Title of Regulation: 18VAC65-20. Regulations Governing the Practice of Funeral Services (amending 18VAC65-20-151).

Statutory Authority: §§ 54.1-2400 and 54.1-2803 of the Code of Virginia.

Effective Date: September 28, 2022.

Agency Contact: Corie Tillman Wolf, Executive Director, Board of Funeral Directors and Embalmers, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4479, FAX (804) 527-4471, or email fanbd@dhp.virginia.gov.

Summary:

Pursuant to Chapter 170 of the 2022 Acts of Assembly, the amendment requires one hour of continuing education in laws and regulations or in preneed funeral arrangements each year, with at least one hour of continuing education in preneed funeral arrangements each three years.

18VAC65-20-151. Continued competency requirements for renewal of an active license.

A. Funeral service licensees, funeral directors, or funeral embalmers shall be required to have completed a minimum of five hours per year of continuing education offered by a board-approved sponsor for licensure renewal in courses that emphasize the ethics, standards of practice, preneed contracts, and funding, or federal or state laws and regulations governing the profession of funeral service.

1. One hour per year shall cover compliance with laws and regulations governing the profession, and at least one hour per year shall cover or preneed funeral arrangements. At least one hour of continuing education in preneed funeral arrangements must be completed every three years. The one-hour requirement on compliance with laws and regulations may be met once every two years by attendance at a meeting of the board or at a committee of the board or an informal conference or formal hearing.

2. One hour of the five hours required for annual renewal may be satisfied through delivery of professional services, without compensation, to low-income individuals receiving health services through a local health department or a free clinic organized in whole or primarily for the delivery of those services. One hour of continuing education may be credited for one hour of providing such volunteer services, as documented by the health department or free clinic. For the purposes of continuing education credit for volunteer service, an approved sponsor shall be a local health department or free clinic.

B. Courses must be directly related to the scope of practice of funeral service. Courses for which the principal purpose is to promote, sell, or offer goods, products, or services to funeral homes are not acceptable for the purpose of credit toward renewal.

C. The board may grant an extension for good cause of up to one year for the completion of continuing education requirements upon written request from the licensee prior to the renewal date. Such extension shall not relieve the licensee of the continuing education requirement.

D. The board may grant an exemption for all or part of the continuing education requirements for one renewal cycle due to circumstances determined by the board to be beyond the control of the licensee.

E. A licensee shall be exempt from the continuing education requirements for the first renewal following the date of initial licensure by examination in Virginia.

Title of Regulation: 18VAC135-20. Virginia Real Estate Board Licensing Regulations (amending 18VAC135-20-180; repealing 18VAC135-20-210).

Statutory Authority: §§ 54.1-201 and 54.1-2105 of the Code of Virginia.

Effective Date: October 1, 2022.

Agency Contact: Christine Martine, Executive Director, Real Estate Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8552, FAX (804) 527-4299, or email reboard@dpor.virginia.gov.

Summary:

Pursuant to Chapters 380 and 610 of the 2022 Acts of Assembly, the amendments (i) clarify that if an earnest money deposit received by the principal broker or supervising broker, or an agent of such principal broker or supervising broker, will not be held in a firm's escrow account, the principal broker or supervising broker shall ensure that the earnest money deposit is delivered to the escrow agent named in the contract by the end of the fifth business banking day following receipt of the deposit, unless otherwise agreed to in writing by the principals to the transaction; and (ii) repeal disclosure requirements in regulation that are now in statute at § 54.1-2138.2 of the Code of Virginia.

18VAC135-20-180. Maintenance and management of escrow accounts.

A. Maintenance of escrow accounts.

1. If money is to be held in escrow, each firm or sole proprietorship shall maintain in the name by which it is licensed one or more federally insured separate escrow accounts in a federally insured depository into which all down payments, earnest money deposits, money received upon final settlement, application deposits as defined by § 55.1-1200 of the Code of Virginia, rental payments, rental security deposits, money advanced by a buyer or seller for the payment of expenses in connection with the closing of real estate transactions, money advanced by the broker's client or expended on behalf of the client, or other escrow funds received by the broker or his associates on behalf of his client or any other person shall be deposited unless all principals to the transaction have agreed otherwise in writing. The balance in the escrow accounts shall be sufficient at all times to account for all funds that are designated to be held by the firm or sole proprietorship. The principal broker shall be held responsible for these accounts, including having signatory authority on these accounts. The supervising broker and any other licensee with escrow account authority may be held responsible for these accounts. All such accounts, checks, and bank statements shall be labeled "escrow" and the accounts shall be designated as "escrow" accounts with the financial institution where such accounts are established.

