By Armbrister S.B. No. 319
74R4078 CBH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a nonsubstantive recodification of the Public Utility
1-3 Regulatory Act.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The Public Utility Regulatory Act of 1995 is
1-6 enacted to read as follows:
1-7 TITLE I. PROVISIONS APPLICABLE TO ALL UTILITIES
1-8 SUBTITLE A. GENERAL PROVISIONS
1-9 Sec. 1.001. SHORT TITLE. This Act may be referred to as the
1-10 "Public Utility Regulatory Act of 1995." (Sec. 1)
1-11 Sec. 1.002. LEGISLATIVE POLICY AND PURPOSE. This Act is
1-12 enacted to protect the public interest inherent in the rates and
1-13 services of public utilities. The legislature finds that public
1-14 utilities are by definition monopolies in the areas they serve;
1-15 that therefore the normal forces of competition which operate to
1-16 regulate prices in a free enterprise society do not operate; and
1-17 that therefore utility rates, operations and services are regulated
1-18 by public agencies, with the objective that this regulation shall
1-19 operate as a substitute for competition. The purpose of this Act
1-20 is to establish a comprehensive regulatory system which is adequate
1-21 to the task of regulating public utilities as defined by this Act,
1-22 to assure rates, operations, and services which are just and
1-23 reasonable to the consumers and to the utilities. (Sec. 2)
1-24 Sec. 1.003. DEFINITIONS IN ACT. 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 and any and all things furnished or supplied, and any
5-27 and all facilities used, furnished, or supplied by public utilities
6-1 in 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 ON 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. (a)
11-20 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 plans shall include:
14-24 (1) a comprehensive analysis of all the agency's work
14-25 force by race, sex, ethnic origin, class of position, and salary or
14-26 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 work force; 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 plans 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, and any court of
17-17 the United States, and before 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 the Public Utility Regulatory Act,
18-12 to provide legal services directly or indirectly to or be employed
18-13 in any capacity by a utility company regulated under the Public
18-14 Utility Regulatory Act, its parent, or its subsidiary companies,
18-15 corporations, or cooperatives; but such person may otherwise engage
18-16 in the private practice of law after the termination of employment
18-17 as the counsellor. (Sec. 15A(e))
18-18 Sec. 1.053. EMPLOYEES. The counsellor may employ such
18-19 lawyers, economists, engineers, consultants, statisticians,
18-20 accountants, clerical staff, and other employees as he or she deems
18-21 necessary to carry out the provisions of this section. All
18-22 employees shall receive such compensation as is fixed by the
18-23 legislature from the assessment imposed by Section 1.351 of this
18-24 Act. (Sec. 15A(c))
18-25 Sec. 1.054. POWERS AND DUTIES. (a) The Office of Public
18-26 Utility Counsel:
18-27 (1) shall assess the impact of utility rate changes
19-1 and other regulatory actions on residential consumers in the State
19-2 of Texas and shall be an advocate in its own name of positions most
19-3 advantageous to a substantial number of such consumers as
19-4 determined by the counsellor;
19-5 (2) may appear or intervene as a matter of right as a
19-6 party or otherwise on behalf of residential consumers, as a class,
19-7 in all proceedings before the commission;
19-8 (3) may appear or intervene as a matter of right as a
19-9 party or otherwise on behalf of small commercial consumers, as a
19-10 class, in all proceedings where it is deemed by the counsel that
19-11 small commercial consumers are in need of representation;
19-12 (4) may initiate or intervene as a matter of right or
19-13 otherwise appear in any judicial proceedings involving or arising
19-14 out of any action taken by an administrative agency in a proceeding
19-15 in which the counsel was authorized to appear;
19-16 (5) may have access as any party, other than staff, to
19-17 all records gathered by the commission under the authority of
19-18 Subsection (a) of Section 1.203 of this Act;
19-19 (6) may obtain discovery of any nonprivileged matter
19-20 which is relevant to the subject matter involved in any proceeding
19-21 or petition before the commission;
19-22 (7) may represent individual residential and small
19-23 commercial consumers with respect to their disputed complaints
19-24 concerning utility services unresolved before the commission; and
19-25 (8) may recommend legislation to the legislature which
19-26 in its judgment would positively affect the interests of
19-27 residential and small commercial consumers.
20-1 (b) Nothing in this section shall be construed as in any way
20-2 limiting the authority of the commission to represent residential
20-3 or small commercial consumers.
20-4 (c) The appearance of the Public Counsel in any proceeding
20-5 in no way precludes the appearance of other parties on behalf of
20-6 residential ratepayers or small commercial consumers. The Public
20-7 Counsel may not be grouped with any other parties. (Secs.
20-8 15A(f)-(h))
20-9 (Sec. 15A(i) deleted)
20-10 SUBTITLE D. COMMISSION JURISDICTION
20-11 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
20-12 (a) The commission has the general power to regulate and supervise
20-13 the business of every public utility within its jurisdiction and to
20-14 do all things, whether specifically designated in this Act or
20-15 implied herein, necessary and convenient to the exercise of this
20-16 power and jurisdiction.
20-17 (b) The commission shall make and enforce rules reasonably
20-18 required in the exercise of its powers and jurisdiction, including
20-19 rules governing practice and procedure before the commission.
20-20 (c) The commission may call and hold hearings, administer
20-21 oaths, receive evidence at hearings, issue subpoenas to compel the
20-22 attendance of witnesses and the production of papers and documents,
20-23 and make findings of fact and decisions with respect to
20-24 administering the provisions of this Act or the rules, orders, or
20-25 other actions of the commission.
20-26 (d) Notwithstanding any other provision of this Act or other
20-27 law, in proceedings other than those involving major rate changes,
21-1 the commission may delegate to an administrative law judge or
21-2 hearings examiner the authority to make a final decision and to
21-3 issue findings of fact, conclusions of law, and other necessary
21-4 orders in a proceeding in which there is no contested issue of fact
21-5 or law. The commission, by rule, shall define the procedures by
21-6 which it delegates final decision making authority authorized by
21-7 this section. For review purposes the final decision of the
21-8 administrative law judge or hearings examiner has the same effect
21-9 as a final decision of the commission unless a commissioner
21-10 requests formal review of the decision. (Sec. 16(a))
21-11 Sec. 1.102. AUDITS. (a) The commission shall inquire into
21-12 the management of the business of all public utilities under its
21-13 jurisdiction, shall keep itself informed as to the manner and
21-14 method in which the management and business is conducted, and shall
21-15 obtain from any public utility all necessary information to enable
21-16 the commission to perform management audits.
21-17 (b) The commission may audit each utility under the
21-18 jurisdiction of the commission as frequently as needed, but shall
21-19 audit each utility at least once every 10 years. Six months after
21-20 any audit, the utility shall report to the commission on the status
21-21 of the implementation of the recommendations of the audit and shall
21-22 file subsequent reports at such times as the commission deems
21-23 appropriate. (Sec. 16(h))
21-24 Sec. 1.103. FRANCHISES. Nothing in this Act shall be
21-25 construed as in any way limiting the rights and powers of a
21-26 municipality to grant or refuse franchises to use the streets and
21-27 alleys within its limits and to make the statutory charges for the
22-1 use thereof, but a provision of any franchise agreement may not
22-2 limit or interfere with any power conferred on the commission by
22-3 this Act. (Sec. 21 (part))
22-4 SUBTITLE E. RECORDS, REPORTS, INSPECTIONS, AND SERVICES
22-5 Sec. 1.201. RECORDS OF PUBLIC UTILITY. (a) Every public
22-6 utility shall keep and render to the regulatory authority in the
22-7 manner and form prescribed by the commission uniform accounts of
22-8 all business transacted.
22-9 (b) The commission may also prescribe forms of books,
22-10 accounts, records, and memoranda to be kept by such public
22-11 utilities, including the books, accounts, records, and memoranda of
22-12 the rendition of and capacity for service as well as the receipts
22-13 and expenditures of moneys, and any other forms, records, and
22-14 memoranda which in the judgment of the commission may be necessary
22-15 to carry out any of the provisions of this Act.
22-16 (c) In the case of any public utility subject to regulations
22-17 by a federal regulatory agency, compliance with the system of
22-18 accounts prescribed for the particular class of utilities by such
22-19 agency may be deemed a sufficient compliance with the system
22-20 prescribed by the commission; provided, however, that the
22-21 commission may prescribe forms of books, accounts, records, and
22-22 memoranda covering information in addition to that required by the
22-23 federal agency. The system of accounts and the forms of books,
22-24 accounts, records, and memoranda prescribed by the commission for a
22-25 public utility or class of utilities may not conflict nor be
22-26 inconsistent with the systems and forms established by a federal
22-27 agency for that public utility or class of utilities.
23-1 (d) Every public utility is required to keep and render its
23-2 books, accounts, records, and memoranda accurately and faithfully
23-3 in the manner and form prescribed by the commission, and to comply
23-4 with all directions of the regulatory authority relating to such
23-5 books, accounts, records, and memoranda. The regulatory authority
23-6 may require the examination and audit of all accounts.
23-7 (e) For the purposes of this section, "public utility"
23-8 includes "municipally owned utility." (Secs. 27(a), (d), (f))
23-9 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
23-10 have the power to:
23-11 (1) require that public utilities report to it such
23-12 information relating to themselves and affiliated interests both
23-13 within and without the State of Texas as it may consider useful in
23-14 the administration of this Act;
23-15 (2) establish forms for all reports;
23-16 (3) determine the time for reports and the frequency
23-17 with which any reports are to be made;
23-18 (4) require that any reports be made under oath;
23-19 (5) require that a copy of any contract or arrangement
23-20 between any public utility and any affiliated interest be filed
23-21 with it. It may require any such contract or arrangement not in
23-22 writing to be reduced to writing and filed with it;
23-23 (6) require that a copy of any report filed with any
23-24 federal agency or any governmental agency or body of any other
23-25 state be filed with it;
23-26 (7) require that a copy of annual reports showing all
23-27 payments of compensation (other than salary or wages subject to the
24-1 withholding of federal income tax) to residents of Texas, or with
24-2 respect to legal, administrative, or legislative matters in Texas,
24-3 or for representation before the Texas Legislature or any
24-4 governmental agency or body; and
24-5 (8) the railroad commission shall have the power to
24-6 review and approve, for purposes of the Outer Continental Shelf
24-7 Lands Act Amendments of 1978 and any other federal authorities,
24-8 applications by gas utilities for the purchase of natural gas from
24-9 producing affiliates.
24-10 (b) On the request of the governing body of any
24-11 municipality, the commission may provide sufficient staff members
24-12 to advise and consult with such municipality on any pending matter.
24-13 (Sec. 28)
24-14 Sec. 1.203. INSPECTIONS; EXAMINATION UNDER OATH; COMPELLING
24-15 PRODUCTION OF RECORDS; INQUIRY INTO MANAGEMENT AND AFFAIRS. (a)
24-16 Any regulatory authority, and when authorized by the regulatory
24-17 authority, its counsel, agents, and employees, shall have the
24-18 right, at reasonable times and for reasonable purposes, to inspect
24-19 and obtain copies of the papers, books, accounts, documents, and
24-20 other business records, and to inspect the plant, equipment, and
24-21 other property of any public utility within its jurisdiction. The
24-22 regulatory authority may examine under oath, or it may authorize
24-23 the person conducting such investigation to examine under oath, any
24-24 officer, agent, or employee of any public utility in connection
24-25 with such investigation. The regulatory authority may require, by
24-26 order or subpoena served on any public utility, the production
24-27 within this state at the time and place it may designate, of any
25-1 books, accounts, papers, or records kept by that public utility
25-2 outside the state, or verified copies in lieu thereof if the
25-3 commission so orders. Any public utility failing or refusing to
25-4 comply with any such order or subpoena is in violation 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
29-2 against the regulation fund reasonable fees for attorneys and
29-3 expert witnesses and other costs for its efforts before the
29-4 commission and the court, the amount of such attorneys' fees to be
29-5 fixed by the 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 the 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
29-14 engage in, any act in violation of this Act or of any order, rule,
29-15 or 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 upon 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 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 Bureau of Business
43-9 Research, 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 plant. (Secs. 16(b)-(f))
43-17 Sec. 2.052. ENCOURAGEMENT OF ECONOMIC 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 the
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
48-5 governing body of any municipality, including making members of the
48-6 staff available as witnesses and otherwise providing evidence to
48-7 them. (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 cost
51-7 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 preparation of and filing
53-13 of a petition for appeal and in preparation of expert testimony or
53-14 legal representation for an appeal. Any party or customer who is a
53-15 member of a party who makes a financial contribution or in-kind
53-16 contribution to assist in an appeal of another party or customer
53-17 class under Subsection (c) of this section shall, upon a finding of
53-18 the commission to that effect, be required to pay the municipally
53-19 owned utility a penalty equivalent in amount to two times the
53-20 contribution. Nothing in this subsection shall be construed to
53-21 limit the right of any party or customer to expend funds to
53-22 represent its own interests following the filing of a petition with
53-23 the commission under Subsection (c) of this section.
53-24 (e) Any municipally owned electric utility whose rates have
53-25 been or are appealed under Subsection (c) of this section, and for
53-26 which the commission has ordered or orders a decrease in annual
53-27 nonfuel base revenues which exceeds the greater of $25,000,000 or
54-1 10 percent of the utility's nonfuel base revenues, as calculated on
54-2 a total system basis (without regard to the municipal utility's
54-3 corporate boundaries) and established in the rate ordinance or
54-4 ordinances appealed from, and for which the commission has found or
54-5 finds that the rates paid by the combined residential or any other
54-6 major customer class (other than any class or classes where the
54-7 city is itself the customer of the municipally owned utility) are
54-8 removed from cost of service levels to the extent that, under the
54-9 nonfuel base revenue requirement adopted by the commission (as
54-10 computed on a total system basis without regard to the
54-11 municipality's corporate boundaries), a change in nonfuel base rate
54-12 revenues in excess of 50 percent from adjusted test year levels
54-13 would be required to move that class to a relative rate of return
54-14 of unity (1.00 or 100 percent) under the cost of service
54-15 methodology adopted by the commission in an appeal under Subsection
54-16 (c) of this section, shall thereafter be subject to the following:
54-17 (1) For a period of 10 years beginning on the later of
54-18 August 28, 1989, or the effective date of the rate ordinance which
54-19 was the subject of the commission's final order invoking the
54-20 application of this subsection, the commission shall have appellate
54-21 jurisdiction over the rates charged by the municipally owned
54-22 utility, outside the municipality's corporate limits, in the manner
54-23 and to the extent provided in this subsection.
54-24 (2) Ratepayers of a municipally owned utility subject
54-25 to this subsection who reside outside the municipality's corporate
54-26 limits may appeal any action of the governing body affecting the
54-27 rates charged by the municipally owned electric utility outside the
55-1 corporate limits through filing with the commission a petition for
55-2 review in accordance with the same procedures, requirements, and
55-3 standards applicable to appeals brought under Subsection (c) of
55-4 this section, except as otherwise specifically provided in this
55-5 subsection. The petition for review must plainly disclose that the
55-6 cost of bringing and pursuing the appeal will be funded by a
55-7 surcharge on the monthly electric bills of outside-city ratepayers
55-8 in a manner prescribed by the commission.
55-9 (A) Upon commission approval of the sufficiency
55-10 of a petition, the appellants shall submit for the approval of the
55-11 Office of Public Utility Counsel a budget itemizing the scope and
55-12 expected cost of consultant services to be purchased by the
55-13 appellants in connection with the appeal.
55-14 (B) After a final order has been entered by the
55-15 commission in the appeal, the consultant and legal costs approved
55-16 by public counsel as reasonable shall be assessed by the
55-17 municipality on a per capita basis among residential ratepayers who
55-18 reside outside the municipality. Surcharges shall be assessed in a
55-19 one-time charge not later than 120 days following entry of the
55-20 commission's final order. Costs incurred by the appellants shall
55-21 be reimbursed by the municipality within not later than 90 days
55-22 following the date the commission enters its final order.
55-23 (C) The municipality may not include the costs
55-24 associated with its defense of an appeal under this subsection in
55-25 the rates of outside-city ratepayers. Nor shall the municipality,
55-26 if it appeals from an order entered by the commission under this
55-27 subsection, include the costs associated with its appeal in the
56-1 rates of ratepayers who reside outside the city.
56-2 (D) Ratepayers who appeal under this subsection
56-3 may not receive funding for rate case expenses except from
56-4 residential ratepayers who reside outside the municipality's
56-5 boundaries or from other municipalities inside whose corporate
56-6 limits the municipally owned utility provides service. The
56-7 commission shall adopt rules for the reporting of financial and
56-8 in-kind contributions in support of appeals brought under this
56-9 subsection. Upon a finding by the commission that an appellant has
56-10 received contributions from any source other than outside-city
56-11 ratepayers or such other municipalities, the appeal and orders of
56-12 the commission entered therein shall be null and void.
56-13 (3) In appeals under this subsection, the commission
56-14 shall have jurisdiction and authority to review and ensure that the
56-15 revenue requirements of any municipally owned utility subject to
56-16 this subsection are reasonable, but such jurisdiction and authority
56-17 does not extend to regulation of the use and level of any transfer
56-18 of the utility's revenues to the municipality's general fund. The
56-19 commission shall also have jurisdiction and authority to review the
56-20 cost allocation and rate design methodologies adopted by the
56-21 governing body of the municipally owned utility. If the commission
56-22 finds that such cost of service methodologies result in rates which
56-23 are unjust, unreasonable, or unreasonably discriminatory or unduly
56-24 preferential to any customer class, then the commission may order
56-25 the implementation of ratesetting methodologies which the
56-26 commission finds reasonable; provided, however, that the
56-27 commission's jurisdiction under this subsection does not encompass
57-1 matters of intra-class residential rate design.
57-2 (4) An intervenor in an appeal brought under this
57-3 subsection shall be limited to presenting testimony and evidence on
57-4 cost allocation and rate design methodologies, except that
57-5 intervenors may present evidence and testimony in support of the
57-6 municipality on issues related to utility revenues.
57-7 (5) An appellant ratepayer residing outside the
57-8 corporate limits of a municipally owned utility subject to this
57-9 subsection shall, in appealing from a rate ordinance or other
57-10 ratesetting action of the municipality's governing board, elect to
57-11 petition for review under either Subsection (c) of this section or
57-12 this subsection.
57-13 (f) The appeal process shall be instituted within 30 days of
57-14 the final decision by the governing body with the filing of a
57-15 petition for review with the commission and copies served on all
57-16 parties to the original rate proceeding.
57-17 (g) The commission shall hear such appeal de novo based on
57-18 the test year presented to the municipality and by its final order
57-19 shall fix such rates as the municipality should have fixed in the
57-20 ordinance from which the appeal was taken. In the event that the
57-21 commission fails to enter its final order: (1) for proceedings
57-22 involving the rates of a municipally owned utility, within 185 days
57-23 from the date on which the appeal is perfected or on which the
57-24 utility files a rate application as prescribed by Subsection (c) of
57-25 this section; or (2) for proceedings in which similar relief has
57-26 also been concurrently sought from the commission under its
57-27 original jurisdiction, within 120 days from the date such appeal is
58-1 perfected or the date upon which final action must be taken in the
58-2 similar proceedings so filed with the commission whichever shall
58-3 last occur; or (3) in all other proceedings, within 185 days from
58-4 the date such appeal is perfected, the schedule of rates proposed
58-5 by the utility shall be deemed to have been approved by the
58-6 commission and effective upon the expiration of said applicable
58-7 period. Any rates, whether temporary or permanent, set by the
58-8 commission shall be prospective and observed from and after the
58-9 applicable order of the commission, except interim rate orders
58-10 necessary to effect uniform system-wide rates. (Sec. 26--Subsec.
