By Seidlits, Moffat H.B. No. 2128
74R7734 T
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of utilities and to the continuation of
1-3 the Public Utility Commission of Texas.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The Public Utility Regulatory Act (Article 1446c,
1-6 Vernon's Texas Civil Statutes), is amended to read as follows:
1-7 ARTICLE 1. SHORT TITLE, LEGISLATIVE POLICY,
1-8 AND DEFINITIONS
1-9 Sec. 1. This Act may be referred to as the "Public Utility
1-10 Regulatory Act."
1-11 Sec. 2. This Act is enacted to protect the public interest
1-12 inherent in the rates and services of public utilities. The
1-13 legislature finds that traditionally public utilities are by
1-14 definition monopolies in the areas they serve; that therefore the
1-15 normal forces of competition which operate to regulate prices in a
1-16 free enterprise society do not operate; and that therefore utility
1-17 rates, operations and services are regulated by public agencies,
1-18 with the objective that such regulation shall operate as a
1-19 substitute for such competition. The purpose of this Act is to
1-20 establish a comprehensive regulatory system which is adequate to
1-21 the task of regulating public utilities as defined by this Act, to
1-22 assure rates, operations, and services which are just and
1-23 reasonable to the consumers and to the utilities. The legislature
1-24 finds that significant changes have occurred in telecommunications
2-1 since the Act was initially adopted. The legislature hereby finds
2-2 that it is the policy of the state to promote diversity of
2-3 providers and interconnectivity and to encourage a fully
2-4 competitive telecommunications marketplace while protecting and
2-5 maintaining the wide availability of high-quality
2-6 telecommunications services at affordable rates. Such goals are
2-7 best achieved by legislation that brings telecommunications
2-8 regulation into the modern era by guaranteeing the affordability of
2-9 basic telephone service, in a competitively neutral manner, while
2-10 fostering free market competition within the telecommunication
2-11 industry. The legislature further finds that the technological
2-12 advancements and increased customer choices for telecommunications
2-13 services generated by a truly competitive market will enhance
2-14 Texas' economic development and play a critical role in Texas'
2-15 economic future. It is the policy of the state to require the
2-16 commission to do those things necessary to enhance the development
2-17 of competition by adjusting regulation to match the degree of
2-18 competition in the market place, thereby reducing the cost and
2-19 burden of regulation and maintaining protection of markets that are
2-20 not competitive. However, the legislature recognizes that the
2-21 strength of competitive forces vary widely between markets and
2-22 products and services. Therefore, to foster, encourage, and
2-23 accelerate the continuing emergence of a competitive
2-24 telecommunications environment, the legislature declares that new
2-25 rules, policies and principles be formulated and applied to protect
2-26 the public interest.
2-27 Sec. 3. (a) The term "person," when used in this Act,
3-1 includes natural persons, partnerships of two or more persons
3-2 having a joint or common interest, mutual or cooperative
3-3 associations, <water supply or sewer service corporations,> and
3-4 corporations, as herein defined.
3-5 (b) The term "municipality," when used in this Act, includes
3-6 cities and incorporated villages or towns existing, created, or
3-7 organized under the general, home-rule, or special laws of the
3-8 state.
3-9 (c) The term "public utility" or "utility," when used in
3-10 this Act, includes any person, corporation, river authority,
3-11 cooperative corporation, or any combination thereof, other than a
3-12 municipal corporation <or a water supply or sewer service
3-13 corporation>, or their lessees, trustees, and receivers, now or
3-14 hereafter owning or operating for compensation in this state
3-15 equipment or facilities for:
3-16 (1) producing, generating, transmitting, distributing,
3-17 selling, or furnishing electricity ("electric utilities"
3-18 hereinafter) provided, however, that this definition shall not be
3-19 construed to apply to or include a qualifying small power producer
3-20 or qualifying cogenerator, as defined in Sections 3(17)(D) and
3-21 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
3-22 796(17)(D) and 796(18)(C));
3-23 (2)(A) the conveyance, transmission, or reception of
3-24 communications over a telephone system as a dominant carrier as
3-25 hereinafter defined ("telecommunications utilities" hereinafter);
3-26 provided that no person or corporation not otherwise a public
3-27 utility within the meaning of this Act shall be deemed such solely
4-1 because of the furnishing or furnishing and maintenance of a
4-2 private system or the manufacture, distribution, installation, or
4-3 maintenance of customer premise communications equipment and
4-4 accessories; and further that except as provided in Sections 96B,
4-5 98 and 98B, nothing in this Act shall be construed to apply to
4-6 companies whose only form of business is telecommunications
4-7 managers and companies that administer central office-based
4-8 PBX-type sharing/resale arrangements as their only form of
4-9 business, telegraph services, television stations, radio stations,
4-10 community antenna television services, or radio-telephone services
4-11 that may be authorized under the Public Mobile Radio Services rules
4-12 of the Federal Communications Commission, or Commercial Radio
4-13 Mobile Service ("CRMS") providers, pursuant to sections 3(n) and
4-14 322 of the Federal Communications Commission rules, the
4-15 Communications Act and the Omnibus Budget Reconciliation Act of
4-16 1993, other than such radio-telephone services provided by
4-17 wire-line telephone companies under the Domestic Public Land Mobile
4-18 Radio Service and Rural Radio Service rules of the Federal
4-19 Communications Commission; and provided further that interexchange
4-20 telecommunications carriers (including resellers of interexchange
4-21 telecommunications services), specialized communications common
4-22 carriers, other resellers of communications, other communications
4-23 carriers who convey, transmit, or receive communications in whole
4-24 or in part over a telephone system, <and> providers of operator
4-25 services as defined in Section 18(A)(a) of this Act, and separated
4-26 affiliate and electronic publishing joint ventures as defined in
4-27 Article VIII of this Act (except that subscribers to customer-owned
5-1 pay telephone service shall not be deemed to be telecommunications
5-2 utilities) are also telecommunications utilities, but the
5-3 commission's regulatory authority as to them is only as hereinafter
5-4 defined;
5-5 (B) "dominant carrier" when used in this Act
5-6 means (i) a provider of any particular communication service which
5-7 is provided in whole or in part over a telephone system who as to
5-8 such service has sufficient market power in a telecommunications
5-9 market as determined by the commission to enable such provider to
5-10 control prices in a manner adverse to the public interest for such
5-11 service in such market; and (ii) any provider who, on September 1,
5-12 1995, provided <of> local exchange telephone service within a
5-13 certificated area as to such service, and any provider of local
5-14 exchange telephone service who, on September 1, 1995, provided any
5-15 other service for which no competitive alternative was available in
5-16 a particular geographic market as to such other service; and (iii)
5-17 any provider of local exchange telephone service within a
5-18 certificated exchange area as to intraLATA long distance message
5-19 telecommunications service originated by dialing the access code
5-20 "1+" so long as the use of such code for the origination of "1+"
5-21 intraLATA calls within its certificated exchange area is exclusive
5-22 to such provider. A telecommunications market shall be statewide
5-23 until January 1, 1985. After this date the commission may, if it
5-24 determines that the public interest will be served, establish
5-25 separate markets within the state. The <Prior to January 1, 1985,
5-26 the> commission shall hold such hearings and require such evidence
5-27 as is necessary to carry out the public purpose of this Act and to
6-1 determine the need and effect of establishing separate markets.
6-2 Any such provider determined to be a dominant carrier as to a
6-3 particular telecommunications service in a market shall not be
6-4 presumed to be a dominant carrier of a different telecommunications
6-5 service in that market. The term does not include an interexchange
6-6 carrier that is not a certificated local exchange carrier, with
6-7 respect to interexchange services.
6-8 (3) The term "public utility" or "utility" shall not
6-9 include any person or corporation not otherwise a public utility
6-10 that furnishes the services or commodity described in any paragraph
6-11 of this subsection only to itself, its employees, or tenants as an
6-12 incident of such employee service or tenancy, when such service or
6-13 commodity is not resold to or used by others. The term "electric
6-14 utility" shall not include any person or corporation not otherwise
6-15 a public utility that owns or operates in this state equipment or
6-16 facilities for producing, generating, transmitting, distributing,
6-17 selling, or furnishing electric energy to an electric utility, if
6-18 the equipment or facilities are used primarily for the production
6-19 and generation of electric energy for consumption by the person or
6-20 corporation. The term "public utility," "utility," or "electric
6-21 utility" shall not include any person or corporation not otherwise
6-22 a public utility that owns or operates in this state a recreational
6-23 vehicle park that provides metered electric service in accordance
6-24 with Article 1446d-2, Revised Statutes. A recreational vehicle
6-25 park owner is considered a public utility if the owner fails to
6-26 comply with Article 1446d-2, Revised Statutes, with regard to the
6-27 metered sale of electricity at the recreational vehicle park.
7-1 (d) The term "rate," when used in this Act, means and
7-2 includes every compensation, tariff, charge, fare, toll, rental,
7-3 and classification, or any of them demanded, observed, charged, or
7-4 collected whether directly or indirectly by any public utility for
7-5 any service, product, or commodity described in Subdivision (c) of
7-6 this section, and any rules, regulations, practices, or contracts
7-7 affecting any such compensation, tariff, charge, fare, toll,
7-8 rental, or classification.
7-9 (e) The word "commission," when used in this Act, means the
7-10 Public Utility Commission of Texas, as hereinafter constituted.
7-11 (f) Repealed.
7-12 (g) The term "regulatory authority," when used in this Act,
7-13 means, in accordance with the context where it is found, either the
7-14 commission or the governing body of any municipality.
7-15 (h) "Affected person" means any public utility affected by
7-16 an action of the regulatory authority, any person or corporation
7-17 whose utility service or rates are affected by any proceeding
7-18 before the regulatory authority, or any person or corporation that
7-19 is a competitor of a public utility with respect to any service
7-20 performed by the utility or that desires to enter into competition.
7-21 (i) "Affiliated interest" or "affiliate" means:
7-22 (1) any person or corporation owning or holding,
7-23 directly or indirectly, five percent or more of the voting
7-24 securities of a public utility;
7-25 (2) any person or corporation in any chain of
7-26 successive ownership of five percent or more of the voting
7-27 securities of a public utility;
8-1 (3) any corporation five percent or more of the voting
8-2 securities of which is owned or controlled, directly or indirectly,
8-3 by a public utility;
8-4 (4) any corporation five percent or more of the voting
8-5 securities of which is owned or controlled, directly or indirectly,
8-6 by any person or corporation that owns or controls, directly or
8-7 indirectly, five percent or more of the voting securities of any
8-8 public utility or by any person or corporation in any chain of
8-9 successive ownership of five percent of such securities;
8-10 (5) any person who is an officer or director of a
8-11 public utility or of any corporation in any chain of successive
8-12 ownership of five percent or more of voting securities of a public
8-13 utility;
8-14 (6) any person or corporation that the commission,
8-15 after notice and hearing, determines actually exercises any
8-16 substantial influence or control over the policies and actions of a
8-17 public utility, or over which a public utility exercises such
8-18 control, or that is under common control with a public utility,
8-19 such control being the possession, directly or indirectly, of the
8-20 power to direct or cause the direction of the management and
8-21 policies of another, whether such power is established through
8-22 ownership or voting of securities or by any other direct or
8-23 indirect means; or
8-24 (7) any person or corporation that the commission,
8-25 after notice and hearing determines is actually exercising such
8-26 substantial influence over the policies and action of the public
8-27 utility in conjunction with one or more persons or corporations
9-1 with which they are related by ownership or blood relationship, or
9-2 by action in concert, that together they are affiliated with such
9-3 public utility within the meaning of this section, even though no
9-4 one of them alone is so affiliated.
9-5 (j) "Allocations" means, for all utilities, the division of
9-6 plant, revenues, expenses, taxes, and reserves between
9-7 municipalities or between municipalities and unincorporated areas,
9-8 where such items are used for providing public utility service in a
9-9 municipality, or for a municipality and unincorporated areas.
9-10 (k) "Commissioner" means a member of the Public Utility
9-11 Commission of Texas.
9-12 (l) "Cooperative corporation" means any telephone or
9-13 electric cooperative corporation organized and operating under the
9-14 Telephone Cooperative Act (Article 1528c, Vernon's Texas Civil
9-15 Statutes) or the Electric Cooperative Corporation Act (Article
9-16 1528b, Vernon's Texas Civil Statutes).
9-17 (m) "Corporation" means any corporation, joint-stock
9-18 company, or association, domestic or foreign, and its lessees,
9-19 assignees, trustees, receivers, or other successors in interest,
9-20 having any of the powers or privileges of corporations not
9-21 possessed by individuals or partnerships, but shall not include
9-22 municipal corporations unless expressly provided otherwise in this
9-23 Act.
9-24 (n) "Facilities" means all the plant and equipment of a
9-25 public utility, including all tangible and intangible real and
9-26 personal property without limitation, and any and all means and
9-27 instrumentalities in any manner owned, operated, leased, licensed,
10-1 used, controlled, furnished, or supplied for, by, or in connection
10-2 with the business of any public utility.
10-3 (o) "Municipally-owned utility" means any utility owned,
10-4 operated, and controlled by a municipality or by a nonprofit
10-5 corporation whose directors are appointed by one or more
10-6 municipalities.
10-7 (p) "Order" means the whole or a part of the final
10-8 disposition, whether affirmative, negative, injunctive, or
10-9 declaratory in form, of the regulatory authority in a matter other
10-10 than rulemaking, but including issuance of certificates of
10-11 convenience and necessity and ratesetting.
10-12 (q) "Proceeding" means any hearing, investigation, inquiry,
10-13 or other fact-finding or decision-making procedure under this Act
10-14 and includes the denial of relief or the dismissal of a complaint.
10-15 (r) "Separation" means for communications utilities only,
10-16 the division of plant, revenues, expenses, taxes, and reserves,
10-17 applicable to exchange or local service where such items are used
10-18 in common for providing public utility service to both local
10-19 exchange service and other service, such as interstate or
10-20 intrastate toll service.
10-21 (s) "Service" is used in this Act in its broadest and most
10-22 inclusive sense, and includes any and all acts done, rendered, or
10-23 performed and any and all things furnished or supplied, and any and
10-24 all facilities used, furnished, or supplied by public utilities in
10-25 the performance of their duties under this Act to their patrons,
10-26 employees, other public utilities, and the public, as well as the
10-27 interexchange of facilities between two or more of them. Service
11-1 shall not include the printing, distribution, or sale of
11-2 advertising in telephone directories.
11-3 (t) "Test year" means the most recent 12 months for which
11-4 operating data for a public utility are available and shall
11-5 commence with a calendar quarter or a fiscal year quarter.
11-6 (u) "Water supply or sewer service corporation" means a
11-7 nonprofit, member-owned corporation organized and operating under
11-8 Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933,
11-9 as amended (Article 1434a, Vernon's Texas Civil Statutes).
11-10 (v) "Local exchange company" means a telecommunications
11-11 utility <certificated> that has been granted either a certificate
11-12 of convenience and necessity or a certificate of operating
11-13 authority to provide local exchange service, basic local
11-14 telecommunications service or switched access service within the
11-15 state.
11-16 (w) "Basic local telecommunications service" means:
11-17 (1) Residential and Business Local Exchange Service,
11-18 including Primary Directory Listings;
11-19 (2) Tone Dialing Service;
11-20 (3) Access to Operator Services:
11-21 (4) Access to Directory Assistance services;
11-22 (5) Access to 911 Service where provided by local
11-23 authorities and Dual Party Relay Service;
11-24 (6) The ability to report service problems seven days
11-25 a week;
11-26 (7) Lifeline and Tel-Assistance Services; and
11-27 (8) Such other services as the commission shall
12-1 determine should be included in basic local telecommunications
12-2 service.
12-3 (x) "Long run incremental cost" or "LRIC" shall be as
12-4 defined by the commission in Section 23.91, Texas Administrative
12-5 Code.
12-6 (y) "Least cost technology" means the technology, or mix of
12-7 technologies, that would be chosen in the long run as the most
12-8 economically efficient choice. The choice of least cost
12-9 technologies, however, shall: (a) be restricted to technologies
12-10 that are currently available on the market and for which vendor
12-11 prices can be obtained; (b) be consistent with the level of output
12-12 necessary to satisfy current demand levels for all services using
12-13 the basic network function in question; and (c) be consistent with
12-14 overall network design and topology requirements.
12-15 (z) "Pricing flexibility" includes, but is not limited to,
12-16 customer specific contracts, volume, term and discount pricing,
12-17 zone density pricing, packaging of services and other promotional
12-18 pricing flexibility. Discounts and other forms of pricing
12-19 flexibility shall be cost based and may not be preferential,
12-20 prejudicial, or discriminatory.
12-21 (aa) "Telecommunications provider" means certificated
12-22 telecommunication utilities, shared tenant service providers,
12-23 non-dominant carriers of telecommunications services, providers of
12-24 radio-telephone services authorized under the Commercial Radio
12-25 Mobile Service pursuant to Section 3(n) and 322 of Federal
12-26 Communications Commission rules, the Communications Act and the
12-27 Omnibus Budget Reconciliation Act of 1993, telecommunications
13-1 entities that provide central office-based PBX-type sharing or
13-2 resale arrangements where such arrangements are permitted by the
13-3 commission, interexchange telecommunications carriers, specialized
13-4 common carriers, resellers of communications, providers of operator
13-5 services, providers of customer owned pay telephone service and
13-6 other persons or entities as the commission may from time to time
13-7 find provide telecommunications services to customers in Texas.
13-8 Telecommunications providers shall not include providers of
13-9 enhanced information services or other users of telecommunications
13-10 services who do not also provide telecommunications services.
13-11 (bb) "Local exchange telephone service" as used in this Act
13-12 means telecommunications service provided within an exchange for
13-13 the purpose of establishing connections between customer premises
13-14 within the exchange, including connections between a customer
13-15 premises and a long distance provider serving the exchange. The
13-16 term includes tone dialing, service connection charges and
13-17 directory assistance services when offered in connection with basic
13-18 local telecommunications service and interconnection with other
13-19 service providers. The term "local exchange telephone service"
13-20 shall not include the following services, whether offered on an
13-21 intraexchange or interexchange basis:
13-22 (1) Central office based PBX services for systems of
13-23 75 stations or more;
13-24 (2) Billing and collection services;
13-25 (3) High speed private line services of 1.544 megabits
13-26 or greater;
13-27 (4) Customized services;
14-1 (5) Private line and virtual private line services;
14-2 (6) Resold or shared local exchange services where
14-3 permitted by tariff;
14-4 (7) Dark fiber services;
14-5 (8) Non-voice data transmission service;
14-6 (9) Dedicated or virtually dedicated access services;
14-7 and
14-8 (10) Any other service declared by the commission not
14-9 to be "local exchange telephone service."
14-10 (cc) "Tier 1 local exchange company" shall have the same
14-11 meaning as a Tier 1 local exchange company as defined by the
14-12 Federal Communications Commission.
14-13 Sec. 4. The Administrative Procedure and Texas Register Act
14-14 applies to all proceedings under this Act except to the extent
14-15 inconsistent with this Act. Communications of members and
14-16 employees of the commission with a party, a party's representative,
14-17 or other persons are governed by Section 17 of that Act.
14-18 ARTICLE II. ORGANIZATION OF COMMISSION; OFFICE OF
14-19 PUBLIC UTILITY COUNSEL
14-20 Sec. 5. A commission, to be known as the "Public Utility
14-21 Commission of Texas" is hereby created. It shall consist of three
14-22 commissioners, who shall be appointed to staggered, six-year terms
14-23 by the governor, with the advice and consent of two-thirds of the
14-24 members of the senate present, and who shall have and exercise the
14-25 jurisdiction and powers herein conferred upon the commission. Each
14-26 commissioner shall hold office until his successor is appointed and
14-27 qualified. At its first meeting following the biennial appointment
15-1 and qualification of a commissioner, the commission shall elect one
15-2 of the commissioners chairman. Appointments to the commission
15-3 shall be made without regard to the race, creed, sex, religion, or
15-4 national origin of the appointees.
15-5 Sec. 5a. The Public Utility Commission of Texas and the
15-6 Office of Public Utility Counsel are subject to Chapter 325,
15-7 Government Code (Texas Sunset Act). Unless continued in existence
15-8 as provided by that chapter, the commission and the office are
15-9 abolished and this Act expires September 1, <1995> 2001.
15-10 Sec. 6. (a) To be eligible for appointment as a
15-11 commissioner, a person must be a qualified voter, not less than 30
15-12 years of age, a citizen of the United States, and a resident of the
15-13 State of Texas. No person is eligible for appointment as a
15-14 commissioner if at any time during the two-year period immediately
15-15 preceding his appointment he personally served as an officer,
15-16 director, owner, employee, partner, or legal representative of any
15-17 public utility or any affiliated interest, or he owned or
15-18 controlled, directly or indirectly, stocks or bonds of any class
15-19 with a value of $10,000 or more in a public utility or any
15-20 affiliated interest. Each commissioner shall qualify for office by
15-21 taking the oath prescribed for other state officers and shall
15-22 execute a bond for $5,000 payable to the state and conditioned on
15-23 the faithful performance of his duties. A person who is required
15-24 to register as a lobbyist under Chapter 305, Government Code, may
15-25 not serve as a member of the commission or public utility counsel
15-26 or act as the general counsel to the commission.
15-27 (b) No commissioner or employee of the commission may do any
16-1 of the following during his period of service with the commission:
16-2 (1) have any pecuniary interest, either as an officer,
16-3 director, partner, owner, employee, attorney, consultant, or
16-4 otherwise, in any public utility or affiliated interest, or in any
16-5 person or corporation or other business entity a significant
16-6 portion of whose business consists of furnishing goods or services
16-7 to public utilities or affiliated interests, but not including a
16-8 nonprofit group or association solely supported by gratuitous
16-9 contributions of money, property or services;
16-10 (2) own or control any securities in a public utility
16-11 or affiliated interest, either directly or indirectly;
16-12 (3) accept any gift, gratuity, or entertainment
16-13 whatsoever from any public utility or affiliated interest, or from
16-14 any person, corporation, agent, representative, employee, or other
16-15 business entity a significant portion of whose business consists of
16-16 furnishing goods or devices to public utilities or affiliated
16-17 interests, or from any agent, representative, attorney, employee,
16-18 officer, owner, director, or partner of any such business entity or
16-19 of any public utility or affiliated interest; provided, however,
16-20 that the receipt and acceptance of any gifts, gratuities, or
16-21 entertainment after termination of service with the commission
16-22 whose cumulative value in any one-year period is less than $100
16-23 shall not constitute a violation of this Act.
16-24 (c) The prohibited activities of this section do not include
16-25 contracts for public utility products and services or equipment for
16-26 use of public utility products when a member or employee of the
16-27 commission is acting as a consumer.
17-1 (d) No commissioner or employee of the commission may
17-2 directly or indirectly solicit or request from or suggest or
17-3 recommend to, any public utility, or to any agent, representative,
17-4 attorney, employee, officer, owner, director, or partner thereof,
17-5 the appointment to any position or the employment in any capacity
17-6 of any person by such public utility or affiliated interest.
17-7 (e) No public utility or affiliated interest or any person,
17-8 corporation, firm, association, or business that furnishes goods or
17-9 services to any public utility or affiliated interest, nor any
17-10 agent, representative, attorney, employee, officer, owner,
17-11 director, or partner of any public utility or affiliated interest,
17-12 or any person, corporation, firm, association, or business
17-13 furnishing goods or services to any public utility or affiliated
17-14 interest may give, or offer to give, any gift, gratuity,
17-15 employment, or entertainment whatsoever to any member or employee
17-16 of the commission except as allowed by Subdivision (3) of
17-17 Subsection (b) of this section, nor may any such public utility or
17-18 affiliated interest or any such person, corporation, firm,
17-19 association, or business aid, abet, or participate with any member,
17-20 employee, or former employee of the commission in any activity or
17-21 conduct that would constitute a violation of this Subsection or
17-22 Subdivision (3) of Subsection (b) of this section.
17-23 (f) It shall not be a violation of this section if a member
17-24 of the commission or person employed by the commission, upon
17-25 becoming the owner of any stocks or bonds or other pecuniary
17-26 interest in a public utility or affiliated interest under the
17-27 jurisdiction of the commission otherwise than voluntarily, informs
18-1 the commission and the attorney general of such ownership and
18-2 divests himself of the ownership or interest within a reasonable
18-3 time. In this section, a "pecuniary interest" includes income,
18-4 compensation and payment of any kind, in addition to ownership
18-5 interests. It is not a violation of this section if such a
18-6 pecuniary interest is held indirectly by ownership of an interest
18-7 in a retirement system, institution, or fund which in the normal
18-8 course of business invests in diverse securities independently of
18-9 the control of the commissioner or employee.
18-10 (g) Repealed.
18-11 (h) No member of the commission may seek nomination or
18-12 election to any civil office of the State of Texas or of the United
18-13 States while he is a commissioner. If any member of the commission
18-14 files for nomination for or election to any civil office of the
18-15 State of Texas or of the United States, his office as commissioner
18-16 immediately becomes vacant, and the governor shall appoint a
18-17 successor.
18-18 (i) No commissioner shall within two years, and no employee
18-19 shall, within one year after his employment with the commission has
18-20 ceased, be employed by a public utility which was in the scope of
18-21 the commissioner's or employee's official responsibility while the
18-22 commissioner or employee was associated with the commission.
18-23 (j) During the time a commissioner or employee of the
18-24 commission is associated with the commission or at any time after,
18-25 the commissioner or employee may not represent a person,
18-26 corporation, or other business entity before the commission or a
18-27 court in a matter in which the commissioner or employee was
19-1 personally involved while associated with the commission or a
19-2 matter that was within the commissioner's or employee's official
19-3 responsibility while the commissioner or employee was associated
19-4 with the commission.
19-5 (k) The commission shall require its members and employees
19-6 to read this section and as often as necessary shall provide
19-7 information regarding their responsibilities under applicable laws
19-8 relating to standards of conduct for state officers and employees.
19-9 Sec. 6A. (a) It is a ground for removal from the commission
19-10 if a member:
19-11 (1) does not have at the time of appointment the
19-12 qualifications required by Section 6 of this Act for appointment to
19-13 the commission; or
19-14 (2) does not maintain during the service on the
19-15 commission the qualifications required by Section 6 of this Act for
19-16 appointment to the commission.
19-17 (b) The validity of an action of the commission is not
19-18 affected by the fact that it was taken when a ground for removal of
19-19 a member of the commission existed.
19-20 Sec. 7. Whenever a vacancy in the office of commissioner
19-21 occurs, it shall be filled in the manner provided herein with
19-22 respect to the original appointment, except that the governor may
19-23 make interim appointments to continue until the vacancy can be
19-24 filled in the manner provided. Any person appointed with the
19-25 advice and consent of the senate to fill a vacancy shall hold
19-26 office during the unexpired portion of the term.
19-27 Sec. 8. (a) The commission shall employ such officers,
20-1 administrative law judges, hearing examiners, investigators,
20-2 lawyers, engineers, economists, consultants, statisticians,
20-3 accountants, administrative assistants, inspectors, clerical staff,
20-4 and other employees as it deems necessary to carry out the
20-5 provisions of this Act. All employees receive such compensation as
20-6 is fixed by the legislature.
20-7 (b) The commission shall employ the following:
20-8 (1) an executive director;
20-9 (2) a director of hearings who has wide experience in
20-10 utility regulation and rate determination;
20-11 (3) a chief engineer who is a registered engineer and
20-12 an expert in public utility engineering and rate matters;
20-13 (4) a chief accountant who is a certified public
20-14 accountant, experienced in public utility accounting;
20-15 (5) a director of research who is experienced in the
20-16 conduct of analyses of industry, economics, energy, fuel, and other
20-17 related matters that the commission may want to undertake;
20-18 (6) a director of consumer affairs and public
20-19 information;
20-20 (7) a director of utility evaluation;
20-21 (8) a director of energy conservation; and
20-22 (9) a general counsel.
20-23 (c) The general counsel and his staff are responsible for
20-24 the gathering of information relating to all matters within the
20-25 authority of the commission.
20-26 The duties of the general counsel include:
20-27 (1) accumulation of evidence and other information
21-1 from public utilities and from the accounting and technical and
21-2 other staffs of the commission and from other sources for the
21-3 purposes specified herein;
21-4 (2) preparation and presentation of such evidence
21-5 before the commission or its appointed examiner in proceedings;
21-6 (3) conduct of investigations of public utilities
21-7 under the jurisdiction of the commission;
21-8 (4) preparation of proposed changes in the rules of
21-9 the commission;
21-10 (5) preparation of recommendations that the commission
21-11 undertake investigation of any matter within its authority;
21-12 (6) preparation of recommendations and a report of
21-13 such staff for inclusion in the annual report of the commission;
21-14 (7) protection and representation of the public
21-15 interest and coordination and direction of the preparation and
21-16 presentation of evidence from the commission staff in all cases
21-17 before the commission as necessary to effect the objectives and
21-18 purposes stated in this Act and ensure protection of the public
21-19 interest; and
21-20 (8) such other activities as are reasonably necessary
21-21 to enable him to perform his duties.
21-22 (d) The commission shall employ administrative law judges to
21-23 preside at hearings of major importance before the commission. An
21-24 administrative law judge must be a licensed attorney with not less
21-25 than five years' general experience or three years' experience in
21-26 utility regulatory law. The administrative law judge shall perform
21-27 his duties independently from the commission.
22-1 (e) The executive director or his designee shall develop an
22-2 intraagency career ladder program, one part of which shall be the
22-3 intraagency posting of all nonentry level positions for at least 10
22-4 days before any public posting. The executive director or his
22-5 designee shall develop a system of annual performance evaluations
22-6 based on measurable job tasks. All merit pay for commission
22-7 employees must be based on the system established under this
22-8 section.
22-9 (f) The executive director or his/her designee shall prepare
22-10 and maintain a written plan to assure implementation of a program
22-11 of equal employment opportunity whereby all personnel transactions
22-12 are made without regard to race, color, disability, sex, religion,
22-13 age, or national origin. The plans shall include:
22-14 (1) a comprehensive analysis of all the agency's work
22-15 force by race, sex, ethnic origin, class of position, and salary or
22-16 wage;
22-17 (2) plans for recruitment, evaluation, selection,
22-18 appointment, training, promotion, and other personnel policies;
22-19 (3) steps reasonably designed to overcome any
22-20 identified underutilization of minorities and women in the agency's
22-21 work force; and
22-22 (4) objectives and goals, timetables for the
22-23 achievement of the objectives and goals, and assignments of
22-24 responsibility for their achievement.
22-25 The plans shall be filed with the governor's office within 60
22-26 days of the effective date of this Act, cover an annual period, and
22-27 be updated at least annually. Progress reports shall be submitted
23-1 to the governor's office within 30 days of November 1 and April 1
23-2 of each year and shall include the steps the agency has taken
23-3 within the reporting period to comply with these requirements.
23-4 Sec. 9. The annual salary of the commissioners shall be
23-5 determined by the legislature.
23-6 Sec. 10. The principal office of the commission shall be
23-7 located in the City of Austin, Texas, and shall be open daily
23-8 during the usual business hours, Saturdays, Sundays, and legal
23-9 holidays excepted. The commission shall hold meetings at its
23-10 office and at such other convenient places in the state as shall be
23-11 expedient and necessary for the proper performance of its duties.
23-12 Sec. 11. The commission shall have a seal bearing the
23-13 following inscription: "Public Utility Commission of Texas." The
23-14 seal shall be affixed to all records and authentications of copies
23-15 of records and to such other instruments as the commission shall
23-16 direct. All courts of this state shall take judicial notice of
23-17 said seal.
23-18 Sec. 12. A majority of the commissioners shall constitute a
23-19 quorum for the transaction of any business, for the performance of
23-20 any duty, or for the exercise of any power of the commission. No
23-21 vacancy or disqualification shall prevent the remaining
23-22 commissioner or commissioners from exercising all the powers of the
23-23 commission.
23-24 Sec. 13. All orders of the commission shall be in writing
23-25 and shall contain detailed findings of the facts upon which they
23-26 are passed. The commission shall retain a copy of the transcript
23-27 and the exhibits in any matter in which the commission issues an
24-1 order. All files pertaining to matters which were at any time
24-2 pending before the commission and to records, reports, and
24-3 inspections required by Article V hereof shall be public records,
24-4 subject to the terms of the Texas Open Records Act, Chapter 424,
24-5 Acts of the 63rd Legislature, Regular Session, 1973, as amended
24-6 (Article 6252-17a, Vernon's Texas Civil Statutes).
24-7 Sec. 14. (a) The commission shall publish an annual report
24-8 to the governor, summarizing its proceedings, listing its receipts
24-9 and the sources of its receipts, listing its expenditures and the
24-10 nature of such expenditures, and setting forth such information
24-11 concerning the operations of the commission and the public utility
24-12 industry as it considers of general interest.
24-13 (b) In the annual report issued in the year preceding the
24-14 convening of each regular session of the legislature, the
24-15 commission shall make such suggestions regarding modification and
24-16 improvement of the commission's statutory authority and for the
24-17 improvement of utility regulation in general as it may deem
24-18 appropriate for protecting and furthering the interest of the
24-19 public.
24-20 Sec. 14A. The commission shall prepare information of
24-21 consumer interest describing the regulatory functions of the
24-22 commission and describing the commission's procedures by which the
24-23 consumer complaints are filed with and resolved by the commission.
24-24 The commission shall make the information available to the general
24-25 public and appropriate state agencies.
24-26 Sec. 15. The Attorney General of the State of Texas shall
24-27 represent the commission in all matters before the state courts,
25-1 and any court of the United States, and before any federal public
25-2 utility regulatory commission.
25-3 Sec. 15A. (a) The independent Office of Public Utility
25-4 Counsel is hereby established to represent the interests of
25-5 residential and small commercial consumers.
25-6 (b) The chief executive of the Office of Public Utility
25-7 Counsel is the public utility counsel, hereinafter referred to as
25-8 counsellor. The counsellor is appointed by the governor with the
25-9 advice and consent of the senate to a two-year term that expires on
25-10 February 1 of the final year of the term. Immediately after this
25-11 section takes effect, the governor shall, with the advice and
25-12 consent of the senate, appoint the public utility counsel.
25-13 (c) The counsellor may employ such lawyers, economists,
25-14 engineers, consultants, statisticians, accountants, clerical staff,
25-15 and other employees as he or she deems necessary to carry out the
25-16 provisions of this section. All employees shall receive such
25-17 compensation as is fixed by the legislature from the assessment
25-18 imposed by Section 78 of this Act.
25-19 (d) The counsellor shall be a resident of Texas and admitted
25-20 to the practice of law in this state who has demonstrated a strong
25-21 commitment and involvement in efforts to safeguard the rights of
25-22 the public and possess the knowledge and experience necessary to
25-23 practice effectively in utility proceedings.
25-24 (e) During the period of the counselor's employment and for
25-25 a period of two years following the termination of employment, it
25-26 shall be unlawful for any person employed as counsellor to have a
25-27 direct or indirect interest in any utility company regulated under
26-1 the Public Utility Regulatory Act, to provide legal services
26-2 directly or indirectly to or be employed in any capacity by a
26-3 utility company regulated under the Public Utility Regulatory Act,
26-4 its parent, or its subsidiary companies, corporations, or
26-5 cooperatives; but such person may otherwise engage in the private
26-6 practice of law after the termination of employment as the
26-7 counsellor.
26-8 (f) The Office of Public Utility Counsel:
26-9 (1) shall assess the impact of utility rate changes
26-10 and other regulatory actions on residential consumers in the State
26-11 of Texas and shall be an advocate in its own name of positions most
26-12 advantageous to a substantial number of such consumers as
26-13 determined by the counsellor;
26-14 (2) may appear or intervene as a matter of right as a
26-15 party or otherwise on behalf of residential consumers, as a class,
26-16 in all proceedings before the commission;
26-17 (3) may appear or intervene as a matter of right as a
26-18 party or otherwise on behalf of small commercial consumers, as a
26-19 class, in all proceedings where it is deemed by the counsel that
26-20 small commercial consumers are in need of representation;
26-21 (4) may initiate or intervene as a matter of right or
26-22 otherwise appear in any judicial proceedings involving or arising
26-23 out of any action taken by an administrative agency in a proceeding
26-24 in which the counsel was authorized to appear;
26-25 (5) may have access as any party, other than staff, to
26-26 all records gathered by the commission under the authority of
26-27 Subsection (a) of Section 29 of this Act;
27-1 (6) may obtain discovery of any nonprivileged matter
27-2 which is relevant to the subject matter involved in any proceeding
27-3 or petition before the commission;
27-4 (7) may represent individual residential and small
27-5 commercial consumers with respect to their disputed complaints
27-6 concerning utility services unresolved before the commission; and
27-7 (8) may recommend legislation to the legislature which
27-8 in its judgment would positively affect the interests of
27-9 residential and small commercial consumers.
27-10 (g) Nothing in this section shall be construed as in any way
27-11 limiting the authority of the commission to represent residential
27-12 or small commercial consumers.
27-13 (h) The appearance of the Public Counsel in any proceeding
27-14 in no way precludes the appearance of other parties on behalf of
27-15 residential ratepayers or small commercial consumers. The Public
27-16 Counsel shall not be grouped with any other parties.
27-17 (i) There shall be only one Office of Public Utility Counsel
27-18 even though that office may be referenced in one or more Acts of
27-19 the 68th Legislature.
27-20 ARTICLE III. JURISDICTION
27-21 Sec. 16. (a) The commission has the general power to
27-22 regulate and supervise the business of every public utility within
27-23 its jurisdiction and to do all things, whether specifically
27-24 designated in this Act or implied herein, necessary and convenient
27-25 to the exercise of this power and jurisdiction. The commission
27-26 shall make and enforce rules reasonably required in the exercise of
27-27 its powers and jurisdiction, including rules governing practice and
28-1 procedure before the commission. The commission may call and hold
28-2 hearings, administer oaths, receive evidence at hearings, issue
28-3 subpoenas to compel the attendance of witnesses and the production
28-4 of papers and documents, and make findings of fact and decisions
28-5 with respect to administering the provisions of this Act or the
28-6 rules, orders, or other actions of the commission. Notwithstanding
28-7 any other provision of this Act or other law, in proceedings other
28-8 than those involving major rate changes, the commission may
28-9 delegate to an administrative law judge or hearings examiner the
28-10 authority to make a final decision and to issue findings of fact,
28-11 conclusions of law, and other necessary orders in a proceeding in
28-12 which there is no contested issue of fact or law. The commission,
28-13 by rule, shall define the procedures by which it delegates final
28-14 decision making authority authorized by this section. For review
28-15 purposes the final decision of the administrative law judge or
28-16 hearings examiner has the same effect as a final decision of the
28-17 commission unless a commissioner requests formal review of the
28-18 decision.
28-19 (b) The commission shall develop a long-term statewide
28-20 electrical energy forecast which shall be sent to the governor
28-21 biennially. The forecast will include an assessment of how
28-22 alternative energy sources, conservation, and load management will
28-23 meet the state's electricity needs.
28-24 (c) Every generating electric utility in the state shall
28-25 prepare and transmit to the commission by December 31, 1983, and
28-26 every two years thereafter a report specifying at least a 10-year
28-27 forecast for assessments of load and resources for its service
29-1 area. The report shall include a list of facilities which will be
29-2 required to supply electric power during the forecast periods. The
29-3 report shall be in a form prescribed by the commission. The report
29-4 shall include:
29-5 (1) a tabulation of estimated peak load, resources,
29-6 and reserve margins for each year during the forecast or assessment
29-7 period;
29-8 (2) a list of existing electric generating plants in
29-9 service with a description of planned and potential generating
29-10 capacity at existing sites;
29-11 (3) a list of facilities which will be needed to serve
29-12 additional electrical requirements identified in the forecasts or
29-13 assessments, the general location of such facilities, and the
29-14 anticipated types of fuel to be utilized in the proposed
29-15 facilities, including an estimation of shutdown costs and disposal
29-16 of spent fuel for nuclear power plants;
29-17 (4) a description of additional system capacity which
29-18 might be achieved through, among other things, improvements in (A)
29-19 generating or transmission efficiency, (B) importation of power,
29-20 (C) interstate or interregional pooling, (D) other improvements in
29-21 efficiencies of operation; and (E) conservation measures;
29-22 (5) an estimation of the mix and type of fuel
29-23 resources for the forecast or assessment period;
29-24 (6) an annual load duration curve and a forecast of
29-25 anticipated peak loads for the forecast or assessment period for
29-26 the residential, commercial, industrial, and such other major
29-27 demand sectors in the service area of the electric utility as the
30-1 commission shall determine; and
30-2 (7) a description of projected population growth,
30-3 urban development, industrial expansion, and other growth factors
30-4 influencing increased demand for electric energy and the basis for
30-5 such projections.
30-6 (d) The commission shall establish and every electric
30-7 utility shall utilize a reporting methodology for preparation of
30-8 the forecasts of future load and resources.
30-9 (e) The commission shall review and evaluate the electric
30-10 utilities' forecast of load and resources and any public comment on
30-11 population growth estimates prepared by Bureau of Business
30-12 Research, University of Texas at Austin.
30-13 (f) Within 12 months after the receipt of the reports
30-14 required in Subsection (b) of this section, the commission shall
30-15 hold a public hearing and subsequently issue a final report to the
30-16 governor and notify every electric utility of the commission's
30-17 electric forecast for that utility. The commission shall consider
30-18 its electric forecast in all certification proceedings covering new
30-19 generation plant.
30-20 (g) The commission shall make and enforce rules to encourage
30-21 the economical production of electric energy by qualifying
30-22 cogenerators and qualifying small power producers.
30-23 (h) The commission shall inquire into the management of the
30-24 business of all public utilities under its jurisdiction, shall keep
30-25 itself informed as to the manner and method in which the management
30-26 and business is conducted, and shall obtain from any public utility
30-27 all necessary information to enable the commission to perform
31-1 management audits. The commission may audit each utility under the
31-2 jurisdiction of the commission as frequently as needed, but shall
31-3 audit each utility at least once every 10 years. Six months after
31-4 any audit, the utility shall report to the commission on the status
31-5 of the implementation of the recommendations of the audit and shall
31-6 file subsequent reports at such times as the commission deems
31-7 appropriate.
