By Seidlits, Moffat, et al. H.B. No. 2128
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of telecommunications utilities, to the
1-3 provision of telecommunications and related services, and to the
1-4 continuation of the Public Utility Commission of Texas.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 1.002, Public Utility Regulatory Act of
1-7 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
1-8 Session, 1995, is amended to read as follows:
1-9 Sec. 1.002. LEGISLATIVE POLICY AND PURPOSE. This Act is
1-10 enacted to protect the public interest inherent in the rates and
1-11 services of public utilities. The legislature finds that
1-12 traditionally public utilities are by definition monopolies in the
1-13 areas they serve; that therefore the normal forces of competition
1-14 which operate to regulate prices in a free enterprise society do
1-15 not operate; and that therefore utility rates, operations, and
1-16 services are regulated by public agencies with the objective that
1-17 this regulation shall operate as a substitute for competition. The
1-18 purpose of this Act is to establish a comprehensive regulatory
1-19 system which is adequate to the task of regulating public utilities
1-20 as defined by this Act, to assure rates, operations, and services
1-21 which are just and reasonable to the consumers and to the
1-22 utilities.
1-23 SECTION 2. Section 1.003(14), Public Utility Regulatory Act
1-24 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
2-1 Regular Session, 1995, is amended to read as follows:
2-2 (14) "Rate" means and includes every compensation,
2-3 tariff, charge, fare, toll, rental, and classification, or any of
2-4 them demanded, observed, charged, or collected whether directly or
2-5 indirectly by any public utility for any service, product, or
2-6 commodity described in the definition of "utility" in Section 2.001
2-7 or 3.002 <3.001> of this Act and any rules, regulations, practices,
2-8 or contracts affecting any such compensation, tariff, charge, fare,
2-9 toll, rental, or classification.
2-10 SECTION 3. Section 1.004, Public Utility Regulatory Act of
2-11 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
2-12 Session, 1995, is amended to read as follows:
2-13 Sec. 1.004. DEFINITIONS IN TITLE. In this title, "public
2-14 utility" or "utility" has the meaning assigned by Section 2.001 or
2-15 3.002 <3.001> of this Act.
2-16 SECTION 4. Section 1.022, Public Utility Regulatory Act of
2-17 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
2-18 Session, 1995, is amended to read as follows:
2-19 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
2-20 of Texas and the Office of Public Utility Counsel are subject to
2-21 Chapter 325, Government Code (Texas Sunset Act). Unless continued
2-22 in existence as provided by that chapter, the commission and the
2-23 office are abolished and this Act expires September 1, 2001 <1995>.
2-24 SECTION 5. Subtitle K, Title I, Public Utility Regulatory
2-25 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
2-26 Regular Session, 1995, is amended by adding Section 1.407 to read
2-27 as follows:
3-1 Sec. 1.407. HISTORICALLY UNDERUTILIZED BUSINESSES. (a) The
3-2 commission by rule shall require each utility to make a good faith
3-3 effort to overcome the underuse of historically underutilized
3-4 businesses as shown for private industry by the disparity study
3-5 conducted under Chapter 684, Acts of the 73rd Legislature, 1993.
3-6 (b) The commission may conduct further research and analysis
3-7 to adjust the results of the disparity study as necessary to
3-8 account for specific underuse of historically underutilized
3-9 businesses by the utility industry.
3-10 (c) The rules adopted under this section must require each
3-11 utility to prepare and submit to the commission a strategic plan
3-12 for use of historically underutilized businesses.
3-13 (d) In this section:
3-14 (1) "Historically underutilized business" means a
3-15 business entity at least 51 percent of which is owned by minority
3-16 group members, or in the case of a corporation, at least 51 percent
3-17 of the shares of which are owned, managed, and controlled by
3-18 minority group members.
3-19 (2) "Minority group members" includes:
3-20 (A) African Americans;
3-21 (B) American Indians;
3-22 (C) Asian Americans;
3-23 (D) Mexican Americans and other Americans of
3-24 Hispanic origin; and
3-25 (E) women.
3-26 SECTION 6. Subtitle A, Title III, Public Utility Regulatory
3-27 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
4-1 Regular Session, 1995, is amended to read as follows:
4-2 SUBTITLE A. GENERAL PROVISIONS
4-3 Sec. 3.001. POLICY. The legislature finds that significant
4-4 changes have occurred in telecommunications since this Act was
4-5 initially adopted. The legislature hereby finds that it is the
4-6 policy of this state to promote diversity of providers and
4-7 interconnectivity and to encourage a fully competitive
4-8 telecommunications marketplace while protecting and maintaining the
4-9 wide availability of high quality telecommunications services at
4-10 affordable rates. These goals are best achieved by legislation
4-11 that brings telecommunications regulation into the modern era by
4-12 guaranteeing the affordability of basic telephone service in a
4-13 competitively neutral manner, while fostering free market
4-14 competition within the telecommunications industry. The
4-15 legislature further finds that the technological advancements,
4-16 advanced telecommunications infrastructure, and increased customer
4-17 choices for telecommunications services generated by a truly
4-18 competitive market will raise the living standards of all Texans by
4-19 enhancing economic development and improving the delivery of
4-20 education, health, and other public and private services and
4-21 therefore play a critical role in Texas' economic future. It is
4-22 the policy of this state to require the commission to do those
4-23 things necessary to enhance the development of competition by
4-24 adjusting regulation to match the degree of competition in the
4-25 marketplace, thereby reducing the cost and burden of regulation and
4-26 maintaining protection of markets that are not competitive. It is
4-27 further the policy of this state to ensure that high quality
5-1 telecommunications services are available, accessible, and usable
5-2 by individuals with disabilities, unless making the services
5-3 available, accessible, or usable would result in an undue burden,
5-4 including unreasonable cost or technical feasibility, or would have
5-5 an adverse competitive effect. However, the legislature recognizes
5-6 that the strength of competitive forces vary widely between markets
5-7 and products and services. Therefore, to foster, encourage, and
5-8 accelerate the continuing development and emergence of a
5-9 competitive and advanced telecommunications environment and
5-10 infrastructure, the legislature declares that new rules, policies,
5-11 and principles be formulated and applied to protect the public
5-12 interest.
5-13 Sec. 3.002. DEFINITIONS. In this title:
5-14 (1) "Basic local telecommunications service" means:
5-15 (A) flat rate residential and business local
5-16 exchange telephone service, including primary directory listings;
5-17 (B) tone dialing service;
5-18 (C) access to operator services;
5-19 (D) access to directory assistance services;
5-20 (E) access to 911 service where provided by a
5-21 local authority or dual party relay service;
5-22 (F) the ability to report service problems seven
5-23 days a week;
5-24 (G) lifeline and tel-assistance services; and
5-25 (H) any other service the commission, after a
5-26 hearing, determines should be included in basic local
5-27 telecommunications service.
6-1 (2) "Dominant carrier" means:
6-2 (A) a provider of any particular communication
6-3 service which is provided in whole or in part over a telephone
6-4 system who as to such service has sufficient market power in a
6-5 telecommunications market as determined by the commission to enable
6-6 such provider to control prices in a manner adverse to the public
6-7 interest for such service in such market; <and>
6-8 (B) any provider who provided <of> local
6-9 exchange telephone service within a certificated exchange area on
6-10 September 1, 1995, as to such service and as to any other service
6-11 for which a competitive alternative is not available in a
6-12 particular geographic market; and
6-13 (C) any provider of local exchange telephone
6-14 service within a certificated exchange area as to intraLATA long
6-15 distance message telecommunications service originated by dialing
6-16 the access code "1+" so long as the use of that code for the
6-17 origination of "1+" intraLATA calls within its certificated
6-18 exchange area is exclusive to that provider. A telecommunications
6-19 market shall be statewide until January 1, 1985. After this date
6-20 the commission may, if it determines that the public interest will
6-21 be served, establish separate markets within the state. The <Prior
6-22 to January 1, 1985, the> commission shall hold such hearings and
6-23 require such evidence as is necessary to carry out the public
6-24 purpose of this Act and to determine the need and effect of
6-25 establishing separate markets. Any such provider determined to be
6-26 a dominant carrier as to a particular telecommunications service in
6-27 a market may not be presumed to be a dominant carrier of a
7-1 different telecommunications service in that market. The term does
7-2 not include an interexchange carrier that is not a certificated
7-3 local exchange company, with respect to interexchange services.
7-4 (3) "Incumbent local exchange company" means a local
7-5 exchange company that has a certificate of convenience and
7-6 necessity on September 1, 1995.
7-7 (4) "Least cost technology" means the technology, or
7-8 mix of technologies, that would be chosen in the long run as the
7-9 most economically efficient choice, provided that the choice of
7-10 least cost technologies is:
7-11 (A) restricted to technologies that are
7-12 currently available on the market and for which vendor prices can
7-13 be obtained;
7-14 (B) consistent with the level of output
7-15 necessary to satisfy current demand levels for all services using
7-16 the basic network function in question; and
7-17 (C) consistent with overall network design and
7-18 topology requirements.
7-19 (5) <(2)> "Local exchange company" means a
7-20 telecommunications utility that has been granted either a
7-21 certificate of convenience and necessity or a certificate of
7-22 operating authority <certificated> to provide local exchange
7-23 telephone service, basic local telecommunications service, or
7-24 switched access service within the state.
7-25 (6) "Local exchange telephone service" means
7-26 telecommunications service provided within an exchange to establish
7-27 connections between customer premises within the exchange,
8-1 including connections between a customer premises and a long
8-2 distance provider serving the exchange. The term includes tone
8-3 dialing, service connection charges, and directory assistance
8-4 services when offered in connection with basic local
8-5 telecommunications service and interconnection with other service
8-6 providers. The term does not include the following services,
8-7 whether offered on an intraexchange or interexchange basis:
8-8 (A) central office based PBX-type services for
8-9 systems of 75 stations or more;
8-10 (B) billing and collection services;
8-11 (C) high-speed private line services of 1.544
8-12 megabits or greater;
8-13 (D) customized services;
8-14 (E) private line and virtual private line
8-15 services;
8-16 (F) resold or shared local exchange telephone
8-17 services if permitted by tariff;
8-18 (G) dark fiber services;
8-19 (H) non-voice data transmission service when
8-20 offered as a separate service and not as a component of basic local
8-21 telecommunications service;
8-22 (I) dedicated or virtually dedicated access
8-23 services; and
8-24 (J) any other service the commission declares is
8-25 not a "local exchange telephone service."
8-26 (7) "Long run incremental cost" or "LRIC" has the
8-27 meaning assigned by the commission in 16 T.A.C. Section 23.91.
9-1 (8) "Pricing flexibility" includes customer specific
9-2 contracts, volume, term, and discount pricing, zone density
9-3 pricing, packaging of services, and other promotional pricing
9-4 flexibility. Discounts and other forms of pricing flexibility may
9-5 not be preferential, prejudicial, or discriminatory.
9-6 (9) <(3)> "Public utility" or "utility" means any
9-7 person, corporation, river authority, cooperative corporation, or
9-8 any combination thereof, other than a municipal corporation, or
9-9 their lessees, trustees, and receivers, now or hereafter owning or
9-10 operating for compensation in this state equipment or facilities
9-11 for the conveyance, transmission, or reception of communications
9-12 over a telephone system as a dominant carrier (hereinafter
9-13 "telecommunications utility"). A person or corporation not
9-14 otherwise a public utility within the meaning of this Act may not
9-15 be deemed such solely because of the furnishing or furnishing and
9-16 maintenance of a private system or the manufacture, distribution,
9-17 installation, or maintenance of customer premise communications
9-18 equipment and accessories. Except as provided by Sections 3.606,
9-19 3.608, and 3.610 of this Act, nothing <Nothing> in this Act shall
9-20 be construed to apply to companies whose only form of business is
9-21 being telecommunications managers, companies that administer
9-22 central office based or customer based PBX-type sharing/resale
9-23 arrangements as their only form of business, telegraph services,
9-24 television stations, radio stations, community antenna television
9-25 services, <or> radio-telephone services that may be authorized
9-26 under the Public Mobile Radio Services rules of the Federal
9-27 Communications Commission, or commercial mobile service providers,
10-1 under Sections 3(n) and 322(d), Communications Act of 1934 (47
10-2 U.S.C. Section 151 et seq.), Federal Communications Commission
10-3 rules, and the Omnibus Budget Reconciliation Act of 1993, other
10-4 than such radio-telephone services provided by wire-line telephone
10-5 companies under the Domestic Public Land Mobile Radio Service and
10-6 Rural Radio Service rules of the Federal Communications Commission.
10-7 Interexchange telecommunications carriers (including resellers of
10-8 interexchange telecommunications services), specialized
10-9 communications common carriers, other resellers of communications,
10-10 other communications carriers who convey, transmit, or receive
10-11 communications in whole or in part over a telephone system, <and>
10-12 providers of operator services as defined in Section 3.052(a) of
10-13 this Act (except that subscribers to customer-owned pay telephone
10-14 service may not be deemed to be telecommunications utilities), and
10-15 separated affiliate and electronic publishing joint ventures as
10-16 defined by Subtitle L of this title are also telecommunications
10-17 utilities, but the commission's regulatory authority as to them is
10-18 only as hereinafter defined. The term "public utility" or
10-19 "utility" does not include any person or corporation not otherwise
10-20 a public utility that furnishes the services or commodity described
10-21 in this section only to itself, its employees, or its tenants as an
10-22 incident of such employee service or tenancy, when such service or
10-23 commodity is not resold to or used by others.
10-24 (10) <(4)> "Separation" means the division of plant,
10-25 revenues, expenses, taxes, and reserves, applicable to exchange or
10-26 local service where such items are used in common for providing
10-27 public utility service to both local exchange telephone service and
11-1 other service, such as interstate or intrastate toll service.
11-2 (11) "Telecommunications provider" means a
11-3 certificated telecommunications utility, a shared tenant service
11-4 provider, a nondominant carrier of telecommunications services,
11-5 provider of radio-telephone service authorized under the Commercial
11-6 Mobile Service under Sections 3(n) and 322(d), Communications Act
11-7 of 1934 (47 U.S.C. Section 151 et seq.), Federal Communications
11-8 Commission rules, and the Omnibus Budget Reconciliation Act of
11-9 1993, a telecommunications entity that provides central office
11-10 based PBX-type sharing or resale arrangements, an interexchange
11-11 telecommunications carrier, a specialized common carrier, a
11-12 reseller of communications, a provider of operator services, a
11-13 provider of customer-owned pay telephone service, and other persons
11-14 or entities that the commission may from time to time find provide
11-15 telecommunications services to customers in this state. The term
11-16 does not include a provider of enhanced or information services, or
11-17 another user of telecommunications services, who does not also
11-18 provide telecommunications services.
11-19 (12) "Tier 1 local exchange company" means a Tier 1
11-20 local exchange company as defined by the Federal Communications
11-21 Commission.
11-22 SECTION 7. Section 3.051, Public Utility Regulatory Act of
11-23 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
11-24 Session, 1995, is amended by amending Subsections (a), (c)-(f),
11-25 (j), and (l)-(q) and adding Subsections (r) and (s) to read as
11-26 follows:
11-27 (a) It is the policy of this state to protect the public
12-1 interest in having adequate and efficient telecommunications
12-2 service available to all citizens of the state at just, fair, and
12-3 reasonable rates. The legislature finds that the
12-4 telecommunications industry through technical advancements, federal
12-5 legislative, judicial, and administrative actions, and the
12-6 formulation of new telecommunications enterprises has become and
12-7 will continue to be in many and growing areas a competitive
12-8 industry which does not lend itself to traditional public utility
12-9 regulatory rules, policies, and principles and that, therefore, the
12-10 public interest requires that new rules, policies, and principles
12-11 be formulated and applied to protect the public interest and to
12-12 provide equal opportunity to all telecommunications utilities in a
12-13 competitive marketplace. It is the purpose of this section to
12-14 grant to the commission the authority and the power under this Act
12-15 to carry out the public policy herein stated.
12-16 (c) Except as provided by Subsections (l), <and> (m), and
12-17 (s) of this section and Section 3.052 of this Act, the commission
12-18 shall only have the following jurisdiction over all
12-19 telecommunications utilities who are not dominant carriers:
12-20 (1) to require registration as provided in Subsection
12-21 (d) of this section;
12-22 (2) to conduct such investigations as are necessary to
12-23 determine the existence, impact, and scope of competition in the
12-24 telecommunications industry, including identifying dominant
12-25 carriers in the local telecommunications <exchange> and intralata
12-26 interexchange telecommunications industry and defining the
12-27 telecommunications market or markets, and in connection therewith
13-1 may call and hold hearings, issue subpoenas to compel the
13-2 attendance of witnesses and the production of papers and documents,
13-3 and make findings of fact and decisions with respect to
13-4 administering the provisions of this Act or the rules, orders, and
13-5 other actions of the commission;
13-6 (3) to require the filing of such reports as the
13-7 commission may direct from time to time;
13-8 (4) to require the maintenance of statewide average
13-9 rates or prices of telecommunications service;
13-10 (5) to require that every local exchange area have
13-11 access to local and interexchange telecommunications service,
13-12 except that a <an interexchange> telecommunications utility
13-13 <carrier> must be allowed to discontinue service to a local
13-14 exchange area if comparable service is available in the area and
13-15 the discontinuance is not contrary to the public interest; this
13-16 section does not authorize the commission to require a <an
13-17 interexchange> telecommunications utility <carrier> that has not
13-18 provided services to a local exchange area during the previous 12
13-19 months and that has never provided services to that same local
13-20 exchange area for a cumulative period of one year at any time in
13-21 the past to initiate services to that local exchange area; and
13-22 (6) to require the quality of <interexchange>
13-23 telecommunications service provided in each exchange to be adequate
13-24 to protect the public interest and the interests of customers of
13-25 that exchange if the commission determines that service to a local
13-26 exchange has deteriorated to the point that <long distance> service
13-27 is not reliable.
14-1 (d) All providers of communications service described in
14-2 Subsection (c) of this section who commence such service to the
14-3 public shall register with the commission within 30 days of
14-4 commencing service. Such registration shall be accomplished by
14-5 filing with the commission a description of the location and type
14-6 of service provided, the price <cost> to the public of such
14-7 service, and such other registration information as the commission
14-8 may direct. Notwithstanding any other provision of this Act, an
14-9 interexchange telecommunications utility <carrier> doing business
14-10 in this state shall continue to maintain on file with the
14-11 commission tariffs or lists governing the terms of providing its
14-12 services.
14-13 (e)(1) For the purpose of carrying out the public policy
14-14 stated in Subsection (a) of this section and any other section of
14-15 this Act notwithstanding, the commission is granted all necessary
14-16 power and authority under this Act to promulgate rules and
14-17 establish procedures applicable to incumbent local exchange
14-18 companies for determining the level of competition in specific
14-19 telecommunications markets and submarkets and providing appropriate
14-20 regulatory treatment to allow incumbent local exchange companies to
14-21 respond to significant competitive challenges. Nothing in this
14-22 section is intended to change the burden of proof of the incumbent
14-23 local exchange company under Sections 3.202, 3.203, 3.204, 3.205,
14-24 3.206, 3.207, and 3.208 of this Act.
14-25 (2) In determining the level of competition in a
14-26 specific market or submarket, the commission shall hold an
14-27 evidentiary hearing to consider the following:
15-1 (A) the number and size of telecommunications
15-2 utilities or other persons providing the same, equivalent, or
15-3 substitutable service;
15-4 (B) the extent to which the same, equivalent, or
15-5 substitutable service is available;
15-6 (C) the ability of customers to obtain the same,
15-7 equivalent, or substitutable services at comparable rates, terms,
15-8 and conditions;
15-9 (D) the ability of telecommunications utilities
15-10 or other persons to make the same, equivalent, or substitutable
15-11 service readily available at comparable rates, terms, and
15-12 conditions;
15-13 (E) the existence of any significant barrier to
15-14 the entry or exit of a provider of the service; and
15-15 (F) other relevant information deemed
15-16 appropriate.
15-17 (3) The regulatory treatments which the commission may
15-18 implement include but are not limited to:
15-19 (A) approval of a range of rates for a specific
15-20 service;
15-21 (B) approval of customer-specific contracts for
15-22 a specific service; provided, however, that the commission shall
15-23 approve a contract to provide central office based PBX-type
15-24 services for systems of 200 stations or more, billing and
15-25 collection services, high-speed private line services of 1.544
15-26 megabits or greater, and customized services, provided that the
15-27 contract is filed at least 30 days before initiation of the service
16-1 contracted for; that the contract is accompanied with an affidavit
16-2 from the person or entity contracting for the telecommunications
16-3 service stating that he considered the acquisition of the same,
16-4 equivalent, or substitutable services by bid or quotation from a
16-5 source other than the incumbent local exchange company; that the
16-6 incumbent local exchange company is recovering the appropriate
16-7 costs of providing the services; and that approval of the contract
16-8 is in the public interest; the contract shall be approved or denied
16-9 within 30 days after filing, unless the commission for good cause
16-10 extends the effective date for an additional 35 days; and
16-11 (C) the detariffing of rates.
16-12 (f) Moreover, in order to encourage the rapid introduction
16-13 of new or experimental services or promotional rates, the
16-14 commission shall promulgate rules and establish procedures which
16-15 allow the expedited introduction of, the establishment and
16-16 adjustment of rates for, and the withdrawal of such services,
16-17 including requests for such services made to the commission by the
16-18 governing body of a municipality served by an incumbent <a> local
16-19 exchange company having more than 500,000 access lines throughout
16-20 the state. Rates established or adjusted at the request of a
16-21 municipality may not result in higher rates for ratepayers outside
16-22 the boundaries of the municipality and may not include any rates
16-23 for incumbent local exchange company interexchange services or
16-24 interexchange carrier access service.
16-25 (j) Subsections (e) and (f) of this section are not
16-26 applicable to basic local telecommunications <exchange> service,
16-27 including local measured service. Paragraph (B) of Subdivision (3)
17-1 of Subsection (e) of this section is not applicable to message
17-2 telecommunications services, switched access services for
17-3 interexchange carriers, or wide area telecommunications service.
17-4 An incumbent <A> local exchange company may not price similar
17-5 services provided pursuant to contracts under Paragraph (B) of
17-6 Subdivision (3) of Subsection (e) of this section in an
17-7 unreasonably discriminatory manner. For purposes of this section,
17-8 similar services shall be defined as those services which are
17-9 provided at or near the same point in time, which have the same
17-10 characteristics, and which are provided under the same or similar
17-11 circumstances.
17-12 (l) Notwithstanding any other provision of this Act, the
17-13 commission may enter such orders as may be necessary to protect the
17-14 public interest, including the imposition on any specific service
17-15 or services of its full regulatory authority under this subtitle,
17-16 Subtitles C through F of this title, and Subtitles D through I of
17-17 Title I of this Act, but not Subtitles H and I of this title, if
17-18 the commission upon complaint from another interexchange
17-19 telecommunications utility <carrier> finds by a preponderance of
17-20 the evidence upon notice and hearing that an interexchange
17-21 telecommunications utility <carrier> has engaged in predatory
17-22 pricing or attempted to engage in predatory pricing.
17-23 (m) Notwithstanding any other provision of this Act, the
17-24 commission may enter such orders as may be necessary to protect the
17-25 public interest if the commission finds upon notice and hearing
17-26 that an interexchange telecommunications utility <carrier> has:
17-27 (1) failed to maintain statewide average rates;
18-1 (2) abandoned interexchange message telecommunications
18-2 service to a local exchange area in a manner contrary to the public
18-3 interest; or
18-4 (3) engaged in a pattern of preferential or
18-5 discriminatory activities prohibited by Sections <3.213 and> 3.215
18-6 and 3.217 of this Act, except that nothing in this Act shall
18-7 prohibit volume discounts or other discounts based on reasonable
18-8 business purposes.
18-9 (n) In any proceeding before the commission alleging conduct
18-10 or activities by an interexchange telecommunications utility
18-11 <carrier> against another interexchange telecommunications utility
18-12 <carrier> in contravention of Subsections (l), (m), and (o) of this
18-13 section, the burden of proof shall be upon the complaining
18-14 interexchange telecommunications utility <carrier>; however, in
18-15 such proceedings brought by customers or their representatives who
18-16 are not themselves interexchange telecommunications utilities
18-17 <carriers> or in such proceedings initiated by the commission, the
18-18 burden of proof shall be upon the respondent interexchange
18-19 telecommunications utility <carrier>. However, if the commission
18-20 finds it to be in the public interest, the commission may impose
18-21 the burden of proof in such proceedings on the complaining party.
18-22 (o) The commission shall have the authority to require that
18-23 a service provided by an interexchange telecommunications utility
18-24 <carrier described in Subsection (c) of this section> be made
18-25 available in an exchange served by the utility <carrier> within a
18-26 reasonable time after receipt of a bona fide request for such
18-27 service in that exchange, subject to the ability of the local
19-1 exchange company to provide the required access or other service.
19-2 A utility <carrier> may not be required to extend a service to an
19-3 area if provision of that service would impose, after consideration
19-4 of the public interest to be served, unreasonable costs upon or
19-5 require unreasonable investments by the interexchange
19-6 telecommunications utility <carrier>. The commission may require
19-7 such information from interexchange utilities <carriers> and local
19-8 exchange companies <carriers> as may be necessary to enforce this
19-9 provision.
19-10 (p) The commission may exempt from any requirement of this
19-11 section an interexchange telecommunications utility <carrier> that
19-12 the commission determines does not have a significant effect on the
19-13 public interest, and it may exempt any interexchange
19-14 telecommunications utility <carrier> which solely relies on the
19-15 facilities of others to complete long distance calls if the
19-16 commission deems this action to be in the public interest.
19-17 (q) Requirements imposed by Subsections (c), (d), (k),
19-18 <(l),> (m), (n), (o), and (p) of this section on an interexchange
19-19 telecommunications utility <carrier> shall apply to nondominant
19-20 carriers and shall constitute the minimum requirements to be
19-21 imposed by the commission for any dominant carrier.
19-22 (r) The commission may, only as necessary to enforce its
19-23 limited jurisdiction, prescribe forms of books, accounts, records,
19-24 and memoranda to be kept by a company that has a certificate of
19-25 operating authority or service provider certificate of operating
19-26 authority under Subtitle F of this title that in the judgment of
19-27 the commission may be necessary to carry out the limited
20-1 jurisdiction over those companies that this Act provides to the
20-2 commission.
20-3 (s)(1) Except as otherwise specifically provided by this
20-4 Act, the commission shall have only the following authority over a
20-5 holder of a certificate of operating authority or service provider
20-6 certificate of operating authority:
20-7 (A) to enforce the applicable provisions of this
20-8 Act as provided by Subtitle I, Title I, of this Act;
20-9 (B) to assert jurisdiction over a specific
20-10 service in accordance with Section 3.2572 of this Act;
20-11 (C) to require co-carriage reciprocity; and
20-12 (D) to regulate condemnation and building
20-13 access.
20-14 (2) The commission may not impose on a
20-15 telecommunications utility that has a certificate of operating
20-16 authority or service provider certificate of operating authority a
20-17 rule or regulatory practice under this section that imposes a
20-18 greater regulatory burden on that telecommunications utility than
20-19 is imposed on a certificate of convenience and necessity holder
20-20 serving the same area.
20-21 SECTION 8. Subtitle B, Title III, Public Utility Regulatory
20-22 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
20-23 Regular Session, 1995, is amended by adding Section 3.053 to read
20-24 as follows:
20-25 Sec. 3.053. SALE OF PROPERTY. (a) The commission shall
20-26 complete an investigation under Section 1.251 of this Act that
20-27 relates to a public utility and enter a final order within 180 days
21-1 after the date of notification by the utility. If an order is not
21-2 entered, the utility's action is considered consistent with the
21-3 public interest.
21-4 (b) Section 1.251 of this Act does not apply to an incumbent
21-5 local exchange company electing under Subtitle H or I of this title
21-6 or to a company that receives a certificate of operating authority
21-7 or a service provider certificate of operating authority under
21-8 Subtitle F of this title.
21-9 SECTION 9. Subtitle C, Title III, Public Utility Regulatory
21-10 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
21-11 Regular Session, 1995, is amended by adding Section 3.1015 to read
21-12 as follows:
21-13 Sec. 3.1015. MUNICIPAL FEES. Nothing in this Act may be
21-14 construed as in any way limiting the right of a public utility to
21-15 pass through municipal fees, including any increase in municipal
21-16 fees. A public utility that traditionally passes through municipal
21-17 fees shall promptly pass through any reductions.
21-18 SECTION 10. Section 3.151(a), Public Utility Regulatory Act
21-19 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
21-20 Regular Session, 1995, is amended to read as follows:
21-21 (a) The commission shall fix proper and adequate rates and
21-22 methods of depreciation, amortization, or depletion of the several
21-23 classes of property of each public utility and shall require every
21-24 public utility to carry a proper and adequate depreciation account
21-25 in accordance with such rates and methods and with such other rules
21-26 and regulations as the commission prescribes. On application of a
21-27 utility, the commission shall fix depreciation rates that promote
22-1 deployment of new technology and infrastructure. In setting those
22-2 rates, the commission shall consider depreciation practices of
22-3 nonregulated telecommunications providers. Such rates, methods,
22-4 and accounts shall be utilized uniformly and consistently
22-5 throughout the ratesetting and appeal proceedings. A company
22-6 electing under Subtitle H of this title may determine its own
22-7 depreciation rates and amortizations, but shall notify the
22-8 commission of any changes.
22-9 SECTION 11. Subtitle D, Title III, Public Utility Regulatory
22-10 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
22-11 Regular Session, 1995, is amended by adding Section 3.1545 to read
22-12 as follows:
22-13 Sec. 3.1545. RECORDS. Notwithstanding Section 1.204 of this
22-14 Act, books, accounts, records, or memoranda of a public utility may
22-15 be removed from the state so long as those books, accounts,
22-16 records, or memoranda are returned to the state for any inspection
22-17 by the commission that is authorized by this Act.
22-18 SECTION 12. Subtitle D, Title III, Public Utility Regulatory
22-19 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
22-20 Regular Session, 1995, is amended by adding Section 3.1555 to read
22-21 as follows:
22-22 Sec. 3.1555. MINIMUM SERVICES. (a) Except as provided by
22-23 Subsection (d) of this section, the commission shall require each
22-24 holder of a certificate of convenience and necessity or certificate
22-25 of operating authority in this state to provide at the applicable
22-26 tariff rate, if any, to all customers, irrespective of race,
22-27 national origin, income, or residence in an urban or rural area,
23-1 not later than December 31, 2000:
23-2 (1) single party service;
23-3 (2) tone-dialing service;
23-4 (3) basic custom calling features;
23-5 (4) equal access for interLATA interexchange carriers
23-6 on a bona fide request; and
23-7 (5) digital switching capability in all exchanges on
23-8 customer request, provided by a digital switch in the exchange or
23-9 by connection to a digital switch in another exchange.
23-10 (b) Notwithstanding Subsection (a) of this section, an
23-11 electing incumbent local exchange company serving as of January 1,
23-12 1995, more than 175,000 but fewer than 1,500,000 access lines shall
23-13 install digital switches in its central offices serving exchanges
23-14 of less than 20,000 access lines before December 31, 1998.
23-15 (c) The commission may temporarily waive these requirements
23-16 on a showing of good cause. The commission may not consider the
23-17 cost of implementing this section in determining whether an
23-18 electing company is entitled to a rate increase under Subtitle H or
23-19 I of this title or increased universal service funds under Section
23-20 3.608 of this Act.
23-21 (d) This section does not affect the requirement prescribed
23-22 by 16 T.A.C. Section 23.69 that, not later than July 1, 1996, each
23-23 local exchange company shall make ISDN available to all customers
23-24 in exchange areas of the company that have at least 50,000 access
23-25 lines.