58-11 (c) fixed)
58-12 SUBTITLE D. RATES AND SERVICES
58-13 Sec. 2.151. RATES; METHODS AND ACCOUNTS. (a) The
58-14 commission shall fix proper and adequate rates and methods of
58-15 depreciation, amortization, or depletion of the several classes of
58-16 property of each electric utility, and shall require every electric
58-17 utility to carry a proper and adequate depreciation account in
58-18 accordance with such rates and methods and with such other rules
58-19 and regulations as the commission prescribes. Such rates, methods,
58-20 and accounts shall be utilized uniformly and consistently
58-21 throughout the ratesetting and appeal proceedings.
58-22 (b) Every electric utility shall keep separate accounts to
58-23 show all profits or losses resulting from the sale or lease of
58-24 appliances, fixtures, equipment, or other merchandise. This profit
58-25 or loss may not be taken into consideration by the regulatory
58-26 authority in arriving at any rate to be charged for service by any
58-27 such electric utility, to the extent that such merchandise is not
59-1 integral to the provision of utility service.
59-2 (c) In determining the allocation of tax savings derived
59-3 from application of such methods as liberalized depreciation and
59-4 amortization and the investment tax credit, the regulatory
59-5 authority shall equitably balance the interests of present and
59-6 future customers and shall apportion such benefits between
59-7 consumers and the electric utilities accordingly. Where any
59-8 portion of the investment tax credit has been retained by an
59-9 electric utility, that same amount shall be deducted from the
59-10 original cost of the facilities or other addition to the rate base
59-11 to which the credit applied, to the extent allowed by the Internal
59-12 Revenue Code.
59-13 (d) For the purposes of this section, "electric utility"
59-14 includes "municipally owned utility." (Secs. 27(b), (c), (e), (f))
59-15 Sec. 2.152. REPORTING OF ADVERTISING OR PUBLIC RELATIONS
59-16 EXPENSES. (a) The regulatory authority may require an annual
59-17 reporting from each utility company of all its expenditures for
59-18 business gifts and entertainment, and institutional,
59-19 consumption-inducing and other advertising or public relations
59-20 expenses.
59-21 (b) The regulatory authority may not allow as costs or
59-22 expenses for ratemaking purposes any of these expenditures which
59-23 the regulatory authority determines not to be in the public
59-24 interest.
59-25 (c) The cost of legislative advocacy expenses may not in any
59-26 case be allowed as costs or expenses for ratemaking purposes.
59-27 (d) Reasonable charitable or civic contributions may be
60-1 allowed not to exceed the amount approved by the regulatory
60-2 authority. (Sec. 30)
60-3 Sec. 2.153. UNLAWFUL RATES, RULES AND REGULATIONS. It shall
60-4 be unlawful for any utility to charge, collect, or receive any rate
60-5 for electric utility service or to impose any rule or regulation
60-6 other than as herein provided. (Sec. 31)
60-7 Sec. 2.154. FILING SCHEDULE OF RATES, RULES AND REGULATIONS.
60-8 (a) Every electric utility shall file with each regulatory
60-9 authority schedules showing all rates which are subject to the
60-10 original or appellate jurisdiction of the regulatory authority and
60-11 which are in force at the time for any electric utility service,
60-12 product, or commodity offered by the utility.
60-13 (b) Every electric utility shall file with, and as a part of
60-14 such schedules, all rules and regulations relating to or affecting
60-15 the rates, electric utility service, product, or commodity
60-16 furnished by such utility. (Sec. 32)
60-17 Sec. 2.155. STANDARDS OF SERVICE. (a) Every electric
60-18 utility shall furnish such service, instrumentalities, and
60-19 facilities as shall be safe, adequate, efficient, and reasonable.
60-20 (b) The regulatory authority after reasonable notice and
60-21 hearing had on its own motion or on complaint, may:
60-22 (1) ascertain and fix just and reasonable standards,
60-23 classifications, regulations, or practices to be observed and
60-24 followed by any or all electric utilities with respect to the
60-25 service to be furnished;
60-26 (2) ascertain and fix adequate and reasonable
60-27 standards for the measurement of the quantity, quality, pressure,
61-1 initial voltage, or other condition pertaining to the supply of the
61-2 service;
61-3 (3) prescribe reasonable regulations for the
61-4 examination and testing of the service and for the measurement
61-5 thereof; and
61-6 (4) establish or approve reasonable rules,
61-7 regulations, specifications, and standards to secure the accuracy
61-8 of all meters, instruments and equipment used for the measurement
61-9 of any service of any electric utility.
61-10 (c) Any standards, classifications, regulations, or
61-11 practices now or hereafter observed or followed by any electric
61-12 utility may be filed by it with the regulatory authority, and the
61-13 same shall continue in force until amended by the electric utility
61-14 or until changed by the regulatory authority as herein provided.
61-15 (d) Notwithstanding any other provision of law, all lines
61-16 owned by an electric utility for the transmission and/or
61-17 distribution of electric energy shall be constructed, operated, and
61-18 maintained, as to clearances, in accordance with the National
61-19 Electrical Safety Code Standard ANSI (c)(2), as adopted by the
61-20 American National Safety Institute and in effect at the time of
61-21 construction. (Sec. 35)
61-22 Sec. 2.156. EXAMINATION AND TEST OF EQUIPMENT. (a) The
61-23 regulatory authority may examine and test any meter, instrument, or
61-24 equipment used for the measurement of any service of any electric
61-25 utility and may enter any premises occupied by any electric utility
61-26 for the purpose of making such examinations and tests and
61-27 exercising any power provided for in this Act and may set up and
62-1 use on such premises any apparatus and appliances necessary
62-2 therefor. The electric utility shall have the right to be
62-3 represented at the making of the examinations, tests, and
62-4 inspections. The electric utility and its officers and employees
62-5 shall facilitate the examinations, tests, and inspections by giving
62-6 every reasonable aid to the regulatory authority and any person or
62-7 persons designated by the regulatory authority for the duties
62-8 aforesaid.
62-9 (b) Any consumer or user may have any meter or measuring
62-10 device tested by the utility once without charge, after a
62-11 reasonable period to be fixed by the regulatory authority by rule,
62-12 and at shorter intervals on payment of reasonable fees fixed by the
62-13 regulatory authority. The regulatory authority shall declare and
62-14 establish reasonable fees to be paid for other examining and
62-15 testing such meters and other measuring devices on the request of
62-16 the consumer. If the test is requested to be made within the
62-17 period of presumed accuracy as fixed by the regulatory authority
62-18 since the last such test of the same meter or other measuring
62-19 device, the fee to be paid by the consumer or user at the time of
62-20 his request shall be refunded to the consumer or user if the meter
62-21 or measuring device is found unreasonably defective or incorrect to
62-22 the substantial disadvantage of the consumer or user. If the
62-23 consumer's request is made at a time beyond the period of presumed
62-24 accuracy fixed by the regulatory authority since the last such test
62-25 of the same meter or measuring device, the utility shall make the
62-26 test without charge to the consumer or user. (Sec. 36)
62-27 SUBTITLE E. PROCEEDINGS BEFORE THE REGULATORY AUTHORITY
63-1 Sec. 2.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
63-2 Subject to the provisions of this Act, the commission is hereby
63-3 vested with all authority and power of the State of Texas to insure
63-4 compliance with the obligations of electric utilities in this Act.
63-5 For this purpose the regulatory authority is empowered to fix and
63-6 regulate rates of electric utilities, including rules and
63-7 regulations for determining the classification of customers and
63-8 services and for determining the applicability of rates. A rule or
63-9 order of the regulatory authority may not conflict with the rulings
63-10 of any federal regulatory body. (Sec. 37)
63-11 Sec. 2.202. JUST AND REASONABLE RATES. It shall be the duty
63-12 of the regulatory authority to insure that every rate made,
63-13 demanded, or received by any electric utility, or by any two or
63-14 more electric utilities jointly, shall be just and reasonable.
63-15 Rates may not be unreasonably preferential, prejudicial, or
63-16 discriminatory, but shall be sufficient, equitable, and consistent
63-17 in application to each class of consumers. For ratemaking
63-18 purposes, the commission may treat two or more municipalities
63-19 served by an electric utility as a single class wherever it deems
63-20 such treatment to be appropriate. (Sec. 38 (part))
63-21 Sec. 2.203. FIXING OVERALL REVENUES. (a) In fixing the
63-22 rates of an electric utility the regulatory authority shall fix its
63-23 overall revenues at a level which will permit such utility a
63-24 reasonable opportunity to earn a reasonable return on its invested
63-25 capital used and useful in rendering service to the public over and
63-26 above its reasonable and necessary operating expenses.
63-27 (b) In fixing a reasonable return on invested capital, the
64-1 regulatory authority shall consider, in addition to other
64-2 applicable factors, efforts to comply with the statewide energy
64-3 plan, the efforts and achievements of such utility in the
64-4 conservation of resources, the quality of the utility's services,
64-5 the efficiency of the utility's operations, and the quality of the
64-6 utility's management. (Sec. 39)
64-7 Sec. 2.204. BURDEN OF PROOF. Except as hereafter provided,
64-8 in any proceeding involving any proposed change of rates, the
64-9 burden of proof to show that the proposed change, if proposed by
64-10 the utility, or that the existing rate, if it is proposed to reduce
64-11 the rate, is just and reasonable shall be on the electric utility.
64-12 (Sec. 40 (part))
64-13 Sec. 2.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME.
64-14 The components of invested capital and net income shall be
64-15 determined according to Sections 2.206, 2.207, and 2.208. (Sec. 41
64-16 (part))
64-17 Sec. 2.206. INVESTED CAPITAL. (a) Utility rates shall be
64-18 based upon the original cost of property used by and useful to the
64-19 electric utility in providing service including construction work
64-20 in progress at cost as recorded on the books of the utility.
64-21 (b) The inclusion of construction work in progress is an
64-22 exceptional form of rate relief to be granted only upon the
64-23 demonstration by the utility that such inclusion is necessary to
64-24 the financial integrity of the utility. Construction work in
64-25 progress may not be included in the rate base for major projects
64-26 under construction to the extent that such projects have been
64-27 inefficiently or imprudently planned or managed.
65-1 (c) Original cost shall be the actual money cost, or the
65-2 actual money value of any consideration paid other than money, of
65-3 the property at the time it shall have been dedicated to public
65-4 use, whether by the utility which is the present owner or by a
65-5 predecessor, less depreciation. (Sec. 41(a))
65-6 Sec. 2.207. SEPARATIONS AND ALLOCATIONS. Costs of
65-7 facilities, revenues, expenses, taxes, and reserves shall be
65-8 separated or allocated as prescribed by the regulatory authority.
65-9 (Sec. 41(b))
65-10 Sec. 2.208. NET INCOME. (a) "Net income" means the total
65-11 revenues of the electric utility less all reasonable and necessary
65-12 expenses as determined by the regulatory authority. The regulatory
65-13 authority shall determine expenses and revenues in a manner
65-14 consistent with this section.
65-15 (b) Transactions with Affiliated Interests. Payment to
65-16 affiliated interests for costs of any services, or any property,
65-17 right or thing, or for interest expense may not be allowed either
65-18 as capital cost or as expense except to the extent that the
65-19 regulatory authority shall find such payment to be reasonable and
65-20 necessary for each item or class of items as determined by the
65-21 commission. Any such finding shall include specific findings of
65-22 the reasonableness and necessity of each item or class of items
65-23 allowed and a finding that the price to the utility is no higher
65-24 than prices charged by the supplying affiliate to its other
65-25 affiliates or divisions for the same item or class of items, or to
65-26 unaffiliated persons or corporations. The price paid by gas
65-27 utilities to affiliated interests for natural gas from Outer
66-1 Continental Shelf lands shall be subject to a rebuttable
66-2 presumption that such price is reasonable if the price paid does
66-3 not exceed the price permitted by federal regulation if such gas is
66-4 regulated by any federal agency or if not regulated by a federal
66-5 agency does not exceed the price paid by nonaffiliated parties for
66-6 natural gas from Outer Continental Shelf lands. The burden of
66-7 establishing that such a price paid is not reasonable shall be on
66-8 any party challenging the reasonableness of such price.
66-9 (c) Income Taxes. If the electric utility is a member of an
66-10 affiliated group that is eligible to file a consolidated income tax
66-11 return, and if it is advantageous to the electric utility to do so,
66-12 income taxes shall be computed as though a consolidated return had
66-13 been so filed and the utility had realized its fair share of the
66-14 savings resulting from the consolidated return, unless it is shown
66-15 to the satisfaction of the regulatory authority that it was
66-16 reasonable to choose not to consolidate returns. The amounts of
66-17 income taxes saved by a consolidated group of which an electric
66-18 utility is a member by reason of the elimination in the
66-19 consolidated return of the intercompany profit on purchases by the
66-20 electric utility from an affiliate shall be applied to reduce the
66-21 cost of the property or services so purchased. The investment tax
66-22 credit allowed against federal income taxes, to the extent retained
66-23 by the utility, shall be applied as a reduction in the rate-based
66-24 contribution of the assets to which such credit applies, to the
66-25 extent and at such rate as allowed by the Internal Revenue Code.
66-26 (d) Expenses Disallowed. The regulatory authority may not
66-27 consider for ratemaking purposes the following expenses:
67-1 (1) legislative advocacy expenses, whether made
67-2 directly or indirectly, including but not limited to legislative
67-3 advocacy expenses included in trade association dues;
67-4 (2) payments, except those made under an insurance or
67-5 risk-sharing arrangement executed before the date of loss, made to
67-6 cover costs of an accident, equipment failure, or negligence at a
67-7 utility facility owned by a person or governmental body not selling
67-8 power inside the State of Texas;
67-9 (3) costs of processing a refund or credit under
67-10 Subsection (e) of Section 2.212 of this Act; or
67-11 (4) any expenditure found by the regulatory authority
67-12 to be unreasonable, unnecessary, or not in the public interest,
67-13 including but not limited to executive salaries, advertising
67-14 expenses, legal expenses, and civil penalties or fines.
67-15 (e) The regulatory authority may promulgate reasonable rules
67-16 and regulations with respect to the allowance or disallowance of
67-17 any expenses for ratemaking purposes. (Sec. 41(c))
67-18 Sec. 2.209. COGENERATOR OR SMALL-POWER PRODUCER; AGREEMENT
67-19 WITH ELECTRIC UTILITY FOR PURCHASE OF CAPACITY; CERTIFICATION BY
67-20 COMMISSION. (a) In this section "qualifying facility" means a
67-21 qualifying cogenerator or a qualifying small-power producer, as
67-22 defined by Sections 3(18)(C) and 3(17)(D), respectively, Federal
67-23 Power Act (16 U.S.C. Sections 796(18)(C) and 796(17)(D)).
67-24 (b) If an electric utility and a qualifying facility enter
67-25 into an agreement providing for the purchase of capacity, the
67-26 electric utility or qualifying facility may submit a copy of the
67-27 agreement to the commission for certification under this section.
68-1 The agreement may provide that it is contingent on that
68-2 certification. Before the deadline specified by Subsection (d) of
68-3 this section, the commission shall determine whether:
68-4 (1) the payments provided for in the agreement over
68-5 the contract term are equal to or less than the utility's avoided
68-6 costs as established by the commission and in effect at the time
68-7 the agreement was signed. Contracts entered into before the
68-8 effective date of this section may not be submitted for
68-9 certification by the commission; and
68-10 (2) the agreement provides the electric utility the
68-11 opportunity to acquire the cogeneration or small-power production
68-12 installation before the installation is offered to another
68-13 purchaser in the event of its abandonment, or provides other
68-14 sufficient assurance that the electric utility will be provided
68-15 with a comparable supply of electricity, if the qualifying facility
68-16 ceases to operate the installation.
68-17 (c) If the commission determines that the agreement meets
68-18 the requirements of Subdivisions (1) and (2) of Subsection (b) of
68-19 this section, it shall certify that the agreement meets these
68-20 requirements. If the commission does not make a determination
68-21 under Subsection (b) of this section before the deadline specified
68-22 by Subsection (d) of this section, the agreement is considered to
68-23 meet the requirements of Subdivisions (1) and (2) of Subsection (b)
68-24 of this section and certification is considered granted. A
68-25 certification is effective until the earlier of 15 years after the
68-26 date of the certification or the expiration date of the agreement.
68-27 (d) The commission shall make its determination under this
69-1 section within 90 days after the date that the agreement is
69-2 submitted, unless before this deadline the electric utility, the
69-3 qualifying facility, or an affected person requests a hearing or
69-4 the commission on its own motion decides to hold a hearing. If a
69-5 hearing is requested or the commission decides to hold a hearing,
69-6 the commission shall hold the hearing and make its determination
69-7 within 120 days after the date that the agreement is submitted,
69-8 except that this deadline is extended two days for each day in
69-9 excess of five days on which the commission conducts a hearing on
69-10 the merits of the case.
69-11 (e) In setting the electric utility's rates for a period
69-12 during which the certification is effective, the regulatory
69-13 authority shall consider payments made under the agreement to be
69-14 reasonable and necessary operating expenses of the electric
69-15 utility. The regulatory authority shall allow full, concurrent,
69-16 and monthly recovery of the amount of the payments. (Sec. 41A)
69-17 Sec. 2.210. SELF-INSURANCE. (a) An electric utility may
69-18 self-insure all or a portion of its potential liability or
69-19 catastrophic property loss, including windstorm, fire, and
69-20 explosion losses which could not have been reasonably anticipated
69-21 and included under operating and maintenance expenses. The
69-22 commission shall approve a self-insurance plan under this section
69-23 if it finds that the coverage is in the public interest and the
69-24 plan is a lower cost alternative to purchasing commercial
69-25 insurance, considering all costs, and that ratepayers will receive
69-26 the benefits of that saving.
69-27 (b) In computing a utility's reasonable and necessary
70-1 expenses under Section 2.208 of this Act, the regulatory authority
70-2 shall allow as a necessary expense the funds credited to reserve
70-3 accounts for the self-insurance, to the extent the regulatory
70-4 authority finds it in the public interest. After the reserve
70-5 account is established, the regulatory authority shall consider if
70-6 the reserve account has a surplus or shortage in determining the
70-7 utility's rate base. A surplus in the reserve account will exist
70-8 if the charges against the reserve account are less than the funds
70-9 credited to the reserve. A shortage in the reserve account will
70-10 exist if the charges against the account are greater than the funds
70-11 credited to the reserve. The regulatory authority shall subtract
70-12 any surplus from and add any shortage to the rate base.
70-13 (c) The regulatory authority shall determine reasonableness
70-14 under Subsection (b) of this section from information provided at
70-15 the time the self-insurance plan and reserve account are
70-16 established and upon the filing of each rate case by a utility that
70-17 has such a fund.
70-18 (d) The commission shall adopt rules governing
70-19 self-insurance under this section.
70-20 (e) The allowance for self-insurance under this Act for
70-21 ratemaking purposes will not be applicable to nuclear plant
70-22 investment. (Sec. 41B)
70-23 Sec. 2.211. UNREASONABLE OR VIOLATIVE EXISTING RATES;
70-24 INVESTIGATING COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE. (a)
70-25 Whenever the regulatory authority, after reasonable notice and
70-26 hearing, on its own motion or on complaint by any affected person,
70-27 finds that the existing rates of any electric utility for any
71-1 service are unreasonable or in any way in violation of any
71-2 provision of law, the regulatory authority shall determine the just
71-3 and reasonable rates, including maximum or minimum rates, to be
71-4 thereafter observed and in force, and shall fix the same by order
71-5 to be served on the electric utility; and such rates shall
71-6 constitute the legal rates of the electric utility until changed as
71-7 provided in this Act.
