-19-311, MCA, which provides funding for MTAP by providing for an assessment of ten cents per month.  At the time the MTAP statute was originally enacted in 1989 the most common type of telephone service was provided by telephone exchange companies via land lines rather than by wireless service, so in 53-19-311, MCA provided that local exchange companies must bill a charge of ten cents a month on each telephone access line.  Although the term "telephone access line" was defined broadly in 53-19-302(8), MCA to include channel and wireless service as well as telephone exchange access lines, the Legislature amended 53-19-311, MCA to make its language consistent with the newer telecommunications technologies.  It was amended to provide that ten cents per month must be assessed by the service provider (rather than the local exchange company) against each end user connection (rather than against each telephone access line).  The statute now specifically mentions that the assessment applies to prepaid options.  This change in 53-19-311, MCA does not change the policy on the applicability of the assessment but merely clarifies that the assessment applies to prepaid wireless services as well as to wireless service that is billed monthly.

 

ARM 37.36.201

 

The amendment of ARM 37.36.201 regarding assessments is therefore necessary to reflect the changes in terminology in 53-19-311, MCA.  In addition to changing the term "telephone access line" to "end user connection" and the term "local exchange company" to "service provider" in ARM 37.36.201, the department is also revising the rule to provide that a fee, rather than a charge, of ten cents per month, is assessed because the word "fee" was substituted for "charge" in 53-19-311, MCA.

 

Section 53-19-311, MCA was also amended to specify how the ten cent per month fee is to be collected when the subscriber is not billed for service periodically, for example, in the case of subscribers who purchase prepaid wireless service for a flat fee.  Section 53-19-311, MCA as amended provides that the service provider may include in the purchase price a fee of ten cents for each 30-day period during which the subscriber is authorized to use the service or may collect the fee in two other ways listed in the statute.  ARM 37.36.201 is therefore being amended to include a description of the methods available for collecting the fee in cases where the subscriber is not billed periodically.

 

ARM 37.36.201(2) regarding when the assessment begins and ends also must be amended due to the changes in terminology.  It currently provides that subscribers are not required to pay the assessment in the month when they are connected to the local exchange company, but must pay it in the month when they are disconnected.  Since the fee is now assessed against end user connections rather than access lines to the local exchange company, (2) is now being amended to provide that subscribers must pay the fee in the month when they first gain access to the telecommunications network, but not in the month when their access terminates.

 

ARM 37.36.202

 

ARM 37.36.202 provides that certain entities are exempt from paying the assessment.  It currently provides that Indian tribes and enrolled members of Indian tribes do not have to pay the assessment in regard to access lines on the reservation.  Due to the change in terminology in 53-19-311, MCA and ARM 37.36.201, it is now necessary to amend (1)(a) and (b) of ARM 37.36.202 to state that Indian tribes and enrolled members of Indian tribes do not have to pay the assessment  if the end user connection is on a reservation.

 

ARM 37.36.206

 

ARM 37.36.206 requires service providers to submit quarterly reports which state, among other things, the provider's number of exempt and nonexempt access lines and the total assessment calculated by multiplying the number of nonexempt access lines by the charge of ten cents per month of service.  Because of the changes in terminology in the MTAP statute, it is now necessary to amend ARM 37.36.206 to provide that the number of exempt and nonexempt end user connections must be reported as well as the total assessment calculated by multiplying the number of nonexempt end user connections by the charge of ten cents per month of service.  Additionally, the rule currently does not specify with whom the reports are to be filed.  ARM 37.36.206 is also being amended to state that the reports are to be filed with the Department of Revenue.  This is merely being added for clarification and does not reflect a change in policy, as providers have always filed the reports with the Department of Revenue.

 

ARM 37.36.101

 

Finally, many of the definitions in ARM 37.36.101 must now be revised or deleted as a result of changes in terminology in the MTAP statute.  As discussed above, the term "telephone access line" has been replaced by the term "end user connection" in the statute, so the definition of "telephone access line" has been deleted from the rule and a definition of "end user connection" has been added.  Similarly, the term "local exchange company" has been replaced by "service provider," so the definition of "local exchange company" is being deleted and a definition of "service provider" is being added.  Throughout the MTAP statute the word "disabled" has been inserted in place of "impaired" because "disabled" is now the preferred term.  To reflect this change in the statute, the word "disabled" has been substituted for "impaired" in the definitions of "mobility impaired," "person with a telephone usage disability" and "speech impaired".

 

It is no longer necessary to define the word "provider" in the definitions rule because it has been replaced by the term "service provider" in ARM 37.36.206 on reporting requirements.  The definition of "provider" is therefore being eliminated, and, as mentioned above, a definition of "service provider" is being added.  Prior to the amendment of 53-19-302, MCA, by HB 611, "specialized telecommunications equipment" was defined as "telecommunications devices that assist a person with a disability to communicate with others by means of the conventional telephone network".  Due to recent changes in telecommunications technology, HB 611 amended the definition of "specialized telecommunications equipment" to state that they are telecommunications devices that assist a person with a disability to communicate by means of internet protocol-enabled voice communications service as well as by the public switched telephone network.  The definition of "specialized telecommunications equipment" in ARM 37.36.101 is therefore being amended to reflect this change.

 

The terms "subscriber" and "telecommunications" were previously used in the MTAP rules but were never defined.  Definitions of these terms were added to 53-19-302, MCA by HB 611 and are now being added to ARM 37.36.101 as well.  Finally, the definition of "Department" to mean the Department of Public Health and Human Services in ARM 37.36.101 is being deleted because the term "Department" is no longer used in the MTAP rules.

 

            5.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., August 27, 2009.

 

            6.  The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

            7.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

            8.  An electronic copy of this Proposal Notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

            9.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled.  The primary bill sponsor was contacted by letter dated March 6, 2007, sent postage prepaid via USPS.

 

 

 

 

/s/  Barbara Hoffmann                                  /s/  Anna Whiting Sorrell                              

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

 

 

/s/  Linda Kirkland                            

Chairman of the Montana

Telecommunications Access

Committee

           

Certified to the Secretary of State July 20, 2009.

 

 

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