23-26 SECTION 13. Subtitle D, Title III, Public Utility Regulatory
23-27 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
24-1 Regular Session, 1995, is amended by adding Section 3.1556 to read
24-2 as follows:
24-3 Sec. 3.1556. RECONNECTION FEE. The commission shall
24-4 establish a reasonable limit on the amount that a local exchange
24-5 company may charge a customer for changing the location at which
24-6 the customer receives service.
24-7 SECTION 14. Sections 3.201 and 3.202, Public Utility
24-8 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
24-9 Legislature, Regular Session, 1995, are amended to read as follows:
24-10 Sec. 3.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
24-11 Subject to the provisions of this Act, the commission is hereby
24-12 vested with all authority and power of the State of Texas to insure
24-13 compliance with the obligations of public utilities in this Act.
24-14 Except as <To the extent> otherwise provided by this Act, the
24-15 commission is empowered to fix and regulate rates of public
24-16 utilities, including rules and regulations for determining the
24-17 classification of customers and services and for determining the
24-18 applicability of rates. A rule or order of the commission may not
24-19 conflict with the rulings of any federal regulatory body.
24-20 Sec. 3.202. JUST AND REASONABLE RATES. It shall be the duty
24-21 of the commission to insure that every rate made, demanded, or
24-22 received by any public utility or by any two or more utilities
24-23 jointly shall be just and reasonable. Rates may not be
24-24 unreasonably preferential, prejudicial, or discriminatory, but
24-25 shall be sufficient, equitable, and consistent in application to
24-26 each class of consumers. For ratemaking purposes, the commission
24-27 may treat two or more municipalities served by a public utility as
25-1 a single class wherever it deems such treatment to be appropriate.
25-2 Approval by the commission of a reduced rate for service for a
25-3 class of consumers eligible under Section 3.602 <3.352> of this Act
25-4 for tel-assistance service does not constitute a violation of this
25-5 section.
25-6 SECTION 15. Section 3.204, Public Utility Regulatory Act of
25-7 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
25-8 Session, 1995, is amended to read as follows:
25-9 Sec. 3.204. BURDEN OF PROOF. Except as hereafter provided,
25-10 in any proceeding involving any proposed change of rates, the
25-11 burden of proof to show that the proposed change, if proposed by
25-12 the utility, or that the existing rate, if it is proposed to reduce
25-13 the rate, is just and reasonable shall be on the public utility.
25-14 In any proceeding involving an incumbent <a> local exchange company
25-15 in which the incumbent local exchange company's rate or rates are
25-16 in issue, the burden of proof that such rate or rates are just and
25-17 reasonable shall be on the incumbent local exchange company.
25-18 SECTION 16. Section 3.210, Public Utility Regulatory Act of
25-19 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
25-20 Session, 1995, is amended by adding Subsection (c) to read as
25-21 follows:
25-22 (c) Except as provided by Subtitles H and I of this title,
25-23 this section does not apply to a company electing into Subtitle H
25-24 or I of this title. However, the commission shall retain
25-25 jurisdiction to hear and resolve complaints regarding an electing
25-26 company's compliance with obligations imposed by this Act.
25-27 SECTION 17. Section 3.211, Public Utility Regulatory Act of
26-1 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
26-2 Session, 1995, is amended by amending Subsections (f) and (h) and
26-3 adding Subsection (j) to read as follows:
26-4 (f) If, after hearing, the commission finds the rates to be
26-5 unreasonable or in any way in violation of any provision of law,
26-6 the commission shall determine the level of rates to be charged or
26-7 applied by the utility for the service in question and shall fix
26-8 the same by order to be served upon the utility; these rates are
26-9 thereafter to be observed until changed, as provided by this Act.
26-10 Except as provided by Subtitles H, I, and J of this title, this
26-11 subsection does not apply to a company electing into Subtitle H or
26-12 I of this title. Rates established under this section after a
26-13 company's election must comply with Subtitle H or I of this title.
26-14 (h) If the commission does not make a final determination
26-15 concerning an incumbent <a> local exchange company's schedule of
26-16 rates prior to the expiration of the 150-day suspension period, the
26-17 schedule of rates finally approved by the commission shall become
26-18 effective and the incumbent local exchange company shall be
26-19 entitled to collect such rates from the date the 150-day suspension
26-20 period expired. Any surcharges or other charges necessary to
26-21 effectuate this subsection may not be recovered over a period of
26-22 less than 90 days from the date of the commission's final order.
26-23 (j) An incumbent local exchange company may file with the
26-24 commission tariffs for switched access service that have been
26-25 approved by the Federal Communications Commission, provided that
26-26 the tariffs include all rate elements in the company's interstate
26-27 access tariff other than end user charges. If on review the filed
27-1 tariffs contain the same rates, terms, and conditions, excluding
27-2 any end user charges, as approved by the Federal Communications
27-3 Commission, the commission shall order the rates to be the
27-4 intrastate switched access rates, terms, and conditions for the
27-5 incumbent local exchange company within 60 days of filing.
27-6 SECTION 18. Sections 3.212(a) and (c), Public Utility
27-7 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
27-8 Legislature, Regular Session, 1995, are amended to read as follows:
27-9 (a) An incumbent <A> local exchange company may make changes
27-10 in its tariffed rules, regulations, or practices that do not affect
27-11 its charges or rates by filing the proposed changes with the
27-12 commission at least 35 days prior to the effective date of the
27-13 changes. The commission may require such notice to ratepayers as
27-14 it considers appropriate.
27-15 (c) The commission shall approve, deny, or modify the
27-16 proposed changes before expiration of the suspension period. In
27-17 any proceeding under this section, the burden of proving that the
27-18 requested relief is in the public interest and complies with this
27-19 Act shall be borne by the incumbent local exchange company.
27-20 SECTION 19. Subtitle E, Title III, Public Utility Regulatory
27-21 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
27-22 Regular Session, 1995, is amended by amending Section 3.213 and
27-23 adding Section 3.2135 to read as follows:
27-24 Sec. 3.213. <COOPERATIVE OR> SMALL INCUMBENT LOCAL EXCHANGE
27-25 COMPANIES<; STATEMENT OF INTENT TO CHANGE RATES; NOTICE OF INTENT;
27-26 SUSPENSION OF RATE SCHEDULE; REVIEW>. (a) The legislature finds
27-27 that regulatory policy should recognize differences between the
28-1 small and large incumbent local exchange companies, that there are
28-2 a large number of customer-owned telephone cooperatives and small,
28-3 locally owned investor companies, and that it is appropriate to
28-4 provide incentives and flexibility to allow incumbent local
28-5 exchange companies that serve the rural areas to provide existing
28-6 services and to introduce new technology and new services in a
28-7 prompt, efficient, and economical manner.
28-8 (b) Except as otherwise provided by this section, an
28-9 incumbent local exchange company that is a cooperative corporation,
28-10 or that, together with all affiliated incumbent local exchange
28-11 companies, has fewer than 31,000 access lines in service in this
28-12 state may offer extended local calling services or new services on
28-13 an optional basis or make minor changes in its rates or tariffs if
28-14 the company:
28-15 (1) files with the commission and the office a
28-16 statement of intent, as prescribed by Subsection (c) of this
28-17 section, not later than the 91st day before the date on which the
28-18 proposed change will take effect;
28-19 (2) provides notice as prescribed by Subsection (d) of
28-20 this section; and
28-21 (3) files with the commission affidavits verifying the
28-22 provision of notice as prescribed by Subsection (d) of this
28-23 section.
28-24 (c) The statement of intent required by Subsection (b)(1) of
28-25 this section must include:
28-26 (1) a copy of a resolution approving the proposed
28-27 change by the incumbent local exchange telephone company's board of
29-1 directors;
29-2 (2) a description of the services affected by the
29-3 proposed change;
29-4 (3) a copy of the proposed tariff for the affected
29-5 service;
29-6 (4) a copy of the customer notice required by
29-7 Subsection (b)(2) of this section;
29-8 (5) the number of access lines the company and each
29-9 affiliate has in service in this state; and
29-10 (6) the amount by which the company's total regulated
29-11 intrastate gross annual revenues will increase or decrease as a
29-12 result of the proposed change.
29-13 (d) The incumbent local exchange company shall provide
29-14 notice to affected customers in the manner prescribed by the
29-15 commission not later than the 61st day before the date on which the
29-16 proposed change will take effect. Each notice prescribed by the
29-17 commission must include:
29-18 (1) a description of the services affected by the
29-19 proposed change;
29-20 (2) the effective date of the proposed change;
29-21 (3) an explanation of the customer's right to petition
29-22 the commission for a review under Subsection (e) of this section,
29-23 including the number of persons required to petition before a
29-24 commission review will occur;
29-25 (4) an explanation of the customer's right to obtain
29-26 information concerning how to obtain a copy of the proposed tariff
29-27 from the company;
30-1 (5) the amount by which the company's total regulated
30-2 intrastate gross annual revenues will increase or decrease as a
30-3 result of the proposed change; and
30-4 (6) a list of rates that are affected by the proposed
30-5 rate change.
30-6 (e) The commission shall review a proposed change filed
30-7 under this section if:
30-8 (1) the commission receives complaints relating to the
30-9 proposed change signed by the lesser of five percent or 1,500 of
30-10 the affected local service customers;
30-11 (2) the commission receives a complaint relating to
30-12 the proposed change from an affected intrastate access customer, or
30-13 a group of affected intrastate access customers, that in the
30-14 preceding 12 months accounted for more than 10 percent of the
30-15 company's total intrastate gross access revenues;
30-16 (3) the proposed change is not a minor change;
30-17 (4) the company does not comply with the procedural
30-18 requirements of this section; or
30-19 (5) the proposed change is inconsistent with the
30-20 commission's substantive policies as expressed in its rules.
30-21 (f) On review, the commission may suspend the proposed
30-22 tariff during the pendency of review.
30-23 (g) This section does not prohibit an incumbent local
30-24 exchange company from filing for a new service or rate change under
30-25 another applicable section of this Act or the commission from
30-26 conducting a review in accordance with Section 3.210 of this Act.
30-27 (h) In this section, "minor change" means a change,
31-1 including the restructuring of rates of existing services, that
31-2 decreases the rates or revenues of the incumbent local exchange
31-3 company or that, together with any other rate or proposed or
31-4 approved tariff changes in the 12 months preceding the date on
31-5 which the proposed change will take effect, results in an increase
31-6 of the company's total regulated intrastate gross annual revenues
31-7 by not more than five percent. Further, with regard to a change to
31-8 a basic local access line rate, a minor change may not, together
31-9 with any other change to that rate that went into effect during the
31-10 12 months preceding the proposed effective date of the requested
31-11 change, result in an increase of more than 10 percent. <Except as
31-12 otherwise provided by this section, a local exchange company that
31-13 is a cooperative corporation or that has fewer than 5,000 access
31-14 lines in service in this state may change rates by publishing
31-15 notice of the change at least 60 days before the date of the change
31-16 in the place and form as prescribed by the commission. The notice
31-17 must include:>
31-18 <(1) the reasons for the rate change;>
31-19 <(2) a description of the affected service;>
31-20 <(3) an explanation of the right of the subscriber to
31-21 petition the commission for a hearing on the rate change; and>
31-22 <(4) a list of rates that are affected by the proposed
31-23 rate change.>
31-24 <(b) At least 60 days before the date of the change, the
31-25 local exchange company shall file with the commission a statement
31-26 of intent to change rates containing:>
31-27 <(1) a copy of the notice required by Subsection (a)
32-1 of this section;>
32-2 <(2) the number of access lines the company has in
32-3 service in this state;>
32-4 <(3) the date of the most recent commission order
32-5 setting rates of the company;>
32-6 <(4) the increase in total gross annual local revenues
32-7 that will be produced by the proposed rates;>
32-8 <(5) the increase in total gross annual local revenues
32-9 that will be produced by the proposed rates together with any local
32-10 rate changes which went into effect during the 12 months preceding
32-11 the proposed effective date of the requested rate change and any
32-12 other proposed local rate changes then pending before the
32-13 commission;>
32-14 <(6) the increase in rates for each service category;
32-15 and>
32-16 <(7) other information the commission by rule
32-17 requires.>
32-18 <(c) The commission shall review a proposed change in the
32-19 rates set by a local exchange company under this section upon the
32-20 receipt of complaints signed by at least five percent of all
32-21 affected subscribers or upon its own motion. The commission may
32-22 require notice to ratepayers as it considers appropriate. If
32-23 sufficient complaints are presented to the commission within 60
32-24 days after the date notice of the rate change was sent to
32-25 subscribers, the commission shall review the proposed change.
32-26 After notice to the local exchange company, the commission may
32-27 suspend the rates during the pendency of the review and reinstate
33-1 the rates previously in effect. Review under this subsection shall
33-2 be as provided by Section 3.211 of this Act. The period for review
33-3 by the commission does not begin until the local exchange company
33-4 files a complete rate-filing package.>
33-5 <(d) If the commission has entered an order setting a rate,
33-6 the affected local exchange company may not change that rate under
33-7 this section before 365 days after the date of the commission's
33-8 order setting the rate.>
33-9 <(e) This section does not prohibit a local exchange company
33-10 from filing for a rate change under any other applicable section of
33-11 this Act.>
33-12 <(f) The commission shall review a proposed change in the
33-13 rates of a local exchange company under this section if the
33-14 proposed rates, together with any local rate changes which went
33-15 into effect during the 12 months preceding the proposed effective
33-16 date of the requested rate change as well as any other proposed
33-17 local rate changes then pending before the commission, will
33-18 increase its total gross annual local revenues by more than 2-1/2
33-19 percent or if the proposed change would increase the rate of any
33-20 service category by more than 25 percent, except for basic local
33-21 service, which shall be limited to a maximum of 2-1/2 percent of
33-22 the total gross annual local revenue. Review under this subsection
33-23 shall be as provided by Section 3.211 of this Act. Each local
33-24 exchange company may receive a change in its local rates or in any
33-25 service category pursuant to this section only one time in any
33-26 12-month period.>
33-27 (i) <(g)> Rates established under this section must be in
34-1 accordance with the rate-setting principles of this subtitle.
34-2 However, companies may provide to their board members, officers,
34-3 employees, and agents free or reduced rates for services.
34-4 (j)(1) The commission shall, within 120 days of the
34-5 effective date of this section, examine its policies, its reporting
34-6 requirements, and its procedural and substantive rules as they
34-7 relate to rural and small incumbent local exchange companies and
34-8 cooperatives to eliminate or revise those that place unnecessary
34-9 burdens and expenses on those companies. Notwithstanding any other
34-10 provisions of this Act, the commission shall consider and may adopt
34-11 policies that include the following:
34-12 (A) policies to allow those companies to provide
34-13 required information by report or otherwise as necessary, including
34-14 a rate filing package when required, in substantially less
34-15 burdensome and complex form than required of larger incumbent local
34-16 exchange companies;
34-17 (B) policies that permit consideration of the
34-18 company's future construction plans and operational changes in
34-19 evaluating the reasonableness of current rates;
34-20 (C) policies that provide for evaluation of the
34-21 overall reasonableness of current rates no more frequently than
34-22 once every three years;
34-23 (D) policies that permit companies to change
34-24 depreciation and amortization rates when customer rates are not
34-25 affected by notice to the commission, subject to review by the
34-26 commission in a proceeding under Section 3.210 or 3.211 of this
34-27 Act;
35-1 (E) policies to allow the incumbent local
35-2 exchange companies to adopt for new services the rates for the same
35-3 or substantially similar services offered by a larger incumbent
35-4 local exchange company, without commission requirement of
35-5 additional cost justification; and
35-6 (F) policies that allow an incumbent local
35-7 exchange company, instead of any management audit that would
35-8 otherwise be required by law, policy, or rule, to submit to the
35-9 commission financial audits of the company regularly performed by
35-10 independent auditors or required and performed as a result of the
35-11 company's participation in federal or state financing or
35-12 revenue-sharing programs.
35-13 (2) Notwithstanding any other relevant provision of
35-14 this Act, the commission may adopt policies under this subsection
35-15 that the commission considers appropriate.
35-16 (k) <(h)> The commission is granted all necessary power and
35-17 authority to prescribe and collect fees and assessments from
35-18 incumbent local exchange companies necessary to recover the
35-19 commission's and the office's costs of activities carried out and
35-20 services provided under this section, Subsection (h) of Section
35-21 3.211, and Sections <Section> 3.212 and 3.2135 of this Act.
35-22 (l) Except as provided in Subsection (j), this section may
35-23 not apply to any incumbent local exchange company that is a
35-24 cooperative corporation partially deregulated under the provisions
35-25 of Section 3.2135 of this Act.
35-26 Sec. 3.2135. COOPERATIVE CORPORATIONS. (a) An incumbent
35-27 local exchange company that is a cooperative corporation may vote
36-1 to partially deregulate the cooperative by sending a ballot to each
36-2 cooperative member. The ballot may be included in a bill or sent
36-3 separately. The ballot shall provide for voting for or against the
36-4 proposition: "Authorizing the partial deregulation of the (name of
36-5 the cooperative)."
36-6 (b) The cooperative is deemed to be partially deregulated if
36-7 a majority of the ballots returned to the cooperative not later
36-8 than the 45th day after the date on which the ballots are mailed
36-9 favor deregulation.
36-10 (c) After the initial balloting, the cooperative may offer
36-11 extended local calling services, offer new services on an optional
36-12 basis, or make changes in its rates or tariffs if the cooperative:
36-13 (1) provides notice of the proposed action under this
36-14 section to all customers and municipalities as prescribed by
36-15 Subsection (e) of this section;
36-16 (2) files with the commission affidavits verifying the
36-17 provision of notice as prescribed by Subsection (f) of this
36-18 section; and
36-19 (3) files a statement of intent under Subsection (d)
36-20 of this section.
36-21 (d) A statement of intent to use this section must be filed
36-22 with the commission and the office not later than the 61st day
36-23 before the date on which a proposed change will take effect and
36-24 must include:
36-25 (1) a copy of a resolution approving the proposed
36-26 action and authorizing the filing of the statement of intent signed
36-27 by a majority of the members of the cooperative's board of
37-1 directors;
37-2 (2) a description of the services affected by the
37-3 proposed action;
37-4 (3) a copy of the proposed tariff for the affected
37-5 service; and
37-6 (4) a copy of the customer notice required by this
37-7 section.
37-8 (e) The cooperative shall provide to all affected customers
37-9 and parties, including municipalities, at least two notices of the
37-10 proposed action by bill insert or by individual notice. The
37-11 cooperative shall provide the first notice not later than the 61st
37-12 day before the date on which the proposed action will take effect.
37-13 The cooperative shall provide the last notice not later than the
37-14 31st day before the date on which the proposed action will take
37-15 effect. Each notice prescribed by this subsection must include:
37-16 (1) a description of the services affected by the
37-17 proposed action;
37-18 (2) the effective date of the proposed action;
37-19 (3) an explanation of the customer's right to petition
37-20 the commission for a review under Subsection (g) of this section;
37-21 (4) an explanation of the customer's right to obtain a
37-22 copy of the proposed tariff from the cooperative;
37-23 (5) the amount by which the cooperative's total gross
37-24 annual revenues will increase or decrease and a statement
37-25 explaining the effect on the cooperative revenues as a result of
37-26 the proposed action; and
37-27 (6) a list of rates that are affected by the proposed
38-1 rate action, showing the effect of the proposed action on each such
38-2 rate.
38-3 (f) Not later than the 15th day before the date on which the
38-4 proposed action will take effect, the cooperative shall file with
38-5 the commission affidavits that verify that the cooperative provided
38-6 each notice prescribed under Subsection (e) of this section.
38-7 (g)(1) The commission shall review a proposed action filed
38-8 under this section if:
38-9 (A) the commission receives, not later than the
38-10 45th day after the first notice is provided under Subsection (e) of
38-11 this section, complaints relating to the proposed action:
38-12 (i) signed by at least five percent of the
38-13 affected local service customers; or
38-14 (ii) from an affected intrastate access
38-15 customer, or group of affected intrastate access customers, that in
38-16 the preceding 12 months accounted for more than 10 percent of the
38-17 cooperative's total intrastate access revenues;
38-18 (B) the cooperative does not comply with the
38-19 procedural requirements of this section; or
38-20 (C) the proposed action is inconsistent with the
38-21 commission's substantive policies as expressed in its rules.
38-22 (2) If the commission conducts a review of the
38-23 proposed action under this subsection before the effective date,
38-24 the commission may suspend the proposed actions of the cooperative
38-25 during the pendency of the review.
38-26 (h) A cooperative that is partially deregulated under this
38-27 section may vote to reverse the deregulation by sending a ballot
39-1 to each cooperative member. Upon its own motion or within 60 days
39-2 upon receipt of a written request of 10 percent of its members, the
39-3 cooperative's board of directors shall reballot. The ballot may be
39-4 included in a bill or sent separately. The ballot shall provide
39-5 for voting for or against the proposition: "Reversing the partial
39-6 deregulation of the (name of the cooperative)." The partial
39-7 deregulation is reversed if a majority of the ballots returned to
39-8 the cooperative not later than the 45th day after the date on which
39-9 the ballots are mailed favor reversal.
39-10 (i) The commission by rule shall prescribe the voting
39-11 procedures a cooperative is required to use under this section.
39-12 (j) This section does not:
39-13 (1) prohibit a cooperative from filing for a new
39-14 service or rate change under another applicable section of this
39-15 Act; or
39-16 (2) affect the application of other provisions of this
39-17 Act not directly related to ratemaking or the authority of the
39-18 commission to require the cooperative to file reports as required
39-19 under this Act, Section 3.213(j) of this Act, or under the rules
39-20 adopted by the commission.
39-21 (k) Notwithstanding any other provision of this section, the
39-22 commission may conduct a review in accordance with Section 3.210 of
39-23 this Act.
39-24 SECTION 20. Subtitle E, Title III, Public Utility Regulatory
39-25 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
39-26 Regular Session, 1995, is amended by adding Section 3.219 to read
39-27 as follows:
40-1 Sec. 3.219. INTRALATA CALLS. (a) Except as provided by
40-2 Subsection (b) of this section, while any local exchange company in
40-3 this state is prohibited by federal law from providing interLATA
40-4 telecommunications services, the local exchange companies in this
40-5 state designated or de facto authorized to receive "0+" and "1+"
40-6 dialed intraLATA calls shall be exclusively designated or
40-7 authorized to receive those calls.
40-8 (b) A telecommunications utility operating under a
40-9 certificate of operating authority or service provider certificate
40-10 of operating authority to the extent not restricted by Section
40-11 3.2532(f) of this Act is de facto authorized to receive "0+" and
40-12 "1+" dialed intraLATA calls on the date on which the utility
40-13 receives its certificate.
40-14 (c) If local exchange companies are allowed by federal law
40-15 to provide interLATA telecommunications services, the commission
40-16 shall consider whether to allow customers to designate a carrier to
40-17 receive their "0+" and "1+" dialed intraLATA calls.
40-18 SECTION 21. Section 3.251, Public Utility Regulatory Act of
40-19 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
40-20 Session, 1995, is amended by adding Subsection (c) to read as
40-21 follows:
40-22 (c) A person may not provide local exchange telephone
40-23 service, basic local telecommunications service, or switched access
40-24 service without a certificate of convenience and necessity, a
40-25 certificate of operating authority, or a service provider
40-26 certificate of operating authority.
40-27 SECTION 22. Section 3.252, Public Utility Regulatory Act of
41-1 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
41-2 Session, 1995, is amended to read as follows:
41-3 Sec. 3.252. EXCEPTIONS <FOR EXTENSION OF SERVICE>. (a) A
41-4 telecommunications <public> utility is not required to secure a
41-5 certificate of public convenience and necessity, certificate of
41-6 operating authority, or service provider certificate of operating
41-7 authority for:
41-8 (1) an extension into territory contiguous to that
41-9 already served by it and not receiving similar service from another
41-10 telecommunications <public> utility and not within the certificated
41-11 area <of public convenience and necessity> of another
41-12 telecommunications utility <of the same kind>;
41-13 (2) an extension within or to territory already served
41-14 by it or to be served by it under a certificate of public
41-15 convenience and necessity, certificate of operating authority, or
41-16 service provider certificate of operating authority; <or>
41-17 (3) operation, extension, or service in progress on
41-18 September 1, 1975; or
41-19 (4) interexchange telecommunications service,
41-20 non-switched private line service, shared tenant service,
41-21 specialized communications common carrier service, commercial
41-22 mobile service, or operator service as defined by Section 3.052(a)
41-23 of this Act.
41-24 (b) Any extensions allowed by Subsection (a) of this section
41-25 shall be limited to devices for interconnection of existing
41-26 facilities or devices used solely for transmitting
41-27 telecommunications <public> utility services from existing
42-1 facilities to customers of retail utility service.
42-2 SECTION 23. Subtitle F, Title III, Public Utility Regulatory
42-3 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
42-4 Regular Session, 1995, is amended by adding Section 3.2531 to read
42-5 as follows:
42-6 Sec. 3.2531. CERTIFICATE OF OPERATING AUTHORITY. (a) In
42-7 lieu of applying for a certificate of convenience and necessity, an
42-8 applicant may apply for a certificate of operating authority.
42-9 (b) An application for a certificate of operating authority
42-10 shall specify whether the applicant is seeking a facilities based
42-11 certificate of operating authority under this section or a service
42-12 provider certificate of operating authority under Section 3.2532.
42-13 When an application for a certificate of operating authority or
42-14 service provider certificate of operating authority is filed, the
42-15 commission shall give notice of the application to interested
42-16 parties and, if requested, shall fix a time and place for a hearing
42-17 and give notice of the hearing. Any person interested in the
42-18 application may intervene at the hearing.
42-19 (c) If seeking a facilities based certificate of operating
42-20 authority, the applicant must include in the application a proposed
42-21 build-out plan demonstrating how the applicant will deploy its
42-22 facilities throughout the geographic area of its certificated
42-23 service area over a six-year period. The commission may issue
42-24 rules for a holder of a certificate of operating authority with
42-25 respect to the time within which the holder must be able to serve
42-26 customers, except that a holder must serve customers within a
42-27 build-out area within 30 days of the date of a customer request for
43-1 service. The commission may not require a holder to place "drop"
43-2 facilities on every customer's premises or to activate fiber optic
43-3 facilities in advance of customer request as part of the build-out
43-4 requirements. The plan required by this subsection must meet the
43-5 following conditions:
43-6 (1) 10 percent of the area to be served must be served
43-7 with facilities other than the facilities of the incumbent local
43-8 exchange company by the end of the first year;
43-9 (2) 50 percent of the area to be served must be served
43-10 with facilities other than the facilities of the incumbent local
43-11 exchange company by the end of the third year; and
43-12 (3) all of the area to be served must be served with
43-13 facilities other than the facilities of the incumbent local
43-14 exchange company by the end of the sixth year.
43-15 (d) The build-out plan may permit not more than 40 percent
43-16 of the applicant's service area to be served by resale of the
43-17 incumbent local exchange company's facilities under the tariff
43-18 required to be approved in Section 3.453 of this Act, except that
43-19 during the six years immediately following the grant, a holder of a
43-20 certificate of operating authority may extend its service by resale
43-21 only within the area it is obligated to serve under the build-out
43-22 plan approved by the commission and to the distant premises of one
43-23 of its multi-premises customers beyond that build-out area but
43-24 within its certificated service area. The 40-percent resale
43-25 limitation applies to incumbent local exchange facilities resold by
43-26 a holder of a certificate of operating authority as part of the
43-27 provision of local exchange telephone service, regardless of
44-1 whether the facilities are purchased directly by the certificate of
44-2 operating authority holder from the incumbent local exchange
44-3 company or purchased by an intermediary carrier from the incumbent
44-4 local exchange company and then provided to the certificate of
44-5 operating authority holder for resale. In no event may an
44-6 applicant use commercial mobile service to meet the build-out
44-7 requirement imposed by this section, but an applicant may use PCS
44-8 wireless technology licensed by the Federal Communications
44-9 Commission after January 1, 1995, to meet the build-out
44-10 requirement.
44-11 (e) A certificate of operating authority shall be granted
44-12 within 60 days after the date of the application on a
44-13 nondiscriminatory basis after consideration by the commission of
44-14 factors such as the technical and financial qualifications of the
44-15 applicant and the applicant's ability to meet the commission's
44-16 quality of service requirements. The commission may extend the
44-17 60-day period on good cause shown. In an exchange of an incumbent
44-18 local exchange company serving fewer than 31,000 access lines, the
44-19 commission shall also consider:
44-20 (1) the effect of granting the certificate on any
44-21 public utility already serving the area and on the utility's
44-22 customers;
44-23 (2) the existing utility's ability to provide adequate
44-24 service at reasonable rates;
44-25 (3) the impact of the existing utility's ability as
44-26 the provider of last resort; and
44-27 (4) the ability of the exchange, not the company, to
45-1 support more than one provider of service.
45-2 (f) In addition to the factors prescribed by Subsection (e)
45-3 of this section, the commission shall consider the adequacy of the
45-4 applicant's build-out plan in determining whether to grant the
45-5 application. The commission may administratively and temporarily
45-6 waive compliance with the six-year build-out plan on a showing of
45-7 good cause. The holder of a certificate shall file periodic
45-8 reports with the commission demonstrating compliance with the plan
45-9 approved by the commission, including the requirement that not more
45-10 than 40 percent of the service area of a new certificate may be
45-11 served by resale of the facilities of the incumbent local exchange
45-12 company.
45-13 (g) An application for a certificate of operating authority
45-14 may be granted only for an area or areas that are contiguous and
45-15 reasonably compact and cover an area of at least 27 square miles,
45-16 except that:
45-17 (1) in an exchange in a county having a population of
45-18 less than 500,000 that is served by an incumbent local exchange
45-19 company having more than 31,000 access lines, an area covering less
45-20 than 27 square miles may be approved if the area is contiguous and
45-21 reasonably compact and has at least 20,000 access lines; and
45-22 (2) in an exchange of a company serving fewer than
45-23 31,000 access lines in this state, an application may be granted
45-24 only for an area that has boundaries similar to the boundaries of
45-25 the serving central office served by the incumbent local exchange
45-26 company holding the certificate of convenience and necessity for
45-27 that area.
46-1 (h) The commission may not, before September 1, 1998, grant
46-2 a certificate of operating authority in an exchange of an incumbent
46-3 local exchange company serving fewer than 31,000 access lines. The
46-4 commission shall require that the applicant meet the other
46-5 appropriate certification provisions of this Act.
46-6 (i) Six years after an application for a certificate of
46-7 operating authority has been granted for a particular area or areas
46-8 or when the new applicant has completed its build-out plan required
46-9 by this section, the commission may waive the build-out
46-10 requirements of this section for additional applicants.
46-11 (j)(1) On an application filed after September 1, 1997, the
46-12 commission may conduct a hearing to determine:
46-13 (A) if the build-out requirements of Subsections
46-14 (c), (d), and (g) of this section have created barriers to the
46-15 entry of facilities based local exchange telephone service
46-16 competition in exchanges in counties with a population of more than
46-17 500,000 served by companies having more than 31,000 access lines;
46-18 and
46-19 (B) the effect of the resale provisions on the
46-20 development of competition except in certificated areas of
46-21 companies serving fewer than 31,000 access lines as provided by
46-22 Section 3.2532(d)(1) of this Act.
46-23 (2) In making the determination under Subdivision (1)
46-24 of this subsection, the commission shall consider:
46-25 (A) the policy of this Act to encourage
46-26 construction of local exchange networks;
46-27 (B) the number and type of competitors that have
47-1 sought to provide local exchange competition under the existing
47-2 rules prescribed by this Act; and
47-3 (C) whether, if new build-out and resale rules
47-4 were adopted, innovative and competitive local exchange telephone
47-5 services are more likely to be provided.
47-6 (3) If the commission determines that the existing
47-7 build-out requirements have created barriers to facilities based
47-8 local exchange competition in exchanges described by Subdivision
47-9 (1)(A) of this subsection, the requirements of Subsections (c),
47-10 (d), and (g) of this section and of Section 3.2532 may be changed
47-11 if the changes will encourage additional facilities based
47-12 competition. However, in no event may exchange sizes be reduced
47-13 below 12 square miles, or the permitted resale percentage of
47-14 Subsection (d) of this section be increased to more than 50
47-15 percent. If new rules are adopted, the rules may apply only to
47-16 applicants for certificates filed after the date of adoption of
47-17 those rules.