31-8 Sec. 17. (a) Subject to the limitations imposed in this
31-9 Act, and for the purpose of regulating rates and services so that
31-10 such rates may be fair, just, and reasonable, and the services
31-11 adequate and efficient, the governing body of each municipality
31-12 shall have exclusive original jurisdiction over all electric<,
31-13 water, and sewer> utility rates, operations, and services provided
31-14 by an electric<, water, and sewer> utility within its city or town
31-15 limits.
31-16 (b) At any time after two years have passed from the date
31-17 this Act becomes effective, a municipality may elect to have the
31-18 commission exercise exclusive original jurisdiction over electric<,
31-19 water, or sewer> utility rates, operations, and services within the
31-20 incorporated limits of the municipality. The governing body of a
31-21 municipality may by ordinance elect to surrender its original
31-22 jurisdiction to the commission, or the governing body may submit
31-23 the question of the surrender to the qualified voters at a
31-24 municipal election. Upon receipt of a petition signed by the
31-25 lesser of 20,000 or ten percent of the number of qualified voters
31-26 voting in the last preceding general election in that municipality,
31-27 the governing body shall submit the question of the surrender of
32-1 the municipality's original jurisdiction to the commission at a
32-2 municipal election.
32-3 (c) A municipality that surrenders its jurisdiction to the
32-4 commission may at any time, by vote of the electorate, reinstate
32-5 the jurisdiction of the governing body; provided, however, that any
32-6 municipality which reinstates its jurisdiction shall be unable to
32-7 surrender that jurisdiction for five years after the date of the
32-8 election at which the municipality elected to reinstate its
32-9 jurisdiction. No municipality may, by vote of the electorate,
32-10 reinstate the jurisdiction of the governing body during the
32-11 pendency of any case before the commission involving the
32-12 municipality.
32-13 (d) The commission shall have exclusive appellate
32-14 jurisdiction to review orders or ordinances of such municipalities
32-15 as provided in this Act.
32-16 (e) The commission shall have exclusive original
32-17 jurisdiction over electric<, water, and sewer> utility rates,
32-18 operations, and services not within the incorporated limits of a
32-19 municipality exercising exclusive original jurisdiction over those
32-20 rates, operations, and services as provided in this Act.
32-21 Sec. 18. (a) It is the policy of this state to protect the
32-22 public interest in having adequate and efficient telecommunications
32-23 service available to all citizens of the state at just, fair, and
32-24 reasonable rates. The legislature finds that the
32-25 telecommunications industry through technical advancements, federal
32-26 legislative, judicial and administrative actions, and the
32-27 formulation of new telecommunications enterprises has become and
33-1 will continue to be in many and growing areas a competitive
33-2 industry which does not lend itself to traditional public utility
33-3 regulatory rules, policies, and principles; and that therefore, the
33-4 public interest requires that new rules, policies, and principles
33-5 be formulated and applied to protect the public interest and to
33-6 provide equal opportunity to all telecommunications utilities in a
33-7 competitive marketplace. It is the purpose of this section to
33-8 grant to the commission the authority and the power under this Act
33-9 to carry out the public policy herein stated.
33-10 (b) Subject to the limitations imposed in this Act, and for
33-11 the purpose of carrying out the public policy above stated and of
33-12 regulating rates, operations, and services so that such rates may
33-13 be just, fair, and reasonable, and the services adequate and
33-14 efficient, the commission shall have exclusive original
33-15 jurisdiction over the business and property of all
33-16 telecommunications utilities in this state. In the exercise of its
33-17 jurisdiction to regulate the rates, operations, and services of a
33-18 telecommunications utility providing service in a municipality on
33-19 the state line adjacent to a municipality in an adjoining state,
33-20 the commission may cooperate with the utility regulatory commission
33-21 of the adjoining state or the federal government and may hold joint
33-22 hearings and make joint investigations with any of those
33-23 commissions.
33-24 (c) Except as provided by Subsections (l) and (m) of this
33-25 section and Section 18A of this Act, the commission shall only have
33-26 the following jurisdiction over all telecommunications utilities
33-27 who are not dominant carriers:
34-1 (1) to require registration as provided in Subsection
34-2 (d) of this section;
34-3 (2) to conduct such investigations as are necessary to
34-4 determine the existence, impact, and scope of competition in the
34-5 telecommunications industry, including identifying dominant
34-6 carriers in the local exchange and intralata interexchange
34-7 telecommunications industry and defining the telecommunications
34-8 market or markets, and in connection therewith may call and hold
34-9 hearings, issue subpoenas to compel the attendance of witnesses and
34-10 the production of papers and documents, and make findings of fact
34-11 and decisions with respect to administering the provisions of this
34-12 Act or the rules, orders, and other actions of the commission;
34-13 (3) to require the filing of such reports as the
34-14 commission may direct from time to time;
34-15 (4) to require the maintenance of statewide average
34-16 rates or prices of telecommunications service;
34-17 (5) to require that every local exchange area have
34-18 access to local and interexchange telecommunications service,
34-19 except that <an interexchange> a telecommunications <carrier>
34-20 utility must be allowed to discontinue service to a local exchange
34-21 area if comparable service is available in the area and the
34-22 discontinuance is not contrary to the public interest. This
34-23 section does not authorize the commission to require <an
34-24 interexchange> a telecommunications <carrier> utility that has not
34-25 provided services to a local exchange area during the previous 12
34-26 months and that has never provided services to that same local
34-27 exchange area for a cumulative period of one year at any time in
35-1 the past to initiate services to that local exchange area; and
35-2 (6) to require the quality of <interexchange>
35-3 telecommunications service provided in each exchange to be adequate
35-4 to protect the public interest and the interests of customers of
35-5 that exchange if the commission determines that service to a local
35-6 exchange has deteriorated to the point that <long distance> service
35-7 is not reliable.
35-8 (d) All providers of communications service described in
35-9 Subsection (c) of this section who are providing such service to
35-10 the public on the effective date of this Act shall register with
35-11 the commission within 90 days of the effective date of this Act
35-12 unless the provider has previously registered with the commission.
35-13 All providers of communications service described in Subsection (c)
35-14 of this section who commence such service to the public thereafter
35-15 shall register with the commission within 30 days of commencing
35-16 service. Such registration shall be accomplished by filing with
35-17 the commission a description of the location and type of service
35-18 provided, the <cost> price to the public of such service, and such
35-19 other registration information as the commission may direct.
35-20 Notwithstanding any other provision of this Act, an interexchange
35-21 telecommunications carrier doing business in this state shall
35-22 continue to maintain on file with the commission tariffs or lists
35-23 governing the terms of providing its services.
35-24 (e) (1) For the purpose of carrying out the public policy
35-25 stated in Subsection (a) of this section and any other section of
35-26 this Act notwithstanding, the commission is granted all necessary
35-27 power and authority under this Act to promulgate rules and
36-1 establish procedures applicable to local exchange companies for
36-2 determining the level of competition in specific telecommunications
36-3 markets and submarkets and providing appropriate regulatory
36-4 treatment to allow local exchange companies to respond to
36-5 significant competitive challenges. Nothing in this section is
36-6 intended to change the burden of proof of the local exchange
36-7 company under Sections 38, 39, 40, and 41 of Article VI of this
36-8 Act.
36-9 (2) In determining the level of competition in a
36-10 specific market or submarket, the commission shall hold an
36-11 evidentiary hearing to consider the following:
36-12 (A) the number and size of telecommunications
36-13 utilities or other persons providing the same, equivalent, or
36-14 substitutable service;
36-15 (B) the extent to which the same, equivalent, or
36-16 substitutable service is available;
36-17 (C) the ability of customers to obtain the same,
36-18 equivalent, or substitutable services at comparable rates, terms,
36-19 and conditions;
36-20 (D) the ability of telecommunications utilities
36-21 or other persons to make the same, equivalent, or substitutable
36-22 service readily available at comparable rates, terms, and
36-23 conditions;
36-24 (E) the existence of any significant barrier to
36-25 the entry or exit of a provider of the service; and
36-26 (F) other relevant information deemed
36-27 appropriate.
37-1 (3) The regulatory treatments which the commission may
37-2 implement include but are not limited to:
37-3 (A) approval of a range of rates for a specific
37-4 service;
37-5 (B) approval of customer-specific contracts for
37-6 a specific service; provided, however, that the commission shall
37-7 approve a contract to provide central office based PBX-type
37-8 services for systems of 200 stations or more, billing and
37-9 collection services, high-speed private line services of 1.544
37-10 megabits or greater, and customized services, provided that the
37-11 contract is filed at least 30 days before initiation of the service
37-12 contracted for; that the contract is accompanied with an affidavit
37-13 from the person or entity contracting for the telecommunications
37-14 service stating that he considered the acquisition of the same,
37-15 equivalent, or substitutable services by bid or quotation from a
37-16 source other than the local exchange company; that the local
37-17 exchange company is recovering the appropriate costs of providing
37-18 the services; and that approval of the contract is in the public
37-19 interest. The contract shall be approved or denied within 30 days
37-20 after filing, unless the commission for good cause extends the
37-21 effective date for an additional 35 days; and
37-22 (C) the detariffing of rates.
37-23 (f) Moreover, in order to encourage the rapid introduction
37-24 of new or experimental services or promotional rates, the
37-25 commission shall promulgate rules and establish procedures which
37-26 allow the expedited introduction of, the establishment and
37-27 adjustment of rates for, and withdrawal of such services, including
38-1 requests for such services made to the commission by the governing
38-2 body of a municipality served by a local exchange company having
38-3 more than 500,000 access lines throughout the state. Rates
38-4 established or adjusted at the request of a municipality may not
38-5 result in higher rates for ratepayers outside the boundaries of the
38-6 municipality and may not include any rates for local exchange
38-7 company interexchange services or interexchange carrier access
38-8 service.
38-9 (g) In promulgating new rules and establishing the
38-10 procedures contemplated in Subsections (e) and (f) of this section,
38-11 the commission shall seek to balance the public interest in a
38-12 technologically advanced telecommunications system providing a wide
38-13 range of new and innovative services with traditional regulatory
38-14 concerns for preserving universal service, prohibiting
38-15 anticompetitive practices, and preventing the subsidization of
38-16 competitive services with revenues from regulated monopoly
38-17 services. The commission shall promulgate these rules and
38-18 establish these procedures so as to incorporate an appropriate mix
38-19 of regulatory and market mechanisms reflecting the level and nature
38-20 of competition in the marketplace. Rates established under
38-21 Subsections (e) and (f) of this section shall not be (1)
38-22 unreasonably preferential, prejudicial, or discriminatory; (2)
38-23 subsidized either directly or indirectly by regulated monopoly
38-24 services; or (3) predatory or anticompetitive.
38-25 (h) The commission shall initiate a rulemaking proceeding
38-26 and take public comment and promulgate rules which prescribe the
38-27 standards necessary to ensure that all rates set under the
39-1 provisions of this section cover their appropriate costs as
39-2 determined by the commission. Until such rules are promulgated,
39-3 the commission shall use a costing methodology that is in the
39-4 public interest in determining whether the rates set under the
39-5 provisions of this section cover their appropriate costs.
39-6 (i) The commission is granted all necessary power and
39-7 authority to prescribe and collect fees and assessments from local
39-8 exchange companies necessary to recover the commission's and the
39-9 Office of Public Utility Counsel's costs of activities carried out
39-10 and services provided under Subsections (e), (f), (g), (h), (i),
39-11 (j), and (k) of this section.
39-12 (j) Subsections (e) and (f) of this section are not
39-13 applicable to basic local exchange service, including local
39-14 measured service. Paragraph (B) of Subdivision (3) of Subsection
39-15 (e) of this section is not applicable to message telecommunications
39-16 services, switched access services for interexchange carriers, or
39-17 wide area telecommunications service. A local exchange company may
39-18 not price similar services provided pursuant to contracts under
39-19 Paragraph (B) of Subdivision (3) of Subsection (e) of this section
39-20 in an unreasonably discriminatory manner. For purposes of this
39-21 section, similar services shall be defined as those services which
39-22 are provided at or near the same point in time, which have the same
39-23 characteristics and which are provided under the same or similar
39-24 circumstances.
39-25 (k) Before January 15 of each odd-numbered year, the
39-26 commission shall report to the legislature on the scope of
39-27 competition in regulated telecommunications markets and the impact
40-1 of competition on customers in both competitive and noncompetitive
40-2 markets, with a specific focus on rural markets. The report shall
40-3 include an assessment of the impact of competition on the rates and
40-4 availability of telecommunications services for residential and
40-5 business customers and shall specifically address any effects on
40-6 universal service. The report shall provide a summary of
40-7 commission actions over the preceding two years which reflect
40-8 changes in the scope of competition in regulated telecommunications
40-9 markets. The report shall also include recommendations to the
40-10 legislature for further legislation which the commission finds
40-11 appropriate to promote the public interest in the context of a
40-12 partially competitive telecommunications market.
40-13 (l) Notwithstanding any other provision of this Act, the
40-14 commission may enter such orders as may be necessary to protect the
40-15 public interest, including the imposition on any specific service
40-16 or services of its full regulatory authority under Articles III
40-17 through XIII (but not Articles IV and V) <XI> of this Act, if the
40-18 commission upon complaint from another interexchange
40-19 telecommunications <carrier> utility finds by a preponderance of
40-20 the evidence upon notice and hearing that an interexchange
40-21 telecommunications <carrier> utility has engaged in predatory
40-22 pricing or attempted to engage in predatory pricing.
40-23 (m) Notwithstanding any other provision of this Act, the
40-24 commission may enter such orders as may be necessary to protect the
40-25 public interest if the commission finds upon notice and hearing
40-26 that an interexchange telecommunications <carrier> utility has:
40-27 (1) failed to maintain statewide average rates;
41-1 (2) abandoned interexchange message telecommunications
41-2 service to a local exchange area in a manner contrary to the public
41-3 interest; or
41-4 (3) engaged in a pattern of preferential or
41-5 discriminatory activities prohibited by Sections 45 and 47 of this
41-6 Act, except that nothing in this Act shall prohibit volume
41-7 discounts or other discounts based on reasonable business purposes.
41-8 (n) In any proceeding before the commission alleging conduct
41-9 or activities by an interexchange telecommunications <carrier>
41-10 utility against another interexchange <carrier> telecommunications
41-11 utility in contravention of Subsections (l), (m), and (o) of this
41-12 section, the burden of proof shall be upon the complaining
41-13 interexchange telecommunications <carrier> utility; however, in
41-14 such proceedings brought by customers or their representatives who
41-15 are not themselves an interexchange telecommunications <carriers>
41-16 utility or in such proceedings initiated by the commission's
41-17 general counsel, the burden of proof shall be upon the respondent
41-18 interexchange telecommunications <carrier> utility. However, if
41-19 the commission finds it to be in the public interest, the
41-20 commission may impose the burden of proof in such proceedings on
41-21 the complaining party.
41-22 (o) The commission shall have the authority to require that
41-23 a service provided by an interexchange telecommunications carrier
41-24 described in Subsection (c) of this section be made available in an
41-25 exchange served by the carrier within a reasonable time after
41-26 receipt of a bona fide request for such service in that exchange,
41-27 subject to the ability of the local exchange <carrier> company to
42-1 provide the required access or other service. No carrier shall be
42-2 required to extend a service to an area if provision of that
42-3 service would impose, after consideration of the public interest to
42-4 be served, unreasonable costs upon or require unreasonable
42-5 investments by the interexchange telecommunications carrier. The
42-6 commission may require such information from interexchange carriers
42-7 and local exchange <carriers> companies as may be necessary to
42-8 enforce this provision.
42-9 (p) Before January 15 of each odd-numbered year, the
42-10 commission shall report to the legislature on the scope of
42-11 competition in regulated telecommunications markets and the impact
42-12 of competition on customers in both competitive and noncompetitive
42-13 markets, with a specific focus on rural markets. The report shall
42-14 include an assessment of the impact of competition on the rates and
42-15 availability of telecommunications services for residential and
42-16 business customers and shall specifically address any effects on
42-17 universal service. The report shall provide a summary of
42-18 commission actions over the preceding two years that reflect
42-19 changes in the scope of competition in regulated telecommunications
42-20 markets. The report shall also include recommendations to the
42-21 legislature for further legislation that the commission finds
42-22 appropriate to promote the public interest in the context of a
42-23 partially competitive telecommunications market.
42-24 (q) The commission may exempt from any requirement of this
42-25 section an interexchange telecommunications carrier that the
42-26 commission determines does not have a significant effect on the
42-27 public interest, and it may exempt any interexchange carrier which
43-1 solely relies on the facilities of others to complete long distance
43-2 calls if the commission deems this action to be in the public
43-3 interest.
43-4 (r) Requirements imposed by Subsections (c), (d), (l), (m),
43-5 (n), (o), (p), and (q) of this section on an interexchange
43-6 telecommunications carrier shall apply to nondominant carriers and
43-7 shall constitute the minimum requirements to be imposed by the
43-8 commission for any dominant carrier.
43-9 (s) The commission may prescribe forms of books, accounts,
43-10 records and memoranda only as necessary to enforce its limited
43-11 jurisdiction to be kept by local exchange companies which have
43-12 received certificates of operating authority or service provider
43-13 certificates of operating authority under Article X, which in the
43-14 judgment of the commission, may be necessary to carry out the
43-15 limited jurisdiction over those companies which this Act provides
43-16 to the commission.
43-17 (t) Notwithstanding any other provision of this section, the
43-18 commission may not impose on a utility that has a certificate of
43-19 operating authority a rule or regulatory practice that imposes a
43-20 greater regulatory burden on that utility than is imposed on a
43-21 certificate of convenience and necessity holder serving the same
43-22 area.
43-23 Sec. 18A. (a) In this section "operator service" means any
43-24 service using live operator or automated operator functions for the
43-25 handling of telephone service such as toll calling via collect,
43-26 third number billing, and calling card services. Calls for which
43-27 the called party has arranged to be billed (800 service) shall not
44-1 be considered operator services.
44-2 (b) Prior to the connection of each call the operator
44-3 service provider shall:
44-4 (1) announce the provider's name; and
44-5 (2) quote, at the caller's request, the rate and any
44-6 other fees or surcharges applicable, to the call and charged by the
44-7 provider.
44-8 (c) An operator service provider shall furnish each entity
44-9 with which it contracts to provide operator service a sticker,
44-10 card, or other form of information approved by the commission for
44-11 each telephone that has access to the service and is intended to be
44-12 utilized by the public, unless the owner of the telephone has
44-13 received approval from the commission for an alternative form of
44-14 information. The information must state the provider's name, that
44-15 the operator service provider will provide rate information on the
44-16 caller's request, that the caller will be informed how to access
44-17 the local exchange carrier operator on request, and that any
44-18 complaint about the service may be made to the provider or the
44-19 commission at the designated telephone number. The operator
44-20 service provider shall require by contact that the entity receiving
44-21 the information display it on or near each of the telephones that
44-22 has access to the service and is intended for use by the public.
44-23 (d) An operator service provider must, on request, inform
44-24 the caller how to access the operator for the local exchange
44-25 carrier serving the exchange from which the call is made. No
44-26 charge shall be made for this information.
44-27 (e) The commission shall adopt rules requiring an operator
45-1 service provider to include in its contract with each entity
45-2 through which it provides operator service a requirement that the
45-3 telephones subscribed to its services shall allow access to the
45-4 local exchange carrier operator serving the exchange from which the
45-5 call is made and to other telecommunications utilities; but in
45-6 order to prevent fraudulent use of its services, an operator
45-7 service provider and individual entities through which it provides
45-8 operator services may block access if either obtains a waiver for
45-9 this purpose from the commission or the Federal Communications
45-10 Commission. The procedure and criteria for obtaining a waiver from
45-11 the commission shall be set forth in the commission's rules.
45-12 (f) The commission shall promulgate rules consistent with
45-13 the requirements of this section and any additional requirements
45-14 deemed necessary to protect the public interest by January 1, 1990.
45-15 All rules promulgated under this section shall be nondiscriminatory
45-16 and designed to promote competition that facilitates consumer
45-17 choice.
45-18 (g) The commission may investigate a complaint that it
45-19 receives concerning operator services. If the commission
45-20 determines that an operator service provider has violated or is
45-21 about to violate this section, the commission may, upon proper
45-22 notice and evidentiary hearing, take action to stop, correct, or
45-23 prevent the violation.
45-24 (h) Except as provided by Subsection (i) of this section,
45-25 this section applies only to a telecommunications utility that is
45-26 not a dominant carrier. The commission is granted all necessary
45-27 power and authority under this Act to promulgate rules and
46-1 establish procedures for the purposes of enforcing and implementing
46-2 this section.
46-3 (i) Each dominant or nondominant telecommunications utility
46-4 that provides operator service shall ensure that a caller may
46-5 access a live operator at the beginning of all live or mechanized
46-6 operator assisted calls through a method designed to be easily and
46-7 clearly understandable and accessible to the caller. A
46-8 telecommunications utility shall submit to the commission the
46-9 method by which the utility will provide access to a live operator
46-10 for review. This subsection applies regardless of the method by
46-11 which the telecommunications utility provides the operator service.
46-12 The requirements of this subsection shall not apply to telephones
46-13 located in prison or jail facilities.
46-14 Sec. 20. Nothing in this article shall be construed to
46-15 confer on the commission power or jurisdiction to regulate or
46-16 supervise the rates or service of any utility owned and operated by
46-17 any municipality within its boundaries either directly or through a
46-18 municipally owned corporation, or to affect or limit the power,
46-19 jurisdiction, or duties of the municipalities that have elected to
46-20 regulate and supervise public utilities within their boundaries,
46-21 except as provided in this Act.
46-22 ARTICLE IV. INCENTIVE REGULATION OF TELECOMMUNICATIONS
46-23 Sec. 20A. POLICY. Given the current status of competition
46-24 in the telecommunications industry, it is the policy of the
46-25 legislature to: provide a framework for an orderly transition from
46-26 traditional return on invested capital regulation to a fully
46-27 competitive telecommunications marketplace where all
47-1 telecommunications providers compete on fair terms; preserve and
47-2 enhance universal telecommunications service at affordable rates;
47-3 upgrade the telecommunications infrastructure of the state; promote
47-4 network interconnectivity; and, promote diversity in the supply of
47-5 telecommunications services and innovative products and services
47-6 throughout the entire state, both urban and rural.
47-7 Sec. 20B. ELECTION AND BASKETS OF SERVICES. (a) Subsequent
47-8 to the enactment of this Article, a local exchange company may
47-9 notify the commission in writing of the company's election to be
47-10 regulated pursuant to this Article. Such notice shall state the
47-11 company's commitment to limit any increase in the rates charged for
47-12 a four year period for the services set out in Section 20C and its
47-13 infrastructure commitment as described in Section 20E.
47-14 (b) The services provided by a local exchange company
47-15 electing incentive regulation under this Article ("electing
47-16 company") shall be initially classified into three categories or
47-17 "baskets": "Basket I: basic network services", "Basket II:
47-18 discretionary services" and "Basket III: competitive services."
47-19 The commission shall have the authority to reclassify a service
47-20 from Basket I to Basket II or Basket III, or from Basket II to
47-21 Basket III, consistent with the criteria described in Section 20G
47-22 of this Act.
47-23 (c) An electing company's telecommunications services shall
47-24 be regulated pursuant to this section regardless of a determination
47-25 of dominance under Section 3(c)(2)(B).
47-26 Sec. 20C. BASKET I: BASIC NETWORK SERVICES. (a) The
47-27 following services shall initially be classified as "basic network
48-1 services" in Basket I as of September 1, 1995:
48-2 (1) Residential and Business Local Exchange Service;
48-3 including Primary Directory Listings and any applicable Mileage or
48-4 Zone Charges;
48-5 (2) Tone Dialing Service;
48-6 (3) Lifeline and Tel-Assistance Services;
48-7 (4) Service Connection Charges for basic services;
48-8 (5) Direct Inward Dialing Service for basic services;
48-9 (6) Private Pay Telephone Access Service;
48-10 (7) Call Trap and Trace Service;
48-11 (8) Access to 911 Service where provided by local
48-12 authorities and access to Dual Party Relay Service;
48-13 (9) Switched Access Service;
48-14 (10) Interconnection to Competitive Providers;
48-15 (11) Radio Interconnection;
48-16 (12) Mandatory Extended Area Service arrangements;
48-17 (13) Mandatory Extended Metropolitan Service or other
48-18 mandatory toll free calling arrangements;
48-19 (14) Interconnection for commercial mobile radio
48-20 service providers;
48-21 (15) Directory Assistance; and
48-22 (16) 1+ IntraLATA Message Toll Service.
48-23 (b) Upon a local exchange company's election pursuant to
48-24 Section 20B, Subsection (a), increases in rates for basic network
48-25 services are permitted only upon commission approval and only
48-26 within the parameters specified in Subsection (c) for four (4)
48-27 years following the election. Notwithstanding the requirements in
49-1 Section 47B(g), rates for basic network services may be decreased
49-2 at any time on the initiative of the electing company to a floor
49-3 above long run incremental cost for switched access service or the
49-4 appropriate cost for any basic local telecommunications service
49-5 which shall be long run incremental cost as to any local exchange
49-6 company which is required by the commission to perform long run
49-7 incremental cost studies or elects to perform such studies. This
49-8 section does not affect the charges permitted under Section 93A.
49-9 The commission shall not increase service standards applicable to
49-10 the provision of local exchange service by electing companies where
49-11 the increased investment required to comply with the increased
49-12 standard exceeds in any one year 10 percent of the local exchange
49-13 company's average annual intrastate additions in capital investment
49-14 for the most recent 5 years period. In calculating the average,
49-15 the local exchange company shall exclude extraordinary investments
49-16 made during the five year period.
49-17 (c) Rates for basic network services may be changed in the
49-18 following circumstances and only upon commission approval that the
49-19 proposed change is:
49-20 (1) Government-imposed changes in costs. Following
49-21 the effective date of this Act, the commission, on its own
49-22 authority, on the complaint of any affected person, or on the
49-23 motion of the electing company, may adjust prices for basic network
49-24 services to reflect government-imposed changes in the electing
49-25 company's costs of providing telecommunications services resulting
49-26 from one or more of the following events and in the following
49-27 manner:
50-1 (A) a decrease in the corporate federal income
50-2 tax rate of 10 percent or more of that rate or in any state or
50-3 local tax or municipal or governmental assessment;
50-4 (B) an increase in the corporate federal income
50-5 tax rate of 10 percent or more of that rate or in any state or
50-6 local tax or municipal or governmental assessment in any one year
50-7 of 10 percent or more, or any newly enacted state or local tax or
50-8 municipal or governmental assessment
50-9 (C) upon a local exchange company's election
50-10 pursuant to Section 20B, the commission, on its own authority, or
50-11 on the motion of the electing company, shall adjust prices for
50-12 basic network services to reflect changes in FCC separations
50-13 affecting interstate net income by 10 percent or more;
50-14 (D) a mandated change in Financial Accounting
50-15 Standards Board (FASB) requirements which decreases the cost of the
50-16 components to which it applies by 10 percent or more in any one
50-17 year that affects net income;
50-18 (E) a mandated change in Financial Accounting
50-19 Standards Board (FASB) requirements which increases the cost of the
50-20 components to which it applies by 10 percent or more in any one
50-21 year that affects net income;
50-22 (F) a mandated change by the commission to the
50-23 service standards applicable to that company's basic local
50-24 telecommunications services or features to be provided as a
50-25 component of basic local telecommunications service.
50-26 (2) Index. If, after 42 months following the local
50-27 exchange company's election, an electing company in this state with
51-1 less than five million access lines is in compliance with its
51-2 infrastructure commitment, all quality of services requirements,
51-3 and all commission rules enacted pursuant to Section 47B, upon
51-4 application of the local exchange company, the commission may
51-5 undertake a proceeding to review the need for changes in the rates
51-6 of basic network services. The commission may adjust rates,
51-7 implement new pricing plans, restructure rates or rebalance
51-8 revenues between basic network services to recognize changed market
51-9 conditions and the effects of competitive entry. The commission
51-10 may utilize an index and a productivity offset in determining these
51-11 changes. The commission may not order an increase in residential
51-12 local exchange service that would cause those rates to increase by
51-13 more than the U.S. CPI in any twelve month period. In no case
51-14 shall the new monthly rate exceed the nationwide average of local
51-15 exchange rates for like services. A company electing to receive
51-16 regulatory transition fund receipts pursuant to Section 98B shall
51-17 not be permitted to increase switched access rates under this
51-18 subdivision.
51-19 (3) Regulatory Transition Fund -- The increases
51-20 permitted by Section 98B.
51-21 (4) Rate group reclassification. Notwithstanding the
51-22 commitments made in Section 20B, Subsection (a), a rate group
51-23 reclassification occurring as a result of access lines growth shall
51-24 be allowed by the commission upon request of the electing company.
51-25 (d) Notwithstanding the commission's authority in Sections
51-26 54A(2) and 54A(3), the regulation of basic network services of an
51-27 electing company shall be governed by this Article, Articles I-III
52-1 and VII, Sections 37, 38, 40, 42, 43, 45, 46, 47, 47B, 48 and 48A
52-2 of Article IX, and Articles X-XVII not inconsistent with this
52-3 Article and all commission procedures, rules and regulations not
52-4 inconsistent with this Article. Changes to the terms and
52-5 conditions of the tariff offering of a basic network service, other
52-6 than price changes, shall continue to require commission approval.
52-7 (e) If, subsequent to the enactment of this section, a local
52-8 exchange company notifies the commission in writing of its election
52-9 to incentive regulation under Section 20B, Subsection (a), such
52-10 company shall not, during its four-year election period, under any
52-11 circumstances be subject to any complaint, hearing or determination
52-12 as to the reasonableness of its basic network services rates, its
52-13 overall revenues, its return on invested capital or its net income.
52-14 The initial competitive safeguards required by Section 47B shall
52-15 not be prohibited by this section. Nothing herein shall restrict
52-16 any consumers right to complain to the commission regarding quality
52-17 of service or the consumer's right to enforce quality of service
52-18 standards.
52-19 (f) The rates capped in subsection (b) as a result of a
52-20 company's election shall be the rates charged by the company at the
52-21 date of its election without regard to proceedings pending under
52-22 Sections 42 or 69, or Subchapter G of the Administrative Procedure
52-23 Act.
52-24 Sec. 20D. RATE ADJUSTMENT PROCEDURES. (a) An electing
52-25 company may adjust its rates for basic network services under
52-26 Subsection (c) of Section 20C upon notice to the commission. The
52-27 notice to the commission of a rate adjustment shall be accompanied
53-1 with sufficient documentary support to demonstrate that the rate
53-2 adjustment meets the criteria in Section 20C(c). The commission
53-3 shall establish by rule or order the documentation to be required
53-4 under this subsection.
53-5 (b) Notice to customers shall be published once in a
53-6 newspaper of general circulation in the service area to be affected
53-7 within a reasonable time period after the notice for a rate
53-8 adjustment is provided to the commission, and shall be included in
53-9 or on the bill of each affected consumer in the next billing
53-10 subsequent to the filing with the commission. The notice shall
53-11 contain a title that includes the name of the company and the words
53-12 "NOTICE OF POSSIBLE RATE CHANGE." The notice shall contain the
53-13 following information:
53-14 (1) A statement that the consumer's rate may change;
53-15 (2) An estimate of the amount of the annual change for
53-16 the typical residential, business or access consumers that would
53-17 result if the rate adjustment is approved by the commission. The
53-18 estimate shall be printed in a type style and size that are
53-19 distinct from and larger than the type style and size of the body
53-20 of the notice; and,
53-21 (3) A statement that a consumer who desires to comment
53-22 on the rate adjustment or who desires additional details regarding
53-23 the rate adjustment may call or write the commission. The
53-24 statement required under this subdivision shall also include the
53-25 telephone number and address of the commission and a statement that
53-26 additional details will be provided free of charge to the consumer
53-27 and at the expense of the company.
54-1 (c) The commission shall review the adjusted rates to ensure
54-2 that the proposed adjustment conforms to the requirements of
54-3 Subsection (c) of Section 20C. A rate adjustment pursuant to
54-4 Subsection (c)(1), (2), (3) or (5) of Section 20C shall take effect
54-5 90 days from the date of completion of notice.
54-6 (d) For purpose of the pricing parameters contained in
54-7 Section 20C, 20E and 20F of this Article, local exchange companies
54-8 having 5 percent or fewer of the total access lines in this state
54-9 may adopt the price, if determined based on a long run incremental
54-10 cost study, for the same or substantially similar services offered
54-11 by a larger local exchange company without the requirement of
54-12 presenting long run incremental cost studies.
54-13 (e) Either by complaint filed by an affected party or on the
54-14 commission's own motion at any time prior to the rate adjustment
54-15 taking effect, the commission may suspend the effective date of the
54-16 rate adjustment and hold a hearing to review a rate set pursuant to
54-17 Subsection (c)(1), (2), (3) or (5) of Section 20C and after the
54-18 review issue an order approving, modifying, or rejecting the rate
54-19 adjustment if it is not in compliance with these subsections. Any
54-20 order modifying or rejecting the proposed rate adjustment shall
54-21 specify each reason why the proposed adjustment is not in
54-22 compliance with the provisions of subsection (c)(1), (2), (3) or
54-23 (5) of Section 20C and the means by which such proposed adjustment
54-24 may be brought into compliance.
54-25 (f) Any rate restructure pursuant to Subsection (c) of
54-26 Section 20C shall follow the notice and hearing procedures set
54-27 forth in Section 43(a)-(c) of this Act.
55-1 Sec. 20E. BASKET II: DISCRETIONARY SERVICES. (a) Basket
55-2 II services shall include all services or functions provided by the
55-3 electing company that have not been granted pricing flexibility in
55-4 a particular geographic market, and which have not been listed
55-5 under Baskets I or III.
55-6 (b) The following services are initially classified as
55-7 discretionary services in Basket II as of September 1, 1995:
55-8 (1) 1+ IntraLATA Message Toll Services, where equal
55-9 access is available;
55-10 (2) 0+, 0- Operator Services;
55-11 (3) Call Waiting, Call Forwarding and custom calling
55-12 features not listed in Basket III;
55-13 (4) Call Return, Caller ID and call control options
55-14 not listed in Basket III;
55-15 (5) Central Office Based PBX-Type Services
55-16 (6) Billing and Collection Services;
55-17 (7) Integrated Services Digital Network (ISDN)
55-18 Services; and,
55-19 (8) New Services.
55-20 The commission shall have the authority to reclassify a
55-21 service from Basket I to Basket II or Basket III, or from Basket II
55-22 to Basket III, consistent with the criteria described in Section
55-23 20G of this Act.
55-24 (c) The prices for each Basket II service or function
55-25 provided by the electing company shall be set above the LRIC cost.
55-26 The commission shall set the reasonable price ceiling over and
55-27 above LRIC cost, but such ceiling shall not be set below or above
56-1 the rate in effect on September 1, 1995. The ceiling may be raised
56-2 only after the proceedings required under Subsections 47B.
56-3 Thereafter the commission may change the price ceiling but may not
56-4 increase the ceiling more than 10 percent annually. Within the
56-5 range of the LRIC floor and the price ceiling, the local exchange
56-6 company may change the price of each service including utilizing
56-7 volume and term discounts, zone density pricing, packaging of
56-8 services, customer specific pricing and other promotional pricing
56-9 flexibility. The placement of a service in Basket II does not
56-10 preclude a local exchange company from using any of the regulatory
56-11 treatments authorized by or pursuant to Section 18 of this Act.
56-12 Discounts and other forms of pricing flexibility shall be cost
56-13 based and may not be preferential, prejudicial, or discriminatory.
56-14 Sec. 20F. BASKET III: COMPETITIVE SERVICES. (a) The
56-15 following services are Basket III competitive services and shall be
56-16 subject to pricing flexibility as of September 1, 1995:
56-17 (1) Services described in the WATS tariff as of
56-18 January 1, 1995;
56-19 (2) 800 and Foreign Exchange Services;
56-20 (3) Private Line Service;
56-21 (4) Special Access Service;
56-22 (5) Services from Public Pay Telephones;
56-23 (6) Paging Services and Mobile Services (IMTS);
56-24 (7) 911 Premises Equipment;
56-25 (8) Speed Dialing; and,
56-26 (9) Three Way Calling.
56-27 The commission shall have the authority to reclassify a
57-1 service from Basket I to Basket II or Basket III or from Basket II
57-2 to Basket III, consistent with the criteria described in Section
57-3 20G of this Act.
57-4 (b) The electing company may set the price for the service
57-5 at any level above the service's LRIC, in compliance with the
57-6 imputation rules established under Section 47B. Permissible
57-7 pricing flexibility includes volume and term discounts, zone
57-8 density pricing, packaging of services, customer specific contracts
57-9 and other promotional pricing flexibility except as provided in
57-10 Section 47B (a). Discounts and other forms of pricing flexibility
57-11 shall be cost based and may not be preferential, prejudicial, or
57-12 discriminatory. However, an electing local exchange company may
57-13 not increase the price of a service in a geographic area where that
57-14 service is not readily available from a competitor.
57-15 (c) No later than January 1, 1998, the commission shall
57-16 initiate a review and evaluation of any local exchange company
57-17 electing treatment pursuant to Articles IV or V herein to include,
57-18 but not limited to, consumer benefits, impact of competition,
57-19 infrastructure investments, and quality of service. The commission
57-20 shall file a report and its recommendations to the legislature by
57-21 January 1, 1999, as to whether the incentive regulation plan should
57-22 be extended, modified, eliminated, or replaced with some other form
57-23 of regulation. The legislature, based on the commission's report,
57-24 may authorize the commission to take action to extend, modify,
57-25 eliminate, or replace the incentive plan as provided in Sections IV
57-26 and V herein.
57-27 Sec. 20G. TRANSFERRING SERVICES. In determining whether to
58-1 transfer services from Basket I to Basket II or Basket III, or from
58-2 Basket II to Basket III the commission shall establish standards
58-3 which consider factors including the following:
58-4 (a) availability of the service from other providers;
58-5 (b) the proportion of the market that currently receives the
58-6 service;
58-7 (c) the effect of the transfer on subscribers of the
58-8 service; and
58-9 (d) the nature of the service.
58-10 The commission may not transfer any service from one basket
58-11 to another until full implementation of all competitive safeguards
58-12 required by Section 47B (b), (c), (d), (e), (f), (g) and (h).
58-13 Sec. 20H. INFRASTRUCTURE COMMITMENT. (a) Electing
58-14 companies under Section 20B shall make an infrastructure commitment
58-15 in writing to the Governor and commission, committing to make a
58-16 telecommunications infrastructure investment in the state. The
58-17 electing company will invest in the improvement and development of
58-18 the state telecommunications infrastructure in the following
58-19 manner:
58-20 (a) This infrastructure investment will be made in its
58-21 service territory during the six (6) year period following the
58-22 notification by the local exchange company that it will become an
58-23 electing company. The infrastructure investment shall include the
58-24 following network enhancements and special rates:
58-25 (1) Upon customer request, the electing company shall
58-26 provide broadband service capable of providing transmission speeds
58-27 of at least 45 megabits per second for customer applications to any
59-1 education institution as defined in Section 96B, public library,
59-2 public or not-for-profit hospital or primary health care provider,
59-3 and criminal justice facility (including county and state
59-4 courthouses).
59-5 (2) Educational institutions, public libraries, or
59-6 hospitals receiving the services provided pursuant to this section
59-7 shall not be assessed special constructions or installation
59-8 charges.
59-9 (3) Where the distance learning customer group has 10
59-10 or fewer locations, the electing company shall provide a discount
59-11 of 35 percent greater than its preferred customer monthly charges
59-12 for equivalent services for a direct connection of the service
59-13 between each location and the central office which serves as the
59-14 operating hub for the applicable distance learning customer group.
59-15 Notwithstanding the pricing flexible pricing authorized in this
59-16 Act, the electing company's rates for this service may not be
59-17 increased for 4 years from the date of election. An educational
59-18 institution may elect this rate treatment or the discount provided
59-19 in Section 96B.
59-20 (4) Where the telemedicine customer group has 10 or
59-21 fewer locations, the electing company shall provide a discount of
59-22 35 percent greater than its preferred customer monthly charges for
59-23 equivalent services for a direct connection of the service between
59-24 each location and the central office which serves as the operating
59-25 hub for the applicable distance learning customer group.
59-26 Notwithstanding the pricing flexible pricing authorized in this
59-27 Act, the electing company's rates for this service may not be
60-1 increased for 4 years from the date of election.
60-2 (5) Upon request for 1.544 megabits per second private
60-3 line or special access service, there shall be a 35 percent
60-4 discount greater than the applicable tariff or special access rate
60-5 for preferred monthly charges for equivalent services for
60-6 educational institutions and public libraries. This is in lieu of
60-7 the discount provided in Section 96B.
60-8 (6) Upon request a distance learning customer group
60-9 having 10 or fewer locations where there are different special
60-10 access or tariff rates for individual customers within the serving
60-11 group used to provide the basis for the discount, the electing
60-12 company shall request special access rates for the distance
60-13 learning customer group based on the most cost effective rate
60-14 structure for the distance learning customer group.
60-15 (7) The electing company of 1 million access lines or
60-16 more that is obligated to make an investment and incur expenses to
60-17 accomplish the requirements of Subsections (a) and (b) will
60-18 prioritize its investment for serving areas where one or more
60-19 counties having less than 10,000 access lines with populations of
60-20 less than 20,000 that have been designated as critically
60-21 underserved medically or designated as having school districts of
60-22 less than 3000 students.
60-23 (b) As to an electing company serving 5,000,000 access lines
60-24 or more, the obligation to make investment and incur expenses to
60-25 accomplish the requirements of Subsections (a) and (b) is $1.1
60-26 billion over the six (6) year period. For an electing company with
60-27 more than 5,000,000 access lines in this state, if 5 years after a
61-1 company's election, demand for broadband facilities as described in
61-2 subsection (a) has not required an electing local exchange company
61-3 to invest the entire amount specified in subsection (a) or to have
61-4 plans for such investment in the sixth year, the company and the
61-5 Commission shall agree upon a plan in which the company commits to
61-6 (1) invest the unspent balance remaining in the infrastructure
61-7 plan described under this subsection and/or (2) make a grant equal
61-8 to the unspent balance to the "Telecommunications Infrastructure
61-9 Fund" identified in Subsection 96B. For an electing company
61-10 serving more than one million access line and less than 5 million
61-11 access lines, the obligation to make investments and incur expenses
61-12 to accomplish the requirements of subsections (a) and (b) is $300
61-13 million over the six (6) year period. For an electing company with
61-14 more than one million access lines but less than 5 million access
61-15 lines in this state, if 5 years after a company's election, demand
61-16 for broadband facilities as described in subsection (a) has not
61-17 required an electing local exchange company to invest the entire
61-18 amount specified in subsection (a) or to have plans for such
61-19 investment in the sixth year, the company and the Commission shall
61-20 agree upon a plan in which the company commits to (1) invest the
61-21 unspent balance remaining in the infrastructure plan described
61-22 under this subsection and/or (2) make a grant equal to the unspent
61-23 balance to the "Infrastructure Grant Fund" identified in Subsection
61-24 96B.
