1-1 By: Seidlits, Moffat, et al. H.B. No. 2128
1-2 (Senate Sponsor - Sibley)
1-3 (In the Senate - Received from the House April 20, 1995;
1-4 April 21, 1995, read first time and referred to Committee on
1-5 Economic Development; May 10, 1995, reported adversely, with
1-6 favorable Committee Substitute by the following vote: Yeas 11,
1-7 Nays 0; May 10, 1995, sent to printer.)
1-8 COMMITTEE SUBSTITUTE FOR H.B. No. 2128 By: Sibley
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to the regulation of telecommunications utilities, to the
1-12 provision of telecommunications and related services, and to the
1-13 continuation of the Public Utility Commission of Texas.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 SECTION 1. Section 1.002, Public Utility Regulatory Act of
1-16 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
1-17 Session, 1995, is amended to read as follows:
1-18 Sec. 1.002. LEGISLATIVE POLICY AND PURPOSE. This Act is
1-19 enacted to protect the public interest inherent in the rates and
1-20 services of public utilities. The legislature finds that
1-21 traditionally public utilities are by definition monopolies in the
1-22 areas they serve; that therefore the normal forces of competition
1-23 which operate to regulate prices in a free enterprise society do
1-24 not operate; and that therefore utility rates, operations, and
1-25 services are regulated by public agencies with the objective that
1-26 this regulation shall operate as a substitute for competition. The
1-27 purpose of this Act is to establish a comprehensive regulatory
1-28 system which is adequate to the task of regulating public utilities
1-29 as defined by this Act, to assure rates, operations, and services
1-30 which are just and reasonable to the consumers and to the
1-31 utilities.
1-32 SECTION 2. Section 1.003(14), Public Utility Regulatory Act
1-33 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
1-34 Regular Session, 1995, is amended to read as follows:
1-35 (14) "Rate" means and includes every compensation,
1-36 tariff, charge, fare, toll, rental, and classification, or any of
1-37 them demanded, observed, charged, or collected whether directly or
1-38 indirectly by any public utility for any service, product, or
1-39 commodity described in the definition of "utility" in Section 2.001
1-40 or 3.002 <3.001> of this Act and any rules, regulations, practices,
1-41 or contracts affecting any such compensation, tariff, charge, fare,
1-42 toll, rental, or classification.
1-43 SECTION 3. Section 1.004, Public Utility Regulatory Act of
1-44 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
1-45 Session, 1995, is amended to read as follows:
1-46 Sec. 1.004. DEFINITIONS IN TITLE. In this title, "public
1-47 utility" or "utility" has the meaning assigned by Section 2.001 or
1-48 3.002 <3.001> of this Act.
1-49 SECTION 4. Section 1.022, Public Utility Regulatory Act of
1-50 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
1-51 Session, 1995, is amended to read as follows:
1-52 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
1-53 of Texas and the Office of Public Utility Counsel are subject to
1-54 Chapter 325, Government Code (Texas Sunset Act). Unless continued
1-55 in existence as provided by that chapter, the commission and the
1-56 office are abolished and this Act expires September 1, 2001 <1995>.
1-57 SECTION 5. Section 1.353, Public Utility Regulatory Act of
1-58 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
1-59 Session, 1995, is amended to read as follows:
1-60 Sec. 1.353. PAYMENT OF ASSESSMENTS. (a) For the
1-61 assessments covered by this section, assessments are due as
1-62 provided by this section notwithstanding Section 1.352 of this Act,
1-63 based on a public utility's estimate of its gross receipts.
1-64 (b) For the assessment due August 15, 1995, 50 percent of
1-65 the assessment must be paid by August 15, 1994, and 50 percent must
1-66 be paid by February 15, 1995.
1-67 (c) For the assessment due August 15, 1996, 50 percent of
1-68 the assessment must be paid by August 15, 1995, and 50 percent must
2-1 be paid by February 15, 1996.
2-2 (d) For the assessment due August 15, 1997, 50 percent of
2-3 the assessment must be paid by August 15, 1996, and 50 percent must
2-4 be paid by February <the remainder must be paid by August> 15,
2-5 1997.
2-6 (e) For the assessment due August 15, 1998, 50 percent of
2-7 the assessment must be paid by August 15, 1997, and the remainder
2-8 must be paid by August 15, 1998.
2-9 (f) Any assessment amounts underpaid on assessments due on
2-10 August 15, 1995, <or> August 15, 1996, or August 15, 1997, must be
2-11 paid by those respective dates. Any assessment amounts overpaid
2-12 shall be credited against following assessments.
2-13 (g) <(f)> This section expires September 1, 1998 <1997>.
2-14 SECTION 6. Subtitle A, Title III, Public Utility Regulatory
2-15 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
2-16 Regular Session, 1995, is amended to read as follows:
2-17 SUBTITLE A. GENERAL PROVISIONS
2-18 Sec. 3.001. POLICY. The legislature finds that significant
2-19 changes have occurred in telecommunications since this Act was
2-20 initially adopted. The legislature hereby finds that it is the
2-21 policy of this state to promote diversity of providers and
2-22 interconnectivity and to encourage a fully competitive
2-23 telecommunications marketplace while protecting and maintaining the
2-24 wide availability of high quality, interoperable, standards-based
2-25 telecommunications services at affordable rates. These goals are
2-26 best achieved by legislation that brings telecommunications
2-27 regulation into the modern era by guaranteeing the affordability of
2-28 basic telephone service in a competitively neutral manner, while
2-29 fostering free market competition within the telecommunications
2-30 industry. The legislature further finds that the technological
2-31 advancements, advanced telecommunications infrastructure, and
2-32 increased customer choices for telecommunications services
2-33 generated by a truly competitive market will raise the living
2-34 standards of all Texans by enhancing economic development and
2-35 improving the delivery of education, health, and other public and
2-36 private services and therefore play a critical role in Texas'
2-37 economic future. It is the policy of this state to require the
2-38 commission to do those things necessary to enhance the development
2-39 of competition by adjusting regulation to match the degree of
2-40 competition in the marketplace, thereby reducing the cost and
2-41 burden of regulation and maintaining protection of markets that are
2-42 not competitive. It is further the policy of this state to ensure
2-43 that high quality telecommunications services are available,
2-44 accessible, and usable by individuals with disabilities, unless
2-45 making the services available, accessible, or usable would result
2-46 in an undue burden, including unreasonable cost or technical
2-47 feasibility, or would have an adverse competitive effect. However,
2-48 the legislature recognizes that the strength of competitive forces
2-49 vary widely between markets and products and services. Therefore,
2-50 to foster, encourage, and accelerate the continuing development and
2-51 emergence of a competitive and advanced telecommunications
2-52 environment and infrastructure, the legislature declares that new
2-53 rules, policies, and principles be formulated and applied to
2-54 protect the public interest.
2-55 Sec. 3.002. DEFINITIONS. In this title:
2-56 (1) "Basic local telecommunications service" means:
2-57 (A) flat rate residential and business local
2-58 exchange telephone service, including primary directory listings;
2-59 (B) tone dialing service;
2-60 (C) access to operator services;
2-61 (D) access to directory assistance services;
2-62 (E) access to 911 service where provided by a
2-63 local authority or dual party relay service;
2-64 (F) the ability to report service problems seven
2-65 days a week;
2-66 (G) lifeline and tel-assistance services; and
2-67 (H) any other service the commission, after a
2-68 hearing, determines should be included in basic local
2-69 telecommunications service.
2-70 (2) "Dominant carrier" means:
3-1 (A) a provider of any particular communication
3-2 service which is provided in whole or in part over a telephone
3-3 system who as to such service has sufficient market power in a
3-4 telecommunications market as determined by the commission to enable
3-5 such provider to control prices in a manner adverse to the public
3-6 interest for such service in such market; <and>
3-7 (B) any provider who provided <of> local
3-8 exchange telephone service within a certificated exchange area on
3-9 September 1, 1995, as to such service and as to any other service
3-10 for which a competitive alternative is not available in a
3-11 particular geographic market; and
3-12 (C) any provider of local exchange telephone
3-13 service within a certificated exchange area as to intraLATA long
3-14 distance message telecommunications service originated by dialing
3-15 the access code "1+" so long as the use of that code for the
3-16 origination of "1+" intraLATA calls within its certificated
3-17 exchange area is exclusive to that provider. A telecommunications
3-18 market shall be statewide until January 1, 1985. After this date
3-19 the commission may, if it determines that the public interest will
3-20 be served, establish separate markets within the state. The <Prior
3-21 to January 1, 1985, the> commission shall hold such hearings and
3-22 require such evidence as is necessary to carry out the public
3-23 purpose of this Act and to determine the need and effect of
3-24 establishing separate markets. Any such provider determined to be
3-25 a dominant carrier as to a particular telecommunications service in
3-26 a market may not be presumed to be a dominant carrier of a
3-27 different telecommunications service in that market. The term does
3-28 not include an interexchange carrier that is not a certificated
3-29 local exchange company, with respect to interexchange services.
3-30 (3) "Incumbent local exchange company" means a local
3-31 exchange company that has a certificate of convenience and
3-32 necessity on September 1, 1995.
3-33 (4) "Least cost technology" means the technology, or
3-34 mix of technologies, that would be chosen in the long run as the
3-35 most economically efficient choice, provided that the choice of
3-36 least cost technologies is:
3-37 (A) restricted to technologies that are
3-38 currently available on the market and for which vendor prices can
3-39 be obtained;
3-40 (B) consistent with the level of output
3-41 necessary to satisfy current demand levels for all services using
3-42 the basic network function in question; and
3-43 (C) consistent with overall network design and
3-44 topology requirements.
3-45 (5) <(2)> "Local exchange company" means a
3-46 telecommunications utility that has been granted either a
3-47 certificate of convenience and necessity or a certificate of
3-48 operating authority <certificated> to provide local exchange
3-49 telephone service, basic local telecommunications service, or
3-50 switched access service within the state.
3-51 (6) "Local exchange telephone service" means
3-52 telecommunications service provided within an exchange to establish
3-53 connections between customer premises within the exchange,
3-54 including connections between a customer premises and a long
3-55 distance provider serving the exchange. The term includes tone
3-56 dialing, service connection charges, and directory assistance
3-57 services when offered in connection with basic local
3-58 telecommunications service and interconnection with other service
3-59 providers. The term does not include the following services,
3-60 whether offered on an intraexchange or interexchange basis:
3-61 (A) central office based PBX-type services for
3-62 systems of 75 stations or more;
3-63 (B) billing and collection services;
3-64 (C) high-speed private line services of 1.544
3-65 megabits or greater;
3-66 (D) customized services;
3-67 (E) private line and virtual private line
3-68 services;
3-69 (F) resold or shared local exchange telephone
3-70 services if permitted by tariff;
4-1 (G) dark fiber services;
4-2 (H) non-voice data transmission service when
4-3 offered as a separate service and not as a component of basic local
4-4 telecommunications service;
4-5 (I) dedicated or virtually dedicated access
4-6 services; and
4-7 (J) any other service the commission declares is
4-8 not a "local exchange telephone service."
4-9 (7) "Long run incremental cost" or "LRIC" has the
4-10 meaning assigned by the commission in 16 T.A.C. Section 23.91.
4-11 (8) "Pricing flexibility" includes customer specific
4-12 contracts, volume, term, and discount pricing, zone density
4-13 pricing, packaging of services, and other promotional pricing
4-14 flexibility. Discounts and other forms of pricing flexibility may
4-15 not be preferential, prejudicial, or discriminatory.
4-16 (9) <(3)> "Public utility" or "utility" means any
4-17 person, corporation, river authority, cooperative corporation, or
4-18 any combination thereof, other than a municipal corporation, or
4-19 their lessees, trustees, and receivers, now or hereafter owning or
4-20 operating for compensation in this state equipment or facilities
4-21 for the conveyance, transmission, or reception of communications
4-22 over a telephone system as a dominant carrier (hereinafter
4-23 "telecommunications utility"). A person or corporation not
4-24 otherwise a public utility within the meaning of this Act may not
4-25 be deemed such solely because of the furnishing or furnishing and
4-26 maintenance of a private system or the manufacture, distribution,
4-27 installation, or maintenance of customer premise communications
4-28 equipment and accessories. Except as provided by Sections 3.606
4-29 and 3.608 of this Act, nothing <Nothing> in this Act shall be
4-30 construed to apply to companies whose only form of business is
4-31 being telecommunications managers, companies that administer
4-32 central office based or customer based PBX-type sharing/resale
4-33 arrangements as their only form of business, telegraph services,
4-34 television stations, radio stations, community antenna television
4-35 services, <or> radio-telephone services that may be authorized
4-36 under the Public Mobile Radio Services rules of the Federal
4-37 Communications Commission, or commercial mobile service providers,
4-38 under Sections 153(n) and 332(d), Communications Act of 1934 (47
4-39 U.S.C. Section 151 et seq.), Federal Communications Commission
4-40 rules, and the Omnibus Budget Reconciliation Act of 1993, other
4-41 than such radio-telephone services provided by wire-line telephone
4-42 companies under the Domestic Public Land Mobile Radio Service and
4-43 Rural Radio Service rules of the Federal Communications Commission.
4-44 Interexchange telecommunications carriers (including resellers of
4-45 interexchange telecommunications services), specialized
4-46 communications common carriers, other resellers of communications,
4-47 other communications carriers who convey, transmit, or receive
4-48 communications in whole or in part over a telephone system, <and>
4-49 providers of operator services as defined in Section 3.052(a) of
4-50 this Act (except that subscribers to customer-owned pay telephone
4-51 service may not be deemed to be telecommunications utilities), and
4-52 separated affiliate and electronic publishing joint ventures as
4-53 defined by Subtitle L of this title are also telecommunications
4-54 utilities, but the commission's regulatory authority as to them is
4-55 only as hereinafter defined. The term "public utility" or
4-56 "utility" does not include any person or corporation not otherwise
4-57 a public utility that furnishes the services or commodity described
4-58 in this section only to itself, its employees, or its tenants as an
4-59 incident of such employee service or tenancy, when such service or
4-60 commodity is not resold to or used by others.
4-61 (10) <(4)> "Separation" means the division of plant,
4-62 revenues, expenses, taxes, and reserves, applicable to exchange or
4-63 local service where such items are used in common for providing
4-64 public utility service to both local exchange telephone service and
4-65 other service, such as interstate or intrastate toll service.
4-66 (11) "Telecommunications provider" means a
4-67 certificated telecommunications utility, a shared tenant service
4-68 provider, a nondominant carrier of telecommunications services,
4-69 provider of radio-telephone service authorized under the Commercial
4-70 Mobile Service under Sections 153(n) and 332(d), Communications Act
5-1 of 1934 (47 U.S.C. Section 151 et seq.), Federal Communications
5-2 Commission rules, and the Omnibus Budget Reconciliation Act of
5-3 1993, a telecommunications entity that provides central office
5-4 based PBX-type sharing or resale arrangements, an interexchange
5-5 telecommunications carrier, a specialized common carrier, a
5-6 reseller of communications, a provider of operator services, a
5-7 provider of customer-owned pay telephone service, and other persons
5-8 or entities that the commission may from time to time find provide
5-9 telecommunications services to customers in this state. The term
5-10 does not include a provider of enhanced or information services, or
5-11 another user of telecommunications services, who does not also
5-12 provide telecommunications services or any state agency or state
5-13 institution of higher education, or any service provided by any
5-14 state agency or state institution of higher education.
5-15 (12) "Tier 1 local exchange company" means a Tier 1
5-16 local exchange company as defined by the Federal Communications
5-17 Commission.
5-18 SECTION 7. Section 3.051, Public Utility Regulatory Act of
5-19 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
5-20 Session, 1995, is amended by amending Subsections (a), (c)-(f),
5-21 (j), and (l)-(q) and adding Subsections (r) and (s) to read as
5-22 follows:
5-23 (a) It is the policy of this state to protect the public
5-24 interest in having adequate and efficient telecommunications
5-25 service available to all citizens of the state at just, fair, and
5-26 reasonable rates. The legislature finds that the
5-27 telecommunications industry through technical advancements, federal
5-28 legislative, judicial, and administrative actions, and the
5-29 formulation of new telecommunications enterprises has become and
5-30 will continue to be in many and growing areas a competitive
5-31 industry which does not lend itself to traditional public utility
5-32 regulatory rules, policies, and principles and that, therefore, the
5-33 public interest requires that new rules, policies, and principles
5-34 be formulated and applied to protect the public interest and to
5-35 provide equal opportunity to all telecommunications utilities in a
5-36 competitive marketplace. It is the purpose of this section to
5-37 grant to the commission the authority and the power under this Act
5-38 to carry out the public policy herein stated.
5-39 (c) Except as provided by Subsections (l), <and> (m), and
5-40 (s) of this section and Section 3.052 of this Act, the commission
5-41 shall only have the following jurisdiction over all
5-42 telecommunications utilities who are not dominant carriers:
5-43 (1) to require registration as provided in Subsection
5-44 (d) of this section;
5-45 (2) to conduct such investigations as are necessary to
5-46 determine the existence, impact, and scope of competition in the
5-47 telecommunications industry, including identifying dominant
5-48 carriers in the local telecommunications <exchange> and intralata
5-49 interexchange telecommunications industry and defining the
5-50 telecommunications market or markets, and in connection therewith
5-51 may call and hold hearings, issue subpoenas to compel the
5-52 attendance of witnesses and the production of papers and documents,
5-53 and make findings of fact and decisions with respect to
5-54 administering the provisions of this Act or the rules, orders, and
5-55 other actions of the commission;
5-56 (3) to require the filing of such reports as the
5-57 commission may direct from time to time;
5-58 (4) to require the maintenance of statewide average
5-59 rates or prices of telecommunications service;
5-60 (5) to require that every local exchange area have
5-61 access to local and interexchange telecommunications service,
5-62 except that a <an interexchange> telecommunications utility
5-63 <carrier> must be allowed to discontinue service to a local
5-64 exchange area if comparable service is available in the area and
5-65 the discontinuance is not contrary to the public interest; this
5-66 section does not authorize the commission to require a <an
5-67 interexchange> telecommunications utility <carrier> that has not
5-68 provided services to a local exchange area during the previous 12
5-69 months and that has never provided services to that same local
5-70 exchange area for a cumulative period of one year at any time in
6-1 the past to initiate services to that local exchange area; and
6-2 (6) to require the quality of <interexchange>
6-3 telecommunications service provided in each exchange to be adequate
6-4 to protect the public interest and the interests of customers of
6-5 that exchange if the commission determines that service to a local
6-6 exchange has deteriorated to the point that <long distance> service
6-7 is not reliable.
6-8 (d) All providers of communications service described in
6-9 Subsection (c) of this section who commence such service to the
6-10 public shall register with the commission within 30 days of
6-11 commencing service. Such registration shall be accomplished by
6-12 filing with the commission a description of the location and type
6-13 of service provided, the price <cost> to the public of such
6-14 service, and such other registration information as the commission
6-15 may direct. Notwithstanding any other provision of this Act, an
6-16 interexchange telecommunications utility <carrier> doing business
6-17 in this state shall continue to maintain on file with the
6-18 commission tariffs or lists governing the terms of providing its
6-19 services.
6-20 (e)(1) For the purpose of carrying out the public policy
6-21 stated in Subsection (a) of this section and any other section of
6-22 this Act notwithstanding, the commission is granted all necessary
6-23 power and authority under this Act to promulgate rules and
6-24 establish procedures applicable to incumbent local exchange
6-25 companies for determining the level of competition in specific
6-26 telecommunications markets and submarkets and providing appropriate
6-27 regulatory treatment to allow incumbent local exchange companies to
6-28 respond to significant competitive challenges. Nothing in this
6-29 section is intended to change the burden of proof of the incumbent
6-30 local exchange company under Sections 3.202, 3.203, 3.204, 3.205,
6-31 3.206, 3.207, and 3.208 of this Act.
6-32 (2) In determining the level of competition in a
6-33 specific market or submarket, the commission shall hold an
6-34 evidentiary hearing to consider the following:
6-35 (A) the number and size of telecommunications
6-36 utilities or other persons providing the same, equivalent, or
6-37 substitutable service;
6-38 (B) the extent to which the same, equivalent, or
6-39 substitutable service is available;
6-40 (C) the ability of customers to obtain the same,
6-41 equivalent, or substitutable services at comparable rates, terms,
6-42 and conditions;
6-43 (D) the ability of telecommunications utilities
6-44 or other persons to make the same, equivalent, or substitutable
6-45 service readily available at comparable rates, terms, and
6-46 conditions;
6-47 (E) the existence of any significant barrier to
6-48 the entry or exit of a provider of the service; and
6-49 (F) other relevant information deemed
6-50 appropriate.
6-51 (3) The regulatory treatments which the commission may
6-52 implement include but are not limited to:
6-53 (A) approval of a range of rates for a specific
6-54 service;
6-55 (B) approval of customer-specific contracts for
6-56 a specific service; provided, however, that the commission shall
6-57 approve a contract to provide central office based PBX-type
6-58 services for systems of 200 stations or more, billing and
6-59 collection services, high-speed private line services of 1.544
6-60 megabits or greater, and customized services, provided that the
6-61 contract is filed at least 30 days before initiation of the service
6-62 contracted for; that the contract is accompanied with an affidavit
6-63 from the person or entity contracting for the telecommunications
6-64 service stating that he considered the acquisition of the same,
6-65 equivalent, or substitutable services by bid or quotation from a
6-66 source other than the incumbent local exchange company; that the
6-67 incumbent local exchange company is recovering the appropriate
6-68 costs of providing the services; and that approval of the contract
6-69 is in the public interest; the contract shall be approved or denied
6-70 within 30 days after filing, unless the commission for good cause
7-1 extends the effective date for an additional 35 days; and
7-2 (C) the detariffing of rates.
7-3 (f) Moreover, in order to encourage the rapid introduction
7-4 of new or experimental services or promotional rates, the
7-5 commission shall promulgate rules and establish procedures which
7-6 allow the expedited introduction of, the establishment and
7-7 adjustment of rates for, and the withdrawal of such services,
7-8 including requests for such services made to the commission by the
7-9 governing body of a municipality served by an incumbent <a> local
7-10 exchange company having more than 500,000 access lines throughout
7-11 the state. Rates established or adjusted at the request of a
7-12 municipality may not result in higher rates for ratepayers outside
7-13 the boundaries of the municipality and may not include any rates
7-14 for incumbent local exchange company interexchange services or
7-15 interexchange carrier access service.
7-16 (j) Subsections (e) and (f) of this section are not
7-17 applicable to basic local telecommunications <exchange> service,
7-18 including local measured service. Paragraph (B) of Subdivision (3)
7-19 of Subsection (e) of this section is not applicable to message
7-20 telecommunications services, switched access services for
7-21 interexchange carriers, or wide area telecommunications service.
7-22 An incumbent <A> local exchange company may not price similar
7-23 services provided pursuant to contracts under Paragraph (B) of
7-24 Subdivision (3) of Subsection (e) of this section in an
7-25 unreasonably discriminatory manner. For purposes of this section,
7-26 similar services shall be defined as those services which are
7-27 provided at or near the same point in time, which have the same
7-28 characteristics, and which are provided under the same or similar
7-29 circumstances.
7-30 (l) Notwithstanding any other provision of this Act, the
7-31 commission may enter such orders as may be necessary to protect the
7-32 public interest, including the imposition on any specific service
7-33 or services of its full regulatory authority under this subtitle,
7-34 Subtitles C through F of this title, and Subtitles D through I of
7-35 Title I of this Act, but not Subtitles H and I of this title, if
7-36 the commission upon complaint from another interexchange
7-37 telecommunications utility <carrier> finds by a preponderance of
7-38 the evidence upon notice and hearing that an interexchange
7-39 telecommunications utility <carrier> has engaged in predatory
7-40 pricing or attempted to engage in predatory pricing.
7-41 (m) Notwithstanding any other provision of this Act, the
7-42 commission may enter such orders as may be necessary to protect the
7-43 public interest if the commission finds upon notice and hearing
7-44 that an interexchange telecommunications utility <carrier> has:
7-45 (1) failed to maintain statewide average rates;
7-46 (2) abandoned interexchange message telecommunications
7-47 service to a local exchange area in a manner contrary to the public
7-48 interest; or
7-49 (3) engaged in a pattern of preferential or
7-50 discriminatory activities prohibited by Sections <3.213 and> 3.215
7-51 and 3.217 of this Act, except that nothing in this Act shall
7-52 prohibit volume discounts or other discounts based on reasonable
7-53 business purposes.
7-54 (n) In any proceeding before the commission alleging conduct
7-55 or activities by an interexchange telecommunications utility
7-56 <carrier> against another interexchange telecommunications utility
7-57 <carrier> in contravention of Subsections (l), (m), and (o) of this
7-58 section, the burden of proof shall be upon the complaining
7-59 interexchange telecommunications utility <carrier>; however, in
7-60 such proceedings brought by customers or their representatives who
7-61 are not themselves interexchange telecommunications utilities
7-62 <carriers> or in such proceedings initiated by the commission, the
7-63 burden of proof shall be upon the respondent interexchange
7-64 telecommunications utility <carrier>. However, if the commission
7-65 finds it to be in the public interest, the commission may impose
7-66 the burden of proof in such proceedings on the complaining party.
7-67 (o) The commission shall have the authority to require that
7-68 a service provided by an interexchange telecommunications utility
7-69 <carrier described in Subsection (c) of this section> be made
7-70 available in an exchange served by the utility <carrier> within a
8-1 reasonable time after receipt of a bona fide request for such
8-2 service in that exchange, subject to the ability of the local
8-3 exchange company to provide the required access or other service.
8-4 A utility <carrier> may not be required to extend a service to an
8-5 area if provision of that service would impose, after consideration
8-6 of the public interest to be served, unreasonable costs upon or
8-7 require unreasonable investments by the interexchange
8-8 telecommunications utility <carrier>. The commission may require
8-9 such information from interexchange utilities <carriers> and local
8-10 exchange companies <carriers> as may be necessary to enforce this
8-11 provision.
8-12 (p) The commission may exempt from any requirement of this
8-13 section an interexchange telecommunications utility <carrier> that
8-14 the commission determines does not have a significant effect on the
8-15 public interest, and it may exempt any interexchange
8-16 telecommunications utility <carrier> which solely relies on the
8-17 facilities of others to complete long distance calls if the
8-18 commission deems this action to be in the public interest.
8-19 (q) Requirements imposed by Subsections (c), (d), (k),
8-20 <(l),> (m), (n), (o), and (p) of this section on an interexchange
8-21 telecommunications utility <carrier> shall apply to nondominant
8-22 carriers and shall constitute the minimum requirements to be
8-23 imposed by the commission for any dominant carrier.
8-24 (r) The commission may, only as necessary to enforce its
8-25 limited jurisdiction, prescribe forms of books, accounts, records,
8-26 and memoranda to be kept by a company that has a certificate of
8-27 operating authority or service provider certificate of operating
8-28 authority under Subtitle F of this title that in the judgment of
8-29 the commission may be necessary to carry out the limited
8-30 jurisdiction over those companies that this Act provides to the
8-31 commission.
8-32 (s)(1) Except as otherwise specifically provided by this
8-33 Act, the commission shall have only the following authority over a
8-34 holder of a certificate of operating authority or service provider
8-35 certificate of operating authority:
8-36 (A) to enforce the applicable provisions of this
8-37 Act as provided by Subtitle I, Title I, of this Act;
8-38 (B) to assert jurisdiction over a specific
8-39 service in accordance with Section 3.2572 of this Act;
8-40 (C) to require co-carriage reciprocity; and
8-41 (D) to regulate condemnation and building
8-42 access.
8-43 (2) The commission may not impose on a
8-44 telecommunications utility that has a certificate of operating
8-45 authority or service provider certificate of operating authority a
8-46 rule or regulatory practice under this section that imposes a
8-47 greater regulatory burden on that telecommunications utility than
8-48 is imposed on a certificate of convenience and necessity holder
8-49 serving the same area.
8-50 SECTION 8. Subtitle B, Title III, Public Utility Regulatory
8-51 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
8-52 Regular Session, 1995, is amended by adding Section 3.053 to read
8-53 as follows:
8-54 Sec. 3.053. SALE OF PROPERTY. (a) The commission shall
8-55 complete an investigation under Section 1.251 of this Act that
8-56 relates to a public utility and enter a final order within 180 days
8-57 after the date of notification by the utility. If an order is not
8-58 entered, the utility's action is considered consistent with the
8-59 public interest.
8-60 (b) Section 1.251 of this Act does not apply to an incumbent
8-61 local exchange company electing under Subtitle H of this title or
8-62 to a company that receives a certificate of operating authority or
8-63 a service provider certificate of operating authority under
8-64 Subtitle F of this title.
8-65 SECTION 9. Subtitle C, Title III, Public Utility Regulatory
8-66 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
8-67 Regular Session, 1995, is amended by adding Section 3.1015 to read
8-68 as follows:
8-69 Sec. 3.1015. MUNICIPAL FEES. Nothing in this Act may be
8-70 construed as in any way limiting the right of a public utility to
9-1 pass through municipal fees, including any increase in municipal
9-2 fees. A public utility that traditionally passes through municipal
9-3 fees shall promptly pass through any reductions.
9-4 SECTION 10. Section 3.151(a), Public Utility Regulatory Act
9-5 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
9-6 Regular Session, 1995, is amended to read as follows:
9-7 (a) The commission shall fix proper and adequate rates and
9-8 methods of depreciation, amortization, or depletion of the several
9-9 classes of property of each public utility and shall require every
9-10 public utility to carry a proper and adequate depreciation account
9-11 in accordance with such rates and methods and with such other rules
9-12 and regulations as the commission prescribes. On application of a
9-13 utility, the commission shall fix depreciation rates that promote
9-14 deployment of new technology and infrastructure. In setting those
9-15 rates, the commission shall consider depreciation practices of
9-16 nonregulated telecommunications providers. Such rates, methods,
9-17 and accounts shall be utilized uniformly and consistently
9-18 throughout the ratesetting and appeal proceedings. A company
9-19 electing under Subtitle H of this title may determine its own
9-20 depreciation rates and amortizations, but shall notify the
9-21 commission of any changes.
9-22 SECTION 11. Subtitle D, Title III, Public Utility Regulatory
9-23 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
9-24 Regular Session, 1995, is amended by adding Section 3.1545 to read
9-25 as follows:
9-26 Sec. 3.1545. RECORDS. Notwithstanding Section 1.204 of this
9-27 Act, books, accounts, records, or memoranda of a public utility may
9-28 be removed from the state so long as those books, accounts,
9-29 records, or memoranda are returned to the state for any inspection
9-30 by the commission that is authorized by this Act.
9-31 SECTION 12. Subtitle D, Title III, Public Utility Regulatory
9-32 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
9-33 Regular Session, 1995, is amended by adding Section 3.1555 to read
9-34 as follows:
9-35 Sec. 3.1555. MINIMUM SERVICES. (a) Except as provided by
9-36 Subsection (d) of this section, the commission shall require each
9-37 holder of a certificate of convenience and necessity or certificate
9-38 of operating authority in this state to provide at the applicable
9-39 tariff rate, if any, to all customers, irrespective of race,
9-40 national origin, income, or residence in an urban or rural area,
9-41 not later than December 31, 2000:
9-42 (1) single party service;
9-43 (2) tone-dialing service;
9-44 (3) basic custom calling features;
9-45 (4) equal access for interLATA interexchange carriers
9-46 on a bona fide request; and
9-47 (5) digital switching capability in all exchanges on
9-48 customer request, provided by a digital switch in the exchange or
9-49 by connection to a digital switch in another exchange.
9-50 (b) Notwithstanding Subsection (a) of this section, an
9-51 electing incumbent local exchange company serving as of January 1,
9-52 1995, more than 175,000 but fewer than 1,500,000 access lines shall
9-53 install digital switches in its central offices serving exchanges
9-54 of less than 20,000 access lines before December 31, 1998.
9-55 (c) The commission may temporarily waive these requirements
9-56 on a showing of good cause. The commission may not consider the
9-57 cost of implementing this section in determining whether an
9-58 electing company is entitled to a rate increase under Subtitle H or
9-59 I of this title or increased universal service funds under Section
9-60 3.608 of this Act.
9-61 (d) This section does not affect the requirement prescribed
9-62 by 16 T.A.C. Section 23.69 that, not later than July 1, 1996, each
9-63 local exchange company shall make ISDN available to all customers
9-64 in exchange areas of the company that have at least 50,000 access
9-65 lines.
9-66 SECTION 13. Subtitle D, Title III, Public Utility Regulatory
9-67 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
9-68 Regular Session, 1995, is amended by adding Section 3.1556 to read
9-69 as follows:
9-70 Sec. 3.1556. RECONNECTION FEE. The commission shall
10-1 establish a reasonable limit on the amount that a local exchange
10-2 company may charge a customer for changing the location at which
10-3 the customer receives service.
10-4 SECTION 14. Sections 3.201 and 3.202, Public Utility
10-5 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
10-6 Legislature, Regular Session, 1995, are amended to read as follows:
10-7 Sec. 3.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
10-8 Subject to the provisions of this Act, the commission is hereby
10-9 vested with all authority and power of the State of Texas to insure
10-10 compliance with the obligations of public utilities in this Act.