47-18 (k) If the holder of a certificate of authority fails to
47-19 comply with any requirement imposed by this Act, the commission
47-20 may:
47-21 (1) revoke the certificate; or
47-22 (2) impose administrative penalties or take other
47-23 action under Subtitle I, Title I, of this Act.
47-24 SECTION 24. Subtitle F, Title III, Public Utility Regulatory
47-25 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
47-26 Regular Session, 1995, is amended by adding Section 3.2532 to read
47-27 as follows:
48-1 Sec. 3.2532. SERVICE PROVIDER CERTIFICATE OF OPERATING
48-2 AUTHORITY. (a) To encourage innovative, competitive, and
48-3 entrepreneurial businesses to provide telecommunications services,
48-4 the commission may grant service provider certificates of operating
48-5 authority. An applicant must demonstrate that it has the financial
48-6 and technical ability to provide its services and show that the
48-7 services will meet the requirements of this section.
48-8 (b) A company is eligible to obtain a service provider
48-9 certificate of operating authority under this section unless the
48-10 company, together with affiliates, had in excess of four percent of
48-11 the total intrastate switched access minutes of use as measured by
48-12 the most recent 12-month period preceding the filing of the
48-13 application for which data is available. The commission shall
48-14 obtain from each applicable incumbent local exchange telephone
48-15 company and from the applicant any information necessary to
48-16 determine eligibility and shall certify eligibility within 10 days
48-17 after the date of the filing of the application. A service
48-18 provider certificate of operating authority shall be granted within
48-19 60 days after the date of the application on a nondiscriminatory
48-20 basis after consideration by the commission of factors such as the
48-21 technical and financial qualifications of the applicant and the
48-22 applicant's ability to meet the commission's quality of service
48-23 requirements. The commission may extend the 60-day period on good
48-24 cause shown.
48-25 (c) An applicant for a service provider certificate of
48-26 operating authority shall file with its application a description
48-27 of the services it will provide and show the areas in which it will
49-1 provide those services.
49-2 (d) A service provider certificate of operating authority
49-3 holder:
49-4 (1) may obtain services under the resale tariffs
49-5 ordered by the commission as specified by Section 3.453 of this
49-6 Act, except in certificated areas of companies serving fewer than
49-7 31,000 access lines;
49-8 (2) may obtain for resale the monthly recurring flat
49-9 rate local exchange telephone service and associated nonrecurring
49-10 charges, including any mandatory extended area service, of an
49-11 incumbent local exchange company at a five percent discount to the
49-12 tariffed rate, and:
49-13 (A) the incumbent local exchange company shall
49-14 also sell any feature service that may be provided to customers in
49-15 conjunction with local exchange service, including toll
49-16 restriction, call control options, tone dialing, custom calling
49-17 services, and caller ID at a five percent discount to the tariffed
49-18 rate, including any associated nonrecurring charge for those
49-19 services, provided that the incumbent local exchange company shall
49-20 make available to a holder of a service provider certificate of
49-21 operating authority at an additional five percent discount any
49-22 discounts made available to the customers of the incumbent local
49-23 exchange company who are similarly situated to the customers of the
49-24 holder of the service provider certificate of operating authority;
49-25 (B) service providers and incumbent local
49-26 exchange companies may agree to rates lower than the tariffed rates
49-27 or discounted rates;
50-1 (C) the five percent discounts provided by this
50-2 subdivision do not apply in exchanges of companies having fewer
50-3 than 31,000 access lines in this state;
50-4 (D) if the tariffed rates for the services being
50-5 resold change, the changed rate is applicable to the resold
50-6 service, but the commission may not, for holders of service
50-7 provider certificates of operating authority, create a special
50-8 class for purposes of resold services, and the discount provided to
50-9 holders of service provider certificates of operating authority
50-10 shall remain at five percent of the tariffed rate or discounted
50-11 rate; and
50-12 (E) the holder of a service provider certificate
50-13 of operating authority may purchase for resale optional extended
50-14 area service and expanded local calling service but those services
50-15 may not be discounted;
50-16 (3) may sell the flat rate local exchange telephone
50-17 service only to the same class of customers to which the incumbent
50-18 local exchange company sells that service;
50-19 (4) may not use a resold flat rate local exchange
50-20 telephone service to avoid the rates, terms, and conditions of an
50-21 incumbent local exchange company's tariffs;
50-22 (5) may not terminate both flat rate local exchange
50-23 telephone service and services obtained under the resale tariff
50-24 approved as prescribed by Sections 3.453(a)-(c) of this Act on the
50-25 same end user customer's premises;
50-26 (6) may not use resold flat rate local exchange
50-27 telephone services to provide access services to other
51-1 interexchange carriers, cellular carriers, competitive access
51-2 providers, or other retail telecommunications providers, but may
51-3 permit customers to use resold local exchange telephone services to
51-4 access interexchange carriers, cellular carriers, competitive
51-5 access providers, or other retail telecommunications providers;
51-6 (7) may obtain services offered by or negotiated with
51-7 a holder of a certificate of convenience and necessity or
51-8 certificate of operating authority; and
51-9 (8) may obtain for resale single or multiple line flat
51-10 rate intraLATA calling service when provided by the local exchange
51-11 company at the tariffed rate for online digital communications.
51-12 (e) The holder of a certificate of operating authority or
51-13 certificate of convenience and necessity shall not be granted a
51-14 service provider certificate of operating authority as to the same
51-15 territory. A holder of a service provider certificate of operating
51-16 authority who applies for either a certificate of operating
51-17 authority or a certificate of convenience and necessity as to the
51-18 same territory must include a plan to relinquish its service
51-19 provider certificate of operating authority.
51-20 (f) An incumbent local exchange company that sells flat rate
51-21 local exchange telephone service to a holder of a service provider
51-22 certificate of operating authority may retain all access service
51-23 and "1+" intraLATA toll service originated over the resold flat
51-24 rate local exchange telephone service.
51-25 (g) An incumbent local exchange company may not:
51-26 (1) delay provisioning or maintenance of services
51-27 provided under this section;
52-1 (2) degrade the quality of access provided to another
52-2 provider;
52-3 (3) impair the speed, quality, or efficiency of lines
52-4 used by another provider;
52-5 (4) fail to fully disclose in a timely manner after a
52-6 request for the disclosure all available information necessary for
52-7 the holder of the service provider certificate of operating
52-8 authority to provision resale services; or
52-9 (5) refuse to take any reasonable action to allow
52-10 efficient access by a holder of a service provider certificate of
52-11 operating authority to ordering, billing, or repair management
52-12 systems of the local exchange company.
52-13 (h) In this section:
52-14 (1) "Affiliate" means any entity that, directly or
52-15 indirectly, owns or controls, is owned or controlled by, or is
52-16 under common ownership or control with a company that applies for a
52-17 service provider certificate of operating authority under this
52-18 section.
52-19 (2) "Control" means to exercise substantial influence
52-20 over the policies and actions of another.
52-21 SECTION 25. Sections 3.255(a) and (b), Public Utility
52-22 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
52-23 Legislature, Regular Session, 1995, are amended to read as follows:
52-24 (a) If an area has been or shall be included within the
52-25 boundaries of a city, town, or village as the result of annexation,
52-26 incorporation, or otherwise, all telecommunications <public>
52-27 utilities certified or entitled to certification under this Act to
53-1 provide service or operate facilities in such area prior to the
53-2 inclusion shall have the right to continue and extend service in
53-3 its area of certification <public convenience and necessity> within
53-4 the annexed or incorporated area, pursuant to the rights granted by
53-5 its certificate and this Act.
53-6 (b) Notwithstanding any other provision of law, a
53-7 certificated telecommunications <public> utility shall have the
53-8 right to continue and extend service within its area of
53-9 certification <public convenience and necessity> and to utilize the
53-10 roads, streets, highways, alleys, and public property for the
53-11 purpose of furnishing such retail utility service, subject to the
53-12 authority of the governing body of a municipality to require any
53-13 certificated telecommunications <public> utility, at its own
53-14 expense, to relocate its facilities to permit the widening or
53-15 straightening of streets by giving to the certificated
53-16 telecommunications <public> utility 30 days' notice and specifying
53-17 the new location for the facilities along the right-of-way of the
53-18 street or streets.
53-19 SECTION 26. Sections 3.256 and 3.257, Public Utility
53-20 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
53-21 Legislature, Regular Session, 1995, are amended to read as follows:
53-22 Sec. 3.256. CONTRACTS VALID AND ENFORCEABLE. Contracts
53-23 between telecommunications <public> utilities designating areas to
53-24 be served and customers to be served by those utilities, when
53-25 approved by the commission, shall be valid and enforceable and
53-26 shall be incorporated into the appropriate areas of certification
53-27 <public convenience and necessity>.
54-1 Sec. 3.257. PRELIMINARY ORDER FOR CERTIFICATE. If a
54-2 telecommunications <public> utility desires to exercise a right or
54-3 privilege under a franchise or permit which it contemplates
54-4 securing but which has not as yet been granted to it, such
54-5 telecommunications <public> utility may apply to the commission for
54-6 an order preliminary to the issuance of the certificate. The
54-7 commission may thereupon make an order declaring that it will, on
54-8 application, under such rules as it prescribes, issue the desired
54-9 certificate on such terms and conditions as it designates, after
54-10 the telecommunications <public> utility has obtained the
54-11 contemplated franchise or permit. On presentation to the
54-12 commission of evidence satisfactory to it that the franchise or
54-13 permit has been secured by the telecommunications <public> utility,
54-14 the commission shall issue the certificate.
54-15 SECTION 27. Subtitle F, Title III, Public Utility Regulatory
54-16 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
54-17 Regular Session, 1995, is amended by adding Section 3.2555 to read
54-18 as follows:
54-19 Sec. 3.2555. DISCRIMINATION. (a) An applicant for a
54-20 certificate of operating authority or service provider certificate
54-21 of operating authority shall file with its application a sworn
54-22 statement that it has applied for any necessary municipal consent,
54-23 franchise, or permit required for the type of services and
54-24 facilities for which it has applied. Notwithstanding Section 1.103
54-25 of this Act, a municipality may not discriminate against a
54-26 telecommunications utility in relation to:
54-27 (1) the authorization or placement of
55-1 telecommunications facilities within public right-of-way;
55-2 (2) access to buildings; or
55-3 (3) municipal utility pole attachment rates, terms,
55-4 and conditions, to the extent not addressed by federal law.
55-5 (b) A public or private property owner may not:
55-6 (1) interfere with or prevent a telecommunications
55-7 utility that holds a certificate of convenience and necessity or
55-8 certificate of operating authority from installing on the owner's
55-9 property telecommunications services facilities requested by a
55-10 tenant;
55-11 (2) discriminate against one or more
55-12 telecommunications utilities holding certificates of convenience
55-13 and necessity or certificates of operating authority in relation to
55-14 the installation of telecommunications services facilities to a
55-15 tenant on the owner's property;
55-16 (3) demand or accept an inappropriate payment in any
55-17 form from a tenant or a telecommunications utility holding a
55-18 certificate of convenience and necessity or certificate of
55-19 operating authority for allowing the utility on or within the
55-20 owner's property; or
55-21 (4) discriminate against a tenant in any manner,
55-22 including rental charges, because of the telecommunications utility
55-23 from which the tenant receives telecommunications services.
55-24 (c) Notwithstanding Subsection (b) of this section, the
55-25 owner of public or private property may require that:
55-26 (1) the telecommunications utility:
55-27 (A) install the telecommunications facilities in
56-1 accordance with reasonable conditions necessary to protect the
56-2 safety, functioning, and appearance of the property and the
56-3 well-being of other tenants; and
56-4 (B) agree to indemnify the owner for any damage
56-5 caused by the installation, operation, or removal of the
56-6 facilities; and
56-7 (2) the tenant or the telecommunications utility bear
56-8 the entire cost of the installation, operation, or removal of the
56-9 facilities.
56-10 (d) Notwithstanding any other provision of law, the
56-11 commission has the jurisdiction necessary to:
56-12 (1) investigate a complaint relating to a violation of
56-13 this section, including a complaint relating to the conduct of a
56-14 municipality; and
56-15 (2) enforce this section.
56-16 (e) Notwithstanding any other provision contained in this
56-17 Act, any existing authority of a municipality to require permits,
56-18 fees, franchises, and consents from telecommunications utilities
56-19 for the use of the public streets, alleys, and rights-of-way and to
56-20 require contracts, leases, agreements, and easements for the use of
56-21 other public property is unaffected by this Act.
56-22 SECTION 28. Subtitle F, Title III, Public Utility Regulatory
56-23 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
56-24 Regular Session, 1995, is amended by adding Section 3.2571 to read
56-25 as follows:
56-26 Sec. 3.2571. FLEXIBILITY PLAN. After an application for a
56-27 certificate of convenience and necessity, certificate of operating
57-1 authority, or service provider certificate of operating authority
57-2 is granted or the commission determines that a certificate is not
57-3 needed for the services to be provided by the applicant, the
57-4 commission shall conduct proceedings it determines appropriate to
57-5 establish a transitional flexibility plan for the incumbent local
57-6 exchange company in the same area or areas as the new certificate
57-7 holder. However, a basic local telecommunications service price of
57-8 the incumbent local exchange company may not be increased until
57-9 four years following the grant of the certificate to the applicant,
57-10 except:
57-11 (1) as provided by this Act; or
57-12 (2) when the new applicant has completed its build-out
57-13 plan required by Section 3.2531.
57-14 SECTION 29. Subtitle F, Title III, Public Utility Regulatory
57-15 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
57-16 Regular Session, 1995, is amended by adding Section 3.2572 to read
57-17 as follows:
57-18 Sec. 3.2572. MARKET POWER TEST. (a) Notwithstanding any
57-19 other provision of this Act, on notice and hearing, the commission
57-20 may grant price deregulation of a specific service in a particular
57-21 geographic market if the commission determines that the incumbent
57-22 local exchange company or certificate of operating authority holder
57-23 that is a dominant provider is no longer dominant as to that
57-24 specific service in that particular geographic market. For
57-25 purposes of this section only, in determining a particular
57-26 geographic market, the commission shall consider economic and
57-27 technical conditions of the market. Once a service in a particular
58-1 market is price-deregulated under this section, the incumbent local
58-2 exchange company or certificate of operating authority holder that
58-3 is a dominant provider may set the rate for the deregulated service
58-4 at any level above the service's LRIC.
58-5 (b) To determine that an incumbent local exchange company or
58-6 certificate of operating authority holder that is a dominant
58-7 provider is no longer dominant as to a specific service in a
58-8 particular geographic market, the commission must find that an
58-9 effective competitive alternative exists and that the incumbent
58-10 local exchange company or certificate of operating authority holder
58-11 that is a dominant provider does not have sufficient market power
58-12 to control the price of the service within a specified geographic
58-13 area in a manner that is adverse to the public interest.
58-14 (c) The commission shall consider the following factors in
58-15 determining whether the incumbent local exchange company or
58-16 certificate of operating authority holder that is a dominant
58-17 provider is dominant as to a specific service in a particular
58-18 geographic area:
58-19 (1) number and size of telecommunications utilities or
58-20 other persons providing the same, equivalent, or substitutable
58-21 service in the relevant market and the extent to which the service
58-22 is available in the relevant market;
58-23 (2) ability of customers in the relevant market to
58-24 obtain the same, equivalent, or substitutable service at comparable
58-25 rates, terms, and conditions;
58-26 (3) ability of telecommunications utilities or other
58-27 persons to make the same, equivalent, or substitutable service
59-1 readily available in the relevant market at comparable rates,
59-2 terms, and conditions;
59-3 (4) proportion of the relevant market that is
59-4 currently being provided the service by a telecommunications
59-5 utility other than the incumbent local exchange company or
59-6 certificate of operating authority holder that is a dominant
59-7 carrier; and
59-8 (5) other relevant information deemed necessary by the
59-9 commission.
59-10 (d) The commission, on its own motion, or on a complaint
59-11 that the commission deems has merit, is granted all necessary power
59-12 and authority to assert or reassert regulation over a specific
59-13 service in a particular geographic market if the incumbent local
59-14 exchange company or certificate of operating authority holder that
59-15 is a dominant carrier is found to again be dominant or the provider
59-16 of services under a certificate of operating authority or service
59-17 provider certificate of operating authority is found to be dominant
59-18 as to that specific service in that particular geographic market.
59-19 (e) On request of an incumbent local exchange company or
59-20 certificate of operating authority holder that is a dominant
59-21 carrier in conjunction with an application under this section, the
59-22 commission shall conduct investigations to determine the existence,
59-23 impact, and scope of competition in the particular geographic and
59-24 service markets at issue and in connection therewith may call and
59-25 hold hearings, may issue subpoenas to compel the attendance of
59-26 witnesses and the production of papers and documents, has any other
59-27 powers, whether specifically designated or implied, necessary and
60-1 convenient to the investigation, and may make findings of fact and
60-2 decisions with respect to those markets.
60-3 (f) The parties to the proceeding shall be entitled to use
60-4 the results of the investigation required to be conducted under
60-5 Subsection (e) of this section in an application for pricing
60-6 flexibility.
60-7 (g) In conjunction with its authority to collect and compile
60-8 information, the commission may collect reports from a holder of a
60-9 certificate of operating authority or service provider certificate
60-10 of operating authority. Any information contained in the reports
60-11 claimed to be confidential for competitive purposes shall be
60-12 maintained as confidential by the commission, and the information
60-13 is exempt from disclosure under Chapter 552, Government Code. The
60-14 commission shall aggregate the information to the maximum extent
60-15 possible considering the purpose of the proceeding to protect the
60-16 confidential nature of the information.
60-17 SECTION 30. Section 3.258(a), Public Utility Regulatory Act
60-18 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
60-19 Regular Session, 1995, is amended to read as follows:
60-20 (a) Except as provided by this section, <or> Section 3.259,
60-21 or Section 3.2595 of this Act, a telecommunications utility that is
60-22 granted a certificate of convenience and necessity or certificate
60-23 of operating authority shall be required to offer to any customer
60-24 in its certificated area all basic local telecommunications
60-25 services <the holder of any certificate of public convenience and
60-26 necessity shall serve every consumer within its certified area> and
60-27 shall render continuous and adequate service within the area or
61-1 areas. In any event, as between a holder of a certificate of
61-2 convenience and necessity and a holder of a certificate of
61-3 operating authority, the holder of the certificate of convenience
61-4 and necessity has provider of last resort obligations.
61-5 SECTION 31. Section 3.259, Public Utility Regulatory Act of
61-6 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
61-7 Session, 1995, is amended to read as follows:
61-8 Sec. 3.259. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
61-9 holder of a certificate of public convenience and necessity,
61-10 certificate of operating authority, or service provider certificate
61-11 of operating authority shall refuse to serve a customer within its
61-12 certified area if the holder of the certificate is prohibited from
61-13 providing the service under Section 212.012 or 232.0047, Local
61-14 Government Code.
61-15 SECTION 32. Subtitle F, Title III, Public Utility Regulatory
61-16 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
61-17 Regular Session, 1995, is amended by adding Section 3.2595 to read
61-18 as follows:
61-19 Sec. 3.2595. DISCONTINUATION OF SERVICE. (a)
61-20 Notwithstanding Section 3.258 of this Act, a telecommunications
61-21 utility that holds a certificate of operating authority or service
61-22 provider certificate of operating authority may:
61-23 (1) discontinue an optional service that is not
61-24 essential to the provision of basic local telecommunications
61-25 service; or
61-26 (2) cease operations within its certificated area.
61-27 (b) Before such telecommunications utility discontinues an
62-1 optional service or ceases operations, the utility must provide
62-2 notice of the intended action to the commission and each affected
62-3 customer in the manner required by the commission.
62-4 (c) Such telecommunications utility is entitled to
62-5 discontinue an optional service on or after the 61st day after the
62-6 date on which the utility provides the notice required by
62-7 Subsection (b) of this section.
62-8 (d) Such telecommunications utility may not cease operations
62-9 within its certificated area unless:
62-10 (1) another provider of basic local telecommunications
62-11 services has adequate facilities and capacity to serve the
62-12 customers in the certificated area; and
62-13 (2) the commission authorizes the utility to cease
62-14 operations.
62-15 (e) The commission may not authorize such telecommunications
62-16 utility to cease operations under Subsection (d) of this section
62-17 before the 61st day after the date on which the utility provides
62-18 the notice required by Subsection (b) of this section. The
62-19 commission may enter an order under this subsection
62-20 administratively unless the commission receives a complaint from an
62-21 affected person.
62-22 SECTION 33. Section 3.260, Public Utility Regulatory Act of
62-23 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
62-24 Session, 1995, is amended to read as follows:
62-25 Sec. 3.260. SALE, ASSIGNMENT, OR LEASE OF CERTIFICATE. If
62-26 the commission determines that a purchaser, assignee, or lessee is
62-27 capable of rendering adequate service, a telecommunications
63-1 <public> utility may sell, assign, or lease a certificate of public
63-2 convenience and necessity or certificate of operating authority or
63-3 any rights obtained under the certificate. The sale, assignment,
63-4 or lease shall be on the conditions prescribed by the commission.
63-5 SECTION 34. Section 3.261, Public Utility Regulatory Act of
63-6 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
63-7 Session, 1995, is amended to read as follows:
63-8 Sec. 3.261. INTERFERENCE WITH OTHER TELECOMMUNICATIONS
63-9 <PUBLIC> UTILITY. If a telecommunications <public> utility in
63-10 constructing or extending its lines, plant, or system interferes or
63-11 attempts to interfere with the operation of a line, plant, or
63-12 system of any other utility, the commission may issue an order
63-13 prohibiting the construction or extension or prescribing terms and
63-14 conditions for locating the lines, plants, or systems affected.
63-15 SECTION 35. Subtitle F, Title III, Public Utility Regulatory
63-16 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
63-17 Regular Session, 1995, is amended by adding Section 3.2615 to read
63-18 as follows:
63-19 Sec. 3.2615. DIRECTORY LISTINGS AND ASSISTANCE. (a)
63-20 Companies providing local exchange telephone service shall
63-21 negotiate the terms and conditions of printed directory listings
63-22 and directory assistance within overlapping certificated areas.
63-23 (b) On complaint by the incumbent local exchange company or
63-24 the holder of the certificate of convenience and necessity,
63-25 certificate of operating authority, or service provider certificate
63-26 of operating authority, the commission may resolve disputes between
63-27 the parties and, if necessary, issue an order setting the terms and
64-1 conditions of the directory listings or directory assistance.
64-2 (c) This section does not affect the authority of an
64-3 incumbent local exchange company to voluntarily conduct
64-4 negotiations with an applicant for a certificate of convenience and
64-5 necessity, certificate of operating authority, or service provider
64-6 certificate of operating authority.
64-7 SECTION 36. Section 3.262, Public Utility Regulatory Act of
64-8 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
64-9 Session, 1995, is amended to read as follows:
64-10 Sec. 3.262. IMPROVEMENTS IN SERVICE; INTERCONNECTING
64-11 SERVICE; EXTENDED AREA TOLL-FREE TELEPHONE SERVICE. (a) After
64-12 notice and hearing, the commission may:
64-13 (1) order a public utility to provide specified
64-14 improvements in its service in a defined area, if service in such
64-15 area is inadequate or is substantially inferior to service in a
64-16 comparable area and it is reasonable to require the company to
64-17 provide such improved service;
64-18 (2) order two or more utilities to establish specified
64-19 facilities for the interconnecting service; <and>
64-20 (3) order a telephone company or telephone companies
64-21 to provide extended area toll-free service within a specified
64-22 metropolitan area where there is a sufficient community of interest
64-23 within the area and such service can reasonably be provided; and
64-24 (4) order one or more telephone companies to provide
64-25 optional extended area service within a specified calling area if
64-26 provision of the service is jointly agreed to by the
64-27 representatives of each affected telephone company and the
65-1 representatives of a political subdivision or subdivisions within
65-2 the proposed common calling area, provided that the proposed common
65-3 calling area has a single, continuous boundary.
65-4 (b) If more than one political subdivision is affected by a
65-5 proposed optional calling plan under Subsection (a)(4) of this
65-6 section, the agreement of each political subdivision is not
65-7 required. The commission may not adopt rules that diminish in any
65-8 manner the ability of a political subdivision or affected telephone
65-9 company to enter into joint agreements for optional extended area
65-10 calling service. In this subsection and in Subsection (a)(4) of
65-11 this section, "political subdivision" means a county or
65-12 municipality or an unincorporated town or village that has 275 or
65-13 more access lines.
65-14 SECTION 37. Subtitle F, Title III, Public Utility Regulatory
65-15 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
65-16 Regular Session, 1995, is amended by adding Section 3.2625 to read
65-17 as follows:
65-18 Sec. 3.2625. PAY TELEPHONES. (a) The right of a provider
65-19 of pay telephone service to set the provider's rates and charges
65-20 and the commission's authority over the pay telephone service rates
65-21 of incumbent local exchange companies is expressly limited by this
65-22 section.
65-23 (b) A provider of pay telephone service may not impose on
65-24 pay phone end users any charge for local directory assistance or
65-25 calls made under Chapter 771 or 772, Health and Safety Code.
65-26 (c) A provider of pay telephone service may not charge end
65-27 users more than 25 cents for each five minutes, or increment of
66-1 five minutes, of a pay telephone coin sent-paid call within the
66-2 local exchange company's toll-free local calling area; provided
66-3 that the total charge for the local call may not exceed the maximum
66-4 amount allowed by Section 3.306 of this Act. This subsection does
66-5 not prohibit the commission from establishing a higher charge for
66-6 each five minutes of use or increment of five minutes, following
66-7 the completion of the proceeding provided by Section 3.457 of this
66-8 Act. Notwithstanding a limit established by this subsection, the
66-9 commission may establish a limit on the access charge that may be
66-10 imposed for a local credit card, collect, or operator-handled call,
66-11 provided that the charge may not exceed 75 cents.
66-12 (d) A provider of pay telephone service may impose a set use
66-13 fee not exceeding 25 cents at the point at which the call is
66-14 initiated for each "1-800" type call made from a pay telephone,
66-15 provided that:
66-16 (1) except for pay telephones of local exchange
66-17 companies, the pay telephone is registered with the commission and
66-18 the provider certifies that the pay telephone is in compliance with
66-19 commission rules regarding the provision of pay telephone service;
66-20 (2) the imposition of the set use fee is not
66-21 inconsistent with federal law;
66-22 (3) the fee is not imposed for any local call, 9-1-1
66-23 call, or local directory assistance call;
66-24 (4) the fee is not imposed for a call that is covered
66-25 by the Telephone Operator Consumer Services Improvement Act of 1990
66-26 (47 U.S.C. Section 226);
66-27 (5) the pay telephone service provider causes to be
67-1 posted on each pay telephone instrument, in plain sight of the user
67-2 and in a manner consistent with existing commission requirements
67-3 for posting information, the fact that the surcharge will apply to
67-4 those calls; and
67-5 (6) the commission may not impose on a local exchange
67-6 company the duty or obligation to record the use of pay telephone
67-7 service, bill or collect for the use, or remit the fee provided by
67-8 this subsection to the provider of the service.
67-9 (e) A provider of pay telephone service, other than an
67-10 incumbent local exchange company, may not charge for credit card,
67-11 calling card, or live or automated operator-handled calls a rate or
67-12 charge that is an amount greater than the authorized rates and
67-13 charges published, in the eight newspapers having the largest
67-14 circulation in this state, on March 18, 1995, provided that the pay
67-15 phone rates of an incumbent local exchange company subject to
67-16 Subtitle H of this title are governed by that subtitle. The
67-17 published rates remain in effect until changed by the legislature.
67-18 (f) The commission shall adopt rules within 180 days from
67-19 the effective date of this section that require every provider of
67-20 pay telephone service not holding a certificate of convenience and
67-21 necessity to register with the commission. A provider of pay
67-22 telephone service must be registered with the commission in order
67-23 to do business in this state.
67-24 (g) The commission may order disconnection of service for up
67-25 to one year for repeat violations of commission rules.
67-26 (h) The commission may adopt rules regarding information to
67-27 be posted on pay telephone instruments, but those rules may not
68-1 require a provider of pay telephone service or an affiliate of a
68-2 provider to police the compliance with those rules by another
68-3 provider of pay telephone service.
68-4 (i) In this section, "provider of pay telephone service"
68-5 means a subscriber to customer-owned pay telephone service, an
68-6 incumbent local exchange company providing pay telephone service,
68-7 and any other entity providing pay telephone service.
68-8 SECTION 38. Section 3.263(a), Public Utility Regulatory Act
68-9 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
68-10 Regular Session, 1995, is amended to read as follows:
68-11 (a) The commission at any time after notice and hearing may
68-12 revoke or amend any certificate of convenience and necessity,
68-13 certificate of operating authority, or service provider certificate
68-14 of operating authority if it finds that the certificate holder has
68-15 never provided or is no longer providing service in the area or
68-16 part of the area covered by the certificate.
68-17 SECTION 39. Section 3.302, Public Utility Regulatory Act of
68-18 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
68-19 Session, 1995, is amended by adding Subsection (i) to read as
68-20 follows:
68-21 (i) A commercial mobile service provider may offer caller
68-22 identification services under the same terms and conditions
68-23 provided by Subsections (c)-(f) of this section.
68-24 SECTION 40. Section 3.303, Public Utility Regulatory Act of
68-25 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
68-26 Session, 1995, is amended to read as follows:
68-27 Sec. 3.303. INTEREXCHANGE SERVICES; INCUMBENT LOCAL EXCHANGE
69-1 COMPANIES' RATES. Incumbent local <Local> exchange companies'
69-2 rates for interexchange telecommunications services must be
69-3 statewide average rates unless the commission on application and
69-4 hearing orders otherwise. Nothing in this section limits an
69-5 incumbent <a> local exchange company's ability to enter into
69-6 contracts for high speed private line services of 1.544 megabits or
69-7 greater under the provisions of Section 3.051 of this Act.
69-8 SECTION 41. Sections 3.304(a) and (b), Public Utility
69-9 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
69-10 Legislature, Regular Session, 1995, are amended to read as follows:
69-11 (a) To address telephone calling needs between nearby
69-12 telephone exchanges, the commission shall initiate a rulemaking
69-13 proceeding to approve rules to provide for an expedited hearing to
69-14 allow the expanding of toll-free calling areas according to the
69-15 following criteria:
69-16 (1) Toll-free calling boundaries may only be expanded
69-17 under this section after the filing of a petition signed by the
69-18 lesser of five percent of the subscribers or 100 subscribers within
69-19 an exchange. If such a petition is filed with the commission, the
69-20 commission shall order the incumbent local exchange company to
69-21 provide for the balloting of its subscribers within the petitioning
69-22 exchange and, if there is an affirmative vote of at least 70
69-23 percent of those responding, the commission shall consider the
69-24 request.
69-25 (2) The commission shall provide for the expansion of
69-26 toll-free calling areas for each incumbent local exchange customer
69-27 in the petitioning exchange if the petitioning exchange serves not
70-1 more than 10,000 lines and if:
70-2 (A) the central switching office of the
70-3 petitioning exchange is located within 22 miles utilizing vertical
70-4 and horizontal geographic coordinates of the central switching
70-5 office of the exchange requested for toll-free calling service; or
70-6 (B) the petitioning exchange shall demonstrate
70-7 in its petition that it shares a community of interest with the
70-8 exchange requested for toll-free calling service. For purposes of
70-9 this paragraph, "community of interest" includes areas that have a
70-10 relationship because of schools, hospitals, local governments,
70-11 business centers, and other relationships the unavailability of
70-12 which would cause a hardship to the residents of the area but shall
70-13 <need> not include an area where the affected central offices are
70-14 more than 50 miles apart.
