Public Act 90-0185 of the 90th General Assembly
Public Act 90-0185
SB700 Enrolled LRB9001002JSgcB
AN ACT relating to competition in the telecommunications
industry amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Administrative Procedure Act is
amended by changing Section 1-5 as follows:
(5 ILCS 100/1-5) (from Ch. 127, par. 1001-5)
Sec. 1-5. Applicability.
(a) This Act applies to every agency as defined in this
Act. Beginning January 1, 1978, in case of conflict between
the provisions of this Act and the Act creating or conferring
power on an agency, this Act shall control. If, however, an
agency has existing procedures on July 1, 1977, specifically
for contested cases or licensing, those existing provisions
control, except that this exception respecting contested
cases and licensing does not apply if the Act creating or
conferring power on the agency adopts by express reference
the provisions of this Act. Where the Act creating or
conferring power on an agency establishes administrative
procedures not covered by this Act, those procedures shall
remain in effect.
(b) The provisions of this Act do not apply to (i)
preliminary hearings, investigations, or practices where no
final determinations affecting State funding are made by the
State Board of Education, (ii) legal opinions issued under
Section 2-3.7 of the School Code, (iii) as to State colleges
and universities, their disciplinary and grievance
proceedings, academic irregularity and capricious grading
proceedings, and admission standards and procedures, and (iv)
the class specifications for positions and individual
position descriptions prepared and maintained under the
Personnel Code. Those class specifications shall, however,
be made reasonably available to the public for inspection and
copying. The provisions of this Act do not apply to hearings
under Section 20 of the Uniform Disposition of Unclaimed
Property Act.
(c) Section 5-35 of this Act relating to procedures for
rulemaking does not apply to the following:
(1) Rules adopted by the Pollution Control Board
that, in accordance with Section 7.2 of the Environmental
Protection Act, are identical in substance to federal
regulations or amendments to those regulations
implementing the following: Sections 3001, 3002, 3003,
3004, 3005, and 9003 of the Solid Waste Disposal Act;
Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980; Sections 307(b),
307(c), 307(d), 402(b)(8), and 402(b)(9) of the Federal
Water Pollution Control Act; and Sections 1412(b),
1414(c), 1417(a), 1421, and 1445(a) of the Safe Drinking
Water Act.
(2) Rules adopted by the Pollution Control Board
that establish or amend standards for the emission of
hydrocarbons and carbon monoxide from gasoline powered
motor vehicles subject to inspection under Section
13A-105 of the Vehicle Emissions Inspection Law and rules
adopted under Section 13B-20 of the Vehicle Emissions
Inspection Law of 1995.
(3) Procedural rules adopted by the Pollution
Control Board governing requests for exceptions under
Section 14.2 of the Environmental Protection Act.
(4) The Pollution Control Board's grant, pursuant
to an adjudicatory determination, of an adjusted standard
for persons who can justify an adjustment consistent with
subsection (a) of Section 27 of the Environmental
Protection Act.
(5) Rules adopted by the Pollution Control Board
that are identical in substance to the regulations
adopted by the Office of the State Fire Marshal under
clause (ii) of paragraph (b) of subsection (3) of Section
2 of the Gasoline Storage Act.
(d) Pay rates established under Section 8a of the
Personnel Code shall be amended or repealed pursuant to the
process set forth in Section 5-50 within 30 days after it
becomes necessary to do so due to a conflict between the
rates and the terms of a collective bargaining agreement
covering the compensation of an employee subject to that
Code.
(e) Section 10-45 of this Act shall not apply to any
hearing, proceeding, or investigation conducted under Section
13-515 of the Public Utilities Act.
(Source: P.A. 87-823; 88-533.)
Section 10. The Public Utilities Act is amended by
changing Sections 10-111, 13-102, 13-103, 13-203, 13-405,
13-502, 13-504, 13-505, 13-509 and 13-803 and adding
Sections 13-505.7, 13-506, 13-512, 13-513, 13-514, 13-515,
and 13-516 as follows:
(220 ILCS 5/10-111) (from Ch. 111 2/3, par. 10-111)
Sec. 10-111. In any hearing, proceeding, investigation or
rulemaking conducted by the Commission, the Commission,
commissioner or hearing examiner presiding, shall, after the
close of evidentiary hearings, prepare a recommended or
tentative decision, finding or order including a statement of
findings and conclusions and the reasons or basis therefor,
on all the material issues of fact, law or discretion
presented on the record. Such recommended or tentative
decision, finding or order shall be served on all parties who
shall be entitled to a reasonable opportunity to respond
thereto, either in briefs or comments otherwise to be filed
or separately. The recommended or tentative decision, finding
or order and any responses thereto, shall be included in the
record for decision. This Section shall not apply to any
hearing, proceeding, or investigation conducted under Section
13-515.
