By: Armbrister, Sibley S.B. No. 319
A BILL TO BE ENTITLED
AN ACT
1-1 relating to a nonsubstantive recodification of the Public Utility
1-2 Regulatory Act.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The Public Utility Regulatory Act of 1995 is
1-5 enacted to read as follows:
1-6 TITLE I. PROVISIONS APPLICABLE TO ALL UTILITIES
1-7 SUBTITLE A. GENERAL PROVISIONS
1-8 Sec. 1.001. SHORT TITLE. This Act may be referred to as the
1-9 "Public Utility Regulatory Act of 1995." (Sec. 1)
1-10 Sec. 1.002. LEGISLATIVE POLICY AND PURPOSE. This Act is
1-11 enacted to protect the public interest inherent in the rates and
1-12 services of public utilities. The legislature finds that public
1-13 utilities are by definition monopolies in the areas they serve;
1-14 that therefore the normal forces of competition which operate to
1-15 regulate prices in a free enterprise society do not operate; and
1-16 that therefore utility rates, operations, and services are
1-17 regulated by public agencies with the objective that this
1-18 regulation shall operate as a substitute for competition. The
1-19 purpose of this Act is to establish a comprehensive regulatory
1-20 system which is adequate to the task of regulating public utilities
1-21 as defined by this Act, to assure rates, operations, and services
1-22 which are just and reasonable to the consumers and to the
1-23 utilities. (Sec. 2)
1-24 Sec. 1.003. DEFINITIONS. In this Act:
2-1 (1) "Affected person" means any public utility
2-2 affected by any action of the regulatory authority, any person or
2-3 corporation whose utility service or rates are affected by any
2-4 proceeding before the regulatory authority, or any person or
2-5 corporation that is a competitor of a public utility with respect
2-6 to any service performed by the utility or that desires to enter
2-7 into competition. (Sec. 3(h))
2-8 (2) "Affiliated interest" or "affiliate" means:
2-9 (A) any person or corporation owning or holding,
2-10 directly or indirectly, five percent or more of the voting
2-11 securities of a public utility;
2-12 (B) any person or corporation in any chain of
2-13 successive ownership of five percent or more of the voting
2-14 securities of a public utility;
2-15 (C) any corporation five percent or more of the
2-16 voting securities of which is owned or controlled, directly or
2-17 indirectly, by a public utility;
2-18 (D) any corporation five percent or more of the
2-19 voting securities of which is owned or controlled, directly or
2-20 indirectly, by any person or corporation that owns or controls,
2-21 directly or indirectly, five percent or more of the voting
2-22 securities of any public utility or by any person or corporation in
2-23 any chain of successive ownership of five percent of such
2-24 securities;
2-25 (E) any person who is an officer or director of
2-26 a public utility or of any corporation in any chain of successive
2-27 ownership of five percent or more of voting securities of a public
3-1 utility;
3-2 (F) any person or corporation that the
3-3 commission, after notice and hearing, determines actually exercises
3-4 any substantial influence or control over the policies and actions
3-5 of a public utility, or over which a public utility exercises that
3-6 control, or that is under common control with a public utility,
3-7 that control being the possession, directly or indirectly, of the
3-8 power to direct or cause the direction of the management and
3-9 policies of another, whether that power is established through
3-10 ownership or voting of securities or by any other direct or
3-11 indirect means; or
3-12 (G) any person or corporation that the
3-13 commission after notice and hearing determines is actually
3-14 exercising that substantial influence over the policies and action
3-15 of the public utility in conjunction with one or more persons or
3-16 corporations with which they are related by ownership or blood
3-17 relationship, or by action in concert, that together they are
3-18 affiliated with that public utility within the meaning of this
3-19 section, even though no one of them alone is so affiliated. (Sec.
3-20 3(i))
3-21 (3) "Allocations" means, for all utilities, the
3-22 division of plant, revenues, expenses, taxes, and reserves between
3-23 municipalities or between municipalities and unincorporated areas,
3-24 where those items are used for providing public utility service in
3-25 a municipality, or for a municipality and unincorporated areas.
3-26 (Sec. 3(j))
3-27 (4) "Commission," means the Public Utility Commission
4-1 of Texas. (Sec. 3(e))
4-2 (5) "Commissioner" means a member of the Public
4-3 Utility Commission of Texas. (Sec. 3(k))
4-4 (6) "Cooperative corporation" means any telephone or
4-5 electric cooperative corporation organized and operating under the
4-6 Telephone Cooperative Act (Article 1528c, Vernon's Texas Civil
4-7 Statutes) or the Electric Cooperative Corporation Act (Article
4-8 1528b, Vernon's Texas Civil Statutes). (Sec. 3(l))
4-9 (7) "Corporation" means any corporation, joint-stock
4-10 company, or association, domestic or foreign, and its lessees,
4-11 assignees, trustees, receivers, or other successors in interest,
4-12 having any of the powers or privileges of corporations not
4-13 possessed by individuals or partnerships, but does not include
4-14 municipal corporations unless expressly provided otherwise in this
4-15 Act. (Sec. 3(m))
4-16 (8) "Facilities" means all the plant and equipment of
4-17 a public utility, including all tangible and intangible real and
4-18 personal property without limitation, and any and all means and
4-19 instrumentalities in any manner owned, operated, leased, licensed,
4-20 used, controlled, furnished, or supplied for, by, or in connection
4-21 with the business of any public utility. (Sec. 3(n))
4-22 (9) "Municipally owned utility" means any utility
4-23 owned, operated, and controlled by a municipality or by a nonprofit
4-24 corporation whose directors are appointed by one or more
4-25 municipalities. (Sec. 3(o))
4-26 (10) "Office" means the Office of Public Utility
4-27 Counsel. (New)
5-1 (11) "Order" means the whole or a part of the final
5-2 disposition, whether affirmative, negative, injunctive, or
5-3 declaratory in form, of the regulatory authority in a matter other
5-4 than rulemaking, but including issuance of certificates of
5-5 convenience and necessity and ratesetting. (Sec. 3(p))
5-6 (12) "Person" includes a natural person, partnership
5-7 of two or more persons having a joint or common interest, mutual or
5-8 cooperative association, and corporation. (Sec. 3(a))
5-9 (13) "Proceeding" means any hearing, investigation,
5-10 inquiry, or other fact-finding or decision-making procedure under
5-11 this Act and includes the denial of relief or the dismissal of a
5-12 complaint. (Sec. 3(q))
5-13 (14) "Rate" means and includes every compensation,
5-14 tariff, charge, fare, toll, rental, and classification, or any of
5-15 them demanded, observed, charged, or collected whether directly or
5-16 indirectly by any public utility for any service, product, or
5-17 commodity described in the definition of "utility" in Section 2.001
5-18 or 3.001 of this Act and any rules, regulations, practices, or
5-19 contracts affecting any such compensation, tariff, charge, fare,
5-20 toll, rental, or classification. (Sec. 3(d))
5-21 (15) "Regulatory authority" means, in accordance with
5-22 the context where it is found, either the commission or the
5-23 governing body of any municipality. (Sec. 3(g))
5-24 (16) "Service" is used in this Act in its broadest and
5-25 most inclusive sense and includes any and all acts done, rendered,
5-26 or performed, any and all things furnished or supplied, and any and
5-27 all facilities used, furnished, or supplied by public utilities in
6-1 the performance of their duties under this Act to their patrons,
6-2 employees, other public utilities, and the public, as well as the
6-3 interchange of facilities between two or more of them. The term
6-4 does not include the printing, distribution, or sale of advertising
6-5 in telephone directories. (Sec. 3(s))
6-6 (17) "Test year" means the most recent 12 months for
6-7 which operating data for a public utility are available and shall
6-8 commence with a calendar quarter or a fiscal year quarter. (Sec.
6-9 3(t))
6-10 (Secs. 3(b) and (u) deleted)
6-11 Sec. 1.004. DEFINITIONS IN TITLE. In this title, "public
6-12 utility" or "utility" means a telecommunications or electric
6-13 utility. (3(c) (part))
6-14 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT.
6-15 Chapter 2001, Government Code, applies to all proceedings under
6-16 this Act except to the extent inconsistent with this Act.
6-17 Communications of members and employees of the commission with a
6-18 party, a party's representative, or other persons are governed by
6-19 Section 2001.061, Government Code. (Sec. 4)
6-20 SUBTITLE B. ORGANIZATION OF COMMISSION
6-21 Sec. 1.021. CREATION OF COMMISSION; APPOINTMENT AND TERMS;
6-22 CHAIRMAN. (a) The Public Utility Commission of Texas consists of
6-23 three commissioners, who shall be appointed to staggered, six-year
6-24 terms by the governor, with the advice and consent of two-thirds of
6-25 the members of the senate present, and who shall have and exercise
6-26 the jurisdiction and powers herein conferred upon the commission.
6-27 (b) Each commissioner shall hold office until his successor
7-1 is appointed and qualified.
7-2 (c) At its first meeting following the biennial appointment
7-3 and qualification of a commissioner, the commission shall elect one
7-4 of the commissioners chairman.
7-5 (d) Appointments to the commission shall be made without
7-6 regard to the race, creed, sex, religion, or national origin of the
7-7 appointees. (Sec. 5)
7-8 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
7-9 of Texas and the Office of Public Utility Counsel are subject to
7-10 Chapter 325, Government Code (Texas Sunset Act). Unless continued
7-11 in existence as provided by that chapter, the commission and the
7-12 office are abolished and this Act expires September 1, 1995. (Sec.
7-13 5a)
7-14 Sec. 1.023. QUALIFICATIONS; OATH AND BOND; PROHIBITED
7-15 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
7-16 a person must be a qualified voter, not less than 30 years of age,
7-17 a citizen of the United States, and a resident of the State of
7-18 Texas.
7-19 (b) Each commissioner shall qualify for office by taking the
7-20 oath prescribed for other state officers and shall execute a bond
7-21 for $5,000 payable to the state and conditioned on the faithful
7-22 performance of his duties.
7-23 (c) A person is not eligible for appointment as a
7-24 commissioner if at any time during the two-year period immediately
7-25 preceding his appointment he personally served as an officer,
7-26 director, owner, employee, partner, or legal representative of any
7-27 public utility or any affiliated interest or he owned or
8-1 controlled, directly or indirectly, stocks or bonds of any class
8-2 with a value of $10,000 or more in a public utility or any
8-3 affiliated interest.
8-4 (d) A person who is required to register as a lobbyist under
8-5 Chapter 305, Government Code, may not serve as a member of the
8-6 commission or public utility counsel or act as the general counsel
8-7 to the commission. (Sec. 6(a) (reorg.))
8-8 Sec. 1.024. PROHIBITED ACTIVITIES. (a) A commissioner or
8-9 employee of the commission may not do any of the following during
8-10 his period of service with the commission:
8-11 (1) have any pecuniary interest, either as an officer,
8-12 director, partner, owner, employee, attorney, consultant, or
8-13 otherwise, in any public utility or affiliated interest, or in any
8-14 person or corporation or other business entity a significant
8-15 portion of whose business consists of furnishing goods or services
8-16 to public utilities or affiliated interests, but not including a
8-17 nonprofit group or association solely supported by gratuitous
8-18 contributions of money, property or services;
8-19 (2) own or control any securities in a public utility
8-20 or affiliated interest, either directly or indirectly; or
8-21 (3) accept any gift, gratuity, or entertainment
8-22 whatsoever from any public utility or affiliated interest, or from
8-23 any person, corporation, agent, representative, employee, or other
8-24 business entity a significant portion of whose business consists of
8-25 furnishing goods or services to public utilities or affiliated
8-26 interests, or from any agent, representative, attorney, employee,
8-27 officer, owner, director, or partner of any such business entity or
9-1 of any public utility or affiliated interest; provided, however,
9-2 that the receipt and acceptance of any gifts, gratuities, or
9-3 entertainment after termination of service with the commission
9-4 whose cumulative value in any one-year period is less than $100
9-5 does not constitute a violation of this Act.
9-6 (b) The prohibited activities of this section do not include
9-7 contracts for public utility products and services or equipment for
9-8 use of public utility products when a member or employee of the
9-9 commission is acting as a consumer.
9-10 (c) A commissioner or employee of the commission may not
9-11 directly or indirectly solicit or request from or suggest or
9-12 recommend to any public utility or to any agent, representative,
9-13 attorney, employee, officer, owner, director, or partner thereof
9-14 the appointment to any position or the employment in any capacity
9-15 of any person by such public utility or affiliated interest.
9-16 (d) A public utility or affiliated interest or any person,
9-17 corporation, firm, association, or business that furnishes goods or
9-18 services to any public utility or affiliated interest, or any
9-19 agent, representative, attorney, employee, officer, owner,
9-20 director, or partner of any public utility or affiliated interest,
9-21 or any person, corporation, firm, association, or business
9-22 furnishing goods or services to any public utility or affiliated
9-23 interest may not give or offer to give any gift, gratuity,
9-24 employment, or entertainment whatsoever to any member or employee
9-25 of the commission except as allowed by Subdivision (3) of
9-26 Subsection (a) of this section, nor may any such public utility or
9-27 affiliated interest or any such person, corporation, firm,
10-1 association, or business aid, abet, or participate with any member,
10-2 employee, or former employee of the commission in any activity or
10-3 conduct that would constitute a violation of this subsection or
10-4 Subdivision (3) of Subsection (a) of this section.
10-5 (e) It is not a violation of this section if a member of the
10-6 commission or a person employed by the commission, upon becoming
10-7 the owner of any stocks or bonds or other pecuniary interest in a
10-8 public utility or affiliated interest under the jurisdiction of the
10-9 commission otherwise than voluntarily, informs the commission and
10-10 the attorney general of such ownership and divests himself of the
10-11 ownership or interest within a reasonable time. In this section, a
10-12 "pecuniary interest" includes income, compensation, and payment of
10-13 any kind, in addition to ownership interests. It is not a
10-14 violation of this section if such a pecuniary interest is held
10-15 indirectly by ownership of an interest in a retirement system,
10-16 institution, or fund which in the normal course of business invests
10-17 in diverse securities independently of the control of the
10-18 commissioner or employee.
10-19 (f) A member of the commission may not seek nomination or
10-20 election to any other civil office of the State of Texas or of the
10-21 United States while he is a commissioner. If any member of the
10-22 commission files for nomination for or election to any civil office
10-23 of the State of Texas or of the United States, his office as
10-24 commissioner immediately becomes vacant, and the governor shall
10-25 appoint a successor. (Secs. 6(b)-(h))
10-26 Sec. 1.025. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
10-27 (a) A commissioner may not within two years, and an employee may
11-1 not, within one year after his employment with the commission has
11-2 ceased, be employed by a public utility which was in the scope of
11-3 the commissioner's or employee's official responsibility while the
11-4 commissioner or employee was associated with the commission.
11-5 (b) During the time a commissioner or employee of the
11-6 commission is associated with the commission or at any time after,
11-7 the commissioner or employee may not represent a person,
11-8 corporation, or other business entity before the commission or a
11-9 court in a matter in which the commissioner or employee was
11-10 personally involved while associated with the commission or a
11-11 matter that was within the commissioner's or employee's official
11-12 responsibility while the commissioner or employee was associated
11-13 with the commission.
11-14 (c) The commission shall require its members and employees
11-15 to read this section and Section 1.024 of this Act and as often as
11-16 necessary shall provide information regarding their
11-17 responsibilities under applicable laws relating to standards of
11-18 conduct for state officers and employees. (Secs. 6(i)-(k))
11-19 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
11-20 (a) It is a ground for removal from the commission if a member:
11-21 (1) does not have at the time of appointment the
11-22 qualifications required by Section 1.023 of this Act for
11-23 appointment to the commission; or
11-24 (2) does not maintain during the service on the
11-25 commission the qualifications required by Section 1.023 of this Act
11-26 for appointment to the commission.
11-27 (b) The validity of an action of the commission is not
12-1 affected by the fact that it was taken when a ground for removal of
12-2 a member of the commission existed. (Sec. 6A)
12-3 Sec. 1.027. VACANCIES. Whenever a vacancy in the office of
12-4 commissioner occurs, it shall be filled in the manner provided
12-5 herein with respect to the original appointment, except that the
12-6 governor may make interim appointments to continue until the
12-7 vacancy can be filled in the manner provided. Any person appointed
12-8 with the advice and consent of the senate to fill a vacancy shall
12-9 hold office during the unexpired portion of the term. (Sec. 7)
12-10 Sec. 1.028. EMPLOYEES. (a) The commission shall employ
12-11 such officers, administrative law judges, hearing examiners,
12-12 investigators, lawyers, engineers, economists, consultants,
12-13 statisticians, accountants, administrative assistants, inspectors,
12-14 clerical staff, and other employees as it deems necessary to carry
12-15 out the provisions of this Act. All employees receive such
12-16 compensation as is fixed by the legislature.
12-17 (b) The commission shall employ the following:
12-18 (1) an executive director;
12-19 (2) a director of hearings who has wide experience in
12-20 utility regulation and rate determination;
12-21 (3) a chief engineer who is a registered engineer and
12-22 an expert in public utility engineering and rate matters;
12-23 (4) a chief accountant who is a certified public
12-24 accountant, experienced in public utility accounting;
12-25 (5) a director of research who is experienced in the
12-26 conduct of analyses of industry, economics, energy, fuel, and other
12-27 related matters that the commission may want to undertake;
13-1 (6) a director of consumer affairs and public
13-2 information;
13-3 (7) a director of utility evaluation;
13-4 (8) a director of energy conservation; and
13-5 (9) a general counsel.
13-6 (c) The general counsel and his staff are responsible for
13-7 the gathering of information relating to all matters within the
13-8 authority of the commission.
13-9 (d) The duties of the general counsel include:
13-10 (1) accumulation of evidence and other information
13-11 from public utilities and from the accounting and technical and
13-12 other staffs of the commission and from other sources for the
13-13 purposes specified herein;
13-14 (2) preparation and presentation of such evidence
13-15 before the commission or its appointed examiner in proceedings;
13-16 (3) conduct of investigations of public utilities
13-17 under the jurisdiction of the commission;
13-18 (4) preparation of proposed changes in the rules of
13-19 the commission;
13-20 (5) preparation of recommendations that the commission
13-21 undertake investigation of any matter within its authority;
13-22 (6) preparation of recommendations and a report of
13-23 such staff for inclusion in the annual report of the commission;
13-24 (7) protection and representation of the public
13-25 interest and coordination and direction of the preparation and
13-26 presentation of evidence from the commission staff in all cases
13-27 before the commission as necessary to effect the objectives and
14-1 purposes stated in this Act and ensure protection of the public
14-2 interest; and
14-3 (8) such other activities as are reasonably necessary
14-4 to enable him to perform his duties.
14-5 (e) The commission shall employ administrative law judges to
14-6 preside at hearings of major importance before the commission. An
14-7 administrative law judge must be a licensed attorney with not less
14-8 than five years' general experience or three years' experience in
14-9 utility regulatory law. The administrative law judge shall perform
14-10 his duties independently from the commission. (Secs. 8(a)-(d))
14-11 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
14-12 or his designee shall develop an intra-agency career ladder
14-13 program, one part of which shall be the intra-agency posting of all
14-14 nonentry level positions for at least 10 days before any public
14-15 posting. The executive director or his designee shall develop a
14-16 system of annual performance evaluations based on measurable job
14-17 tasks. All merit pay for commission employees must be based on the
14-18 system established under this section.
14-19 (b) The executive director or his/her designee shall prepare
14-20 and maintain a written plan to assure implementation of a program
14-21 of equal employment opportunity whereby all personnel transactions
14-22 are made without regard to race, color, disability, sex, religion,
14-23 age, or national origin. The plan shall include:
14-24 (1) a comprehensive analysis of all the agency's
14-25 workforce by race, sex, ethnic origin, class of position, and
14-26 salary or wage;
14-27 (2) plans for recruitment, evaluation, selection,
15-1 appointment, training, promotion, and other personnel policies;
15-2 (3) steps reasonably designed to overcome any
15-3 identified underutilization of minorities and women in the agency's
15-4 workforce; and
15-5 (4) objectives and goals, timetables for the
15-6 achievement of the objectives and goals, and assignments of
15-7 responsibility for their achievement.
15-8 (c) The plan required under Subsection (b) of this section
15-9 shall be filed with the governor's office within 60 days of the
15-10 effective date of this Act, cover an annual period, and be updated
15-11 at least annually. Progress reports shall be submitted to the
15-12 governor's office within 30 days of November 1 and April 1 of each
15-13 year and shall include the steps the agency has taken within the
15-14 reporting period to comply with these requirements. (Secs.
15-15 8(e)-(f))
15-16 Sec. 1.030. SALARY. The annual salary of the commissioners
15-17 shall be determined by the legislature. (Sec. 9)
15-18 Sec. 1.031. OFFICE; MEETINGS. The principal office of the
15-19 commission shall be located in the City of Austin, Texas, and shall
15-20 be open daily during the usual business hours, Saturdays, Sundays,
15-21 and legal holidays excepted. The commission shall hold meetings at
15-22 its office and at such other convenient places in the state as
15-23 shall be expedient and necessary for the proper performance of its
15-24 duties. (Sec. 10)
15-25 Sec. 1.032. SEAL. The commission shall have a seal bearing
15-26 the following inscription: "Public Utility Commission of Texas."
15-27 The seal shall be affixed to all records and authentications of
16-1 copies of records and to such other instruments as the commission
16-2 shall direct. All courts of this state shall take judicial notice
16-3 of said seal. (Sec. 11)
16-4 Sec. 1.033. QUORUM. A majority of the commissioners shall
16-5 constitute a quorum for the transaction of any business, for the
16-6 performance of any duty, or for the exercise of any power of the
16-7 commission. A vacancy or disqualification does not prevent the
16-8 remaining commissioner or commissioners from exercising all the
16-9 powers of the commission. (Sec. 12)
16-10 Sec. 1.034. ORDERS; TRANSCRIPT AND EXHIBITS; PUBLIC RECORDS.
16-11 All orders of the commission shall be in writing and shall contain
16-12 detailed findings of the facts upon which they are passed. The
16-13 commission shall retain a copy of the transcript and the exhibits
16-14 in any matter in which the commission issues an order. All files
16-15 pertaining to matters which were at any time pending before the
16-16 commission and to records, reports, and inspections required by
16-17 Subtitle E of this title, Title II of this Act, and Title III of
16-18 this Act shall be public records, subject to the terms of Chapter
16-19 552, Government Code. (Sec. 13)
16-20 Sec. 1.035. ANNUAL REPORT. (a) The commission shall
16-21 publish an annual report to the governor, summarizing its
16-22 proceedings, listing its receipts and the sources of its receipts,
16-23 listing its expenditures and the nature of such expenditures, and
16-24 setting forth such other information concerning the operations of
16-25 the commission and the public utility industry as it considers of
16-26 general interest.
16-27 (b) In the annual report issued in the year preceding the
17-1 convening of each regular session of the legislature, the
17-2 commission shall make such suggestions regarding modification and
17-3 improvement of the commission's statutory authority and for the
17-4 improvement of utility regulation in general as it may deem
17-5 appropriate for protecting and furthering the interest of the
17-6 public. (Sec. 14)
17-7 Sec. 1.036. CONSUMER INFORMATION. The commission shall
17-8 prepare information of consumer interest describing the regulatory
17-9 functions of the commission and describing the commission's
17-10 procedures by which consumer complaints are filed with and resolved
17-11 by the commission. The commission shall make the information
17-12 available to the general public and appropriate state agencies.
17-13 (Sec. 14A)
17-14 Sec. 1.037. ATTORNEY GENERAL TO REPRESENT COMMISSION. The
17-15 Attorney General of the State of Texas shall represent the
17-16 commission in all matters before the state courts, any court of the
17-17 United States, and any federal public utility regulatory
17-18 commission. (Sec. 15)
17-19 SUBTITLE C. OFFICE OF PUBLIC UTILITY COUNSEL
17-20 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
17-21 independent Office of Public Utility Counsel represents the
17-22 interests of residential and small commercial consumers.
17-23 (b) The chief executive of the Office of Public Utility
17-24 Counsel is the public utility counsel, hereinafter referred to as
17-25 counsellor. The counsellor is appointed by the governor with the
17-26 advice and consent of the senate to a two-year term that expires on
17-27 February 1 of the final year of the term.
18-1 (c) The counsellor shall be a resident of Texas and admitted
18-2 to the practice of law in this state who has demonstrated a strong
18-3 commitment and involvement in efforts to safeguard the rights of
18-4 the public and possesses the knowledge and experience necessary to
18-5 practice effectively in utility proceedings. (Secs. 15A(a), (b),
18-6 (d))
18-7 Sec. 1.052. INTEREST PROHIBITED. During the period of the
18-8 counsellor's employment and for a period of two years following the
18-9 termination of employment, it shall be unlawful for any person
18-10 employed as counsellor to have a direct or indirect interest in any
18-11 utility company regulated under this Act, to provide legal services
18-12 directly or indirectly to or be employed in any capacity by a
18-13 utility company regulated under this Act, its parent, or its
18-14 subsidiary companies, corporations, or cooperatives; but such
18-15 person may otherwise engage in the private practice of law after
18-16 the termination of employment as counsellor. (Sec. 15A(e))
18-17 Sec. 1.053. EMPLOYEES. The counsellor may employ such
18-18 lawyers, economists, engineers, consultants, statisticians,
18-19 accountants, clerical staff, and other employees as he or she deems
18-20 necessary to carry out the provisions of this section. All
18-21 employees shall receive such compensation as is fixed by the
18-22 legislature from the assessment imposed by Section 1.351 of this
18-23 Act. (Sec. 15A(c))
18-24 Sec. 1.054. POWERS AND DUTIES. (a) The Office of Public
18-25 Utility Counsel:
18-26 (1) shall assess the impact of utility rate changes
18-27 and other regulatory actions on residential consumers in the State
19-1 of Texas and shall be an advocate in its own name of positions most
19-2 advantageous to a substantial number of such consumers as
19-3 determined by the counsellor;
19-4 (2) may appear or intervene as a matter of right as a
19-5 party or otherwise on behalf of residential consumers, as a class,
19-6 in all proceedings before the commission;
19-7 (3) may appear or intervene as a matter of right as a
19-8 party or otherwise on behalf of small commercial consumers, as a
19-9 class, in all proceedings where it is deemed by the counsellor that
19-10 small commercial consumers are in need of representation;
19-11 (4) may initiate or intervene as a matter of right or
19-12 otherwise appear in any judicial proceedings involving or arising
19-13 out of any action taken by an administrative agency in a proceeding
19-14 in which the counsellor was authorized to appear;
19-15 (5) may have access as any party, other than staff, to
19-16 all records gathered by the commission under the authority of
19-17 Subsection (a) of Section 1.203 of this Act;
19-18 (6) may obtain discovery of any nonprivileged matter
19-19 which is relevant to the subject matter involved in any proceeding
19-20 or petition before the commission;
19-21 (7) may represent individual residential and small
19-22 commercial consumers with respect to their disputed complaints
19-23 concerning utility services unresolved before the commission; and
19-24 (8) may recommend legislation to the legislature which
19-25 in its judgment would positively affect the interests of
19-26 residential and small commercial consumers.
19-27 (b) Nothing in this section shall be construed as in any way
20-1 limiting the authority of the commission to represent residential
20-2 or small commercial consumers.
20-3 (c) The appearance of the counsellor in any proceeding in no
20-4 way precludes the appearance of other parties on behalf of
20-5 residential ratepayers or small commercial consumers. The
20-6 counsellor may not be grouped with any other parties. (Secs.
20-7 15A(f)-(h))
20-8 (Sec. 15A(i) deleted)
20-9 SUBTITLE D. COMMISSION JURISDICTION
20-10 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
20-11 (a) The commission has the general power to regulate and supervise
20-12 the business of every public utility within its jurisdiction and to
20-13 do all things, whether specifically designated in this Act or
20-14 implied herein, necessary and convenient to the exercise of this
20-15 power and jurisdiction.
20-16 (b) The commission shall make and enforce rules reasonably
20-17 required in the exercise of its powers and jurisdiction, including
20-18 rules governing practice and procedure before the commission.
20-19 (c) The commission may call and hold hearings, administer
20-20 oaths, receive evidence at hearings, issue subpoenas to compel the
20-21 attendance of witnesses and the production of papers and documents,
20-22 and make findings of fact and decisions with respect to
20-23 administering the provisions of this Act or the rules, orders, or
20-24 other actions of the commission.