70-15 (3)(A) The incumbent local exchange company shall
70-16 recover all of its costs incurred and all loss of revenue from any
70-17 expansion of toll-free calling areas under this section through a
70-18 request other than a revenue requirement showing by:
70-19 (i) a monthly fee for toll-free calling
70-20 service of not more than $3.50 per line for residential customers
70-21 nor more than $7 per line for business customers for up to five
70-22 exchanges, together with an additional monthly fee of $1.50 per
70-23 line for each exchange in excess of five, whether obtained in one
70-24 or more petitions, to be collected from all such residential or
70-25 business customers in the petitioning exchange and only until the
70-26 incumbent local exchange company's next general rate case;
70-27 (ii) a monthly fee for toll-free calling
71-1 service for all of the incumbent local exchange company's local
71-2 exchange service customers in the state in addition to the
71-3 company's current local exchange rates; or
71-4 (iii) both (i) and (ii).
71-5 (B) An incumbent <A> local exchange company may
71-6 not recover regulatory case expenses under this section by
71-7 surcharging petitioning exchange subscribers.
71-8 (b)(1) The commission and an incumbent <a> local exchange
71-9 company are not required to comply with this section with regard to
71-10 a petitioning exchange or petitioned exchange if:
71-11 (A) the commission determines that there has
71-12 been a good and sufficient showing of a geographic or technological
71-13 infeasibility to serve the area;
71-14 (B) the incumbent local exchange company has
71-15 less than 10,000 lines;
71-16 (C) the petitioning or petitioned exchange is
71-17 served by a cooperative;
71-18 (D) extended area service or extended
71-19 metropolitan service is currently available between the petitioning
71-20 and petitioned exchanges; or
71-21 (E) the petitioning or petitioned exchange is a
71-22 metropolitan exchange.
71-23 (2) The commission may expand the toll-free calling
71-24 area into an exchange not within a metropolitan exchange but within
71-25 the local calling area contiguous to a metropolitan exchange that
71-26 the commission determines to have a community of interest
71-27 relationship with the petitioning exchange. For the purposes of
72-1 this section, metropolitan exchange, local calling area of a
72-2 metropolitan exchange, and exchange have the meanings and
72-3 boundaries as defined and approved by the commission on September
72-4 1, 1993. However, under no circumstances shall a petitioning or
72-5 petitioned exchange be split in the provision of a toll-free
72-6 calling area.
72-7 SECTION 42. Subtitle G, Title III, Public Utility Regulatory
72-8 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
72-9 Regular Session, 1995, is amended by adding Section 3.308 to read
72-10 as follows:
72-11 Sec. 3.308. CHARGE FOR EXTENDED AREA SERVICE. (a) An
72-12 incumbent local exchange company serving more than one million
72-13 access lines in this state that provides mandatory two-way extended
72-14 area service to customers for a separately stated monthly charge of
72-15 more than $3.50 per line for residential customers and $7 per line
72-16 for business customers shall file with the commission to reduce its
72-17 monthly rates for that extended area service to $3.50 per line for
72-18 residential customers and $7 per line for business customers. The
72-19 incumbent local exchange company shall recover all of its costs
72-20 incurred and all loss of revenue that results from implementation
72-21 of those rates in the manner prescribed by Section
72-22 3.304(a)(3)(A)(ii) of this Act.
72-23 (b) The commission and an incumbent local exchange company
72-24 are not required to comply with this section with regard to the
72-25 separately stated monthly charges for the provision of mandatory
72-26 two-way extended area service if the charge is for extended area
72-27 service in or into a metropolitan exchange or the charge is for
73-1 extended metropolitan service.
73-2 SECTION 43. (a) Subtitle G, Title III, Public Utility
73-3 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
73-4 Legislature, Regular Session, 1995, is amended by adding Section
73-5 3.309 to read as follows:
73-6 Sec. 3.309. (a) A private for-profit publisher of a
73-7 residential telephone directory that is distributed to the public
73-8 at minimal or no cost shall include in the directory a listing of
73-9 any toll-free and local telephone numbers of state agencies and
73-10 state public services and of each state elected official who
73-11 represents all or part of the geographical area for which the
73-12 directory contains listings.
73-13 (b) The listing required by this section must be clearly
73-14 identified and must be located or clearly referenced at the front
73-15 of the directory before the main listing of residential and
73-16 business telephone numbers. The listing is not required to exceed
73-17 a length equivalent to two 8-1/2-inch by 11-inch pages,
73-18 single-spaced in eight-point type.
73-19 (c) The commission may adopt rules to implement this
73-20 section, including rules specifying the format of the listing and
73-21 criteria for inclusion of agencies, services, and officials. The
73-22 commission, with the cooperation of other state agencies, shall
73-23 compile relevant information to ensure accuracy of information in
73-24 the listing and shall provide the information to a
73-25 telecommunications utility or telephone directory publisher within
73-26 a reasonable time after a request by the utility or publisher.
73-27 (b) This section takes effect September 1, 1995, and applies
74-1 only to a telephone directory published on or after September 1,
74-2 1996.
74-3 SECTION 44. Subtitle G, Title III, Public Utility Regulatory
74-4 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
74-5 Regular Session, 1995, is amended by adding Section 3.310 to read
74-6 as follows:
74-7 Sec. 3.310. A telecommunications utility or an affiliate of
74-8 that utility that publishes a residential or business telephone
74-9 directory that is distributed to the public shall publish the name
74-10 of each state senator or representative who represents all or part
74-11 of the geographical area for which the directory contains listings.
74-12 SECTION 45. Subtitle G, Title III, Public Utility Regulatory
74-13 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
74-14 Regular Session, 1995, is amended by adding Section 3.311 to read
74-15 as follows:
74-16 Sec. 3.311. ROLLOVER OR HUNTING LINE SERVICE. A local
74-17 exchange company must make available, at reasonable cost to the
74-18 consumer and at a tariffed rate, rollover or hunting line service
74-19 between foreign exchange service lines or extended metro lines and
74-20 local dialing service lines. The consumer may not be required to
74-21 purchase additional foreign exchange service lines or extended
74-22 metro lines in order to receive the rollover or hunting line
74-23 service.
74-24 SECTION 46. The Public Utility Regulatory Act of 1995, as
74-25 enacted by S.B. 319, Acts of the 74th Legislature, Regular Session,
74-26 1995, is amended by amending Subtitles H and I and adding Subtitles
74-27 J-O to read as follows:
75-1 SUBTITLE H. INCENTIVE REGULATION OF TELECOMMUNICATIONS
75-2 Sec. 3.351. POLICY. Given the current status of competition
75-3 in the telecommunications industry, it is the policy of the
75-4 legislature to:
75-5 (1) provide a framework for an orderly transition from
75-6 traditional return on invested capital regulation to a fully
75-7 competitive telecommunications marketplace where all
75-8 telecommunications providers compete on fair terms;
75-9 (2) preserve and enhance universal telecommunications
75-10 service at affordable rates;
75-11 (3) upgrade the telecommunications infrastructure of
75-12 this state;
75-13 (4) promote network interconnectivity; and
75-14 (5) promote diversity in the supply of
75-15 telecommunications services and innovative products and services
75-16 throughout the entire state, both urban and rural.
75-17 Sec. 3.352. ELECTION AND BASKETS OF SERVICES. (a) After
75-18 the enactment of this subtitle, an incumbent local exchange company
75-19 may notify the commission in writing of the company's election to
75-20 be regulated under this subtitle. The notice must state the
75-21 company's commitment to limit any increase in the rates charged for
75-22 a four-year period for the services included in Section 3.353 of
75-23 this Act and its infrastructure commitment as described by Section
75-24 3.358 of this Act.
75-25 (b)(1) The services provided by an incumbent local exchange
75-26 company electing incentive regulation under this subtitle
75-27 ("electing company") shall be initially classified into three
76-1 categories or "baskets":
76-2 (A) "Basket I: basic network services";
76-3 (B) "Basket II: discretionary services"; and
76-4 (C) "Basket III: competitive services."
76-5 (2) The commission shall have the authority to
76-6 reclassify a service from Basket I to Basket II or Basket III, or
76-7 from Basket II to Basket III, consistent with the criteria
76-8 prescribed by Section 3.357 of this Act.
76-9 (c) An electing company's telecommunications services shall
76-10 be regulated under this subtitle regardless of whether that company
76-11 is a "dominant carrier" as that term is defined by Section 3.002 of
76-12 this Act.
76-13 (d) If, subsequent to the enactment of this subtitle, an
76-14 incumbent local exchange company notifies the commission in writing
76-15 of its election to incentive regulation under this subtitle, the
76-16 company may not under any circumstances be subject to any
76-17 complaint, hearing, or determination as to the reasonableness of
76-18 its rates, its overall revenues, its return on invested capital, or
76-19 its net income. However, the company's implementation and
76-20 enforcement of the competitive safeguards required by Subtitle J of
76-21 this title are not excluded from a complaint, hearing, or
76-22 determination. Nothing herein restricts any consumer's right to
76-23 complain to the commission regarding quality of service, the
76-24 commission's right to enforce quality of service standards, or the
76-25 consumer's right to complain regarding the application of an
76-26 ambiguous tariff, and if the commission finds an ambiguity, the
76-27 commission's right to determine the proper application of the
77-1 tariff or to determine the proper rate if the tariff is found to
77-2 not apply, but this does not permit the commission to lower a
77-3 tariff rate except as specifically provided by this Act, to change
77-4 its interpretation of a tariff, or to change a tariff so as to
77-5 extend its application to new classes of customers.
77-6 Sec. 3.353. BASKET I: BASIC NETWORK SERVICES. (a) The
77-7 following services shall initially be classified as basic network
77-8 services in Basket I as of September 1, 1995:
77-9 (1) flat rate residential and business local exchange
77-10 telephone service, including primary directory listings and the
77-11 receipt of a directory and any applicable mileage or zone charges;
77-12 (2) tone dialing service;
77-13 (3) lifeline and tel-assistance services;
77-14 (4) service connection charges for basic services;
77-15 (5) direct inward dialing service for basic services;
77-16 (6) private pay telephone access service;
77-17 (7) call trap and trace service;
77-18 (8) access to 911 service where provided by a local
77-19 authority and access to dual party relay service;
77-20 (9) switched access service;
77-21 (10) interconnection to competitive providers;
77-22 (11) mandatory extended area service arrangements;
77-23 (12) mandatory extended metropolitan service or other
77-24 mandatory toll-free calling arrangements;
77-25 (13) interconnection for commercial mobile service
77-26 providers;
77-27 (14) directory assistance; and
78-1 (15) 1+ intraLATA message toll service.
78-2 (b) On an incumbent local exchange company's election under
78-3 Section 3.352 of this Act, increases in rates for basic network
78-4 services are permitted only with commission approval and only
78-5 within the parameters specified by Subsection (c) of this section
78-6 for four years following the election. Notwithstanding the
78-7 requirements prescribed by Section 3.457 of this Act, rates for
78-8 basic network services may be decreased at any time on the
78-9 initiative of the electing company to a floor above long run
78-10 incremental cost for switched access service or the appropriate
78-11 cost for any basic local telecommunications service, which shall be
78-12 long run incremental cost as to any incumbent local exchange
78-13 company that is required by the commission to perform long run
78-14 incremental cost studies or elects to perform those studies. This
78-15 section does not affect the charges permitted under Section 3.304,
78-16 3.308, or 3.608 of this Act. The rate decreases for basic network
78-17 services permitted by this section may not be replaced by increases
78-18 in the assessment for the regulatory transition fund (RTF) except
78-19 as specifically permitted by Section 3.610 of this Act. The
78-20 commission may not increase service standards applicable to the
78-21 provision of local exchange telephone service by an electing
78-22 company if the increased investment required to comply with the
78-23 increased standard exceeds in any one year 10 percent of the
78-24 incumbent local exchange company's average annual intrastate
78-25 additions in capital investment for the most recent five-year
78-26 period. In calculating the average, the incumbent local exchange
78-27 company shall exclude extraordinary investments made during that
79-1 five-year period. If the local exchange rates of an electing local
79-2 exchange company are reduced at its initiation before the adoption
79-3 of the pricing rule provided by Section 3.457 of this Act, the
79-4 total amount of the annual reduction shall be deducted from the
79-5 total amount of embedded non-traffic sensitive costs computed under
79-6 Section 3.610(h) of this Act.
79-7 (c)(1) Rates for basic network services may be changed in
79-8 the following circumstances and only with commission approval that
79-9 the proposed change is included in this subsection.
79-10 (2) On motion of an electing incumbent local exchange
79-11 company or on its own motion, the commission shall proportionally
79-12 adjust prices for services to reflect changes in Federal
79-13 Communications Commission separations affecting intrastate net
79-14 income by 10 percent or more.
79-15 (3) If, after 42 months after the date of the
79-16 incumbent local exchange company's election, an electing company in
79-17 this state with less than five million access lines is in
79-18 compliance with its infrastructure commitment, all quality of
79-19 services requirements, and all commission rules enacted under
79-20 Subtitle J of this title, on application of the incumbent local
79-21 exchange company, the commission may undertake a proceeding to
79-22 review the need for changes in the rates of services. The
79-23 application may request that the commission adjust rates, implement
79-24 new pricing plans, restructure rates, or rebalance revenues between
79-25 services to recognize changed market conditions and the effects of
79-26 competitive entry. The commission may use an index and a
79-27 productivity offset in determining these changes. The commission
80-1 may not order an increase in residential local exchange telephone
80-2 service that would cause those rates to increase by more than the
80-3 United States Consumer Price Index in any 12-month period. In no
80-4 case may the new monthly rate exceed the nationwide average of
80-5 local exchange telephone service rates for like services. A
80-6 company electing to receive regulatory transition fund (RTF)
80-7 receipts under Section 3.610 of this Act may not be permitted to
80-8 increase switched access rates under this subdivision.
80-9 (4) The commission may authorize increases permitted
80-10 by Section 3.610 of this Act.
80-11 (5) Notwithstanding the commitments made under Section
80-12 3.352 of this Act, a rate group reclassification occurring as a
80-13 result of access lines growth shall be allowed by the commission on
80-14 request of the electing company.
80-15 (d)(1) Except as provided by Section 3.2572 of this Act, the
80-16 regulation of basic network services of an electing company shall,
80-17 to the extent not inconsistent with this subtitle, be governed by:
80-18 (A) Title I of this Act;
80-19 (B) this subtitle;
80-20 (C) Subtitles A, B, C, F, G, J, K, and L of this
80-21 title;
80-22 (D) Sections 3.201, 3.202, 3.204, 3.210, 3.211,
80-23 3.215, 3.216, 3.217, 3.218, and 3.219 of this Act; and
80-24 (E) all commission procedures and rules not
80-25 inconsistent with this subtitle.
80-26 (2) Changes to the terms and conditions of the tariff
80-27 offering of a basic network service, other than price changes,
81-1 continue to require commission approval.
81-2 (e) The rates capped in Subsection (b) of this section as a
81-3 result of a company's election shall be the rates charged by the
81-4 company on June 1, 1995, without regard to proceedings pending
81-5 under Section 1.301 or 3.210 of this Act or under Subchapter G,
81-6 Chapter 2001, Government Code.
81-7 Sec. 3.354. RATE ADJUSTMENT PROCEDURES. (a) An electing
81-8 company may adjust its rates for basic network services under
81-9 Section 3.353(c) of this Act on notice to the commission. The
81-10 notice to the commission of a rate adjustment must be accompanied
81-11 with sufficient documentary support to demonstrate that the rate
81-12 adjustment meets the criteria prescribed by Section 3.353(c) of
81-13 this Act. The commission shall establish by rule or order the
81-14 documentation to be required under this subsection.
81-15 (b) Notice to customers shall be published once in a
81-16 newspaper of general circulation in the service area to be affected
81-17 within a reasonable time period after the notice for a rate
81-18 adjustment is provided to the commission, and shall be included in
81-19 or on the bill of each affected consumer in the next billing
81-20 subsequent to the filing with the commission. The notice shall
81-21 contain a title that includes the name of the company and the words
81-22 "NOTICE OF POSSIBLE RATE CHANGE." The notice shall contain the
81-23 following information:
81-24 (1) a statement that the consumer's rate may change;
81-25 (2) an estimate of the amount of the annual change for
81-26 the typical residential, business, or access consumers that would
81-27 result if the rate adjustment is approved by the commission, which
82-1 estimate shall be printed in a type style and size that are
82-2 distinct from and larger than the type style and size of the body
82-3 of the notice; and
82-4 (3) a statement that a consumer who wants to comment
82-5 on the rate adjustment or who wants additional details regarding
82-6 the rate adjustment may call or write the commission, which
82-7 statement must include the telephone number and address of the
82-8 commission and a statement that additional details will be provided
82-9 free of charge to the consumer at the expense of the company.
82-10 (c) The commission shall review the adjusted rates to ensure
82-11 that the proposed adjustment conforms to the requirements of
82-12 Section 3.353(c) of this Act. A rate adjustment under Section
82-13 3.353(c)(2), (3), (4), or (5) of this Act takes effect 90 days
82-14 after the date of completion of notice.
82-15 (d) An incumbent local exchange company that has five
82-16 percent or fewer of the total access lines in this state may adopt
82-17 the cost, if determined based on a long run incremental cost study,
82-18 for the same or substantially similar services offered by a larger
82-19 incumbent local exchange company without the requirement of
82-20 presenting long run incremental cost studies of its own.
82-21 (e) Either by complaint filed by an affected party or on the
82-22 commission's own motion at any time before the rate adjustment
82-23 takes effect, the commission may suspend the effective date of the
82-24 rate adjustment and hold a hearing to review a rate set under
82-25 Section 3.353(c)(2), (3), (4), or (5) of this Act and after the
82-26 review issue an order approving, modifying, or rejecting the rate
82-27 adjustment if it is not in compliance with the applicable
83-1 provisions. Any order modifying or rejecting the proposed rate
83-2 adjustment shall specify each reason why the proposed adjustment is
83-3 not in compliance with the applicable provisions of Section
83-4 3.353(c)(2), (3), (4), or (5) of this Act and the means by which
83-5 the proposed adjustment may be brought into compliance.
83-6 (f) Any rate restructure under Section 3.353(c) of this Act
83-7 shall follow the notice and hearing procedures prescribed by
83-8 Sections 3.211(a)-(c) of this Act, except as otherwise provided in
83-9 this section.
83-10 Sec. 3.355. BASKET II: DISCRETIONARY SERVICES. (a) Basket
83-11 II services include all services or functions provided by the
83-12 electing company that have not been granted pricing flexibility in
83-13 a particular geographic market and that have not been listed under
83-14 Basket I or III.
83-15 (b) The following services are initially classified as
83-16 discretionary services in Basket II as of September 1, 1995:
83-17 (1) 1+ intraLATA message toll services, where
83-18 intraLATA equal access is available;
83-19 (2) 0+, 0- operator services;
83-20 (3) call waiting, call forwarding, and custom calling
83-21 features not listed in Basket III;
83-22 (4) call return, caller ID, and call control options
83-23 not listed in Basket III;
83-24 (5) central office based PBX-type services;
83-25 (6) billing and collection services;
83-26 (7) integrated services digital network (ISDN)
83-27 services; and
84-1 (8) new services.
84-2 (c) The commission may reclassify a service from Basket I to
84-3 Basket II or Basket III, or from Basket II to Basket III,
84-4 consistent with the criteria prescribed by Section 3.357 of this
84-5 Act.
84-6 (d) The prices for each Basket II service or function
84-7 provided by the electing company shall be set above the LRIC cost.
84-8 The commission shall set the reasonable price ceiling over and
84-9 above LRIC cost, but the ceiling may not be set below or above the
84-10 rate in effect on September 1, 1995, without regard to proceedings
84-11 pending under Section 1.301 or 3.210 of this Act or under
84-12 Subchapter G, Chapter 2001, Government Code. The ceiling may be
84-13 raised only after the proceedings required under Subtitle J of this
84-14 title. Thereafter, on application by the electing company or on
84-15 the commission's own motion, the commission may change the price
84-16 ceiling but may not increase the ceiling more than 10 percent
84-17 annually. Within the range of the LRIC floor and the price
84-18 ceiling, the incumbent local exchange company may change the price
84-19 of each service, including using volume and term discounts, zone
84-20 density pricing, packaging of services, customer specific pricing,
84-21 and other promotional pricing flexibility, but shall notify the
84-22 commission of each change. The placement of a service in Basket II
84-23 does not preclude an incumbent local exchange company from using
84-24 any of the regulatory treatments authorized by or under Section
84-25 3.051 of this Act. Discounts and other forms of pricing
84-26 flexibility may not be preferential, prejudicial, or
84-27 discriminatory.
85-1 Sec. 3.356. BASKET III: COMPETITIVE SERVICES. (a) The
85-2 following services are Basket III competitive services and shall be
85-3 subject to pricing flexibility as of September 1, 1995:
85-4 (1) services described in the WATS tariff as of
85-5 January 1, 1995;
85-6 (2) 800 and foreign exchange services;
85-7 (3) private line service;
85-8 (4) special access service;
85-9 (5) services from public pay telephones;
85-10 (6) paging services and mobile services (IMTS);
85-11 (7) 911 premises equipment;
85-12 (8) speed dialing; and
85-13 (9) three-way calling.
85-14 (b) The commission may reclassify a service from Basket I to
85-15 Basket II or Basket III or from Basket II to Basket III, consistent
85-16 with the criteria prescribed by Section 3.357 of this Act.
85-17 (c) The electing company may set the price for the service
85-18 at any level above the service's LRIC, in compliance with the
85-19 imputation rules established under Subtitle J of this title.
85-20 Permissible pricing flexibility includes volume and term discounts,
85-21 zone density pricing, packaging of services, customer specific
85-22 contracts, and other promotional pricing flexibility, subject to
85-23 the requirements of Section 3.451 of this Act. Discounts and other
85-24 forms of pricing flexibility may not be preferential, prejudicial,
85-25 or discriminatory. However, an electing incumbent local exchange
85-26 company may not increase the price of a service in a geographic
85-27 area in which that service or a functionally equivalent service is
86-1 not readily available from another provider.
86-2 (d) Not later than January 1, 2000, the commission shall
86-3 initiate a review and evaluation of any incumbent local exchange
86-4 company electing treatment under this subtitle or Subtitle I of
86-5 this title to review and evaluate the effects of the election,
86-6 including consumer benefits, impact of competition, infrastructure
86-7 investments, and quality of service. The commission shall file a
86-8 report and its recommendations to the legislature by January 1,
86-9 2001, as to whether the incentive regulation plan should be
86-10 extended, modified, eliminated, or replaced with some other form of
86-11 regulation. The legislature, based on the commission's report, may
86-12 authorize the commission to take action to extend, modify,
86-13 eliminate, or replace the incentive plan provided by this subtitle
86-14 and Subtitle I of this title.
86-15 Sec. 3.357. TRANSFERRING SERVICES. (a) In determining
86-16 whether to transfer services from Basket I to Basket II or Basket
86-17 III, or from Basket II to Basket III, the commission shall
86-18 establish standards that consider factors including:
86-19 (1) availability of the service from other providers;
86-20 (2) the proportion of the market that currently
86-21 receives the service;
86-22 (3) the effect of the transfer on subscribers of the
86-23 service; and
86-24 (4) the nature of the service.
86-25 (b) The commission may not transfer a service from one
86-26 basket to another until full implementation of all competitive
86-27 safeguards required by Sections 3.452, 3.453, 3.454, 3.455, 3.456,
87-1 3.457, and 3.458 of this Act.
87-2 Sec. 3.358. INFRASTRUCTURE COMMITMENT. (a) A company
87-3 electing under Section 3.352 of this Act shall make an
87-4 infrastructure commitment in writing to the governor and
87-5 commission, committing to make a telecommunications infrastructure
87-6 investment in this state. The electing company shall invest in the
87-7 improvement and development of the state telecommunications
87-8 infrastructure in accordance with this section.
87-9 (b)(1) The infrastructure investment shall be made in the
87-10 company's service territory during the six-year period following
87-11 the notification by the incumbent local exchange company that it
87-12 will become an electing company. The infrastructure investment
87-13 shall include the network enhancements and special rates prescribed
87-14 by this subsection.
87-15 (2) On customer request, the electing company shall
87-16 provide broadband service capable of providing transmission speeds
87-17 of up to 45 megabits per second for customer applications to any
87-18 educational institution, as that term is defined by Section 3.605
87-19 of this Act, library, and public or not-for-profit hospital or
87-20 primary health care provider.
87-21 (3) Educational institutions, libraries, or hospitals
87-22 receiving the services provided under this section may not be
87-23 assessed special construction or installation charges.
87-24 (4) If the distance learning customer group has 10 or
87-25 fewer locations, the electing company shall provide a 35-percent
87-26 discount of its preferred customer monthly charges for equivalent
87-27 services for a direct connection of the service between each
88-1 location and the central office that serves as the operating hub
88-2 for the applicable distance learning customer group.
88-3 Notwithstanding the pricing flexibility authorized by this Act, the
88-4 electing company's rates for this service may not be increased for
88-5 four years from the date of election. An educational institution
88-6 or a library may elect this rate treatment or the discount provided
88-7 by Section 3.605 of this Act.
88-8 (5) If the telemedicine customer group has 10 or fewer
88-9 locations, the electing company shall provide a 35-percent discount
88-10 of its preferred customer monthly charges for equivalent services
88-11 for a direct connection of the service between each location and
88-12 the central office that serves as the operating hub for the
88-13 applicable distance learning customer group. Notwithstanding the
88-14 pricing flexibility authorized by this Act, the electing company's
88-15 rates for this service may not be increased for four years from the
88-16 date of election.
88-17 (6) On request for 1.544 megabits per second private
88-18 line or special access service, there shall be a 35-percent
88-19 discount of the applicable tariff or special access rate for
88-20 preferred monthly charges for equivalent services for educational
88-21 institutions and libraries. This discount is in lieu of the
88-22 discount provided by Section 3.605 of this Act.
88-23 (7) On request by schools or libraries in exchanges of
88-24 an electing company serving more than five million access lines in
88-25 which toll-free access to the Internet is not available, the local
88-26 exchange company shall make available a toll-free connection or
88-27 toll-free dialing arrangement for use by schools or libraries in
89-1 accessing the Internet in an exchange in which Internet access is
89-2 available on a toll-free basis. The connection or dialing
89-3 arrangement shall be provided at no charge to the school or library
89-4 until Internet access becomes available in the exchange of the
89-5 requesting school or library. The local exchange company is not
89-6 required to arrange for Internet access or to pay Internet charges
89-7 for the requesting schools or libraries.
89-8 (8) On request of a distance learning customer group
89-9 having 10 or fewer locations where there are different special
89-10 access or tariff rates for individual customers within the serving
89-11 group used to provide the basis for the discount, the electing
89-12 company shall request special access rates for the distance
89-13 learning customer group based on the most cost-effective rate
89-14 structure for the distance learning customer group.
89-15 (9) An electing company of one million access lines or
89-16 more that is obligated to make an investment and incur expenses to
89-17 accomplish the requirements of this section shall give investment
89-18 priority to serving rural areas, areas designated as critically
89-19 underserved, medically or educationally, and schools with high
89-20 percentages of economically disadvantaged students.
89-21 (10) For an electing company serving more than one
89-22 million access lines and fewer than five million access lines, the
89-23 company may include as infrastructure investments any investments
89-24 and expenses incurred in providing digital switching central
89-25 offices in exchanges having fewer than 20,000 access lines, but
89-26 only if those investments and expenses are incurred after September
89-27 1, 1995, and before December 31, 1998.
90-1 (c) For an electing company serving five million access
90-2 lines or more, the obligation to make investments and incur
90-3 expenses to accomplish the requirements of this section is equal to
90-4 $1.1 billion over the six-year period. If five years after that
90-5 company's election demand for broadband facilities as described by
90-6 Subsection (b) of this section has not required the company to
90-7 invest the entire amount specified by this subsection or to have
90-8 plans for that investment in the sixth year, the company and the
90-9 commission shall agree on a plan in which the company commits to
90-10 invest the remaining unspent balance in the infrastructure plan
90-11 described by this section, make a grant equal to the unspent
90-12 balance to the telecommunications infrastructure fund provided by
90-13 Section 3.606 of this Act, or both.
90-14 (d) For an electing company serving more than one million
90-15 access lines and fewer than 5 million access lines, the obligation
90-16 to make investments and incur expenses to accomplish the
90-17 requirements of this section is equal to $300 million over the
90-18 six-year period. If five years after that company's election
90-19 demand for broadband facilities as described by Subsection (b) of
90-20 this section has not required the company to invest the entire
90-21 amount specified by this subsection or to have plans for that
90-22 investment in the sixth year, the company and the commission shall
90-23 agree on a plan in which the company commits to invest the
90-24 remaining unspent balance in the infrastructure plan described by
90-25 this subsection, make a grant equal to the unspent balance to the
90-26 telecommunications infrastructure fund provided by Section 3.606 of
90-27 this Act, or both.
91-1 (e) An electing company that is not covered by a specific
91-2 infrastructure investment provision prescribed by this section
91-3 shall make the infrastructure investment required by Section 3.403
91-4 of this Act.
91-5 (f) Each electing company shall file a report with the
91-6 commission each year on the anniversary date of its election that
91-7 sets forth its progress on its infrastructure commitment. The
91-8 report shall include:
91-9 (1) the institutions requesting service under this
91-10 section;
91-11 (2) the institutions served under this section;
91-12 (3) investment and expense in the previous period and
91-13 cumulative for all periods; and
91-14 (4) any other information the commission considers
91-15 necessary.
91-16 (g) In this section:
91-17 (1) "Distance learning customer group" means a group
91-18 of educational institutions' premises or libraries, or both, that
91-19 conduct distance learning and information sharing programs or
91-20 library services with and among each other. The number of premises
91-21 of a group may be subject to the technical limitations of the
91-22 service.
91-23 (2) "Telemedicine customer group" means a group of
91-24 hospitals and primary health care facilities that conduct
91-25 telemedicine programs with and among each other. The number of
91-26 premises of a group may be subject to the technical limitations of
91-27 the service.
92-1 (h) This subsection is applicable to local exchange
92-2 companies having more than 150,000 access lines but fewer than
92-3 175,000 access lines on December 31, 1994, that have been required
92-4 to reduce local exchange rates by final order of the commission
92-5 entered after May 1, 1993. By application of the local exchange
92-6 company, the commission shall allow the company's basic local
92-7 exchange rates to be increased, if the company makes a commitment
92-8 to elect to Subtitle H or I of this title. The basic local
92-9 exchange rates shall be the rates in effect immediately prior to
92-10 the commission's final order, regardless of any subsequent orders
92-11 or appeals of the final order. Upon application by the local
92-12 exchange company, the commission shall within 60 days issue an
92-13 order establishing such rates. Within 30 days of the commission's
92-14 order, the local exchange company is required to elect to Subtitle
92-15 H or I of this title.
92-16 SUBTITLE I. INFRASTRUCTURE PLAN FOR RATE OF RETURN COMPANIES
92-17 Sec. 3.401. POLICY. It is the policy of the legislature
92-18 that those incumbent local exchange companies that do not elect to
92-19 be regulated under Subtitle H of this title should nevertheless
92-20 have incentives to deploy infrastructure that will benefit the
92-21 citizens of this state, while maintaining reasonable local rates
92-22 and universal service.
92-23 Sec. 3.402. ELECTION. (a) An incumbent local exchange
92-24 company serving less than five percent of the access lines in this
92-25 state that has not elected incentive regulation under Subtitle H of
92-26 this title may elect for an infrastructure plan under this subtitle
92-27 by notifying the commission in writing of its election under this
93-1 section.
93-2 (b)(1) For a period of six years after the election date, an
93-3 electing incumbent local exchange company may not seek an increase
93-4 in any rate previously established for that company under this Act,
93-5 except for the charges permitted under Sections 3.304, 3.308,
93-6 3.608, and 3.610 of this Act, and in the following circumstances
93-7 and only with commission approval that the proposed change is
93-8 included in this subsection.