(Source: P.A. 84-617.)
(220 ILCS 5/13-102) (from Ch. 111 2/3, par. 13-102)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-102. Findings. With respect to
telecommunications services, as herein defined, the General
Assembly finds that:
(a) universally available and widely affordable
telecommunications services are essential to the health,
welfare and prosperity of all Illinois citizens;
(b) recent federal regulatory and judicial rulings in
the 1980s have caused a restructuring of the
telecommunications industry and have opened some aspects of
the industry to competitive entry, thereby necessitating
revision of State telecommunications regulatory policies and
practices;
(c) revisions in telecommunications regulatory policies
and practices in Illinois beginning in the mid-1980s brought
the benefits of competition to consumers in many
telecommunications markets, but not in local exchange
telecommunications service markets;
(d) the federal Telecommunications Act of 1996
established the goal of opening all telecommunications
service markets to competition and accords to the states the
responsibility to establish and enforce policies necessary to
attain that goal;
(e) it is in the immediate interest of the People of the
State of Illinois for the State to exercise its rights within
the new framework of federal telecommunications policy to
ensure that the economic benefits of competition in all
telecommunications service markets are realized as
effectively as possible;
(f) (c) the competitive offering of all
telecommunications services will increase may create the
potential for increased innovation and efficiency in the
provision of telecommunications services and may lead to
reduced prices for consumers, increased investment in
communications infrastructure, the creation of new jobs, and
the attraction of new businesses to Illinois; and
(g) (d) protection of the public interest requires
changes in the continued regulation of telecommunications
carriers and services to ensure, to the maximum feasible
extent, the reasonable and timely development of effective
competition in all telecommunications service markets for the
foreseeable future.
(Source: P.A. 84-1063.)
(220 ILCS 5/13-103) (from Ch. 111 2/3, par. 13-103)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-103. Policy. Consistent with its findings, the
General Assembly declares that it is the policy of the State
of Illinois that:
(a) telecommunications services should be available to
all Illinois citizens at just, reasonable, and affordable
rates and that such services should be provided as widely and
economically as possible in sufficient variety, quality,
quantity and reliability to satisfy the public interest;
(b) when consistent with the protection of consumers of
telecommunications services and the furtherance of other
public interest goals, competition in all telecommunications
service markets should be pursued permitted to function as a
substitute for certain aspects of regulation in determining
the variety, quality and price of telecommunications services
and that the economic burdens of regulation should be reduced
to the extent possible consistent with the furtherance of
market competition and protection of the public interest;
(c) all necessary and appropriate modifications to State
regulation of telecommunications carriers and services should
be implemented without unnecessary disruption to the
telecommunications infrastructure system or to consumers of
telecommunications services and that it is necessary and
appropriate to establish rules to encourage and ensure a
reasonable period of time to permit preparation for orderly
transitions in the development provision of markets for all
telecommunications services;
(d) the consumers of telecommunications services and
facilities provided by persons or companies subject to
regulation pursuant to this Act and Article should be
required to pay only reasonable and non-discriminatory rates
or charges and that in no case should rates or charges for
non-competitive telecommunications services include any
portion of the cost of providing competitive
telecommunications services, as defined in Section 13-209, or
the cost of any nonregulated activities;
(e) the regulatory policies and procedures provided in
this Article are established in recognition of the changing
nature of the telecommunications industry and therefore
should be subject to systematic legislative review to ensure
that the public benefits intended to result from such
policies and procedures are fully realized; and
(f) development of and prudent investment in advanced
telecommunications services and networks that foster economic
development of the State should be encouraged through the
implementation and enforcement of policies that promote
effective and sustained competition in all telecommunications
service markets.
(Source: P.A. 87-856.)
(220 ILCS 5/13-203) (from Ch. 111 2/3, par. 13-203)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-203. Telecommunications service.
"Telecommunications service" means the provision or offering
for rent, sale or lease, or in exchange for other value
received, of the transmittal of information, by means of
electromagnetic, including light, transmission with or
without benefit of any closed transmission medium, including
all instrumentalities, facilities, apparatus, and services
(including the collection, storage, forwarding, switching,
and delivery of such information) used to provide such
transmission and also includes access and interconnection
arrangements and services.
