In June 2012, Gov. John Lynch signed into law legislation that rewrote the book on telecommunications in New Hampshire.
Senate Bill 48 was supposed to deregulate the industry and enable local phone carriers like FairPoint Communications to compete with unregulated telecom providers offering phone service over the Internet or on mobile devices.
A year later, the exact scope of the law and its impact on consumers is still being debated, as the Public Utilities Commission finds itself at odds with lawmakers over the power to hear and adjudicate consumer complaints on basic telephone service.
The PUC issued an order on May 28 regarding the implementation of SB 48.
"That order basically said that in spite of SB 48, we are going to continue to regulate in these various ways," said Sen. Bob Odell, R-Lempster, primary sponsor of the legislation in 2012. "That shook the stakeholder community because they had thought the legislation was very clear and that discussions around the bill were pretty clear about what we were doing."
In response to the PUC order, Odell introduced amendments to a House bill that he hopes will tie up any loose ends on telecom deregulation.
But the new wording eliminates valuable consumer protections and constrains the ability of the PUC to act on consumer complaints, according to New Hampshire Legal Assistance and sources in the PUC.
Representatives of FairPoint, which will still face limited regulation as the state's "carrier of last resort," disagree with that interpretation. "The amendment proposed by FairPoint clarifies the Legislature's intent in existing law," said spokesman Jeffrey Nevins. "FairPoint maintains its carrier of last resort obligation to provide service to customers who cannot get any other service. These basic service customers will continue to have rate caps and other protections under the law."
Definition of 'basic' is key
Everyone involved agrees that basic landline service provided by FairPoint should still be subject to PUC oversight.
But critics say the definition of basic service in the Odell amendment is so narrow that few, if any, consumers will be able to enjoy PUC protection.
The section of the law at issue states that "any combination of basic service along with any other service or feature offered by the telecommunications service provider is non-basic service, and shall not be regulated by the PUC." The amended wording is in italics.
According to Dan Feltes, staff attorney with New Hampshire Legal Assistance, that means FairPoint customers could lose their right to a PUC review of service-related complaints if they have features like caller ID, voicemail, call-waiting, call-forwarding or long distance.
Consumers could still complain to the PUC, which would have no power to do anything except pass their complaint along to the telecommunication company, unless the situation was so severe as to merit a referral to the Attorney General's Office.
Legal Assistance lawyers met with lawmakers and Fairpoint representatives on Wednesday in an attempt to achieve a compromise on rules that would maintain existing consumer protections, but according to Feltes, they got nowhere.
"This very narrow interpretation means a senior citizen on a fixed income who gets free call waiting automatically loses their ability for the PUC to enforce protections for basic service," he said.
Legal Assistance on Wednesday proposed a compromise in which a customer who gets cable TV or Internet service "bundled" with telephone service would no longer be a basic service customer. But those who have phone service with basic features would still be considered a basic service customer.
That language was not accepted, and the bill is likely to head to a House-Senate Conference Committee with FairPoint's recommended language intact.
Nevins argues that the Legal Assistance proposal would, in effect, define basic service as all FairPoint local access customers who sign up for phone service only. "If this were the case, then the intent of SB 48 - to create a level playing field and foster competition - would be moot," he said.
Ellen Scarponi, FairPoint director of government relations, said the company offers features to new customers, but no one is obligated to take them. She challenged the notion that the company could attach features for free and convert a customer from basic to non-basic without their knowledge or approval.
Customers who still want the option of PUC intervention can become a basic customer by calling the company and having all features that are billed separately removed from their phone service, she said.
The handling of phone service complaints is no small matter, given the number of complaints the PUC has received over the years (See related story).
Consumers will still have many options, even if the narrow definition of basic service becomes law.
"Any customer, regardless of service level, has multiple avenues for complaint," said Nevins, "to the provider, to the PUC, to their legislator, or to the attorney general. It's in our best interest to satisfy our customers, and we are diligent in resolving customer concerns."
Feltes agrees that FairPoint has a process for customer complaints in its terms of service, but characterized that process as byzantine.
"I will say, from our perspective, it is easier for our clients to avail themselves of the PUC complaint process rather than going through the provisions of the FairPoint service agreement," he said.
State Rep. Naida Kaen, D-Lee, is the lead sponsor of HB 542, the bill that carries the amendments at issue. She said it's possible the House and Senate Conference Committee could come up with a compromise.
"We are working on it. We have some time yet," she said. "The challenge is, how can we make sure that we are targeting the people who need to be protected, who don't have another alternative, while getting competition going that's going to lower the costs for everyone in the long run?"
Debra Howland, executive director of the PUC, said the commission believes its May 28 order is consistent with the intent of SB 48, but will take its direction from lawmakers.
"As far as the commission is concerned, we are a creature of the Legislature, so it's always our intent to honor the will of the Legislature," she firstname.lastname@example.org