BEFORE THE DEPARTMENT OF PUBLIC SERVICE REGULATION
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 38.5.3401, 38.5.3403, and 38.5.3405, the adoption of NEW RULE I, and the repeal of ARM 38.5.3414 pertaining to operator service provider rules.
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT, ADOPTION, AND REPEAL
TO: All Concerned Persons
1. On September 19, 2017, at 1:30 p.m., the Department of Public Service Regulation will hold a public hearing in the Bollinger Room, 1701 Prospect Avenue, Helena, Montana, to consider the proposed amendment, adoption, and repeal of the above-stated rules.
2. The Department of Public Service Regulation 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 Service Regulation no later than 5:00 p.m. on September 12, 2017, to advise us of the nature of the accommodation that you need. Please contact Justin Kraske, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6376; fax (406) 444-7618; TDD/Montana Relay Service (406) 444-4212; or e-mail email@example.com.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
38.5.3401 DEFINITIONS (1) remains the same.
(2) Except as context may otherwise demand, terms used in these rules have the following meanings:
(a) "Call blocking" means prohibiting or restricting a
consumer's customer's access to a carrier which offers service in the same local exchange area by means of equal access or an access code, including but not limited to 1-800, 950-XXXX, and 10-10XXX-0+ dialing sequences.
(b) "Call splashing" means the transfer of a telephone call from an operator service provider to another operator service provider or carrier in such a manner that the subsequent provider or carrier is unable or unwilling to determine the location of the origination of the call and, because of such inability or unwillingness is prevented from billing the call on the basis of such location.
cb) "Inmate operator service provider" means a carrier or operator service provider that provides regulated telecommunications services for the use of inmates in correctional facilities.
dc) "Operator service provider" means any person, company, or entity that provides automated or live assistance to a customer to arrange for billing or completion, or both, of an intrastate telephone call through a method other than:
(i) and (ii) remain the same.
AUTH: 69-3-103, 69-3-822, 69-3-1103, MCA
IMP: 69-3-102, 69-3-201, 69-3-802, 69-3-1102, 69-3-1103, MCA
REASON: Amendment of ARM 38.5.3401 is necessary to allow the department to remove the definition for call splashing and use the word "customer" consistently throughout. The commission has not received complaints about call splashing and a definition for it is no longer necessary as the commission proposes to repeal the call splashing rule.
38.5.3403 ALLOWABLE RATE (1) Pursuant to 69-3-1102 and 69-3-1105, MCA, any operator service provider may not charge more than an allowable rate, which is a rate for intrastate calls, inclusive of the call rate, aggregator surcharge, and all other calling fees, established by the commission for each category and type of service provided by an operator service provider.
(2) Except for cost-based allowable rates provided in ARM 38.5.3404 and the rates defined in HB 426, 2017 Laws of Montana Chapter 262, the allowable rate
for each category and type of service provided by operator service providers will be established by the commission annually. The allowable rate for each category and type of service will be the average of the intrastate rates charged for each category and type of operator service provider service by AT&T, MCI, and CenturyLink, plus 50%. that may be charged by an inmate operator service provider for intrastate call services shall not exceed the rate established for the same interstate service for inmate calling services as defined in 47 C.F.R. sections 64.6000 through 64.6110.
(3) Except for cost-based allowable rates provided in ARM 38.5.3404, the allowable rate that may be charged by any other operator service provider not defined in (2) for intrastate calls shall not exceed the rates contained in the following table:
[This new table is proposed to be added to new (3).]
(3) The categories and types of service for which allowable rates will be established are:
(a) assisted calls including operator dialed calling card; collect call; third party billed; person to person; operator dialed called number; and customer dialed calling card, non-company;
(b) message telecommunications service interLATA calls per minute (if the operator service provider has more than one per minute rate, e.g., distance, time of day, and so forth, "per minute" will be the average per minute); and
(c) message telecommunications service intraLATA calls per minute (if the operator service provider has more than one per minute rate, e.g., distance, time of day, and so forth, "per minute" will be the average per minute).
(4) Operator service providers with existing contracts shall be permitted to continue those contracts through the end of the contract term.
(4)(5) Before an operator service provider may provide a service not identified in this rule, a cost-based allowable rate must be established for that service in accordance with ARM 38.5.3404.