93-9 (2) On motion of an electing incumbent local exchange
93-10 company or on its own motion, the commission shall adjust prices
93-11 for services to reflect changes in Federal Communications
93-12 Commission separations affecting intrastate net income by 10
93-13 percent or more.
93-14 (3) A rate group classification occurring as a result
93-15 of access lines growth shall be allowed by the commission on
93-16 request of the electing company.
93-17 (c) Section 3.354 of this Act applies to a rate change under
93-18 Subsection (b) of this section.
93-19 (d) If, subsequent to the enactment of this subtitle, an
93-20 incumbent local exchange company notifies the commission in writing
93-21 of its election to the alternative infrastructure plan under this
93-22 subtitle, the electing company may not for a period of six years
93-23 after the election date under any circumstances be subject to any
93-24 complaint or hearing as to the reasonableness of its rates, its
93-25 overall revenues, its return on invested capital, or its net income
93-26 if the electing incumbent local exchange company is complying with
93-27 its infrastructure commitment under Section 3.403 of this Act, nor
94-1 may an electing company be subject to a complaint that any
94-2 particular rate is excessive. However, the company's
94-3 implementation of the competitive safeguards required by Subtitle J
94-4 of this title are not excluded from a complaint, hearing, or
94-5 determination. Nothing herein restricts any consumer's right to
94-6 complain to the commission regarding quality of service, the
94-7 commission's right to enforce quality of service standards, or the
94-8 consumer's right to complain regarding the application of an
94-9 ambiguous tariff, and if the commission finds an ambiguity, the
94-10 commission's right to determine the proper application of the
94-11 tariff or to determine the proper rate if the tariff is found to
94-12 not apply, but this does not permit the commission to lower a
94-13 tariff rate except as specifically provided by this Act, to change
94-14 its interpretation of a tariff, or to change a tariff so as to
94-15 extend its application to new classes of customers. The commission
94-16 may not increase service standards applicable to the provision of
94-17 local exchange telephone service by an electing company if the
94-18 increased investment required to comply with the increased standard
94-19 exceeds in any one year 10 percent of the incumbent local exchange
94-20 company's average annual intrastate additions in capital investment
94-21 for the most recent five-year period. In calculating the average,
94-22 the incumbent local exchange company shall exclude extraordinary
94-23 investments made during the five-year period.
94-24 (e) On application by an electing incumbent local exchange
94-25 company, the commission may allow a company to withdraw its
94-26 election under this section but only for good cause. For the
94-27 purpose of this section, good cause includes only matters that were
95-1 beyond the control of the incumbent local exchange company.
95-2 (f) This section does not prohibit an incumbent local
95-3 exchange company from making an election under Section 3.352 of
95-4 this Act at any time, and if the company so elects, the
95-5 infrastructure commitment made under Section 3.403 of this Act
95-6 offsets any infrastructure commitment required in connection with
95-7 the Section 3.352 election.
95-8 (g) The rates capped by Subsection (b) of this section as a
95-9 result of a company's election shall be the rates charged by the
95-10 company at the date of its election without regard to proceedings
95-11 pending under Section 1.301 or 3.210 of this Act or under
95-12 Subchapter G, Chapter 2001, Government Code.
95-13 (h) In this section, "election date" means the date on which
95-14 the commission receives notice of election under this section.
95-15 Sec. 3.403. INFRASTRUCTURE COMMITMENT. (a) A company
95-16 electing under Section 3.402 of this Act shall make an
95-17 infrastructure commitment in writing to the governor and
95-18 commission, committing to make the following telecommunications
95-19 infrastructure investment in this state over a six-year period
95-20 following the company's election.
95-21 (b)(1) The infrastructure investment shall include the
95-22 network enhancements and special rates prescribed by this
95-23 subsection.
95-24 (2) On customer request, the electing company shall
95-25 provide broadband service capable of providing transmission speeds
95-26 of up to 45 megabits per second for customer applications to any
95-27 educational institution as that term is defined by Section 3.605 of
96-1 this Act, library, and public or not-for-profit hospital or primary
96-2 health care provider.
96-3 (3) Educational institutions, libraries, or hospitals
96-4 receiving the services provided under this section may not be
96-5 assessed special construction or installation charges.
96-6 (c) The electing company's infrastructure investment
96-7 obligation over the six-year period is an amount equal to 15
96-8 percent of the company's intrastate revenues in the year of
96-9 election.
96-10 (d) On request for 1.544 megabits per second private line or
96-11 special access service, there shall be a 35-percent discount of the
96-12 applicable tariff or special access rate for preferred monthly
96-13 charges for equivalent services for educational institutions and
96-14 libraries. This discount is in lieu of the discount provided by
96-15 Section 3.605 of this Act.
96-16 (e) If five years after that company's election demand for
96-17 broadband facilities as described by Subsection (b) has not
96-18 required the company to invest the entire amount specified by
96-19 Subsection (c) or to have plans for that investment in the sixth
96-20 year, the company and the commission shall agree on a plan in which
96-21 the company commits to invest the remaining unspent balance in the
96-22 infrastructure plan described by this section, make a grant equal
96-23 to the unspent balance to the telecommunications infrastructure
96-24 fund provided by Section 3.606 of this Act, or both.
96-25 (f) An electing company investment qualifies as an
96-26 infrastructure development commitment under this section only if
96-27 the investment is in addition to the company's annual capital
97-1 investment averaged over the three years preceding the date of
97-2 the election. However, the electing company may apply to the
97-3 commission for a determination that extraordinary expenditures
97-4 justify using a different method for determining the level of
97-5 investment above which the expenditure qualifies as an
97-6 infrastructure commitment under this section.
97-7 (g) Each electing company shall file a report with the
97-8 commission each year on the anniversary date of its election that
97-9 sets forth its progress on its infrastructure commitment. The
97-10 report shall include:
97-11 (1) the institutions requesting service under this
97-12 section;
97-13 (2) the institutions served under this section;
97-14 (3) investment and expense in the previous period and
97-15 cumulative for all periods; and
97-16 (4) any other information the commission considers
97-17 necessary.
97-18 (h) This subsection is applicable to local exchange
97-19 companies having more than 150,000 access lines but fewer than
97-20 175,000 access lines on December 31, 1994, that have been required
97-21 to reduce local exchange rates by final order of the commission
97-22 entered after May 1, 1993. By application of the local exchange
97-23 company, the commission shall allow the company's basic local
97-24 exchange rates to be increased, if the company makes a commitment
97-25 to elect to Subtitle H or I of this title. The basic local
97-26 exchange rates shall be the rates in effect immediately prior to
97-27 the commission's final order, regardless of any subsequent orders
98-1 or appeals of the final order. Upon application by the local
98-2 exchange company, the commission shall within 60 days issue an
98-3 order establishing such rates. Within 30 days of the commission's
98-4 order, the local exchange company is required to elect to Subtitle
98-5 H or I of this title.
98-6 SUBTITLE J. COMPETITIVE SAFEGUARDS
98-7 Sec. 3.451. COMPETITIVE SAFEGUARDS. (a) To the extent
98-8 necessary to ensure that competition in telecommunications is fair
98-9 to all participants and to accelerate the improvement of
98-10 telecommunications in the state, the commission shall ensure that
98-11 the rates and regulations of an incumbent local exchange company
98-12 are not unreasonably preferential, prejudicial, or discriminatory
98-13 but are equitable and consistent in application.
98-14 (b) Section 3.352(d) of this Act does not prevent the
98-15 commission from enforcing this subtitle.
98-16 (c) The commission has exclusive jurisdiction to implement
98-17 competitive safeguards.
98-18 Sec. 3.452. UNBUNDLING. (a) An incumbent local exchange
98-19 company shall, at a minimum, unbundle its network to the extent
98-20 ordered by the Federal Communications Commission.
98-21 (b) Before the adoption of the pricing rules required by
98-22 Section 3.457 of this Act, the commission shall hold a hearing and
98-23 adopt an order on the issue of requiring further unbundling of
98-24 local exchange company services.
98-25 (c) The commission may order further unbundling only after
98-26 considering the public interest and competitive merits of further
98-27 unbundling. The commission may proceed by rulemaking or, if
99-1 requested by a party, shall proceed by evidentiary hearing.
99-2 (d) Following unbundling, the commission may assign the
99-3 unbundled components to the appropriate Basket according to the
99-4 purposes and intents of those Baskets.
99-5 Sec. 3.453. RESALE. (a) An incumbent local exchange
99-6 company serving one million or more access lines or electing the
99-7 incentive regulation plan under Subtitle H of this title shall file
99-8 a usage sensitive loop resale tariff by September 1, 1995. An
99-9 incumbent local exchange company serving fewer than one million
99-10 access lines or not electing under Subtitle H of this title shall
99-11 file a resale tariff within 60 days of the date on which a
99-12 certificate of operating authority or service provider certificate
99-13 of operating authority is granted under Subtitle F of this title.
99-14 (b) "Loop" resale as used in this section means the purchase
99-15 of the local distribution channel or "loop" facility from the
99-16 incumbent local exchange company for the purpose of resale to end
99-17 user customers.
99-18 (c) The commission shall conduct any proceeding it
99-19 determines appropriate to determine the rates, terms, and
99-20 conditions for this tariff within 180 days of filing. The
99-21 commission may:
99-22 (1) only approve a usage sensitive rate that recovers
99-23 the total long run incremental cost of the loop on an unseparated
99-24 basis, plus an appropriate contribution to joint and common costs;
99-25 and
99-26 (2) only permit a holder of a certificate of
99-27 convenience or necessity, certificate of operating authority, or
100-1 service provider certificate of operating authority to purchase
100-2 from the resale tariff, except as provided by Subsection (f)(1) of
100-3 this section.
100-4 (d) On September 1, 1995, a provider of telecommunications
100-5 service may not impose any restriction on the resale or sharing of
100-6 any service for which it is not a dominant provider nor, as to any
100-7 incumbent local exchange company electing alternative regulation
100-8 under Subtitle H of this title, for any service entitled to
100-9 regulatory treatment under Basket III as described by Section 3.356
100-10 of this Act.
100-11 (e) A holder of a certificate of operating authority or
100-12 service provider certificate of operating authority has the
100-13 reciprocal obligation to permit local exchange companies to resell
100-14 its existing loop facilities at its regularly published rates if
100-15 the local exchange company has no loop facilities and has a request
100-16 for service.
100-17 (f)(1) The commission shall eliminate all resale
100-18 prohibitions in an electing incumbent local exchange company's
100-19 tariffs on:
100-20 (A) completion of the commission's costing and
100-21 pricing rulemaking and the establishment and funding of the
100-22 regulatory transition fund (RTF);
100-23 (B) completion of rate rebalancing of the
100-24 incumbent local exchange company rates required by Section 3.457 of
100-25 this Act; and
100-26 (C) removal of all prohibitions on incumbent
100-27 local exchange companies providing interLATA service.
101-1 (2) When the commission eliminates the resale
101-2 prohibitions under this subsection, it shall continue to prohibit
101-3 the resale of local exchange or directory assistance flat rate
101-4 services as a substitute for usage sensitive services. If the
101-5 commission finds that the rate for a particular service or function
101-6 will, as a result of the costing and pricing proceeding, be less
101-7 than the cost of providing the service or function and that the
101-8 difference in rate and cost will not be recovered from the
101-9 universal service fund, the service may be offered for resale only
101-10 to the same class of customer as sold to by the incumbent local
101-11 exchange company.
101-12 (g) Nothing herein alters resale or sharing arrangements
101-13 presently permitted in incumbent local exchange company tariffs
101-14 existing on September 1, 1995.
101-15 Sec. 3.454. IMPUTATION. (a) Not later than December 1,
101-16 1996, the commission shall adopt rules governing imputation of the
101-17 price of a service.
101-18 (b) Imputation is a regulatory policy the commission shall
101-19 apply to prevent an incumbent local exchange company from selling a
101-20 service or function to another telecommunications utility at a
101-21 price that is higher than the rate the incumbent local exchange
101-22 company implicitly includes in services it provides to its retail
101-23 customers.
101-24 (c) The commission may require imputation only of the price
101-25 of a service that is:
101-26 (1) not generally available from a source other than
101-27 the incumbent local exchange company; and
102-1 (2) necessary for the competitor to provide its
102-2 competing services.
102-3 (d) The commission may not require imputation of the price
102-4 to a local exchange telephone service while the price is capped
102-5 under Subtitle H or I of this title.
102-6 (e) The price of switched access service shall be imputed to
102-7 the price of each service for which switched access service is a
102-8 component until switched access service is competitively available.
102-9 (f) The commission may not require imputation on a
102-10 rate-element-by-element basis but only on a service-by-service
102-11 basis.
102-12 (g) For a service provided under a customer specific
102-13 contract for which imputation may be required under Subsection (c)
102-14 of this section, the commission may not require imputation on a
102-15 rate-element-by-element basis but only on a service-by-service
102-16 basis within the contract.
102-17 (h) The incumbent local exchange company shall demonstrate
102-18 that the price it charges for its retail service recovers the costs
102-19 of providing the service. For purposes of this subsection, the
102-20 costs of providing the service is defined as the sum of:
102-21 (1) specifically tariffed premium rates for the
102-22 noncompetitive services or service functions, or elements of these
102-23 noncompetitive services or service functions (or their functional
102-24 equivalent) that are used to provide the service;
102-25 (2) the total service long run incremental costs of
102-26 the competitive services or service functions that are used;
102-27 (3) any costs, not otherwise reflected in Subdivision
103-1 (1) or (2) of this subsection, that are specifically associated
103-2 with the provision of the service or group of services; and
103-3 (4) any cost or surcharge associated with an explicit
103-4 subsidy that is applied to all providers of the service for the
103-5 purpose of promoting universal service.
103-6 (i) The commission may waive an imputation requirement for
103-7 any public interest service such as 9-1-1 service and dual party
103-8 relay service if the commission determines that the waiver is in
103-9 the public interest.
103-10 Sec. 3.455. Telecommunications Number Portability. (a)
103-11 Because a uniform national number plan is valuable and necessary to
103-12 the state, the commission by rule shall adopt guidelines governing
103-13 telecommunications number portability and the assignment of
103-14 telephone numbers in a competitively neutral manner. The
103-15 commission rules may not be inconsistent with the rules and
103-16 regulations of the Federal Communications Commission regarding
103-17 telecommunications number portability.
103-18 (b) In this Act, "telecommunications number portability"
103-19 means the ability of a user of telecommunications services, to the
103-20 extent technically feasible, to retain an existing telephone number
103-21 without impairing the quality, reliability, or convenience of
103-22 service when changing from one provider of telecommunications
103-23 service to another provider.
103-24 (c) As an interim measure, the commission shall adopt
103-25 reasonable mechanisms to allow consumers to retain their telephone
103-26 numbers. At a minimum, these mechanisms shall include the use of
103-27 call forwarding functions and direct inward dialing for those
104-1 purposes. An incumbent local exchange company with one million
104-2 access lines or more shall file tariffs before November 1, 1995,
104-3 and the commission, before March 1, 1996, shall determine
104-4 reasonable rates to be charged for call forwarding functions,
104-5 direct inward dialing, and any other mechanism the commission
104-6 determines should be used as an interim number portability measure
104-7 by a new entrant. An incumbent local exchange company with fewer
104-8 than one million access lines where a certificate of operating
104-9 authority or a service provider certificate of operating authority
104-10 has been granted shall file tariffs within 60 days after the date
104-11 of a bona fide request, and the commission, within 60 days after
104-12 the date the tariffs are filed, shall determine reasonable rates to
104-13 be charged for call forwarding functions, direct inward dialing,
104-14 and any other mechanism the commission determines should be used as
104-15 an interim number portability measure by a new entrant.
104-16 Sec. 3.456. Expanded Interconnection. (a) Not later than
104-17 September 1, 1996, the commission shall adopt rules for expanded
104-18 interconnection that:
104-19 (1) are consistent with the rules and regulations of
104-20 the Federal Communications Commission relating to expanded
104-21 interconnection;
104-22 (2) treat intrastate private line services as special
104-23 access service; and
104-24 (3) provide that if an incumbent local exchange
104-25 company is required to provide expanded interconnection to another
104-26 local exchange company, the second local exchange company shall, in
104-27 a like manner, provide expanded interconnection to the first
105-1 company.
105-2 (b) This section does not prohibit the commission from
105-3 completing a proceeding pending on April 1, 1995, that addresses
105-4 expanded interconnection.
105-5 Sec. 3.457. COSTING AND PRICING. (a)(1) The commission
105-6 shall complete a pricing rulemaking and adopt a pricing rule by
105-7 April 1, 1997. Companies subject to that rule shall file cost
105-8 studies and necessary supporting data not later than November 1,
105-9 1996, unless specific waivers are authorized.
105-10 (2) The commission has 85 days after the date a cost
105-11 study is submitted to administratively approve it or to order that
105-12 changes be made, except that the review process may be suspended
105-13 for 30 days upon motion of the presiding examiner or for good cause
105-14 shown by any party that demonstrates a justiciable interest. Such
105-15 request must be made within the first 45 days of the review
105-16 process. If the commission delegates approval of the cost study to
105-17 an administrative law judge or hearings examiner, the judge or
105-18 examiner has 85 days, or 115 days if suspended, to administratively
105-19 approve it or to order that changes be made. The commission may
105-20 not conduct a contested case to approve a cost study submitted
105-21 under this section.
105-22 (3) Any party may appeal to the commission an
105-23 administrative determination by an administrative law judge or
105-24 hearings examiner under Subdivision (2) of this subsection within
105-25 five days after the date of notification of the determination. The
105-26 commission shall rule on the appeal within 30 days after the date
105-27 it receives the appeal.
106-1 (4) If the commission or an administrative law judge
106-2 or hearings examiner orders a cost study to be changed, the judge
106-3 or examiner shall order the company to make those changes within a
106-4 period that is commensurate with the complexity of the study and
106-5 the need to complete the cost studies in a timely manner.
106-6 (5) The parties shall be permitted expedited discovery
106-7 after a cost study is submitted. The commission shall fairly
106-8 evaluate the comments or pleadings filed by any party regarding the
106-9 cost study.
106-10 (b) In adopting the pricing rule, the commission shall:
106-11 (1) ensure that prices for monopoly services remain
106-12 affordable;
106-13 (2) ensure that prices for competitive services may
106-14 not be:
106-15 (A) unreasonably preferential, prejudicial, or
106-16 discriminatory;
106-17 (B) subsidized either directly or indirectly by
106-18 noncompetitive services; or
106-19 (C) predatory or anticompetitive; and
106-20 (3) require that each service recover the appropriate
106-21 cost, including appropriate joint and common costs, of any and all
106-22 facilities and functions used to provide that service.
106-23 (c) The commission shall allow an incumbent local exchange
106-24 company that is not a Tier 1 local exchange company as of September
106-25 1, 1995, at that company's option, to adopt the cost studies
106-26 approved by the commission for a Tier 1 local exchange company.
106-27 Sec. 3.458. INTERCONNECTION. (a) "Interconnection" for the
107-1 purposes of this section means the termination of local
107-2 intraexchange traffic of another local exchange company or holder
107-3 of a service provider certificate of operating authority within the
107-4 local calling area of the terminating local exchange company or
107-5 certificate holder for calls that originate and terminate in this
107-6 state. The provisions of this section do not govern rates for the
107-7 existing termination of cellular or interexchange traffic.
107-8 (b) The commission shall require all providers of
107-9 telecommunications services to maintain interoperable networks.
107-10 Telecommunications providers shall negotiate network
107-11 interconnectivity, charges, terms, and conditions, and in that
107-12 event the commission shall approve the interconnection rates. The
107-13 commission may resolve disputes filed by a party to those
107-14 negotiations.
107-15 (c) In the absence of a mutually agreed compensation rate
107-16 negotiated under Subsection (b) of this section, each carrier shall
107-17 reciprocally terminate the other carrier's traffic at no charge for
107-18 the first nine months after the date on which the first call is
107-19 terminated between the carriers.
107-20 (d) The commission shall, within the nine-month period
107-21 prescribed by Subsection (c) of this section, complete a proceeding
107-22 to establish reciprocal interconnection rates, terms, and
107-23 conditions. The commission shall establish reciprocal
107-24 interconnection rates, terms, and conditions based solely on the
107-25 commission proceeding. In establishing the initial interconnection
107-26 rate, the commission may not require cost studies from the new
107-27 entrant. Not earlier than three years after the date on which the
108-1 first call is terminated between the carriers, the commission may,
108-2 if the commission receives a complaint, require cost studies by a
108-3 new entrant for the purpose of establishing interconnection rates.
108-4 (e) The incumbent local exchange company may adopt the
108-5 interconnection rates approved for a larger incumbent local
108-6 exchange company without the commission requirement of additional
108-7 cost justification. If an incumbent local exchange company does
108-8 not adopt the interconnection rates of a larger company, or
108-9 negotiates under Subsection (b) of this section, the company is
108-10 governed by Subsections (c) and (d) of this section. If the
108-11 incumbent local exchange company adopts the interconnection rates
108-12 of another incumbent local exchange company, the new entrant may
108-13 adopt those rates as the new entrant's interconnection rates. If
108-14 the incumbent local exchange company elects to file its own tariff,
108-15 the new entrant must also file its own interconnection tariff.
108-16 (f) The commission may make generic rules and set policies
108-17 governing interconnection arrangements. The commission may
108-18 establish rules that are responsive to changes in federal law or
108-19 developments in the local exchange market.
108-20 (g) The commission may not use interconnection rates under
108-21 this section as a basis to alter interconnection rates for other
108-22 services.
108-23 (h) The commission has exclusive jurisdiction over any
108-24 holder of a certificate of convenience and necessity, certificate
108-25 of operating authority, or service provider certificate of
108-26 operating authority for the determination of rates, terms, and
108-27 conditions for interconnection.
109-1 Sec. 3.459. INCUMBENT LOCAL EXCHANGE COMPANY REQUIREMENTS.
109-2 (a) An incumbent local exchange company may not unreasonably:
109-3 (1) discriminate against another provider by refusing
109-4 access to the local exchange;
109-5 (2) refuse or delay interconnections to another
109-6 provider;
109-7 (3) degrade the quality of access provided to another
109-8 provider;
109-9 (4) impair the speed, quality, or efficiency of lines
109-10 used by another provider;
109-11 (5) fail to fully disclose in a timely manner on
109-12 request all available information necessary for the design of
109-13 equipment that will meet the specifications of the local exchange
109-14 network; or
109-15 (6) refuse or delay access by any person to another
109-16 provider.
109-17 (b) This section may not be construed to require an
109-18 incumbent local exchange company to provide expanded
109-19 interconnection as that term is defined by the Federal
109-20 Communications Commission.
109-21 (c) Nothing in this Act shall require the commission to
109-22 change the rate treatment for Bulletin Board Systems in residences
109-23 established by the commission in Docket No. 8387.
109-24 Sec. 3.460. COMMISSION AUTHORITY. (a) The commission has
109-25 all authority necessary to establish procedures with respect to the
109-26 policies stated in Sections 3.451, 3.452, 3.453, 3.454, 3.455,
109-27 3.456, 3.457, and 3.458 of this Act and to resolve any disputes
110-1 arising under those policies.
110-2 (b) The commission has the authority to and shall adopt
110-3 procedures for the processing of proceedings under Sections 3.452
110-4 and 3.453 of this Act, including the authority to limit discovery
110-5 and, except for the office, align parties having similar positions
110-6 for purposes of cross-examination. In adopting procedures under
110-7 this section and in resolving disputes, the commission shall
110-8 consider the impact on consumers, competitors, and the incumbent
110-9 local exchange company. The commission may not implement, by order
110-10 or rule, any requirement that is contrary to any applicable federal
110-11 rule or law.
110-12 Sec. 3.461. APPLICATIONS AND RULES. The obligations
110-13 prescribed by Sections 3.452, 3.453, 3.455, 3.456, and 3.458 of
110-14 this Act may not, until September 1, 1998, be applied to incumbent
110-15 local exchange companies serving fewer than 31,000 access lines.
110-16 After September 1, 1998, the obligations prescribed by Sections
110-17 3.452, 3.453, and 3.456 of this Act may be applied only on a bona
110-18 fide request from a certified telecommunications utility. In
110-19 applying these rules to these incumbent local exchange companies,
110-20 the commission may modify the rules as it finds in the public
110-21 interest.
110-22 Sec. 3.462. REVIEW OF IMPLEMENTATION. The provisions of
110-23 Sections 3.452, 3.454, and 3.457 of this Act do not initially apply
110-24 to incumbent local exchange companies that as of September 1, 1995,
110-25 have 31,000 or more access lines in this state but fewer than one
110-26 million access lines in this state. The obligations prescribed by
110-27 those sections may be applied to such companies only on a bona fide
111-1 request from a holder of a certificate of operating authority or
111-2 service provider certificate of operating authority. In applying
111-3 these rules to these incumbent local exchange companies, the
111-4 commission may modify the rules as it finds in the public interest.
111-5 Sec. 3.463. INFRASTRUCTURE SHARING. (a) The commission
111-6 shall prescribe rules that require a local exchange company to
111-7 share public switched network infrastructure and technology with a
111-8 requesting local exchange company that lacks economies of scale or
111-9 scope, for the purpose of enabling that requesting company to
111-10 provide telecommunications services in the geographic areas to
111-11 which the requesting company is designated as the sole carrier of
111-12 last resort.
111-13 (b) The rules governing the sharing:
111-14 (1) may not require a local exchange company to make a
111-15 decision that is uneconomic or adverse to the public;
111-16 (2) shall permit, but not require, joint ownership and
111-17 operation of public switched network infrastructure and services by
111-18 or among the local exchange companies sharing infrastructure; and
111-19 (3) shall establish conditions that promote
111-20 cooperation between local exchange companies.
111-21 SUBTITLE K. BROADCASTER SAFEGUARDS
111-22 Sec. 3.501. CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI).
111-23 (a) In this section:
111-24 (1) "Specific customer proprietary network
111-25 information" (specific CPNI) means:
111-26 (A) information that relates to the quantity,
111-27 technical configuration, type, destination, or amount of use of
112-1 voice or data telecommunications services subscribed to by any
112-2 customer of a telecommunications utility, but excluding wireless
112-3 telecommunications providers, and is made available to the utility
112-4 by the customer solely by virtue of the utility-customer
112-5 relationship;
112-6 (B) information contained in the bills relating
112-7 to telecommunications services received by a customer of a
112-8 telecommunications utility; and
112-9 (C) any other information concerning the
112-10 customer as is available to the telecommunications utility by
112-11 virtue of the customer's use of the telecommunications utility
112-12 service. The term does not include subscriber list information.
112-13 (2) "Subscriber list information" means any
112-14 information that:
112-15 (A) identifies the listed names of subscribers
112-16 of a telecommunications utility or those subscribers' telephone
112-17 numbers, addresses, or primary advertising classifications, or any
112-18 combination of those listed names, numbers, addresses, or
112-19 classifications; and
112-20 (B) the telecommunications utility or an
112-21 affiliate has published or accepted for future publication.
112-22 (b) Except as preempted by the Federal Communications
112-23 Commission, a telecommunications utility may not use specific CPNI
112-24 for commercial purposes other than the sale, provision, or billing
112-25 and collection of telecommunications or enhanced services. Nothing
112-26 herein prohibits the use of specific CPNI with the customer's
112-27 consent or the provision of specific CPNI to an affiliate
113-1 telecommunications provider.
113-2 (c) Not later than September 1, 1996, the commission shall
113-3 adopt rules that are consistent with rules on this subject adopted
113-4 by the Federal Communications Commission. Rules adopted under this
113-5 section shall:
113-6 (1) require each telecommunications utility to notify
113-7 each subscriber annually, through means approved by the commission,
113-8 of the subscriber's right to reject the utility's use of specific
113-9 CPNI for purposes of marketing other services;
113-10 (2) in the event the Federal Communications Commission
113-11 adopts new CPNI rules that no longer preempt a state's authority to
113-12 adopt inconsistent rules, the commission shall institute a
113-13 proceeding regarding the appropriate use of CPNI by all
113-14 telecommunications utilities, provided that any rule, policy, or
113-15 order adopted by the commission may not be discriminatory in its
113-16 application to telecommunications utilities; and
113-17 (3) require each telecommunications utility, if the
113-18 utility makes nonproprietary aggregate CPNI available to its
113-19 affiliates, to make that information available on the same terms
113-20 and conditions to unaffiliated entities.
113-21 (d) The commission may not implement any rules regarding
113-22 CPNI applicable to an incumbent local exchange company having
113-23 100,000 or fewer access lines in service in this state that are
113-24 more burdensome to the company than the CPNI rules of the Federal
113-25 Communications Commission, except that this prohibition does not
113-26 apply to uses of CPNI that are unrelated to telecommunications
113-27 services or products.
114-1 Sec. 3.502. AUDIO VIDEO. (a) In this Act:
114-2 (1) "Video programming" means programming provided by
114-3 or generally considered comparable to programming provided by a
114-4 television broadcast station as defined by the Federal
114-5 Communications Commission under Section 602, Communications Act of
114-6 1934 (47 U.S.C. Section 522).
114-7 (2) "Audio programming" means programming provided by
114-8 or generally considered comparable to programming provided by an AM
114-9 or FM broadcast station. However, the term does not include any
114-10 audio-related services of the type offered by the incumbent local
114-11 exchange company as of September 1, 1995.
114-12 (b) An incumbent local exchange company may not provide
114-13 audio or video programming in this state. However, nothing herein
114-14 prohibits a separate corporate affiliate of an incumbent local
114-15 exchange company from providing audio or video programming.
114-16 (c) A separate corporate affiliate of an incumbent local
114-17 exchange company providing audio or video programming:
114-18 (1) shall obtain telecommunications services from its
114-19 affiliate incumbent local exchange company at tariffed rates, or if
114-20 those services are not provided under a tariff, at the fair market
114-21 value or, in the event there is no fair market value or that value
114-22 is less than long run incremental cost (LRIC), then the rate is
114-23 equal to the service's LRIC;
114-24 (2) shall purchase, use, rent, or access information,
114-25 services, space, or devices that are not telecommunications
114-26 services from its affiliate incumbent local exchange company
114-27 consistent with the affiliate transaction rules promulgated by the
115-1 Federal Communications Commission then in effect, provided that in
115-2 no case shall those transactions be valued at less than the greater
115-3 of net book value or fair market value, whichever is applicable;
115-4 (3) shall maintain books, records, and accounts that
115-5 are separate from those of an incumbent local exchange company,
115-6 which books, records, and accounts shall be kept in accordance with
115-7 generally accepted accounting principles;
115-8 (4) shall prepare financial statements that are not
115-9 consolidated with those of an incumbent local exchange company,
115-10 provided, however, that financial statements and consolidated tax
115-11 returns may be prepared that consolidate the operation of the
115-12 separate corporate affiliate with a parent company and its other
115-13 subsidiaries;
115-14 (5) may not incur debt in a manner that would permit a
115-15 creditor on default to have recourse to the assets of the incumbent
115-16 local exchange company;
115-17 (6) may not use the names, trademarks, or service
115-18 marks of the incumbent local exchange company, but this does not
115-19 prohibit the use of those names or marks if they are used in common
115-20 with the parent, affiliate, or owner of the incumbent local
115-21 exchange company;
115-22 (7) shall perform its marketing and sales functions
115-23 and operation in compliance with Open Network Architecture and the
115-24 affiliate transaction rules promulgated by the Federal
115-25 Communications Commission then in effect;
115-26 (8) may not have any directors, officers, or employees
115-27 in common with the incumbent local exchange company; and
116-1 (9) shall maintain a separate corporate entity from
116-2 the incumbent local exchange company.
