1-1  By:  Haley                                             S.B. No. 377
    1-2        (In the Senate - Filed February 17, 1993; February 17, 1993,
    1-3  read first time and referred to Committee on Economic Development;
    1-4  March 16, 1993, reported favorably by the following vote:  Yeas 7,
    1-5  Nays 2; March 16, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Parker             x                               
    1-9        Lucio              x                               
   1-10        Ellis              x                               
   1-11        Haley              x                               
   1-12        Harris of Dallas   x                               
   1-13        Harris of Tarrant                             x    
   1-14        Leedom             x                               
   1-15        Madla              x                               
   1-16        Rosson                     x                       
   1-17        Shapiro                                       x    
   1-18        Wentworth                  x                       
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the regulation of certain telecommunications utilities.
   1-22        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-23        SECTION 1.  Subsection (c), Section 3, Public Utility
   1-24  Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
   1-25  amended to read as follows:
   1-26        (c)  The term "public utility" or "utility," when used in
   1-27  this Act, includes any person, corporation, river authority,
   1-28  cooperative corporation, or any combination thereof, other than a
   1-29  municipal corporation or a water supply or sewer service
   1-30  corporation, or their lessees, trustees, and receivers, now or
   1-31  hereafter owning or operating for compensation in this state
   1-32  equipment or facilities for:
   1-33              (1)  producing, generating, transmitting, distributing,
   1-34  selling, or furnishing electricity ("electric utilities"
   1-35  hereinafter) provided, however, that this definition shall not be
   1-36  construed to apply to or include a qualifying small power producer
   1-37  or qualifying cogenerator, as defined in Sections 3(17)(D) and
   1-38  3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
   1-39  796(17)(D) and 796(18)(C));
   1-40              (2)(A)  the conveyance, transmission, or reception of
   1-41  communications over a telephone system as a dominant carrier as
   1-42  hereinafter defined ("telecommunications utilities" hereinafter);
   1-43  provided that no person or corporation not otherwise a public
   1-44  utility within the meaning of this Act shall be deemed such solely
   1-45  because of the furnishing or furnishing and maintenance of a
   1-46  private system or the manufacture, distribution, installation, or
   1-47  maintenance of customer premise communications equipment and
   1-48  accessories; and provided further that nothing in this Act shall be
   1-49  construed to apply to telegraph services, television stations,
   1-50  radio stations, community antenna television services, or
   1-51  radio-telephone services that may be authorized under the Public
   1-52  Mobile Radio Services rules of the Federal Communications
   1-53  Commission, other than such radio-telephone services provided by
   1-54  wire-line telephone companies under the Domestic Public Land Mobile
   1-55  Radio Service and Rural Radio Service rules of the Federal
   1-56  Communications Commission; and provided further that interexchange
   1-57  telecommunications carriers (including resellers of interexchange
   1-58  telecommunications services), specialized communications common
   1-59  carriers, other resellers of communications, other communications
   1-60  carriers who convey, transmit, or receive communications in whole
   1-61  or in part over a telephone system, and providers of operator
   1-62  services as defined in Section 18A(a) of this Act (except that
   1-63  subscribers to customer-owned pay telephone service shall not be
   1-64  deemed to be telecommunications utilities) <who are not dominant
   1-65  carriers> are also telecommunications utilities, but the
   1-66  commission's regulatory authority as to them is only as hereinafter
   1-67  defined;
   1-68                    (B)  "dominant carrier" when used in this Act
    2-1  means (i) a provider of any particular communication service which
    2-2  is provided in whole or in part over a telephone system who as to
    2-3  such service has sufficient market power in a telecommunications
    2-4  market as determined by the commission to enable such provider to
    2-5  control prices in a manner adverse to the public interest for such
    2-6  service in such market; and (ii) any provider of local exchange
    2-7  telephone service within a certificated exchange area as to such
    2-8  service.  A telecommunications market shall be statewide until
    2-9  January 1, 1985.  After this date the commission may, if it
   2-10  determines that the public interest will be served, establish
   2-11  separate markets within the state.  Prior to January 1, 1985, the
   2-12  commission shall hold such hearings and require such evidence as is
   2-13  necessary to carry out the public purpose of this Act and to
   2-14  determine the need and effect of establishing separate markets.
   2-15  Any such provider determined to be a dominant carrier as to a
   2-16  particular telecommunications service in a market shall not be
   2-17  presumed to be a dominant carrier of a different telecommunications
   2-18  service in that market.  The term does not include an interexchange
   2-19  carrier that is not a certificated local exchange carrier, with
   2-20  respect to interexchange services.
