By:  Seidlits                                          H.B. No. 904
       73R3990 CBH-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of certain telecommunications utilities.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 3(c), Public Utility Regulatory Act
    1-5  (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
    1-6  as follows:
    1-7        (c)  The term "public utility" or "utility," when used in
    1-8  this Act, includes any person, corporation, river authority,
    1-9  cooperative corporation, or any combination thereof, other than a
   1-10  municipal corporation or a water supply or sewer service
   1-11  corporation, or their lessees, trustees, and receivers, now or
   1-12  hereafter owning or operating for compensation in this state
   1-13  equipment or facilities for:
   1-14              (1)  producing, generating, transmitting, distributing,
   1-15  selling, or furnishing electricity ("electric utilities"
   1-16  hereinafter) provided, however, that this definition shall not be
   1-17  construed to apply to or include a qualifying small power producer
   1-18  or qualifying cogenerator, as defined in Sections 3(17)(D) and
   1-19  3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
   1-20  796(17)(D) and 796(18)(C));
   1-21              (2)(A)  the conveyance, transmission, or reception of
   1-22  communications over a telephone system as a dominant carrier as
   1-23  hereinafter defined ("telecommunications utilities" hereinafter);
   1-24  provided that no person or corporation not otherwise a public
    2-1  utility within the meaning of this Act shall be deemed such solely
    2-2  because of the furnishing or furnishing and maintenance of a
    2-3  private system or the manufacture, distribution, installation, or
    2-4  maintenance of customer premise communications equipment and
    2-5  accessories; and provided further that nothing in this Act shall be
    2-6  construed to apply to telegraph services, television stations,
    2-7  radio stations, community antenna television services, or
    2-8  radio-telephone services that may be authorized under the Public
    2-9  Mobile Radio Services rules of the Federal Communications
   2-10  Commission, other than such radio-telephone services provided by
   2-11  wire-line telephone companies under the Domestic Public Land Mobile
   2-12  Radio Service and Rural Radio Service rules of the Federal
   2-13  Communications Commission; and provided further that interexchange
   2-14  telecommunications carriers (including resellers of interexchange
   2-15  telecommunications services), specialized communications common
   2-16  carriers, other resellers of communications, other communications
   2-17  carriers who convey, transmit, or receive communications in whole
   2-18  or in part over a telephone system, and providers of operator
   2-19  services as defined in Section 18A(a) of this Act (except that
   2-20  subscribers to customer-owned pay telephone service shall not be
   2-21  deemed to be telecommunications utilities) <who are not dominant
   2-22  carriers> are also telecommunications utilities, but the
   2-23  commission's regulatory authority as to them is only as hereinafter
   2-24  defined;
   2-25                    (B)  "dominant carrier" when used in this Act
   2-26  means (i) a provider of any particular communication service which
   2-27  is provided in whole or in part over a telephone system who as to
    3-1  such service has sufficient market power in a telecommunications
    3-2  market as determined by the commission to enable such provider to
    3-3  control prices in a manner adverse to the public interest for such
    3-4  service in such market; and (ii) any provider of local exchange
    3-5  telephone service within a certificated exchange area as to such
    3-6  service.  A telecommunications market shall be statewide until
    3-7  January 1, 1985.  After this date the commission may, if it
    3-8  determines that the public interest will be served, establish
    3-9  separate markets within the state.  Prior to January 1, 1985, the
   3-10  commission shall hold such hearings and require such evidence as is
   3-11  necessary to carry out the public purpose of this Act and to
   3-12  determine the need and effect of establishing separate markets.
   3-13  Any such provider determined to be a dominant carrier as to a
   3-14  particular telecommunications service in a market shall not be
   3-15  presumed to be a dominant carrier of a different telecommunications
   3-16  service in that market.  The term does not include an interexchange
   3-17  carrier that is not a certificated local exchange carrier, with
   3-18  respect to interexchange services.
   3-19              (3)  The term "public utility" or "utility" shall not
   3-20  include any person or corporation not otherwise a public utility
   3-21  that furnishes the services or commodity described in any paragraph
   3-22  of this subsection only to itself, its employees, or tenants as an
   3-23  incident of such employee service or tenancy, when such service or
   3-24  commodity is not resold to or used by others.  The term "electric
   3-25  utility" shall not include any person or corporation not otherwise
   3-26  a public utility that owns or operates in this state equipment or
   3-27  facilities for producing, generating, transmitting, distributing,
    4-1  selling, or furnishing electric energy to an electric utility, if
    4-2  the equipment or facilities are used primarily for the production
    4-3  and generation of electric energy for consumption by the person or
    4-4  corporation.  The term "public utility," "utility," or "electric
    4-5  utility" shall not include any person or corporation not otherwise
    4-6  a public utility that owns or operates in this state a recreational
    4-7  vehicle park that provides metered electric service in accordance
    4-8  with Article 1446d-2, Revised Statutes.  A recreational vehicle
    4-9  park owner is considered a public utility if the owner fails to
   4-10  comply with Article 1446d-2, Revised Statutes, with regard to the
   4-11  metered sale of electricity at the recreational vehicle park.