20-25 (d) Notwithstanding any other provision of this Act or other
20-26 law, in proceedings other than those involving major rate changes,
20-27 the commission may delegate to an administrative law judge or
21-1 hearings examiner the authority to make a final decision and to
21-2 issue findings of fact, conclusions of law, and other necessary
21-3 orders in a proceeding in which there is no contested issue of fact
21-4 or law. The commission by rule shall define the procedures by
21-5 which it delegates final decision-making authority authorized by
21-6 this section. For review purposes the final decision of the
21-7 administrative law judge or hearings examiner has the same effect
21-8 as a final decision of the commission unless a commissioner
21-9 requests formal review of the decision. (Sec. 16(a))
21-10 Sec. 1.102. AUDITS. (a) The commission shall inquire into
21-11 the management of the business of all public utilities under its
21-12 jurisdiction, shall keep itself informed as to the manner and
21-13 method in which the management and business is conducted, and shall
21-14 obtain from any public utility all necessary information to enable
21-15 the commission to perform management audits.
21-16 (b) The commission may audit each utility under the
21-17 jurisdiction of the commission as frequently as needed, but shall
21-18 audit each utility at least once every 10 years. Six months after
21-19 any audit, the utility shall report to the commission on the status
21-20 of the implementation of the recommendations of the audit and shall
21-21 file subsequent reports at such times as the commission deems
21-22 appropriate. (Sec. 16(h))
21-23 Sec. 1.103. FRANCHISES. Nothing in this Act shall be
21-24 construed as in any way limiting the rights and powers of a
21-25 municipality to grant or refuse franchises to use the streets and
21-26 alleys within its limits and to make the statutory charges for the
21-27 use thereof, but a provision of any franchise agreement may not
22-1 limit or interfere with any power conferred on the commission by
22-2 this Act. (Sec. 21 (part))
22-3 SUBTITLE E. RECORDS, REPORTS, INSPECTIONS, AND SERVICES
22-4 Sec. 1.201. RECORDS OF PUBLIC UTILITY. (a) Every public
22-5 utility shall keep and render to the regulatory authority in the
22-6 manner and form prescribed by the commission uniform accounts of
22-7 all business transacted.
22-8 (b) The commission may also prescribe forms of books,
22-9 accounts, records, and memoranda to be kept by such public
22-10 utilities, including the books, accounts, records, and memoranda of
22-11 the rendition of and capacity for service as well as the receipts
22-12 and expenditures of money, and any other forms, records, and
22-13 memoranda which in the judgment of the commission may be necessary
22-14 to carry out any of the provisions of this Act.
22-15 (c) In the case of any public utility subject to regulations
22-16 by a federal regulatory agency, compliance with the system of
22-17 accounts prescribed for the particular class of utilities by such
22-18 agency may be deemed a sufficient compliance with the system
22-19 prescribed by the commission; provided, however, that the
22-20 commission may prescribe forms of books, accounts, records, and
22-21 memoranda covering information in addition to those required by the
22-22 federal agency. The system of accounts and the forms of books,
22-23 accounts, records, and memoranda prescribed by the commission for a
22-24 public utility or class of utilities may not conflict or be
22-25 inconsistent with the systems and forms established by a federal
22-26 agency for that public utility or class of utilities.
22-27 (d) Every public utility is required to keep and render its
23-1 books, accounts, records, and memoranda accurately and faithfully
23-2 in the manner and form prescribed by the commission and to comply
23-3 with all directions of the regulatory authority relating to such
23-4 books, accounts, records, and memoranda. The regulatory authority
23-5 may require the examination and audit of all accounts.
23-6 (e) For the purposes of this section, "public utility"
23-7 includes "municipally owned utility." (Secs. 27(a), (d), (f))
23-8 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
23-9 have the power to:
23-10 (1) require that public utilities report to it such
23-11 information relating to themselves and affiliated interests both
23-12 within and without the State of Texas as it may consider useful in
23-13 the administration of this Act;
23-14 (2) establish forms for all reports;
23-15 (3) determine the time for reports and the frequency
23-16 with which any reports are to be made;
23-17 (4) require that any reports be made under oath;
23-18 (5) require that a copy of any contract or arrangement
23-19 between any public utility and any affiliated interest be filed
23-20 with it. It may require any such contract or arrangement not in
23-21 writing to be reduced to writing and filed with it;
23-22 (6) require that a copy of any report filed with any
23-23 federal agency or any governmental agency or body of any other
23-24 state be filed with it; and
23-25 (7) require that a copy of annual reports showing all
23-26 payments of compensation (other than salary or wages subject to the
23-27 withholding of federal income tax) to residents of Texas, or with
24-1 respect to legal, administrative, or legislative matters in Texas,
24-2 or for representation before the Texas Legislature or any
24-3 governmental agency or body be filed with it.
24-4 (b) The railroad commission shall have the power to review
24-5 and approve, for purposes of the Outer Continental Shelf Lands Act
24-6 Amendments of 1978 and any other federal authorities, applications
24-7 by gas utilities for the purchase of natural gas from producing
24-8 affiliates.
24-9 (c) On the request of the governing body of any
24-10 municipality, the commission may provide sufficient staff members
24-11 to advise and consult with such municipality on any pending matter.
24-12 (Sec. 28)
24-13 Sec. 1.203. INSPECTIONS; EXAMINATION UNDER OATH; COMPELLING
24-14 PRODUCTION OF RECORDS; INQUIRY INTO MANAGEMENT AND AFFAIRS.
24-15 (a) Any regulatory authority, and when authorized by the
24-16 regulatory authority, its counsel, agents, and employees, shall
24-17 have the right, at reasonable times and for reasonable purposes, to
24-18 inspect and obtain copies of the papers, books, accounts,
24-19 documents, and other business records and to inspect the plant,
24-20 equipment, and other property of any public utility within its
24-21 jurisdiction. The regulatory authority may examine under oath, or
24-22 it may authorize the person conducting such investigation to
24-23 examine under oath, any officer, agent, or employee of any public
24-24 utility in connection with such investigation. The regulatory
24-25 authority may require, by order or subpoena served on any public
24-26 utility, the production within this state at the time and place it
24-27 may designate of any books, accounts, papers, or records kept by
25-1 that public utility outside the state or verified copies in lieu
25-2 thereof if the commission so orders. Any public utility failing or
25-3 refusing to comply with any such order or subpoena is in violation
25-4 of this Act.
25-5 (b) A member, agent, or employee of the regulatory authority
25-6 may enter the premises occupied by a public utility to make
25-7 inspections, examinations, and tests and to exercise any authority
25-8 provided by this Act. A member, agent, or employee of the
25-9 regulatory authority may act under this section only during
25-10 reasonable hours and after giving reasonable notice to the utility.
25-11 The public utility is entitled to be represented when inspections,
25-12 examinations, and tests are made on its premises. Reasonable time
25-13 for the utility to secure a representative shall be allowed before
25-14 commencing an inspection, examination, or test.
25-15 (c) The regulatory authority may inquire into the management
25-16 and affairs of all public utilities and shall keep itself informed
25-17 as to the manner and method in which the same are conducted. (Sec.
25-18 29)
25-19 Sec. 1.204. OFFICE OF PUBLIC UTILITY; RECORDS; REMOVAL FROM
25-20 STATE. Every public utility shall have an office in a county of
25-21 this state in which its property or some part thereof is located in
25-22 which it shall keep all books, accounts, records, and memoranda
25-23 required by the commission to be kept in the state. Books,
25-24 accounts, records, or memoranda required by the regulatory
25-25 authority to be kept in the state may not be removed from the
25-26 state, except on conditions prescribed by the commission. (Sec.
25-27 33)
26-1 Sec. 1.205. COMMUNICATIONS BY PUBLIC UTILITIES WITH
26-2 REGULATORY AUTHORITY; REGULATIONS AND RECORDS. (a) The regulatory
26-3 authority shall prescribe regulations governing communications by
26-4 public utilities, their affiliates, and their representatives with
26-5 the regulatory authority or any member or employee of the
26-6 regulatory authority.
26-7 (b) Such records shall contain the name of the person
26-8 contacting the regulatory authority or member or employee of the
26-9 regulatory authority, the name of the business entities
26-10 represented, a brief description of the subject matter of the
26-11 communication, and the action, if any, requested by the public
26-12 utility, affiliate, or representative. These records shall be
26-13 available to the public on a monthly basis. (Sec. 34)
26-14 Sec. 1.206. INTERFERENCE WITH TERMS OR CONDITIONS OF
26-15 EMPLOYMENT. The commission may not interfere with employee wages
26-16 and benefits, working conditions, or other terms or conditions of
26-17 employment that are the product of a collective bargaining
26-18 agreement recognized under federal law. Employee wage rates and
26-19 benefit levels that are the product of such bargaining shall be
26-20 presumed reasonable. (Sec. 41B)
26-21 SUBTITLE F. SALE OF PROPERTY AND MERGERS
26-22 Sec. 1.251. REPORT OF SALE, MERGER, ETC.; INVESTIGATION;
26-23 DISALLOWANCE OF TRANSACTION. (a) A public utility may not sell,
26-24 acquire, lease, or rent any plant as an operating unit or system in
26-25 this state for a total consideration in excess of $100,000 or merge
26-26 or consolidate with another public utility operating in this state
26-27 unless the public utility reports such transaction to the
27-1 commission within a reasonable time.
27-2 (b) All transactions involving the sale of 50 percent or
27-3 more of the stock of a public utility shall also be reported to the
27-4 commission within a reasonable time. On the filing of a report
27-5 with the commission, the commission shall investigate the same with
27-6 or without public hearing to determine whether the action is
27-7 consistent with the public interest. In reaching its
27-8 determination, the commission shall take into consideration the
27-9 reasonable value of the property, facilities, or securities to be
27-10 acquired, disposed of, merged, or consolidated.
27-11 (c) If the commission finds that such transactions are not
27-12 in the public interest, the commission shall take the effect of the
27-13 transaction into consideration in the ratemaking proceedings and
27-14 disallow the effect of such transaction if it will unreasonably
27-15 affect rates or service.
27-16 (d) The provisions of this section may not be construed as
27-17 being applicable to the purchase of units of property for
27-18 replacement or to the addition to the facilities of the public
27-19 utility by construction. (Sec. 63)
27-20 Sec. 1.252. PURCHASE OF VOTING STOCK IN ANOTHER PUBLIC
27-21 UTILITY: REPORT. A public utility may not purchase voting stock
27-22 in another public utility doing business in Texas, unless the
27-23 utility reports such purchase to the commission. (Sec. 64)
27-24 Sec. 1.253. LOANS TO STOCKHOLDERS: REPORT. A public
27-25 utility may not loan money, stocks, bonds, notes, or other
27-26 evidences of indebtedness to any corporation or person owning or
27-27 holding directly or indirectly any stock of the public utility
28-1 unless the public utility reports the transaction to the commission
28-2 within a reasonable time. (Sec. 65)
28-3 SUBTITLE G. RELATIONS WITH AFFILIATED INTERESTS
28-4 Sec. 1.271. JURISDICTION OVER AFFILIATED INTERESTS. The
28-5 commission shall have jurisdiction over affiliated interests having
28-6 transactions with public utilities under the jurisdiction of the
28-7 commission to the extent of access to all accounts and records of
28-8 such affiliated interests relating to such transactions, including
28-9 but in no way limited to accounts and records of joint or general
28-10 expenses, any portion of which may be applicable to such
28-11 transactions. (Sec. 67)
28-12 Sec. 1.272. DISCLOSURE OF SUBSTANTIAL INTEREST IN VOTING
28-13 SECURITIES. The commission may require the disclosure of the
28-14 identity and respective interests of every owner of any substantial
28-15 interest in the voting securities of any public utility or its
28-16 affiliated interest. One percent or more is a substantial interest
28-17 within the meaning of this section. (Sec. 68)
28-18 SUBTITLE H. JUDICIAL REVIEW
28-19 Sec. 1.301. RIGHT TO JUDICIAL REVIEW; EVIDENCE; COMMISSION
28-20 AS PARTY DEFENDANT. Any party to a proceeding before the
28-21 commission is entitled to judicial review under the substantial
28-22 evidence rule. The commission shall be a party defendant in any
28-23 such proceeding represented by the attorney general. (Sec. 69)
28-24 Sec. 1.302. COSTS AND ATTORNEYS' FEES. (a) Any party
28-25 represented by counsel who alleges that existing rates are
28-26 excessive or that those prescribed by the commission are excessive
28-27 and who is a prevailing party in proceedings for review of a
29-1 commission order or decision may in the same action recover against
29-2 the regulation fund reasonable fees for attorneys and expert
29-3 witnesses and other costs for its efforts before the commission and
29-4 the court, the amount of such attorneys' fees to be fixed by the
29-5 court.
29-6 (b) On a finding by the court that an action under this
29-7 subtitle was groundless and brought in bad faith and for the
29-8 purpose of harassment, the court may award to the defendant public
29-9 utility reasonable attorneys' fees. (Sec. 70)
29-10 SUBTITLE I. VIOLATIONS AND ENFORCEMENT
29-11 Sec. 1.321. ACTION TO ENJOIN OR REQUIRE COMPLIANCE.
29-12 Whenever it appears to the commission that any public utility or
29-13 any other person or corporation is engaged in or is about to engage
29-14 in any act in violation of this Act or of any order, rule, or
29-15 regulation of the commission entered or adopted under the
29-16 provisions of this Act or that any public utility or any other
29-17 person or corporation is failing to comply with the provisions of
29-18 this Act or with any such rule, regulation, or order, the attorney
29-19 general on request of the commission, in addition to any other
29-20 remedies provided herein, shall bring an action in a court of
29-21 competent jurisdiction in the name of and on behalf of the
29-22 commission against such public utility or other person or
29-23 corporation to enjoin the commencement or continuation of any such
29-24 act or to require compliance with such Act, rule, regulation, or
29-25 order. (Sec. 71)
29-26 Sec. 1.322. PENALTY AGAINST PUBLIC UTILITY OR AFFILIATED
29-27 INTEREST. (a) Any public utility, customer-owned pay telephone
30-1 service provider for purposes of Section 3.305 of this Act, or
30-2 affiliated interest that knowingly violates a provision of this
30-3 Act, fails to perform a duty imposed on it, or fails, neglects, or
30-4 refuses to obey an order, rule, regulation, direction, or
30-5 requirement of the commission or decree or judgment of a court
30-6 shall be subject to a civil penalty of not less than $1,000 nor
30-7 more than $5,000 for each offense.
30-8 (b) A public utility or affiliated interest commits a
30-9 separate offense each day it continues to violate the provisions of
30-10 Subsection (a) of this section.
30-11 (c) The attorney general shall institute suit on his own
30-12 initiative or at the request of, in the name of, and on behalf of
30-13 the commission in a court of competent jurisdiction to recover the
30-14 penalty under this section. (Sec. 72)
30-15 Sec. 1.323. PENALTY FOR VIOLATING SECTION 1.024 OF THIS
30-16 ACT. (a) Any member of the commission or any officer or director
30-17 of a public utility or affiliated interest shall be subject to a
30-18 civil penalty of $1,000 for each and every knowing violation of
30-19 Section 1.024 of this Act, such penalty to be recovered in a suit
30-20 filed in a court of competent jurisdiction by the attorney general
30-21 on his own initiative or at the request of, in the name of, and on
30-22 behalf of the commission.
30-23 (b) Any person, other than an officer or director of a
30-24 public utility or affiliated interest or a member of the
30-25 commission, shall be subject to a civil penalty of $500 for each
30-26 and every knowing violation of Section 1.024 of this Act, such
30-27 penalty to be recovered in a suit filed in a court of competent
31-1 jurisdiction by the attorney general on his own initiative or at
31-2 the request of, in the name of, and on behalf of the commission.
31-3 (c) Any member, officer, or employee of the commission found
31-4 in any action by a preponderance of the evidence to have violated
31-5 any provision of Section 1.024 of this Act shall be removed from
31-6 his office or employment. (Sec. 73)
31-7 Sec. 1.324. CIVIL PENALTY FOR VIOLATIONS RESULTING IN
31-8 POLLUTION. (a) If a public utility or any other person or
31-9 corporation under the jurisdiction of the railroad commission
31-10 pursuant to this Act violates this Act and the violation results in
31-11 pollution of the air or water of this state or poses a threat to
31-12 the public safety, the public utility or any other person may be
31-13 assessed a civil penalty by the railroad commission.
31-14 (b) The penalty may not exceed $10,000 a day for each
31-15 violation. Each day a violation continues may be considered a
31-16 separate violation for purposes of penalty assessments.
31-17 (c) In determining the amount of the penalty, the railroad
31-18 commission shall consider the public utility's, person's, or
31-19 corporation's history of previous violations of this Act, the
31-20 seriousness of the violation, any hazard to the health or safety of
31-21 the public, and the demonstrated good faith of the permittee or
31-22 public utility, person, or corporation charged.
31-23 (d) A civil penalty may be assessed only after the public
31-24 utility, person, or corporation charged with a violation described
31-25 under Subsection (a) of this section has been given an opportunity
31-26 for a public hearing.
31-27 (e) If a public hearing has been held, the railroad
32-1 commission shall make findings of fact, and it shall issue a
32-2 written decision as to the occurrence of the violation and the
32-3 amount of the penalty that is warranted, incorporating, when
32-4 appropriate, an order requiring that the penalty be paid.
32-5 (f) If appropriate, the railroad commission shall
32-6 consolidate the hearings with other proceedings under this Act.
32-7 (g) If the public utility, person, or corporation charged
32-8 with the violation fails to avail itself of the opportunity for a
32-9 public hearing, a civil penalty may be assessed by the railroad
32-10 commission after it has determined that a violation did occur and
32-11 the amount of the penalty that is warranted.
32-12 (h) The railroad commission shall then issue an order
32-13 requiring that the penalty be paid.
32-14 (i) On the issuance of an order finding that a violation has
32-15 occurred, the railroad commission shall inform the public utility,
32-16 person, or corporation charged within 30 days of the amount of the
32-17 penalty.
32-18 (j) Within the 30-day period immediately following the day
32-19 on which the decision or order is final as provided by Section
32-20 2001.144, Government Code, the public utility, person, or
32-21 corporation charged with the penalty shall:
32-22 (1) pay the penalty in full; or
32-23 (2) if the public utility, person, or corporation
32-24 seeks judicial review of either the amount of the penalty or the
32-25 fact of the violation, or both:
32-26 (A) forward the amount to the railroad
32-27 commission for placement in an escrow account; or
33-1 (B) in lieu of payment into escrow, post a
33-2 supersedeas bond with the railroad commission under the following
33-3 conditions. If the decision or order being appealed is the first
33-4 final railroad commission decision or order assessing any
33-5 administrative penalty against the public utility, person, or
33-6 corporation, the railroad commission shall accept a supersedeas
33-7 bond. In the case of appeal of any subsequent decision or order
33-8 assessing any administrative penalty against the public utility,
33-9 person, or corporation, regardless of the finality of judicial
33-10 review of any previous decision or order, the railroad commission
33-11 may accept a supersedeas bond. Each supersedeas bond shall be for
33-12 the amount of the penalty and in a form approved by the railroad
33-13 commission and shall stay the collection of the penalty until all
33-14 judicial review of the decision or order is final.
33-15 (k) If through judicial review of the decision or order it
33-16 is determined that no violation occurred or that the amount of the
33-17 penalty should be reduced or not assessed, the railroad commission
33-18 shall, within the 30-day period immediately following that
33-19 determination, if the penalty has been paid to the railroad
33-20 commission, remit the appropriate amount to the public utility,
33-21 person, or corporation with accrued interest, or where a
33-22 supersedeas bond has been posted, the railroad commission shall
33-23 execute a release of such bond.
33-24 (l) Failure to forward the money to the railroad commission
33-25 within the time provided by Subsection (j) of this section results
33-26 in a waiver of all legal rights to contest the violation or the
33-27 amount of the penalty.
34-1 (m) Civil penalties owed under this section may be recovered
34-2 in a civil action brought by the attorney general at the request of
34-3 the railroad commission.
34-4 (n) Judicial review of the order or decision of the railroad
34-5 commission assessing the penalty shall be under the substantial
34-6 evidence rule and shall be instituted by filing a petition with the
34-7 district court of Travis County, Texas, and not elsewhere, as
34-8 provided by Subchapter G, Chapter 2001, Government Code. (Sec.
34-9 73A)
34-10 Sec. 1.325. PERSONAL PENALTY. (a) Except as provided by
34-11 Section 3.301 of this Act, any person or persons who wilfully and
34-12 knowingly violate the provisions of this Act shall be guilty of a
34-13 third degree felony.
34-14 (b) All penalties accruing under this Act shall be
34-15 cumulative, and a suit for the recovery of any penalty does not bar
34-16 or affect the recovery of any other penalty or bar any criminal
34-17 prosecution against any public utility or any officer, director,
34-18 agent, or employee thereof or any other corporation or person.
34-19 (Sec. 74)
34-20 Sec. 1.326. CONTEMPT PROCEEDINGS. If any person fails to
34-21 comply with any lawful order of the commission or with any subpoena
34-22 or subpoena duces tecum or if any witness refuses to testify about
34-23 any matter on which he may be lawfully interrogated, the commission
34-24 may apply to any court of competent jurisdiction to compel
34-25 obedience by proceedings for contempt. (Sec. 75)
34-26 Sec. 1.327. DISPOSITION OF FINES AND PENALTIES. Fines and
34-27 penalties collected under this Act in other than criminal
35-1 proceedings shall be paid to the commission and paid by the
35-2 commission to the state treasury to be placed in the general
35-3 revenue fund. (Sec. 76)
35-4 Sec. 1.328. VENUE. Suits for injunction or penalties under
35-5 the provisions of this Act may be brought in Travis County, in any
35-6 county where such violation is alleged to have occurred, or in the
35-7 county or residence of any defendant. (Sec. 77)
35-8 SUBTITLE J. COMMISSION FINANCING
35-9 Sec. 1.351. ASSESSMENTS UPON PUBLIC UTILITIES. (a) An
35-10 assessment is imposed on each public utility within the
35-11 commission's jurisdiction, including interexchange
35-12 telecommunications carriers, serving the ultimate consumer equal to
35-13 one-sixth of one percent of its gross receipts from rates charged
35-14 the ultimate consumers in Texas for the purpose of defraying the
35-15 costs and expenses incurred in the administration of this Act.
35-16 (b) The commission shall, subject to the approval of the
35-17 legislature, adjust this assessment to provide a level of income
35-18 sufficient to fund the commission and the office of public utility
35-19 counsel.
35-20 (c) Nothing in this Act or any other provision of law shall
35-21 prohibit interexchange telecommunications carriers who do not
35-22 provide local exchange telephone service from collecting the fee
35-23 imposed under this Act as an additional item separately stated on
35-24 the customer bill as "Utility Gross Receipts Assessment." (Sec.
35-25 78)
35-26 Sec. 1.352. PAYMENT DATES; DELINQUENCY. (a) All
35-27 assessments shall be due on August 15 of each year. Any public
36-1 utility may instead make quarterly payments due on August 15,
36-2 November 15, February 15, and May 15 of each year.
36-3 (b) There shall be assessed as a penalty an additional fee
36-4 of 10 percent of the amount due for any late payment. Fees
36-5 delinquent for more than 30 days shall draw interest at the rate of
36-6 12 percent per annum on the assessment and penalty due. (Sec. 79)
36-7 Sec. 1.353. PAYMENT OF ASSESSMENTS. (a) For the
36-8 assessments covered by this section, assessments are due as
36-9 provided by this section notwithstanding Section 1.352 of this Act,
36-10 based on a public utility's estimate of its gross receipts.
36-11 (b) For the assessment due August 15, 1995, 50 percent of
36-12 the assessment must be paid by August 15, 1994, and 50 percent must
36-13 be paid by February 15, 1995.
36-14 (c) For the assessment due August 15, 1996, 50 percent of
36-15 the assessment must be paid by August 15, 1995, and 50 percent must
36-16 be paid by February 15, 1996.
36-17 (d) For the assessment due August 15, 1997, 50 percent of
36-18 the assessment must be paid by August 15, 1996, and the remainder
36-19 must be paid by August 15, 1997.
36-20 (e) Any assessment amounts underpaid on assessments due on
36-21 August 15, 1995, or August 15, 1996, must be paid by those
36-22 respective dates. Any assessment amounts overpaid shall be
36-23 credited against following assessments.
36-24 (f) This section expires September 1, 1997. (Sec. 79A)
36-25 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
36-26 FUND. All fees, penalties, and interest paid under the provisions
36-27 of Sections 1.351 and 1.352 of this Act shall be collected by the
37-1 comptroller of public accounts and paid into the general revenue
37-2 fund. The commission shall notify the comptroller of public
37-3 accounts of any adjustment of the assessment imposed in Section
37-4 1.351 when made. (Sec. 80)
37-5 Sec. 1.355. APPROVAL OF BUDGET. The budget of the
37-6 commission shall be subject to legislative approval as part of the
37-7 appropriations act. (Sec. 81)
37-8 Sec. 1.356. ACCOUNTING RECORDS; AUDIT. The commission shall
37-9 keep such accounting records as required by the comptroller. The
37-10 financial transactions of the commission are subject to audit by
37-11 the state auditor in accordance with Chapter 321, Government Code.
37-12 (Sec. 82)
37-13 SUBTITLE K. MISCELLANEOUS PROVISIONS
37-14 Sec. 1.401. COMPLAINT BY ANY AFFECTED PERSON. (a) Any
37-15 affected person may complain to the regulatory authority in writing
37-16 setting forth any act or thing done or omitted to be done by any
37-17 public utility in violation or claimed violation of any law which
37-18 the regulatory authority has jurisdiction to administer or of any
37-19 order, ordinance, rule, or regulation of the regulatory authority.
37-20 The commission shall keep an information file about each complaint
37-21 filed with the commission relating to a utility. The commission
37-22 shall retain the file for a reasonable period.
37-23 (b) If a written complaint is filed with the commission
37-24 relating to a utility, the commission, at least as frequently as
37-25 quarterly and until final disposition of the complaint, shall
37-26 notify the parties to the complaint of the status of the complaint
37-27 unless the notice would jeopardize an undercover investigation.
38-1 (c) Any affected person may complain to the regulatory
38-2 authority in writing setting forth any act or thing done or not
38-3 done by any recreational vehicle park owner that provides metered
38-4 electric service under Article 1446d-2, Revised Statutes, in
38-5 violation or claimed violation of any law that the regulatory
38-6 authority has jurisdiction to administer or of any order,
38-7 ordinance, rule, or regulation of the regulatory authority. The
38-8 commission shall keep an information file about each complaint
38-9 filed with the commission relating to a recreational vehicle park
38-10 owner. The commission shall retain the file for a reasonable
38-11 period. The commission, quarterly or more often until final
38-12 disposition of the written complaint, shall notify the parties to
38-13 the complaint of the status of the complaint unless the notice
38-14 would jeopardize an undercover investigation. (Sec. 83)
38-15 Sec. 1.402. RECORD OF PROCEEDINGS; RIGHT TO HEARING. A
38-16 record shall be kept of all proceedings had before the regulatory
38-17 authority, and all the parties shall be entitled to be heard in
38-18 person or by attorney. (Sec. 84)
38-19 Sec. 1.403. JUDICIAL STAY OR SUSPENSION OF ORDER, RULING, OR
38-20 DECISION. During the pendency of an appeal, the district court,
38-21 the court of civil appeals, or the supreme court, as the case may
38-22 be, may stay or suspend in whole or in part the operation of the
38-23 regulatory authority order, ruling, or decision and such courts in
38-24 granting or refusing a stay or suspension shall act in accordance
38-25 with the practice of courts exercising equity jurisdiction. (Sec.
38-26 85)
38-27 (Secs. 87 and 87A deleted)
39-1 Sec. 1.404. LIBERAL CONSTRUCTION. This Act shall be
39-2 construed liberally to promote the effectiveness and efficiency of
39-3 regulation of public utilities to the extent that such construction
39-4 preserves the validity of this Act and its provisions. The
39-5 provisions of this Act shall be construed to apply so as not to
39-6 conflict with any authority of the United States. (Sec. 89)
39-7 (Sec. 90 deleted)
39-8 Sec. 1.405. TERMINATING SERVICES TO ELDERLY AND DISABLED;
39-9 CRITERIA AND GUIDELINES; ESTABLISHMENT. The Public Utility
39-10 Commission is authorized to establish criteria and guidelines with
39-11 the utility industry relating to procedures employed by the
39-12 industry in terminating services to the elderly and disabled.