   2-21              (3)  The term "public utility" or "utility" shall not
   2-22  include any person or corporation not otherwise a public utility
   2-23  that furnishes the services or commodity described in any paragraph
   2-24  of this subsection only to itself, its employees, or tenants as an
   2-25  incident of such employee service or tenancy, when such service or
   2-26  commodity is not resold to or used by others.  The term "electric
   2-27  utility" shall not include any person or corporation not otherwise
   2-28  a public utility that owns or operates in this state equipment or
   2-29  facilities for producing, generating, transmitting, distributing,
   2-30  selling, or furnishing electric energy to an electric utility, if
   2-31  the equipment or facilities are used primarily for the production
   2-32  and generation of electric energy for consumption by the person or
   2-33  corporation.  The term "public utility," "utility," or "electric
   2-34  utility" shall not include any person or corporation not otherwise
   2-35  a public utility that owns or operates in this state a recreational
   2-36  vehicle park that provides metered electric service in accordance
   2-37  with Article 1446d-2, Revised Statutes.  A recreational vehicle
   2-38  park owner is considered a public utility if the owner fails to
   2-39  comply with Article 1446d-2, Revised Statutes, with regard to the
   2-40  metered sale of electricity at the recreational vehicle park.
   2-41        SECTION 2.  Subsections (c), (d), and (l), Section 18, Public
   2-42  Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
   2-43  Statutes), are amended to read as follows:
   2-44        (c)  Except as provided by Section 18A of this Act, the
   2-45  commission shall only have the following jurisdiction over all
   2-46  telecommunications utilities who are not dominant carriers:
   2-47              (1)  to require registration as provided in Subsection
   2-48  (d) of this section;
   2-49              (2)  to conduct such investigations as are necessary to
   2-50  determine the existence, impact, and scope of competition in the
   2-51  local exchange and intralata interexchange telecommunications
   2-52  industry, including identifying dominant carriers and defining the
   2-53  telecommunications market or markets, and in connection therewith
   2-54  may call and hold hearings, issue subpoenas to compel the
   2-55  attendance of witnesses and the production of papers and documents,
   2-56  and make findings of fact and decisions with respect to
   2-57  administering the provisions of this Act or the rules, orders, and
   2-58  other actions of the commission;
   2-59              (3)  to require the filing of such reports as the
   2-60  commission may direct from time to time;
   2-61              (4)  to require the maintenance of statewide average
   2-62  rates or prices of telecommunications service;
   2-63              (5)  to require that every local exchange area have
   2-64  access to interexchange telecommunications service, except that an
   2-65  interexchange telecommunications carrier must be allowed to
   2-66  discontinue service to a local exchange area if comparable service
   2-67  is available in the area and the discontinuance is not contrary to
   2-68  the public interest.  This section does not authorize the
   2-69  commission to require an interexchange telecommunications carrier
   2-70  that has not provided services to a local exchange area during the
    3-1  previous 12 months and that has never provided services to that
    3-2  same local exchange area for a cumulative period of one year at any
    3-3  time in the past to initiate services to that local exchange area;
    3-4  and
    3-5              (6)  to require the quality of interexchange
    3-6  telecommunications service provided in each exchange to be adequate
    3-7  to protect the public interest and the interests of customers of
    3-8  that exchange if the commission determines that service to a local
    3-9  exchange has deteriorated to the point that long distance service
   3-10  is not reliable.
   3-11        (d)  All providers of communications service described in
   3-12  Subsection (c) of this section who are providing such service to
   3-13  the public on the effective date of this Act shall register with
   3-14  the commission within 90 days of the effective date of this Act
   3-15  unless the provider has previously registered with the commission.
   3-16  All providers of communications service described in Subsection (c)
   3-17  of this section who commence such service to the public thereafter
   3-18  shall register with the commission within 30 days of commencing
   3-19  service.  Such registration shall be accomplished by filing with
   3-20  the commission a description of the location and type of service
   3-21  provided, the cost to the public of such service, and such other
   3-22  registration information as the commission may direct.
   3-23  Notwithstanding any other provision of this Act, an interexchange
   3-24  telecommunications carrier doing business in this state shall
   3-25  continue to maintain on file with the commission tariffs or lists
   3-26  governing the terms of providing its services.
   3-27        (l)  Notwithstanding any other provision of this Act, the
   3-28  commission may enter such orders as may be necessary to protect the
   3-29  public interest, including the imposition on any specific service
   3-30  or services of its full regulatory authority under Articles III
   3-31  through XI of this Act, if the commission finds upon notice and
   3-32  hearing that an interexchange telecommunications carrier has been
   3-33  found by a final and unappealable judgment of a court of competent
   3-34  jurisdiction, in a suit brought under Section 15.20, Business &
   3-35  Commerce Code, to have violated Section 15.05(b) of that code in
   3-36  the provision of the specific service or services <engaged in
   3-37  conduct that demonstrates the ability to control prices in a manner
   3-38  adverse to the public interest>.