61-25 (c) "Distance learning customer group" is a group of
61-26 educational institutions' premises and/or public libraries which
61-27 conduct distance learning and information sharing programs with and
62-1 among each other. The number of premises of a group may be subject
62-2 to the technical limitations of the service.
62-3 (d) "Telemedicine customer group" is a group of hospitals
62-4 and primary health care facilities which conduct telemedicine
62-5 programs with and among each other. The number of premises of a
62-6 group may be subject to the technical limitations of the service.
62-7 (e) Each electing company shall file a report with the
62-8 Commission each year on the anniversary date of its election which
62-9 sets forth its progress on its infrastructure commitment. The
62-10 report shall include:
62-11 (1) The institutions requesting service pursuant to
62-12 Section 20I
62-13 (2) The institutions served pursuant to Section 20(I)
62-14 (3) Investment and expense in previous period and
62-15 cumulative for all periods
62-16 (4) Any such information that the Commission deems
62-17 necessary.
62-18 ARTICLE V. INFRASTRUCTURE PLAN FOR RATE OF RETURN COMPANIES
62-19 Sec. 20H. POLICY. It is the policy of the legislature that
62-20 those local exchange companies which do not elect to be regulated
62-21 under Article IV should nevertheless have incentives to deploy
62-22 infrastructure which will benefit the citizens of this state, while
62-23 maintaining reasonable local rates and universal service.
62-24 Sec. 20I. ELECTION. (a) Any local exchange company serving
62-25 less than five percent of the access lines in this state which has
62-26 not elected incentive regulation pricing under Section 20B may
62-27 elect for an infrastructure plan under this section by notifying
63-1 the commission in writing of its election under this section.
63-2 (b) "Election date" means the date that the notice under
63-3 this section is received at the commission.
63-4 (c) For a period of six (6) years after the election date,
63-5 an electing local exchange company shall not seek an increase in
63-6 any rate previously established for that company under this Act,
63-7 except for the charges permitted under Section 93A, and in the
63-8 following circumstances and only upon commission approval that the
63-9 proposed change is within the following parameters:
63-10 (1) Government-imposed changes in costs. Following
63-11 the effective date of this Act, the commission, on its own
63-12 authority, on the complaint of any affected person, or on the
63-13 motion of the electing company, may adjust prices for basic network
63-14 services to reflect government-imposed changes in the electing
63-15 company's costs of providing telecommunications services resulting
63-16 from one or more of the following events and in the following
63-17 manner:
63-18 (A) a decrease in the corporate federal income
63-19 tax rate of 10 percent or more of that rate or in any state or
63-20 local tax or municipal or governmental assessment;
63-21 (B) an increase in the corporate federal income
63-22 tax rate of 10 percent or more of that rate or in any state or
63-23 local tax or municipal or governmental assessment in any one year
63-24 of 10 percent or more, or any newly enacted state or local tax or
63-25 municipal or governmental assessment
63-26 (C) any change in separations procedures by the
63-27 Federal Communications Commission which results in an increase in
64-1 annual intrastate net income;
64-2 (D) any change in separations procedures by the
64-3 Federal Communications Commission which results in a decrease in
64-4 annual intrastate net income which is greater than 10 percent;
64-5 (E) a mandated change in Financial Accounting
64-6 Standards Board (FASB) requirements which decreases the cost of the
64-7 components to which it applies by 10 percent or more in any one
64-8 year that affects net income.
64-9 (F) a mandated change in Financial Accounting
64-10 Standards Board (FASB) requirements which increases the cost of the
64-11 components to which it applies by 10 percent or more in any one
64-12 year that affects net income;
64-13 (G) a change by the commission in service
64-14 standards applicable to that company's basic local
64-15 telecommunications services or features to be provided as a
64-16 component of basic local telecommunications service.
64-17 (2) Index. If, after 42 months following the local
64-18 exchange company's election an electing company in this state is in
64-19 compliance with its infrastructure commitment, all quality of
64-20 services requirements, and all commission rules enacted pursuant to
64-21 Section 47B, upon application of the local exchange company, the
64-22 commission may undertake a proceeding to review the need for
64-23 changes in the basic network services. The commission may adjust
64-24 rates, implement new pricing plans, restructure rates or rebalance
64-25 revenues between basic network services to recognize changed market
64-26 conditions and the effects of competitive entry. The commission
64-27 may utilize an index and a productivity offset in determining these
65-1 changes. The commission may not order an increase in residential
65-2 local exchange service that would cause those rates to increase by
65-3 more than the U.S. CPI in any twelve month period. In no case
65-4 shall the new monthly rate exceed the nationwide average of local
65-5 exchange rates for like services. A company electing to receive
65-6 regulatory transition fund receipts pursuant to Section 98B shall
65-7 not be permitted to increase switched access rates under this
65-8 subdivision
65-9 (3) Regulatory Transition Fund. The increases
65-10 permitted by Section 98B.
65-11 (4) Rate Group Reclassification. A rate group
65-12 reclassification occurring as a result of access line growth shall
65-13 be allowed by the commission upon request of the electing company.
65-14 (d) If, subsequent to the enactment of this section, a local
65-15 exchange company notifies the commission in writing of its election
65-16 to the alternative infrastructure plan under Section 20I, an
65-17 electing company shall not for a period of six (6) years after the
65-18 election date, under any circumstances be subject to any complaint
65-19 or hearing as to the reasonableness of its rates applied pursuant
65-20 to Article V, its overall revenues, its return on invested capital
65-21 or its net income as long as the electing local exchange company is
65-22 complying with its infrastructure commitment pursuant to Section
65-23 20J nor shall an electing company be subject to a complaint that
65-24 any particular rate is excessive. In addition, no rules and
65-25 regulations of such company shall be changed by the commission
65-26 which will have the effect of reducing that company's revenues.
65-27 However, the company may make an application which will have this
66-1 effect. The initial competitive safeguards required by Section 47B
66-2 shall not be prohibited by this section. Nothing herein shall
66-3 restrict any consumer's right to complain to the commission
66-4 regarding quality of service or the commission's right to enforce
66-5 its quality of service standards. The commission shall not
66-6 increase service standards applicable to the provision of local
66-7 exchange service by electing companies where the increased
66-8 investment required to comply with the increased standard exceeds
66-9 in any one year 10 percent of the local exchange company's average
66-10 annual intrastate additions in capital investment for the most
66-11 recent 5 years period. In calculating the average, the local
66-12 exchange company shall exclude extraordinary investments made
66-13 during the five year period.
66-14 (e) Upon application of an electing local exchange company,
66-15 the commission may allow a company to withdraw its election under
66-16 this section but shall not do so without good cause. For the
66-17 purpose of this section good cause shall only include matters which
66-18 were beyond the control of the local exchange company.
66-19 (f) Nothing in this section shall prohibit any local
66-20 exchange company from making an election under Section 20B at any
66-21 time, and in the event of such election, the infrastructure
66-22 commitment made under Section 20J will offset any infrastructure
66-23 commitment required in connection with the Section 20B election.
66-24 (g) The rates capped in subsection (c) as a result of a
66-25 company's election shall be the rates charged by the company at the
66-26 date of its election without regard to proceedings pending under
66-27 Sections 42, 69 or Subchapter G of the Administrative Procedure
67-1 Act.
67-2 Sec. 20J. INFRASTRUCTURE COMMITMENT. (a) Electing
67-3 companies under Section 20I shall make an infrastructure commitment
67-4 in writing to the Governor and commission, committing to make the
67-5 following telecommunications infrastructure investment in the state
67-6 over a six year period following their election. The
67-7 infrastructure investment shall include the following network
67-8 enhancements and special rates:
67-9 (1) Upon customer request, the electing company shall
67-10 provide broadband service capable of providing transmission speeds
67-11 of at least 45 megabits per second for customer applications to any
67-12 education institution as defined in Section 96B, public library,
67-13 public or not-for-profit hospital or primary medical care facility,
67-14 and criminal justice facility (including county and state
67-15 courthouses).
67-16 (2) Educational institutions, public libraries, or
67-17 hospitals receiving the services provided pursuant to this section
67-18 shall not be assessed special constructions or installation
67-19 charges.
67-20 (b) The electing company's infrastructure investment
67-21 obligation over the six year period shall be an amount equal to 15
67-22 percent of the company's intrastate revenues in the year of
67-23 election.
67-24 (c) Upon request for 1.544 megabits per second private line
67-25 or special access service, there shall be a 35 percent discount
67-26 greater than the applicable tariff or special access rate for
67-27 preferred monthly charges for equivalent services for educational
68-1 institutions and public libraries. This is in lieu of the discount
68-2 provided in Section 96B.
68-3 (d) If 5 years after a company's election, demand for
68-4 broadband facilities as described in Subsection (a) has not
68-5 required an electing local exchange company to invest the entire
68-6 amount specified in Subsection (a) or to have plans for such
68-7 investment in the sixth year, the company and the Commission shall
68-8 agree upon a plan in which the company commits to (1) invest the
68-9 unspent balance remaining in the infrastructure plan described
68-10 under this subsection and/or (2) make a grant equal to the unspent
68-11 balance to the "Telecommunications Infrastructure Fund" identified
68-12 in Subsection 96B. An electing company investment qualifies as a
68-13 Texas infrastructure development commitment only if the investment
68-14 is in addition to the company's annual capital investment averaged
68-15 over the three years preceding the date of the election. However
68-16 the electing company may apply to the commission for a
68-17 determination that extraordinary expenditures justify using a
68-18 different method for determining the level of investment above
68-19 which the expenditure qualifies as an infrastructure commitment
68-20 under this section.
68-21 (e) Each electing company shall file a report with the
68-22 Commission each year on the anniversary date of its election which
68-23 sets forth its progress on its infrastructure commitment. The
68-24 report shall include:
68-25 (1) The institutions requesting service pursuant to
68-26 Section 20I
68-27 (2) The institutions served pursuant to Section 20(I)
69-1 (3) Investment and expense in previous period and
69-2 cumulative for all periods
69-3 (4) Any such information that the Commission deems
69-4 necessary.
69-5 ARTICLE <IV>. VI. MUNICIPALITIES
69-6 Sec. 21. Nothing in this Act shall be construed as in any
69-7 way limiting the rights and powers of a municipality to grant or
69-8 refuse franchises to use the streets and alleys within its limits
69-9 and to make the statutory charges for the use thereof, but no
69-10 provision of any franchise agreement shall limit or interfere with
69-11 any power conferred on the commission by this Act. If a
69-12 municipality performs regulatory functions under this Act, it may
69-13 make such other charges as may be provided in the applicable
69-14 franchise agreement, together with any other charges permitted by
69-15 this Act. Nothing in this Act shall be construed as in any way
69-16 limiting the right of a public utility to pass through municipal
69-17 fees, including any increase in municipal fees. Any public utility
69-18 which traditionally passes through municipal fees shall promptly
69-19 pass through any reductions.
69-20 Sec. 22. Notwithstanding any other provision of this
69-21 section, municipalities shall continue to regulate each kind of
69-22 local utility service inside their boundaries until the commission
69-23 has assumed jurisdiction over the respective utility pursuant to
69-24 this Act. If a municipality does not surrender its jurisdiction,
69-25 local utility service within the boundaries of the municipality
69-26 shall be exempt from regulation by the commission under the
69-27 provisions of this Act to the extent that this Act applies to local
70-1 service, and the municipality shall have, regarding service within
70-2 its boundaries, the right to exercise the same regulatory powers
70-3 under the same standards and rules as the commission, or other
70-4 standards and rules not inconsistent therewith. Notwithstanding
70-5 any such election, the commission may consider a public utility's
70-6 revenues and return on investment in exempt areas in fixing rates
70-7 and charges in nonexempt areas, and may also exercise the powers
70-8 conferred necessary to give effect to orders under this Act, for
70-9 the benefit of nonexempt areas. Likewise, in fixing rates and
70-10 charges in the exempt area, the governing body may consider a
70-11 public utility's revenues and return on investment in nonexempt
70-12 areas. Utilities serving exempt areas shall be subject to the
70-13 reporting requirements of this Act. Such reports shall be filed
70-14 with the governing body of the municipality as well as the
70-15 commission. Nothing in this section shall limit the duty and power
70-16 of the commission to regulate service and rates of municipally
70-17 regulated utilities for service provided to other areas in Texas.
70-18 Sec. 23. Any municipality regulating its public utilities
70-19 pursuant to this Act shall require from those utilities all
70-20 necessary data to make a reasonable determination of rate base,
70-21 expenses, investment, and rate of return within the municipal
70-22 boundaries. The standards for such determination shall be based on
70-23 the procedures and requirements of this Act and said municipality
70-24 shall retain any and all personnel necessary to make the
70-25 determination of reasonable rates required under this Act.
70-26 Sec. 24. (a) The governing body of any municipality
70-27 participating in or conducting ratemaking proceedings shall have
71-1 the right to select and engage rate consultants, accountants,
71-2 auditors, attorneys, engineers, or any combination thereof, to
71-3 conduct investigations, present evidence, advise and represent the
71-4 governing body, and assist with litigation in public utility
71-5 ratemaking proceedings before the governing body, any regulatory
71-6 authority, or in court. The public utility engaged in such
71-7 proceedings shall be required to reimburse the governing body for
71-8 the reasonable costs of such services to the extent found
71-9 reasonable by the applicable regulatory authority.
71-10 (b) Municipalities shall have standing in all cases before
71-11 the commission regarding utilities serving within their corporate
71-12 limits subject to the right of the commission to determine standing
71-13 in cases involving retail service area disputes involving two or
71-14 more utilities and to consolidate municipalities on issues of
71-15 common interest and shall be entitled to judicial review of orders
71-16 regarding said proceedings in accordance with Section 69 of the
71-17 Act.
71-18 Sec. 25. The commission may advise and assist municipalities
71-19 upon request in connection with questions and proceedings arising
71-20 under this Act. Such assistance may include aid to municipalities
71-21 in connection with matters pending before the commission or the
71-22 courts, or before the governing body of any municipality, including
71-23 making members of the staff available as witnesses and otherwise
71-24 providing evidence to them.
71-25 Sec. 26. (a) Any party to a rate proceeding before the
71-26 governing body of a municipality may appeal the decision of the
71-27 governing body to the commission.
72-1 (b) Citizens of a municipality may appeal the decision of
72-2 the governing body in any rate proceeding to the commission through
72-3 the filing of a petition for review signed by the lesser of 20,000
72-4 or 10 percent of the number of qualified voters of such
72-5 municipality.
72-6 Text of Sec. 26(c) as amended by Acts 1989, 71st Leg., Ch.
72-7 325, Sec. 1:
72-8 (c) Ratepayers of a municipally owned electric utility
72-9 outside the municipal limits may appeal any action of the governing
72-10 body affecting the rates of the municipally owned electric utility
72-11 though filing with the commission petition for review signed by the
72-12 lesser of 10,000 or 5 percent of the ratepayers served by such
72-13 utility outside the municipal limits. For purposes of this
72-14 subsection each person receiving a separate bill shall be
72-15 considered as a ratepayer. But no person shall be considered as
72-16 being more than one ratepayer notwithstanding the number of bills
72-17 received. Such petition for review shall be considered properly
72-18 signed if signed by any person, or spouse of any such person, in
72-19 whose name residential utility service is carried. Not later than
72-20 the 90th day after the date on which a petition for review that
72-21 meets the requirements to this subsection is filed, the
72-22 municipality shall file with the commission a rate application that
72-23 complies in all material respects with the rules and forms
72-24 prescribed by the commission. The commission may, for good cause
72-25 shown, extend the time period for filing the rate application.
72-26 Text of Sec. 26(c) as amended by Acts 1989, 71st Leg., Ch.
72-27 1167, Sec. 1:
73-1 (c)(1) Ratepayers of a municipally owned electric utility
73-2 outside the municipal limits may appeal any action of the governing
73-3 body affecting the rates of the municipally owned electric utility
73-4 through filing with the commission a petition for review signed by
73-5 the lesser of 10,000 or 5 percent of the ratepayers served by such
73-6 utility outside the municipal limits. For purposes of this
73-7 subsection each person receiving a separate bill shall be
73-8 considered as a ratepayer. But no person shall be considered as
73-9 being more than one ratepayer notwithstanding the number of bills
73-10 received. Such petition for review shall be considered properly
73-11 signed if signed by any person, or spouse of any such person, in
73-12 whose name residential utility service is carried. The
73-13 municipality that owns the electric utility shall on request
73-14 disclose to any person the number of ratepayers who reside outside
73-15 the municipal limits. The municipality shall provide the
73-16 information by telephone or in a written form, as preferred by the
73-17 person making the request. The municipality may not charge a fee
73-18 for providing the information. The municipality shall on request
73-19 provide to any person a list of the names and addresses of the
73-20 ratepayers who reside outside the municipal limits. The
73-21 municipality may charge a reasonable fee to cover the cost of
73-22 providing the list.
73-23 (2) Not later the 14th day after the date on which the
73-24 governing body makes a final decision, the municipality shall issue
73-25 a written report stating the effect of the decision on each class
73-26 of ratepayers. The appeal process shall be instituted by filing a
73-27 petition for review with the commission and serving copies on all
74-1 parties to the original rate proceeding. The petition must be
74-2 filed not later than the 45th day after the date on which the
74-3 municipality issues the written report prescribed by this
74-4 subsection.
74-5 (d) Any municipally owned electric utility whose rates have
74-6 been or are appealed under Subsection (c) of this section, and for
74-7 which the commission has ordered or orders a decrease in annual
74-8 nonfuel base revenues which exceeds the greater of $25,000,000 or
74-9 10 percent of the utility's nonfuel base revenues, as calculated on
74-10 a total system basis (without regard to the municipal utility's
74-11 corporate boundaries) and established in the rate ordinance or
74-12 ordinances appealed from, and for which the commission has found or
74-13 finds that the rates paid by the combined residential or any other
74-14 major customer class (other than any class or classes where the
74-15 city is itself the customer of the municipally owned utility) are
74-16 removed from cost of service levels to the extent that, under the
74-17 nonfuel base revenue requirement adopted by the commission (as
74-18 computed on a total system basis without regard to the
74-19 municipality's corporate boundaries), a change in a nonfuel base
74-20 rate revenues in excess of 50% from adjusted test year levels would
74-21 be required to move that class to a relative rate of return of
74-22 unity (1.00 or 100%) under the cost of service methodology adopted
74-23 by the commission in an appeal under Subsection (c) of this
74-24 section, shall thereafter be subject to the following:
74-25 (1) For a period of 10 years beginning on the later of
74-26 the effective date of this subsection, or the effective date of the
74-27 rate ordinance which was the subject of the commission's final
75-1 order invoking the application of this subsection, the commission
75-2 shall have appellate jurisdiction over the rates charged by the
75-3 municipally owned utility, both inside and outside such
75-4 municipality's corporate limits, in the same manner and subject to
75-5 the same commission powers and authority set forth in this Act for
75-6 public utilities, but specifically limited as follows:
75-7 (A) The commission shall have the jurisdiction
75-8 to review the cost allocation and rate design methodologies adopted
75-9 by the City Council or other governing body of the municipally
75-10 owned utility subject to this subsection.
75-11 (i) If the commission finds that such cost
75-12 of service methodologies result in rates which are unjust,
75-13 unreasonable, or unreasonably discriminatory or unduly preferential
75-14 to any customer class, then the commission may order the
75-15 implementation of ratesetting methodologies which the commission
75-16 finds reasonable.
75-17 (ii) The commission shall ensure that no
75-18 customer class, other than any class or classes where the city is
75-19 itself the customer of the municipally owned utility, pays rates
75-20 which result in a relative rate of return exceeding 115 percent
75-21 under the cost-of-service methodology found reasonable by the
75-22 commission, provided that no customer class experience a percentage
75-23 base rate increase that is greater than 1-1/2 times the system
75-24 average base increase. In moving above-cost classes toward
75-25 cost-of-service levels, those classes farthest above cost shall be
75-26 moved sequentially toward cost, such that no above-cost class moves
75-27 toward cost until no other class or classes are further removed
76-1 from cost.
76-2 (iii) The municipality may, as a matter of
76-3 intra-class rate design, design residential rates to accomplish
76-4 reasonable energy conservation goals, notwithstanding any other
76-5 provision of this Act.
76-6 (B) The commission's jurisdiction under this
76-7 subsection may be invoked by any party to the local rate
76-8 proceedings required by this subsection, in the same manner as
76-9 appeals of the rates of public utilities under Subsection (a) of
76-10 this section. Provided, however, that the commission's
76-11 jurisdiction under this subsection shall not extend to the
76-12 municipally owned utility's revenue requirements, whether base rate
76-13 or fuel revenues, its invested capital, its return on invested
76-14 capital, its debt service coverage ratio, or the level of any
76-15 transfer of revenues from the utility to the municipality's general
76-16 fund.
76-17 (2) The City Council or other governing board of a
76-18 municipally owned utility subject to this subsection shall
76-19 establish procedures similar to those procedures employed by
76-20 municipalities which have retained original jurisdiction under
76-21 Section 17(a) of this Act to regulate public utilities operating
76-22 within such municipalities' corporate boundaries. Such procedures
76-23 shall include a public hearing process in which affected ratepayers
76-24 are granted party status on request and are grouped for purposes of
76-25 participation in accordance with their common or divergent
76-26 interests, including but not limited to the particular interests of
76-27 all-electric and out-of-city residential ratepayers. Provided,
77-1 however, that nothing in this Act or this subsection shall require
77-2 the City Council or governing board of the municipally owned
77-3 utility to which this subsection applies to employ or establish
77-4 procedures that require the use of the Texas Rules of Evidence, the
77-5 Texas Rules of Civil Procedure, or the presentation of sworn
77-6 testimony or other forms of sworn evidence. The City Council or
77-7 other governing board shall appoint a consumer advocate to
77-8 represent the interests of residential and small commercial
77-9 ratepayers in the municipality's local rate proceedings. The
77-10 consumer advocate's reasonable costs of participation in said
77-11 proceedings, including the reasonable costs of ratemaking
77-12 consultants and expert witnesses, shall be funded by and recovered
77-13 from such residential and small commercial ratepayers.
77-14 (3) The Public Utility Commission shall establish
77-15 rules applicable to any party to an appeal under Subsection (c) of
77-16 this section that provide for the public disclosure of financial
77-17 and in-kind contributions and expenditures related to preparation
77-18 of and filing of a petition for appeal and in preparation of expert
77-19 testimony or legal representation for an appeal. Any party or
77-20 customer who is a member of a party who makes a financial
77-21 contribution or in-kind contribution to assist in an appeal of
77-22 another party or customer class under Subsection (c) of this
77-23 section shall, upon a finding of the commission to that effect, be
77-24 required to pay the municipally owned utility a penalty equivalent
77-25 in amount to two times the contribution. Nothing in this
77-26 subsection shall be construed to limit the right of any party or
77-27 customer to expend funds to represent its own interests following
78-1 the filing of a petition with the Public Utility Commission under
78-2 Subsection (c) of this section.
78-3 (e) Any municipally owned electric utility whose rates have
78-4 been or are appealed under Subsection (c) of this section, and for
78-5 which the commission has ordered or orders a decrease in annual
78-6 nonfuel base revenues which exceeds the greater of $25,000,000 or
78-7 10 percent of the utility's nonfuel base revenues, as calculated on
78-8 a total system basis (without regard to the municipal utility's
78-9 corporate boundaries) and established in the rate ordinance or
78-10 ordinances appealed from, and for which the commission has found or
78-11 finds that the rates paid by the combined residential or any other
78-12 major customer class (other than any class or classes where the
78-13 city is itself the customer of the municipally owned utility) are
78-14 removed from cost of service levels to the extent that, under the
78-15 nonfuel base revenue requirement adopted by the commission (as
78-16 computed on a total system basis without regard to the
78-17 municipality's corporate boundaries), a change in nonfuel base rate
78-18 revenues in excess of 50 percent from adjusted test year levels
78-19 would be required to move that class to a relative rate of return
78-20 of unity (1.00 or 100%) under the cost of service methodology
78-21 adopted by the commission in an appeal under Subsection (c) of this
78-22 section, shall thereafter be subject to the following:
78-23 (1) For a period of 10 years beginning on the later of
78-24 the effective date of this subsection, or the effective date of the
78-25 rate ordinance which was the subject of the commission's final
78-26 order invoking the application of this subsection, the commission
78-27 shall have appellate jurisdiction over the rates charged by the
79-1 municipally owned utility, outside the municipality's corporate
79-2 limits, in the manner and to the extent provided in this
79-3 subsection.
79-4 (2) Ratepayers of a municipally owned utility subject
79-5 to this subsection who reside outside the municipality's corporate
79-6 limits may appeal any action of the governing body affecting the
79-7 rates charged by the municipally owned electric utility outside the
79-8 corporate limits through filing with the commission a petition for
79-9 review in accordance with the same procedures, requirements, and
79-10 standards applicable to appeals brought under Subsection (c) of
79-11 this section, except as otherwise specifically provided in this
79-12 subsection. The petition for review must plainly disclose that the
79-13 cost of bringing and pursuing the appeal will be funded by a
79-14 surcharge on the monthly electric bills of outside-city ratepayers
79-15 in a manner prescribed by the commission.
79-16 (A) Upon commission approval of the sufficiency
79-17 of a petition, the appellants shall submit for the approval of the
79-18 Office of Public Utility Counsel a budget itemizing the scope and
79-19 expected cost of consultant services to be purchased by the
79-20 appellants in connection with the appeal.
79-21 (B) After a final order has been entered by the
79-22 commission in the appeal, the consultant and legal costs approved
79-23 by public counsel as reasonable shall be assessed by the
79-24 municipality on a per capita basis among residential ratepayers who
79-25 reside outside the municipality. Surcharges shall be assessed in a
79-26 one-time charge not later than 120 days following entry of the
79-27 commission's final order. Costs incurred by the appellants shall
80-1 be reimbursed by the municipality within not later than 90 days
80-2 following the date the commission enters it final order.
80-3 (C) The municipality shall not include the costs
80-4 associated with its defense of an appeal under this subsection in
80-5 the rates of outside-city ratepayers. Nor shall the municipality,
80-6 if it appeals from an order entered by the commission under this
80-7 subsection, include the costs associated with its appeal in the
80-8 rates of ratepayers who reside outside the city.
80-9 (D) Ratepayers who appeal under this subsection
80-10 may not receive funding for rate case expenses except from
80-11 residential ratepayers who reside outside the municipality's
80-12 boundaries or from other municipalities inside whose corporate
80-13 limits the municipally owned utility provides service. The
80-14 commission shall adopt rules for the reporting of financial and
80-15 in-kind contributions in support of appeals brought under this
80-16 subsection. Upon a finding by the commission than an appellant has
80-17 received contributions from any source other than outside-city
80-18 ratepayers or such other municipalities, the appeal and orders of
80-19 the commission entered therein shall be null and void.
80-20 (3) In appeals under this subsection, the commission
80-21 shall have jurisdiction and authority to review and ensure that the
80-22 revenue requirements of any municipally owned utility subject to
80-23 this subsection are reasonable, but such jurisdiction and authority
80-24 does not extend to regulation of the use and level of any transfer
80-25 of the utility's revenues to the municipality's general fund. The
80-26 commission shall also have jurisdiction and authority to review the
80-27 cost allocation and rate design methodologies adopted by the
81-1 governing body of the municipally owned utility. If the commission
81-2 finds that such cost of service methodologies result in rates which
81-3 are unjust, unreasonable, or unreasonably discriminatory or unduly
81-4 preferential to any customer class, then the commission may order
81-5 the implementation of ratesetting methodologies which the
81-6 commission finds reasonable; provided, however, that the
81-7 commission's jurisdiction under this subsection shall not encompass
81-8 matters of intra-class residential rate design.
81-9 (4) An intervenor in an appeal brought under this
81-10 subsection shall be limited to presenting testimony and evidence on
81-11 cost allocation and rate design methodologies, except that
81-12 intervenors may present evidence and testimony in support of the
81-13 municipality on issues related to utility revenues.
81-14 (5) An appellant ratepayer residing outside the
81-15 corporate limits of a municipally owned utility subject to this
81-16 subsection shall, in appealing from a rate ordinance or other
81-17 ratesetting action of the municipality's governing board, elect to
81-18 petition for review under either Subsection (c) of this section or
81-19 this subsection.
81-20 (f) The appeal process shall be instituted within 30 days of
81-21 the final decision by the governing body with the filing of a
81-22 petition for review with the commission and copies served on all
81-23 parties to the original rate proceeding.
81-24 (g) The commission shall hear such appeal de novo based on
81-25 the test year presented to the municipality and by its final order
81-26 shall fix such rates as the municipality should have fixed in the
81-27 ordinance from which the appeal was taken. In the event that the
82-1 commission fails to enter its final order: (1) for proceedings
82-2 involving the rates of a municipally owned utility, within 185 days
82-3 from the date on which the appeal is perfected or on which the
82-4 utility files a rate application as prescribed by Subsection (c) of
82-5 this section; or (2) for proceedings in which similar relief has
82-6 also been concurrently sought from the commission under its
82-7 original jurisdiction, within 120 days from the date such appeal is
82-8 perfected or the date upon which final action must be taken in the
82-9 similar proceedings so filed with the commission whichever shall
82-10 last occur; or (3) in all other proceedings, within 185 days from
82-11 the date such appeal is perfected, the schedule of rates proposed
82-12 by the utility shall be deemed to have been approved by the
82-13 commission and effective upon the expiration of said applicable
82-14 period. Any rates, whether temporary or permanent, set by the
82-15 commission shall be prospective and observed from and after the
82-16 applicable order of the commission, except interim rate orders
82-17 necessary to effect uniform system-wide rates.
82-18 ARTICLE <V> VII. RECORDS, REPORTS, INSPECTIONS, RATES AND
82-19 SERVICES
82-20 Sec. 27. (a) Every public utility shall keep and render to
82-21 the regulatory authority in the manner and form prescribed by the
82-22 commission uniform accounts of all business transacted. The
82-23 commission may also prescribe forms of books, accounts, records,
82-24 and memoranda to be kept by such public utilities, including the
82-25 books, accounts, records, and memoranda of the rendition of and
82-26 capacity for service as well as the receipts and expenditures of
82-27 moneys, and any other forms, records, and memoranda which in the
83-1 judgment of the commission may be necessary to carry out any of the
83-2 provisions of this Act. In the case of any public utility subject
83-3 to regulations by a federal regulatory agency, compliance with the
83-4 system of accounts prescribed for the particular class of utilities
83-5 by such agency may be deemed a sufficient compliance with the
83-6 system prescribed by the commission; provided, however, that the
83-7 commission may prescribe forms of books, accounts, records, and
83-8 memoranda covering information in addition to that required by the
83-9 federal agency. The system of accounts and the forms of books,
83-10 accounts, records, and memoranda prescribed by the commission for a
83-11 public utility or class of utilities shall not conflict nor be
83-12 inconsistent with the systems and forms established by a federal
83-13 agency for that public utility or class of utilities.
83-14 (b) The commission shall fix proper and adequate rates and
83-15 methods of depreciation, amortization, or depletion of the several
83-16 classes of property of each public utility, and shall require every
83-17 public utility to carry a proper and adequate depreciation account
83-18 in accordance with such rates and methods and with such other rules
83-19 and regulations as the commission prescribes. Upon application of
83-20 a utility, the commission shall fix depreciation rates that promote
83-21 deployment of new technology and infrastructure. In setting such
83-22 rates it shall consider depreciation practices of non-regulated
83-23 telecommunications providers. Such rates, methods, and accounts
83-24 shall be utilized uniformly and consistently through the
83-25 ratesetting and appeal proceedings.
83-26 (c) Every public utility shall keep separate accounts to
83-27 show all profits or losses resulting from the sale or lease of
84-1 appliances, fixtures, equipment, or other merchandise. No such
84-2 profit or loss shall be taken into consideration by the regulatory
84-3 authority in arriving at any rate to be charged for service by any
84-4 such public utility, to the extent that such merchandise is not
84-5 integral to the provision of utility service.
84-6 (d) Every public utility is required to keep and render its
84-7 books, accounts, records, and memoranda accurately and faithfully
84-8 in the manner and form prescribed by the commission, and to comply
84-9 with all directions of the regulatory authority relating to such
84-10 books, accounts, records, and memoranda. The regulatory authority
84-11 may require the examination and audit of all accounts.
84-12 (e) In determining the allocation of tax savings derived
84-13 from application of such methods as liberalized depreciation and
84-14 amortization and the investment tax credit, the regulatory
84-15 authority shall equitably balance the interests of present and
84-16 future customers and shall apportion such benefits between
84-17 consumers and the public utilities accordingly. Where any portion
84-18 of the investment tax credit has been retained by a public utility,
84-19 that same amount shall be deducted from the original cost of the
84-20 facilities or other addition to the rate base to which the credit
84-21 applied, to the extent allowed by the Internal Revenue Code.
84-22 (f) For the purposes of this section, "public utility"
84-23 includes "municipally owned utility."
84-24 Sec. 28. (a) The commission shall have the power to:
84-25 (1) require that public utilities report to it such
84-26 information relating to themselves and affiliated interests both
84-27 within and without the State of Texas as it may consider useful in
85-1 the administration of this Act;
85-2 (2) establish forms for all reports;
85-3 (3) determine the time for reports and the frequency
85-4 with which any reports are to be made;
85-5 (4) require that any reports be made under oath;
85-6 (5) require that a copy of any contract or arrangement
85-7 between any public utility and any affiliated interest be filed
85-8 with it. It may require any such contract or arrangement not in
85-9 writing to be reduced to writing and filed with it;
85-10 (6) require that a copy of any report filed with any
85-11 federal agency or any governmental agency or body of any other
85-12 state be filed with it; and
85-13 (7) require that a copy of annual reports showing all
85-14 payments of compensation (other than salary or wages subject to the
85-15 withholding of federal income tax) to residents of Texas, or with
85-16 respect to legal, administrative, or legislative matters in Texas,
85-17 or for representation before the Texas Legislature or any
85-18 governmental agency or body.
85-19 (b) On the request of the governing body of any
85-20 municipality, the commission may provide sufficient staff members
85-21 to advise and consult with such municipality on any pending matter.
85-22 Sec. 29. (a) Any regulatory authority, and when authorized
85-23 by the regulatory authority, its counsel, agents, and employees,
85-24 shall have the right, at reasonable times and for reasonable
85-25 purposes, to inspect and obtain copies of the papers, books,
85-26 accounts, documents, and other business records, and to inspect the
85-27 plant, equipment, and other property of any public utility within
86-1 its jurisdiction. The regulatory authority may examine under oath,
86-2 or it may authorize the person conducting such investigation to
86-3 examine under oath, any officer, agent, or employee of any public
86-4 utility in connection with such investigation. The regulatory
86-5 authority may require, by order or subpoena served on any public
86-6 utility, the production within this state at the time and place it
86-7 may designate, of any books, accounts, papers, or records kept by
86-8 that public utility outside the state, or verified copies in lieu
86-9 thereof if the commission so orders. Any public utility failing or
86-10 refusing to comply with any such order or subpoena is in violation
86-11 of this Act.
86-12 (b)(1) A member, agent, or employee of the regulatory
86-13 authority may enter the premises occupied by a public utility to
86-14 make inspections, examinations, and tests and to exercise any
86-15 authority provided by this Act.
86-16 (2) A member, agent, or employee of the regulatory
86-17 authority may act under this section only during reasonable hours
86-18 and after giving reasonable notice to the utility.
86-19 (3) The public utility is entitled to be represented
86-20 when inspections, examinations, and tests are made on its premises.
86-21 Reasonable time for the utility to secure a representative shall be
86-22 allowed before commencing an inspection, examination, or test.
86-23 (c) The regulatory authority may inquire into the management
86-24 and affairs of all public utilities, and shall keep itself informed
86-25 as to the manner and method in which the same are conducted.
86-26 Sec. 30. The regulatory authority may require an annual
86-27 reporting from each utility company of all its expenditures for
87-1 business gifts and entertainment, and institutional,
87-2 consumption-inducing and other advertising or public relations
87-3 expenses. The regulatory authority shall not allow as costs or
87-4 expenses for rate-making purposes any of these expenditures which
87-5 the regulatory authority determines not to be in the public
87-6 interest. The cost of legislative-advocacy expenses shall not in
87-7 any case be allowed as costs or expenses for rate-making purposes.
87-8 Reasonable charitable or civic contributions may be allowed not to
87-9 exceed the amount approved by the regulatory authority.
87-10 Sec. 31. It shall be unlawful for any utility to charge,
87-11 collect, or receive any rate for public utility service or to
87-12 impose any rule or regulation other than as herein provided.
87-13 Sec. 32. Every public utility shall file with each
87-14 regulatory authority schedules showing all rates which are subject
87-15 to the original or appellate jurisdiction of the regulatory
87-16 authority and which are in force at the time for any public utility
87-17 service, product, or commodity offered by the utility. Every
87-18 public utility shall file with, and as a part of such schedules,
87-19 all rules and regulations relating to or affecting the rates,
87-20 public utility service, product, or commodity furnished by such
87-21 utility.
87-22 Sec. 33. Every public utility shall have an office in a
87-23 county of this state in which its property or some part thereof is
87-24 located in which it shall keep all books, accounts, records, and
87-25 memoranda required by the commission to be kept, except that books,
87-26 accounts records or memoranda may be removed from the state so long
87-27 as such books, accounts, records or memoranda are returned to the
88-1 state for any inspection by the commission which is authorized by
88-2 this Act.
88-3 Sec. 34. (a) The regulatory authority shall prescribe
88-4 regulations governing communications by public utilities, their
88-5 affiliates and their representatives, with the regulatory authority
88-6 or any member or employee of the regulatory authority.
88-7 (b) Such records shall contain the name of the person
88-8 contacting the regulatory authority or member or employee of the
88-9 regulatory authority, the name of the business entities
88-10 represented, a brief description of the subject matter of the
88-11 communication, and the action, if any, requested by the public
88-12 utility, affiliate, or representative. These records shall be
88-13 available to the public on a monthly basis.
88-14 Sec. 35. (a) Every public utility shall furnish such
88-15 service, instrumentalities, and facilities as shall be safe,
88-16 adequate, efficient, and reasonable.
88-17 (b) The regulatory authority after reasonable notice and
88-18 hearing had on its own motion or on complaint, may ascertain and
88-19 fix just and reasonable standards, classifications, regulations, or
88-20 practices to be observed and followed by any or all public
88-21 utilities with respect to the service to be furnished; ascertain
88-22 and fix adequate and reasonable standards for the measurement of
88-23 the quantity, quality, pressure, initial voltage, or other
88-24 condition pertaining to the supply of the service; prescribe
88-25 reasonable regulations for the examination and testing of the
88-26 service and for the measurement thereof; and establish or approve
88-27 reasonable rules, regulations, specifications, and standards to
89-1 secure the accuracy of all meters, instruments and equipment used
89-2 for the measurement of any service of any public utility. Any
89-3 standards, classifications, regulations, or practices now or
89-4 hereafter observed or followed by any public utility may be filed
89-5 by it with the regulatory authority, and the same shall continue in
89-6 force until amended by the public utility or until changed by the
89-7 regulatory authority as herein provided.
89-8 (c) The commission shall require all holders of certificates
89-9 of convenience and necessity and certificates of operating
89-10 authority in the state to provide at the applicable tariff rate, to
89-11 all customers, no later than December 31, 2000:
89-12 (1) single party service;
89-13 (2) tone-dialing;
89-14 (3) basic Custom Calling Features;
89-15 (4) equal access for interLATA interexchange carriers
89-16 upon bona fide request; and
89-17 (5) upon customer request digital switching capability
89-18 in all exchanges, provided by a digital switch in the exchange or
89-19 by connection to a digital switch in another exchange.
89-20 The commission may temporarily waive these requirements on a
89-21 showing of good cause. The commission may not consider the cost of
89-22 implementing Subsection (c) in determining whether an electing
89-23 company is entitled to a rate increase under Article IV or V or
89-24 Section 98.
89-25 <(c)> (d) Notwithstanding any other provision of law, all
89-26 lines owned by a public utility for the transmission and/or
89-27 distribution of electric energy shall be constructed, operated, and
90-1 maintained, as to clearances, in accordance with the National
90-2 Electrical Safety Code Standard ANSI (c)(2), as adopted by the
90-3 American National Safety Institute and in effect at the time of
90-4 construction.
90-5 Sec. 36. (a) The regulatory authority may examine and test
90-6 any meter, instrument, or equipment used for the measurement of any
90-7 service of any public utility and may enter any premises occupied
90-8 by any public utility for the purpose of making such examinations
90-9 and tests and exercising any power provided for in this Act and may
90-10 set up and use on such premises any apparatus and appliances
90-11 necessary therefor. The public utility shall have the right to be
90-12 represented at the making of the examinations, tests, and
90-13 inspections. The public utility and its officers and employees
90-14 shall facilitate the examinations, tests, and inspections by giving
90-15 every reasonable aid to the regulatory authority and any person or
90-16 persons designated by the regulatory authority for the duties
90-17 aforesaid.
90-18 (b) Any consumer or user may have any meter or measuring
90-19 device tested by the utility once without charge, after a
90-20 reasonable period to be fixed by the regulatory authority by rule,
90-21 and at shorter intervals on payment of reasonable fees fixed by the
90-22 regulatory authority. The regulatory authority shall declare and
90-23 establish reasonable fees to be paid for other examining and
90-24 testing such meters and other measuring devices on the request of
90-25 the consumer. If the test is requested to be made within the
90-26 period of presumed accuracy as fixed by the regulatory authority
90-27 since the last such test of the same meter or other measuring
91-1 device, the fee to be paid by the consumer or user at the time of
91-2 his request shall be refunded to the consumer or user if the meter
91-3 or measuring device is found unreasonably defective or incorrect to
91-4 the substantial disadvantage of the consumer or user. If the
91-5 consumer's request is made at a time beyond the period of presumed
91-6 accuracy fixed by the regulatory authority since the last such test
91-7 of the same meter or measuring device, the utility shall make the
91-8 test without charge to the consumer or user.