   4-12        SECTION 2.  Sections 18(c), (d), and (l), Public Utility
   4-13  Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
   4-14  amended to read as follows:
   4-15        (c)  Except as provided by Section 18A of this Act, the
   4-16  commission shall only have the following jurisdiction over all
   4-17  telecommunications utilities who are not dominant carriers:
   4-18              (1)  to require registration as provided in Subsection
   4-19  (d) of this section;
   4-20              (2)  to conduct such investigations as are necessary to
   4-21  determine the existence, impact, and scope of competition in the
   4-22  local exchange and intralata interexchange telecommunications
   4-23  industry, including identifying dominant carriers and defining the
   4-24  telecommunications market or markets, and in connection therewith
   4-25  may call and hold hearings, issue subpoenas to compel the
   4-26  attendance of witnesses and the production of papers and documents,
   4-27  and make findings of fact and decisions with respect to
    5-1  administering the provisions of this Act or the rules, orders, and
    5-2  other actions of the commission;
    5-3              (3)  to require the filing of such reports as the
    5-4  commission may direct from time to time;
    5-5              (4)  to require the maintenance of statewide average
    5-6  rates or prices of telecommunications service;
    5-7              (5)  to require that every local exchange area have
    5-8  access to interexchange telecommunications service, except that an
    5-9  interexchange telecommunications carrier must be allowed to
   5-10  discontinue service to a local exchange area if comparable service
   5-11  is available in the area and the discontinuance is not contrary to
   5-12  the public interest.  This section does not authorize the
   5-13  commission to require an interexchange telecommunications carrier
   5-14  that has not provided services to a local exchange area during the
   5-15  previous 12 months and that has never provided services to that
   5-16  same local exchange area for a cumulative period of one year at any
   5-17  time in the past to initiate services to that local exchange area;
   5-18  and
   5-19              (6)  to require the quality of interexchange
   5-20  telecommunications service provided in each exchange to be adequate
   5-21  to protect the public interest and the interests of customers of
   5-22  that exchange if the commission determines that service to a local
   5-23  exchange has deteriorated to the point that long distance service
   5-24  is not reliable.
   5-25        (d)  All providers of communications service described in
   5-26  Subsection (c) of this section who are providing such service to
   5-27  the public on the effective date of this Act shall register with
    6-1  the commission within 90 days of the effective date of this Act
    6-2  unless the provider has previously registered with the commission.
    6-3  All providers of communications service described in Subsection (c)
    6-4  of this section who commence such service to the public thereafter
    6-5  shall register with the commission within 30 days of commencing
    6-6  service.  Such registration shall be accomplished by filing with
    6-7  the commission a description of the location and type of service
    6-8  provided, the cost to the public of such service, and such other
    6-9  registration information as the commission may direct.
   6-10  Notwithstanding any other provision of this Act, an interexchange
   6-11  telecommunications carrier doing business in this state shall
   6-12  continue to maintain on file with the commission tariffs or lists
   6-13  governing the terms of providing its services.
   6-14        (l)  Notwithstanding any other provision of this Act, the
   6-15  commission may enter such orders as may be necessary to protect the
   6-16  public interest, including the imposition on any specific service
   6-17  or services of its full regulatory authority under Articles III
   6-18  through XI of this Act, if the commission finds upon notice and
   6-19  hearing that an interexchange telecommunications carrier has been
   6-20  found by a final and unappealable judgment of a court of competent
   6-21  jurisdiction, in a suit brought under Section 15.20, Business &
   6-22  Commerce Code, to have violated Section 15.05(b) of that code in
   6-23  the provision of the specific service or services <engaged in
   6-24  conduct that demonstrates the ability to control prices in a manner
   6-25  adverse to the public interest>.
   6-26        SECTION 3.  Section 78, Public Utility Regulatory Act
   6-27  (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
    7-1  as follows:
    7-2        Sec. 78.  An assessment is hereby imposed upon each public
    7-3  utility within the commission's jurisdiction, including
    7-4  interexchange telecommunications carriers, serving the ultimate
    7-5  consumer equal to one-sixth of one percent of its gross receipts
    7-6  from rates charged the ultimate consumers in Texas for the purpose
    7-7  of defraying the costs and expenses incurred in the administration
    7-8  of this Act.  Thereafter the commission shall, subject to the
    7-9  approval of the Legislature, adjust this assessment to provide a
   7-10  level of income sufficient to fund the commission and the office of
   7-11  public utility counsel.  <Any interexchange telecommunications
   7-12  carrier found dominant as to any service market under Section
   7-13  100(b) or filing a petition under Section 100(f) of this Act shall
   7-14  be required to reimburse the Office of Public Utility Counsel for
   7-15  the costs of participation before the commission on behalf of
   7-16  residential ratepayers in any of the proceedings under Section 100
   7-17  of this Act to the extent found reasonable by the commission.
   7-18  Recovery of costs under this section by the Office of Public
   7-19  Utility Counsel shall not exceed $175,000 per annum.>  Nothing in
   7-20  this Act or any other provision of law shall prohibit interexchange
   7-21  telecommunications carriers who do not provide local exchange
   7-22  telephone service from collecting the fee imposed under this Act as
   7-23  an additional item separately stated on the customer bill as
   7-24  "Utility Gross Receipts Assessment."
   7-25        SECTION 4.  Sections 100 and 101, Public Utility Regulatory
   7-26  Act (Article 1446c, Vernon's Texas Civil Statutes), are repealed.
   7-27        SECTION 5.  This Act takes effect September 1, 1993.
    8-1        SECTION 6.  The importance of this legislation and the
    8-2  crowded condition of the calendars in both houses create an
    8-3  emergency   and   an   imperative   public   necessity   that   the
    8-4  constitutional rule requiring bills to be read on three several
    8-5  days in each house be suspended, and this rule is hereby suspended.