Utah PSC Weighs Framing of Lumen COLR Relief Review

State agencies and rural carriers urged the Utah Public Service Commission to give heightened scrutiny to a Lumen petition seeking statewide exemption from carrier of last resort (COLR) requirements for new customers. In prehearing briefs and written testimony filed last week in docket 23-049-01, they disputed how Lumen’s CenturyLink framed its arguments that relief won’t harm landline customers and that effective competition exists across the state. The PSC plans hearings Wednesday on the petition and has a March 17 deadline to reach a decision (see 2311290043).

CenturyLink disagrees with other parties in the proceeding on how legally to interpret two terms relevant to the commission’s review: “captive customers” and “functionally equivalent.” Under Utah law, the commission must consider possible impact on the petitioning telecom company's captive customers to determine if relief is in the public interest. In deciding if there is effective competition, state law says the commission must consider competitors' ability to provide "functionally equivalent" services. The PSC sought parties' views on the terms earlier this month.

CenturyLink argues that “captive customers” refers only to present customers, not potential ones. Nowhere in state law “did the Utah Legislature choose to reference potential customers that might or might not one day move into locations served by a carrier,” said the carrier’s prehearing brief Thursday. The commission must examine market share in its review, and the only way to do that is to look at existing customers, the telco said. "Any attempt … to include future individuals would result in a completely speculative calculation.” Since CenturyLink isn’t asking to discontinue service to existing customers, “there simply is no impact to ‘captive customers’ in CenturyLink’s request for COLR relief.”

The term actually includes present and potential customers, including people who may move to CenturyLink service locations, the Utah Office of Consumer Services (OCS), Utah Division of Public Utilities (DPU) and the Utah Rural Telecom Association (URTA) argued in separate prehearing briefs Thursday. Because Utah "expressly provides that a COLR has the obligation to provide services to all customers requesting services, the definition clearly applies to both existing and potential customers,” said OCS.

“If a customer wants a particular service but has no choice as to who provides the service, they are a 'captive customer' -- whether they actually subscribe to the service or not,” agreed URTA. If someone moved to an area and found spotty mobile coverage, they would need to call the COLR for reliable service, said the association. "If that provider were relieved of its COLR obligation, the provider would have no obligation to provide service to the requesting customer and the customer would be left with no meaningful choice of providers.”

CenturyLink said all services that qualify for Utah USF (UUSF) funding for COLRs "must be considered functionally equivalent." As a result, the PSC should view wireless and satellite services as functionally equivalent to Lumen's wireline services, it said.

The other parties disagreed. A telecom service's eligibility for state USF "alone does not equate to a determination that the service is 'functionally equivalent' to landline service,” said the Utah DPU. "Although it is possible that some of the UUSF-eligible services may be functionally equivalent in many areas, [UUSF law] provides no evaluation of functional equivalency.” The state fund supports voice and broadband, it noted. "While some services arguably provide the same functions as landline service in the densely populated portions of Utah, local conditions may cause those same services to not function at all or function very poorly compared to landline service in remote geographic locations."

"There is no inherent connection between UUSF supported services and services that are functionally equivalent to landline services under” Utah law, agreed OCS. Plus, docket evidence shows that satellite services, which receive UUSF support, “are in no way comparable to landline voices services in terms of price and conditions,” said the state consumer advocate: Nor can it be "seriously argued” that wholesale broadband internet access services that receive UUSF support “are functionally equivalent to retail landline voice services.” URTA added, “Broadband service by itself cannot satisfy a COLR’s duty to offer basic local exchange service in a defined service area.”

The PSC shouldn't grant CenturyLink’s petition, OCS utility analyst Alyson Anderson said in testimony filed Wednesday. It hasn't "met its burden of proof that competitive options exist for all captive customers,” said Anderson: The carrier argues that NTIA’s broadband, equity, access and deployment (BEAD) program will help with some customers within competitive wire centers who can't access the competitive options, but "the BEAD program will not fully benefit customers until 2029.”

The commission "should require a replacement COLR for any CenturyLink areas” granted relief, said JSI Director-Economics and Policy Douglas Meredith. Residents and businesses shouldn’t “be left without a COLR while CenturyLink seeks to offer more profitable service elsewhere,” the telecom consultant said on URTA’s behalf. BEAD doesn’t require voice, but if the commission nonetheless believes it “somehow adequately provides voice services in the state … the more prudent course would be to deny CenturyLink’s petition pending the actual outcome of BEAD.”