91-9 ARTICLE VIII. ELECTRONIC PUBLISHING
91-10 Sec. 36A. (a) Electronic Publishing:
91-11 (1) Prohibition. Local exchange companies and any
91-12 affiliate shall not engage in the provision of electronic
91-13 publishing that is disseminated by means of such local exchange
91-14 company's or any of its affiliates' basic telephone service.
91-15 (2) Permitted activities of separated affiliate.
91-16 Nothing in this section shall prohibit a separated affiliate or
91-17 electronic publishing joint venture from engaging in the provision
91-18 of electronic publishing or any other lawful service in any area.
91-19 (3) Rule of construction. Nothing in this section
91-20 shall prohibit local exchange companies or affiliates from engaging
91-21 in the provision of any lawful service other than electronic
91-22 publishing in any area or from engaging in the provision of
91-23 electronic publishing that is not disseminated by means of such
91-24 local exchange companies or any of their affiliates basic telephone
91-25 service.
91-26 (b) Separated affiliate or electronic publishing joint
91-27 venture requirements. A separated affiliate or electronic
92-1 publishing joint venture shall:
92-2 (1) maintain books, records, and accounts that are
92-3 separate from those of the local exchange companies and from any
92-4 affiliate and that record in accordance with generally accepted
92-5 accounting principles all transactions, whether direct or indirect,
92-6 with the local exchange companies;
92-7 (2) not incur debt in a manner that would permit a
92-8 creditor upon default to have recourse to the assets of the local
92-9 exchange companies;
92-10 (3) prepare financial statements that are not
92-11 consolidated with those of the local exchange company or an
92-12 affiliate, provided that consolidated statements may also be
92-13 prepared;
92-14 (4) file with the commission annual reports in a form
92-15 substantially equivalent to the Form 10-K required by regulations
92-16 of the Securities and Exchange;
92-17 (5) after 1 year from the effective date of this
92-18 section not hire
92-19 (A) as corporate officers, sales and marketing
92-20 management personnel whose responsibilities as the separated
92-21 affiliate or electronic publishing joint venture will include the
92-22 geographic areas where the local exchange company provides basic
92-23 telephone service;
92-24 (B) network operations personnel whose
92-25 responsibilities at the separated affiliate or electronic
92-26 publishing joint venture would require dealing directly with the
92-27 local exchange company; or
93-1 (C) any person who was employed by the local
93-2 exchange company during the year preceding their date of hire,
93-3 except that the requirements of this paragraph
93-4 shall not apply to persons subject to a collective bargaining
93-5 agreement that gives such persons rights to be employed by a
93-6 separated affiliate or electronic publishing joint venture of the
93-7 local exchange company;
93-8 (6) not provide any wireline telephone exchange
93-9 service in any telephone exchange area where a local exchange
93-10 company with which it is under common ownership or control provides
93-11 basic telephone exchange service except on a resale basis;
93-12 (7) not use the name, trademarks, or service marks of
93-13 an existing local exchange company except for names, trademarks, or
93-14 service marks that are of were used in common with the entity that
93-15 owns or control the local exchange company;
93-16 (8) have performed annually by March 31, or any other
93-17 date prescribed by the commission, a compliance review:
93-18 (A) that is conducted by an independent entity
93-19 that is subject to professional, legal, and ethical obligations for
93-20 the purpose of determining compliance during the preceding calendar
93-21 year with any provision of this section that imposes a requirement
93-22 on such separated affiliate or electronic publishing joint venture;
93-23 and
93-24 (B) the results of which are maintained by the
93-25 separated affiliate for a period of 5 years subject to review by
93-26 any lawful authority;
93-27 (9) within 90 days of receiving a review described in
94-1 paragraph (8), file a report of any exceptions and corrective
94-2 action with the commission and allow any person to inspect and copy
94-3 such report subject to reasonable safeguards to protect any
94-4 proprietary information contained in such report from being used
94-5 for purposed other than to enforce or pursue remedies under this
94-6 section.
94-7 (c) Local Exchange Company Requirements. A local exchange
94-8 company under common ownership or control with a separated
94-9 affiliate or electronic publishing joint venture shall
94-10 (1) not provide a separated affiliate any facilities,
94-11 services, or basic telephone service information unless it makes
94-12 such facilities, services, or information available to unaffiliated
94-13 entities upon request and on the same terms and conditions;
94-14 (2) carry out transactions with a separated affiliate
94-15 in a manner equivalent to the manner that unrelated parties would
94-16 carry out independent transactions and not based upon the
94-17 affiliation;
94-18 (3) carry out transactions with a separated affiliate,
94-19 which involve the transfer of personnel, assets, or anything of
94-20 value, pursuant to written contracts or tariffs that are filed with
94-21 the commission and made publicly available;
94-22 (4) carry out transactions with a separated affiliate
94-23 in a manner that is auditable in accordance with generally accepted
94-24 auditing standards;
94-25 (5) value any assets that are transferred to a
94-26 separated affiliate at the greater of net book cost or fair market
94-27 value;
95-1 (6) value any assets that are transferred to the local
95-2 exchange company by its separated affiliate at the lesser of net
95-3 book cost or fair market value;
95-4 (7) except for
95-5 (A) instances where the local Federal
95-6 Communications Commission or commission regulations permit
95-7 in-arrears payment for tariffed telecommunications services; or
95-8 (B) the investment by an affiliate of dividends
95-9 or profits derived from a local exchange company, not provide debt
95-10 or equity financing directly or indirectly to a separated
95-11 affiliate;
95-12 (8) comply fully with all applicable Federal
95-13 Communications Commission and commission cost allocation and other
95-14 accounting rules;
95-15 (9) have performed annually by March 31, or any other
95-16 date prescribed by the commission, a compliance review
95-17 (A) that is conducted by an independent entity
95-18 that is subject to professional, legal, and ethical obligations for
95-19 the purpose of determining compliance during the preceding calendar
95-20 year with any provision of this section that imposes a requirement
95-21 on such local exchange company; and
95-22 (B) the results of which are maintained by the
95-23 local exchange company for a period of 5 years subject to review by
95-24 any local authority;
95-25 (10) within 90 days of receiving a review described in
95-26 paragraph (9), file a report of any exceptions and corrective
95-27 action with the commission and allow any person to inspect and copy
96-1 such report subject to reasonable safeguards to protect any
96-2 proprietary information contained in such report from being used
96-3 for purposes other than to enforce or pursue remedies under this
96-4 section;
96-5 (11) if it provides facilities or services for
96-6 telecommunication, transmission, billing and collection, or
96-7 expanded interconnection to any electronic publisher, including a
96-8 separated affiliate, for use with or in connection with the
96-9 provision of electronic publishing that is disseminated by means of
96-10 such local exchange company's or any of its affiliates' basic
96-11 telephone service, provide to all other electronic publishers the
96-12 same type of facilities and services on request, on the same terms
96-13 and conditions or as required by the Federal Communications
96-14 Commission or commission, and unbundled and individually tariffed
96-15 to the smallest extent that is technically feasible and
96-16 economically reasonable to provide;
96-17 (12) provide network access and interconnections for
96-18 basic telephone service to electronic publishers at any technically
96-19 feasible and economically reasonable point within the local
96-20 exchange company's network and at just and reasonable rates that
96-21 are tariffed (so long as rates for such services are subject to
96-22 regulation) and that are not higher on a per unit basis than those
96-23 charged for such services to any other electronic publisher or any
96-24 separated affiliate engaged in electronic publishing;
96-25 (13) if prices for network access and interconnection
96-26 for basic telephone service are no longer subject to regulation,
96-27 provide electronic publishers such services on the same terms and
97-1 conditions as a separated affiliate receives such services;
97-2 (14) if any basic telephone service used by electronic
97-3 publishers ceases to require a tariff, provide electronic
97-4 publishers with such service on the same terms and conditions as a
97-5 separated affiliate receives such service;
97-6 (15) provide reasonable advance notification at the
97-7 same time and on the same terms to all affected electronic
97-8 publishers of information if such information is within any one or
97-9 more of the following categories:
97-10 (A) such information is necessary for the
97-11 transmission or routing of information by an interconnected
97-12 electronic publisher;
97-13 (B) such information is necessary to ensure the
97-14 interoperability of an electronic publisher's and the local
97-15 exchange company's networks; or
97-16 (C) such information concerns changes in basic
97-17 telephone service network design and technical standards which may
97-18 affect the provision of electronic publishing;
97-19 (16) not directly or indirectly provide anything of
97-20 monetary value to a separated affiliate unless in exchange for
97-21 consideration at least equal to the greater of its net book cost or
97-22 fair market value, except the investment by an affiliate of
97-23 dividends or profits derived from a local exchange company;
97-24 (17) not discriminate in the presentation or provision
97-25 of any gateway for electronic publishing services or any electronic
97-26 directory of information services, which is provided over such
97-27 local exchange company's basic telephone service;
98-1 (18) have no directors, officers, or employees in
98-2 common with a separated affiliate;
98-3 (19) not own any property in common with a separated
98-4 affiliate;
98-5 (20) not perform hiring or training of personnel
98-6 performed on behalf of a separated affiliate;
98-7 (21) not perform the purchasing, installation, or
98-8 maintenance of equipment on behalf of a separated affiliate, except
98-9 for telephone service that it provides under tariff or contract
98-10 subject to the provisions of this section; and
98-11 (22) not perform research and development on behalf of
98-12 a separated affiliate.
98-13 (d) Customer proprietary network information consistent with
98-14 Section 232 of the Communications Act of 1934, as amended, and
98-15 Section 122A of this Act, a local exchange company or any affiliate
98-16 shall not provide to any electronic publisher, including a
98-17 separated affiliate or electronic publishing joint venture,
98-18 customer proprietary network information for use with or in
98-19 connection with the provision of electronic publishing that is
98-20 disseminated by means of such local exchange company's or any of
98-21 its affiliates' basic telephone service that is not made available
98-22 by the local exchange company or affiliate to all electronic
98-23 publishers on the same terms and conditions.
98-24 (e) Compliance with safeguards. No local exchange company
98-25 or affiliate thereof (including a separated affiliate) shall act in
98-26 concert with another local exchange company or any other entity in
98-27 order to knowingly and willfully violate or evade the requirements
99-1 of this section.
99-2 (f) Local exchange company dividends. Nothing in this
99-3 section shall prohibit an affiliate from investing dividends
99-4 derived from a local exchange company in its separated affiliate,
99-5 and subsections (i) and (j) of this section shall not apply to any
99-6 such investment.
99-7 (g) Joint marketing except as provided in subsection (h)
99-8 (1) a local exchange company shall not carry out any
99-9 promotion, marketing, sales, or advertising for or in conjunction
99-10 with a separated affiliate; and
99-11 (2) a local exchange company shall not carry out any
99-12 promotion, marketing, sales, or advertising for or in conjunction
99-13 with an affiliate that is related to the provision of electronic
99-14 publishing.
99-15 (h) Permissible joint activities
99-16 (1) Joint telemarketing. A local exchange company may
99-17 provide inbound telemarketing or referral services related to the
99-18 provision of electronic publishing for a separated affiliate,
99-19 electronic publishing joint venture, affiliate, or unaffiliated
99-20 electronic publisher, provided that if such services are provided
99-21 to a separated affiliate, electronic publishing joint venture, or
99-22 affiliate, such services shall be made available to all electronic
99-23 publishers on request, on nondiscriminatory terms, at compensatory
99-24 prices, and subject to regulations of the commission to ensure that
99-25 the local exchange company's method of providing telemarketing or
99-26 referral and its price structure do not competitively disadvantage
99-27 any electronic publishers regardless of size, including those which
100-1 do not use the local exchange company's telemarketing services.
100-2 (2) Teaming arrangements. A local exchange company
100-3 may engage in nondiscriminatory teaming or business arrangements to
100-4 engage in electronic publishing with any separated affiliate or
100-5 with any other electronic publisher provided that the local
100-6 exchange company only provides facilities, services, and basic
100-7 telephone service information as authorized by this section and
100-8 provided that the local exchange company does not own such teaming
100-9 or business arrangement.
100-10 (3) Electronic publishing joint ventures. A local
100-11 exchange company or affiliate may participate on a nonexclusive
100-12 basis in electronic publishing joint ventures with entities that
100-13 are not any local exchange company, affiliate, or separated
100-14 affiliate to provide electronic publishing services, provided that
100-15 the local exchange company or affiliate has not more than a 50
100-16 percent direct or indirect equity interest (or the equivalent
100-17 thereof) or the right to more than 50 percent of the gross revenues
100-18 under a revenue sharing or royalty agreement in any electronic
100-19 publishing joint venture. Officers and employees of a local
100-20 exchange company or affiliate participating in an electronic
100-21 publishing joint venture may not have more than 50 percent of the
100-22 voting control over the electronic publishing joint venture. In
100-23 the case of joint ventures with small, local electronic publishers,
100-24 the commission for good cause shown may authorize the local
100-25 exchange company or affiliate to have a larger equity interest,
100-26 revenue share, or voting control but not to exceed 80 percent. A
100-27 local exchange company participating in an electronic publishing
101-1 joint venture may provide promotion, marketing, sales, or
101-2 advertising personnel and services to such joint venture.
101-3 (i) Transactions related to the provision of electronic
101-4 publishing between a local exchange company and any affiliate.
101-5 (1) Records of transactions. Any provision of
101-6 facilities, services, or basic telephone service information, or
101-7 any transfer of assets, personnel, or anything of commercial or
101-8 competitive value, from a local exchange company to any affiliate
101-9 related to the provision of electronic publishing shall be
101-10 (A) recorded in the books and records of each
101-11 entity;
101-12 (B) auditable in accordance with generally
101-13 accepted auditing standards; and
101-14 (C) pursuant to written contracts or tariffs
101-15 filed with the commission.
101-16 (2) Valuation of transfers. Any transfer of assets
101-17 directly related to the provision of electronic publishing from a
101-18 local exchange company to an affiliate shall be valued at the
101-19 greater of net book cost or fair market value. Any transfer of
101-20 assets related to the provision of electronic publishing from an
101-21 affiliate to the local exchange company shall be valued at the
101-22 lesser of net book cost or fair market value.
101-23 (3) Prohibition of evasions. A local exchange company
101-24 shall not provide directly or indirectly to a separated affiliate
101-25 any facilities, services, or basic telephone service information
101-26 related to the provision of electronic publishing that are not made
101-27 available to unaffiliated companies on the same terms and
102-1 conditions.
102-2 (j) Transactions related to the provision of electronic
102-3 publishing between an affiliate and a separated affiliate.
102-4 (1) Records of transactions. Any facilities,
102-5 services, or basic telephone service information provided or any
102-6 assets, personnel, or anything of commercial or competitive value
102-7 transferred, from a local exchange company to any affiliate as
102-8 described in subsection (i) and then provided or transferred to a
102-9 separated affiliate shall be
102-10 (A) recorded in the books and records of each
102-11 entity;
102-12 (B) auditable in accordance with generally
102-13 accepted auditing standards; and
102-14 (C) pursuant to written contracts or tariffs
102-15 filed with the commission.
102-16 (2) Valuation of transfers. Any transfer of assets
102-17 directly related to the provision of electronic publishing from a
102-18 local exchange company to any affiliate as described in subsection
102-19 (i) and then transferred to a separated affiliate shall be valued
102-20 at the greater of net book cost or fair market value. Any transfer
102-21 of assets related to the provision of electronic publishing from a
102-22 separated affiliate to any affiliate and then transferred to the
102-23 local exchange company as described in subsection (i) shall be
102-24 valued at the lesser of net book cost or fair market value.
102-25 (3) Prohibition of evasions. An affiliate shall not
102-26 provide directly or indirectly to a separated affiliate any
102-27 facilities, services, or basic telephone service information
103-1 related to the provision of electronic publishing that are not made
103-2 available to unaffiliated companies on the same terms and
103-3 conditions.
103-4 (k) Other electronic publishers except as provided in
103-5 subsection (h)(3):
103-6 (1) A local exchange company shall not have any
103-7 officers, employees, property, or facilities in common with any
103-8 entity whose principal business is publishing of which a part is
103-9 electronic publishing.
103-10 (2) No officer or employee of a local exchange company
103-11 shall serve as a director of any entity whose principal business is
103-12 publishing of which a part is electronic publishing.
103-13 (3) For the purposes of paragraphs (1) and (2), a
103-14 local exchange company or an affiliate that owns an electronic
103-15 publishing joint venture shall not be deemed to be engaged in the
103-16 electronic publishing business solely because of such ownership.
103-17 (4) A local exchange company shall not carry out:
103-18 (A) any marketing or sales for any entity that
103-19 engages in electronic publishing; or
103-20 (B) any hiring of personnel, purchasing, or
103-21 production, for any entity that engages in electronic publishing.
103-22 (5) The local exchange company shall not provide any
103-23 facilities, services, or basic telephone service information to any
103-24 entity that engages in electronic publishing, for use with or in
103-25 connection with the provision of electronic publishing that is
103-26 disseminated by means of such local exchange company's or any of
103-27 its affiliates' basic telephone service, unless equivalent
104-1 facilities, services, or information are made available on
104-2 equivalent terms and conditions to all.
104-3 (l) Transition. Any electronic publishing service being
104-4 offered to the public by a local exchange company or affiliate on
104-5 the date of enactment of this section shall have one year from such
104-6 date of enactment to comply with the requirements of this section.
104-7 (m) Sunset. The provisions of this section shall not apply
104-8 to conduct occurring after June 30, 2000.
104-9 (n) Private right of action
104-10 (1) Any person claiming that any act or practice of a
104-11 local exchange company, affiliate, or separated affiliate
104-12 constitutes a violation of this article may file a complaint with
104-13 the commission or bring suit for the recovery of damages, and any
104-14 such local exchange company, affiliate or separate affiliate shall
104-15 be liable if such local exchange company does, or causes or permits
104-16 to be done, any act, matter or thing in this Chapter required to be
104-17 done. Such local exchange carrier shall be liable to the person or
104-18 persons injured thereby for the full amount of damages sustained in
104-19 consequence of any such violation of the provisions of this
104-20 Article, together with a reasonable counsel or attorney's fees to
104-21 be fixed by the court in every case of recovery, which attorney's
104-22 fees shall be taxed and collected as part of the costs of the case.
104-23 Damages may not be awarded for a violation that is discovered by a
104-24 compliance review as required by subsection (b)(8) or (c)(9) of
104-25 this Article and corrected within 90 days.
104-26 (2) Cease and desist orders. In addition to the
104-27 provisions of paragraph (1), any person claiming that any act or
105-1 practice of any local exchange company, affiliate, or separated
105-2 affiliate constitutes a violation of this section may make
105-3 application to the commission for an order to cease and desist such
105-4 violation or may make application in any state district court for
105-5 an order enjoining such acts or practices or for an order
105-6 compelling compliance with such requirement.
105-7 (o) Antitrust laws. Nothing in this section shall be
105-8 construed to modify, impair, or supersede the applicability of any
105-9 of the antitrust laws.
105-10 (p) Definitions. As used in this section:
105-11 (1) The term "affiliate" means any entity that,
105-12 directly or indirectly, owns or controls, is owned or controlled
105-13 by, or is under common ownership or control with, a local exchange
105-14 company. Such term shall not include a separated affiliate.
105-15 (2) The term "basic telephone service" means any
105-16 wireline telephone exchange service, or wireline telephone exchange
105-17 facility, provided by a local exchange company in a telephone
105-18 exchange area, except
105-19 (A) a competitive wireline telephone exchange
105-20 service provided in a telephone exchange area where another entity
105-21 provides a wireline telephone exchange service that was provided on
105-22 January 1, 1984, and a commercial mobile service provided by an
105-23 affiliate that is required by the Federal Communications Commission
105-24 to be a corporate entity separate from the local exchange company.
105-25 (3) The term "basic telephone service information"
105-26 means network and customer information of a local exchange company
105-27 and other information acquired by a local exchange company as a
106-1 result of its engaging in the provision of basic telephone service.
106-2 (4) The term "control" has the meaning that it has in
106-3 17 C.F.R. 240.12b--2, the regulations promulgated by the
106-4 Securities and Exchange Commission pursuant to the Securities
106-5 Exchange Act of 1934 (15 U.S.C. 78a et seq.) or any successor
106-6 provision to such section.
106-7 (5)(A) The term "electronic publishing" means the
106-8 dissemination, provision, publication, or sale to an unaffiliated
106-9 entity or person, using a local exchange company's basic telephone
106-10 service, of:
106-11 (i) news;
106-12 (ii) entertainment (other than interactive
106-13 games);
106-14 (iii) business, financial, legal,
106-15 consumer, or credit material;
106-16 (iv) editorials;
106-17 (v) columns;
106-18 (vi) sports reporting;
106-19 (vii) features;
106-20 (viii) advertising;
106-21 (ix) photos or images;
106-22 (x) archival or research material;
106-23 (xi) legal notices or public records;
106-24 (xii) scientific, educational,
106-25 instructional, technical, professional, trade, or other literary
106-26 materials; or
106-27 (xiii) other like or similar information.
107-1 (B) The term "electronic publishing" shall not
107-2 include the following network services:
107-3 (i) Information access, as that term is
107-4 defined by the Modification of Final Judgment.
107-5 (ii) The transmission of information as a
107-6 common carrier.
107-7 (iii) The transmission of information as
107-8 part of a gateway to an information service that does not involve
107-9 the generation or alteration of the content of information,
107-10 including data transmission, address translation, protocol
107-11 conversion, billing management, introductory information content,
107-12 and navigational systems that enable users to access electronic
107-13 publishing services, which do not affect the presentation of such
107-14 electronic publishing services to users.
107-15 (iv) Voice storage and retrieval services,
107-16 including voice messaging and electronic mail services.
107-17 (v) Level 2 gateway services as those
107-18 services are defined by the Federal Communications Commission's
107-19 Second Report and Order, Recommendation to Congress and Second
107-20 Further Notice of Proposed Rulemaking in CC Docket No. 87-266
107-21 dated August 14, 1992.
107-22 (vi) Data processing services that do not
107-23 involve the generation or alteration of the content of information.
107-24 (vii) Transaction processing systems that
107-25 do not involve the generation or alteration of the content of
107-26 information.
107-27 (viii) Electronic billing or advertising
108-1 of a local exchange company's regulated telecommunications
108-2 services.
108-3 (ix) Language translation.
108-4 (x) Conversion of data from one format to
108-5 another.
108-6 (xi) The provision of information
108-7 necessary for the management, control, or operation of a telephone
108-8 company telecommunications system.
108-9 (xii) The provision of directory
108-10 assistance that provides names, addresses, and telephone numbers
108-11 and does not include advertising.
108-12 (xiii) Caller identification services.
108-13 (xiv) Repair and provisioning databases
108-14 for telephone company operations.
108-15 (xv) Credit card and billing validation
108-16 for telephone company operations.
108-17 (xvi) 911-E and other emergency assistance
108-18 databases.
108-19 (xvii) Any other network service of a type
108-20 that is like or similar to these network services and that does not
108-21 involve the generation or alteration of the content of information.
108-22 (xviii) Any upgrades to these network
108-23 services that do not involve the generation or alteration of the
108-24 content of information.
108-25 (C) The term "electronic publishing" also shall
108-26 not include
108-27 (i) full motion video entertainment on
109-1 demand; and
109-2 (ii) video programming as defined in
109-3 Section 602 of the Communications Act of 1934.
109-4 (6) The term "electronic publishing joint venture"
109-5 means a joint venture owned by a local exchange company or
109-6 affiliate that engages in the provision of electronic publishing
109-7 which is disseminated by means of such local exchange company's or
109-8 any of its affiliates' basic telephone service.
109-9 (7) The term "entity" means any organization, and
109-10 includes corporations, partnerships, sole proprietorships,
109-11 associations, and joint ventures.
109-12 (8) The term "inbound telemarketing" means the
109-13 marketing of property, goods, or services by telephone to a
109-14 customer or potential customer who initiated the call.
109-15 (9) The term "own" with respect to an entity means to
109-16 have a direct or indirect equity interest (or the equivalent
109-17 thereof) of more than 10 percent of an entity, or the right to more
109-18 than 10 percent of the gross revenues of an entity under a revenue
109-19 sharing or royalty agreement.
109-20 (10) The term "separated affiliate" means a
109-21 corporation under common ownership or control with a local exchange
109-22 company that does not own or control a local exchange company and
109-23 is not owned or controlled by a local exchange company and that
109-24 engage in the provision of electronic publishing which is
109-25 disseminated by means of such local exchange company's or any of
109-26 its affiliates' basic telephone service.
109-27 (11) Notwithstanding Section 3, and for purposes of
110-1 this section only, the term "local exchange company" means a
110-2 company serving in excess of five (5) million access lines in this
110-3 state and subject to the Modification of Final Judgment or any
110-4 entity owned or controlled by such corporation, or any successor or
110-5 assign of such corporation, but does not include an electronic
110-6 publishing joint venture owned by such corporation or entity
110-7 permitted by Subsection (h).
110-8 ARTICLE <VI> IX. PROCEEDINGS BEFORE THE REGULATORY AUTHORITY
110-9 Sec. 37. Subject to the provisions of this Act, the
110-10 commission is hereby vested with all authority and power of the
110-11 State of Texas to insure compliance with the obligations of public
110-12 utilities in this Act. Except as otherwise provided in this Act,
110-13 for <For> this purpose the regulatory authority is empowered to fix
110-14 and regulate rates of public utilities, including rules and
110-15 regulations for determining the classification of customers and
110-16 services and for determining the applicability of rates. No rule
110-17 or order of the regulatory authority shall be in conflict with the
110-18 rulings of any federal regulatory body.
110-19 Sec. 38. It shall be the duty of the regulatory authority to
110-20 insure that every rate made, demanded, or received by any public
110-21 utility, or by any two or more public utilities jointly, shall be
110-22 just and reasonable. Rates shall not be unreasonably preferential,
110-23 prejudicial, or discriminatory, but shall be sufficient, equitable,
110-24 and consistent in application to each class of consumers. For
110-25 ratemaking purposes, the commission may treat two or more
110-26 municipalities served by a public utility as a single class
110-27 wherever it deems such treatment to be appropriate. Approval by
111-1 the commission of a reduced rate for service for a class of
111-2 consumers eligible under Section 95 of this Act for tel-assistance
111-3 service does not constitute a violation of this section.
111-4 Sec. 39. (a) In fixing the rates of a public utility the
111-5 regulatory authority shall fix its overall revenues at a level
111-6 which will permit such utility a reasonable opportunity to earn a
111-7 reasonable return on its invested capital used and useful in
111-8 rendering service to the public over and above its reasonable and
111-9 necessary operating expenses.
111-10 (b) In fixing a reasonable return on invested capital, the
111-11 regulatory authority shall consider, in addition to other
111-12 applicable factors, efforts to comply with the statewide energy
111-13 plan, the efforts and achievements of such utility in the
111-14 conservation of resources, the quality of the utility's services,
111-15 the efficiency of the utility's operations, and the quality of the
111-16 utility's management.
111-17 Sec. 40. Except as hereafter provided, in any proceeding
111-18 involving any proposed change of rates, the burden of proof to show
111-19 that the proposed change, if proposed by the utility, or that the
111-20 existing rate, if it is proposed to reduce the rate, is just and
111-21 reasonable shall be on the public utility. In any proceeding
111-22 involving a local exchange company in which the local exchange
111-23 company's rate or rates are in issue, the burden of proof that such
111-24 rate or rates are just and reasonable shall be on the local
111-25 exchange company.
111-26 Sec. 41. The components of invested capital and net income
111-27 shall be determined according to the following rules:
112-1 (a) Invested Capital. Utility rates shall be based upon the
112-2 original cost of property used by and useful to the public utility
112-3 in providing service including construction work in progress at
112-4 cost as recorded on the books of the utility. The inclusion of
112-5 construction work in progress is an exceptional form of rate relief
112-6 to be granted only upon the demonstration by the utility that such
112-7 inclusion is necessary to the financial integrity of the utility.
112-8 Construction work in progress shall not be included in the rate
112-9 base for major projects under construction to the extent that such
112-10 projects have been inefficiently or imprudently planned or managed.
112-11 Original cost shall be the actual money cost, or the actual money
112-12 value of any consideration paid other than money, of the property
112-13 at the time it shall have been dedicated to public use, whether by
112-14 the utility which is the present owner or by a predecessor, less
112-15 depreciation.
112-16 (b) Separations and Allocations. Costs of facilities,
112-17 revenues, expenses, taxes, and reserves shall be separated or
112-18 allocated as prescribed by the regulatory authority.
112-19 (c) Net Income. By "net income" is meant the total revenues
112-20 of the public utility less all reasonable and necessary expenses as
112-21 determined by the regulatory authority. The regulatory authority
112-22 shall determine expenses and revenues in a manner consistent with
112-23 the following:
112-24 (1) Transactions with Affiliated Interests. Payment
112-25 to affiliated interests for cost of any services, or any property,
112-26 right or thing, or for interest expense shall not be allowed either
112-27 as capital cost or as expense except to the extent that the
113-1 regulatory authority shall find such payment to be reasonable and
113-2 necessary for each item or class of items as determined by the
113-3 commission. Any such finding shall include specific findings of
113-4 the reasonableness and necessity of each item or class of items
113-5 allowed. In addition, unless the affiliate calculates its charges
113-6 to the utility and all other affiliates in a manner consistent with
113-7 the rules of the FCC, any such finding shall include <and> a
113-8 finding that the price to the utility is no higher than prices
113-9 charged by the supplying affiliate to its other affiliates or
113-10 divisions for the same item or class of items, or to unaffiliated
113-11 persons or corporations. <The price paid by gas utilities to
113-12 affiliated interests for natural gas from Outer Continental Shelf
113-13 lands shall be subject to a rebuttable presumptions that such price
113-14 is reasonable if the price paid does not exceed the price permitted
113-15 by federal regulation if such gas is regulated by a federal agency
113-16 or if no regulated by a federal agency does not exceed the price
113-17 paid by nonaffiliated parties for natural gas from Outer
113-18 Continental Shelf lands. The burden of establishing that such a
113-19 price paid is not reasonable shall be on any party challenging the
113-20 reasonableness of such price.> If an item or class of items is
113-21 found to be reasonable and necessary the commission shall determine
113-22 the reasonable level of the expense to be included in the utility's
113-23 cost of service. If the utility shows for any item or class of
113-24 items that the affiliate charge to the utility is less than the
113-25 charge by a non-affiliated vendor for the same or similar service,
113-26 the charge shall be deemed reasonable.
113-27 (2) Income Taxes. If the public utility is a member
114-1 of an affiliated group that is eligible to file a consolidated
114-2 income tax return, and if it is advantageous to the public utility
114-3 to do so, income taxes shall be computed as though a consolidated
114-4 return had been so filed and the utility had realized its fair
114-5 share of the savings resulting from the consolidated return, unless
114-6 it is shown to the satisfaction of the regulatory authority that it
114-7 was reasonable to choose not to consolidate returns. The amounts
114-8 of income taxes saved by a consolidated group of which a public
114-9 utility is a member by reason of the elimination in the
114-10 consolidated return of the intercompany profit on purchases by the
114-11 public utility from an affiliate shall be applied to reduce the
114-12 cost of the property or services so purchased. The investment tax
114-13 credit allowed against federal income taxes, to the extent retained
114-14 by the utility, shall be applied as a reduction in the rate based
114-15 contribution of the assets to which such credit applies, to the
114-16 extent and at such rate as allowed by the Internal Revenue Code.
114-17 (3) Expenses Disallowed. The regulatory authority
114-18 shall not consider for ratemaking purposes the following expenses:
114-19 (A) legislative advocacy expenses, whether made
114-20 directly or indirectly, including but not limited to legislative
114-21 advocacy expenses included in trade association dues;
114-22 (B) payments, except those made under an
114-23 insurance or risk-sharing arrangement executed before the date of
114-24 loss, made to cover costs of an accident, equipment failure, or
114-25 negligence at a utility facility owned by a person or governmental
114-26 body not selling power inside the State of Texas;
114-27 (C) costs of processing a refund or credit under
115-1 Subsection (e) of Section 43 of this Act; or
115-2 (D) any expenditure found by the regulatory
115-3 authority to be unreasonable, unnecessary, or not in the public
115-4 interest, including but not limited to executive salaries,
115-5 advertising expenses, legal expenses, and civil penalties or fines.
115-6 The regulatory authority may promulgate
115-7 reasonable rules and regulations with respect to the allowance or
115-8 disallowance of any expenses for ratemaking purposes.
115-9 Sec. 41A. (a) In this section "qualifying facility" means
115-10 a qualifying cogenerator or a qualifying small-power producer, as
115-11 defined by Sections 3(18)(C) and 3(17)(D), respectively, Federal
115-12 Power Act (16 U.S.C. Sections 796(18)(C) and 796(17)(D)).
115-13 (b) If an electric utility and a qualifying facility enter
115-14 into an agreement providing for the purchase of capacity, the
115-15 electric utility or qualifying facility may submit a copy of the
115-16 agreement to the commission for certification under this section.
115-17 The agreement may provide that it is contingent on that
115-18 certification. Before the deadline specified by Subsection (d) of
115-19 this section, the commission shall determine whether:
115-20 (1) the payments provided for in the agreement over
115-21 the contract term are equal to or less than the utility's avoided
115-22 costs as established by the commission and in effect at the time
115-23 the agreement was signed. Contracts entered into before the
115-24 effective date of this section may not be submitted for
115-25 certification by the commission; and
115-26 (2) the agreement provides the electric utility the
115-27 opportunity to acquire the cogeneration or small-power production
116-1 installation before the installation is offered to another
116-2 purchaser in the event of its abandonment, or provides other
116-3 sufficient assurance that the electric utility will be provided
116-4 with a comparable supply of electricity, if the qualifying facility
116-5 ceases to operate the installation.
116-6 (c) If the commission determines that the agreement meets
116-7 the requirements of Subdivisions (1) and (2) of Subsection (b) of
116-8 this section, it shall certify that the agreement meets these
116-9 requirements. If the commission does not make a determination
116-10 under Subsection (b) of this section before the deadline specified
116-11 by Subsection (d) of this section, the agreement is considered to
116-12 meet the requirements of Subdivisions (1) and (2) of Subsection (b)
116-13 of this section and certification is considered granted. A
116-14 certification is effective until the earlier of 15 years after the
116-15 date of the certification or the expiration date of the agreement.
116-16 (d) The commission shall make its determination under this
116-17 section within 90 days after the date that the agreement is
116-18 submitted, unless before this deadline the electric utility, the
116-19 qualifying facility, or an affected person requests a hearing or
116-20 the commission on its own motion decides to hold a hearing. If a
116-21 hearing is requested or the commission decides to hold a hearing,
116-22 the commission shall hold the hearing and make its determination
116-23 within 120 days after the date that the agreement is submitted,
116-24 except that this deadline is extended two days for each day in
116-25 excess of five days on which the commission conducts a hearing on
116-26 the merits of the case.
116-27 (e) In setting the electric utility's rates for a period
117-1 during which the certification is effective, the regulatory
117-2 authority shall consider payments made under the agreement to be
117-3 reasonable and necessary operating expenses of the electric
117-4 utility. The regulatory authority shall allow full, concurrent,
117-5 and monthly recovery of the amount of the payments.
117-6 Sec. 41B. Self-insurance. (a) A public utility may
117-7 self-insure all or a portion of its potential liability or
117-8 catastrophic property loss, including windstorm, fire, and
117-9 explosion losses which could not have been reasonably anticipated
117-10 and included under operating and maintenance expenses. The
117-11 commission shall approve a self-insurance plan under this section
117-12 if it finds that the coverage is in the public interest and the
117-13 plan is a lower cost alternative to purchasing commercial
117-14 insurance, considering all costs, and that ratepayers will receive
117-15 the benefits of that saving.
117-16 (b) In computing a utility's reasonable and necessary
117-17 expenses under Subsection (c) of Section 41 of this Act, the
117-18 regulatory authority shall allow as a necessary expense the funds
117-19 credited to reserve accounts for the self-insurance, to the extent
117-20 the regulatory authority finds it in the public interest. After
117-21 the reserve account is established, the regulatory authority shall
117-22 consider if the reserve account has a surplus or shortage in
117-23 determining the utility's rate base. A surplus in the reserve
117-24 account will exist if the charges against the reserve account are
117-25 less than the funds credited to the reserve. A shortage in the
117-26 reserve account will exist if the charges against the account are
117-27 greater than the funds credited to the reserve. The regulatory
118-1 authority shall subtract any surplus from and add any shortage to
118-2 the rate base.
118-3 (c) The regulatory authority shall determine reasonableness
118-4 under Subsection (B) of this section from information provided at
118-5 the time the self-insurance plan and reserve account are
118-6 established and upon the filing of each rate case by a utility that
118-7 has such a fund.
118-8 (d) The commission shall adopt rules governing
118-9 self-insurance under this section.
118-10 (e) The allowance for self-insurance under this Act for
118-11 ratemaking purposes will not be applicable to nuclear plant
118-12 investment.
118-13 Sec. 41B. The commission shall not have the authority to
118-14 interfere with employee wages and benefits, working conditions, or
118-15 other terms or conditions of employment that the product of a
118-16 collective bargaining agreement recognized under federal law.
118-17 Employee wage rates and benefit levels that are the product of such
118-18 bargaining shall be presumed reasonable.
118-19 Sec. 42. Whenever the regulatory authority, after reasonable
118-20 notice and hearing, on its own motion or on complaint by any
118-21 affected person, finds that the existing rates of any public
118-22 utility for any service are unreasonable or in any way in violation
118-23 of any provision of law, the regulatory authority shall determine
118-24 the just and reasonable rates, including maximum or minimum rates,
118-25 to be thereafter observed and in force, and shall fix the same by
118-26 order to be served on the public utility; and such rates shall
118-27 constitute the legal rates of the public utility until changed as
119-1 provided in this Act. Whenever a public utility does not itself
119-2 produce or generate that which it distributes, transmits, or
119-3 furnishes to the public for compensation, but obtains the same from
119-4 another source, the regulatory authority shall have the power and
119-5 authority to investigate the cost of such production or generation
119-6 in any investigation of the reasonableness of the rates of such
119-7 public utility. Except as provided by Article IV and V, this
119-8 section does not apply to companies electing into Article IV or V
119-9 during the election period; however, the commission shall retain
119-10 jurisdiction to hear and resolve complaints regarding an electing
119-11 company's compliance with obligations imposed by this Act.
119-12 Sec. 43. (a) No utility may make changes in its rates
119-13 except by filing a statement of intent with the regulatory
119-14 authority having original jurisdiction at least 35 days prior to
119-15 the effective date of the proposed change. The statement of intent
119-16 shall include proposed revisions of tariffs and schedules and a
119-17 statement specifying in detail each proposed change, the effect the
119-18 proposed change is expected to have on the revenues of the company,
119-19 the classes and numbers of utility consumers affected, and such
119-20 other information as may be required by the regulatory authority's
119-21 rules and regulations. A copy of the statement of intent shall be
119-22 mailed or delivered to the appropriate officer of each affected
119-23 municipality, and notice shall be given by publication in
119-24 conspicuous form and place of a notice to the public of such
119-25 proposed change once in each week for four successive weeks prior
119-26 to the effective date of the proposed change in a newspaper having
119-27 general circulation in each county containing territory affected by
120-1 the proposed change, and by mail to such other affected persons as
120-2 may be required by the regulatory authority's rules and
120-3 regulations. The regulatory authority may waive the publication of
120-4 notice requirement prescribed by this subsection in a proceeding
120-5 that involves a rate reduction for all affected ratepayers only.
120-6 The applicant shall give notice of the proposed rate change by mail
120-7 to all affected utility customers. The regulatory authority by
120-8 rule shall also define other proceedings for which the publication
120-9 of notice requirement prescribed by this subsection may be waived
120-10 on a showing of good cause, provided that no waiver may be granted
120-11 in any proceeding involving a rate increase to any class or
120-12 category of ratepayer.
120-13 (b) The regulatory authority, for good cause shown, may,
120-14 except in the case of major changes, allow changes in rate to take
120-15 effect prior to the end of such 35 day period under such conditions
120-16 as it may prescribe, subject to suspension as provided herein. All
120-17 such changes shall be indicated immediately upon its schedules by
120-18 such utility. "Major changes" shall mean an increase in rates
120-19 which would increase the aggregate revenues of the applicant more
120-20 than the greater of $100,000 or two and one-half percent, but shall
120-21 not include changes in rates allowed to go into effect by the
120-22 regulatory authority or made by the utility pursuant to an order of
120-23 the regulatory authority after hearings held upon notice to the
120-24 public.
120-25 (c) Whenever there is filed with the regulatory authority
120-26 any schedule modifying or resulting in a change in any rates then
120-27 in force, the regulatory authority shall on complaint by any
121-1 affected person or may on its own motion, at any time within 30
121-2 days from the date when such change would or has become effective,
121-3 and, if it so orders, without answer or other formal pleading by
121-4 the utility, but on reasonable notice, including notice to the
121-5 governing bodies of all affected municipalities and counties, enter
121-6 on a hearing to determine the propriety of such change. The
121-7 regulatory authority shall hold such a hearing in every case in
121-8 which the change constitutes a major change in rates, provided that
121-9 an informal proceeding may satisfy this requirement if no complaint
121-10 has been received before the expiration of 45 days after notice of
121-11 the change shall have been filed. In each case where the
121-12 commission determines it is in the public interest to collect
121-13 testimony at a regional hearing for the inclusion in the record,
121-14 the commission shall hold a regional hearing at an appropriate
121-15 location. A regional hearing is not required in a case involving a
121-16 <water, sewer, or> member-owned utility, unless the commission
121-17 determines otherwise.
121-18 (d) Pending the hearing and decision, the local regulatory
121-19 authority, after delivery to the affected utility of a statement in
121-20 writing of its reasons therefore, may suspend the operations of the
121-21 schedule for a period not to exceed 90 days beyond the date on
121-22 which the schedule of rates would otherwise go into effect and the
121-23 commission may suspend the operation of the schedule for a period
121-24 not to exceed 150 days beyond the date on which the schedule would
121-25 otherwise go into effect. If the regulatory authority does not
121-26 make a final determination concerning any schedule of rates prior
121-27 to expiration of the period or periods of suspension, the schedule
122-1 shall be deemed to have been approved by the regulatory authority.