10-11 Except as <To the extent> otherwise provided by this Act, the
10-12 commission is empowered to fix and regulate rates of public
10-13 utilities, including rules and regulations for determining the
10-14 classification of customers and services and for determining the
10-15 applicability of rates. A rule or order of the commission may not
10-16 conflict with the rulings of any federal regulatory body.
10-17 Sec. 3.202. JUST AND REASONABLE RATES. It shall be the duty
10-18 of the commission to insure that every rate made, demanded, or
10-19 received by any public utility or by any two or more utilities
10-20 jointly shall be just and reasonable. Rates may not be
10-21 unreasonably preferential, prejudicial, or discriminatory, but
10-22 shall be sufficient, equitable, and consistent in application to
10-23 each class of consumers. For ratemaking purposes, the commission
10-24 may treat two or more municipalities served by a public utility as
10-25 a single class wherever it deems such treatment to be appropriate.
10-26 Approval by the commission of a reduced rate for service for a
10-27 class of consumers eligible under Section 3.602 <3.352> of this Act
10-28 for tel-assistance service does not constitute a violation of this
10-29 section.
10-30 SECTION 15. Section 3.204, Public Utility Regulatory Act of
10-31 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
10-32 Session, 1995, is amended to read as follows:
10-33 Sec. 3.204. BURDEN OF PROOF. Except as hereafter provided,
10-34 in any proceeding involving any proposed change of rates, the
10-35 burden of proof to show that the proposed change, if proposed by
10-36 the utility, or that the existing rate, if it is proposed to reduce
10-37 the rate, is just and reasonable shall be on the public utility.
10-38 In any proceeding involving an incumbent <a> local exchange company
10-39 in which the incumbent local exchange company's rate or rates are
10-40 in issue, the burden of proof that such rate or rates are just and
10-41 reasonable shall be on the incumbent local exchange company.
10-42 SECTION 16. Section 3.208(b), Public Utility Regulatory Act
10-43 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
10-44 Regular Session, 1995, is amended to read as follows:
10-45 (b) Transactions with Affiliated Interests. Payment to
10-46 affiliated interests for costs of any services or any property,
10-47 right, or thing or for interest expense may not be allowed either
10-48 as capital cost or as expense except to the extent that the
10-49 commission shall find such payment to be reasonable and necessary
10-50 for each item or class of items as determined by the commission.
10-51 Any such finding shall include specific findings of the
10-52 reasonableness and necessity of each item or class of items allowed
10-53 and a finding that the price to the utility is no higher than
10-54 prices charged by the supplying affiliate to its other affiliates
10-55 or divisions for the same item or class of items, or to
10-56 unaffiliated persons or corporations within the same market areas
10-57 or having the same market conditions. If the supplying affiliate
10-58 has calculated its charges to the utility in a manner consistent
10-59 with the rules of the Federal Communications Commission, no finding
10-60 shall be required as to the price charged by the supplying
10-61 affiliate to its other affiliates or divisions. In any case in
10-62 which the commission finds that the test period affiliate expense
10-63 is unreasonable, the commission shall determine the reasonable
10-64 level of the expense and shall include such expense in determining
10-65 the utility's cost of service.
10-66 SECTION 17. Section 3.210, Public Utility Regulatory Act of
10-67 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
10-68 Session, 1995, is amended by adding Subsection (c) to read as
10-69 follows:
10-70 (c) Except as provided by Subtitles H and I of this title,
11-1 this section does not apply to a company electing into Subtitle H
11-2 or I of this title. However, the commission shall retain
11-3 jurisdiction to hear and resolve complaints regarding an electing
11-4 company's compliance with obligations imposed by this Act.
11-5 SECTION 18. Section 3.211, Public Utility Regulatory Act of
11-6 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
11-7 Session, 1995, is amended by amending Subsections (f) and (h) and
11-8 adding Subsection (j) to read as follows:
11-9 (f) If, after hearing, the commission finds the rates to be
11-10 unreasonable or in any way in violation of any provision of law,
11-11 the commission shall determine the level of rates to be charged or
11-12 applied by the utility for the service in question and shall fix
11-13 the same by order to be served upon the utility; these rates are
11-14 thereafter to be observed until changed, as provided by this Act.
11-15 Except as provided by Subtitles H, I, and J of this title, this
11-16 subsection does not apply to a company electing into Subtitle H or
11-17 I of this title. Rates established under this section after a
11-18 company's election must comply with Subtitle H or I of this title.
11-19 (h) If the commission does not make a final determination
11-20 concerning an incumbent <a> local exchange company's schedule of
11-21 rates prior to the expiration of the 150-day suspension period, the
11-22 schedule of rates finally approved by the commission shall become
11-23 effective and the incumbent local exchange company shall be
11-24 entitled to collect such rates from the date the 150-day suspension
11-25 period expired. Any surcharges or other charges necessary to
11-26 effectuate this subsection may not be recovered over a period of
11-27 less than 90 days from the date of the commission's final order.
11-28 (j) An incumbent local exchange company may file with the
11-29 commission tariffs for switched access service that have been
11-30 approved by the Federal Communications Commission, provided that
11-31 the tariffs include all rate elements in the company's interstate
11-32 access tariff other than end user charges. If on review the filed
11-33 tariffs contain the same rates, terms, and conditions, excluding
11-34 any end user charges, as approved by the Federal Communications
11-35 Commission, the commission shall order the rates to be the
11-36 intrastate switched access rates, terms, and conditions for the
11-37 incumbent local exchange company within 60 days of filing.
11-38 SECTION 19. Sections 3.212(a) and (c), Public Utility
11-39 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
11-40 Legislature, Regular Session, 1995, are amended to read as follows:
11-41 (a) An incumbent <A> local exchange company may make changes
11-42 in its tariffed rules, regulations, or practices that do not affect
11-43 its charges or rates by filing the proposed changes with the
11-44 commission at least 35 days prior to the effective date of the
11-45 changes. The commission may require such notice to ratepayers as
11-46 it considers appropriate.
11-47 (c) The commission shall approve, deny, or modify the
11-48 proposed changes before expiration of the suspension period. In
11-49 any proceeding under this section, the burden of proving that the
11-50 requested relief is in the public interest and complies with this
11-51 Act shall be borne by the incumbent local exchange company.
11-52 SECTION 20. Subtitle E, Title III, Public Utility Regulatory
11-53 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
11-54 Regular Session, 1995, is amended by amending Section 3.213 and
11-55 adding Section 3.2135 to read as follows:
11-56 Sec. 3.213. <COOPERATIVE OR> SMALL INCUMBENT LOCAL EXCHANGE
11-57 COMPANIES<; STATEMENT OF INTENT TO CHANGE RATES; NOTICE OF INTENT;
11-58 SUSPENSION OF RATE SCHEDULE; REVIEW>. (a) The legislature finds
11-59 that regulatory policy should recognize differences between the
11-60 small and large incumbent local exchange companies, that there are
11-61 a large number of customer-owned telephone cooperatives and small,
11-62 locally owned investor companies, and that it is appropriate to
11-63 provide incentives and flexibility to allow incumbent local
11-64 exchange companies that serve the rural areas to provide existing
11-65 services and to introduce new technology and new services in a
11-66 prompt, efficient, and economical manner.
11-67 (b) Except as otherwise provided by this section, an
11-68 incumbent local exchange company that is a cooperative corporation,
11-69 or that, together with all affiliated incumbent local exchange
11-70 companies, has fewer than 31,000 access lines in service in this
12-1 state may offer extended local calling services or new services on
12-2 an optional basis or make minor changes in its rates or tariffs if
12-3 the company:
12-4 (1) files with the commission and the office a
12-5 statement of intent, as prescribed by Subsection (c) of this
12-6 section, not later than the 91st day before the date on which the
12-7 proposed change will take effect;
12-8 (2) provides notice as prescribed by Subsection (d) of
12-9 this section; and
12-10 (3) files with the commission affidavits verifying the
12-11 provision of notice as prescribed by Subsection (d) of this
12-12 section.
12-13 (c) The statement of intent required by Subsection (b)(1) of
12-14 this section must include:
12-15 (1) a copy of a resolution approving the proposed
12-16 change by the incumbent local exchange telephone company's board of
12-17 directors;
12-18 (2) a description of the services affected by the
12-19 proposed change;
12-20 (3) a copy of the proposed tariff for the affected
12-21 service;
12-22 (4) a copy of the customer notice required by
12-23 Subsection (b)(2) of this section;
12-24 (5) the number of access lines the company and each
12-25 affiliate has in service in this state; and
12-26 (6) the amount by which the company's total regulated
12-27 intrastate gross annual revenues will increase or decrease as a
12-28 result of the proposed change.
12-29 (d) The incumbent local exchange company shall provide
12-30 notice to affected customers in the manner prescribed by the
12-31 commission not later than the 61st day before the date on which the
12-32 proposed change will take effect. Each notice prescribed by the
12-33 commission must include:
12-34 (1) a description of the services affected by the
12-35 proposed change;
12-36 (2) the effective date of the proposed change;
12-37 (3) an explanation of the customer's right to petition
12-38 the commission for a review under Subsection (e) of this section,
12-39 including the number of persons required to petition before a
12-40 commission review will occur;
12-41 (4) an explanation of the customer's right to obtain
12-42 information concerning how to obtain a copy of the proposed tariff
12-43 from the company;
12-44 (5) the amount by which the company's total regulated
12-45 intrastate gross annual revenues will increase or decrease as a
12-46 result of the proposed change; and
12-47 (6) a list of rates that are affected by the proposed
12-48 rate change.
12-49 (e) The commission shall review a proposed change filed
12-50 under this section if:
12-51 (1) the commission receives complaints relating to the
12-52 proposed change signed by the lesser of five percent or 1,500 of
12-53 the affected local service customers;
12-54 (2) the commission receives a complaint relating to
12-55 the proposed change from an affected intrastate access customer, or
12-56 a group of affected intrastate access customers, that in the
12-57 preceding 12 months accounted for more than 10 percent of the
12-58 company's total intrastate gross access revenues;
12-59 (3) the proposed change is not a minor change;
12-60 (4) the company does not comply with the procedural
12-61 requirements of this section; or
12-62 (5) the proposed change is inconsistent with the
12-63 commission's substantive policies as expressed in its rules.
12-64 (f) On review, the commission may suspend the proposed
12-65 tariff during the pendency of review.
12-66 (g) This section does not prohibit an incumbent local
12-67 exchange company from filing for a new service or rate change under
12-68 another applicable section of this Act or the commission from
12-69 conducting a review in accordance with Section 3.210 of this Act.
12-70 (h) In this section, "minor change" means a change,
13-1 including the restructuring of rates of existing services, that
13-2 decreases the rates or revenues of the incumbent local exchange
13-3 company or that, together with any other rate or proposed or
13-4 approved tariff changes in the 12 months preceding the date on
13-5 which the proposed change will take effect, results in an increase
13-6 of the company's total regulated intrastate gross annual revenues
13-7 by not more than five percent. Further, with regard to a change to
13-8 a basic local access line rate, a minor change may not, together
13-9 with any other change to that rate that went into effect during the
13-10 12 months preceding the proposed effective date of the requested
13-11 change, result in an increase of more than 10 percent. <Except as
13-12 otherwise provided by this section, a local exchange company that
13-13 is a cooperative corporation or that has fewer than 5,000 access
13-14 lines in service in this state may change rates by publishing
13-15 notice of the change at least 60 days before the date of the change
13-16 in the place and form as prescribed by the commission. The notice
13-17 must include:>
13-18 <(1) the reasons for the rate change;>
13-19 <(2) a description of the affected service;>
13-20 <(3) an explanation of the right of the subscriber to
13-21 petition the commission for a hearing on the rate change; and>
13-22 <(4) a list of rates that are affected by the proposed
13-23 rate change.>
13-24 <(b) At least 60 days before the date of the change, the
13-25 local exchange company shall file with the commission a statement
13-26 of intent to change rates containing:>
13-27 <(1) a copy of the notice required by Subsection (a)
13-28 of this section;>
13-29 <(2) the number of access lines the company has in
13-30 service in this state;>
13-31 <(3) the date of the most recent commission order
13-32 setting rates of the company;>
13-33 <(4) the increase in total gross annual local revenues
13-34 that will be produced by the proposed rates;>
13-35 <(5) the increase in total gross annual local revenues
13-36 that will be produced by the proposed rates together with any local
13-37 rate changes which went into effect during the 12 months preceding
13-38 the proposed effective date of the requested rate change and any
13-39 other proposed local rate changes then pending before the
13-40 commission;>
13-41 <(6) the increase in rates for each service category;
13-42 and>
13-43 <(7) other information the commission by rule
13-44 requires.>
13-45 <(c) The commission shall review a proposed change in the
13-46 rates set by a local exchange company under this section upon the
13-47 receipt of complaints signed by at least five percent of all
13-48 affected subscribers or upon its own motion. The commission may
13-49 require notice to ratepayers as it considers appropriate. If
13-50 sufficient complaints are presented to the commission within 60
13-51 days after the date notice of the rate change was sent to
13-52 subscribers, the commission shall review the proposed change.
13-53 After notice to the local exchange company, the commission may
13-54 suspend the rates during the pendency of the review and reinstate
13-55 the rates previously in effect. Review under this subsection shall
13-56 be as provided by Section 3.211 of this Act. The period for review
13-57 by the commission does not begin until the local exchange company
13-58 files a complete rate-filing package.>
13-59 <(d) If the commission has entered an order setting a rate,
13-60 the affected local exchange company may not change that rate under
13-61 this section before 365 days after the date of the commission's
13-62 order setting the rate.>
13-63 <(e) This section does not prohibit a local exchange company
13-64 from filing for a rate change under any other applicable section of
13-65 this Act.>
13-66 <(f) The commission shall review a proposed change in the
13-67 rates of a local exchange company under this section if the
13-68 proposed rates, together with any local rate changes which went
13-69 into effect during the 12 months preceding the proposed effective
13-70 date of the requested rate change as well as any other proposed
14-1 local rate changes then pending before the commission, will
14-2 increase its total gross annual local revenues by more than 2-1/2
14-3 percent or if the proposed change would increase the rate of any
14-4 service category by more than 25 percent, except for basic local
14-5 service, which shall be limited to a maximum of 2-1/2 percent of
14-6 the total gross annual local revenue. Review under this subsection
14-7 shall be as provided by Section 3.211 of this Act. Each local
14-8 exchange company may receive a change in its local rates or in any
14-9 service category pursuant to this section only one time in any
14-10 12-month period.>
14-11 (i) <(g)> Rates established under this section must be in
14-12 accordance with the rate-setting principles of this subtitle.
14-13 However, companies may provide to their board members, officers,
14-14 employees, and agents free or reduced rates for services.
14-15 (j)(1) The commission shall, within 120 days of the
14-16 effective date of this section, examine its policies, its reporting
14-17 requirements, and its procedural and substantive rules as they
14-18 relate to rural and small incumbent local exchange companies and
14-19 cooperatives to eliminate or revise those that place unnecessary
14-20 burdens and expenses on those companies. Notwithstanding any other
14-21 provisions of this Act, the commission shall consider and may adopt
14-22 policies that include the following:
14-23 (A) policies to allow those companies to provide
14-24 required information by report or otherwise as necessary, including
14-25 a rate filing package when required, in substantially less
14-26 burdensome and complex form than required of larger incumbent local
14-27 exchange companies;
14-28 (B) policies that permit consideration of the
14-29 company's future construction plans and operational changes in
14-30 evaluating the reasonableness of current rates;
14-31 (C) policies that provide for evaluation of the
14-32 overall reasonableness of current rates no more frequently than
14-33 once every three years;
14-34 (D) policies that permit companies to change
14-35 depreciation and amortization rates when customer rates are not
14-36 affected by notice to the commission, subject to review by the
14-37 commission in a proceeding under Section 3.210 or 3.211 of this
14-38 Act;
14-39 (E) policies to allow the incumbent local
14-40 exchange companies to adopt for new services the rates for the same
14-41 or substantially similar services offered by a larger incumbent
14-42 local exchange company, without commission requirement of
14-43 additional cost justification; and
14-44 (F) policies that allow an incumbent local
14-45 exchange company, instead of any management audit that would
14-46 otherwise be required by law, policy, or rule, to submit to the
14-47 commission financial audits of the company regularly performed by
14-48 independent auditors or required and performed as a result of the
14-49 company's participation in federal or state financing or
14-50 revenue-sharing programs.
14-51 (2) Notwithstanding any other relevant provision of
14-52 this Act, the commission may adopt policies under this subsection
14-53 that the commission considers appropriate.
14-54 (k) <(h)> The commission is granted all necessary power and
14-55 authority to prescribe and collect fees and assessments from
14-56 incumbent local exchange companies necessary to recover the
14-57 commission's and the office's costs of activities carried out and
14-58 services provided under this section, Subsection (h) of Section
14-59 3.211, and Sections <Section> 3.212 and 3.2135 of this Act.
14-60 (l) Except as provided in Subsection (j), this section may
14-61 not apply to any incumbent local exchange company that is a
14-62 cooperative corporation partially deregulated under the provisions
14-63 of Section 3.2135 of this Act.
14-64 Sec. 3.2135. COOPERATIVE CORPORATIONS. (a) An incumbent
14-65 local exchange company that is a cooperative corporation may vote
14-66 to partially deregulate the cooperative by sending a ballot to each
14-67 cooperative member. The ballot may be included in a bill or sent
14-68 separately. The ballot shall provide for voting for or against the
14-69 proposition: "Authorizing the partial deregulation of the (name of
14-70 the cooperative)."
15-1 (b) The cooperative is deemed to be partially deregulated if
15-2 a majority of the ballots returned to the cooperative not later
15-3 than the 45th day after the date on which the ballots are mailed
15-4 favor deregulation.
15-5 (c) After the initial balloting, the cooperative may offer
15-6 extended local calling services, offer new services on an optional
15-7 basis, or make changes in its rates or tariffs if the cooperative:
15-8 (1) provides notice of the proposed action under this
15-9 section to all customers and municipalities as prescribed by
15-10 Subsection (e) of this section;
15-11 (2) files with the commission affidavits verifying the
15-12 provision of notice as prescribed by Subsection (f) of this
15-13 section; and
15-14 (3) files a statement of intent under Subsection (d)
15-15 of this section.
15-16 (d) A statement of intent to use this section must be filed
15-17 with the commission and the office not later than the 61st day
15-18 before the date on which a proposed change will take effect and
15-19 must include:
15-20 (1) a copy of a resolution approving the proposed
15-21 action and authorizing the filing of the statement of intent signed
15-22 by a majority of the members of the cooperative's board of
15-23 directors;
15-24 (2) a description of the services affected by the
15-25 proposed action;
15-26 (3) a copy of the proposed tariff for the affected
15-27 service; and
15-28 (4) a copy of the customer notice required by this
15-29 section.
15-30 (e) The cooperative shall provide to all affected customers
15-31 and parties, including municipalities, at least two notices of the
15-32 proposed action by bill insert or by individual notice. The
15-33 cooperative shall provide the first notice not later than the 61st
15-34 day before the date on which the proposed action will take effect.
15-35 The cooperative shall provide the last notice not later than the
15-36 31st day before the date on which the proposed action will take
15-37 effect. Each notice prescribed by this subsection must include:
15-38 (1) a description of the services affected by the
15-39 proposed action;
15-40 (2) the effective date of the proposed action;
15-41 (3) an explanation of the customer's right to petition
15-42 the commission for a review under Subsection (g) of this section;
15-43 (4) an explanation of the customer's right to obtain a
15-44 copy of the proposed tariff from the cooperative;
15-45 (5) the amount by which the cooperative's total gross
15-46 annual revenues will increase or decrease and a statement
15-47 explaining the effect on the cooperative revenues as a result of
15-48 the proposed action; and
15-49 (6) a list of rates that are affected by the proposed
15-50 rate action, showing the effect of the proposed action on each such
15-51 rate.
15-52 (f) Not later than the 15th day before the date on which the
15-53 proposed action will take effect, the cooperative shall file with
15-54 the commission affidavits that verify that the cooperative provided
15-55 each notice prescribed under Subsection (e) of this section.
15-56 (g)(1) The commission shall review a proposed action filed
15-57 under this section if:
15-58 (A) the commission receives, not later than the
15-59 45th day after the first notice is provided under Subsection (e) of
15-60 this section, complaints relating to the proposed action:
15-61 (i) signed by at least five percent of the
15-62 affected local service customers; or
15-63 (ii) from an affected intrastate access
15-64 customer, or group of affected intrastate access customers, that in
15-65 the preceding 12 months accounted for more than 10 percent of the
15-66 cooperative's total intrastate access revenues;
15-67 (B) the cooperative does not comply with the
15-68 procedural requirements of this section; or
15-69 (C) the proposed action is inconsistent with the
15-70 commission's substantive policies as expressed in its rules.
16-1 (2) If the commission conducts a review of the
16-2 proposed action under this subsection before the effective date,
16-3 the commission may suspend the proposed actions of the cooperative
16-4 during the pendency of the review.
16-5 (h) A cooperative that is partially deregulated under this
16-6 section may vote to reverse the deregulation by sending a ballot
16-7 to each cooperative member. Upon its own motion or within 60 days
16-8 upon receipt of a written request of 10 percent of its members, the
16-9 cooperative's board of directors shall reballot. The ballot may be
16-10 included in a bill or sent separately. The ballot shall provide
16-11 for voting for or against the proposition: "Reversing the partial
16-12 deregulation of the (name of the cooperative)." The partial
16-13 deregulation is reversed if a majority of the ballots returned to
16-14 the cooperative not later than the 45th day after the date on which
16-15 the ballots are mailed favor reversal.
16-16 (i) The commission by rule shall prescribe the voting
16-17 procedures a cooperative is required to use under this section.
16-18 (j) This section does not:
16-19 (1) prohibit a cooperative from filing for a new
16-20 service or rate change under another applicable section of this
16-21 Act; or
16-22 (2) affect the application of other provisions of this
16-23 Act not directly related to ratemaking or the authority of the
16-24 commission to require the cooperative to file reports as required
16-25 under this Act, Section 3.213(j) of this Act, or under the rules
16-26 adopted by the commission.
16-27 (k) Notwithstanding any other provision of this section, the
16-28 commission may conduct a review in accordance with Section 3.210 of
16-29 this Act.
16-30 SECTION 21. Subtitle E, Title III, Public Utility Regulatory
16-31 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
16-32 Regular Session, 1995, is amended by adding Section 3.219 to read
16-33 as follows:
16-34 Sec. 3.219. INTRALATA CALLS. (a) Except as provided by
16-35 Subsection (b) of this section, while any local exchange company in
16-36 this state is prohibited by federal law from providing interLATA
16-37 telecommunications services, the local exchange companies in this
16-38 state designated or de facto authorized to receive "0+" and "1+"
16-39 dialed intraLATA calls shall be exclusively designated or
16-40 authorized to receive those calls.
16-41 (b) A telecommunications utility operating under a
16-42 certificate of operating authority or service provider certificate
16-43 of operating authority to the extent not restricted by Section
16-44 3.2532(f) of this Act is de facto authorized to receive "0+" and
16-45 "1+" dialed intraLATA calls on the date on which the utility
16-46 receives its certificate.
16-47 (c) Effective as of the time the local exchange company is
16-48 allowed by federal law to provide interLATA telecommunications
16-49 services, the commission shall ensure that customers may designate
16-50 a provider of their choice to carry their "0+" and "1+" dialed
16-51 intraLATA calls and that equal access in the public network is
16-52 implemented such that the provider may carry such calls.
16-53 SECTION 22. Section 3.251, Public Utility Regulatory Act of
16-54 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
16-55 Session, 1995, is amended by adding Subsections (c) and (d) to read
16-56 as follows:
16-57 (c) A person may not provide local exchange telephone
16-58 service, basic local telecommunications service, or switched access
16-59 service without a certificate of convenience and necessity, a
16-60 certificate of operating authority, or a service provider
16-61 certificate of operating authority.
16-62 (d) A municipality may not receive a certificate of
16-63 convenience and necessity, certificate of operating authority, or
16-64 service provider certificate of operating authority under this Act.
16-65 In addition, a municipality may not provide a service for which a
16-66 certificate is required.
16-67 SECTION 23. Section 3.252, Public Utility Regulatory Act of
16-68 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
16-69 Session, 1995, is amended to read as follows:
16-70 Sec. 3.252. EXCEPTIONS <FOR EXTENSION OF SERVICE>. (a) A
17-1 telecommunications <public> utility is not required to secure a
17-2 certificate of public convenience and necessity, certificate of
17-3 operating authority, or service provider certificate of operating
17-4 authority for:
17-5 (1) an extension into territory contiguous to that
17-6 already served by it and not receiving similar service from another
17-7 telecommunications <public> utility and not within the certificated
17-8 area <of public convenience and necessity> of another
17-9 telecommunications utility <of the same kind>;
17-10 (2) an extension within or to territory already served
17-11 by it or to be served by it under a certificate of public
17-12 convenience and necessity, certificate of operating authority, or
17-13 service provider certificate of operating authority; <or>
17-14 (3) operation, extension, or service in progress on
17-15 September 1, 1975; or
17-16 (4) interexchange telecommunications service,
17-17 non-switched private line service, shared tenant service,
17-18 specialized communications common carrier service, commercial
17-19 mobile service, or operator service as defined by Section 3.052(a)
17-20 of this Act.
17-21 (b) Any extensions allowed by Subsection (a) of this section
17-22 shall be limited to devices for interconnection of existing
17-23 facilities or devices used solely for transmitting
17-24 telecommunications <public> utility services from existing
17-25 facilities to customers of retail utility service.
17-26 SECTION 24. Subtitle F, Title III, Public Utility Regulatory
17-27 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
17-28 Regular Session, 1995, is amended by adding Section 3.2531 to read
17-29 as follows:
17-30 Sec. 3.2531. CERTIFICATE OF OPERATING AUTHORITY. (a) In
17-31 lieu of applying for a certificate of convenience and necessity, an
17-32 applicant may apply for a certificate of operating authority.
17-33 (b) An application for a certificate of operating authority
17-34 shall specify whether the applicant is seeking a facilities based
17-35 certificate of operating authority under this section or a service
17-36 provider certificate of operating authority under Section 3.2532.
17-37 When an application for a certificate of operating authority or
17-38 service provider certificate of operating authority is filed, the
17-39 commission shall give notice of the application to interested
17-40 parties and, if requested, shall fix a time and place for a hearing
17-41 and give notice of the hearing. Any person interested in the
17-42 application may intervene at the hearing.
17-43 (c) If seeking a facilities based certificate of operating
17-44 authority, the applicant must include in the application a proposed
17-45 build-out plan demonstrating how the applicant will deploy its
17-46 facilities throughout the geographic area of its certificated
17-47 service area over a six-year period. The commission may issue
17-48 rules for a holder of a certificate of operating authority with
17-49 respect to the time within which the holder must be able to serve
17-50 customers, except that a holder must serve customers within a
17-51 build-out area within 30 days of the date of a customer request for
17-52 service. The commission may not require a holder to place "drop"
17-53 facilities on every customer's premises or to activate fiber optic
17-54 facilities in advance of customer request as part of the build-out
17-55 requirements. The plan required by this subsection must meet the
17-56 following conditions:
17-57 (1) 10 percent of the area to be served must be served
17-58 with facilities other than the facilities of the incumbent local
17-59 exchange company by the end of the first year;
17-60 (2) 50 percent of the area to be served must be served
17-61 with facilities other than the facilities of the incumbent local
17-62 exchange company by the end of the third year; and
17-63 (3) all of the area to be served must be served with
17-64 facilities other than the facilities of the incumbent local
17-65 exchange company by the end of the sixth year.
17-66 (d) The build-out plan may permit not more than 40 percent
17-67 of the applicant's service area to be served by resale of the
17-68 incumbent local exchange company's facilities under the tariff
17-69 required to be approved in Section 3.453 of this Act, except that
17-70 during the six years immediately following the grant, a holder of a
18-1 certificate of operating authority may extend its service by resale
18-2 only within the area it is obligated to serve under the build-out
18-3 plan approved by the commission and to the distant premises of one
18-4 of its multi-premises customers beyond that build-out area but
18-5 within its certificated service area. The 40-percent resale
18-6 limitation applies to incumbent local exchange facilities resold by
18-7 a holder of a certificate of operating authority as part of the
18-8 provision of local exchange telephone service, regardless of
18-9 whether the facilities are purchased directly by the certificate of
18-10 operating authority holder from the incumbent local exchange
18-11 company or purchased by an intermediary carrier from the incumbent
18-12 local exchange company and then provided to the certificate of
18-13 operating authority holder for resale. In no event may an
18-14 applicant use commercial mobile service to meet the build-out
18-15 requirement imposed by this section, but an applicant may use PCS
18-16 or other wireless technology licensed or allocated by the Federal
18-17 Communications Commission after January 1, 1995, to meet the
18-18 build-out requirement.
18-19 (e) A certificate of operating authority shall be granted
18-20 within 60 days after the date of the application on a
18-21 nondiscriminatory basis after consideration by the commission of
18-22 factors such as the technical and financial qualifications of the
18-23 applicant and the applicant's ability to meet the commission's
18-24 quality of service requirements. The commission may extend the
18-25 60-day period on good cause shown. In an exchange of an incumbent
18-26 local exchange company serving fewer than 31,000 access lines, the
18-27 commission shall also consider:
18-28 (1) the effect of granting the certificate on any
18-29 public utility already serving the area and on the utility's
18-30 customers;
18-31 (2) the existing utility's ability to provide adequate
18-32 service at reasonable rates;
18-33 (3) the impact of the existing utility's ability as
18-34 the provider of last resort; and
18-35 (4) the ability of the exchange, not the company, to
18-36 support more than one provider of service.
18-37 (f) In addition to the factors prescribed by Subsection (e)
18-38 of this section, the commission shall consider the adequacy of the
18-39 applicant's build-out plan in determining whether to grant the
18-40 application. The commission may administratively and temporarily
18-41 waive compliance with the six-year build-out plan on a showing of
18-42 good cause. The holder of a certificate shall file periodic
18-43 reports with the commission demonstrating compliance with the plan
18-44 approved by the commission, including the requirement that not more
18-45 than 40 percent of the service area of a new certificate may be
18-46 served by resale of the facilities of the incumbent local exchange
18-47 company.
18-48 (g) An application for a certificate of operating authority
18-49 may be granted only for an area or areas that are contiguous and
18-50 reasonably compact and cover an area of at least 27 square miles,
18-51 except that:
18-52 (1) in an exchange in a county having a population of
18-53 less than 500,000 that is served by an incumbent local exchange
18-54 company having more than 31,000 access lines, an area covering less
18-55 than 27 square miles may be approved if the area is contiguous and
18-56 reasonably compact and has at least 20,000 access lines; and
18-57 (2) in an exchange of a company serving fewer than
18-58 31,000 access lines in this state, an application may be granted
18-59 only for an area that has boundaries similar to the boundaries of
18-60 the serving central office served by the incumbent local exchange
18-61 company holding the certificate of convenience and necessity for
18-62 that area.
18-63 (h) The commission may not, before September 1, 1998, grant
18-64 a certificate of operating authority in an exchange of an incumbent
18-65 local exchange company serving fewer than 31,000 access lines. The
18-66 commission shall require that the applicant meet the other
18-67 appropriate certification provisions of this Act.
18-68 (i) Six years after an application for a certificate of
18-69 operating authority has been granted for a particular area or areas
18-70 or when the new applicant has completed its build-out plan required
19-1 by this section, the commission may waive the build-out
19-2 requirements of this section for additional applicants. In
19-3 addition, in service areas served by an incumbent local exchange
19-4 company having more than five million access lines which, as of
19-5 September 1, 1995, is subject to any prohibition under federal law
19-6 on the provision of interLATA service, the build-out requirements
19-7 of this section shall be eliminated in any service area where all
19-8 prohibitions on that company's provision of interLATA services are
19-9 removed such that the company can offer interLATA service together
19-10 with its local and intraLATA toll service.
19-11 (j)(1) On an application filed after September 1, 1997, the
19-12 commission may conduct a hearing to determine:
19-13 (A) if the build-out requirements of Subsections
19-14 (c), (d), and (g) of this section have created barriers to the
19-15 entry of facilities based local exchange telephone service
19-16 competition in exchanges in counties with a population of more than
19-17 500,000 served by companies having more than 31,000 access lines;
19-18 and
19-19 (B) the effect of the resale provisions on the
19-20 development of competition except in certificated areas of
19-21 companies serving fewer than 31,000 access lines as provided by
19-22 Section 3.2532(d)(1) of this Act.
19-23 (2) In making the determination under Subdivision (1)
19-24 of this subsection, the commission shall consider:
19-25 (A) the policy of this Act to encourage
19-26 construction of local exchange networks;
19-27 (B) the number and type of competitors that have
19-28 sought to provide local exchange competition under the existing
19-29 rules prescribed by this Act; and
19-30 (C) whether, if new build-out and resale rules
19-31 were adopted, innovative and competitive local exchange telephone
19-32 services are more likely to be provided.