"Telecommunications service" does not include, however:
(a) the rent, sale, or lease, or exchange for other
value received, of customer premises equipment except for
customer premises equipment owned or provided by a
telecommunications carrier and used for answering 911
calls, and except for customer premises equipment
provided under Section 13-703;
(b) telephone or telecommunications answering
services, paging services, and physical pickup and
delivery incidental to the provision of information
transmitted through electromagnetic, including light,
transmission;
(c) community antenna television service which is
operated to perform for hire the service of receiving and
distributing video and audio program signals by wire,
cable or other means to members of the public who
subscribe to such service, to the extent that such
service is utilized solely for the one-way distribution
of such entertainment services with no more than
incidental subscriber interaction required for the
selection of such entertainment service.
The Commission may, by rulemaking, exclude (1) private
line service which is not directly or indirectly used for the
origination or termination of switched telecommunications
service, (2) cellular radio service, (3) high-speed
point-to-point data transmission at or above 9.6 kilobits, or
(4) the provision of telecommunications service by a company
or person otherwise subject to Section 13-202 (c) to a
telecommunications carrier, which is incidental to the
provision of service subject to Section 13-202 (c), from
active regulatory oversight to the extent it finds, after
notice, hearing and comment that such exclusion is consistent
with the public interest and the purposes and policies of
this Article. To the extent that the Commission has excluded
cellular radio service from active regulatory oversight for
any provider of cellular radio service in this State pursuant
to this Section, the Commission shall exclude all other
providers of cellular radio service in the State from active
regulatory oversight without an additional rulemaking
proceeding where there are 2 or more certified providers of
cellular radio service in a geographic area.
(Source: P.A. 87-856.)
(220 ILCS 5/13-405) (from Ch. 111 2/3, par. 13-405)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-405. Local exchange service authority; approval.
The Commission shall approve an application for a Certificate
of Exchange Service Authority only upon a showing by the
applicant, and a finding by the Commission, after notice and
hearing, that:
(a) the applicant possesses sufficient technical,
financial, and managerial resources and abilities to
provide local exchange telecommunications service.; and
(b) that the exercise of the Certificate's
authority by the applicant would not adversely affect
prices, network design, or the financial viability of the
principal provider of local exchange telecommunications
service.
The Commission shall not approve or issue a Certificate
of Exchange Service Authority to more than one
telecommunications carrier for any exchange prior to January
1, 1989; provided, however, that a Certificate of Exchange
Service Authority may be issued before such time, subject to
appropriate Commission approval, pursuant to this Section, to
any telecommunications carrier providing predominantly direct
nonswitched access service between a customer or user and any
telecommunications carrier providing inter-MSA, inter-LATA or
inter-state telecommunications service, or between such
telecommunications carriers, for the purpose of providing
such direct access service.
(Source: P.A. 84-1063.)
(220 ILCS 5/13-502) (from Ch. 111 2/3, par. 13-502)
(This Section is scheduled to be repealed July 1, 1999.)
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) 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.
(d) 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.
(e) Any telecommunications carrier which seeks to file a
tariff classifying a new telecommunications service as
competitive or reclassifying a previously noncompetitive
telecommunications service as competitive may, instead of
filing such new tariff and offering and providing such
service as competitive subject to refund, apply to the
Commission, prior to offering or providing such service as
competitive, for an order finding that the proposed tariff is
proper and consistent with law. Any telecommunications
carrier applying for Commission approval pursuant to this
paragraph (e) shall provide timely and effective notice of
its application and proposed tariff to potentially affected
providers and customers in a manner to be determined by the
Commission.
Upon such application and notice, the Commission may make
its findings without hearing within 21 days of the filing of
the application and may allow such tariff to take immediate
effect thereafter if there is no request for hearing by
potentially affected providers or customers. The Commission
shall, however, enter into hearings to determine the
propriety and legality of the proposed tariffs upon such
request or if the Commission, in its discretion, believes
such hearings are necessary.
If the Commission enters into hearings upon the
application, it shall issue a final order within 180 days of
such application, and, if the Commission fails to issue an
order within such period, the application shall be deemed
granted, unless, however, the Commission, the applicant and
all parties to the hearing agree to extend such time period.
The Commission shall have the power to issue an interim order
allowing the proposed tariff to take effect during the 180
day period subject to refund and such other conditions as the
Commission may provide. 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.
(Source: P.A. 87-856.)
(220 ILCS 5/13-504) (from Ch. 111 2/3, par. 13-504)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-504. Application of ratemaking provisions of
Article IX.