2. Funds to be deposited in the escrow account may include moneys that shall ultimately belong to the licensee, but such moneys shall be separately identified in the escrow account records and shall be paid to the firm by a check drawn on the escrow account when the funds become due to the licensee. Funds in an escrow account shall not be paid directly to the licensees of the firm. The fact that an escrow account contains money that may ultimately belong to the licensee does not constitute "commingling of funds" as set forth by subdivision C 2 of this section, provided that there are periodic withdrawals of said funds at intervals of not more than six months and that the licensee can at all times accurately identify the total funds in that account that belong to the licensee and the firm.

3. If escrow funds are used to purchase a certificate of deposit, the pledging or hypothecation of such certificate, or the absence of the original certificate from the direct control of the principal or supervising broker, shall constitute commingling as prohibited by subdivision C 2 of this section.

4. Lease transactions: application deposits. Any application deposit as defined by § 55.1-1200 of the Code of Virginia paid by a prospective tenant for the purpose of being considered as a tenant for a dwelling unit to a licensee acting on behalf of a landlord client shall be placed in escrow by the end of the fifth business banking day following approval of the rental application by the landlord unless all principals to the lease transaction have agreed otherwise in writing.

B. Disbursement of funds from escrow accounts.

1. a. Purchase transactions. Upon the ratification of a contract, an earnest money deposit received by the principal broker or supervising broker or his associates that is to be held in the firm's escrow account shall be placed in an such escrow account by the end of the fifth business banking day following ratification, unless otherwise agreed to in writing by the principals to the transaction, and shall remain in that account until the transaction has been consummated or terminated. If a principal broker or supervising broker, or an agent of such principal broker or supervising broker, receives an earnest money deposit that will not be held in the firm's escrow account, the principal broker or supervising broker shall ensure that the earnest money deposit is delivered to the escrow agent named in the contract by the end of the fifth business banking day following receipt of the deposit, unless otherwise agreed to in writing by the principals to the transaction. In the event that the transaction is not consummated, the principal broker or supervising broker shall hold such funds in escrow until (i) all principals to the transaction have agreed in a written agreement as to their disposition, upon which the funds shall be returned to the agreed upon principal as provided in such written agreement; (ii) a court of competent jurisdiction orders such disbursement of the funds; (iii) the funds are successfully interpleaded into a court of competent jurisdiction pursuant to this section; or (iv) the broker releases the funds to the principal to the transaction who is entitled to receive them in accordance with the clear and explicit terms of the contract that established the earnest money deposit. At the option of a broker, written notice may be sent by the broker that release of such funds shall be made unless a written protest is received from the principal who is not receiving the funds by such broker within 15 calendar days of the date of such notice. Notice of a disbursement shall be given to the parties to the transaction in accordance with the contract, but if the contract does not specify a method of delivery, one of the following methods complies with this section: (i) hand delivery; (ii) United States mail, postage prepaid, provided that the sender retains sufficient proof of mailing, which may be either a United States postal certificate of mailing or a certificate of service prepared by the sender confirming such mailing; (iii) electronic means, provided that the sender retains sufficient proof of the electronic delivery, which may be an electronic receipt of delivery, a confirmation that the notice was sent by facsimile, or a certificate of service prepared by the sender confirming the electronic delivery; or (iv) overnight delivery using a commercial service or the United States Postal Service. Except as provided in the clear and explicit terms of the contract, no broker shall be required to make a determination as to the party entitled to receive the earnest money deposit. A broker who complies with this section shall be immune from liability to any of the parties to the contract.

A principal broker or supervising broker holding escrow funds for a principal to the transaction may seek to have a court of competent jurisdiction take custody of disputed or unclaimed escrow funds via an interpleader action pursuant to § 16.1-77 of the Code of Virginia.

