By: Haley S.B. No. 377
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of certain telecommunications utilities.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsection (c), Section 3, Public Utility
1-4 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
1-5 amended to read as follows:
1-6 (c) The term "public utility" or "utility," when used in
1-7 this Act, includes any person, corporation, river authority,
1-8 cooperative corporation, or any combination thereof, other than a
1-9 municipal corporation or a water supply or sewer service
1-10 corporation, or their lessees, trustees, and receivers, now or
1-11 hereafter owning or operating for compensation in this state
1-12 equipment or facilities for:
1-13 (1) producing, generating, transmitting, distributing,
1-14 selling, or furnishing electricity ("electric utilities"
1-15 hereinafter) provided, however, that this definition shall not be
1-16 construed to apply to or include a qualifying small power producer
1-17 or qualifying cogenerator, as defined in Sections 3(17)(D) and
1-18 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
1-19 796(17)(D) and 796(18)(C));
1-20 (2)(A) the conveyance, transmission, or reception of
1-21 communications over a telephone system as a dominant carrier as
1-22 hereinafter defined ("telecommunications utilities" hereinafter);
1-23 provided that no person or corporation not otherwise a public
1-24 utility within the meaning of this Act shall be deemed such solely
2-1 because of the furnishing or furnishing and maintenance of a
2-2 private system or the manufacture, distribution, installation, or
2-3 maintenance of customer premise communications equipment and
2-4 accessories; and provided further that nothing in this Act shall be
2-5 construed to apply to telegraph services, television stations,
2-6 radio stations, community antenna television services, or
2-7 radio-telephone services that may be authorized under the Public
2-8 Mobile Radio Services rules of the Federal Communications
2-9 Commission, other than such radio-telephone services provided by
2-10 wire-line telephone companies under the Domestic Public Land Mobile
2-11 Radio Service and Rural Radio Service rules of the Federal
2-12 Communications Commission; and provided further that interexchange
2-13 telecommunications carriers (including resellers of interexchange
2-14 telecommunications services), specialized communications common
2-15 carriers, other resellers of communications, other communications
2-16 carriers who convey, transmit, or receive communications in whole
2-17 or in part over a telephone system, and providers of operator
2-18 services as defined in Section 18A(a) of this Act (except that
2-19 subscribers to customer-owned pay telephone service shall not be
2-20 deemed to be telecommunications utilities) <who are not dominant
2-21 carriers> are also telecommunications utilities, but the
2-22 commission's regulatory authority as to them is only as hereinafter
2-23 defined;
2-24 (B) "dominant carrier" when used in this Act
2-25 means (i) a provider of any particular communication service which
2-26 is provided in whole or in part over a telephone system who as to
2-27 such service has sufficient market power in a telecommunications
3-1 market as determined by the commission to enable such provider to
3-2 control prices in a manner adverse to the public interest for such
3-3 service in such market; and (ii) any provider of local exchange
3-4 telephone service within a certificated exchange area as to such
3-5 service. A telecommunications market shall be statewide until
3-6 January 1, 1985. After this date the commission may, if it
3-7 determines that the public interest will be served, establish
3-8 separate markets within the state. Prior to January 1, 1985, the
3-9 commission shall hold such hearings and require such evidence as is
3-10 necessary to carry out the public purpose of this Act and to
3-11 determine the need and effect of establishing separate markets.
3-12 Any such provider determined to be a dominant carrier as to a
3-13 particular telecommunications service in a market shall not be
3-14 presumed to be a dominant carrier of a different telecommunications
3-15 service in that market. The term does not include an interexchange
3-16 carrier that is not a certificated local exchange carrier, with
3-17 respect to interexchange services.
3-18 (3) The term "public utility" or "utility" shall not
3-19 include any person or corporation not otherwise a public utility
3-20 that furnishes the services or commodity described in any paragraph
3-21 of this subsection only to itself, its employees, or tenants as an
3-22 incident of such employee service or tenancy, when such service or
3-23 commodity is not resold to or used by others. The term "electric
3-24 utility" shall not include any person or corporation not otherwise
3-25 a public utility that owns or operates in this state equipment or
3-26 facilities for producing, generating, transmitting, distributing,
3-27 selling, or furnishing electric energy to an electric utility, if
4-1 the equipment or facilities are used primarily for the production
4-2 and generation of electric energy for consumption by the person or
4-3 corporation. The term "public utility," "utility," or "electric
4-4 utility" shall not include any person or corporation not otherwise
4-5 a public utility that owns or operates in this state a recreational
4-6 vehicle park that provides metered electric service in accordance
4-7 with Article 1446d-2, Revised Statutes. A recreational vehicle
4-8 park owner is considered a public utility if the owner fails to
4-9 comply with Article 1446d-2, Revised Statutes, with regard to the
4-10 metered sale of electricity at the recreational vehicle park.