AUTH: 69-3-103, 69-3-1103, MCA
IMP: 69-3-201, 69-3-1101, 69-3-1102, 69-3-1105, MCA
REASON: Amendment of ARM 38.5.3403 is necessary to allow the department to update the commission's allowable rate rules for operator service providers. The current rule requires the commission to calculate rate caps by averaging the rates of three operator service providers and adding 50% to establish the rate caps. Over time several providers have stopped providing that operator service and only one provider remains. Therefore the rules are non-operational and the commission temporarily set the caps at the prior rates until rulemaking could be completed. The commission proposes to establish rate caps for non-inmate operator service provider calls as set out in the table in ARM 38.5.3403. The Legislature has passed HB 426 in the 2017 session and it was signed into law. HB 426 sets rate caps for state prisons, which is a subsegment of inmate calls. This law does not address local correction facilities. The commission has conducted research on operator service provider caps in other states that regulate these rates. The commission has also reviewed material on the various telecommunications rates across Montana and operator service provider rates in other states. Based on this research the commission proposes to establish intrastate rates consistent with 47 C.F.R. sections 64.6000 through 64.6110. The federal government has established rates on an interim basis for interstate operator service provider calls in the Code of Federal Regulations cited here. Intrastate service should be less costly for a telecommunications carrier to provide than interstate service which can be far distances across multiple states. The commission has also received complaints about inmate calling rates in the past. Finally when the commission initiated its investigation on operator service provider rates prior to this rulemaking it received comments from both customers and operator service providers. The commission has proposed this rule amendment in response to some of the comments it has received.
38.5.3405 GENERAL REQUIREMENTS (1) remains the same.
(2) All operator service providers must connect the
consumer customer to the local exchange company operator or explain dialing instructions for such access upon request and at no charge.
(3) remains the same.
AUTH: 69-3-103, 69-3-822, 69-3-1103, MCA
IMP: 69-3-102, 69-3-201, 69-3-802, 69-3-1104, MCA
REASON: Amendment of ARM 38.5.3405 is necessary to allow the department to use the word "customer" consistently throughout.
4. The department proposes to adopt the following rule:
NEW RULE I INVESTIGATIONS, AUDITS, AND REPORTING (1) The commission may conduct investigations and audits of any or all operator service providers in Montana.
(2) The commission may require reporting by any or all operator service providers in Montana. Upon commission notification, operator service providers shall submit reports to the commission in a format prescribed by the commission, which may require affidavits in support.
AUTH: 69-3-103, 69-3-822, 69-3-1103, MCA
IMP: 69-3-102, 69-3-201, 69-3-802, 69-3-1101, 69-3-1105, 69-3-1106, MCA
REASON: The adoption of NEW RULE I is necessary to allow the commission to investigate and audit operator service providers in Montana, as necessary. The commission requires these auditing and investigatory functions in order to ensure that rates are not exorbitant as required by statute. The commission has found it is very difficult to set allowable rates unless it is able to formally request information from operator service providers including call volumes, rates, services, and contracts. The operator service provider has the right to file a request for protective order for information filed with the commission. The commission will process those requests consistent with statutory authority and administrative rules.
5. The department proposes to repeal the following rule:
38.5.3414 CALL SPLASHING PROHIBITED
AUTH: 69-3-103, 69-3-822, MCA
IMP: 69-3-102, 69-3-201, 69-3-802, MCA
REASON: Repeal of ARM 38.5.3414 is necessary as the commission has not received complaints about call splashing. Call splashing appears to be a very unlikely issue as telephone technology has changed. Therefore a rule is no longer necessary.
6. 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: Justin Kraske, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6170; fax (406) 444-6376; or e-mail firstname.lastname@example.org, and must be received no later than 5:00 p.m., September 21, 2017.
7. The commission, a commissioner, or a duly appointed presiding officer may preside over and conduct the hearing.
8. 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 6 above or may be made by completing a request form at any rules hearing held by the department.
9. The bill sponsor contact requirements of 2-4-302, MCA, apply and the primary sponsor of the bill was contacted by phone on August 7, 2017.
10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment, adoption, and repeal of the above-referenced rules will not significantly and directly impact small businesses.
/s/ JUSTIN KRASKE /s/ BRAD JOHNSON
Justin Kraske Brad Johnson
Rule Reviewer Chairman
Department of Public Service Regulation
Certified to the Secretary of State August 7, 2017.