39-13 (Sec. 91)
39-14 Sec. 1.406. SEVERABILITY. If any provision of this Act or
39-15 the application thereof to any person or circumstances is held
39-16 invalid, such invalidity does not affect other provisions or
39-17 applications of this Act which can be given effect without the
39-18 invalid provision or application, and to this end the provisions of
39-19 this Act are declared to be severable. (Sec. 92)
39-20 TITLE II. ELECTRIC UTILITIES
39-21 SUBTITLE A. GENERAL PROVISIONS
39-22 Sec. 2.001. DEFINITIONS. In this title, "electric utility"
39-23 or "utility" means any person, corporation, river authority,
39-24 cooperative corporation, or any combination thereof, other than a
39-25 municipal corporation, or their lessees, trustees, and receivers,
39-26 now or hereafter owning or operating for compensation in this state
39-27 equipment or facilities for producing, generating, transmitting,
40-1 distributing, selling, or furnishing electricity; provided,
40-2 however, that this definition may not be construed to apply to or
40-3 include a qualifying small power producer or qualifying
40-4 cogenerator, as defined in Sections 3(17)(D) and 3(18)(C) of the
40-5 Federal Power Act, as amended (16 U.S.C. Sections 796(17)(D) and
40-6 796(18)(C)). The term does not include any person or corporation
40-7 not otherwise an electric utility that:
40-8 (1) furnishes the services or commodity described in
40-9 this section only to itself, its employees, or its tenants as an
40-10 incident of such employee service or tenancy, when such service or
40-11 commodity is not resold to or used by others;
40-12 (2) owns or operates in this state equipment or
40-13 facilities for producing, generating, transmitting, distributing,
40-14 selling, or furnishing electric energy to an electric utility, if
40-15 the equipment or facilities are used primarily for the production
40-16 and generation of electric energy for consumption by the person or
40-17 corporation; or
40-18 (3) owns or operates in this state a recreational
40-19 vehicle park that provides metered electric service in accordance
40-20 with Article 1446d-2, Revised Statutes, provided that a
40-21 recreational vehicle park owner is considered an electric utility
40-22 if the owner fails to comply with Article 1446d-2, Revised
40-23 Statutes, with regard to the metered sale of electricity at the
40-24 recreational vehicle park. (Sec. 3(c) (part))
40-25 Sec. 2.002. COMMISSION AS RESOURCE CENTER; DEVELOPMENT OF
40-26 ENERGY EFFICIENT SCHOOL FACILITIES. The commission may serve as a
40-27 resource center to assist school districts in developing energy
41-1 efficient facilities. As such, the commission may:
41-2 (1) present to school districts programs relating to
41-3 managing energy, training school-plant operators, and designing
41-4 energy efficient buildings;
41-5 (2) provide school districts with technical assistance
41-6 in managing energy;
41-7 (3) collect and distribute information relating to
41-8 energy management in school facilities; and
41-9 (4) offer to educators energy resource workshops and
41-10 make available to educators a film library on energy-related
41-11 matters and energy education lesson packages. (Sec. 88A)
41-12 SUBTITLE B. ELECTRICAL PLANNING
41-13 Sec. 2.051. ELECTRICAL FORECAST. (a) The commission shall
41-14 develop a long-term statewide electrical energy forecast which
41-15 shall be sent to the governor biennially. The forecast will
41-16 include an assessment of how alternative energy sources,
41-17 conservation, and load management will meet the state's electricity
41-18 needs.
41-19 (b) Every generating electric utility in the state shall
41-20 prepare and transmit to the commission every two years a report
41-21 specifying at least a 10-year forecast for assessments of load and
41-22 resources for its service area. The report shall include a list of
41-23 facilities which will be required to supply electric power during
41-24 the forecast periods. The report shall be in a form prescribed by
41-25 the commission. The report shall include:
41-26 (1) a tabulation of estimated peak load, resources,
41-27 and reserve margins for each year during the forecast or assessment
42-1 period;
42-2 (2) a list of existing electric generating plants in
42-3 service with a description of planned and potential generating
42-4 capacity at existing sites;
42-5 (3) a list of facilities which will be needed to serve
42-6 additional electrical requirements identified in the forecasts or
42-7 assessments, the general location of such facilities, and the
42-8 anticipated types of fuel to be utilized in the proposed
42-9 facilities, including an estimation of shutdown costs and disposal
42-10 of spent fuel for nuclear power plants;
42-11 (4) a description of additional system capacity which
42-12 might be achieved through, among other things, improvements in:
42-13 (A) generating or transmission efficiency;
42-14 (B) importation of power;
42-15 (C) interstate or interregional pooling;
42-16 (D) other improvements in efficiencies of
42-17 operation; and
42-18 (E) conservation measures;
42-19 (5) an estimation of the mix and type of fuel
42-20 resources for the forecast or assessment period;
42-21 (6) an annual load duration curve and a forecast of
42-22 anticipated peak loads for the forecast or assessment period for
42-23 the residential, commercial, industrial, and such other major
42-24 demand sectors in the service area of the electric utility as the
42-25 commission shall determine; and
42-26 (7) a description of projected population growth,
42-27 urban development, industrial expansion, and other growth factors
43-1 influencing increased demand for electric energy and the basis for
43-2 such projections.
43-3 (c) The commission shall establish and every electric
43-4 utility shall utilize a reporting methodology for preparation of
43-5 the forecasts of future load and resources.
43-6 (d) The commission shall review and evaluate the electric
43-7 utilities' forecast of load and resources and any public comment on
43-8 population growth estimates prepared by the Bureau of Business
43-9 Research, The University of Texas at Austin.
43-10 (e) Within 12 months after the receipt of the reports
43-11 required by this section, the commission shall hold a public
43-12 hearing and subsequently issue a final report to the governor and
43-13 notify every electric utility of the commission's electric forecast
43-14 for that utility. The commission shall consider its electric
43-15 forecast in all certification proceedings covering new generation
43-16 plants. (Secs. 16(b)-(f))
43-17 Sec. 2.052. ENCOURAGEMENT OF ECONOMICAL PRODUCTION. The
43-18 commission shall make and enforce rules to encourage the economical
43-19 production of electric energy by qualifying cogenerators and
43-20 qualifying small power producers. (Sec. 16(g))
43-21 SUBTITLE C. MUNICIPAL JURISDICTION
43-22 Sec. 2.101. JURISDICTION OF MUNICIPALITY; SURRENDER;
43-23 ORIGINAL AND APPELLATE JURISDICTION OF COMMISSION. (a) Subject to
43-24 the limitations imposed in this Act, and for the purpose of
43-25 regulating rates and services so that such rates may be fair, just,
43-26 and reasonable, and the services adequate and efficient, the
43-27 governing body of each municipality shall have exclusive original
44-1 jurisdiction over all electric utility rates, operations, and
44-2 services provided by an electric utility within its city or town
44-3 limits.
44-4 (b) A municipality may elect to have the commission exercise
44-5 exclusive original jurisdiction over electric utility rates,
44-6 operations, and services within the incorporated limits of the
44-7 municipality. The governing body of a municipality may by
44-8 ordinance elect to surrender its original jurisdiction to the
44-9 commission, or the governing body may submit the question of the
44-10 surrender to the qualified voters at a municipal election. Upon
44-11 receipt of a petition signed by the lesser of 20,000 or 10 percent
44-12 of the number of qualified voters voting in the last preceding
44-13 general election in that municipality, the governing body shall
44-14 submit the question of the surrender of the municipality's original
44-15 jurisdiction to the commission at a municipal election.
44-16 (c) A municipality that surrenders its jurisdiction to the
44-17 commission may at any time, by vote of the electorate, reinstate
44-18 the jurisdiction of the governing body; provided, however, that any
44-19 municipality which reinstates its jurisdiction shall be unable to
44-20 surrender that jurisdiction for five years after the date of the
44-21 election at which the municipality elected to reinstate its
44-22 jurisdiction. A municipality may not, by vote of the electorate,
44-23 reinstate the jurisdiction of the governing body during the
44-24 pendency of any case before the commission involving the
44-25 municipality.
44-26 (d) The commission shall have exclusive appellate
44-27 jurisdiction to review orders or ordinances of such municipalities
45-1 as provided in this Act.
45-2 (e) The commission shall have exclusive original
45-3 jurisdiction over electric utility rates, operations, and services
45-4 not within the incorporated limits of a municipality exercising
45-5 exclusive original jurisdiction over those rates, operations, and
45-6 services as provided in this Act. (Sec. 17)
45-7 Sec. 2.102. MUNICIPALLY OWNED UTILITIES. Nothing in this
45-8 subtitle shall be construed to confer on the commission power or
45-9 jurisdiction to regulate or supervise the rates or service of any
45-10 utility owned and operated by any municipality within its
45-11 boundaries either directly or through a municipally owned
45-12 corporation or to affect or limit the power, jurisdiction, or
45-13 duties of the municipalities that have elected to regulate and
45-14 supervise electric utilities within their boundaries, except as
45-15 provided in this Act. (Sec. 20)
45-16 Sec. 2.103. FRANCHISES. If a municipality performs
45-17 regulatory functions under this Act, it may make such other charges
45-18 as may be provided in the applicable franchise agreement, together
45-19 with any other charges permitted by this Act. (Sec. 21 (part))
45-20 Sec. 2.104. LOCAL UTILITY SERVICE; EXEMPT AND NONEXEMPT
45-21 AREAS. (a) Notwithstanding any other provision of this section,
45-22 municipalities shall continue to regulate each kind of local
45-23 utility service inside their boundaries until the commission has
45-24 assumed jurisdiction over the respective utility pursuant to this
45-25 Act.
45-26 (b) If a municipality does not surrender its jurisdiction,
45-27 local utility service within the boundaries of the municipality
46-1 shall be exempt from regulation by the commission under the
46-2 provisions of this Act to the extent that this Act applies to local
46-3 service, and the municipality shall have, regarding service within
46-4 its boundaries, the right to exercise the same regulatory powers
46-5 under the same standards and rules as the commission or other
46-6 standards and rules not inconsistent therewith.
46-7 (c) Notwithstanding any such election, the commission may
46-8 consider an electric utility's revenues and return on investment in
46-9 exempt areas in fixing rates and charges in nonexempt areas, and
46-10 may also exercise the powers conferred necessary to give effect to
46-11 orders under this Act, for the benefit of nonexempt areas.
46-12 Likewise, in fixing rates and charges in the exempt area, the
46-13 governing body may consider an electric utility's revenues and
46-14 return on investment in nonexempt areas.
46-15 (d) Utilities serving exempt areas shall be subject to the
46-16 reporting requirements of this Act. Such reports shall be filed
46-17 with the governing body of the municipality as well as with the
46-18 commission.
46-19 (e) Nothing in this section shall limit the duty and power
46-20 of the commission to regulate service and rates of municipally
46-21 regulated utilities for service provided to other areas in Texas.
46-22 (Sec. 22)
46-23 Sec. 2.105. RATE DETERMINATION. (a) Any municipality
46-24 regulating its electric utilities pursuant to this Act shall
46-25 require from those utilities all necessary data to make a
46-26 reasonable determination of rate base, expenses, investment, and
46-27 rate of return within the municipal boundaries.
47-1 (b) The standards for such determination shall be based on
47-2 the procedures and requirements of this Act, and said municipality
47-3 shall retain any and all personnel necessary to make the
47-4 determination of reasonable rates required under this Act. (Sec.
47-5 23)
47-6 Sec. 2.106. RATEMAKING PROCEEDINGS; ENGAGEMENT OF
47-7 CONSULTANTS, ACCOUNTANTS, AUDITORS, ATTORNEYS, AND ENGINEERS;
47-8 STANDING. (a) The governing body of any municipality
47-9 participating in or conducting ratemaking proceedings shall have
47-10 the right to select and engage rate consultants, accountants,
47-11 auditors, attorneys, engineers, or any combination thereof to
47-12 conduct investigations, present evidence, advise and represent the
47-13 governing body, and assist with litigation in electric utility
47-14 ratemaking proceedings before the governing body, any regulatory
47-15 authority, or in court. The electric utility engaged in such
47-16 proceedings shall be required to reimburse the governing body for
47-17 the reasonable costs of such services to the extent found
47-18 reasonable by the applicable regulatory authority.
47-19 (b) Municipalities shall have standing in all cases before
47-20 the commission regarding utilities serving within their corporate
47-21 limits subject to the right of the commission to determine standing
47-22 in cases involving retail service area disputes involving two or
47-23 more utilities and to consolidate municipalities on issues of
47-24 common interest and shall be entitled to judicial review of orders
47-25 regarding said proceedings in accordance with Section 1.301 of this
47-26 Act. (Sec. 24)
47-27 Sec. 2.107. ASSISTANCE OF COMMISSION. The commission may
48-1 advise and assist municipalities upon request in connection with
48-2 questions and proceedings arising under this Act. Such assistance
48-3 may include aid to municipalities in connection with matters
48-4 pending before the commission or the courts or before the governing
48-5 body of any municipality, including making members of the staff
48-6 available as witnesses and otherwise providing evidence to them.
48-7 (Sec. 25)
48-8 Sec. 2.108. APPEAL. (a) Any party to a rate proceeding
48-9 before the governing body of a municipality may appeal the decision
48-10 of the governing body to the commission.
48-11 (b) Citizens of a municipality may appeal the decision of
48-12 the governing body in any rate proceeding to the commission through
48-13 the filing of a petition for review signed by the lesser of 20,000
48-14 or 10 percent of the number of qualified voters of such
48-15 municipality.
48-16 (c)(1) Ratepayers of a municipally owned electric utility
48-17 outside the municipal limits may appeal any action of the governing
48-18 body affecting the rates of the municipally owned electric utility
48-19 through filing with the commission a petition for review signed by
48-20 the lesser of 10,000 or five percent of the ratepayers served by
48-21 such utility outside the municipal limits. For purposes of this
48-22 subsection each person receiving a separate bill shall be
48-23 considered as a ratepayer. But a person is not considered as being
48-24 more than one ratepayer notwithstanding the number of bills
48-25 received. Such petition for review shall be considered properly
48-26 signed if signed by any person, or spouse of any such person, in
48-27 whose name residential utility service is carried.
49-1 (2) The municipality that owns the electric utility
49-2 shall on request disclose to any person the number of ratepayers
49-3 who reside outside the municipal limits. The municipality shall
49-4 provide the information by telephone or in a written form, as
49-5 preferred by the person making the request. The municipality may
49-6 not charge a fee for providing the information. The municipality
49-7 shall on request provide to any person a list of the names and
49-8 addresses of the ratepayers who reside outside the municipal
49-9 limits. The municipality may charge a reasonable fee to cover the
49-10 cost of providing the list.
49-11 (3) Not later than the 14th day after the date on
49-12 which the governing body makes a final decision, the municipality
49-13 shall issue a written report stating the effect of the decision on
49-14 each class of ratepayers. The appeal process shall be instituted
49-15 by filing a petition for review with the commission and serving
49-16 copies on all parties to the original rate proceeding. The
49-17 petition must be filed not later than the 45th day after the date
49-18 on which the municipality issues the written report prescribed by
49-19 this subsection.
49-20 (4) Not later than the 90th day after the date on
49-21 which a petition for review that meets the requirements of this
49-22 subsection is filed, the municipality shall file with the
49-23 commission a rate application that complies in all material
49-24 respects with the rules and forms prescribed by the commission.
49-25 The commission may, for good cause shown, extend the period for
49-26 filing the rate application.
49-27 (d) Any municipally owned electric utility whose rates have
50-1 been or are appealed under Subsection (c) of this section, and for
50-2 which the commission has ordered or orders a decrease in annual
50-3 nonfuel base revenues which exceeds the greater of $25,000,000 or
50-4 10 percent of the utility's nonfuel base revenues, as calculated on
50-5 a total system basis (without regard to the municipal utility's
50-6 corporate boundaries) and established in the rate ordinance or
50-7 ordinances appealed from, and for which the commission has found or
50-8 finds that the rates paid by the combined residential or any other
50-9 major customer class (other than any class or classes where the
50-10 city is itself the customer of the municipally owned utility) are
50-11 removed from cost-of-service levels to the extent that, under the
50-12 nonfuel base revenue requirement adopted by the commission (as
50-13 computed on a total system basis without regard to the
50-14 municipality's corporate boundaries), a change in nonfuel base rate
50-15 revenues in excess of 50 percent from adjusted test year levels
50-16 would be required to move that class to a relative rate of return
50-17 of unity (1.00 or 100 percent) under the cost-of-service
50-18 methodology adopted by the commission in an appeal under Subsection
50-19 (c) of this section, shall thereafter be subject to the following:
50-20 (1) For a period of 10 years beginning on the later of
50-21 August 28, 1989, or the effective date of the rate ordinance which
50-22 was the subject of the commission's final order invoking the
50-23 application of this subsection, the commission shall have appellate
50-24 jurisdiction over the rates charged by the municipally owned
50-25 utility, both inside and outside such municipality's corporate
50-26 limits, in the same manner and subject to the same commission
50-27 powers and authority as set forth in this Act for electric
51-1 utilities, but specifically limited as follows:
51-2 (A) The commission shall have the jurisdiction
51-3 to review the cost allocation and rate design methodologies adopted
51-4 by the city council or other governing body of the municipally
51-5 owned utility subject to this subsection.
51-6 (i) If the commission finds that such
51-7 cost-of-service methodologies result in rates which are unjust,
51-8 unreasonable, or unreasonably discriminatory or unduly preferential
51-9 to any customer class, then the commission may order the
51-10 implementation of ratesetting methodologies which the commission
51-11 finds reasonable.
51-12 (ii) The commission shall ensure that a
51-13 customer class, other than any class or classes where the city is
51-14 itself the customer of the municipally owned utility, does not pay
51-15 rates which result in a relative rate of return exceeding 115
51-16 percent under the cost-of-service methodology found reasonable by
51-17 the commission, provided that a customer class may not experience a
51-18 percentage base rate increase that is greater than 1 1/2 times the
51-19 system average base increase. In moving above-cost classes toward
51-20 cost-of-service levels, those classes farthest above cost shall be
51-21 moved sequentially toward cost, such that no above-cost class moves
51-22 toward cost until no other class or classes are further removed
51-23 from cost.
51-24 (iii) The municipality may, as a matter of
51-25 intra-class rate design, design residential rates to accomplish
51-26 reasonable energy conservation goals, notwithstanding any other
51-27 provision of this Act.
52-1 (B) The commission's jurisdiction under this
52-2 subsection may be invoked by any party to the local rate
52-3 proceedings required by this subsection, in the same manner as
52-4 appeals of the rates of electric utilities under Subsection (a) of
52-5 this section. Provided, however, that the commission's
52-6 jurisdiction under this subsection does not extend to the
52-7 municipally owned utility's revenue requirements, whether base rate
52-8 or fuel revenues, its invested capital, its return on invested
52-9 capital, its debt service coverage ratio, or the level of any
52-10 transfer of revenues from the utility to the municipality's general
52-11 fund.
52-12 (2) The city council or other governing board of a
52-13 municipally owned utility subject to this subsection shall
52-14 establish procedures similar to those procedures employed by
52-15 municipalities which have retained original jurisdiction under
52-16 Section 2.101(a) of this Act to regulate electric utilities
52-17 operating within such municipalities' corporate boundaries. Such
52-18 procedures shall include a public hearing process in which affected
52-19 ratepayers are granted party status on request and are grouped for
52-20 purposes of participation in accordance with their common or
52-21 divergent interests, including but not limited to the particular
52-22 interests of all-electric and out-of-city residential ratepayers.
52-23 Provided, however, that nothing in this Act or this subsection
52-24 shall require the city council or governing board of the
52-25 municipally owned utility to which this subsection applies to
52-26 employ or establish procedures that require the use of the Texas
52-27 Rules of Evidence, the Texas Rules of Civil Procedure, or the
53-1 presentation of sworn testimony or other forms of sworn evidence.
53-2 The city council or other governing board shall appoint a consumer
53-3 advocate to represent the interests of residential and small
53-4 commercial ratepayers in the municipality's local rate proceedings.
53-5 The consumer advocate's reasonable costs of participation in said
53-6 proceedings, including the reasonable costs of ratemaking
53-7 consultants and expert witnesses, shall be funded by and recovered
53-8 from such residential and small commercial ratepayers.
53-9 (3) The commission shall establish rules applicable to
53-10 any party to an appeal under Subsection (c) of this section that
53-11 provide for the public disclosure of financial and in-kind
53-12 contributions and expenditures related to the preparation and
53-13 filing of a petition for appeal and in preparation of expert
53-14 testimony or legal representation for an appeal. Any party or
53-15 customer who is a member of a party who makes a financial
53-16 contribution or in-kind contribution to assist in an appeal of
53-17 another party or customer class under Subsection (c) of this
53-18 section shall, upon a finding of the commission to that effect, be
53-19 required to pay the municipally owned utility a penalty equivalent
53-20 in amount to two times the contribution. Nothing in this
53-21 subsection shall be construed to limit the right of any party or
53-22 customer to expend funds to represent its own interests following
53-23 the filing of a petition with the commission under Subsection (c)
53-24 of this section.
53-25 (e) Any municipally owned electric utility whose rates have
53-26 been or are appealed under Subsection (c) of this section, and for
53-27 which the commission has ordered or orders a decrease in annual
54-1 nonfuel base revenues which exceeds the greater of $25,000,000 or
54-2 10 percent of the utility's nonfuel base revenues, as calculated on
54-3 a total system basis (without regard to the municipal utility's
54-4 corporate boundaries) and established in the rate ordinance or
54-5 ordinances appealed from, and for which the commission has found or
54-6 finds that the rates paid by the combined residential or any other
54-7 major customer class (other than any class or classes where the
54-8 city is itself the customer of the municipally owned utility) are
54-9 removed from cost-of-service levels to the extent that, under the
54-10 nonfuel base revenue requirement adopted by the commission (as
54-11 computed on a total system basis without regard to the
54-12 municipality's corporate boundaries), a change in nonfuel base rate
54-13 revenues in excess of 50 percent from adjusted test year levels
54-14 would be required to move that class to a relative rate of return
54-15 of unity (1.00 or 100 percent) under the cost-of-service
54-16 methodology adopted by the commission in an appeal under Subsection
54-17 (c) of this section, shall thereafter be subject to the following:
54-18 (1) For a period of 10 years beginning on the later of
54-19 August 28, 1989, or the effective date of the rate ordinance which
54-20 was the subject of the commission's final order invoking the
54-21 application of this subsection, the commission shall have appellate
54-22 jurisdiction over the rates charged by the municipally owned
54-23 utility, outside the municipality's corporate limits, in the manner
54-24 and to the extent provided in this subsection.
54-25 (2) Ratepayers of a municipally owned utility subject
54-26 to this subsection who reside outside the municipality's corporate
54-27 limits may appeal any action of the governing body affecting the
55-1 rates charged by the municipally owned electric utility outside the
55-2 corporate limits through filing with the commission a petition for
55-3 review in accordance with the same procedures, requirements, and
55-4 standards applicable to appeals brought under Subsection (c) of
55-5 this section, except as otherwise specifically provided in this
55-6 subsection. The petition for review must plainly disclose that the
55-7 cost of bringing and pursuing the appeal will be funded by a
55-8 surcharge on the monthly electric bills of outside-city ratepayers
55-9 in a manner prescribed by the commission.
55-10 (A) Upon commission approval of the sufficiency
55-11 of a petition, the appellants shall submit for the approval of the
55-12 Office of Public Utility Counsel a budget itemizing the scope and
55-13 expected cost of consultant services to be purchased by the
55-14 appellants in connection with the appeal.
55-15 (B) After a final order has been entered by the
55-16 commission in the appeal, the consultant and legal costs approved
55-17 by public counsel as reasonable shall be assessed by the
55-18 municipality on a per capita basis among residential ratepayers who
55-19 reside outside the municipality. Surcharges shall be assessed in a
55-20 one-time charge not later than 120 days following entry of the
55-21 commission's final order. Costs incurred by the appellants shall
55-22 be reimbursed by the municipality within not later than 90 days
55-23 following the date the commission enters its final order.
55-24 (C) The municipality may not include the costs
55-25 associated with its defense of an appeal under this subsection in
55-26 the rates of outside-city ratepayers. Nor shall the municipality,
55-27 if it appeals from an order entered by the commission under this
56-1 subsection, include the costs associated with its appeal in the
56-2 rates of ratepayers who reside outside the city.
56-3 (D) Ratepayers who appeal under this subsection
56-4 may not receive funding for rate case expenses except from
56-5 residential ratepayers who reside outside the municipality's
56-6 boundaries or from other municipalities inside whose corporate
56-7 limits the municipally owned utility provides service. The
56-8 commission shall adopt rules for the reporting of financial and
56-9 in-kind contributions in support of appeals brought under this
56-10 subsection. Upon a finding by the commission that an appellant has
56-11 received contributions from any source other than outside-city
56-12 ratepayers or such other municipalities, the appeal and orders of
56-13 the commission entered therein shall be null and void.
56-14 (3) In appeals under this subsection, the commission
56-15 shall have jurisdiction and authority to review and ensure that the
56-16 revenue requirements of any municipally owned utility subject to
56-17 this subsection are reasonable, but such jurisdiction and authority
56-18 does not extend to regulation of the use and level of any transfer
56-19 of the utility's revenues to the municipality's general fund. The
56-20 commission shall also have jurisdiction and authority to review the
56-21 cost allocation and rate design methodologies adopted by the
56-22 governing body of the municipally owned utility. If the commission
56-23 finds that such cost-of-service methodologies result in rates which
56-24 are unjust, unreasonable, or unreasonably discriminatory or unduly
56-25 preferential to any customer class, then the commission may order
56-26 the implementation of ratesetting methodologies which the
56-27 commission finds reasonable; provided, however, that the
57-1 commission's jurisdiction under this subsection does not encompass
57-2 matters of intra-class residential rate design.
57-3 (4) An intervenor in an appeal brought under this
57-4 subsection shall be limited to presenting testimony and evidence on
57-5 cost allocation and rate design methodologies, except that
57-6 intervenors may present evidence and testimony in support of the
57-7 municipality on issues related to utility revenues.
57-8 (5) An appellant ratepayer residing outside the
57-9 corporate limits of a municipally owned utility subject to this
57-10 subsection shall, in appealing from a rate ordinance or other
57-11 ratesetting action of the municipality's governing board, elect to
57-12 petition for review under either Subsection (c) of this section or
57-13 this subsection.
57-14 (f) The appeal process shall be instituted within 30 days of
57-15 the final decision by the governing body with the filing of a
57-16 petition for review with the commission and copies served on all
57-17 parties to the original rate proceeding.
57-18 (g) The commission shall hear such appeal de novo based on
57-19 the test year presented to the municipality and by its final order
57-20 shall fix such rates as the municipality should have fixed in the
57-21 ordinance from which the appeal was taken. In the event that the
57-22 commission fails to enter its final order: (1) for proceedings
57-23 involving the rates of a municipally owned utility, within 185 days
57-24 from the date on which the appeal is perfected or on which the
57-25 utility files a rate application as prescribed by Subsection (c) of
57-26 this section; or (2) for proceedings in which similar relief has
57-27 also been concurrently sought from the commission under its
58-1 original jurisdiction, within 120 days from the date such appeal is
58-2 perfected or the date upon which final action must be taken in the
58-3 similar proceedings so filed with the commission whichever shall
58-4 last occur; or (3) in all other proceedings, within 185 days from
58-5 the date such appeal is perfected, the schedule of rates proposed
58-6 by the utility shall be deemed to have been approved by the
58-7 commission and effective upon the expiration of said applicable
58-8 period. Any rates, whether temporary or permanent, set by the
58-9 commission shall be prospective and observed from and after the
58-10 applicable order of the commission, except interim rate orders
58-11 necessary to effect uniform system-wide rates. (Sec. 26--Subsec.
58-12 (c) fixed)
58-13 SUBTITLE D. RATES AND SERVICES
58-14 Sec. 2.151. RATES; METHODS AND ACCOUNTS. (a) The
58-15 commission shall fix proper and adequate rates and methods of
58-16 depreciation, amortization, or depletion of the several classes of
58-17 property of each electric utility and shall require every electric
58-18 utility to carry a proper and adequate depreciation account in
58-19 accordance with such rates and methods and with such other rules
58-20 and regulations as the commission prescribes. Such rates, methods,
58-21 and accounts shall be utilized uniformly and consistently
58-22 throughout the ratesetting and appeal proceedings.