If a principal broker, supervising broker, or an agent of such licensee is holding escrow funds for the owner of real property and such property is foreclosed upon by a lender, the principal broker, supervising broker, or agent shall have the right to file an interpleader action pursuant to § 16.1-77 of the Code of Virginia and otherwise comply with the provisions of § 54.1-2108.1 of the Code of Virginia.

If a single family residential dwelling unit is foreclosed upon, and at the date of the foreclosure sale there is a real estate purchase contract to buy such property and such contract provides that the earnest money deposit held in escrow by a firm or sole proprietorship shall be paid to a principal to the contract in the event of a termination of the real estate purchase contract, the foreclosure shall be deemed a termination of the real estate purchase contract, and the principal broker, supervising broker, or agent of the licensee may, absent any default on the part of the purchaser, disburse the earnest money deposit to the purchaser pursuant to such provisions of the real estate purchase contract without further consent from or notice to the principals.

b. Lease transactions: security deposits. Any security deposit held by a firm or sole proprietorship shall be placed in an escrow account by the end of the fifth business banking day following receipt, unless otherwise agreed to in writing by the principals to the transaction. Each such security deposit shall be treated in accordance with the security deposit provisions of the Virginia Residential Landlord and Tenant Act, Chapter 12 (§ 55.1-1200 et seq.) of Title 55.1 of the Code of Virginia, unless exempted therefrom, in which case the terms of the lease or other applicable law shall control. Notwithstanding anything in this section to the contrary, unless the landlord has otherwise become entitled to receive the security deposit or a portion thereof, the security deposit shall not be removed from an escrow account required by the lease without the written consent of the tenant. If a single-family residential dwelling unit is foreclosed upon and there is a tenant in the dwelling unit on the date of the foreclosure sale and the landlord is holding a security deposit of the tenant, the landlord shall handle the security deposit in accordance with applicable law, which requires the holder of the landlord's interest in the dwelling unit at the time of termination of tenancy to return any security deposit and any accrued interest that is duly owed to the tenant, whether or not such security deposit is transferred with the landlord's interest by law or equity, and regardless of any contractual agreements between the original landlord and his successors in interest. Nothing in this section shall be construed to prevent the landlord from making lawful deductions from the security deposit in accordance with applicable law.

c. Lease transactions: rent or escrow fund advances. Unless otherwise agreed in writing by all principals to the transaction, all rent and other money paid to the licensee in connection with the lease shall be placed in an escrow account by the end of the fifth business banking day following receipt, regardless of when received, and remain in that account until paid in accordance with the terms of the lease and the property management agreement, as applicable, except prepaid rent, which shall be treated in accordance with the prepaid rent provision of the Virginia Residential Landlord and Tenant Act, Chapter 12 (§ 55.1-1200 et seq.) of Title 55.1 of the Code of Virginia.

d. Lease transactions: rent payments. If there is in effect at the date of the foreclosure sale a tenant in a residential dwelling unit foreclosed upon and the rent is paid to a licensee acting on behalf of the landlord pursuant to a properly executed property management agreement, the licensee may collect the rent in accordance with § 54.1-2108.1 A 4 of the Code of Virginia.

2. a. Purchase transactions. Unless otherwise agreed in writing by all principals to the transaction, a licensee shall not be entitled to any part of the earnest money deposit or to any other money paid to the licensee in connection with any real estate transaction as part of the licensee's commission until the transaction has been consummated.

b. Lease transactions. Unless otherwise agreed in writing by the principals to the lease or property management agreement, as applicable, a licensee shall not be entitled to any part of the security deposit or to any other money paid to the licensee in connection with any real estate lease as part of the licensee's commission except in accordance with the terms of the lease or the property management agreement, as applicable. Notwithstanding anything in this section to the contrary, unless the landlord has otherwise become entitled to receive the security deposit or a portion thereof, the security deposit shall not be removed from an escrow account required by the lease without the written consent of the tenant. Except in the event of a foreclosure, if a licensee elects to terminate the property management agreement with the landlord, the licensee may transfer any funds held in escrow on behalf of the landlord in accordance with § 54.1-2108.1 B 5 of the Code of Virginia. If a single-family residential dwelling unit is foreclosed upon, and at the date of the foreclosure sale there is a written property management agreement between a licensee and a landlord, the property management agreement shall continue in accordance with § 54.1-2108.1 A 5 of the Code of Virginia.