19-33 (3) If the commission determines that the existing
19-34 build-out requirements have created barriers to facilities based
19-35 local exchange competition in exchanges described by Subdivision
19-36 (1)(A) of this subsection, the requirements of Subsections (c),
19-37 (d), and (g) of this section and of Section 3.2532 may be changed
19-38 if the changes will encourage additional facilities based
19-39 competition. However, in no event may exchange sizes be reduced
19-40 below 12 square miles, or the permitted resale percentage of
19-41 Subsection (d) of this section be increased to more than 50
19-42 percent. If new rules are adopted, the rules may apply only to
19-43 applicants for certificates filed after the date of adoption of
19-44 those rules.
19-45 (k) If the holder of a certificate of authority fails to
19-46 comply with any requirement imposed by this Act, the commission
19-47 may:
19-48 (1) revoke the certificate; or
19-49 (2) impose administrative penalties or take other
19-50 action under Subtitle I, Title I, of this Act.
19-51 SECTION 25. Subtitle F, Title III, Public Utility Regulatory
19-52 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
19-53 Regular Session, 1995, is amended by adding Section 3.2532 to read
19-54 as follows:
19-55 Sec. 3.2532. SERVICE PROVIDER CERTIFICATE OF OPERATING
19-56 AUTHORITY. (a) To encourage innovative, competitive, and
19-57 entrepreneurial businesses to provide telecommunications services,
19-58 the commission may grant service provider certificates of operating
19-59 authority. An applicant must demonstrate that it has the financial
19-60 and technical ability to provide its services and show that the
19-61 services will meet the requirements of this section.
19-62 (b) A company is eligible for a service provider certificate
19-63 of operating authority under this section unless the company,
19-64 together with affiliates, had in excess of six percent of the total
19-65 intrastate switched access minutes of use as measured by the most
19-66 recent 12-month period preceding the filing of the application for
19-67 which data is available. The commission shall obtain from the
19-68 incumbent local exchange telephone companies such information as is
19-69 necessary to determine eligibility and shall certify such
19-70 eligibility within 10 days of the filing of the application. A
20-1 service provider certificate of operating authority shall be
20-2 granted within 60 days after the date of the application on a
20-3 nondiscriminatory basis after consideration by the commission of
20-4 factors such as the technical and financial qualifications of the
20-5 applicant and the applicant's ability to meet the commission's
20-6 quality of service requirements. The commission may extend the
20-7 60-day period on good cause shown.
20-8 (c) An applicant for a service provider certificate of
20-9 operating authority shall file with its application a description
20-10 of the services it will provide and show the areas in which it will
20-11 provide those services.
20-12 (d) A service provider certificate of operating authority
20-13 holder:
20-14 (1) may obtain services under the resale tariffs
20-15 ordered by the commission as specified by Section 3.453 of this
20-16 Act, except in certificated areas of companies serving fewer than
20-17 31,000 access lines;
20-18 (2) may obtain for resale the monthly recurring flat
20-19 rate local exchange telephone service and associated nonrecurring
20-20 charges, including any mandatory extended area service, of an
20-21 incumbent local exchange company at a five percent discount to the
20-22 tariffed rate, and:
20-23 (A) the incumbent local exchange company shall
20-24 also sell any feature service that may be provided to customers in
20-25 conjunction with local exchange service, including toll
20-26 restriction, call control options, tone dialing, custom calling
20-27 services, and caller ID at a five percent discount to the tariffed
20-28 rate, including any associated nonrecurring charge for those
20-29 services, provided that the incumbent local exchange company shall
20-30 make available to a holder of a service provider certificate of
20-31 operating authority at an additional five percent discount any
20-32 discounts made available to the customers of the incumbent local
20-33 exchange company who are similarly situated to the customers of the
20-34 holder of the service provider certificate of operating authority;
20-35 (B) service providers and incumbent local
20-36 exchange companies may agree to rates lower than the tariffed rates
20-37 or discounted rates;
20-38 (C) the five percent discounts provided by this
20-39 subdivision do not apply in exchanges of companies having fewer
20-40 than 31,000 access lines in this state;
20-41 (D) if the tariffed rates for the services being
20-42 resold change, the changed rate is applicable to the resold
20-43 service, but the commission may not, for holders of service
20-44 provider certificates of operating authority, create a special
20-45 class for purposes of resold services, and the discount provided to
20-46 holders of service provider certificates of operating authority
20-47 shall remain at five percent of the tariffed rate or discounted
20-48 rate; and
20-49 (E) the holder of a service provider certificate
20-50 of operating authority may purchase for resale optional extended
20-51 area service and expanded local calling service but those services
20-52 may not be discounted;
20-53 (3) may sell the flat rate local exchange telephone
20-54 service only to the same class of customers to which the incumbent
20-55 local exchange company sells that service;
20-56 (4) may not use a resold flat rate local exchange
20-57 telephone service to avoid the rates, terms, and conditions of an
20-58 incumbent local exchange company's tariffs;
20-59 (5) may not terminate both flat rate local exchange
20-60 telephone service and services obtained under the resale tariff
20-61 approved as prescribed by Sections 3.453(a)-(c) of this Act on the
20-62 same end user customer's premises;
20-63 (6) may not use resold flat rate local exchange
20-64 telephone services to provide access services to other
20-65 interexchange carriers, cellular carriers, competitive access
20-66 providers, or other retail telecommunications providers, but may
20-67 permit customers to use resold local exchange telephone services to
20-68 access interexchange carriers, cellular carriers, competitive
20-69 access providers, or other retail telecommunications providers;
20-70 (7) may obtain services offered by or negotiated with
21-1 a holder of a certificate of convenience and necessity or
21-2 certificate of operating authority; and
21-3 (8) may obtain for resale single or multiple line flat
21-4 rate intraLATA calling service when provided by the local exchange
21-5 company at the tariffed rate for online digital communications.
21-6 (e) The holder of a certificate of operating authority or
21-7 certificate of convenience and necessity shall not be granted a
21-8 service provider certificate of operating authority as to the same
21-9 territory. A holder of a service provider certificate of operating
21-10 authority who applies for either a certificate of operating
21-11 authority or a certificate of convenience and necessity as to the
21-12 same territory must include a plan to relinquish its service
21-13 provider certificate of operating authority.
21-14 (f) An incumbent local exchange company that sells flat rate
21-15 local exchange telephone service to a holder of a service provider
21-16 certificate of operating authority may retain all access service
21-17 and "1+" intraLATA toll service originated over the resold flat
21-18 rate local exchange telephone service.
21-19 (g) An incumbent local exchange company may not:
21-20 (1) delay provisioning or maintenance of services
21-21 provided under this section;
21-22 (2) degrade the quality of access provided to another
21-23 provider;
21-24 (3) impair the speed, quality, or efficiency of lines
21-25 used by another provider;
21-26 (4) fail to fully disclose in a timely manner after a
21-27 request for the disclosure all available information necessary for
21-28 the holder of the service provider certificate of operating
21-29 authority to provision resale services; or
21-30 (5) refuse to take any reasonable action to allow
21-31 efficient access by a holder of a service provider certificate of
21-32 operating authority to ordering, billing, or repair management
21-33 systems of the local exchange company.
21-34 (h) In this section:
21-35 (1) "Affiliate" means any entity that, directly or
21-36 indirectly, owns or controls, is owned or controlled by, or is
21-37 under common ownership or control with a company that applies for a
21-38 service provider certificate of operating authority under this
21-39 section.
21-40 (2) "Control" means to exercise substantial influence
21-41 over the policies and actions of another.
21-42 SECTION 26. Sections 3.255(a) and (b), Public Utility
21-43 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
21-44 Legislature, Regular Session, 1995, are amended to read as follows:
21-45 (a) If an area has been or shall be included within the
21-46 boundaries of a city, town, or village as the result of annexation,
21-47 incorporation, or otherwise, all telecommunications <public>
21-48 utilities certified or entitled to certification under this Act to
21-49 provide service or operate facilities in such area prior to the
21-50 inclusion shall have the right to continue and extend service in
21-51 its area of certification <public convenience and necessity> within
21-52 the annexed or incorporated area, pursuant to the rights granted by
21-53 its certificate and this Act.
21-54 (b) Notwithstanding any other provision of law, a
21-55 certificated telecommunications <public> utility shall have the
21-56 right to continue and extend service within its area of
21-57 certification <public convenience and necessity> and to utilize the
21-58 roads, streets, highways, alleys, and public property for the
21-59 purpose of furnishing such retail utility service, subject to the
21-60 authority of the governing body of a municipality to require any
21-61 certificated telecommunications <public> utility, at its own
21-62 expense, to relocate its facilities to permit the widening or
21-63 straightening of streets by giving to the certificated
21-64 telecommunications <public> utility 30 days' notice and specifying
21-65 the new location for the facilities along the right-of-way of the
21-66 street or streets.
21-67 SECTION 27. Sections 3.256 and 3.257, Public Utility
21-68 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
21-69 Legislature, Regular Session, 1995, are amended to read as follows:
21-70 Sec. 3.256. CONTRACTS VALID AND ENFORCEABLE. Contracts
22-1 between telecommunications <public> utilities designating areas to
22-2 be served and customers to be served by those utilities, when
22-3 approved by the commission, shall be valid and enforceable and
22-4 shall be incorporated into the appropriate areas of certification
22-5 <public convenience and necessity>.
22-6 Sec. 3.257. PRELIMINARY ORDER FOR CERTIFICATE. If a
22-7 telecommunications <public> utility desires to exercise a right or
22-8 privilege under a franchise or permit which it contemplates
22-9 securing but which has not as yet been granted to it, such
22-10 telecommunications <public> utility may apply to the commission for
22-11 an order preliminary to the issuance of the certificate. The
22-12 commission may thereupon make an order declaring that it will, on
22-13 application, under such rules as it prescribes, issue the desired
22-14 certificate on such terms and conditions as it designates, after
22-15 the telecommunications <public> utility has obtained the
22-16 contemplated franchise or permit. On presentation to the
22-17 commission of evidence satisfactory to it that the franchise or
22-18 permit has been secured by the telecommunications <public> utility,
22-19 the commission shall issue the certificate.
22-20 SECTION 28. Subtitle F, Title III, Public Utility Regulatory
22-21 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
22-22 Regular Session, 1995, is amended by adding Section 3.2555 to read
22-23 as follows:
22-24 Sec. 3.2555. DISCRIMINATION. (a) An applicant for a
22-25 certificate of operating authority or service provider certificate
22-26 of operating authority shall file with its application a sworn
22-27 statement that it has applied for any necessary municipal consent,
22-28 franchise, or permit required for the type of services and
22-29 facilities for which it has applied. Notwithstanding Section 1.103
22-30 of this Act, a municipality may not discriminate against a
22-31 telecommunications utility in relation to:
22-32 (1) the authorization or placement of
22-33 telecommunications facilities within public right-of-way;
22-34 (2) access to buildings; or
22-35 (3) municipal utility pole attachment rates, terms,
22-36 and conditions, to the extent not addressed by federal law.
22-37 (b) In the granting of consent, franchises, and permits for
22-38 the use of public streets, alleys, or rights-of-way within its
22-39 corporate municipal limits, a municipality may not discriminate in
22-40 favor of or against a telecommunications utility that holds or has
22-41 applied for a certificate of convenience and necessity, certificate
22-42 of operating authority, or service provider certificate of
22-43 operating authority all in relation to:
22-44 (1) the authorizing, placement, replacement, or
22-45 removal of telecommunications facilities within public
22-46 rights-of-way and the reasonable compensation therefor of whatever
22-47 kind, whether money, services, use of facilities, or any other
22-48 consideration; or
22-49 (2) municipal utility pole attachment or underground
22-50 conduit rates, terms, and conditions, to the extent not addressed
22-51 by federal law, provided that a municipal utility may not charge
22-52 pole attachment rates or underground conduit rates that exceed the
22-53 fee the utility would be permitted to charge if its rates were
22-54 regulated under federal law and the rules of the Federal
22-55 Communications Commission.
22-56 (c) Whenever a telecommunications utility holds a consent,
22-57 franchise, or permit as determined to be the appropriate grants of
22-58 authority by the municipality, and where required by this Act, a
22-59 certificate, a public or private property owner may not:
22-60 (1) interfere with or prevent a telecommunications
22-61 utility from installing on the owner's property telecommunications
22-62 service facilities requested by a tenant;
22-63 (2) discriminate against one or more
22-64 telecommunications utilities in relation to the installation,
22-65 terms, conditions, and compensation of telecommunications services
22-66 facilities to a tenant on the owner's property;
22-67 (3) demand or accept an unreasonable payment in any
22-68 form from a tenant or a telecommunications utility for allowing the
22-69 utility on or within the owner's property; or
22-70 (4) discriminate in favor or against a tenant in any
23-1 manner, including rental charges, because of the telecommunications
23-2 utility from which the tenant receives telecommunications services.
23-3 (d) Notwithstanding Subsection (c) of this section, whenever
23-4 a telecommunications utility holds a municipal consent, franchise,
23-5 or permit as determined to be the appropriate grant of authority by
23-6 the municipality, and where required by this Act, a certificate, a
23-7 public or private property owner may:
23-8 (1) impose conditions on such telecommunications
23-9 utility that are reasonably necessary to protect the safety,
23-10 security, appearance, and condition of the property and the safety
23-11 and convenience of other persons;
23-12 (2) impose reasonable limitations on the times at
23-13 which such telecommunications utility may have access to the
23-14 property for the installation of telecommunications services
23-15 facilities;
23-16 (3) require such telecommunications utility to agree
23-17 to indemnify the owner of any damage caused by the installation,
23-18 operation, or removal of the facilities;
23-19 (4) require the tenant or the telecommunications
23-20 utility to bear the entire cost of the installation, operation, or
23-21 removal of the facilities;
23-22 (5) impose reasonable limitations on the number of
23-23 such telecommunications utilities having access to the owner's
23-24 property if the owner can demonstrate space constraints that
23-25 require such limitations; and
23-26 (6) require such telecommunications utility to pay
23-27 compensation that is reasonable and nondiscriminatory among such
23-28 telecommunications utilities.
23-29 (e) Notwithstanding any other provision of law, the
23-30 commission has the jurisdiction necessary to enforce this section.
23-31 (f) Nothing in this Act shall restrict or limit a
23-32 municipality's historical right to control and receive reasonable
23-33 compensation for access to its public streets, alleys, or
23-34 rights-of-way or other public property.
23-35 (g) Subsection (c) of this section does not apply to an
23-36 institution of higher education. In this subsection, "institution
23-37 of higher education" has the meaning assigned by Section 61.003,
23-38 Education Code, and also includes a "private or independent
23-39 institution of higher education" as that term is defined by Section
23-40 61.003, Education Code.
23-41 (h) The holder of a certificate of convenience and
23-42 necessity, certificate of operating authority, or service provider
23-43 certificate of operating authority shall have the right to collect
23-44 the fee imposed by a municipality under this section through a pro
23-45 rata charge to customers within the boundaries of the municipality
23-46 imposing the fee, which may be shown as a separate line item on the
23-47 customer bill.
23-48 SECTION 29. Subtitle F, Title III, Public Utility Regulatory
23-49 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
23-50 Regular Session, 1995, is amended by adding Section 3.2571 to read
23-51 as follows:
23-52 Sec. 3.2571. FLEXIBILITY PLAN. After an application for a
23-53 certificate of convenience and necessity, certificate of operating
23-54 authority, or service provider certificate of operating authority
23-55 is granted or the commission determines that a certificate is not
23-56 needed for the services to be provided by the applicant, the
23-57 commission shall conduct proceedings it determines appropriate to
23-58 establish a transitional flexibility plan for the incumbent local
23-59 exchange company in the same area or areas as the new certificate
23-60 holder. However, a basic local telecommunications service price of
23-61 the incumbent local exchange company may not be increased until
23-62 four years following the grant of the certificate to the applicant,
23-63 except:
23-64 (1) as provided by this Act; or
23-65 (2) when the new applicant has completed its build-out
23-66 plan required by Section 3.2531 or when the build-out requirements
23-67 have been eliminated.
23-68 SECTION 30. Subtitle F, Title III, Public Utility Regulatory
23-69 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
23-70 Regular Session, 1995, is amended by adding Section 3.2572 to read
24-1 as follows:
24-2 Sec. 3.2572. MARKET POWER TEST. (a) Notwithstanding any
24-3 other provision of this Act, on notice and hearing, the commission
24-4 may grant price deregulation of a specific service in a particular
24-5 geographic market if the commission determines that the incumbent
24-6 local exchange company or certificate of operating authority holder
24-7 that is a dominant provider is no longer dominant as to that
24-8 specific service in that particular geographic market. For
24-9 purposes of this section only, in determining a particular
24-10 geographic market, the commission shall consider economic and
24-11 technical conditions of the market. Once a service in a particular
24-12 market is price-deregulated under this section, the incumbent local
24-13 exchange company or certificate of operating authority holder that
24-14 is a dominant provider may set the rate for the deregulated service
24-15 at any level above the service's LRIC.
24-16 (b) To determine that an incumbent local exchange company or
24-17 certificate of operating authority holder that is a dominant
24-18 provider is no longer dominant as to a specific service in a
24-19 particular geographic market, the commission must find that an
24-20 effective competitive alternative exists and that the incumbent
24-21 local exchange company or certificate of operating authority holder
24-22 that is a dominant provider does not have sufficient market power
24-23 to control the price of the service within a specified geographic
24-24 area in a manner that is adverse to the public interest.
24-25 (c) The commission shall consider the following factors in
24-26 determining whether the incumbent local exchange company or
24-27 certificate of operating authority holder that is a dominant
24-28 provider is dominant as to a specific service in a particular
24-29 geographic area:
24-30 (1) number and size of telecommunications utilities or
24-31 other persons providing the same, equivalent, or substitutable
24-32 service in the relevant market and the extent to which the service
24-33 is available in the relevant market;
24-34 (2) ability of customers in the relevant market to
24-35 obtain the same, equivalent, or substitutable service at comparable
24-36 rates, terms, and conditions;
24-37 (3) ability of telecommunications utilities or other
24-38 persons to make the same, equivalent, or substitutable service
24-39 readily available in the relevant market at comparable rates,
24-40 terms, and conditions;
24-41 (4) proportion of the relevant market that is
24-42 currently being provided the service by a telecommunications
24-43 utility other than the incumbent local exchange company or
24-44 certificate of operating authority holder that is a dominant
24-45 carrier; and
24-46 (5) other relevant information deemed necessary by the
24-47 commission.
24-48 (d) The commission, on its own motion, or on a complaint
24-49 that the commission deems has merit, is granted all necessary power
24-50 and authority to assert or reassert regulation over a specific
24-51 service in a particular geographic market if the incumbent local
24-52 exchange company or certificate of operating authority holder that
24-53 is a dominant carrier is found to again be dominant or the provider
24-54 of services under a certificate of operating authority or service
24-55 provider certificate of operating authority is found to be dominant
24-56 as to that specific service in that particular geographic market.
24-57 (e) On request of an incumbent local exchange company or
24-58 certificate of operating authority holder that is a dominant
24-59 carrier in conjunction with an application under this section, the
24-60 commission shall conduct investigations to determine the existence,
24-61 impact, and scope of competition in the particular geographic and
24-62 service markets at issue and in connection therewith may call and
24-63 hold hearings, may issue subpoenas to compel the attendance of
24-64 witnesses and the production of papers and documents, has any other
24-65 powers, whether specifically designated or implied, necessary and
24-66 convenient to the investigation, and may make findings of fact and
24-67 decisions with respect to those markets.
24-68 (f) The parties to the proceeding shall be entitled to use
24-69 the results of the investigation required to be conducted under
24-70 Subsection (e) of this section in an application for pricing
25-1 flexibility.
25-2 (g) In conjunction with its authority to collect and compile
25-3 information, the commission may collect reports from a holder of a
25-4 certificate of operating authority or service provider certificate
25-5 of operating authority. Any information contained in the reports
25-6 claimed to be confidential for competitive purposes shall be
25-7 maintained as confidential by the commission, and the information
25-8 is exempt from disclosure under Chapter 552, Government Code. The
25-9 commission shall aggregate the information to the maximum extent
25-10 possible considering the purpose of the proceeding to protect the
25-11 confidential nature of the information.
25-12 SECTION 31. Section 3.258(a), Public Utility Regulatory Act
25-13 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
25-14 Regular Session, 1995, is amended to read as follows:
25-15 (a) Except as provided by this section, <or> Section 3.259,
25-16 or Section 3.2595 of this Act, a telecommunications utility that is
25-17 granted a certificate of convenience and necessity or certificate
25-18 of operating authority shall be required to offer to any customer
25-19 in its certificated area all basic local telecommunications
25-20 services <the holder of any certificate of public convenience and
25-21 necessity shall serve every consumer within its certified area> and
25-22 shall render continuous and adequate service within the area or
25-23 areas. In any event, as between a holder of a certificate of
25-24 convenience and necessity and a holder of a certificate of
25-25 operating authority, the holder of the certificate of convenience
25-26 and necessity has provider of last resort obligations.
25-27 SECTION 32. Section 3.259, Public Utility Regulatory Act of
25-28 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
25-29 Session, 1995, is amended to read as follows:
25-30 Sec. 3.259. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
25-31 holder of a certificate of public convenience and necessity,
25-32 certificate of operating authority, or service provider certificate
25-33 of operating authority shall refuse to serve a customer within its
25-34 certified area if the holder of the certificate is prohibited from
25-35 providing the service under Section 212.012 or 232.0047, Local
25-36 Government Code.
25-37 SECTION 33. Subtitle F, Title III, Public Utility Regulatory
25-38 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
25-39 Regular Session, 1995, is amended by adding Section 3.2595 to read
25-40 as follows:
25-41 Sec. 3.2595. DISCONTINUATION OF SERVICE. (a)
25-42 Notwithstanding Section 3.258 of this Act, a telecommunications
25-43 utility that holds a certificate of operating authority or service
25-44 provider certificate of operating authority may:
25-45 (1) discontinue an optional service that is not
25-46 essential to the provision of basic local telecommunications
25-47 service; or
25-48 (2) cease operations within its certificated area.
25-49 (b) Before such telecommunications utility discontinues an
25-50 optional service or ceases operations, the utility must provide
25-51 notice of the intended action to the commission and each affected
25-52 customer in the manner required by the commission.
25-53 (c) Such telecommunications utility is entitled to
25-54 discontinue an optional service on or after the 61st day after the
25-55 date on which the utility provides the notice required by
25-56 Subsection (b) of this section.
25-57 (d) Such telecommunications utility may not cease operations
25-58 within its certificated area unless:
25-59 (1) another provider of basic local telecommunications
25-60 services has adequate facilities and capacity to serve the
25-61 customers in the certificated area; and
25-62 (2) the commission authorizes the utility to cease
25-63 operations.
25-64 (e) The commission may not authorize such telecommunications
25-65 utility to cease operations under Subsection (d) of this section
25-66 before the 61st day after the date on which the utility provides
25-67 the notice required by Subsection (b) of this section. The
25-68 commission may enter an order under this subsection
25-69 administratively unless the commission receives a complaint from an
25-70 affected person.
26-1 SECTION 34. Section 3.260, Public Utility Regulatory Act of
26-2 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
26-3 Session, 1995, is amended to read as follows:
26-4 Sec. 3.260. SALE, ASSIGNMENT, OR LEASE OF CERTIFICATE. If
26-5 the commission determines that a purchaser, assignee, or lessee is
26-6 capable of rendering adequate service, a telecommunications
26-7 <public> utility may sell, assign, or lease a certificate of public
26-8 convenience and necessity or certificate of operating authority or
26-9 any rights obtained under the certificate. The sale, assignment,
26-10 or lease shall be on the conditions prescribed by the commission.
26-11 SECTION 35. Section 3.261, Public Utility Regulatory Act of
26-12 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
26-13 Session, 1995, is amended to read as follows:
26-14 Sec. 3.261. INTERFERENCE WITH OTHER TELECOMMUNICATIONS
26-15 <PUBLIC> UTILITY. If a telecommunications <public> utility in
26-16 constructing or extending its lines, plant, or system interferes or
26-17 attempts to interfere with the operation of a line, plant, or
26-18 system of any other utility, the commission may issue an order
26-19 prohibiting the construction or extension or prescribing terms and
26-20 conditions for locating the lines, plants, or systems affected.
26-21 SECTION 36. Subtitle F, Title III, Public Utility Regulatory
26-22 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
26-23 Regular Session, 1995, is amended by adding Section 3.2615 to read
26-24 as follows:
26-25 Sec. 3.2615. DIRECTORY LISTINGS AND ASSISTANCE. (a)
26-26 Companies providing local exchange telephone service shall
26-27 negotiate the terms and conditions of printed directory listings
26-28 and directory assistance within overlapping certificated areas.
26-29 (b) On complaint by the incumbent local exchange company or
26-30 the holder of the certificate of convenience and necessity,
26-31 certificate of operating authority, or service provider certificate
26-32 of operating authority, the commission may resolve disputes between
26-33 the parties and, if necessary, issue an order setting the terms and
26-34 conditions of the directory listings or directory assistance.
26-35 (c) This section does not affect the authority of an
26-36 incumbent local exchange company to voluntarily conduct
26-37 negotiations with an applicant for a certificate of convenience and
26-38 necessity, certificate of operating authority, or service provider
26-39 certificate of operating authority.
26-40 SECTION 37. Section 3.262, Public Utility Regulatory Act of
26-41 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
26-42 Session, 1995, is amended to read as follows:
26-43 Sec. 3.262. IMPROVEMENTS IN SERVICE; INTERCONNECTING
26-44 SERVICE; EXTENDED AREA TOLL-FREE TELEPHONE SERVICE. (a) After
26-45 notice and hearing, the commission may:
26-46 (1) order a public utility to provide specified
26-47 improvements in its service in a defined area, if service in such
26-48 area is inadequate or is substantially inferior to service in a
26-49 comparable area and it is reasonable to require the company to
26-50 provide such improved service;
26-51 (2) order two or more utilities to establish specified
26-52 facilities for the interconnecting service; <and>
26-53 (3) order a telephone company or telephone companies
26-54 to provide extended area toll-free service within a specified
26-55 metropolitan area where there is a sufficient community of interest
26-56 within the area and such service can reasonably be provided; and
26-57 (4) order one or more telephone companies to provide
26-58 optional extended area service within a specified calling area if
26-59 provision of the service is jointly agreed to by the
26-60 representatives of each affected telephone company and the
26-61 representatives of a political subdivision or subdivisions within
26-62 the proposed common calling area, provided that the proposed common
26-63 calling area has a single, continuous boundary.
26-64 (b) If more than one political subdivision is affected by a
26-65 proposed optional calling plan under Subsection (a)(4) of this
26-66 section, the agreement of each political subdivision is not
26-67 required. The commission may not adopt rules that diminish in any
26-68 manner the ability of a political subdivision or affected telephone
26-69 company to enter into joint agreements for optional extended area
26-70 calling service. In this subsection and in Subsection (a)(4) of
27-1 this section, "political subdivision" means a county or
27-2 municipality or an unincorporated town or village that has 275 or
27-3 more access lines.
27-4 SECTION 38. Subtitle F, Title III, Public Utility Regulatory
27-5 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
27-6 Regular Session, 1995, is amended by adding Section 3.2625 to read
27-7 as follows:
27-8 Sec. 3.2625. PAY TELEPHONES. (a) The right of a provider
27-9 of pay telephone service to set the provider's rates and charges
27-10 and the commission's authority over the pay telephone service rates
27-11 of incumbent local exchange companies is expressly limited by this
27-12 section.
27-13 (b) A provider of pay telephone service may not impose on
27-14 pay phone end users any charge for local directory assistance or
27-15 calls made under Chapter 771 or 772, Health and Safety Code.
27-16 (c) The commission shall establish a limit on the charge
27-17 that may be imposed for a pay telephone coin sent-paid call within
27-18 the local exchange company's toll-free calling area. The
27-19 commission may also establish a statewide ceiling on the charge
27-20 that may be imposed by a provider of pay telephone service for
27-21 local calls which are collect or operator-assisted or paid by
27-22 credit card or calling card, provided that the commission shall not
27-23 establish the ceiling at less than the applicable local rates for
27-24 such calls of any of the four largest interexchange carriers
27-25 operating in Texas.
27-26 (d) A provider of pay telephone service may impose a set use
27-27 fee not exceeding 25 cents at the point at which the call is
27-28 initiated for each "1-800" type call made from a pay telephone,
27-29 provided that:
27-30 (1) except for pay telephones of local exchange
27-31 companies, the pay telephone is registered with the commission and
27-32 the provider certifies that the pay telephone is in compliance with
27-33 commission rules regarding the provision of pay telephone service;
27-34 (2) the imposition of the set use fee is not
27-35 inconsistent with federal law;
27-36 (3) the fee is not imposed for any local call, 9-1-1
27-37 call, or local directory assistance call;
27-38 (4) the fee is not imposed for a call that is covered
27-39 by the Telephone Operator Consumer Services Improvement Act of 1990
27-40 (47 U.S.C. Section 226);
27-41 (5) the pay telephone service provider causes to be
27-42 posted on each pay telephone instrument, in plain sight of the user
27-43 and in a manner consistent with existing commission requirements
27-44 for posting information, the fact that the surcharge will apply to
27-45 those calls; and
27-46 (6) the commission may not impose on a local exchange
27-47 company the duty or obligation to record the use of pay telephone
27-48 service, bill or collect for the use, or remit the fee provided by
27-49 this subsection to the provider of the service.
27-50 (e) A provider of pay telephone service, other than an
27-51 incumbent local exchange company, may not charge for credit card,
27-52 calling card, or live or automated operator-handled calls a rate or
27-53 charge that is an amount greater than the authorized rates and
27-54 charges published, in the eight newspapers having the largest
27-55 circulation in this state, on March 18, 1995, provided that the pay
27-56 phone rates of an incumbent local exchange company subject to
27-57 Subtitle H of this title are governed by that subtitle. The
27-58 published rates remain in effect until changed by the legislature.
27-59 (f) The commission shall adopt rules within 180 days from
27-60 the effective date of this section that require every provider of
27-61 pay telephone service not holding a certificate of convenience and
27-62 necessity to register with the commission. A provider of pay
27-63 telephone service must be registered with the commission in order
27-64 to do business in this state.
27-65 (g) The commission may order disconnection of service for up
27-66 to one year for repeat violations of commission rules.
27-67 (h) The commission may adopt rules regarding information to
27-68 be posted on pay telephone instruments, but those rules may not
27-69 require a provider of pay telephone service or an affiliate of a
27-70 provider to police the compliance with those rules by another
28-1 provider of pay telephone service.
28-2 (i) In this section, "provider of pay telephone service"
28-3 means a subscriber to customer-owned pay telephone service, an
28-4 incumbent local exchange company providing pay telephone service,
28-5 and any other entity providing pay telephone service.
28-6 SECTION 39. Section 3.263(a), Public Utility Regulatory Act
28-7 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
28-8 Regular Session, 1995, is amended to read as follows:
28-9 (a) The commission at any time after notice and hearing may
28-10 revoke or amend any certificate of convenience and necessity,
28-11 certificate of operating authority, or service provider certificate
28-12 of operating authority if it finds that the certificate holder has
28-13 never provided or is no longer providing service in the area or
28-14 part of the area covered by the certificate.
28-15 SECTION 40. Section 3.302, Public Utility Regulatory Act of
28-16 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
28-17 Session, 1995, is amended by adding Subsection (i) to read as
28-18 follows:
28-19 (i) A commercial mobile service provider may offer caller
28-20 identification services under the same terms and conditions
28-21 provided by Subsections (c)-(f) of this section.
28-22 SECTION 41. Subtitle G, Title III, Public Utility Regulatory
28-23 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
28-24 Regular Session, 1995, is amended by adding Section 3.3025 to read
28-25 as follows:
28-26 Sec. 3.3025. CALLER ID SERVICES: CONSUMER INFORMATION. (a)
28-27 When a customer requests per-line blocking through the commission,
28-28 the telecommunications provider shall notify the customer by mail
28-29 of the effective date that per-line blocking will be instituted.
28-30 When a telecommunications provider providing Caller ID service to a
28-31 customer originating a call becomes aware of a failure to block the
28-32 delivery of the calling party's identification information from a
28-33 line equipped with per-call blocking or per-line blocking of Caller
28-34 ID information, it shall report such failure to the panel, the
28-35 commission, and the affected customer if that customer did not
28-36 report the failure. A reasonable effort shall be made to notify
28-37 the affected customer within 24 hours after the provider becomes
28-38 aware of such failure.
28-39 (b) The commission shall form the Caller ID Consumer
28-40 Education Panel. The panel shall consist of one person appointed
28-41 by the governor, one person appointed by the chair of the
28-42 commission, after consultation with the Texas Council on Family
28-43 Violence, and one person appointed by the public counsel of the
28-44 Office of Public Utility Counsel. The panel shall meet at least
28-45 quarterly and shall file an annual report with the commission
28-46 regarding the level of effort and effectiveness of consumer
28-47 education materials and its recommendations for increasing the safe
28-48 use and privacy of the calling customer and decreasing the
28-49 likelihood of harm resulting from Caller ID services. The
28-50 commission may implement the recommendations of the panel and
28-51 interested parties to the extent consistent with the public
28-52 interest. The panel shall disband on September 1, 1999, unless
28-53 reauthorized by statute.