58-23 (b) Every electric utility shall keep separate accounts to
58-24 show all profits or losses resulting from the sale or lease of
58-25 appliances, fixtures, equipment, or other merchandise. This profit
58-26 or loss may not be taken into consideration by the regulatory
58-27 authority in arriving at any rate to be charged for service by any
59-1 such electric utility, to the extent that such merchandise is not
59-2 integral to the provision of utility service.
59-3 (c) In determining the allocation of tax savings derived
59-4 from application of such methods as liberalized depreciation and
59-5 amortization and the investment tax credit, the regulatory
59-6 authority shall equitably balance the interests of present and
59-7 future customers and shall apportion such benefits between
59-8 consumers and the electric utilities accordingly. Where any
59-9 portion of the investment tax credit has been retained by an
59-10 electric utility, that same amount shall be deducted from the
59-11 original cost of the facilities or other addition to the rate base
59-12 to which the credit applied, to the extent allowed by the Internal
59-13 Revenue Code.
59-14 (d) For the purposes of this section, "electric utility"
59-15 includes "municipally owned utility." (Secs. 27(b), (c), (e), (f))
59-16 Sec. 2.152. REPORTING OF ADVERTISING OR PUBLIC RELATIONS
59-17 EXPENSES. (a) The regulatory authority may require an annual
59-18 reporting from each utility company of all its expenditures for
59-19 business gifts and entertainment and for institutional,
59-20 consumption-inducing, and other advertising or public relations
59-21 expenses.
59-22 (b) The regulatory authority may not allow as costs or
59-23 expenses for ratemaking purposes any of these expenditures which
59-24 the regulatory authority determines not to be in the public
59-25 interest.
59-26 (c) The cost of legislative advocacy expenses may not in any
59-27 case be allowed as costs or expenses for ratemaking purposes.
60-1 (d) Reasonable charitable or civic contributions may be
60-2 allowed not to exceed the amount approved by the regulatory
60-3 authority. (Sec. 30)
60-4 Sec. 2.153. UNLAWFUL RATES, RULES, AND REGULATIONS. It
60-5 shall be unlawful for any utility to charge, collect, or receive
60-6 any rate for electric utility service or to impose any rule or
60-7 regulation other than as herein provided. (Sec. 31)
60-8 Sec. 2.154. FILING SCHEDULE OF RATES, RULES, AND
60-9 REGULATIONS. (a) Every electric utility shall file with each
60-10 regulatory authority schedules showing all rates which are subject
60-11 to the original or appellate jurisdiction of the regulatory
60-12 authority and which are in force at the time for any electric
60-13 utility service, product, or commodity offered by the utility.
60-14 (b) Every electric utility shall file with, and as a part of
60-15 such schedules, all rules and regulations relating to or affecting
60-16 the rates, electric utility service, product, or commodity
60-17 furnished by such utility. (Sec. 32)
60-18 Sec. 2.155. STANDARDS OF SERVICE. (a) Every electric
60-19 utility shall furnish such service, instrumentalities, and
60-20 facilities as shall be safe, adequate, efficient, and reasonable.
60-21 (b) The regulatory authority after reasonable notice and
60-22 hearing had on its own motion or on complaint may:
60-23 (1) ascertain and fix just and reasonable standards,
60-24 classifications, regulations, or practices to be observed and
60-25 followed by any or all electric utilities with respect to the
60-26 service to be furnished;
60-27 (2) ascertain and fix adequate and reasonable
61-1 standards for the measurement of the quantity, quality, pressure,
61-2 initial voltage, or other condition pertaining to the supply of the
61-3 service;
61-4 (3) prescribe reasonable regulations for the
61-5 examination and testing of the service and for the measurement
61-6 thereof; and
61-7 (4) establish or approve reasonable rules,
61-8 regulations, specifications, and standards to secure the accuracy
61-9 of all meters, instruments, and equipment used for the measurement
61-10 of any service of any electric utility.
61-11 (c) Any standards, classifications, regulations, or
61-12 practices now or hereafter observed or followed by any electric
61-13 utility may be filed by it with the regulatory authority, and the
61-14 same shall continue in force until amended by the electric utility
61-15 or until changed by the regulatory authority as herein provided.
61-16 (d) Notwithstanding any other provision of law, all lines
61-17 owned by an electric utility for the transmission and/or
61-18 distribution of electric energy shall be constructed, operated, and
61-19 maintained, as to clearances, in accordance with the National
61-20 Electrical Safety Code Standard ANSI (c)(2), as adopted by the
61-21 American National Safety Institute and in effect at the time of
61-22 construction. (Sec. 35)
61-23 Sec. 2.156. EXAMINATION AND TEST OF EQUIPMENT. (a) The
61-24 regulatory authority may examine and test any meter, instrument, or
61-25 equipment used for the measurement of any service of any electric
61-26 utility and may enter any premises occupied by any electric utility
61-27 for the purpose of making such examinations and tests and
62-1 exercising any power provided for in this Act and may set up and
62-2 use on such premises any apparatus and appliances necessary
62-3 therefor. The electric utility shall have the right to be
62-4 represented at the making of the examinations, tests, and
62-5 inspections. The electric utility and its officers and employees
62-6 shall facilitate the examinations, tests, and inspections by giving
62-7 every reasonable aid to the regulatory authority and any person or
62-8 persons designated by the regulatory authority for the duties
62-9 aforesaid.
62-10 (b) Any consumer or user may have any meter or measuring
62-11 device tested by the utility once without charge, after a
62-12 reasonable period to be fixed by the regulatory authority by rule,
62-13 and at shorter intervals on payment of reasonable fees fixed by the
62-14 regulatory authority. The regulatory authority shall declare and
62-15 establish reasonable fees to be paid for other examining and
62-16 testing of such meters and other measuring devices on the request
62-17 of the consumer. If the test is requested to be made within the
62-18 period of presumed accuracy as fixed by the regulatory authority
62-19 since the last such test of the same meter or other measuring
62-20 device, the fee to be paid by the consumer or user at the time of
62-21 his request shall be refunded to the consumer or user if the meter
62-22 or measuring device is found unreasonably defective or incorrect to
62-23 the substantial disadvantage of the consumer or user. If the
62-24 consumer's request is made at a time beyond the period of presumed
62-25 accuracy fixed by the regulatory authority since the last such test
62-26 of the same meter or measuring device, the utility shall make the
62-27 test without charge to the consumer or user. (Sec. 36)
63-1 SUBTITLE E. PROCEEDINGS BEFORE THE REGULATORY AUTHORITY
63-2 Sec. 2.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
63-3 Subject to the provisions of this Act, the commission is hereby
63-4 vested with all authority and power of the State of Texas to insure
63-5 compliance with the obligations of electric utilities in this Act.
63-6 For this purpose the regulatory authority is empowered to fix and
63-7 regulate rates of electric utilities, including rules and
63-8 regulations for determining the classification of customers and
63-9 services and for determining the applicability of rates. A rule or
63-10 order of the regulatory authority may not conflict with the rulings
63-11 of any federal regulatory body. (Sec. 37)
63-12 Sec. 2.202. JUST AND REASONABLE RATES. It shall be the duty
63-13 of the regulatory authority to insure that every rate made,
63-14 demanded, or received by any electric utility or by any two or more
63-15 electric utilities jointly shall be just and reasonable. Rates may
63-16 not be unreasonably preferential, prejudicial, or discriminatory,
63-17 but shall be sufficient, equitable, and consistent in application
63-18 to each class of consumers. For ratemaking purposes, the
63-19 commission may treat two or more municipalities served by an
63-20 electric utility as a single class wherever it deems such treatment
63-21 to be appropriate. (Sec. 38 (part))
63-22 Sec. 2.203. FIXING OVERALL REVENUES. (a) In fixing the
63-23 rates of an electric utility, the regulatory authority shall fix
63-24 its overall revenues at a level which will permit such utility a
63-25 reasonable opportunity to earn a reasonable return on its invested
63-26 capital used and useful in rendering service to the public over and
63-27 above its reasonable and necessary operating expenses.
64-1 (b) In fixing a reasonable return on invested capital, the
64-2 regulatory authority shall consider, in addition to other
64-3 applicable factors, efforts to comply with the statewide energy
64-4 plan, the efforts and achievements of such utility in the
64-5 conservation of resources, the quality of the utility's services,
64-6 the efficiency of the utility's operations, and the quality of the
64-7 utility's management. (Sec. 39)
64-8 Sec. 2.204. BURDEN OF PROOF. Except as hereafter provided,
64-9 in any proceeding involving any proposed change of rates, the
64-10 burden of proof to show that the proposed change, if proposed by
64-11 the utility, or that the existing rate, if it is proposed to reduce
64-12 the rate, is just and reasonable shall be on the electric utility.
64-13 (Sec. 40 (part))
64-14 Sec. 2.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME.
64-15 The components of invested capital and net income shall be
64-16 determined according to Sections 2.206, 2.207, and 2.208. (Sec. 41
64-17 (part))
64-18 Sec. 2.206. INVESTED CAPITAL. (a) Utility rates shall be
64-19 based on the original cost of property used by and useful to the
64-20 electric utility in providing service, including construction work
64-21 in progress at cost as recorded on the books of the utility.
64-22 (b) The inclusion of construction work in progress is an
64-23 exceptional form of rate relief to be granted only upon the
64-24 demonstration by the utility that such inclusion is necessary to
64-25 the financial integrity of the utility. Construction work in
64-26 progress may not be included in the rate base for major projects
64-27 under construction to the extent that such projects have been
65-1 inefficiently or imprudently planned or managed.
65-2 (c) Original cost shall be the actual money cost, or the
65-3 actual money value of any consideration paid other than money, of
65-4 the property at the time it shall have been dedicated to public
65-5 use, whether by the utility which is the present owner or by a
65-6 predecessor, less depreciation. (Sec. 41(a))
65-7 Sec. 2.207. SEPARATIONS AND ALLOCATIONS. Costs of
65-8 facilities, revenues, expenses, taxes, and reserves shall be
65-9 separated or allocated as prescribed by the regulatory authority.
65-10 (Sec. 41(b))
65-11 Sec. 2.208. NET INCOME. (a) Net Income. "Net income"
65-12 means the total revenues of the electric utility less all
65-13 reasonable and necessary expenses as determined by the regulatory
65-14 authority. The regulatory authority shall determine expenses and
65-15 revenues in a manner consistent with this section.
65-16 (b) Transactions with Affiliated Interests. Payment to
65-17 affiliated interests for costs of any services or any property,
65-18 right, or thing or for interest expense may not be allowed either
65-19 as capital cost or as expense except to the extent that the
65-20 regulatory authority shall find such payment to be reasonable and
65-21 necessary for each item or class of items as determined by the
65-22 commission. Any such finding shall include specific findings of
65-23 the reasonableness and necessity of each item or class of items
65-24 allowed and a finding that the price to the utility is no higher
65-25 than prices charged by the supplying affiliate to its other
65-26 affiliates or divisions for the same item or class of items or to
65-27 unaffiliated persons or corporations. The price paid by gas
66-1 utilities to affiliated interests for natural gas from Outer
66-2 Continental Shelf lands shall be subject to a rebuttable
66-3 presumption that such price is reasonable if the price paid does
66-4 not exceed the price permitted by federal regulation if such gas is
66-5 regulated by any federal agency or if not regulated by a federal
66-6 agency does not exceed the price paid by nonaffiliated parties for
66-7 natural gas from Outer Continental Shelf lands. The burden of
66-8 establishing that such a price paid is not reasonable shall be on
66-9 any party challenging the reasonableness of such price.
66-10 (c) Income Taxes. If the electric utility is a member of an
66-11 affiliated group that is eligible to file a consolidated income tax
66-12 return and if it is advantageous to the electric utility to do so,
66-13 income taxes shall be computed as though a consolidated return had
66-14 been so filed and the utility had realized its fair share of the
66-15 savings resulting from the consolidated return, unless it is shown
66-16 to the satisfaction of the regulatory authority that it was
66-17 reasonable to choose not to consolidate returns. The amounts of
66-18 income taxes saved by a consolidated group of which an electric
66-19 utility is a member by reason of the elimination in the
66-20 consolidated return of the intercompany profit on purchases by the
66-21 electric utility from an affiliate shall be applied to reduce the
66-22 cost of the property or services so purchased. The investment tax
66-23 credit allowed against federal income taxes, to the extent retained
66-24 by the utility, shall be applied as a reduction in the rate-based
66-25 contribution of the assets to which such credit applies, to the
66-26 extent and at such rate as allowed by the Internal Revenue Code.
66-27 (d) Expenses Disallowed. The regulatory authority may not
67-1 consider for ratemaking purposes the following expenses:
67-2 (1) legislative advocacy expenses, whether made
67-3 directly or indirectly, including but not limited to legislative
67-4 advocacy expenses included in trade association dues;
67-5 (2) payments, except those made under an insurance or
67-6 risk-sharing arrangement executed before the date of loss, made to
67-7 cover costs of an accident, equipment failure, or negligence at a
67-8 utility facility owned by a person or governmental body not selling
67-9 power inside the State of Texas;
67-10 (3) costs of processing a refund or credit under
67-11 Subsection (e) of Section 2.212 of this Act; or
67-12 (4) any expenditure found by the regulatory authority
67-13 to be unreasonable, unnecessary, or not in the public interest,
67-14 including but not limited to executive salaries, advertising
67-15 expenses, legal expenses, and civil penalties or fines.
67-16 (e) Rules. The regulatory authority may promulgate
67-17 reasonable rules and regulations with respect to the allowance or
67-18 disallowance of any expenses for ratemaking purposes. (Sec. 41(c))
67-19 Sec. 2.209. COGENERATOR OR SMALL-POWER PRODUCER; AGREEMENT
67-20 WITH ELECTRIC UTILITY FOR PURCHASE OF CAPACITY; CERTIFICATION BY
67-21 COMMISSION. (a) In this section "qualifying facility" means a
67-22 qualifying cogenerator or a qualifying small-power producer, as
67-23 defined by Sections 3(18)(C) and 3(17)(D), respectively, Federal
67-24 Power Act (16 U.S.C. Sections 796(18)(C) and 796(17)(D)).
67-25 (b) If an electric utility and a qualifying facility enter
67-26 into an agreement providing for the purchase of capacity, the
67-27 electric utility or qualifying facility may submit a copy of the
68-1 agreement to the commission for certification under this section.
68-2 The agreement may provide that it is contingent on that
68-3 certification. Before the deadline specified by Subsection (d) of
68-4 this section, the commission shall determine whether:
68-5 (1) the payments provided for in the agreement over
68-6 the contract term are equal to or less than the utility's avoided
68-7 costs as established by the commission and in effect at the time
68-8 the agreement was signed; contracts entered into before the
68-9 effective date of this section may not be submitted for
68-10 certification by the commission; and
68-11 (2) the agreement provides the electric utility the
68-12 opportunity to acquire the cogeneration or small-power production
68-13 installation before the installation is offered to another
68-14 purchaser in the event of its abandonment, or provides other
68-15 sufficient assurance that the electric utility will be provided
68-16 with a comparable supply of electricity, if the qualifying facility
68-17 ceases to operate the installation.
68-18 (c) If the commission determines that the agreement meets
68-19 the requirements of Subdivisions (1) and (2) of Subsection (b) of
68-20 this section, it shall certify that the agreement meets these
68-21 requirements. If the commission does not make a determination
68-22 under Subsection (b) of this section before the deadline specified
68-23 by Subsection (d) of this section, the agreement is considered to
68-24 meet the requirements of Subdivisions (1) and (2) of Subsection (b)
68-25 of this section and certification is considered granted. A
68-26 certification is effective until the earlier of 15 years after the
68-27 date of the certification or the expiration date of the agreement.
69-1 (d) The commission shall make its determination under this
69-2 section within 90 days after the date that the agreement is
69-3 submitted, unless before this deadline the electric utility, the
69-4 qualifying facility, or an affected person requests a hearing or
69-5 the commission on its own motion decides to hold a hearing. If a
69-6 hearing is requested or the commission decides to hold a hearing,
69-7 the commission shall hold the hearing and make its determination
69-8 within 120 days after the date that the agreement is submitted,
69-9 except that this deadline is extended two days for each day in
69-10 excess of five days on which the commission conducts a hearing on
69-11 the merits of the case.
69-12 (e) In setting the electric utility's rates for a period
69-13 during which the certification is effective, the regulatory
69-14 authority shall consider payments made under the agreement to be
69-15 reasonable and necessary operating expenses of the electric
69-16 utility. The regulatory authority shall allow full, concurrent,
69-17 and monthly recovery of the amount of the payments. (Sec. 41A)
69-18 Sec. 2.210. SELF-INSURANCE. (a) An electric utility may
69-19 self-insure all or a portion of its potential liability or
69-20 catastrophic property loss, including windstorm, fire, and
69-21 explosion losses which could not have been reasonably anticipated
69-22 and included under operating and maintenance expenses. The
69-23 commission shall approve a self-insurance plan under this section
69-24 if it finds that the coverage is in the public interest and the
69-25 plan is a lower cost alternative to purchasing commercial
69-26 insurance, considering all costs, and that ratepayers will receive
69-27 the benefits of that saving.
70-1 (b) In computing a utility's reasonable and necessary
70-2 expenses under Section 2.208 of this Act, the regulatory authority
70-3 shall allow as a necessary expense the funds credited to reserve
70-4 accounts for the self-insurance, to the extent the regulatory
70-5 authority finds it in the public interest. After the reserve
70-6 account is established, the regulatory authority shall consider if
70-7 the reserve account has a surplus or shortage in determining the
70-8 utility's rate base. A surplus in the reserve account will exist
70-9 if the charges against the reserve account are less than the funds
70-10 credited to the reserve. A shortage in the reserve account will
70-11 exist if the charges against the account are greater than the funds
70-12 credited to the reserve. The regulatory authority shall subtract
70-13 any surplus from and add any shortage to the rate base.
70-14 (c) The regulatory authority shall determine reasonableness
70-15 under Subsection (b) of this section from information provided at
70-16 the time the self-insurance plan and reserve account are
70-17 established and upon the filing of each rate case by a utility that
70-18 has such a fund.
70-19 (d) The commission shall adopt rules governing
70-20 self-insurance under this section.
70-21 (e) The allowance for self-insurance under this Act for
70-22 ratemaking purposes will not be applicable to nuclear plant
70-23 investment. (Sec. 41B)
70-24 Sec. 2.211. UNREASONABLE OR VIOLATIVE EXISTING RATES;
70-25 INVESTIGATING COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE.
70-26 (a) Whenever the regulatory authority, after reasonable notice and
70-27 hearing, on its own motion or on complaint by any affected person,
71-1 finds that the existing rates of any electric utility for any
71-2 service are unreasonable or in any way in violation of any
71-3 provision of law, the regulatory authority shall determine the just
71-4 and reasonable rates, including maximum or minimum rates, to be
71-5 thereafter observed and in force and shall fix the same by order to
71-6 be served on the electric utility, and such rates shall constitute
71-7 the legal rates of the electric utility until changed as provided
71-8 in this Act.
71-9 (b) Whenever an electric utility does not itself produce or
71-10 generate that which it distributes, transmits, or furnishes to the
71-11 public for compensation but obtains the same from another source,
71-12 the regulatory authority shall have the power and authority to
71-13 investigate the cost of such production or generation in any
71-14 investigation of the reasonableness of the rates of such electric
71-15 utility. (Sec. 42)
71-16 Sec. 2.212. STATEMENT OF INTENT TO CHANGE RATES; MAJOR
71-17 CHANGES; HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF
71-18 RATE LEVEL. (a) A utility may not make changes in its rates
71-19 except by filing a statement of intent with the regulatory
71-20 authority having original jurisdiction at least 35 days prior to
71-21 the effective date of the proposed change. The statement of intent
71-22 shall include proposed revisions of tariffs and schedules and a
71-23 statement specifying in detail each proposed change, the effect the
71-24 proposed change is expected to have on the revenues of the company,
71-25 the classes and numbers of utility consumers affected, and such
71-26 other information as may be required by the regulatory authority's
71-27 rules and regulations. A copy of the statement of intent shall be
72-1 mailed or delivered to the appropriate officer of each affected
72-2 municipality, and notice shall be given by publication in
72-3 conspicuous form and place of a notice to the public of such
72-4 proposed change once in each week for four successive weeks prior
72-5 to the effective date of the proposed change in a newspaper having
72-6 general circulation in each county containing territory affected by
72-7 the proposed change and by mail to such other affected persons as
72-8 may be required by the regulatory authority's rules and
72-9 regulations. The regulatory authority may waive the publication of
72-10 notice requirement prescribed by this subsection in a proceeding
72-11 that involves a rate reduction for all affected ratepayers only.
72-12 The applicant shall give notice of the proposed rate change by mail
72-13 to all affected utility customers. The regulatory authority by
72-14 rule shall also define other proceedings for which the publication
72-15 of notice requirement prescribed by this subsection may be waived
72-16 on a showing of good cause, provided that a waiver may not be
72-17 granted in any proceeding involving a rate increase to any class or
72-18 category of ratepayer.
72-19 (b) The regulatory authority, for good cause shown, may,
72-20 except in the case of major changes, allow changes in rate to take
72-21 effect prior to the end of such 35-day period under such conditions
72-22 as it may prescribe, subject to suspension as provided herein. All
72-23 such changes shall be indicated immediately upon its schedules by
72-24 such utility. "Major changes" shall mean an increase in rates
72-25 which would increase the aggregate revenues of the applicant more
72-26 than the greater of $100,000 or 2-1/2 percent, but does not include
72-27 changes in rates allowed to go into effect by the regulatory
73-1 authority or made by the utility pursuant to an order of the
73-2 regulatory authority after hearings held upon notice to the public.
73-3 (c) Whenever there is filed with the regulatory authority
73-4 any schedule modifying or resulting in a change in any rates then
73-5 in force, the regulatory authority shall on complaint by any
73-6 affected person or may on its own motion, at any time within 30
73-7 days from the date when such change would or has become effective,
73-8 and, if it so orders, without answer or other formal pleading by
73-9 the utility, but on reasonable notice, including notice to the
73-10 governing bodies of all affected municipalities and counties, enter
73-11 on a hearing to determine the propriety of such change. The
73-12 regulatory authority shall hold such a hearing in every case in
73-13 which the change constitutes a major change in rates, provided that
73-14 an informal proceeding may satisfy this requirement if a complaint
73-15 has not been received before the expiration of 45 days after notice
73-16 of the change shall have been filed. In each case where the
73-17 commission determines it is in the public interest to collect
73-18 testimony at a regional hearing for inclusion in the record, the
73-19 commission shall hold a regional hearing at an appropriate
73-20 location. A regional hearing is not required in a case involving a
73-21 member-owned utility, unless the commission determines otherwise.
73-22 (d) Pending the hearing and decision, the local regulatory
73-23 authority, after delivery to the affected utility of a statement in
73-24 writing of its reasons therefor, may suspend the operation of the
73-25 schedule for a period not to exceed 90 days beyond the date on
73-26 which the schedule of rates would otherwise go into effect, and the
73-27 commission may suspend the operation of the schedule for a period
74-1 not to exceed 150 days beyond the date on which the schedule would
74-2 otherwise go into effect. If the regulatory authority does not
74-3 make a final determination concerning any schedule of rates prior
74-4 to expiration of the period or periods of suspension, the schedule
74-5 shall be deemed to have been approved by the regulatory authority.
74-6 However, the 150-day period shall be extended two days for each one
74-7 day of actual hearing on the merits of the case that exceeds 15
74-8 days. This approval is subject to the authority of the regulatory
74-9 authority thereafter to continue a hearing in progress. The
74-10 regulatory authority may in its discretion fix temporary rates for
74-11 any period of suspension under this section. During the suspension
74-12 by the regulatory authority as above provided, the rates in force
74-13 when the suspended schedule was filed shall continue in force
74-14 unless the regulatory authority shall establish a temporary rate.
74-15 The regulatory authority shall give preference to the hearing and
74-16 decision of questions arising under this section over all other
74-17 questions pending before it and decide the same as speedily as
74-18 possible.
74-19 (e) If the 150-day period has been extended, as provided for
74-20 in Subsection (d) of this section, and the commission fails to make
74-21 its final determination of rates within 150 days from the date that
74-22 the proposed change otherwise would have gone into effect, the
74-23 utility concerned may put a changed rate, not to exceed the
74-24 proposed rate, into effect on the filing with the regulatory
74-25 authority of a bond payable to the regulatory authority in an
74-26 amount and with sureties approved by the regulatory authority
74-27 conditioned upon refund and in a form approved by the regulatory
75-1 authority. The utility concerned shall refund or credit against
75-2 future bills all sums collected during the period of suspension in
75-3 excess of the rate finally ordered plus interest at the current
75-4 rate as finally determined by the regulatory authority.
75-5 (f) If, after hearing, the regulatory authority finds the
75-6 rates to be unreasonable or in any way in violation of any
75-7 provision of law, the regulatory authority shall determine the
75-8 level of rates to be charged or applied by the utility for the
75-9 service in question and shall fix the same by order to be served
75-10 upon the utility; these rates are thereafter to be observed until
75-11 changed, as provided by this Act.
75-12 (g)(1) A rate or tariff set by the commission may not
75-13 authorize a utility to automatically adjust and pass through to its
75-14 customers changes in fuel or other costs of the utility.
75-15 (2)(A) Any revision of a utility's billings to its
75-16 customers to allow for the recovery of additional fuel costs may be
75-17 made only upon a public hearing and order of the commission.
75-18 (B) The commission may consider any evidence
75-19 that is appropriate and in the public interest at such hearing.
75-20 (C) A proceeding under this subsection may not
75-21 be considered a rate case under this section.
75-22 (3) The commission may, after a hearing, grant interim
75-23 relief for fuel cost increases that are the result of unusual and
75-24 emergency circumstances or conditions.
75-25 (4)(A) This subsection applies only to increases or
75-26 decreases in the cost of purchased electricity which have been:
75-27 (i) accepted by a federal regulatory
76-1 authority; or
76-2 (ii) approved after a hearing by the
76-3 commission.
76-4 (B) The commission may utilize any appropriate
76-5 method to provide for the adjustment of the cost of purchased
76-6 electricity upon such terms and conditions as the commission may
76-7 determine. Such purchased electricity costs may be recovered
76-8 concurrently with the effective date of the changed costs to the
76-9 purchasing utility or as soon thereafter as is reasonably
76-10 practical.
76-11 (old Subsec. (h) deleted)
76-12 (h) The commission on its own motion or on the petition of a
76-13 utility shall provide for the adjustment of a utility's billing to
76-14 reflect any increase or decrease of tax liability of the utility to
76-15 the state resulting from Chapter 5, Acts of the 72nd Legislature,
76-16 1st Called Session, 1991, and that is attributable to activities
76-17 that are subject to the jurisdiction of the commission. Any
76-18 adjustment to billings under this section must be apportioned
76-19 pro-rata to all types and classes of service provided by the
76-20 utility and is effective only until the commission alters the
76-21 adjustment as provided by this subsection or enters an order for
76-22 the utility under this section or Section 2.211 of this Act. The
76-23 adjustment of billings must be made effective at the same time as
76-24 the increase or decrease of tax liability resulting from Chapter 5,
76-25 Acts of the 72nd Legislature, 1st Called Session, 1991, or as soon
76-26 after as is reasonably practical. Each year after any original
76-27 adjustment, the commission shall review the utility's increase or
77-1 decrease of tax liability resulting from Chapter 5, Acts of the
77-2 72nd Legislature, 1st Called Session, 1991, and alter the
77-3 adjustment to reflect the increase or decrease. A proceeding under
77-4 this subsection is not a rate case under this section. (Sec. 43)
77-5 Sec. 2.213. RATES FOR AREAS NOT WITHIN MUNICIPALITY.
77-6 Electric utility rates for areas not within any municipality may
77-7 not exceed without commission approval 115 percent of the average
77-8 of all rates for similar services of all municipalities served by
77-9 the same utility within the same county. (Sec. 44)
77-10 Sec. 2.214. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
77-11 OR SERVICES. An electric utility may not, as to rates or services,
77-12 make or grant any unreasonable preference or advantage to any
77-13 corporation or person within any classification or subject any
77-14 corporation or person within any classification to any unreasonable
77-15 prejudice or disadvantage. An electric utility may not establish
77-16 and maintain any unreasonable differences as to rates of service
77-17 either as between localities or as between classes of service.