3. On funds placed in an account bearing interest, written disclosure in the contract of sale or lease at the time of contract or lease writing shall be made to the principals to the transaction regarding the disbursement of interest.

4. A licensee shall not disburse or cause to be disbursed moneys from an escrow or property management escrow account unless sufficient money is on deposit in that account to the credit of the individual client or property involved.

5. Unless otherwise agreed in writing by all principals to the transaction, expenses incidental to closing a transaction (e.g., fees for appraisal, insurance, credit report) shall not be deducted from a deposit or down payment.

C. Actions including improper maintenance of escrow funds include:

1. Accepting any note, nonnegotiable instrument, or anything of value not readily negotiable, as a deposit on a contract, offer to purchase, or lease without acknowledging its acceptance in the agreement;

2. Commingling the funds of any person by a principal or supervising broker or his employees or associates or any licensee with his own funds, or those of his corporation, firm, or association;

3. Failure to deposit escrow funds in an account designated to receive only such funds as required by subdivision A 1 of this section;

4. Failure to have sufficient balances in an escrow account at all times for all funds that are designated to be held by the firm or sole proprietorship as required by this chapter; and

5. Failing as principal broker to report to the board within three business days instances where the principal broker reasonably believes the improper conduct of a licensee, independent contractor, or employee has caused noncompliance with this section.

18VAC135-20-210. Disclosure of interest. (Repealed.)

If a licensee knows or should have known that he, any member of his family, his firm, any member of his firm, or any entity in which he has an ownership interest, is acquiring or attempting to acquire or is selling or leasing real property through purchase, sale, or lease and the licensee is a party to the transaction, the licensee must disclose in writing that he is a licensee and that he, any member of his family, his firm, any member of his firm, or any entity in which he has an ownership interest has or will have an ownership interest to the other parties to the transaction. This disclosure shall be made to the purchaser, seller, lessor, or lessee upon having substantive discussions about specific real property.

Title of Regulation: 20VAC5-430. Rules Governing Designation of Commercial Mobile Radio or Cellular Telephone Service Provider as an Eligible Telecommunications Carrier (adding 20VAC5-430-10 through 20VAC5-430-100).

Statutory Authority: §§ 12.1-13 and 56-479.4 of the Code of Virginia.

Public Hearing Information: A public hearing will be held upon request.

Public Comment Deadline: September 26, 2022.

Agency Contact: Shepelle Watkins-White, Deputy Director, Public Utility Regulation Division, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9050, or email shepelle.watkins-white@scc.virginia.gov.

Summary:

Pursuant to Chapter 436 of the 2022 Acts of Assembly, the proposed new chapter establishes rules to govern the designation of a commercial mobile or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline services, including (i) filing requirements for an applicant requesting that the State Corporation Commission designate the applicant as an eligible telecommunications carrier in accordance with § 56-479.4 of the Code of Virginia and applicable federal statutes and regulations; and (ii) ongoing requirements for any entity designated as an eligible telecommunications carrier by the State Corporation Commission.

AT RICHMOND, JULY 27, 2022

CASE NO. PUR-2022-00107

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

Ex Parte: In the matter of establishing rules
governing the designation of a commercial mobile
or cellular telephone service provider as an
eligible telecommunications carrier for purposes
of providing Lifeline services.

ORDER FOR NOTICE AND COMMENT

This order initiates a proceeding to consider establishing rules by the State Corporation Commission ("Commission") to govern the designation of a commercial mobile or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline services. During its 2022 Session, the Virginia General Assembly enacted Chapter 436 of the Acts of Assembly, which states:

The State Corporation Commission may designate any commercial mobile radio or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline service, in addition to any commercial mobile radio or cellular telephone service providers designated as such pursuant to 47 U.S.C. §§ 214(e) and (e)(2), without requiring any such provider to obtain a certificate pursuant to the provisions of § 56-265.4:4. The Commission is authorized to promulgate all rules and regulations necessary to implement the provisions of this act.

To facilitate a determination of what rules and regulations are necessary to implement the provisions of Chapter 436 of the 2022 Acts of Assembly, the Staff of the Commission ("Staff") has prepared proposed rules ("Proposed Rules"), which are attached hereto.