28-54 (c) All providers offering Caller ID services shall file
28-55 with the Caller ID Consumer Educational Panel, no later than the
28-56 effective date of this Act, all existing Caller ID materials used
28-57 on or before September 1, 1995. All future materials shall be
28-58 provided when they become available. The panel shall also
28-59 investigate whether educational materials are distributed in as
28-60 effective a manner as marketing materials.
28-61 (d) For purposes of this section, "Caller ID services"
28-62 include Caller ID and any other service which permits the called
28-63 party to determine the identity, telephone number, or address of
28-64 the calling party, except Caller ID services do not include 911
28-65 services.
28-66 (e) For purposes of this section, "Caller ID materials"
28-67 shall include any advertisements, educational material, training
28-68 materials, audio and video marketing devices, and any information
28-69 disseminated about Caller ID services.
28-70 SECTION 42. Section 3.303, Public Utility Regulatory Act of
29-1 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
29-2 Session, 1995, is amended to read as follows:
29-3 Sec. 3.303. INTEREXCHANGE SERVICES; INCUMBENT LOCAL EXCHANGE
29-4 COMPANIES' RATES. Incumbent local <Local> exchange companies'
29-5 rates for interexchange telecommunications services must be
29-6 statewide average rates unless the commission on application and
29-7 hearing orders otherwise. Nothing in this section limits an
29-8 incumbent <a> local exchange company's ability to enter into
29-9 contracts for high speed private line services of 1.544 megabits or
29-10 greater under the provisions of Section 3.051 of this Act.
29-11 SECTION 43. Sections 3.304(a) and (b), Public Utility
29-12 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
29-13 Legislature, Regular Session, 1995, are amended to read as follows:
29-14 (a) To address telephone calling needs between nearby
29-15 telephone exchanges, the commission shall initiate a rulemaking
29-16 proceeding to approve rules to provide for an expedited hearing to
29-17 allow the expanding of toll-free calling areas according to the
29-18 following criteria:
29-19 (1) Toll-free calling boundaries may only be expanded
29-20 under this section after the filing of a petition signed by the
29-21 lesser of five percent of the subscribers or 100 subscribers within
29-22 an exchange. If such a petition is filed with the commission, the
29-23 commission shall order the incumbent local exchange company to
29-24 provide for the balloting of its subscribers within the petitioning
29-25 exchange and, if there is an affirmative vote of at least 70
29-26 percent of those responding, the commission shall consider the
29-27 request.
29-28 (2) The commission shall provide for the expansion of
29-29 toll-free calling areas for each incumbent local exchange customer
29-30 in the petitioning exchange if the petitioning exchange serves not
29-31 more than 10,000 lines and if:
29-32 (A) the central switching office of the
29-33 petitioning exchange is located within 22 miles utilizing vertical
29-34 and horizontal geographic coordinates of the central switching
29-35 office of the exchange requested for toll-free calling service; or
29-36 (B) the petitioning exchange shall demonstrate
29-37 in its petition that it shares a community of interest with the
29-38 exchange requested for toll-free calling service. For purposes of
29-39 this paragraph, "community of interest" includes areas that have a
29-40 relationship because of schools, hospitals, local governments,
29-41 business centers, and other relationships the unavailability of
29-42 which would cause a hardship to the residents of the area but shall
29-43 <need> not include an area where the affected central offices are
29-44 more than 50 miles apart.
29-45 (3)(A) The incumbent local exchange company shall
29-46 recover all of its costs incurred and all loss of revenue from any
29-47 expansion of toll-free calling areas under this section through a
29-48 request other than a revenue requirement showing by:
29-49 (i) a monthly fee for toll-free calling
29-50 service of not more than $3.50 per line for residential customers
29-51 nor more than $7 per line for business customers for up to five
29-52 exchanges, together with an additional monthly fee of $1.50 per
29-53 line for each exchange in excess of five, whether obtained in one
29-54 or more petitions, to be collected from all such residential or
29-55 business customers in the petitioning exchange and only until the
29-56 incumbent local exchange company's next general rate case;
29-57 (ii) a monthly fee for toll-free calling
29-58 service for all of the incumbent local exchange company's local
29-59 exchange service customers in the state in addition to the
29-60 company's current local exchange rates; or
29-61 (iii) both (i) and (ii).
29-62 (B) An incumbent <A> local exchange company may
29-63 not recover regulatory case expenses under this section by
29-64 surcharging petitioning exchange subscribers.
29-65 (b)(1) The commission and an incumbent <a> local exchange
29-66 company are not required to comply with this section with regard to
29-67 a petitioning exchange or petitioned exchange if:
29-68 (A) the commission determines that there has
29-69 been a good and sufficient showing of a geographic or technological
29-70 infeasibility to serve the area;
30-1 (B) the incumbent local exchange company has
30-2 less than 10,000 lines;
30-3 (C) the petitioning or petitioned exchange is
30-4 served by a cooperative;
30-5 (D) extended area service or extended
30-6 metropolitan service is currently available between the petitioning
30-7 and petitioned exchanges; or
30-8 (E) the petitioning or petitioned exchange is a
30-9 metropolitan exchange.
30-10 (2) The commission may expand the toll-free calling
30-11 area into an exchange not within a metropolitan exchange but within
30-12 the local calling area contiguous to a metropolitan exchange that
30-13 the commission determines to have a community of interest
30-14 relationship with the petitioning exchange. For the purposes of
30-15 this section, metropolitan exchange, local calling area of a
30-16 metropolitan exchange, and exchange have the meanings and
30-17 boundaries as defined and approved by the commission on September
30-18 1, 1993. However, under no circumstances shall a petitioning or
30-19 petitioned exchange be split in the provision of a toll-free
30-20 calling area.
30-21 SECTION 44. Subtitle G, Title III, Public Utility Regulatory
30-22 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
30-23 Regular Session, 1995, is amended by adding Section 3.308 to read
30-24 as follows:
30-25 Sec. 3.308. CHARGE FOR EXTENDED AREA SERVICE. (a) An
30-26 incumbent local exchange company serving more than one million
30-27 access lines in this state that provides mandatory two-way extended
30-28 area service to customers for a separately stated monthly charge of
30-29 more than $3.50 per line for residential customers and $7 per line
30-30 for business customers shall file with the commission to reduce its
30-31 monthly rates for that extended area service to $3.50 per line for
30-32 residential customers and $7 per line for business customers. The
30-33 incumbent local exchange company shall recover all of its costs
30-34 incurred and all loss of revenue that results from implementation
30-35 of those rates in the manner prescribed by Section
30-36 3.304(a)(3)(A)(ii) of this Act.
30-37 (b) The commission and an incumbent local exchange company
30-38 are not required to comply with this section with regard to the
30-39 separately stated monthly charges for the provision of mandatory
30-40 two-way extended area service if the charge is for extended area
30-41 service in or into a metropolitan exchange or the charge is for
30-42 extended metropolitan service.
30-43 SECTION 45. (a) Subtitle G, Title III, Public Utility
30-44 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
30-45 Legislature, Regular Session, 1995, is amended by adding Section
30-46 3.309 to read as follows:
30-47 Sec. 3.309. (a) A private for-profit publisher of a
30-48 residential telephone directory that is distributed to the public
30-49 at minimal or no cost shall include in the directory a listing of
30-50 any toll-free and local telephone numbers of state agencies and
30-51 state public services and of each state elected official who
30-52 represents all or part of the geographical area for which the
30-53 directory contains listings.
30-54 (b) The listing required by this section must be clearly
30-55 identified and must be located or clearly referenced at the front
30-56 of the directory before the main listing of residential and
30-57 business telephone numbers. The listing is not required to exceed
30-58 a length equivalent to two 8-1/2-inch by 11-inch pages,
30-59 single-spaced in eight-point type.
30-60 (c) The commission may adopt rules to implement this
30-61 section, including rules specifying the format of the listing and
30-62 criteria for inclusion of agencies, services, and officials. The
30-63 commission, with the cooperation of other state agencies, shall
30-64 compile relevant information to ensure accuracy of information in
30-65 the listing and shall provide the information to a
30-66 telecommunications utility or telephone directory publisher within
30-67 a reasonable time after a request by the utility or publisher.
30-68 (b) This section takes effect September 1, 1995, and applies
30-69 only to a telephone directory published on or after September 1,
30-70 1996.
31-1 SECTION 46. Subtitle G, Title III, Public Utility Regulatory
31-2 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
31-3 Regular Session, 1995, is amended by adding Section 3.310 to read
31-4 as follows:
31-5 Sec. 3.310. A telecommunications utility or an affiliate of
31-6 that utility that publishes a residential or business telephone
31-7 directory that is distributed to the public shall publish the name
31-8 of each state senator or representative who represents all or part
31-9 of the geographical area for which the directory contains listings.
31-10 SECTION 47. Subtitle G, Title III, Public Utility Regulatory
31-11 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
31-12 Regular Session, 1995, is amended by adding Section 3.311 to read
31-13 as follows:
31-14 Sec. 3.311. HUNTING SERVICE. Local exchange companies shall
31-15 make available, at a reasonable tariffed rate, hunting service from
31-16 local exchange lines to extended metropolitan service lines. The
31-17 customer may not be required to purchase additional extended
31-18 metropolitan service in order to purchase hunting service from
31-19 local exchange service to extended metropolitan service.
31-20 SECTION 48. The Public Utility Regulatory Act of 1995, as
31-21 enacted by S.B. 319, Acts of the 74th Legislature, Regular Session,
31-22 1995, is amended by amending Subtitles H and I and adding Subtitles
31-23 J-O to read as follows:
31-24 SUBTITLE H. INCENTIVE REGULATION OF TELECOMMUNICATIONS
31-25 Sec. 3.351. POLICY. Given the current status of competition
31-26 in the telecommunications industry, it is the policy of the
31-27 legislature to:
31-28 (1) provide a framework for an orderly transition from
31-29 traditional return on invested capital regulation to a fully
31-30 competitive telecommunications marketplace where all
31-31 telecommunications providers compete on fair terms;
31-32 (2) preserve and enhance universal telecommunications
31-33 service at affordable rates;
31-34 (3) upgrade the telecommunications infrastructure of
31-35 this state;
31-36 (4) promote network interconnectivity; and
31-37 (5) promote diversity in the supply of
31-38 telecommunications services and innovative products and services
31-39 throughout the entire state, both urban and rural.
31-40 Sec. 3.352. ELECTION AND BASKETS OF SERVICES. (a) After
31-41 the enactment of this subtitle, an incumbent local exchange company
31-42 may notify the commission in writing of the company's election to
31-43 be regulated under this subtitle. The notice must state the
31-44 company's commitment to limit any increase in the rates charged for
31-45 a four-year period for the services included in Section 3.353 of
31-46 this Act and its infrastructure commitment as described by Section
31-47 3.358 of this Act.
31-48 (b)(1) The services provided by an incumbent local exchange
31-49 company electing incentive regulation under this subtitle
31-50 ("electing company") shall be initially classified into three
31-51 categories or "baskets":
31-52 (A) "Basket I: basic network services";
31-53 (B) "Basket II: discretionary services"; and
31-54 (C) "Basket III: competitive services."
31-55 (2) The commission shall have the authority to
31-56 reclassify a service from Basket I to Basket II or Basket III, or
31-57 from Basket II to Basket III, consistent with the criteria
31-58 prescribed by Section 3.357 of this Act.
31-59 (c) An electing company's telecommunications services shall
31-60 be regulated under this subtitle regardless of whether that company
31-61 is a "dominant carrier" as that term is defined by Section 3.002 of
31-62 this Act.
31-63 (d) If, subsequent to the enactment of this subtitle, an
31-64 incumbent local exchange company notifies the commission in writing
31-65 of its election to incentive regulation under this subtitle, the
31-66 company may not under any circumstances be subject to any
31-67 complaint, hearing, or determination as to the reasonableness of
31-68 its rates, its overall revenues, its return on invested capital, or
31-69 its net income. However, the company's implementation and
31-70 enforcement of the competitive safeguards required by Subtitle J of
32-1 this title are not excluded from a complaint, hearing, or
32-2 determination. Nothing herein restricts any consumer's right to
32-3 complain to the commission regarding quality of service, the
32-4 commission's right to enforce quality of service standards, or the
32-5 consumer's right to complain regarding the application of an
32-6 ambiguous tariff, and if the commission finds an ambiguity, the
32-7 commission's right to determine the proper application of the
32-8 tariff or to determine the proper rate if the tariff is found to
32-9 not apply, but this does not permit the commission to lower a
32-10 tariff rate except as specifically provided by this Act, to change
32-11 its interpretation of a tariff, or to change a tariff so as to
32-12 extend its application to new classes of customers.
32-13 Sec. 3.353. BASKET I: BASIC NETWORK SERVICES. (a) The
32-14 following services shall initially be classified as basic network
32-15 services in Basket I as of September 1, 1995:
32-16 (1) flat rate residential and business local exchange
32-17 telephone service, including primary directory listings and the
32-18 receipt of a directory and any applicable mileage or zone charges;
32-19 (2) tone dialing service;
32-20 (3) lifeline and tel-assistance services;
32-21 (4) service connection charges for basic services;
32-22 (5) direct inward dialing service for basic services;
32-23 (6) private pay telephone access service;
32-24 (7) call trap and trace service;
32-25 (8) access to 911 service where provided by a local
32-26 authority and access to dual party relay service;
32-27 (9) switched access service;
32-28 (10) interconnection to competitive providers;
32-29 (11) mandatory extended area service arrangements;
32-30 (12) mandatory extended metropolitan service or other
32-31 mandatory toll-free calling arrangements;
32-32 (13) interconnection for commercial mobile service
32-33 providers;
32-34 (14) directory assistance; and
32-35 (15) 1+ intraLATA message toll service.
32-36 (b) On an incumbent local exchange company's election under
32-37 Section 3.352 of this Act, increases in rates for basic network
32-38 services are permitted only with commission approval and only
32-39 within the parameters specified by Subsection (c) of this section
32-40 for four years following the election. Notwithstanding the
32-41 requirements prescribed by Section 3.457 of this Act, rates for
32-42 basic network services may be decreased at any time on the
32-43 initiative of the electing company to a floor above long run
32-44 incremental cost for switched access service or the appropriate
32-45 cost for any basic local telecommunications service, which shall be
32-46 long run incremental cost as to any incumbent local exchange
32-47 company that is required by the commission to perform long run
32-48 incremental cost studies or elects to perform those studies. This
32-49 section does not affect the charges permitted under Section 3.304,
32-50 3.308, or 3.608 of this Act. The commission may not increase
32-51 service standards applicable to the provision of local exchange
32-52 telephone service by an electing company if the increased
32-53 investment required to comply with the increased standard exceeds
32-54 in any one year 10 percent of the incumbent local exchange
32-55 company's average annual intrastate additions in capital investment
32-56 for the most recent five-year period. In calculating the average,
32-57 the incumbent local exchange company shall exclude extraordinary
32-58 investments made during that five-year period.
32-59 (c)(1) Rates for basic network services may be changed in
32-60 the following circumstances and only with commission approval that
32-61 the proposed change is included in this subsection.
32-62 (2) On motion of an electing incumbent local exchange
32-63 company or on its own motion, the commission shall proportionally
32-64 adjust prices for services to reflect changes in Federal
32-65 Communications Commission separations affecting intrastate net
32-66 income by 10 percent or more.
32-67 (3) If, after 42 months after the date of the
32-68 incumbent local exchange company's election, an electing company in
32-69 this state with less than five million access lines is in
32-70 compliance with its infrastructure commitment, all quality of
33-1 services requirements, and all commission rules enacted under
33-2 Subtitle J of this title, on application of the incumbent local
33-3 exchange company, the commission may undertake a proceeding to
33-4 review the need for changes in the rates of services. The
33-5 application may request that the commission adjust rates, implement
33-6 new pricing plans, restructure rates, or rebalance revenues between
33-7 services to recognize changed market conditions and the effects of
33-8 competitive entry. The commission may use an index and a
33-9 productivity offset in determining these changes. The commission
33-10 may not order an increase in residential local exchange telephone
33-11 service that would cause those rates to increase by more than the
33-12 United States Consumer Price Index in any 12-month period. In no
33-13 case may the new monthly rate exceed the nationwide average of
33-14 local exchange telephone service rates for like services.
33-15 (4) Notwithstanding the commitments made under Section
33-16 3.352 of this Act, a rate group reclassification occurring as a
33-17 result of access lines growth shall be allowed by the commission on
33-18 request of the electing company.
33-19 (d)(1) Except as provided by Section 3.2572 of this Act, the
33-20 regulation of basic network services of an electing company shall,
33-21 to the extent not inconsistent with this subtitle, be governed by:
33-22 (A) Title I of this Act;
33-23 (B) this subtitle;
33-24 (C) Subtitles A, B, C, F, G, J, K, and L of this
33-25 title;
33-26 (D) Sections 3.201, 3.202, 3.204, 3.210, 3.211,
33-27 3.215, 3.216, 3.217, 3.218, and 3.219 of this Act; and
33-28 (E) all commission procedures and rules not
33-29 inconsistent with this subtitle.
33-30 (2) Changes to the terms and conditions of the tariff
33-31 offering of a basic network service, other than price changes,
33-32 continue to require commission approval.
33-33 (e) The rates capped in Subsection (b) of this section as a
33-34 result of a company's election shall be the rates charged by the
33-35 company on June 1, 1995, without regard to proceedings pending
33-36 under Section 1.301 or 3.210 of this Act or under Subchapter G,
33-37 Chapter 2001, Government Code.
33-38 Sec. 3.354. RATE ADJUSTMENT PROCEDURES. (a) An electing
33-39 company may adjust its rates for basic network services under
33-40 Section 3.353(c) of this Act on notice to the commission. The
33-41 notice to the commission of a rate adjustment must be accompanied
33-42 with sufficient documentary support to demonstrate that the rate
33-43 adjustment meets the criteria prescribed by Section 3.353(c) of
33-44 this Act. The commission shall establish by rule or order the
33-45 documentation to be required under this subsection.
33-46 (b) Notice to customers shall be published once in a
33-47 newspaper of general circulation in the service area to be affected
33-48 within a reasonable time period after the notice for a rate
33-49 adjustment is provided to the commission, and shall be included in
33-50 or on the bill of each affected consumer in the next billing
33-51 subsequent to the filing with the commission. The notice shall
33-52 contain a title that includes the name of the company and the words
33-53 "NOTICE OF POSSIBLE RATE CHANGE." The notice shall contain the
33-54 following information:
33-55 (1) a statement that the consumer's rate may change;
33-56 (2) an estimate of the amount of the annual change for
33-57 the typical residential, business, or access consumers that would
33-58 result if the rate adjustment is approved by the commission, which
33-59 estimate shall be printed in a type style and size that are
33-60 distinct from and larger than the type style and size of the body
33-61 of the notice; and
33-62 (3) a statement that a consumer who wants to comment
33-63 on the rate adjustment or who wants additional details regarding
33-64 the rate adjustment may call or write the commission, which
33-65 statement must include the telephone number and address of the
33-66 commission and a statement that additional details will be provided
33-67 free of charge to the consumer at the expense of the company.
33-68 (c) The commission shall review the adjusted rates to ensure
33-69 that the proposed adjustment conforms to the requirements of
33-70 Section 3.353(c) of this Act. A rate adjustment under Section
34-1 3.353(c)(2), (3), (4), or (5) of this Act takes effect 90 days
34-2 after the date of completion of notice.
34-3 (d) An incumbent local exchange company that has five
34-4 percent or fewer of the total access lines in this state may adopt
34-5 the cost, if determined based on a long run incremental cost study,
34-6 for the same or substantially similar services offered by a larger
34-7 incumbent local exchange company without the requirement of
34-8 presenting long run incremental cost studies of its own.
34-9 (e) Either by complaint filed by an affected party or on the
34-10 commission's own motion at any time before the rate adjustment
34-11 takes effect, the commission may suspend the effective date of the
34-12 rate adjustment and hold a hearing to review a rate set under
34-13 Section 3.353(c)(2), (3), (4), or (5) of this Act and after the
34-14 review issue an order approving, modifying, or rejecting the rate
34-15 adjustment if it is not in compliance with the applicable
34-16 provisions. Any order modifying or rejecting the proposed rate
34-17 adjustment shall specify each reason why the proposed adjustment is
34-18 not in compliance with the applicable provisions of Section
34-19 3.353(c)(2), (3), (4), or (5) of this Act and the means by which
34-20 the proposed adjustment may be brought into compliance.
34-21 (f) Any rate restructure under Section 3.353(c) of this Act
34-22 shall follow the notice and hearing procedures prescribed by
34-23 Sections 3.211(a)-(c) of this Act, except as otherwise provided in
34-24 this section.
34-25 Sec. 3.355. BASKET II: DISCRETIONARY SERVICES. (a) Basket
34-26 II services include all services or functions provided by the
34-27 electing company that have not been granted pricing flexibility in
34-28 a particular geographic market and that have not been listed under
34-29 Basket I or III.
34-30 (b) The following services are initially classified as
34-31 discretionary services in Basket II as of September 1, 1995:
34-32 (1) 1+ intraLATA message toll services, where
34-33 intraLATA equal access is available;
34-34 (2) 0+, 0- operator services;
34-35 (3) call waiting, call forwarding, and custom calling
34-36 features not listed in Basket III;
34-37 (4) call return, caller ID, and call control options
34-38 not listed in Basket III;
34-39 (5) central office based PBX-type services;
34-40 (6) billing and collection services;
34-41 (7) integrated services digital network (ISDN)
34-42 services; and
34-43 (8) new services.
34-44 (c) The commission may reclassify a service from Basket I to
34-45 Basket II or Basket III, or from Basket II to Basket III,
34-46 consistent with the criteria prescribed by Section 3.357 of this
34-47 Act.
34-48 (d) The prices for each Basket II service or function
34-49 provided by the electing company shall be set above the LRIC cost.
34-50 The commission shall set the reasonable price ceiling over and
34-51 above LRIC cost, but the ceiling may not be set below or above the
34-52 rate in effect on September 1, 1995, without regard to proceedings
34-53 pending under Section 1.301 or 3.210 of this Act or under
34-54 Subchapter G, Chapter 2001, Government Code. The ceiling may be
34-55 raised only after the proceedings required under Subtitle J of this
34-56 title. Thereafter, on application by the electing company or on
34-57 the commission's own motion, the commission may change the price
34-58 ceiling but may not increase the ceiling more than 10 percent
34-59 annually. Within the range of the LRIC floor and the price
34-60 ceiling, the incumbent local exchange company may change the price
34-61 of each service, including using volume and term discounts, zone
34-62 density pricing, packaging of services, customer specific pricing,
34-63 and other promotional pricing flexibility, but shall notify the
34-64 commission of each change. The placement of a service in Basket II
34-65 does not preclude an incumbent local exchange company from using
34-66 any of the regulatory treatments authorized by or under Section
34-67 3.051 of this Act. Discounts and other forms of pricing
34-68 flexibility may not be preferential, prejudicial, or
34-69 discriminatory.
34-70 Sec. 3.356. BASKET III: COMPETITIVE SERVICES. (a) The
35-1 following services are Basket III competitive services and shall be
35-2 subject to pricing flexibility as of September 1, 1995:
35-3 (1) services described in the WATS tariff as of
35-4 January 1, 1995;
35-5 (2) 800 and foreign exchange services;
35-6 (3) private line service;
35-7 (4) special access service;
35-8 (5) services from public pay telephones;
35-9 (6) paging services and mobile services (IMTS);
35-10 (7) 911 premises equipment;
35-11 (8) speed dialing; and
35-12 (9) three-way calling.
35-13 (b) The commission may reclassify a service from Basket I to
35-14 Basket II or Basket III or from Basket II to Basket III, consistent
35-15 with the criteria prescribed by Section 3.357 of this Act.
35-16 (c) The electing company may set the price for the service
35-17 at any level above the service's LRIC, in compliance with the
35-18 imputation rules established under Subtitle J of this title.
35-19 Permissible pricing flexibility includes volume and term discounts,
35-20 zone density pricing, packaging of services, customer specific
35-21 contracts, and other promotional pricing flexibility, subject to
35-22 the requirements of Section 3.451 of this Act. Discounts and other
35-23 forms of pricing flexibility may not be preferential, prejudicial,
35-24 or discriminatory. However, an electing incumbent local exchange
35-25 company may not increase the price of a service in a geographic
35-26 area in which that service or a functionally equivalent service is
35-27 not readily available from another provider.
35-28 (d) Not later than January 1, 2000, the commission shall
35-29 initiate a review and evaluation of any incumbent local exchange
35-30 company electing treatment under this subtitle or Subtitle I of
35-31 this title to review and evaluate the effects of the election,
35-32 including consumer benefits, impact of competition, infrastructure
35-33 investments, and quality of service. The commission shall file a
35-34 report and its recommendations to the legislature by January 1,
35-35 2001, as to whether the incentive regulation plan should be
35-36 extended, modified, eliminated, or replaced with some other form of
35-37 regulation. The legislature, based on the commission's report, may
35-38 authorize the commission to take action to extend, modify,
35-39 eliminate, or replace the incentive plan provided by this subtitle
35-40 and Subtitle I of this title.
35-41 Sec. 3.357. TRANSFERRING SERVICES. (a) In determining
35-42 whether to transfer services from Basket I to Basket II or Basket
35-43 III, or from Basket II to Basket III, the commission shall
35-44 establish standards that consider factors including:
35-45 (1) availability of the service from other providers;
35-46 (2) the proportion of the market that currently
35-47 receives the service;
35-48 (3) the effect of the transfer on subscribers of the
35-49 service; and
35-50 (4) the nature of the service.
35-51 (b) The commission may not transfer a service from one
35-52 basket to another until full implementation of all competitive
35-53 safeguards required by Sections 3.452, 3.453, 3.454, 3.455, 3.456,
35-54 3.457, and 3.458 of this Act.
35-55 Sec. 3.358. INFRASTRUCTURE. (a) It is the goal of this
35-56 State to facilitate and promote the deployment of an advanced
35-57 telecommunications infrastructure in order to spur economic
35-58 development throughout Texas. Texas should be among the leaders in
35-59 achieving this objective. The primary means of achieving this goal
35-60 shall be through encouraging private investment in the state's
35-61 telecommunications infrastructure by creating incentives for such
35-62 investment and promoting the development of competition. The best
35-63 way to bring the benefits of an advanced telecommunications network
35-64 infrastructure to Texas communities is through innovation and
35-65 competition among all the state's communications providers.
35-66 Competition will provide Texans a choice of telecommunications
35-67 providers and will drive technology deployment, innovation, service
35-68 quality, and cost-based prices as competing firms seek to satisfy
35-69 customer needs.
35-70 (b) In implementing this section, the commission shall
36-1 consider the following policy goals of this State:
36-2 (1) ensure the availability of the widest possible
36-3 range of competitive choices in the provision of telecommunications
36-4 services and facilities;
36-5 (2) foster competition and rely on market forces where
36-6 competition exists to determine the price, terms, availability, and
36-7 conditions of service in markets in which competition exists;
36-8 (3) ensure the universal availability of basic local
36-9 telecommunications services at reasonable rates;
36-10 (4) encourage the continued development and deployment
36-11 of advanced, reliable capabilities and services in
36-12 telecommunications networks;
36-13 (5) assure interconnection and interoperability, based
36-14 on uniform technical standards, among telecommunications carriers;
36-15 (6) eliminate existing unnecessary administrative
36-16 procedures which impose regulatory barriers to competition and
36-17 assure that competitive entry is fostered on an economically
36-18 rational basis;
36-19 (7) assure consumer protection and protection against
36-20 anticompetitive conduct;
36-21 (8) regulate providers of services only to the extent
36-22 they have market power to control the price of services to
36-23 customers;
36-24 (9) encourage cost-based pricing of telecommunications
36-25 services so that consumers pay a fair price for services that they
36-26 use; and
36-27 (10) subject to Section 3.353 of this Act, develop
36-28 quality of service standards for local exchange companies as it
36-29 deems appropriate to place Texas among the leaders in deployment of
36-30 an advanced telecommunications infrastructure except that the 10
36-31 percent limitation specified in Section 3.353 of this Act shall not
36-32 include the requirements of Subsections (c)(1)-(4) of this section.
36-33 (c) Recognizing that it will take time for competition to
36-34 develop in the local exchange market, the commission shall act, in
36-35 the absence of competition, to ensure that the following
36-36 infrastructure goals are achieved by electing companies:
36-37 (1) Electing incumbent local exchange companies shall
36-38 make access to end-to-end digital connectivity available to all
36-39 customers in their territories by December 31, 1996.
36-40 (2) Fifty percent of the local exchange access lines
36-41 in each electing local exchange company's territory must be served
36-42 by a digital central office switch by January 1, 2000.
36-43 (3) All electing company new central office switches
36-44 installed in Texas must be digital, or technologically equal to or
36-45 superior to digital, after September 1, 1995. At a minimum, each
36-46 new central office switch installed after September 1, 1997, must
36-47 be capable of providing Integrated Services Digital Network (ISDN)
36-48 services in a manner consistent with generally accepted national
36-49 standards.
36-50 (4) Electing incumbent local exchange companies'
36-51 public switched network backbone inter-office facilities must
36-52 employ broadband facilities capable of at least 45 megabits per
36-53 second, or at lower bandwidths if evolving technology permits the
36-54 delivery of video signal at quality levels comparable to a
36-55 television broadcast signal, by January 1, 2000. This requirement
36-56 shall not extend to local loop facilities.
36-57 (d)(1) An electing company of greater than five million
36-58 access lines shall also install Common Channel Signaling 7
36-59 capability in all central offices by January 1, 2000.
36-60 (2) An electing company of greater than five million
36-61 access lines shall connect all of its serving central offices to
36-62 their respective LATA tandem central offices with optical fiber or
36-63 equivalent facilities by January 1, 2000.
36-64 (3) An electing company serving more than one million
36-65 access lines and fewer than five million access lines shall provide
36-66 digital switching central offices in all exchanges by December 31,
36-67 1998.
36-68 (e) The commission may consider waivers of Subsections
36-69 (c)(1)-(4) of this section for electing local exchange companies
36-70 serving fewer than one million lines, if the local exchange company
37-1 demonstrates that such investment is not viable economically, after
37-2 due consideration is given to the public benefits which would
37-3 result from compliance with such requirements; and, in addition,
37-4 may consider a temporary extension of any period with respect to
37-5 Subsections (c)(1)-(4) of this section for electing local exchange
37-6 companies serving fewer than two million but more than one million
37-7 lines, if the local exchange company demonstrates that such
37-8 extension is in the public interest.
37-9 (f) The commission may not consider the cost of implementing
37-10 Subsection (c) or (d) of this section in determining whether an
37-11 electing company is entitled to a rate increase under this subtitle
37-12 or increased universal service funds under Section 3.608 of this
37-13 Act.
37-14 Sec. 3.359. INFRASTRUCTURE COMMITMENT TO CERTAIN ENTITIES.
37-15 (a)(1) It is the intent of this section to establish a
37-16 telecommunications infrastructure that interconnects public
37-17 entities described in this section. The interconnection of these
37-18 entities requires ubiquitous, broadband, digital services for
37-19 voice, video, and data within the local serving area. The
37-20 ubiquitous nature of these connections must also allow individual
37-21 networks of these entities to interconnect and interoperate across
37-22 the broadband digital service infrastructure. The delivery of
37-23 these advanced telecommunications services also will require
37-24 collaborations and partnerships of public, private, and commercial
37-25 telecommunications service network providers.
37-26 (2) The goal of this section is to interconnect and
37-27 aggregate the connections to every entity described in this
37-28 section, within the local serving area. It is further intended
37-29 that the implementation of the infrastructure as defined within
37-30 this section connect all the entities requesting the services
37-31 offered under this section.
37-32 (b)(1)(A) On customer request, the electing company shall
37-33 provide broadband digital service that is capable of providing
37-34 transmission speeds of up to 45 megabits per second or better for
37-35 customer applications and other customized or packaged network
37-36 services (private network services) to an entity described in this
37-37 section for their private and sole use except as provided in
37-38 Subsection (d) of this section:
37-39 (i) educational institutions, as that term
37-40 is defined in Section 3.606 of this Act;
37-41 (ii) libraries, as that term is defined in
37-42 Section 3.606 of this Act;
37-43 (iii) nonprofit telemedicine centers of
37-44 academic health centers, public or not-for-profit hospitals, or
37-45 state-licensed health care practitioners;
37-46 (iv) public or not-for-profit hospitals;
37-47 (v) projects funded by the
37-48 Telecommunications Infrastructure Fund described in this Act; or
37-49 (vi) any legally constituted consortium or
37-50 group of entities listed in Subparagraphs (i)-(v) of this
37-51 paragraph.