71-8 (b) Whenever an electric utility does not itself produce or
71-9 generate that which it distributes, transmits, or furnishes to the
71-10 public for compensation, but obtains the same from another source,
71-11 the regulatory authority shall have the power and authority to
71-12 investigate the cost of such production or generation in any
71-13 investigation of the reasonableness of the rates of such electric
71-14 utility. (Sec. 42)
71-15 Sec. 2.212. STATEMENT OF INTENT TO CHANGE RATES; MAJOR
71-16 CHANGES; HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF
71-17 RATE LEVEL. (a) A utility may not make changes in its rates
71-18 except by filing a statement of intent with the regulatory
71-19 authority having original jurisdiction at least 35 days prior to
71-20 the effective date of the proposed change. The statement of intent
71-21 shall include proposed revisions of tariffs and schedules and a
71-22 statement specifying in detail each proposed change, the effect the
71-23 proposed change is expected to have on the revenues of the company,
71-24 the classes and numbers of utility consumers affected, and such
71-25 other information as may be required by the regulatory authority's
71-26 rules and regulations. A copy of the statement of intent shall be
71-27 mailed or delivered to the appropriate officer of each affected
72-1 municipality, and notice shall be given by publication in
72-2 conspicuous form and place of a notice to the public of such
72-3 proposed change once in each week for four successive weeks prior
72-4 to the effective date of the proposed change in a newspaper having
72-5 general circulation in each county containing territory affected by
72-6 the proposed change, and by mail to such other affected persons as
72-7 may be required by the regulatory authority's rules and
72-8 regulations. The regulatory authority may waive the publication of
72-9 notice requirement prescribed by this subsection in a proceeding
72-10 that involves a rate reduction for all affected ratepayers only.
72-11 The applicant shall give notice of the proposed rate change by mail
72-12 to all affected utility customers. The regulatory authority by
72-13 rule shall also define other proceedings for which the publication
72-14 of notice requirement prescribed by this subsection may be waived
72-15 on a showing of good cause, provided that a waiver may not be
72-16 granted in any proceeding involving a rate increase to any class or
72-17 category of ratepayer.
72-18 (b) The regulatory authority, for good cause shown, may,
72-19 except in the case of major changes, allow changes in rate to take
72-20 effect prior to the end of such 35 day period under such conditions
72-21 as it may prescribe, subject to suspension as provided herein. All
72-22 such changes shall be indicated immediately upon its schedules by
72-23 such utility. "Major changes" shall mean an increase in rates
72-24 which would increase the aggregate revenues of the applicant more
72-25 than the greater of $100,000 or two and one-half percent, but does
72-26 not include changes in rates allowed to go into effect by the
72-27 regulatory authority or made by the utility pursuant to an order of
73-1 the regulatory authority after hearings held upon notice to the
73-2 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 the inclusion in the record,
73-19 the 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 upon 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 House Bill 11, Acts of the 72nd
76-16 Legislature, 1st Called Session, 1991, and that is attributable to
76-17 activities that are subject to the jurisdiction of the commission.
76-18 Any 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 House Bill
76-25 11, Acts of the 72nd Legislature, 1st Called Session, 1991, or as
76-26 soon after as is reasonably practical. Each year after any
76-27 original adjustment, the commission shall review the utility's
77-1 increase or decrease of tax liability resulting from House Bill 11,
77-2 Acts of the 72nd Legislature, 1st Called Session, 1991, and alter
77-3 the adjustment to reflect the increase or decrease. A proceeding
77-4 under this subsection is not a rate case under this section. (Sec.
77-5 43)
77-6 Sec. 2.213. RATES FOR AREAS NOT WITHIN MUNICIPALITY.
77-7 Electric utility rates for areas not within any municipality may
77-8 not exceed without commission approval 115 percent of the average
77-9 of all rates for similar services of all municipalities served by
77-10 the same utility within the same county. (Sec. 44)
77-11 Sec. 2.214. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
77-12 OR SERVICES. An electric utility may not, as to rates or services,
77-13 make or grant any unreasonable preference or advantage to any
77-14 corporation or person within any classification, or subject any
77-15 corporation or person within any classification to any unreasonable
77-16 prejudice or disadvantage. An electric utility may not establish
77-17 and maintain any unreasonable differences as to rates of service
77-18 either as between localities or as between classes of service.
77-19 (Sec. 45)
77-20 Sec. 2.215. EQUALITY OF RATES AND SERVICES. (a) An
77-21 electric utility may not, directly or indirectly, by any device
77-22 whatsoever or in any manner, charge, demand, collect, or receive
77-23 from any person a greater or less compensation for any service
77-24 rendered or to be rendered by the utility than that prescribed in
77-25 the schedule of rates of the electric utility applicable thereto
77-26 when filed in the manner provided in this Act, nor may any person
77-27 knowingly receive or accept any service from an electric utility
78-1 for a compensation greater or less than that prescribed in the
78-2 schedules.
78-3 (b) Nothing in this Act shall prevent a cooperative
78-4 corporation from returning to its members the whole, or any part
78-5 of, the net earnings resulting from its operations in proportion to
78-6 their purchases from or through the corporation. (Sec. 46)
78-7 Sec. 2.216. DISCRIMINATION; RESTRICTION ON COMPETITION. An
78-8 electric utility may not discriminate against any person or
78-9 corporation that sells or leases equipment or performs services in
78-10 competition with the electric utility, nor may any electric utility
78-11 engage in any other practice that tends to restrict or impair such
78-12 competition. (Sec. 47)
78-13 Sec. 2.217. PAYMENTS IN LIEU OF TAXES. Payments made in
78-14 lieu of taxes by an electric utility to the municipality by which
78-15 it is owned may not be considered an expense of operation for the
78-16 purpose of determining, fixing, or regulating the rates to be
78-17 charged for the provision of utility service to a school district
78-18 or hospital district. Rates received by an electric utility from a
78-19 school district or hospital district may not be used to make or to
78-20 cover the cost of making payments in lieu of taxes to the
78-21 municipality by which the electric utility is owned. (Sec. 48)
78-22 SUBTITLE F. CERTIFICATES OF CONVENIENCE AND NECESSITY
78-23 Sec. 2.251. DEFINITION. For the purposes of this subtitle
78-24 only, "retail electric utility" means any person, corporation,
78-25 municipality, political subdivision or agency, or cooperative
78-26 corporation, now or hereafter operating, maintaining, or
78-27 controlling in Texas facilities for providing retail electric
79-1 utility service. (Sec. 49--Subsec. (b) deleted)
79-2 Sec. 2.252. CERTIFICATE REQUIRED. (a) An electric utility
79-3 may not in any way render service directly or indirectly to the
79-4 public under any franchise or permit without first having obtained
79-5 from the commission a certificate that the present or future public
79-6 convenience and necessity require or will require such
79-7 installation, operation, or extension.
79-8 (b) Except as otherwise provided in this subtitle, a retail
79-9 electric utility may not furnish, make available, render, or extend
79-10 retail electric utility service to any area to which retail utility
79-11 service is being lawfully furnished by another retail electric
79-12 utility without first having obtained a certificate of public
79-13 convenience and necessity that includes the area in which the
79-14 consuming facility is located. (Sec. 50)
79-15 Sec. 2.253. EXCEPTIONS FOR EXTENSION OF SERVICE. (a) An
79-16 electric utility is not required to secure a certificate of public
79-17 convenience and necessity for:
79-18 (1) an extension into territory contiguous to that
79-19 already served by it and not receiving similar service from another
79-20 electric utility and not within the area of public convenience and
79-21 necessity of another utility of the same kind;
79-22 (2) an extension within or to territory already served
79-23 by it or to be served by it under a certificate of public
79-24 convenience and necessity; or
79-25 (3) operation, extension, or service in progress on
79-26 September 1, 1975.
79-27 (b) Any extensions allowed by Subsection (a) of this section
80-1 shall be limited to devices for interconnection of existing
80-2 facilities or devices used solely for transmitting electric utility
80-3 services from existing facilities to customers of retail utility
80-4 service. (Sec. 51)
80-5 Sec. 2.254. APPLICATION; MAPS; EVIDENCE OF CONSENT. (a) An
80-6 electric utility shall submit to the commission an application to
80-7 obtain a certificate of public convenience and necessity or an
80-8 amendment thereof.
80-9 (b) On or before 90 days after September 1, 1975, or at a
80-10 later date on request in writing by an electric utility when good
80-11 cause is shown, or at such later dates as the commission may order,
80-12 each electric utility shall file with the commission a map or maps
80-13 showing all its facilities and illustrating separately facilities
80-14 for generation, transmission, and distribution of its services.
80-15 (c) Each applicant for a certificate shall file with the
80-16 commission such evidence as is required by the commission to show
80-17 that the applicant has received the required consent, franchise, or
80-18 permit of the proper municipality or other public authority. (Sec.
80-19 52)
80-20 (Sec. 53 deleted)
80-21 Sec. 2.255. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS
80-22 CONSIDERED; FILING OF NOTICE OF INTENT BY ELECTRIC UTILITIES; TIME
80-23 FOR APPROVAL OR DENIAL OF NEW TRANSMISSION FACILITIES. (a) When
80-24 an application for a certificate of public convenience and
80-25 necessity is filed, the commission shall give notice of such
80-26 application to interested parties and, if requested, shall fix a
80-27 time and place for a hearing and give notice of the hearing. Any
81-1 person interested in the application may intervene at the hearing.
81-2 (b) The commission may grant applications and issue
81-3 certificates only if the commission finds that the certificate is
81-4 necessary for the service, accommodation, convenience, or safety of
81-5 the public. The commission may issue the certificate as prayed
81-6 for, or refuse to issue it, or issue it for the construction of a
81-7 portion only of the contemplated system or facility or extension
81-8 thereof, or for the partial exercise only of the right or
81-9 privilege.
81-10 (c) Certificates of convenience and necessity shall be
81-11 granted on a nondiscriminatory basis after consideration by the
81-12 commission of the adequacy of existing service, the need for
81-13 additional service, the effect of the granting of a certificate on
81-14 the recipient of the certificate and on any electric utility of the
81-15 same kind already serving the proximate area, and on such factors
81-16 as community values, recreational and park areas, historical and
81-17 aesthetic values, environmental integrity, and the probable
81-18 improvement of service or lowering of cost to consumers in such
81-19 area resulting from the granting of such certificate.
81-20 (d) In addition to the requirements of this section, an
81-21 electric utility applying for certificate of convenience and
81-22 necessity for a new generating plant must first file a notice of
81-23 intent to file an application for certification.
81-24 (1) The notice of intent shall set out alternative
81-25 methods considered to help meet the electrical needs, related
81-26 electrical facilities, and the advantages and disadvantages of the
81-27 alternatives. In addition, the notice shall indicate compatibility
82-1 with the most recent long-term forecast provided in this Act.
82-2 (2) The commission shall conduct a hearing on the
82-3 notice of intent to determine the appropriateness of the proposed
82-4 generating plant as compared to the alternatives and shall issue a
82-5 report on its findings. In conjunction with the issuance of the
82-6 report, the commission shall render a decision approving or
82-7 disapproving the notice. Such decision shall be rendered within
82-8 180 days from the date of filing the notice of intent.
82-9 (e) On approval of the notice of intent, a utility may apply
82-10 for certification for a generating plant, site, and site facilities
82-11 not later than 12 months before construction is to commence.
82-12 (1) The application for certification shall contain
82-13 such information as the commission may require to justify the
82-14 proposed generating plant, site, and site facilities and to allow a
82-15 determination showing compatibility with the most recent forecast.
82-16 (2) Certificates of convenience and necessity shall be
82-17 granted on a nondiscriminatory basis if the commission finds that
82-18 the proposed new plant is required under the service area forecast,
82-19 that it is the best and most economical choice of technology for
82-20 that service area as compatible with the commission's forecast, and
82-21 that conservation and alternative energy sources cannot meet the
82-22 need.
82-23 (f) If the application for a certificate of convenience and
82-24 necessity involves new transmission facilities, the commission
82-25 shall approve or deny the application within one year after the
82-26 date the application is filed. If the commission does not approve
82-27 or deny the application before this deadline, any party may seek a
83-1 writ of mandamus in a district court of Travis County to compel the
83-2 commission to make a decision on the application. (Sec. 54)
83-3 Sec. 2.256. AREA INCLUDED WITHIN CITY, TOWN OR VILLAGE.
83-4 (a) If an area has been or shall be included within the boundaries
83-5 of a city, town, or village as the result of annexation,
83-6 incorporation, or otherwise, all electric utilities certified or
83-7 entitled to certification under this Act to provide service or
83-8 operate facilities in such area prior to the inclusion shall have
83-9 the right to continue and extend service in its area of public
83-10 convenience and necessity within the annexed or incorporated area,
83-11 pursuant to the rights granted by its certificate and this Act.
83-12 (b) Notwithstanding any other provision of law, an electric
83-13 utility shall have the right to continue and extend service within
83-14 its area of public convenience and necessity and to utilize the
83-15 roads, streets, highways, alleys, and public property for the
83-16 purpose of furnishing such retail utility service, subject to the
83-17 authority of the governing body of a municipality to require any
83-18 electric utility, at its own expense, to relocate its facilities to
83-19 permit the widening or straightening of streets by giving to the
83-20 electric utility 30 days' notice and specifying the new location
83-21 for the facilities along the right-of-way of the street or streets.
83-22 (c) This section may not be construed as limiting the power
83-23 of cities, towns, and villages to incorporate or extend their
83-24 boundaries by annexation, nor may this section be construed as
83-25 prohibiting any city or town from levying taxes and other special
83-26 charges for the use of the streets as are authorized by Section
83-27 182.025, Tax Code.
84-1 (d) Where a municipal corporation offers retail electric
84-2 utility service in a city of more than 135,000 population located
84-3 in a county of more than 1,500,000 population according to the last
84-4 federal decennial census, the commission shall singly certificate
84-5 areas within the corporate limits of such municipality where more
84-6 than one electric utility provides electric utility service within
84-7 such corporate limits. In singly certificating such areas, the
84-8 commission shall preserve the respective electric utilities' rights
84-9 to serve the customers such electric utilities are serving on June
84-10 17, 1983. Provided, however, the foregoing does not apply to
84-11 customers served, at least partially, by a nominal 69,000 volts
84-12 system, who have given notice of termination to the utility
84-13 servicing that customer prior to June 17, 1983. (Sec. 55)
84-14 Sec. 2.257. CONTRACTS VALID AND ENFORCEABLE. Contracts
84-15 between retail electric utilities designating areas to be served
84-16 and customers to be served by those utilities, when approved by the
84-17 commission, shall be valid and enforceable and shall be
84-18 incorporated into the appropriate areas of public convenience and
84-19 necessity. (Sec. 56)
84-20 Sec. 2.258. PRELIMINARY ORDER FOR CERTIFICATE. If an
84-21 electric utility desires to exercise a right or privilege under a
84-22 franchise or permit which it contemplates securing but which has
84-23 not as yet been granted to it, such electric utility may apply to
84-24 the commission for an order preliminary to the issuance of the
84-25 certificate. The commission may thereupon make an order declaring
84-26 that it will, on application, under such rules as it prescribes,
84-27 issue the desired certificate on such terms and conditions as it
85-1 designates, after the electric utility has obtained the
85-2 contemplated franchise or permit. On presentation to the
85-3 commission of evidence satisfactory to it that the franchise or
85-4 permit has been secured by the electric utility, the commission
85-5 shall issue the certificate. (Sec. 57)
85-6 Sec. 2.259. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE,
85-7 REDUCTION OR IMPAIRMENT OF SERVICE. (a) Except as provided by
85-8 this section or Section 2.260 of this Act, the holder of any
85-9 certificate of public convenience and necessity shall serve every
85-10 consumer within its certified area and shall render continuous and
85-11 adequate service within the area or areas.
85-12 (b) Unless the commission issues a certificate that neither
85-13 the present or future convenience and necessity will be adversely
85-14 affected, the holder of a certificate may not discontinue, reduce,
85-15 or impair service to a certified service area or part thereof
85-16 except for:
85-17 (1) nonpayment of charges;
85-18 (2) nonuse; or
85-19 (3) other similar reasons in the usual course of
85-20 business.
85-21 (c) Any discontinuance, reduction, or impairment of service,
85-22 whether with or without approval of the commission, shall be in
85-23 conformity with and subject to such conditions, restrictions, and
85-24 limitations as the commission shall prescribe. (Sec. 58)
85-25 Sec. 2.260. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
85-26 holder of a certificate of public convenience and necessity shall
85-27 refuse to serve a customer within its certified area if the holder
86-1 of the certificate is prohibited from providing the service under
86-2 Section 212.012 or 232.0047, Local Government Code. (Sec. 58A)
86-3 Sec. 2.261. SALE, ASSIGNMENT OR LEASE OF CERTIFICATE. If
86-4 the commission determines that a purchaser, assignee, or lessee is
86-5 capable of rendering adequate service, an electric utility may
86-6 sell, assign, or lease a certificate of public convenience and
86-7 necessity or any rights obtained under the certificate. The sale,
86-8 assignment, or lease shall be on the conditions prescribed by the
86-9 commission. (Sec. 59)
86-10 Sec. 2.262. INTERFERENCE WITH OTHER UTILITY. If an electric
86-11 utility in constructing or extending its lines, plant, or system
86-12 interferes or attempts to interfere with the operation of a line,
86-13 plant, or system of any other utility, the commission may issue an
86-14 order prohibiting the construction or extension or prescribing
86-15 terms and conditions for locating the lines, plants, or systems
86-16 affected. (Sec. 60)
86-17 Sec. 2.263. IMPROVEMENTS IN SERVICE; INTERCONNECTING
86-18 SERVICE. After notice and hearing, the commission may:
86-19 (1) order an electric utility to provide specified
86-20 improvements in its service in a defined area, if service in such
86-21 area is inadequate or is substantially inferior to service in a
86-22 comparable area and it is reasonable to require the company to
86-23 provide such improved service; and
86-24 (2) order two or more electric utilities to establish
86-25 specified facilities for the interconnecting service. (Sec. 61
86-26 (part))
86-27 Sec. 2.264. REVOCATION OR AMENDMENT OF CERTIFICATE.
87-1 (a) The commission at any time after notice and hearing may revoke
87-2 or amend any certificate of convenience and necessity if it finds
87-3 that the certificate holder has never provided or is no longer
87-4 providing service in the area, or part of the area, covered by the
87-5 certificate.
87-6 (b) When the certificate of any electric utility is revoked
87-7 or amended, the commission may require one or more electric
87-8 utilities to provide service in the area in question. (Sec. 62)
87-9 TITLE III. TELECOMMUNICATIONS UTILITIES
87-10 SUBTITLE A. GENERAL PROVISIONS
87-11 Sec. 3.001. DEFINITIONS. In this title:
87-12 (1) "Dominant carrier" means:
87-13 (A) a provider of any particular communication
87-14 service which is provided in whole or in part over a telephone
87-15 system who as to such service has sufficient market power in a
87-16 telecommunications market as determined by the commission to enable
87-17 such provider to control prices in a manner adverse to the public
87-18 interest for such service in such market; and
87-19 (B) any provider of local exchange telephone
87-20 service within a certificated exchange area as to such service. A
87-21 telecommunications market shall be statewide until January 1, 1985.