(a) Except where the context clearly renders such
provisions inapplicable, the ratemaking provisions of Article
IX of this Act relating to public utilities are fully and
equally applicable to the rates, charges, tariffs and
classifications for the offer or provision of noncompetitive
telecommunications services. However, the ratemaking
provisions do not apply to any proposed change in rates or
charges, any proposed change in any classification or tariff
resulting in a change in rates or charges, or the
establishment of new services and rates therefor for a
noncompetitive local exchange telecommunications service
offered or provided by a local exchange telecommunications
carrier with no more than 35,000 subscriber access lines.
Proposed changes in rates, charges, classifications, or
tariffs meeting these criteria shall be permitted upon the
filing of the proposed tariff and 30 days notice to the
Commission and all potentially affected customers. The
proposed changes shall not be subject to suspension. The
Commission shall investigate whether any proposed change is
just and reasonable only if a telecommunications carrier that
is a customer of the local exchange telecommunications
carrier or 10% of the potentially affected access line
subscribers of the local exchange telecommunications carrier
shall file a petition or complaint requesting an
investigation of the proposed changes. When the
telecommunications carrier or 10% of the potentially affected
access line subscribers of a local exchange
telecommunications carrier file a complaint, the Commission
shall, after notice and hearing, have the power and duty to
establish the rates, charges, classifications, or tariffs it
finds to be just and reasonable.
(b) Subsection (c) of Section 13-502 and Sections
13-505.1, 13-505.4, 13-505.6, and 13-507 of this Article do
not apply to rates or charges or proposed changes in rates or
charges for applicable competitive or interexchange services
when offered or provided by a local exchange
telecommunications carrier with no more than 35,000
subscriber access lines. In addition, Sections 13-514,
13-515, and 13-516 do not apply to telecommunications
carriers with no more than 35,000 subscriber access lines.
The Commission may require telecommunications carriers with
no more than 35,000 subscriber access lines to furnish
information that the Commission deems necessary for a
determination that rates and charges for any competitive
telecommunications service are just and reasonable.
(c) For a local exchange telecommunications carrier with
no more than 35,000 access lines, the Commission shall
consider and adjust, as appropriate, a local exchange
telecommunications carrier's depreciation rates only in
ratemaking proceedings.
(d) Article VI and Sections 7-101 and 7-102 of Article
VII of this Act pertaining to public utilities, public
utility rates and services, and the regulation thereof are
not applicable to local exchange telecommunication carriers
with no more than 35,000 subscriber access lines.
(Source: P.A. 89-139, eff. 1-1-96.)
(220 ILCS 5/13-505) (from Ch. 111 2/3, par. 13-505)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-505. Rate changes; competitive services.
Proposed changes in rates or charges, or any classification
or tariff provision affecting rates or charges, for any
competitive telecommunications service, shall be treated
pursuant to this Section as follows:
(a) Any proposed increase or decrease in rates or
charges, or proposed change in any classification or tariff
resulting in an increase or a decrease in rates or charges,
for a competitive telecommunications service shall be
permitted upon the filing of the proposed rate, charge,
classification, or tariff.;
(b) any proposed increase in rates or charges, or
proposed change in any classification or tariff resulting in
an increase in rates or charges, for a competitive
telecommunications service shall be permitted by the filing
of the proposed rate, charge, classification, or tariff and
shall become effective 14 days after its filing. Prior
notice of an increase shall also be given to all potentially
affected customers by mail, publication in a newspaper of
general circulation, or equivalent means of notice; and.
(b)(c) If a hearing is held pursuant to Section 9-250
regarding the reasonableness of an increase in the rates or
charges of a competitive local exchange service, then the
telecommunications carrier providing the service shall have
the burden of proof to establish the justness and
reasonableness of the proposed rate or charge.
(Source: P.A. 87-856.)
(220 ILCS 5/13-505.7 new)
Sec. 13-505.7. Bundling. Nothing in this Act shall
prohibit the bundling of any telecommunications services,
provided that for a telecommunications carrier that provides
both noncompetitive and competitive services the price for a
bundle of telecommunications services shall not be less than
the aggregate of the unbundled prices of the
telecommunications services offered in the bundle.
(220 ILCS 5/13-506 new)
Sec. 13-506. Tariffs for competitive telecommunications
services. (a) Telecommunications carriers may file proposed
tariffs for any competitive telecommunications service which
includes and specifically describes a range, band, formula,
or standard within which or by which a change in rates or
charges for such telecommunications service could be made
without prior notice or prior Commission approval, provided
that any and all rates or charges within the band or range,
or determinable by the operation of the formula or standard,
are consistent with the public interest and the purpose and
policies of this Article and Act, and are likely to remain so
for the forseeable future. To the extent any proposed band
or range encompasses rates or charges which are not
consistent with the public interest and the purposes and
policies of this Article and Act or otherwise fully proper,
or any proposed formula or standard determines rates or
charges which are not consistent with the purposes and
policies of this Article and Act or otherwise fully proper,
the Commission after notice and hearing shall have the power
to modify the level, scope, or limits of such band or range,
and to modify or limit the operation of such formula or
standard, as necessary, to ensure that rates or charges
resulting therefrom are consistent with the purposes and
policies of this Article and Act and fully proper, and likely
to remain so in the forseeable future.
