DE 98-048
Public Interest Payphones
Investigation Pursuant to Section 276(b)(2)
of the Telecommunications Act of 1996
Order Approving Definition of Public Interest Payphones and
Directing Establishment of Petition Process
O R D E R N O. 23,077
December 7, 1998
APPEARANCES: Victor D. Del Vecchio, Esq. for Bell
Atlantic; William Stafford and Christian Rand for Granite State
Telephone, Inc.; Beth Osler for Merrimack Telephone Company and
Contoocook Valley Telephone Company; Stephen Nelson for Dunbarton
Telephone Company, Inc.; Linda Griebsh for the New Hampshire
Coalition Against Domestic Violence; New Hampshire Legal
Assistance by Alan Linder, Esq. for Save Our Homes Organization;
James A. Sanborn for Union Telephone Company; Kenneth Traum and
William Homeyer for the Office of the Consumer Advocate on behalf
of residential ratepayers; and E. Barclay Jackson, Esq. for the
Staff of the New Hampshire Public Utilities Commission.
I. PROCEDURAL HISTORY
The New Hampshire Public Utilities Commission opened
this docket on April 10, 1998 pursuant to the Congressional
mandate of Section 276(b)(2) of the Telecommunications Act of
1996 requiring each state to investigate whether public interest
payphones (PIPs) should be maintained and, if so, to insure that
such public interest payphones are funded fairly and equitably.
At the duly noticed prehearing conference on May 5,
1998, the Parties and Staff summarized their positions and the
Commission conducted informal discussion on the issues. By Order
No. 22,940, (May 18,1998), the Commission granted intervenor
status to Union Telephone Company (Union), the New England Public
Communications Council, Inc. (NEPCC), New Hampshire Legal
Assistance on behalf of the Save Our Homes Organization (SOHO),
Bretton Woods Telephone Company, Inc., Contoocook Valley
Telephone Company, Inc., Dunbarton Telephone Company, Inc.,
Merrimack County Telephone Company, Wilton Telephone Company,
Inc., Hollis Telephone Company, Inc., Granite State Telephone
Company, Inc., Northland Telephone Company of Maine, Inc., and
Dixville Telephone Company. New England Telephone and Telegraph
Company (Bell Atlantic) was recognized as a mandatory party to
the docket and the Office of the Consumer Advocate (OCA) is a
statutorily recognized intervenor. Order No. 22,940 provided
additional time, until June 5, 1998, for other interested parties
to intervene. The following parties filed for intervention by
June 5, 1998: the New Hampshire Coalition Against Domestic and
Sexual Violence, the New Hampshire Coalition for the Homeless,
Chichester Telephone Company, Meriden Telephone Company, and
Kearsarge Telephone Company. Order No. 22,940 also established a
procedural schedule comprised of several rounds of written
comments, technical discussion sessions and settlement
discussions.
As a result of the technical sessions and settlement
discussions, Staff and most of the Parties reached agreement as
to a definition of a PIP. On September 23, 1998, the Commission
heard evidence regarding the agreed upon definition and on
recommendations as to whether the Commission should take further
action at this time to institute a PIP program. On October 5,
1998, Bell Atlantic filed, as a supplement to Exhibit 18, an
order issued by the Vermont Department of Public Service
regarding PIPs.
II. POSITIONS OF THE PARTIES AND STAFF
A. Definition of Public Interest Payphone
Staff and all but two of the Parties agreed that the
Commission should adopt a particular definition of public
interest payphone. The proposed definition contains eight
criteria and is reported below. Neither SOHO nor the New England
Public Communications Council supported the proposed definition.
The NHPCC did not object to the proposed definition but suggested
that the Commission should not finalize the definition until
after December 1999 when the competitive payphone market will
have developed more fully. SOHO concurred with parts of the
definition but objected to others, as discussed below.
The following definition is proposed by Staff, Bell
Atlantic, Bretton Woods Telephone Company, Chichester Telephone
Company, Contoocook Valley Telephone Company, Dunbarton Telephone
Company, Meriden Telephone Company, Merrimack County Telephone
Company, Wilton Telephone Company, Hollis Telephone Company,
Granite State Telephone Company, the NHCADSV, the New Hampshire
Coalition for the Homeless, and the OCA.
A PIP is one which meets all of the following criteria:
1. The payphone fulfills a public welfare, health or
safety policy objective.