87-22 After this date the commission may, if it determines that the
87-23 public interest will be served, establish separate markets within
87-24 the state. Prior to January 1, 1985, the commission shall hold
87-25 such hearings and require such evidence as is necessary to carry
87-26 out the public purpose of this Act and to determine the need and
87-27 effect of establishing separate markets. Any such provider
88-1 determined to be a dominant carrier as to a particular
88-2 telecommunications service in a market may not be presumed to be a
88-3 dominant carrier of a different telecommunications service in that
88-4 market. The term does not include an interexchange carrier that is
88-5 not a certificated local exchange company, with respect to
88-6 interexchange services. (Sec. 3(c) (part))
88-7 (2) "Local exchange company" means a
88-8 telecommunications utility certificated to provide local exchange
88-9 service within the state. (Sec. 3(v))
88-10 (3) "Telecommunications utility" or "utility" means
88-11 any person, corporation, river authority, cooperative corporation,
88-12 or any combination thereof, other than a municipal corporation, or
88-13 their lessees, trustees, and receivers, now or hereafter owning or
88-14 operating for compensation in this state equipment or facilities
88-15 for the conveyance, transmission, or reception of communications
88-16 over a telephone system as a dominant carrier. A person or
88-17 corporation not otherwise a telecommunications utility within the
88-18 meaning of this Act may not be deemed such solely because of the
88-19 furnishing or furnishing and maintenance of a private system or the
88-20 manufacture, distribution, installation, or maintenance of customer
88-21 premise communications equipment and accessories. Nothing in this
88-22 Act shall be construed to apply to telegraph services, television
88-23 stations, radio stations, community antenna television services, or
88-24 radio-telephone services that may be authorized under the Public
88-25 Mobile Radio Services rules of the Federal Communications
88-26 Commission, other than such radio-telephone services provided by
88-27 wire-line telephone companies under the Domestic Public Land Mobile
89-1 Radio Service and Rural Radio Service rules of the Federal
89-2 Communications Commission. Interexchange telecommunications
89-3 carriers (including resellers of interexchange telecommunications
89-4 services), specialized communications common carriers, other
89-5 resellers of communications, other communications carriers who
89-6 convey, transmit, or receive communications in whole or in part
89-7 over a telephone system, and providers of operator services as
89-8 defined in Section 3.052(a) of this Act (except that subscribers to
89-9 customer-owned pay telephone service may not be deemed to be
89-10 telecommunications utilities) are also telecommunications
89-11 utilities, but the commission's regulatory authority as to them is
89-12 only as hereinafter defined. The term "telecommunications utility"
89-13 or "utility" does not include any person or corporation not
89-14 otherwise a telecommunications utility that furnishes the services
89-15 or commodity described in this section only to itself, its
89-16 employees, or tenants as an incident of such employee service or
89-17 tenancy, when such service or commodity is not resold to or used by
89-18 others. (Sec. 3(c) (part))
89-19 (4) "Separation" means the division of plant,
89-20 revenues, expenses, taxes, and reserves, applicable to exchange or
89-21 local service where such items are used in common for providing
89-22 telecommunications utility service to both local exchange service
89-23 and other service, such as interstate or intrastate toll service.
89-24 (Sec. 3(r))
89-25 SUBTITLE B. JURISDICTION OF COMMISSION
89-26 Sec. 3.051. TELECOMMUNICATIONS UTILITIES; REGULATION OF
89-27 COMPETITION. (a) It is the policy of this state to protect the
90-1 public interest in having adequate and efficient telecommunications
90-2 service available to all citizens of the state at just, fair, and
90-3 reasonable rates. The legislature finds that the
90-4 telecommunications industry through technical advancements, federal
90-5 judicial and administrative actions, and the formulation of new
90-6 telecommunications enterprises has become and will continue to be
90-7 in many and growing areas a competitive industry which does not
90-8 lend itself to traditional public utility regulatory rules,
90-9 policies, and principles; and that therefore, the public interest
90-10 requires that new rules, policies, and principles be formulated and
90-11 applied to protect the public interest and to provide equal
90-12 opportunity to all telecommunications utilities in a competitive
90-13 marketplace. It is the purpose of this section to grant to the
90-14 commission the authority and the power under this Act to carry out
90-15 the public policy herein stated.
90-16 (b) Subject to the limitations imposed in this Act, and for
90-17 the purpose of carrying out the public policy above stated and of
90-18 regulating rates, operations, and services so that such rates may
90-19 be just, fair, and reasonable, and the services adequate and
90-20 efficient, the commission shall have exclusive original
90-21 jurisdiction over the business and property of all
90-22 telecommunications utilities in this state. In the exercise of its
90-23 jurisdiction to regulate the rates, operations, and services of a
90-24 telecommunications utility providing service in a municipality on
90-25 the state line adjacent to a municipality in an adjoining state,
90-26 the commission may cooperate with the utility regulatory commission
90-27 of the adjoining state or the federal government and may hold joint
91-1 hearings and make joint investigations with any of those
91-2 commissions.
91-3 (c) Except as provided by Subsections (l) and (m) of this
91-4 section and Section 3.052 of this Act, the commission shall only
91-5 have the following jurisdiction over all telecommunications
91-6 utilities who are not dominant carriers:
91-7 (1) to require registration as provided in Subsection
91-8 (d) of this section;
91-9 (2) to conduct such investigations as are necessary to
91-10 determine the existence, impact, and scope of competition in the
91-11 telecommunications industry, including identifying dominant
91-12 carriers in the local exchange and intralata interexchange
91-13 telecommunications industry and defining the telecommunications
91-14 market or markets, and in connection therewith may call and hold
91-15 hearings, issue subpoenas to compel the attendance of witnesses and
91-16 the production of papers and documents, and make findings of fact
91-17 and decisions with respect to administering the provisions of this
91-18 Act or the rules, orders, and other actions of the commission;
91-19 (3) to require the filing of such reports as the
91-20 commission may direct from time to time;
91-21 (4) to require the maintenance of statewide average
91-22 rates or prices of telecommunications service;
91-23 (5) to require that every local exchange area have
91-24 access to interexchange telecommunications service, except that an
91-25 interexchange telecommunications carrier must be allowed to
91-26 discontinue service to a local exchange area if comparable service
91-27 is available in the area and the discontinuance is not contrary to
92-1 the public interest. This section does not authorize the
92-2 commission to require an interexchange telecommunications carrier
92-3 that has not provided services to a local exchange area during the
92-4 previous 12 months and that has never provided services to that
92-5 same local exchange area for a cumulative period of one year at any
92-6 time in the past to initiate services to that local exchange area;
92-7 and
92-8 (6) to require the quality of interexchange
92-9 telecommunications service provided in each exchange to be adequate
92-10 to protect the public interest and the interests of customers of
92-11 that exchange if the commission determines that service to a local
92-12 exchange has deteriorated to the point that long distance service
92-13 is not reliable.
92-14 (d) All providers of communications service described in
92-15 Subsection (c) of this section who commence such service to the
92-16 public shall register with the commission within 30 days of
92-17 commencing service. Such registration shall be accomplished by
92-18 filing with the commission a description of the location and type
92-19 of service provided, the cost to the public of such service, and
92-20 such other registration information as the commission may direct.
92-21 Notwithstanding any other provision of this Act, an interexchange
92-22 telecommunications carrier doing business in this state shall
92-23 continue to maintain on file with the commission tariffs or lists
92-24 governing the terms of providing its services.
92-25 (e)(1) For the purpose of carrying out the public policy
92-26 stated in Subsection (a) of this section and any other section of
92-27 this Act notwithstanding, the commission is granted all necessary
93-1 power and authority under this Act to promulgate rules and
93-2 establish procedures applicable to local exchange companies for
93-3 determining the level of competition in specific telecommunications
93-4 markets and submarkets and providing appropriate regulatory
93-5 treatment to allow local exchange companies to respond to
93-6 significant competitive challenges. Nothing in this section is
93-7 intended to change the burden of proof of the local exchange
93-8 company under Sections 3.202, 3.203, 3.204, 3.205, 3.206, 3.207,
93-9 and 3.208 of this Act.
93-10 (2) In determining the level of competition in a
93-11 specific market or submarket, the commission shall hold an
93-12 evidentiary hearing to consider the following:
93-13 (A) the number and size of telecommunications
93-14 utilities or other persons providing the same, equivalent, or
93-15 substitutable service;
93-16 (B) the extent to which the same, equivalent, or
93-17 substitutable service is available;
93-18 (C) the ability of customers to obtain the same,
93-19 equivalent, or substitutable services at comparable rates, terms,
93-20 and conditions;
93-21 (D) the ability of telecommunications utilities
93-22 or other persons to make the same, equivalent, or substitutable
93-23 service readily available at comparable rates, terms, and
93-24 conditions;
93-25 (E) the existence of any significant barrier to
93-26 the entry or exit of a provider of the service; and
93-27 (F) other relevant information deemed
94-1 appropriate.
94-2 (3) The regulatory treatments which the commission may
94-3 implement include but are not limited to:
94-4 (A) approval of a range of rates for a specific
94-5 service;
94-6 (B) approval of customer-specific contracts for
94-7 a specific service; provided, however, that the commission shall
94-8 approve a contract to provide central office based PBX-type
94-9 services for systems of 200 stations or more, billing and
94-10 collection services, high-speed private line services of 1.544
94-11 megabits or greater, and customized services, provided that the
94-12 contract is filed at least 30 days before initiation of the service
94-13 contracted for; that the contract is accompanied with an affidavit
94-14 from the person or entity contracting for the telecommunications
94-15 service stating that he considered the acquisition of the same,
94-16 equivalent, or substitutable services by bid or quotation from a
94-17 source other than the local exchange company; that the local
94-18 exchange company is recovering the appropriate costs of providing
94-19 the services; and that approval of the contract is in the public
94-20 interest. The contract shall be approved or denied within 30 days
94-21 after filing, unless the commission for good cause extends the
94-22 effective date for an additional 35 days; and
94-23 (C) the detariffing of rates.
94-24 (f) Moreover, in order to encourage the rapid introduction
94-25 of new or experimental services or promotional rates, the
94-26 commission shall promulgate rules and establish procedures which
94-27 allow the expedited introduction of, the establishment and
95-1 adjustment of rates for, and withdrawal of such services, including
95-2 requests for such services made to the commission by the governing
95-3 body of a municipality served by a local exchange company having
95-4 more than 500,000 access lines throughout the state. Rates
95-5 established or adjusted at the request of a municipality may not
95-6 result in higher rates for ratepayers outside the boundaries of the
95-7 municipality and may not include any rates for local exchange
95-8 company interexchange services or interexchange carrier access
95-9 service.
95-10 (g) In promulgating new rules and establishing the
95-11 procedures contemplated in Subsections (e) and (f) of this section,
95-12 the commission shall seek to balance the public interest in a
95-13 technologically advanced telecommunications system providing a wide
95-14 range of new and innovative services with traditional regulatory
95-15 concerns for preserving universal service, prohibiting
95-16 anticompetitive practices, and preventing the subsidization of
95-17 competitive services with revenues from regulated monopoly
95-18 services. The commission shall promulgate these rules and
95-19 establish these procedures so as to incorporate an appropriate mix
95-20 of regulatory and market mechanisms reflecting the level and nature
95-21 of competition in the marketplace. Rates established under
95-22 Subsections (e) and (f) of this section may not be:
95-23 (1) unreasonably preferential, prejudicial, or
95-24 discriminatory;
95-25 (2) subsidized either directly or indirectly by
95-26 regulated monopoly services; or
95-27 (3) predatory or anticompetitive.
96-1 (h) The commission shall initiate a rulemaking proceeding
96-2 and take public comment and promulgate rules which prescribe the
96-3 standards necessary to ensure that all rates set under the
96-4 provisions of this section cover their appropriate costs as
96-5 determined by the commission. Until such rules are promulgated,
96-6 the commission shall use a costing methodology that is in the
96-7 public interest in determining whether the rates set under the
96-8 provisions of this section cover their appropriate costs.
96-9 (i) The commission is granted all necessary power and
96-10 authority to prescribe and collect fees and assessments from local
96-11 exchange companies necessary to recover the commission's and the
96-12 office's costs of activities carried out and services provided
96-13 under this subsection and Subsections (e), (f), (g), (h), (j), and
96-14 (k) of this section.
96-15 (j) Subsections (e) and (f) of this section are not
96-16 applicable to basic local exchange service, including local
96-17 measured service. Paragraph (B) of Subdivision (3) of Subsection
96-18 (e) of this section is not applicable to message telecommunications
96-19 services, switched access services for interexchange carriers, or
96-20 wide area telecommunications service. A local exchange company may
96-21 not price similar services provided pursuant to contracts under
96-22 Paragraph (B) of Subdivision (3) of Subsection (e) of this section
96-23 in an unreasonably discriminatory manner. For purposes of this
96-24 section, similar services shall be defined as those services which
96-25 are provided at or near the same point in time, which have the same
96-26 characteristics and which are provided under the same or similar
96-27 circumstances.
97-1 (k) Before January 15 of each odd-numbered year, the
97-2 commission shall report to the legislature on the scope of
97-3 competition in regulated telecommunications markets and the impact
97-4 of competition on customers in both competitive and noncompetitive
97-5 markets, with a specific focus on rural markets. The report shall
97-6 include an assessment of the impact of competition on the rates and
97-7 availability of telecommunications services for residential and
97-8 business customers and shall specifically address any effects on
97-9 universal service. The report shall provide a summary of
97-10 commission actions over the preceding two years which reflect
97-11 changes in the scope of competition in regulated telecommunications
97-12 markets. The report shall also include recommendations to the
97-13 legislature for further legislation which the commission finds
97-14 appropriate to promote the public interest in the context of a
97-15 partially competitive telecommunications market.
97-16 (l) Notwithstanding any other provision of this Act, the
97-17 commission may enter such orders as may be necessary to protect the
97-18 public interest, including the imposition on any specific service
97-19 or services of its full regulatory authority under this subtitle,
97-20 Subtitles C-F of this title, and Subtitles D-I of Title I of this
97-21 Act, if the commission upon complaint from another interexchange
97-22 telecommunications carrier finds by a preponderance of the evidence
97-23 upon notice and hearing that an interexchange telecommunications
97-24 carrier has engaged in predatory pricing or attempted to engage in
97-25 predatory pricing.
97-26 (m) Notwithstanding any other provision of this Act, the
97-27 commission may enter such orders as may be necessary to protect the
98-1 public interest if the commission finds upon notice and hearing
98-2 that an interexchange telecommunications carrier has:
98-3 (1) failed to maintain statewide average rates;
98-4 (2) abandoned interexchange message telecommunications
98-5 service to a local exchange area in a manner contrary to the public
98-6 interest; or
98-7 (3) engaged in a pattern of preferential or
98-8 discriminatory activities prohibited by Sections 3.213 and 3.215 of
98-9 this Act, except that nothing in this Act shall prohibit volume
98-10 discounts or other discounts based on reasonable business purposes.
98-11 (n) In any proceeding before the commission alleging conduct
98-12 or activities by an interexchange telecommunications carrier
98-13 against another interexchange carrier in contravention of
98-14 Subsections (l), (m), and (o) of this section, the burden of proof
98-15 shall be upon the complaining interexchange telecommunications
98-16 carrier; however, in such proceedings brought by customers or their
98-17 representatives who are not themselves interexchange
98-18 telecommunications carriers or in such proceedings initiated by the
98-19 commission, the burden of proof shall be upon the respondent
98-20 interexchange telecommunications carrier. However, if the
98-21 commission finds it to be in the public interest, the commission
98-22 may impose the burden of proof in such proceedings on the
98-23 complaining party.
98-24 (o) The commission shall have the authority to require that
98-25 a service provided by an interexchange telecommunications carrier
98-26 described in Subsection (c) of this section be made available in an
98-27 exchange served by the carrier within a reasonable time after
99-1 receipt of a bona fide request for such service in that exchange,
99-2 subject to the ability of the local exchange company to provide the
99-3 required access or other service. A carrier may not be required to
99-4 extend a service to an area if provision of that service would
99-5 impose, after consideration of the public interest to be served,
99-6 unreasonable costs upon or require unreasonable investments by the
99-7 interexchange telecommunications carrier. The commission may
99-8 require such information from interexchange carriers and local
99-9 exchange carriers as may be necessary to enforce this provision.
99-10 (p) The commission may exempt from any requirement of this
99-11 section an interexchange telecommunications carrier that the
99-12 commission determines does not have a significant effect on the
99-13 public interest, and it may exempt any interexchange carrier which
99-14 solely relies on the facilities of others to complete long distance
99-15 calls if the commission deems this action to be in the public
99-16 interest.
99-17 (q) Requirements imposed by Subsections (c), (d), (k), (l),
99-18 (m), (n), (o), and (p) of this section on an interexchange
99-19 telecommunications carrier shall apply to nondominant carriers and
99-20 shall constitute the minimum requirements to be imposed by the
99-21 commission for any dominant carrier. (Sec. 18--old Subsec. (p)
99-22 deleted)
99-23 Sec. 3.052. OPERATOR SERVICE; REGULATION AND DISCLOSURE OF
99-24 INFORMATION. (a) In this section "operator service" means any
99-25 service using live operator or automated operator functions for the
99-26 handling of telephone service such as toll calling via collect,
99-27 third number billing, and calling card services. Calls for which
100-1 the called party has arranged to be billed (800 service) are not
100-2 considered operator services.
100-3 (b) Prior to the connection of each call the operator
100-4 service provider shall:
100-5 (1) announce the provider's name; and
100-6 (2) quote, at the caller's request, the rate and any
100-7 other fees or surcharges applicable to the call and charged by the
100-8 provider.
100-9 (c) An operator service provider shall furnish each entity
100-10 with which it contracts to provide operator service a sticker,
100-11 card, or other form of information approved by the commission for
100-12 each telephone that has access to the service and is intended to be
100-13 utilized by the public, unless the owner of the telephone has
100-14 received approval from the commission for an alternative form of
100-15 information. The information must state the provider's name, that
100-16 the operator service provider will provide rate information on the
100-17 caller's request, that the caller will be informed how to access
100-18 the local exchange company operator on request, and that any
100-19 complaint about the service may be made to the provider or the
100-20 commission at the designated telephone number. The operator
100-21 service provider shall require by contract that the entity
100-22 receiving the information display it on or near each of the
100-23 telephones that has access to the service and is intended for use
100-24 by the public.
100-25 (d) An operator service provider must, on request, inform
100-26 the caller how to access the operator for the local exchange
100-27 company serving the exchange from which the call is made. A charge
101-1 may not be made for this information.
101-2 (e) The commission shall adopt rules requiring an operator
101-3 service provider to include in its contract with each entity
101-4 through which it provides operator service a requirement that the
101-5 telephones subscribed to its services shall allow access to the
101-6 local exchange carrier operator serving the exchange from which the
101-7 call is made and to other telecommunications utilities; but in
101-8 order to prevent fraudulent use of its services, an operator
101-9 service provider and individual entities through which it provides
101-10 operator services may block access if either obtains a waiver for
101-11 this purpose from the commission or the Federal Communications
101-12 Commission. The procedure and criteria for obtaining a waiver from
101-13 the commission shall be set forth in the commission's rules.
101-14 (f) The commission shall promulgate rules consistent with
101-15 the requirements of this section and any additional requirements
101-16 deemed necessary to protect the public interest by January 1, 1990.
101-17 All rules promulgated under this section shall be nondiscriminatory
101-18 and designed to promote competition that facilitates consumer
101-19 choice.
101-20 (g) The commission may investigate a complaint that it
101-21 receives concerning operator services. If the commission
101-22 determines that an operator service provider has violated or is
101-23 about to violate this section, the commission may, upon proper
101-24 notice and evidentiary hearing, take action to stop, correct, or
101-25 prevent the violation.
101-26 (h) Except as provided by Subsection (i) of this section,
101-27 this section applies only to a telecommunications utility that is
102-1 not a dominant carrier. The commission is granted all necessary
102-2 power and authority under this Act to promulgate rules and
102-3 establish procedures for the purposes of enforcing and implementing
102-4 this section.