37-52 (B) Such private network services shall be
37-53 provided pursuant to customer specific contracts at a rate that is
37-54 105 percent of the long run incremental cost, including
37-55 installation, of the services.
37-56 (C) Each such contract shall be filed with the
37-57 commission but not require the approval of the commission.
37-58 (D) An electing company shall file a flat
37-59 monthly tariff rate for point-to-point intraLATA 1.544 megabits per
37-60 second service for the entities specified in Subsection (b)(1)(A)
37-61 of this section which shall be distance insensitive and be no
37-62 higher than 105 percent of the statewide average long run
37-63 incremental costs, including installation, of the service.
37-64 (E) An electing company shall provide
37-65 point-to-point 45 megabits per second intraLATA services when
37-66 requested by an entity specified in Subsection (b)(1)(A) of this
37-67 section pursuant to customer specific contracts except that the
37-68 interoffice portion of the service, if any, will be recovered on a
37-69 statewide average distance insensitive basis. The rate for this
37-70 service shall be no higher than 105 percent of long run incremental
38-1 cost, including installation, of the service.
38-2 (F) An electing local exchange company shall
38-3 provide an entity described in this section with broadband digital
38-4 special access service to interexchange carriers at no higher than
38-5 105 percent of the long run incremental cost, including
38-6 installation, of such service.
38-7 (G) On customer request, the electing company
38-8 shall provide expanded interconnection (virtual colocation)
38-9 consistent with the rules adopted by the commission pursuant to
38-10 Section 3.456 of this Act to an entity specified in Subsection
38-11 (b)(1)(A) of this section at 105 percent of long run incremental
38-12 cost, including installation. Such entities shall not have to
38-13 qualify for such expanded interconnection if it is ordered by the
38-14 commission.
38-15 (H) The legislature finds that an entity
38-16 described in this section warrants preferred rate treatment
38-17 provided that any such rates cover the long run incremental cost of
38-18 the services provided.
38-19 (I) Notwithstanding any other provision of this
38-20 Act, an electing local exchange company shall not be subject to a
38-21 complaint under this section except by an entity specified in this
38-22 section complaining that the provision of private network services
38-23 under this section was provided preferentially to a similarly
38-24 situated customer.
38-25 (2) An entity receiving the services provided under
38-26 this section may not be assessed special construction or
38-27 installation charges.
38-28 (3) An educational institution or a library may elect
38-29 the rate treatment provided in this section or the discount
38-30 provided by Section 3.605 of this Act.
38-31 (4) Notwithstanding the pricing flexibility authorized
38-32 by this Act, an electing company's rates for the services provided
38-33 under this section may not be increased for six years from the date
38-34 of election except as otherwise provided in customer specific
38-35 contracts.
38-36 (5) On customer request by an educational institution
38-37 or library in exchanges of an electing company serving more than
38-38 five million access lines in which toll-free access to the Internet
38-39 is not available, the local exchange company shall make available a
38-40 toll-free connection or toll-free dialing arrangement for use by
38-41 educational institutions or libraries in accessing the Internet in
38-42 an exchange in which Internet access is available on a toll-free
38-43 basis. The connection or dialing arrangement shall be provided at
38-44 no charge to the educational institution or library until Internet
38-45 access becomes available in the exchange of the requesting
38-46 educational institution or library. The local exchange company is
38-47 not required to arrange for Internet access or to pay Internet
38-48 charges for the requesting educational institution or library.
38-49 (6) An electing company shall give priority to serving
38-50 rural areas, areas designated as critically underserved, medically
38-51 or educationally, and educational institutions with high
38-52 percentages of economically disadvantaged students.
38-53 (c) The private network services provided pursuant to this
38-54 section may be interconnected with other similar networks for
38-55 distance learning, telemedicine, and information sharing purposes.
38-56 (d) The private network services provided pursuant to this
38-57 section may not be shared or resold to other customers except that
38-58 such services may be used by and shared among the entities
38-59 described in Subsection (b)(1)(A) of this section. The services
38-60 provided pursuant to this section may not be required to be resold
38-61 to other customers at the rates provided in this section; however,
38-62 the prohibition contained in this subsection is not intended to
38-63 preclude the otherwise permitted resale of other services which may
38-64 be offered by an electing company using the same facilities or a
38-65 portion thereof, which are used to provide the private network
38-66 services offered under this section.
38-67 (e) For purposes of this section, the term "telemedicine
38-68 center" means a facility equipped to transmit by video, data, or
38-69 voice service medical information for the purpose of diagnosis or
38-70 treatment of illness or disease, owned or operated by a public or
39-1 not-for-profit hospital including an academic health center or such
39-2 a facility owned by any state-licensed health care practitioner or
39-3 group of practitioners and operated on a nonprofit basis.
39-4 (f) The State Purchasing and General Services Act (Article
39-5 601b, Vernon's Texas Civil Statutes) does not apply to contracts
39-6 entered into under this section.
39-7 SUBTITLE I. INFRASTRUCTURE PLAN FOR RATE OF RETURN COMPANIES
39-8 Sec. 3.401. POLICY. It is the policy of the legislature
39-9 that those incumbent local exchange companies that do not elect to
39-10 be regulated under Subtitle H of this title should nevertheless
39-11 have incentives to deploy infrastructure that will benefit the
39-12 citizens of this state, while maintaining reasonable local rates
39-13 and universal service.
39-14 Sec. 3.402. ELECTION. (a) An incumbent local exchange
39-15 company serving less than five percent of the access lines in this
39-16 state that has not elected incentive regulation under Subtitle H of
39-17 this title may elect for an infrastructure plan under this subtitle
39-18 by notifying the commission in writing of its election under this
39-19 section.
39-20 (b)(1) For a period of six years after the election date, an
39-21 electing incumbent local exchange company may not seek an increase
39-22 in any rate previously established for that company under this Act,
39-23 except for the charges permitted under Sections 3.304, 3.308, and
39-24 3.608 of this Act, and in the following circumstances and only with
39-25 commission approval that the proposed change is included in this
39-26 subsection.
39-27 (2) On motion of an electing incumbent local exchange
39-28 company or on its own motion, the commission shall adjust prices
39-29 for services to reflect changes in Federal Communications
39-30 Commission separations affecting intrastate net income by 10
39-31 percent or more.
39-32 (3) A rate group classification occurring as a result
39-33 of access lines growth shall be allowed by the commission on
39-34 request of the electing company.
39-35 (c) Section 3.354 of this Act applies to a rate change under
39-36 Subsection (b) of this section.
39-37 (d) If, subsequent to the enactment of this subtitle, an
39-38 incumbent local exchange company notifies the commission in writing
39-39 of its election to the alternative infrastructure plan under this
39-40 subtitle, the electing company may not for a period of six years
39-41 after the election date under any circumstances be subject to any
39-42 complaint or hearing as to the reasonableness of its rates, its
39-43 overall revenues, its return on invested capital, or its net income
39-44 if the electing incumbent local exchange company is complying with
39-45 its infrastructure commitment under Section 3.403 of this Act, nor
39-46 may an electing company be subject to a complaint that any
39-47 particular rate is excessive. However, the company's
39-48 implementation of the competitive safeguards required by Subtitle J
39-49 of this title are not excluded from a complaint, hearing, or
39-50 determination. Nothing herein restricts any consumer's right to
39-51 complain to the commission regarding quality of service, the
39-52 commission's right to enforce quality of service standards, or the
39-53 consumer's right to complain regarding the application of an
39-54 ambiguous tariff, and if the commission finds an ambiguity, the
39-55 commission's right to determine the proper application of the
39-56 tariff or to determine the proper rate if the tariff is found to
39-57 not apply, but this does not permit the commission to lower a
39-58 tariff rate except as specifically provided by this Act, to change
39-59 its interpretation of a tariff, or to change a tariff so as to
39-60 extend its application to new classes of customers. The commission
39-61 may not increase service standards applicable to the provision of
39-62 local exchange telephone service by an electing company if the
39-63 increased investment required to comply with the increased standard
39-64 exceeds in any one year 10 percent of the incumbent local exchange
39-65 company's average annual intrastate additions in capital investment
39-66 for the most recent five-year period. In calculating the average,
39-67 the incumbent local exchange company shall exclude extraordinary
39-68 investments made during the five-year period.
39-69 (e) On application by an electing incumbent local exchange
39-70 company, the commission may allow a company to withdraw its
40-1 election under this section but only for good cause. For the
40-2 purpose of this section, good cause includes only matters that were
40-3 beyond the control of the incumbent local exchange company.
40-4 (f) This section does not prohibit an incumbent local
40-5 exchange company from making an election under Section 3.352 of
40-6 this Act at any time, and if the company so elects, the
40-7 infrastructure commitment made under Section 3.403 of this Act
40-8 offsets any infrastructure commitment required in connection with
40-9 the Section 3.352 election.
40-10 (g) The rates capped by Subsection (b) of this section as a
40-11 result of a company's election shall be the rates charged by the
40-12 company at the date of its election without regard to proceedings
40-13 pending under Section 1.301 or 3.210 of this Act or under
40-14 Subchapter G, Chapter 2001, Government Code.
40-15 (h) In this section, "election date" means the date on which
40-16 the commission receives notice of election under this section.
40-17 Sec. 3.403. INFRASTRUCTURE COMMITMENT. (a) A company
40-18 electing under Section 3.402 of this Act shall make an
40-19 infrastructure commitment in writing to the governor and
40-20 commission, committing to make the following telecommunications
40-21 infrastructure investment in this state over a six-year period
40-22 following the company's election.
40-23 (b) The commission shall act to ensure that the following
40-24 infrastructure goals are achieved by electing companies:
40-25 (1) Electing incumbent local exchange companies shall
40-26 make access to end-to-end digital connectivity available to all
40-27 customers in their territories by January 1, 2000. "Make
40-28 available" as used in this subsection shall have the definition
40-29 contained in 16 T.A.C. Section 23.69.
40-30 (2) Fifty percent of the local exchange access lines
40-31 in each electing local exchange company's territory must be served
40-32 by a digital central office switch by January 1, 2000.
40-33 (3) All electing company new central office switches
40-34 installed in Texas after September 1, 1995, must be digital.
40-35 (4) Electing incumbent local exchange companies'
40-36 public switched network back-bone inter-office facilities must
40-37 employ broadband facilities capable of at least 45 megabits per
40-38 second, or at lower bandwidths if evolving technology permits the
40-39 delivery of video signal at quality levels comparable to a
40-40 television broadcast signal, that serve at least 50 percent of the
40-41 local exchange access lines by January 1, 2000. This requirement
40-42 shall not extend to local loop facilities.
40-43 (5) Electing incumbent local exchange companies shall
40-44 install Common Channel Signaling 7 capability in all access tandem
40-45 offices by January 1, 2000.
40-46 (6) The 10 percent limitation specified in Section
40-47 3.402 shall not include requirements of Subdivisions (1)-(5) of
40-48 this subsection.
40-49 (c)(1) On customer request, the electing company shall
40-50 provide private broadband services and other customized or packaged
40-51 network services (private network services) for the private and
40-52 sole use of the following entities:
40-53 (A) educational institutions, as that term is
40-54 defined in Section 3.605 of this Act;
40-55 (B) libraries, as that term is defined in
40-56 Section 3.606 of this Act;
40-57 (C) telemedicine centers of public or
40-58 not-for-profit hospitals;
40-59 (D) nonprofit telemedicine centers of state
40-60 licensed health care practitioners; or
40-61 (E) any legally constituted consortium or group
40-62 of entities listed in Paragraphs (A)-(D) of this subdivision.
40-63 (2) An electing company shall give investment priority
40-64 to serving rural areas, areas designated as critically underserved,
40-65 medically or educationally, and educational institutions with high
40-66 percentages of economically disadvantaged students.
40-67 (3) Such private network services shall be provided
40-68 pursuant to customer specific contracts.
40-69 (4) Such contracts shall be offered at 110 percent of
40-70 the long run incremental cost including installation costs of
41-1 providing the private network service.
41-2 (5) Each such contract shall be filed with the
41-3 commission but not require the approval of the commission.
41-4 (6) The legislature finds that the classes of
41-5 customers listed in Subdivisions (1)(A)-(D) of this subsection
41-6 warrant preferred rate treatment provided that any such rates cover
41-7 the long run incremental cost of the services provided.
41-8 (7) Notwithstanding any other provision of this Act,
41-9 an electing local exchange company shall not be subject to a
41-10 complaint under this section except by:
41-11 (A) educational institutions, as that term is
41-12 defined in Section 3.605 of this Act;
41-13 (B) libraries, as that term is defined in
41-14 Section 3.606 of this Act;
41-15 (C) telemedicine centers of public or
41-16 not-for-profit hospitals;
41-17 (D) nonprofit telemedicine centers of
41-18 state-licensed health care practioners; or
41-19 (E) any legally constituted consortium or group
41-20 of entities listed in Paragraphs (A)-(D) of this subdivision.
41-21 (8) Educational institutions, libraries, telemedicine
41-22 centers of public or not-for-profit hospitals, and nonprofit
41-23 telemedicine centers of state-licensed health care practitioners
41-24 receiving the services provided under this section may not be
41-25 assessed tariffed special construction or installation charges
41-26 unless agreed upon by the local exchange company and entities
41-27 specified in Subdivision (1) of this subsection.
41-28 (9) An educational institution or a library may elect
41-29 this rate treatment or the discount provided by Section 3.605 of
41-30 this Act.
41-31 (10) Notwithstanding the pricing flexibility
41-32 authorized by this Act, the electing company's rates for this
41-33 service may not be increased for six years from the date of
41-34 election.
41-35 (11) On request, for 1.544 megabits per second private
41-36 line or special access service by educational institutions and
41-37 libraries, that service shall be offered at 110 percent of the long
41-38 run incremental cost including installation costs. This rate is in
41-39 lieu of the discount provided by Section 3.605 of this Act.
41-40 (12) The customers specified in this section
41-41 constitute a special class of customer for purposes of the private
41-42 network for distance learning, telemedicine, and information
41-43 sharing purposes.
41-44 (13) The private network services provided pursuant to
41-45 this section may be interconnected with other similar networks for
41-46 distance learning, telemedicine, and information sharing purposes.
41-47 (14) The private network services provided pursuant to
41-48 this section may not be shared or resold to other customers except
41-49 that they may be used and shared among the entities specified in
41-50 Subdivision (1) of this subsection. The services provided pursuant
41-51 to this section may not be required to be resold to other customers
41-52 at the rates provided in this section; provided, however, the
41-53 prohibition contained in this subsection is not intended to
41-54 preclude the otherwise permitted resale of other services which may
41-55 be offered by an electing company using the same facilities or a
41-56 portion thereof, which are used to provide the private network
41-57 services offered under this section.
41-58 (d) The commission may consider waivers of requirements
41-59 listed in Subsections (b)(1)-(5) of this section for electing local
41-60 exchange companies serving fewer than one million lines if the
41-61 local exchange company demonstrates that such investment is not
41-62 viable economically, after due consideration is given to the public
41-63 benefits which would result from compliance with such requirements.
41-64 (e) The commission may not consider the cost of implementing
41-65 Subsection (b) or (c) of this section in determining whether an
41-66 electing company is entitled to a rate increase under this subtitle
41-67 or increased universal service funds under Section 3.608 of this
41-68 Act.
41-69 (f) For purposes of this section:
41-70 (1) "Private network services" means the
42-1 telecommunications services provided to an entity described in
42-2 Subsection (c)(1)(A) of this section and includes broadband
42-3 services, customized, and packaged network services and does not
42-4 limit the local exchange company from providing these services with
42-5 facilities which are also used to provide other services to other
42-6 customers.
42-7 (2) "Telemedicine center" means a facility equipped to
42-8 transmit, by video or data service, medical information for the
42-9 purpose of diagnosis or treatment of illness or disease, owned or
42-10 operated by a public or not-for-profit hospital, or such a facility
42-11 owned by any state-licensed health care practioner and operated on
42-12 a nonprofit basis.
42-13 (g) Each electing company shall file a report with the
42-14 commission each year on the anniversary date of its election that
42-15 sets forth its progress on its infrastructure commitment. The
42-16 report shall include:
42-17 (1) the institutions requesting service under this
42-18 section;
42-19 (2) the institutions served under this section;
42-20 (3) investment and expense in the previous period and
42-21 cumulative for all periods; and
42-22 (4) any other information the commission considers
42-23 necessary.
42-24 SUBTITLE J. COMPETITIVE SAFEGUARDS
42-25 Sec. 3.451. COMPETITIVE SAFEGUARDS. (a) To the extent
42-26 necessary to ensure that competition in telecommunications is fair
42-27 to all participants and to accelerate the improvement of
42-28 telecommunications in the state, the commission shall ensure that
42-29 the rates and regulations of an incumbent local exchange company
42-30 are not unreasonably preferential, prejudicial, or discriminatory
42-31 but are equitable and consistent in application.
42-32 (b) Section 3.352(d) of this Act does not prevent the
42-33 commission from enforcing this subtitle.
42-34 (c) The commission has exclusive jurisdiction to implement
42-35 competitive safeguards.
42-36 Sec. 3.452. UNBUNDLING. (a) An incumbent local exchange
42-37 company shall, at a minimum, unbundle its network to the extent
42-38 ordered by the Federal Communications Commission.
42-39 (b) Before the adoption of the pricing rules required by
42-40 Section 3.457 of this Act, the commission shall hold a hearing and
42-41 adopt an order on the issue of requiring further unbundling of
42-42 local exchange company services.
42-43 (c) The commission may order further unbundling only after
42-44 considering the public interest and competitive merits of further
42-45 unbundling. The commission may proceed by rulemaking or, if
42-46 requested by a party, shall proceed by evidentiary hearing.
42-47 (d) Following unbundling, the commission may assign the
42-48 unbundled components to the appropriate Basket according to the
42-49 purposes and intents of those Baskets.
42-50 Sec. 3.453. RESALE. (a) An incumbent local exchange
42-51 company serving one million or more access lines or electing the
42-52 incentive regulation plan under Subtitle H of this title shall file
42-53 a usage sensitive loop resale tariff by September 1, 1995. An
42-54 incumbent local exchange company serving fewer than one million
42-55 access lines or not electing under Subtitle H of this title shall
42-56 file a resale tariff within 60 days of the date on which a
42-57 certificate of operating authority or service provider certificate
42-58 of operating authority is granted under Subtitle F of this title.
42-59 (b) "Loop" resale as used in this section means the purchase
42-60 of the local distribution channel or "loop" facility from the
42-61 incumbent local exchange company for the purpose of resale to end
42-62 user customers.
42-63 (c) The commission shall conduct any proceeding it
42-64 determines appropriate to determine the rates, terms, and
42-65 conditions for this tariff within 180 days of filing. The
42-66 commission may:
42-67 (1) only approve a usage sensitive rate that recovers
42-68 the total long run incremental cost of the loop on an unseparated
42-69 basis, plus an appropriate contribution to joint and common costs;
42-70 and
43-1 (2) only permit a holder of a certificate of
43-2 convenience or necessity, certificate of operating authority, or
43-3 service provider certificate of operating authority to purchase
43-4 from the resale tariff, except as provided by Subsection (f)(1) of
43-5 this section.
43-6 (d) On September 1, 1995, a provider of telecommunications
43-7 service may not impose any restriction on the resale or sharing of
43-8 any service for which it is not a dominant provider nor, as to any
43-9 incumbent local exchange company electing alternative regulation
43-10 under Subtitle H of this title, for any service entitled to
43-11 regulatory treatment under Basket III as described by Section 3.356
43-12 of this Act.
43-13 (e) A holder of a certificate of operating authority or
43-14 service provider certificate of operating authority has the
43-15 reciprocal obligation to permit local exchange companies to resell
43-16 its existing loop facilities at its regularly published rates if
43-17 the local exchange company has no loop facilities and has a request
43-18 for service.
43-19 (f)(1) The commission shall eliminate all resale
43-20 prohibitions in an electing incumbent local exchange company's
43-21 tariffs on:
43-22 (A) completion of the commission's costing and
43-23 pricing rulemaking;
43-24 (B) completion of rate rebalancing of the
43-25 incumbent local exchange company rates required by Section 3.457 of
43-26 this Act; and
43-27 (C) removal of all prohibitions on incumbent
43-28 local exchange companies providing interLATA service.
43-29 (2) The commission shall eliminate all resale
43-30 prohibitions in the tariffs of an electing company of five million
43-31 access lines or more on removal of all prohibitions and
43-32 restrictions on such company's provision of interLATA service.
43-33 (3) When the commission eliminates the resale
43-34 prohibitions under this subsection, it shall continue to prohibit
43-35 the resale of local exchange or directory assistance flat rate
43-36 services as a substitute for usage sensitive services. If the
43-37 commission finds that the rate for a particular service or function
43-38 will, as a result of the costing and pricing proceeding, be less
43-39 than the cost of providing the service or function and that the
43-40 difference in rate and cost will not be recovered from the
43-41 universal service fund, the service may be offered for resale only
43-42 to the same class of customer as sold to by the incumbent local
43-43 exchange company. In any event, after resale prohibitions are
43-44 removed, residence service may not be resold to business customers.
43-45 (g) Nothing herein alters resale or sharing arrangements
43-46 presently permitted in incumbent local exchange company tariffs
43-47 existing on September 1, 1995, or tariffs proposed by an incumbent
43-48 local exchange company serving more than five million access lines
43-49 in this state that are filed on or before May 1, 1995.
43-50 Sec. 3.454. IMPUTATION. (a) Not later than December 1,
43-51 1996, the commission shall adopt rules governing imputation of the
43-52 price of a service.
43-53 (b) Imputation is a regulatory policy the commission shall
43-54 apply to prevent an incumbent local exchange company from selling a
43-55 service or function to another telecommunications utility at a
43-56 price that is higher than the rate the incumbent local exchange
43-57 company implicitly includes in services it provides to its retail
43-58 customers.
43-59 (c) The commission may require imputation only of the price
43-60 of a service that is:
43-61 (1) not generally available from a source other than
43-62 the incumbent local exchange company; and
43-63 (2) necessary for the competitor to provide its
43-64 competing services.
43-65 (d) The commission may not require imputation of the price
43-66 to a local exchange telephone service while the price is capped
43-67 under Subtitle H or I of this title.
43-68 (e) The price of switched access service shall be imputed to
43-69 the price of each service for which switched access service is a
43-70 component until switched access service is competitively available.
44-1 (f) The commission may not require imputation on a
44-2 rate-element-by-element basis but only on a service-by-service
44-3 basis.
44-4 (g) For a service provided under a customer specific
44-5 contract for which imputation may be required under Subsection (c)
44-6 of this section, the commission may not require imputation on a
44-7 rate-element-by-element basis but only on a service-by-service
44-8 basis within the contract.
44-9 (h) The incumbent local exchange company shall demonstrate
44-10 that the price it charges for its retail service recovers the costs
44-11 of providing the service. For purposes of this subsection, the
44-12 costs of providing the service is defined as the sum of:
44-13 (1) specifically tariffed premium rates for the
44-14 noncompetitive services or service functions, or elements of these
44-15 noncompetitive services or service functions (or their functional
44-16 equivalent) that are used to provide the service;
44-17 (2) the total service long run incremental costs of
44-18 the competitive services or service functions that are used;
44-19 (3) any costs, not otherwise reflected in Subdivision
44-20 (1) or (2) of this subsection, that are specifically associated
44-21 with the provision of the service or group of services; and
44-22 (4) any cost or surcharge associated with an explicit
44-23 subsidy that is applied to all providers of the service for the
44-24 purpose of promoting universal service.
44-25 (i) The commission may waive an imputation requirement for
44-26 any public interest service such as 9-1-1 service and dual party
44-27 relay service if the commission determines that the waiver is in
44-28 the public interest.
44-29 Sec. 3.455. Telecommunications Number Portability. (a)
44-30 Because a uniform national number plan is valuable and necessary to
44-31 the state, the commission by rule shall adopt guidelines governing
44-32 telecommunications number portability and the assignment of
44-33 telephone numbers in a competitively neutral manner. The
44-34 commission rules may not be inconsistent with the rules and
44-35 regulations of the Federal Communications Commission regarding
44-36 telecommunications number portability.
44-37 (b) In this Act, "telecommunications number portability"
44-38 means the ability of a user of telecommunications services, to the
44-39 extent technically feasible, to retain an existing telephone number
44-40 without impairing the quality, reliability, or convenience of
44-41 service when changing from one provider of telecommunications
44-42 service to another provider.
44-43 (c) As an interim measure, the commission shall adopt
44-44 reasonable mechanisms to allow consumers to retain their telephone
44-45 numbers. At a minimum, these mechanisms shall include the use of
44-46 call forwarding functions and direct inward dialing for those
44-47 purposes. An incumbent local exchange company with one million
44-48 access lines or more shall file tariffs before November 1, 1995,
44-49 and the commission, before March 1, 1996, shall determine
44-50 reasonable rates to be charged for call forwarding functions,
44-51 direct inward dialing, and any other mechanism the commission
44-52 determines should be used as an interim number portability measure
44-53 by a new entrant. An incumbent local exchange company with fewer
44-54 than one million access lines where a certificate of operating
44-55 authority or a service provider certificate of operating authority
44-56 has been granted shall file tariffs within 60 days after the date
44-57 of a bona fide request, and the commission, within 60 days after
44-58 the date the tariffs are filed, shall determine reasonable rates to
44-59 be charged for call forwarding functions, direct inward dialing,
44-60 and any other mechanism the commission determines should be used as
44-61 an interim number portability measure by a new entrant.
44-62 Sec. 3.456. Expanded Interconnection. (a) Not later than
44-63 September 1, 1996, the commission shall adopt rules for expanded
44-64 interconnection that:
44-65 (1) are consistent with the rules and regulations of
44-66 the Federal Communications Commission relating to expanded
44-67 interconnection;
44-68 (2) treat intrastate private line services as special
44-69 access service; and
44-70 (3) provide that if an incumbent local exchange
45-1 company is required to provide expanded interconnection to another
45-2 local exchange company, the second local exchange company shall, in
45-3 a like manner, provide expanded interconnection to the first
45-4 company.
45-5 (b) This section does not prohibit the commission from
45-6 completing a proceeding pending on April 1, 1995, that addresses
45-7 expanded interconnection.
45-8 Sec. 3.457. COSTING AND PRICING. (a)(1) The commission
45-9 shall complete a pricing rulemaking and adopt a pricing rule by
45-10 April 1, 1997. Companies subject to that rule shall file cost
45-11 studies and necessary supporting data not later than November 1,
45-12 1996, unless specific waivers are authorized.
45-13 (2) The commission has 85 days after the date a cost
45-14 study is submitted to administratively approve it or to order that
45-15 changes be made, except that the review process may be suspended
45-16 for 30 days upon motion of the presiding examiner or for good cause
45-17 shown by any party that demonstrates a justiciable interest. Such
45-18 request must be made within the first 45 days of the review
45-19 process. If the commission delegates approval of the cost study to
45-20 an administrative law judge or hearings examiner, the judge or
45-21 examiner has 85 days, or 115 days if suspended, to administratively
45-22 approve it or to order that changes be made. The commission may
45-23 not conduct a contested case to approve a cost study submitted
45-24 under this section.
45-25 (3) Any party may appeal to the commission an
45-26 administrative determination by an administrative law judge or
45-27 hearings examiner under Subdivision (2) of this subsection within
45-28 five days after the date of notification of the determination. The
45-29 commission shall rule on the appeal within 30 days after the date
45-30 it receives the appeal.
45-31 (4) If the commission or an administrative law judge
45-32 or hearings examiner orders a cost study to be changed, the judge
45-33 or examiner shall order the company to make those changes within a
45-34 period that is commensurate with the complexity of the study and
45-35 the need to complete the cost studies in a timely manner.
45-36 (5) The parties shall be permitted expedited discovery
45-37 after a cost study is submitted. The commission shall fairly
45-38 evaluate the comments or pleadings filed by any party regarding the
45-39 cost study.
45-40 (b) In adopting the pricing rule, the commission shall:
45-41 (1) ensure that prices for monopoly services remain
45-42 affordable;
45-43 (2) ensure that prices for competitive services may
45-44 not be:
45-45 (A) unreasonably preferential, prejudicial, or
45-46 discriminatory;
45-47 (B) subsidized either directly or indirectly by
45-48 noncompetitive services; or
45-49 (C) predatory or anticompetitive; and
45-50 (3) require that each service recover the appropriate
45-51 cost, including appropriate joint and common costs, of any and all
45-52 facilities and functions used to provide that service.
45-53 (c) The commission shall allow an incumbent local exchange
45-54 company that is not a Tier 1 local exchange company as of September
45-55 1, 1995, at that company's option, to adopt the cost studies
45-56 approved by the commission for a Tier 1 local exchange company.
45-57 Sec. 3.458. INTERCONNECTION. (a) "Interconnection" for the
45-58 purposes of this section means the termination of local
45-59 intraexchange traffic of another local exchange company or holder
45-60 of a service provider certificate of operating authority within the
45-61 local calling area of the terminating local exchange company or
45-62 certificate holder for calls that originate and terminate in this
45-63 state. The provisions of this section do not govern rates for the
45-64 existing termination of cellular or interexchange traffic.
45-65 (b) The commission shall require all providers of
45-66 telecommunications services to maintain interoperable networks.
45-67 Telecommunications providers shall negotiate network
45-68 interconnectivity, charges, terms, and conditions, and in that
45-69 event the commission shall approve the interconnection rates. The
45-70 commission may resolve disputes filed by a party to those
46-1 negotiations.
46-2 (c) In the absence of a mutually agreed compensation rate
46-3 negotiated under Subsection (b) of this section, each carrier shall
46-4 reciprocally terminate the other carrier's traffic at no charge for
46-5 the first nine months after the date on which the first call is
46-6 terminated between the carriers.
46-7 (d) The commission shall, within the nine-month period
46-8 prescribed by Subsection (c) of this section, complete a proceeding
46-9 to establish reciprocal interconnection rates, terms, and
46-10 conditions. The commission shall establish reciprocal
46-11 interconnection rates, terms, and conditions based solely on the
46-12 commission proceeding. In establishing the initial interconnection
46-13 rate, the commission may not require cost studies from the new
46-14 entrant. Not earlier than three years after the date on which the
46-15 first call is terminated between the carriers, the commission may,
46-16 if the commission receives a complaint, require cost studies by a
46-17 new entrant for the purpose of establishing interconnection rates.
46-18 (e) The incumbent local exchange company may adopt the
46-19 interconnection rates approved for a larger incumbent local
46-20 exchange company without the commission requirement of additional
46-21 cost justification. If an incumbent local exchange company does
46-22 not adopt the interconnection rates of a larger company, or
46-23 negotiates under Subsection (b) of this section, the company is
46-24 governed by Subsections (c) and (d) of this section. If the
46-25 incumbent local exchange company adopts the interconnection rates
46-26 of another incumbent local exchange company, the new entrant may
46-27 adopt those rates as the new entrant's interconnection rates. If
46-28 the incumbent local exchange company elects to file its own tariff,
46-29 the new entrant must also file its own interconnection tariff.
46-30 (f) The commission may make generic rules and set policies
46-31 governing interconnection arrangements. The commission may
46-32 establish rules that are responsive to changes in federal law or
46-33 developments in the local exchange market.
46-34 (g) The commission may not use interconnection rates under
46-35 this section as a basis to alter interconnection rates for other
46-36 services.
46-37 (h) The commission has exclusive jurisdiction over any
46-38 holder of a certificate of convenience and necessity, certificate
46-39 of operating authority, or service provider certificate of
46-40 operating authority for the determination of rates, terms, and
46-41 conditions for interconnection.
46-42 Sec. 3.459. INCUMBENT LOCAL EXCHANGE COMPANY REQUIREMENTS.
46-43 (a) An incumbent local exchange company may not unreasonably:
46-44 (1) discriminate against another provider by refusing
46-45 access to the local exchange;
46-46 (2) refuse or delay interconnections to another
46-47 provider;
46-48 (3) degrade the quality of access provided to another
46-49 provider;
46-50 (4) impair the speed, quality, or efficiency of lines
46-51 used by another provider;
46-52 (5) fail to fully disclose in a timely manner on
46-53 request all available information necessary for the design of
46-54 equipment that will meet the specifications of the local exchange
46-55 network; or
46-56 (6) refuse or delay access by any person to another
46-57 provider.
46-58 (b) This section may not be construed to require an
46-59 incumbent local exchange company to provide expanded
46-60 interconnection as that term is defined by the Federal
46-61 Communications Commission.
46-62 (c) Nothing in this Act shall require the commission to
46-63 change the rate treatment for Bulletin Board Systems in residences
46-64 established by the commission in Docket No. 8387 nor is anything in
46-65 this Act intended to regulate or tax Bulletin Board Systems or
46-66 Internet Service Providers or to require any changes in the rates
46-67 charged to these entities under existing tariffs, provided they
46-68 only provide enhanced or information services and not
46-69 telecommunications services.
46-70 Sec. 3.460. COMMISSION AUTHORITY. (a) The commission has
47-1 all authority necessary to establish procedures with respect to the
47-2 policies stated in Sections 3.451, 3.452, 3.453, 3.454, 3.455,
47-3 3.456, 3.457, and 3.458 of this Act and to resolve any disputes
47-4 arising under those policies.
