§ 13-502

(Section scheduled to be repealed on January 1, 2030) Sec. 13-502. Classification of services. (a) All telecommunications services offered or provided under tariff by telecommunications carriers shall be classified as either competitive or noncompetitive. A telecommunications carrier may offer or provide either competitive or noncompetitive telecommunications services, or both, subject to proper certification and other applicable provisions of this Article. Any tariff filed with the Commission as required by Section 13-501 shall indicate whether the service to be offered or provided is competitive or noncompetitive. (b) A service shall be classified as competitive only if, and only to the extent that, for some identifiable class or group of customers in an exchange, group of exchanges, or some other clearly defined geographical area, such service, or its functional equivalent, or a substitute service, is reasonably available from more than one provider, whether or not any such provider is a telecommunications carrier subject to regulation under this Act. All telecommunications services not properly classified as competitive shall be classified as noncompetitive. The Commission shall have the power to investigate the propriety of any classification of a telecommunications service on its own motion and shall investigate upon complaint. In any hearing or investigation, the burden of proof as to the proper classification of any service shall rest upon the telecommunications carrier providing the service. After notice and hearing, the Commission shall order the proper classification of any service in whole or in part. The Commission shall make its determination and issue its final order no later than 180 days from the date such hearing or investigation is initiated. If the Commission enters into a hearing upon complaint and if the Commission fails to issue an order within that period, the complaint shall be deemed granted unless the Commission, the complainant, and the telecommunications carrier providing the service agree to extend the time period. (c) In determining whether a service should be reclassified as competitive, the Commission shall, at a minimum, consider the following factors: (1) the number, size, and geographic distribution of other providers of the service; (2) the availability of functionally equivalent services in the relevant geographic area and the ability of telecommunications carriers or other persons to make the same, equivalent, or substitutable service readily available in the relevant market at comparable rates, terms, and conditions; (3) the existence of economic, technological, or any other barriers to entry into, or exit from, the relevant market; (4) the extent to which other telecommunications companies must rely upon the service of another telecommunications carrier to provide telecommunications service; and (5) any other factors that may affect competition and the public interest that the Commission deems appropriate. (d) No tariff classifying a new telecommunications service as competitive or reclassifying a previously noncompetitive telecommunications service as competitive, which is filed by a telecommunications carrier which also offers or provides noncompetitive telecommunications service, shall be effective unless and until such telecommunications carrier offering or providing, or seeking to offer or provide, such proposed competitive service prepares and files a study of the long-run service incremental cost underlying such service and demonstrates that the tariffed rates and charges for the service and any relevant group of services that includes the proposed competitive service and for which resources are used in common solely by that group of services are not less than the long-run service incremental cost of providing the service and each relevant group of services. Such study shall be given proprietary treatment by the Commission at the request of such carrier if any other provider of the competitive service, its functional equivalent, or a substitute service in the geographical area described by the proposed tariff has not filed, or has not been required to file, such a study. (e) In the event any telecommunications service has been classified and filed as competitive by the telecommunications carrier, and has been offered or provided on such basis, and the Commission subsequently determines after investigation that such classification improperly included services which were in fact noncompetitive, the Commission shall have the power to determine and order refunds to customers for any overcharges which may have resulted from the improper classification, or to order such other remedies provided to it under this Act, or to seek an appropriate remedy or relief in a court of competent jurisdiction. (f) If no hearing or investigation regarding the propriety of a competitive classification of a telecommunications service is initiated within 180 days after a telecommunications carrier files a tariff listing such telecommunications service as competitive, no refunds to customers for any overcharges which may result from an improper classification shall be ordered for the period from the time the telecommunications carrier filed such tariff listing the service as competitive up to the time an investigation of the service classification is initiated by the Commission's own motion or the filing of a complaint. Where a hearing or an investigation regarding the propriety of a telecommunications service classification as competitive is initiated after 180 days from the filing of the tariff, the period subject to refund for improper classification shall begin on the date such investigation or hearing is initiated by the filing of a Commission motion or a complaint.

Legislative History

(Source: P.A. 100-20, eff. 7-1-17 .)