4-11 SECTION 2. Subsections (c), (d), and (l), Section 18, Public
4-12 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
4-13 Statutes), are amended to read as follows:
4-14 (c) Except as provided by Section 18A of this Act, the
4-15 commission shall only have the following jurisdiction over all
4-16 telecommunications utilities who are not dominant carriers:
4-17 (1) to require registration as provided in Subsection
4-18 (d) of this section;
4-19 (2) to conduct such investigations as are necessary to
4-20 determine the existence, impact, and scope of competition in the
4-21 local exchange and intralata interexchange telecommunications
4-22 industry, including identifying dominant carriers and defining the
4-23 telecommunications market or markets, and in connection therewith
4-24 may call and hold hearings, issue subpoenas to compel the
4-25 attendance of witnesses and the production of papers and documents,
4-26 and make findings of fact and decisions with respect to
4-27 administering the provisions of this Act or the rules, orders, and
5-1 other actions of the commission;
5-2 (3) to require the filing of such reports as the
5-3 commission may direct from time to time;
5-4 (4) to require the maintenance of statewide average
5-5 rates or prices of telecommunications service;
5-6 (5) to require that every local exchange area have
5-7 access to interexchange telecommunications service, except that an
5-8 interexchange telecommunications carrier must be allowed to
5-9 discontinue service to a local exchange area if comparable service
5-10 is available in the area and the discontinuance is not contrary to
5-11 the public interest. This section does not authorize the
5-12 commission to require an interexchange telecommunications carrier
5-13 that has not provided services to a local exchange area during the
5-14 previous 12 months and that has never provided services to that
5-15 same local exchange area for a cumulative period of one year at any
5-16 time in the past to initiate services to that local exchange area;
5-17 and
5-18 (6) to require the quality of interexchange
5-19 telecommunications service provided in each exchange to be adequate
5-20 to protect the public interest and the interests of customers of
5-21 that exchange if the commission determines that service to a local
5-22 exchange has deteriorated to the point that long distance service
5-23 is not reliable.
5-24 (d) All providers of communications service described in
5-25 Subsection (c) of this section who are providing such service to
5-26 the public on the effective date of this Act shall register with
5-27 the commission within 90 days of the effective date of this Act
6-1 unless the provider has previously registered with the commission.
6-2 All providers of communications service described in Subsection (c)
6-3 of this section who commence such service to the public thereafter
6-4 shall register with the commission within 30 days of commencing
6-5 service. Such registration shall be accomplished by filing with
6-6 the commission a description of the location and type of service
6-7 provided, the cost to the public of such service, and such other
6-8 registration information as the commission may direct.
6-9 Notwithstanding any other provision of this Act, an interexchange
6-10 telecommunications carrier doing business in this state shall
6-11 continue to maintain on file with the commission tariffs or lists
6-12 governing the terms of providing its services.
6-13 (l) Notwithstanding any other provision of this Act, the
6-14 commission may enter such orders as may be necessary to protect the
6-15 public interest, including the imposition on any specific service
6-16 or services of its full regulatory authority under Articles III
6-17 through XI of this Act, if the commission upon complaint from
6-18 another interexchange telecommunications carrier finds by a
6-19 preponderance of the evidence upon notice and hearing that an
6-20 interexchange telecommunications carrier has engaged in predatory
6-21 pricing or attempted to engage in predatory pricing <conduct that
6-22 demonstrates the ability to control prices in a manner adverse to
6-23 the public interest>.
6-24 SECTION 3. Section 78, Public Utility Regulatory Act
6-25 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
6-26 as follows:
6-27 Sec. 78. An assessment is hereby imposed upon each public
7-1 utility within the commission's jurisdiction, including
7-2 interexchange telecommunications carriers, serving the ultimate
7-3 consumer equal to one-sixth of one percent of its gross receipts
7-4 from rates charged the ultimate consumers in Texas for the purpose
7-5 of defraying the costs and expenses incurred in the administration
7-6 of this Act. Thereafter the commission shall, subject to the
7-7 approval of the Legislature, adjust this assessment to provide a
7-8 level of income sufficient to fund the commission and the office of
7-9 public utility counsel. <Any interexchange telecommunications
7-10 carrier found dominant as to any service market under Section
7-11 100(b) or filing a petition under Section 100(f) of this Act shall
7-12 be required to reimburse the Office of Public Utility Counsel for
7-13 the costs of participation before the commission on behalf of
7-14 residential ratepayers in any of the proceedings under Section 100
7-15 of this Act to the extent found reasonable by the commission.
7-16 Recovery of costs under this section by the Office of Public
7-17 Utility Counsel shall not exceed $175,000 per annum.> Nothing in
7-18 this Act or any other provision of law shall prohibit interexchange
7-19 telecommunications carriers who do not provide local exchange
7-20 telephone service from collecting the fee imposed under this Act as
7-21 an additional item separately stated on the customer bill as
7-22 "Utility Gross Receipts Assessment."
7-23 SECTION 4. Sections 100 and 101, Public Utility Regulatory
7-24 Act (Article 1446c, Vernon's Texas Civil Statutes), are repealed.
7-25 SECTION 5. Nothing in this Act shall be construed to
7-26 abrogate any agreement specified in the February 2, 1990,
7-27 Stipulation and Agreement in Public Utility Commission of Texas
8-1 Docket No. 8585/8218.
8-2 SECTION 6. This Act takes effect September 1, 1993.
8-3 SECTION 7. The importance of this legislation and the
8-4 crowded condition of the calendars in both houses create an
8-5 emergency and an imperative public necessity that the
8-6 constitutional rule requiring bills to be read on three several
8-7 days in each house be suspended, and this rule is hereby suspended.