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
4-31 -------------------------------------------------------------------
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
4-43 -------------------------------------------------------------------
4-44 Name: Charles Land x
4-45 Representing: Tx Assoc. of Long Dist. Tele
4-46 City: Austin
4-47 -------------------------------------------------------------------
4-48 Name: John Deleon x
4-49 Representing: Metro Media
4-50 City: San Antonio
4-51 -------------------------------------------------------------------
4-52 Name: Martin Wilson x
4-53 Representing: Public Utility Comm.
4-54 City: Austin
4-55 -------------------------------------------------------------------
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
4-63 -------------------------------------------------------------------