116-3 (d) As to its separate affiliate providing video or audio
116-4 programming, an incumbent local exchange company:
116-5 (1) may not develop a rate for a telecommunications
116-6 service or deploy a telecommunications service to primarily benefit
116-7 its separate affiliate for the affiliate's video or audio
116-8 programming unless that rate or service is available on a
116-9 nondiscriminatory basis to all purchasers;
116-10 (2) may not be unreasonably preferential in the
116-11 deployment of telecommunications services for its separate
116-12 affiliates' audio or video programming;
116-13 (3) may not enter into customer specific contracts for
116-14 the provision of tariffed telecommunications services with its
116-15 separate affiliate unless substantially the same terms and
116-16 conditions of the contract are generally available to nonaffiliated
116-17 interests;
116-18 (4) shall maintain and file with the commission copies
116-19 of all contracts or arrangements between the incumbent local
116-20 exchange company and the separate affiliate and report the contract
116-21 amount for each cash and noncash transaction with the separate
116-22 affiliate, including payments for costs of any goods and services
116-23 or any property right or thing or for interest expense;
116-24 (5) may not transfer assets to the separate affiliate
116-25 unless those assets are priced no lower than assets that are
116-26 available in an arm's-length transaction to third parties;
116-27 (6) shall value any assets that are transferred to a
117-1 separate affiliate at the greater of net book or fair market value;
117-2 (7) shall value any assets that are transferred to it
117-3 by its separate affiliate at the lesser of net book value or fair
117-4 market value except instances where Federal Communications
117-5 Commission or commission rules or regulations permit in-arrears
117-6 payment for tariffed telecommunications services or the investment
117-7 by an affiliate of dividends or profits derived from the incumbent
117-8 local exchange company;
117-9 (8) shall comply with all applicable Federal
117-10 Communications Commission cost and other accounting rules;
117-11 (9) may not have any directors, officers, or employees
117-12 in common with the separate affiliate;
117-13 (10) may not own any property in common with the
117-14 separate affiliate; and
117-15 (11) shall provide, if it offers telecommunications
117-16 equipment or services to audio and video programming providers,
117-17 those services:
117-18 (A) at just and reasonable rates that are
117-19 tariffed, so long as the commission rules require those tariffs,
117-20 under nondiscriminatory terms and conditions; and
117-21 (B) if the equipment and services are not
117-22 subject to regulation, on similar terms and conditions to all video
117-23 or audio programming providers.
117-24 (e) In addition to the requirements and prohibitions
117-25 prescribed by Subsection (d) of this section, an incumbent local
117-26 exchange company shall, if it offers billing and collection
117-27 services to nonaffiliated audio and video programming providers,
118-1 provide those services under nondiscriminatory terms and
118-2 conditions. Nothing herein requires an incumbent local exchange
118-3 company to offer billing and collection service to nonaffiliated
118-4 programmers, and an incumbent local exchange company may exclude
118-5 certain classes of programmers from its billing and collection
118-6 services.
118-7 (f) An incumbent local exchange company shall have a
118-8 compliance audit performed every three years by an independent
118-9 accounting firm. The audit shall be conducted for the purpose of
118-10 determining whether the incumbent local exchange company, during
118-11 the preceding three years, is in compliance with all of the
118-12 requirements imposed by this section regarding the incumbent local
118-13 exchange company. The independent accounting firm shall file the
118-14 report with the commission. If the report concludes that the
118-15 incumbent local exchange company is not in compliance with any
118-16 portion of this section, the commission shall institute appropriate
118-17 action against the incumbent local exchange company. The report
118-18 shall be considered commercial or financial information that is
118-19 confidential by statute under Chapter 552, Government Code.
118-20 (g) Except as otherwise specifically provided by this Act,
118-21 the commission's jurisdiction over affiliates of incumbent local
118-22 exchange companies that are audio and video programmers is limited
118-23 to the requirements of this section and does not extend to subjects
118-24 not specifically provided herein.
118-25 (h) This section does not apply to an incumbent local
118-26 exchange company having 100,000 or fewer total access lines in
118-27 service in this state.
119-1 (i) A company to which this section applies may petition the
119-2 commission for a waiver from any of the requirements imposed
119-3 herein. The commission shall grant the waiver if it is in the
119-4 public interest to do so, taking into account whether the need for
119-5 the restriction still exists in the market involved. The
119-6 commission may revoke any waiver granted if it is shown that
119-7 conditions under which the waiver was granted have materially
119-8 changed and it is in the public interest to do so.
119-9 Sec. 3.503. ADVERTISING. (a) Advertising agency services
119-10 include the functions generally performed by a general advertising
119-11 agency, including advertising development, advertising purchase,
119-12 advertising consultation, advertising copywriting, and advertising
119-13 research.
119-14 (b) An incumbent local exchange company may not sell
119-15 advertising agency services to nonaffiliates in this state.
119-16 Nothing herein prohibits a local exchange company from:
119-17 (1) any activities to promote or sell
119-18 telecommunications services and equipment, including voice, data,
119-19 video dial tone, video programming, audio programming, cellular,
119-20 interactive media, software, and other related services and
119-21 equipment; or
119-22 (2) any activities that seek to enhance or promote the
119-23 use of the telecommunications network.
119-24 (c) A separate corporate affiliate of an incumbent local
119-25 exchange company may engage in advertising agency activities, but
119-26 in the conduct of that business a separate corporate affiliate:
119-27 (1) shall maintain books, records, and accounts that
120-1 are separate from those of an incumbent local exchange company,
120-2 which books, records, and accounts shall be kept in accordance with
120-3 generally accepted accounting principles;
120-4 (2) shall prepare financial statements that are not
120-5 consolidated with those of an incumbent local exchange company
120-6 provided, however, that financial statements and consolidated tax
120-7 returns may be prepared that consolidate the operation of the
120-8 separate corporate affiliate with a parent company and its other
120-9 subsidiaries;
120-10 (3) may not incur debt in a manner that would permit a
120-11 creditor on default to have recourse to the assets of the incumbent
120-12 local exchange company;
120-13 (4) may not have any directors, officers, or employees
120-14 in common with the incumbent local exchange company;
120-15 (5) shall maintain a separate corporate entity from
120-16 the incumbent local exchange company; and
120-17 (6) may not use the names, trademarks, or service
120-18 marks of the incumbent local exchange company, but this does not
120-19 prohibit the use of those names or marks where they are used in
120-20 common with the parent, affiliate, or owner of the incumbent local
120-21 exchange company.
120-22 (d) Except as provided by Subsection (b) of this section,
120-23 an incumbent local exchange company that has an affiliate that
120-24 provides advertising agency services on behalf of nonaffiliates in
120-25 this state may not jointly market that affiliate's advertising
120-26 agency services in connection with telecommunications services and
120-27 equipment provided by the incumbent local exchange company. This
121-1 prohibition does not apply to advertising in telephone directories
121-2 in whatever form disseminated.
121-3 (e) Nothing herein prevents the incumbent local exchange
121-4 company from providing telephone solicitation services for
121-5 charitable organizations.
121-6 (f) This section does not apply to an incumbent local
121-7 exchange company having 100,000 or fewer total access lines in
121-8 service in this state.
121-9 (g) A company to which this section applies may petition the
121-10 commission for a waiver from any of the requirements imposed
121-11 herein. The commission shall grant the waiver if it is in the
121-12 public interest to do so, taking into account whether the need for
121-13 the restriction still exists in the market involved. The
121-14 commission may revoke any waiver granted if it is shown that
121-15 conditions under which the waiver was granted have materially
121-16 changed and it is in the public interest to do so.
121-17 Sec. 3.504. VIDEO CARRIAGE. (a) Subject to a programmer
121-18 operating as a common channel manager under the provisions of
121-19 Subsection (c) of this section, each incumbent local exchange
121-20 company that provides telecommunications services that are used in
121-21 the transmission of video programming directly to subscribers or
121-22 that enables customers to access video programming shall permit
121-23 local full-power, FCC-licensed broadcast stations, to the extent
121-24 capacity permits, access to these telecommunications services at
121-25 tariffed rates or, if those services are not provided under a
121-26 tariff, on similar terms and conditions as other video programmers
121-27 that provide similar programming. The incumbent local exchange
122-1 company shall transmit the signals delivered to it by the local
122-2 broadcast station without material degradation, and the quality
122-3 offered may not be less than that made available to other video
122-4 programmers.
122-5 (b) Each incumbent local exchange company that provides
122-6 telecommunications services that are used in the transmission of
122-7 video programming directly to subscribers or to enable customers to
122-8 access video programming:
122-9 (1) may not unreasonably discriminate among
122-10 programming providers with respect to transmission of their
122-11 signals;
122-12 (2) may not delete, change, or alter any copyright
122-13 identification transmitted as part of the programming signal; and
122-14 (3) shall, if it provides a "video dial tone service"
122-15 with a level one gateway, as that term is defined by the Federal
122-16 Communications Commission, make available to programmers a menu or
122-17 programming guide on which programmers may display a listing of the
122-18 stations required to be carried by the programmer under Subsection
122-19 (c) of this section.
122-20 (c) To the extent that federal law and Federal
122-21 Communications Commission rules and orders permit, a programmer
122-22 operating as a common channel manager that purchases for commercial
122-23 purposes 50 or more analog channels on a local exchange video dial
122-24 tone level one platform over which video programming is made
122-25 available to subscribers, shall make available to subscribers local
122-26 full-power, Federal Communications Commission-licensed television
122-27 stations, provided that retransmission is granted under Subsection
123-1 (d) of this section. A programmer subject to this section shall be
123-2 required to make available up to six television stations, except
123-3 that in markets that contain a county having a population of more
123-4 than one million, the programmer shall be required to make
123-5 available up to nine full-power, Federal Communications
123-6 Commission-licensed local broadcast stations. The programmer shall
123-7 make the selection of the broadcast channels to be carried under
123-8 this section.
123-9 (d) A Federal Communications Commission-licensed television
123-10 station seeking carriage under Subsection (c) of this section shall
123-11 grant retransmission consent to the programmer and to the incumbent
123-12 local exchange company. However, nothing in this Act requires a
123-13 programmer or incumbent local exchange company to provide monetary
123-14 payment or other valuable consideration in exchange for that
123-15 carriage.
123-16 (e) This section does not apply to an incumbent local
123-17 exchange company having 100,000 or fewer total access lines in
123-18 service in this state or to a programmer on the video dial tone
123-19 platform of that incumbent local exchange company.
123-20 (f) A company to which this section applies may petition the
123-21 commission for a waiver from any of the requirements imposed
123-22 herein. The commission shall grant the waiver if it is in the
123-23 public interest to do so, taking into account whether the need for
123-24 the restriction still exists in the market involved. The
123-25 commission may revoke any waiver granted if it is shown that
123-26 conditions under which the waiver was granted have materially
123-27 changed and it is in the public interest to do so.
124-1 (g) Except as otherwise specifically provided by this Act,
124-2 the commission's jurisdiction over affiliates of incumbent local
124-3 exchange companies that are video programmers is limited to the
124-4 requirements of this section and does not extend to subjects not
124-5 specifically provided herein.
124-6 (h) This section expires August 31, 1999.
124-7 Sec. 3.505. AUDIO CARRIAGE. (a) To the extent that federal
124-8 law and Federal Communications Commission rules and orders permit,
124-9 and consistent with technical specifications, a programmer
124-10 operating as a common channel manager that makes available for
124-11 commercial purposes to subscribers 12 or more channels of audio
124-12 programming similar to broadcasts of Federal Communications
124-13 Commission-licensed radio stations on an incumbent local exchange
124-14 company's level one video dial tone platform shall make available
124-15 to subscribers local Federal Communications Commission-licensed
124-16 radio stations, provided that retransmission is granted under
124-17 Subsection (b) of this section. A programmer subject to this
124-18 subsection may not be required to make available more than
124-19 one-third of its analog audio channels to radio stations. The
124-20 programmer shall make the selection of the radio stations to be
124-21 carried under this section.
124-22 (b) A local Federal Communications Commission-licensed radio
124-23 station seeking carriage under Subsection (a) of this section shall
124-24 grant retransmission consent to the programmer and the incumbent
124-25 local exchange company. However, nothing in this Act requires a
124-26 programmer or incumbent local exchange company to provide monetary
124-27 payment or other valuable consideration in exchange for that
125-1 carriage.
125-2 (c) This section does not apply to an incumbent local
125-3 exchange company having 100,000 or fewer total access lines in
125-4 service in this state or to a programmer on the video dial tone
125-5 platform of that incumbent local exchange company.
125-6 (d) A company to which this section applies may petition the
125-7 commission for a waiver from any of the requirements imposed
125-8 herein. The commission shall grant the waiver if it is in the
125-9 public interest to do so, taking into account whether the need for
125-10 the restriction still exists in the market involved. The
125-11 commission may revoke any waiver granted if it is shown that
125-12 conditions under which the waiver was granted have materially
125-13 changed and it is in the public interest to do so.
125-14 (e) Except as otherwise specifically provided by this Act,
125-15 the commission's jurisdiction over affiliates of incumbent local
125-16 exchange companies that are video programmers is limited to the
125-17 requirements of this section and does not extend to subjects not
125-18 specifically provided herein.
125-19 (f) This section expires August 31, 1999.
125-20 Sec. 3.506. APPLICATION OF SUBTITLE. This subtitle does not
125-21 apply to a cable company.
125-22 SUBTITLE L. ELECTRONIC PUBLISHING
125-23 Sec. 3.551. DEFINITIONS. In this subtitle:
125-24 (1) "Affiliate" means any entity that, directly or
125-25 indirectly, owns or controls, is owned or controlled by, or is
125-26 under common ownership or control with an incumbent local exchange
125-27 company. The term does not include a separated affiliate.
126-1 (2) "Basic telephone service" means any wireline
126-2 telephone exchange service, or wireline telephone exchange
126-3 facility, provided by an incumbent local exchange company in a
126-4 telephone exchange area, other than a competitive wireline
126-5 telephone exchange service provided in a telephone exchange area
126-6 where another entity provides a wireline telephone exchange service
126-7 that was provided on January 1, 1984, and a commercial mobile
126-8 service provided by an affiliate that is required by the Federal
126-9 Communications Commission to be a corporate entity separate from
126-10 the local exchange company.
126-11 (3) "Basic telephone service information" means
126-12 network and customer information of an incumbent local exchange
126-13 company and other information acquired by an incumbent local
126-14 exchange company as a result of its engaging in the provision of
126-15 basic telephone service.
126-16 (4) "Control" has the meaning provided by 17 C.F.R.
126-17 Section 240.12b--2, the regulations promulgated by the Securities
126-18 and Exchange Commission under the Securities Exchange Act of 1934
126-19 (15 U.S.C. Section 78a et seq.) or any successor provision to that
126-20 section.
126-21 (5)(A) "Electronic publishing" means the
126-22 dissemination, provision, publication, or sale to an unaffiliated
126-23 entity or person, using an incumbent local exchange company's basic
126-24 telephone service, of:
126-25 (i) news;
126-26 (ii) entertainment (other than interactive
126-27 games);
127-1 (iii) business, financial, legal,
127-2 consumer, or credit material;
127-3 (iv) editorials;
127-4 (v) columns;
127-5 (vi) sports reporting;
127-6 (vii) features;
127-7 (viii) advertising;
127-8 (ix) photos or images;
127-9 (x) archival or research material;
127-10 (xi) legal notices or public records;
127-11 (xii) scientific, educational,
127-12 instructional, technical, professional, trade, or other literary
127-13 materials; or
127-14 (xiii) other like or similar information.
127-15 (B) "Electronic publishing" does not include the
127-16 following network services:
127-17 (i) information access, as that term is
127-18 defined by the modification of final judgment;
127-19 (ii) the transmission of information as a
127-20 common carrier;
127-21 (iii) the transmission of information as
127-22 part of a gateway to an information service that does not involve
127-23 the generation or alteration of the content of information,
127-24 including data transmission, address translation, protocol
127-25 conversion, billing management, introductory information content,
127-26 and navigational systems that enable users to access electronic
127-27 publishing services, that do not affect the presentation of those
128-1 electronic publishing services to users;
128-2 (iv) voice storage and retrieval services,
128-3 including voice messaging and electronic mail services;
128-4 (v) level 2 gateway services as those
128-5 services are defined by the Federal Communications Commission's
128-6 Second Report and Order, Recommendation to Congress and Second
128-7 Further Notice of Proposed Rulemaking in CC Docket No. 87-266
128-8 dated August 14, 1992;
128-9 (vi) data processing services that do not
128-10 involve the generation or alteration of the content of information;
128-11 (vii) transaction processing systems that
128-12 do not involve the generation or alteration of the content of
128-13 information;
128-14 (viii) electronic billing or advertising
128-15 of an incumbent local exchange company's regulated
128-16 telecommunications services;
128-17 (ix) language translation;
128-18 (x) conversion of data from one format to
128-19 another;
128-20 (xi) the provision of information
128-21 necessary for the management, control, or operation of a telephone
128-22 company telecommunications system;
128-23 (xii) the provision of directory
128-24 assistance that provides names, addresses, and telephone numbers
128-25 and does not include advertising;
128-26 (xiii) caller identification services;
128-27 (xiv) repair and provisioning databases
129-1 for telephone company operations;
129-2 (xv) credit card and billing validation
129-3 for telephone company operations;
129-4 (xvi) 911-E and other emergency assistance
129-5 databases;
129-6 (xvii) any other network service of a type
129-7 that is like or similar to these network services and that does not
129-8 involve the generation or alteration of the content of information;
129-9 (xviii) any upgrades to these network
129-10 services that do not involve the generation or alteration of the
129-11 content of information;
129-12 (xix) full motion video entertainment on
129-13 demand; and
129-14 (xx) video programming as defined by
129-15 Section 602, Communications Act of 1934 (47 U.S.C. Section 522).
129-16 (6) "Electronic publishing joint venture" means a
129-17 joint venture owned by an incumbent local exchange company or
129-18 affiliate that engages in the provision of electronic publishing
129-19 that is disseminated by means of that incumbent local exchange
129-20 company's or any of its affiliates' basic telephone service.
129-21 (7) "Entity" means any organization, and includes a
129-22 corporation, partnership, sole proprietorship, association, and
129-23 joint venture.
129-24 (8) "Inbound telemarketing" means the marketing of
129-25 property, goods, or services by telephone to a customer or
129-26 potential customer who initiated the call.
129-27 (9) "Own," with respect to an entity, means to have a
130-1 direct or indirect equity interest, or the equivalent, of more than
130-2 10 percent of an entity, or the right to more than 10 percent of
130-3 the gross revenues of an entity under a revenue sharing or royalty
130-4 agreement.
130-5 (10) "Separated affiliate" means a corporation under
130-6 common ownership or control with an incumbent local exchange
130-7 company that does not own or control an incumbent local exchange
130-8 company and is not owned or controlled by an incumbent local
130-9 exchange company and that engages in the provision of electronic
130-10 publishing that is disseminated by means of the incumbent local
130-11 exchange company's or any of its affiliates' basic telephone
130-12 service.
130-13 (11) "Incumbent local exchange company" means, for
130-14 purposes of this subtitle only, a company serving more than five
130-15 million access lines in this state and subject to the modification
130-16 of final judgment or any entity owned or controlled by that
130-17 corporation, or any successor or assign of that corporation. The
130-18 term does not include an electronic publishing joint venture owned
130-19 by that corporation or entity and permitted by Section 3.559.
130-20 Sec. 3.552. Electronic Publishing. (a) An incumbent local
130-21 exchange company or an affiliate may not engage in the provision of
130-22 electronic publishing that is disseminated by means of the
130-23 incumbent local exchange company's or any of its affiliates' basic
130-24 telephone service.
130-25 (b) Nothing in this subtitle prohibits a separated affiliate
130-26 or electronic publishing joint venture from engaging in the
130-27 provision of electronic publishing or any other lawful service in
131-1 any area.
131-2 (c) Nothing in this subtitle prohibits an incumbent local
131-3 exchange company or affiliate from engaging in the provision of any
131-4 lawful service other than electronic publishing in any area or from
131-5 engaging in the provision of electronic publishing that is not
131-6 disseminated by means of the incumbent local exchange company's or
131-7 any of its affiliates' basic telephone service.
131-8 Sec. 3.553. SEPARATED AFFILIATE OR ELECTRONIC PUBLISHING
131-9 JOINT VENTURE REQUIREMENTS. A separated affiliate or electronic
131-10 publishing joint venture:
131-11 (1) shall maintain books, records, and accounts that
131-12 are separate from those of the incumbent local exchange company and
131-13 from any affiliate and that record in accordance with generally
131-14 accepted accounting principles all transactions, whether direct or
131-15 indirect, with the incumbent local exchange company;
131-16 (2) may not incur debt in a manner that would permit a
131-17 creditor on default to have recourse to the assets of the incumbent
131-18 local exchange company;
131-19 (3) shall prepare financial statements that are not
131-20 consolidated with those of the incumbent local exchange company or
131-21 an affiliate, provided that consolidated statements may also be
131-22 prepared;
131-23 (4) shall file with the commission annual reports in a
131-24 form substantially equivalent to the Form 10-K required by
131-25 regulations of the Securities and Exchange Commission;
131-26 (5) after September 1, 1996, may not hire:
131-27 (A) as corporate officers, sales and marketing
132-1 management personnel whose responsibilities at the separated
132-2 affiliate or electronic publishing joint venture will include the
132-3 geographic areas where the incumbent local exchange company
132-4 provides basic telephone service;
132-5 (B) network operations personnel whose
132-6 responsibilities at the separated affiliate or electronic
132-7 publishing joint venture would require dealing directly with the
132-8 incumbent local exchange company; or
132-9 (C) any person who was employed by the incumbent
132-10 local exchange company during the year preceding the date of hire,
132-11 except that the requirements of this paragraph do not apply to
132-12 persons subject to a collective bargaining agreement that gives
132-13 those persons rights to be employed by a separated affiliate or
132-14 electronic publishing joint venture of the local exchange company;
132-15 (6) may not provide any wireline telephone exchange
132-16 service in any telephone exchange area in which an incumbent local
132-17 exchange company with which it is under common ownership or control
132-18 provides basic telephone exchange service except on a resale basis;
132-19 (7) may not use the name, trademarks, or service marks
132-20 of an existing incumbent local exchange company except for names,
132-21 trademarks, or service marks that were used in common with the
132-22 entity that owns or controls the incumbent local exchange company;
132-23 (8) shall have performed annually by March 31, or any
132-24 other date prescribed by the commission, a compliance review:
132-25 (A) that is conducted by an independent entity
132-26 that is subject to professional, legal, and ethical obligations for
132-27 the purpose of determining compliance during the preceding calendar
133-1 year with any provision of this subtitle that imposes a requirement
133-2 on the separated affiliate or electronic publishing joint venture;
133-3 and
133-4 (B) the results of which are maintained by the
133-5 separated affiliate for a period of five years subject to review by
133-6 any lawful authority; and
133-7 (9) shall within 90 days after the date of receiving a
133-8 review described by Subdivision (8) of this subsection, file a
133-9 report of any exceptions and corrective action with the commission
133-10 and allow any person to inspect and copy the report subject to
133-11 reasonable safeguards to protect any proprietary information
133-12 contained in the report from being used for purposes other than to
133-13 enforce or pursue remedies under this subtitle.
133-14 Sec. 3.554. INCUMBENT LOCAL EXCHANGE COMPANY REQUIREMENTS.
133-15 (a) An incumbent local exchange company under common ownership or
133-16 control with a separated affiliate or electronic publishing joint
133-17 venture:
133-18 (1) may not provide a separated affiliate any
133-19 facilities, services, or basic telephone service information unless
133-20 it makes those facilities, services, or information available to
133-21 unaffiliated entities on request and on the same terms and
133-22 conditions;
133-23 (2) shall carry out transactions with a separated
133-24 affiliate in a manner equivalent to the manner that unrelated
133-25 parties would carry out independent transactions and not based on
133-26 the affiliation;
133-27 (3) shall carry out transactions with a separated
134-1 affiliate, that involve the transfer of personnel, assets, or
134-2 anything of value, in accordance with written contracts or tariffs
134-3 that are filed with the commission and made publicly available;
134-4 (4) shall carry out transactions with a separated
134-5 affiliate in a manner that is auditable in accordance with
134-6 generally accepted auditing standards;
134-7 (5) shall value any assets that are transferred to a
134-8 separated affiliate at the greater of net book cost or fair market
134-9 value;
134-10 (6) shall value any assets that are transferred to the
134-11 incumbent local exchange company by its separated affiliate at the
134-12 lesser of net book cost or fair market value;
134-13 (7) may not, except for instances where Federal
134-14 Communications Commission or commission rules or regulations permit
134-15 in-arrears payment for tariffed telecommunications services or the
134-16 investment by an affiliate of dividends or profits derived from an
134-17 incumbent local exchange company, provide debt or equity financing
134-18 directly or indirectly to a separated affiliate;
134-19 (8) shall comply fully with all applicable Federal
134-20 Communications Commission and commission cost allocation and other
134-21 accounting rules;
134-22 (9) shall have performed annually by March 31, or any
134-23 other date prescribed by the commission, a compliance review:
134-24 (A) that is conducted by an independent entity
134-25 that is subject to professional, legal, and ethical obligations for
134-26 the purpose of determining compliance during the preceding calendar
134-27 year with any provision of this subtitle that imposes a requirement
135-1 on the incumbent local exchange company; and
135-2 (B) the results of which are maintained by the
135-3 incumbent local exchange company for a period of five years subject
135-4 to review by any lawful authority; and
135-5 (10) shall within 90 days after the date of receiving
135-6 a review described by Subdivision (9) of this subsection, file a
135-7 report of any exceptions and corrective action with the commission
135-8 and allow any person to inspect and copy the report subject to
135-9 reasonable safeguards to protect any proprietary information
135-10 contained in the report from being used for purposes other than to
135-11 enforce or pursue remedies under this subtitle.
135-12 (b) If the incumbent local exchange company provides
135-13 facilities or services for telecommunication, transmission, billing
135-14 and collection, or expanded interconnection to any electronic
135-15 publisher, including a separated affiliate, for use with or in
135-16 connection with the provision of electronic publishing that is
135-17 disseminated by means of the incumbent local exchange company's or
135-18 any of its affiliates' basic telephone service, the incumbent local
135-19 exchange company shall provide to all other electronic publishers
135-20 the same type of facilities and services on request, on the same
135-21 terms and conditions or as required by the Federal Communications
135-22 Commission or the commission, and unbundled and individually
135-23 tariffed to the smallest extent that is technically feasible and
135-24 economically reasonable to provide.
135-25 (c) The incumbent local exchange company shall provide
135-26 network access and interconnections for basic telephone service to
135-27 electronic publishers at any technically feasible and economically
136-1 reasonable point within the incumbent local exchange company's
136-2 network and at just and reasonable rates that are tariffed, so long
136-3 as rates for those services are subject to regulation, and that are
136-4 not higher on a per unit basis than those charged for those
136-5 services to any other electronic publisher or any separated
136-6 affiliate engaged in electronic publishing.
136-7 (d) If prices for network access and interconnection for
136-8 basic telephone service are no longer subject to regulation, the
136-9 incumbent local exchange company shall provide electronic
136-10 publishers those services on the same terms and conditions as a
136-11 separated affiliate receives those services.
136-12 (e) If any basic telephone service used by electronic
136-13 publishers ceases to require a tariff, the incumbent local exchange
136-14 company shall provide electronic publishers with that service on
136-15 the same terms and conditions as a separated affiliate receives
136-16 that service.
136-17 (f) The incumbent local exchange company shall provide
136-18 reasonable advance notification at the same time and on the same
136-19 terms to all affected electronic publishers of information if the
136-20 information is within any one or more of the following categories:
136-21 (1) information necessary for the transmission or
136-22 routing of information by an interconnected electronic publisher;
136-23 (2) information necessary to ensure the
136-24 interoperability of an electronic publisher's and the incumbent
136-25 local exchange company's networks; or
136-26 (3) information that relates to changes in basic
136-27 telephone service network design and technical standards that may
137-1 affect the provision of electronic publishing.
137-2 (g) The incumbent local exchange company may not directly or
137-3 indirectly provide anything of monetary value to a separated
137-4 affiliate unless in exchange for consideration at least equal to
137-5 the greater of its net book cost or fair market value, except the
137-6 investment by an affiliate of dividends or profits derived from an
137-7 incumbent local exchange company.
137-8 (h) The incumbent local exchange company may not:
137-9 (1) discriminate in the presentation or provision of
137-10 any gateway for electronic publishing services or any electronic
137-11 directory of information services that is provided over the
137-12 incumbent local exchange company's basic telephone service;
137-13 (2) have any directors, officers, or employees in
137-14 common with a separated affiliate;
137-15 (3) own any property in common with a separated
137-16 affiliate;
137-17 (4) perform hiring or training of personnel on behalf
137-18 of a separated affiliate;
137-19 (5) perform the purchasing, installation, or
137-20 maintenance of equipment on behalf of a separated affiliate, except
137-21 for telephone service that the company provides under tariff or
137-22 contract subject to the provisions of this subtitle; or
137-23 (6) perform research and development on behalf of a
137-24 separated affiliate.
137-25 Sec. 3.555. CUSTOMER PROPRIETARY NETWORK INFORMATION.
137-26 Consistent with Section 232, Communications Act of 1934, as
137-27 amended, and Section 3.501 of this Act, an incumbent local exchange
138-1 company or an affiliate may not provide to an electronic publisher,
138-2 including a separated affiliate or electronic publishing joint
138-3 venture, customer proprietary network information for use with or
138-4 in connection with the provision of electronic publishing that is
138-5 disseminated by means of the incumbent local exchange company's or
138-6 any of its affiliates' basic telephone service that is not made
138-7 available by the incumbent local exchange company or affiliate to
138-8 all electronic publishers on the same terms and conditions.
138-9 Sec. 3.556. COMPLIANCE WITH SAFEGUARDS. An incumbent local
138-10 exchange company or affiliate, including a separated affiliate, may
138-11 not act in concert with another incumbent local exchange company or
138-12 any other entity to knowingly and wilfully violate or evade the
138-13 requirements of this subtitle.
138-14 Sec. 3.557. INCUMBENT LOCAL EXCHANGE COMPANY DIVIDENDS.
138-15 Nothing in this subtitle prohibits an affiliate from investing
138-16 dividends derived from an incumbent local exchange company in its
138-17 separated affiliate, and Sections 3.560 and 3.561 of this Act do
138-18 not apply to that investment.
138-19 Sec. 3.558. JOINT MARKETING. Except as provided by Section
138-20 3.559 of this Act, an incumbent local exchange company may not
138-21 carry out:
138-22 (1) any promotion, marketing, sales, or advertising
138-23 for or in conjunction with a separated affiliate; or
138-24 (2) any promotion, marketing, sales, or advertising
138-25 for or in conjunction with an affiliate that is related to the
138-26 provision of electronic publishing.
138-27 Sec. 3.559. PERMISSIBLE JOINT ACTIVITIES. (a) An incumbent
139-1 local exchange company may provide inbound telemarketing or
139-2 referral services related to the provision of electronic publishing
139-3 for a separated affiliate, electronic publishing joint venture,
139-4 affiliate, or unaffiliated electronic publisher, provided that if
139-5 those services are provided to a separated affiliate, electronic
139-6 publishing joint venture, or affiliate, those services shall be
139-7 made available to all electronic publishers on request, on
139-8 nondiscriminatory terms, at compensatory prices, and subject to
139-9 regulations of the commission to ensure that the incumbent local
139-10 exchange company's method of providing telemarketing or referral
139-11 and its price structure do not competitively disadvantage any
139-12 electronic publishers regardless of size, including those that do
139-13 not use the incumbent local exchange company's telemarketing
139-14 services.
139-15 (b) An incumbent local exchange company may engage in
139-16 nondiscriminatory teaming or business arrangements to engage in
139-17 electronic publishing with any separated affiliate or with any
139-18 other electronic publisher, provided that the incumbent local
139-19 exchange company provides only facilities, services, and basic
139-20 telephone service information as authorized by this subtitle, and
139-21 provided that the incumbent local exchange company does not own
139-22 that teaming or business arrangement.