122-2 However, the 150-day period shall be extended two days for each one
122-3 day of actual hearing on the merits of the case that exceeds 15
122-4 days. This approval is subject to the authority of the regulatory
122-5 authority thereafter to continue a hearing in progress. The
122-6 regulatory authority may in its discretion fix temporary rates for
122-7 any period of suspension under this section. During the suspension
122-8 by the regulatory authority as above provided, the rates in force
122-9 when the suspended schedule was filed shall continue in force
122-10 unless the regulatory authority shall establish a temporary rate.
122-11 The regulatory authority shall give preference to the hearing and
122-12 decision of questions arising under this section over all other
122-13 questions pending before it and decide the same as speedily as
122-14 possible.
122-15 (e) If the 150-day period has been extended, as provided for
122-16 in Subsection (d) of Section 43 of this Act, and the commission
122-17 fails to make its final determination of rates within 150 days from
122-18 the date that the proposed change otherwise would have gone into
122-19 effect, the utility concerned may put a changed rate, not to exceed
122-20 the proposed rate, into effect upon the filing with the regulatory
122-21 authority of a bond payable to the regulatory authority in an
122-22 amount and with sureties approved by the regulatory authority
122-23 conditioned upon refund and in a form approved by the regulatory
122-24 authority. The utility concerned shall refund or credit against
122-25 future bills all sums collected during the period of suspension in
122-26 excess of the rate finally ordered plus interest at the current
122-27 rate as finally determined by the regulatory authority.
123-1 (f) If, after hearing, the regulatory authority finds the
123-2 rates to be unreasonable or in any way in violation of any
123-3 provision of law, the regulatory authority shall determine the
123-4 level of rates to be charged or applied by the utility for the
123-5 service in question and shall fix the same by order to be served
123-6 upon the utility; these rates are thereafter to be observed until
123-7 changed, as provided by this Act. Except as provided by Articles
123-8 IV and V, this subsection does not apply to companies electing
123-9 Articles IV and V during the electing period.
123-10 (g)(1) A rate or tariff set by the commission shall not
123-11 authorize a utility to automatically adjust and pass through to its
123-12 customer changes in fuel or other costs of the utility.
123-13 (2)(A) Any revision of a utility's billings to its
123-14 customers to allow for the recovery of additional fuel costs may be
123-15 made only upon a public hearing and order of the commission.
123-16 (B) The commission may consider any evidence
123-17 that is appropriate and in the public interest at such hearing.
123-18 (C) A proceeding under this subsection shall not
123-19 be considered a rate case under Section 43 of this Act.
123-20 (3) The commission may, after a hearing, grant interim
123-21 relief for fuel cost increases that are the result of unusual and
123-22 emergency circumstances or conditions.
123-23 (4)(A) This subsection applies only to increases or
123-24 decreases in the cost of purchased electricity which have been:
123-25 (i) accepted by a federal regulatory
123-26 authority; or
123-27 (ii) approved after a hearing by the
124-1 Public Utility Commission of Texas.
124-2 (B) The Public Utility Commission of Texas may
124-3 utilize any appropriate method to provide for the adjustment of the
124-4 cost of purchased electricity upon such terms and conditions as the
124-5 commission may determine. Such purchased electricity costs may be
124-6 recovered concurrently with the effective date of the changed costs
124-7 to the purchasing utility or as soon thereafter as is reasonably
124-8 practical.
124-9 <(h) A water or sewer utility exempted in Subsection
124-10 (a) of this section may change its rates by filing a statement of
124-11 change with the commission at least 30 days after providing notice
124-12 of the change to its customers. The changed rates may be put into
124-13 effect on the filing of the statement of change. At the request of
124-14 one-tenth of the customers of the utility within 60 days after the
124-15 day the rates are put into effect, the commission may hold a
124-16 hearing, which may be an informal proceeding. On a finding by the
124-17 commission that the changed rates are not just and reasonable, the
124-18 commission shall set the utility's rates according to its usual
124-19 procedure. The utility shall refund or credit against future bills
124-20 all sums collected since the filing of the statement of change in
124-21 excess of the rate finally set plus interest at the current rate as
124-22 finally determined by the commission. No filing for a rate change
124-23 under this section may be made for a period of six months from the
124-24 last such filing by the same utility.>
124-25 (i) If the commission does not make a final
124-26 determination concerning a local exchange company's schedule of
124-27 rates prior to the expiration of the 150-day suspension period, the
125-1 schedule of rates finally approved by the commission shall become
125-2 effective and the local exchange company shall be entitled to
125-3 collect such rates from the date the 150-day suspension period
125-4 expired. Any surcharges or other charges necessary to effectuate
125-5 this subsection shall not be recovered over a period of less than
125-6 90 days from the date of the commission's final order.
125-7 (j) The commission on its own motion or on the
125-8 petition of a utility shall provide for the adjustment of a
125-9 utility's billing to reflect any increase or decrease of tax
125-10 liability of the utility to the state resulting from House Bill 11,
125-11 Acts of the 72nd Legislature, 1st Called Session, 1991, and that is
125-12 attributable to activities that are subject to the jurisdiction of
125-13 the commission. Any adjustment to billings under this section must
125-14 be apportioned pro-rata to all types and classes of service
125-15 provided by the utility and is effective only until the commission
125-16 alters the adjustment as provided by this subsection or enters an
125-17 order for the utility under this section or Section 42 of this Act.
125-18 The adjustment of billings must be made effective at the same time
125-19 as the increase or decrease of tax liability resulting from House
125-20 Bill 11, Acts of the 72nd Legislature, 1st Called Session, 1991, or
125-21 as soon after as is reasonably practical. Each year after any
125-22 original adjustment, the commission shall review the utility's
125-23 increase or decrease of tax liability resulting from House Bill 11,
125-24 Acts of the 72nd Legislature, 1st Called Session, 1991, and alter
125-25 the adjustment to reflect the increase or decrease. A proceeding
125-26 under this subsection is not a rate case under this section.
125-27 (k) A local exchange company may file with the
126-1 commission tariffs for switched access service that have been
126-2 approved by the FCC, provided that such include all rate elements
126-3 in the company's interstate access tariff other than end user
126-4 charges. If upon review such filed tariffs contain the same rates,
126-5 terms and conditions, excluding any end user charges, as approved
126-6 by the FCC, the commission shall order the rates to be the
126-7 intrastate switched access rates, terms and conditions for the
126-8 local exchange company within 60 days of filing.
126-9 Sec. 43A. A local exchange company may make changes in its
126-10 tariffed rules, regulations, or practices that do not affect its
126-11 charges or rates by filing the proposed changes with the commission
126-12 at least 35 days prior to the effective date of the changes. The
126-13 commission may require such notice to ratepayers as it considers
126-14 appropriate. The commission may on complaint by any affected
126-15 person or on its own motion hold a hearing, after reasonable
126-16 notice, to determine the propriety of the change. Pending the
126-17 hearing and decision, the commission may suspend the operation of
126-18 the proposed changes for a period not to exceed 120 days after the
126-19 date on which the changes would otherwise go into effect. The
126-20 commission shall approve, deny, or modify the proposed changes
126-21 before expiration of the suspension period. In any proceeding
126-22 under this section, the burden of proving that the requested relief
126-23 is in the public interest and complies with this Act shall be borne
126-24 by the local exchange company.
126-25 Sec. 43B. (a) Policy. The legislature finds that
126-26 regulatory policy should recognize differences between the small
126-27 and large local exchange companies, that there are a large number
127-1 of customer-owned telephone cooperatives and small, locally owned
127-2 investor companies, and that it is appropriate to provide
127-3 incentives and flexibility to allow local exchange companies that
127-4 serve the rural areas to provide existing services and to introduce
127-5 new technology and new services in a prompt, efficient, and
127-6 economical manner.
127-7 (b) Except as otherwise provided by this section, a local
127-8 exchange company that is a cooperative corporation, or that,
127-9 together with all affiliated local exchange companies, has fewer
127-10 than 31,000 access lines in service in this state, may offer
127-11 extended local calling services or new services on an optional
127-12 basis or make minor changes in its rates or tariffs if the company:
127-13 (1) files with the commission and the office a
127-14 statement of intent, as prescribed by Subsection (c) of this
127-15 section, not later than the 91st day before the date on which the
127-16 proposed change will take effect;
127-17 (2) provides notice as prescribed by Subsection (d) of
127-18 this section; and
127-19 (3) files with the commission affidavits verifying the
127-20 provision of notice as prescribed by Subsection (d) of this
127-21 section.
127-22 (c) The statement of intent required by Subsection (b)(1) of
127-23 this section must include:
127-24 (1) a copy of a resolution approving the proposed
127-25 change by the local exchange telephone company's board of
127-26 directors;
127-27 (2) a description of the services affected by the
128-1 proposed change;
128-2 (3) a copy of the proposed tariff for the affected
128-3 service;
128-4 (4) a copy of the customer notice required by
128-5 Subsection (b)(2) of this section;
128-6 (5) the number of access lines the company, and all
128-7 affiliates, has in service in this state; and
128-8 (6) the amount by which the company's total gross
128-9 annual revenues will increase or decrease as a result of the
128-10 change.
128-11 (d) The local exchange company shall provide notice to
128-12 affected customers in the manner prescribed by the commission no
128-13 later than the 61st day before the date on which the proposed
128-14 change will take effect. Each notice prescribed by the commission
128-15 must include:
128-16 (1) a description of the services affected by the
128-17 proposed change;
128-18 (2) the effective date of the proposed change;
128-19 (3) an explanation of the customer's right to petition
128-20 the commission for a review under Subsection (e) of this section,
128-21 including the number of persons required to petition before a
128-22 commission review will occur;
128-23 (4) an explanation of the customer's right to obtain
128-24 information concerning how to obtain a copy of the proposed tariff
128-25 from the company;
128-26 (5) the amount by which the company's total gross
128-27 revenues will increase or decrease as a result of the proposed
129-1 change; and
129-2 (6) a list of rates that are affected by the proposed
129-3 rate change.
129-4 (e) The commission shall review a proposed change filed
129-5 under this section if:
129-6 (1) the commission receives complaints relating to the
129-7 proposed change signed by the lesser of five percent or 1,500 of
129-8 the affected local service customers;
129-9 (2) the commission receives a complaint relating to
129-10 the proposed change from an affected intrastate access customer, or
129-11 a group of affected intrastate access customers, that in the
129-12 preceding 12 months accounted for more than 10 percent of the
129-13 company's total intrastate access revenues;
129-14 (3) the proposed change is not a minor change;
129-15 (4) the company does not comply with the procedural
129-16 requirements of this section; or
129-17 (5) the proposed change is inconsistent with the
129-18 commission's substantive policies as expressed in its rules.
129-19 (f) On review, the commission may suspend the proposed
129-20 tariff during the pendency of review.
129-21 (g) This section does not prohibit a local exchange
129-22 telephone company from filing for a new service or rate change
129-23 under another applicable section of this Act or the commission from
129-24 conducting a review in accordance with Section 42 of this Act.
129-25 (h) In this section, "minor change" means a change,
129-26 including the restructuring of rates of existing services, that
129-27 decreases the rates or revenues of the local exchange telephone
130-1 company or that, together with any other rate or proposed or
130-2 approved tariff changes in the 12 months preceding the date on
130-3 which the proposed change will take effect, results in an increase
130-4 of the company's total annual gross revenues by not more than five
130-5 percent. Further, with regard to a change to a basic local access
130-6 line rate, a "minor change" may not, together with any other change
130-7 to that rate that went into effect during the 12 months preceding
130-8 the proposed effective date of the requested change, result in an
130-9 increase of more than 10 percent. <Except as otherwise provided by
130-10 this section, a local exchange company that is a cooperative
130-11 corporation or that has fewer than 5,000 access lines in service in
130-12 this state may change rates by publishing notice of the change at
130-13 least 60 days before the date of the change in the place and form
130-14 as prescribed by the commission. The notice must include:>
130-15 <(1) the reasons for the rate change;>
130-16 <(2) a description of the affected service;>
130-17 <(3) an explanation of the right of the subscriber to
130-18 petition the commission for a hearing on the rate change; and>
130-19 <(4) a list of rates that are affected by the proposed
130-20 rate change.>
130-21 <(b) At least 60 days before the date of the change, the
130-22 local exchange company shall file with the commission a statement
130-23 of intent to change rates containing:>
130-24 <(1) a copy of the notice required by Subsection (a)
130-25 of this section;>
130-26 <(2) the number of access lines the company has in
130-27 service in this state;>
131-1 <(3) the date of the most recent commission order
131-2 setting rates of the company;>
131-3 <(4) the increase in total gross annual local revenues
131-4 that will be produced by the proposed rates;>
131-5 <(5) the increase in total gross annual local revenues
131-6 that will be produced by the proposed rates together with any local
131-7 rate changes which went into effect during the 12 months preceding
131-8 the proposed effective date of the requested rate change and any
131-9 other proposed local rate changes then pending before the
131-10 commission;>
131-11 <(6) the increase in rates for each service category;
131-12 and>
131-13 <(7) other information the commission by rule
131-14 requires.>
131-15 <(c) The commission shall review a proposed change in the
131-16 rates set by a local exchange company under this section upon the
131-17 receipt of complaints signed by at least five percent of all
131-18 affected subscribers or upon its own motion. The commission may
131-19 require notice to ratepayers as it considers appropriate. If
131-20 sufficient complaints are presented to the commission within 60
131-21 days after the date notice of the rate change was sent to
131-22 subscribers, the commission shall review the proposed change.
131-23 After notice to the local exchange company, the commission may
131-24 suspend the rates during the pendency of the review and reinstate
131-25 the rates previously in effect. Review under this subsection shall
131-26 be as provided by Section 43 of this Act. The period for review by
131-27 the commission does not begin until the local exchange company
132-1 files a complete rate-filing package.>
132-2 <(d) If the commission has entered an order setting a rate,
132-3 the affected local exchange company may not change that rate under
132-4 this section before 365 days after the date of the commission's
132-5 order setting the rate.>
132-6 <(e) This section does not prohibit a local exchange company
132-7 from filing for a rate change under any other applicable section of
132-8 this Act.>
132-9 <(f) The commission shall review a proposed change in the
132-10 rates of a local exchange company under this section if the
132-11 proposed rates, together with any local rate changes which went
132-12 into effect during the 12 months preceding the proposed effective
132-13 date of the requested rate change as well as any other proposed
132-14 local rate changes then pending before the commission, will
132-15 increase its total gross annual local revenues by more than 2 1/2
132-16 percent or if the proposed change would increase the rate of any
132-17 service category by more than 25 percent, except for basic local
132-18 service, which shall be limited to a maximum of 2 1/2 percent of
132-19 the total gross annual local revenue. Review under this subsection
132-20 shall be as provided by Section 43 of this Act. Each local
132-21 exchange company may receive a change in its local rates or in any
132-22 service category pursuant to this section only one time in any
132-23 12-month period.>
132-24 (i) <(g)> Rates established under this section must be in
132-25 accordance with the rate-setting principles of Article <VII> VIII
132-26 of this Act. However, such companies may provide to its board
132-27 members, officers, employees, and agents free or reduced rates for
133-1 services.
133-2 (j) Small Company Policy Review. The commission shall
133-3 within 120 days of the effective date of this section examine its
133-4 policies, its reporting requirements, and its procedural and
133-5 substantive rules as they relate to rural and small local exchange
133-6 companies and cooperatives to eliminate or revise those that place
133-7 unnecessary burdens and expenses on such companies.
133-8 Notwithstanding any other provisions of this Act, the commission
133-9 shall consider and may adopt policies which include, but are not
133-10 limited to, the following:
133-11 (1) Policies to allow such companies to provide
133-12 required information by report or otherwise as necessary, including
133-13 a rate filing package when required, in substantially less
133-14 burdensome and complex form than required of larger local exchange
133-15 companies.
133-16 (2) Policies that permit consideration of the
133-17 company's future construction plans and operational changes in
133-18 evaluating the reasonableness of current rates.
133-19 (3) Policies that provide for evaluation of the
133-20 overall reasonableness of current rates no more frequently than
133-21 once every three years.
133-22 (4) Policies that permit companies to change
133-23 depreciation and amortization rates when customer rates are not
133-24 affected by notice to the commission, subject to review by the
133-25 commission in proceeding under Sections 42 and 43 of this Act.
133-26 (5) Policies to allow the local exchange companies to
133-27 adopt for new services the rates for the same or substantially
134-1 similar services offered by a larger local exchange company,
134-2 without commission requirement of additional cost justification.
134-3 (6) Policies that allow a local exchange company, in
134-4 lieu of any management audit that would otherwise be required by
134-5 law, policy, or rule, to instead submit to the commission financial
134-6 audits of the company regularly performed by independent auditors
134-7 or required and performed as a result of the company's
134-8 participation in federal or state financing or revenue-sharing
134-9 programs.
134-10 (7) Notwithstanding any other relevant provision of
134-11 this Act, the commission may adopt policies under this subsection
134-12 that the commission considers appropriate.
134-13 (k) <(h)> The commission is granted all necessary power and
134-14 authority to prescribe and collect fees and assessments from local
134-15 exchange companies necessary to recover the commission's and the
134-16 Office of Public Utility Counsel's costs of activities carried out
134-17 and services provided under Subsection (i) of Section 43 and
134-18 Sections 43A, <and> 43B, and 43C of this Act.
134-19 (l) Except as provided in Subsection (j), this section may
134-20 not apply to any local exchange company that is a cooperative
134-21 corporation partially deregulated under the provisions of Section
134-22 43C of this Act.
134-23 Sec. 43C. (a) A local exchange company that is a
134-24 cooperative corporation may vote to partially deregulate the
134-25 cooperative by sending a ballot to each cooperative member. The
134-26 ballot may be included in a bill or sent separately. The ballot
134-27 shall provide for voting for or against the proposition:
135-1 "Authorizing the partial deregulation of the (name of the
135-2 cooperative)."
135-3 (b) The cooperative is deemed to be partially deregulated if
135-4 a majority of the ballots returned to the cooperative not later
135-5 than the 45th day after the date on which the ballots are mailed
135-6 favor such deregulation.
135-7 (c) After the initial balloting, the cooperative may offer
135-8 extended local calling services, new services on an optional basis,
135-9 or make changes in its rates or tariffs if the cooperative:
135-10 (1) provides notice of the proposed action under this
135-11 section to all customers and municipalities as prescribed by
135-12 Subsection (e) of this section;
135-13 (2) files with the commission affidavits verifying the
135-14 provision of notice as prescribed by Subsection (f) of this
135-15 section; and
135-16 (3) files a statement of intent pursuant to Subsection
135-17 (d) of this section.
135-18 (d) A statement of intent to use this section must be filed
135-19 with the commission and the office not later than the 61st day
135-20 before the date on which a proposed change will take effect and
135-21 must include:
135-22 (1) a copy of a resolution approving the proposed
135-23 action and authorizing the filing of the statement of intent signed
135-24 by a majority of the members of the cooperative's board of
135-25 directors;
135-26 (2) a description of the services affected by the
135-27 proposed action;
136-1 (3) a copy of the proposed tariff for the affected
136-2 service; and
136-3 (4) a copy of the customer notice required of this
136-4 section.
136-5 (e) The cooperative shall provide to all affected customers
136-6 and parties, including municipalities, at least two notices of the
136-7 proposed action by bill insert or by individual notice. The
136-8 cooperative shall provide the first notice not later than the 61st
136-9 day before the date on which the proposed action will take effect.
136-10 The cooperative shall provide the last notice not later than the
136-11 31st day before the date on which the proposed action will take
136-12 effect. Each notice prescribed by this subsection must include:
136-13 (1) a description of the services affected by the
136-14 proposed action;
136-15 (2) the effective date of the proposed action;
136-16 (3) an explanation of the customer's right to petition
136-17 the commission for a review under Subsection (g) of this section;
136-18 (4) an explanation of the customer's right to obtain a
136-19 copy of the proposed tariff from the cooperative;
136-20 (5) the amount by which the cooperative's total gross
136-21 annual revenues will increase or decrease and a statement
136-22 explaining the effect on the cooperative revenues as a result of
136-23 the proposed action; and
136-24 (6) a list of rates that are affected by the proposed
136-25 rate action showing the effect of the proposed action on each such
136-26 rate.
136-27 (f) Not later than the 15th day before the date on which the
137-1 proposed action will take effect, the cooperative shall file with
137-2 the commission affidavits that verify that the cooperative provided
137-3 each notice prescribed under Subsection (e) of this section.
137-4 (g) The commission shall review a proposed action filed
137-5 under this section if:
137-6 (1) the commission receives, not later than the 45th
137-7 day after the first notice is provided under Subsection (e) of this
137-8 section, complaints relating to the proposed action:
137-9 (A) signed by at least five percent of the
137-10 affected local service customers; or
137-11 (B) from an affected intrastate access customer,
137-12 or group of affected intrastate access customers, that in the
137-13 preceding 12 months accounted for more than 10 percent of the
137-14 cooperative's total intrastate access revenues;
137-15 (2) the cooperative does not comply with the
137-16 procedural requirements of this section;
137-17 (3) the proposed action is inconsistent with the
137-18 commission's substantive policies as expressed in its rules.
137-19 (4) If the commission conducts a review of the
137-20 proposed action under this section prior to the effective date, the
137-21 commission may suspend the actions of the cooperative during the
137-22 pendency of the review.
137-23 (h) A cooperative that is partially deregulated under this
137-24 section may vote to reverse the deregulation by sending a ballot to
137-25 each cooperative member. Upon its own motion or within 60 days
137-26 upon receipt of a written request of 10% of its members, the
137-27 cooperative's board of directors shall reballot. The ballot may be
138-1 included in a bill or sent separately. The ballot shall provide
138-2 for voting for or against the proposition: "Reversing the partial
138-3 deregulation of the (name of the cooperative)." The partial
138-4 deregulation is reversed if a majority of the ballots returned to
138-5 the cooperative not later than the 45th day after the date on which
138-6 the ballots are mailed favor reversal.
138-7 (i) The commission by rule shall prescribe the voting
138-8 procedures a cooperative is required to use under this section.
138-9 (j) This section does not:
138-10 (1) prohibit a cooperative from filing for a new
138-11 service or rate change under another applicable section of this
138-12 Act; or
138-13 (2) affect the application of other provisions of this
138-14 Act not directly related to rate-making or the authority of the
138-15 commission to require the cooperative to file reports as required
138-16 under this Act, under Section 43B(j) of this Act, or under the
138-17 rules adopted by the commission.
138-18 (k) Notwithstanding any other provision of this section, the
138-19 commission may conduct a review in accordance with Section 42 of
138-20 this Act.
138-21 Sec. 44. Public utility rates for areas not within any
138-22 municipality shall not exceed without commission approval 115
138-23 percent of the average of all rates for similar services of all
138-24 municipalities served by the same utility within the same county.
138-25 Sec. 45. (a) No public utility may, as to rates or
138-26 services, make or grant any unreasonable preference or advantage to
138-27 any corporation or person within any classification, or subject any
139-1 corporation or person within any classification to any unreasonable
139-2 prejudice or disadvantage. No public utility may establish and
139-3 maintain any unreasonable differences as to rates of service either
139-4 as between localities or as between classes of service.
139-5 (b) A public utility may not impose a restriction, including
139-6 a geographic requirement per location or a minimum line
139-7 requirement, that will limit the availability of central office
139-8 based PBX-type services to any business, either individually or as
139-9 part of a sharing arrangement. A public utility may not
139-10 unreasonably discriminate between individual businesses obtaining
139-11 central office based PBX-type services and businesses obtaining
139-12 those services through a sharing arrangement.
139-13 Sec. 46. No public utility may, directly or indirectly, by
139-14 any device whatsoever or in any manner, charge, demand, collect, or
139-15 receive from any person a greater or less compensation for any
139-16 service rendered or to be rendered by the utility than that
139-17 prescribed in the schedule of rates of the public utility
139-18 applicable thereto when filed in the manner provided in this Act,
139-19 nor may any person knowingly receive or accept any service from a
139-20 public utility for a compensation greater or less than that
139-21 prescribed in the schedules, provided that all rates being charged
139-22 and collected by a public utility upon the effective date of this
139-23 Act may be continued until schedules are filed. Nothing in this
139-24 Act shall prevent a cooperative corporation from returning to its
139-25 members the whole, or any part of, the net earnings resulting from
139-26 its operations in proportion to their purchases from or through the
139-27 corporation.
140-1 Sec. 47. No public utility may discriminate against any
140-2 person or corporation that sells or leases equipment or performs
140-3 services in competition with the public utility, nor may any public
140-4 utility engage in any other practice that tends to restrict or
140-5 impair such competition.
140-6 Sec. 47A. So long as any local exchange company in this
140-7 state is prohibited by federal law from providing interLATA
140-8 telecommunications services, the local exchange companies in this
140-9 state designated or de facto authorized to receive "0+" and "1+"
140-10 dialed intraLATA calls shall continue to be so designated. A
140-11 telecommunications utility operating under a certificate of
140-12 operating authority or service provider certificate of operating
140-13 authority is de facto authorized to receive "0+" and "1+" dialed
140-14 intraLATA calls on the date on which the utility receives its
140-15 certificate. If local exchange companies are allowed by federal
140-16 law to provide interLATA telecommunications services, the
140-17 commission shall consider whether to allow customers to designate a
140-18 carrier to receive their "0+" and "1+" dialed intraLATA calls.
140-19 Sec. 47B. COMPETITIVE SAFEGUARDS. (a) To the extent
140-20 necessary to ensure that competition in telecommunications is fair
140-21 to all participants and accelerate the improvement of
140-22 telecommunications in the state, the commission shall ensure that
140-23 the rates and regulations of an incumbent local exchange company
140-24 are not unreasonably preferential, prejudicial or discriminatory
140-25 but are equitable and consistent in application. Section 20C(e)
140-26 shall not prevent the commission from enforcing this section. The
140-27 commission shall have exclusive jurisdiction to implement
141-1 competitive safeguards.
141-2 (b) Unbundling. A local exchange company shall, at a
141-3 minimum, unbundle its network to the extent ordered by the Federal
141-4 Communications Commission. Prior to the adoption of the pricing
141-5 rules required by Subsection (g), the commission shall hold a
141-6 hearing and promulgate an order on the issue of requiring further
141-7 unbundling of local exchange company services. The commission may
141-8 order further unbundling only after considering the public interest
141-9 and competitive merits of further unbundling. The commission may
141-10 proceed by rulemaking or, if requested by a party, shall proceed by
141-11 evidentiary hearing. Following unbundling, the commission may
141-12 assign the unbundled components to the appropriate Basket according
141-13 to the purposes and intents of those Baskets.
141-14 (c)(1) Resale - Local exchange companies serving one million
141-15 or more access lines or electing the Incentive Regulation Plan
141-16 under Article IV of this Act shall file a usage sensitive loop
141-17 resale tariff by September 1, 1995. LECs serving less than one
141-18 million access lines or not electing to Article IV of this Act,
141-19 shall also be required to file a resale tariff within 60 days of
141-20 when a certificate of operating authority has been granted pursuant
141-21 to Section 58(a)(3) or a service provider certificate of operating
141-22 authority pursuant to Section 58(a)(6). "Loop" resale as used
141-23 herein means the purchase of the local distribution channel or
141-24 "loop" facility from the local exchange company for the purpose of
141-25 being resold to end user customers. The commission shall conduct
141-26 such proceeding as it determines appropriate to determine the
141-27 rates, terms and conditions for this tariff within 180 days of
142-1 filing, the commission shall:
142-2 (A) only approve a usage sensitive rate that
142-3 recovers the total long run incremental cost of the loop on an
142-4 unseparated basis, plus an appropriate contribution to joint and
142-5 common costs; and
142-6 (B) only permit holders of certificates of
142-7 convenience and necessity, operating authority or service provider
142-8 certificate of operating authority to purchase from the resale
142-9 tariff, provided that this restriction applies only until local
142-10 exchange companies get interLATA relief.
142-11 (2) Upon the effective date of this act no provider of
142-12 telecommunications service may impose any restriction on the resale
142-13 or sharing of any service for which it is not a dominant provider
142-14 nor, as to any local exchange company electing alternative
142-15 regulation pursuant to Article IV of this Act, for any service
142-16 entitled to regulatory treatment under Basket III as described in
142-17 Article IV, Section 20F of this Act.
142-18 (3) A holder of a certificate of operating authority
142-19 has the reciprocal obligation to permit local exchange companies in
142-20 existence as of September 1, 1995, to resell its existing loop
142-21 facilities at its regularly published rates if the local exchange
142-22 company has no such facilities and has a request for service.
142-23 (4) The commission shall eliminate all resale
142-24 prohibitions in an electing local exchange company's tariffs as to
142-25 holders of certificates of convenience and necessity, service
142-26 provider certificate of operating authority, and certificate of
142-27 operating authority upon:
143-1 (A) completion of the commission's costing and
143-2 pricing rulemakings; and
143-3 (B) the establishment and funding of the
143-4 Regulatory Transition Fund; or
143-5 (C) completion of rate rebalancing of the local
143-6 exchange company rates required by Section 47B(g). When the
143-7 commission eliminates the resale prohibitions under this
143-8 subsection, it shall continue to prohibit the resale of flat rate
143-9 services as a substitute for usage sensitive services. If the
143-10 commission finds that the rate for a particular service or function
143-11 will, as a result of the costing and pricing proceeding, be less
143-12 than the cost of providing the service or function and that such
143-13 difference in rate and cost will not be recovered from the
143-14 universal service fund, then the service may be offered for resale
143-15 only to the same class of customer as sold to by the local exchange
143-16 company.
143-17 (5) Nothing herein shall alter resale or sharing
143-18 arrangements in existing local exchange company tariffs.
143-19 (d)(1) Imputation. Not later than December 1, 1996, the
143-20 commission shall adopt rules governing imputation of the price of a
143-21 service.
143-22 (2) Imputation is a regulatory policy the commission
143-23 shall apply to prevent a local exchange company from selling a
143-24 service or function to another telecommunications utility at a
143-25 price that is higher than the rate the local exchange company
143-26 implicitly includes in services it provides to its retail
143-27 customers.
144-1 (3) The commission may require imputation only of the
144-2 price of a service that is:
144-3 (A) not generally available from a source other
144-4 than the local exchange company; and
144-5 (B) necessary for the competitor to provide its
144-6 competing services.
144-7 (4) The commission may not require imputation of the
144-8 price of a local exchange service while the price is capped
144-9 pursuant to Article IV or V of this Act.
144-10 (5) The price of switched access service shall be
144-11 imputed to the price of each service for which switched access
144-12 service is a component until switched access service is
144-13 competitively available.
144-14 (6) The commission may not require imputation on a
144-15 rate-element-by-element basis but only on a service-by-service
144-16 basis.
144-17 (7) For a service provided under a customer-specific
144-18 contract for which imputation may be required under Subdivision (3)
144-19 of this subsection, the commission may not require imputation on a
144-20 rate-element-by-element basis but only on a service-by-service
144-21 basis within the contract.
144-22 (8) The local exchange company shall demonstrate that
144-23 the price it charges for its retail service recovers the costs of
144-24 providing the service. For purposes of this subdivision, the costs
144-25 of providing the service is defined as the sum of:
144-26 (A) specifically tariffed premium rates for the
144-27 noncompetitive services or service functions, or elements of these
145-1 noncompetitive services or service functions (or their functional
145-2 equivalent) that are utilized to provide the service;
145-3 (B) the total service long run incremental costs
145-4 of the competitive services or service functions that are utilized;
145-5 (C) any costs, not otherwise reflected in (A) or
145-6 (B) above, which are specifically associated with the provision of
145-7 the service or group of services; and
145-8 (D) any cost or surcharge associated with an
145-9 explicit subsidy that is applied to all providers or the service
145-10 for the purpose of promoting universal service;
145-11 (9) The commission may waive an imputation requirement
145-12 for any public interest service such as 9-1-1 service and dual
145-13 party relay service if the commission determines that the waiver is
145-14 in the public interest.
145-15 (e) Telecommunications Number Portability. Because a
145-16 uniform national number plan is valuable and necessary to the
145-17 state, the commission by rule shall adopt guidelines governing
145-18 telecommunications number portability and the assignment of
145-19 telephone numbers in a competitively neutral manner. The
145-20 commission rules shall not be inconsistent with the rules and
145-21 regulations of the Federal Communications Commission regarding
145-22 telecommunications number portability. In this Act,
145-23 "telecommunications number portability" means the ability of a user
145-24 of telecommunications services, to the extent technically feasible,
145-25 to retain an existing telephone number without impairing the
145-26 quality, reliability, or convenience of service when changing from
145-27 one provider of telecommunications service to another provider. As
146-1 an interim measure the commission shall adopt reasonable mechanisms
146-2 to allow consumers to retain their telephone numbers. At a minimum
146-3 such mechanisms shall include the use of call forwarding functions
146-4 and direct inward dialing for such purposes. Local exchange
146-5 companies with more than one million access lines shall file
146-6 tariffs within 60 days from the effective date of this Act and the
146-7 commission, within 180 days from the effective date of this Act,
146-8 shall determine reasonable rates to be charged for call forwarding
146-9 functions used as an interim number portability measure by a new
146-10 entrant. Local exchange companies with less than one million
146-11 access lines where a certificate of operating authority or a
146-12 service provider certificate of operating authority has been
146-13 granted shall file tariffs within 60 days of a bona fide request
146-14 and the commission, within 60 days, shall determine reasonable
146-15 rates to be charged for call forwarding functions used as an
146-16 interim number portability measure by a new entrant.
146-17 (f) Expanded Interconnection. Not later than September 1,
146-18 1996, the commission shall adopt rules for expanded interconnection
146-19 that:
146-20 (1) are consistent with the rules and regulations of
146-21 the Federal Communications Commission relating to expanded
146-22 interconnection;
146-23 (2) treat intrastate private line services as special
146-24 access service; and
146-25 (3) provide that if a local exchange company is
146-26 required to provide expanded interconnection to another local
146-27 exchange company, the second local exchange company shall, in a
147-1 like manner, provide expanded interconnection to the first company.
147-2 (g)(1) Costing and Pricing. The commission shall complete a
147-3 pricing rulemaking and adopt a pricing rule within 180 days after
147-4 completion of the cost studies required to be completed under
147-5 commission substantive rule Section 23.91.
147-6 (2) In adopting the pricing rule, the commission
147-7 shall:
147-8 (A) ensure that prices for monopoly services
147-9 remain affordable;
147-10 (B) ensure that prices for competitive services
147-11 shall not be:
147-12 (i) unreasonably preferential,
147-13 prejudicial, or discriminatory;
147-14 (ii) subsidized either directly or
147-15 indirectly by noncompetitive services; or
147-16 (iii) predatory or anticompetitive.
147-17 (C) require that each service recover the
147-18 appropriate cost of, including appropriate joint and common costs,
147-19 any and all facilities and functions used to provide such service.
147-20 (3) The commission shall allow a local exchange
147-21 company which is not a Tier 1 company as of September 1, 1995, at
147-22 that company's option, to adopt the cost studies and/or prices
147-23 approved by the commission for a Tier 1 local exchange company.
147-24 (4) The rulemaking proceedings required by this
147-25 subsection notwithstanding, the Commission shall ensure that each
147-26 Article IV electing local exchange company reduces each of the rate
147-27 elements in its Texas intrastate carrier access tariff to parity
148-1 with the corresponding interstate carrier access services rate
148-2 elements effective September 1, 1995. The Commission shall further
148-3 ensure that, effective as of the time of the adoption of the
148-4 pricing rule required by this section, the level of each such rate
148-5 element is established and maintained on the basis of its long run
148-6 incremental cost.
148-7 (h)(1) "Interconnection" for the purposes of this section
148-8 means the termination of another local exchange company's local
148-9 intraexchange traffic that originates and terminates in this state.
148-10 The provisions of this subsection do not govern rates for the
148-11 termination of cellular or interexchange traffic.
148-12 (2) The commission shall require all providers of
148-13 telecommunications services to maintain interoperable networks.
148-14 Telecommunications providers shall negotiate network
148-15 interconnectivity, charges, terms and conditions and in such event
148-16 the commission shall approve the interconnection rates. The
148-17 commission shall have the authority to resolve disputes as filed by
148-18 a party to such negotiations.
148-19 (3) In the absence of a mutually agreed compensation
148-20 rate or rates as described in Subsection (4) below for the
148-21 termination of local exchange service traffic or negotiated under
148-22 Subsection (2) each carrier shall reciprocally terminate the others
148-23 carrier's traffic at no charge. In the event the interconnected
148-24 minutes of use terminating between the interconnecting companies
148-25 exceed by more than 10 percent per calendar month the Legislature
148-26 hereby establishes an interim reciprocal interconnection rate of
148-27 1.1c per minute of use for terminating the local intraexchange
149-1 traffic between competing local exchange company customers.
149-2 (4) The commission shall complete a proceeding to
149-3 establish reciprocal interconnection rates, terms and conditions
149-4 180 days after receiving a complaint or a tariff filing for
149-5 companies other than those providing service in the areas of
149-6 companies under 31,000 access lines. No earlier than 3 years after
149-7 COA is granted may the commission require cost studies by a new
149-8 entrant for the purpose of establishing interconnection rates.
149-9 (5) The local exchange company may adopt the
149-10 interconnection rates approved for a larger local exchange company
149-11 or the company's approved interconnection rates without the
149-12 commission requirement of additional cost justification. If an
149-13 local exchange company elects not to adopt interconnection rates of
149-14 a larger company, or negotiates pursuant to Subsection (2), such
149-15 company shall be required to file tariffs within 60 days of the
149-16 granting of a certificate of convenience and necessity or a
149-17 certificate of operating authority to a new entrant. Until such
149-18 time that tariffs are approved, an interim rate equal to the rate
149-19 in Subsection (3) shall apply. If the commission has not
149-20 established the rate in Subsection (4), the interim rate
149-21 established in Subsection (3) shall apply. If the local exchange
149-22 company adopts the interconnection rates of another local exchange
149-23 company, the new entrant may adopt such rates as its
149-24 interconnection rates. If the local exchange company elects to
149-25 file its own tariff, the new entrant must also file its own
149-26 interconnection tariff.
149-27 (6) The commission shall have authority to make
150-1 generic rules and set policies governing interconnection
150-2 arrangements. The commission's policy making authority shall
150-3 permit it to establish rules that are responsive to changes in
150-4 federal law or developments in the local exchange market.
150-5 (7) The commission shall not use interconnection rates
150-6 under this subsection as a basis to alter interconnection rates for
150-7 other services.
150-8 (8) The commission shall have exclusive jurisdiction
150-9 over any holder of a certificate of convenience and necessity or a
150-10 certificate of operating authority for the determination of rates,
150-11 terms and conditions for interconnection.
150-12 (i) A local exchange company shall not unreasonably:
150-13 (1) discriminate against another provider by refusing
150-14 access to the local exchange;
150-15 (2) refuse or delay interconnections to another
150-16 provider;
150-17 (3) degrade the quality of access provided to another
150-18 provider;
150-19 (4) impair the speed, quality, or efficiency of lines
150-20 used by another provider;
150-21 (5) upon a request, fail to fully disclose in a timely
150-22 manner all available information necessary for the design of
150-23 equipment that will meet the specifications of the local exchange
150-24 network; or
150-25 (6) refuse or delay access by any person to another
150-26 provider.
150-27 This subsection shall not be construed to require any local
151-1 exchange company to provide expanded interconnection as that term
151-2 is defined by the Federal Communications Commission.
151-3 (j) The commission shall have all authority necessary to
151-4 establish procedures with respect to the policies stated in
151-5 Subsections (a)-(f) and to resolve any disputes arising under such
151-6 policies. The commission shall have the authority to and shall
151-7 adopt procedures for the processing of proceedings under
151-8 Subsections (b) and (c), including the authority to limit discovery
151-9 and, except for the Office of Public Utility Counsel, align parties
151-10 having similar positions for purposes of cross-examination. In
151-11 adopting procedures under this section and in resolving disputes,
151-12 the commission shall consider the impact on consumers, competitors,
151-13 and the local exchange company. The commission may not implement,
151-14 by order or rule, any requirement which is contrary to any
151-15 applicable federal rule or law.
151-16 (k) The obligations set forth in (b), (c), (e), (f), and (h)
151-17 shall not be applied to local exchange companies serving less than
151-18 31,000 access lines until September 1, 1997. After September 1,
151-19 1997, the obligations set forth in (b), (c) and (f) may only be
151-20 applied upon a bona fide request from a certified
151-21 telecommunications utility. In applying these rules to these local
151-22 exchange companies, the commission may modify the rules as it finds
151-23 in the public interest.
151-24 (l) The commission shall have the authority to review the
151-25 implementation of Subsections (b), (d), and (g) to be applicable to
151-26 local exchange companies that as of September 1, 1995 are not
151-27 subject to the costing and pricing rules upon a bona fide request
152-1 from a holder of a certificate of operating authority or service
152-2 provider certificate of operating authority.
152-3 Sec. 48. No payments made in lieu of taxes by a public
152-4 utility to the municipality by which it is owned may be considered
152-5 an expense of operation for the purpose of determining, fixing, or
152-6 regulating the rates to be charged for the provision of utility
152-7 service to a school district or hospital district. No rates
152-8 received by a public utility from a school district or hospital
152-9 district may be used to make or to cover the cost of making
152-10 payments in lieu of taxes to the municipality by which the public
152-11 utility is owned.
152-12 Sec. 48A. A telecommunications utility providing any service
152-13 to the state, including service to an agency in any branch of state
152-14 government, may not charge a fee, penalty, interest, or other
152-15 charge for delinquent payment of a bill for that service.
152-16 ARTICLE <VII.> X. CERTIFICATES OF CONVENIENCE AND NECESSITY
152-17 Sec. 49. For purposes of this article only "retail public
152-18 utility"<:>
152-19 <(a) "Retail public utility"> means any person, corporation,
152-20 <water supply or sewer service corporation,> municipality,
152-21 political subdivision or agency, or cooperative corporation, now or
152-22 hereafter operating, maintaining, or controlling in Texas
152-23 facilities for providing retail utility service.