(b) The Commission may require a telecommunications
carrier to file a variable tariff as described in paragraph
(a) for any or all competitive telecommunications services
which are offered or provided by such carrier, if the
Commission finds, after notice and hearing, that the
determination of rates or charges for such service by a
tariff would improve the Commission's ability to effectively
regulate such rates or charges and that such improvement is
required by the public interest. Any such tariff required by
the Commission shall be approved only if it is also
consistent with the provisions of paragraph (a) of this
Section.
(c) When the Commission approves a variable tariff, as
proposed or modified pursuant to this Section, the
telecommunications carrier shall place such tariff in effect
thereafter and such tariff shall determine rates or charges
according to the provisions thereof.
(220 ILCS 5/13-509) (from Ch. 111 2/3, par. 13-509)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-509. Agreements for provisions of competitive
telecommunications services differing from tariffs. A
telecommunications carrier offering or providing competitive
telecommunications service may negotiate with customers or
prospective customers to provide competitive
telecommunications service for the provision by it of such
service, and in so doing, may offer or agree to provide such
service on such terms and for such rates or charges as it
deems are reasonable, without regard to any tariffs it may
have filed with the Commission with respect to such services.
Within 10 business days after concluding executing any such
agreement, the telecommunications carrier shall file any
contract or memorandum of understanding for the provision of
telecommunications service, which shall include the rates or
other charges, practices, rules or regulations applicable to
the agreed provision of such service. Cost support for the
agreement shall be filed within 30 calendar days after
executing any such agreement. Where the agreement contains
the same rates, charges, practices, rules, and regulations
found in a single contract or memorandum already filed by the
telecommunications carrier with the Commission, instead of
filing the contract or memorandum, the telecommunications
carrier may elect to file a letter identifying the new
agreement and specifically referencing the contract or
memorandum already on file with the Commission which contains
the same provisions. A single letter may be used to file
more than one new agreement. Upon filing its contract or
memorandum, or letter, the telecommunications carrier shall
thereafter provide service according to the terms thereof,
unless the Commission finds, after notice and hearing, that
the continued provision of service pursuant to such contract
or memorandum would substantially and adversely affect the
financial integrity of the telecommunications carrier or
would cause the cross-subsidization of any competitive
service by any noncompetitive service violate any other
provision of this Act.
Any contract or memorandum entered into and filed
pursuant to the provisions of this Section may, in the
Commission's discretion, be accorded proprietary treatment.
(Source: P.A. 84-1063.)
(220 ILCS 5/13-512 new)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-512. Rules; review. The Commission shall have
general rulemaking authority to make rules necessary to
enforce this Article. However, not later than 270 days after
the effective date of this amendatory Act of 1997, and every
2 years thereafter, the Commission shall review all rules
issued under this Article that apply to the operations or
activities of any telecommunications carrier. The Commission
shall, after notice and hearing, repeal or modify any rule it
determines to be no longer in the public interest as the
result of the reasonable availability of competitive
telecommunications services.
(220 ILCS 5/13-513 new)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-513. Waiver of rules. A telecommunications
carrier may petition for waiver of the application of a rule
issued pursuant to this Act. The burden of proof in
establishing the right to a waiver shall be upon the
petitioner. The petition shall include a demonstration that
the waiver would not harm consumers and would not impede the
development or operation of a competitive market. Upon such
demonstration, the Commission may waive the application of a
rule, but not the application of a provision of this Act.
The Commission may conduct an investigation of the petition
on its own motion or at the request of a potentially affected
person. If no investigation is conducted, the waiver shall
be deemed granted 30 days after the petition is filed.
