49-31-3.2.   Waiver, modification, etc., of rules and orders for fully competitive or emerging competitive service--Application for classification--Factors in determining classification--Time for approval or denial. The commission, after notice and hearing, shall waive, eliminate or modify any of its rules or orders affecting telecommunications services if it finds that a telecommunications service is a fully competitive service or an emerging competitive service. A person, or the commission on its own motion, may apply to have an emerging competitive service of a telecommunications company classified as a fully competitive service or a noncompetitive service classified as an emerging competitive service or a fully competitive service. The application shall be filed with the commission and served on any other person designated by the commission. The application shall be in a form prescribed by the commission. The commission, in determining how a telecommunications service is to be classified, shall consider:

             (1)      The number and size of alternative providers of the service and the affiliation to other providers;

             (2)      The extent to which services are available from alternative providers in the relevant market;

             (3)      The ability of alternative providers to make functionally equivalent or substitute services readily available at competitive rates, terms, and conditions of service;

             (4)      The market share, the ability of the market to hold prices close to cost, and other economic measures of market power; and

             (5)      The impact on universal service.

     The commission shall approve or deny any such application within ninety days after the filing of the application. However, the commission may, by order, defer the period within which it must act for one additional period of ninety days, upon a finding that the proceeding cannot be completed within ninety days and that the additional time period is necessary for the commission to adequately and completely fulfill its duty under this title. If the commission has not acted on any such application within the appropriate time period permitted, the application shall be deemed granted.

Source: SL 1988, ch 375, § 9; SL 1992, ch 328, § 5.

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