364.059 Procedures for seeking stay; benchmark; criteria.—
(1) If a local exchange telecommunications company has elected, pursuant to 1s. 364.051(6), to have its basic local telecommunications services treated the same as its nonbasic services, the following procedures shall be available:
(a) Any petition filed by a substantially interested party against a local exchange telecommunications company seeking a stay of the effective date of a price reduction for a basic local telecommunications service, alleging an anticompetitive price reduction pursuant to s. 364.051(5), s. 364.08, s. 364.10, or s. 364.3381, shall be resolved by the commission pursuant to this section and by an order issued within 45 days after the date the petition is filed.
(b) The petitioner shall provide such showing as is required by law for a temporary injunction, and the local exchange telecommunications company shall have 7 days within which to respond to the petition.
(c) This section does not prevent the local exchange telecommunications company from raising any affirmative defenses provided by law.
(d) A stay may not be granted until the commission has voted on the petition after an opportunity for oral argument.
(e) If the commission grants a stay, the stay may not exceed 45 days, and the commission shall make a determination on the merits within the 45-day period, unless the commission extends this time period, not to exceed 15 days, based on a delay in the availability of relevant cost studies and supporting documents.
(f) If the commission denies a stay, this section does not prevent the petitioner from filing allegations of anticompetitive price reductions as otherwise provided by law.
(g) The petitioner shall have the burden of proof that a statutory violation has occurred, but the commission and the petitioner shall have access, pursuant to s. 364.183, to the local exchange telecommunications company’s relevant cost studies and supporting documents.
(h) The commission shall reject any petition within 15 days after filing if the local exchange telecommunications company challenges the petition and the commission determines that the petition on its face alleges the same violations and the same facts that have previously been resolved against the petitioner.
(2) For purposes of carrying out the procedures set forth in subsection (1), the commission shall establish an objective benchmark, such as a price or cost floor, by which the commission may determine whether a requested stay of a basic local telecommunications service price reduction is warranted. Such a benchmark must be based upon generally accepted economic costing and pricing principles and judicial or regulatory costing and pricing precedent. The commission shall also establish the criteria for determining on the merits whether the basic local telecommunications service price reduction is in fact anticompetitive. Such criteria must be based upon generally accepted economic competitive costing and pricing principles and judicial or regulatory precedent for detecting the presence of anticompetitive pricing. However, the commission may not establish benchmarks or criteria that are inconsistent with or interfere with the competitive pricing conduct permitted by existing law. The commission shall establish the benchmark and criteria by rule, which rule adoption proceeding shall commence no earlier than January 1, 2005, and a final order shall issue within 120 days after commencement. Such benchmarks and criteria must be available when subsection (1) becomes effective. If 2s. 364.164(8) becomes operative, the commission shall immediately commence establishment of the benchmark and criteria required for the procedures set forth in subsection (1) and this subsection, but nothing herein shall prevent or delay a local exchange telecommunications company from making and implementing the election provided for in 1s. 364.051(6).