(220 ILCS 5/13-514 new)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-514. Prohibited Actions of Telecommunications
Carriers. A telecommunications carrier shall not knowingly
impede the development of competition in any
telecommunications service market. The following prohibited
actions are considered per se impediments to the development
of competition; however, the Commission is not limited in any
manner to these enumerated impediments and may consider other
actions which impede competition to be prohibited:
(1) unreasonably refusing or delaying interconnections
or providing inferior connections to another
telecommunications carrier;
(2) unreasonably impairing the speed, quality, or
efficiency of services used by another telecommunications
carrier;
(3) unreasonably denying a request of another provider
for information regarding the technical design and features,
geographic coverage, information necessary for the design of
equipment, and traffic capabilities of the local exchange
network except for proprietary information unless such
information is subject to a proprietary agreement or
protective order;
(4) unreasonably delaying access in connecting another
telecommunications carrier to the local exchange network
whose product or service requires novel or specialized access
requirements;
(5) unreasonably refusing or delaying access by any
person to another telecommunications carrier;
(6) unreasonably acting or failing to act in a manner
that has a substantial adverse effect on the ability of
another telecommunications carrier to provide service to its
customers;
(7) unreasonably failing to offer services to customers
in a local exchange, where a telecommunications carrier is
certificated to provide service and has entered into an
interconnection agreement for the provision of local exchange
telecommunications services, with the intent to delay or
impede the ability of the incumbent local exchange
telecommunications carrier to provide inter-LATA
telecommunications services; and
(8) violating the terms of or unreasonably delaying
implementation of an interconnection agreement entered into
pursuant to Section 252 of the federal Telecommunications Act
of 1996 in a manner that unreasonably delays or impedes the
availability of telecommunications services to consumers.
(220 ILCS 5/13-515 new)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-515. Enforcement.
(a) The Commission shall enforce the provisions of
Section 13-514 of this Act. Unless the Commission and the
parties otherwise mutually agree, the Commission shall use
the procedures set forth in this Section for the review of
complaints relating to violations of Section 13-514.
(b) This Section shall not apply to interconnection
agreements with a Bell operating company as defined in
Section 3 of the federal Telecommunications Act of 1996
unless and until the date such company or its affiliate is
authorized to provide inter-LATA services under Section
271(d) of that Act.
(c) No complaint may be filed under this Section until
the complainant has first notified the respondent of the
alleged violation and offered the respondent 48 hours to
correct the situation. Provision of notice and the
opportunity to correct the situation creates a rebuttable
presumption of knowledge under Section 13-514.
(d) A telecommunications carrier may file a complaint
with the Commission alleging a violation of Section 13-514 in
accordance with this subsection:
(1) The complaint shall be filed with the Chief
Clerk of the Commission and shall be served in hand upon
the respondent, the executive director, and the general
counsel of the Commission at the time of the filing.
(2) A complaint filed under this subsection shall
include a statement that the requirements of subsection
(c) have been fulfilled and that the respondent did not
correct the situation as requested.
(3) Reasonable discovery specific to the issue of
the complaint may commence upon filing of the complaint.
Requests for discovery must be served in hand and
responses to discovery must be provided in hand to the
requester within 14 days after a request for discovery is
made.
(4) An answer and any other responsive pleading to
the complaint shall be filed with the Commission and
served in hand at the same time upon the complainant, the
executive director, and the general counsel of the
Commission within 7 days after the date on which the
complaint is filed.
(5) A determination as to reasonable grounds for
the complaint and, if appropriate, a directive for legal
notice of a hearing shall be made within 3 days after the
date on which the answer is filed.
(6) A pre-hearing conference shall be held within
14 days after the date on which the complaint is filed.
(7) The hearing shall commence within 30 days of
the date on which the complaint is filed. The hearing
may be conducted by a hearing examiner or by an
arbitrator. Parties and the Commission staff shall be
entitled to present evidence and legal argument in oral
or written form as deemed appropriate by the hearing
examiner or arbitrator. The hearing examiner or
arbitrator shall issue a written decision within 60 days
after the date on which the complaint is filed. The
decision shall include reasons for the disposition of the
complaint and, if a violation of Section 13-514 is found,
directions and a deadline for correction of the
violation. The decision of the hearing examiner or
arbitrator shall be considered a final order of the
Commission after 10 days unless the Commission enters its
own final order within 10 days of the decision of the
hearing examiner or arbitrator.
(e) If the alleged violation has a substantial adverse
effect on the ability of the complainant to provide service
to customers, the complainant may include in its complaint a
request for an order for emergency relief. The Commission,
acting through its designated hearing examiner or arbitrator,
shall act upon such a request within 2 business days of the
filing of the complaint. An order for emergency relief may
be granted, without an evidentiary hearing, upon a verified
factual showing that the party seeking relief will likely
succeed on the merits, that the party will suffer irreparable
harm in its ability to serve customers if emergency relief is
not granted, and that the order is in the public interest.