139-23 (c) An incumbent local exchange company or affiliate may
139-24 participate on a nonexclusive basis in electronic publishing joint
139-25 ventures with an entity that is not an incumbent local exchange
139-26 company, affiliate, or separated affiliate to provide electronic
139-27 publishing services, provided that the incumbent local exchange
140-1 company or affiliate has not more than a 50 percent direct or
140-2 indirect equity interest, or the equivalent, or the right to more
140-3 than 50 percent of the gross revenues under a revenue sharing or
140-4 royalty agreement in any electronic publishing joint venture.
140-5 Officers and employees of an incumbent local exchange company or
140-6 affiliate participating in an electronic publishing joint venture
140-7 may not have more than 50 percent of the voting control over the
140-8 electronic publishing joint venture. In the case of joint ventures
140-9 with a small, local electronic publisher, the commission for good
140-10 cause shown may authorize the incumbent local exchange company or
140-11 affiliate to have a larger equity interest, revenue share, or
140-12 voting control, but not to exceed 80 percent. An incumbent local
140-13 exchange company participating in an electronic publishing joint
140-14 venture may provide promotion, marketing, sales, or advertising
140-15 personnel and services to the joint venture.
140-16 Sec. 3.560. TRANSACTIONS RELATED TO THE PROVISION OF
140-17 ELECTRONIC PUBLISHING BETWEEN AN INCUMBENT LOCAL EXCHANGE COMPANY
140-18 AND ANY AFFILIATE. (a) Any provision of facilities, services, or
140-19 basic telephone service information, or any transfer of assets,
140-20 personnel, or anything of commercial or competitive value, from an
140-21 incumbent local exchange company to an affiliate related to the
140-22 provision of electronic publishing shall be:
140-23 (1) recorded in the books and records of each entity;
140-24 (2) auditable in accordance with generally accepted
140-25 auditing standards; and
140-26 (3) done in accordance with written contracts or
140-27 tariffs filed with the commission.
141-1 (b) A transfer of assets directly related to the provision
141-2 of electronic publishing from an incumbent local exchange company
141-3 to an affiliate shall be valued at the greater of net book cost or
141-4 fair market value. A transfer of assets related to the provision
141-5 of electronic publishing from an affiliate to the incumbent local
141-6 exchange company shall be valued at the lesser of net book cost or
141-7 fair market value.
141-8 (c) An incumbent local exchange company may not provide
141-9 directly or indirectly to a separated affiliate any facilities,
141-10 services, or basic telephone service information related to the
141-11 provision of electronic publishing that are not made available to
141-12 unaffiliated companies on the same terms and conditions.
141-13 Sec. 3.561. TRANSACTIONS RELATED TO THE PROVISION OF
141-14 ELECTRONIC PUBLISHING BETWEEN AN AFFILIATE AND A SEPARATED
141-15 AFFILIATE. (a) Any facilities, services, or basic telephone
141-16 service information provided, or any assets, personnel, or anything
141-17 of commercial or competitive value transferred, from an incumbent
141-18 local exchange company to an affiliate as described by Section
141-19 3.560 of this Act and then provided or transferred to a separated
141-20 affiliate shall be:
141-21 (1) recorded in the books and records of each entity;
141-22 (2) auditable in accordance with generally accepted
141-23 auditing standards; and
141-24 (3) done in accordance with written contracts or
141-25 tariffs filed with the commission.
141-26 (b) A transfer of assets directly related to the provision
141-27 of electronic publishing from an incumbent local exchange company
142-1 to an affiliate as described by Section 3.560 of this Act and then
142-2 transferred to a separated affiliate shall be valued at the greater
142-3 of net book cost or fair market value. A transfer of assets
142-4 related to the provision of electronic publishing from a separated
142-5 affiliate to an affiliate and then transferred to the incumbent
142-6 local exchange company as described by Section 3.560 of this Act
142-7 shall be valued at the lesser of net book cost or fair market
142-8 value.
142-9 (c) An affiliate may not provide directly or indirectly to a
142-10 separated affiliate any facilities, services, or basic telephone
142-11 service information related to the provision of electronic
142-12 publishing that are not made available to unaffiliated companies on
142-13 the same terms and conditions.
142-14 Sec. 3.562. OTHER ELECTRONIC PUBLISHERS. (a) Except as
142-15 provided by Section 3.559(c) of this Act:
142-16 (1) an incumbent local exchange company may not have
142-17 any officers, employees, property, or facilities in common with an
142-18 entity whose principal business is publishing of which a part is
142-19 electronic publishing; and
142-20 (2) an officer or employee of an incumbent local
142-21 exchange company may not serve as a director of an entity whose
142-22 principal business is publishing of which a part is electronic
142-23 publishing.
142-24 (b) For the purposes of Subsection (a) of this section, an
142-25 incumbent local exchange company or an affiliate that owns an
142-26 electronic publishing joint venture may not be deemed to be engaged
142-27 in the electronic publishing business solely because of that
143-1 ownership.
143-2 (c) Except as provided by Section 3.559(c) of this Act, an
143-3 incumbent local exchange company may not carry out:
143-4 (1) any marketing or sales for an entity that engages
143-5 in electronic publishing; or
143-6 (2) any hiring of personnel, purchasing, or
143-7 production, for an entity that engages in electronic publishing.
143-8 (d) Except as provided by Section 3.559(c) of this Act, the
143-9 incumbent local exchange company may not provide any facilities,
143-10 services, or basic telephone service information to an entity that
143-11 engages in electronic publishing, for use with or in connection
143-12 with the provision of electronic publishing that is disseminated by
143-13 means of the incumbent local exchange company's or any of its
143-14 affiliates' basic telephone service, unless equivalent facilities,
143-15 services, or information are made available on equivalent terms and
143-16 conditions to all.
143-17 Sec. 3.563. PRIVATE RIGHT OF ACTION. (a) A person claiming
143-18 that an act or practice of an incumbent local exchange company,
143-19 affiliate, or separated affiliate constitutes a violation of this
143-20 subtitle may file a complaint with the commission or bring suit for
143-21 the recovery of damages, and the incumbent local exchange company,
143-22 affiliate, or separated affiliate shall be liable if the incumbent
143-23 local exchange company does, or causes or permits to be done, any
143-24 act, matter, or thing in this subtitle required to be done. The
143-25 incumbent local exchange company shall be liable to the person or
143-26 persons injured thereby for the full amount of damages sustained in
143-27 consequence of any violation of the provisions of this subtitle,
144-1 together with a reasonable counsel or attorney's fees to be fixed
144-2 by the court in every case of recovery, which attorney's fees shall
144-3 be taxed and collected as part of the costs of the case. Damages
144-4 may not be awarded for a violation that is discovered by a
144-5 compliance review as required by Section 3.553(8) or 3.554(a)(9) of
144-6 this Act and corrected within 90 days.
144-7 (b) In addition to the provisions of Subsection (a) of this
144-8 section, a person claiming that any act or practice of an incumbent
144-9 local exchange company, affiliate, or separated affiliate
144-10 constitutes a violation of this subtitle may make application to
144-11 the commission for an order to cease and desist that violation or
144-12 may make application in any state district court for an order
144-13 enjoining those acts or practices or for an order compelling
144-14 compliance with that requirement.
144-15 Sec. 3.564. ANTITRUST LAWS. Nothing in this section may be
144-16 construed to modify, impair, or supersede the applicability of any
144-17 of the antitrust laws.
144-18 Sec. 3.565. TRANSITION. An electronic publishing service
144-19 being offered to the public by an incumbent local exchange company
144-20 or affiliate on the date of enactment of this subtitle shall have
144-21 one year from that date of enactment to comply with the
144-22 requirements of this subtitle.
144-23 Sec. 3.566. SUNSET. The provisions of this subtitle do not
144-24 apply to conduct occurring after June 30, 2001.
144-25 SUBTITLE M. INFORMATION TECHNOLOGY SERVICES
144-26 Sec. 3.581. DEFINITIONS. In this subtitle:
144-27 (1) "Management consulting" means the development,
145-1 refinement, and coordination of strategies to support a client's
145-2 business direction, positively impact business performance, and
145-3 improve operating results, in areas such as business planning,
145-4 operations, information technology, marketing, finance, and human
145-5 resources.
145-6 (2) "Systems development" means the creation,
145-7 migration, or improvement of computer systems, including hardware
145-8 and software, to meet specific business needs or to take advantage
145-9 of changes in information technology.
145-10 (3) "Systems integration" means the acquisition,
145-11 installation, and integration of hardware, software,
145-12 communications, and related support components and services.
145-13 (4) "Systems management" means the ongoing management
145-14 and operation of information technology components and may range
145-15 from specialized systems applications to an enterprise's entire
145-16 information technology function, including facilities and
145-17 personnel.
145-18 (5) "Process management" means the ongoing
145-19 responsibility for direction and operation of one or more business
145-20 processes within an enterprise in areas such as administration,
145-21 finance, human resources, operations, and sales and marketing.
145-22 Sec. 3.582. PROVISION OF INFORMATION TECHNOLOGY SERVICES
145-23 THROUGH SEPARATE AFFILIATE. (a) Except for services and products
145-24 provided on September 1, 1995, a local exchange company serving
145-25 more than five million access lines in this state may not provide
145-26 the following customized business products or services to customers
145-27 with 50 or more access lines in this state:
146-1 (1) management consulting, except for consulting
146-2 relating exclusively to telecommunications;
146-3 (2) information technology process or systems
146-4 development;
146-5 (3) information technology process or systems
146-6 integration; or
146-7 (4) information technology process or systems
146-8 management.
146-9 (b) This section does not prohibit an affiliate of the local
146-10 exchange company from providing any of the products or services
146-11 described by Subsection (a) of this section in accordance with
146-12 Sections 3.583 and 3.584 of this Act or prohibit a local exchange
146-13 company from providing those products or services to itself. The
146-14 local exchange company may also provide those services to an
146-15 affiliate if neither the local exchange company nor any of its
146-16 affiliates are engaged in providing those products or services to
146-17 unaffiliated third parties.
146-18 (c) The prohibitions prescribed by Subsection (b) of this
146-19 section do not prohibit a local exchange company from:
146-20 (1) providing mass market and consumer market products
146-21 and services directly to customers with fewer than 50 access lines
146-22 in this state that use or rely on the use of information services,
146-23 information systems, or information technology or processes; or
146-24 (2) selling or leasing billing and collection
146-25 services, local area networks, wide area networks, or any other
146-26 telecommunications service.
146-27 Sec. 3.583. SEPARATE AFFILIATE REQUIREMENTS. (a) An
147-1 affiliate of the local exchange company providing a service
147-2 described by Section 3.582(a) of this Act shall:
147-3 (1) operate independently from the local exchange
147-4 company in the provision of its services;
147-5 (2) maintain its own books of accounts; and
147-6 (3) have separate officers, directors, and employees
147-7 who may not also serve as officers, directors, or employees of the
147-8 local exchange company, except that an officer of a corporate
147-9 parent or holding company may serve as a director of the local
147-10 exchange company and as a director of any other of the parent's
147-11 subsidiaries that are in existence on September 1, 1995, or of any
147-12 new subsidiary or affiliate established after September 1, 1995,
147-13 that does not engage in the provision of a service described by
147-14 Section 3.582(a) of this Act.
147-15 (b) All transactions between the local exchange company and
147-16 the affiliate providing a service described by Section 3.582(a) of
147-17 this Act shall be conducted on an "arms length" basis with respect
147-18 to the acquisition of that service from the affiliate.
147-19 (c) The local exchange company shall maintain and keep
147-20 available for inspection by the commission copies of all contracts
147-21 or arrangements between the company and an affiliate relating to
147-22 the local exchange company's acquisition of a service described by
147-23 Section 3.582(a) of this Act from the affiliate. The local
147-24 exchange company's records must show each cash or noncash
147-25 transaction with the affiliate for that service, including the
147-26 payments for goods and services or any property right.
147-27 (d) The local exchange company and an affiliate engaged in a
148-1 service described by Section 3.582(a) of this Act may not jointly
148-2 own or share in the use of any property.
148-3 Sec. 3.584. ADDITIONAL COMPETITIVE SAFEGUARDS. (a) A local
148-4 exchange company may not discriminate between an affiliate
148-5 providing a service described by Section 3.582(a) of this Act and
148-6 any other person in the provision or procurement of goods,
148-7 services, facilities, or information or in the establishment of
148-8 standards.
148-9 (b) A local exchange company or its affiliate may not use
148-10 revenues from local exchange telephone service or from
148-11 local-exchange-company-provided access services to subsidize the
148-12 provision of a service described by Section 3.582(a) of this Act.
148-13 (c) This section does not prohibit the investment by an
148-14 affiliate of dividends or profits derived from a local exchange
148-15 company or the development of a product or service described by
148-16 Section 3.582(a) of this Act by an affiliate of a local exchange
148-17 company for the local exchange company if the investment or
148-18 development complies with Section 3.583 of this Act.
148-19 SUBTITLE N. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM;
148-20 UNIVERSAL SERVICE FUND
148-21 Sec. 3.601 <3.351>. TEL-ASSISTANCE SERVICE. The commission
148-22 shall adopt and enforce rules requiring each local exchange company
148-23 to establish a telecommunications service assistance program to be
148-24 called "tel-assistance service." This service is established to
148-25 provide eligible consumers with a reduction in costs of
148-26 telecommunications services.
148-27 Sec. 3.602 <3.352>. ELIGIBILITY FOR TEL-ASSISTANCE SERVICE;
149-1 BURDEN OF PROOF; BILLING. (a) To be eligible for tel-assistance
149-2 service, an applicant must be a head of household, 65 years of age
149-3 or older, and disabled as determined by the Texas Department of
149-4 Human Services and must have a household income at or below the
149-5 poverty level as determined by the United States Office of
149-6 Management and Budget and reported annually in the Federal
149-7 Register. The department, in accordance with this subtitle and
149-8 rules adopted by the department for the program, shall develop
149-9 procedures for taking applications for certification of eligibility
149-10 and for determining program eligibility. The burden of proving
149-11 eligibility for tel-assistance service is on the consumer applying
149-12 for the service.
149-13 (b) Each six months the department shall provide a list or
149-14 lists of the names, addresses, and, if applicable, telephone
149-15 numbers of all persons eligible for tel-assistance service to each
149-16 local exchange company. The local exchange company shall determine
149-17 from the list those consumers to whom the company provides service
149-18 and within 60 days after receiving the list shall begin
149-19 tel-assistance billing for eligible consumers. This billing shall
149-20 continue until the local exchange company is notified by the
149-21 department that a consumer is no longer eligible to receive
149-22 tel-assistance service.
149-23 Sec. 3.603 <3.353>. TEL-ASSISTANCE SERVICES; BILLING; RATES.
149-24 (a) The local exchange company shall provide tel-assistance
149-25 service to all eligible consumers within its certificated area in
149-26 the form of a reduction on each eligible consumer's telephone bill.
149-27 The reduction shall apply only to the following types of service:
150-1 (1) residential flat rate basic local exchange
150-2 service;
150-3 (2) residential local exchange access service; and
150-4 (3) residential local area calling usage, except that
150-5 the reduction for local area calling usage shall be limited to an
150-6 amount such that together with the reduction for local exchange
150-7 access service the rate does not exceed the comparable reduced flat
150-8 rate for the service.
150-9 (b) No other local voice service may be provided to the
150-10 dwelling place of a tel-assistance consumer, nor may single or
150-11 party line optional extended area service, optional extended area
150-12 calling service, foreign zone, or foreign exchange service be
150-13 provided to a tel-assistance consumer. Nothing in this section
150-14 shall prohibit a person otherwise eligible to receive
150-15 tel-assistance service from obtaining and using telecommunications
150-16 equipment designed to aid such person in utilizing
150-17 telecommunications services.
150-18 (c) The reduction allowed by the telecommunications service
150-19 assistance program shall be 65 percent of the applicable tariff
150-20 rate for the service provided.
150-21 Sec. 3.604 <3.354>. STATEWIDE TELECOMMUNICATIONS RELAY
150-22 ACCESS SERVICE FOR HEARING-IMPAIRED AND SPEECH-IMPAIRED. (a) The
150-23 commission shall adopt and enforce rules establishing a statewide
150-24 telecommunications relay access service for the hearing-impaired
150-25 and speech-impaired using specialized communications equipment such
150-26 as telecommunications devices for the deaf (TDD) and operator
150-27 translations. The purpose of this section is to provide for the
151-1 uniform and coordinated provision of the service on a statewide
151-2 basis by one telecommunications carrier.
151-3 (b) Commission rules relating to a statewide
151-4 telecommunications relay access service for the hearing-impaired
151-5 and speech-impaired shall provide that:
151-6 (1) the service shall provide the hearing-impaired and
151-7 speech-impaired with access to the telecommunications network in
151-8 Texas equal to that provided other customers;
151-9 (2) the service shall consist of the following:
151-10 (A) switching and transmission of the call;
151-11 (B) verbal and print translations by either live
151-12 or automated means between hearing-impaired and speech-impaired
151-13 individuals who use TDD equipment or similar automated devices and
151-14 others who do not have such equipment; and
151-15 (C) other service enhancements proposed by the
151-16 carrier and approved by the commission;
151-17 (3) the calling or called party shall bear no charge
151-18 for calls originating and terminating within the same local calling
151-19 area;
151-20 (4) the calling or called party shall bear one-half of
151-21 the total charges established by contract with the commission for
151-22 intrastate interexchange calls;
151-23 (5) as specified in its contract with the commission,
151-24 charges related to providing the service which are not borne by a
151-25 calling or called party pursuant to Subdivisions (3) and (4) of
151-26 this subsection shall be funded from the universal service fund;
151-27 (6) local exchange companies may not impose
152-1 interexchange carrier access charges on calls which make use of
152-2 this service and which originate and terminate in the same local
152-3 calling area;
152-4 (7) local exchange companies shall provide billing and
152-5 collection services in support of this service at just and
152-6 reasonable rates; and
152-7 (8) if the commission orders a local exchange company
152-8 to provide for a trial telecommunications relay access service for
152-9 the hearing-impaired or speech-impaired, all pertinent costs and
152-10 design information from this trial shall be available to the
152-11 general public.
152-12 (c) The commission shall allow telecommunications utilities
152-13 to recover their universal service fund assessment related to this
152-14 service through a surcharge which the utility may add to its
152-15 customers' bills. The commission shall specify how the amount of
152-16 the surcharge is to be determined by each utility. If a utility
152-17 chooses to impose the surcharge, the bill shall list the surcharge
152-18 as the "universal service fund surcharge."
152-19 (d) The commission shall set the appropriate assessments for
152-20 the funding of the service by all telecommunications utilities. In
152-21 setting the appropriate assessments, the commission shall consider
152-22 the aggregate calling pattern of the users of the service and all
152-23 other factors found appropriate and in the public interest by the
152-24 commission. The commission shall review the assessments annually
152-25 and adjust the assessments as found appropriate hereunder.
152-26 (e) The commission shall select the telecommunications
152-27 carrier which will provide the statewide telecommunications relay
153-1 access service for the hearing-impaired and speech-impaired. In
153-2 awarding the contract for this service, the commission shall make a
153-3 written award of the contract to the offerer whose proposal is the
153-4 most advantageous to the state, considering price, the interests of
153-5 the hearing-impaired and speech-impaired community in having access
153-6 to a high quality and technologically advanced telecommunications
153-7 system, and all other factors listed in the commission's request
153-8 for proposals. The commission shall consider each proposal in a
153-9 manner that does not disclose the contents of the proposal to
153-10 competing offerers. The commission's evaluation of the proposals
153-11 shall include:
153-12 (1) charges for the service;
153-13 (2) service enhancements proposed by the offerers;
153-14 (3) technological sophistication of the network
153-15 proposed by the offerers; and
153-16 (4) the proposed commencement date for the service.
153-17 (f) The telecommunications carrier providing the service
153-18 shall be compensated for providing such service at rates, terms,
153-19 and conditions established in its contract with the commission.
153-20 This compensation may include a return on the investment required
153-21 to provide the service and compensation for unbillable and
153-22 uncollectible calls placed through the service, provided that
153-23 compensation for unbillable and uncollectible calls shall be
153-24 subject to a reasonable limitation as determined by the commission.
153-25 (g) The advisory committee to assist the commission in
153-26 administering this section is composed of the following persons
153-27 appointed by the commission:
154-1 (1) two deaf persons recommended by the Texas
154-2 Association of the Deaf;
154-3 (2) one hearing-impaired person recommended by
154-4 Self-Help for the Hard of Hearing;
154-5 (3) one hearing-impaired person recommended by the
154-6 American Association of Retired Persons;
154-7 (4) one deaf and blind person recommended by the Texas
154-8 Deaf/Blind Association;
154-9 (5) one speech-impaired person and one speech-impaired
154-10 and hearing-impaired person recommended by the Coalition of Texans
154-11 with Disabilities;
154-12 (6) two representatives of telecommunications
154-13 utilities, one representing a nonlocal exchange utility and one
154-14 representing a local exchange company, chosen from a list of
154-15 candidates provided by the Texas Telephone Association;
154-16 (7) two persons, at least one of whom is deaf, with
154-17 experience in providing relay services recommended by the Texas
154-18 Commission for the Deaf and Hearing-Impaired; and
154-19 (8) two public members recommended by organizations
154-20 representing consumers of telecommunications services.
154-21 (h) The commission shall appoint advisory committee members
154-22 based on recommended lists of candidates submitted in accordance
154-23 with Subdivision (6) of Subsection (g) of this section. The
154-24 advisory committee shall monitor the establishment, administration,
154-25 and promotion of the statewide telecommunications relay access
154-26 service and advise the commission in pursuing a service which meets
154-27 the needs of the hearing-impaired and speech-impaired in
155-1 communicating with other users of telecommunications services. The
155-2 terms of office of each member of the advisory committee shall be
155-3 two years. A member whose term has expired shall continue to serve
155-4 until a qualified replacement is appointed. The members of the
155-5 advisory committee shall serve without compensation but shall be
155-6 entitled to reimbursement at rates established for state employees
155-7 for travel and per diem incurred in the performance of their
155-8 official duties. The commission shall reimburse members of the
155-9 advisory committee in accordance with this subsection and shall
155-10 provide clerical and staff support to the advisory committee,
155-11 including a secretary to record the committee meetings. The
155-12 commission's costs associated with the advisory committee shall be
155-13 reimbursed from the universal service fund.
155-14 Sec. 3.605 <3.355>. DISTANCE LEARNING ACTIVITIES BY
155-15 EDUCATIONAL INSTITUTIONS AND INFORMATION SHARING PROGRAMS BY
155-16 LIBRARIES; REDUCED RATES. (a) The commission by rule shall
155-17 require a dominant carrier to file a tariff containing a reduced
155-18 rate for a telecommunications service the commission finds is
155-19 directly related to a distance learning activity that is or could
155-20 be conducted by an educational institution in this state or an
155-21 information sharing program that is or could be conducted by a
155-22 library in this state.
155-23 (b) The commission rules shall specify:
155-24 (1) the telecommunications services that qualify under
155-25 this section;
155-26 (2) the process by which an educational institution or
155-27 library qualifies for a reduced rate;
156-1 (3) the date by which a dominant carrier shall file a
156-2 tariff;
156-3 (4) guidelines and criteria by which the services and
156-4 reduced rates shall further the goals stated in Subsection (d) of
156-5 this section; and
156-6 (5) any other requirements, terms, and conditions that
156-7 the commission determines to be in the public interest.
156-8 (c) A tariff filing by a dominant carrier under this
156-9 section:
156-10 (1) shall concern only the implementation of this
156-11 section;
156-12 (2) is not a rate change under Section 3.211 of this
156-13 Act; and
156-14 (3) does not affect any of the carrier's other rates
156-15 or services.
156-16 (d) The services and reduced rates shall be designed to:
156-17 (1) encourage the development and offering of distance
156-18 learning activities by educational institutions or information
156-19 sharing programs of libraries;
156-20 (2) meet the distance learning needs identified by the
156-21 educational community and the information sharing needs identified
156-22 by libraries; and
156-23 (3) recover the long-run incremental costs of
156-24 providing the services, to the extent those costs can be
156-25 identified, so as to avoid subsidizing educational institutions or
156-26 libraries.
156-27 (e) The commission is not required to determine the long-run
157-1 incremental cost of providing a service before approving a reduced
157-2 rate for the service. Until cost determination rules are developed
157-3 and the rates established under this section are changed as
157-4 necessary to ensure proper cost recovery, the reduced rates
157-5 established by the commission shall be equal to 75 percent of the
157-6 otherwise applicable rate. After the commission develops cost
157-7 determination rules for telecommunications services generally, it
157-8 shall ensure that a reduced rate approved under this section
157-9 recovers service-specific long-run incremental costs and avoids
157-10 subsidization.
157-11 (f) An educational institution, library, or dominant carrier
157-12 may at any time request the commission to:
157-13 (1) provide for a reduced rate for a service directly
157-14 related to a distance learning activity or an information sharing
157-15 program that is not covered by commission rules;
157-16 (2) change a rate;
157-17 (3) amend a tariff; or
157-18 (4) amend a commission rule.
157-19 (g) If the commission determines that a change requested
157-20 under Subsection (f) is appropriate, it shall make the requested
157-21 change.
157-22 (h) In this section:
157-23 (1) "Distance learning" means instruction, learning,
157-24 and training that is transmitted from one site to one or more sites
157-25 by telecommunications services that are used by an educational
157-26 institution predominantly for such instruction, learning, or
157-27 training, including video, data, voice, and electronic information.
158-1 (2) "Educational institution" means and includes:
158-2 (A) accredited primary or secondary schools
158-3 owned or operated by state and local governmental entities or
158-4 private entities;
158-5 (B) institutions of higher education as defined
158-6 by Section 61.003, Education Code;
158-7 (C) private institutions of higher education
158-8 accredited by a recognized accrediting agency as defined by Section
158-9 61.003(13), Education Code;
158-10 (D) the Central Education Agency, its successors
158-11 and assigns;
158-12 (E) regional education service centers
158-13 established and operated pursuant to Sections 11.32 and 11.33,
158-14 Education Code; and
158-15 (F) the Texas Higher Education Coordinating
158-16 Board, its successors and assigns.
158-17 (3) "Library" means a "public library" or "regional
158-18 library system" as those terms are defined by Section 441.122,
158-19 Government Code, or a library operated by an institution of higher
158-20 education or a school district.
158-21 Sec. 3.606. TELECOMMUNICATIONS INFRASTRUCTURE FUND. (a) In
158-22 this section:
158-23 (1) "Board" means the Telecommunications
158-24 Infrastructure Fund Board.
158-25 (2) "Fund" means the telecommunications infrastructure
158-26 fund.
158-27 (3) "Institution of higher education" has the meaning
159-1 assigned by Section 61.003, Education Code, and also includes a
159-2 "private or independent institution of higher education" as defined
159-3 by Section 61.003, Education Code.
159-4 (4) "Library" means a "public library," or "regional
159-5 library system" as those terms are defined by Section 441.122,
159-6 Government Code, or a library operated by an institution of higher
159-7 education or a school district.
159-8 (5) "School district" has the meaning assigned by
159-9 Section 19.001, Education Code.
159-10 (b) The board shall administer the fund. The board consists
159-11 of nine members. Three members are appointed by the governor,
159-12 three members are appointed by the lieutenant governor, and three
159-13 members are appointed by the governor from a list of individuals
159-14 submitted by the speaker of the house of representatives. Members
159-15 of the board serve for staggered, six-year terms, with three
159-16 members' terms expiring on August 31 of each odd-numbered year.
159-17 The governor shall designate the presiding officer of the board.
159-18 (c) The governor and the lieutenant governor, in making
159-19 their appointments to the board, and the speaker of the house of
159-20 representatives, in compiling the list of recommended persons,
159-21 shall attempt to select members who are representative of urban and
159-22 rural school districts, institutions of higher education,
159-23 libraries, and the public. A person may not serve on the board if
159-24 the person is required to register as a lobbyist under Chapter 305,
159-25 Government Code, because of the person's activities for
159-26 compensation on behalf of a profession related to the operation of
159-27 the board.
160-1 (d) Members of the board serve without pay but are entitled
160-2 to reimbursement for their actual expenses incurred in attending
160-3 meetings of the board or in attending to other work of the board
160-4 if approved by the chairman of the board.
160-5 (e) The board is subject to Chapters 551 and 2001,
160-6 Government Code. The board is subject to Chapter 325, Government
160-7 Code (Texas Sunset Act). Unless continued in existence as provided
160-8 by that chapter, the advisory board and this section expire
160-9 September 1, 2001.
160-10 (f) The board is authorized to employ any personnel as
160-11 reasonably necessary to perform duties delegated by the board, and
160-12 the board may also enter into contracts as are necessary with state
160-13 agencies or private entities to perform its duties.
160-14 (g) The board may appoint any committees as it determines
160-15 may assist it in performing its duties under this section.
160-16 (h) The fund administered by the board is financed by an
160-17 annual assessment on all telecommunications providers doing
160-18 business in this state. Each telecommunications provider shall pay
160-19 the annual assessment in accordance with the ratio that the annual
160-20 taxable telecommunications receipts reported by that provider under
160-21 Chapter 151, Tax Code, bears to the total annual taxable
160-22 telecommunications receipts reported by all telecommunications
160-23 providers under Chapter 151, Tax Code.
160-24 (i) For the fiscal year beginning September 1, 1995, and for
160-25 the five fiscal years immediately following, the comptroller shall
160-26 assess and collect from telecommunications providers a total annual
160-27 amount of $75 million. The amount shall be assessed and collected
161-1 in each year without respect to whether all of the funds previously
161-2 collected have been disbursed or spent due to lack of demand or
161-3 otherwise.
161-4 (j) The comptroller may require telecommunications providers
161-5 to provide any reports and information as are needed to fulfill the
161-6 duties of the comptroller provided by this section. Any
161-7 information provided to the comptroller by a telecommunications
161-8 provider under this section is confidential and exempt from
161-9 disclosure under Chapter 552, Government Code.
161-10 (k) All amounts collected by the comptroller from
161-11 telecommunications providers under Subsection (h) of this section
161-12 shall be deposited in the fund in the state treasury and may be
161-13 appropriated solely for use by the board consistent with the
161-14 purposes of this section. Sections 403.094 and 403.095, Government
161-15 Code, do not apply to the fund.
161-16 (l) From funds appropriated to the board, the comptroller
161-17 shall issue warrants as requested by the board in accordance with
161-18 the purposes of this section, including warrants to grantees of the
161-19 board in amounts certified by the board to the comptroller.
161-20 (m) In addition to any appropriated funds, the board may
161-21 accept gifts, grants, and donations and use them for the purposes
161-22 of this section.
161-23 (n) The board shall use the fund to award grants and loans,
161-24 including grants for installation costs, if applicable, on a
161-25 competitive basis to rural and urban school districts, regional
161-26 education service centers, institutions of higher education, and
161-27 libraries recommended to the board by the Central Education Agency,
162-1 the Texas Higher Education Coordinating Board, or the Texas State
162-2 Library and Archives Commission.
162-3 (o) The board may award grants to projects and proposals
162-4 that:
162-5 (1) provide equipment and infrastructure needed for
162-6 distance learning, information sharing programs of libraries, and
162-7 telemedicine services;
162-8 (2) develop and implement the initial or prototypical
162-9 delivery of courses and other distance learning material;
162-10 (3) train teachers, faculty, librarians, or
162-11 technicians in the use of distance learning or information sharing
162-12 materials and equipment;
162-13 (4) develop curricula and instructional material
162-14 especially suited for delivery by telecommunications;
162-15 (5) provide electronic information; or
162-16 (6) establish or carry out information sharing
162-17 programs.
162-18 (p) The board may award loans to projects and proposals to
162-19 acquire equipment needed for distance learning and telemedicine
162-20 projects.
