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    • Louisiana State Universal Service Fund - "The More Things Change, The More They Stay the Same" [1] by Gordon D. Polozola The Louisiana Public Service Commission has issued a General Order, dated February 9, 2009, once again adopting a new basis for its state Universal Service Fund or “state USF.” In short, the revised state USF effectively maintains the subsidies that have been provided to Louisiana’s rural incumbent local exchange carriers or “rural ILECs” under previous Commission mechanisms. The state USF has been through several iterations. The state USF was originally created to make up for the loss of revenues the rural ILECs stated they would experience due to the introduction of 1+ presubscription (i.e., the ability of a customer to choose his or her local toll provider). The amount of the fund, then called the Interim Local Optional Service (LOS) Preservation Plan, was based on this potential loss to the rural ILECs, and was designed to subsidize the rural ILECs in the amount of that potential loss. See Order No. U-23267, dated December 3, ....
    • Local Governments Working on Comprehensive Ordinances for Haynesville Shale by Gordon D. Polozola “Shreveport and Bossier City and Caddo and Bossier parishes have been working on a comprehensive set of ordinances to give local governments leverage in controlling drilling in the Haynesville Shale natural gas field,” reports the Shreveport Times. According to the report, “the ordinances are aimed at protecting water, limiting road damage, and controlling noise, lighting and hours of operation at drilling sites. The Shreveport area has taken queues [sic] from Fort Worth, Texas, where the local government drew up similar laws for Barnett Shale production.”The ordinances are being crafted with input from the various stakeholders in the area, although no draft ordinances have been shared with the public so far. With the reduced price of natural gas, industry participants are being more cautious in their approach to the Haynesville Shale. Will the local governments’ ordinances act to further inhibit Haynesville Shale production? Don ....
    • DC Circuit Upholds Entergy Generating Capacity Allocation, First Refusal Rights Remain Unanswered by Gordon D. Polozola The United States Court of Appeals for the District of Columbia Circuit affirmed an order of the Federal Energy Regulatory Commission approving a new long-term allocation of power-generating capacity among the affiliates of the Entergy system. Facing a complaint from New Orleans, which asserted that it was bearing unusually high production costs, Entergy submitted to FERC a proposed reallocation of generating capacity. Under the proposed allocations, Entergy Arkansas and Entergy Gulf States’ cheaper generation capacity would be “sold” to Entergy New Orleans and Entergy Louisiana. As described by the Court, this would thereby allow New Orleans to “pass costs from its more expensive generators on to the now-undersupplied Entergy Gulf States. These paper transfers of power would lower costs for New Orleans and Louisiana but raise costs for Gulf States.” The Louisiana Commission opposed the allocations as discriminatory. But, granting ....
    • Public Service Commission Rule Trumps Louisiana's New Ethics Law by Gordon D. Polozola In an action exceeding the requirements of Louisiana’s new, stricter ethics laws, pushed through the Legislature by Governor Bobby Jindal, the Louisiana Public Service Commission voted to forbid commissioners and their staff from accepting any food, beverage or entertainment paid for by companies regulated by the Commission or that have business pending before the Commission. Current state law allows state officials to accept meals provided the cost does not exceed $50 – the expenditure must also be reported. The proposed meal ban has been pushed by Commissioner Foster Campbell for years, during which time the media has criticized the LPSC and its staff for accepting meals from regulated utilities. Other elected officials will continue to be governed under the more lenient state law.  One commissioner opposed to the ban asserted that campaign contributions, not meals, present a greater potential for influence. “Bring a $5,000 check, ....
    • ERC Launches Plan To Make Gas Markets Transparent, Monitor Price Information by Lawrence J. Hand, Jr. On December 20, 2007, the Federal Energy Regulatory Commission approved a final rule in docket no. RM07-10-000 to require certain natural gas market participants to file an annual report reflecting wholesale, physical natural gas transactions. In a related action, the Commission issued a notice of proposed rulemaking in docket no. RM08-2-000 that would require interstate and certain major, non-interstate pipelines to post daily information on capacity, actual flows and scheduled flows.   Both actions are taken under the Commission’s authority under the Energy Policy Act of 2005 to facilitate transparency of price and availability of supply in natural gas markets. The final rule in docket no. RM07-10-000 requires an annual report (Form No. 552) from any buyer or seller of more than 2.2 million MMBtus of physical natural gas in a calendar year. The report will require aggregate volumes of the relevant transactions, reflecting: the ....
    • FCC Prohibits Enforcement of Cable Operators' Exclusive Access Clauses for Multiple Dwelling Units by Gordon D. Polozola The Federal Communications Commission has issued a Report and Order prohibiting cable operators from enforcing or executing any provision in a contract that grants an operator the exclusive right to provide cable services to apartment buildings, condominiums and certain other multiple dwelling units (MDUs) in an effort to bring the benefits of competition to the increasing number of residents living in MDUs.  The FCC found that cable operators’ use of exclusivity clauses in MDU cable service contracts constitutes “an unfair method of competition or an unfair act or practice” proscribed by the federal Communications Act.  According to the FCC, approximately 30 percent of Americans live in MDUs. It also found that the harms of exclusivity clauses had a greater impact on minorities, a greater percentage of which live in MDUs compared to the general population. The FCC will consider whether other arrangements, which have the ....
