§37-2A-5. Process for election.

(a) An incumbent local exchange carrier, local exchange carrier, or inter-exchange carrier shall be deemed to have elected to be regulated under this chapter unless the carrier files written notice with the commission declining regulation under this chapter not later than August 31, 2005; provided, however, that, any other provision of this chapter to the contrary notwithstanding, so long as (i) application of any of the requirements of 47 U.S.C. 251 (b) or (c) shall have been suspended or modified with respect to an incumbent local exchange carrier pursuant to the provisions of 47 U.S.C. 251 (f) (2), or (ii) an incumbent local exchange carrier shall be exempt from the obligations of 47 U.S.C. 251 (c) pursuant to the provisions of 47 U.S.C. 251 (f) (1) (A), such incumbent local exchange carrier shall not be eligible to elect and shall not be deemed to have elected to be regulated under this chapter unless the incumbent local exchange carrier files with the commission either a written waiver of the incumbent local exchange carrier's exemption pursuant to the provisions of 47 U.S.C. 251(f)(1)(A), accompanied by a written statement and undertaking to the effect that those requirements of 47 U.S.C. 251(b) and (c), if any, that shall have theretofore been or that may thereafter be suspended or modified with respect to it pursuant to the provisions of 47 U.S.C. 251(f)(2) will either expire by the terms of such suspension or modification, or will cease to be effective, within 18 months from the date of filing of the waiver in the case of such suspensions or modifications theretofore granted, or otherwise from the date any such suspension or modification is thereafter granted, or written certification of the existence of two or more of the following:

(1) Either (i) the incumbent local exchange carrier has executed an interconnection agreement with two or more specified local exchange carriers unaffiliated with the incumbent local exchange carrier and, to the extent required under law, has obtained regulatory approval for such agreement or agreements, or (ii) the incumbent local exchange carrier offers for resale at wholesale rates, consistent with the provisions of 47 U.S.C. 251(c)(4)(A) and (B), any telecommunications service that the incumbent local exchange carrier provides at retail to subscribers who are not telecommunications carriers.

(2) Either (i) at least two specified wireless telecommunications providers unaffiliated with the incumbent local exchange carrier are licensed by the Federal Communications Commission in a geographic area encompassing more than one-half of the incumbent local exchange carrier's subscribers, or (ii) at least two specified voice over Internet protocol providers offer service in a geographic area encompassing more than one-half of the incumbent local exchange carrier's subscribers.

(3) Another entity not specified by the incumbent local exchange carrier in its certification of the existence of a condition described in subdivision (1) or (2) above has been designated an eligible telecommunications carrier by the Federal Communications Commission for the purpose of providing universal service to at least one-half of the incumbent local exchange carrier's subscribers.

Such certification shall, except as provided hereinafter, become effective on the 91st day following its filing and the incumbent local exchange carrier shall thereafter become subject to regulation under this chapter.

The incumbent local exchange carrier shall cause notice of the filing of any such certification to be given to the mayor of each municipality within the incumbent local exchange carrier's local service area or areas, and shall publish such notice once a week for three consecutive weeks in a daily newspaper of general circulation within the incumbent local exchange carrier's local service area or areas, proof of which notice to the mayors and of publication shall be provided to the commission within 30 days of the filing of the certification. The notice shall reference this chapter, identify the incumbent local exchange carrier, specify the date of the filing of the certification, explain the nature of the certification, and explain that any subscriber of the incumbent local exchange carrier may challenge the material correctness of the certification by filing with the commission within 90 days of the date of filing of the certification a pleading in writing setting forth with specificity the reasons the subscriber believes the certification to be materially inaccurate. Upon timely receipt of such a pleading, the effectiveness of the certification shall be deemed suspended, and the commission shall set a hearing thereon and give notice thereof in accordance with its rules. At the hearing, the commission may take such testimony as may be offered, the burden of proof being upon the incumbent local exchange carrier to demonstrate by substantial evidence that its certification is correct in all material respects. The commission shall within 60 days after the completion of the hearing and arguments, if any, determine whether the incumbent local exchange carrier's certification is materially correct and shall make and file and serve upon all the interested parties a written order setting forth its determination. In the event that the commission shall determine the incumbent local exchange carrier's certification to be materially correct, the suspension of the certification shall cease and the incumbent local exchange carrier shall be deemed to have validly elected to be regulated under the provisions of this chapter, effective as of the date of the commission's order. In the event that the commission shall fail to make and serve its order determining the material correctness of the incumbent local exchange carrier's certification within 60 days after the completion of the hearing and arguments, the incumbent local exchange carrier's certification shall be deemed to be materially correct, the suspension of the certification shall cease, and the incumbent local exchange carrier shall be deemed to have validly elected to be regulated under the provisions of this chapter, effective as of the 61st day following the completion of the hearing and arguments. An aggrieved party may appeal the commission's order setting forth its determination to the Supreme Court of Alabama pursuant to the provisions of Section 37-1-140 et seq., governing appeals of decisions involving rates and charges of telephone companies and public utilities.

(b) An incumbent local exchange carrier, local exchange carrier, or inter-exchange carrier who elects not to be regulated under this chapter as provided in subsection (a) shall be regulated as provided in other chapters of this title.

(c) An incumbent local exchange carrier, local exchange carrier, or inter-exchange carrier may change its election annually by filing written notice with the commission. The time for filing notice each year shall begin on August 1, beginning in 2006, and shall end 30 days thereafter.

(d) Persons or entities who are not certified in this state to provide local exchange service or inter-exchange service on August 1, 2005, may make an election as to the form of regulation by filing written notice with the commission not later than 30 days after the commission issues a certificate to provide service. The commission shall not condition its grant of certification on a provider's decision about its election of the form of regulation.

(Act 2005-110, p. 163, §1.)