152-24 <(b) For the purposes of this article only, "public utility"
152-25 includes a water supply or sewer service corporation.>
152-26 Sec. 50. Beginning one year after the effective date of this
152-27 Act, unless otherwise specified:
153-1 (1) No public utility may in any way render service
153-2 directly or indirectly to the public under any franchise or permit
153-3 without first having obtained from the commission a certificate
153-4 that the present or future public convenience and necessity require
153-5 or will require such installation, operation, or extension.
153-6 (2) Except as otherwise provided in this article no
153-7 retail public utility may furnish, make available, render, or
153-8 extend retail public utility service to any area to which retail
153-9 utility service is being lawfully furnished by another retail
153-10 public utility on or after the effective date of this Act, without
153-11 first having obtained a certificate of public convenience and
153-12 necessity that includes the area in which the consuming facility is
153-13 located.
153-14 Sec. 51. (a) A public utility is not required to secure a
153-15 certificate of public convenience and necessity or certificate of
153-16 operating authority as described in Section 54(c) for:
153-17 (1) an extension into territory contiguous to that
153-18 already served by it and not receiving similar service from another
153-19 public utility and not within the area of public convenience and
153-20 necessity or operating authority of another utility of the same
153-21 kind; or
153-22 (2) an extension within or to territory already served
153-23 by it or to be served by it under a certificate of public
153-24 convenience and necessity or operating authority; or
153-25 (3) operation, extension, or service in progress on
153-26 the effective date of this Act.
153-27 (b) Any extensions allowed by Subsection (a) of this section
154-1 shall be limited to devices for interconnection of existing
154-2 facilities or devices used solely for transmitting public utility
154-3 services from existing facilities to customers of retail utility
154-4 service.
154-5 Sec. 52. (a) A public utility shall submit to the
154-6 commission an application to obtain a certificate of public
154-7 convenience and necessity or an amendment thereof.
154-8 (b) On or before 90 days after the date of this Act, or at a
154-9 later date on request in writing by a public utility when good
154-10 cause is shown, or at such later dates as the commission may order,
154-11 each public utility shall file with the commission a map or maps
154-12 showing all its facilities and illustrating separately facilities
154-13 for generation, transmission, and distribution of its services.
154-14 (c) Each applicant for a certificate shall file with the
154-15 commission such evidence as is required by the commission to show
154-16 that the applicant has received the required consent, franchise, or
154-17 permit of the proper municipality or other public authority.
154-18 Sec. 53. On application made to the commission within six
154-19 months after the effective date of this Act, the commission shall
154-20 issue a certificate of public convenience and necessity for the
154-21 construction or operation then being conducted to any public
154-22 utility actually providing service to any geographical area on the
154-23 effective date of this Act, or to any person or corporation
154-24 actively engaged on the effective date of this Act in the
154-25 construction, installation, extension, or improvement of, or
154-26 addition to, any facility or system used or to be used in providing
154-27 public utility service.
155-1 Sec. 54. (a) When an application for a certificate of
155-2 convenience and necessity, certificate of operating authority or
155-3 service provider certificate of operating authority is filed, the
155-4 commission shall give notice of such application to interested
155-5 parties and, if requested, shall fix a time and place for a hearing
155-6 and give notice of the hearing. Any person interested in the
155-7 application may intervene at the hearing.
155-8 (b) Except for certificates for prior operations granted
155-9 under Section 53, the commission may grant applications and issue
155-10 certificates only if the commission finds that the certificate is
155-11 necessary for the service, accommodation, convenience, or safety of
155-12 the public. The commission may issue the certificate as prayed
155-13 for, or refuse to issue it, or issue it for the construction of a
155-14 portion only of the contemplated system or facility or extension
155-15 thereof, or for the partial exercise only of the right or
155-16 privilege.
155-17 (c) Certificates of convenience and necessity shall be
155-18 granted on a nondiscriminatory basis after consideration by the
155-19 commission of the adequacy of existing service, the need for
155-20 additional service, the effect of the granting of a certificate on
155-21 the recipient of the certificate and on any public utility of the
155-22 same kind already serving the proximate area, and on such factors
155-23 as, community values, recreational and park areas, historical and
155-24 aesthetic values, environmental integrity, and the probable
155-25 improvement of service or lowering of cost to consumers in such
155-26 area resulting from the granting of such certificate.
155-27 (d) In addition to the requirements of this section, an
156-1 electric utility applying for certificate of convenience and
156-2 necessity for a new generating plant must first file a notice of
156-3 intent to file an application for certification.
156-4 (1) The notice of intent shall set out alternative
156-5 methods considered to help meet the electrical needs, related
156-6 electrical facilities, and the advantages and disadvantages of the
156-7 alternatives. In addition, the notice shall indicate compatibility
156-8 with the most recent long-term forecast provided in this Act.
156-9 (2) The commission shall conduct a hearing on the
156-10 notice of intent to determine the appropriateness of the proposed
156-11 generating plant as compared to the alternatives and shall issue a
156-12 report on its findings. In conjunction with the issuance of the
156-13 report, the commission shall render a decision approving or
156-14 disapproving the notice. Such decision shall be rendered within
156-15 180 days from the date of filing the notice of intent.
156-16 (e) On approval of the notice of intent, a utility may apply
156-17 for certification for a generating plant, site, and site facilities
156-18 no later than 12 months before construction is to commence.
156-19 (1) The application for certification shall contain
156-20 such information as the commission may require to justify the
156-21 proposed generating plant, site, and site facilities and to allow a
156-22 determination showing compatibility with the most recent forecast.
156-23 (2) Certificates of convenience and necessity shall be
156-24 granted on a nondiscriminatory basis if the commission finds that
156-25 the proposed new plant is required under the service area forecast,
156-26 that it is the best and most economical choice of technology for
156-27 that service area as compatible with the commission's forecast, and
157-1 that conservation and alternative energy sources cannot meet the
157-2 need.
157-3 (f) If the application for a certificate of convenience and
157-4 necessity involves new transmission facilities, the commission
157-5 shall approve or deny the application within one year after the
157-6 date the application is filed. If the commission does not approve
157-7 or deny the application before this deadline, any party may seek a
157-8 writ of mandamus in a district court of Travis County to compel the
157-9 commission to make a decision on the application.
157-10 Sec. 54A. CERTIFICATES OF OPERATING AUTHORITY. (1) No
157-11 person may provide local exchange service, basic local
157-12 telecommunications service or switched access service without a
157-13 certificate of convenience and necessity or a certificate of
157-14 operating authority or a service provider certificate of operating
157-15 authority. In lieu of applying for a certificate of convenience
157-16 and necessity, an applicant may apply for a certificate of
157-17 operating authority. Certificates of operating authority shall be
157-18 granted on a nondiscriminatory basis after consideration by the
157-19 commission of factors such as the technical and financial
157-20 qualifications of the applicant, applicant's ability to meet the
157-21 commission's quality of service requirements within 60 days of the
157-22 application. In exchanges of companies serving less than 31,000
157-23 access lines the commission shall also consider:
157-24 (1) the effect of granting the certificate on any
157-25 public utility already serving the area, its customers;
157-26 (2) the existing utility's ability to provide adequate
157-27 service at reasonable rates; and
158-1 (3) the impact of the existing utility's ability as
158-2 the provider of last resort; and
158-3 (4) the ability of the exchange, not the company, to
158-4 support more than one provider of service.
158-5 (2)(a) After an application for a certificate of convenience
158-6 and necessity or a certificate of operating authority or a service
158-7 provider certificate of operating authority is granted or the
158-8 commission determines that such certificate is not needed for the
158-9 services to be provided by the applicant, the commission shall
158-10 conduct such proceeding as it determines appropriate to establish a
158-11 transitional flexibility plan for the existing public utility in
158-12 the same area or areas as the new certificate holder. However no
158-13 basic local telecommunications service price may be increased until
158-14 four years following the grant of the certificate to the applicant
158-15 except as provided in this Act or when the new applicant has
158-16 completed its deployment plan required by Section 58(a)(1), (2),
158-17 (3), (4) and (5).
158-18 (4)(a) Any application for a certificate of convenience and
158-19 necessity or certificate of operating authority shall only be
158-20 granted for areas which are contiguous and reasonably compact and
158-21 shall have a minimum 3-mile radius except that:
158-22 (i) in exchanges in counties having a population of
158-23 less than 500,000, served by companies having more than 31,000
158-24 access lines, an area having less than a 3-mile radius may be
158-25 approved so long as it is contiguous and reasonably compact and has
158-26 at least 20,000 access lines; and
158-27 (ii) in exchanges of companies serving less than
159-1 31,000 access lines in the state, an application may only be
159-2 granted for areas which have similar boundaries as the serving
159-3 central office served by the existing local exchange company
159-4 holding the certificate of convenience and necessity for that area
159-5 or areas.
159-6 (b) The commission may not grant a certificate of operating
159-7 authority in any exchange of a local exchange company serving less
159-8 than 31,000 access lines before September 1, 1998. The commission
159-9 shall require that the applicant meet the other appropriate
159-10 certification provisions of this Act.
159-11 (c) Five years after an application for certificate of
159-12 convenience and necessity or a certificate of operating authority
159-13 has been granted for a particular area(s) or when the new applicant
159-14 has completed its deployment plan required by Sec. 58(a), the
159-15 commission may waive the requirements of Sec. 58(a), (2), (3),
159-16 (4), and (5) for additional applicants.
159-17 (5) Any telecommunications utility that is granted a
159-18 certificate of convenience and necessity or certificate of
159-19 operating authority shall be required to offer to any customer in
159-20 its serving area all basic local telecommunications services as
159-21 defined in this Act. In any event, as between holders of
159-22 certificates of convenience and necessity or operating authority,
159-23 the holder of a certificate of convenience and necessity shall have
159-24 provider of last resort obligations.
159-25 Sec. 54B. MARKET POWER TEST. (a) Notwithstanding any other
159-26 provisions of this Act, upon notice and hearing, the commission may
159-27 grant price deregulation of a specific service in a particular
160-1 geographic market if it determines that the local exchange company
160-2 is no longer dominant to that specific service in that particular
160-3 geographic market. For purposes of this section only, in
160-4 determining a particular geographic market the commission shall
160-5 consider economic and technical conditions of the market. Once a
160-6 service in a particular market is price deregulated under this
160-7 subsection, the local exchange company may set the rate for the
160-8 deregulated service at any level above the service's LRIC.
160-9 (b) In order for the commission to determine that a local
160-10 exchange company is no longer dominant as to a specific service in
160-11 a particular geographic market, the commission must find that
160-12 effective competitive alternative exists and that the local
160-13 exchange company does not have sufficient market power to control
160-14 the price of the service within a specified geographic area in a
160-15 manner which is adverse to the public interest.
160-16 (c) The commission shall consider the following factors in
160-17 determining whether the local exchange carrier is dominant as to a
160-18 specific service in a particular geographic area:
160-19 (1) number and size of telecommunication utilities or
160-20 other persons providing the same, equivalent, or substitutable
160-21 service in the relevant market and the extent to which the service
160-22 is available in the relevant market;
160-23 (2) ability of customers in the relevant market to
160-24 obtain the same, equivalent, or substitutable service at comparable
160-25 rates, terms and conditions;
160-26 (3) ability of telecommunications utilities or other
160-27 persons to make the same, equivalent, or substitutable service
161-1 readily available in the relevant market a comparable rates, terms,
161-2 and conditions;
161-3 (4) proportion of the relevant market that is
161-4 currently being provided the service by a telecommunications
161-5 utility other that the certified local exchange company; and
161-6 (5) other relevant information proven necessary by the
161-7 commission.
161-8 (d) The commission, only on its own motion, or on a
161-9 complaint that the commission deems has merit is granted all
161-10 necessary power and authority to reassert regulation over a
161-11 specific service in a particular geographic market if the local
161-12 exchange company is found to again be dominant or the provider of
161-13 services pursuant to a certificate of operating authority under
161-14 Sec. 53 is found to be dominant as to that specific service in that
161-15 particular geographic market.
161-16 (e) Upon request of the electing company in conjunction with
161-17 an application under this section, the commission shall conduct
161-18 investigations to determine the existence, impact, and scope of
161-19 competition in the particular geographic and service markets at
161-20 issue and in connection therewith may call and hold hearings, issue
161-21 subpoenas to compel the attendance of witnesses and the production
161-22 of papers and documents, and has such other powers, whether
161-23 specifically designated or implied herein, necessary and convenient
161-24 to the investigation, and make findings of fact and decisions with
161-25 respect to such markets.
161-26 (f) The parties to the proceeding shall be entitled to use
161-27 the results of the investigation required to be conducted under
162-1 Subsection (e) in an application for pricing flexibility.
162-2 (g) In conjunction with its authority to collect and compile
162-3 information, the commission may collect reports from holders of a
162-4 certificate of operating authority and service provider
162-5 certificates of operating authority. Any information contained in
162-6 the reports claimed to be confidential for competitive purposes
162-7 shall be maintained as confidential by the commission. Such
162-8 information shall be exempt from disclosure under the Texas Open
162-9 Records Act, Section 552.001, Government Code. The commission may
162-10 aggregate the information for public use, if the aggregation is
162-11 sufficient to protect individual markets share or competitive
162-12 information. In no event shall the commission disclose any such
162-13 confidential information in a manner that would permit the
162-14 identification of such information to a particular carrier. The
162-15 aggregated information may be used in a proceeding to show market
162-16 share or other relevant information.
162-17 Sec. 55. (a) If an area has been or shall be included
162-18 within the boundaries of a city, town, or village as the result of
162-19 annexation, incorporation, or otherwise, all <public> certificated
162-20 telecommunications utilities certified or entitled to certification
162-21 under this Act to provide service or operate facilities in such
162-22 area prior to the inclusion shall have the right to continue and
162-23 extend service in its area of public convenience and necessity
162-24 within the annexed or incorporated area, pursuant to the rights
162-25 granted by its certificate and this Act.
162-26 (b) Notwithstanding any other provision of law, a <public>
162-27 certificated telecommunications utility shall have the right to
163-1 continue and extend service within its area of public convenience
163-2 and necessity or operating authority and to utilize the roads,
163-3 streets, highways, alleys, and public property for the purpose of
163-4 furnishing retail utility service, subject to the authority of the
163-5 governing body of a municipality to require any <public>
163-6 certificated telecommunications utility, at its own expense, to
163-7 relocate its facilities to permit the widening or straightening of
163-8 streets by giving to the <public> certified telecommunications
163-9 utility 30 days' notice and specifying the new location for the
163-10 facilities along the right-of-way of the street or streets.
163-11 (c) This section may not be construed as limiting the power
163-12 of cities, towns, and villages to incorporate or extend their
163-13 boundaries by annexation, nor may this section be construed as
163-14 prohibiting any city or town from levying taxes and other special
163-15 charges for the use of the streets as are authorized by Section
163-16 182.025, Tax Code.
163-17 (d) Where a municipal corporation offers retail electric
163-18 utility service in a city of more than 135,000 population located
163-19 in a county of more than 1,500,000 population according to the last
163-20 federal decennial census, the commission shall singly certificate
163-21 areas within the corporate limits of such municipality where more
163-22 than one electric utility provides electric utility service within
163-23 such corporate limits. And singly certificating such areas, the
163-24 commission shall preserve the respective electric utilities' rights
163-25 to serve the customers such electric utilities are serving on the
163-26 effective date of this subsection. Provided, however, the
163-27 foregoing shall not apply to customers served, at least partially,
164-1 by a nominal 69,000 volts system, who have given notice of
164-2 termination to the utility servicing that customer prior to the
164-3 effective date of this subsection.
164-4 Sec. 55A. (a) Notwithstanding Section 21 of this Act, a
164-5 municipality may not discriminate against a telecommunications
164-6 utility that holds a certificate of convenience and necessity or a
164-7 certificate of operating authority in relation to:
164-8 (1) the authorization or placement of
164-9 telecommunications facilities within public right-of-way;
164-10 (2) access to buildings; and,
164-11 (3) municipal utility pole attachment rates, terms,
164-12 and conditions, to the extent not addressed by federal law.
164-13 (b) A public or private property owner may not:
164-14 (1) interfere with or prevent a telecommunications
164-15 utility that holds a certificate of convenience and necessity or
164-16 certificate of operating authority from installing on the owner's
164-17 property telecommunications services facilities requested by a
164-18 tenant;
164-19 (2) discriminate against one or more
164-20 telecommunications utilities holding certificates of convenience
164-21 and necessity or certificates of operating authority in relation to
164-22 the installation of telecommunication services facilities to a
164-23 tenant on the owner's property;
164-24 (3) demand or accept an inappropriate payment in any
164-25 form from a tenant or a telecommunications utility holding a
164-26 certificate of convenience and necessity or certificate of
164-27 operating authority from allowing the utility on or within the
165-1 owner's property; or
165-2 (4) discriminate against a tenant in any manner,
165-3 including rental charges, because of the utility from which the
165-4 tenant receives telecommunications services.
165-5 (c) Notwithstanding Subsection (b) of this section, the
165-6 owner of public or private property may require that:
165-7 (1) the utility:
165-8 (A) install the telecommunications facilities in
165-9 accordance with reasonable conditions necessary to protect the
165-10 safety, functioning, and appearance of the property and the
165-11 well-being of other tenants; and
165-12 (B) agree to indemnify the owner of or any
165-13 damage caused by the installation, operating or removal of the
165-14 facilities; and
165-15 (2) the tenant or the utility bear the entire cost of
165-16 the installation, operation, or removal of the facilities.
165-17 (d) Notwithstanding any other provision of law, the
165-18 commission has the jurisdiction necessary to:
165-19 (1) investigate a complaint relating to a violation of
165-20 this section, including a complaint relating to the conduct of a
165-21 municipality; and
165-22 (2) enforce this section.
165-23 (e) This section applies only to a franchise or contract
165-24 entered into or amended on or after September 1, 1995. A franchise
165-25 or contract entered into or amended before September 1, 1995, is
165-26 governed by the law in effect when the contract was entered into or
165-27 amended, and that law is continued in effect for that purpose.
166-1 Sec. 56. Contracts between retail public utilities
166-2 designating areas to be served and customers to be served by those
166-3 utilities, when approved by the commission, shall be valid and
166-4 enforceable and shall be incorporated into the appropriate areas of
166-5 public convenience and necessity.
166-6 Sec. 57. If a public utility desires to exercise a right or
166-7 privilege under a franchise or permit which it contemplates
166-8 securing but which has not as yet been granted to it, such public
166-9 utility may apply to the commission for an order preliminary to the
166-10 issuance of the certificate. The commission may thereupon make an
166-11 order declaring that it will, on application, under such rules as
166-12 it prescribes, issue the desired certificate on such terms and
166-13 conditions as it designates, after the public utility has obtained
166-14 the contemplated franchise or permit. On presentation to the
166-15 commission of evidence satisfactory to it that the franchise or
166-16 permit has been secured by the public utility, the commission shall
166-17 issue the certificate.
166-18 Sec. 58. (a)(1) Except as provided by this section or
166-19 Section 58A of this Act, the holder of any certificate of
166-20 convenience and necessity or certificate of operating authority
166-21 shall offer service <serve> to every consumer within its certified
166-22 area and shall render continuous and adequate service within the
166-23 area or areas.
166-24 (2) The application for a certificate of convenience
166-25 and necessity or certificate of operating authority shall specify
166-26 that it is seeking a facilities based certificate of operating
166-27 authority pursuant to Section 58(a)(3) or a service provider
167-1 certificate of operating authority pursuant to Section 58(a)(6).
167-2 (3) If seeking a facilities based certificate of
167-3 operating authority the application must contain a proposed plan
167-4 demonstrating how the applicant will deploy its facilities
167-5 throughout the geographic area of its certificated service area
167-6 over a six year period. The plan must meet the following
167-7 conditions:
167-8 (A) 10 percent of the area to be served must be
167-9 served with facilities other than the incumbent local exchange
167-10 company's by the end of the first year;
167-11 (B) 50 percent of the area to be served must be
167-12 served with facilities other than the incumbent local exchange
167-13 company's by the end of the third year;
167-14 (C) all of the area to be served must be served
167-15 with facilities other than the incumbent local exchange company's
167-16 by the end of the sixth year;
167-17 (4) The plan may permit no more than 30 percent of the
167-18 applicant's service area to be served by resale of the incumbent
167-19 local exchange company's facilities pursuant to the tariff required
167-20 to be approved in Section 47B(c), except that during the five years
167-21 immediately following the grant a holder of a certificate of
167-22 operating authority may extend its service by resale only within
167-23 the area it is obligated to serve under the "build-out" plan
167-24 approved by the commission and to the distant premises of one of
167-25 its multi-premises customers beyond that build-out area but within
167-26 its certificated service area. The 30 percent resale limitation
167-27 applies to all incumbent local exchange facilities resold by a
168-1 holder of a certificate of operating authority, regardless of
168-2 whether the facilities are purchased directly by the certificate of
168-3 operating authority holder from the incumbent local exchange
168-4 carrier or purchased by an intermediary carrier from the incumbent
168-5 local exchange carrier and then provided to the certificate of
168-6 operating authority holder for resale. In no event may an
168-7 applicant use "CMRS" to meet the build-out requirement imposed by
168-8 this section, but applicants may use PCS wireless technology in the
168-9 120mhz of radio spectrum licensed by the FCC after January 1, 1995
168-10 to meet the build out requirement.
168-11 (5) The commission shall consider the adequacy of such
168-12 plan in determining whether to grant the application. The
168-13 commission may administratively waive temporarily compliance with
168-14 the six year plan upon a showing of good cause. The holder of a
168-15 certificate shall file periodic reports with the commission
168-16 demonstrating compliance with the plan approved by the commission
168-17 including the requirement that no more than 30% of the service area
168-18 of a new certificate may be served by resale of the incumbent local
168-19 exchange company's facilities.
168-20 (6) Service Provider Certificate of Operating
168-21 Authority:
168-22 (A) In order to encourage innovative and
168-23 entrepreneurial businesses to provide telecommunications services,
168-24 the commission may grant service provider certificates of operating
168-25 authority. An applicant must demonstrate that it has the financial
168-26 and technical ability to provide its services and show that the
168-27 services will meet the requirements of this section.
169-1 (B) As used in this section, a service provider
169-2 is a small entrepreneurial business which provides
169-3 telecommunications services and which together with affiliates has
169-4 annual revenues of less than $10 million.
169-5 (C) An applicant for a service provider
169-6 certificate of operating authority will file with its application a
169-7 description of the services it will provide and show the areas in
169-8 which it will provide those services.
169-9 (D) A service provider certificate of operating
169-10 authority holder:
169-11 (i) may obtain services pursuant to the
169-12 resale tariffs ordered by the commission as specified in Section
169-13 47B(c).
169-14 (ii) may not use resold local exchange
169-15 services to provide access or services to interexchange carriers,
169-16 cellular carriers, competitive access providers or other retail
169-17 telecommunications providers.
169-18 (iii) may not use a resold local exchange
169-19 service to avoid the rates, terms and conditions of a local
169-20 exchange company's tariffs.
169-21 (E) A service provider certificate of operating
169-22 authority shall not be granted to a holder of a certificate of
169-23 operating authority or certificate of convenience and necessity nor
169-24 shall a certificate of operating authority or certificate of
169-25 convenience and necessity holder be granted a service provider
169-26 certificate of operating authority.
169-27 (7) Certification is not required by any section of
170-1 this Act for interexchange telecommunications service, non-switched
170-2 private line service, specialized communications common carrier'
170-3 services, commercial mobile radio service providers, or operator
170-4 services as defined in Section 18A(a) of this Act.
170-5 (8) In the event of a failure to comply with any of
170-6 the requirements imposed herein on a holder of a certificate of
170-7 authority, the commission shall have the authority to:
170-8 (A) revoke the certificate; and/or
170-9 (B) impose administrative penalties or take
170-10 other action pursuant to Article XIII.
170-11 (b) Six years after a certificate of convenience and
170-12 necessity or a certificate of operating authority has been granted
170-13 for a particular area or areas, or when at least one new applicant
170-14 has completed its deployment plan required by Section 58(a), the
170-15 commission may waive the requirements of Section 58(a)(1), (2),
170-16 (3), (4) and (5) for other applicants.
170-17 <(b)> (c) Unless the commission issues a certificate that
170-18 neither the present or future convenience and necessity will be
170-19 adversely affected, the holder of a certificate shall not
170-20 discontinue, reduce, or impair service to a certified service area
170-21 or part thereof except for:
170-22 (1) nonpayment of charges;
170-23 (2) nonuse; or
170-24 (3) other similar reasons in the usual course of
170-25 business.
170-26 <(c)> (d) Any discontinuance, reduction, or impairment of
170-27 service, whether with or without approval of the commission, shall
171-1 be in conformity with and subject to such conditions, restrictions,
171-2 and limitations as the commission shall prescribe.
171-3 Sec. 58A. The holder of a certificate of convenience and
171-4 necessity or operating authority shall refuse to serve a customer
171-5 within its certified area if the holder of the certificate is
171-6 prohibited from providing the service under Section 212.012 or
171-7 232.0047, Local Government Code.
171-8 Sec. 58B. (a) Notwithstanding Section 58 of this Act, a
171-9 telecommunications utility that holds a certificate of operating
171-10 authority may:
171-11 (1) discontinue an optional service that is not
171-12 essential to the provision of basic local telecommunication
171-13 service; or
171-14 (2) cease operations within its certificated area.
171-15 (b) Before a utility discontinues an optional service or
171-16 ceases operations, the utility must provide notice of the intended
171-17 action to the commission and each affected customer in the manner
171-18 required by the commission.
171-19 (c) A utility is entitled to discontinue an optional service
171-20 on or after the 61st day after the date on which the utility
171-21 provides the notice required by Subsection (b) of this section.
171-22 (d) A utility may not cease operations within its
171-23 certificated area unless:
171-24 (1) another provider of basic local telecommunications
171-25 services has adequate facilities and capacity to serve the
171-26 customers in the certified area; and
171-27 (2) the commission authorizes the utility to cease
172-1 operations.
172-2 (e) The commission may not authorize a utility to cease
172-3 operations under Subsection (d) of this section before the 61st day
172-4 after the date on which the utility provides the notice required by
172-5 Subsection (b) of this section. The commission may enter an order
172-6 under this subsection administratively unless the commission
172-7 receives a complaint from an affected person.
172-8 Sec. 59. If the Commission determines that a purchaser,
172-9 assignee, or lessee is capable of providing adequate service, a
172-10 public utility may sell, assign, or lease a certificate of public
172-11 convenience and necessity or certificate of operating authority or
172-12 any rights obtained under the certificate. The sale, assignment,
172-13 or lease shall be on conditions prescribed by the commission.
172-14 Sec. 60. If a public utility in constructing or extending
172-15 its lines, plant, or system interferes or attempts to interfere
172-16 with the operation of a line, plant, or system of any other public
172-17 utility, the commission may issue an order prohibiting the
172-18 construction or extension or prescribing terms and conditions for
172-19 locating the lines, plants, or systems affected.
172-20 Sec. 60A. (a) Companies providing local exchange service
172-21 shall negotiate the terms and conditions of printed directory
172-22 listings and directory assistance within overlapping certificated
172-23 areas.
172-24 (b) On complaint by the local exchange company or the holder
172-25 of the certificate of convenience and necessity or certificate of
172-26 operating authority or service provider certificate of operating
172-27 authority, the commission may resolve disputes between the parties
173-1 and, if necessary, issue an order setting the terms and conditions
173-2 of the directory listings or directory assistance. Only the local
173-3 exchange company and the holder of the certificate may file a
173-4 complaint under this subsection.
173-5 (c) This section does not affect the authority of a local
173-6 exchange company to voluntarily conduct negotiations with an
173-7 applicant for a certificate of convenience and necessity or
173-8 certificate of operating authority or a service provider
173-9 certificate of operating authority.
173-10 Sec. 61. (a) After notice and hearing, the commission may:
173-11 (1) order a public utility to provide specified
173-12 improvements in its service in a defined area, if service in such
173-13 area is inadequate or is substantially inferior to service in a
173-14 comparable area and it is reasonable to require the company to
173-15 provide such improved service;
173-16 (2) order two or more public utilities to establish
173-17 specified facilities for the interconnecting service; and
173-18 (3) order a telephone company or telephone companies
173-19 to provide extended area toll-free service within a specified
173-20 metropolitan area where there is a sufficient community of interest
173-21 within the area and such service can reasonably be provided.
173-22 Sec. 61A. (a) The right of providers of pay telephone
173-23 service to set their rates and charges and the commission's
173-24 authority over the pay telephone service rates of local exchange
173-25 companies is expressly limited by this section as follows:
173-26 (1) Free Calls. Providers of pay telephone service shall
173-27 not impose on pay phone end users any charge for local directory
174-1 assistance or calls made pursuant to the 9-1-1 Emergency Number Act
174-2 (Chapter 772, Health and Safety Code.)
174-3 (2) Local Coin Calls. Providers of pay telephone service
174-4 shall not charge end users more than 25 cents for each 5 minutes,
174-5 or increment thereof, of a pay telephone call within the local
174-6 exchange company's toll-free local calling area; provided that the
174-7 total charge for such local call shall not exceed the maximum
174-8 amount allowed by Sec. 93B of this Act. This section does not
174-9 prohibit the commission from establishing a higher charge for each
174-10 5 minutes of use or increment thereof, following the completion of
174-11 the proceeding referenced in Section 47B(g). This subsection does
174-12 not limit the charge that may be imposed for a credit card or
174-13 operator handled call.
174-14 (3) Set Use Fee. Pay telephone providers may impose a set
174-15 use fee not exceeding 50 cents for each call made from a pay
174-16 telephone, provided that: (a) the pay telephone is in compliance
174-17 with the commission rules regarding access to local exchange
174-18 operators and to the interexchange carrier of the end user's
174-19 choice; (b) the imposition of the set use fee is not inconsistent
174-20 with federal law; (c) the fee is not imposed for any local call,
174-21 9-1-1 call or local directory assistance call; (d) no provider of
174-22 pay telephone service shall require the end user to deposit coins
174-23 in the pay telephone pursuant to this section as a condition of
174-24 making a credit card or operator-handled call. The commission may
174-25 not impose on local exchange companies the duty or obligation to
174-26 record such use, bill and collect for it, or to remit the fee to
174-27 providers of pay telephone service.
175-1 (4) Credit Card and Operator Handled Calls. Providers of
175-2 pay telephone service may not charge for credit card or operator
175-3 handled calls any rate or charge that is an amount greater than
175-4 the rates and charges allowed to be charged as published in the
175-5 eight newspapers having the largest circulation in Texas on May 15,
175-6 1995, provided that the payphone rates of local exchange companies
175-7 subject to Article IV are governed by that article.
175-8 (b) Registration. The commission shall adopt rules within
175-9 180 days from the effective date of this Act which require every
175-10 provider of pay telephone service not holding a certificate of
175-11 convenience and necessity to register with the commission. A
175-12 provider of pay telephone service must be registered with the
175-13 commission in order to do business in Texas.
175-14 (c) Enforcement. The commission shall have the authority
175-15 to order disconnection of service for up to one year for repeat
175-16 violators of the commission rules.
175-17 (d) "Providers of pay telephone" as used herein means
175-18 subscribers to customer owned pay telephone service and local
175-19 exchange companies providing pay telephone service and any other
175-20 entity providing pay telephone service.
175-21 (e) The commission may adopt rules regarding information to
175-22 be posted on pay telephone instruments, but in no event may those
175-23 rules require providers of pay telephone service or an affiliate
175-24 thereof to police the compliance with such rules by another
175-25 provider of pay telephone service.
175-26 Sec. 62. (a) The commission at any time after notice and
175-27 hearing may revoke or amend any certificate of convenience and
176-1 necessity or certificate of operating authority if it finds that
176-2 the certificate holder has never provided or is no longer providing
176-3 service in the area, or part of the area, covered by the
176-4 certificate.
176-5 (b) When the certificate of any public utility is revoked or
176-6 amended, the commission may require one or more public utilities to
176-7 provide service in the area in question.
176-8 ARTICLE <VIII.> XI. SALE OF PROPERTY AND MERGERS.
176-9 Sec. 63. No public utility may sell, acquire, lease, or rent
176-10 any plant as an operating unit or system in this state for a total
176-11 consideration in excess of $100,000 or merge or consolidate with
176-12 another public utility operating in this state unless the public
176-13 utility reports such transaction to the commission within a
176-14 reasonable time. All transactions involving the sale of 50 percent
176-15 or more of the stock of a public utility shall also be reported to
176-16 the commission within a reasonable time. On the filing of a report
176-17 with the commission, the commission shall investigate the same with
176-18 or without public hearing, to determine whether the action is
176-19 consistent with the public interest. All such investigations shall
176-20 be completed and a Final Order entered within 90 days of
176-21 notification. If an order is not entered, such action shall be
176-22 deemed consistent with the public interest. In reaching its
176-23 determination, the commission shall take into consideration the
176-24 reasonable value of the property, facilities, or securities to be
176-25 acquired, disposed of, merged or consolidated. If the commission
176-26 finds that such transactions are not in the public interest, the
176-27 commission shall take the effect of the transaction into
177-1 consideration in the ratemaking proceedings and disallow the effect
177-2 of such transaction if it will unreasonably affect rates or
177-3 service. The provisions of this section shall not be construed as
177-4 being applicable to the purchase of units or property for
177-5 replacement or to the addition to the facilities of the public
177-6 utility by construction. This section shall not apply to electing
177-7 local exchange companies under Articles IV and V or to companies
177-8 which receive certificates of operating authority or service
177-9 provider certificates of operating authority under Section 54.
177-10 Sec. 64. No public utility may purchase voting stock in
177-11 another public utility doing business in Texas, unless the utility
177-12 reports such purchase to the commission.
177-13 Sec. 65. No public utility may loan money, stocks, bonds,
177-14 notes, or other evidences of indebtedness to any corporation or
177-15 person owning or holding directly or indirectly stock of the public
177-16 utility unless the public utility reports the transaction to the
177-17 commission within a reasonable time.
177-18 ARTICLE <IX.> XII. RELATIONS WITH AFFILIATED INTERESTS
177-19 Sec. 67. The commission shall have jurisdiction over
177-20 affiliated interests having transactions with public utilities
177-21 under the jurisdiction of the commission to the extent of access to
177-22 all accounts and records of such affiliated interests relating to
177-23 such transactions, including but in no way limited to accounts and
177-24 records of joint or general expenses, any portion of which may be
177-25 applicable to such transactions.
177-26 Sec. 68. The commission may require the disclosure of the
177-27 identity and respective interests of every owner of any substantial
178-1 interest in the voting securities of any public utility or its
178-2 affiliated interest. One percent or more is a substantial interest
178-3 within the meaning of this section.
178-4 ARTICLE <X.> XIII. JUDICIAL REVIEW
178-5 Sec. 69. Any party to a proceeding before the commission is
178-6 entitled to judicial review under the substantial evidence rule.
178-7 The commission shall be a party defendant in any such proceeding
178-8 represented by the attorney general.
178-9 Sec. 70. Any party represented by counsel who alleges that
178-10 existing rates are excessive or that those prescribed by the
178-11 commission are excessive, and who is a prevailing party in
178-12 proceedings for review of a commission order or decision, may in
178-13 the same action recover against the regulation fund reasonable fees
178-14 for attorneys and expert witnesses and other costs for its efforts
178-15 before the commission and the court, the amount of such attorneys'
178-16 fees to be fixed by the court. On a finding by the court that an
178-17 action under this article was groundless and brought in bad faith
178-18 and for the purpose of harassment, the court may award to the
178-19 defendant public utility the reasonable attorneys' fees.
178-20 ARTICLE <XI.> XIV. VIOLATIONS AND ENFORCEMENT
178-21 Sec. 71. Whenever it appears to the commission that any
178-22 public utility or any other person or corporation is engaged in, or
178-23 is about to engage in, any act in violation of this Act or of any
178-24 order, rule, or regulation of the commission entered or adopted
178-25 under the provisions of this Act, or that any public utility or any
178-26 other person or corporation is failing to comply with the
178-27 provisions of this Act or with any such rule, regulation, or order,
179-1 the attorney general on request of the commission, in addition to
179-2 any other remedies provided herein, shall bring an action in a
179-3 court of competent jurisdiction in the name of and on behalf of the
179-4 commission against such public utility or other person or
179-5 corporation to enjoin the commencement or continuation of any such
179-6 act, or to require compliance with such Act, rule, regulation, or
179-7 order.
179-8 Sec. 71A. (a) At the request of the commission, the
179-9 attorney general shall bring suit for the appointment of a receiver
179-10 to collect the assets and carry on the business of a water or sewer
179-11 utility that violates a final order of the commission or allows any
179-12 property owned or controlled by it to be used in violation of a
179-13 final order of the commission.
179-14 (b) The court shall appoint a receiver if such appointment
179-15 is necessary to guarantee the collection of assessments, fees,
179-16 penalties, or interest, to guarantee continued service to the
179-17 customers of the utility, or to prevent continued or repeated
179-18 violation of the final order.
179-19 (c) The receiver shall execute a bond to assure the proper
179-20 performance of the receiver's duties in an amount to be set by the
179-21 court.
179-22 (d) After appointment and execution of bond the receiver
179-23 shall take possession of the assets of the utility specified by the
179-24 court. Until discharged by the court, the receiver shall perform
179-25 the duties that the court directs to preserve the assets and carry
179-26 on the business of the utility and shall strictly observe the final
179-27 order involved.
180-1 (e) Upon a showing of good cause by the utility, the court
180-2 may dissolve the receivership and order the assets and control of
180-3 the business returned to the utility.
180-4 Sec. 71B. The receiver may, subject to the approval of the
180-5 court and after giving notice to all interested parties, sell or
180-6 otherwise dispose of real or personal property, or any part
180-7 thereof, of a water or sewer utility against which a proceeding has
180-8 been brought under this article for the purpose of paying for the
180-9 costs incurred in the operation of the receivership. Said costs
180-10 shall include but are not limited to the payment of fees to the
180-11 receiver for his services; payment of fees to attorneys,
180-12 accountants, engineers, or any other person or entity which
180-13 provides goods or services necessary to the operation of the
180-14 receivership; payment of costs incurred in ensuring any property
180-15 owned or controlled by a water or sewer utility is not used in
180-16 violation of a final copy of the commission.
180-17 Sec. 72. (a) Any public utility, water supply or sewer
180-18 service corporation, customer-owned pay telephone service provider
180-19 for purposes of Section 93A of this Act, or affiliated interest
180-20 that knowingly violates a provision of this Act, fails to perform a
180-21 duty imposed on it, or fails, neglects, or refuses to obey an
180-22 order, rule, regulation, direction, or requirement of the
180-23 commission or decree or judgment of a court, shall be subject to a
180-24 civil penalty of not less than $1,000 nor more than $5,000 for each
180-25 offense.
180-26 (b) A public utility<, water supply or sewer service
180-27 corporation,> or affiliated interest commits a separate offense
181-1 each day it continues to violate the provisions of Subsection (a)
181-2 of this section.
181-3 (c) The attorney general shall institute suit on his own
181-4 initiative or at the request of, in the name of, and on behalf of
181-5 the commission, in a court of competent jurisdiction to recover the
181-6 penalty under this section.
181-7 Sec. 73. (a) Any member of the commission, or any officer
181-8 or director of a public utility or affiliated interest, shall be
181-9 subject to a civil penalty of $1,000 for each and every knowing
181-10 violation of Section 6 of this Act, such penalty to be recovered in
181-11 a suit filed in a court of competent jurisdiction by the attorney
181-12 general on his own initiative or at the request of, in the name of,
181-13 and on behalf of, the commission.
181-14 (b) Any person, other than an officer or director of a
181-15 public utility or affiliated interest or a member of the
181-16 commission, shall be subject to a civil penalty of $500 for each
181-17 and every knowing violation of Section 6 of this Act, such penalty
181-18 to be recovered in a suit filed in a court of competent
181-19 jurisdiction by the attorney general on his own initiative or at
181-20 the request of, in the name of, and on behalf of the commission.
181-21 (c) Any member, officer, or employee of the commission found
181-22 in any action by a preponderance of the evidence to have violated
181-23 any provision of Section 6 of this Act shall be removed from his
181-24 office or employment.
181-25 Sec. 73A. (a) If a public utility or any other person or
181-26 corporation under the jurisdiction of the railroad commission
181-27 pursuant to this Act violates this Act and the violation results in
182-1 pollution of the air or water of this state or poses a threat to
182-2 the public safety, the public utility or any other person may be
182-3 assessed a civil penalty by the railroad commission.
182-4 (b) The penalty may not exceed $10,000 a day for each
182-5 violation. Each day a violation continues may be considered a
182-6 separate violation for purposes of penalty assessments.
182-7 (c) In determining the amount of the penalty, the railroad
182-8 commission shall consider the public utility's, person's or
182-9 corporation's history of previous violation of this Act, the
182-10 seriousness of the violation, any hazard to the health or safety of
182-11 the public, and the demonstrated good faith of the permittee or
182-12 public utility, person, or corporation charged.
182-13 (d) A civil penalty may be assessed only after the public
182-14 utility, person, or corporation charged with a violation described
182-15 under Subsection (a) of this section has been given an opportunity
182-16 for a public hearing.
182-17 (e) If a public hearing has been held, the railroad
182-18 commission shall make finding of fact, and it shall issue a written
182-19 decision as to the occurrent of the violation and the amount of the
182-20 penalty that is warranted, incorporating, when appropriate, an
182-21 order requiring that the penalty be paid.
182-22 (f) If appropriate, the railroad commission shall
182-23 consolidate the hearings with other proceedings under this Act.
182-24 (g) If the public utility, person, or corporation charged
182-25 with the violation fails to avail itself of the opportunity for a
182-26 public hearing, a civil penalty may be assessed by the railroad
182-27 commission after it has determined that a violation did occur and
183-1 the amount of the penalty that is warranted.
183-2 (h) The railroad commission shall then issue an order
183-3 requiring that the penalty be paid.
183-4 (i) On the issuance of an order finding that a violation has
183-5 occurred, the railroad commission shall inform the public utility,
183-6 person, or corporation charged within 30 days of the amount of the
183-7 penalty.
