23-17-409. Authorization of competing local exchange carriers.

23-17-409. Authorization of competing local exchange carriers. (a)(1)(A) Consistent with the federal act and the provisions of § 23-17-410, the Arkansas Public Service Commission is authorized to grant certificates of convenience and necessity to telecommunications providers authorizing them to provide telecommunications services, including basic local exchange service or switched-access service, or both, to an incumbent local exchange carrier's local exchange area if and to the extent that the applications otherwise comply with state law, designate the geographic areas proposed to be served by the applicants, and the applicants demonstrate that they possess the financial, technical, and managerial capacity to provide the competing services. (B) No telecommunications provider shall operate as a CLEC in this state without first obtaining from the commission a certificate of public convenience and necessity. (2) Competing local exchange carriers shall be required to maintain a current tariff or price list with the commission and to make prices and terms of service available for public inspection. (3) Retail prices of competing local exchange carriers shall not require prior review or approval by the commission. (b)(1) Except as otherwise provided in subdivisions (b)(2) and (b)(5) of this section, a government entity may not provide, directly or indirectly, basic local exchange, voice, data, broadband, video, or wireless telecommunications services. (2) After reasonable notice to the public and a public hearing, a government entity owning an electric utility system or television signal distribution system may provide, directly or indirectly, voice, data, broadband, video, or wireless telecommunications services and make any telecommunications capacity or associated facilities that the government entity now owns, or may construct or acquire, available to the public upon terms and conditions as may be established by the government entity's governing authority, except the government entity may not use the telecommunications capacity or associated facilities to provide, directly or indirectly, basic local exchange service. (3) Any restriction contained in this subsection shall not be applicable to the provision of telecommunications services to the extent the telecommunications services are used solely for 911, E911, or other emergency and law enforcement services, or for the provision of data, broadband, or non-entertainment video telecommunications services or facilities by or to a medical institution or an institution of higher education to its students, faculty, staff, or patients, as the provision of the telecommunications services or facilities relates to academic, research, and healthcare information technology applications under the Arkansas Information Systems Act of 1997, § 25-4-101 et seq. (4) This section does not prohibit a government entity from purchasing voice, data, broadband, video, or wireless telecommunications services, directly or indirectly, from a private provider through a contract administered and services managed by the Division of Information Systems under the Arkansas Information Systems Act of 1997, § 25-4-101 et seq. (5) After reasonable notice to the public, a government entity may, on its own or in partnership with a private entity, apply for funding under a program for grants or loans to be used for the construction, acquisition, or leasing of facilities, land, or buildings used to deploy broadband service in unserved areas, as defined under the terms of the granting or lending program, and if the funding is awarded, then provide, directly or indirectly, voice, data, broadband, video, or wireless telecommunications services to the public in the unserved areas. (c) A governmental entity that operates an electric utility system may deny any telecommunications provider access to its electric utility poles, ducts, conduits, or rights-of-way on a nondiscriminatory basis when there is insufficient capacity and for reasons of safety, reliability, and generally applicable engineering purposes. (d)(1) Except to the extent required by the federal act and this subchapter, the commission shall not require an incumbent local exchange carrier to negotiate resale of its retail telecommunications services, to provide interconnection, or to sell unbundled network elements to a competing local exchange carrier for the purpose of allowing the competing local exchange carrier to compete with the incumbent local exchange carrier in the provision of basic local exchange service. (2) Promotional prices, service packages, trial offerings, or temporary discounts offered by the local exchange carrier to its end-user customers are not required to be available for resale. (e) The prices for unbundled network elements shall include the actual costs, including an allocation of joint and common costs and a reasonable profit. (f) As provided in 47 U.S.C. §§ 251 and 252, the commission's authority with respect to interconnection, resale, and unbundling is limited to the terms, conditions, and agreements pursuant to which an incumbent local exchange carrier will provide interconnection, resale, or unbundling to a CLEC for the purpose of the CLEC's competing with the incumbent local exchange carrier in the provision of telecommunications services to end-user customers. (g)(1) As permitted by the federal act, the commission shall approve resale restrictions that prohibit resellers from purchasing retail local exchange services offered by a local exchange carrier to residential customers and reselling those retail services to nonresidential customers, or aggregating the usage of multiple customers on resold local exchange services, or any other reasonable limitation on resale to the extent permitted by the federal act. (2) The wholesale rate of any existing retail telecommunications services provided by local exchange carriers that are not exempt from 47 U.S.C. § 251(c) and that are being sold for the purpose of resale shall be the retail rate of the service less any net avoided costs due to the resale. (3) The net avoided costs shall be calculated as the total of the costs that will not be incurred by the local exchange carrier due to its selling the service for resale less any additional costs that will be incurred as a result of selling the service for the purpose of resale. (h) Incumbent local exchange carriers shall provide competing local exchange carriers, at reasonable rates, nondiscriminatory access to operator services, directory listings and assistance, and 911 service only to the extent required in the federal act. (i)(1) The commission shall approve any negotiated interconnection agreement or statement of generally available terms filed pursuant to the federal act unless it is shown by clear and convincing evidence that the agreement or statement does not meet the minimum requirements of 47 U.S.C. § 251. (2) In no event shall the commission impose any interconnection requirements that go beyond those requirements imposed by the federal act or any interconnection regulations or standards promulgated under the federal act. (j) In the event the commission is requested to arbitrate any open issues pursuant to 47 U.S.C. § 252, the parties to the arbitration proceeding shall be limited to the persons or entities negotiating the agreement.