162-21 (q) In awarding grants and loans, the board shall give
162-22 priority to projects and proposals that:
162-23 (1) represent collaborative efforts involving multiple
162-24 schools, universities, or libraries;
162-25 (2) contribute matching funds from other sources;
162-26 (3) show promise of becoming self-sustaining;
162-27 (4) help users of information learn new ways to
163-1 acquire and use information through telecommunications;
163-2 (5) extend specific educational information and
163-3 knowledge services to groups not previously served, especially
163-4 those in rural and remote areas;
163-5 (6) result in more efficient or effective learning
163-6 than through conventional teaching;
163-7 (7) improve the effectiveness and efficiency of health
163-8 care delivery; or
163-9 (8) take advantage of distance learning opportunities
163-10 in rural and urban school districts with disproportionate numbers
163-11 of at-risk youths or with high dropout rates.
163-12 (r) The Texas Higher Education Coordinating Board, the
163-13 Central Education Agency, and the Texas State Library and Archives
163-14 Commission shall adopt policies and procedures in consultation with
163-15 the board that are designed to aid the board in achieving the
163-16 purposes of this section.
163-17 (s) In distributing funds to public schools, the board
163-18 shall take into account the relative property wealth per student of
163-19 the recipient school districts and recognize the unique needs of
163-20 rural communities.
163-21 Sec. 3.607 <3.356>. RECOVERY OF LOST REVENUES. A local
163-22 exchange company is entitled to recover the lost revenue, if any,
163-23 resulting solely from the provision of tel-assistance service from
163-24 the universal service fund, the establishment of which is provided
163-25 for by this Act.
163-26 Sec. 3.608 <3.357>. UNIVERSAL SERVICE FUND. (a) The
163-27 commission shall adopt and enforce rules requiring local exchange
164-1 companies to establish a universal service fund to assist local
164-2 exchange companies in providing basic local telecommunications
164-3 service <exchange service> at reasonable rates in high cost rural
164-4 areas, to reimburse local exchange companies for revenues lost as a
164-5 result of providing tel-assistance service under this Act, to
164-6 reimburse the telecommunications carrier providing the statewide
164-7 telecommunications relay access service for the hearing-impaired
164-8 and speech-impaired as authorized in Section 3.604 <3.354> of this
164-9 Act, and to reimburse the Texas Department of Human Services and
164-10 the commission for costs incurred in implementing the provisions of
164-11 this subtitle.
164-12 (b)(1) For local exchange companies serving fewer than one
164-13 million access lines, in addition to the authority described by
164-14 Subsection (a) of this section, the commission may adopt any
164-15 mechanisms necessary to maintain reasonable rates for local
164-16 exchange telephone service and shall establish rules that would
164-17 expand the universal service fund in the circumstances prescribed
164-18 by this subsection.
164-19 (2) In the event of a commission order, rule, or
164-20 policy, the effect of which is to reduce the amount of the high
164-21 cost assistance fund, except an order entered in an individual
164-22 company revenue requirements proceeding, the commission shall
164-23 implement a mechanism through the universal service fund to replace
164-24 the reasonably projected reduction in revenues caused by that
164-25 regulatory action.
164-26 (3) In the event of a Federal Communications
164-27 Commission order, rule, or policy, the effect of which is to change
165-1 the federal universal service fund revenues of a local exchange
165-2 company or change costs or revenues assigned to the intrastate
165-3 jurisdiction, the commission shall implement a mechanism, through
165-4 either the universal service fund or an increase to rates if that
165-5 increase would not adversely impact universal service, to replace
165-6 the reasonably projected change in revenues caused by the
165-7 regulatory action.
165-8 (4) In the event of a commission change in its policy
165-9 with respect to intraLATA "1+" dialing access, the commission shall
165-10 implement a mechanism, through either the universal service fund or
165-11 an increase to rates if that increase would not adversely impact
165-12 universal service, to replace the reasonably projected reduction in
165-13 contribution caused by the action. Contribution for purposes of
165-14 this subdivision equals average intraLATA long distance message
165-15 telecommunications service (MTS) revenue, including intraLATA toll
165-16 pooling and associated impacts, per minute less average MTS cost
165-17 per minute less the average contribution from switched access times
165-18 the projected change in intraLATA "1+" minutes of use.
165-19 (5) In the event of any other governmental agency
165-20 issuing an order, rule, or policy, the effect of which is to
165-21 increase costs or decrease revenues of the intrastate jurisdiction,
165-22 the commission shall implement a mechanism through either the
165-23 universal service fund or an increase to rates if that increase
165-24 would not adversely impact universal service, to replace the
165-25 reasonably projected increase in costs or decrease in revenues
165-26 caused by that regulatory action.
165-27 (6) A revenue requirement showing is not required with
166-1 respect to disbursements from the universal service fund under
166-2 Subsection (a) or (b) of this section. Those disbursements shall
166-3 be implemented promptly and efficiently so that telecommunications
166-4 providers and local exchange companies do not experience
166-5 unnecessary cash flow changes as a result of these changes in
166-6 governmental policy.
166-7 (c) The universal service fund shall be funded by a
166-8 statewide uniform charge, at rates and on services determined by
166-9 the commission, payable by all telecommunications providers
166-10 <utilities> that have access to the customer base. In establishing
166-11 the uniform level of the charge and the services to which it will
166-12 apply, the commission may not make or grant an unreasonable
166-13 preference or advantage to a telecommunications provider <utility>
166-14 or subject a telecommunications provider <utility> to unreasonable
166-15 prejudice or disadvantage. The charge shall be paid in accordance
166-16 with procedures approved by the commission.
166-17 (d) <(c)> The commission shall:
166-18 (1) establish, in a manner that assures reasonable
166-19 rates for basic local telecommunications <exchange> service,
166-20 eligibility criteria and review procedures, including a method for
166-21 administrative review, it finds necessary for funding of and
166-22 distribution from <participation in> the universal service fund;
166-23 (2) determine which local exchange companies meet the
166-24 eligibility criteria, which, at a minimum, include the requirement
166-25 to offer service to every consumer within its certificated area and
166-26 render continuous and adequate service within the area or areas, in
166-27 compliance with the commission's quality of service requirements;
167-1 (3) determine the amount of and approve a procedure
167-2 for reimbursement to local exchange companies of revenue lost in
167-3 providing tel-assistance service under this Act;
167-4 (4) prescribe and collect fees from the universal
167-5 service fund necessary to recover the costs the Texas Department of
167-6 Human Services and the commission incurred in implementing and
167-7 administrating the provisions of this subtitle; and
167-8 (5) approve procedures for the collection and
167-9 disbursal of the revenues of the universal service fund.
167-10 (e) <(d)> The commission shall adopt rules for the
167-11 implementation and administration of the universal service fund.
167-12 (f) <(e)> The commission may do all things necessary and
167-13 convenient to implement and administer the universal service fund,
167-14 including require local exchange companies and other
167-15 telecommunications providers to provide any reports and information
167-16 needed to assess contributions to the fund. All reports and
167-17 information are confidential and not subject to disclosure under
167-18 Chapter 552, Government Code.
167-19 Sec. 3.609 <3.358>. INTERACTIVE MULTIMEDIA COMMUNICATIONS.
167-20 (a) The commission shall permit a local exchange company that
167-21 provides interactive multimedia communications services to
167-22 establish rates at levels necessary, using sound ratemaking
167-23 principles, to recover costs associated with providing the
167-24 services. Unless determined by the commission to be in the public
167-25 interest, a local exchange company may not establish rates under
167-26 this subsection that are less than the local exchange company's
167-27 long-run incremental costs of providing the interactive multimedia
168-1 communications services.
168-2 (b) In this section, "interactive multimedia communications"
168-3 has the meaning assigned by Section 14.0451(a), Education Code, as
168-4 added by Chapter 868, Acts of the 73rd Legislature, Regular
168-5 Session, 1993.
168-6 Sec. 3.610. REGULATORY TRANSITION FUND. (a) The commission
168-7 shall establish a fund outside the state treasury known as the
168-8 regulatory transition fund (RTF). The purposes of the fund are to:
168-9 (1) promote affordable universal local exchange
168-10 telephone service in areas in which no competition exists; and
168-11 (2) facilitate the transition from networks
168-12 established and prices set under monopoly conditions to a
168-13 competitive market without endangering affordable universal
168-14 service, while permitting existing facilities based local exchange
168-15 companies to recover the costs of those networks.
168-16 (b) The RTF shall be funded by an assessment on the billed
168-17 retail revenues of all telecommunications providers in this state
168-18 except as provided by Subsection (e) of this section. An
168-19 assessment may not be made on local exchange telephone service
168-20 revenues of a holder of a certificate of convenience and necessity,
168-21 certificate of operating authority, or service provider certificate
168-22 of operating authority. The commission shall set the assessment
168-23 for the next calendar year on or before November 1 of each year.
168-24 (c) The RTF shall be administered by the commission, which
168-25 may retain a competitively neutral administrator for the day-to-day
168-26 operations of the RTF. The commission is the trustee of the fund's
168-27 assets. The commission may do all things necessary and convenient
169-1 to implement and administer the RTF, including require local
169-2 exchange companies and other telecommunications providers to
169-3 provide any reports and information needed to assess contributions
169-4 to the fund. All reports and information are confidential and not
169-5 subject to disclosure under Chapter 552, Government Code. The
169-6 commission shall administer the RTF in a manner to promptly and
169-7 efficiently collect and transfer funds so that telecommunications
169-8 providers and local exchange companies do not experience
169-9 unnecessary cash flow changes as a result of the replacement of
169-10 access revenues with revenues from the RTF.
169-11 (d) A telecommunications provider may impose a surcharge on
169-12 or increase rates to its retail customers to collect its share of
169-13 the assessment, except that the surcharge or rate increases may not
169-14 be imposed on a service if its revenues are not subject to the RTF
169-15 assessment.
169-16 (e) On or before January 1, 1996, each incumbent local
169-17 exchange company shall inform the commission if the company intends
169-18 to receive funds from the RTF. An incumbent local exchange company
169-19 electing under Subtitle H of this title shall elect to receive
169-20 funds from the RTF. In an area as to which a local exchange
169-21 company that has a certificate of convenience and necessity on
169-22 September 1, 1995, informs the commission that it will not receive
169-23 RTF funds, that local exchange company and no other
169-24 telecommunications provider, including a holder of a certificate of
169-25 operating authority or service provider certificate of authority,
169-26 shall be assessed for revenues arising in that company's
169-27 certificated area.
170-1 (f) Effective July 1, 1996, each local exchange company that
170-2 has elected to receive RTF funds shall price its intrastate
170-3 switched access rates at the level of interstate switched access
170-4 rates as of January 1, 1995. This subsection does not authorize a
170-5 local exchange company to establish an end user charge. A company
170-6 electing under this section and having fewer than 100,000 access
170-7 lines in this state shall have the option to price its intrastate
170-8 switched access rates at the same level as the intrastate switched
170-9 access rates of a local exchange company having more than five
170-10 million access lines in this state. Coincident with this change,
170-11 the local exchange company shall reprice its intrastate intraLATA
170-12 toll rates proportionately. A local exchange company that receives
170-13 intraLATA toll settlements and that elects under this section shall
170-14 reprice its intraLATA toll rates at the same level as the intraLATA
170-15 toll rates of a local exchange company having more than five
170-16 million access lines in this state. The amount the company
170-17 receives from the RTF may not be increased after the repricing
170-18 required by this subsection except as permitted by Subsection (h)
170-19 of this section.
170-20 (g) The commission shall disburse funds from the RTF on a
170-21 revenue neutral basis to existing local exchange companies when
170-22 switched access and intraLATA toll rates have been repriced so that
170-23 those companies receive an amount from the RTF equal to the net
170-24 revenue reductions, including any additional settlements that
170-25 result from those reductions, specified by Subsection (f) of this
170-26 section for intraLATA toll and access. In addition, the commission
170-27 may use funds from the RTF to reimburse the commission for the
171-1 costs incurred by the commission in implementing and administering
171-2 this section.
171-3 (h) As to companies subject to commission substantive rule
171-4 16 T.A.C. Section 23.91, if price changes are required by the
171-5 commission following the completion of the pricing proceedings, the
171-6 commission may assess additional amounts to telecommunications
171-7 providers to fund any revenue reductions caused by those price
171-8 changes, but that assessment may not exceed the amount of embedded
171-9 non-traffic sensitive costs that are, at the time of the pricing
171-10 proceeding, allocated to or recovered from intraLATA toll and
171-11 switched access for those companies.
171-12 (i) The commission shall establish rules and procedures to
171-13 transitionally reduce RTF receipts for an area or areas of an
171-14 incumbent local exchange company in which another certificate of
171-15 convenience and necessity or a certificate of operating authority
171-16 or service provider certificate of operating authority has been
171-17 granted. After the basic local telecommunications service of the
171-18 incumbent local exchange company has been completely deregulated
171-19 for a particular geographic market area, receipts for the RTF shall
171-20 be reduced. The reduction shall be in proportion to the level of
171-21 non-traffic sensitive costs recovered from the RTF for that area or
171-22 areas. In making this determination, the commission shall take
171-23 into account the non-traffic sensitive costs incurred in the
171-24 particular geographic area. In the alternative, after a new
171-25 applicant has completed its build-out plan required by Section
171-26 3.2531 of this Act, the commission may reduce receipts for the RTF
171-27 for a particular geographic area, even if basic local exchange
172-1 telecommunications has not been completely deregulated, if the
172-2 commission orders that the RTF receipt reduction is revenue neutral
172-3 to the incumbent local exchange company involved.
172-4 (j) At the beginning of the fourth and fifth years following
172-5 the price changes specified by Subsection (f) of this section, and
172-6 in order to move services toward cost, on application of a local
172-7 exchange company, the commission may restructure the rates of
172-8 companies receiving funds from the RTF. An increase in the
172-9 revenues from the restructuring in the rates for local exchange
172-10 service shall be used to reduce a company's receipts from the RTF.
172-11 In calculating the amount of RTF reduction, a factor of 115 percent
172-12 of the new revenue generated from a local exchange service increase
172-13 shall be used. The commission may not approve a basic local rate
172-14 increase of more than five percent a year and the resulting rate
172-15 may not exceed the nationwide average of rates for the same
172-16 service.
172-17 (k) A revenue requirement showing is not required for a
172-18 receipt of disbursements from the RTF.
172-19 Sec. 3.611 <3.359>. SEVERABILITY. If this subtitle
172-20 conflicts with another provision of this Act, this subtitle
172-21 prevails.
172-22 SUBTITLE O <I>. AUTOMATIC DIAL ANNOUNCING DEVICES
172-23 Sec. 3.651 <3.401>. DEFINITIONS. In this subtitle:
172-24 (1) "Automated dial announcing device" or "ADAD" means
172-25 automated equipment used for telephone solicitation or collection
172-26 that is capable:
172-27 (A) of storing telephone numbers to be called or
173-1 that has a random or sequential number generator capable of
173-2 producing numbers to be called; and
173-3 (B) alone or in conjunction with other
173-4 equipment, of conveying a prerecorded or synthesized voice message
173-5 to the number called without the use of a live operator.
173-6 (2) "LEC" means a local exchange company, as that term
173-7 is defined by Section 3.002 <3.001> of this Act.
173-8 Sec. 3.652 <3.402>. EXEMPTIONS. This subtitle does not
173-9 apply to the use of an ADAD to make a telephone call:
173-10 (1) relating to an emergency or a public service under
173-11 a program developed or approved by the emergency management
173-12 coordinator of the county in which the call was received; or
173-13 (2) made by a public or private primary or secondary
173-14 school system to locate or account for a truant student.
173-15 Sec. 3.653 <3.403>. REQUIREMENTS FOR OPERATION OF ADAD.
173-16 (a) A person may not operate an ADAD to make a telephone call if
173-17 the device plays a recorded message when a connection is completed
173-18 to a telephone number unless:
173-19 (1) the person has obtained a permit from the
173-20 commission and given written notice specifying the type of device
173-21 to each telecommunications utility over whose system the device is
173-22 to be used;
173-23 (2) the device is not used for random number dialing
173-24 or to dial numbers determined by successively increasing or
173-25 decreasing integers;
173-26 (3) the message states during the first 30 seconds of
173-27 the call the nature of the call, the identity of the person,
174-1 company, or organization making the call, and the telephone number
174-2 from which the call was made, provided, however, that if an ADAD is
174-3 used for debt collection purposes and the use complies with
174-4 applicable federal law and regulations, and the ADAD is used by a
174-5 live operator for automatic dialing or hold announcement purposes,
174-6 the use complies with this subdivision;
174-7 (4) the device disconnects from the called person's
174-8 line not later than 30 seconds after the call is terminated by
174-9 either party or, if the device cannot disconnect within that
174-10 period, a live operator introduces the call and receives the oral
174-11 consent of the called person before beginning a prerecorded or
174-12 synthesized voice message; <and>
174-13 (5) the device, when used for solicitation purposes,
174-14 has a message shorter than one minute or has the technical capacity
174-15 to recognize a telephone answering device on the called person's
174-16 line and terminates the call within one minute; and
174-17 (6) for calls terminating in this state, the device is
174-18 not used to make a call:
174-19 (A) before noon or after 9 p.m. on a Sunday or
174-20 before 9 a.m. or after 9 p.m. on a weekday or a Saturday, if the
174-21 device is used for solicitation; or
174-22 (B) at an hour at which collection calls would
174-23 be prohibited under the federal Fair Debt Collection Practices Act
174-24 (15 U.S.C. Section 1692 et seq.), if the device is used for
174-25 collection purposes.
174-26 (b) In addition to the requirements prescribed by Subsection
174-27 (a) of this section, if during the call a cross-promotion or
175-1 reference to a pay-per-call information service is made, the call
175-2 shall include:
175-3 (1) a statement that a charge will be incurred by a
175-4 caller who makes a call to a pay-per-call information services
175-5 telephone number;
175-6 (2) the amount of the flat-rate or cost-per-minute
175-7 charge that will be incurred or the amount of both if both charges
175-8 will be incurred; and
175-9 (3) the estimated amount of time required to receive
175-10 the entire information offered by the service during a call.
175-11 (c) In this section, "pay-per-call information service"
175-12 means a service that allows a caller to dial a specified "900" or
175-13 "976" number to call a service that routinely delivers, for a
175-14 predetermined and sometimes time-sensitive fee, a prerecorded or
175-15 live message or interactive program.
175-16 Sec. 3.654 <3.404>. INVESTIGATION OF COMPLAINTS; VIOLATIONS;
175-17 DISCONNECTION OF SERVICE. (a) The commission shall investigate
175-18 complaints relating to the use of an ADAD and enforce this
175-19 subtitle.
175-20 (b) If the commission or a court determines that a person
175-21 has violated this subtitle, the commission or court shall require a
175-22 telecommunications utility to disconnect service to the person.
175-23 The telecommunications utility may reconnect service to the person
175-24 only on a determination by the commission that the person will
175-25 comply with this subtitle. The utility shall give notice to the
175-26 person using the device of its intent to disconnect service not
175-27 later than the third day before the date of the disconnection,
176-1 except that if the device is causing network congestion or
176-2 blockage, the notice may be given on the day before the date of
176-3 disconnection.
176-4 (c) A telecommunications utility may, without an order by
176-5 the commission or a court, disconnect or refuse to connect service
176-6 to a person using or intending to use an ADAD if the utility
176-7 determines that the device would cause or is causing network harm.
176-8 Sec. 3.655 <3.405>. APPLICATION FOR PERMIT TO OPERATE ADAD.
176-9 (a) An application for a permit to use one or more ADADs must be
176-10 made using the form prescribed by the commission and must be
176-11 accompanied by a fee in a reasonable amount computed to cover the
176-12 enforcement cost to the commission, but not to exceed $500, as
176-13 determined by the commission. A permit is valid for one year after
176-14 its effective date. Subject to Subsection (c) of this section, a
176-15 permit may be renewed annually by making the filing required by
176-16 this section and paying a filing fee of not more than $100, as
176-17 determined by the commission. The proceeds of the fees shall be
176-18 deposited to the credit of the general revenue fund.
176-19 (b) Each application for the issuance or renewal of a permit
176-20 under this section must contain the telephone number of each ADAD
176-21 that will be used and the physical address from which the ADAD will
176-22 operate. If the telephone number of an ADAD or the physical
176-23 address from which the ADAD operates changes, the owner or operator
176-24 of the ADAD shall notify the commission by certified mail of each
176-25 new number or address not later than the 48th hour before the hour
176-26 at which the ADAD will begin operating with the new telephone
176-27 number or at the new address. If the owner or operator of an ADAD
177-1 fails to notify the commission as required by this subsection
177-2 within the period prescribed by this subsection, the permit is
177-3 automatically invalid.
177-4 (c) In determining if a permit should be issued or renewed,
177-5 the commission shall consider the compliance record of the owner or
177-6 operator of the ADAD. The commission may deny an application for
177-7 the issuance or renewal of a permit because of the applicant's
177-8 compliance record.
177-9 (d) The commission shall provide to an LEC on request a copy
177-10 of a permit issued under this section and of any changes relating
177-11 to the permit.
177-12 (e) An LEC that receives a complaint relating to the use of
177-13 an ADAD shall send the complaint to the commission. The commission
177-14 by rule shall prescribe the procedures and requirements for sending
177-15 a complaint to the commission.
177-16 Sec. 3.656 <3.406>. VIOLATIONS; PENALTIES. (a) A person
177-17 who owns or operates an ADAD and who operates the ADAD without a
177-18 valid permit or with an expired permit or who operates the ADAD in
177-19 violation of this subtitle or a commission rule or order is subject
177-20 to an administrative penalty of not more than $1,000 for each day
177-21 or portion of a day during which the ADAD was operating in
177-22 violation of this section.
177-23 (b) The administrative penalty authorized by this section is
177-24 civil in nature and is cumulative of any other penalty provided by
177-25 law.
177-26 (c) The commission by rule shall prescribe the procedures
177-27 for assessing an administrative penalty under this section. The
178-1 procedures shall require proper notice and hearing in accordance
178-2 with Chapter 2001, Government Code.
178-3 (d) A person may appeal the final order of the commission
178-4 under Chapter 2001, Government Code, using the substantial evidence
178-5 rule on appeal.
178-6 (e) The proceeds of administrative penalties collected under
178-7 this section shall be deposited to the credit of the general
178-8 revenue fund.
178-9 Sec. 3.657 <3.407>. REVOCATION OF PERMIT; OFFENSES.
178-10 (a) The commission may revoke a permit issued under this subtitle
178-11 for failure to comply with this subtitle.
178-12 (b) A person commits an offense if the person owns or
178-13 operates an ADAD that the person knows is operating in violation of
178-14 this subtitle. An offense under this subsection is a Class A
178-15 misdemeanor.
178-16 Sec. 3.658 <3.408>. RULEMAKING AUTHORITY. The commission
178-17 may adopt any rules necessary to carry out its powers and duties
178-18 under this subtitle.
178-19 Sec. 3.659 <3.409>. COMPLIANCE WITH CONSUMERS' REQUESTS NOT
178-20 TO BE CALLED. Every telephone solicitor operating in this state
178-21 who makes consumer telephone calls subject to Section 37.02 of the
178-22 Business & Commerce Code shall implement in-house systems and
178-23 procedures so that every effort is made not to call consumers who
178-24 ask not to be called again. The commission is granted all
178-25 necessary power and authority to enforce the provisions of this
178-26 section.
178-27 Sec. 3.660 <3.410>. NOTICE TO CONSUMER OF PROVISIONS OF
179-1 CHAPTER 37 OF THE BUSINESS & COMMERCE CODE AND SECTION 3.659
179-2 <3.409>. The commission by rule shall require that a local
179-3 exchange company or telephone cooperative inform its customers of
179-4 the provisions of Chapter 37 of the Business & Commerce Code and
179-5 Section 3.659 <3.409> of this Act by:
179-6 (1) inserting the notice annually in the billing
179-7 statement mailed to a customer; or
179-8 (2) publishing the notice in the consumer information
179-9 pages of its local telephone directory.
179-10 SECTION 47. (a) Subchapter D, Chapter 74, Property Code, is
179-11 amended by adding Section 74.3011 to read as follows:
179-12 Sec. 74.3011. DELIVERY OF MONEY TO RURAL SCHOLARSHIP FUND.
179-13 (a) Notwithstanding and in addition to any other provision of this
179-14 chapter or other law, a local telephone exchange company may
179-15 deliver reported money to a scholarship fund for rural students
179-16 instead of delivering the money to the state treasurer as
179-17 prescribed by Section 74.301.
179-18 (b) A local telephone exchange company may deliver the money
179-19 under this section only to a scholarship fund established by one or
179-20 more local telephone exchange companies in this state to enable
179-21 needy students from rural areas to attend college, technical
179-22 school, or another postsecondary educational institution.
179-23 (c) A local telephone exchange company shall file with the
179-24 state treasurer a verification of money delivered under this
179-25 section that complies with Section 74.302.
179-26 (d) A claim for money delivered to a scholarship fund under
179-27 this section must be filed with the local telephone exchange
180-1 company that delivered the money. The local telephone exchange
180-2 company shall forward the claim to the administrator of the
180-3 scholarship fund to which the money was delivered. The scholarship
180-4 fund shall pay the claim if the fund determines in good faith that
180-5 the claim is valid. A person aggrieved by a claim decision may
180-6 file a suit against the fund in a district court in the county in
180-7 which the administrator of the scholarship fund is located in
180-8 accordance with Section 74.506.
180-9 (e) The state treasurer shall prescribe forms and procedures
180-10 governing this section, including forms and procedures relating to:
180-11 (1) notice of presumed abandoned property;
180-12 (2) delivery of reported money to a scholarship fund;
180-13 and
180-14 (3) filing of a claim.
180-15 (f) In this section, "local telephone exchange company"
180-16 means a telecommunications utility certificated to provide local
180-17 exchange service within the state and that is a telephone
180-18 cooperative or has fewer than 50,000 access lines in service in
180-19 this state.
180-20 (g) During a state fiscal year, the total amount of money
180-21 that may be transferred by all local telephone exchange companies
180-22 under this section may not exceed $400,000. The state treasury
180-23 shall keep a record of the total amount of money transferred
180-24 annually. When the total amount of money transferred during a state
180-25 fiscal year equals the amount allowed by this subsection, the
180-26 treasury shall notify each local telephone exchange company that
180-27 the company may not transfer any additional money to the company's
181-1 scholarship fund during the remainder of that state fiscal year.
181-2 (b) Section 74.3011, Property Code, as added by this Act,
181-3 applies only to money that a local telephone exchange company would
181-4 otherwise be required to deliver to the state treasurer on or after
181-5 the effective date of this Act. Money that was required to be
181-6 delivered to the state treasurer before the effective date of this
181-7 Act is governed by the law in effect when the money was required to
181-8 be delivered, and that law is continued in effect for that purpose.
181-9 SECTION 48. (a) Subchapter D, Chapter 74, Property Code, is
181-10 amended by adding Section 74.3012 to read as follows:
181-11 Sec. 74.3012. DELIVERY OF MONEY TO URBAN SCHOLARSHIP FUND.
181-12 (a) Notwithstanding and in addition to any other provision of this
181-13 chapter or other law, a local exchange company may deliver reported
181-14 money to a scholarship fund for urban students instead of
181-15 delivering the money to the state treasurer as prescribed by
181-16 Section 74.301.
181-17 (b) A local exchange company may deliver the money under
181-18 this section only to a scholarship fund established by one or more
181-19 local exchange companies in this state to enable needy students
181-20 from urban areas to attend college, technical school, or another
181-21 postsecondary educational institution.
181-22 (c) A local exchange company shall file with the state
181-23 treasurer a verification of money delivered under this section that
181-24 complies with Section 74.302.
181-25 (d) A claim for money delivered to a scholarship fund under
181-26 this section must be filed with the local exchange company that
181-27 delivered the money. The local exchange company shall forward the
182-1 claim to the administrator of the scholarship fund to which the
182-2 money was delivered. The scholarship fund shall pay the claim if
182-3 the fund determines in good faith that the claim is valid. A person
182-4 aggrieved by a claim decision may file a suit against the fund in a
182-5 district court in the county in which the administrator of the
182-6 scholarship fund is located in accordance with Section 74.506.
182-7 (e) The state treasurer shall prescribe forms and procedures
182-8 governing this section, including forms and procedures relating to:
182-9 (1) notice of presumed abandoned property;
182-10 (2) delivery of reported money to a scholarship fund;
182-11 and
182-12 (3) filing of a claim.
182-13 (f) In this section, "local exchange company" means a
182-14 telecommunications utility certificated to provide local exchange
182-15 telephone service within the state and that has 50,000 or more
182-16 access lines in service in this state and is not a telephone
182-17 cooperative.
182-18 (g) During the 1995-1996 fiscal year, the total amount of
182-19 money that may be transferred by all local exchange companies under
182-20 this section may not exceed $400,000. During each subsequent state
182-21 fiscal year, the total amount of money that may be transferred by
182-22 all local exchange companies under this section may not exceed the
182-23 total amount of money transferred to rural scholarship funds under
182-24 Section 74.3011 during the previous state fiscal year. The state
182-25 treasury shall keep a record of the total amount of money
182-26 transferred annually. If the total amount of money transferred
182-27 during a state fiscal year equals the amount allowed by this
183-1 subsection, the treasury shall notify each local exchange company
183-2 that the company may not transfer any additional money to the
183-3 company's scholarship fund during the remainder of that state
183-4 fiscal year.
183-5 (b) Section 74.3012, Property Code, as added by this Act,
183-6 applies only to money that a local exchange company would otherwise
183-7 be required to deliver to the state treasurer on or after the
183-8 effective date of this Act. Money that was required to be delivered
183-9 to the state treasurer before the effective date of this Act is
183-10 governed by the law in effect when the money was required to be
183-11 delivered, and that law is continued in effect for that purpose.
183-12 SECTION 49. As soon as possible after the effective date of
183-13 this Act, the governor and lieutenant governor shall appoint the
183-14 members of the Telecommunications Infrastructure Fund Board created
183-15 by Section 3.606, Public Utility Regulatory Act of 1995, as enacted
183-16 by S.B. 319, Acts of the 74th Legislature, Regular Session, 1995,
183-17 as added by this Act. The governor shall appoint two members with
183-18 terms expiring on August 31, 1997, two members with terms expiring
183-19 on August 31, 1999, and two members with terms expiring on August
183-20 31, 2001. The terms of the members appointed from the list
183-21 provided by the speaker of the house of representatives must be
183-22 staggered so that the terms of one-third of those appointees expire
183-23 every odd-numbered year. The lieutenant governor shall appoint one
183-24 member with a term expiring on August 31, 1997, one member with a
183-25 term expiring on August 31, 1999, and one member with a term
183-26 expiring on August 31, 2001.
183-27 SECTION 50. All laws or parts of laws in conflict with this
184-1 Act are repealed effective September 1, 1995.
184-2 SECTION 51. (a) This Act takes effect September 1, 1995.
184-3 (b) Section 3.2555, Public Utility Regulatory Act of 1995,
184-4 as enacted by S.B. 319, Acts of the 74th Legislature, Regular
184-5 Session, 1995, as added by this Act, applies only to a franchise or
184-6 contract entered into or amended on or after September 1, 1995. A
184-7 franchise or contract entered into before September 1, 1995, and
184-8 not amended on or after that date is governed by the law in effect
184-9 when the contract was entered into or last amended, and that law is
184-10 continued in effect for that purpose.
184-11 (c) Section 3.304(a)(3)(A)(i), Public Utility Regulatory Act
184-12 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
184-13 Regular Session, 1995, as amended by this Act, applies only to a
184-14 petition filed on or after April 15, 1995. A petition filed before
184-15 April 15, 1995, is governed by the law in effect when the petition
184-16 was filed, and that law is continued in effect for that purpose.
184-17 SECTION 52. The importance of this legislation and the
184-18 crowded condition of the calendars in both houses create an
184-19 emergency and an imperative public necessity that the
184-20 constitutional rule requiring bills to be read on three several
184-21 days in each house be suspended, and this rule is hereby suspended.