NOW THE COMMISSION, upon consideration of the foregoing, is of the opinion and finds that notice of the Proposed Rules should be given to the public and that interested persons should be provided an opportunity to file written comments on, propose modifications or supplements to, or request a hearing on the Proposed Rules. We further find that a copy of the Proposed Rules should be sent to the Registrar of Regulations for publication in the Virginia Register of Regulations.

The Commission takes judicial notice of the ongoing public health issues related to the spread of the coronavirus, or COVID-19. The Commission has taken certain actions, and may take additional actions going forward, which could impact the procedures in this proceeding.¹ Consistent with these actions, in regard to the terms of the procedural framework established below, the Commission will, among other things, direct the electronic filing of comments.

Accordingly, IT IS ORDERED THAT:

(1) The matter is docketed and assigned Case No. PUR-2022-00107.

(2) All comments, pleadings, or other documents filed in this matter should be submitted electronically to the extent authorized by 5 VAC 5-20-150, Copies and format, of the Commission's Rules of Practice and Procedure ("Rules of Practice").² Confidential and Extraordinarily Sensitive Information shall not be submitted electronically and should comply with 5 VAC 5-20-170, Confidential information, of the Rules of Practice. Any person seeking to hand deliver and physically file or submit any pleading or other document shall contact the Clerk's Office Document Control Center at (804) 371-9838 to arrange the delivery.³

(3) Pursuant to 5 VAC 5-20-140, Filing and service, of the Rules of Practice, the Commission directs that service on parties and the Staff in this matter shall be accomplished by electronic means. Concerning Confidential or Extraordinarily Sensitive Information, parties and the Staff are instructed to work together to agree upon the manner in which documents containing such information shall be served upon one another, to the extent practicable, in an electronically protected manner, even if such information is unable to be filed in the Office of the Clerk, so that no party or the Staff is impeded from preparing its case.

(4) The Staff shall forward a copy of this Order for Notice and Comment ("Order"), including a copy of the Proposed Rules, to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(5) On or before August 29, 2022, the Commission's Division of Public Utility Regulation shall publish the following notice as classified advertising in newspapers of general circulation throughout the Commonwealth of Virginia:

NOTICE TO THE PUBLIC OF A PROCEEDING TO ESTABLISH RULES OF THE STATE CORPORATION COMMISSION GOVERNING THE DESIGNATION OF A COMMERCIAL MOBILE OR CELLULAR TELEPHONE SERVICE PROVIDER AS AN ELIGIBLE TELECOMMUNICATIONS CARRIER FOR PURPOSES OF PROVIDING LIFELINE SERVICES

The State Corporation Commission ("Commission") has initiated a proceeding to consider establishing rules to govern the designation of a commercial mobile or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline services. The Staff of the Commission has prepared proposed rules for review ("Proposed Rules"). The Commission has issued an Order for Notice and Comment that provides that notice be given to the public and that interested persons be given an opportunity to file written comments on, to propose modifications or supplements to, or to request a hearing on these Proposed Rules.

An electronic copy of the Proposed Rules can be found at the Division of Public Utility Regulation's website: scc.virginia.gov/pages/Rulemaking. A downloadable version of this Order, the Proposed Rules, and related filings is available for access by the public on the Commission's website: scc.virginia.gov/pages/Case-Information.

On or before September 26, 2022, any interested person or entity may file comments on the Proposed Rules by following the instructions found on the Commission's website: scc.virginia.gov/casecomments/Submit-Public-Comments. Those unable, as a practical matter, to submit comments electronically may file such comments by U.S. mail to the Clerk of the State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. Such comments may also include proposals and hearing requests. All comments shall refer to Case No. PUR-2022-00107. Any request for hearing shall state with specificity why the issues raised in the request for hearing cannot be adequately addressed in written comments. If a sufficient request for hearing is not received, the Commission may consider the matter and enter an order based upon the papers filed herein.