183-8 (j) Within the 30-day period immediately following the day
183-9 on which the decision or order is final as provided in Section
183-10 16(c), Administrative Procedure and Texas Register Act (Article
183-11 6252-13a, Vernon's Texas Civil Statutes), the public utility
183-12 person, or corporation charged with the penalty shall:
183-13 (1) pay the penalty in full; or
183-14 (2) if the public utility, person, or corporation
183-15 seeks judicial review of either the amount of the penalty or the
183-16 fact of the violation, or both:
183-17 (A) forward the amount to the railroad
183-18 commission for placement in an escrow account; or
183-19 (B) in lieu of payment into escrow, post a
183-20 supersedeas bond with the railroad commission under the following
183-21 conditions. If the decision or order being appealed is the first
183-22 final railroad commission decision or order assessing any
183-23 administrative penalty against the public utility, person, or
183-24 corporation, regardless of the finality of judicial review of any
183-25 previous decision or order, the railroad commission may accept a
183-26 supersedeas bond. Each supersedeas bond shall be for the amount of
183-27 the penalty and in a form approved by the railroad commission and
184-1 shall stay the collection of the penalty until all judicial review
184-2 of the decision or order is final.
184-3 (k) If through judicial review of the decision or order it
184-4 is determined that no violation occurred or that the amount of the
184-5 penalty should be reduced or not assessed, the railroad commission
184-6 shall, within the 30-day period immediately following that
184-7 determination, if the penalty has been paid to the railroad
184-8 commission, remit the appropriate amount to the public utility,
184-9 person, or corporation with accrued interest, or where a
184-10 supersedeas bond has been posted, the railroad commission shall
184-11 execute a release of such bond.
184-12 (l) Failure to forward the money to the railroad commission
184-13 within the time provided by Subsection (j) of this section results
184-14 in a waiver of all legal rights to contest the violation or the
184-15 amount of the penalty.
184-16 (m) Civil penalties owed under this Section may be recovered
184-17 in a civil action brought by the attorney general at the request of
184-18 the railroad commission.
184-19 (n) Judicial review of the order or decision of the railroad
184-20 commission assessing the penalty shall be under the substantial
184-21 evidence rule and shall be instituted by filing a petition with the
184-22 district court of Travis County, Texas, and not elsewhere, as
184-23 provided for in Section 19, Administrative Procedure and Texas
184-24 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
184-25 Sec. 74. (a) Except as provided by Section 87B of this Act,
184-26 any person or persons who willfully and knowingly violate the
184-27 provisions of this Act shall be guilty of a third degree felony.
185-1 (b) All penalties accruing under this Act shall be
185-2 cumulative and a suit for the recovery of any penalty shall not be
185-3 a bar to or affect the recovery of any other penalty, or be a bar
185-4 to any criminal prosecution against any public utility or any
185-5 officer, director, agent, or employee thereof or any other
185-6 corporation or person.
185-7 Sec. 75. If any person fails to comply with any lawful order
185-8 of the commission or with any subpoena or subpoena duces tecum or
185-9 if any witness refuses to testify about any matter on which he may
185-10 be lawfully interrogated, the commission may apply to any court of
185-11 competent jurisdiction to compel obedience by proceedings for
185-12 contempt.
185-13 Sec. 76. Fines and penalties collected under this Act in
185-14 other than criminal proceedings shall be paid to the commission and
185-15 paid by the commission to the state treasury to be placed in the
185-16 general revenue fund.
185-17 Sec. 77. Suits for injunction or penalties under the
185-18 provision of this Act may be brought in Travis County, in any
185-19 county where such violation is alleged to have occurred, or in the
185-20 county or residence of any defendant.
185-21 ARTICLE <XII> XV. COMMISSION FINANCING
185-22 Sec. 78. An assessment is hereby imposed upon each public
185-23 utility, including interexchange telecommunications utilities,
185-24 within the commission's jurisdiction serving the ultimate consumer
185-25 equal to one-sixth of one percent of its gross receipts from rates
185-26 charged the ultimate consumers in Texas for the purpose of
185-27 defraying the costs and expenses incurred in the administration of
186-1 this Act. Thereafter the commission shall, subject to the approval
186-2 of the Legislature, adjust this assessment to provide a level of
186-3 income sufficient to fund the commission and the office of public
186-4 utility counsel. Nothing in this Act or any other provision of law
186-5 shall prohibit interexchange telecommunications carriers who do not
186-6 provide local exchange telephone service from collecting the fee
186-7 imposed under this Act as an additional item separately stated on
186-8 the customer bill as "Utility Gross Receipts Assessment."
186-9 Sec. 79. All assessments shall be due on August 15 of each
186-10 year. Any public utility may instead make quarterly payments due
186-11 on August 15, November 15, February 15, and May 15 of each year.
186-12 There shall be assessed as a penalty an additional fee of 10
186-13 percent of the amount due for any late payment. Fees delinquent
186-14 for more than 30 days shall draw interest at the rate of 12 percent
186-15 per annum on the assessment and penalty due.
186-16 Sec. 79A. (a) For the assessments covered by this section,
186-17 assessments are due as provided by this section notwithstanding
186-18 Section 79 of this Act, based on a public utility's estimate of its
186-19 gross receipts.
186-20 (b) For the assessment due August 15, 1995, 50 percent of
186-21 the assessment must be paid by August 15, 1994, and 50 percent must
186-22 be paid by February 15, 1995.
186-23 (c) For the assessment due August 15, 1996, 50 percent of
186-24 the assessment must be paid by August 15, 1995, and 50 percent must
186-25 be paid by February 15, 1996.
186-26 (d) For the assessment due August 15, 1997, 50 percent of
186-27 the assessment must be paid by August 15, 1996, and the remainder
187-1 must be paid by August 15, 1997.
187-2 (e) Any assessment amounts underpaid on assessments due on
187-3 August 15, 1995, or August 15, 1996, must be paid by those
187-4 respective dates. Any assessment amounts overpaid shall be
187-5 credited against following assessments.
187-6 (f) This section expires September 1, 1997.
187-7 Sec. 80. All fees, penalties, and interest paid under the
187-8 provisions of Sections 78 and 79 of this article shall be collected
187-9 by the comptroller of public accounts and paid into the general
187-10 revenue fund. The commission shall notify the comptroller of
187-11 public accounts of any adjustment of the assessment imposed in
187-12 Section 78 when made.
187-13 Sec. 81. The budget of the commission shall be subject to
187-14 legislative approval as part of the appropriations act.
187-15 Sec. 82. The commission shall keep such accounting records
187-16 as required by the comptroller. The financial transactions of the
187-17 commission are subject to audit by the state auditor in accordance
187-18 with Chapter 321, Government Code.
187-19 ARTICLE <XIII> XVI. MISCELLANEOUS PROVISIONS
187-20 Sec. 83. (a) Any affected person may complain to the
187-21 regulatory authority in writing setting forth any act or thing done
187-22 or omitted to be done by any public utility in violation or claimed
187-23 violation of any law which the regulatory authority has
187-24 jurisdiction to administer, or of any order, ordinance, rule, or
187-25 regulation of the regulatory authority. The commission shall keep
187-26 an information file about each complaint filed with the commission
187-27 relating to a utility. The commission shall retain the file for a
188-1 reasonable period.
188-2 (b) If a written complaint is filed with the commission
188-3 relating to a utility, the commission, at least as frequently as
188-4 quarterly and until final disposition of the complaint, shall
188-5 notify the parties to the complaint of the status of the complaint
188-6 unless the notice would jeopardize an undercover investigation.
188-7 (c) Any affected person may complain to the regulatory
188-8 authority in writing setting forth any act or thing done or not
188-9 done by any recreational vehicle park owner that provides metered
188-10 electric service under Article 1446d-2, Revised Statutes, in
188-11 violation or claimed violation of any law that the regulatory
188-12 authority has jurisdiction to administer or of any order,
188-13 ordinance, rule, or regulation of the regulatory authority. The
188-14 commission shall keep an information file about each complaint
188-15 filed with the commission relating to a recreational vehicle park
188-16 owner. The commission shall retain the file for a reasonable
188-17 period. The commission, quarterly or more often until final
188-18 disposition of the written complaint, shall notify the parties to
188-19 the complaint of the status of the complaint unless the notice
188-20 would jeopardize an undercover investigation.
188-21 Sec. 84. A record shall be kept of all proceedings had
188-22 before the regulatory authority, and all the parties shall be
188-23 entitled to be heard in person or by an attorney.
188-24 Sec. 85. During the pendency of an appeal, the district
188-25 court, the court of civil appeals, or the supreme court, as the
188-26 case may be, may stay or suspend, in whole or in part, the
188-27 operation of the regulatory authority order, ruling, or decision
189-1 and such courts in granting or refusing a stay or suspension shall
189-2 act in accordance with the practice of courts exercising equity
189-3 jurisdiction.
189-4 Sec. 87. (a) The regulatory authority shall assume
189-5 jurisdiction and all powers and duties of regulation under this Act
189-6 on January 1, 1976, except as provided in Subsection (b) of this
189-7 section.
189-8 (b) The regulatory authority shall assume jurisdiction over
189-9 rates and service of public utilities on September 1, 1976.
189-10 Sec. 87A. (a) The provisions of this section apply
189-11 notwithstanding any other provision of this Act.
189-12 (b) Water and sewer utility property in service which was
189-13 acquired from an affiliate or developer prior to September 1, 1976,
189-14 included by the utility in its rate base shall be included in all
189-15 ratemaking formulae and at the installed cost of the property
189-16 rather than the price set between the entities. Unless the funds
189-17 for this property are provided by explicit customer agreements, the
189-18 property shall be considered invested capital and shall not be
189-19 considered contributions in aid of construction or
189-20 customer-contributed capital.
189-21 (c) Depreciation expense included in cost of service shall
189-22 include depreciation on all currently used, depreciable utility
189-23 property owned by the utility.
189-24 Sec. 87B. A telecommunications utility providing dedicated
189-25 line long distance service (TEXAN) to the state on August 31, 1987,
189-26 shall continue to have this type of service available to the state
189-27 on a month-to-month contract basis until September 1, 1988. The
190-1 contract will become effective on September 1, 1987, and shall be
190-2 under terms and conditions negotiated by the state and the utility
190-3 in accordance with the amounts appropriated by the General
190-4 Appropriations Act for this purpose. The State Purchasing and
190-5 General Services Commission shall perform all actions necessary to
190-6 insure that one or more contracts for telecommunications services
190-7 as provided in Article 10 of the State Purchasing and General
190-8 Services Act (Article 601b, Vernon's Texas Civil Statutes) (TEXAN
190-9 II) are awarded pursuant to the requirements of the State
190-10 Purchasing and General Services Act (Article 601b, Vernon's Texas
190-11 Civil Statutes) by October 15, 1987, and that TEXAN II is
190-12 operational no later than August 31, 1988. Those funds
190-13 appropriated by the General Appropriations Act for extending the
190-14 existing TEXAN contract which are not expended in fiscal year 1988
190-15 shall be transferred to the State Purchasing and General Services
190-16 Commission for the sole purpose of offsetting the expenses
190-17 associated with the administration of the TEXAN II network. If,
190-18 during the period of time this section is in effect, any
190-19 supplemental or other telecommunications service is required by the
190-20 state, it may be acquired from vendors other than the utility or
190-21 utilities providing TEXAN or TEXAN II service.
190-22 Sec. 87C. (a) This section applies only to the provision of
190-23 caller identification service.
190-24 (b) A person may not offer a caller identification service
190-25 unless the person obtains written authorization from the
190-26 commission.
190-27 (c) The commission shall require that a provider of caller
191-1 identification service offer per-call blocking at no charge to each
191-2 telephone subscriber in the specific area in which the service is
191-3 offered.
191-4 (d) The commission shall require that a provider offer
191-5 per-line blocking at no charge to a particular customer if the
191-6 commission receives from the customer written certification that
191-7 the customer has a compelling need for per-line blocking. If a
191-8 customer later removes the per-line block, the provider may assess
191-9 a service order charge relating to administrative costs in an
191-10 amount approved by the commission to reinstate the per-line block.
191-11 The commission may prescribe and assess fees and assessments from
191-12 providers of caller identification service in an amount sufficient
191-13 to cover the additional expenses incurred by the commission in
191-14 implementing the customer certification provisions of this
191-15 subsection. Reports, records, and information received under this
191-16 subsection by the commission or by a provider of caller
191-17 identification service are confidential and may be used only for
191-18 the purposes of administering this subsection.
191-19 (e) The commission may only prescribe in relation to
191-20 blocking the requirements prescribed by Subsections (c) and (d) of
191-21 this section.
191-22 (f) A person may not use a caller identification service to
191-23 compile and sell specific local call information without the
191-24 affirmative consent and approval of the originating telephone
191-25 customer. This subsection does not prohibit the provider from:
191-26 (1) verifying network performance or from testing the
191-27 provision of caller identification service;
192-1 (2) compiling, using, and disclosing aggregate caller
192-2 identification information; or
192-3 (3) complying with applicable law or legal process.
192-4 (g) This section does not apply to:
192-5 (1) an identification service that is used within the
192-6 same limited system, including a central office based PBX-type
192-7 system;
192-8 (2) information that is used on a public agency's
192-9 emergency telephone line or on a line that receives the primary
192-10 emergency telephone number (9-1-1);
192-11 (3) information passed between telecommunications
192-12 utilities, enhanced service providers, or other entities that is
192-13 necessary for the set-up, processing, transmission, or billing of
192-14 telecommunications or related services;
192-15 (4) information provided in compliance with applicable
192-16 law or legal process; or
192-17 (5) an identification service provided in connection
192-18 with a "700," "800," or "900" access code telecommunications
192-19 service.
192-20 (h) In this section:
192-21 (1) "Caller identification information" means:
192-22 (A) the telephone listing number and/or name of
192-23 the customer from whose telephone instrument a telephone number is
192-24 dialed; or
192-25 (B) other information that may be used to
192-26 identify the specific originating number or originating location of
192-27 a wire or electronic communication transmitted by a telephone
193-1 instrument.
193-2 (2) "Caller identification service" means a service
193-3 offered by a telecommunications utility that provides caller
193-4 identification information to a device capable of displaying the
193-5 information.
193-6 (3) "Per-call blocking" means a telecommunications
193-7 service that prevents the transmission of caller identification
193-8 information to a called party on an individual call if the calling
193-9 party acts affirmatively to prevent the transmission of the caller
193-10 identification information.
193-11 (4) "Per-line blocking" means a telecommunications
193-12 service that prevents the transmission of caller identification
193-13 information to a called party on every call unless the calling
193-14 party acts affirmatively to release the caller identification
193-15 information.
193-16 (i) CRMS providers may offer caller identification services
193-17 under the same terms and conditions outlined in Subsections (c),
193-18 (d), (e), and (f) of this section.
193-19 Sec. 88A. The commission may serve as a resource center to
193-20 assist school districts in developing energy efficient facilities.
193-21 As such, the commission may:
193-22 (1) present to school districts programs relating to
193-23 managing energy, training school-plant operators, and designing
193-24 energy efficient buildings;
193-25 (2) provide school districts with technical assistance
193-26 in managing energy;
193-27 (3) collect and distribute information relating to
194-1 energy management in school facilities; and
194-2 (4) offer to educators energy resource workshops and
194-3 may make available to educators a film library on energy-related
194-4 matters and energy education lesson packages.
194-5 Sec. 89. This Act shall be construed liberally to promote
194-6 the effectiveness and efficiency of regulation of public utilities
194-7 to the extent that such construction preserves the validity of this
194-8 Act and its provisions. The provisions of this Act shall be
194-9 construed to apply so as not to conflict with any authority of the
194-10 United States.
194-11 Sec. 90. (a) Articles 1119, 1121, 1122, 1124, 1125, 1126,
194-12 1127, 1128, 1129, 1130, 1131, 1132, 1268, 1423, 1424, and 1425,
194-13 Revised Civil Statutes of Texas, 1925, as amended; Section 8a,
194-14 Chapter 283, Acts of the 40th Legislature, Regular Session, 1927
194-15 (Article 1011i, Vernon's Texas Civil Statutes) and all other laws
194-16 and parts of laws in conflict with this Act are repealed effective
194-17 September 1, 1976.
194-18 (b) All rules and regulations promulgated by regulatory
194-19 authorities in the exercise of their jurisdiction over public
194-20 utilities, as defined in this Act, shall remain in effect until
194-21 such time as the commission or railroad commission promulgates
194-22 provisions applicable to the exercise of the commission's or
194-23 railroad commission's jurisdiction over public utilities.
194-24 Sec. 91. The Public Utility Commission is authorized to
194-25 establish criteria and guidelines with the utility industry
194-26 relating to procedures employed by the industry in terminating
194-27 services to the elderly and disabled.
195-1 Sec. 92. If any provision of this Act or the application
195-2 thereof to any person or circumstances is held invalid, such
195-3 invalidity shall not affect other provisions or applications of
195-4 this Act which can be given effect without the invalid provision or
195-5 application, and to this end the provisions of this Act are
195-6 declared to be severable.
195-7 Sec. 93. Local exchange companies' rates for interexchange
195-8 telecommunications services must be statewide average rates unless
195-9 the commission on application and hearing orders otherwise.
195-10 Nothing in this section limits a local exchange company's ability
195-11 to enter into contracts for high speed private line services of
195-12 1.544 megabits or greater under the provisions of Section 18 of
195-13 this Act.
195-14 Sec. 93A. (a) A pay telephone service provider may not
195-15 display the telephone number of a pay telephone that cannot receive
195-16 a telephone call.
195-17 (b) A pay telephone service provider shall place in a
195-18 conspicuous location on each pay telephone that cannot receive
195-19 telephone calls a notice stating in letters one-fourth inch high:
195-20 "THIS TELEPHONE CANNOT RECEIVE TELEPHONE CALLS."
195-21 (c) A pay telephone service provider that violates a
195-22 provision of this section or a rule or order adopted by the
195-23 commission under this section is subject to a civil penalty as
195-24 provided by Section 72 of this Act, unless such provider, within 14
195-25 days of receiving written notice of a violation, takes corrective
195-26 action to comply with the provisions of this section.
195-27 (d) The commission has jurisdiction over all pay telephone
196-1 service providers to the extent necessary to enforce this section
196-2 regardless of whether a pay telephone service provider is a
196-3 telecommunications utility regulated under this Act.
196-4 (e) The commission may adopt rules and establish procedures
196-5 to enforce this section.
196-6 Sec. 93A. (a) To address telephone calling needs between
196-7 nearby telephone exchanges, the commission shall initiate a
196-8 rulemaking proceeding to approve rules to provide for an expedited
196-9 hearing to allow the expanding of toll-free calling areas according
196-10 to the following criteria:
196-11 (1) Toll-free calling boundaries may only be expanded
196-12 under this section after the filing of a petition signed by the
196-13 lesser of five percent of the subscribers or 100 subscribers within
196-14 an exchange. If such a petition is filed with the commission, the
196-15 commission shall order the local exchange company to provide for
196-16 the balloting of its subscribers within the petitioning exchange
196-17 and, if there is an affirmative vote of at least 70 percent of
196-18 those responding, the commission shall consider the request.
196-19 (2) The commission shall provide for the expansion of
196-20 toll-free calling areas for each local exchange customer in the
196-21 petitioning exchange if the petitioning exchange serves not more
196-22 than 10,000 lines and if:
196-23 (A) the petitioning exchange is located within
196-24 22 miles of the exchange requested for toll-free calling service;
196-25 or
196-26 (B) the petitioning exchange shares a community
196-27 of interest with the exchange requested for toll-free calling
197-1 service. For purposes of this paragraph, "community of interest"
197-2 includes areas that have a relationship because of schools,
197-3 hospitals, local governments, business centers, and other
197-4 relationships the unavailability of which would cause a hardship to
197-5 the residents of the area but need not include an area where the
197-6 affected central offices are more than 50 miles apart.
197-7 (3)(A) The local exchange company shall recover all of
197-8 its costs incurred and all loss-of revenue from any expansion of
197-9 toll-free calling areas under this section through a request other
197-10 than a revenue requirement showing by:
197-11 (i) a monthly fee for toll-free calling
197-12 service of not more than $3.50 per line for residential customers
197-13 nor more than $7 per line for business customers, to be collected
197-14 from all such residential or business customers in the petitioning
197-15 exchange and only until the local exchange company's next general
197-16 rate case;
197-17 (ii) a monthly fee for toll-free calling
197-18 service for all of the local exchange company's local exchange
197-19 service customers in the state in addition to the company's current
197-20 local exchange rates; or
197-21 (iii) both (i) and (ii).
197-22 (B) A local exchange company may not recover
197-23 regulatory case expenses under this section by surcharging
197-24 petitioning exchange subscribers.
197-25 (b)(1) The commission and a local exchange company are
197-26 not required to comply with this section with regard to a
197-27 petitioning exchange or petitioned exchange if:
198-1 (A) the commission determines that there has
198-2 been a good and sufficient showing of a geographic or technological
198-3 infeasibility to serve the area;
198-4 (B) the local exchange company has less than
198-5 10,000 lines;
198-6 (C) the petitioning or petitioned exchange is
198-7 served by a cooperative;
198-8 (D) extended area service or extended
198-9 metropolitan service is currently available between the petitioning
198-10 and petitioned exchanges; or
198-11 (E) the petitioning or petitioned exchange is a
198-12 metropolitan exchange.
198-13 (2) The commission may expand the toll-free calling
198-14 area into an exchange not within a metropolitan exchange but within
198-15 the local calling area contiguous to a metropolitan exchange that
198-16 the commission determines to have a community of interest
198-17 relationship with the petitioning exchange. For the purposes of
198-18 this section, metropolitan exchange, local calling area of a
198-19 metropolitan exchange, and exchange have the meanings and
198-20 boundaries as defined and approved by the commission on the
198-21 effective date of this section. However, under no circumstances
198-22 shall a petitioning or petitioned exchange be split in the
198-23 provision of a toll-free calling area.
198-24 (c) The commission may, in order to promote the wide
198-25 dispersion of pay telephones, either exempt such telephones from
198-26 the provisions of this section or change the rates to be charged
198-27 from such telephones in an amount sufficient to promote this goal.
199-1 Sec. 93B. The amount a hotel or motel charges for a local
199-2 telephone call, a credit card telephone call, a collect telephone
199-3 call, or any other local telephone call, or any other local
199-4 telephone call for which assistance from the hotel or motel
199-5 operator is not required may not exceed 50 cents.
199-6 Sec. 93C. (a) A telecommunications utility that transports
199-7 or provides a "1-900" service under a contract authorized by
199-8 Article 42.131 or 42.18, Code of Criminal Procedure, and its
199-9 subsequent amendments that is used by a defendant under the
199-10 supervision of a community supervision and corrections department
199-11 or the pardons and paroles division of the Texas Department of
199-12 Criminal Justice to pay a fee or cost or to comply with telephone
199-13 reporting requirements may adjust or authorize the adjustment of an
199-14 end-user's bill for those fees or costs or charges for reporting
199-15 only with the consent of the contracting community supervision and
199-16 corrections department or the contracting pardons and paroles
199-17 division of the Texas Department of Criminal Justice.
199-18 (b) This section applies only to an intrastate "1-900"
199-19 service.
199-20 Sec. 93D. (a) Local exchange companies serving in excess of
199-21 1,000,000 access lines in this state which provide mandatory two
199-22 way extended area service to customers for a separately stated
199-23 monthly charge in excess of $3.50 per line for residential
199-24 customers and $7.00 per line for business customers shall file with
199-25 the Commission to reduce its monthly rates for such extended area
199-26 service to $3.50 per line for residential customers and $7.00 per
199-27 line for business customers. The local exchange company shall
200-1 recover all of its costs incurred and all loss of revenue which
200-2 results from implementation of such rates in the manner set out in
200-3 Section 93A(a)(3)(A)(ii) of this Act.
200-4 (b) The commission and a local exchange company are not
200-5 required to comply with this section with regard to the separately
200-6 stated monthly charges for the provision of mandatory two way
200-7 extended area service if the charge is for extended area service in
200-8 or into a metropolitan exchange, or the charge is for extended
200-9 metropolitan service.
200-10 ARTICLE <XIV> XVII. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM;
200-11 UNIVERSAL SERVICE FUND
200-12 Sec. 94. The commission shall adopt and enforce rules
200-13 requiring each local exchange company to establish a
200-14 telecommunications service assistance program to be called
200-15 "tel-assistance service." This service is established to provide
200-16 eligible consumers with a reduction in costs of telecommunications
200-17 services.
200-18 Sec. 95. (a) To be eligible for tel-assistance service, an
200-19 applicant must be a head of household, 65 years of age or older,
200-20 and disabled as determined by the Texas Department of Human
200-21 Services and must have a household income at or below the poverty
200-22 level as determined by the United States Office of Management and
200-23 Budget and reported annually in the Federal Register. The
200-24 department, in accordance with this article and rules adopted by
200-25 the department for the program, shall develop procedures for taking
200-26 applications for certification of eligibility and for determining
200-27 program eligibility. The burden of proving eligibility for
201-1 tel-assistance service is on the consumer applying for the service.
201-2 (b) Each six months the department shall provide a list or
201-3 lists of the names, addresses, and, if applicable, telephone
201-4 numbers of all persons eligible for tel-assistance service to each
201-5 local exchange company. The local exchange company shall determine
201-6 from the list those consumers to whom the company provides service
201-7 and within 60 days after receiving the list shall begin
201-8 tel-assistance billing for eligible consumers. This billing shall
201-9 continue until the local exchange company is notified by the
201-10 department that a consumer is no longer eligible to receive
201-11 tel-assistance service.
201-12 Sec. 96. (a) The local exchange company shall provide
201-13 tel-assistance service to all eligible consumers within its
201-14 certified area in the form of a reduction on each eligible
201-15 consumer's telephone bill. The reduction shall apply only to the
201-16 following types of service.
201-17 (1) residential flat rate basic local exchange
201-18 service;
201-19 (2) residential local exchange access service; and
201-20 (3) residential local area calling usage, except that
201-21 the reduction for local area calling usage shall be limited to an
201-22 amount such that together with the reduction for local exchange
201-23 access service the rate does not exceed the comparable reduced flat
201-24 rate for the service.
201-25 (b) No other local voice service may be provided to the
201-26 dwelling place of a tel-assistance consumer, nor may single or
201-27 party line optional extended area service, optional extended area
202-1 calling service, foreign zone, or foreign exchange service be
202-2 provided to a tel-assistance consumer. Nothing in this section
202-3 shall prohibit a person otherwise eligible to receive
202-4 tel-assistance service from obtaining and using telecommunications
202-5 equipment designed to aid such person in utilizing
202-6 telecommunications services.
202-7 (c) The reduction allowed by the telecommunications service
202-8 assistance program shall be 65 percent of the applicable tariff
202-9 rate for the service provided.
202-10 Sec. 96A. (a) The commission shall adopt and enforce rules
202-11 establishing a statewide telecommunications relay access service
202-12 for the hearing-impaired and speech-impaired using specialized
202-13 communications equipment such as telecommunications devices for the
202-14 deaf (TDD) and operator translations. The purpose of this section
202-15 is to provide for the uniform and coordinated provision of the
202-16 service on a statewide basis by one telecommunications carrier.
202-17 (b) On or before January 1, 1990, the commission shall adopt
202-18 rules establishing a statewide telecommunications relay access
202-19 service for the hearing-impaired and speech-impaired with the
202-20 following provisions:
202-21 (1) the service shall provide the hearing-impaired and
202-22 speech-impaired with access to the telecommunications network in
202-23 Texas equal to that provided other customers;
202-24 (2) the service shall begin on or before September 1,
202-25 1990;
202-26 (3) the service shall consist of the following:
202-27 (A) switching and transmission of the call;
203-1 (B) verbal and print translations by either live
203-2 or automated means between hearing-impaired and speech-impaired
203-3 individuals who use TDD equipment or similar automated devices and
203-4 others who do not have such equipment; and
203-5 (C) other service enhancements proposed by the
203-6 carrier and approved by the commission;
203-7 (4) the calling or called party shall bear no charge
203-8 for calls originating and terminating within the same local calling
203-9 area;
203-10 (5) the calling or called party shall bear one-half of
203-11 the total charges established by contract with the commission for
203-12 intrastate interexchange calls;
203-13 (6) as specified in its contract with the commission,
203-14 charges related to providing the service which are not borne by a
203-15 calling or called party pursuant to Subdivisions (4) and (5) of
203-16 this subsection shall be funded from the universal service fund;
203-17 (7) local exchange carriers shall not impose
203-18 interexchange carrier access charges on calls which make use of
203-19 this service and which originate and terminate in the same local
203-20 calling area;
203-21 (8) local exchange carriers shall provide billing and
203-22 collection services in support of this service at just and
203-23 reasonable rates; and
203-24 (9) if the commission orders a local exchange company
203-25 to provide for a trial telecommunications relay access service for
203-26 the hearing-impaired or speech-impaired, all pertinent costs and
203-27 design information from this trial shall be available to the
204-1 general public.
204-2 (c) The commission shall allow telecommunications utilities
204-3 to recover their universal service fund assessment related to this
204-4 service through a surcharge which the utility may add to its
204-5 customers' bills. The commission shall specify how the amount of
204-6 the surcharge is to be determined by each utility. If a utility
204-7 chooses to impose the surcharge, the bill shall list the surcharge
204-8 as the "universal service fund surcharge."
204-9 (d) For the purpose of funding the start-up costs of this
204-10 service and for the first year of the service, the commission shall
204-11 require that 55 percent of the funds shall come from local exchange
204-12 carriers and that 45 percent of the funds shall come from all other
204-13 telecommunications utilities. At the end of the first year of the
204-14 service, the commission shall set the appropriate assessments for
204-15 the funding of the service by all telecommunications utilities. In
204-16 setting the appropriate assessments after the first year for
204-17 funding of the service, the commission shall consider the aggregate
204-18 calling pattern of the users of the service and all other factors
204-19 found appropriate and in the public interest by the commission.
204-20 The commission shall review the assessments annually and adjust the
204-21 assessments as found appropriate hereunder.
204-22 (e) On or before April 1, 1990, the commission shall select
204-23 the telecommunications carrier which will provide the statewide
204-24 telecommunications relay access service for the hearing-impaired
204-25 and speech-impaired. In awarding the contract for this service,
204-26 the commission shall make a written award of the contract to the
204-27 offerer whose proposal is the most advantageous to the state,
205-1 considering price, the interests of the hearing-impaired and
205-2 speech-impaired community in having access to a high quality and
205-3 technologically advanced telecommunications system, and all other
205-4 factors listed in the commission's request for proposals. The
205-5 commission shall consider each proposal in a manner that does not
205-6 disclose the contents of the proposal to competing offerers. The
205-7 commission's evaluation of the proposals shall include:
205-8 (1) charges for the service;
205-9 (2) service enhancements proposed by the offerers;
205-10 (3) technological sophistication of the network
205-11 proposed by the offerers; and
205-12 (4) the proposed commencement date for the service.
205-13 (f) The telecommunications carrier providing the service
205-14 shall be compensated for providing such service at rates, terms,
205-15 and conditions established in its contract with the commission.
205-16 This compensation may include a return on the investment required
205-17 to provide the service and compensation for unbillable and
205-18 uncollectible calls placed through the service, provided that
205-19 compensation for unbillable and uncollectible calls shall be
205-20 subject to a reasonable limitation as determined by the commission.
205-21 (g) On or before September 15, 1989, the commission shall
205-22 appoint an advisory committee to assist the commission in
205-23 administering this section.
205-24 (1) The advisory committee shall be composed of:
205-25 (A) two deaf persons recommended by the Texas
205-26 Association of the Deaf;
205-27 (B) one hearing-impaired person recommended by
206-1 Self-Help for the Hard of Hearing;
206-2 (C) one hearing-impaired person recommended by
206-3 the American Association of Retired Persons;
206-4 (D) one deaf and blind person recommended by the
206-5 Texas Deaf/Blind Association;
206-6 (E) one speech-impaired person and one
206-7 speech-impaired and hearing-impaired person recommended by the
206-8 Coalition of Texans with Disabilities;
206-9 (F) two representatives of telecommunications
206-10 utilities, one representing a nonlocal exchange utility and one
206-11 representing a local exchange carrier, chosen from a list of
206-12 candidates provided by the Texas Telephone Association;
206-13 (G) two persons, at least one of whom is deaf,
206-14 with experience in providing relay services recommended by the
206-15 Texas Commission for the Deaf; and
206-16 (H) two public members recommended by
206-17 organizations representing consumers of telecommunications
206-18 services.
206-19 (2) The commission shall appoint advisory committee
206-20 members based on recommended lists of candidates submitted in
206-21 accordance with Paragraph (F) of Subdivision (1) of this
206-22 subsection.
206-23 (3) The advisory committee shall monitor the
206-24 establishment, administration, and promotion of the statewide
206-25 telecommunications relay access service and advise the commission
206-26 in pursuing a service which meets the needs of the hearing-impaired
206-27 and speech-impaired in communicating with other users of
207-1 telecommunications services.
207-2 (4) The terms of office of each member of the advisory
207-3 committee shall be two years. A member whose term has expired
207-4 shall continue to serve until a qualified replacement is appointed.
207-5 (5) The members of the advisory committee shall serve
207-6 without compensation but shall be entitled to reimbursement at
207-7 rates established for state employees for travel and per diem
207-8 incurred in the performance of their official duties.
207-9 (6) The commission shall reimburse members of the
207-10 advisory committee in accordance with Subdivision (5) of this
207-11 subsection and shall provide clerical and staff support to the
207-12 advisory committee, including a secretary to record the committee
207-13 meetings.
207-14 (7) The commission's costs associated with the
207-15 advisory committee shall be reimbursed from the universal service
207-16 fund.
207-17 Sec. 96B. (a) The commission by rule shall require a
207-18 dominant carrier to file a tariff containing a reduced rate for a
207-19 telecommunications service the commission finds is directly related
207-20 to a distance learning activity that is or could be conducted by an
207-21 educational institution in this state.
207-22 (b) The commission rules shall specify:
207-23 (1) the telecommunications services that qualify under
207-24 this section;
207-25 (2) the process by which an educational institution
207-26 qualifies for a reduced rate;
207-27 (3) the date by which a dominant carrier shall file a
208-1 tariff;
208-2 (4) guidelines and criteria by which the services and
208-3 reduced rates shall further the goals stated in Subsection (d) of
208-4 this section; and
208-5 (5) any other requirements, terms, and conditions that
208-6 the commission determines to be in the public interest.
208-7 (c) A tariff filing by a dominant carrier under this
208-8 section:
208-9 (1) shall concern only the implementation of this
208-10 section;
208-11 (2) is not a rate change under Section 43 of this Act;
208-12 and
208-13 (3) does not affect any of the carrier's other rates
208-14 or services.
208-15 (d) The services and reduced rates shall be designed to:
208-16 (1) encourage the development and offering of distance
208-17 learning activities by educational institutions;
208-18 (2) meet the distance learning needs identified by the
208-19 educational community; and
208-20 (3) recover the long-run incremental costs of
208-21 providing the services, to the extent those costs can be
208-22 identified, so as to avoid subsidizing educational institutions.
208-23 (e) The commission is not required to determine the long-run
208-24 incremental cost of providing a service before approving a reduced
208-25 rate for the service. Until cost determination rules are developed
208-26 and the rates established under this section are changed as
208-27 necessary to ensure proper cost recovery, the reduced rates
209-1 established by the commission shall be equal to 75 percent of the
209-2 otherwise applicable rate. After the commission develops cost
209-3 determination rules for telecommunications services generally, it
209-4 shall ensure that a reduced rate approved under this section
209-5 recovers service-specific long-run incremental costs and avoids
209-6 subsidization.
209-7 (f) An educational institution or dominant carrier may at
209-8 any time request the commission to:
209-9 (1) provide for a reduced rate for a service directly
209-10 related to a distance learning activity that is not covered by
209-11 commission rules;
209-12 (2) change a rate;
209-13 (3) amend a tariff; or
209-14 (4) amend a commission rule.
209-15 (g) If the commission determines that a change requested
209-16 under Subsection (f) is appropriate, it shall make the requested
209-17 change.
209-18 (h) In this section:
209-19 (1) "Distance learning" means instruction, learning,
209-20 and training that is transmitted from one site to one or more sites
209-21 by telecommunications services that are used by an educational
209-22 institution predominantly for such instruction, learning, or
209-23 training, including video, data, voice, and electronic information.
209-24 (2) "Educational institution" means and includes
209-25 accredited primary or secondary schools owned or operated by state
209-26 and local governmental entities or private entities; institutions
209-27 of higher education as defined by Section 61.003, Education Code;
210-1 private institutions of higher education accredited by a recognized
210-2 accrediting agency as defined by Section 61.003(13), Education
210-3 Code; the Central Education Agency, its successors and assigns;
210-4 regional education service centers established and operated
210-5 pursuant to Sections 11.32 and 11.33, Education Code; and the Texas
210-6 Higher Education Coordinating Board, its successors and assigns.
210-7 (i)(1) In this subsection:
210-8 (i) "Board" means the Telecommunications
210-9 Infrastructure Fund Board.
210-10 (ii) "Fund" means the Telecommunications
210-11 Infrastructure Fund.
210-12 (iii) "Institution of higher education" has the
210-13 meaning assigned by Section 61.003, Education Code and also
210-14 includes a "private or independent institution of higher education"
210-15 as defined by Section 61.003, Education Code.
210-16 (iv) "Public library" has the meaning assigned by
210-17 Section 441.122, Government Code.
210-18 (v) "School district" has the meaning assigned by Sec.
210-19 19.001, Education Code.
210-20 (2) The board shall administer the fund. The board shall
210-21 consist of nine members. Three members must be appointed by the
210-22 governor. Three members must be appointed by the lieutenant
210-23 governor. Three members must be appointed by the governor from a
210-24 list of individuals submitted by the speaker of the house of
210-25 representatives. Members of the board serve for staggered,
210-26 six-year terms with three members' terms expiring on August 31 of
210-27 each odd-numbered year. The governor shall designate the presiding
211-1 officer of the board.
211-2 (3) In making their appointments to the board, the governor,
211-3 lieutenant governor and speaker shall attempt to select members who
211-4 are representative of urban and rural school district, institutions
211-5 of higher education, public libraries and the public. A person may
211-6 not serve on the board if the person is required to register as a
211-7 lobbyist under Chapter 305, Government Code, because of the
211-8 person's activities for compensation on behalf of a profession
211-9 related to the operation of the board.
211-10 (4) Members of the board shall serve without pay but shall
211-11 be reimbursed for their actual expenses incurred in attending
211-12 meetings of the board or in attending to other work of the board
211-13 if approved by the chairman of the board.
211-14 (5) The board is subject to the open meetings law, Chapter
211-15 551, Government Code and the administrative procedure law, Chapter
211-16 2001, Government Code. The board is subject to Chapter 325,
211-17 Government Code (Texas Sunset Act). Unless continued in existence
211-18 as provided by that chapter, the advisory board and this Article
211-19 expire September 1, 2001.
211-20 (6) The board is authorized to employ such personnel as are
211-21 reasonable necessary to perform duties delegated by the board and
211-22 may also enter contracts as are necessary with state agencies or
211-23 private entities to perform such duties.
211-24 (7) The board may appoint such committees as it determines
211-25 may assist it in performing is duties under this subsection.
211-26 (8) The fund administered by the board shall be financed by
211-27 an annual assessment on all telecommunications providers doing
212-1 business in the state. The assessment shall be based on the total
212-2 annual intrastate receipts reported by telecommunications providers
212-3 pursuant to Chapter 151, Tax Code.
212-4 (9) For the fiscal year beginning September 1, 1995 and for
212-5 the next 5 fiscal years immediately following, the Comptroller
212-6 shall assess and collect from telecommunications providers the
212-7 amount of $75,000,000.
212-8 (10) The comptroller may require telecommunications
212-9 providers to provide such reports and information as are needed to
212-10 fulfill the duties of the comptroller provided for in this
212-11 subsection. Any information provided to the comptroller by a
212-12 telecommunication provider pursuant to this subsection is exempt
212-13 from disclosure under the Texas Open Records Act (Chapter 552,
212-14 Government Code).
212-15 (11) All amounts collected by the comptroller from
212-16 telecommunication providers under this subsection shall be
212-17 deposited in the fund in the state treasury and be designated
212-18 solely for use of the board consistent with the purposes of this
212-19 subsection. Sections 403.094 and 403.095, Government Code do not
212-20 apply to the fund.
212-21 (12) From funds appropriated to the board, the comptroller
212-22 shall issue warrant as requested by the board in accordance with
212-23 the purposes of this subsection, including but not limited to
212-24 warrants to grantees of the board in amounts certified by the
212-25 board to the comptroller.
212-26 (13) In addition to any appropriated funds, the board may
212-27 accept gifts, grants and donations and use them for the purposes of
213-1 this subsection.
213-2 (14) The board shall use the fund to award grants and loans
213-3 on a competitive basis to rural and urban school districts,
213-4 institutions of higher education and public libraries recommended
213-5 to it by the Texas Education Agency or the Texas Higher Education
213-6 Coordinating Board.
213-7 (15) The board is authorized to award grants to projects
213-8 and proposals which:
213-9 (i) provide equipment and infrastructure needed for
213-10 distance learning and telemedicine services;
213-11 (ii) develop and implement the initial or prototypical
213-12 delivery of courses and other distance learning material;
213-13 (iii) train teachers, faculty, and technicians in the
213-14 use of distance learning materials and equipment; or
213-15 (iv) develop curricula and instructional material
213-16 especially suited for delivery by telecommunications.
213-17 (16) The board is authorized to award loans to projects and
213-18 proposals for the acquisition of equipment needed for distance
213-19 learning and telemedicine projects.
213-20 (17) In awarding grants and loans, the board shall give
213-21 priority to projects and proposals which:
213-22 (i) represent collaborative efforts involving multiple
213-23 schools, universities, or libraries;
213-24 (ii) contribute matching funds from other sources;
213-25 (iii) show promise of becoming self-sustaining;
213-26 (iv) help users of information learn new ways to
213-27 acquire and use information through telecommunications;
214-1 (v) extend specific educational information and
214-2 knowledge services to groups not previously served, especially
214-3 those in rural and remote areas;
214-4 (vi) result in more efficient or effective learning
214-5 that through convention teaching; or,
214-6 (vii) improve the effectiveness and efficiency of
214-7 health care delivery.
214-8 (18) The Texas Higher Education Coordinating Board and Texas
214-9 Education Agency shall adopt policies and procedures in
214-10 consultation with the board that are designed to aid the board in
214-11 achieving the purposes of this subsection.
214-12 (19) In distributing funds to public schools, the board
214-13 shall take into account the relative property wealth of the
214-14 recipient school districts and recognized the unique needs of rural
214-15 communities.