77-18 (Sec. 45)
77-19 Sec. 2.215. EQUALITY OF RATES AND SERVICES. (a) An
77-20 electric utility may not, directly or indirectly, by any device
77-21 whatsoever or in any manner, charge, demand, collect, or receive
77-22 from any person a greater or less compensation for any service
77-23 rendered or to be rendered by the utility than that prescribed in
77-24 the schedule of rates of the electric utility applicable thereto
77-25 when filed in the manner provided in this Act, nor may any person
77-26 knowingly receive or accept any service from an electric utility
77-27 for a compensation greater or less than that prescribed in the
78-1 schedules.
78-2 (b) Nothing in this Act shall prevent a cooperative
78-3 corporation from returning to its members the whole or any part of
78-4 the net earnings resulting from its operations in proportion to
78-5 their purchases from or through the corporation. (Sec. 46)
78-6 Sec. 2.216. DISCRIMINATION; RESTRICTION ON COMPETITION. An
78-7 electric utility may not discriminate against any person or
78-8 corporation that sells or leases equipment or performs services in
78-9 competition with the electric utility, nor may any electric utility
78-10 engage in any other practice that tends to restrict or impair such
78-11 competition. (Sec. 47)
78-12 Sec. 2.217. PAYMENTS IN LIEU OF TAXES. Payments made in
78-13 lieu of taxes by an electric utility to the municipality by which
78-14 it is owned may not be considered an expense of operation for the
78-15 purpose of determining, fixing, or regulating the rates to be
78-16 charged for the provision of utility service to a school district
78-17 or hospital district. Rates received by an electric utility from a
78-18 school district or hospital district may not be used to make or to
78-19 cover the cost of making payments in lieu of taxes to the
78-20 municipality by which the electric utility is owned. (Sec. 48)
78-21 SUBTITLE F. CERTIFICATES OF CONVENIENCE AND NECESSITY
78-22 Sec. 2.251. DEFINITION. For the purposes of this subtitle
78-23 only, "retail electric utility" means any person, corporation,
78-24 municipality, political subdivision or agency, or cooperative
78-25 corporation, now or hereafter operating, maintaining, or
78-26 controlling in Texas facilities for providing retail electric
78-27 utility service. (Sec. 49--Subsec. (b) deleted)
79-1 Sec. 2.252. CERTIFICATE REQUIRED. (a) An electric utility
79-2 may not in any way render service directly or indirectly to the
79-3 public under any franchise or permit without first having obtained
79-4 from the commission a certificate that the present or future public
79-5 convenience and necessity require or will require such
79-6 installation, operation, or extension.
79-7 (b) Except as otherwise provided in this subtitle, a retail
79-8 electric utility may not furnish, make available, render, or extend
79-9 retail electric utility service to any area to which retail utility
79-10 service is being lawfully furnished by another retail electric
79-11 utility without first having obtained a certificate of public
79-12 convenience and necessity that includes the area in which the
79-13 consuming facility is located. (Sec. 50)
79-14 Sec. 2.253. EXCEPTIONS FOR EXTENSION OF SERVICE. (a) An
79-15 electric utility is not required to secure a certificate of public
79-16 convenience and necessity for:
79-17 (1) an extension into territory contiguous to that
79-18 already served by it and not receiving similar service from another
79-19 electric utility and not within the area of public convenience and
79-20 necessity of another utility of the same kind;
79-21 (2) an extension within or to territory already served
79-22 by it or to be served by it under a certificate of public
79-23 convenience and necessity; or
79-24 (3) operation, extension, or service in progress on
79-25 September 1, 1975.
79-26 (b) Any extensions allowed by Subsection (a) of this section
79-27 shall be limited to devices for interconnection of existing
80-1 facilities or devices used solely for transmitting electric utility
80-2 services from existing facilities to customers of retail utility
80-3 service. (Sec. 51)
80-4 Sec. 2.254. APPLICATION; MAPS; EVIDENCE OF CONSENT. (a) An
80-5 electric utility shall submit to the commission an application to
80-6 obtain a certificate of public convenience and necessity or an
80-7 amendment thereof.
80-8 (b) On or before 90 days after September 1, 1975, or at a
80-9 later date on request in writing by an electric utility when good
80-10 cause is shown, or at such later dates as the commission may order,
80-11 each electric utility shall file with the commission a map or maps
80-12 showing all its facilities and illustrating separately facilities
80-13 for generation, transmission, and distribution of its services.
80-14 (c) Each applicant for a certificate shall file with the
80-15 commission such evidence as is required by the commission to show
80-16 that the applicant has received the required consent, franchise, or
80-17 permit of the proper municipality or other public authority. (Sec.
80-18 52)
80-19 (Sec. 53 deleted)
80-20 Sec. 2.255. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS
80-21 CONSIDERED; FILING OF NOTICE OF INTENT BY ELECTRIC UTILITIES; TIME
80-22 FOR APPROVAL OR DENIAL OF NEW TRANSMISSION FACILITIES. (a) When
80-23 an application for a certificate of public convenience and
80-24 necessity is filed, the commission shall give notice of such
80-25 application to interested parties and, if requested, shall fix a
80-26 time and place for a hearing and give notice of the hearing. Any
80-27 person interested in the application may intervene at the hearing.
81-1 (b) The commission may grant applications and issue
81-2 certificates only if the commission finds that the certificate is
81-3 necessary for the service, accommodation, convenience, or safety of
81-4 the public. The commission may issue the certificate as prayed
81-5 for, refuse to issue it, or issue it for the construction of a
81-6 portion only of the contemplated system or facility or extension
81-7 thereof or for the partial exercise only of the right or privilege.
81-8 (c) Certificates of convenience and necessity shall be
81-9 granted on a nondiscriminatory basis after consideration by the
81-10 commission of the adequacy of existing service, the need for
81-11 additional service, the effect of the granting of a certificate on
81-12 the recipient of the certificate, on any electric utility of the
81-13 same kind already serving the proximate area, and on such factors
81-14 as community values, recreational and park areas, historical and
81-15 aesthetic values, environmental integrity, and the probable
81-16 improvement of service or lowering of cost to consumers in such
81-17 area resulting from the granting of such certificate.
81-18 (d)(1) In addition to the requirements of this section, an
81-19 electric utility applying for a certificate of convenience and
81-20 necessity for a new generating plant must first file a notice of
81-21 intent to file an application for certification.
81-22 (2) The notice of intent shall set out alternative
81-23 methods considered to help meet the electrical needs, related
81-24 electrical facilities, and the advantages and disadvantages of the
81-25 alternatives. In addition, the notice shall indicate compatibility
81-26 with the most recent long-term forecast provided in this Act.
81-27 (3) The commission shall conduct a hearing on the
82-1 notice of intent to determine the appropriateness of the proposed
82-2 generating plant as compared to the alternatives and shall issue a
82-3 report on its findings. In conjunction with the issuance of the
82-4 report, the commission shall render a decision approving or
82-5 disapproving the notice. Such decision shall be rendered within
82-6 180 days from the date of filing the notice of intent.
82-7 (e)(1) On approval of the notice of intent, a utility may
82-8 apply for certification for a generating plant, site, and site
82-9 facilities not later than 12 months before construction is to
82-10 commence.
82-11 (2) The application for certification shall contain
82-12 such information as the commission may require to justify the
82-13 proposed generating plant, site, and site facilities and to allow a
82-14 determination showing compatibility with the most recent forecast.
82-15 (3) Certificates of convenience and necessity shall be
82-16 granted on a nondiscriminatory basis if the commission finds that
82-17 the proposed new plant is required under the service area forecast,
82-18 that it is the best and most economical choice of technology for
82-19 that service area as compatible with the commission's forecast, and
82-20 that conservation and alternative energy sources cannot meet the
82-21 need.
82-22 (f) If the application for a certificate of convenience and
82-23 necessity involves new transmission facilities, the commission
82-24 shall approve or deny the application within one year after the
82-25 date the application is filed. If the commission does not approve
82-26 or deny the application before this deadline, any party may seek a
82-27 writ of mandamus in a district court of Travis County to compel the
83-1 commission to make a decision on the application. (Sec. 54)
83-2 Sec. 2.256. AREA INCLUDED WITHIN CITY, TOWN, OR VILLAGE.
83-3 (a) If an area has been or shall be included within the boundaries
83-4 of a city, town, or village as the result of annexation,
83-5 incorporation, or otherwise, all electric utilities certified or
83-6 entitled to certification under this Act to provide service or
83-7 operate facilities in such area prior to the inclusion shall have
83-8 the right to continue and extend service in its area of public
83-9 convenience and necessity within the annexed or incorporated area,
83-10 pursuant to the rights granted by its certificate and this Act.
83-11 (b) Notwithstanding any other provision of law, an electric
83-12 utility shall have the right to continue and extend service within
83-13 its area of public convenience and necessity and to utilize the
83-14 roads, streets, highways, alleys, and public property for the
83-15 purpose of furnishing such retail utility service, subject to the
83-16 authority of the governing body of a municipality to require any
83-17 electric utility, at its own expense, to relocate its facilities to
83-18 permit the widening or straightening of streets by giving to the
83-19 electric utility 30 days' notice and specifying the new location
83-20 for the facilities along the right-of-way of the street or streets.
83-21 (c) This section may not be construed as limiting the power
83-22 of cities, towns, and villages to incorporate or extend their
83-23 boundaries by annexation, nor may this section be construed as
83-24 prohibiting any city or town from levying taxes and other special
83-25 charges for the use of the streets as are authorized by Section
83-26 182.025, Tax Code.
83-27 (d) Where a municipal corporation offers retail electric
84-1 utility service in a city of more than 135,000 population located
84-2 in a county of more than 1,500,000 population according to the last
84-3 federal decennial census, the commission shall singly certificate
84-4 areas within the corporate limits of such municipality where more
84-5 than one electric utility provides electric utility service within
84-6 such corporate limits. In singly certificating such areas, the
84-7 commission shall preserve the respective electric utilities' rights
84-8 to serve the customers such electric utilities are serving on June
84-9 17, 1983. Provided, however, the foregoing does not apply to
84-10 customers served, at least partially, by a nominal 69,000 volts
84-11 system, who have given notice of termination to the utility
84-12 servicing that customer prior to June 17, 1983. (Sec. 55)
84-13 Sec. 2.257. CONTRACTS VALID AND ENFORCEABLE. Contracts
84-14 between retail electric utilities designating areas to be served
84-15 and customers to be served by those utilities, when approved by the
84-16 commission, shall be valid and enforceable and shall be
84-17 incorporated into the appropriate areas of public convenience and
84-18 necessity. (Sec. 56)
84-19 Sec. 2.258. PRELIMINARY ORDER FOR CERTIFICATE. If an
84-20 electric utility desires to exercise a right or privilege under a
84-21 franchise or permit which it contemplates securing but which has
84-22 not as yet been granted to it, such electric utility may apply to
84-23 the commission for an order preliminary to the issuance of the
84-24 certificate. The commission may thereupon make an order declaring
84-25 that it will, on application, under such rules as it prescribes,
84-26 issue the desired certificate on such terms and conditions as it
84-27 designates, after the electric utility has obtained the
85-1 contemplated franchise or permit. On presentation to the
85-2 commission of evidence satisfactory to it that the franchise or
85-3 permit has been secured by the electric utility, the commission
85-4 shall issue the certificate. (Sec. 57)
85-5 Sec. 2.259. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE,
85-6 REDUCTION, OR IMPAIRMENT OF SERVICE. (a) Except as provided by
85-7 this section or Section 2.260 of this Act, the holder of any
85-8 certificate of public convenience and necessity shall serve every
85-9 consumer within its certified area and shall render continuous and
85-10 adequate service within the area or areas.
85-11 (b) Unless the commission issues a certificate that neither
85-12 the present or future convenience and necessity will be adversely
85-13 affected, the holder of a certificate may not discontinue, reduce,
85-14 or impair service to a certified service area or part thereof
85-15 except for:
85-16 (1) nonpayment of charges;
85-17 (2) nonuse; or
85-18 (3) other similar reasons in the usual course of
85-19 business.
85-20 (c) Any discontinuance, reduction, or impairment of service,
85-21 whether with or without approval of the commission, shall be in
85-22 conformity with and subject to such conditions, restrictions, and
85-23 limitations as the commission shall prescribe. (Sec. 58)
85-24 Sec. 2.260. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
85-25 holder of a certificate of public convenience and necessity shall
85-26 refuse to serve a customer within its certified area if the holder
85-27 of the certificate is prohibited from providing the service under
86-1 Section 212.012 or 232.0047, Local Government Code. (Sec. 58A)
86-2 Sec. 2.261. SALE, ASSIGNMENT, OR LEASE OF CERTIFICATE. If
86-3 the commission determines that a purchaser, assignee, or lessee is
86-4 capable of rendering adequate service, an electric utility may
86-5 sell, assign, or lease a certificate of public convenience and
86-6 necessity or any rights obtained under the certificate. The sale,
86-7 assignment, or lease shall be on the conditions prescribed by the
86-8 commission. (Sec. 59)
86-9 Sec. 2.262. INTERFERENCE WITH OTHER UTILITY. If an electric
86-10 utility in constructing or extending its lines, plant, or system
86-11 interferes or attempts to interfere with the operation of a line,
86-12 plant, or system of any other utility, the commission may issue an
86-13 order prohibiting the construction or extension or prescribing
86-14 terms and conditions for locating the lines, plants, or systems
86-15 affected. (Sec. 60)
86-16 Sec. 2.263. IMPROVEMENTS IN SERVICE; INTERCONNECTING
86-17 SERVICE. After notice and hearing, the commission may:
86-18 (1) order an electric utility to provide specified
86-19 improvements in its service in a defined area, if service in such
86-20 area is inadequate or is substantially inferior to service in a
86-21 comparable area and it is reasonable to require the company to
86-22 provide such improved service; and
86-23 (2) order two or more electric utilities to establish
86-24 specified facilities for the interconnecting service. (Sec. 61
86-25 (part))
86-26 Sec. 2.264. REVOCATION OR AMENDMENT OF CERTIFICATE.
86-27 (a) The commission at any time after notice and hearing may revoke
87-1 or amend any certificate of convenience and necessity if it finds
87-2 that the certificate holder has never provided or is no longer
87-3 providing service in the area, or part of the area, covered by the
87-4 certificate.
87-5 (b) When the certificate of any electric utility is revoked
87-6 or amended, the commission may require one or more electric
87-7 utilities to provide service in the area in question. (Sec. 62)
87-8 TITLE III. TELECOMMUNICATIONS UTILITIES
87-9 SUBTITLE A. GENERAL PROVISIONS
87-10 Sec. 3.001. DEFINITIONS. In this title:
87-11 (1) "Dominant carrier" means:
87-12 (A) a provider of any particular communication
87-13 service which is provided in whole or in part over a telephone
87-14 system who as to such service has sufficient market power in a
87-15 telecommunications market as determined by the commission to enable
87-16 such provider to control prices in a manner adverse to the public
87-17 interest for such service in such market; and
87-18 (B) any provider of local exchange telephone
87-19 service within a certificated exchange area as to such service. A
87-20 telecommunications market shall be statewide until January 1, 1985.
87-21 After this date the commission may, if it determines that the
87-22 public interest will be served, establish separate markets within
87-23 the state. Prior to January 1, 1985, the commission shall hold
87-24 such hearings and require such evidence as is necessary to carry
87-25 out the public purpose of this Act and to determine the need and
87-26 effect of establishing separate markets. Any such provider
87-27 determined to be a dominant carrier as to a particular
88-1 telecommunications service in a market may not be presumed to be a
88-2 dominant carrier of a different telecommunications service in that
88-3 market. The term does not include an interexchange carrier that is
88-4 not a certificated local exchange company, with respect to
88-5 interexchange services. (Sec. 3(c) (part))
88-6 (2) "Local exchange company" means a
88-7 telecommunications utility certificated to provide local exchange
88-8 service within the state. (Sec. 3(v))
88-9 (3) "Telecommunications utility" or "utility" means
88-10 any person, corporation, river authority, cooperative corporation,
88-11 or any combination thereof, other than a municipal corporation, or
88-12 their lessees, trustees, and receivers, now or hereafter owning or
88-13 operating for compensation in this state equipment or facilities
88-14 for the conveyance, transmission, or reception of communications
88-15 over a telephone system as a dominant carrier. A person or
88-16 corporation not otherwise a telecommunications utility within the
88-17 meaning of this Act may not be deemed such solely because of the
88-18 furnishing or furnishing and maintenance of a private system or the
88-19 manufacture, distribution, installation, or maintenance of customer
88-20 premise communications equipment and accessories. Nothing in this
88-21 Act shall be construed to apply to telegraph services, television
88-22 stations, radio stations, community antenna television services, or
88-23 radio-telephone services that may be authorized under the Public
88-24 Mobile Radio Services rules of the Federal Communications
88-25 Commission, other than such radio-telephone services provided by
88-26 wire-line telephone companies under the Domestic Public Land Mobile
88-27 Radio Service and Rural Radio Service rules of the Federal
89-1 Communications Commission. Interexchange telecommunications
89-2 carriers (including resellers of interexchange telecommunications
89-3 services), specialized communications common carriers, other
89-4 resellers of communications, other communications carriers who
89-5 convey, transmit, or receive communications in whole or in part
89-6 over a telephone system, and providers of operator services as
89-7 defined in Section 3.052(a) of this Act (except that subscribers to
89-8 customer-owned pay telephone service may not be deemed to be
89-9 telecommunications utilities) are also telecommunications
89-10 utilities, but the commission's regulatory authority as to them is
89-11 only as hereinafter defined. The term "telecommunications utility"
89-12 or "utility" does not include any person or corporation not
89-13 otherwise a telecommunications utility that furnishes the services
89-14 or commodity described in this section only to itself, its
89-15 employees, or its tenants as an incident of such employee service
89-16 or tenancy, when such service or commodity is not resold to or used
89-17 by others. (Sec. 3(c) (part))
89-18 (4) "Separation" means the division of plant,
89-19 revenues, expenses, taxes, and reserves, applicable to exchange or
89-20 local service where such items are used in common for providing
89-21 telecommunications utility service to both local exchange service
89-22 and other service, such as interstate or intrastate toll service.
89-23 (Sec. 3(r))
89-24 SUBTITLE B. JURISDICTION OF COMMISSION
89-25 Sec. 3.051. TELECOMMUNICATIONS UTILITIES; REGULATION OF
89-26 COMPETITION. (a) It is the policy of this state to protect the
89-27 public interest in having adequate and efficient telecommunications
90-1 service available to all citizens of the state at just, fair, and
90-2 reasonable rates. The legislature finds that the
90-3 telecommunications industry through technical advancements, federal
90-4 judicial and administrative actions, and the formulation of new
90-5 telecommunications enterprises has become and will continue to be
90-6 in many and growing areas a competitive industry which does not
90-7 lend itself to traditional public utility regulatory rules,
90-8 policies, and principles and that, therefore, the public interest
90-9 requires that new rules, policies, and principles be formulated and
90-10 applied to protect the public interest and to provide equal
90-11 opportunity to all telecommunications utilities in a competitive
90-12 marketplace. It is the purpose of this section to grant to the
90-13 commission the authority and the power under this Act to carry out
90-14 the public policy herein stated.
90-15 (b) Subject to the limitations imposed in this Act, and for
90-16 the purpose of carrying out the public policy above stated and of
90-17 regulating rates, operations, and services so that such rates may
90-18 be just, fair, and reasonable, and the services adequate and
90-19 efficient, the commission shall have exclusive original
90-20 jurisdiction over the business and property of all
90-21 telecommunications utilities in this state. In the exercise of its
90-22 jurisdiction to regulate the rates, operations, and services of a
90-23 telecommunications utility providing service in a municipality on
90-24 the state line adjacent to a municipality in an adjoining state,
90-25 the commission may cooperate with the utility regulatory commission
90-26 of the adjoining state or the federal government and may hold joint
90-27 hearings and make joint investigations with any of those
91-1 commissions.
91-2 (c) Except as provided by Subsections (l) and (m) of this
91-3 section and Section 3.052 of this Act, the commission shall only
91-4 have the following jurisdiction over all telecommunications
91-5 utilities who are not dominant carriers:
91-6 (1) to require registration as provided in Subsection
91-7 (d) of this section;
91-8 (2) to conduct such investigations as are necessary to
91-9 determine the existence, impact, and scope of competition in the
91-10 telecommunications industry, including identifying dominant
91-11 carriers in the local exchange and intralata interexchange
91-12 telecommunications industry and defining the telecommunications
91-13 market or markets, and in connection therewith may call and hold
91-14 hearings, issue subpoenas to compel the attendance of witnesses and
91-15 the production of papers and documents, and make findings of fact
91-16 and decisions with respect to administering the provisions of this
91-17 Act or the rules, orders, and other actions of the commission;
91-18 (3) to require the filing of such reports as the
91-19 commission may direct from time to time;
91-20 (4) to require the maintenance of statewide average
91-21 rates or prices of telecommunications service;
91-22 (5) to require that every local exchange area have
91-23 access to interexchange telecommunications service, except that an
91-24 interexchange telecommunications carrier must be allowed to
91-25 discontinue service to a local exchange area if comparable service
91-26 is available in the area and the discontinuance is not contrary to
91-27 the public interest; this section does not authorize the commission
92-1 to require an interexchange telecommunications carrier that has not
92-2 provided services to a local exchange area during the previous 12
92-3 months and that has never provided services to that same local
92-4 exchange area for a cumulative period of one year at any time in
92-5 the past to initiate services to that local exchange area; and
92-6 (6) to require the quality of interexchange
92-7 telecommunications service provided in each exchange to be adequate
92-8 to protect the public interest and the interests of customers of
92-9 that exchange if the commission determines that service to a local
92-10 exchange has deteriorated to the point that long distance service
92-11 is not reliable.
92-12 (d) All providers of communications service described in
92-13 Subsection (c) of this section who commence such service to the
92-14 public shall register with the commission within 30 days of
92-15 commencing service. Such registration shall be accomplished by
92-16 filing with the commission a description of the location and type
92-17 of service provided, the cost to the public of such service, and
92-18 such other registration information as the commission may direct.
92-19 Notwithstanding any other provision of this Act, an interexchange
92-20 telecommunications carrier doing business in this state shall
92-21 continue to maintain on file with the commission tariffs or lists
92-22 governing the terms of providing its services.
92-23 (e)(1) For the purpose of carrying out the public policy
92-24 stated in Subsection (a) of this section and any other section of
92-25 this Act notwithstanding, the commission is granted all necessary
92-26 power and authority under this Act to promulgate rules and
92-27 establish procedures applicable to local exchange companies for
93-1 determining the level of competition in specific telecommunications
93-2 markets and submarkets and providing appropriate regulatory
93-3 treatment to allow local exchange companies to respond to
93-4 significant competitive challenges. Nothing in this section is
93-5 intended to change the burden of proof of the local exchange
93-6 company under Sections 3.202, 3.203, 3.204, 3.205, 3.206, 3.207,
93-7 and 3.208 of this Act.
93-8 (2) In determining the level of competition in a
93-9 specific market or submarket, the commission shall hold an
93-10 evidentiary hearing to consider the following:
93-11 (A) the number and size of telecommunications
93-12 utilities or other persons providing the same, equivalent, or
93-13 substitutable service;
93-14 (B) the extent to which the same, equivalent, or
93-15 substitutable service is available;
93-16 (C) the ability of customers to obtain the same,
93-17 equivalent, or substitutable services at comparable rates, terms,
93-18 and conditions;
93-19 (D) the ability of telecommunications utilities
93-20 or other persons to make the same, equivalent, or substitutable
93-21 service readily available at comparable rates, terms, and
93-22 conditions;
93-23 (E) the existence of any significant barrier to
93-24 the entry or exit of a provider of the service; and
93-25 (F) other relevant information deemed
93-26 appropriate.
93-27 (3) The regulatory treatments which the commission may
94-1 implement include but are not limited to:
94-2 (A) approval of a range of rates for a specific
94-3 service;
94-4 (B) approval of customer-specific contracts for
94-5 a specific service; provided, however, that the commission shall
94-6 approve a contract to provide central office based PBX-type
94-7 services for systems of 200 stations or more, billing and
94-8 collection services, high-speed private line services of 1.544
94-9 megabits or greater, and customized services, provided that the
94-10 contract is filed at least 30 days before initiation of the service
94-11 contracted for; that the contract is accompanied with an affidavit
94-12 from the person or entity contracting for the telecommunications
94-13 service stating that he considered the acquisition of the same,
94-14 equivalent, or substitutable services by bid or quotation from a
94-15 source other than the local exchange company; that the local
94-16 exchange company is recovering the appropriate costs of providing
94-17 the services; and that approval of the contract is in the public
94-18 interest; the contract shall be approved or denied within 30 days
94-19 after filing, unless the commission for good cause extends the
94-20 effective date for an additional 35 days; and
94-21 (C) the detariffing of rates.
94-22 (f) Moreover, in order to encourage the rapid introduction
94-23 of new or experimental services or promotional rates, the
94-24 commission shall promulgate rules and establish procedures which
94-25 allow the expedited introduction of, the establishment and
94-26 adjustment of rates for, and the withdrawal of such services,
94-27 including requests for such services made to the commission by the
95-1 governing body of a municipality served by a local exchange company
95-2 having more than 500,000 access lines throughout the state. Rates
95-3 established or adjusted at the request of a municipality may not
95-4 result in higher rates for ratepayers outside the boundaries of the
95-5 municipality and may not include any rates for local exchange
95-6 company interexchange services or interexchange carrier access
95-7 service.
95-8 (g) In promulgating new rules and establishing the
95-9 procedures contemplated in Subsections (e) and (f) of this section,
95-10 the commission shall seek to balance the public interest in a
95-11 technologically advanced telecommunications system providing a wide
95-12 range of new and innovative services with traditional regulatory
95-13 concerns for preserving universal service, prohibiting
95-14 anticompetitive practices, and preventing the subsidization of
95-15 competitive services with revenues from regulated monopoly
95-16 services. The commission shall promulgate these rules and
95-17 establish these procedures so as to incorporate an appropriate mix
95-18 of regulatory and market mechanisms reflecting the level and nature
95-19 of competition in the marketplace. Rates established under
95-20 Subsections (e) and (f) of this section may not be:
95-21 (1) unreasonably preferential, prejudicial, or
95-22 discriminatory;
95-23 (2) subsidized either directly or indirectly by
95-24 regulated monopoly services; or
95-25 (3) predatory or anticompetitive.
95-26 (h) The commission shall initiate a rulemaking proceeding
95-27 and take public comment and promulgate rules which prescribe the
96-1 standards necessary to ensure that all rates set under the
96-2 provisions of this section cover their appropriate costs as
96-3 determined by the commission. Until such rules are promulgated,
96-4 the commission shall use a costing methodology that is in the
96-5 public interest in determining whether the rates set under the
96-6 provisions of this section cover their appropriate costs.
96-7 (i) The commission is granted all necessary power and
96-8 authority to prescribe and collect fees and assessments from local
96-9 exchange companies necessary to recover the commission's and the
96-10 office's costs of activities carried out and services provided
96-11 under this subsection and Subsections (e), (f), (g), (h), (j), and
96-12 (k) of this section.
96-13 (j) Subsections (e) and (f) of this section are not
96-14 applicable to basic local exchange service, including local
96-15 measured service. Paragraph (B) of Subdivision (3) of Subsection
96-16 (e) of this section is not applicable to message telecommunications
96-17 services, switched access services for interexchange carriers, or
96-18 wide area telecommunications service. A local exchange company may
96-19 not price similar services provided pursuant to contracts under
96-20 Paragraph (B) of Subdivision (3) of Subsection (e) of this section
96-21 in an unreasonably discriminatory manner. For purposes of this
96-22 section, similar services shall be defined as those services which
96-23 are provided at or near the same point in time, which have the same
96-24 characteristics, and which are provided under the same or similar
96-25 circumstances.
96-26 (k) Before January 15 of each odd-numbered year, the
96-27 commission shall report to the legislature on the scope of
97-1 competition in regulated telecommunications markets and the impact
97-2 of competition on customers in both competitive and noncompetitive
97-3 markets, with a specific focus on rural markets. The report shall
97-4 include an assessment of the impact of competition on the rates and
97-5 availability of telecommunications services for residential and
97-6 business customers and shall specifically address any effects on
97-7 universal service. The report shall provide a summary of
97-8 commission actions over the preceding two years which reflect
97-9 changes in the scope of competition in regulated telecommunications
97-10 markets. The report shall also include recommendations to the
97-11 legislature for further legislation which the commission finds
97-12 appropriate to promote the public interest in the context of a
97-13 partially competitive telecommunications market.