47-5 (b) The commission has the authority to and shall adopt
47-6 procedures for the processing of proceedings under Sections 3.452
47-7 and 3.453 of this Act, including the authority to limit discovery
47-8 and, except for the office, align parties having similar positions
47-9 for purposes of cross-examination. In adopting procedures under
47-10 this section and in resolving disputes, the commission shall
47-11 consider the impact on consumers, competitors, and the incumbent
47-12 local exchange company. The commission may not implement, by order
47-13 or rule, any requirement that is contrary to any applicable federal
47-14 rule or law.
47-15 Sec. 3.461. APPLICATIONS AND RULES. The obligations
47-16 prescribed by Sections 3.452, 3.453, 3.455, 3.456, and 3.458 of
47-17 this Act may not, until September 1, 1998, be applied to incumbent
47-18 local exchange companies serving fewer than 31,000 access lines.
47-19 After September 1, 1998, the obligations prescribed by Sections
47-20 3.452, 3.453, and 3.456 of this Act may be applied only on a bona
47-21 fide request from a certified telecommunications utility. In
47-22 applying these rules to these incumbent local exchange companies,
47-23 the commission may modify the rules as it finds in the public
47-24 interest.
47-25 Sec. 3.462. REVIEW OF IMPLEMENTATION. The provisions of
47-26 Sections 3.452, 3.454, and 3.457 of this Act do not initially apply
47-27 to incumbent local exchange companies that as of September 1, 1995,
47-28 have 31,000 or more access lines in this state but fewer than one
47-29 million access lines in this state. The obligations prescribed by
47-30 those sections may be applied to such companies only on a bona fide
47-31 request from a holder of a certificate of operating authority or
47-32 service provider certificate of operating authority. In applying
47-33 these rules to these incumbent local exchange companies, the
47-34 commission may modify the rules as it finds in the public interest.
47-35 Sec. 3.463. INFRASTRUCTURE SHARING. (a) The commission
47-36 shall prescribe rules that require a local exchange company to
47-37 share public switched network infrastructure and technology with a
47-38 requesting local exchange company that lacks economies of scale or
47-39 scope, for the purpose of enabling that requesting company to
47-40 provide telecommunications services in the geographic areas to
47-41 which the requesting company is designated as the sole carrier of
47-42 last resort.
47-43 (b) The rules governing the sharing:
47-44 (1) may not require a local exchange company to make a
47-45 decision that is uneconomic or adverse to the public;
47-46 (2) shall permit, but not require, joint ownership and
47-47 operation of public switched network infrastructure and services by
47-48 or among the local exchange companies sharing infrastructure; and
47-49 (3) shall establish conditions that promote
47-50 cooperation between local exchange companies.
47-51 SUBTITLE K. BROADCASTER SAFEGUARDS
47-52 Sec. 3.501. CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI).
47-53 (a) In this section:
47-54 (1) "Specific customer proprietary network
47-55 information" (specific CPNI) means:
47-56 (A) information that relates to the quantity,
47-57 technical configuration, type, destination, or amount of use of
47-58 voice or data telecommunications services subscribed to by any
47-59 customer of a telecommunications utility, but excluding wireless
47-60 telecommunications providers, and is made available to the utility
47-61 by the customer solely by virtue of the utility-customer
47-62 relationship;
47-63 (B) information contained in the bills relating
47-64 to telecommunications services received by a customer of a
47-65 telecommunications utility; and
47-66 (C) any other information concerning the
47-67 customer as is available to the telecommunications utility by
47-68 virtue of the customer's use of the telecommunications utility
47-69 service. The term does not include subscriber list information.
47-70 (2) "Subscriber list information" means any
48-1 information that:
48-2 (A) identifies the listed names of subscribers
48-3 of a telecommunications utility or those subscribers' telephone
48-4 numbers, addresses, or primary advertising classifications, or any
48-5 combination of those listed names, numbers, addresses, or
48-6 classifications; and
48-7 (B) the telecommunications utility or an
48-8 affiliate has published or accepted for future publication.
48-9 (b) Except as preempted by the Federal Communications
48-10 Commission, a telecommunications utility may not use specific CPNI
48-11 for commercial purposes other than the sale, provision, or billing
48-12 and collection of telecommunications or enhanced services. Nothing
48-13 herein prohibits the use of specific CPNI with the customer's
48-14 consent or the provision of specific CPNI to an affiliate
48-15 telecommunications provider.
48-16 (c) Not later than September 1, 1996, the commission shall
48-17 adopt rules that are consistent with rules on this subject adopted
48-18 by the Federal Communications Commission. Rules adopted under this
48-19 section shall:
48-20 (1) require each telecommunications utility to notify
48-21 each subscriber annually, through means approved by the commission,
48-22 of the subscriber's right to reject the utility's use of specific
48-23 CPNI for purposes of marketing other services;
48-24 (2) in the event the Federal Communications Commission
48-25 adopts new CPNI rules that no longer preempt a state's authority to
48-26 adopt inconsistent rules, the commission shall institute a
48-27 proceeding regarding the appropriate use of CPNI by all
48-28 telecommunications utilities, provided that any rule, policy, or
48-29 order adopted by the commission may not be discriminatory in its
48-30 application to telecommunications utilities; and
48-31 (3) require each telecommunications utility, if the
48-32 utility makes nonproprietary aggregate CPNI available to its
48-33 affiliates, to make that information available on the same terms
48-34 and conditions to unaffiliated entities.
48-35 (d) The commission may not implement any rules regarding
48-36 CPNI applicable to an incumbent local exchange company having
48-37 100,000 or fewer access lines in service in this state that are
48-38 more burdensome to the company than the CPNI rules of the Federal
48-39 Communications Commission, except that this prohibition does not
48-40 apply to uses of CPNI that are unrelated to telecommunications
48-41 services or products.
48-42 Sec. 3.502. AUDIO VIDEO. (a) In this Act:
48-43 (1) "Video programming" means programming provided by
48-44 or generally considered comparable to programming provided by a
48-45 television broadcast station as defined by the Federal
48-46 Communications Commission under Section 602, Communications Act of
48-47 1934 (47 U.S.C. Section 522).
48-48 (2) "Audio programming" means programming provided by
48-49 or generally considered comparable to programming provided by an AM
48-50 or FM broadcast station. However, the term does not include any
48-51 audio-related services of the type offered by the incumbent local
48-52 exchange company as of September 1, 1995.
48-53 (b) An incumbent local exchange company may not provide
48-54 audio or video programming in this state. However, nothing herein
48-55 prohibits a separate corporate affiliate of an incumbent local
48-56 exchange company from providing audio or video programming.
48-57 (c) A separate corporate affiliate of an incumbent local
48-58 exchange company providing audio or video programming:
48-59 (1) shall obtain telecommunications services from its
48-60 affiliate incumbent local exchange company at tariffed rates, or if
48-61 those services are not provided under a tariff, at the fair market
48-62 value or, in the event there is no fair market value or that value
48-63 is less than long run incremental cost (LRIC), then the rate is
48-64 equal to the service's LRIC;
48-65 (2) shall purchase, use, rent, or access information,
48-66 services, space, or devices that are not telecommunications
48-67 services from its affiliate incumbent local exchange company
48-68 consistent with the affiliate transaction rules promulgated by the
48-69 Federal Communications Commission then in effect, provided that in
48-70 no case shall those transactions be valued at less than the greater
49-1 of net book value or fair market value, whichever is applicable;
49-2 (3) shall maintain books, records, and accounts that
49-3 are separate from those of an incumbent local exchange company,
49-4 which books, records, and accounts shall be kept in accordance with
49-5 generally accepted accounting principles;
49-6 (4) shall prepare financial statements that are not
49-7 consolidated with those of an incumbent local exchange company,
49-8 provided, however, that financial statements and consolidated tax
49-9 returns may be prepared that consolidate the operation of the
49-10 separate corporate affiliate with a parent company and its other
49-11 subsidiaries;
49-12 (5) may not incur debt in a manner that would permit a
49-13 creditor on default to have recourse to the assets of the incumbent
49-14 local exchange company;
49-15 (6) may not use the names, trademarks, or service
49-16 marks of the incumbent local exchange company, but this does not
49-17 prohibit the use of those names or marks if they are used in common
49-18 with the parent, affiliate, or owner of the incumbent local
49-19 exchange company;
49-20 (7) shall perform its marketing and sales functions
49-21 and operation in compliance with Open Network Architecture and the
49-22 affiliate transaction rules promulgated by the Federal
49-23 Communications Commission then in effect;
49-24 (8) may not have any directors, officers, or employees
49-25 in common with the incumbent local exchange company; and
49-26 (9) shall maintain a separate corporate entity from
49-27 the incumbent local exchange company.
49-28 (d) As to its separate affiliate providing video or audio
49-29 programming, an incumbent local exchange company:
49-30 (1) may not develop a rate for a telecommunications
49-31 service or deploy a telecommunications service to primarily benefit
49-32 its separate affiliate for the affiliate's video or audio
49-33 programming unless that rate or service is available on a
49-34 nondiscriminatory basis to all purchasers;
49-35 (2) may not be unreasonably preferential in the
49-36 deployment of telecommunications services for its separate
49-37 affiliates' audio or video programming;
49-38 (3) may not enter into customer specific contracts for
49-39 the provision of tariffed telecommunications services with its
49-40 separate affiliate unless substantially the same terms and
49-41 conditions of the contract are generally available to nonaffiliated
49-42 interests;
49-43 (4) shall maintain and file with the commission copies
49-44 of all contracts or arrangements between the incumbent local
49-45 exchange company and the separate affiliate and report the contract
49-46 amount for each cash and noncash transaction with the separate
49-47 affiliate, including payments for costs of any goods and services
49-48 or any property right or thing or for interest expense;
49-49 (5) may not transfer assets to the separate affiliate
49-50 unless those assets are priced no lower than assets that are
49-51 available in an arm's-length transaction to third parties;
49-52 (6) shall value any assets that are transferred to a
49-53 separate affiliate at the greater of net book or fair market value;
49-54 (7) shall value any assets that are transferred to it
49-55 by its separate affiliate at the lesser of net book value or fair
49-56 market value except instances where Federal Communications
49-57 Commission or commission rules or regulations permit in-arrears
49-58 payment for tariffed telecommunications services or the investment
49-59 by an affiliate of dividends or profits derived from the incumbent
49-60 local exchange company;
49-61 (8) shall comply with all applicable Federal
49-62 Communications Commission cost and other accounting rules;
49-63 (9) may not have any directors, officers, or employees
49-64 in common with the separate affiliate;
49-65 (10) may not own any property in common with the
49-66 separate affiliate; and
49-67 (11) shall provide, if it offers telecommunications
49-68 equipment or services to audio and video programming providers,
49-69 those services:
49-70 (A) at just and reasonable rates that are
50-1 tariffed, so long as the commission rules require those tariffs,
50-2 under nondiscriminatory terms and conditions; and
50-3 (B) if the equipment and services are not
50-4 subject to regulation, on similar terms and conditions to all video
50-5 or audio programming providers.
50-6 (e) In addition to the requirements and prohibitions
50-7 prescribed by Subsection (d) of this section, an incumbent local
50-8 exchange company shall, if it offers billing and collection
50-9 services to nonaffiliated audio and video programming providers,
50-10 provide those services under nondiscriminatory terms and
50-11 conditions. Nothing herein requires an incumbent local exchange
50-12 company to offer billing and collection service to nonaffiliated
50-13 programmers, and an incumbent local exchange company may exclude
50-14 certain classes of programmers from its billing and collection
50-15 services.
50-16 (f) An incumbent local exchange company shall have a
50-17 compliance audit performed every three years by an independent
50-18 accounting firm. The audit shall be conducted for the purpose of
50-19 determining whether the incumbent local exchange company, during
50-20 the preceding three years, is in compliance with all of the
50-21 requirements imposed by this section regarding the incumbent local
50-22 exchange company. The independent accounting firm shall file the
50-23 report with the commission. If the report concludes that the
50-24 incumbent local exchange company is not in compliance with any
50-25 portion of this section, the commission shall institute appropriate
50-26 action against the incumbent local exchange company. The report
50-27 shall be considered commercial or financial information that is
50-28 confidential by statute under Chapter 552, Government Code.
50-29 (g) Except as otherwise specifically provided by this Act,
50-30 the commission's jurisdiction over affiliates of incumbent local
50-31 exchange companies that are audio and video programmers is limited
50-32 to the requirements of this section and does not extend to subjects
50-33 not specifically provided herein.
50-34 (h) This section does not apply to an incumbent local
50-35 exchange company having 100,000 or fewer total access lines in
50-36 service in this state.
50-37 (i) A company to which this section applies may petition the
50-38 commission for a waiver from any of the requirements imposed
50-39 herein. The commission shall grant the waiver if it is in the
50-40 public interest to do so, taking into account whether the need for
50-41 the restriction still exists in the market involved. The
50-42 commission may revoke any waiver granted if it is shown that
50-43 conditions under which the waiver was granted have materially
50-44 changed and it is in the public interest to do so.
50-45 Sec. 3.503. ADVERTISING. (a) Advertising agency services
50-46 include the functions generally performed by a general advertising
50-47 agency, including advertising development, advertising purchase,
50-48 advertising consultation, advertising copywriting, and advertising
50-49 research.
50-50 (b) An incumbent local exchange company may not sell
50-51 advertising agency services to nonaffiliates in this state.
50-52 Nothing herein prohibits a local exchange company from:
50-53 (1) any activities to promote or sell
50-54 telecommunications services and equipment, including voice, data,
50-55 video dial tone, video programming, audio programming, cellular,
50-56 interactive media, software, and other related services and
50-57 equipment; or
50-58 (2) any activities that seek to enhance or promote the
50-59 use of the telecommunications network.
50-60 (c) A separate corporate affiliate of an incumbent local
50-61 exchange company may engage in advertising agency activities, but
50-62 in the conduct of that business a separate corporate affiliate:
50-63 (1) shall maintain books, records, and accounts that
50-64 are separate from those of an incumbent local exchange company,
50-65 which books, records, and accounts shall be kept in accordance with
50-66 generally accepted accounting principles;
50-67 (2) shall prepare financial statements that are not
50-68 consolidated with those of an incumbent local exchange company
50-69 provided, however, that financial statements and consolidated tax
50-70 returns may be prepared that consolidate the operation of the
51-1 separate corporate affiliate with a parent company and its other
51-2 subsidiaries;
51-3 (3) may not incur debt in a manner that would permit a
51-4 creditor on default to have recourse to the assets of the incumbent
51-5 local exchange company;
51-6 (4) may not have any directors, officers, or employees
51-7 in common with the incumbent local exchange company;
51-8 (5) shall maintain a separate corporate entity from
51-9 the incumbent local exchange company; and
51-10 (6) may not use the names, trademarks, or service
51-11 marks of the incumbent local exchange company, but this does not
51-12 prohibit the use of those names or marks where they are used in
51-13 common with the parent, affiliate, or owner of the incumbent local
51-14 exchange company.
51-15 (d) Except as provided by Subsection (b) of this section,
51-16 an incumbent local exchange company that has an affiliate that
51-17 provides advertising agency services on behalf of nonaffiliates in
51-18 this state may not jointly market that affiliate's advertising
51-19 agency services in connection with telecommunications services and
51-20 equipment provided by the incumbent local exchange company. This
51-21 prohibition does not apply to advertising in telephone directories
51-22 in whatever form disseminated.
51-23 (e) Nothing herein prevents the incumbent local exchange
51-24 company from providing telephone solicitation services for
51-25 charitable organizations.
51-26 (f) This section does not apply to an incumbent local
51-27 exchange company having 100,000 or fewer total access lines in
51-28 service in this state.
51-29 (g) A company to which this section applies may petition the
51-30 commission for a waiver from any of the requirements imposed
51-31 herein. The commission shall grant the waiver if it is in the
51-32 public interest to do so, taking into account whether the need for
51-33 the restriction still exists in the market involved. The
51-34 commission may revoke any waiver granted if it is shown that
51-35 conditions under which the waiver was granted have materially
51-36 changed and it is in the public interest to do so.
51-37 Sec. 3.504. VIDEO CARRIAGE. (a) Subject to a programmer
51-38 operating as a common channel manager under the provisions of
51-39 Subsection (c) of this section, each incumbent local exchange
51-40 company that provides telecommunications services that are used in
51-41 the transmission of video programming directly to subscribers or
51-42 that enables customers to access video programming shall permit
51-43 local full-power, FCC-licensed broadcast stations, to the extent
51-44 capacity permits, access to these telecommunications services at
51-45 tariffed rates or, if those services are not provided under a
51-46 tariff, on similar terms and conditions as other video programmers
51-47 that provide similar programming. The incumbent local exchange
51-48 company shall transmit the signals delivered to it by the local
51-49 broadcast station without material degradation, and the quality
51-50 offered may not be less than that made available to other video
51-51 programmers.
51-52 (b) Each incumbent local exchange company that provides
51-53 telecommunications services that are used in the transmission of
51-54 video programming directly to subscribers or to enable customers to
51-55 access video programming:
51-56 (1) may not unreasonably discriminate among
51-57 programming providers with respect to transmission of their
51-58 signals;
51-59 (2) may not delete, change, or alter any copyright
51-60 identification transmitted as part of the programming signal; and
51-61 (3) shall, if it provides a "video dial tone service"
51-62 with a level one gateway, as that term is defined by the Federal
51-63 Communications Commission, make available to programmers a menu or
51-64 programming guide on which programmers may display a listing of the
51-65 stations required to be carried by the programmer under Subsection
51-66 (c) of this section.
51-67 (c) To the extent that federal law and Federal
51-68 Communications Commission rules and orders permit, a programmer
51-69 operating as a common channel manager that purchases for commercial
51-70 purposes 50 or more analog channels on a local exchange video dial
52-1 tone level one platform over which video programming is made
52-2 available to subscribers, shall make available to subscribers local
52-3 full-power, Federal Communications Commission-licensed television
52-4 stations, provided that retransmission is granted under Subsection
52-5 (d) of this section. A programmer subject to this section shall be
52-6 required to make available up to six television stations, except
52-7 that in markets that contain a county having a population of more
52-8 than one million, the programmer shall be required to make
52-9 available up to nine full-power, Federal Communications
52-10 Commission-licensed local broadcast stations. The programmer shall
52-11 make the selection of the broadcast channels to be carried under
52-12 this section.
52-13 (d) A Federal Communications Commission-licensed television
52-14 station seeking carriage under Subsection (c) of this section shall
52-15 grant retransmission consent to the programmer and to the incumbent
52-16 local exchange company. However, nothing in this Act requires a
52-17 programmer or incumbent local exchange company to provide monetary
52-18 payment or other valuable consideration in exchange for that
52-19 carriage.
52-20 (e) This section does not apply to an incumbent local
52-21 exchange company having 100,000 or fewer total access lines in
52-22 service in this state or to a programmer on the video dial tone
52-23 platform of that incumbent local exchange company.
52-24 (f) A company to which this section applies may petition the
52-25 commission for a waiver from any of the requirements imposed
52-26 herein. The commission shall grant the waiver if it is in the
52-27 public interest to do so, taking into account whether the need for
52-28 the restriction still exists in the market involved. The
52-29 commission may revoke any waiver granted if it is shown that
52-30 conditions under which the waiver was granted have materially
52-31 changed and it is in the public interest to do so.
52-32 (g) Except as otherwise specifically provided by this Act,
52-33 the commission's jurisdiction over affiliates of incumbent local
52-34 exchange companies that are video programmers is limited to the
52-35 requirements of this section and does not extend to subjects not
52-36 specifically provided herein.
52-37 (h) This section expires August 31, 1999.
52-38 Sec. 3.505. AUDIO CARRIAGE. (a) To the extent that federal
52-39 law and Federal Communications Commission rules and orders permit,
52-40 and consistent with technical specifications, a programmer
52-41 operating as a common channel manager that makes available for
52-42 commercial purposes to subscribers 12 or more channels of audio
52-43 programming similar to broadcasts of Federal Communications
52-44 Commission-licensed radio stations on an incumbent local exchange
52-45 company's level one video dial tone platform shall make available
52-46 to subscribers local Federal Communications Commission-licensed
52-47 radio stations, provided that retransmission is granted under
52-48 Subsection (b) of this section. A programmer subject to this
52-49 subsection may not be required to make available more than
52-50 one-third of its analog audio channels to radio stations. The
52-51 programmer shall make the selection of the radio stations to be
52-52 carried under this section.
52-53 (b) A local Federal Communications Commission-licensed radio
52-54 station seeking carriage under Subsection (a) of this section shall
52-55 grant retransmission consent to the programmer and the incumbent
52-56 local exchange company. However, nothing in this Act requires a
52-57 programmer or incumbent local exchange company to provide monetary
52-58 payment or other valuable consideration in exchange for that
52-59 carriage.
52-60 (c) This section does not apply to an incumbent local
52-61 exchange company having 100,000 or fewer total access lines in
52-62 service in this state or to a programmer on the video dial tone
52-63 platform of that incumbent local exchange company.
52-64 (d) A company to which this section applies may petition the
52-65 commission for a waiver from any of the requirements imposed
52-66 herein. The commission shall grant the waiver if it is in the
52-67 public interest to do so, taking into account whether the need for
52-68 the restriction still exists in the market involved. The
52-69 commission may revoke any waiver granted if it is shown that
52-70 conditions under which the waiver was granted have materially
53-1 changed and it is in the public interest to do so.
53-2 (e) Except as otherwise specifically provided by this Act,
53-3 the commission's jurisdiction over affiliates of incumbent local
53-4 exchange companies that are video programmers is limited to the
53-5 requirements of this section and does not extend to subjects not
53-6 specifically provided herein.
53-7 (f) This section expires August 31, 1999.
53-8 Sec. 3.506. APPLICATION OF SUBTITLE. This subtitle does not
53-9 apply to a cable company.
53-10 SUBTITLE L. ELECTRONIC PUBLISHING
53-11 Sec. 3.551. DEFINITIONS. In this subtitle:
53-12 (1) "Affiliate" means any entity that, directly or
53-13 indirectly, owns or controls, is owned or controlled by, or is
53-14 under common ownership or control with an incumbent local exchange
53-15 company. The term does not include a separated affiliate.
53-16 (2) "Basic telephone service" means any wireline
53-17 telephone exchange service, or wireline telephone exchange
53-18 facility, provided by an incumbent local exchange company in a
53-19 telephone exchange area, other than a competitive wireline
53-20 telephone exchange service provided in a telephone exchange area
53-21 where another entity provides a wireline telephone exchange service
53-22 that was provided on January 1, 1984, and a commercial mobile
53-23 service provided by an affiliate that is required by the Federal
53-24 Communications Commission to be a corporate entity separate from
53-25 the local exchange company.
53-26 (3) "Basic telephone service information" means
53-27 network and customer information of an incumbent local exchange
53-28 company and other information acquired by an incumbent local
53-29 exchange company as a result of its engaging in the provision of
53-30 basic telephone service.
53-31 (4) "Control" has the meaning provided by 17 C.F.R.
53-32 Section 240.12b--2, the regulations promulgated by the Securities
53-33 and Exchange Commission under the Securities Exchange Act of 1934
53-34 (15 U.S.C. Section 78a et seq.) or any successor provision to that
53-35 section.
53-36 (5)(A) "Electronic publishing" means the
53-37 dissemination, provision, publication, or sale to an unaffiliated
53-38 entity or person, using an incumbent local exchange company's basic
53-39 telephone service, of:
53-40 (i) news;
53-41 (ii) entertainment (other than interactive
53-42 games);
53-43 (iii) business, financial, legal,
53-44 consumer, or credit material;
53-45 (iv) editorials;
53-46 (v) columns;
53-47 (vi) sports reporting;
53-48 (vii) features;
53-49 (viii) advertising;
53-50 (ix) photos or images;
53-51 (x) archival or research material;
53-52 (xi) legal notices or public records;
53-53 (xii) scientific, educational,
53-54 instructional, technical, professional, trade, or other literary
53-55 materials; or
53-56 (xiii) other like or similar information.
53-57 (B) "Electronic publishing" does not include the
53-58 following network services:
53-59 (i) information access, as that term is
53-60 defined by the modification of final judgment;
53-61 (ii) the transmission of information as a
53-62 common carrier;
53-63 (iii) the transmission of information as
53-64 part of a gateway to an information service that does not involve
53-65 the generation or alteration of the content of information,
53-66 including data transmission, address translation, protocol
53-67 conversion, billing management, introductory information content,
53-68 and navigational systems that enable users to access electronic
53-69 publishing services, that do not affect the presentation of those
53-70 electronic publishing services to users;
54-1 (iv) voice storage and retrieval services,
54-2 including voice messaging and electronic mail services;
54-3 (v) level 2 gateway services as those
54-4 services are defined by the Federal Communications Commission's
54-5 Second Report and Order, Recommendation to Congress and Second
54-6 Further Notice of Proposed Rulemaking in CC Docket No. 87-266
54-7 dated August 14, 1992;
54-8 (vi) data processing services that do not
54-9 involve the generation or alteration of the content of information;
54-10 (vii) transaction processing systems that
54-11 do not involve the generation or alteration of the content of
54-12 information;
54-13 (viii) electronic billing or advertising
54-14 of an incumbent local exchange company's regulated
54-15 telecommunications services;
54-16 (ix) language translation;
54-17 (x) conversion of data from one format to
54-18 another;
54-19 (xi) the provision of information
54-20 necessary for the management, control, or operation of a telephone
54-21 company telecommunications system;
54-22 (xii) the provision of directory
54-23 assistance that provides names, addresses, and telephone numbers
54-24 and does not include advertising;
54-25 (xiii) caller identification services;
54-26 (xiv) repair and provisioning databases
54-27 for telephone company operations;
54-28 (xv) credit card and billing validation
54-29 for telephone company operations;
54-30 (xvi) 911-E and other emergency assistance
54-31 databases;
54-32 (xvii) any other network service of a type
54-33 that is like or similar to these network services and that does not
54-34 involve the generation or alteration of the content of information;
54-35 (xviii) any upgrades to these network
54-36 services that do not involve the generation or alteration of the
54-37 content of information;
54-38 (xix) full motion video entertainment on
54-39 demand; and
54-40 (xx) video programming as defined by
54-41 Section 602, Communications Act of 1934 (47 U.S.C. Section 522).
54-42 (6) "Electronic publishing joint venture" means a
54-43 joint venture owned by an incumbent local exchange company or
54-44 affiliate that engages in the provision of electronic publishing
54-45 that is disseminated by means of that incumbent local exchange
54-46 company's or any of its affiliates' basic telephone service.
54-47 (7) "Entity" means any organization, and includes a
54-48 corporation, partnership, sole proprietorship, association, and
54-49 joint venture.
54-50 (8) "Inbound telemarketing" means the marketing of
54-51 property, goods, or services by telephone to a customer or
54-52 potential customer who initiated the call.
54-53 (9) "Own," with respect to an entity, means to have a
54-54 direct or indirect equity interest, or the equivalent, of more than
54-55 10 percent of an entity, or the right to more than 10 percent of
54-56 the gross revenues of an entity under a revenue sharing or royalty
54-57 agreement.
54-58 (10) "Separated affiliate" means a corporation under
54-59 common ownership or control with an incumbent local exchange
54-60 company that does not own or control an incumbent local exchange
54-61 company and is not owned or controlled by an incumbent local
54-62 exchange company and that engages in the provision of electronic
54-63 publishing that is disseminated by means of the incumbent local
54-64 exchange company's or any of its affiliates' basic telephone
54-65 service.
54-66 (11) "Incumbent local exchange company" means, for
54-67 purposes of this subtitle only, a company serving more than five
54-68 million access lines in this state and subject to the modification
54-69 of final judgment or any entity owned or controlled by that
54-70 corporation, or any successor or assign of that corporation. The
55-1 term does not include an electronic publishing joint venture owned
55-2 by that corporation or entity and permitted by Section 3.559.
55-3 Sec. 3.552. Electronic Publishing. (a) An incumbent local
55-4 exchange company or an affiliate may not engage in the provision of
55-5 electronic publishing that is disseminated by means of the
55-6 incumbent local exchange company's or any of its affiliates' basic
55-7 telephone service.
55-8 (b) Nothing in this subtitle prohibits a separated affiliate
55-9 or electronic publishing joint venture from engaging in the
55-10 provision of electronic publishing or any other lawful service in
55-11 any area.
55-12 (c) Nothing in this subtitle prohibits an incumbent local
55-13 exchange company or affiliate from engaging in the provision of any
55-14 lawful service other than electronic publishing in any area or from
55-15 engaging in the provision of electronic publishing that is not
55-16 disseminated by means of the incumbent local exchange company's or
55-17 any of its affiliates' basic telephone service.
55-18 Sec. 3.553. SEPARATED AFFILIATE OR ELECTRONIC PUBLISHING
55-19 JOINT VENTURE REQUIREMENTS. A separated affiliate or electronic
55-20 publishing joint venture:
55-21 (1) shall maintain books, records, and accounts that
55-22 are separate from those of the incumbent local exchange company and
55-23 from any affiliate and that record in accordance with generally
55-24 accepted accounting principles all transactions, whether direct or
55-25 indirect, with the incumbent local exchange company;
55-26 (2) may not incur debt in a manner that would permit a
55-27 creditor on default to have recourse to the assets of the incumbent
55-28 local exchange company;
55-29 (3) shall prepare financial statements that are not
55-30 consolidated with those of the incumbent local exchange company or
55-31 an affiliate, provided that consolidated statements may also be
55-32 prepared;
55-33 (4) shall file with the commission annual reports in a
55-34 form substantially equivalent to the Form 10-K required by
55-35 regulations of the Securities and Exchange Commission;
55-36 (5) after September 1, 1996, may not hire:
55-37 (A) as corporate officers, sales and marketing
55-38 management personnel whose responsibilities at the separated
55-39 affiliate or electronic publishing joint venture will include the
55-40 geographic areas where the incumbent local exchange company
55-41 provides basic telephone service;
55-42 (B) network operations personnel whose
55-43 responsibilities at the separated affiliate or electronic
55-44 publishing joint venture would require dealing directly with the
55-45 incumbent local exchange company; or
55-46 (C) any person who was employed by the incumbent
55-47 local exchange company during the year preceding the date of hire,
55-48 except that the requirements of this paragraph do not apply to
55-49 persons subject to a collective bargaining agreement that gives
55-50 those persons rights to be employed by a separated affiliate or
55-51 electronic publishing joint venture of the local exchange company;
55-52 (6) may not provide any wireline telephone exchange
55-53 service in any telephone exchange area in which an incumbent local
55-54 exchange company with which it is under common ownership or control
55-55 provides basic telephone exchange service except on a resale basis;
55-56 (7) may not use the name, trademarks, or service marks
55-57 of an existing incumbent local exchange company except for names,
55-58 trademarks, or service marks that were used in common with the
55-59 entity that owns or controls the incumbent local exchange company;
55-60 (8) shall have performed annually by March 31, or any
55-61 other date prescribed by the commission, a compliance review:
55-62 (A) that is conducted by an independent entity
55-63 that is subject to professional, legal, and ethical obligations for
55-64 the purpose of determining compliance during the preceding calendar
55-65 year with any provision of this subtitle that imposes a requirement
55-66 on the separated affiliate or electronic publishing joint venture;
55-67 and
55-68 (B) the results of which are maintained by the
55-69 separated affiliate for a period of five years subject to review by
55-70 any lawful authority; and
56-1 (9) shall within 90 days after the date of receiving a
56-2 review described by Subdivision (8) of this subsection, file a
56-3 report of any exceptions and corrective action with the commission
56-4 and allow any person to inspect and copy the report subject to
56-5 reasonable safeguards to protect any proprietary information
56-6 contained in the report from being used for purposes other than to
56-7 enforce or pursue remedies under this subtitle.
56-8 Sec. 3.554. INCUMBENT LOCAL EXCHANGE COMPANY REQUIREMENTS.