An order for emergency relief shall include a finding that
the requirements of this subsection have been fulfilled and
shall specify the directives that must be fulfilled by the
respondent and deadlines for meeting those directives. The
decision of the hearing examiner or arbitrator to grant or
deny emergency relief shall be considered an order of the
Commission unless the Commission enters its own order within
2 calendar days of the decision of the hearing examiner or
arbitrator. The order for emergency relief may require the
responding party to act or refrain from acting so as to
protect the provision of competitive service offerings to
customers. Any action required by an emergency relief order
must be technically feasible and economically reasonable and
the respondent must be given a reasonable period of time to
comply with the order.
(f) The Commission is authorized to obtain outside
resources including, but not limited to, arbitrators and
consultants for the purposes of the hearings authorized by
this Section. Any arbitrator or consultant obtained by the
Commission shall be approved by both parties to the hearing.
(g) The Commission shall assess the parties for the
Commission's costs of investigation and conduct of the
proceedings, dividing the costs according to the resolution
of the complaint brought under this Section. All assessments
shall be paid into the Public Utility Fund within 60 days
after receiving notice of the assessments from the
Commission. Interest at the statutory rate shall accrue
after the expiration of the 60 day period. The Commission is
authorized to apply to a court of competent jurisdiction for
an order requiring payment.
(h) If the Commission determines that there is an
imminent threat to competition or to the public interest, the
Commission may, notwithstanding any other provision of this
Act, seek temporary, preliminary, or permanent injunctive
relief from a court of competent jurisdiction either prior to
or after the hearing.
(i) A party shall not bring or defend a proceeding
brought under this Section or assert or controvert an issue
in a proceeding brought under this Section, unless there is a
non-frivolous basis for doing so. By presenting a pleading,
written motion, or other paper in complaint or defense of the
actions or inaction of a party under this Section, a party is
certifying to the Commission that to the best of that party's
knowledge, information, and belief, formed after a reasonable
inquiry of the subject matter of the complaint or defense,
that the complaint or defense is well grounded in law and
fact, and under the circumstances:
(1) it is not being presented to harass the other
party, cause unnecessary delay in the provision of
competitive telecommunications services to consumers, or
create needless increases in the cost of litigation; and
(2) the allegations and other factual contentions
have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after
reasonable opportunity for further investigation or
discovery as defined herein.
(j) If, after notice and a reasonable opportunity to
respond, the Commission determines that subsection (i) has
been violated, the Commission shall impose appropriate
sanctions upon the party or parties that have violated
subsection (i) or are responsible for the violation. The
sanctions shall be not more than $7,500, plus the amount of
expenses accrued by the Commission for conducting the
hearing. Payment of sanctions imposed under this subsection
shall be made to the Common School Fund within 30 days of
imposition of such sanctions.
(k) An appeal of a Commission Order made pursuant to
this Section shall not effectuate a stay of the Order unless
a court of competent jurisdiction specifically finds that the
party seeking the stay will likely succeed on the merits,
that the party will suffer irreparable harm without the stay,
and that the stay is in the public interest.
(220 ILCS 5/13-516 new)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-516. Penalties for violation of a Commission
order relating to prohibited actions of telecommunications
carriers.
(a) Notwithstanding any other provision of this Act, the
Commission may impose penalties of up to $30,000 per
violation of a final order or emergency relief order issued
pursuant to Section 13-515 of this Act. Each day of a
continuing offense shall be treated as a separate violation
for purposes of levying any penalty under this Section. The
period for which the fine shall be levied shall commence on
the day the Commission order requires compliance with the
order and shall continue until the party is in compliance
with the Commission order.
(b) The Commission may waive penalties imposed under
subsection (a) if it makes a written finding as to its
reasons for waiving the fine. Reasons for waiving a fine
shall include, but not be limited to, technological
infeasibility and acts of God.
(c) The Commission shall establish by rule procedures
for the imposition of penalties under subsection (a) that, at
a minimum, provide for notice, hearing and a written order
relating to the imposition of penalties.
(d) The Commission is authorized to apply to a court of
competent jurisdiction for an order requiring payment of
penalties imposed under subsection (a).
(e) Payment of penalties imposed under subsection (a)
shall be made to the Common School Fund within 30 days of
issuance of the Commission order imposing the penalties.
(220 ILCS 5/13-803) (from Ch. 111 2/3, par. 13-803)
(This Section is scheduled to be repealed July 1, 1999.)
Sec. 13-803. Repealer. The provisions of this Article
XIII are repealed effective July 1, 2001 1999.
(Source: P.A. 86-1475; 87-821; 87-856.)