97-14 (l) Notwithstanding any other provision of this Act, the
97-15 commission may enter such orders as may be necessary to protect the
97-16 public interest, including the imposition on any specific service
97-17 or services of its full regulatory authority under this subtitle,
97-18 Subtitles C through F of this title, and Subtitles D through I of
97-19 Title I of this Act, if the commission upon complaint from another
97-20 interexchange telecommunications carrier finds by a preponderance
97-21 of the evidence upon notice and hearing that an interexchange
97-22 telecommunications carrier has engaged in predatory pricing or
97-23 attempted to engage in predatory pricing.
97-24 (m) Notwithstanding any other provision of this Act, the
97-25 commission may enter such orders as may be necessary to protect the
97-26 public interest if the commission finds upon notice and hearing
97-27 that an interexchange telecommunications carrier has:
98-1 (1) failed to maintain statewide average rates;
98-2 (2) abandoned interexchange message telecommunications
98-3 service to a local exchange area in a manner contrary to the public
98-4 interest; or
98-5 (3) engaged in a pattern of preferential or
98-6 discriminatory activities prohibited by Sections 3.213 and 3.215 of
98-7 this Act, except that nothing in this Act shall prohibit volume
98-8 discounts or other discounts based on reasonable business purposes.
98-9 (n) In any proceeding before the commission alleging conduct
98-10 or activities by an interexchange telecommunications carrier
98-11 against another interexchange carrier in contravention of
98-12 Subsections (l), (m), and (o) of this section, the burden of proof
98-13 shall be upon the complaining interexchange telecommunications
98-14 carrier; however, in such proceedings brought by customers or their
98-15 representatives who are not themselves interexchange
98-16 telecommunications carriers or in such proceedings initiated by the
98-17 commission, the burden of proof shall be upon the respondent
98-18 interexchange telecommunications carrier. However, if the
98-19 commission finds it to be in the public interest, the commission
98-20 may impose the burden of proof in such proceedings on the
98-21 complaining party.
98-22 (o) The commission shall have the authority to require that
98-23 a service provided by an interexchange telecommunications carrier
98-24 described in Subsection (c) of this section be made available in an
98-25 exchange served by the carrier within a reasonable time after
98-26 receipt of a bona fide request for such service in that exchange,
98-27 subject to the ability of the local exchange company to provide the
99-1 required access or other service. A carrier may not be required to
99-2 extend a service to an area if provision of that service would
99-3 impose, after consideration of the public interest to be served,
99-4 unreasonable costs upon or require unreasonable investments by the
99-5 interexchange telecommunications carrier. The commission may
99-6 require such information from interexchange carriers and local
99-7 exchange carriers as may be necessary to enforce this provision.
99-8 (p) The commission may exempt from any requirement of this
99-9 section an interexchange telecommunications carrier that the
99-10 commission determines does not have a significant effect on the
99-11 public interest, and it may exempt any interexchange carrier which
99-12 solely relies on the facilities of others to complete long distance
99-13 calls if the commission deems this action to be in the public
99-14 interest.
99-15 (q) Requirements imposed by Subsections (c), (d), (k), (l),
99-16 (m), (n), (o), and (p) of this section on an interexchange
99-17 telecommunications carrier shall apply to nondominant carriers and
99-18 shall constitute the minimum requirements to be imposed by the
99-19 commission for any dominant carrier. (Sec. 18--old Subsec. (p)
99-20 deleted)
99-21 Sec. 3.052. OPERATOR SERVICE; REGULATION AND DISCLOSURE OF
99-22 INFORMATION. (a) In this section "operator service" means any
99-23 service using live operator or automated operator functions for the
99-24 handling of telephone service such as toll calling via collect,
99-25 third-number billing, and calling card services. Calls for which
99-26 the called party has arranged to be billed (800 service) are not
99-27 considered operator services.
100-1 (b) Prior to the connection of each call the operator
100-2 service provider shall:
100-3 (1) announce the provider's name; and
100-4 (2) quote, at the caller's request, the rate and any
100-5 other fees or surcharges applicable to the call and charged by the
100-6 provider.
100-7 (c) An operator service provider shall furnish each entity
100-8 with which it contracts to provide operator service a sticker,
100-9 card, or other form of information approved by the commission for
100-10 each telephone that has access to the service and is intended to be
100-11 utilized by the public, unless the owner of the telephone has
100-12 received approval from the commission for an alternative form of
100-13 information. The information must state the provider's name, that
100-14 the operator service provider will provide rate information on the
100-15 caller's request, that the caller will be informed how to access
100-16 the local exchange company operator on request, and that any
100-17 complaint about the service may be made to the provider or the
100-18 commission at the designated telephone number. The operator
100-19 service provider shall require by contract that the entity
100-20 receiving the information display it on or near each of the
100-21 telephones that has access to the service and is intended for use
100-22 by the public.
100-23 (d) An operator service provider must, on request, inform
100-24 the caller how to access the operator for the local exchange
100-25 company serving the exchange from which the call is made. A charge
100-26 may not be made for this information.
100-27 (e) The commission shall adopt rules requiring an operator
101-1 service provider to include in its contract with each entity
101-2 through which it provides operator service a requirement that the
101-3 telephones subscribed to its services shall allow access to the
101-4 local exchange carrier operator serving the exchange from which the
101-5 call is made and to other telecommunications utilities; but in
101-6 order to prevent fraudulent use of its services, an operator
101-7 service provider and individual entities through which it provides
101-8 operator services may block access if either obtains a waiver for
101-9 this purpose from the commission or the Federal Communications
101-10 Commission. The procedure and criteria for obtaining a waiver from
101-11 the commission shall be set forth in the commission's rules.
101-12 (f) The commission shall promulgate rules consistent with
101-13 the requirements of this section and any additional requirements
101-14 deemed necessary to protect the public interest by January 1, 1990.
101-15 All rules promulgated under this section shall be nondiscriminatory
101-16 and designed to promote competition that facilitates consumer
101-17 choice.
101-18 (g) The commission may investigate a complaint that it
101-19 receives concerning operator services. If the commission
101-20 determines that an operator service provider has violated or is
101-21 about to violate this section, the commission may, upon proper
101-22 notice and evidentiary hearing, take action to stop, correct, or
101-23 prevent the violation.
101-24 (h) Except as provided by Subsection (i) of this section,
101-25 this section applies only to a telecommunications utility that is
101-26 not a dominant carrier. The commission is granted all necessary
101-27 power and authority under this Act to promulgate rules and
102-1 establish procedures for the purposes of enforcing and implementing
102-2 this section.
102-3 (i) Each dominant or nondominant telecommunications utility
102-4 that provides operator service shall ensure that a caller may
102-5 access a live operator at the beginning of all live or mechanized
102-6 operator assisted calls through a method designed to be easily and
102-7 clearly understandable and accessible to the caller. A
102-8 telecommunications utility shall submit to the commission the
102-9 method by which the utility will provide access to a live operator
102-10 for review. This subsection applies regardless of the method by
102-11 which the telecommunications utility provides the operator service.
102-12 The requirements of this subsection do not apply to telephones
102-13 located in prison or jail facilities. (Sec. 18A)
102-14 SUBTITLE C. MUNICIPALITIES
102-15 Sec. 3.101. RATEMAKING PROCEEDINGS; ENGAGEMENT OF
102-16 CONSULTANTS, ACCOUNTANTS, AUDITORS, ATTORNEYS, AND ENGINEERS;
102-17 STANDING. (a) The governing body of any municipality
102-18 participating in ratemaking proceedings shall have the right to
102-19 select and engage rate consultants, accountants, auditors,
102-20 attorneys, engineers, or any combination thereof to conduct
102-21 investigations, present evidence, advise and represent the
102-22 governing body, and assist with litigation in telecommunications
102-23 utility ratemaking proceedings before the commission or in court.
102-24 The telecommunications utility engaged in such proceedings shall be
102-25 required to reimburse the governing body for the reasonable costs
102-26 of such services to the extent found reasonable by the commission.
102-27 (b) Municipalities shall have standing in all cases before
103-1 the commission regarding utilities serving within their corporate
103-2 limits subject to the right of the commission to determine standing
103-3 in cases involving retail service area disputes involving two or
103-4 more utilities and to consolidate municipalities on issues of
103-5 common interest and shall be entitled to judicial review of orders
103-6 regarding said proceedings in accordance with Section 1.301 of the
103-7 Act. (Sec. 24 (part))
103-8 Sec. 3.102. ASSISTANCE OF COMMISSION. The commission may
103-9 advise and assist municipalities on request in connection with
103-10 questions and proceedings arising under this Act. Such assistance
103-11 may include aid to municipalities in connection with matters
103-12 pending before the commission or the courts, including making
103-13 members of the staff available as witnesses and otherwise providing
103-14 evidence to them. (Sec. 25)
103-15 SUBTITLE D. RATES AND SERVICES
103-16 Sec. 3.151. RATES; METHODS AND ACCOUNTS. (a) The
103-17 commission shall fix proper and adequate rates and methods of
103-18 depreciation, amortization, or depletion of the several classes of
103-19 property of each telecommunications utility and shall require every
103-20 telecommunications utility to carry a proper and adequate
103-21 depreciation account in accordance with such rates and methods and
103-22 with such other rules and regulations as the commission prescribes.
103-23 Such rates, methods, and accounts shall be utilized uniformly and
103-24 consistently throughout the ratesetting and appeal proceedings.
103-25 (b) Every telecommunications utility shall keep separate
103-26 accounts to show all profits or losses resulting from the sale or
103-27 lease of appliances, fixtures, equipment, or other merchandise.
104-1 This profit or loss may not be taken into consideration by the
104-2 commission in arriving at any rate to be charged for service by any
104-3 such telecommunications utility, to the extent that such
104-4 merchandise is not integral to the provision of utility service.
104-5 (c) In determining the allocation of tax savings derived
104-6 from application of such methods as liberalized depreciation and
104-7 amortization and the investment tax credit, the commission shall
104-8 equitably balance the interests of present and future customers and
104-9 shall apportion such benefits between consumers and the utilities
104-10 accordingly. Where any portion of the investment tax credit has
104-11 been retained by a telecommunications utility, that same amount
104-12 shall be deducted from the original cost of the facilities or other
104-13 addition to the rate base to which the credit applied, to the
104-14 extent allowed by the Internal Revenue Code. (Secs. 27(b), (c),
104-15 (e))
104-16 Sec. 3.152. REPORTING OF ADVERTISING OR PUBLIC RELATIONS
104-17 EXPENSES. (a) The commission may require an annual reporting from
104-18 each utility company of all its expenditures for business gifts and
104-19 entertainment and for institutional, consumption-inducing, and
104-20 other advertising or public relations expenses.
104-21 (b) The commission may not allow as costs or expenses for
104-22 ratemaking purposes any of these expenditures which the commission
104-23 determines not to be in the public interest.
104-24 (c) The cost of legislative advocacy expenses may not in any
104-25 case be allowed as costs or expenses for ratemaking purposes.
104-26 (d) Reasonable charitable or civic contributions may be
104-27 allowed not to exceed the amount approved by the commission. (Sec.
105-1 30)
105-2 Sec. 3.153. UNLAWFUL RATES, RULES, AND REGULATIONS. It
105-3 shall be unlawful for any utility to charge, collect, or receive
105-4 any rate for utility service or to impose any rule or regulation
105-5 other than as herein provided. (Sec. 31)
105-6 Sec. 3.154. FILING SCHEDULE OF RATES, RULES, AND
105-7 REGULATIONS. (a) Every telecommunications utility shall file with
105-8 the commission schedules showing all rates which are subject to the
105-9 jurisdiction of the commission and which are in force at the time
105-10 for any utility service, product, or commodity offered by the
105-11 utility.
105-12 (b) Every telecommunications utility shall file with and as
105-13 a part of such schedules all rules and regulations relating to or
105-14 affecting the rates, utility service, product, or commodity
105-15 furnished by such utility. (Sec. 32 (part))
105-16 Sec. 3.155. STANDARDS OF SERVICE. (a) Every
105-17 telecommunications utility shall furnish such service,
105-18 instrumentalities, and facilities as shall be safe, adequate,
105-19 efficient, and reasonable.
105-20 (b) The commission after reasonable notice and hearing had
105-21 on its own motion or on complaint may:
105-22 (1) ascertain and fix just and reasonable standards,
105-23 classifications, regulations, or practices to be observed and
105-24 followed by any or all utilities with respect to the service to be
105-25 furnished;
105-26 (2) ascertain and fix adequate and reasonable
105-27 standards for the measurement of the quantity, quality, or other
106-1 condition pertaining to the supply of the service;
106-2 (3) prescribe reasonable regulations for the
106-3 examination and testing of the service and for the measurement
106-4 thereof; and
106-5 (4) establish or approve reasonable rules,
106-6 regulations, specifications, and standards to secure the accuracy
106-7 of all meters, instruments, and equipment used for the measurement
106-8 of any service of any telecommunications utility.
106-9 (c) Any standards, classifications, regulations, or
106-10 practices now or hereafter observed or followed by any
106-11 telecommunications utility may be filed by it with the commission,
106-12 and the same shall continue in force until amended by the
106-13 telecommunications utility or until changed by the commission as
106-14 herein provided. (Sec. 35 (part))
106-15 SUBTITLE E. PROCEEDINGS BEFORE THE COMMISSION
106-16 Sec. 3.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
106-17 Subject to the provisions of this Act, the commission is hereby
106-18 vested with all authority and power of the State of Texas to insure
106-19 compliance with the obligations of telecommunications utilities in
106-20 this Act. To the extent otherwise provided by this Act, the
106-21 commission is empowered to fix and regulate rates of
106-22 telecommunications utilities, including rules and regulations for
106-23 determining the classification of customers and services and for
106-24 determining the applicability of rates. A rule or order of the
106-25 commission may not conflict with the rulings of any federal
106-26 regulatory body. (Sec. 37--changed to reflect different
106-27 regulation)
107-1 Sec. 3.202. JUST AND REASONABLE RATES. It shall be the duty
107-2 of the commission to insure that every rate made, demanded, or
107-3 received by any telecommunications utility or by any two or more
107-4 utilities jointly shall be just and reasonable. Rates may not be
107-5 unreasonably preferential, prejudicial, or discriminatory, but
107-6 shall be sufficient, equitable, and consistent in application to
107-7 each class of consumers. For ratemaking purposes, the commission
107-8 may treat two or more municipalities served by a telecommunications
107-9 utility as a single class wherever it deems such treatment to be
107-10 appropriate. Approval by the commission of a reduced rate for
107-11 service for a class of consumers eligible under Section 3.352 of
107-12 this Act for tel-assistance service does not constitute a violation
107-13 of this section. (Sec. 38)
107-14 Sec. 3.203. FIXING OVERALL REVENUES. (a) In fixing the
107-15 rates of a telecommunications utility the commission shall fix its
107-16 overall revenues at a level which will permit such utility a
107-17 reasonable opportunity to earn a reasonable return on its invested
107-18 capital used and useful in rendering service to the public over and
107-19 above its reasonable and necessary operating expenses.
107-20 (b) In fixing a reasonable return on invested capital, the
107-21 commission shall consider, in addition to other applicable factors,
107-22 the quality of the utility's services, the efficiency of the
107-23 utility's operations, and the quality of the utility's management.
107-24 (Sec. 39 (part))
107-25 Sec. 3.204. BURDEN OF PROOF. Except as hereafter provided,
107-26 in any proceeding involving any proposed change of rates, the
107-27 burden of proof to show that the proposed change, if proposed by
108-1 the utility, or that the existing rate, if it is proposed to reduce
108-2 the rate, is just and reasonable shall be on the telecommunications
108-3 utility. In any proceeding involving a local exchange company in
108-4 which the local exchange company's rate or rates are in issue, the
108-5 burden of proof that such rate or rates are just and reasonable
108-6 shall be on the local exchange company. (Sec. 40)
108-7 Sec. 3.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME.
108-8 The components of invested capital and net income shall be
108-9 determined according to Sections 3.206, 3.207, and 3.208. (Sec. 41
108-10 (part))
108-11 Sec. 3.206. INVESTED CAPITAL. (a) Utility rates shall be
108-12 based upon the original cost of property used by and useful to the
108-13 telecommunications utility in providing service including
108-14 construction work in progress at cost as recorded on the books of
108-15 the utility.
108-16 (b) The inclusion of construction work in progress is an
108-17 exceptional form of rate relief to be granted only upon the
108-18 demonstration by the utility that such inclusion is necessary to
108-19 the financial integrity of the utility. Construction work in
108-20 progress may not be included in the rate base for major projects
108-21 under construction to the extent that such projects have been
108-22 inefficiently or imprudently planned or managed.
108-23 (c) Original cost shall be the actual money cost or the
108-24 actual money value of any consideration paid other than money of
108-25 the property at the time it shall have been dedicated to public
108-26 use, whether by the utility which is the present owner or by a
108-27 predecessor, less depreciation. (Sec. 41(a))
109-1 Sec. 3.207. SEPARATIONS AND ALLOCATIONS. Costs of
109-2 facilities, revenues, expenses, taxes, and reserves shall be
109-3 separated or allocated as prescribed by the commission. (Sec.
109-4 41(b))
109-5 Sec. 3.208. NET INCOME. (a) Net Income. "Net income"
109-6 means the total revenues of the telecommunications utility less all
109-7 reasonable and necessary expenses as determined by the commission.
109-8 The commission shall determine expenses and revenues in a manner
109-9 consistent with this section.
109-10 (b) Transactions with Affiliated Interests. Payment to
109-11 affiliated interests for costs of any services or any property,
109-12 right, or thing or for interest expense may not be allowed either
109-13 as capital cost or as expense except to the extent that the
109-14 commission shall find such payment to be reasonable and necessary
109-15 for each item or class of items as determined by the commission.
109-16 Any such finding shall include specific findings of the
109-17 reasonableness and necessity of each item or class of items allowed
109-18 and a finding that the price to the utility is no higher than
109-19 prices charged by the supplying affiliate to its other affiliates
109-20 or divisions for the same item or class of items, or to
109-21 unaffiliated persons or corporations.
109-22 (c) Income Taxes. If the telecommunications utility is a
109-23 member of an affiliated group that is eligible to file a
109-24 consolidated income tax return and if it is advantageous to the
109-25 telecommunications utility to do so, income taxes shall be computed
109-26 as though a consolidated return had been so filed and the utility
109-27 had realized its fair share of the savings resulting from the
110-1 consolidated return, unless it is shown to the satisfaction of the
110-2 commission that it was reasonable to choose not to consolidate
110-3 returns. The amounts of income taxes saved by a consolidated group
110-4 of which a telecommunications utility is a member by reason of the
110-5 elimination in the consolidated return of the intercompany profit
110-6 on purchases by the telecommunications utility from an affiliate
110-7 shall be applied to reduce the cost of the property or services so
110-8 purchased. The investment tax credit allowed against federal
110-9 income taxes, to the extent retained by the utility, shall be
110-10 applied as a reduction in the rate-based contribution of the assets
110-11 to which such credit applies, to the extent and at such rate as
110-12 allowed by the Internal Revenue Code.
110-13 (d) Expenses Disallowed. The commission may not consider
110-14 for ratemaking purposes the following expenses:
110-15 (1) legislative advocacy expenses, whether made
110-16 directly or indirectly, including but not limited to legislative
110-17 advocacy expenses included in trade association dues;
110-18 (2) costs of processing a refund or credit under
110-19 Subsection (e) of Section 3.211 of this Act; or
110-20 (3) any expenditure found by the commission to be
110-21 unreasonable, unnecessary, or not in the public interest, including
110-22 but not limited to executive salaries, advertising expenses, legal
110-23 expenses, and civil penalties or fines.
110-24 (e) Rules. The commission may promulgate reasonable rules
110-25 and regulations with respect to the allowance or disallowance of
110-26 any expenses for ratemaking purposes. (Sec. 41(c))
110-27 Sec. 3.209. SELF-INSURANCE. (a) A telecommunications
111-1 utility may self-insure all or a portion of its potential liability
111-2 or catastrophic property loss, including windstorm, fire, and
111-3 explosion losses, which could not have been reasonably anticipated
111-4 and included under operating and maintenance expenses. The
111-5 commission shall approve a self-insurance plan under this section
111-6 if it finds that the coverage is in the public interest and the
111-7 plan is a lower cost alternative to purchasing commercial
111-8 insurance, considering all costs, and that ratepayers will receive
111-9 the benefits of that saving.
111-10 (b) In computing a utility's reasonable and necessary
111-11 expenses under Section 3.208 of this Act, the commission shall
111-12 allow as a necessary expense the funds credited to reserve accounts
111-13 for the self-insurance, to the extent the commission finds it in
111-14 the public interest. After the reserve account is established, the
111-15 commission shall consider if the reserve account has a surplus or
111-16 shortage in determining the utility's rate base. A surplus in the
111-17 reserve account will exist if the charges against the reserve
111-18 account are less than the funds credited to the reserve. A
111-19 shortage in the reserve account will exist if the charges against
111-20 the account are greater than the funds credited to the reserve.
111-21 The commission shall subtract any surplus from and add any shortage
111-22 to the rate base.
111-23 (c) The commission shall determine reasonableness under
111-24 Subsection (b) of this section from information provided at the
111-25 time the self-insurance plan and reserve account are established
111-26 and upon the filing of each rate case by a utility that has such a
111-27 fund.
112-1 (d) The commission shall adopt rules governing
112-2 self-insurance under this section. (Secs. 41B(a)-(d))
112-3 Sec. 3.210. UNREASONABLE OR VIOLATIVE EXISTING RATES;
112-4 INVESTIGATING COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE.
112-5 (a) Whenever the commission, after reasonable notice and hearing,
112-6 on its own motion or on complaint by any affected person, finds
112-7 that the existing rates of any telecommunications utility for any
112-8 service are unreasonable or in any way in violation of any
112-9 provision of law, the commission shall determine the just and
112-10 reasonable rates, including maximum or minimum rates, to be
112-11 thereafter observed and in force and shall fix the same by order to
112-12 be served on the telecommunications utility; and such rates shall
112-13 constitute the legal rates of the telecommunications utility until
112-14 changed as provided in this Act.
112-15 (b) Whenever a telecommunications utility does not itself
112-16 produce or generate that which it distributes, transmits, or
112-17 furnishes to the public for compensation but obtains the same from
112-18 another source, the commission shall have the power and authority
112-19 to investigate the cost of such production or generation in any
112-20 investigation of the reasonableness of the rates of such
112-21 telecommunications utility. (Sec. 42 (part))
112-22 Sec. 3.211. STATEMENT OF INTENT TO CHANGE RATES; MAJOR
112-23 CHANGES; HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF
112-24 RATE LEVEL. (a) A utility may not make changes in its rates
112-25 except by filing a statement of intent with the commission at least
112-26 35 days prior to the effective date of the proposed change. The
112-27 statement of intent shall include proposed revisions of tariffs and
113-1 schedules and a statement specifying in detail each proposed
113-2 change, the effect the proposed change is expected to have on the
113-3 revenues of the company, the classes and numbers of utility
113-4 consumers affected, and such other information as may be required
113-5 by the commission's rules and regulations. A copy of the statement
113-6 of intent shall be mailed or delivered to the appropriate officer
113-7 of each affected municipality, and notice shall be given by
113-8 publication in conspicuous form and place of a notice to the public
113-9 of such proposed change once in each week for four successive weeks
113-10 prior to the effective date of the proposed change in a newspaper
113-11 having general circulation in each county containing territory
113-12 affected by the proposed change, and by mail to such other affected
113-13 persons as may be required by the commission's rules and
113-14 regulations. The commission may waive the publication of notice
113-15 requirement prescribed by this subsection in a proceeding that
113-16 involves a rate reduction for all affected ratepayers only. The
113-17 applicant shall give notice of the proposed rate change by mail to
113-18 all affected utility customers. The commission by rule shall also
113-19 define other proceedings for which the publication of notice
113-20 requirement prescribed by this subsection may be waived on a
113-21 showing of good cause, provided that a waiver may not be granted in
113-22 any proceeding involving a rate increase to any class or category
113-23 of ratepayer.
113-24 (b) The commission, for good cause shown, may, except in the
113-25 case of major changes, allow changes in rate to take effect prior
113-26 to the end of such 35-day period under such conditions as it may
113-27 prescribe, subject to suspension as provided herein. All such
114-1 changes shall be indicated immediately upon its schedules by such
114-2 utility. "Major changes" shall mean an increase in rates which
114-3 would increase the aggregate revenues of the applicant more than
114-4 the greater of $100,000 or 2-1/2 percent, but does not include
114-5 changes in rates allowed to go into effect by the commission or
114-6 made by the utility pursuant to an order of the commission after
114-7 hearings held upon notice to the public.
114-8 (c) Whenever there is filed with the commission any schedule
114-9 modifying or resulting in a change in any rates then in force, the
114-10 commission shall on complaint by any affected person or may on its
114-11 own motion, at any time within 30 days from the date when such
114-12 change would or has become effective, and, if it so orders, without
114-13 answer or other formal pleading by the utility, but on reasonable
114-14 notice, including notice to the governing bodies of all affected
114-15 municipalities and counties, enter on a hearing to determine the
114-16 propriety of such change. The commission shall hold such a hearing
114-17 in every case in which the change constitutes a major change in
114-18 rates, provided that an informal proceeding may satisfy this
114-19 requirement if a complaint has not been received before the
114-20 expiration of 45 days after notice of the change shall have been
114-21 filed. In each case where the commission determines it is in the
114-22 public interest to collect testimony at a regional hearing for the
114-23 inclusion in the record, the commission shall hold a regional
114-24 hearing at an appropriate location. A regional hearing is not
114-25 required in a case involving a member-owned utility, unless the
114-26 commission determines otherwise.
114-27 (d) Pending the hearing and decision, the commission, after
115-1 delivery to the affected utility of a statement in writing of its
115-2 reasons therefor, may suspend the operation of the schedule for a
115-3 period not to exceed 150 days beyond the date on which the schedule
115-4 would otherwise go into effect. If the commission does not make a
115-5 final determination concerning any schedule of rates prior to
115-6 expiration of the period or periods of suspension, the schedule
115-7 shall be deemed to have been approved by the commission. However,
115-8 the 150-day period shall be extended two days for each one day of
115-9 actual hearing on the merits of the case that exceeds 15 days.
115-10 This approval is subject to the authority of the commission
115-11 thereafter to continue a hearing in progress. The commission may
115-12 in its discretion fix temporary rates for any period of suspension
115-13 under this section. During the suspension by the commission as
115-14 above provided, the rates in force when the suspended schedule was
115-15 filed shall continue in force unless the commission shall establish
115-16 a temporary rate. The commission shall give preference to the
115-17 hearing and decision of questions arising under this section over
115-18 all other questions pending before it and decide the same as
115-19 speedily as possible.
115-20 (e) If the 150-day period has been extended, as provided by
115-21 Subsection (d) of this section, and the commission fails to make
115-22 its final determination of rates within 150 days from the date that
115-23 the proposed change otherwise would have gone into effect, the
115-24 utility concerned may put a changed rate, not to exceed the
115-25 proposed rate, into effect upon the filing with the commission of a
115-26 bond payable to the commission in an amount and with sureties
115-27 approved by the commission conditioned upon refund and in a form
116-1 approved by the commission. The utility concerned shall refund or
116-2 credit against future bills all sums collected during the period of
116-3 suspension in excess of the rate finally ordered plus interest at
116-4 the current rate as finally determined by the commission.
116-5 (f) If, after hearing, the commission finds the rates to be
116-6 unreasonable or in any way in violation of any provision of law,
116-7 the commission shall determine the level of rates to be charged or
116-8 applied by the utility for the service in question and shall fix
116-9 the same by order to be served upon the utility; these rates are
116-10 thereafter to be observed until changed, as provided by this Act.
116-11 (g) A rate or tariff set by the commission may not authorize
116-12 a utility to automatically adjust and pass through to its customers
116-13 changes in costs of the utility.
116-14 (h) If the commission does not make a final determination
116-15 concerning a local exchange company's schedule of rates prior to
116-16 the expiration of the 150-day suspension period, the schedule of
116-17 rates finally approved by the commission shall become effective and
116-18 the local exchange company shall be entitled to collect such rates
116-19 from the date the 150-day suspension period expired. Any
116-20 surcharges or other charges necessary to effectuate this subsection
116-21 may not be recovered over a period of less than 90 days from the
116-22 date of the commission's final order.