    • Federal Energy Regulatory Commission Seeks Increased Oversight Over Intrastate Natural Gas Pipelines by Lawrence J. Hand, Jr. The Federal Energy Regulatory Commission has recently issued a notice of proposed rulemaking which seeks to increase the Commission’s oversight over intrastate natural gas pipelines and other non-jurisdictional sellers of natural gas. FERC Docket Nos. RM07-10-000 and AD06-11-000. Specifically, the proposed regulations would require that intrastate natural gas pipelines post, on a daily basis, the capacities of and volumes flowing through major receipt and delivery points and mainline segments. Additionally, the new regulations would require annual filings by buyers and sellers of natural gas in the United States wholesale markets. Traditionally, intrastate natural gas pipelines were not subject to oversight by the Federal Energy Regulatory Commission, unless and to the extent that such intrastate pipeline elected to transport gas in interstate commerce pursuant to the provisions of Section 311(a)(2) of the Natural Gas Policy Act of ....
    • Louisiana Supreme Court Approves Lafayette's Fiber-to-the-Home Bond Ordinance by Gordon D. Polozola The Louisiana Supreme Court issued a unanimous decision clearing the way for the City of Lafayette to issue bonds to finance its Fiber-to-the-Home (FTTP) Project. As described by the Court, FTTH technology delivers telecommunications services via fiber optic cables to every home and business in the covered area. In contrast, a more traditional system delivers services to a distant point, with the remaining distance to each home and business being covered by technically inferior and bandwidth-limiting copper (telephone) wires. The decision ends eighteen months of litigation, starting after the citizens of Lafayette voted 62% to 38% in a July 16, 2005 election to issue up to $125 million in bonds for the Project. Project opponents filing suit to block the bond issuance included the incumbent cable and telephone companies, as well as two Lafayette residents. For additional news articles relating to the decision, see ....
    • D.C. Court of Appeals Vacates FERC Standards of Conduct for Interstate Natural Gas Pipelines by Lawrence J. Hand, Jr. On November 17, 2006, the United States Court of Appeals for the District of Columbia Circuit vacated the Federal Energy Regulatory Commission’s Standards of Conduct as applied to interstate natural gas pipelines. These Standards of Conduct, which are set forth in Order No. 2004 and codified at 18 CFR Part 358, govern the relationship between an interstate natural gas pipeline and various affiliates. The Court found that FERC’s effort to expand the pre-existing standards of conduct beyond relationships between an interstate natural gas pipeline and its marketing affiliates was not supported by record evidence. It is not clear if or when the Commission will revisit Order 2004 and how it will attempt to address the infirmities cited by the Court. It is worth noting that the current Chairman of the Commission, Joseph Kelliher, issued a strong dissent when Order 2004 was originally enacted and argued in favor of keeping the Standards ....
    • State Supreme Court Upholds Universal Service Fee by Gordon D. Polozola The Louisiana Supreme Court has affirmed an order of the Louisiana Public Service Commission establishing a state universal service fee for telecommunications service providers operating in the state. T-Mobile, a wireless provider operating in Louisiana, appealed the LPSC’s order, arguing that the USF fee constituted a tax and, thus, the LPSC lacked jurisdictional authority to mandate the charge. The Supreme Court disagreed, finding that the charge constituted a fee, not a tax, and that the LPSC had the jurisdiction to impose a USF fee under both the Telecommunications Act of 1996, and the Louisiana Constitution.  A copy of the decision is available at the following link: http://www.lasc.org/opinions/2006/05ca2578.pdf ....
    • Competitive Cable and Video Services Act Vetoed by Louisiana Governor by Gordon D. Polozola Governor Kathleen Blanco has reportedly vetoed the controversial Competitive Cable and Video Services Act, House Bill 699. There has been significant disagreement between BellSouth, the proponent of the bill, cable providers, who appeared to turn neutral as to its passage after the bill was amended, and Parish presidents and mayors, who urged the Governor to veto the bill. Of particular concern was the lack of any requirements for telecommunications companies to provide service to consumers in rural and poor neighborhoods, which cable providers typically must do under current franchise agreements. Local officials also argued that the bill would reduce or eliminate local governments' authority to manage their rights-of-way. Under Louisiana law, a bill vetoed by the Governor must subsequently be approved in a veto session by two-thirds of the elected members of both the House and Senate to become law. The bill originally passed both houses ....
    • Deja Vu? -- Courts, Telecom and Anti-Trust by Gordon D. Polozola To say there has been consolidation in the telecom market over the last decade would obviously be an understatement. Competitive telecom companies, which entered the market by the hundreds after passage of the federal Telecommunications Act, have merged with each other (or have been acquired) as a means of survival or market penetration. The (then) giants of the telecom world have also consolidated into mega-regional communications companies. SBC acquired Pacific Telesis, Southern New England Telephone, Ameritech (which itself acquired Illinois Bell, Indiana Bell, Michigan Bell, Ohio Bell and Wisconsin Bell), and most recently AT&T. The new AT&T became the largest telecom company in the U.S. Now it is proposing to acquire BellSouth, currently the third largest telecom company in the U.S. (For more information on the history of telecom mergers, visit http://www.fcc.gov/wcb/armis/carrier_filing_history/COSA_History/)The FCC and the ....