56-9 (a) An incumbent local exchange company under common ownership or
56-10 control with a separated affiliate or electronic publishing joint
56-11 venture:
56-12 (1) may not provide a separated affiliate any
56-13 facilities, services, or basic telephone service information unless
56-14 it makes those facilities, services, or information available to
56-15 unaffiliated entities on request and on the same terms and
56-16 conditions;
56-17 (2) shall carry out transactions with a separated
56-18 affiliate in a manner equivalent to the manner that unrelated
56-19 parties would carry out independent transactions and not based on
56-20 the affiliation;
56-21 (3) shall carry out transactions with a separated
56-22 affiliate, that involve the transfer of personnel, assets, or
56-23 anything of value, in accordance with written contracts or tariffs
56-24 that are filed with the commission and made publicly available;
56-25 (4) shall carry out transactions with a separated
56-26 affiliate in a manner that is auditable in accordance with
56-27 generally accepted auditing standards;
56-28 (5) shall value any assets that are transferred to a
56-29 separated affiliate at the greater of net book cost or fair market
56-30 value;
56-31 (6) shall value any assets that are transferred to the
56-32 incumbent local exchange company by its separated affiliate at the
56-33 lesser of net book cost or fair market value;
56-34 (7) may not, except for instances where Federal
56-35 Communications Commission or commission rules or regulations permit
56-36 in-arrears payment for tariffed telecommunications services or the
56-37 investment by an affiliate of dividends or profits derived from an
56-38 incumbent local exchange company, provide debt or equity financing
56-39 directly or indirectly to a separated affiliate;
56-40 (8) shall comply fully with all applicable Federal
56-41 Communications Commission and commission cost allocation and other
56-42 accounting rules;
56-43 (9) shall have performed annually by March 31, or any
56-44 other date prescribed by the commission, a compliance review:
56-45 (A) that is conducted by an independent entity
56-46 that is subject to professional, legal, and ethical obligations for
56-47 the purpose of determining compliance during the preceding calendar
56-48 year with any provision of this subtitle that imposes a requirement
56-49 on the incumbent local exchange company; and
56-50 (B) the results of which are maintained by the
56-51 incumbent local exchange company for a period of five years subject
56-52 to review by any lawful authority; and
56-53 (10) shall within 90 days after the date of receiving
56-54 a review described by Subdivision (9) of this subsection, file a
56-55 report of any exceptions and corrective action with the commission
56-56 and allow any person to inspect and copy the report subject to
56-57 reasonable safeguards to protect any proprietary information
56-58 contained in the report from being used for purposes other than to
56-59 enforce or pursue remedies under this subtitle.
56-60 (b) If the incumbent local exchange company provides
56-61 facilities or services for telecommunication, transmission, billing
56-62 and collection, or expanded interconnection to any electronic
56-63 publisher, including a separated affiliate, for use with or in
56-64 connection with the provision of electronic publishing that is
56-65 disseminated by means of the incumbent local exchange company's or
56-66 any of its affiliates' basic telephone service, the incumbent local
56-67 exchange company shall provide to all other electronic publishers
56-68 the same type of facilities and services on request, on the same
56-69 terms and conditions or as required by the Federal Communications
56-70 Commission or the commission, and unbundled and individually
57-1 tariffed to the smallest extent that is technically feasible and
57-2 economically reasonable to provide.
57-3 (c) The incumbent local exchange company shall provide
57-4 network access and interconnections for basic telephone service to
57-5 electronic publishers at any technically feasible and economically
57-6 reasonable point within the incumbent local exchange company's
57-7 network and at just and reasonable rates that are tariffed, so long
57-8 as rates for those services are subject to regulation, and that are
57-9 not higher on a per unit basis than those charged for those
57-10 services to any other electronic publisher or any separated
57-11 affiliate engaged in electronic publishing.
57-12 (d) If prices for network access and interconnection for
57-13 basic telephone service are no longer subject to regulation, the
57-14 incumbent local exchange company shall provide electronic
57-15 publishers those services on the same terms and conditions as a
57-16 separated affiliate receives those services.
57-17 (e) If any basic telephone service used by electronic
57-18 publishers ceases to require a tariff, the incumbent local exchange
57-19 company shall provide electronic publishers with that service on
57-20 the same terms and conditions as a separated affiliate receives
57-21 that service.
57-22 (f) The incumbent local exchange company shall provide
57-23 reasonable advance notification at the same time and on the same
57-24 terms to all affected electronic publishers of information if the
57-25 information is within any one or more of the following categories:
57-26 (1) information necessary for the transmission or
57-27 routing of information by an interconnected electronic publisher;
57-28 (2) information necessary to ensure the
57-29 interoperability of an electronic publisher's and the incumbent
57-30 local exchange company's networks; or
57-31 (3) information that relates to changes in basic
57-32 telephone service network design and technical standards that may
57-33 affect the provision of electronic publishing.
57-34 (g) The incumbent local exchange company may not directly or
57-35 indirectly provide anything of monetary value to a separated
57-36 affiliate unless in exchange for consideration at least equal to
57-37 the greater of its net book cost or fair market value, except the
57-38 investment by an affiliate of dividends or profits derived from an
57-39 incumbent local exchange company.
57-40 (h) The incumbent local exchange company may not:
57-41 (1) discriminate in the presentation or provision of
57-42 any gateway for electronic publishing services or any electronic
57-43 directory of information services that is provided over the
57-44 incumbent local exchange company's basic telephone service;
57-45 (2) have any directors, officers, or employees in
57-46 common with a separated affiliate;
57-47 (3) own any property in common with a separated
57-48 affiliate;
57-49 (4) perform hiring or training of personnel on behalf
57-50 of a separated affiliate;
57-51 (5) perform the purchasing, installation, or
57-52 maintenance of equipment on behalf of a separated affiliate, except
57-53 for telephone service that the company provides under tariff or
57-54 contract subject to the provisions of this subtitle; or
57-55 (6) perform research and development on behalf of a
57-56 separated affiliate.
57-57 Sec. 3.555. CUSTOMER PROPRIETARY NETWORK INFORMATION.
57-58 Consistent with Section 232, Communications Act of 1934, as
57-59 amended, and Section 3.501 of this Act, an incumbent local exchange
57-60 company or an affiliate may not provide to an electronic publisher,
57-61 including a separated affiliate or electronic publishing joint
57-62 venture, customer proprietary network information for use with or
57-63 in connection with the provision of electronic publishing that is
57-64 disseminated by means of the incumbent local exchange company's or
57-65 any of its affiliates' basic telephone service that is not made
57-66 available by the incumbent local exchange company or affiliate to
57-67 all electronic publishers on the same terms and conditions.
57-68 Sec. 3.556. COMPLIANCE WITH SAFEGUARDS. An incumbent local
57-69 exchange company or affiliate, including a separated affiliate, may
57-70 not act in concert with another incumbent local exchange company or
58-1 any other entity to knowingly and wilfully violate or evade the
58-2 requirements of this subtitle.
58-3 Sec. 3.557. INCUMBENT LOCAL EXCHANGE COMPANY DIVIDENDS.
58-4 Nothing in this subtitle prohibits an affiliate from investing
58-5 dividends derived from an incumbent local exchange company in its
58-6 separated affiliate, and Sections 3.560 and 3.561 of this Act do
58-7 not apply to that investment.
58-8 Sec. 3.558. JOINT MARKETING. Except as provided by Section
58-9 3.559 of this Act, an incumbent local exchange company may not
58-10 carry out:
58-11 (1) any promotion, marketing, sales, or advertising
58-12 for or in conjunction with a separated affiliate; or
58-13 (2) any promotion, marketing, sales, or advertising
58-14 for or in conjunction with an affiliate that is related to the
58-15 provision of electronic publishing.
58-16 Sec. 3.559. PERMISSIBLE JOINT ACTIVITIES. (a) An incumbent
58-17 local exchange company may provide inbound telemarketing or
58-18 referral services related to the provision of electronic publishing
58-19 for a separated affiliate, electronic publishing joint venture,
58-20 affiliate, or unaffiliated electronic publisher, provided that if
58-21 those services are provided to a separated affiliate, electronic
58-22 publishing joint venture, or affiliate, those services shall be
58-23 made available to all electronic publishers on request, on
58-24 nondiscriminatory terms, at compensatory prices, and subject to
58-25 regulations of the commission to ensure that the incumbent local
58-26 exchange company's method of providing telemarketing or referral
58-27 and its price structure do not competitively disadvantage any
58-28 electronic publishers regardless of size, including those that do
58-29 not use the incumbent local exchange company's telemarketing
58-30 services.
58-31 (b) An incumbent local exchange company may engage in
58-32 nondiscriminatory teaming or business arrangements to engage in
58-33 electronic publishing with any separated affiliate or with any
58-34 other electronic publisher, provided that the incumbent local
58-35 exchange company provides only facilities, services, and basic
58-36 telephone service information as authorized by this subtitle, and
58-37 provided that the incumbent local exchange company does not own
58-38 that teaming or business arrangement.
58-39 (c) An incumbent local exchange company or affiliate may
58-40 participate on a nonexclusive basis in electronic publishing joint
58-41 ventures with an entity that is not an incumbent local exchange
58-42 company, affiliate, or separated affiliate to provide electronic
58-43 publishing services, provided that the incumbent local exchange
58-44 company or affiliate has not more than a 50 percent direct or
58-45 indirect equity interest, or the equivalent, or the right to more
58-46 than 50 percent of the gross revenues under a revenue sharing or
58-47 royalty agreement in any electronic publishing joint venture.
58-48 Officers and employees of an incumbent local exchange company or
58-49 affiliate participating in an electronic publishing joint venture
58-50 may not have more than 50 percent of the voting control over the
58-51 electronic publishing joint venture. In the case of joint ventures
58-52 with a small, local electronic publisher, the commission for good
58-53 cause shown may authorize the incumbent local exchange company or
58-54 affiliate to have a larger equity interest, revenue share, or
58-55 voting control, but not to exceed 80 percent. An incumbent local
58-56 exchange company participating in an electronic publishing joint
58-57 venture may provide promotion, marketing, sales, or advertising
58-58 personnel and services to the joint venture.
58-59 Sec. 3.560. TRANSACTIONS RELATED TO THE PROVISION OF
58-60 ELECTRONIC PUBLISHING BETWEEN AN INCUMBENT LOCAL EXCHANGE COMPANY
58-61 AND ANY AFFILIATE. (a) Any provision of facilities, services, or
58-62 basic telephone service information, or any transfer of assets,
58-63 personnel, or anything of commercial or competitive value, from an
58-64 incumbent local exchange company to an affiliate related to the
58-65 provision of electronic publishing shall be:
58-66 (1) recorded in the books and records of each entity;
58-67 (2) auditable in accordance with generally accepted
58-68 auditing standards; and
58-69 (3) done in accordance with written contracts or
58-70 tariffs filed with the commission.
59-1 (b) A transfer of assets directly related to the provision
59-2 of electronic publishing from an incumbent local exchange company
59-3 to an affiliate shall be valued at the greater of net book cost or
59-4 fair market value. A transfer of assets related to the provision
59-5 of electronic publishing from an affiliate to the incumbent local
59-6 exchange company shall be valued at the lesser of net book cost or
59-7 fair market value.
59-8 (c) An incumbent local exchange company may not provide
59-9 directly or indirectly to a separated affiliate any facilities,
59-10 services, or basic telephone service information related to the
59-11 provision of electronic publishing that are not made available to
59-12 unaffiliated companies on the same terms and conditions.
59-13 Sec. 3.561. TRANSACTIONS RELATED TO THE PROVISION OF
59-14 ELECTRONIC PUBLISHING BETWEEN AN AFFILIATE AND A SEPARATED
59-15 AFFILIATE. (a) Any facilities, services, or basic telephone
59-16 service information provided, or any assets, personnel, or anything
59-17 of commercial or competitive value transferred, from an incumbent
59-18 local exchange company to an affiliate as described by Section
59-19 3.560 of this Act and then provided or transferred to a separated
59-20 affiliate shall be:
59-21 (1) recorded in the books and records of each entity;
59-22 (2) auditable in accordance with generally accepted
59-23 auditing standards; and
59-24 (3) done in accordance with written contracts or
59-25 tariffs filed with the commission.
59-26 (b) A transfer of assets directly related to the provision
59-27 of electronic publishing from an incumbent local exchange company
59-28 to an affiliate as described by Section 3.560 of this Act and then
59-29 transferred to a separated affiliate shall be valued at the greater
59-30 of net book cost or fair market value. A transfer of assets
59-31 related to the provision of electronic publishing from a separated
59-32 affiliate to an affiliate and then transferred to the incumbent
59-33 local exchange company as described by Section 3.560 of this Act
59-34 shall be valued at the lesser of net book cost or fair market
59-35 value.
59-36 (c) An affiliate may not provide directly or indirectly to a
59-37 separated affiliate any facilities, services, or basic telephone
59-38 service information related to the provision of electronic
59-39 publishing that are not made available to unaffiliated companies on
59-40 the same terms and conditions.
59-41 Sec. 3.562. OTHER ELECTRONIC PUBLISHERS. (a) Except as
59-42 provided by Section 3.559(c) of this Act:
59-43 (1) an incumbent local exchange company may not have
59-44 any officers, employees, property, or facilities in common with an
59-45 entity whose principal business is publishing of which a part is
59-46 electronic publishing; and
59-47 (2) an officer or employee of an incumbent local
59-48 exchange company may not serve as a director of an entity whose
59-49 principal business is publishing of which a part is electronic
59-50 publishing.
59-51 (b) For the purposes of Subsection (a) of this section, an
59-52 incumbent local exchange company or an affiliate that owns an
59-53 electronic publishing joint venture may not be deemed to be engaged
59-54 in the electronic publishing business solely because of that
59-55 ownership.
59-56 (c) Except as provided by Section 3.559(c) of this Act, an
59-57 incumbent local exchange company may not carry out:
59-58 (1) any marketing or sales for an entity that engages
59-59 in electronic publishing; or
59-60 (2) any hiring of personnel, purchasing, or
59-61 production, for an entity that engages in electronic publishing.
59-62 (d) Except as provided by Section 3.559(c) of this Act, the
59-63 incumbent local exchange company may not provide any facilities,
59-64 services, or basic telephone service information to an entity that
59-65 engages in electronic publishing, for use with or in connection
59-66 with the provision of electronic publishing that is disseminated by
59-67 means of the incumbent local exchange company's or any of its
59-68 affiliates' basic telephone service, unless equivalent facilities,
59-69 services, or information are made available on equivalent terms and
59-70 conditions to all.
60-1 Sec. 3.563. PRIVATE RIGHT OF ACTION. (a) A person claiming
60-2 that an act or practice of an incumbent local exchange company,
60-3 affiliate, or separated affiliate constitutes a violation of this
60-4 subtitle may file a complaint with the commission or bring suit for
60-5 the recovery of damages, and the incumbent local exchange company,
60-6 affiliate, or separated affiliate shall be liable if the incumbent
60-7 local exchange company does, or causes to be done, any act, matter,
60-8 or thing in violation of this subtitle. The incumbent local
60-9 exchange company shall be liable to the person or persons injured
60-10 thereby for the full amount of damages sustained in consequence of
60-11 any violation of the provisions of this subtitle, together with a
60-12 reasonable counsel or attorney's fees to be fixed by the court in
60-13 every case of recovery, which attorney's fees shall be taxed and
60-14 collected as part of the costs of the case. Damages may not be
60-15 awarded for a violation that is discovered by a compliance review
60-16 as required by Section 3.553(8) or 3.554(a)(9) of this Act and
60-17 corrected within 90 days.
60-18 (b) In addition to the provisions of Subsection (a) of this
60-19 section, a person claiming that any act or practice of an incumbent
60-20 local exchange company, affiliate, or separated affiliate
60-21 constitutes a violation of this subtitle may make application to
60-22 the commission for an order to cease and desist that violation or
60-23 may make application in any state district court for an order
60-24 enjoining those acts or practices or for an order compelling
60-25 compliance with that requirement.
60-26 Sec. 3.564. ANTITRUST LAWS. Nothing in this subtitle may be
60-27 construed to modify, impair, or supersede the applicability of any
60-28 of the antitrust laws.
60-29 Sec. 3.565. TRANSITION. An electronic publishing service
60-30 being offered to the public by an incumbent local exchange company
60-31 or affiliate on the date of enactment of this subtitle shall have
60-32 one year from that date of enactment to comply with the
60-33 requirements of this subtitle.
60-34 Sec. 3.566. SUNSET. The provisions of this subtitle do not
60-35 apply to conduct occurring after June 30, 2001.
60-36 SUBTITLE M. INFORMATION TECHNOLOGY SERVICES
60-37 Sec. 3.581. DEFINITIONS. In this subtitle:
60-38 (1) "Management consulting" means the development,
60-39 refinement, and coordination of strategies to support a client's
60-40 business direction, positively impact business performance, and
60-41 improve operating results, in areas such as business planning,
60-42 operations, information technology, marketing, finance, and human
60-43 resources.
60-44 (2) "Systems development" means the creation,
60-45 migration, or improvement of computer systems, including hardware
60-46 and software, to meet specific business needs or to take advantage
60-47 of changes in information technology.
60-48 (3) "Systems integration" means the acquisition,
60-49 installation, and integration of hardware, software,
60-50 communications, and related support components and services.
60-51 (4) "Systems management" means the ongoing management
60-52 and operation of information technology components and may range
60-53 from specialized systems applications to an enterprise's entire
60-54 information technology function, including facilities and
60-55 personnel.
60-56 (5) "Process management" means the ongoing
60-57 responsibility for direction and operation of one or more business
60-58 processes within an enterprise in areas such as administration,
60-59 finance, human resources, operations, and sales and marketing.
60-60 Sec. 3.582. PROVISION OF INFORMATION TECHNOLOGY SERVICES
60-61 THROUGH SEPARATE AFFILIATE. (a) Except for services and products
60-62 provided on September 1, 1995, a local exchange company serving
60-63 more than five million access lines in this state may not provide
60-64 the following customized business products or services to customers
60-65 with 50 or more access lines in this state:
60-66 (1) management consulting, except for consulting
60-67 relating exclusively to telecommunications;
60-68 (2) information technology process or systems
60-69 development;
60-70 (3) information technology process or systems
61-1 integration; or
61-2 (4) information technology process or systems
61-3 management.
61-4 (b) This section does not prohibit an affiliate of the local
61-5 exchange company from providing any of the products or services
61-6 described by Subsection (a) of this section in accordance with
61-7 Sections 3.583 and 3.584 of this Act or prohibit a local exchange
61-8 company from providing those products or services to itself. The
61-9 local exchange company may also provide those services to an
61-10 affiliate if neither the local exchange company nor any of its
61-11 affiliates are engaged in providing those products or services to
61-12 unaffiliated third parties.
61-13 (c) The prohibitions prescribed by Subsection (b) of this
61-14 section do not prohibit a local exchange company from:
61-15 (1) providing mass market and consumer market products
61-16 and services directly to customers with fewer than 50 access lines
61-17 in this state that use or rely on the use of information services,
61-18 information systems, or information technology or processes; or
61-19 (2) selling or leasing billing and collection
61-20 services, local area networks, wide area networks, or any other
61-21 telecommunications service.
61-22 Sec. 3.583. SEPARATE AFFILIATE REQUIREMENTS. (a) An
61-23 affiliate of the local exchange company providing a service
61-24 described by Section 3.582(a) of this Act shall:
61-25 (1) operate independently from the local exchange
61-26 company in the provision of its services;
61-27 (2) maintain its own books of accounts; and
61-28 (3) have separate officers, directors, and employees
61-29 who may not also serve as officers, directors, or employees of the
61-30 local exchange company, except that an officer of a corporate
61-31 parent or holding company may serve as a director of the local
61-32 exchange company and as a director of any other of the parent's
61-33 subsidiaries that are in existence on September 1, 1995, or of any
61-34 new subsidiary or affiliate established after September 1, 1995,
61-35 that does not engage in the provision of a service described by
61-36 Section 3.582(a) of this Act.
61-37 (b) All transactions between the local exchange company and
61-38 the affiliate providing a service described by Section 3.582(a) of
61-39 this Act shall be conducted on an "arms length" basis with respect
61-40 to the acquisition of that service from the affiliate.
61-41 (c) The local exchange company shall maintain and keep
61-42 available for inspection by the commission copies of all contracts
61-43 or arrangements between the company and an affiliate relating to
61-44 the local exchange company's acquisition of a service described by
61-45 Section 3.582(a) of this Act from the affiliate. The local
61-46 exchange company's records must show each cash or noncash
61-47 transaction with the affiliate for that service, including the
61-48 payments for goods and services or any property right.
61-49 (d) The local exchange company and an affiliate engaged in a
61-50 service described by Section 3.582(a) of this Act may not jointly
61-51 own or share in the use of any property.
61-52 Sec. 3.584. ADDITIONAL COMPETITIVE SAFEGUARDS. (a) A local
61-53 exchange company may not discriminate between an affiliate
61-54 providing a service described by Section 3.582(a) of this Act and
61-55 any other person in the provision or procurement of goods,
61-56 services, facilities, or information or in the establishment of
61-57 standards.
61-58 (b) A local exchange company or its affiliate may not use
61-59 revenues from local exchange telephone service or from
61-60 local-exchange-company-provided access services to subsidize the
61-61 provision of a service described by Section 3.582(a) of this Act.
61-62 (c) This section does not prohibit the investment by an
61-63 affiliate of dividends or profits derived from a local exchange
61-64 company or the development of a product or service described by
61-65 Section 3.582(a) of this Act by an affiliate of a local exchange
61-66 company for the local exchange company if the investment or
61-67 development complies with Section 3.583 of this Act.
61-68 SUBTITLE N. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM;
61-69 UNIVERSAL SERVICE FUND
61-70 Sec. 3.601 <3.351>. TEL-ASSISTANCE SERVICE. The commission
62-1 shall adopt and enforce rules requiring each local exchange company
62-2 to establish a telecommunications service assistance program to be
62-3 called "tel-assistance service." This service is established to
62-4 provide eligible consumers with a reduction in costs of
62-5 telecommunications services.
62-6 Sec. 3.602 <3.352>. ELIGIBILITY FOR TEL-ASSISTANCE SERVICE;
62-7 BURDEN OF PROOF; BILLING. (a) To be eligible for tel-assistance
62-8 service, an applicant must be a head of household<, 65 years of age
62-9 or older,> and disabled as determined by the Texas Department of
62-10 Human Services and must have a household income at or below the
62-11 poverty level as determined by the United States Office of
62-12 Management and Budget and reported annually in the Federal
62-13 Register. The department, in accordance with this subtitle and
62-14 rules adopted by the department for the program, shall develop
62-15 procedures for taking applications for certification of eligibility
62-16 and for determining program eligibility. The burden of proving
62-17 eligibility for tel-assistance service is on the consumer applying
62-18 for the service.
62-19 (b) Each six months the department shall provide a list or
62-20 lists of the names, addresses, and, if applicable, telephone
62-21 numbers of all persons eligible for tel-assistance service to each
62-22 local exchange company. The local exchange company shall determine
62-23 from the list those consumers to whom the company provides service
62-24 and within 60 days after receiving the list shall begin
62-25 tel-assistance billing for eligible consumers. This billing shall
62-26 continue until the local exchange company is notified by the
62-27 department that a consumer is no longer eligible to receive
62-28 tel-assistance service.
62-29 Sec. 3.603 <3.353>. TEL-ASSISTANCE SERVICES; BILLING; RATES.
62-30 (a) The local exchange company shall provide tel-assistance
62-31 service to all eligible consumers within its certificated area in
62-32 the form of a reduction on each eligible consumer's telephone bill.
62-33 The reduction shall apply only to the following types of service:
62-34 (1) residential flat rate basic local exchange
62-35 service;
62-36 (2) residential local exchange access service; and
62-37 (3) residential local area calling usage, except that
62-38 the reduction for local area calling usage shall be limited to an
62-39 amount such that together with the reduction for local exchange
62-40 access service the rate does not exceed the comparable reduced flat
62-41 rate for the service.
62-42 (b) No other local voice service may be provided to the
62-43 dwelling place of a tel-assistance consumer, nor may single or
62-44 party line optional extended area service, optional extended area
62-45 calling service, foreign zone, or foreign exchange service be
62-46 provided to a tel-assistance consumer. Nothing in this section
62-47 shall prohibit a person otherwise eligible to receive
62-48 tel-assistance service from obtaining and using telecommunications
62-49 equipment designed to aid such person in utilizing
62-50 telecommunications services.
62-51 (c) The reduction allowed by the telecommunications service
62-52 assistance program shall be 65 percent of the applicable tariff
62-53 rate for the service provided.
62-54 Sec. 3.604 <3.354>. STATEWIDE TELECOMMUNICATIONS RELAY
62-55 ACCESS SERVICE FOR HEARING-IMPAIRED AND SPEECH-IMPAIRED. (a) The
62-56 commission shall adopt and enforce rules establishing a statewide
62-57 telecommunications relay access service for the hearing-impaired
62-58 and speech-impaired using specialized communications equipment such
62-59 as telecommunications devices for the deaf (TDD) and operator
62-60 translations. The purpose of this section is to provide for the
62-61 uniform and coordinated provision of the service on a statewide
62-62 basis by one telecommunications carrier.
62-63 (b) Commission rules relating to a statewide
62-64 telecommunications relay access service for the hearing-impaired
62-65 and speech-impaired shall provide that:
62-66 (1) the service shall provide the hearing-impaired and
62-67 speech-impaired with access to the telecommunications network in
62-68 Texas equal to that provided other customers;
62-69 (2) the service shall consist of the following:
62-70 (A) switching and transmission of the call;
63-1 (B) verbal and print translations by either live
63-2 or automated means between hearing-impaired and speech-impaired
63-3 individuals who use TDD equipment or similar automated devices and
63-4 others who do not have such equipment; and
63-5 (C) other service enhancements proposed by the
63-6 carrier and approved by the commission;
63-7 (3) the calling or called party shall bear no charge
63-8 for calls originating and terminating within the same local calling
63-9 area;
63-10 (4) the calling or called party shall bear one-half of
63-11 the total charges established by contract with the commission for
63-12 intrastate interexchange calls;
63-13 (5) as specified in its contract with the commission,
63-14 charges related to providing the service which are not borne by a
63-15 calling or called party pursuant to Subdivisions (3) and (4) of
63-16 this subsection shall be funded from the universal service fund;
63-17 (6) local exchange companies may not impose
63-18 interexchange carrier access charges on calls which make use of
63-19 this service and which originate and terminate in the same local
63-20 calling area;
63-21 (7) local exchange companies shall provide billing and
63-22 collection services in support of this service at just and
63-23 reasonable rates; and
63-24 (8) if the commission orders a local exchange company
63-25 to provide for a trial telecommunications relay access service for
63-26 the hearing-impaired or speech-impaired, all pertinent costs and
63-27 design information from this trial shall be available to the
63-28 general public.
63-29 (c) The commission shall allow telecommunications utilities
63-30 to recover their universal service fund assessment related to this
63-31 service through a surcharge which the utility may add to its
63-32 customers' bills. The commission shall specify how the amount of
63-33 the surcharge is to be determined by each utility. If a utility
63-34 chooses to impose the surcharge, the bill shall list the surcharge
63-35 as the "universal service fund surcharge."
63-36 (d) The commission shall set the appropriate assessments for
63-37 the funding of the service by all telecommunications utilities. In
63-38 setting the appropriate assessments, the commission shall consider
63-39 the aggregate calling pattern of the users of the service and all
63-40 other factors found appropriate and in the public interest by the
63-41 commission. The commission shall review the assessments annually
63-42 and adjust the assessments as found appropriate hereunder.
63-43 (e) The commission shall select the telecommunications
63-44 carrier which will provide the statewide telecommunications relay
63-45 access service for the hearing-impaired and speech-impaired. In
63-46 awarding the contract for this service, the commission shall make a
63-47 written award of the contract to the offerer whose proposal is the
63-48 most advantageous to the state, considering price, the interests of
63-49 the hearing-impaired and speech-impaired community in having access
63-50 to a high quality and technologically advanced telecommunications
63-51 system, and all other factors listed in the commission's request
63-52 for proposals. The commission shall consider each proposal in a
63-53 manner that does not disclose the contents of the proposal to
63-54 competing offerers. The commission's evaluation of the proposals
63-55 shall include:
63-56 (1) charges for the service;
63-57 (2) service enhancements proposed by the offerers;
63-58 (3) technological sophistication of the network
63-59 proposed by the offerers; and
63-60 (4) the proposed commencement date for the service.
63-61 (f) The telecommunications carrier providing the service
63-62 shall be compensated for providing such service at rates, terms,
63-63 and conditions established in its contract with the commission.
63-64 This compensation may include a return on the investment required
63-65 to provide the service and compensation for unbillable and
63-66 uncollectible calls placed through the service, provided that
63-67 compensation for unbillable and uncollectible calls shall be
63-68 subject to a reasonable limitation as determined by the commission.
63-69 (g) The advisory committee to assist the commission in
63-70 administering this section is composed of the following persons
64-1 appointed by the commission:
64-2 (1) two deaf persons recommended by the Texas
64-3 Association of the Deaf;
64-4 (2) one hearing-impaired person recommended by
64-5 Self-Help for the Hard of Hearing;
64-6 (3) one hearing-impaired person recommended by the
64-7 American Association of Retired Persons;
64-8 (4) one deaf and blind person recommended by the Texas
64-9 Deaf/Blind Association;
64-10 (5) one speech-impaired person and one speech-impaired
64-11 and hearing-impaired person recommended by the Coalition of Texans
64-12 with Disabilities;
64-13 (6) two representatives of telecommunications
64-14 utilities, one representing a nonlocal exchange utility and one
64-15 representing a local exchange company, chosen from a list of
64-16 candidates provided by the Texas Telephone Association;
64-17 (7) two persons, at least one of whom is deaf, with
64-18 experience in providing relay services recommended by the Texas
64-19 Commission for the Deaf and Hearing-Impaired; and
64-20 (8) two public members recommended by organizations
64-21 representing consumers of telecommunications services.
64-22 (h) The commission shall appoint advisory committee members
64-23 based on recommended lists of candidates submitted in accordance
64-24 with Subdivision (6) of Subsection (g) of this section. The
64-25 advisory committee shall monitor the establishment, administration,
64-26 and promotion of the statewide telecommunications relay access
64-27 service and advise the commission in pursuing a service which meets
64-28 the needs of the hearing-impaired and speech-impaired in
64-29 communicating with other users of telecommunications services. The
64-30 terms of office of each member of the advisory committee shall be
64-31 two years. A member whose term has expired shall continue to serve
64-32 until a qualified replacement is appointed. The members of the
64-33 advisory committee shall serve without compensation but shall be
64-34 entitled to reimbursement at rates established for state employees
64-35 for travel and per diem incurred in the performance of their
64-36 official duties. The commission shall reimburse members of the
64-37 advisory committee in accordance with this subsection and shall
64-38 provide clerical and staff support to the advisory committee,
64-39 including a secretary to record the committee meetings. The
64-40 commission's costs associated with the advisory committee shall be
64-41 reimbursed from the universal service fund.
64-42 Sec. 3.605 <3.355>. DISTANCE LEARNING ACTIVITIES BY
64-43 EDUCATIONAL INSTITUTIONS AND INFORMATION SHARING PROGRAMS BY
64-44 LIBRARIES; REDUCED RATES. (a) The commission by rule shall
64-45 require a dominant carrier to file a tariff containing a reduced
64-46 rate for a telecommunications service the commission finds is
64-47 directly related to a distance learning activity that is or could
64-48 be conducted by an educational institution in this state or an
64-49 information sharing program that is or could be conducted by a
64-50 library in this state.
64-51 (b) The commission rules shall specify:
64-52 (1) the telecommunications services that qualify under
64-53 this section;
64-54 (2) the process by which an educational institution or
64-55 library qualifies for a reduced rate;
64-56 (3) the date by which a dominant carrier shall file a
64-57 tariff;
64-58 (4) guidelines and criteria by which the services and
64-59 reduced rates shall further the goals stated in Subsection (d) of
64-60 this section; and
64-61 (5) any other requirements, terms, and conditions that
64-62 the commission determines to be in the public interest.
64-63 (c) A tariff filing by a dominant carrier under this
64-64 section:
64-65 (1) shall concern only the implementation of this
64-66 section;
64-67 (2) is not a rate change under Section 3.211 of this
64-68 Act; and
64-69 (3) does not affect any of the carrier's other rates
64-70 or services.
65-1 (d) The services and reduced rates shall be designed to:
65-2 (1) encourage the development and offering of distance
65-3 learning activities by educational institutions or information
65-4 sharing programs of libraries;
65-5 (2) meet the distance learning needs identified by the
65-6 educational community and the information sharing needs identified
65-7 by libraries; and
65-8 (3) recover the long-run incremental costs of
65-9 providing the services, to the extent those costs can be
65-10 identified, so as to avoid subsidizing educational institutions or
65-11 libraries.
65-12 (e) The commission is not required to determine the long-run
65-13 incremental cost of providing a service before approving a reduced
65-14 rate for the service. Until cost determination rules are developed
65-15 and the rates established under this section are changed as
65-16 necessary to ensure proper cost recovery, the reduced rates
65-17 established by the commission shall be equal to 75 percent of the
65-18 otherwise applicable rate. After the commission develops cost
65-19 determination rules for telecommunications services generally, it
65-20 shall ensure that a reduced rate approved under this section
65-21 recovers service-specific long-run incremental costs and avoids
65-22 subsidization.
65-23 (f) An educational institution, library, or dominant carrier
65-24 may at any time request the commission to:
65-25 (1) provide for a reduced rate for a service directly
65-26 related to a distance learning activity or an information sharing
65-27 program that is not covered by commission rules;
65-28 (2) change a rate;
65-29 (3) amend a tariff; or
65-30 (4) amend a commission rule.
65-31 (g) If the commission determines that a change requested
65-32 under Subsection (f) is appropriate, it shall make the requested
65-33 change.
65-34 (h) In this section:
65-35 (1) "Distance learning" means instruction, learning,
65-36 and training that is transmitted from one site to one or more sites
65-37 by telecommunications services that are used by an educational
65-38 institution predominantly for such instruction, learning, or
65-39 training, including video, data, voice, and electronic information.