214-16 Sec. 97. A local exchange company is entitled to recover the
214-17 lost revenue, if any, resulting solely from the provision of
214-18 tel-assistance service from the universal service fund, the
214-19 establishment of which is provided for by this Act.
214-20 Sec. 98. (a)(1) The commission shall adopt and enforce
214-21 rules requiring local exchange companies to establish a universal
214-22 service fund to assist local exchange companies in providing basic
214-23 local telecommunications services <exchange service> at reasonable
214-24 rates in high cost rural areas, to reimburse local exchange
214-25 companies as a result of providing tel-assistance service under
214-26 this Act, to reimburse the telecommunications carrier providing the
214-27 statewide telecommunications relay access service for the hearing
215-1 impaired and speech-impaired as authorized in Section 96A of this
215-2 Act, and to reimburse the Texas Department of Human Services and
215-3 the Public Utility Commission of Texas for costs incurred in
215-4 implementing the provisions of this article.
215-5 (2) In addition to the authority described in (a)(1),
215-6 the commission shall have the authority to adopt such mechanisms as
215-7 are necessary to maintain reasonable rates for basic local
215-8 telecommunications services and, pursuant to such authority shall
215-9 establish rules which would expand the Universal Service Fund for
215-10 local exchange companies serving less than 1,000,000 access lines
215-11 in the following circumstances:
215-12 (i) In the event of a commission order,
215-13 rule, or policy, the effect of which is to reduce the amount of the
215-14 High Cost Assistance Fund, except an order entered in an individual
215-15 company revenue requirements proceeding, the commission shall
215-16 implement a mechanism through the Universal Service Fund to replace
215-17 the reasonably projected reduction in revenues caused by such
215-18 regulatory action.
215-19 (ii) In the event of a Federal
215-20 Communications Commission order, rule or policy, the effect of
215-21 which is to change the federal Universal Service Fund revenues of a
215-22 local exchange company or change costs or revenues assigned to the
215-23 intrastate jurisdiction, the commission shall implement a
215-24 mechanism, either through the Universal Service Fund or an increase
215-25 to local exchange rates if such an change would not adversely
215-26 impact universal service to replace the reasonably projected change
215-27 in revenues caused by such regulatory action.
216-1 (iii) In the event of a commission change
216-2 in its policy with respect to intraLATA "1+" dialing access, the
216-3 commission shall implement a mechanism, either through the
216-4 Universal Service Fund or an increase to local rates if such an
216-5 increase would not adversely impact universal service to replace
216-6 the reasonably projected reduction in contribution caused by such
216-7 action. Contribution for purposes of this subsection equals
216-8 average intraLATA long distance message telecommunications service
216-9 (MTS) revenue, including intraLATA toll pooling and associated
216-10 impacts, per minute less average MTS cost per minute less the
216-11 average contribution from switched access times the projected
216-12 change in intraLATA "1+" minutes of use.
216-13 (iv) In the event of any other
216-14 governmental agency issuing orders, rules or policies, the effect
216-15 of which is to increase costs or decrease revenues of the
216-16 intrastate jurisdiction, the commission shall implement a mechanism
216-17 either through the Universal Service Fund or an increase to local
216-18 exchange rates if such an increase would not adversely impact
216-19 universal service, to replace the reasonably projected increase in
216-20 costs or decrease in revenues caused by such regulatory action.
216-21 (3) No revenue requirement showing shall be required
216-22 with respect to disbursements for the Universal Service Fund under
216-23 Subsection (a). Such disbursements shall be implemented promptly
216-24 and efficiently so that telecommunication providers and local
216-25 exchange companies do not experience unnecessary cash flow changes
216-26 as a result of these changes in governmental policy.
216-27 (b) The universal service fund shall be funded by a
217-1 statewide uniform charge, at rates and on the services determined
217-2 by the commission, payable by all telecommunications <utilities>
217-3 providers that have access to the customer base. In establishing
217-4 the uniform level of the charge and the services to which it will
217-5 apply, the commission may not make or grant an unreasonable
217-6 preference or advantage to a telecommunications <utility> provider
217-7 or subject a telecommunications <utility> provider to unreasonable
217-8 prejudice or disadvantage. The charge shall be paid in accordance
217-9 with procedures approved by the commission.
217-10 (c) The commission shall:
217-11 (1) establish, in a manner that assures reasonable
217-12 rates for basic local <exchange> telecommunications services,
217-13 eligibility criteria and review procedure, including a method for
217-14 administrative review, it finds necessary for <participation>
217-15 funding of and distribution from <in> the universal service fund;
217-16 (2) determine which local exchange companies meet the
217-17 eligibility criteria, which, at a minimum, shall include the
217-18 requirements to serve every consumer within its certified area and
217-19 render continuous and adequate service within the area or areas, in
217-20 compliance with the commission's quality of service requirements;
217-21 (3) determine the amount of and approve a procedure
217-22 for reimbursement to local exchange companies of revenue lost in
217-23 providing tel-assistance service under this Act;
217-24 (4) prescribe and collect fees from the universal
217-25 service fund necessary to recover the costs the Texas Department of
217-26 Human Services and the Public Utility Commission incurred in
217-27 implementing and administering the provisions of this Article; and
218-1 (5) approve procedures for the collection and
218-2 disbursal of the revenues of the universal service fund.
218-3 (d) The commission shall adopt rules for the implementation
218-4 and administration of the universal service fund.
218-5 (e) The commission may do all things necessary and
218-6 convenient to implement and administer the universal service fund,
218-7 including the authority to require local exchange companies and
218-8 other telecommunications providers to provide such reports and
218-9 information needed to assess contributions to the fund. All such
218-10 reports and information shall be maintained in confidence and not
218-11 be subject to disclosure under Chapter 552 of the Government Code.
218-12 Sec. 98A. (a) The commission shall permit a local exchange
218-13 company that provides interactive multimedia communications
218-14 services to establish rates at levels necessary, using sound
218-15 rate-making principles, to recover costs associated with providing
218-16 the services. Unless determined by the commission to be in the
218-17 public interest, a local exchange company may not establish rates
218-18 under this subsection that are less than the local exchange
218-19 company's long run incremental costs of providing the interactive
218-20 multimedia communications services.
218-21 (b) In this section, "interactive multimedia communications"
218-22 has the meaning assigned by Section 14.0451(a), Education Code.
218-23 Sec. 98B. (a) The commission shall establish a fund known
218-24 as the Regulatory Transition Fund (RTF). The purposes of the fund
218-25 shall be:
218-26 (1) to promote affordable universal local exchange
218-27 service in areas where no competition exists;
219-1 (2) to facilitate the transition from networks
219-2 established and prices set under monopoly conditions to a
219-3 competitive market without endangering affordable universal
219-4 service, while permitting existing facilities based local exchange
219-5 companies to recover the costs of those networks.
219-6 (b) The RTF shall be funded by an assessment on the billed
219-7 retail revenues of all telecommunications providers in this state
219-8 except as set forth in Subsection (e). No assessment shall be made
219-9 on local exchange service revenues of a holder of a certificate of
219-10 convenience and necessity, certificate of operating authority, or
219-11 service provider certificate of operating authority. The
219-12 commission shall set the assessment for the next calendar year on
219-13 or before November 1 of each year.
219-14 (c) The RTF shall be administered by the commission which
219-15 may retain a competitively neutral administration for the day to
219-16 day operations of the RTF. The commission may do all things
219-17 necessary and convenient to implement and administer the RTF,
219-18 including the authority to require local exchange companies and
219-19 other telecommunications providers to provide such reports and
219-20 information needed to assess contributions to the fund. All such
219-21 reports and information shall be maintained in confidence and not
219-22 be subject to disclosure under Chapter 552 of the Government Code.
219-23 The commission shall administer the RTF in manner to promptly and
219-24 efficiently collect and transfer funds so that telecommunications
219-25 providers and local exchange companies do not experience
219-26 unnecessary cash flow changes as a result of the replacement of
219-27 access revenues with revenues from the RTF.
220-1 (d) Telecommunications providers may impose a surcharge on
220-2 or increase rates to, their retail customers to collect their share
220-3 of the assessment, except that the surcharge may not be imposed on
220-4 a service if its revenues are not subject to the RTF assessment.
220-5 (e) On or before October 1, 1996, existing local exchange
220-6 companies shall inform the commission if they intend to receive
220-7 funds from the RTF. In any area as to which a local exchange
220-8 company having a certificate of convenience and necessity as of the
220-9 effective date of this Act has informed the commission that it will
220-10 not receive RTF funds, that local exchange company and no other
220-11 telecommunications provider, including any holder of a certificate
220-12 of operating authority or service provider certificate of
220-13 authority, shall be assessed for revenues arising in that
220-14 company's certificated area.
220-15 (f) Effective January 1, 1997, local exchange companies
220-16 which have elected to receive RTF funds shall price their
220-17 intrastate switched access rates at the level of interstate
220-18 switched access rates as of January 1, 1995. An electing company
220-19 under this section having less than 100,000 access lines in this
220-20 state shall have the option to price its intrastate switched access
220-21 rates at the same level as the intrastate switched access rates of
220-22 a local exchange company having in excess of five million access
220-23 lines in this state. Coincident with this change, the local
220-24 exchange company shall reprice its intrastate intraLATA toll rates
220-25 proportionately. A local exchange company which receives intraLATA
220-26 toll settlements and which elects under this section shall reprice
220-27 its intraLATA toll rates at the same level as the intraLATA toll
221-1 rates of a local exchange company having in excess of five million
221-2 access lines in this state.
221-3 (g) The commission shall disburse funds from the RTF on a
221-4 revenue neutral basis to existing local exchange companies when
221-5 switched access and intraLATA toll rates have been repriced so that
221-6 those companies receive RTF equal to the net revenue reductions
221-7 (including any additional settlements that result from such
221-8 reductions) specified in Subsection (f), for intraLATA toll and
221-9 access.
221-10 (h) As to companies subject to commission substantive rule
221-11 Section 23.91, if price changes are required by the commission
221-12 following the completion of the pricing proceedings the commission
221-13 may assess additional amounts to telecommunications providers to
221-14 fund any revenue reductions caused by those price changes but such
221-15 assessment shall not exceed the amount of embedded non-traffic
221-16 sensitive costs which are at the time of the pricing proceeding,
221-17 allocated to or recovered from intraLATA toll and switched access
221-18 for those companies.
221-19 (i) The commission shall establish rules and procedures to
221-20 transitionally reduce RTF receipts for area(s) of a local exchange
221-21 company where another CCN or COA has been granted. Reductions
221-22 shall be commensurate with the availability of like service(s) from
221-23 the new applicant. At the earlier of six years after a new
221-24 certificate has been granted for a particular area(s), or when the
221-25 new applicant has completed its deployment plan required by Sec.
221-26 58(A) or the basic local telecommunications service of the local
221-27 exchange company has been completely deregulated for a particular
222-1 geographic market area, receipts for the RTF shall be reduced.
222-2 Such reduction shall be in proportion to the level of non-traffic
222-3 sensitive costs paid by the RTF for those area(s). In making this
222-4 determination the commission shall take into account the
222-5 non-traffic sensitive costs incurred in the particular geographic
222-6 area.
222-7 (j) At the beginning of the fourth and fifth years following
222-8 the price changes specified in Subsection (f), In order to move
222-9 services toward cost, upon application of a local exchange company,
222-10 the commission may restructure the rates of companies receiving
222-11 funds from the RTF. Any increases in the revenues from any such
222-12 restructuring in the rates for basic local exchange service, shall
222-13 be used to reduce a companies receipts from the RTF. In
222-14 calculating the amount of RTF reduction, a factor of 115% of the
222-15 new revenue generated from a basic local exchange service increase
222-16 shall be used. The commission may not approve a basic local rate
222-17 increase of more than 5% a year nor may the resulting rate exceed
222-18 the nation-wide average of rates for the same service.
222-19 (k) No revenue requirement showing shall be required for any
222-20 receipt of disbursements from the RTF.
222-21 Sec. 99. If this article conflicts with another provision of
222-22 this Act, this article prevails.
222-23 ARTICLE <XV.> XVIII. AUTOMATIC DIAL ANNOUNCING DEVICES
222-24 Sec. 111. In this article:
222-25 (1) "Automated dial announcing device" or "ADAD" means
222-26 automated equipment used for telephone solicitation or collection
222-27 that is capable:
223-1 (A) of storing telephone numbers to be called or
223-2 has a random or sequential number generator capable of producing
223-3 numbers to be called; and
223-4 (B) alone or in conjunction with other
223-5 equipment, of conveying a prerecorded or synthesized voice message
223-6 to the number called without the use of a live operator.
223-7 (2) "LEC" means a local exchange company, as that term
223-8 is defined by Section 3 of this Act.
223-9 Sec. 112. This article does not apply to the use of an ADAD
223-10 to make a telephone call:
223-11 (1) relating to an emergency or a public service under
223-12 a program developed or approved by the emergency management
223-13 coordinator of the county in which the call was received; or
223-14 (2) made by a public or private primary or secondary
223-15 school system to locate or account for a truant student.
223-16 Sec. 113. (a) a person may not operate an ADAD to make a
223-17 telephone call if the device plays a recorded message when a
223-18 connection is completed to a telephone number unless:
223-19 (1) the person has obtained a permit from the
223-20 commission and given written notice specifying the type of device
223-21 to each telecommunications utility over whose system the device is
223-22 to be used;
223-23 (2) the device is not used for random number dialing
223-24 or to dial numbers determined by successively increasing or
223-25 decreasing integers;
223-26 (3) the message states during the first 30 seconds of
223-27 the call the nature of the call, the identity of the person,
224-1 company, or organization making the call, and the telephone number
224-2 from which the call was made;
224-3 (4) the device disconnects from the called person's
224-4 line not later than 30 seconds after the call is terminated by
224-5 either party or, if the device cannot disconnect within that
224-6 period, a live operator introduces the call and receives the oral
224-7 consent of the called person before beginning a prerecorded or
224-8 synthesized voice message; and
224-9 (5) for calls terminating in this state, the device is
224-10 not used to make a call:
224-11 (A) before noon or after 9 p.m. on a Sunday or
224-12 before 9 a.m. or after 9 p.m. on a weekday or a Saturday, if the
224-13 device is used for solicitation; or
224-14 (B) at an hour at which collection calls would
224-15 be prohibited under the federal Fair Debt Collection Practices Act
224-16 (15 U.S.C. Section 1692 et seq.), if the device is used for
224-17 collection purposes.
224-18 (b) In addition to the requirements prescribed by Subsection
224-19 (a) of this section, if during the call a cross-promotion or
224-20 reference to a pay-per-call information service is made, the call
224-21 shall include:
224-22 (1) a statement that a charge will be incurred by a
224-23 caller who makes a call to a pay-per-call information services
224-24 telephone number;
224-25 (2) the amount of the flat-rate or cost-per-minute
224-26 charge that will be incurred or the amount of both if both charges
224-27 will be incurred; and
225-1 (3) the estimated amount of time required to receive
225-2 the entire information offered by the service during a call.
225-3 (c) In this section, "pay-per-call information service"
225-4 means service that allows a caller to dial a specified "900" or
225-5 "976" number to call a service that routinely delivers, for a
225-6 predetermined and sometimes time-sensitive fee, a prerecorded or
225-7 live message or interactive program.
225-8 Sec. 114. (a) The commission shall investigate complaints
225-9 relating to the use of an ADAD and enforce this article.
225-10 (b) If the commission or a court determines that a person
225-11 has violated this article, the commission or court shall require a
225-12 telecommunications utility to disconnect service to the person.
225-13 The telecommunications utility may reconnect service to the person
225-14 only on a determination by the commission that the person will
225-15 comply with this article. The utility shall give notice to the
225-16 person using the device of its intent to disconnect service not
225-17 later than the third day before the date of the disconnection,
225-18 except that if the device is causing network congestion or
225-19 blockage, the notice may be given on the day before the date of
225-20 disconnection.
225-21 (c) A telecommunications utility may, without an order by
225-22 the commission or a court, disconnect or refuse to connect service
225-23 to a person using or intending to use an ADAD if the utility
225-24 determines that the device would cause or is causing network harm.
225-25 Sec. 115. (a) An application for a permit to use one or
225-26 more ADADs must be made using the form prescribed by the commission
225-27 and must be accompanied by a fee in a reasonable amount computed to
226-1 cover the enforcement cost to the commission, but not to exceed
226-2 $500, as determined by the commission. A permit is valid for one
226-3 year after its effective date. Subject to Subsection (c) of this
226-4 section, a permit may be renewed annually by making the filing
226-5 required by this section and paying a filing fee of not more than
226-6 $100, as determined by the commission. The proceeds of the fees
226-7 shall be deposited to the credit of the General Revenue Fund.
226-8 (b) Each application for the issuance or renewal of a permit
226-9 under this section must contain the telephone number of each ADAD
226-10 that will be used and the physical address from which the ADAD will
226-11 operate. If the telephone number of an ADAD or the physical
226-12 address from which the ADAD operates changes, the owner or operator
226-13 of the ADAD shall notify the commission by certified mail of each
226-14 new number or address not later than the 48th hour before the hour
226-15 at which the ADAD will begin operating with the new telephone
226-16 number or at the new address. If the owner or operator of an ADAD
226-17 fails to notify the commission as required by this subsection
226-18 within the period prescribed by the subsection, the permit is
226-19 automatically invalid.
226-20 (c) In determining if a permit should be issued or renewed,
226-21 the commission shall consider the compliance record of the owner or
226-22 operator of the ADAD. The commission may deny an application for
226-23 the issuance or renewal of a permit because of the applicant's
226-24 compliance record.
226-25 (d) The commission shall provide to an LEC on a request a
226-26 copy of a permit issued under this section and of any changes
226-27 relating to the permit.
227-1 (e) An LEC that receives a complaint relating to the use of
227-2 an ADAD shall send the complaint to the commission. The commission
227-3 by rule shall prescribe the procedures and requirements for sending
227-4 a complaint to the commission.
227-5 Sec. 116. (a) A person who owns or operates an ADAD and who
227-6 operates the ADAD without a valid permit or with an expired permit
227-7 or who operates the ADAD in violation of this article or a
227-8 commission rule or order is subject to an administrative penalty of
227-9 not more than $1,000 for each day or portion of a day during which
227-10 the ADAD was operating in violation of this section.
227-11 (b) The administrative penalty authorized by this section is
227-12 civil in nature and is cumulative of any other penalty provided by
227-13 law.
227-14 (c) The commission by rule shall prescribe the procedures
227-15 for assessing an administrative penalty under this section. The
227-16 procedures shall require proper notice and hearing in accordance
227-17 with the Administrative Procedure and Texas Register Act (Article
227-18 6252-13a, Vernon's Texas Civil Statutes).
227-19 (d) A person may appeal the final order of the commission
227-20 under the Administrative Procedure and Texas Register Act (Article
227-21 6252-13a, Vernon's Texas Civil Statutes), using the substantial
227-22 evidence rule on appeal.
227-23 (e) The proceeds of administrative penalties collected under
227-24 this section shall be deposited to the credit of the General
227-25 Revenue Fund.
227-26 Sec. 117. (a) The commission may revoke a permit issued
227-27 under this article for failure to comply with this article.
228-1 (b) A person commits an offense if the person owns or
228-2 operates an ADAD that the person knows is operating in violation of
228-3 this article. An offense under this subsection is a Class A
228-4 misdemeanor.
228-5 Sec. 118. The commission may adopt any rules necessary to
228-6 carry out its powers and duties under this article.
228-7 Sec. 119. Every telephone solicitor operating in this state
228-8 who makes consumer telephone calls subject to Section 37.02 of the
228-9 Business & Commerce Code shall implement in-house systems and
228-10 procedures so that every effort is made not to call consumers who
228-11 ask not to be called again. The commission is granted all
228-12 necessary power and authority to enforce the provisions of this
228-13 section.
228-14 Sec. 120. The commission by rule shall require that a local
228-15 exchange telephone company or telephone cooperative inform its
228-16 customers of the provisions of Chapter 37 of the Business &
228-17 Commerce Code and Section 119 of this Act by:
228-18 (1) inserting the notice annually in the billing
228-19 statement mailed to a customer; or
228-20 (2) publishing the notice in the consumer information
228-21 pages of its local telephone directory.
228-22 ARTICLE XIX. INFRASTRUCTURE SHARING
228-23 Sec. 121. INFRASTRUCTURE SHARING. (a) The commission shall
228-24 prescribe regulations that require local exchange companies to
228-25 share public switched network infrastructure and technology with
228-26 requesting local exchange companies lacking economies of scale or
228-27 scope, for the purpose of enabling such requesting companies to
229-1 provide telecommunications services in the geographic areas to
229-2 which it is designated as the sole carrier of last resort.
229-3 (b) The regulations governing such sharing shall:
229-4 (1) not require any local exchange company to make a
229-5 decision that is uneconomic or adverse to the public;
229-6 (2) permit, but not require, joint ownership and
229-7 operation of public switched network infrastructure and services by
229-8 or among the local exchange companies sharing infrastructure;
229-9 (3) establish conditions that promote cooperation
229-10 between local exchange companies.
229-11 ARTICLE XX. BROADCASTER SAFEGUARDS
229-12 Sec. 122A. CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI).
229-13 (a) In this section:
229-14 (1) Specific Customer Proprietary Network Information
229-15 (specific CPNI) means:
229-16 (A) information which relates to the quantity,
229-17 technical configuration, type, destination, or amount of use of
229-18 voice or data telecommunications services subscribed to by any
229-19 customer of a telecommunications utility (but excluding wireless
229-20 telecommunications providers) and is made available to the utility
229-21 by the customer solely by virtue of the utility-customer
229-22 relationship;
229-23 (B) information contained in the bills
229-24 pertaining to telecommunications services received by a customer of
229-25 a utility; and
229-26 (C) such other information concerning the
229-27 customer as is available to the utility by virtue of the customer's
230-1 use of the utility service except that such term does not include
230-2 subscriber list information.
230-3 (2) "Subscriber list information" means any
230-4 information:
230-5 (A) identifying the listed names of subscribers
230-6 of a utility or such subscribers' telephone numbers, addresses, or
230-7 primary advertising classifications, or any combination of such
230-8 listed names, numbers, addresses, or classifications; and
230-9 (B) that the utility or an affiliate has
230-10 published or accepted for future publication.
230-11 (b) Except as preempted by the Federal Communications
230-12 Commission, telecommunications utilities may not use specific CPNI
230-13 for commercial purposes other than the sale, provision, or billing
230-14 and collection of telecommunications or enhanced services. Nothing
230-15 herein shall prohibit the use of specific CPNI with the customer's
230-16 consent or the provision of specific CPNI to an affiliate
230-17 telecommunications provider.
230-18 (c) Not later than September 1, 1996, the commission shall
230-19 adopt rules which shall be consistent with rules on this subject
230-20 adopted by the Federal Communications Commission. Rules adopted
230-21 under this section shall:
230-22 (1) require telecommunications utilities to notify
230-23 their subscribers annually, through means approved by the
230-24 commission, of the subscriber's right to reject the utilities' use
230-25 of specific CPNI for purposes of marketing other services;
230-26 (2) in the event the Federal Communications Commission
230-27 adopts new CPNI rules which no longer preempt a state's authority
231-1 to adopt inconsistent rules, the commission shall institute a
231-2 proceeding regarding the appropriate use of CPNI by all
231-3 telecommunications utilities, provided that any rule, policy or
231-4 order adopted by the commission may not be discriminatory in its
231-5 application to telecommunications utilities; and
231-6 (3) require telecommunications utilities, if they make
231-7 nonproprietary aggregate CPNI available to their affiliates, to
231-8 make such information available on the same terms and conditions to
231-9 unaffiliated entities.
231-10 (d) The commission may not implement any rules regarding
231-11 CPNI applicable to local exchange companies having 100,000 or fewer
231-12 access lines in service in this state which are more burdensome to
231-13 the company than the CPNI rules of the Federal Communications
231-14 Commission.
231-15 (e) Any company to which this section applies may petition
231-16 the commission for a waiver from any of the requirements imposed
231-17 herein. The commission shall grant the waiver if it is in the
231-18 public interest to do so, taking into account whether the need for
231-19 the restriction still exists in the market involved.
231-20 Sec. 122B. AUDIO VIDEO. (a) In this Act:
231-21 (1) "Video programming" means programming provided by
231-22 or generally considered comparable to programming provided by a
231-23 television broadcast station as defined by the Federal
231-24 Communications Commission under 47 U.S.C. Section 522(19).
231-25 (2) "Audio programming" means programming provided by
231-26 or generally considered comparable to programming provided by an AM
231-27 or FM broadcast station. However, the term does not include any
232-1 audio-related services of the type offered by the local exchange
232-2 company as of the effective date of this section.
232-3 (b) Local exchange companies may not provide audio or video
232-4 programming in this state. However, nothing herein shall prohibit
232-5 a separate corporate affiliate of a local exchange company from
232-6 providing audio or video programming.
232-7 (c) A separate corporate affiliate of a local exchange
232-8 company providing audio or video programming:
232-9 (1) shall obtain telecommunications services from its
232-10 affiliate local exchange company at tariffed rates, or if such
232-11 services are not provided pursuant to tariff, at the fair market
232-12 value or, in the event there is no fair market value or such value
232-13 is less than long run incremental cost (LRIC), then the rate shall
232-14 be at such LRIC;
232-15 (2) shall purchase, use, rent, or access information,
232-16 services, space, or devices which are not telecommunications
232-17 services from its affiliate local exchange company consistent with
232-18 the affiliate transaction rules promulgated by the Federal
232-19 Communications Commission then in effect, provided that in no case
232-20 shall such transactions be valued at less than the greater of net
232-21 book value or fair market value, whichever is applicable;
232-22 (3) shall maintain books, records, and accounts that
232-23 are separate from those of a local exchange company, which books,
232-24 records, and accounts shall be kept in accordance with generally
232-25 accepted accounting principles;
232-26 (4) shall prepare financial statements that are not
232-27 consolidated with those of a local exchange company, provided,
233-1 however, that financial statements and consolidated tax returns
233-2 may be prepared which consolidate the operation of the separate
233-3 corporate affiliate with a parent company and its other
233-4 subsidiaries;
233-5 (5) may not incur debt in a manner that would permit a
233-6 creditor on default to have recourse to the assets of the local
233-7 exchange company;
233-8 (6) may not use the names, trademarks, or service
233-9 marks of the local exchange company, but this does not prohibit the
233-10 use of such names or marks where they are used in common with the
233-11 parent, affiliate, or owner of the local exchange company;
233-12 (7) shall perform its marketing and sales functions
233-13 and operation in compliance with Open Network Architecture and the
233-14 affiliate transaction rules promulgated by the Federal
233-15 Communications Commission then in effect;
233-16 (8) may not have any directors, officers, or employees
233-17 in common with the local exchange company; and
233-18 (9) shall maintain a separate corporate entity from
233-19 the local exchange company.
233-20 (d) As to its separate affiliate providing video or audio
233-21 programming, a local exchange company:
233-22 (1) may not develop a rate for a telecommunications
233-23 service or deploy a telecommunications service to primarily benefit
233-24 its separate affiliate for the affiliate's video or audio
233-25 programming unless that rate or service is available on a
233-26 nondiscriminatory basis to all purchasers;
233-27 (2) may not be unreasonably preferential in the
234-1 deployment of telecommunications services for its separate
234-2 affiliates' audio or video programming;
234-3 (3) may not enter into customer-specific contracts for
234-4 the provision of tariffed telecommunications services with its
234-5 separate affiliate unless substantially the same terms and
234-6 conditions of the contract are generally available to nonaffiliated
234-7 interests;
234-8 (4) shall maintain and file with the commission all
234-9 copies of contracts or arrangement between the local exchange
234-10 company and the separate affiliate and report the contract amount
234-11 for each cash and noncash transaction with the separate affiliate,
234-12 including payments for costs of any goods and services or any
234-13 property right or thing or for interest expense;
234-14 (5) may not transfer assets to the separate affiliate
234-15 unless those assets are priced no lower than assets that are
234-16 available in an arm's-length transaction to third parties;
234-17 (6) shall value any assets that are transferred to a
234-18 separate affiliate at the greater of net book or fair market value;
234-19 (7) shall value any assets that are transferred to it
234-20 by its separate affiliate at the lesser of net book value or fair
234-21 market value except instances where Federal Communications
234-22 Commission or Public Utility Commission regulations permit
234-23 in-arrears payment for tariffed telecommunications services or the
234-24 investment by an affiliate of dividends or profits derived from the
234-25 local exchange company;
234-26 (8) shall comply with all applicable Federal
234-27 Communications Commission cost and other accounting rules;
235-1 (9) may not have any directors, officers, or employees
235-2 in common with the separate affiliate;
235-3 (10) may not own any property in common with the
235-4 separate affiliate; and
235-5 (11) shall provide, if it offers telecommunications
235-6 equipment or services to audio and video programming providers,
235-7 such services:
235-8 (A) at just and reasonable rates that are
235-9 tariffed (so long as the commission rules require such tariffs)
235-10 under nondiscriminatory terms and conditions; and
235-11 (B) if said equipment and services are not
235-12 subject to regulation, on similar terms and conditions to all video
235-13 or audio programming providers.
235-14 (e) In addition to the requirements and prohibitions
235-15 prescribed by Subsection (d) of this section, a local exchange
235-16 company shall, if it offers billing and collection services to
235-17 nonaffiliated audio and video programming providers, provide such
235-18 services under nondiscriminatory terms and conditions. Nothing
235-19 herein shall require a local exchange company to offer billing and
235-20 collection service to nonaffiliated programmers. Provided further
235-21 that local exchange companies may exclude certain classes of
235-22 programmers from its billing and collection services.
235-23 (f) A local exchange company shall have a compliance audit
235-24 performed every three years by an independent accounting firm.
235-25 Such audit shall be conducted for the purpose of determining
235-26 whether or not the local exchange company, during the preceding
235-27 three years, is in compliance with all of the requirements imposed
236-1 by this section regarding the local exchange company. The
236-2 independent accounting firm shall file the report with the
236-3 commission. If such report concludes that the local exchange
236-4 company is not in compliance with any portion of this section, the
236-5 commission shall institute appropriate action against the local
236-6 exchange company. The report shall be considered commercial or
236-7 financial information that is confidential by statute under Chapter
236-8 552, Government Code.
236-9 (g) Except as otherwise specifically provided by this Act,
236-10 the commission's jurisdiction over affiliates of local exchange
236-11 companies which are audio and video programmers is limited to the
236-12 requirements of this section and does not extend to subjects not
236-13 specifically provided herein.
236-14 (h) This section does not apply to local exchange companies
236-15 having 100,000 or fewer total access lines in service in this
236-16 state.
236-17 (i) Any company to which this section applies may petition
236-18 the commission for a waiver from any of the requirements imposed
236-19 herein. The commission shall grant the waiver if it is in the
236-20 public interest to do so, taking into account whether the need for
236-21 the restriction still exists in the market involved. The
236-22 commission may revoke any waiver granted if it is shown that
236-23 conditions under which the waiver was granted have materially
236-24 changed and it is in the public interest to do so.
236-25 Sec. 122C. ADVERTISING. (a) Advertising agency services
236-26 include the functions generally performed by a general advertising
236-27 agency, including advertising development, advertising purchase,
237-1 advertising consultation, advertising copywriting, and advertising
237-2 research.
237-3 (b) Local exchange companies may not sell advertising agency
237-4 services to nonaffiliates in this state. Nothing herein shall
237-5 prohibit a local exchange company from:
237-6 (1) any activities to promote or sell
237-7 telecommunications services and equipment, including voice, data,
237-8 video dial tone, video programming, audio programming, cellular,
237-9 interactive media, software, and other such services and equipment;
237-10 or
237-11 (2) any activities which seek to enhance or promote
237-12 the use of the telecommunications network.
237-13 (c) A separate corporate affiliate of a local exchange
237-14 company may engage in advertising agency activities, but in the
237-15 conduct of such business a separate corporate affiliate:
237-16 (1) shall maintain books, records, and accounts that
237-17 are separate from those of a local exchange company, which books,
237-18 records, and accounts shall be kept in accordance with generally
237-19 accepted accounting principles;
237-20 (2) shall prepare financial statements that are not
237-21 consolidated with those of a local exchange company provided,
237-22 however, that financial statements and consolidated tax returns may
237-23 be prepared which consolidate the operation of the separate
237-24 corporate affiliate with a parent company and its other
237-25 subsidiaries;
237-26 (3) may not incur debt in a manner that would permit a
237-27 creditor on default to have recourse to the assets of the local
238-1 exchange company;
238-2 (4) may not have any directors, officers, or employees
238-3 in common with the local exchange company;
238-4 (5) shall maintain a separate corporate entity from
238-5 the local exchange company; and
238-6 (6) may not use the names, trademarks, or service
238-7 marks of the local exchange company, but this does not prohibit the
238-8 use of such names or marks where they are used in common with the
238-9 parent, affiliate, or owner of the local exchange company.
238-10 (d) Except as provided under Subsection (b) of this section,
238-11 local exchange companies which have affiliates which provide
238-12 advertising agency services on behalf of nonaffiliates in this
238-13 state may not jointly market such affiliates' advertising agency
238-14 services in connection with telecommunications services and
238-15 equipment provided by the local exchange company. This prohibition
238-16 does not apply to advertising in telephone directories in whatever
238-17 form disseminated.
238-18 (e) Nothing herein shall prevent the local exchange company
238-19 from providing telephone solicitation services for charitable
238-20 organizations.
238-21 (f) This section does not apply to local exchange companies
238-22 having 100,000 or fewer total access lines in service in this
238-23 state.
238-24 (g) Any company to which this section applies may petition
238-25 the commission for a waiver from any of the requirements imposed
238-26 herein. The commission shall grant the waiver if it is in the
238-27 public interest to do so, taking into account whether the need for
239-1 the restriction still exists in the market involved. The
239-2 commission may revoke any waiver granted if it is shown that
239-3 conditions under which the waiver was granted have materially
239-4 changed and it is in the public interest to do so.
239-5 Sec. 122D. VIDEO CARRIAGE. (a) Subject to a programmer
239-6 operating as a common channel manager under the provisions of
239-7 Subsection (c) of this section, each local exchange company that
239-8 provides telecommunications services that are used in the
239-9 transmission of video programming directly to subscribers or
239-10 enables customers to access video programming shall permit local
239-11 full-power, FCC-licensed broadcast stations, to the extent capacity
239-12 permits, access to these telecommunications services at tariffed
239-13 rates or, if such services are not provided pursuant to tariff, on
239-14 similar terms and conditions as other video programmers which
239-15 provide similar programming. The local exchange company shall
239-16 transmit the signals delivered to it by the local broadcast station
239-17 without material degradation, and the qualify offered may not be
239-18 less than that made available to other video programmers.
239-19 (b) Each local exchange company that provides
239-20 telecommunications services that are used in the transmission of
239-21 video programming directly to subscribers or to enable customers to
239-22 access video programming:
239-23 (1) may not unreasonably discriminate among
239-24 programming providers with respect to transmission of their
239-25 signals;
239-26 (2) may not delete, change, or alter any copyright
239-27 identification transmitted as part of the programming signal; and
240-1 (3) shall, if it provides a "video dial tone service"
240-2 with a level one gateway, as that term is defined by the Federal
240-3 Communications Commission, make available to programmers a menu or
240-4 programming guide upon which programmers may display a listing of
240-5 the stations required to be carried by the programmer pursuant to
240-6 Subsection (c) of this section.
240-7 (c) To the extent that federal law and Federal
240-8 Communications Commission rules and orders permit, any programmer
240-9 operating as a common channel manager and which purchases for
240-10 commercial purposes 50 or more analog channels on a local exchange
240-11 video dial tone level one platform over which video programming is
240-12 made available to subscribers, shall make available to subscribers
240-13 local full-power, FCC-licensed television stations (provided that
240-14 they grant retransmission pursuant to Subsection (d) of this
240-15 section. A programmer subject to this section shall be required to
240-16 make available up to six television stations, except that in
240-17 markets that contain a county seat having a population of more than
240-18 one million, the programmer shall be required to make available up
240-19 to nine full-power, FCC-licensed local broadcast stations. The
240-20 programmer shall make the selection of the broadcast channels to be
240-21 carried pursuant to this section.
240-22 (d) Any FCC-licensed television station seeking carriage
240-23 pursuant to Subsection (c) of this section shall grant
240-24 retransmission consent to the programmer and to the local exchange
240-25 company. However, nothing in this Act shall require a programmer
240-26 or local exchange company to provide monetary payment or other
240-27 valuable consideration in exchange for such carriage.
241-1 (e) This section does not apply to any local exchange
241-2 company having 100,000 or fewer total access lines in service in
241-3 this state nor to any programmer on the video dial tone platform of
241-4 any such local exchange company.
241-5 (f) Any company to which this section applies may petition
241-6 the commission for a waiver from any of the requirements imposed
241-7 herein. The commission shall grant the waiver if it is in the
241-8 public interest to do so, taking into account whether the need for
241-9 the restriction still exists in the market involved. The
241-10 commission may revoke any waiver granted if it is shown that
241-11 conditions under which the waiver was granted have materially
241-12 changed and it is in the public interest to do so.
241-13 (g) Except as otherwise specifically provided by this Act,
241-14 the commission's jurisdiction over affiliates of local exchange
241-15 companies which are video programmers is limited to the
241-16 requirements of this section and does not extend to subjects not
241-17 specifically provided herein.
241-18 (h) This section expires August 31, 1999.
241-19 Sec. 122E. AUDIO CARRIAGE. (a) To the extent that federal
241-20 law and Federal Communications Commission rules and orders permit,
241-21 and consistent with technical specifications, any programmer
241-22 operating as a common channel manager which makes available for
241-23 commercial purposes to subscribers 12 or more channels of audio
241-24 programming similar to broadcasts of FCC-licensed radio stations on
241-25 a local exchange company's level one video dial tone platform shall
241-26 make available to subscribers local FCC-licensed radio stations,
241-27 provided that they grant retransmission pursuant to Subsection (b)
242-1 of this section. No programmer subject to this subsection shall be
242-2 required to make available more than one-third of its analog audio
242-3 channels to radio stations. The programmer shall make the
242-4 selection of the radio stations to be carried pursuant to this
242-5 section.
242-6 (b) Any local FCC-licensed radio station seeking carriage
242-7 pursuant to Subsection (a) of this section shall grant
242-8 retransmission consent to the programmer and the local exchange
242-9 company. However, nothing in this Act shall require a programmer
242-10 or local exchange company to provide monetary payment or other
242-11 valuable consideration in exchange for such carriage.
242-12 (c) This section does not apply to local exchange companies
242-13 having 100,000 or fewer total access lines in service in this state
242-14 nor to any programmer on the video dial tone platform of any such
242-15 local exchange company.
242-16 (d) Any company to which this section applies may petition
242-17 the commission for a waiver from any of the requirements imposed
242-18 herein. The commission shall grant the waiver if it is in the
242-19 public interest to do so, taking into account whether the need for
242-20 the restriction still exists in the market involved. The
242-21 commission may revoke any waiver granted if it is shown that
242-22 conditions under which the waiver was granted have materially
242-23 changed and it is in the public interest to do so.
242-24 (e) Except as otherwise specifically provided by this Act,
242-25 the commission's jurisdiction over affiliates of local exchange
242-26 companies which are video programmers is limited to the
242-27 requirements of this section and does not extend to subjects not
243-1 specifically provided herein.
243-2 (f) This section expires August 31, 1999.
243-3 SECTION 2. (a) Subchapter D, Chapter 74, Property Code, is
243-4 amended by adding Section 74.3011 to read as follows:
243-5 Sec. 74.3011. DELIVERY OF MONEY TO RURAL SCHOLARSHIP FUND.
243-6 (a) Notwithstanding and in addition to any other provision of this
243-7 chapter or other law, a local telephone exchange company may
243-8 deliver reported money to a scholarship fund for rural students
243-9 instead of delivering the money to the state treasurer as
243-10 prescribed by Section 74.301.
243-11 (b) A local telephone exchange company may deliver the money
243-12 under this section only to a scholarship fund established by one or
243-13 more local telephone exchange companies in this state to enable
243-14 needy students from rural areas to attend college, technical
243-15 school, or another postsecondary educational institution.
243-16 (c) A local telephone exchange company shall file with the
243-17 state treasurer a verification of money delivered under this
243-18 section that complies with Section 74.302.
243-19 (d) A claim for money delivered to a scholarship fund under
243-20 this section must be filed with the local telephone exchange
243-21 company that delivered the money. The local telephone exchange
243-22 company shall forward the claim to the administrator of the
243-23 scholarship fund to which the money was delivered. The scholarship
243-24 fund shall pay the claim if the fund determines in good faith that
243-25 the claim is valid. A person aggrieved by a claim decision may
243-26 file a suit against the fund in a district court in the county in
243-27 which the administrator of the scholarship fund is located in
244-1 accordance with Section 74.506.
244-2 (e) The state treasurer shall prescribe forms and procedures
244-3 governing this section, including forms and procedures relating to:
244-4 (1) notice of presumed abandoned property;
244-5 (2) delivery of reported money to a scholarship fund;
244-6 and
244-7 (3) filing of a claim.
244-8 (f) In this section, "local telephone exchange company"
244-9 means a telecommunications utility certificated to provide local
244-10 exchange service within the state and that is a telephone
244-11 cooperative or has fewer than 50,000 access lines in service in
244-12 this state.
244-13 (b) This section takes effect September 1, 1995.
244-14 (c) Section 74.3011, Property Code, as added by this Act,
244-15 applies only to money that a local telephone exchange company would
244-16 otherwise be required to deliver to the state treasurer on or after
244-17 the effective date of this Act. Money that was required to be
244-18 delivered to the state treasurer before the effective date of this
244-19 Act is governed by the law in effect when the money was required to
244-20 be delivered, and that law is continued in effect for that purpose.
244-21 SECTION 3. All laws and part of laws in conflict with this
244-22 Act are repealed effective September 1, 1995.
244-23 SECTION 4. This Act takes effect September 1, 1995.
244-24 SECTION 5. The importance of this legislation and the
244-25 crowded condition of the calendars in both houses create an
244-26 emergency and an imperative public necessity that the
244-27 constitutional rule requiring bills to be read on three several
245-1 days in each house be suspended, and this rule is hereby suspended.