STATE CORPORATION COMMISSION

(6) An electronic copy of the Proposed Rules may be obtained by submitting a request to Shepelle Watkins-White in the Commission's Division of Public Utility Regulation at the following email address: Shepelle.Watkins-White@scc.virginia.gov. An electronic copy of the Proposed Rules can be found at the Division of Public Utility Regulation's website: scc.virginia.gov/pages/Rulemaking. Interested persons may also download unofficial copies of the Order and the Proposed Rules from the Commission's website: scc.virginia.gov/pages/Case-Information.

(7) The Commission's Division of Public Utility Regulation shall provide copies of this Order by electronic transmission, or when electronic transmission is not possible, by mail, to: individuals, organizations, and companies who have been identified by the Staff as potentially being interested in this proceeding.

(8) On or before September 26, 2022, any interested person may file comments on the Proposed Rules by following the instructions found on the Commission's website: scc.virginia.gov/casecomments/Submit-Public-Comments. Those unable, as a practical matter, to submit comments electronically may file such comments by U.S. mail to the Clerk of the State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. Such comments may also include proposals and hearing requests. All comments shall refer to Case No. PUR-2022-00107. Any request for hearing shall state with specificity why the issues raised in the request for hearing cannot be adequately addressed in written comments. If a sufficient request for hearing is not received, the Commission may consider the matter and enter an order based upon the papers filed herein.

(9) On or before October 24, 2022, the Staff shall file with the Clerk of the Commission a report on or a response to any comments, proposals, or requests for hearing submitted to the Commission on the Proposed Rules.

(10) All documents filed in paper form with the Office of the Clerk of the Commission in this docket may use both sides of the paper. In all other respects, except as modified by this order, all filings shall comply fully with the requirements of 5 VAC 5-20-150, Copies and format, of the Rules of Practice.

(11) This matter is continued.

A COPY hereof shall be sent electronically by the Clerk of the Commission to all local exchange carriers certificated in Virginia as set out in Appendix A; and C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 N. 9th Street, 8th Floor, Richmond, Virginia 23219-3424, mbrowder@oag.state.va.us.

^{____________________________________}

¹See, e.g., Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic Service of Commission Orders, Case No. CLK-2020-00004, 2020 S.C.C. Ann. Rept. 76, Order Concerning Electronic Service of Commission Orders (Mar. 19, 2020), extended by 2020 S.C.C. Ann. Rept. 77, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel., State Corporation Commission, Ex Parte: Revised Operating Procedures During COVID-19 Emergency, Case No. CLK-2020-00005, 2020 S.C.C. Ann. Rept. 77, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (Mar. 19, 2020) ("Revised Operating Procedures Order"), extended by 2020 S.C.C. Ann. Rept. 78, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic service among parties during COVID-19 emergency, Case No. CLK-2020-00007, 2020 S.C.C. Ann. Rept. 79, Order Requiring Electronic Service (Apr. 1, 2020).

²5 VAC 5-20-10 et seq.

³As noted in the Commission's Revised Operating Procedures Order, submissions to the Commission's Clerk's Office via U.S. mail or commercial mail equivalents may not be processed for an indefinite period of time due to the COVID-19 health issues.

Chapter 430

Rules Governing Designation of Commercial Mobile Radio or Cellular Telephone Service Provider as an Eligible Telecommunications Carrier

20VAC5-430-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Broadband Internet access service" means a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up service.

"Commission" means the State Corporation Commission.

"Duplicative support" means a Lifeline subscriber is receiving two or more Lifeline services concurrently or two or more subscribers in a household are receiving Lifeline services or Tribal Link Up support concurrently.

"ETC" means eligible telecommunications carrier.

"FCC" means Federal Communications Commission.

"Lifeline" means a nontransferable retail service offering provided directly to qualifying low-income consumers as defined in 47 CFR 54.401.

"Lifeline service" means telephony, broadband Internet access service, and other supported services as provided by the FCC through its universal service fund for qualifying low-income customer support pursuant to 47 USC § 214 and associated regulations pursuant thereto (see 47 CFR Part 54, Subpart E).

"National Lifeline Accountability Database" is an electronic system, with associated functions, processes, policies, and procedures, to facilitate the detection and elimination of duplicative support, as directed by the FCC.

"Qualifying low-income consumer" means a consumer who meets the qualifications for Lifeline, as specified in 47 CFR 54.409.

20VAC5-430-20. Filing of application.