102-5 (i) Each dominant or nondominant telecommunications utility
102-6 that provides operator service shall ensure that a caller may
102-7 access a live operator at the beginning of all live or mechanized
102-8 operator assisted calls through a method designed to be easily and
102-9 clearly understandable and accessible to the caller. A
102-10 telecommunications utility shall submit to the commission the
102-11 method by which the utility will provide access to a live operator
102-12 for review. This subsection applies regardless of the method by
102-13 which the telecommunications utility provides the operator service.
102-14 The requirements of this subsection do not apply to telephones
102-15 located in prison or jail facilities. (Sec. 18A)
102-16 SUBTITLE C. MUNICIPALITIES
102-17 Sec. 3.101. RATEMAKING PROCEEDINGS; ENGAGEMENT OF
102-18 CONSULTANTS, ACCOUNTANTS, AUDITORS, ATTORNEYS AND ENGINEERS;
102-19 STANDING. (a) The governing body of any municipality
102-20 participating in ratemaking proceedings shall have the right to
102-21 select and engage rate consultants, accountants, auditors,
102-22 attorneys, engineers, or any combination thereof, to conduct
102-23 investigations, present evidence, advise and represent the
102-24 governing body, and assist with litigation in telecommunications
102-25 utility ratemaking proceedings before the commission or in court.
102-26 The telecommunications utility engaged in such proceedings shall be
102-27 required to reimburse the governing body for the reasonable costs
103-1 of such services to the extent found reasonable by the commission.
103-2 (b) Municipalities shall have standing in all cases before
103-3 the commission regarding utilities serving within their corporate
103-4 limits subject to the right of the commission to determine standing
103-5 in cases involving retail service area disputes involving two or
103-6 more utilities and to consolidate municipalities on issues of
103-7 common interest and shall be entitled to judicial review of orders
103-8 regarding said proceedings in accordance with Section 1.301 of the
103-9 Act. (Sec. 24 (part))
103-10 Sec. 3.102. ASSISTANCE OF COMMISSION. The commission may
103-11 advise and assist municipalities upon request in connection with
103-12 questions and proceedings arising under this Act. Such assistance
103-13 may include aid to municipalities in connection with matters
103-14 pending before the commission or the courts, including making
103-15 members of the staff available as witnesses and otherwise providing
103-16 evidence to them. (Sec. 25)
103-17 SUBTITLE D. RATES AND SERVICES
103-18 Sec. 3.151. RATES; METHODS AND ACCOUNTS. (a) The
103-19 commission shall fix proper and adequate rates and methods of
103-20 depreciation, amortization, or depletion of the several classes of
103-21 property of each telecommunications utility, and shall require
103-22 every telecommunications utility to carry a proper and adequate
103-23 depreciation account in accordance with such rates and methods and
103-24 with such other rules and regulations as the commission prescribes.
103-25 Such rates, methods, and accounts shall be utilized uniformly and
103-26 consistently throughout the ratesetting and appeal proceedings.
103-27 (b) Every telecommunications utility shall keep separate
104-1 accounts to show all profits or losses resulting from the sale or
104-2 lease of appliances, fixtures, equipment, or other merchandise.
104-3 This profit or loss may not be taken into consideration by the
104-4 commission in arriving at any rate to be charged for service by any
104-5 such telecommunications utility, to the extent that such
104-6 merchandise is not integral to the provision of utility service.
104-7 (c) In determining the allocation of tax savings derived
104-8 from application of such methods as liberalized depreciation and
104-9 amortization and the investment tax credit, the commission shall
104-10 equitably balance the interests of present and future customers and
104-11 shall apportion such benefits between consumers and the utilities
104-12 accordingly. Where any portion of the investment tax credit has
104-13 been retained by a telecommunications utility, that same amount
104-14 shall be deducted from the original cost of the facilities or other
104-15 addition to the rate base to which the credit applied, to the
104-16 extent allowed by the Internal Revenue Code. (Secs. 27(b), (c),
104-17 (e))
104-18 Sec. 3.152. REPORTING OF ADVERTISING OR PUBLIC RELATIONS
104-19 EXPENSES. (a) The commission may require an annual reporting from
104-20 each utility company of all its expenditures for business gifts and
104-21 entertainment, and institutional, consumption-inducing and other
104-22 advertising or public relations expenses.
104-23 (b) The commission may not allow as costs or expenses for
104-24 ratemaking purposes any of these expenditures which the commission
104-25 determines not to be in the public interest.
104-26 (c) The cost of legislative advocacy expenses may not in any
104-27 case be allowed as costs or expenses for ratemaking purposes.
105-1 (d) Reasonable charitable or civic contributions may be
105-2 allowed not to exceed the amount approved by the commission. (Sec.
105-3 30)
105-4 Sec. 3.153. UNLAWFUL RATES, RULES AND REGULATIONS. It shall
105-5 be unlawful for any utility to charge, collect, or receive any rate
105-6 for utility service or to impose any rule or regulation other than
105-7 as herein provided. (Sec. 31)
105-8 Sec. 3.154. FILING SCHEDULE OF RATES, RULES AND REGULATIONS.
105-9 (a) Every telecommunications utility shall file with the
105-10 commission schedules showing all rates which are subject to the
105-11 jurisdiction of the commission and which are in force at the time
105-12 for any utility service, product, or commodity offered by the
105-13 utility.
105-14 (b) Every telecommunications utility shall file with, and as
105-15 a part of such schedules, all rules and regulations relating to or
105-16 affecting the rates, utility service, product, or commodity
105-17 furnished by such utility. (Sec. 32 (part))
105-18 Sec. 3.155. STANDARDS OF SERVICE. (a) Every
105-19 telecommunications utility shall furnish such service,
105-20 instrumentalities, and facilities as shall be safe, adequate,
105-21 efficient, and reasonable.
105-22 (b) The commission after reasonable notice and hearing had
105-23 on its own motion or on complaint, may:
105-24 (1) ascertain and fix just and reasonable standards,
105-25 classifications, regulations, or practices to be observed and
105-26 followed by any or all utilities with respect to the service to be
105-27 furnished;
106-1 (2) ascertain and fix adequate and reasonable
106-2 standards for the measurement of the quantity, quality, or other
106-3 condition pertaining to the supply of the service;
106-4 (3) prescribe reasonable regulations for the
106-5 examination and testing of the service and for the measurement
106-6 thereof; and
106-7 (4) establish or approve reasonable rules,
106-8 regulations, specifications, and standards to secure the accuracy
106-9 of all meters, instruments and equipment used for the measurement
106-10 of any service of any telecommunications utility.
106-11 (c) Any standards, classifications, regulations, or
106-12 practices now or hereafter observed or followed by any
106-13 telecommunications utility may be filed by it with the commission,
106-14 and the same shall continue in force until amended by the
106-15 telecommunications utility or until changed by the commission as
106-16 herein provided. (Sec. 35 (part))
106-17 SUBTITLE E. PROCEEDINGS BEFORE THE COMMISSION
106-18 Sec. 3.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
106-19 Subject to the provisions of this Act, the commission is hereby
106-20 vested with all authority and power of the State of Texas to insure
106-21 compliance with the obligations of telecommunications utilities in
106-22 this Act. To the extent otherwise provided by this Act, the
106-23 commission is empowered to fix and regulate rates of
106-24 telecommunications utilities, including rules and regulations for
106-25 determining the classification of customers and services and for
106-26 determining the applicability of rates. A rule or order of the
106-27 commission may not conflict with the rulings of any federal
107-1 regulatory body. (Sec. 37--changed to reflect different
107-2 regulation)
107-3 Sec. 3.202. JUST AND REASONABLE RATES. It shall be the duty
107-4 of the commission to insure that every rate made, demanded, or
107-5 received by any telecommunications utility, or by any two or more
107-6 utilities jointly, shall be just and reasonable. Rates may not be
107-7 unreasonably preferential, prejudicial, or discriminatory, but
107-8 shall be sufficient, equitable, and consistent in application to
107-9 each class of consumers. For ratemaking purposes, the commission
107-10 may treat two or more municipalities served by a telecommunications
107-11 utility as a single class wherever it deems such treatment to be
107-12 appropriate. Approval by the commission of a reduced rate for
107-13 service for a class of consumers eligible under Section 3.352 of
107-14 this Act for tel-assistance service does not constitute a violation
107-15 of this section. (Sec. 38)
107-16 Sec. 3.203. FIXING OVERALL REVENUES. (a) In fixing the
107-17 rates of a telecommunications utility the commission shall fix its
107-18 overall revenues at a level which will permit such utility a
107-19 reasonable opportunity to earn a reasonable return on its invested
107-20 capital used and useful in rendering service to the public over and
107-21 above its reasonable and necessary operating expenses.
107-22 (b) In fixing a reasonable return on invested capital, the
107-23 commission shall consider, in addition to other applicable factors,
107-24 the quality of the utility's services, the efficiency of the
107-25 utility's operations, and the quality of the utility's management.
107-26 (Sec. 39 (part))
107-27 Sec. 3.204. BURDEN OF PROOF. Except as hereafter provided,
108-1 in any proceeding involving any proposed change of rates, the
108-2 burden of proof to show that the proposed change, if proposed by
108-3 the utility, or that the existing rate, if it is proposed to reduce
108-4 the rate, is just and reasonable shall be on the telecommunications
108-5 utility. In any proceeding involving a local exchange company in
108-6 which the local exchange company's rate or rates are in issue, the
108-7 burden of proof that such rate or rates are just and reasonable
108-8 shall be on the local exchange company. (Sec. 40)
108-9 Sec. 3.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME.
108-10 The components of invested capital and net income shall be
108-11 determined according to Sections 3.206, 3.207, and 3.208. (Sec. 41
108-12 (part))
108-13 Sec. 3.206. INVESTED CAPITAL. (a) Utility rates shall be
108-14 based upon the original cost of property used by and useful to the
108-15 telecommunications utility in providing service including
108-16 construction work in progress at cost as recorded on the books of
108-17 the utility.
108-18 (b) The inclusion of construction work in progress is an
108-19 exceptional form of rate relief to be granted only upon the
108-20 demonstration by the utility that such inclusion is necessary to
108-21 the financial integrity of the utility. Construction work in
108-22 progress may not be included in the rate base for major projects
108-23 under construction to the extent that such projects have been
108-24 inefficiently or imprudently planned or managed.
108-25 (c) Original cost shall be the actual money cost, or the
108-26 actual money value of any consideration paid other than money, of
108-27 the property at the time it shall have been dedicated to public
109-1 use, whether by the utility which is the present owner or by a
109-2 predecessor, less depreciation. (Sec. 41(a))
109-3 Sec. 3.207. SEPARATIONS AND ALLOCATIONS. Costs of
109-4 facilities, revenues, expenses, taxes, and reserves shall be
109-5 separated or allocated as prescribed by the commission. (Sec.
109-6 41(b))
109-7 Sec. 3.208. NET INCOME. (a) "Net income" means the total
109-8 revenues of the telecommunications utility less all reasonable and
109-9 necessary expenses as determined by the commission. The commission
109-10 shall determine expenses and revenues in a manner consistent with
109-11 this section.
109-12 (b) Transactions with Affiliated Interests. Payment to
109-13 affiliated interests for costs of any services, or any property,
109-14 right or thing, or for interest expense may not be allowed either
109-15 as capital cost or as expense except to the extent that the
109-16 commission shall find such payment to be reasonable and necessary
109-17 for each item or class of items as determined by the commission.
109-18 Any such finding shall include specific findings of the
109-19 reasonableness and necessity of each item or class of items allowed
109-20 and a finding that the price to the utility is no higher than
109-21 prices charged by the supplying affiliate to its other affiliates
109-22 or divisions for the same item or class of items, or to
109-23 unaffiliated persons or corporations.
109-24 (c) Income Taxes. If the telecommunications utility is a
109-25 member of an affiliated group that is eligible to file a
109-26 consolidated income tax return, and if it is advantageous to the
109-27 telecommunications utility to do so, income taxes shall be computed
110-1 as though a consolidated return had been so filed and the utility
110-2 had realized its fair share of the savings resulting from the
110-3 consolidated return, unless it is shown to the satisfaction of the
110-4 commission that it was reasonable to choose not to consolidate
110-5 returns. The amounts of income taxes saved by a consolidated group
110-6 of which a telecommunications utility is a member by reason of the
110-7 elimination in the consolidated return of the intercompany profit
110-8 on purchases by the telecommunications utility from an affiliate
110-9 shall be applied to reduce the cost of the property or services so
110-10 purchased. The investment tax credit allowed against federal
110-11 income taxes, to the extent retained by the utility, shall be
110-12 applied as a reduction in the rate based contribution of the assets
110-13 to which such credit applies, to the extent and at such rate as
110-14 allowed by the Internal Revenue Code.
110-15 (d) Expenses Disallowed. The commission may not consider
110-16 for ratemaking purposes the following expenses:
110-17 (1) legislative advocacy expenses, whether made
110-18 directly or indirectly, including but not limited to legislative
110-19 advocacy expenses included in trade association dues;
110-20 (2) costs of processing a refund or credit under
110-21 Subsection (e) of Section 3.211 of this Act; or
110-22 (3) any expenditure found by the commission to be
110-23 unreasonable, unnecessary, or not in the public interest, including
110-24 but not limited to executive salaries, advertising expenses, legal
110-25 expenses, and civil penalties or fines.
110-26 (e) The commission may promulgate reasonable rules and
110-27 regulations with respect to the allowance or disallowance of any
111-1 expenses for ratemaking purposes. (Sec. 41(c))
111-2 Sec. 3.209. SELF-INSURANCE. (a) A telecommunications
111-3 utility may self-insure all or a portion of its potential liability
111-4 or catastrophic property loss, including windstorm, fire, and
111-5 explosion losses which could not have been reasonably anticipated
111-6 and included under operating and maintenance expenses. The
111-7 commission shall approve a self-insurance plan under this section
111-8 if it finds that the coverage is in the public interest and the
111-9 plan is a lower cost alternative to purchasing commercial
111-10 insurance, considering all costs, and that ratepayers will receive
111-11 the benefits of that saving.
111-12 (b) In computing a utility's reasonable and necessary
111-13 expenses under Section 3.208 of this Act, the commission shall
111-14 allow as a necessary expense the funds credited to reserve accounts
111-15 for the self-insurance, to the extent the commission finds it in
111-16 the public interest. After the reserve account is established, the
111-17 commission shall consider if the reserve account has a surplus or
111-18 shortage in determining the utility's rate base. A surplus in the
111-19 reserve account will exist if the charges against the reserve
111-20 account are less than the funds credited to the reserve. A
111-21 shortage in the reserve account will exist if the charges against
111-22 the account are greater than the funds credited to the reserve.
111-23 The commission shall subtract any surplus from and add any shortage
111-24 to the rate base.
111-25 (c) The commission shall determine reasonableness under
111-26 Subsection (b) of this section from information provided at the
111-27 time the self-insurance plan and reserve account are established
112-1 and upon the filing of each rate case by a utility that has such a
112-2 fund.
112-3 (d) The commission shall adopt rules governing
112-4 self-insurance under this section. (Secs. 41B(a)-(d))
112-5 Sec. 3.210. UNREASONABLE OR VIOLATIVE EXISTING RATES;
112-6 INVESTIGATING COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE. (a)
112-7 Whenever the commission, after reasonable notice and hearing, on
112-8 its own motion or on complaint by any affected person, finds that
112-9 the existing rates of any telecommunications utility for any
112-10 service are unreasonable or in any way in violation of any
112-11 provision of law, the commission shall determine the just and
112-12 reasonable rates, including maximum or minimum rates, to be
112-13 thereafter observed and in force, and shall fix the same by order
112-14 to be served on the telecommunications utility; and such rates
112-15 shall constitute the legal rates of the telecommunications utility
112-16 until changed as provided in this Act.
112-17 (b) Whenever a telecommunications utility does not itself
112-18 produce or generate that which it distributes, transmits, or
112-19 furnishes to the public for compensation, but obtains the same from
112-20 another source, the commission shall have the power and authority
112-21 to investigate the cost of such production or generation in any
112-22 investigation of the reasonableness of the rates of such
112-23 telecommunications utility. (Sec. 42 (part))
112-24 Sec. 3.211. STATEMENT OF INTENT TO CHANGE RATES; MAJOR
112-25 CHANGES; HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF
112-26 RATE LEVEL. (a) A utility may not make changes in its rates
112-27 except by filing a statement of intent with the commission at least
113-1 35 days prior to the effective date of the proposed change. The
113-2 statement of intent shall include proposed revisions of tariffs and
113-3 schedules and a statement specifying in detail each proposed
113-4 change, the effect the proposed change is expected to have on the
113-5 revenues of the company, the classes and numbers of utility
113-6 consumers affected, and such other information as may be required
113-7 by the commission's rules and regulations. A copy of the statement
113-8 of intent shall be mailed or delivered to the appropriate officer
113-9 of each affected municipality, and notice shall be given by
113-10 publication in conspicuous form and place of a notice to the public
113-11 of such proposed change once in each week for four successive weeks
113-12 prior to the effective date of the proposed change in a newspaper
113-13 having general circulation in each county containing territory
113-14 affected by the proposed change, and by mail to such other affected
113-15 persons as may be required by the commission's rules and
113-16 regulations. The commission may waive the publication of notice
113-17 requirement prescribed by this subsection in a proceeding that
113-18 involves a rate reduction for all affected ratepayers only. The
113-19 applicant shall give notice of the proposed rate change by mail to
113-20 all affected utility customers. The commission by rule shall also
113-21 define other proceedings for which the publication of notice
113-22 requirement prescribed by this subsection may be waived on a
113-23 showing of good cause, provided that a waiver may not be granted in
113-24 any proceeding involving a rate increase to any class or category
113-25 of ratepayer.
113-26 (b) The commission, for good cause shown, may, except in the
113-27 case of major changes, allow changes in rate to take effect prior
114-1 to the end of such 35-day period under such conditions as it may
114-2 prescribe, subject to suspension as provided herein. All such
114-3 changes shall be indicated immediately upon its schedules by such
114-4 utility. "Major changes" shall mean an increase in rates which
114-5 would increase the aggregate revenues of the applicant more than
114-6 the greater of $100,000 or 2 1/2 percent, but does not include
114-7 changes in rates allowed to go into effect by the commission or
114-8 made by the utility pursuant to an order of the commission after
114-9 hearings held upon notice to the public.
114-10 (c) Whenever there is filed with the commission any schedule
114-11 modifying or resulting in a change in any rates then in force, the
114-12 commission shall on complaint by any affected person or may on its
114-13 own motion, at any time within 30 days from the date when such
114-14 change would or has become effective, and, if it so orders, without
114-15 answer or other formal pleading by the utility, but on reasonable
114-16 notice, including notice to the governing bodies of all affected
114-17 municipalities and counties, enter on a hearing to determine the
114-18 propriety of such change. The commission shall hold such a hearing
114-19 in every case in which the change constitutes a major change in
114-20 rates, provided that an informal proceeding may satisfy this
114-21 requirement if a complaint has not been received before the
114-22 expiration of 45 days after notice of the change shall have been
114-23 filed. In each case where the commission determines it is in the
114-24 public interest to collect testimony at a regional hearing for the
114-25 inclusion in the record, the commission shall hold a regional
114-26 hearing at an appropriate location. A regional hearing is not
114-27 required in a case involving a member-owned utility, unless the
115-1 commission determines otherwise.
115-2 (d) Pending the hearing and decision, the commission, after
115-3 delivery to the affected utility of a statement in writing of its
115-4 reasons therefor, may suspend the operation of the schedule for a
115-5 period not to exceed 150 days beyond the date on which the schedule
115-6 would otherwise go into effect. If the commission does not make a
115-7 final determination concerning any schedule of rates prior to
115-8 expiration of the period or periods of suspension, the schedule
115-9 shall be deemed to have been approved by the commission. However,
115-10 the 150-day period shall be extended two days for each one day of
115-11 actual hearing on the merits of the case that exceeds 15 days.
115-12 This approval is subject to the authority of the commission
115-13 thereafter to continue a hearing in progress. The commission may
115-14 in its discretion fix temporary rates for any period of suspension
115-15 under this section. During the suspension by the commission as
115-16 above provided, the rates in force when the suspended schedule was
115-17 filed shall continue in force unless the commission shall establish
115-18 a temporary rate. The commission shall give preference to the
115-19 hearing and decision of questions arising under this section over
115-20 all other questions pending before it and decide the same as
115-21 speedily as possible.
115-22 (e) If the 150-day period has been extended, as provided by
115-23 Subsection (d) of this section, and the commission fails to make
115-24 its final determination of rates within 150 days from the date that
115-25 the proposed change otherwise would have gone into effect, the
115-26 utility concerned may put a changed rate, not to exceed the
115-27 proposed rate, into effect upon the filing with the commission of a
116-1 bond payable to the commission in an amount and with sureties
116-2 approved by the commission conditioned upon refund and in a form
116-3 approved by the commission. The utility concerned shall refund or
116-4 credit against future bills all sums collected during the period of
116-5 suspension in excess of the rate finally ordered plus interest at
116-6 the current rate as finally determined by the commission.
116-7 (f) If, after hearing, the commission finds the rates to be
116-8 unreasonable or in any way in violation of any provision of law,
116-9 the commission shall determine the level of rates to be charged or
116-10 applied by the utility for the service in question and shall fix
116-11 the same by order to be served upon the utility; these rates are
116-12 thereafter to be observed until changed, as provided by this Act.
116-13 (g) A rate or tariff set by the commission may not authorize
116-14 a utility to automatically adjust and pass through to its customers
116-15 changes in costs of the utility.
116-16 (h) If the commission does not make a final determination
116-17 concerning a local exchange company's schedule of rates prior to
116-18 the expiration of the 150-day suspension period, the schedule of
116-19 rates finally approved by the commission shall become effective and
116-20 the local exchange company shall be entitled to collect such rates
116-21 from the date the 150-day suspension period expired. Any
116-22 surcharges or other charges necessary to effectuate this subsection
116-23 may not be recovered over a period of less than 90 days from the
116-24 date of the commission's final order.
116-25 (i) The commission on its own motion or on the petition of a
116-26 utility shall provide for the adjustment of a utility's billing to
116-27 reflect any increase or decrease of tax liability of the utility to
117-1 the state resulting from House Bill 11, Acts of the 72nd
117-2 Legislature, 1st Called Session, 1991, and that is attributable to
117-3 activities that are subject to the jurisdiction of the commission.
117-4 Any adjustment to billings under this section must be apportioned
117-5 pro-rata to all types and classes of service provided by the
117-6 utility and is effective only until the commission alters the
117-7 adjustment as provided by this subsection or enters an order for
117-8 the utility under this section or Section 3.210 of this Act. The
117-9 adjustment of billings must be made effective at the same time as
117-10 the increase or decrease of tax liability resulting from House Bill
117-11 11, Acts of the 72nd Legislature, 1st Called Session, 1991, or as
117-12 soon after as is reasonably practical. Each year after any
117-13 original adjustment, the commission shall review the utility's
117-14 increase or decrease of tax liability resulting from House Bill 11,
117-15 Acts of the 72nd Legislature, 1st Called Session, 1991, and alter
117-16 the adjustment to reflect the increase or decrease. A proceeding
117-17 under this subsection is not a rate case under this section. (Sec.
117-18 43 (part))
117-19 Sec. 3.212. CHANGES BY LOCAL EXCHANGE COMPANIES; HEARINGS;
117-20 SUSPENSION OF PROPOSED CHANGES. (a) A local exchange company may
117-21 make changes in its tariffed rules, regulations, or practices that
117-22 do not affect its charges or rates by filing the proposed changes
117-23 with the commission at least 35 days prior to the effective date of
117-24 the changes. The commission may require such notice to ratepayers
117-25 as it considers appropriate.
117-26 (b) The commission may on complaint by any affected person
117-27 or on its own motion hold a hearing, after reasonable notice, to
118-1 determine the propriety of the change. Pending the hearing and
118-2 decision, the commission may suspend the operation of the proposed
118-3 changes for a period not to exceed 120 days after the date on which
118-4 the changes would otherwise go into effect.
118-5 (c) The commission shall approve, deny, or modify the
118-6 proposed changes before expiration of the suspension period. In
118-7 any proceeding under this section, the burden of proving that the
118-8 requested relief is in the public interest and complies with this
118-9 Act shall be borne by the local exchange company. (Sec. 43A)
118-10 Sec. 3.213. COOPERATIVE OR SMALL LOCAL EXCHANGE COMPANIES;
118-11 STATEMENT OF INTENT TO CHANGE RATES; NOTICE OF INTENT; SUSPENSION
118-12 OF RATE SCHEDULE; REVIEW. (a) Except as otherwise provided by
118-13 this section, a local exchange company that is a cooperative
118-14 corporation or that has fewer than 5,000 access lines in service in
118-15 this state may change rates by publishing notice of the change at
118-16 least 60 days before the date of the change in the place and form
118-17 as prescribed by the commission. The notice must include:
118-18 (1) the reasons for the rate change;
118-19 (2) a description of the affected service;
118-20 (3) an explanation of the right of the subscriber to
118-21 petition the commission for a hearing on the rate change; and
118-22 (4) a list of rates that are affected by the proposed
118-23 rate change.
118-24 (b) At least 60 days before the date of the change, the
118-25 local exchange company shall file with the commission a statement
118-26 of intent to change rates containing:
118-27 (1) a copy of the notice required by Subsection (a) of
119-1 this section;
119-2 (2) the number of access lines the company has in
119-3 service in this state;
119-4 (3) the date of the most recent commission order
119-5 setting rates of the company;
119-6 (4) the increase in total gross annual local revenues
119-7 that will be produced by the proposed rates;
119-8 (5) the increase in total gross annual local revenues
119-9 that will be produced by the proposed rates together with any local
119-10 rate changes which went into effect during the 12 months preceding
119-11 the proposed effective date of the requested rate change and any
119-12 other proposed local rate changes then pending before the
119-13 commission;
119-14 (6) the increase in rates for each service category;
119-15 and
119-16 (7) other information the commission by rule requires.
119-17 (c) The commission shall review a proposed change in the
119-18 rates set by a local exchange company under this section upon the
119-19 receipt of complaints signed by at least five percent of all
119-20 affected subscribers or upon its own motion. The commission may
119-21 require notice to ratepayers as it considers appropriate. If
119-22 sufficient complaints are presented to the commission within 60
119-23 days after the date notice of the rate change was sent to
119-24 subscribers, the commission shall review the proposed change.
119-25 After notice to the local exchange company, the commission may
119-26 suspend the rates during the pendency of the review and reinstate
119-27 the rates previously in effect. Review under this subsection shall
120-1 be as provided by Section 3.211 of this Act. The period for review
120-2 by the commission does not begin until the local exchange company
120-3 files a complete rate-filing package.
120-4 (d) If the commission has entered an order setting a rate,
120-5 the affected local exchange company may not change that rate under
120-6 this section before 365 days after the date of the commission's
120-7 order setting the rate.
120-8 (e) This section does not prohibit a local exchange company
120-9 from filing for a rate change under any other applicable section of
120-10 this Act.
120-11 (f) The commission shall review a proposed change in the
120-12 rates of a local exchange company under this section if the
120-13 proposed rates, together with any local rate changes which went
120-14 into effect during the 12 months preceding the proposed effective
120-15 date of the requested rate change as well as any other proposed
120-16 local rate changes then pending before the commission, will
120-17 increase its total gross annual local revenues by more than 2 1/2
120-18 percent or if the proposed change would increase the rate of any
120-19 service category by more than 25 percent, except for basic local
120-20 service, which shall be limited to a maximum of 2 1/2 percent of
120-21 the total gross annual local revenue. Review under this subsection
120-22 shall be as provided by Section 3.211 of this Act. Each local
120-23 exchange company may receive a change in its local rates or in any
120-24 service category pursuant to this section only one time in any
120-25 12-month period.
120-26 (g) Rates established under this section must be in
120-27 accordance with the rate-setting principles of this subtitle.
121-1 (h) The commission is granted all necessary power and
121-2 authority to prescribe and collect fees and assessments from local
121-3 exchange companies necessary to recover the commission's and the
121-4 office's costs of activities carried out and services provided
121-5 under this section, Subsection (h) of Section 3.211 and Section
121-6 3.212 of this Act. (Sec. 43B)
121-7 Sec. 3.214. RATES FOR AREAS NOT WITHIN MUNICIPALITY.
121-8 Telecommunications utility rates for areas not within any
121-9 municipality may not exceed without commission approval 115 percent
121-10 of the average of all rates for similar services of all
121-11 municipalities served by the same utility within the same county.
121-12 (Sec. 44)
121-13 Sec. 3.215. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
121-14 OR SERVICES. A telecommunications utility may not, as to rates or
121-15 services, make or grant any unreasonable preference or advantage to
121-16 any corporation or person within any classification, or subject any
121-17 corporation or person within any classification to any unreasonable
121-18 prejudice or disadvantage. A telecommunications utility may not
121-19 establish and maintain any unreasonable differences as to rates of
121-20 service either as between localities or as between classes of
121-21 service. (Sec. 45)
121-22 Sec. 3.216. EQUALITY OF RATES AND SERVICES. (a) A
121-23 telecommunications utility may not, directly or indirectly, by any
121-24 device whatsoever or in any manner, charge, demand, collect, or
121-25 receive from any person a greater or less compensation for any
121-26 service rendered or to be rendered by the utility than that
121-27 prescribed in the schedule of rates of the telecommunications
122-1 utility applicable thereto when filed in the manner provided in
122-2 this Act, nor may any person knowingly receive or accept any
122-3 service from a telecommunications utility for a compensation
122-4 greater or less than that prescribed in the schedules.
122-5 (b) Nothing in this Act shall prevent a cooperative
122-6 corporation from returning to its members the whole, or any part
122-7 of, the net earnings resulting from its operations in proportion to
122-8 their purchases from or through the corporation. (Sec. 46)
122-9 Sec. 3.217. DISCRIMINATION; RESTRICTION ON COMPETITION. A
122-10 telecommunications utility may not discriminate against any person
122-11 or corporation that sells or leases equipment or performs services
122-12 in competition with the telecommunications utility, nor may any
122-13 telecommunications utility engage in any other practice that tends
122-14 to restrict or impair such competition. (Sec. 47)
122-15 Sec. 3.218. TELECOMMUNICATIONS UTILITY PROVIDING SERVICE TO
122-16 THE STATE; DELINQUENT PAYMENT CHARGES. A telecommunications
122-17 utility providing any service to the state, including service to an
122-18 agency in any branch of state government, may not charge a fee,
122-19 penalty, interest, or other charge for delinquent payment of a bill
122-20 for that service. (Sec. 48A)
122-21 SUBTITLE F. CERTIFICATES OF CONVENIENCE AND NECESSITY
122-22 Sec. 3.251. CERTIFICATE REQUIRED. (a) A telecommunications
122-23 utility may not in any way render service directly or indirectly to
122-24 the public under any franchise or permit without first having
122-25 obtained from the commission a certificate that the present or
122-26 future public convenience and necessity require or will require
122-27 such installation, operation, or extension.
123-1 (b) Except as otherwise provided in this subtitle, a
123-2 telecommunications utility may not furnish, make available, render,
123-3 or extend retail telecommunications utility service to any area to
123-4 which retail utility service is being lawfully furnished by another
123-5 telecommunications utility, without first having obtained a
123-6 certificate of public convenience and necessity that includes the
123-7 area in which the consuming facility is located. (Sec. 50)
123-8 Sec. 3.252. EXCEPTIONS FOR EXTENSION OF SERVICE. (a) A
123-9 telecommunications utility is not required to secure a certificate
123-10 of public convenience and necessity for:
123-11 (1) an extension into territory contiguous to that
123-12 already served by it and not receiving similar service from another
123-13 telecommunications utility and not within the area of public
123-14 convenience and necessity of another utility of the same kind;
123-15 (2) an extension within or to territory already served
123-16 by it or to be served by it under a certificate of public
123-17 convenience and necessity; or
123-18 (3) operation, extension, or service in progress on
123-19 September 1, 1975.
123-20 (b) Any extensions allowed by Subsection (a) of this section
123-21 shall be limited to devices for interconnection of existing
123-22 facilities or devices used solely for transmitting
123-23 telecommunications utility services from existing facilities to
123-24 customers of retail utility service. (Sec. 51)
123-25 Sec. 3.253. APPLICATION; MAPS; EVIDENCE OF CONSENT. (a) A
123-26 telecommunications utility shall submit to the commission an
123-27 application to obtain a certificate of public convenience and
124-1 necessity or an amendment thereof.
124-2 (b) On or before 90 days after September 1, 1975, or at a
124-3 later date on request in writing by a telecommunications utility
124-4 when good cause is shown, or at such later dates as the commission
124-5 may order, each telecommunications utility shall file with the
124-6 commission a map or maps showing all its facilities and
124-7 illustrating separately facilities for transmission and
124-8 distribution of its services.
124-9 (c) Each applicant for a certificate shall file with the
124-10 commission such evidence as is required by the commission to show
124-11 that the applicant has received the required consent, franchise, or
124-12 permit of the proper municipality or other public authority. (Sec.
124-13 52)
124-14 Sec. 3.254. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS
124-15 CONSIDERED. (a) When an application for a certificate of public
124-16 convenience and necessity is filed, the commission shall give
124-17 notice of such application to interested parties and, if requested,
124-18 shall fix a time and place for a hearing and give notice of the
124-19 hearing. Any person interested in the application may intervene at
124-20 the hearing.
124-21 (b) The commission may grant applications and issue
124-22 certificates only if the commission finds that the certificate is
124-23 necessary for the service, accommodation, convenience, or safety of
124-24 the public. The commission may issue the certificate as prayed
124-25 for, or refuse to issue it, or issue it for the construction of a
124-26 portion only of the contemplated system or facility or extension
124-27 thereof, or for the partial exercise only of the right or
125-1 privilege.
125-2 (c) Certificates of convenience and necessity shall be
125-3 granted on a nondiscriminatory basis after consideration by the
125-4 commission of the adequacy of existing service, the need for
125-5 additional service, the effect of the granting of a certificate on
125-6 the recipient of the certificate and on any telecommunications
125-7 utility of the same kind already serving the proximate area, and on
125-8 such factors as community values, recreational and park areas,
125-9 historical and aesthetic values, environmental integrity, and the
125-10 probable improvement of service or lowering of cost to consumers in
125-11 such area resulting from the granting of such certificate. (Sec.
125-12 54 (part))
125-13 Sec. 3.255. AREA INCLUDED WITHIN CITY, TOWN OR VILLAGE.
125-14 (a) If an area has been or shall be included within the boundaries
125-15 of a city, town, or village as the result of annexation,
125-16 incorporation, or otherwise, all telecommunications utilities
125-17 certified or entitled to certification under this Act to provide
125-18 service or operate facilities in such area prior to the inclusion
125-19 shall have the right to continue and extend service in its area of
125-20 public convenience and necessity within the annexed or incorporated
125-21 area, pursuant to the rights granted by its certificate and this
125-22 Act.
125-23 (b) Notwithstanding any other provision of law, a
125-24 telecommunications utility shall have the right to continue and
125-25 extend service within its area of public convenience and necessity
125-26 and to utilize the roads, streets, highways, alleys, and public
125-27 property for the purpose of furnishing such retail utility service,
126-1 subject to the authority of the governing body of a municipality to
126-2 require any telecommunications utility, at its own expense, to
126-3 relocate its facilities to permit the widening or straightening of
126-4 streets by giving to the telecommunications utility 30 days' notice
126-5 and specifying the new location for the facilities along the
126-6 right-of-way of the street or streets.
126-7 (c) This section may not be construed as limiting the power
126-8 of cities, towns, and villages to incorporate or extend their
126-9 boundaries by annexation. (Sec. 55 (part))
126-10 Sec. 3.256. CONTRACTS VALID AND ENFORCEABLE. Contracts
126-11 between telecommunications utilities designating areas to be served
126-12 and customers to be served by those utilities, when approved by the
126-13 commission, shall be valid and enforceable and shall be
126-14 incorporated into the appropriate areas of public convenience and
126-15 necessity. (Sec. 56)
126-16 Sec. 3.257. PRELIMINARY ORDER FOR CERTIFICATE. If a
126-17 telecommunications utility desires to exercise a right or privilege
126-18 under a franchise or permit which it contemplates securing but
126-19 which has not as yet been granted to it, such telecommunications
126-20 utility may apply to the commission for an order preliminary to the
126-21 issuance of the certificate. The commission may thereupon make an
126-22 order declaring that it will, on application, under such rules as
126-23 it prescribes, issue the desired certificate on such terms and
126-24 conditions as it designates, after the telecommunications utility
126-25 has obtained the contemplated franchise or permit. On presentation
126-26 to the commission of evidence satisfactory to it that the franchise
126-27 or permit has been secured by the telecommunications utility, the
127-1 commission shall issue the certificate. (Sec. 57)
127-2 Sec. 3.258. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE,
127-3 REDUCTION OR IMPAIRMENT OF SERVICE. (a) Except as provided by
127-4 this section or Section 3.259 of this Act, the holder of any
127-5 certificate of public convenience and necessity shall serve every
127-6 consumer within its certified area and shall render continuous and
127-7 adequate service within the area or areas.
127-8 (b) Unless the commission issues a certificate that neither
127-9 the present or future convenience and necessity will be adversely
127-10 affected, the holder of a certificate may not discontinue, reduce,
127-11 or impair service to a certified service area or part thereof
127-12 except for:
127-13 (1) nonpayment of charges;
127-14 (2) nonuse; or
127-15 (3) other similar reasons in the usual course of
127-16 business.
127-17 (c) Any discontinuance, reduction, or impairment of service,
127-18 whether with or without approval of the commission, shall be in
127-19 conformity with and subject to such conditions, restrictions, and
127-20 limitations as the commission shall prescribe. (Sec. 58)
127-21 Sec. 3.259. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
127-22 holder of a certificate of public convenience and necessity shall
127-23 refuse to serve a customer within its certified area if the holder
127-24 of the certificate is prohibited from providing the service under
127-25 Section 212.012 or 232.0047, Local Government Code. (Sec. 58A)
127-26 Sec. 3.260. SALE, ASSIGNMENT OR LEASE OF CERTIFICATE. If
127-27 the commission determines that a purchaser, assignee, or lessee is
128-1 capable of rendering adequate service, a telecommunications utility
128-2 may sell, assign, or lease a certificate of public convenience and
128-3 necessity or any rights obtained under the certificate. The sale,
128-4 assignment, or lease shall be on the conditions prescribed by the
128-5 commission. (Sec. 59)
128-6 Sec. 3.261. INTERFERENCE WITH OTHER TELECOMMUNICATIONS
128-7 UTILITY. If a telecommunications utility in constructing or
128-8 extending its lines, plant, or system interferes or attempts to
128-9 interfere with the operation of a line, plant, or system of any
128-10 other utility, the commission may issue an order prohibiting the
128-11 construction or extension or prescribing terms and conditions for
128-12 locating the lines, plants, or systems affected. (Sec. 60)
128-13 Sec. 3.262. IMPROVEMENTS IN SERVICE; INTERCONNECTING
128-14 SERVICE; EXTENDED AREA TOLL-FREE TELEPHONE SERVICE. After notice
128-15 and hearing, the commission may:
128-16 (1) order a telecommunications utility to provide
128-17 specified improvements in its service in a defined area, if service
128-18 in such area is inadequate or is substantially inferior to service
128-19 in a comparable area and it is reasonable to require the company to
128-20 provide such improved service;
128-21 (2) order two or more utilities to establish specified
128-22 facilities for the interconnecting service; and
128-23 (3) order a telephone company or telephone companies
128-24 to provide extended area toll-free service within a specified
128-25 metropolitan area where there is a sufficient community of interest
128-26 within the area and such service can reasonably be provided. (Sec.
128-27 61)
129-1 Sec. 3.263. REVOCATION OR AMENDMENT OF CERTIFICATE.
129-2 (a) The commission at any time after notice and hearing may revoke
129-3 or amend any certificate of convenience and necessity if it finds
129-4 that the certificate holder has never provided or is no longer
129-5 providing service in the area, or part of the area, covered by the
129-6 certificate.
129-7 (b) When the certificate of any telecommunications utility
129-8 is revoked or amended, the commission may require one or more
129-9 public utilities to provide service in the area in question. (Sec.
129-10 62)
129-11 SUBTITLE G. PROVISION OF TELEPHONE SERVICE
129-12 Sec. 3.301. DEDICATED LINE LONG DISTANCE SERVICE. A
129-13 telecommunications utility providing dedicated line long distance
129-14 service (TEXAN) to the state on August 31, 1987, shall continue to
129-15 have this type of service available to the state on a
129-16 month-to-month contract basis until September 1, 1988. The
129-17 contract will become effective on September 1, 1987, and shall be
129-18 under terms and conditions negotiated by the state and the utility
129-19 in accordance with the amounts appropriated by the General
129-20 Appropriations Act for this purpose. The General Services
129-21 Commission shall perform all actions necessary to insure that one
129-22 or more contracts for telecommunications services as provided in
129-23 Article 10 of the State Purchasing and General Services Act
129-24 (Article 601b, Vernon's Texas Civil Statutes) (TEXAN II) are
129-25 awarded pursuant to the requirements of the State Purchasing and
129-26 General Services Act (Article 601b, Vernon's Texas Civil Statutes)
129-27 by October 15, 1987, and that TEXAN II is operational not later
130-1 than August 31, 1988. Those funds appropriated by the General
130-2 Appropriations Act for extending the existing TEXAN contract which
130-3 are not expended in fiscal year 1988 shall be transferred to the
130-4 General Services Commission for the sole purpose of offsetting the
130-5 expenses associated with the administration of the TEXAN II
130-6 network. If, during the period of time this section is in effect,
130-7 any supplemental or other telecommunications service is required by
130-8 the state, it may be acquired from vendors other than the utility
130-9 or utilities providing TEXAN or TEXAN II service. (Sec. 87B)
130-10 Sec. 3.302. CALLER IDENTIFICATION SERVICES. (a) This
130-11 section applies only to the provision of caller identification
130-12 service.
130-13 (b) A person may not offer a caller identification service
130-14 unless the person obtains written authorization from the
130-15 commission.
130-16 (c) The commission shall require that a provider of caller
130-17 identification service offer per-call blocking at no charge to each
130-18 telephone subscriber in the specific area in which the service is
130-19 offered.
130-20 (d) The commission shall require that a provider offer
130-21 per-line blocking at no charge to a particular customer if the
130-22 commission receives from the customer written certification that
130-23 the customer has a compelling need for per-line blocking. If a
130-24 customer later removes the per-line block, the provider may assess
130-25 a service order charge relating to administrative costs in an
130-26 amount approved by the commission to reinstate the per-line block.
130-27 The commission may prescribe and assess fees and assessments from
131-1 providers of caller identification service in an amount sufficient
131-2 to cover the additional expenses incurred by the commission in
131-3 implementing the customer certification provisions of this
131-4 subsection. Reports, records, and information received under this
131-5 subsection by the commission or by a provider of caller
131-6 identification service are confidential and may be used only for
131-7 the purposes of administering this subsection.
131-8 (e) The commission may only prescribe in relation to
131-9 blocking the requirements prescribed by Subsections (c) and (d) of
131-10 this section.
131-11 (f) A person may not use a caller identification service to
131-12 compile and sell specific local call information without the
131-13 affirmative consent and approval of the originating telephone
131-14 customer. This subsection does not prohibit the provider from:
131-15 (1) verifying network performance or from testing the
131-16 provision of caller identification service;
131-17 (2) compiling, using, and disclosing aggregate caller
131-18 identification information; or
131-19 (3) complying with applicable law or legal process.
131-20 (g) This section does not apply to:
131-21 (1) an identification service that is used within the
131-22 same limited system, including a central office based PBX-type
131-23 system;
131-24 (2) information that is used on a public agency's
131-25 emergency telephone line or on a line that receives the primary
131-26 emergency telephone number (9-1-1);
131-27 (3) information passed between telecommunications
132-1 utilities, enhanced service providers, or other entities that is
132-2 necessary for the set-up, processing, transmission, or billing of
132-3 telecommunications or related services;
132-4 (4) information provided in compliance with applicable
132-5 law or legal process; or
132-6 (5) an identification service provided in connection
132-7 with a "700," "800," or "900" access code telecommunications
132-8 service.
132-9 (h) In this section:
132-10 (1) "Caller identification information" means:
132-11 (A) the telephone listing number and/or name of
132-12 the customer from whose telephone instrument a telephone number is
132-13 dialed; or
132-14 (B) other information that may be used to
132-15 identify the specific originating number or originating location of
132-16 a wire or electronic communication transmitted by a telephone
132-17 instrument.
132-18 (2) "Caller identification service" means a service
132-19 offered by a telecommunications utility that provides caller
132-20 identification information to a device capable of displaying the
132-21 information.
132-22 (3) "Per-call blocking" means a telecommunications
132-23 service that prevents the transmission of caller identification
132-24 information to a called party on an individual call if the calling
132-25 party acts affirmatively to prevent the transmission of the caller
132-26 identification information.
132-27 (4) "Per-line blocking" means a telecommunications
133-1 service that prevents the transmission of caller identification
133-2 information to a called party on every call unless the calling
133-3 party acts affirmatively to release the caller identification
133-4 information. (Sec. 87C)
133-5 Sec. 3.303. INTEREXCHANGE SERVICES; LOCAL EXCHANGE
133-6 COMPANIES' RATES. Local exchange companies' rates for
133-7 interexchange telecommunications services must be statewide average
133-8 rates unless the commission on application and hearing orders
133-9 otherwise. Nothing in this section limits a local exchange
133-10 company's ability to enter into contracts for high speed private
133-11 line services of 1.544 megabits or greater under the provisions of
133-12 Section 3.051 of this Act. (Sec. 93)
133-13 Sec. 3.304. EXPANSION OF TOLL-FREE CALLING AREAS; CRITERIA.
133-14 (a) To address telephone calling needs between nearby telephone
133-15 exchanges, the commission shall initiate a rulemaking proceeding to
133-16 approve rules to provide for an expedited hearing to allow the
133-17 expanding of toll-free calling areas according to the following
133-18 criteria:
133-19 (1) Toll-free calling boundaries may only be expanded
133-20 under this section after the filing of a petition signed by the
133-21 lesser of five percent of the subscribers or 100 subscribers within
133-22 an exchange. If such a petition is filed with the commission, the
133-23 commission shall order the local exchange company to provide for
133-24 the balloting of its subscribers within the petitioning exchange
133-25 and, if there is an affirmative vote of at least 70 percent of
133-26 those responding, the commission shall consider the request.
133-27 (2) The commission shall provide for the expansion of
134-1 toll-free calling areas for each local exchange customer in the
134-2 petitioning exchange if the petitioning exchange serves not more
134-3 than 10,000 lines and if:
134-4 (A) the petitioning exchange is located within
134-5 22 miles of the exchange requested for toll-free calling service;
134-6 or
134-7 (B) the petitioning exchange shares a community
134-8 of interest with the exchange requested for toll-free calling
134-9 service. For purposes of this paragraph, "community of interest"
134-10 includes areas that have a relationship because of schools,
134-11 hospitals, local governments, business centers, and other
134-12 relationships the unavailability of which would cause a hardship to
134-13 the residents of the area but need not include an area where the
134-14 affected central offices are more than 50 miles apart.
134-15 (3)(A) The local exchange company shall recover all of
134-16 its costs incurred and all loss of revenue from any expansion of
134-17 toll-free calling areas under this section through a request other
134-18 than a revenue requirement showing by:
134-19 (i) a monthly fee for toll-free calling
134-20 service of not more than $3.50 per line for residential customers
134-21 nor more than $7 per line for business customers, to be collected
134-22 from all such residential or business customers in the petitioning
134-23 exchange and only until the local exchange company's next general
134-24 rate case;
134-25 (ii) a monthly fee for toll-free calling
134-26 service for all of the local exchange company's local exchange
134-27 service customers in the state in addition to the company's current
135-1 local exchange rates; or
135-2 (iii) both (i) and (ii).
135-3 (B) A local exchange company may not recover
135-4 regulatory case expenses under this section by surcharging
135-5 petitioning exchange subscribers.
135-6 (b)(1) The commission and a local exchange company are not
135-7 required to comply with this section with regard to a petitioning
135-8 exchange or petitioned exchange if:
135-9 (A) the commission determines that there has
135-10 been a good and sufficient showing of a geographic or technological
135-11 infeasibility to serve the area;
135-12 (B) the local exchange company has less than
135-13 10,000 lines;
135-14 (C) the petitioning or petitioned exchange is
135-15 served by a cooperative;
135-16 (D) extended area service or extended
135-17 metropolitan service is currently available between the petitioning
135-18 and petitioned exchanges; or
135-19 (E) the petitioning or petitioned exchange is a
135-20 metropolitan exchange.
135-21 (2) The commission may expand the toll-free calling
135-22 area into an exchange not within a metropolitan exchange but within
135-23 the local calling area contiguous to a metropolitan exchange that
135-24 the commission determines to have a community of interest
135-25 relationship with the petitioning exchange. For the purposes of
135-26 this section, metropolitan exchange, local calling area of a
135-27 metropolitan exchange, and exchange have the meanings and
136-1 boundaries as defined and approved by the commission on September
136-2 1, 1993. However, under no circumstances shall a petitioning or
136-3 petitioned exchange be split in the provision of a toll-free
136-4 calling area.
136-5 (c) The commission may, in order to promote the wide
136-6 dispersion of pay telephones, either exempt such telephones from
136-7 the provisions of this section or change the rates to be charged
136-8 from such telephones in an amount sufficient to promote this goal.
136-9 (Sec. 93A)
136-10 Sec. 3.305. PAY TELEPHONES; NUMBERS AND NOTICES DISPLAYED.
136-11 (a) A pay telephone service provider may not display the telephone
136-12 number of a pay telephone that cannot receive a telephone call.
136-13 (b) A pay telephone service provider shall place in a
136-14 conspicuous location on each pay telephone that cannot receive
136-15 telephone calls a notice stating in letters one-fourth inch high:
136-16 "THIS TELEPHONE CANNOT RECEIVE TELEPHONE CALLS."
136-17 (c) A pay telephone service provider that violates a
136-18 provision of this section or a rule or order adopted by the
136-19 commission under this section is subject to a civil penalty as
136-20 provided by Section 1.322 of this Act, unless such provider, within
136-21 14 days of receiving written notice of a violation, takes
136-22 corrective action to comply with the provisions of this section.
136-23 (d) The commission has jurisdiction over all pay telephone
136-24 service providers to the extent necessary to enforce this section
136-25 regardless of whether a pay telephone service provider is a
136-26 telecommunications utility regulated under this Act.
136-27 (e) The commission may adopt rules and establish procedures
137-1 to enforce this section. (Sec. 93A)
137-2 Sec. 3.306. HOTELS OR MOTELS; CHARGES FOR TELEPHONE CALLS.
137-3 The amount a hotel or motel charges for a local telephone call, a
137-4 credit card telephone call, a collect telephone call, or any other
137-5 local telephone call for which assistance from the hotel or motel
137-6 operator is not required may not exceed 50 cents. (Sec. 93B)
137-7 Sec. 3.307. "1-900" SERVICE. (a) A telecommunications
137-8 utility that transports or provides a "1-900" service under a
137-9 contract authorized by Article 42.131 or 42.18, Code of Criminal
137-10 Procedure, and its subsequent amendments that is used by a
137-11 defendant under the supervision of a community supervision and
137-12 corrections department or the pardons and paroles division of the
137-13 Texas Department of Criminal Justice to pay a fee or cost or to
137-14 comply with telephone reporting requirements may adjust or
137-15 authorize the adjustment of an end-user's bill for those fees or
137-16 costs or charges for reporting only with the consent of the
137-17 contracting community supervision and corrections department or the
137-18 contracting pardons and paroles division of the Texas Department of
137-19 Criminal Justice.
137-20 (b) This section applies only to an intrastate "1-900"
137-21 service. (Sec. 93C)
137-22 SUBTITLE H. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM;
137-23 UNIVERSAL SERVICE FUND
137-24 Sec. 3.351. TEL-ASSISTANCE SERVICE. The commission shall
137-25 adopt and enforce rules requiring each local exchange company to
137-26 establish a telecommunications service assistance program to be
137-27 called "tel-assistance service." This service is established to
138-1 provide eligible consumers with a reduction in costs of
138-2 telecommunications services. (Sec. 94)
138-3 Sec. 3.352. ELIGIBILITY FOR TEL-ASSISTANCE SERVICE; BURDEN
138-4 OF PROOF; BILLING. (a) To be eligible for tel-assistance service,
138-5 an applicant must be a head of household, 65 years of age or older,
138-6 and disabled as determined by the Texas Department of Human
138-7 Services and must have a household income at or below the poverty
138-8 level as determined by the United States Office of Management and
138-9 Budget and reported annually in the Federal Register. The
138-10 department, in accordance with this subtitle and rules adopted by
138-11 the department for the program, shall develop procedures for taking
138-12 applications for certification of eligibility and for determining
138-13 program eligibility. The burden of proving eligibility for
138-14 tel-assistance service is on the consumer applying for the service.
138-15 (b) Each six months the department shall provide a list or
138-16 lists of the names, addresses, and, if applicable, telephone
138-17 numbers of all persons eligible for tel-assistance service to each
138-18 local exchange company. The local exchange company shall determine
138-19 from the list those consumers to whom the company provides service
138-20 and within 60 days after receiving the list shall begin
138-21 tel-assistance billing for eligible consumers. This billing shall
138-22 continue until the local exchange company is notified by the
138-23 department that a consumer is no longer eligible to receive
138-24 tel-assistance service. (Sec. 95)
138-25 Sec. 3.353. TEL-ASSISTANCE SERVICES; BILLING; RATES.
138-26 (a) The local exchange company shall provide tel-assistance
138-27 service to all eligible consumers within its certificated area in
139-1 the form of a reduction on each eligible consumer's telephone bill.
139-2 The reduction shall apply only to the following types of service:
139-3 (1) residential flat rate basic local exchange
139-4 service;
139-5 (2) residential local exchange access service; and
139-6 (3) residential local area calling usage, except that
139-7 the reduction for local area calling usage shall be limited to an
139-8 amount such that together with the reduction for local exchange
139-9 access service the rate does not exceed the comparable reduced flat
139-10 rate for the service.
139-11 (b) No other local voice service may be provided to the
139-12 dwelling place of a tel-assistance consumer, nor may single or
139-13 party line optional extended area service, optional extended area
139-14 calling service, foreign zone, or foreign exchange service be
139-15 provided to a tel-assistance consumer. Nothing in this section
139-16 shall prohibit a person otherwise eligible to receive
139-17 tel-assistance service from obtaining and using telecommunications
139-18 equipment designed to aid such person in utilizing
139-19 telecommunications services.
139-20 (c) The reduction allowed by the telecommunications service
139-21 assistance program shall be 65 percent of the applicable tariff
139-22 rate for the service provided. (Sec. 96)
139-23 Sec. 3.354. STATEWIDE TELECOMMUNICATIONS RELAY ACCESS
139-24 SERVICE FOR HEARING-IMPAIRED AND SPEECH-IMPAIRED. (a) The
139-25 commission shall adopt and enforce rules establishing a statewide
139-26 telecommunications relay access service for the hearing-impaired
139-27 and speech-impaired using specialized communications equipment such
140-1 as telecommunications devices for the deaf (TDD) and operator
140-2 translations. The purpose of this section is to provide for the
140-3 uniform and coordinated provision of the service on a statewide
140-4 basis by one telecommunications carrier.
140-5 (b) Commission rules relating to a statewide
140-6 telecommunications relay access service for the hearing-impaired
140-7 and speech-impaired shall provide that:
140-8 (1) the service shall provide the hearing-impaired and
140-9 speech-impaired with access to the telecommunications network in
140-10 Texas equal to that provided other customers;
140-11 (2) the service shall consist of the following:
140-12 (A) switching and transmission of the call;
140-13 (B) verbal and print translations by either live
140-14 or automated means between hearing-impaired and speech-impaired
140-15 individuals who use TDD equipment or similar automated devices and
140-16 others who do not have such equipment; and
140-17 (C) other service enhancements proposed by the
140-18 carrier and approved by the commission;
140-19 (3) the calling or called party shall bear no charge
140-20 for calls originating and terminating within the same local calling
140-21 area;
140-22 (4) the calling or called party shall bear one-half of
140-23 the total charges established by contract with the commission for
140-24 intrastate interexchange calls;
140-25 (5) as specified in its contract with the commission,
140-26 charges related to providing the service which are not borne by a
140-27 calling or called party pursuant to Subdivisions (3) and (4) of
141-1 this subsection shall be funded from the universal service fund;
141-2 (6) local exchange companies may not impose
141-3 interexchange carrier access charges on calls which make use of
141-4 this service and which originate and terminate in the same local
141-5 calling area;
141-6 (7) local exchange companies shall provide billing and
141-7 collection services in support of this service at just and
141-8 reasonable rates; and
141-9 (8) if the commission orders a local exchange company
141-10 to provide for a trial telecommunications relay access service for
141-11 the hearing-impaired or speech-impaired, all pertinent costs and
141-12 design information from this trial shall be available to the
141-13 general public.
141-14 (c) The commission shall allow telecommunications utilities
141-15 to recover their universal service fund assessment related to this
141-16 service through a surcharge which the utility may add to its
141-17 customers' bills. The commission shall specify how the amount of
141-18 the surcharge is to be determined by each utility. If a utility
141-19 chooses to impose the surcharge, the bill shall list the surcharge
141-20 as the "universal service fund surcharge."
141-21 (d) The commission shall set the appropriate assessments for
141-22 the funding of the service by all telecommunications utilities. In
141-23 setting the appropriate assessments, the commission shall consider
141-24 the aggregate calling pattern of the users of the service and all
141-25 other factors found appropriate and in the public interest by the
141-26 commission. The commission shall review the assessments annually
141-27 and adjust the assessments as found appropriate hereunder.
142-1 (e) The commission shall select the telecommunications
142-2 carrier which will provide the statewide telecommunications relay
142-3 access service for the hearing-impaired and speech-impaired. In
142-4 awarding the contract for this service, the commission shall make a
142-5 written award of the contract to the offerer whose proposal is the
142-6 most advantageous to the state, considering price, the interests of
142-7 the hearing-impaired and speech-impaired community in having access
142-8 to a high quality and technologically advanced telecommunications
142-9 system, and all other factors listed in the commission's request
142-10 for proposals. The commission shall consider each proposal in a
142-11 manner that does not disclose the contents of the proposal to
142-12 competing offerers. The commission's evaluation of the proposals
142-13 shall include:
142-14 (1) charges for the service;
142-15 (2) service enhancements proposed by the offerers;
142-16 (3) technological sophistication of the network
142-17 proposed by the offerers; and
142-18 (4) the proposed commencement date for the service.
142-19 (f) The telecommunications carrier providing the service
142-20 shall be compensated for providing such service at rates, terms,
142-21 and conditions established in its contract with the commission.
142-22 This compensation may include a return on the investment required
142-23 to provide the service and compensation for unbillable and
142-24 uncollectible calls placed through the service, provided that
142-25 compensation for unbillable and uncollectible calls shall be
142-26 subject to a reasonable limitation as determined by the commission.
142-27 (g) The advisory committee to assist the commission in
143-1 administering this section is composed of the following persons
143-2 appointed by the commission:
143-3 (1) two deaf persons recommended by the Texas
143-4 Association of the Deaf;
143-5 (2) one hearing-impaired person recommended by
143-6 Self-Help for the Hard of Hearing;
143-7 (3) one hearing-impaired person recommended by the
143-8 American Association of Retired Persons;
143-9 (4) one deaf and blind person recommended by the Texas
143-10 Deaf/Blind Association;
143-11 (5) one speech-impaired person and one speech-impaired
143-12 and hearing-impaired person recommended by the Coalition of Texans
143-13 with Disabilities;
143-14 (6) two representatives of telecommunications
143-15 utilities, one representing a nonlocal exchange utility and one
143-16 representing a local exchange company, chosen from a list of
143-17 candidates provided by the Texas Telephone Association;
143-18 (7) two persons, at least one of whom is deaf, with
143-19 experience in providing relay services recommended by the Texas
143-20 Commission for the Deaf; and
143-21 (8) two public members recommended by organizations
143-22 representing consumers of telecommunications services.
143-23 (h) The commission shall appoint advisory committee members
143-24 based on recommended lists of candidates submitted in accordance
143-25 with Subdivision (6) of Subsection (g) of this section. The
143-26 advisory committee shall monitor the establishment, administration,
143-27 and promotion of the statewide telecommunications relay access
144-1 service and advise the commission in pursuing a service which meets
144-2 the needs of the hearing-impaired and speech-impaired in
144-3 communicating with other users of telecommunications services. The
144-4 terms of office of each member of the advisory committee shall be
144-5 two years. A member whose term has expired shall continue to serve
144-6 until a qualified replacement is appointed. The members of the
144-7 advisory committee shall serve without compensation but shall be
144-8 entitled to reimbursement at rates established for state employees
144-9 for travel and per diem incurred in the performance of their
144-10 official duties. The commission shall reimburse members of the
144-11 advisory committee in accordance with this subsection and shall
144-12 provide clerical and staff support to the advisory committee,
144-13 including a secretary to record the committee meetings. The
144-14 commission's costs associated with the advisory committee shall be
144-15 reimbursed from the universal service fund. (Sec. 96A)
144-16 Sec. 3.355. DISTANCE LEARNING ACTIVITIES BY EDUCATIONAL
144-17 INSTITUTIONS; REDUCED RATES. (a) The commission by rule shall
144-18 require a dominant carrier to file a tariff containing a reduced
144-19 rate for a telecommunications service the commission finds is
144-20 directly related to a distance learning activity that is or could
144-21 be conducted by an educational institution in this state.
144-22 (b) The commission rules shall specify:
144-23 (1) the telecommunications services that qualify under
144-24 this section;
144-25 (2) the process by which an educational institution
144-26 qualifies for a reduced rate;
144-27 (3) the date by which a dominant carrier shall file a
145-1 tariff;
145-2 (4) guidelines and criteria by which the services and
145-3 reduced rates shall further the goals stated in Subsection (d) of
145-4 this section; and
145-5 (5) any other requirements, terms, and conditions that
145-6 the commission determines to be in the public interest.
145-7 (c) A tariff filing by a dominant carrier under this
145-8 section:
145-9 (1) shall concern only the implementation of this
145-10 section;
145-11 (2) is not a rate change under Section 3.211 of this
145-12 Act; and
145-13 (3) does not affect any of the carrier's other rates
145-14 or services.
145-15 (d) The services and reduced rates shall be designed to:
145-16 (1) encourage the development and offering of distance
145-17 learning activities by educational institutions;
145-18 (2) meet the distance learning needs identified by the
145-19 educational community; and
145-20 (3) recover the long-run incremental costs of
145-21 providing the services, to the extent those costs can be
145-22 identified, so as to avoid subsidizing educational institutions.
145-23 (e) The commission is not required to determine the long-run
145-24 incremental cost of providing a service before approving a reduced
145-25 rate for the service. Until cost determination rules are developed
145-26 and the rates established under this section are changed as
145-27 necessary to ensure proper cost recovery, the reduced rates
146-1 established by the commission shall be equal to 75 percent of the
146-2 otherwise applicable rate. After the commission develops cost
146-3 determination rules for telecommunications services generally, it
146-4 shall ensure that a reduced rate approved under this section
146-5 recovers service-specific long-run incremental costs and avoids
146-6 subsidization.
146-7 (f) An educational institution or dominant carrier may at
146-8 any time request the commission to:
146-9 (1) provide for a reduced rate for a service directly
146-10 related to a distance learning activity that is not covered by
146-11 commission rules;
146-12 (2) change a rate;
146-13 (3) amend a tariff; or
146-14 (4) amend a commission rule.
146-15 (g) If the commission determines that a change requested
146-16 under Subsection (f) is appropriate, it shall make the requested
146-17 change.
146-18 (h) In this section:
146-19 (1) "Distance learning" means instruction, learning,
146-20 and training that is transmitted from one site to one or more sites
146-21 by telecommunications services that are used by an educational
146-22 institution predominantly for such instruction, learning, or
146-23 training, including video, data, voice, and electronic information.
146-24 (2) "Educational institution" means and includes:
146-25 (A) accredited primary or secondary schools
146-26 owned or operated by state and local governmental entities or
146-27 private entities;
147-1 (B) institutions of higher education as defined
147-2 by Section 61.003, Education Code;
147-3 (C) private institutions of higher education
147-4 accredited by a recognized accrediting agency as defined by Section
147-5 61.003(13), Education Code;
147-6 (D) the Central Education Agency, its successors
147-7 and assigns;
147-8 (E) regional education service centers
147-9 established and operated pursuant to Sections 11.32 and 11.33,
147-10 Education Code; and
147-11 (F) the Texas Higher Education Coordinating
147-12 Board, its successors and assigns. (Sec. 96B)
147-13 Sec. 3.356. RECOVERY OF LOST REVENUES. A local exchange
147-14 company is entitled to recover the lost revenue, if any, resulting
147-15 solely from the provision of tel-assistance service from the
147-16 universal service fund, the establishment of which is provided for
147-17 by this Act. (Sec. 97)
147-18 Sec. 3.357. UNIVERSAL SERVICE FUND. (a) The commission
147-19 shall adopt and enforce rules requiring local exchange companies to
147-20 establish a universal service fund to assist local exchange
147-21 companies in providing basic local exchange service at reasonable
147-22 rates in high cost rural areas, to reimburse local exchange
147-23 companies for revenues lost as a result of providing tel-assistance
147-24 service under this Act, to reimburse the telecommunications carrier
147-25 providing the statewide telecommunications relay access service for
147-26 the hearing-impaired and speech-impaired as authorized in Section
147-27 3.354 of this Act, and to reimburse the Texas Department of Human
148-1 Services and the commission for costs incurred in implementing the
148-2 provisions of this subtitle.
148-3 (b) The universal service fund shall be funded by a
148-4 statewide uniform charge, at rates and on services determined by
148-5 the commission, payable by all telecommunications utilities that
148-6 have access to the customer base. In establishing the uniform
148-7 level of the charge and the services to which it will apply, the
148-8 commission may not make or grant an unreasonable preference or
148-9 advantage to a telecommunications utility or subject a
148-10 telecommunications utility to unreasonable prejudice or
148-11 disadvantage. The charge shall be paid in accordance with
148-12 procedures approved by the commission.
148-13 (c) The commission shall:
148-14 (1) establish, in a manner that assures reasonable
148-15 rates for basic local exchange service, eligibility criteria it
148-16 finds necessary for participation in the universal service fund;
148-17 (2) determine which local exchange companies meet the
148-18 eligibility criteria;
148-19 (3) determine the amount of and approve a procedure
148-20 for reimbursement to local exchange companies of revenue lost in
148-21 providing tel-assistance service under this Act;
148-22 (4) prescribe and collect fees from the universal
148-23 service fund necessary to recover the costs the Texas Department of
148-24 Human Services and the commission incurred in implementing and
148-25 administrating the provisions of this subtitle; and
148-26 (5) approve procedures for the collection and
148-27 disbursal of the revenues of the universal service fund.
149-1 (d) The commission shall adopt rules for the implementation
149-2 and administration of the universal service fund.
149-3 (e) The commission may do all things necessary and
149-4 convenient to implement and administer the universal service fund.
149-5 (Sec. 98)
149-6 Sec. 3.358. INTERACTIVE MULTIMEDIA COMMUNICATIONS. (a) The
149-7 commission shall permit a local exchange company that provides
149-8 interactive multimedia communications services to establish rates
149-9 at levels necessary, using sound ratemaking principles, to recover
149-10 costs associated with providing the services. Unless determined by
149-11 the commission to be in the public interest, a local exchange
149-12 company may not establish rates under this subsection that are less
149-13 than the local exchange company's long run incremental costs of
149-14 providing the interactive multimedia communications services.
149-15 (b) In this section, "interactive multimedia communications"
149-16 has the meaning assigned by Section 14.0451(a), Education Code, as
149-17 added by Chapter 868, Acts of the 73rd Legislature, Regular
149-18 Session, 1993. (Sec. 98A)
149-19 Sec. 3.359. SEVERABILITY. If this subtitle conflicts with
149-20 another provision of this Act, this subtitle prevails. (Sec. 99)
149-21 SUBTITLE I. AUTOMATIC DIAL ANNOUNCING DEVICES
149-22 Sec. 3.401. DEFINITIONS. In this subtitle:
149-23 (1) "Automated dial announcing device" or "ADAD" means
149-24 automated equipment used for telephone solicitation or collection
149-25 that is capable:
149-26 (A) of storing telephone numbers to be called or
149-27 has a random or sequential number generator capable of producing
150-1 numbers to be called; and
150-2 (B) alone or in conjunction with other
150-3 equipment, of conveying a prerecorded or synthesized voice message
150-4 to the number called without the use of a live operator.
150-5 (2) "LEC" means a local exchange company, as that term
150-6 is defined by Section 3.001 of this Act. (Sec. 111)
150-7 Sec. 3.402. EXEMPTIONS. This subtitle does not apply to the
150-8 use of an ADAD to make a telephone call:
150-9 (1) relating to an emergency or a public service under
150-10 a program developed or approved by the emergency management
150-11 coordinator of the county in which the call was received; or
150-12 (2) made by a public or private primary or secondary
150-13 school system to locate or account for a truant student. (Sec.
150-14 112)
150-15 Sec. 3.403. REQUIREMENTS FOR OPERATION OF ADAD. (a) A
150-16 person may not operate an ADAD to make a telephone call if the
150-17 device plays a recorded message when a connection is completed to a
150-18 telephone number unless:
150-19 (1) the person has obtained a permit from the
150-20 commission and given written notice specifying the type of device
150-21 to each telecommunications utility over whose system the device is
150-22 to be used;
150-23 (2) the device is not used for random number dialing
150-24 or to dial numbers determined by successively increasing or
150-25 decreasing integers;
150-26 (3) the message states during the first 30 seconds of
150-27 the call the nature of the call, the identity of the person,
151-1 company, or organization making the call, and the telephone number
151-2 from which the call was made;
151-3 (4) the device disconnects from the called person's
151-4 line not later than 30 seconds after the call is terminated by
151-5 either party or, if the device cannot disconnect within that
151-6 period, a live operator introduces the call and receives the oral
151-7 consent of the called person before beginning a prerecorded or
151-8 synthesized voice message; and
151-9 (5) for calls terminating in this state, the device is
151-10 not used to make a call:
151-11 (A) before noon or after 9 p.m. on a Sunday or
151-12 before 9 a.m. or after 9 p.m. on a weekday or a Saturday, if the
151-13 device is used for solicitation; or
151-14 (B) at an hour at which collection calls would
151-15 be prohibited under the federal Fair Debt Collection Practices Act
151-16 (15 U.S.C. Section 1692 et seq.), if the device is used for
151-17 collection purposes.
151-18 (b) In addition to the requirements prescribed by Subsection
151-19 (a) of this section, if during the call a cross-promotion or
151-20 reference to a pay-per-call information service is made, the call
151-21 shall include:
151-22 (1) a statement that a charge will be incurred by a
151-23 caller who makes a call to a pay-per-call information services
151-24 telephone number;
151-25 (2) the amount of the flat-rate or cost-per-minute
151-26 charge that will be incurred or the amount of both if both charges
151-27 will be incurred; and
152-1 (3) the estimated amount of time required to receive
152-2 the entire information offered by the service during a call.
152-3 (c) In this section, "pay-per-call information service"
152-4 means a service that allows a caller to dial a specified "900" or
152-5 "976" number to call a service that routinely delivers, for a
152-6 predetermined and sometimes time-sensitive fee, a prerecorded or
152-7 live message or interactive program. (Sec. 113)
152-8 Sec. 3.404. INVESTIGATION OF COMPLAINTS; VIOLATIONS;
152-9 DISCONNECTION OF SERVICE. (a) The commission shall investigate
152-10 complaints relating to the use of an ADAD and enforce this
152-11 subtitle.
152-12 (b) If the commission or a court determines that a person
152-13 has violated this subtitle, the commission or court shall require a
152-14 telecommunications utility to disconnect service to the person.
152-15 The telecommunications utility may reconnect service to the person
152-16 only on a determination by the commission that the person will
152-17 comply with this subtitle. The utility shall give notice to the
152-18 person using the device of its intent to disconnect service not
152-19 later than the third day before the date of the disconnection,
152-20 except that if the device is causing network congestion or
152-21 blockage, the notice may be given on the day before the date of
152-22 disconnection.
152-23 (c) A telecommunications utility may, without an order by
152-24 the commission or a court, disconnect or refuse to connect service
152-25 to a person using or intending to use an ADAD if the utility
152-26 determines that the device would cause or is causing network harm.
152-27 (Sec. 114)
153-1 Sec. 3.405. APPLICATION FOR PERMIT TO OPERATE ADAD. (a) An
153-2 application for a permit to use one or more ADADs must be made
153-3 using the form prescribed by the commission and must be accompanied
153-4 by a fee in a reasonable amount computed to cover the enforcement
153-5 cost to the commission, but not to exceed $500, as determined by
153-6 the commission. A permit is valid for one year after its effective
153-7 date. Subject to Subsection (c) of this section, a permit may be
153-8 renewed annually by making the filing required by this section and
153-9 paying a filing fee of not more than $100, as determined by the
153-10 commission. The proceeds of the fees shall be deposited to the
153-11 credit of the General Revenue Fund.
153-12 (b) Each application for the issuance or renewal of a permit
153-13 under this section must contain the telephone number of each ADAD
153-14 that will be used and the physical address from which the ADAD will
153-15 operate. If the telephone number of an ADAD or the physical
153-16 address from which the ADAD operates changes, the owner or operator
153-17 of the ADAD shall notify the commission by certified mail of each
153-18 new number or address not later than the 48th hour before the hour
153-19 at which the ADAD will begin operating with the new telephone
153-20 number or at the new address. If the owner or operator of an ADAD
153-21 fails to notify the commission as required by this subsection
153-22 within the period prescribed by this subsection, the permit is
153-23 automatically invalid.
153-24 (c) In determining if a permit should be issued or renewed,
153-25 the commission shall consider the compliance record of the owner or
153-26 operator of the ADAD. The commission may deny an application for
153-27 the issuance or renewal of a permit because of the applicant's
154-1 compliance record.
154-2 (d) The commission shall provide to an LEC on request a copy
154-3 of a permit issued under this section and of any changes relating
154-4 to the permit.
154-5 (e) An LEC that receives a complaint relating to the use of
154-6 an ADAD shall send the complaint to the commission. The commission
154-7 by rule shall prescribe the procedures and requirements for sending
154-8 a complaint to the commission. (Sec. 115)
154-9 Sec. 3.406. VIOLATIONS; PENALTIES. (a) A person who owns
154-10 or operates an ADAD and who operates the ADAD without a valid
154-11 permit or with an expired permit or who operates the ADAD in
154-12 violation of this subtitle or a commission rule or order is subject
154-13 to an administrative penalty of not more than $1,000 for each day
154-14 or portion of a day during which the ADAD was operating in
154-15 violation of this section.
154-16 (b) The administrative penalty authorized by this section is
154-17 civil in nature and is cumulative of any other penalty provided by
154-18 law.
154-19 (c) The commission by rule shall prescribe the procedures
154-20 for assessing an administrative penalty under this section. The
154-21 procedures shall require proper notice and hearing in accordance
154-22 with Chapter 2001, Government Code.
154-23 (d) A person may appeal the final order of the commission
154-24 under Chapter 2001, Government Code, using the substantial evidence
154-25 rule on appeal.
154-26 (e) The proceeds of administrative penalties collected under
154-27 this section shall be deposited to the credit of the General
155-1 Revenue Fund. (Sec. 116)
155-2 Sec. 3.407. REVOCATION OF PERMIT; OFFENSES. (a) The
155-3 commission may revoke a permit issued under this subtitle for
155-4 failure to comply with this subtitle.
155-5 (b) A person commits an offense if the person owns or
155-6 operates an ADAD that the person knows is operating in violation of
155-7 this subtitle. An offense under this subsection is a Class A
155-8 misdemeanor. (Sec. 117)
155-9 Sec. 3.408. RULE-MAKING AUTHORITY. The commission may adopt
155-10 any rules necessary to carry out its powers and duties under this
155-11 subtitle. (Sec. 118)
155-12 Sec. 3.409. COMPLIANCE WITH CONSUMERS' REQUESTS NOT TO BE
155-13 CALLED. Every telephone solicitor operating in this state who
155-14 makes consumer telephone calls subject to Section 37.02 of the
155-15 Business & Commerce Code shall implement in-house systems and
155-16 procedures so that every effort is made not to call consumers who
155-17 ask not to be called again. The commission is granted all
155-18 necessary power and authority to enforce the provisions of this
155-19 section. (Sec. 119)
155-20 Sec. 3.410. NOTICE TO CONSUMER OF PROVISIONS OF CHAPTER 37
155-21 OF THE BUSINESS & COMMERCE CODE AND SEC. 3.409. The commission by
155-22 rule shall require that a local exchange company or telephone
155-23 cooperative inform its customers of the provisions of Chapter 37 of
155-24 the Business & Commerce Code and Section 3.409 of this Act by:
155-25 (1) inserting the notice annually in the billing
155-26 statement mailed to a customer; or
155-27 (2) publishing the notice in the consumer information
156-1 pages of its local telephone directory. (Sec. 120)
156-2 SECTION 2. (a) The Public Utility Regulatory Act (Article
156-3 1446c, Vernon's Texas Civil Statutes) is repealed.
156-4 (b) A reference in law to the "Public Utility Regulatory
156-5 Act" means the "Public Utility Regulatory Act of 1995."
156-6 SECTION 3. The importance of this legislation and the
156-7 crowded condition of the calendars in both houses create an
156-8 emergency and an imperative public necessity that the
156-9 constitutional rule requiring bills to be read on three several
156-10 days in each house be suspended, and this rule is hereby suspended,
156-11 and that this Act take effect and be in force from and after its
156-12 passage, and it is so enacted.