Section 15. The Illinois Antitrust Act is amended by
changing Section 5 as follows:
(740 ILCS 10/5) (from Ch. 38, par. 60-5)
Sec. 5. No provisions of this Act shall be construed to
make illegal:
(1) the activities of any labor organization or of
individual members thereof which are directed solely to labor
objectives which are legitimate under the laws of either the
State of Illinois or the United States;
(2) the activities of any agricultural or horticultural
cooperative organization, whether incorporated or
unincorporated, or of individual members thereof, which are
directed solely to objectives of such cooperative
organizations which are legitimate under the laws of either
the State of Illinois or the United States;
(3) the activities of any public utility or
telecommunications carrier, as defined in Section Sections
3-105 and 13-202 of the Public Utilities Act to the extent
that such activities are subject to the jurisdiction of the
Illinois Commerce Commission, or to the activities of
telephone mutual concerns referred to in Section 13-202 of
the Public Utilities Act to the extent such activities relate
to the providing and maintenance of telephone service to
owners and customers;
(4) The activities of a telecommunications carrier, as
defined in Section 13-202 of the Public Utilities Act, to the
extent those activities relate to the provision of
noncompetitive telecommunications services under the Public
Utilities Act and are subject to the jurisdiction of the
Illinois Commerce Commission or to the activities of
telephone mutual concerns referred to in Section 13-202 of
the Public Utilities Act to the extent those activities
relate to the provision and maintenance of telephone service
to owners and customers;
(5) (4) the activities (including, but not limited to,
the making of or participating in joint underwriting or joint
reinsurance arrangement) of any insurer, insurance agent,
insurance broker, independent insurance adjuster or rating
organization to the extent that such activities are subject
to regulation by the Director of Insurance of this State
under, or are permitted or are authorized by, the Insurance
Code or any other law of this State;
(6) (5) the religious and charitable activities of any
not-for-profit corporation, trust or organization established
exclusively for religious or charitable purposes, or for both
purposes;
(7) (6) the activities of any not-for-profit corporation
organized to provide telephone service on a mutual or
co-operative basis or electrification on a co-operative
basis, to the extent such activities relate to the marketing
and distribution of telephone or electrical service to owners
and customers;
(8) (7) the activities engaged in by securities dealers
who are (i) licensed by the State of Illinois or (ii) members
of the National Association of Securities Dealers or (iii)
members of any National Securities Exchange registered with
the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, in the course of their
business of offering, selling, buying and selling, or
otherwise trading in or underwriting securities, as agent,
broker, or principal, and activities of any National
Securities Exchange so registered, including the
establishment of commission rates and schedules of charges;
(9) (8) the activities of any board of trade designated
as a "contract market" by the Secretary of Agriculture of the
United States pursuant to Section 5 of the Commodity Exchange
Act, as amended;
(10) (9) the activities of any motor carrier, rail
carrier, or common carrier by pipeline, as defined in the
Common Carrier by Pipeline The Illinois Commercial
Transportation Law of the Public Utilities Act The Illinois
Vehicle Code, as amended, to the extent that such activities
are permitted or authorized by the Act or are subject to
regulation by the Illinois Commerce Commission;
(11) (10) the activities of any state or national bank
to the extent that such activities are regulated or
supervised by officers of the state or federal government
under the banking laws of this State or the United States;
(12) (11) the activities of any state or federal savings
and loan association to the extent that such activities are
regulated or supervised by officers of the state or federal
government under the savings and loan laws of this State or
the United States;
(13) (12) the activities of any bona fide not-for-profit
association, society or board, of attorneys, practitioners of
medicine, architects, engineers, land surveyors or real
estate brokers licensed and regulated by an agency of the
State of Illinois, in recommending schedules of suggested
fees, rates or commissions for use solely as guidelines in
determining charges for professional and technical services;
(14) (13) Conduct involving trade or commerce (other
than import trade or import commerce) with foreign nations
unless:
(a) such conduct has a direct, substantial, and
reasonably foreseeable effect:
(i) on trade or commerce which is not trade or commerce
with foreign nations, or on import trade or import commerce
with foreign nations; or
(ii) on export trade or export commerce with foreign
nations of a person engaged in such trade or commerce in the
United States; and
(b) such effect gives rise to a claim under the
provisions of this Act, other than this subsection (14) (13).
(c) If this Act applies to conduct referred to in this
subsection (14) (13) only because of the provisions of
paragraph (a)(ii), then this Act shall apply to such conduct
only for injury to export business in the United States which
affects this State; or
(15) (14) the activities of a unit of local government
or school district and the activities of the employees,
agents and officers of a unit of local government or school
district.
(Source: P.A. 85-553.)
Section 99. Effective date. This Act takes effect upon
becoming law.