A. Unless filed electronically, an original and 15 copies of an application seeking designation as an ETC shall be filed with the Clerk of the Commission.

1. An applicant shall deliver a copy of the application to the Division of Public Utility Regulation at the same time it is filed with the Clerk of the Commission.

2. A copy of all confidential information filed under seal with the Clerk of the Commission in connection with the application shall be provided by the applicant, at the time of filing, to the Division of Public Utility Regulation and the Office of General Counsel pursuant to 5VAC5-20-170.

3. Any amendment or supplement to the application shall be filed in compliance with this section.

B. Notice of the application shall be given to all certificated local exchange carriers and other interested parties in Virginia in a form to be prescribed by the commission pursuant to an order.

20VAC5-430-30. Notice of application.

Pursuant to a commission procedural order, the applicant shall publish notice in newspapers having general circulation throughout its proposed service territory.

20VAC5-430-40. Application requirements.

A. An applicant shall submit information that identifies the applicant, including (i) its name, address, and telephone number; (ii) its corporate ownership; (iii) the name, address, and telephone number of its corporate parent, if any; (iv) a list of its officers and directors, or if the applicant is not a corporation, a list of its principals and their directors; (v) the names, addresses, and telephone numbers of its legal counsel; and (vi) the name, address, telephone number, fax number, and email address of the primary in-house regulatory contact, designated to receive all official mailings or notices from the commission or staff. An update of any information for the ETC's primary in-house regulatory contact shall be provided to the commission staff within 30 days of any change.

B. An applicant shall attest that it will meet the requirements set forth in 47 USC § 214 (e)(1)(A) and (B) and 47 CFR Part 54, for designation as an ETC to be eligible to receive federal universal service fund support for Lifeline service provided to qualifying low-income customers in Virginia. All ETCs shall comply with federal requirements except to the extent the FCC has granted a waiver of its rules and regulations. All ETCs shall comply with this chapter except to the extent any waiver is granted pursuant to 20VAC5-430-100.

C. An applicant shall attest that it will maintain current terms, conditions, and rates applicable to its Lifeline service in a link to its service guide posted on its website and shall provide to the commission said link with its application. An ETC shall provide the commission staff an update upon a change to an ETC's web address affecting said link.

D. An applicant shall provide a statement that it will query the National Lifeline Accountability Database to determine whether prospective subscribers are currently receiving a Lifeline service from another ETC and whether anyone else living at the prospective subscriber's residential address is currently receiving a Lifeline service.

E. An applicant shall attest that it will satisfy applicable consumer protection and service standards. A commitment by wireless applicants to comply with the Cellular Telecommunications and Internet Association's Consumer Code for Wireless Service will satisfy this requirement. Other commitments will be considered on a case-by-case basis.

F. An applicant shall demonstrate that it is authorized to do business in the Commonwealth of Virginia by providing the following:

1. In the case of an entity formed under the laws of Virginia: (i) a true and correct copy of its articles of organization or incorporation, certificate of limited partnership, or other organizational documents, and all amendments thereto; and (ii) a copy of the certificate and order issued by the commission.

2. In the case of an entity formed under the laws of a jurisdiction other than Virginia: (i) a copy of the certificate or statement of registration to do business in Virginia issued to it by the commission; and (ii) a true and correct copy of its articles of organization, certificate of limited partnership, or other organizational documents, and all amendments thereto.

G. An applicant shall be required to show that it is financially and technically capable of providing the supported Lifeline service.

1. To demonstrate financial ability, an applicant shall, at a minimum, provide the per books balance sheet, income statement, and statement of changes in financial position of an applicant or the entity responsible for the financing of an applicant, for the two most recent annual periods. Audited financial statements shall be provided, if available, including notes to the financial statements and auditor's letter. Published financial information that includes Securities and Exchange Commission forms 10K and 10Q shall be provided, if available.

2. An applicant shall demonstrate that it is technically capable of providing the supported Lifeline service by, at a minimum, providing the following information:

a. A description of the applicant's or the applicant's parent's history and experience of providing wireless telecommunications or other relevant services, if any; and

b. The managerial and technical experience of each principal officer or member and appropriate senior management and technical personnel.