116-23 (i) The commission on its own motion or on the petition of a
116-24 utility shall provide for the adjustment of a utility's billing to
116-25 reflect any increase or decrease of tax liability of the utility to
116-26 the state resulting from Chapter 5, Acts of the 72nd Legislature,
116-27 1st Called Session, 1991, and that is attributable to activities
117-1 that are subject to the jurisdiction of the commission. Any
117-2 adjustment to billings under this section must be apportioned
117-3 pro-rata to all types and classes of service provided by the
117-4 utility and is effective only until the commission alters the
117-5 adjustment as provided by this subsection or enters an order for
117-6 the utility under this section or Section 3.210 of this Act. The
117-7 adjustment of billings must be made effective at the same time as
117-8 the increase or decrease of tax liability resulting from Chapter 5,
117-9 Acts of the 72nd Legislature, 1st Called Session, 1991, or as soon
117-10 after as is reasonably practical. Each year after any original
117-11 adjustment, the commission shall review the utility's increase or
117-12 decrease of tax liability resulting from House Bill 11, Acts of the
117-13 72nd Legislature, 1st Called Session, 1991, and alter the
117-14 adjustment to reflect the increase or decrease. A proceeding under
117-15 this subsection is not a rate case under this section. (Sec. 43
117-16 (part))
117-17 Sec. 3.212. CHANGES BY LOCAL EXCHANGE COMPANIES; HEARINGS;
117-18 SUSPENSION OF PROPOSED CHANGES. (a) A local exchange company may
117-19 make changes in its tariffed rules, regulations, or practices that
117-20 do not affect its charges or rates by filing the proposed changes
117-21 with the commission at least 35 days prior to the effective date of
117-22 the changes. The commission may require such notice to ratepayers
117-23 as it considers appropriate.
117-24 (b) The commission may on complaint by any affected person
117-25 or on its own motion hold a hearing, after reasonable notice, to
117-26 determine the propriety of the change. Pending the hearing and
117-27 decision, the commission may suspend the operation of the proposed
118-1 changes for a period not to exceed 120 days after the date on which
118-2 the changes would otherwise go into effect.
118-3 (c) The commission shall approve, deny, or modify the
118-4 proposed changes before expiration of the suspension period. In
118-5 any proceeding under this section, the burden of proving that the
118-6 requested relief is in the public interest and complies with this
118-7 Act shall be borne by the local exchange company. (Sec. 43A)
118-8 Sec. 3.213. COOPERATIVE OR SMALL LOCAL EXCHANGE COMPANIES;
118-9 STATEMENT OF INTENT TO CHANGE RATES; NOTICE OF INTENT; SUSPENSION
118-10 OF RATE SCHEDULE; REVIEW. (a) Except as otherwise provided by
118-11 this section, a local exchange company that is a cooperative
118-12 corporation or that has fewer than 5,000 access lines in service in
118-13 this state may change rates by publishing notice of the change at
118-14 least 60 days before the date of the change in the place and form
118-15 as prescribed by the commission. The notice must include:
118-16 (1) the reasons for the rate change;
118-17 (2) a description of the affected service;
118-18 (3) an explanation of the right of the subscriber to
118-19 petition the commission for a hearing on the rate change; and
118-20 (4) a list of rates that are affected by the proposed
118-21 rate change.
118-22 (b) At least 60 days before the date of the change, the
118-23 local exchange company shall file with the commission a statement
118-24 of intent to change rates containing:
118-25 (1) a copy of the notice required by Subsection (a) of
118-26 this section;
118-27 (2) the number of access lines the company has in
119-1 service in this state;
119-2 (3) the date of the most recent commission order
119-3 setting rates of the company;
119-4 (4) the increase in total gross annual local revenues
119-5 that will be produced by the proposed rates;
119-6 (5) the increase in total gross annual local revenues
119-7 that will be produced by the proposed rates together with any local
119-8 rate changes which went into effect during the 12 months preceding
119-9 the proposed effective date of the requested rate change and any
119-10 other proposed local rate changes then pending before the
119-11 commission;
119-12 (6) the increase in rates for each service category;
119-13 and
119-14 (7) other information the commission by rule requires.
119-15 (c) The commission shall review a proposed change in the
119-16 rates set by a local exchange company under this section upon the
119-17 receipt of complaints signed by at least five percent of all
119-18 affected subscribers or upon its own motion. The commission may
119-19 require notice to ratepayers as it considers appropriate. If
119-20 sufficient complaints are presented to the commission within 60
119-21 days after the date notice of the rate change was sent to
119-22 subscribers, the commission shall review the proposed change.
119-23 After notice to the local exchange company, the commission may
119-24 suspend the rates during the pendency of the review and reinstate
119-25 the rates previously in effect. Review under this subsection shall
119-26 be as provided by Section 3.211 of this Act. The period for review
119-27 by the commission does not begin until the local exchange company
120-1 files a complete rate-filing package.
120-2 (d) If the commission has entered an order setting a rate,
120-3 the affected local exchange company may not change that rate under
120-4 this section before 365 days after the date of the commission's
120-5 order setting the rate.
120-6 (e) This section does not prohibit a local exchange company
120-7 from filing for a rate change under any other applicable section of
120-8 this Act.
120-9 (f) The commission shall review a proposed change in the
120-10 rates of a local exchange company under this section if the
120-11 proposed rates, together with any local rate changes which went
120-12 into effect during the 12 months preceding the proposed effective
120-13 date of the requested rate change as well as any other proposed
120-14 local rate changes then pending before the commission, will
120-15 increase its total gross annual local revenues by more than 2-1/2
120-16 percent or if the proposed change would increase the rate of any
120-17 service category by more than 25 percent, except for basic local
120-18 service, which shall be limited to a maximum of 2-1/2 percent of
120-19 the total gross annual local revenue. Review under this subsection
120-20 shall be as provided by Section 3.211 of this Act. Each local
120-21 exchange company may receive a change in its local rates or in any
120-22 service category pursuant to this section only one time in any
120-23 12-month period.
120-24 (g) Rates established under this section must be in
120-25 accordance with the rate-setting principles of this subtitle.
120-26 (h) The commission is granted all necessary power and
120-27 authority to prescribe and collect fees and assessments from local
121-1 exchange companies necessary to recover the commission's and the
121-2 office's costs of activities carried out and services provided
121-3 under this section, Subsection (h) of Section 3.211, and Section
121-4 3.212 of this Act. (Sec. 43B)
121-5 Sec. 3.214. RATES FOR AREAS NOT WITHIN MUNICIPALITY.
121-6 Telecommunications utility rates for areas not within any
121-7 municipality may not exceed without commission approval 115 percent
121-8 of the average of all rates for similar services of all
121-9 municipalities served by the same utility within the same county.
121-10 (Sec. 44)
121-11 Sec. 3.215. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
121-12 OR SERVICES. A telecommunications utility may not, as to rates or
121-13 services, make or grant any unreasonable preference or advantage to
121-14 any corporation or person within any classification or subject any
121-15 corporation or person within any classification to any unreasonable
121-16 prejudice or disadvantage. A telecommunications utility may not
121-17 establish and maintain any unreasonable differences as to rates of
121-18 service either as between localities or as between classes of
121-19 service. (Sec. 45)
121-20 Sec. 3.216. EQUALITY OF RATES AND SERVICES. (a) A
121-21 telecommunications utility may not, directly or indirectly, by any
121-22 device whatsoever or in any manner, charge, demand, collect, or
121-23 receive from any person a greater or less compensation for any
121-24 service rendered or to be rendered by the utility than that
121-25 prescribed in the schedule of rates of the telecommunications
121-26 utility applicable thereto when filed in the manner provided in
121-27 this Act, nor may any person knowingly receive or accept any
122-1 service from a telecommunications utility for a compensation
122-2 greater or less than that prescribed in the schedules.
122-3 (b) Nothing in this Act shall prevent a cooperative
122-4 corporation from returning to its members the whole or any part of
122-5 the net earnings resulting from its operations in proportion to
122-6 their purchases from or through the corporation. (Sec. 46)
122-7 Sec. 3.217. DISCRIMINATION; RESTRICTION ON COMPETITION. A
122-8 telecommunications utility may not discriminate against any person
122-9 or corporation that sells or leases equipment or performs services
122-10 in competition with the telecommunications utility, nor may any
122-11 telecommunications utility engage in any other practice that tends
122-12 to restrict or impair such competition. (Sec. 47)
122-13 Sec. 3.218. TELECOMMUNICATIONS UTILITY PROVIDING SERVICE TO
122-14 THE STATE; DELINQUENT PAYMENT CHARGES. A telecommunications
122-15 utility providing any service to the state, including service to an
122-16 agency in any branch of state government, may not charge a fee,
122-17 penalty, interest, or other charge for delinquent payment of a bill
122-18 for that service. (Sec. 48A)
122-19 SUBTITLE F. CERTIFICATES OF CONVENIENCE AND NECESSITY
122-20 Sec. 3.251. CERTIFICATE REQUIRED. (a) A telecommunications
122-21 utility may not in any way render service directly or indirectly to
122-22 the public under any franchise or permit without first having
122-23 obtained from the commission a certificate that the present or
122-24 future public convenience and necessity require or will require
122-25 such installation, operation, or extension.
122-26 (b) Except as otherwise provided in this subtitle, a
122-27 telecommunications utility may not furnish, make available, render,
123-1 or extend retail telecommunications utility service to any area to
123-2 which retail utility service is being lawfully furnished by another
123-3 telecommunications utility, without first having obtained a
123-4 certificate of public convenience and necessity that includes the
123-5 area in which the consuming facility is located. (Sec. 50)
123-6 Sec. 3.252. EXCEPTIONS FOR EXTENSION OF SERVICE. (a) A
123-7 telecommunications utility is not required to secure a certificate
123-8 of public convenience and necessity for:
123-9 (1) an extension into territory contiguous to that
123-10 already served by it and not receiving similar service from another
123-11 telecommunications utility and not within the area of public
123-12 convenience and necessity of another utility of the same kind;
123-13 (2) an extension within or to territory already served
123-14 by it or to be served by it under a certificate of public
123-15 convenience and necessity; or
123-16 (3) operation, extension, or service in progress on
123-17 September 1, 1975.
123-18 (b) Any extensions allowed by Subsection (a) of this section
123-19 shall be limited to devices for interconnection of existing
123-20 facilities or devices used solely for transmitting
123-21 telecommunications utility services from existing facilities to
123-22 customers of retail utility service. (Sec. 51)
123-23 Sec. 3.253. APPLICATION; MAPS; EVIDENCE OF CONSENT. (a) A
123-24 telecommunications utility shall submit to the commission an
123-25 application to obtain a certificate of public convenience and
123-26 necessity or an amendment thereof.
123-27 (b) On or before 90 days after September 1, 1975, or at a
124-1 later date on request in writing by a telecommunications utility
124-2 when good cause is shown, or at such later dates as the commission
124-3 may order, each telecommunications utility shall file with the
124-4 commission a map or maps showing all its facilities and
124-5 illustrating separately facilities for transmission and
124-6 distribution of its services.
124-7 (c) Each applicant for a certificate shall file with the
124-8 commission such evidence as is required by the commission to show
124-9 that the applicant has received the required consent, franchise, or
124-10 permit of the proper municipality or other public authority. (Sec.
124-11 52)
124-12 Sec. 3.254. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS
124-13 CONSIDERED. (a) When an application for a certificate of public
124-14 convenience and necessity is filed, the commission shall give
124-15 notice of such application to interested parties and, if requested,
124-16 shall fix a time and place for a hearing and give notice of the
124-17 hearing. Any person interested in the application may intervene at
124-18 the hearing.
124-19 (b) The commission may grant applications and issue
124-20 certificates only if the commission finds that the certificate is
124-21 necessary for the service, accommodation, convenience, or safety of
124-22 the public. The commission may issue the certificate as prayed
124-23 for, refuse to issue it, or issue it for the construction of a
124-24 portion only of the contemplated system or facility or extension
124-25 thereof or for the partial exercise only of the right or privilege.
124-26 (c) Certificates of convenience and necessity shall be
124-27 granted on a nondiscriminatory basis after consideration by the
125-1 commission of the adequacy of existing service, the need for
125-2 additional service, the effect of the granting of a certificate on
125-3 the recipient of the certificate and on any telecommunications
125-4 utility of the same kind already serving the proximate area, and on
125-5 such factors as community values, recreational and park areas,
125-6 historical and aesthetic values, environmental integrity, and the
125-7 probable improvement of service or lowering of cost to consumers in
125-8 such area resulting from the granting of such certificate. (Sec.
125-9 54 (part))
125-10 Sec. 3.255. AREA INCLUDED WITHIN CITY, TOWN, OR VILLAGE.
125-11 (a) If an area has been or shall be included within the boundaries
125-12 of a city, town, or village as the result of annexation,
125-13 incorporation, or otherwise, all telecommunications utilities
125-14 certified or entitled to certification under this Act to provide
125-15 service or operate facilities in such area prior to the inclusion
125-16 shall have the right to continue and extend service in its area of
125-17 public convenience and necessity within the annexed or incorporated
125-18 area, pursuant to the rights granted by its certificate and this
125-19 Act.
125-20 (b) Notwithstanding any other provision of law, a
125-21 telecommunications utility shall have the right to continue and
125-22 extend service within its area of public convenience and necessity
125-23 and to utilize the roads, streets, highways, alleys, and public
125-24 property for the purpose of furnishing such retail utility service,
125-25 subject to the authority of the governing body of a municipality to
125-26 require any telecommunications utility, at its own expense, to
125-27 relocate its facilities to permit the widening or straightening of
126-1 streets by giving to the telecommunications utility 30 days' notice
126-2 and specifying the new location for the facilities along the
126-3 right-of-way of the street or streets.
126-4 (c) This section may not be construed as limiting the power
126-5 of cities, towns, and villages to incorporate or extend their
126-6 boundaries by annexation. (Sec. 55 (part))
126-7 Sec. 3.256. CONTRACTS VALID AND ENFORCEABLE. Contracts
126-8 between telecommunications utilities designating areas to be served
126-9 and customers to be served by those utilities, when approved by the
126-10 commission, shall be valid and enforceable and shall be
126-11 incorporated into the appropriate areas of public convenience and
126-12 necessity. (Sec. 56)
126-13 Sec. 3.257. PRELIMINARY ORDER FOR CERTIFICATE. If a
126-14 telecommunications utility desires to exercise a right or privilege
126-15 under a franchise or permit which it contemplates securing but
126-16 which has not as yet been granted to it, such telecommunications
126-17 utility may apply to the commission for an order preliminary to the
126-18 issuance of the certificate. The commission may thereupon make an
126-19 order declaring that it will, on application, under such rules as
126-20 it prescribes, issue the desired certificate on such terms and
126-21 conditions as it designates, after the telecommunications utility
126-22 has obtained the contemplated franchise or permit. On presentation
126-23 to the commission of evidence satisfactory to it that the franchise
126-24 or permit has been secured by the telecommunications utility, the
126-25 commission shall issue the certificate. (Sec. 57)
126-26 Sec. 3.258. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE,
126-27 REDUCTION, OR IMPAIRMENT OF SERVICE. (a) Except as provided by
127-1 this section or Section 3.259 of this Act, the holder of any
127-2 certificate of public convenience and necessity shall serve every
127-3 consumer within its certified area and shall render continuous and
127-4 adequate service within the area or areas.
127-5 (b) Unless the commission issues a certificate that neither
127-6 the present or future convenience and necessity will be adversely
127-7 affected, the holder of a certificate may not discontinue, reduce,
127-8 or impair service to a certified service area or part thereof
127-9 except for:
127-10 (1) nonpayment of charges;
127-11 (2) nonuse; or
127-12 (3) other similar reasons in the usual course of
127-13 business.
127-14 (c) Any discontinuance, reduction, or impairment of service,
127-15 whether with or without approval of the commission, shall be in
127-16 conformity with and subject to such conditions, restrictions, and
127-17 limitations as the commission shall prescribe. (Sec. 58)
127-18 Sec. 3.259. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
127-19 holder of a certificate of public convenience and necessity shall
127-20 refuse to serve a customer within its certified area if the holder
127-21 of the certificate is prohibited from providing the service under
127-22 Section 212.012 or 232.0047, Local Government Code. (Sec. 58A)
127-23 Sec. 3.260. SALE, ASSIGNMENT, OR LEASE OF CERTIFICATE. If
127-24 the commission determines that a purchaser, assignee, or lessee is
127-25 capable of rendering adequate service, a telecommunications utility
127-26 may sell, assign, or lease a certificate of public convenience and
127-27 necessity or any rights obtained under the certificate. The sale,
128-1 assignment, or lease shall be on the conditions prescribed by the
128-2 commission. (Sec. 59)
128-3 Sec. 3.261. INTERFERENCE WITH OTHER TELECOMMUNICATIONS
128-4 UTILITY. If a telecommunications utility in constructing or
128-5 extending its lines, plant, or system interferes or attempts to
128-6 interfere with the operation of a line, plant, or system of any
128-7 other utility, the commission may issue an order prohibiting the
128-8 construction or extension or prescribing terms and conditions for
128-9 locating the lines, plants, or systems affected. (Sec. 60)
128-10 Sec. 3.262. IMPROVEMENTS IN SERVICE; INTERCONNECTING
128-11 SERVICE; EXTENDED AREA TOLL-FREE TELEPHONE SERVICE. After notice
128-12 and hearing, the commission may:
128-13 (1) order a telecommunications utility to provide
128-14 specified improvements in its service in a defined area, if service
128-15 in such area is inadequate or is substantially inferior to service
128-16 in a comparable area and it is reasonable to require the company to
128-17 provide such improved service;
128-18 (2) order two or more utilities to establish specified
128-19 facilities for the interconnecting service; and
128-20 (3) order a telephone company or telephone companies
128-21 to provide extended area toll-free service within a specified
128-22 metropolitan area where there is a sufficient community of interest
128-23 within the area and such service can reasonably be provided. (Sec.
128-24 61)
128-25 Sec. 3.263. REVOCATION OR AMENDMENT OF CERTIFICATE.
128-26 (a) The commission at any time after notice and hearing may revoke
128-27 or amend any certificate of convenience and necessity if it finds
129-1 that the certificate holder has never provided or is no longer
129-2 providing service in the area or part of the area covered by the
129-3 certificate.
129-4 (b) When the certificate of any telecommunications utility
129-5 is revoked or amended, the commission may require one or more
129-6 public utilities to provide service in the area in question. (Sec.
129-7 62)
129-8 SUBTITLE G. PROVISION OF TELEPHONE SERVICE
129-9 Sec. 3.301. DEDICATED LINE LONG DISTANCE SERVICE. A
129-10 telecommunications utility providing dedicated line long distance
129-11 service (TEXAN) to the state on August 31, 1987, shall continue to
129-12 have this type of service available to the state on a
129-13 month-to-month contract basis until September 1, 1988. The
129-14 contract will become effective on September 1, 1987, and shall be
129-15 under terms and conditions negotiated by the state and the utility
129-16 in accordance with the amounts appropriated by the General
129-17 Appropriations Act for this purpose. The General Services
129-18 Commission shall perform all actions necessary to insure that one
129-19 or more contracts for telecommunications services as provided in
129-20 Article 10 of the State Purchasing and General Services Act
129-21 (Article 601b, Vernon's Texas Civil Statutes) (TEXAN II) are
129-22 awarded pursuant to the requirements of the State Purchasing and
129-23 General Services Act (Article 601b, Vernon's Texas Civil Statutes)
129-24 by October 15, 1987, and that TEXAN II is operational not later
129-25 than August 31, 1988. Those funds appropriated by the General
129-26 Appropriations Act for extending the existing TEXAN contract which
129-27 are not expended in fiscal year 1988 shall be transferred to the
130-1 General Services Commission for the sole purpose of offsetting the
130-2 expenses associated with the administration of the TEXAN II
130-3 network. If, during the period of time this section is in effect,
130-4 any supplemental or other telecommunications service is required by
130-5 the state, it may be acquired from vendors other than the utility
130-6 or utilities providing TEXAN or TEXAN II service. (Sec. 87B)
130-7 Sec. 3.302. CALLER IDENTIFICATION SERVICES. (a) This
130-8 section applies only to the provision of caller identification
130-9 service.
130-10 (b) A person may not offer a caller identification service
130-11 unless the person obtains written authorization from the
130-12 commission.
130-13 (c) The commission shall require that a provider of caller
130-14 identification service offer per-call blocking at no charge to each
130-15 telephone subscriber in the specific area in which the service is
130-16 offered.
130-17 (d) The commission shall require that a provider offer
130-18 per-line blocking at no charge to a particular customer if the
130-19 commission receives from the customer written certification that
130-20 the customer has a compelling need for per-line blocking. If a
130-21 customer later removes the per-line block, the provider may assess
130-22 a service order charge relating to administrative costs in an
130-23 amount approved by the commission to reinstate the per-line block.
130-24 The commission may prescribe and assess fees and assessments from
130-25 providers of caller identification service in an amount sufficient
130-26 to cover the additional expenses incurred by the commission in
130-27 implementing the customer certification provisions of this
131-1 subsection. Reports, records, and information received under this
131-2 subsection by the commission or by a provider of caller
131-3 identification service are confidential and may be used only for
131-4 the purposes of administering this subsection.
131-5 (e) The commission may only prescribe in relation to
131-6 blocking the requirements prescribed by Subsections (c) and (d) of
131-7 this section.
131-8 (f) A person may not use a caller identification service to
131-9 compile and sell specific local call information without the
131-10 affirmative consent and approval of the originating telephone
131-11 customer. This subsection does not prohibit the provider from:
131-12 (1) verifying network performance or from testing the
131-13 provision of caller identification service;
131-14 (2) compiling, using, and disclosing aggregate caller
131-15 identification information; or
131-16 (3) complying with applicable law or legal process.
131-17 (g) This section does not apply to:
131-18 (1) an identification service that is used within the
131-19 same limited system, including a central office based PBX-type
131-20 system;
131-21 (2) information that is used on a public agency's
131-22 emergency telephone line or on a line that receives the primary
131-23 emergency telephone number (9-1-1);
131-24 (3) information passed between telecommunications
131-25 utilities, enhanced service providers, or other entities that is
131-26 necessary for the set-up, processing, transmission, or billing of
131-27 telecommunications or related services;
132-1 (4) information provided in compliance with applicable
132-2 law or legal process; or
132-3 (5) an identification service provided in connection
132-4 with a "700," "800," or "900" access code telecommunications
132-5 service.
132-6 (h) In this section:
132-7 (1) "Caller identification information" means:
132-8 (A) the telephone listing number and/or name of
132-9 the customer from whose telephone instrument a telephone number is
132-10 dialed; or
132-11 (B) other information that may be used to
132-12 identify the specific originating number or originating location of
132-13 a wire or electronic communication transmitted by a telephone
132-14 instrument.
132-15 (2) "Caller identification service" means a service
132-16 offered by a telecommunications utility that provides caller
132-17 identification information to a device capable of displaying the
132-18 information.
132-19 (3) "Per-call blocking" means a telecommunications
132-20 service that prevents the transmission of caller identification
132-21 information to a called party on an individual call if the calling
132-22 party acts affirmatively to prevent the transmission of the caller
132-23 identification information.
132-24 (4) "Per-line blocking" means a telecommunications
132-25 service that prevents the transmission of caller identification
132-26 information to a called party on every call unless the calling
132-27 party acts affirmatively to release the caller identification
133-1 information. (Sec. 87C)
133-2 Sec. 3.303. INTEREXCHANGE SERVICES; LOCAL EXCHANGE
133-3 COMPANIES' RATES. Local exchange companies' rates for
133-4 interexchange telecommunications services must be statewide average
133-5 rates unless the commission on application and hearing orders
133-6 otherwise. Nothing in this section limits a local exchange
133-7 company's ability to enter into contracts for high speed private
133-8 line services of 1.544 megabits or greater under the provisions of
133-9 Section 3.051 of this Act. (Sec. 93)
133-10 Sec. 3.304. EXPANSION OF TOLL-FREE CALLING AREAS; CRITERIA.
133-11 (a) To address telephone calling needs between nearby telephone
133-12 exchanges, the commission shall initiate a rulemaking proceeding to
133-13 approve rules to provide for an expedited hearing to allow the
133-14 expanding of toll-free calling areas according to the following
133-15 criteria:
133-16 (1) Toll-free calling boundaries may only be expanded
133-17 under this section after the filing of a petition signed by the
133-18 lesser of five percent of the subscribers or 100 subscribers within
133-19 an exchange. If such a petition is filed with the commission, the
133-20 commission shall order the local exchange company to provide for
133-21 the balloting of its subscribers within the petitioning exchange
133-22 and, if there is an affirmative vote of at least 70 percent of
133-23 those responding, the commission shall consider the request.
133-24 (2) The commission shall provide for the expansion of
133-25 toll-free calling areas for each local exchange customer in the
133-26 petitioning exchange if the petitioning exchange serves not more
133-27 than 10,000 lines and if:
134-1 (A) the petitioning exchange is located within
134-2 22 miles of the exchange requested for toll-free calling service;
134-3 or
134-4 (B) the petitioning exchange shares a community
134-5 of interest with the exchange requested for toll-free calling
134-6 service. For purposes of this paragraph, "community of interest"
134-7 includes areas that have a relationship because of schools,
134-8 hospitals, local governments, business centers, and other
134-9 relationships the unavailability of which would cause a hardship to
134-10 the residents of the area but need not include an area where the
134-11 affected central offices are more than 50 miles apart.
134-12 (3)(A) The local exchange company shall recover all of
134-13 its costs incurred and all loss of revenue from any expansion of
134-14 toll-free calling areas under this section through a request other
134-15 than a revenue requirement showing by:
134-16 (i) a monthly fee for toll-free calling
134-17 service of not more than $3.50 per line for residential customers
134-18 nor more than $7 per line for business customers, to be collected
134-19 from all such residential or business customers in the petitioning
134-20 exchange and only until the local exchange company's next general
134-21 rate case;
134-22 (ii) a monthly fee for toll-free calling
134-23 service for all of the local exchange company's local exchange
134-24 service customers in the state in addition to the company's current
134-25 local exchange rates; or
134-26 (iii) both (i) and (ii).
134-27 (B) A local exchange company may not recover
135-1 regulatory case expenses under this section by surcharging
135-2 petitioning exchange subscribers.
135-3 (b)(1) The commission and a local exchange company are not
135-4 required to comply with this section with regard to a petitioning
135-5 exchange or petitioned exchange if:
135-6 (A) the commission determines that there has
135-7 been a good and sufficient showing of a geographic or technological
135-8 infeasibility to serve the area;
135-9 (B) the local exchange company has less than
135-10 10,000 lines;
135-11 (C) the petitioning or petitioned exchange is
135-12 served by a cooperative;
135-13 (D) extended area service or extended
135-14 metropolitan service is currently available between the petitioning
135-15 and petitioned exchanges; or
135-16 (E) the petitioning or petitioned exchange is a
135-17 metropolitan exchange.
135-18 (2) The commission may expand the toll-free calling
135-19 area into an exchange not within a metropolitan exchange but within
135-20 the local calling area contiguous to a metropolitan exchange that
135-21 the commission determines to have a community of interest
135-22 relationship with the petitioning exchange. For the purposes of
135-23 this section, metropolitan exchange, local calling area of a
135-24 metropolitan exchange, and exchange have the meanings and
135-25 boundaries as defined and approved by the commission on September
135-26 1, 1993. However, under no circumstances shall a petitioning or
135-27 petitioned exchange be split in the provision of a toll-free
136-1 calling area.
136-2 (c) The commission may, in order to promote the wide
136-3 dispersion of pay telephones, either exempt such telephones from
136-4 the provisions of this section or change the rates to be charged
136-5 from such telephones in an amount sufficient to promote this goal.
136-6 (Sec. 93A)
136-7 Sec. 3.305. PAY TELEPHONES; NUMBERS AND NOTICES DISPLAYED.
136-8 (a) A pay telephone service provider may not display the telephone
136-9 number of a pay telephone that cannot receive a telephone call.
136-10 (b) A pay telephone service provider shall place in a
136-11 conspicuous location on each pay telephone that cannot receive
136-12 telephone calls a notice stating in letters one-fourth inch high:
136-13 "THIS TELEPHONE CANNOT RECEIVE TELEPHONE CALLS."
136-14 (c) A pay telephone service provider that violates a
136-15 provision of this section or a rule or order adopted by the
136-16 commission under this section is subject to a civil penalty as
136-17 provided by Section 1.322 of this Act, unless such provider, within
136-18 14 days of receiving written notice of a violation, takes
136-19 corrective action to comply with the provisions of this section.