   3-39        SECTION 3.  Section 78, Public Utility Regulatory Act
   3-40  (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
   3-41  as follows:
   3-42        Sec. 78.  An assessment is hereby imposed upon each public
   3-43  utility within the commission's jurisdiction, including
   3-44  interexchange telecommunications carriers, serving the ultimate
   3-45  consumer equal to one-sixth of one percent of its gross receipts
   3-46  from rates charged the ultimate consumers in Texas for the purpose
   3-47  of defraying the costs and expenses incurred in the administration
   3-48  of this Act.  Thereafter the commission shall, subject to the
   3-49  approval of the Legislature, adjust this assessment to provide a
   3-50  level of income sufficient to fund the commission and the office of
   3-51  public utility counsel.  <Any interexchange telecommunications
   3-52  carrier found dominant as to any service market under Section
   3-53  100(b) or filing a petition under Section 100(f) of this Act shall
   3-54  be required to reimburse the Office of Public Utility Counsel for
   3-55  the costs of participation before the commission on behalf of
   3-56  residential ratepayers in any of the proceedings under Section 100
   3-57  of this Act to the extent found reasonable by the commission.
   3-58  Recovery of costs under this section by the Office of Public
   3-59  Utility Counsel shall not exceed $175,000 per annum.>  Nothing in
   3-60  this Act or any other provision of law shall prohibit interexchange
   3-61  telecommunications carriers who do not provide local exchange
   3-62  telephone service from collecting the fee imposed under this Act as
   3-63  an additional item separately stated on the customer bill as
   3-64  "Utility Gross Receipts Assessment."
   3-65        SECTION 4.  Sections 100 and 101, Public Utility Regulatory
   3-66  Act (Article 1446c, Vernon's Texas Civil Statutes), are repealed.
   3-67        SECTION 5.  This Act takes effect September 1, 1993.
   3-68        SECTION 6.  The importance of this legislation and the
   3-69  crowded condition of the calendars in both houses create an
   3-70  emergency   and   an   imperative   public   necessity   that   the
    4-1  constitutional rule requiring bills to be read on three several
    4-2  days in each house be suspended, and this rule is hereby suspended.
    4-3                               * * * * *
    4-4                                                         Austin,
    4-5  Texas
    4-6                                                         March 16, 1993
    4-7  Hon. Bob Bullock
    4-8  President of the Senate
    4-9  Sir:
   4-10  We, your Committee on Economic Development to which was referred
   4-11  S.B. No. 377, have had the same under consideration, and I am
   4-12  instructed to report it back to the Senate with the recommendation
   4-13  that it do pass and be printed.
   4-14                                                         Parker,
   4-15  Chairman
   4-16                               * * * * *
   4-17                               WITNESSES
   4-18                                                  FOR   AGAINST  ON
   4-19  ___________________________________________________________________
   4-20  Name:  Roy Marshall                              x
   4-21  Representing:  Self
   4-22  City:  Austin
   4-23  -------------------------------------------------------------------
   4-24  Name:  Gray Bryantt                              x
   4-25  Representing:  AT&T
   4-26  City:  Austin
   4-27  -------------------------------------------------------------------
   4-28  Name:  Pres Sheppard                             x
   4-29  Representing:  AT&T
   4-30  City:  Austin
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   4-32  Name:  Dally Willis                              x
   4-33  Representing:  CWA Union
   4-34  City:  Midland
   4-35  -------------------------------------------------------------------
   4-36  Name:  Carmen Dempsey                            x
   4-37  Representing:  Communication Workers of Am.
   4-38  City:  Austin
   4-39  -------------------------------------------------------------------
   4-40  Name:  Janee Briesemeister                               x
   4-41  Representing:  Consumers Union
   4-42  City:  Austin
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   4-44  Name:  Charles Land                                      x
   4-45  Representing:  Tx Assoc. of Long Dist. Tele
   4-46  City:  Austin
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   4-48  Name:  John Deleon                                       x
   4-49  Representing:  Metro Media
   4-50  City:  San Antonio
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   4-52  Name:  Martin Wilson                                           x
   4-53  Representing:  Public Utility Comm.
   4-54  City:  Austin
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   4-56  Name:  Vicki Oswalt                                            x
   4-57  Representing:  Public Utility Comm.
   4-58  City:  Austin
   4-59  -------------------------------------------------------------------
   4-60  Name:  Jack Stracy                                       x
   4-61  Representing:  Self
   4-62  City:  Austin
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