3. An applicant shall provide a list of the states where the applicant, parent, or any affiliate is designated as an ETC, including the date service was commenced for each.

4. An applicant shall also provide a list of any state where an ETC designation was previously held or Lifeline service was provided and subsequently discontinued and the applicable dates.

5. An applicant shall provide a list of the states where the applicant, parent, or any affiliate has had its ETC designation or authorization denied, suspended, terminated, or revoked. The list shall include the reason for such denial, suspension, termination, or revocation and copies of any orders issued by a state commission or regulatory authority addressing such action.

6. A description of whether the applicant intends to offer the Lifeline service over its own facilities, by resale of another carrier's facilities or services, or through a combination of its own facilities and resale of third-party facilities or services.

7. A provider of wireless telecommunication service who seeks designation as an ETC that does not own facilities must affirm in its application that it:

a. Provides qualifying low-income subscribers access to emergency 911 service and enhanced 911 service, regardless of activation status and availability of minutes;

b. Provides qualifying low-income subscribers handsets that are capable of providing access to enhanced 911 service and replaces at no additional charge any handset that is not capable of providing access to enhanced 911 service; and

c. If required, has a plan for compliance which has been approved by the Wireline Competition Bureau of the FCC.

8. An applicant shall attest that it will comply with the requirements set forth in 47 CFR 54.404.

9. An applicant shall affirm its ability to remain functional in emergency situations, including a demonstration that it has a reasonable amount of back-up power to ensure functionality without an external power source, is able to reroute traffic around damaged facilities, and is capable of managing traffic spikes resulting from emergency situations.

H. A copy of the compliance plan submitted to and approved by the requisite FCC bureau shall be included with any application for ETC designation filed by an entity providing wireless service on a purely resale basis.

I. An applicant must comply with the Lifeline minimum service standards detailed at 47 CFR 54.408.

20VAC5-430-50. Complaints.

Each ETC shall designate a point of contact for the handling of customer complaints received by the commission. When contacted by a member of the commission staff regarding a customer complaint received by the commission, the ETC shall provide the commission staff a written response within 24 hours confirming contact with the customer and describing the plan for addressing the customer's complaint. The ETC shall provide commission staff a written confirmation when the customer complaint is resolved.

20VAC5-430-60. Reports to the State Corporation Commission.

A. Each ETC shall retain a listing of all of the service areas within Virginia in which the ETC has provided Lifeline service during the preceding 12 months and shall provide such to the commission staff upon request.

B. Each ETC shall promptly furnish such other information as the commission staff may reasonably request, unless otherwise ordered by the commission.

C. Within 30 days of submission to the FCC, each ETC shall submit a copy of its annual report to commission staff pursuant to 47 CFR 54.422.

D. Each ETC shall provide to the commission the annual notarized affidavit required to be filed to support the commission's designation of the use of federal universal service funds as required by 47 USC § 254(e).

20VAC5-430-70. Customer notice requirements.

An applicant shall include in its application, a copy of the rates, terms, and conditions, or weblink thereto, that describes to current and potential customers how notice of any change to rates, terms, and conditions of any aspect of the supported Lifeline service will be provided, including the amount of prior notice any customer will be entitled to before said change is put into effect. The notice to customers shall afford an adequate amount of time for the customer to select another provider before said change is put into effect.

20VAC5-430-80. Suspension of revocation of ETC designation.

A. No carrier shall unreasonably discriminate among subscribers requesting service. Any finding of discrimination may be grounds for suspension or revocation of the ETC designation of public convenience and necessity granted by the commission.

B. Excessive subscriber complaints against a wireless ETC that the commission has found to be meritorious may be grounds for suspension or revocation of the carrier's ETC designation.

C. In all proceedings pursuant to this section, the commission shall give notice to the carrier of the allegations made against it and provide the ETC with an opportunity to be heard concerning those allegations prior to the suspension or revocation of the ETC designation.

20VAC5-430-90. Abandonment or discontinuation of service.

No wireless ETC shall abandon or discontinue service, or any part of service established, unless it provides advance notice to the commission, which shall include a description of the notice to be provided to customers that ensures adequate time to find another service provider.

20VAC5-430-100. Commission authority.

The commission may, at its discretion, waive or grant exceptions to any provisions of this chapter.