136-20 (d) The commission has jurisdiction over all pay telephone
136-21 service providers to the extent necessary to enforce this section
136-22 regardless of whether a pay telephone service provider is a
136-23 telecommunications utility regulated under this Act.
136-24 (e) The commission may adopt rules and establish procedures
136-25 to enforce this section. (Sec. 93A)
136-26 Sec. 3.306. HOTELS OR MOTELS; CHARGES FOR TELEPHONE CALLS.
136-27 The amount a hotel or motel charges for a local telephone call, a
137-1 credit card telephone call, a collect telephone call, or any other
137-2 local telephone call for which assistance from the hotel or motel
137-3 operator is not required may not exceed 50 cents. (Sec. 93B)
137-4 Sec. 3.307. "1-900" SERVICE. (a) A telecommunications
137-5 utility that transports or provides a "1-900" service under a
137-6 contract authorized by Article 42.131 or 42.18, Code of Criminal
137-7 Procedure, and its subsequent amendments, that is used by a
137-8 defendant under the supervision of a community supervision and
137-9 corrections department or the pardons and paroles division of the
137-10 Texas Department of Criminal Justice to pay a fee or cost or to
137-11 comply with telephone reporting requirements may adjust or
137-12 authorize the adjustment of an end-user's bill for those fees or
137-13 costs or charges for reporting only with the consent of the
137-14 contracting community supervision and corrections department or the
137-15 contracting pardons and paroles division of the Texas Department of
137-16 Criminal Justice.
137-17 (b) This section applies only to an intrastate "1-900"
137-18 service. (Sec. 93C)
137-19 SUBTITLE H. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM;
137-20 UNIVERSAL SERVICE FUND
137-21 Sec. 3.351. TEL-ASSISTANCE SERVICE. The commission shall
137-22 adopt and enforce rules requiring each local exchange company to
137-23 establish a telecommunications service assistance program to be
137-24 called "tel-assistance service." This service is established to
137-25 provide eligible consumers with a reduction in costs of
137-26 telecommunications services. (Sec. 94)
137-27 Sec. 3.352. ELIGIBILITY FOR TEL-ASSISTANCE SERVICE; BURDEN
138-1 OF PROOF; BILLING. (a) To be eligible for tel-assistance service,
138-2 an applicant must be a head of household, 65 years of age or older,
138-3 and disabled as determined by the Texas Department of Human
138-4 Services and must have a household income at or below the poverty
138-5 level as determined by the United States Office of Management and
138-6 Budget and reported annually in the Federal Register. The
138-7 department, in accordance with this subtitle and rules adopted by
138-8 the department for the program, shall develop procedures for taking
138-9 applications for certification of eligibility and for determining
138-10 program eligibility. The burden of proving eligibility for
138-11 tel-assistance service is on the consumer applying for the service.
138-12 (b) Each six months the department shall provide a list or
138-13 lists of the names, addresses, and, if applicable, telephone
138-14 numbers of all persons eligible for tel-assistance service to each
138-15 local exchange company. The local exchange company shall determine
138-16 from the list those consumers to whom the company provides service
138-17 and within 60 days after receiving the list shall begin
138-18 tel-assistance billing for eligible consumers. This billing shall
138-19 continue until the local exchange company is notified by the
138-20 department that a consumer is no longer eligible to receive
138-21 tel-assistance service. (Sec. 95)
138-22 Sec. 3.353. TEL-ASSISTANCE SERVICES; BILLING; RATES.
138-23 (a) The local exchange company shall provide tel-assistance
138-24 service to all eligible consumers within its certificated area in
138-25 the form of a reduction on each eligible consumer's telephone bill.
138-26 The reduction shall apply only to the following types of service:
138-27 (1) residential flat rate basic local exchange
139-1 service;
139-2 (2) residential local exchange access service; and
139-3 (3) residential local area calling usage, except that
139-4 the reduction for local area calling usage shall be limited to an
139-5 amount such that together with the reduction for local exchange
139-6 access service the rate does not exceed the comparable reduced flat
139-7 rate for the service.
139-8 (b) No other local voice service may be provided to the
139-9 dwelling place of a tel-assistance consumer, nor may single or
139-10 party line optional extended area service, optional extended area
139-11 calling service, foreign zone, or foreign exchange service be
139-12 provided to a tel-assistance consumer. Nothing in this section
139-13 shall prohibit a person otherwise eligible to receive
139-14 tel-assistance service from obtaining and using telecommunications
139-15 equipment designed to aid such person in utilizing
139-16 telecommunications services.
139-17 (c) The reduction allowed by the telecommunications service
139-18 assistance program shall be 65 percent of the applicable tariff
139-19 rate for the service provided. (Sec. 96)
139-20 Sec. 3.354. STATEWIDE TELECOMMUNICATIONS RELAY ACCESS
139-21 SERVICE FOR HEARING-IMPAIRED AND SPEECH-IMPAIRED. (a) The
139-22 commission shall adopt and enforce rules establishing a statewide
139-23 telecommunications relay access service for the hearing-impaired
139-24 and speech-impaired using specialized communications equipment such
139-25 as telecommunications devices for the deaf (TDD) and operator
139-26 translations. The purpose of this section is to provide for the
139-27 uniform and coordinated provision of the service on a statewide
140-1 basis by one telecommunications carrier.
140-2 (b) Commission rules relating to a statewide
140-3 telecommunications relay access service for the hearing-impaired
140-4 and speech-impaired shall provide that:
140-5 (1) the service shall provide the hearing-impaired and
140-6 speech-impaired with access to the telecommunications network in
140-7 Texas equal to that provided other customers;
140-8 (2) the service shall consist of the following:
140-9 (A) switching and transmission of the call;
140-10 (B) verbal and print translations by either live
140-11 or automated means between hearing-impaired and speech-impaired
140-12 individuals who use TDD equipment or similar automated devices and
140-13 others who do not have such equipment; and
140-14 (C) other service enhancements proposed by the
140-15 carrier and approved by the commission;
140-16 (3) the calling or called party shall bear no charge
140-17 for calls originating and terminating within the same local calling
140-18 area;
140-19 (4) the calling or called party shall bear one-half of
140-20 the total charges established by contract with the commission for
140-21 intrastate interexchange calls;
140-22 (5) as specified in its contract with the commission,
140-23 charges related to providing the service which are not borne by a
140-24 calling or called party pursuant to Subdivisions (3) and (4) of
140-25 this subsection shall be funded from the universal service fund;
140-26 (6) local exchange companies may not impose
140-27 interexchange carrier access charges on calls which make use of
141-1 this service and which originate and terminate in the same local
141-2 calling area;
141-3 (7) local exchange companies shall provide billing and
141-4 collection services in support of this service at just and
141-5 reasonable rates; and
141-6 (8) if the commission orders a local exchange company
141-7 to provide for a trial telecommunications relay access service for
141-8 the hearing-impaired or speech-impaired, all pertinent costs and
141-9 design information from this trial shall be available to the
141-10 general public.
141-11 (c) The commission shall allow telecommunications utilities
141-12 to recover their universal service fund assessment related to this
141-13 service through a surcharge which the utility may add to its
141-14 customers' bills. The commission shall specify how the amount of
141-15 the surcharge is to be determined by each utility. If a utility
141-16 chooses to impose the surcharge, the bill shall list the surcharge
141-17 as the "universal service fund surcharge."
141-18 (d) The commission shall set the appropriate assessments for
141-19 the funding of the service by all telecommunications utilities. In
141-20 setting the appropriate assessments, the commission shall consider
141-21 the aggregate calling pattern of the users of the service and all
141-22 other factors found appropriate and in the public interest by the
141-23 commission. The commission shall review the assessments annually
141-24 and adjust the assessments as found appropriate hereunder.
141-25 (e) The commission shall select the telecommunications
141-26 carrier which will provide the statewide telecommunications relay
141-27 access service for the hearing-impaired and speech-impaired. In
142-1 awarding the contract for this service, the commission shall make a
142-2 written award of the contract to the offerer whose proposal is the
142-3 most advantageous to the state, considering price, the interests of
142-4 the hearing-impaired and speech-impaired community in having access
142-5 to a high quality and technologically advanced telecommunications
142-6 system, and all other factors listed in the commission's request
142-7 for proposals. The commission shall consider each proposal in a
142-8 manner that does not disclose the contents of the proposal to
142-9 competing offerers. The commission's evaluation of the proposals
142-10 shall include:
142-11 (1) charges for the service;
142-12 (2) service enhancements proposed by the offerers;
142-13 (3) technological sophistication of the network
142-14 proposed by the offerers; and
142-15 (4) the proposed commencement date for the service.
142-16 (f) The telecommunications carrier providing the service
142-17 shall be compensated for providing such service at rates, terms,
142-18 and conditions established in its contract with the commission.
142-19 This compensation may include a return on the investment required
142-20 to provide the service and compensation for unbillable and
142-21 uncollectible calls placed through the service, provided that
142-22 compensation for unbillable and uncollectible calls shall be
142-23 subject to a reasonable limitation as determined by the commission.
142-24 (g) The advisory committee to assist the commission in
142-25 administering this section is composed of the following persons
142-26 appointed by the commission:
142-27 (1) two deaf persons recommended by the Texas
143-1 Association of the Deaf;
143-2 (2) one hearing-impaired person recommended by
143-3 Self-Help for the Hard of Hearing;
143-4 (3) one hearing-impaired person recommended by the
143-5 American Association of Retired Persons;
143-6 (4) one deaf and blind person recommended by the Texas
143-7 Deaf/Blind Association;
143-8 (5) one speech-impaired person and one speech-impaired
143-9 and hearing-impaired person recommended by the Coalition of Texans
143-10 with Disabilities;
143-11 (6) two representatives of telecommunications
143-12 utilities, one representing a nonlocal exchange utility and one
143-13 representing a local exchange company, chosen from a list of
143-14 candidates provided by the Texas Telephone Association;
143-15 (7) two persons, at least one of whom is deaf, with
143-16 experience in providing relay services recommended by the Texas
143-17 Commission for the Deaf and Hearing-Impaired; and
143-18 (8) two public members recommended by organizations
143-19 representing consumers of telecommunications services.
143-20 (h) The commission shall appoint advisory committee members
143-21 based on recommended lists of candidates submitted in accordance
143-22 with Subdivision (6) of Subsection (g) of this section. The
143-23 advisory committee shall monitor the establishment, administration,
143-24 and promotion of the statewide telecommunications relay access
143-25 service and advise the commission in pursuing a service which meets
143-26 the needs of the hearing-impaired and speech-impaired in
143-27 communicating with other users of telecommunications services. The
144-1 terms of office of each member of the advisory committee shall be
144-2 two years. A member whose term has expired shall continue to serve
144-3 until a qualified replacement is appointed. The members of the
144-4 advisory committee shall serve without compensation but shall be
144-5 entitled to reimbursement at rates established for state employees
144-6 for travel and per diem incurred in the performance of their
144-7 official duties. The commission shall reimburse members of the
144-8 advisory committee in accordance with this subsection and shall
144-9 provide clerical and staff support to the advisory committee,
144-10 including a secretary to record the committee meetings. The
144-11 commission's costs associated with the advisory committee shall be
144-12 reimbursed from the universal service fund. (Sec. 96A)
144-13 Sec. 3.355. DISTANCE LEARNING ACTIVITIES BY EDUCATIONAL
144-14 INSTITUTIONS; REDUCED RATES. (a) The commission by rule shall
144-15 require a dominant carrier to file a tariff containing a reduced
144-16 rate for a telecommunications service the commission finds is
144-17 directly related to a distance learning activity that is or could
144-18 be conducted by an educational institution in this state.
144-19 (b) The commission rules shall specify:
144-20 (1) the telecommunications services that qualify under
144-21 this section;
144-22 (2) the process by which an educational institution
144-23 qualifies for a reduced rate;
144-24 (3) the date by which a dominant carrier shall file a
144-25 tariff;
144-26 (4) guidelines and criteria by which the services and
144-27 reduced rates shall further the goals stated in Subsection (d) of
145-1 this section; and
145-2 (5) any other requirements, terms, and conditions that
145-3 the commission determines to be in the public interest.
145-4 (c) A tariff filing by a dominant carrier under this
145-5 section:
145-6 (1) shall concern only the implementation of this
145-7 section;
145-8 (2) is not a rate change under Section 3.211 of this
145-9 Act; and
145-10 (3) does not affect any of the carrier's other rates
145-11 or services.
145-12 (d) The services and reduced rates shall be designed to:
145-13 (1) encourage the development and offering of distance
145-14 learning activities by educational institutions;
145-15 (2) meet the distance learning needs identified by the
145-16 educational community; and
145-17 (3) recover the long-run incremental costs of
145-18 providing the services, to the extent those costs can be
145-19 identified, so as to avoid subsidizing educational institutions.
145-20 (e) The commission is not required to determine the long-run
145-21 incremental cost of providing a service before approving a reduced
145-22 rate for the service. Until cost determination rules are developed
145-23 and the rates established under this section are changed as
145-24 necessary to ensure proper cost recovery, the reduced rates
145-25 established by the commission shall be equal to 75 percent of the
145-26 otherwise applicable rate. After the commission develops cost
145-27 determination rules for telecommunications services generally, it
146-1 shall ensure that a reduced rate approved under this section
146-2 recovers service-specific long-run incremental costs and avoids
146-3 subsidization.
146-4 (f) An educational institution or dominant carrier may at
146-5 any time request the commission to:
146-6 (1) provide for a reduced rate for a service directly
146-7 related to a distance learning activity that is not covered by
146-8 commission rules;
146-9 (2) change a rate;
146-10 (3) amend a tariff; or
146-11 (4) amend a commission rule.
146-12 (g) If the commission determines that a change requested
146-13 under Subsection (f) is appropriate, it shall make the requested
146-14 change.
146-15 (h) In this section:
146-16 (1) "Distance learning" means instruction, learning,
146-17 and training that is transmitted from one site to one or more sites
146-18 by telecommunications services that are used by an educational
146-19 institution predominantly for such instruction, learning, or
146-20 training, including video, data, voice, and electronic information.
146-21 (2) "Educational institution" means and includes:
146-22 (A) accredited primary or secondary schools
146-23 owned or operated by state and local governmental entities or
146-24 private entities;
146-25 (B) institutions of higher education as defined
146-26 by Section 61.003, Education Code;
146-27 (C) private institutions of higher education
147-1 accredited by a recognized accrediting agency as defined by Section
147-2 61.003(13), Education Code;
147-3 (D) the Central Education Agency, its successors
147-4 and assigns;
147-5 (E) regional education service centers
147-6 established and operated pursuant to Sections 11.32 and 11.33,
147-7 Education Code; and
147-8 (F) the Texas Higher Education Coordinating
147-9 Board, its successors and assigns. (Sec. 96B)
147-10 Sec. 3.356. RECOVERY OF LOST REVENUES. A local exchange
147-11 company is entitled to recover the lost revenue, if any, resulting
147-12 solely from the provision of tel-assistance service from the
147-13 universal service fund, the establishment of which is provided for
147-14 by this Act. (Sec. 97)
147-15 Sec. 3.357. UNIVERSAL SERVICE FUND. (a) The commission
147-16 shall adopt and enforce rules requiring local exchange companies to
147-17 establish a universal service fund to assist local exchange
147-18 companies in providing basic local exchange service at reasonable
147-19 rates in high cost rural areas, to reimburse local exchange
147-20 companies for revenues lost as a result of providing tel-assistance
147-21 service under this Act, to reimburse the telecommunications carrier
147-22 providing the statewide telecommunications relay access service for
147-23 the hearing-impaired and speech-impaired as authorized in Section
147-24 3.354 of this Act, and to reimburse the Texas Department of Human
147-25 Services and the commission for costs incurred in implementing the
147-26 provisions of this subtitle.
147-27 (b) The universal service fund shall be funded by a
148-1 statewide uniform charge, at rates and on services determined by
148-2 the commission, payable by all telecommunications utilities that
148-3 have access to the customer base. In establishing the uniform
148-4 level of the charge and the services to which it will apply, the
148-5 commission may not make or grant an unreasonable preference or
148-6 advantage to a telecommunications utility or subject a
148-7 telecommunications utility to unreasonable prejudice or
148-8 disadvantage. The charge shall be paid in accordance with
148-9 procedures approved by the commission.
148-10 (c) The commission shall:
148-11 (1) establish, in a manner that assures reasonable
148-12 rates for basic local exchange service, eligibility criteria it
148-13 finds necessary for participation in the universal service fund;
148-14 (2) determine which local exchange companies meet the
148-15 eligibility criteria;
148-16 (3) determine the amount of and approve a procedure
148-17 for reimbursement to local exchange companies of revenue lost in
148-18 providing tel-assistance service under this Act;
148-19 (4) prescribe and collect fees from the universal
148-20 service fund necessary to recover the costs the Texas Department of
148-21 Human Services and the commission incurred in implementing and
148-22 administrating the provisions of this subtitle; and
148-23 (5) approve procedures for the collection and
148-24 disbursal of the revenues of the universal service fund.
148-25 (d) The commission shall adopt rules for the implementation
148-26 and administration of the universal service fund.
148-27 (e) The commission may do all things necessary and
149-1 convenient to implement and administer the universal service fund.
149-2 (Sec. 98)
149-3 Sec. 3.358. INTERACTIVE MULTIMEDIA COMMUNICATIONS. (a) The
149-4 commission shall permit a local exchange company that provides
149-5 interactive multimedia communications services to establish rates
149-6 at levels necessary, using sound ratemaking principles, to recover
149-7 costs associated with providing the services. Unless determined by
149-8 the commission to be in the public interest, a local exchange
149-9 company may not establish rates under this subsection that are less
149-10 than the local exchange company's long-run incremental costs of
149-11 providing the interactive multimedia communications services.
149-12 (b) In this section, "interactive multimedia communications"
149-13 has the meaning assigned by Section 14.0451(a), Education Code, as
149-14 added by Chapter 868, Acts of the 73rd Legislature, Regular
149-15 Session, 1993. (Sec. 98A)
149-16 Sec. 3.359. SEVERABILITY. If this subtitle conflicts with
149-17 another provision of this Act, this subtitle prevails. (Sec. 99)
149-18 SUBTITLE I. AUTOMATIC DIAL ANNOUNCING DEVICES
149-19 Sec. 3.401. DEFINITIONS. In this subtitle:
149-20 (1) "Automated dial announcing device" or "ADAD" means
149-21 automated equipment used for telephone solicitation or collection
149-22 that is capable:
149-23 (A) of storing telephone numbers to be called or
149-24 that has a random or sequential number generator capable of
149-25 producing numbers to be called; and
149-26 (B) alone or in conjunction with other
149-27 equipment, of conveying a prerecorded or synthesized voice message
150-1 to the number called without the use of a live operator.
150-2 (2) "LEC" means a local exchange company, as that term
150-3 is defined by Section 3.001 of this Act. (Sec. 111)
150-4 Sec. 3.402. EXEMPTIONS. This subtitle does not apply to the
150-5 use of an ADAD to make a telephone call:
150-6 (1) relating to an emergency or a public service under
150-7 a program developed or approved by the emergency management
150-8 coordinator of the county in which the call was received; or
150-9 (2) made by a public or private primary or secondary
150-10 school system to locate or account for a truant student. (Sec.
150-11 112)
150-12 Sec. 3.403. REQUIREMENTS FOR OPERATION OF ADAD. (a) A
150-13 person may not operate an ADAD to make a telephone call if the
150-14 device plays a recorded message when a connection is completed to a
150-15 telephone number unless:
150-16 (1) the person has obtained a permit from the
150-17 commission and given written notice specifying the type of device
150-18 to each telecommunications utility over whose system the device is
150-19 to be used;
150-20 (2) the device is not used for random number dialing
150-21 or to dial numbers determined by successively increasing or
150-22 decreasing integers;
150-23 (3) the message states during the first 30 seconds of
150-24 the call the nature of the call, the identity of the person,
150-25 company, or organization making the call, and the telephone number
150-26 from which the call was made;
150-27 (4) the device disconnects from the called person's
151-1 line not later than 30 seconds after the call is terminated by
151-2 either party or, if the device cannot disconnect within that
151-3 period, a live operator introduces the call and receives the oral
151-4 consent of the called person before beginning a prerecorded or
151-5 synthesized voice message; and
151-6 (5) for calls terminating in this state, the device is
151-7 not used to make a call:
151-8 (A) before noon or after 9 p.m. on a Sunday or
151-9 before 9 a.m. or after 9 p.m. on a weekday or a Saturday, if the
151-10 device is used for solicitation; or
151-11 (B) at an hour at which collection calls would
151-12 be prohibited under the federal Fair Debt Collection Practices Act
151-13 (15 U.S.C. Section 1692 et seq.), if the device is used for
151-14 collection purposes.
151-15 (b) In addition to the requirements prescribed by Subsection
151-16 (a) of this section, if during the call a cross-promotion or
151-17 reference to a pay-per-call information service is made, the call
151-18 shall include:
151-19 (1) a statement that a charge will be incurred by a
151-20 caller who makes a call to a pay-per-call information services
151-21 telephone number;
151-22 (2) the amount of the flat-rate or cost-per-minute
151-23 charge that will be incurred or the amount of both if both charges
151-24 will be incurred; and
151-25 (3) the estimated amount of time required to receive
151-26 the entire information offered by the service during a call.
151-27 (c) In this section, "pay-per-call information service"
152-1 means a service that allows a caller to dial a specified "900" or
152-2 "976" number to call a service that routinely delivers, for a
152-3 predetermined and sometimes time-sensitive fee, a prerecorded or
152-4 live message or interactive program. (Sec. 113)
152-5 Sec. 3.404. INVESTIGATION OF COMPLAINTS; VIOLATIONS;
152-6 DISCONNECTION OF SERVICE. (a) The commission shall investigate
152-7 complaints relating to the use of an ADAD and enforce this
152-8 subtitle.
152-9 (b) If the commission or a court determines that a person
152-10 has violated this subtitle, the commission or court shall require a
152-11 telecommunications utility to disconnect service to the person.
152-12 The telecommunications utility may reconnect service to the person
152-13 only on a determination by the commission that the person will
152-14 comply with this subtitle. The utility shall give notice to the
152-15 person using the device of its intent to disconnect service not
152-16 later than the third day before the date of the disconnection,
152-17 except that if the device is causing network congestion or
152-18 blockage, the notice may be given on the day before the date of
152-19 disconnection.
152-20 (c) A telecommunications utility may, without an order by
152-21 the commission or a court, disconnect or refuse to connect service
152-22 to a person using or intending to use an ADAD if the utility
152-23 determines that the device would cause or is causing network harm.
152-24 (Sec. 114)
152-25 Sec. 3.405. APPLICATION FOR PERMIT TO OPERATE ADAD. (a) An
152-26 application for a permit to use one or more ADADs must be made
152-27 using the form prescribed by the commission and must be accompanied
153-1 by a fee in a reasonable amount computed to cover the enforcement
153-2 cost to the commission, but not to exceed $500, as determined by
153-3 the commission. A permit is valid for one year after its effective
153-4 date. Subject to Subsection (c) of this section, a permit may be
153-5 renewed annually by making the filing required by this section and
153-6 paying a filing fee of not more than $100, as determined by the
153-7 commission. The proceeds of the fees shall be deposited to the
153-8 credit of the general revenue fund.
153-9 (b) Each application for the issuance or renewal of a permit
153-10 under this section must contain the telephone number of each ADAD
153-11 that will be used and the physical address from which the ADAD will
153-12 operate. If the telephone number of an ADAD or the physical
153-13 address from which the ADAD operates changes, the owner or operator
153-14 of the ADAD shall notify the commission by certified mail of each
153-15 new number or address not later than the 48th hour before the hour
153-16 at which the ADAD will begin operating with the new telephone
153-17 number or at the new address. If the owner or operator of an ADAD
153-18 fails to notify the commission as required by this subsection
153-19 within the period prescribed by this subsection, the permit is
153-20 automatically invalid.
153-21 (c) In determining if a permit should be issued or renewed,
153-22 the commission shall consider the compliance record of the owner or
153-23 operator of the ADAD. The commission may deny an application for
153-24 the issuance or renewal of a permit because of the applicant's
153-25 compliance record.
153-26 (d) The commission shall provide to an LEC on request a copy
153-27 of a permit issued under this section and of any changes relating
154-1 to the permit.
154-2 (e) An LEC that receives a complaint relating to the use of
154-3 an ADAD shall send the complaint to the commission. The commission
154-4 by rule shall prescribe the procedures and requirements for sending
154-5 a complaint to the commission. (Sec. 115)
154-6 Sec. 3.406. VIOLATIONS; PENALTIES. (a) A person who owns
154-7 or operates an ADAD and who operates the ADAD without a valid
154-8 permit or with an expired permit or who operates the ADAD in
154-9 violation of this subtitle or a commission rule or order is subject
154-10 to an administrative penalty of not more than $1,000 for each day
154-11 or portion of a day during which the ADAD was operating in
154-12 violation of this section.
154-13 (b) The administrative penalty authorized by this section is
154-14 civil in nature and is cumulative of any other penalty provided by
154-15 law.
154-16 (c) The commission by rule shall prescribe the procedures
154-17 for assessing an administrative penalty under this section. The
154-18 procedures shall require proper notice and hearing in accordance
154-19 with Chapter 2001, Government Code.
154-20 (d) A person may appeal the final order of the commission
154-21 under Chapter 2001, Government Code, using the substantial evidence
154-22 rule on appeal.
154-23 (e) The proceeds of administrative penalties collected under
154-24 this section shall be deposited to the credit of the general
154-25 revenue fund. (Sec. 116)
154-26 Sec. 3.407. REVOCATION OF PERMIT; OFFENSES. (a) The
154-27 commission may revoke a permit issued under this subtitle for
155-1 failure to comply with this subtitle.
155-2 (b) A person commits an offense if the person owns or
155-3 operates an ADAD that the person knows is operating in violation of
155-4 this subtitle. An offense under this subsection is a Class A
155-5 misdemeanor. (Sec. 117)
155-6 Sec. 3.408. RULEMAKING AUTHORITY. The commission may adopt
155-7 any rules necessary to carry out its powers and duties under this
155-8 subtitle. (Sec. 118)
155-9 Sec. 3.409. COMPLIANCE WITH CONSUMERS' REQUESTS NOT TO BE
155-10 CALLED. Every telephone solicitor operating in this state who
155-11 makes consumer telephone calls subject to Section 37.02 of the
155-12 Business & Commerce Code shall implement in-house systems and
155-13 procedures so that every effort is made not to call consumers who
155-14 ask not to be called again. The commission is granted all
155-15 necessary power and authority to enforce the provisions of this
155-16 section. (Sec. 119)
155-17 Sec. 3.410. NOTICE TO CONSUMER OF PROVISIONS OF CHAPTER 37
155-18 OF THE BUSINESS & COMMERCE CODE AND SECTION 3.409. The commission
155-19 by rule shall require that a local exchange company or telephone
155-20 cooperative inform its customers of the provisions of Chapter 37 of
155-21 the Business & Commerce Code and Section 3.409 of this Act by:
155-22 (1) inserting the notice annually in the billing
155-23 statement mailed to a customer; or
155-24 (2) publishing the notice in the consumer information
155-25 pages of its local telephone directory. (Sec. 120)
155-26 SECTION 2. (a) The Public Utility Regulatory Act (Article
155-27 1446c, Vernon's Texas Civil Statutes) is repealed.
156-1 (b) A reference in law to the "Public Utility Regulatory
156-2 Act" means the "Public Utility Regulatory Act of 1995."
156-3 SECTION 3. (a) This Act is a nonsubstantive revision of the
156-4 Public Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
156-5 Statutes) and is subject to the applicable provisions of law
156-6 relating to the interpretation of nonsubstantive revisions of law.
156-7 (b) The repeal of the Public Utility Regulatory Act by this
156-8 Act does not affect an amendment of the Public Utility Regulatory
156-9 Act by the 74th Legislature, Regular Session, 1995. The amendment
156-10 is preserved and given effect as part of this Act.
156-11 (c) If a provision of this Act conflicts with a statute
156-12 enacted by the 74th Legislature, Regular Session, 1995, the statute
156-13 controls.
156-14 SECTION 4. The importance of this legislation and the
156-15 crowded condition of the calendars in both houses create an
156-16 emergency and an imperative public necessity that the
156-17 constitutional rule requiring bills to be read on three several
156-18 days in each house be suspended, and this rule is hereby suspended,
156-19 and that this Act take effect and be in force from and after its
156-20 passage, and it is so enacted.