2. It is a single payphone at the location address,
such that payphones which are part of a bank of phones will not
be considered public interest payphones, and has no other payphone located within 750 feet, as measured along the route of
ordinary pedestrian travel, which is physically accessible during
the operating hours of the facility where the phone is located.
3. The request for the PIP is not from an applicant
who has signed a contract with a payphone provider. This
requirement applies to federal, state, or local government
agencies that have signed a contract with a payphone provider, as
well as private parties. A requested PIP may not be located on
property owned or controlled by a party who has a signed contract
with a payphone provider unless the property owner agrees to the
PIP placement. Agencies or individuals with signed contracts can
and should include payphones that fulfill public policy
objectives in their payphone contracts.
4. The PIP would not otherwise exist as a result of
the operation of the competitive marketplace and a need exists
for the payphone. The need for the payphone must be demonstrated
by the fact that the payphone has an actual or projected revenue
minimum of $30 per month on an average annual basis or, in cases
where usage can be measured, has an actual or projected average
usage of 3.5 calls per day. Revenue includes all coin and non-coin revenue for local, intra-, and interLATA calls as well
as any commissions or per call compensation paid to the payphone
provider.
5. The payphone is not a coinless payphone.
6. The payphone accepts incoming phone calls.
7. Unless extraordinary circumstances exist to
dictate otherwise, the general public has unrestricted physical
access to the payphone 24 hours per day.
8. The agent on whose property the payphone is
located receives no compensation from any source whatsoever
related to the placement of the payphone nor any revenues
generated from the payphone.
SOHO objected to criteria 2, 3, and 4. According to
SOHO the 750 foot distance, required by No. 2, between a PIP and
any other payphone may be too far; No. 3 unreasonably prohibits a
municipality from petitioning the Commission for a PIP; and No. 4
unreasonably requires that a PIP location have a projected or
actual minimum average number of calls per month. Furthermore,
SOHO recommended that the Commission define PIPs as payphones at
existing locations as well as future locations in order to
preclude any PIP from the risk of removal. SOHO stated that the
better policy is for critical payphones to remain in existence
rather than be subject to removal and then re-installation after
being identified as PIPs. SOHO prefers that existing uneconomic
payphones be designated as a PIP and hence avoid the jeopardy of
removal.
B. Whether Further Action Is Required by the Commission
The Parties and Staff disagree as to whether the
Commission should take further action on PIPs at this time.
1. Bell Atlantic
According to Bell Atlantic, establishing any plans for
PIPs at this point in the evolution of the competitive payphone
market would be premature because the market is adjusting to
changes instituted by FCC rules to promote competition. Bell
Atlantic argues that the competitive market may well provide for
payphones in areas the current market does not serve.
Bell Atlantic recommends that any inquiries the
Commission receives should be analyzed by the criteria specified
in the stipulation. The analysis should be undertaken by the
government agency responsible for the public's safety which owns
or controls the property for which a PIP is requested. Only
after a request has been analyzed and found to meet the criteria
for a PIP, Bell Atlantic argues, should the Commission decide
that a PIP program is needed.
2. New England Public Communications Council, Inc.
NEPCC generally agrees with Bell Atlantic that the
Commission should defer any action on PIPs for a minimum of 16
months while competitive market forces respond to the needs for
payphone service in New Hampshire. During that time, NEPCC
recommends that the Commission monitor data regarding payphone
deployment and complaints and invite comment by specific user
groups not being served adequately by the market.
3. Independent Telephone Companies
Bretton Woods Telephone Company, Chichester Telephone
Company, Contoocook Valley Telephone Company, Dunbarton Telephone
Company, Meriden Telephone Company, Merrimack County Telephone
Company, Wilton Telephone Company, Hollis Telephone Company, and
Granite State Telephone Company, referred to collectively as the
Independent Telephone Companies (ICOs) agree with Bell Atlantic
that further action is premature at this point. However, the
ICOs represented their willingness to join in a program if one is
deemed necessary by the Commission.
4. SOHO
It was SOHO's position that the evidence adduced at
hearing established a need for PIPs in New Hampshire. Based upon
testimony by SOHO, the New Hampshire Coalition for the Homeless
and the New Hampshire Coalition Against Domestic and Sexual
Violence, SOHO recommended that the Commission rule that the need
exists and commence a program to provide PIPs.