65-40 (2) "Educational institution" means and includes:
65-41 (A) accredited primary or secondary schools
65-42 owned or operated by state and local governmental entities or
65-43 private entities;
65-44 (B) institutions of higher education as defined
65-45 by Section 61.003, Education Code;
65-46 (C) private institutions of higher education
65-47 accredited by a recognized accrediting agency as defined by Section
65-48 61.003(13), Education Code;
65-49 (D) the Central Education Agency, its successors
65-50 and assigns;
65-51 (E) regional education service centers
65-52 established and operated pursuant to Sections 11.32 and 11.33,
65-53 Education Code; and
65-54 (F) the Texas Higher Education Coordinating
65-55 Board, its successors and assigns.
65-56 (3) "Library" means a "public library" or "regional
65-57 library system" as those terms are defined by Section 441.122,
65-58 Government Code, or a library operated by an institution of higher
65-59 education or a school district.
65-60 Sec. 3.606. TELECOMMUNICATIONS INFRASTRUCTURE FUND. (a) In
65-61 this section:
65-62 (1) "Board" means the Telecommunications
65-63 Infrastructure Fund Board.
65-64 (2) "Fund" means the telecommunications infrastructure
65-65 fund.
65-66 (3) "Institution of higher education" has the meaning
65-67 assigned by Section 61.003, Education Code, and also includes a
65-68 "private or independent institution of higher education" as defined
65-69 by Section 61.003, Education Code.
65-70 (4) "Library" means a "public library," or "regional
66-1 library system" as those terms are defined by Section 441.122,
66-2 Government Code, or a library operated by an institution of higher
66-3 education or a school district.
66-4 (5) "School district" has the meaning assigned by
66-5 Section 19.001, Education Code.
66-6 (6) "Private network services" means the
66-7 telecommunications services provided to an entity described in
66-8 Section 3.359(b)(1)(A) of this Act and includes broadband services,
66-9 customized, and packaged network services and does not limit the
66-10 local exchange company from providing these services with
66-11 facilities which are also used to provide other services to other
66-12 customers.
66-13 (7) "Public, not-for-profit hospital" or "public
66-14 not-for-profit health care facility" means a rural or regional
66-15 hospital or entity such as a rural health clinic which is supported
66-16 by local or regional tax levies or is, under federal definition, a
66-17 certified not-for-profit health corporation.
66-18 (8) "Telemedicine" means consultive, diagnostic, or
66-19 other medical services delivered via telecommunications
66-20 technologies to rural or underserved public, not-for-profit
66-21 hospitals and primary health care facilities in collaboration with
66-22 an academic health center and associated teaching hospitals or
66-23 tertiary centers. Telemedicine includes, but is not limited to,
66-24 interactive video consultation, teleradiology, telepathology, and
66-25 distance education for working health care professionals.
66-26 (b) The board shall administer the fund. The board consists
66-27 of nine members. Three members are appointed by the governor,
66-28 three members are appointed by the lieutenant governor, and three
66-29 members are appointed by the governor from a list of individuals
66-30 submitted by the speaker of the house of representatives. Members
66-31 of the board serve for staggered, six-year terms, with three
66-32 members' terms expiring on August 31 of each odd-numbered year.
66-33 The governor shall designate the presiding officer of the board.
66-34 (c) The governor and the lieutenant governor, in making
66-35 their appointments to the board, and the speaker of the house of
66-36 representatives, in compiling the list of recommended persons,
66-37 shall attempt to select members who are representative of, but not
66-38 limited to, urban and rural school districts, institutions of
66-39 higher education, libraries, and the public. A person may not
66-40 serve on the board if the person is required to register as a
66-41 lobbyist under Chapter 305, Government Code, because of the
66-42 person's activities for compensation on behalf of a profession
66-43 related to the operation of the board.
66-44 (d) Members of the board serve without pay but are entitled
66-45 to reimbursement for their actual expenses incurred in attending
66-46 meetings of the board or in attending to other work of the board
66-47 if approved by the chairman of the board.
66-48 (e) The board is subject to Chapters 551 and 2001,
66-49 Government Code. The board is subject to Chapter 325, Government
66-50 Code (Texas Sunset Act). Unless continued in existence as provided
66-51 by that chapter, the advisory board and this section expire
66-52 September 1, 2006.
66-53 (f) The board is authorized to employ any personnel as
66-54 reasonably necessary to perform duties delegated by the board, and
66-55 the board may also enter into contracts as are necessary with state
66-56 agencies or private entities to perform its duties.
66-57 (g) The board may appoint any committees as it determines
66-58 may assist it in performing its duties under this section.
66-59 (h) The fund administered by the board is financed by an
66-60 annual assessment on all telecommunications providers doing
66-61 business in this state. Each telecommunications provider shall pay
66-62 the annual assessment in accordance with the ratio that the annual
66-63 taxable telecommunications receipts reported by that provider under
66-64 Chapter 151, Tax Code, bears to the total annual taxable
66-65 telecommunications receipts reported by all telecommunications
66-66 providers under Chapter 151, Tax Code.
66-67 (i) For the fiscal year beginning September 1, 1995, and for
66-68 the 10 fiscal years immediately following, the comptroller shall
66-69 assess and collect from telecommunications providers a total annual
66-70 amount of $150 million. The amount shall be assessed and collected
67-1 in each year without respect to whether all of the funds previously
67-2 collected have been disbursed or spent due to lack of demand or
67-3 otherwise.
67-4 (j) The comptroller may require telecommunications providers
67-5 to provide any reports and information as are needed to fulfill the
67-6 duties of the comptroller provided by this section. Any
67-7 information provided to the comptroller by a telecommunications
67-8 provider under this section is confidential and exempt from
67-9 disclosure under Chapter 552, Government Code.
67-10 (k) All amounts collected by the comptroller from
67-11 telecommunications providers under Subsection (h) of this section
67-12 shall be deposited in the fund in the state treasury and may be
67-13 appropriated solely for use by the board consistent with the
67-14 purposes of this section. Sections 403.094 and 403.095, Government
67-15 Code, do not apply to the fund.
67-16 (l) From funds appropriated to the board, the comptroller
67-17 shall issue warrants as requested by the board in accordance with
67-18 the purposes of this section, including warrants to grantees of the
67-19 board in amounts certified by the board to the comptroller.
67-20 (m) In addition to any appropriated funds, the board may
67-21 accept gifts, grants, and donations and use them for the purposes
67-22 of this section.
67-23 (n) The board shall use the fund to award grants and loans,
67-24 including grants for installation costs, if applicable, on a
67-25 competitive basis to rural and urban school districts, regional
67-26 education service centers, institutions of higher education, and
67-27 libraries recommended to the board by the Central Education Agency,
67-28 the Texas Higher Education Coordinating Board, or the Texas State
67-29 Library and Archives Commission.
67-30 (o) The board may award grants to projects and proposals
67-31 that:
67-32 (1) provide equipment and infrastructure needed for
67-33 distance learning, information sharing programs of libraries, and
67-34 telemedicine services;
67-35 (2) develop and implement the initial or prototypical
67-36 delivery of courses and other distance learning material;
67-37 (3) train teachers, faculty, librarians, or
67-38 technicians in the use of distance learning or information sharing
67-39 materials and equipment;
67-40 (4) develop curricula and instructional material
67-41 especially suited for delivery by telecommunications;
67-42 (5) provide electronic information; or
67-43 (6) establish or carry out information sharing
67-44 programs.
67-45 (p) The board may award loans to projects and proposals to
67-46 acquire equipment needed for distance learning and telemedicine
67-47 projects.
67-48 (q) In awarding grants and loans, the board shall give
67-49 priority to projects and proposals that:
67-50 (1) represent collaborative efforts involving multiple
67-51 schools, universities, or libraries;
67-52 (2) contribute matching funds from other sources;
67-53 (3) show promise of becoming self-sustaining;
67-54 (4) help users of information learn new ways to
67-55 acquire and use information through telecommunications;
67-56 (5) extend specific educational information and
67-57 knowledge services to groups not previously served, especially
67-58 those in rural and remote areas;
67-59 (6) result in more efficient or effective learning
67-60 than through conventional teaching;
67-61 (7) improve the effectiveness and efficiency of health
67-62 care delivery; or
67-63 (8) take advantage of distance learning opportunities
67-64 in rural and urban school districts with disproportionate numbers
67-65 of at-risk youths or with high dropout rates.
67-66 (r) The Texas Higher Education Coordinating Board, the
67-67 Central Education Agency, and the Texas State Library and Archives
67-68 Commission shall adopt policies and procedures in consultation with
67-69 the board that are designed to aid the board in achieving the
67-70 purposes of this section.
68-1 (s) In distributing funds to public schools, the board
68-2 shall take into account the relative property wealth per student of
68-3 the recipient school districts and recognize the unique needs of
68-4 rural communities.
68-5 Sec. 3.607 <3.356>. RECOVERY OF LOST REVENUES. A local
68-6 exchange company is entitled to recover the lost revenue, if any,
68-7 resulting solely from the provision of tel-assistance service from
68-8 the universal service fund, the establishment of which is provided
68-9 for by this Act.
68-10 Sec. 3.608 <3.357>. UNIVERSAL SERVICE FUND. (a) The
68-11 commission shall adopt and enforce rules requiring local exchange
68-12 companies to establish a universal service fund to assist local
68-13 exchange companies in providing basic local telecommunications
68-14 service <exchange service> at reasonable rates in high cost rural
68-15 areas, to reimburse local exchange companies for revenues lost as a
68-16 result of providing tel-assistance service under this Act, to
68-17 reimburse the telecommunications carrier providing the statewide
68-18 telecommunications relay access service for the hearing-impaired
68-19 and speech-impaired as authorized in Section 3.604 <3.354> of this
68-20 Act, and to reimburse the Texas Department of Human Services and
68-21 the commission for costs incurred in implementing the provisions of
68-22 this subtitle.
68-23 (b)(1) For local exchange companies serving fewer than one
68-24 million access lines, in addition to the authority described by
68-25 Subsection (a) of this section, the commission may adopt any
68-26 mechanisms necessary to maintain reasonable rates for local
68-27 exchange telephone service and shall establish rules that would
68-28 expand the universal service fund in the circumstances prescribed
68-29 by this subsection.
68-30 (2) In the event of a commission order, rule, or
68-31 policy, the effect of which is to reduce the amount of the high
68-32 cost assistance fund, except an order entered in an individual
68-33 company revenue requirements proceeding, the commission shall
68-34 implement a mechanism through the universal service fund to replace
68-35 the reasonably projected reduction in revenues caused by that
68-36 regulatory action.
68-37 (3) In the event of a Federal Communications
68-38 Commission order, rule, or policy, the effect of which is to change
68-39 the federal universal service fund revenues of a local exchange
68-40 company or change costs or revenues assigned to the intrastate
68-41 jurisdiction, the commission shall implement a mechanism, through
68-42 either the universal service fund or an increase to rates if that
68-43 increase would not adversely impact universal service, to replace
68-44 the reasonably projected change in revenues caused by the
68-45 regulatory action.
68-46 (4) In the event of a commission change in its policy
68-47 with respect to intraLATA "1+" dialing access, the commission shall
68-48 implement a mechanism, through either the universal service fund or
68-49 an increase to rates if that increase would not adversely impact
68-50 universal service, to replace the reasonably projected reduction in
68-51 contribution caused by the action. Contribution for purposes of
68-52 this subdivision equals average intraLATA long distance message
68-53 telecommunications service (MTS) revenue, including intraLATA toll
68-54 pooling and associated impacts, per minute less average MTS cost
68-55 per minute less the average contribution from switched access times
68-56 the projected change in intraLATA "1+" minutes of use.
68-57 (5) In the event of any other governmental agency
68-58 issuing an order, rule, or policy, the effect of which is to
68-59 increase costs or decrease revenues of the intrastate jurisdiction,
68-60 the commission shall implement a mechanism through either the
68-61 universal service fund or an increase to rates if that increase
68-62 would not adversely impact universal service, to replace the
68-63 reasonably projected increase in costs or decrease in revenues
68-64 caused by that regulatory action.
68-65 (6) A revenue requirement showing is not required with
68-66 respect to disbursements from the universal service fund under
68-67 Subsection (a) or (b) of this section. Those disbursements shall
68-68 be implemented promptly and efficiently so that telecommunications
68-69 providers and local exchange companies do not experience
68-70 unnecessary cash flow changes as a result of these changes in
69-1 governmental policy.
69-2 (c) The universal service fund shall be funded by a
69-3 statewide uniform charge, at rates and on services determined by
69-4 the commission, payable by all telecommunications providers
69-5 <utilities> that have access to the customer base. In establishing
69-6 the uniform level of the charge and the services to which it will
69-7 apply, the commission may not make or grant an unreasonable
69-8 preference or advantage to a telecommunications provider <utility>
69-9 or subject a telecommunications provider <utility> to unreasonable
69-10 prejudice or disadvantage. The charge shall be paid in accordance
69-11 with procedures approved by the commission.
69-12 (d) <(c)> The commission shall:
69-13 (1) establish, in a manner that assures reasonable
69-14 rates for basic local telecommunications <exchange> service,
69-15 eligibility criteria and review procedures, including a method for
69-16 administrative review, it finds necessary for funding of and
69-17 distribution from <participation in> the universal service fund;
69-18 (2) determine which local exchange companies meet the
69-19 eligibility criteria, which, at a minimum, include the requirement
69-20 to offer service to every consumer within its certificated area and
69-21 render continuous and adequate service within the area or areas, in
69-22 compliance with the commission's quality of service requirements;
69-23 (3) determine the amount of and approve a procedure
69-24 for reimbursement to local exchange companies of revenue lost in
69-25 providing tel-assistance service under this Act;
69-26 (4) prescribe and collect fees from the universal
69-27 service fund necessary to recover the costs the Texas Department of
69-28 Human Services and the commission incurred in implementing and
69-29 administrating the provisions of this subtitle; and
69-30 (5) approve procedures for the collection and
69-31 disbursal of the revenues of the universal service fund.
69-32 (e) <(d)> The commission shall adopt rules for the
69-33 implementation and administration of the universal service fund.
69-34 (f) <(e)> The commission may do all things necessary and
69-35 convenient to implement and administer the universal service fund,
69-36 including require local exchange companies and other
69-37 telecommunications providers to provide any reports and information
69-38 needed to assess contributions to the fund. All reports and
69-39 information are confidential and not subject to disclosure under
69-40 Chapter 552, Government Code.
69-41 Sec. 3.609 <3.358>. INTERACTIVE MULTIMEDIA COMMUNICATIONS.
69-42 (a) The commission shall permit a local exchange company that
69-43 provides interactive multimedia communications services to
69-44 establish rates at levels necessary, using sound ratemaking
69-45 principles, to recover costs associated with providing the
69-46 services. Unless determined by the commission to be in the public
69-47 interest, a local exchange company may not establish rates under
69-48 this subsection that are less than the local exchange company's
69-49 long-run incremental costs of providing the interactive multimedia
69-50 communications services.
69-51 (b) In this section, "interactive multimedia communications"
69-52 has the meaning assigned by Section 14.0451(a), Education Code, as
69-53 added by Chapter 868, Acts of the 73rd Legislature, Regular
69-54 Session, 1993.
69-55 Sec. 3.610 <3.359>. SEVERABILITY. If this subtitle
69-56 conflicts with another provision of this Act, this subtitle
69-57 prevails.
69-58 SUBTITLE O <I>. AUTOMATIC DIAL ANNOUNCING DEVICES
69-59 Sec. 3.651 <3.401>. DEFINITIONS. In this subtitle:
69-60 (1) "Automated dial announcing device" or "ADAD" means
69-61 automated equipment used for telephone solicitation or collection
69-62 that is capable:
69-63 (A) of storing telephone numbers to be called or
69-64 that has a random or sequential number generator capable of
69-65 producing numbers to be called; and
69-66 (B) alone or in conjunction with other
69-67 equipment, of conveying a prerecorded or synthesized voice message
69-68 to the number called without the use of a live operator.
69-69 (2) "LEC" means a local exchange company, as that term
69-70 is defined by Section 3.002 <3.001> of this Act.
70-1 Sec. 3.652 <3.402>. EXEMPTIONS. This subtitle does not
70-2 apply to the use of an ADAD to make a telephone call:
70-3 (1) relating to an emergency or a public service under
70-4 a program developed or approved by the emergency management
70-5 coordinator of the county in which the call was received; or
70-6 (2) made by a public or private primary or secondary
70-7 school system to locate or account for a truant student.
70-8 Sec. 3.653 <3.403>. REQUIREMENTS FOR OPERATION OF ADAD.
70-9 (a) A person may not operate an ADAD to make a telephone call if
70-10 the device plays a recorded message when a connection is completed
70-11 to a telephone number unless:
70-12 (1) the person has obtained a permit from the
70-13 commission and given written notice specifying the type of device
70-14 to each telecommunications utility over whose system the device is
70-15 to be used;
70-16 (2) the device is not used for random number dialing
70-17 or to dial numbers determined by successively increasing or
70-18 decreasing integers;
70-19 (3) the message states during the first 30 seconds of
70-20 the call the nature of the call, the identity of the person,
70-21 company, or organization making the call, and the telephone number
70-22 from which the call was made, provided, however, that if an ADAD is
70-23 used for debt collection purposes and the use complies with
70-24 applicable federal law and regulations, and the ADAD is used by a
70-25 live operator for automatic dialing or hold announcement purposes,
70-26 the use complies with this subdivision;
70-27 (4) the device disconnects from the called person's
70-28 line not later than 30 seconds after the call is terminated by
70-29 either party or, if the device cannot disconnect within that
70-30 period, a live operator introduces the call and receives the oral
70-31 consent of the called person before beginning a prerecorded or
70-32 synthesized voice message; <and>
70-33 (5) the device, when used for solicitation purposes,
70-34 has a message shorter than one minute or has the technical capacity
70-35 to recognize a telephone answering device on the called person's
70-36 line and terminates the call within one minute; and
70-37 (6) for calls terminating in this state, the device is
70-38 not used to make a call:
70-39 (A) before noon or after 9 p.m. on a Sunday or
70-40 before 9 a.m. or after 9 p.m. on a weekday or a Saturday, if the
70-41 device is used for solicitation; or
70-42 (B) at an hour at which collection calls would
70-43 be prohibited under the federal Fair Debt Collection Practices Act
70-44 (15 U.S.C. Section 1692 et seq.), if the device is used for
70-45 collection purposes.
70-46 (b) In addition to the requirements prescribed by Subsection
70-47 (a) of this section, if during the call a cross-promotion or
70-48 reference to a pay-per-call information service is made, the call
70-49 shall include:
70-50 (1) a statement that a charge will be incurred by a
70-51 caller who makes a call to a pay-per-call information services
70-52 telephone number;
70-53 (2) the amount of the flat-rate or cost-per-minute
70-54 charge that will be incurred or the amount of both if both charges
70-55 will be incurred; and
70-56 (3) the estimated amount of time required to receive
70-57 the entire information offered by the service during a call.
70-58 (c) In this section, "pay-per-call information service"
70-59 means a service that allows a caller to dial a specified "900" or
70-60 "976" number to call a service that routinely delivers, for a
70-61 predetermined and sometimes time-sensitive fee, a prerecorded or
70-62 live message or interactive program.
70-63 Sec. 3.654 <3.404>. INVESTIGATION OF COMPLAINTS; VIOLATIONS;
70-64 DISCONNECTION OF SERVICE. (a) The commission shall investigate
70-65 complaints relating to the use of an ADAD and enforce this
70-66 subtitle.
70-67 (b) If the commission or a court determines that a person
70-68 has violated this subtitle, the commission or court shall require a
70-69 telecommunications utility to disconnect service to the person.
70-70 The telecommunications utility may reconnect service to the person
71-1 only on a determination by the commission that the person will
71-2 comply with this subtitle. The utility shall give notice to the
71-3 person using the device of its intent to disconnect service not
71-4 later than the third day before the date of the disconnection,
71-5 except that if the device is causing network congestion or
71-6 blockage, the notice may be given on the day before the date of
71-7 disconnection.
71-8 (c) A telecommunications utility may, without an order by
71-9 the commission or a court, disconnect or refuse to connect service
71-10 to a person using or intending to use an ADAD if the utility
71-11 determines that the device would cause or is causing network harm.
71-12 Sec. 3.655 <3.405>. APPLICATION FOR PERMIT TO OPERATE ADAD.
71-13 (a) An application for a permit to use one or more ADADs must be
71-14 made using the form prescribed by the commission and must be
71-15 accompanied by a fee in a reasonable amount computed to cover the
71-16 enforcement cost to the commission, but not to exceed $500, as
71-17 determined by the commission. A permit is valid for one year after
71-18 its effective date. Subject to Subsection (c) of this section, a
71-19 permit may be renewed annually by making the filing required by
71-20 this section and paying a filing fee of not more than $100, as
71-21 determined by the commission. The proceeds of the fees shall be
71-22 deposited to the credit of the general revenue fund.
71-23 (b) Each application for the issuance or renewal of a permit
71-24 under this section must contain the telephone number of each ADAD
71-25 that will be used and the physical address from which the ADAD will
71-26 operate. If the telephone number of an ADAD or the physical
71-27 address from which the ADAD operates changes, the owner or operator
71-28 of the ADAD shall notify the commission by certified mail of each
71-29 new number or address not later than the 48th hour before the hour
71-30 at which the ADAD will begin operating with the new telephone
71-31 number or at the new address. If the owner or operator of an ADAD
71-32 fails to notify the commission as required by this subsection
71-33 within the period prescribed by this subsection, the permit is
71-34 automatically invalid.
71-35 (c) In determining if a permit should be issued or renewed,
71-36 the commission shall consider the compliance record of the owner or
71-37 operator of the ADAD. The commission may deny an application for
71-38 the issuance or renewal of a permit because of the applicant's
71-39 compliance record.
71-40 (d) The commission shall provide to an LEC on request a copy
71-41 of a permit issued under this section and of any changes relating
71-42 to the permit.
71-43 (e) An LEC that receives a complaint relating to the use of
71-44 an ADAD shall send the complaint to the commission. The commission
71-45 by rule shall prescribe the procedures and requirements for sending
71-46 a complaint to the commission.
71-47 Sec. 3.656 <3.406>. VIOLATIONS; PENALTIES. (a) A person
71-48 who owns or operates an ADAD and who operates the ADAD without a
71-49 valid permit or with an expired permit or who operates the ADAD in
71-50 violation of this subtitle or a commission rule or order is subject
71-51 to an administrative penalty of not more than $1,000 for each day
71-52 or portion of a day during which the ADAD was operating in
71-53 violation of this section.
71-54 (b) The administrative penalty authorized by this section is
71-55 civil in nature and is cumulative of any other penalty provided by
71-56 law.
71-57 (c) The commission by rule shall prescribe the procedures
71-58 for assessing an administrative penalty under this section. The
71-59 procedures shall require proper notice and hearing in accordance
71-60 with Chapter 2001, Government Code.
71-61 (d) A person may appeal the final order of the commission
71-62 under Chapter 2001, Government Code, using the substantial evidence
71-63 rule on appeal.
71-64 (e) The proceeds of administrative penalties collected under
71-65 this section shall be deposited to the credit of the general
71-66 revenue fund.
71-67 Sec. 3.657 <3.407>. REVOCATION OF PERMIT; OFFENSES.
71-68 (a) The commission may revoke a permit issued under this subtitle
71-69 for failure to comply with this subtitle.
71-70 (b) A person commits an offense if the person owns or
72-1 operates an ADAD that the person knows is operating in violation of
72-2 this subtitle. An offense under this subsection is a Class A
72-3 misdemeanor.
72-4 Sec. 3.658 <3.408>. RULEMAKING AUTHORITY. The commission
72-5 may adopt any rules necessary to carry out its powers and duties
72-6 under this subtitle.
72-7 Sec. 3.659 <3.409>. COMPLIANCE WITH CONSUMERS' REQUESTS NOT
72-8 TO BE CALLED. Every telephone solicitor operating in this state
72-9 who makes consumer telephone calls subject to Section 37.02 of the
72-10 Business & Commerce Code shall implement in-house systems and
72-11 procedures so that every effort is made not to call consumers who
72-12 ask not to be called again. The commission is granted all
72-13 necessary power and authority to enforce the provisions of this
72-14 section.
72-15 Sec. 3.660 <3.410>. NOTICE TO CONSUMER OF PROVISIONS OF
72-16 CHAPTER 37 OF THE BUSINESS & COMMERCE CODE AND SECTION 3.659
72-17 <3.409>. The commission by rule shall require that a local
72-18 exchange company or telephone cooperative inform its customers of
72-19 the provisions of Chapter 37 of the Business & Commerce Code and
72-20 Section 3.659 <3.409> of this Act by:
72-21 (1) inserting the notice annually in the billing
72-22 statement mailed to a customer; or
72-23 (2) publishing the notice in the consumer information
72-24 pages of its local telephone directory.
72-25 SECTION 49. (a) Subchapter D, Chapter 74, Property Code, is
72-26 amended by adding Section 74.3011 to read as follows:
72-27 Sec. 74.3011. DELIVERY OF MONEY TO RURAL SCHOLARSHIP FUND.
72-28 (a) Notwithstanding and in addition to any other provision of this
72-29 chapter or other law, a local telephone exchange company may
72-30 deliver reported money to a scholarship fund for rural students
72-31 instead of delivering the money to the state treasurer as
72-32 prescribed by Section 74.301.
72-33 (b) A local telephone exchange company may deliver the money
72-34 under this section only to a scholarship fund established by one or
72-35 more local telephone exchange companies in this state to enable
72-36 needy students from rural areas to attend college, technical
72-37 school, or another postsecondary educational institution.
72-38 (c) A local telephone exchange company shall file with the
72-39 state treasurer a verification of money delivered under this
72-40 section that complies with Section 74.302.
72-41 (d) A claim for money delivered to a scholarship fund under
72-42 this section must be filed with the local telephone exchange
72-43 company that delivered the money. The local telephone exchange
72-44 company shall forward the claim to the administrator of the
72-45 scholarship fund to which the money was delivered. The scholarship
72-46 fund shall pay the claim if the fund determines in good faith that
72-47 the claim is valid. A person aggrieved by a claim decision may
72-48 file a suit against the fund in a district court in the county in
72-49 which the administrator of the scholarship fund is located in
72-50 accordance with Section 74.506.
72-51 (e) The state treasurer shall prescribe forms and procedures
72-52 governing this section, including forms and procedures relating to:
72-53 (1) notice of presumed abandoned property;
72-54 (2) delivery of reported money to a scholarship fund;
72-55 and
72-56 (3) filing of a claim.
72-57 (f) In this section, "local telephone exchange company"
72-58 means a telecommunications utility certificated to provide local
72-59 exchange service within the state and that is a telephone
72-60 cooperative or has fewer than 50,000 access lines in service in
72-61 this state.
72-62 (g) During a state fiscal year, the total amount of money
72-63 that may be transferred by all local telephone exchange companies
72-64 under this section may not exceed $400,000. The state treasury
72-65 shall keep a record of the total amount of money transferred
72-66 annually. When the total amount of money transferred during a state
72-67 fiscal year equals the amount allowed by this subsection, the
72-68 treasury shall notify each local telephone exchange company that
72-69 the company may not transfer any additional money to the company's
72-70 scholarship fund during the remainder of that state fiscal year.
73-1 (b) Section 74.3011, Property Code, as added by this Act,
73-2 applies only to money that a local telephone exchange company would
73-3 otherwise be required to deliver to the state treasurer on or after
73-4 the effective date of this Act. Money that was required to be
73-5 delivered to the state treasurer before the effective date of this
73-6 Act is governed by the law in effect when the money was required to
73-7 be delivered, and that law is continued in effect for that purpose.
73-8 SECTION 50. (a) Subchapter D, Chapter 74, Property Code, is
73-9 amended by adding Section 74.3012 to read as follows:
73-10 Sec. 74.3012. DELIVERY OF MONEY TO URBAN SCHOLARSHIP FUND.
73-11 (a) Notwithstanding and in addition to any other provision of this
73-12 chapter or other law, a local exchange company may deliver reported
73-13 money to a scholarship fund for urban students instead of
73-14 delivering the money to the state treasurer as prescribed by
73-15 Section 74.301.
73-16 (b) A local exchange company may deliver the money under
73-17 this section only to a scholarship fund established by one or more
73-18 local exchange companies in this state to enable needy students
73-19 from urban areas to attend college, technical school, or another
73-20 postsecondary educational institution.
73-21 (c) A local exchange company shall file with the state
73-22 treasurer a verification of money delivered under this section that
73-23 complies with Section 74.302.
73-24 (d) A claim for money delivered to a scholarship fund under
73-25 this section must be filed with the local exchange company that
73-26 delivered the money. The local exchange company shall forward the
73-27 claim to the administrator of the scholarship fund to which the
73-28 money was delivered. The scholarship fund shall pay the claim if
73-29 the fund determines in good faith that the claim is valid. A person
73-30 aggrieved by a claim decision may file a suit against the fund in a
73-31 district court in the county in which the administrator of the
73-32 scholarship fund is located in accordance with Section 74.506.
73-33 (e) The state treasurer shall prescribe forms and procedures
73-34 governing this section, including forms and procedures relating to:
73-35 (1) notice of presumed abandoned property;
73-36 (2) delivery of reported money to a scholarship fund;
73-37 and
73-38 (3) filing of a claim.
73-39 (f) In this section, "local exchange company" means a
73-40 telecommunications utility certificated to provide local exchange
73-41 telephone service within the state and that has 50,000 or more
73-42 access lines in service in this state and is not a telephone
73-43 cooperative.
73-44 (g) During the 1995-1996 fiscal year, the total amount of
73-45 money that may be transferred by all local exchange companies under
73-46 this section may not exceed $400,000. During each subsequent state
73-47 fiscal year, the total amount of money that may be transferred by
73-48 all local exchange companies under this section may not exceed the
73-49 total amount of money transferred to rural scholarship funds under
73-50 Section 74.3011 during the previous state fiscal year. The state
73-51 treasury shall keep a record of the total amount of money
73-52 transferred annually. If the total amount of money transferred
73-53 during a state fiscal year equals the amount allowed by this
73-54 subsection, the treasury shall notify each local exchange company
73-55 that the company may not transfer any additional money to the
73-56 company's scholarship fund during the remainder of that state
73-57 fiscal year.
73-58 (b) Section 74.3012, Property Code, as added by this Act,
73-59 applies only to money that a local exchange company would otherwise
73-60 be required to deliver to the state treasurer on or after the
73-61 effective date of this Act. Money that was required to be delivered
73-62 to the state treasurer before the effective date of this Act is
73-63 governed by the law in effect when the money was required to be
73-64 delivered, and that law is continued in effect for that purpose.
73-65 SECTION 51. As soon as possible after the effective date of
73-66 this Act, the governor and lieutenant governor shall appoint the
73-67 members of the Telecommunications Infrastructure Fund Board created
73-68 by Section 3.606, Public Utility Regulatory Act of 1995, as enacted
73-69 by S.B. 319, Acts of the 74th Legislature, Regular Session, 1995,
73-70 as added by this Act. The governor shall appoint two members with
74-1 terms expiring on August 31, 1997, two members with terms expiring
74-2 on August 31, 1999, and two members with terms expiring on August
74-3 31, 2001. The terms of the members appointed from the list
74-4 provided by the speaker of the house of representatives must be
74-5 staggered so that the terms of one-third of those appointees expire
74-6 every odd-numbered year. The lieutenant governor shall appoint one
74-7 member with a term expiring on August 31, 1997, one member with a
74-8 term expiring on August 31, 1999, and one member with a term
74-9 expiring on August 31, 2001.
74-10 SECTION 52. All laws or parts of laws in conflict with this
74-11 Act are repealed effective September 1, 1995.
74-12 SECTION 53. (a) This Act takes effect September 1, 1995.
74-13 (b) Section 3.2555, Public Utility Regulatory Act of 1995,
74-14 as enacted by S.B. 319, Acts of the 74th Legislature, Regular
74-15 Session, 1995, as added by this Act, applies only to a franchise or
74-16 contract entered into or amended on or after September 1, 1995. A
74-17 franchise or contract entered into before September 1, 1995, and
74-18 not amended on or after that date is governed by the law in effect
74-19 when the contract was entered into or last amended, and that law is
74-20 continued in effect for that purpose.
74-21 (c) Sections 3.304(a)(2) and (3), Public Utility Regulatory
74-22 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
74-23 Regular Session, 1995, as amended by this Act, apply only to a
74-24 petition filed on or after April 15, 1995. A petition filed before
74-25 April 15, 1995, is governed by the law in effect when the petition
74-26 was filed, and that law is continued in effect for that purpose.
74-27 SECTION 54. The importance of this legislation and the
74-28 crowded condition of the calendars in both houses create an
74-29 emergency and an imperative public necessity that the
74-30 constitutional rule requiring bills to be read on three several
74-31 days in each house be suspended, and this rule is hereby suspended.
74-32 * * * * *