48:2-21.19 Competitive services, rates not regulated; conditions.

4. a. (1) Notwithstanding the provisions of R.S.48:2-18, R.S.48:2-21, section 31 of P.L.1962, c.198 (C.48:2-21.2), R.S.48:3-1, or any other law to the contrary, the board shall not regulate, fix, or prescribe the rates, tolls, charges, rate structures, terms and conditions of service, rate base, rate of return, and cost of service, of competitive services.

(2) The board shall not require the local exchange telecommunications company or interexchange telecommunications carrier to file and maintain tariffs for retail competitive services, but shall require any terms and conditions of retail competitive services to be made available for public inspection on the Internet website of any local exchange telecommunications company or interexchange telecommunications carrier providing those services, and a printed copy of those terms and conditions shall be provided upon the request of a customer. Nothing in this section shall affect the ability of a local exchange telecommunications company or interexchange telecommunications carrier, in their discretion, to file tariffs with the board.

b. The board is authorized to determine, after notice and public hearing, whether a telecommunications service is a competitive service. In making that determination, the board shall develop standards of competitive service which, at a minimum, shall include: evidence of ease of market entry; presence of other competitors; and the availability of like or substitute services in the relevant geographic area. A final decision or order pursuant to this subsection shall be made within 12 months of the final public hearing held to determine whether a telecommunications service is a competitive service. If the board has not adopted a final decision or order within 12 months of the final public hearing, the board shall hold an additional public hearing before adopting a final decision or order. The board shall not make a determination pursuant to this subsection unless a public hearing has been held in the previous 12 months to determine whether a telecommunications service is a competitive service.

c. The board may determine, by rule, order, or in accordance with the provisions of a plan filed pursuant to subsection a. of section 3 of P.L.1991, c.428 (C.48:2-21.18), what reports are necessary to monitor the competitiveness of any telecommunications service.

d. The board shall have the authority to reclassify any telecommunications service that it has previously found to be competitive if, after notice and public hearing, it determines that sufficient competition is no longer present, upon application of the criteria set forth in subsection b. of this section. Upon that reclassification, the provisions of subsection a. of this section shall no longer apply and the board may determine such rates for that telecommunications service which it finds to be just and reasonable. The board, however, shall continue to monitor the telecommunications service and, whenever the board shall find that the telecommunications service has again become sufficiently competitive pursuant to subsection b. of this section, the board shall again apply the provisions of subsection a. of this section. A final decision or order pursuant to this subsection shall be made within 12 months of the final public hearing held to determine whether a telecommunications service is a competitive service. If the board has not adopted a final decision or order within 12 months of the final public hearing, the board shall hold an additional public hearing before adopting a final decision or order. The board shall not make a reclassification pursuant to this subsection unless a public hearing has been held in the previous 12 months to determine whether a telecommunications service is a competitive service.

e. Notwithstanding the provisions of subsection a. of this section, the following safeguards shall apply to the offering of any competitive service by a local exchange telecommunications company:

(1) the local exchange telecommunications company shall unbundle each noncompetitive service which is incorporated in the competitive service and shall make all noncompetitive services separately available to any customer under tariffed terms and conditions, including price, that are identical to those used by the local exchange telecommunications company in providing its competitive service;

(2) the rate which a local exchange telecommunications company charges for a competitive service shall exceed the rates charged to others for any noncompetitive services used by the local exchange telecommunications company to provide the competitive service;

(3) tariffs for competitive services that may be filed with the board shall either be in the public records, or, if the board determines that the rates are proprietary, shall be filed under seal and made available under the terms of an appropriate protective agreement, such as those used in cases before the board; and

(4) nothing in P.L.1991, c.428 (C.48:2-21.16 et seq.) shall limit the authority of the board, pursuant to R.S.48:3-1, to ensure that local exchange telecommunications companies do not make or impose unjust preferences, discriminations, or classifications for noncompetitive services.

L.1991, c.428, s.4; amended 2013, c.181, s.1; 2017, c.77, s.1.