5. New Hampshire Coalition Against
Domestic and Sexual Violence
The New Hampshire Coalition Against Domestic and Sexual
Violence submitted a list of 38 proposed locations where a
payphone would meet the public interest and no payphone currently
exists. While these 38 locations have not been investigated in
light of the proposed definition, the Coalition advised against
waiting for competitive forces to address the problem. The
Coalition argued that the need has been demonstrated and that
significant lead time will be required to develop the program.
Efforts to develop the program can go forward, the Coalition
suggested, during the time the market is adjusting to FCC ordered
changes. If the market resolves the problem before funds must be
raised, so much the better. However, the Coalition doubted that
few of the identified 38 locations would be served by the newly
competitive market because they are very rural. Therefore, if
any of the 38 meet the criteria of the definition, the Coalition
expects those locations to need funding.
6. OCA
The OCA recommended that the Commission commence a
program to provide PIPs by establishing a method for citizens to
petition the Commission. The OCA suggested that the Commission
establish an Advisory Group, made up of various social agencies
as well as telecommunications carriers, to make the determination
whether a location meets the criteria contained in the
definition.
7. Staff
Staff argued that the Commission needs to take
additional steps now to insure that PIPs are maintained in New
Hampshire. Specifically, Staff recommended that the Commission
perform an investigation of locations for which PIP petitions are
filed to see whether those locations qualify as a PIP under the
proposed definition of a PIP. At the time any location is found
to be qualified, Staff recommended that the Commission implement
a PIP program, including funding. In order to avoid a lag
period, Staff recommended that the Commission investigate funding
mechanisms now.
III. COMMISSION ANALYSIS
We have considered the evidence presented and
appreciate the thoughtful efforts of those involved, especially
those social service organizations which devoted time and
resources to address this issue. Based on the record, we are
convinced that a need exists in New Hampshire to implement a PIP
program, as well as to define a PIP.
Addressing the definition first, we will adopt with
certain modifications the PIP definition contained in the
stipulation among the majority of the parties. The definition as
proposed requires clarification. References to "payphone" must
be changed to "public interest payphone" in certain instances.
In addition, we believe the definition would be clearer if it
were divided into two parts: one part concerning the
characteristics of the payphone itself and one part concerning
the characteristics of the location where the payphone is placed.
In addition, we believe that the definition should be modified in
order to provide the opportunity for a waiver from the payphone
characteristics requirements. We believe there should be an
opportunity to request a waiver from any of the characteristics
requirements, such as the requirement that a telephone take
incoming calls, if extraordinary circumstances exist. With this
in mind, we direct our Staff to meet with the parties to
reorganize and rewrite the definition to meet these concerns.
Addressing the need to implement a PIP program, we find
that there is a need to establish a process for evaluating
individual locations in light of the definition adopted. It is
our intent that this process be used to evaluate requests for
PIPs that would not otherwise be addressed by the free market
situation that exists with payphones in general. We will direct
Staff to meet with the parties to establish a process for
evaluating individual locations for which petitions may be
received by the Commission. We specifically make no finding at
this time concerning whether any particular locations qualify for
a PIP.
As to funding, in the event that it is determined that
there are PIP locations that meet the definition, a process will
need to be established for developing a funding source for the
PIP. After we have had an opportunity to review the revised
definition and the proposed process for evaluating petitions, we
would entertain suggestions on how to address the funding issue.
We are open to suggestions from Staff and the parties on how such
suggestions should be presented to the Commission, i.e., through
a hearing or merely through written comments.
We further find that the qualification process should
not include establishing an advisory group to review and
recommend disposition of PIP petitions. Such an advisory group
would create an unnecessary, possibly duplicative, component in
the process. We believe that Staff can adequately perform this
function.
Based upon the foregoing, it is hereby
ORDERED, that the proposed definition of a PIP shall be
modified pursuant to our discussion above and then submitted for
our approval within 30 days from the date of this order; and it
is
FURTHER ORDERED, that Staff and the Parties shall meet
to formulate the PIP petitioning process and shall submit their
recommendation for such process to us for our approval.
By order of the Public Utilities Commission of New
Hampshire this seventh day of December, 1998.
Douglas L. Patch Susan S. Geiger
Chairman Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary