1-1 By: Armbrister, Sibley S.B. No. 319
1-2 (In the Senate - Filed January 25, 1995; January 26, 1995,
1-3 read first time and referred to Committee on State Affairs;
1-4 January 30, 1995, reported favorably by the following vote: Yeas
1-5 13, Nays 0; January 30, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to a nonsubstantive recodification of the Public Utility
1-9 Regulatory Act.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. The Public Utility Regulatory Act of 1995 is
1-12 enacted to read as follows:
1-13 TITLE I. PROVISIONS APPLICABLE TO ALL UTILITIES
1-14 SUBTITLE A. GENERAL PROVISIONS
1-15 Sec. 1.001. SHORT TITLE. This Act may be referred to as the
1-16 "Public Utility Regulatory Act of 1995." (Sec. 1)
1-17 Sec. 1.002. LEGISLATIVE POLICY AND PURPOSE. This Act is
1-18 enacted to protect the public interest inherent in the rates and
1-19 services of public utilities. The legislature finds that public
1-20 utilities are by definition monopolies in the areas they serve;
1-21 that therefore the normal forces of competition which operate to
1-22 regulate prices in a free enterprise society do not operate; and
1-23 that therefore utility rates, operations and services are regulated
1-24 by public agencies, with the objective that this regulation shall
1-25 operate as a substitute for competition. The purpose of this Act
1-26 is to establish a comprehensive regulatory system which is adequate
1-27 to the task of regulating public utilities as defined by this Act,
1-28 to assure rates, operations, and services which are just and
1-29 reasonable to the consumers and to the utilities. (Sec. 2)
1-30 Sec. 1.003. DEFINITIONS IN ACT. In this Act:
1-31 (1) "Affected person" means any public utility
1-32 affected by any action of the regulatory authority, any person or
1-33 corporation whose utility service or rates are affected by any
1-34 proceeding before the regulatory authority, or any person or
1-35 corporation that is a competitor of a public utility with respect
1-36 to any service performed by the utility or that desires to enter
1-37 into competition. (Sec. 3(h))
1-38 (2) "Affiliated interest" or "affiliate" means:
1-39 (A) any person or corporation owning or holding,
1-40 directly or indirectly, five percent or more of the voting
1-41 securities of a public utility;
1-42 (B) any person or corporation in any chain of
1-43 successive ownership of five percent or more of the voting
1-44 securities of a public utility;
1-45 (C) any corporation five percent or more of the
1-46 voting securities of which is owned or controlled, directly or
1-47 indirectly, by a public utility;
1-48 (D) any corporation five percent or more of the
1-49 voting securities of which is owned or controlled, directly or
1-50 indirectly, by any person or corporation that owns or controls,
1-51 directly or indirectly, five percent or more of the voting
1-52 securities of any public utility or by any person or corporation in
1-53 any chain of successive ownership of five percent of such
1-54 securities;
1-55 (E) any person who is an officer or director of
1-56 a public utility or of any corporation in any chain of successive
1-57 ownership of five percent or more of voting securities of a public
1-58 utility;
1-59 (F) any person or corporation that the
1-60 commission, after notice and hearing, determines actually exercises
1-61 any substantial influence or control over the policies and actions
1-62 of a public utility, or over which a public utility exercises that
1-63 control, or that is under common control with a public utility,
1-64 that control being the possession, directly or indirectly, of the
1-65 power to direct or cause the direction of the management and
1-66 policies of another, whether that power is established through
1-67 ownership or voting of securities or by any other direct or
1-68 indirect means; or
2-1 (G) any person or corporation that the
2-2 commission after notice and hearing determines is actually
2-3 exercising that substantial influence over the policies and action
2-4 of the public utility in conjunction with one or more persons or
2-5 corporations with which they are related by ownership or blood
2-6 relationship, or by action in concert, that together they are
2-7 affiliated with that public utility within the meaning of this
2-8 section, even though no one of them alone is so affiliated. (Sec.
2-9 3(i))
2-10 (3) "Allocations" means, for all utilities, the
2-11 division of plant, revenues, expenses, taxes, and reserves between
2-12 municipalities or between municipalities and unincorporated areas,
2-13 where those items are used for providing public utility service in
2-14 a municipality, or for a municipality and unincorporated areas.
2-15 (Sec. 3(j))
2-16 (4) "Commission," means the Public Utility Commission
2-17 of Texas. (Sec. 3(e))
2-18 (5) "Commissioner" means a member of the Public
2-19 Utility Commission of Texas. (Sec. 3(k))
2-20 (6) "Cooperative corporation" means any telephone or
2-21 electric cooperative corporation organized and operating under the
2-22 Telephone Cooperative Act (Article 1528c, Vernon's Texas Civil
2-23 Statutes) or the Electric Cooperative Corporation Act (Article
2-24 1528b, Vernon's Texas Civil Statutes). (Sec. 3(l))
2-25 (7) "Corporation" means any corporation, joint-stock
2-26 company, or association, domestic or foreign, and its lessees,
2-27 assignees, trustees, receivers, or other successors in interest,
2-28 having any of the powers or privileges of corporations not
2-29 possessed by individuals or partnerships, but does not include
2-30 municipal corporations unless expressly provided otherwise in this
2-31 Act. (Sec. 3(m))
2-32 (8) "Facilities" means all the plant and equipment of
2-33 a public utility, including all tangible and intangible real and
2-34 personal property without limitation, and any and all means and
2-35 instrumentalities in any manner owned, operated, leased, licensed,
2-36 used, controlled, furnished, or supplied for, by, or in connection
2-37 with the business of any public utility. (Sec. 3(n))
2-38 (9) "Municipally owned utility" means any utility
2-39 owned, operated, and controlled by a municipality or by a nonprofit
2-40 corporation whose directors are appointed by one or more
2-41 municipalities. (Sec. 3(o))
2-42 (10) "Office" means the Office of Public Utility
2-43 Counsel. (New)
2-44 (11) "Order" means the whole or a part of the final
2-45 disposition, whether affirmative, negative, injunctive, or
2-46 declaratory in form, of the regulatory authority in a matter other
2-47 than rulemaking, but including issuance of certificates of
2-48 convenience and necessity and ratesetting. (Sec. 3(p))
2-49 (12) "Person," includes a natural person, partnership
2-50 of two or more persons having a joint or common interest, mutual or
2-51 cooperative association, and corporation. (Sec. 3(a))
2-52 (13) "Proceeding" means any hearing, investigation,
2-53 inquiry, or other fact-finding or decision-making procedure under
2-54 this Act and includes the denial of relief or the dismissal of a
2-55 complaint. (Sec. 3(q))
2-56 (14) "Rate," means and includes every compensation,
2-57 tariff, charge, fare, toll, rental, and classification, or any of
2-58 them demanded, observed, charged, or collected whether directly or
2-59 indirectly by any public utility for any service, product, or
2-60 commodity described in the definition of "utility" in Section 2.001
2-61 or 3.001 of this Act and any rules, regulations, practices, or
2-62 contracts affecting any such compensation, tariff, charge, fare,
2-63 toll, rental, or classification. (Sec. 3(d))
2-64 (15) "Regulatory authority," means, in accordance with
2-65 the context where it is found, either the commission or the
2-66 governing body of any municipality. (Sec. 3(g))
2-67 (16) "Service" is used in this Act in its broadest and
2-68 most inclusive sense, and includes any and all acts done, rendered,
2-69 or performed and any and all things furnished or supplied, and any
2-70 and all facilities used, furnished, or supplied by public utilities
3-1 in the performance of their duties under this Act to their patrons,
3-2 employees, other public utilities, and the public, as well as the
3-3 interchange of facilities between two or more of them. The term
3-4 does not include the printing, distribution, or sale of advertising
3-5 in telephone directories. (Sec. 3(s))
3-6 (17) "Test year" means the most recent 12 months for
3-7 which operating data for a public utility are available and shall
3-8 commence with a calendar quarter or a fiscal year quarter. (Sec.
3-9 3(t))
3-10 (Secs. 3(b) and (u) deleted)
3-11 Sec. 1.004. DEFINITIONS IN TITLE. In this title, "public
3-12 utility" or "utility," means a telecommunications or electric
3-13 utility. (3(c) (part))
3-14 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT.
3-15 Chapter 2001, Government Code, applies to all proceedings under
3-16 this Act except to the extent inconsistent with this Act.
3-17 Communications of members and employees of the commission with a
3-18 party, a party's representative, or other persons are governed by
3-19 Section 2001.061, Government Code. (Sec. 4)
3-20 SUBTITLE B. ORGANIZATION OF COMMISSION
3-21 Sec. 1.021. CREATION OF COMMISSION; APPOINTMENT AND TERMS;
3-22 CHAIRMAN. (a) The Public Utility Commission of Texas consists of
3-23 three commissioners, who shall be appointed to staggered, six-year
3-24 terms by the governor, with the advice and consent of two-thirds of
3-25 the members of the senate present, and who shall have and exercise
3-26 the jurisdiction and powers herein conferred upon the commission.
3-27 (b) Each commissioner shall hold office until his successor
3-28 is appointed and qualified.
3-29 (c) At its first meeting following the biennial appointment
3-30 and qualification of a commissioner, the commission shall elect one
3-31 of the commissioners chairman.
3-32 (d) Appointments to the commission shall be made without
3-33 regard to the race, creed, sex, religion, or national origin of the
3-34 appointees. (Sec. 5)
3-35 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
3-36 of Texas and the Office of Public Utility Counsel are subject to
3-37 Chapter 325, Government Code (Texas Sunset Act). Unless continued
3-38 in existence as provided by that chapter, the commission and the
3-39 office are abolished and this Act expires September 1, 1995. (Sec.
3-40 5a)
3-41 Sec. 1.023. QUALIFICATIONS; OATH AND BOND; PROHIBITED
3-42 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
3-43 a person must be a qualified voter, not less than 30 years of age,
3-44 a citizen of the United States, and a resident of the State of
3-45 Texas.
3-46 (b) Each commissioner shall qualify for office by taking the
3-47 oath prescribed for other state officers and shall execute a bond
3-48 for $5,000 payable to the state and conditioned on the faithful
3-49 performance of his duties.
3-50 (c) A person is not eligible for appointment as a
3-51 commissioner if at any time during the two-year period immediately
3-52 preceding his appointment he personally served as an officer,
3-53 director, owner, employee, partner, or legal representative of any
3-54 public utility or any affiliated interest, or he owned or
3-55 controlled, directly or indirectly, stocks or bonds of any class
3-56 with a value of $10,000, or more in a public utility or any
3-57 affiliated interest.
3-58 (d) A person who is required to register as a lobbyist under
3-59 Chapter 305, Government Code, may not serve as a member of the
3-60 commission or public utility counsel or act as the general counsel
3-61 to the commission. (Sec. 6(a) (reorg.))
3-62 Sec. 1.024. PROHIBITED ACTIVITIES. (a) A commissioner or
3-63 employee of the commission may not do any of the following during
3-64 his period of service with the commission:
3-65 (1) have any pecuniary interest, either as an officer,
3-66 director, partner, owner, employee, attorney, consultant, or
3-67 otherwise, in any public utility or affiliated interest, or in any
3-68 person or corporation or other business entity a significant
3-69 portion of whose business consists of furnishing goods or services
3-70 to public utilities or affiliated interests, but not including a
4-1 nonprofit group or association solely supported by gratuitous
4-2 contributions of money, property or services;
4-3 (2) own or control any securities in a public utility
4-4 or affiliated interest, either directly or indirectly; or
4-5 (3) accept any gift, gratuity, or entertainment
4-6 whatsoever from any public utility or affiliated interest, or from
4-7 any person, corporation, agent, representative, employee, or other
4-8 business entity a significant portion of whose business consists of
4-9 furnishing goods or services to public utilities or affiliated
4-10 interests, or from any agent, representative, attorney, employee,
4-11 officer, owner, director, or partner of any such business entity or
4-12 of any public utility or affiliated interest; provided, however,
4-13 that the receipt and acceptance of any gifts, gratuities, or
4-14 entertainment after termination of service with the commission
4-15 whose cumulative value in any one-year period is less than $100
4-16 does not constitute a violation of this Act.
4-17 (b) The prohibited activities of this section do not include
4-18 contracts for public utility products and services or equipment for
4-19 use of public utility products when a member or employee of the
4-20 commission is acting as a consumer.
4-21 (c) A commissioner or employee of the commission may not
4-22 directly or indirectly solicit or request from or suggest or
4-23 recommend to, any public utility, or to any agent, representative,
4-24 attorney, employee, officer, owner, director, or partner thereof,
4-25 the appointment to any position or the employment in any capacity
4-26 of any person by such public utility or affiliated interest.
4-27 (d) A public utility or affiliated interest or any person,
4-28 corporation, firm, association, or business that furnishes goods or
4-29 services to any public utility or affiliated interest, or any
4-30 agent, representative, attorney, employee, officer, owner,
4-31 director, or partner of any public utility or affiliated interest,
4-32 or any person, corporation, firm, association, or business
4-33 furnishing goods or services to any public utility or affiliated
4-34 interest may not give, or offer to give, any gift, gratuity,
4-35 employment, or entertainment whatsoever to any member or employee
4-36 of the commission except as allowed by Subdivision (3) of
4-37 Subsection (a) of this section, nor may any such public utility or
4-38 affiliated interest or any such person, corporation, firm,
4-39 association, or business aid, abet, or participate with any member,
4-40 employee, or former employee of the commission in any activity or
4-41 conduct that would constitute a violation of this subsection or
4-42 Subdivision (3) of Subsection (a) of this section.
4-43 (e) It is not a violation of this section if a member of the
4-44 commission or a person employed by the commission, upon becoming
4-45 the owner of any stocks or bonds or other pecuniary interest in a
4-46 public utility or affiliated interest under the jurisdiction of the
4-47 commission otherwise than voluntarily, informs the commission and
4-48 the attorney general of such ownership and divests himself of the
4-49 ownership or interest within a reasonable time. In this section, a
4-50 "pecuniary interest" includes income, compensation and payment of
4-51 any kind, in addition to ownership interests. It is not a
4-52 violation of this section if such a pecuniary interest is held
4-53 indirectly by ownership of an interest in a retirement system,
4-54 institution, or fund which in the normal course of business invests
4-55 in diverse securities independently of the control of the
4-56 commissioner or employee.
4-57 (f) A member of the commission may not seek nomination or
4-58 election to any other civil office of the State of Texas or of the
4-59 United States while he is a commissioner. If any member of the
4-60 commission files for nomination for or election to any civil office
4-61 of the State of Texas or of the United States, his office as
4-62 commissioner immediately becomes vacant, and the governor shall
4-63 appoint a successor. (Secs. 6(b)-(h))
4-64 Sec. 1.025. PROHIBITION ON EMPLOYMENT OR REPRESENTATION.
4-65 (a) A commissioner may not within two years, and an employee may
4-66 not, within one year after his employment with the commission has
4-67 ceased, be employed by a public utility which was in the scope of
4-68 the commissioner's or employee's official responsibility while the
4-69 commissioner or employee was associated with the commission.
4-70 (b) During the time a commissioner or employee of the
5-1 commission is associated with the commission or at any time after,
5-2 the commissioner or employee may not represent a person,
5-3 corporation, or other business entity before the commission or a
5-4 court in a matter in which the commissioner or employee was
5-5 personally involved while associated with the commission or a
5-6 matter that was within the commissioner's or employee's official
5-7 responsibility while the commissioner or employee was associated
5-8 with the commission.
5-9 (c) The commission shall require its members and employees
5-10 to read this section and Section 1.024 of this Act and as often as
5-11 necessary shall provide information regarding their
5-12 responsibilities under applicable laws relating to standards of
5-13 conduct for state officers and employees. (Secs. 6(i)-(k))
5-14 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
5-15 (a) It is a ground for removal from the commission if a member:
5-16 (1) does not have at the time of appointment the
5-17 qualifications required by Section 1.023 of this Act for
5-18 appointment to the commission; or
5-19 (2) does not maintain during the service on the
5-20 commission the qualifications required by Section 1.023 of this Act
5-21 for appointment to the commission.
5-22 (b) The validity of an action of the commission is not
5-23 affected by the fact that it was taken when a ground for removal of
5-24 a member of the commission existed. (Sec. 6A)
5-25 Sec. 1.027. VACANCIES. Whenever a vacancy in the office of
5-26 commissioner occurs, it shall be filled in the manner provided
5-27 herein with respect to the original appointment, except that the
5-28 governor may make interim appointments to continue until the
5-29 vacancy can be filled in the manner provided. Any person appointed
5-30 with the advice and consent of the senate to fill a vacancy shall
5-31 hold office during the unexpired portion of the term. (Sec. 7)
5-32 Sec. 1.028. EMPLOYEES. (a) The commission shall employ
5-33 such officers, administrative law judges, hearing examiners,
5-34 investigators, lawyers, engineers, economists, consultants,
5-35 statisticians, accountants, administrative assistants, inspectors,
5-36 clerical staff, and other employees as it deems necessary to carry
5-37 out the provisions of this Act. All employees receive such
5-38 compensation as is fixed by the legislature.
5-39 (b) The commission shall employ the following:
5-40 (1) an executive director;
5-41 (2) a director of hearings who has wide experience in
5-42 utility regulation and rate determination;
5-43 (3) a chief engineer who is a registered engineer and
5-44 an expert in public utility engineering and rate matters;
5-45 (4) a chief accountant who is a certified public
5-46 accountant, experienced in public utility accounting;
5-47 (5) a director of research who is experienced in the
5-48 conduct of analyses of industry, economics, energy, fuel, and other
5-49 related matters that the commission may want to undertake;
5-50 (6) a director of consumer affairs and public
5-51 information;
5-52 (7) a director of utility evaluation;
5-53 (8) a director of energy conservation; and
5-54 (9) a general counsel.
5-55 (c) The general counsel and his staff are responsible for
5-56 the gathering of information relating to all matters within the
5-57 authority of the commission.
5-58 (d) The duties of the general counsel include:
5-59 (1) accumulation of evidence and other information
5-60 from public utilities and from the accounting and technical and
5-61 other staffs of the commission and from other sources for the
5-62 purposes specified herein;
5-63 (2) preparation and presentation of such evidence
5-64 before the commission or its appointed examiner in proceedings;
5-65 (3) conduct of investigations of public utilities
5-66 under the jurisdiction of the commission;
5-67 (4) preparation of proposed changes in the rules of
5-68 the commission;
5-69 (5) preparation of recommendations that the commission
5-70 undertake investigation of any matter within its authority;
6-1 (6) preparation of recommendations and a report of
6-2 such staff for inclusion in the annual report of the commission;
6-3 (7) protection and representation of the public
6-4 interest and coordination and direction of the preparation and
6-5 presentation of evidence from the commission staff in all cases
6-6 before the commission as necessary to effect the objectives and
6-7 purposes stated in this Act and ensure protection of the public
6-8 interest; and
6-9 (8) such other activities as are reasonably necessary
6-10 to enable him to perform his duties.
6-11 (e) The commission shall employ administrative law judges to
6-12 preside at hearings of major importance before the commission. An
6-13 administrative law judge must be a licensed attorney with not less
6-14 than five years' general experience or three years' experience in
6-15 utility regulatory law. The administrative law judge shall perform
6-16 his duties independently from the commission. (Secs. 8(a)-(d))
6-17 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
6-18 or his designee shall develop an intra-agency career ladder
6-19 program, one part of which shall be the intra-agency posting of all
6-20 nonentry level positions for at least 10 days before any public
6-21 posting. The executive director or his designee shall develop a
6-22 system of annual performance evaluations based on measurable job
6-23 tasks. All merit pay for commission employees must be based on the
6-24 system established under this section.
6-25 (b) The executive director or his/her designee shall prepare
6-26 and maintain a written plan to assure implementation of a program
6-27 of equal employment opportunity whereby all personnel transactions
6-28 are made without regard to race, color, disability, sex, religion,
6-29 age, or national origin. The plans shall include:
6-30 (1) a comprehensive analysis of all the agency's work
6-31 force by race, sex, ethnic origin, class of position, and salary or
6-32 wage;
6-33 (2) plans for recruitment, evaluation, selection,
6-34 appointment, training, promotion, and other personnel policies;
6-35 (3) steps reasonably designed to overcome any
6-36 identified underutilization of minorities and women in the agency's
6-37 work force; and
6-38 (4) objectives and goals, timetables for the
6-39 achievement of the objectives and goals, and assignments of
6-40 responsibility for their achievement.
6-41 (c) The plans required under Subsection (b) of this section
6-42 shall be filed with the governor's office within 60 days of the
6-43 effective date of this Act, cover an annual period, and be updated
6-44 at least annually. Progress reports shall be submitted to the
6-45 governor's office within 30 days of November 1 and April 1 of each
6-46 year and shall include the steps the agency has taken within the
6-47 reporting period to comply with these requirements. (Secs.
6-48 8(e)-(f))
6-49 Sec. 1.030. SALARY. The annual salary of the commissioners
6-50 shall be determined by the legislature. (Sec. 9)
6-51 Sec. 1.031. OFFICE; MEETINGS. The principal office of the
6-52 commission shall be located in the city of Austin, Texas, and shall
6-53 be open daily during the usual business hours, Saturdays, Sundays,
6-54 and legal holidays excepted. The commission shall hold meetings at
6-55 its office and at such other convenient places in the state as
6-56 shall be expedient and necessary for the proper performance of its
6-57 duties. (Sec. 10)
6-58 Sec. 1.032. SEAL. The commission shall have a seal bearing
6-59 the following inscription: "Public Utility Commission of Texas."
6-60 The seal shall be affixed to all records and authentications of
6-61 copies of records and to such other instruments as the commission
6-62 shall direct. All courts of this state shall take judicial notice
6-63 of said seal. (Sec. 11)
6-64 Sec. 1.033. QUORUM. A majority of the commissioners shall
6-65 constitute a quorum for the transaction of any business, for the
6-66 performance of any duty, or for the exercise of any power of the
6-67 commission. A vacancy or disqualification does not prevent the
6-68 remaining commissioner or commissioners from exercising all the
6-69 powers of the commission. (Sec. 12)
6-70 Sec. 1.034. ORDERS; TRANSCRIPT AND EXHIBITS; PUBLIC RECORDS.
7-1 All orders of the commission shall be in writing and shall contain
7-2 detailed findings of the facts upon which they are passed. The
7-3 commission shall retain a copy of the transcript and the exhibits
7-4 in any matter in which the commission issues an order. All files
7-5 pertaining to matters which were at any time pending before the
7-6 commission and to records, reports, and inspections required by
7-7 Subtitle E of this title, Title II of this Act, and Title III of
7-8 this Act shall be public records, subject to the terms of Chapter
7-9 552, Government Code. (Sec. 13)
7-10 Sec. 1.035. ANNUAL REPORT. (a) The commission shall
7-11 publish an annual report to the governor, summarizing its
7-12 proceedings, listing its receipts and the sources of its receipts,
7-13 listing its expenditures and the nature of such expenditures, and
7-14 setting forth such other information concerning the operations of
7-15 the commission and the public utility industry as it considers of
7-16 general interest.
7-17 (b) In the annual report issued in the year preceding the
7-18 convening of each regular session of the legislature, the
7-19 commission shall make such suggestions regarding modification and
7-20 improvement of the commission's statutory authority and for the
7-21 improvement of utility regulation in general as it may deem
7-22 appropriate for protecting and furthering the interest of the
7-23 public. (Sec. 14)
7-24 Sec. 1.036. CONSUMER INFORMATION. The commission shall
7-25 prepare information of consumer interest describing the regulatory
7-26 functions of the commission and describing the commission's
7-27 procedures by which consumer complaints are filed with and resolved
7-28 by the commission. The commission shall make the information
7-29 available to the general public and appropriate state agencies.
7-30 (Sec. 14A)
7-31 Sec. 1.037. ATTORNEY GENERAL TO REPRESENT COMMISSION. The
7-32 Attorney General of the State of Texas shall represent the
7-33 commission in all matters before the state courts, and any court of
7-34 the United States, and before any federal public utility regulatory
7-35 commission. (Sec. 15)
7-36 SUBTITLE C. OFFICE OF PUBLIC UTILITY COUNSEL
7-37 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
7-38 independent Office of Public Utility Counsel represents the
7-39 interests of residential and small commercial consumers.
7-40 (b) The chief executive of the Office of Public Utility
7-41 Counsel is the public utility counsel, hereinafter referred to as
7-42 counsellor. The counsellor is appointed by the governor with the
7-43 advice and consent of the senate to a two-year term that expires on
7-44 February 1 of the final year of the term.
7-45 (c) The counsellor shall be a resident of Texas and admitted
7-46 to the practice of law in this state who has demonstrated a strong
7-47 commitment and involvement in efforts to safeguard the rights of
7-48 the public and possesses the knowledge and experience necessary to
7-49 practice effectively in utility proceedings. (Secs. 15A(a), (b),
7-50 (d))
7-51 Sec. 1.052. INTEREST PROHIBITED. During the period of the
7-52 counsellor's employment and for a period of two years following the
7-53 termination of employment, it shall be unlawful for any person
7-54 employed as counsellor to have a direct or indirect interest in any
7-55 utility company regulated under the Public Utility Regulatory Act,
7-56 to provide legal services directly or indirectly to or be employed
7-57 in any capacity by a utility company regulated under the Public
7-58 Utility Regulatory Act, its parent, or its subsidiary companies,
7-59 corporations, or cooperatives; but such person may otherwise engage
7-60 in the private practice of law after the termination of employment
7-61 as the counsellor. (Sec. 15A(e))
7-62 Sec. 1.053. EMPLOYEES. The counsellor may employ such
7-63 lawyers, economists, engineers, consultants, statisticians,
7-64 accountants, clerical staff, and other employees as he or she deems
7-65 necessary to carry out the provisions of this section. All
7-66 employees shall receive such compensation as is fixed by the
7-67 legislature from the assessment imposed by Section 1.351 of this
7-68 Act. (Sec. 15A(c))
7-69 Sec. 1.054. POWERS AND DUTIES. (a) The Office of Public
7-70 Utility Counsel:
8-1 (1) shall assess the impact of utility rate changes
8-2 and other regulatory actions on residential consumers in the State
8-3 of Texas and shall be an advocate in its own name of positions most
8-4 advantageous to a substantial number of such consumers as
8-5 determined by the counsellor;
8-6 (2) may appear or intervene as a matter of right as a
8-7 party or otherwise on behalf of residential consumers, as a class,
8-8 in all proceedings before the commission;
8-9 (3) may appear or intervene as a matter of right as a
8-10 party or otherwise on behalf of small commercial consumers, as a
8-11 class, in all proceedings where it is deemed by the counsel that
8-12 small commercial consumers are in need of representation;
8-13 (4) may initiate or intervene as a matter of right or
8-14 otherwise appear in any judicial proceedings involving or arising
8-15 out of any action taken by an administrative agency in a proceeding
8-16 in which the counsel was authorized to appear;
8-17 (5) may have access as any party, other than staff, to
8-18 all records gathered by the commission under the authority of
8-19 Subsection (a) of Section 1.203 of this Act;
8-20 (6) may obtain discovery of any nonprivileged matter
8-21 which is relevant to the subject matter involved in any proceeding
8-22 or petition before the commission;
8-23 (7) may represent individual residential and small
8-24 commercial consumers with respect to their disputed complaints
8-25 concerning utility services unresolved before the commission; and
8-26 (8) may recommend legislation to the legislature which
8-27 in its judgment would positively affect the interests of
8-28 residential and small commercial consumers.
8-29 (b) Nothing in this section shall be construed as in any way
8-30 limiting the authority of the commission to represent residential
8-31 or small commercial consumers.
8-32 (c) The appearance of the Public Counsel in any proceeding
8-33 in no way precludes the appearance of other parties on behalf of
8-34 residential ratepayers or small commercial consumers. The Public
8-35 Counsel may not be grouped with any other parties. (Secs.
8-36 15A(f)-(h))
8-37 (Sec. 15A(i) deleted)
8-38 SUBTITLE D. COMMISSION JURISDICTION
8-39 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
8-40 (a) The commission has the general power to regulate and supervise
8-41 the business of every public utility within its jurisdiction and to
8-42 do all things, whether specifically designated in this Act or
8-43 implied herein, necessary and convenient to the exercise of this
8-44 power and jurisdiction.
8-45 (b) The commission shall make and enforce rules reasonably
8-46 required in the exercise of its powers and jurisdiction, including
8-47 rules governing practice and procedure before the commission.
8-48 (c) The commission may call and hold hearings, administer
8-49 oaths, receive evidence at hearings, issue subpoenas to compel the
8-50 attendance of witnesses and the production of papers and documents,
8-51 and make findings of fact and decisions with respect to
8-52 administering the provisions of this Act or the rules, orders, or
8-53 other actions of the commission.
8-54 (d) Notwithstanding any other provision of this Act or other
8-55 law, in proceedings other than those involving major rate changes,
8-56 the commission may delegate to an administrative law judge or
8-57 hearings examiner the authority to make a final decision and to
8-58 issue findings of fact, conclusions of law, and other necessary
8-59 orders in a proceeding in which there is no contested issue of fact
8-60 or law. The commission, by rule, shall define the procedures by
8-61 which it delegates final decision making authority authorized by
8-62 this section. For review purposes the final decision of the
8-63 administrative law judge or hearings examiner has the same effect
8-64 as a final decision of the commission unless a commissioner
8-65 requests formal review of the decision. (Sec. 16(a))
8-66 Sec. 1.102. AUDITS. (a) The commission shall inquire into
8-67 the management of the business of all public utilities under its
8-68 jurisdiction, shall keep itself informed as to the manner and
8-69 method in which the management and business is conducted, and shall
8-70 obtain from any public utility all necessary information to enable
9-1 the commission to perform management audits.
9-2 (b) The commission may audit each utility under the
9-3 jurisdiction of the commission as frequently as needed, but shall
9-4 audit each utility at least once every 10 years. Six months after
9-5 any audit, the utility shall report to the commission on the status
9-6 of the implementation of the recommendations of the audit and shall
9-7 file subsequent reports at such times as the commission deems
9-8 appropriate. (Sec. 16(h))
9-9 Sec. 1.103. FRANCHISES. Nothing in this Act shall be
9-10 construed as in any way limiting the rights and powers of a
9-11 municipality to grant or refuse franchises to use the streets and
9-12 alleys within its limits and to make the statutory charges for the
9-13 use thereof, but a provision of any franchise agreement may not
9-14 limit or interfere with any power conferred on the commission by
9-15 this Act. (Sec. 21 (part))
9-16 SUBTITLE E. RECORDS, REPORTS, INSPECTIONS, AND SERVICES
9-17 Sec. 1.201. RECORDS OF PUBLIC UTILITY. (a) Every public
9-18 utility shall keep and render to the regulatory authority in the
9-19 manner and form prescribed by the commission uniform accounts of
9-20 all business transacted.
9-21 (b) The commission may also prescribe forms of books,
9-22 accounts, records, and memoranda to be kept by such public
9-23 utilities, including the books, accounts, records, and memoranda of
9-24 the rendition of and capacity for service as well as the receipts
9-25 and expenditures of moneys, and any other forms, records, and
9-26 memoranda which in the judgment of the commission may be necessary
9-27 to carry out any of the provisions of this Act.
9-28 (c) In the case of any public utility subject to regulations
9-29 by a federal regulatory agency, compliance with the system of
9-30 accounts prescribed for the particular class of utilities by such
9-31 agency may be deemed a sufficient compliance with the system
9-32 prescribed by the commission; provided, however, that the
9-33 commission may prescribe forms of books, accounts, records, and
9-34 memoranda covering information in addition to that required by the
9-35 federal agency. The system of accounts and the forms of books,
9-36 accounts, records, and memoranda prescribed by the commission for a
9-37 public utility or class of utilities may not conflict nor be
9-38 inconsistent with the systems and forms established by a federal
9-39 agency for that public utility or class of utilities.
9-40 (d) Every public utility is required to keep and render its
9-41 books, accounts, records, and memoranda accurately and faithfully
9-42 in the manner and form prescribed by the commission, and to comply
9-43 with all directions of the regulatory authority relating to such
9-44 books, accounts, records, and memoranda. The regulatory authority
9-45 may require the examination and audit of all accounts.
9-46 (e) For the purposes of this section, "public utility"
9-47 includes "municipally owned utility." (Secs. 27(a), (d), (f))
9-48 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
9-49 have the power to:
9-50 (1) require that public utilities report to it such
9-51 information relating to themselves and affiliated interests both
9-52 within and without the State of Texas as it may consider useful in
9-53 the administration of this Act;
9-54 (2) establish forms for all reports;
9-55 (3) determine the time for reports and the frequency
9-56 with which any reports are to be made;
9-57 (4) require that any reports be made under oath;
9-58 (5) require that a copy of any contract or arrangement
9-59 between any public utility and any affiliated interest be filed
9-60 with it. It may require any such contract or arrangement not in
9-61 writing to be reduced to writing and filed with it;
9-62 (6) require that a copy of any report filed with any
9-63 federal agency or any governmental agency or body of any other
9-64 state be filed with it;
9-65 (7) require that a copy of annual reports showing all
9-66 payments of compensation (other than salary or wages subject to the
9-67 withholding of federal income tax) to residents of Texas, or with
9-68 respect to legal, administrative, or legislative matters in Texas,
9-69 or for representation before the Texas Legislature or any
9-70 governmental agency or body; and
10-1 (8) the railroad commission shall have the power to
10-2 review and approve, for purposes of the Outer Continental Shelf
10-3 Lands Act Amendments of 1978 and any other federal authorities,
10-4 applications by gas utilities for the purchase of natural gas from
10-5 producing affiliates.
10-6 (b) On the request of the governing body of any
10-7 municipality, the commission may provide sufficient staff members
10-8 to advise and consult with such municipality on any pending matter.
10-9 (Sec. 28)
10-10 Sec. 1.203. INSPECTIONS; EXAMINATION UNDER OATH; COMPELLING
10-11 PRODUCTION OF RECORDS; INQUIRY INTO MANAGEMENT AND AFFAIRS.
10-12 (a) Any regulatory authority, and when authorized by the
10-13 regulatory authority, its counsel, agents, and employees, shall
10-14 have the right, at reasonable times and for reasonable purposes, to
10-15 inspect and obtain copies of the papers, books, accounts,
10-16 documents, and other business records, and to inspect the plant,
10-17 equipment, and other property of any public utility within its
10-18 jurisdiction. The regulatory authority may examine under oath, or
10-19 it may authorize the person conducting such investigation to
10-20 examine under oath, any officer, agent, or employee of any public
10-21 utility in connection with such investigation. The regulatory
10-22 authority may require, by order or subpoena served on any public
10-23 utility, the production within this state at the time and place it
10-24 may designate, of any books, accounts, papers, or records kept by
10-25 that public utility outside the state, or verified copies in lieu
10-26 thereof if the commission so orders. Any public utility failing or
10-27 refusing to comply with any such order or subpoena is in violation
10-28 of this Act.
10-29 (b) A member, agent, or employee of the regulatory authority
10-30 may enter the premises occupied by a public utility to make
10-31 inspections, examinations, and tests and to exercise any authority
10-32 provided by this Act. A member, agent, or employee of the
10-33 regulatory authority may act under this section only during
10-34 reasonable hours and after giving reasonable notice to the utility.
10-35 The public utility is entitled to be represented when inspections,
10-36 examinations, and tests are made on its premises. Reasonable time
10-37 for the utility to secure a representative shall be allowed before
10-38 commencing an inspection, examination, or test.
10-39 (c) The regulatory authority may inquire into the management
10-40 and affairs of all public utilities, and shall keep itself informed
10-41 as to the manner and method in which the same are conducted. (Sec.
10-42 29)
10-43 Sec. 1.204. OFFICE OF PUBLIC UTILITY; RECORDS; REMOVAL FROM
10-44 STATE. Every public utility shall have an office in a county of
10-45 this state in which its property or some part thereof is located in
10-46 which it shall keep all books, accounts, records, and memoranda
10-47 required by the commission to be kept in the state. Books,
10-48 accounts, records, or memoranda required by the regulatory
10-49 authority to be kept in the state may not be removed from the
10-50 state, except on conditions prescribed by the commission. (Sec.
10-51 33)
10-52 Sec. 1.205. COMMUNICATIONS BY PUBLIC UTILITIES WITH
10-53 REGULATORY AUTHORITY; REGULATIONS AND RECORDS. (a) The regulatory
10-54 authority shall prescribe regulations governing communications by
10-55 public utilities, their affiliates and their representatives, with
10-56 the regulatory authority or any member or employee of the
10-57 regulatory authority.
10-58 (b) Such records shall contain the name of the person
10-59 contacting the regulatory authority or member or employee of the
10-60 regulatory authority, the name of the business entities
10-61 represented, a brief description of the subject matter of the
10-62 communication, and the action, if any, requested by the public
10-63 utility, affiliate, or representative. These records shall be
10-64 available to the public on a monthly basis. (Sec. 34)
10-65 Sec. 1.206. INTERFERENCE WITH TERMS OR CONDITIONS OF
10-66 EMPLOYMENT. The commission may not interfere with employee wages
10-67 and benefits, working conditions, or other terms or conditions of
10-68 employment that are the product of a collective bargaining
10-69 agreement recognized under federal law. Employee wage rates and
10-70 benefit levels that are the product of such bargaining shall be
11-1 presumed reasonable. (Sec. 41B)
11-2 SUBTITLE F. SALE OF PROPERTY AND MERGERS
11-3 Sec. 1.251. REPORT OF SALE, MERGER, ETC.; INVESTIGATION;
11-4 DISALLOWANCE OF TRANSACTION. (a) A public utility may not sell,
11-5 acquire, lease, or rent any plant as an operating unit or system in
11-6 this state for a total consideration in excess of $100,000 or merge
11-7 or consolidate with another public utility operating in this state
11-8 unless the public utility reports such transaction to the
11-9 commission within a reasonable time.
11-10 (b) All transactions involving the sale of 50 percent or
11-11 more of the stock of a public utility shall also be reported to the
11-12 commission within a reasonable time. On the filing of a report
11-13 with the commission, the commission shall investigate the same with
11-14 or without public hearing, to determine whether the action is
11-15 consistent with the public interest. In reaching its
11-16 determination, the commission shall take into consideration the
11-17 reasonable value of the property, facilities, or securities to be
11-18 acquired, disposed of, merged or consolidated.
11-19 (c) If the commission finds that such transactions are not
11-20 in the public interest, the commission shall take the effect of the
11-21 transaction into consideration in the ratemaking proceedings and
11-22 disallow the effect of such transaction if it will unreasonably
11-23 affect rates or service.
11-24 (d) The provisions of this section may not be construed as
11-25 being applicable to the purchase of units of property for
11-26 replacement or to the addition to the facilities of the public
11-27 utility by construction. (Sec. 63)
11-28 Sec. 1.252. PURCHASE OF VOTING STOCK IN ANOTHER PUBLIC
11-29 UTILITY: REPORT. A public utility may not purchase voting stock
11-30 in another public utility doing business in Texas, unless the
11-31 utility reports such purchase to the commission. (Sec. 64)
11-32 Sec. 1.253. LOANS TO STOCKHOLDERS: REPORT. A public
11-33 utility may not loan money, stocks, bonds, notes, or other
11-34 evidences of indebtedness to any corporation or person owning or
11-35 holding directly or indirectly any stock of the public utility
11-36 unless the public utility reports the transaction to the commission
11-37 within a reasonable time. (Sec 65)
11-38 SUBTITLE G. RELATIONS WITH AFFILIATED INTERESTS
11-39 Sec. 1.271. JURISDICTION OVER AFFILIATED INTERESTS. The
11-40 commission shall have jurisdiction over affiliated interests having
11-41 transactions with public utilities under the jurisdiction of the
11-42 commission to the extent of access to all accounts and records of
11-43 such affiliated interests relating to such transactions, including
11-44 but in no way limited to accounts and records of joint or general
11-45 expenses, any portion of which may be applicable to such
11-46 transactions. (Sec. 67)
11-47 Sec. 1.272. DISCLOSURE OF SUBSTANTIAL INTEREST IN VOTING
11-48 SECURITIES. The commission may require the disclosure of the
11-49 identity and respective interests of every owner of any substantial
11-50 interest in the voting securities of any public utility or its
11-51 affiliated interest. One percent or more is a substantial interest
11-52 within the meaning of this section. (Sec. 68)
11-53 SUBTITLE H. JUDICIAL REVIEW
11-54 Sec. 1.301. RIGHT TO JUDICIAL REVIEW; EVIDENCE; COMMISSION
11-55 AS PARTY DEFENDANT. Any party to a proceeding before the
11-56 commission is entitled to judicial review under the substantial
11-57 evidence rule. The commission shall be a party defendant in any
11-58 such proceeding represented by the attorney general. (Sec. 69)
11-59 Sec. 1.302. COSTS AND ATTORNEYS' FEES. (a) Any party
11-60 represented by counsel who alleges that existing rates are
11-61 excessive or that those prescribed by the commission are excessive,
11-62 and who is a prevailing party in proceedings for review of a
11-63 commission order or decision, may in the same action recover
11-64 against the regulation fund reasonable fees for attorneys and
11-65 expert witnesses and other costs for its efforts before the
11-66 commission and the court, the amount of such attorneys' fees to be
11-67 fixed by the court.
11-68 (b) On a finding by the court that an action under this
11-69 subtitle was groundless and brought in bad faith and for the
11-70 purpose of harassment, the court may award to the defendant public
12-1 utility the reasonable attorneys' fees. (Sec. 70)
12-2 SUBTITLE I. VIOLATIONS AND ENFORCEMENT
12-3 Sec. 1.321. ACTION TO ENJOIN OR REQUIRE COMPLIANCE.
12-4 Whenever it appears to the commission that any public utility or
12-5 any other person or corporation is engaged in, or is about to
12-6 engage in, any act in violation of this Act or of any order, rule,
12-7 or regulation of the commission entered or adopted under the
12-8 provisions of this Act, or that any public utility or any other
12-9 person or corporation is failing to comply with the provisions of
12-10 this Act or with any such rule, regulation, or order, the attorney
12-11 general on request of the commission, in addition to any other
12-12 remedies provided herein, shall bring an action in a court of
12-13 competent jurisdiction in the name of and on behalf of the
12-14 commission against such public utility or other person or
12-15 corporation to enjoin the commencement or continuation of any such
12-16 act, or to require compliance with such Act, rule, regulation, or
12-17 order. (Sec. 71)
12-18 Sec. 1.322. PENALTY AGAINST PUBLIC UTILITY OR AFFILIATED
12-19 INTEREST. (a) Any public utility, customer-owned pay telephone
12-20 service provider for purposes of Section 3.305 of this Act, or
12-21 affiliated interest that knowingly violates a provision of this
12-22 Act, fails to perform a duty imposed on it, or fails, neglects, or
12-23 refuses to obey an order, rule, regulation, direction, or
12-24 requirement of the commission or decree or judgment of a court,
12-25 shall be subject to a civil penalty of not less than $1,000 nor
12-26 more than $5,000 for each offense.
12-27 (b) A public utility or affiliated interest commits a
12-28 separate offense each day it continues to violate the provisions of
12-29 Subsection (a) of this section.
12-30 (c) The attorney general shall institute suit on his own
12-31 initiative or at the request of, in the name of, and on behalf of
12-32 the commission, in a court of competent jurisdiction to recover the
12-33 penalty under this section. (Sec. 72)
12-34 Sec. 1.323. PENALTY FOR VIOLATING SECTION 1.024 OF THIS
12-35 ACT. (a) Any member of the commission, or any officer or director
12-36 of a public utility or affiliated interest, shall be subject to a
12-37 civil penalty of $1,000 for each and every knowing violation of
12-38 Section 1.024 of this Act, such penalty to be recovered in a suit
12-39 filed in a court of competent jurisdiction by the attorney general
12-40 on his own initiative or at the request of, in the name of, and on
12-41 behalf of the commission.
12-42 (b) Any person, other than an officer or director of a
12-43 public utility or affiliated interest or a member of the
12-44 commission, shall be subject to a civil penalty of $500 for each
12-45 and every knowing violation of Section 1.024 of this Act, such
12-46 penalty to be recovered in a suit filed in a court of competent
12-47 jurisdiction by the attorney general on his own initiative or at
12-48 the request of, in the name of, and on behalf of the commission.
12-49 (c) Any member, officer, or employee of the commission found
12-50 in any action by a preponderance of the evidence to have violated
12-51 any provision of Section 1.024 of this Act shall be removed from
12-52 his office or employment. (Sec. 73)
12-53 Sec. 1.324. CIVIL PENALTY FOR VIOLATIONS RESULTING IN
12-54 POLLUTION. (a) If a public utility or any other person or
12-55 corporation under the jurisdiction of the railroad commission
12-56 pursuant to this Act violates this Act and the violation results in
12-57 pollution of the air or water of this state or poses a threat to
12-58 the public safety, the public utility or any other person may be
12-59 assessed a civil penalty by the railroad commission.
12-60 (b) The penalty may not exceed $10,000 a day for each
12-61 violation. Each day a violation continues may be considered a
12-62 separate violation for purposes of penalty assessments.
12-63 (c) In determining the amount of the penalty, the railroad
12-64 commission shall consider the public utility's, person's, or
12-65 corporation's history of previous violations of this Act, the
12-66 seriousness of the violation, any hazard to the health or safety of
12-67 the public, and the demonstrated good faith of the permittee or
12-68 public utility, person, or corporation charged.
12-69 (d) A civil penalty may be assessed only after the public
12-70 utility, person, or corporation charged with a violation described
13-1 under Subsection (a) of this section has been given an opportunity
13-2 for a public hearing.
13-3 (e) If a public hearing has been held, the railroad
13-4 commission shall make findings of fact, and it shall issue a
13-5 written decision as to the occurrence of the violation and the
13-6 amount of the penalty that is warranted, incorporating, when
13-7 appropriate, an order requiring that the penalty be paid.
13-8 (f) If appropriate, the railroad commission shall
13-9 consolidate the hearings with other proceedings under this Act.
13-10 (g) If the public utility, person, or corporation charged
13-11 with the violation fails to avail itself of the opportunity for a
13-12 public hearing, a civil penalty may be assessed by the railroad
13-13 commission after it has determined that a violation did occur and
13-14 the amount of the penalty that is warranted.
13-15 (h) The railroad commission shall then issue an order
13-16 requiring that the penalty be paid.
13-17 (i) On the issuance of an order finding that a violation has
13-18 occurred, the railroad commission shall inform the public utility,
13-19 person, or corporation charged within 30 days of the amount of the
13-20 penalty.
13-21 (j) Within the 30-day period immediately following the day
13-22 on which the decision or order is final as provided by Section
13-23 2001.144, Government Code, the public utility, person, or
13-24 corporation charged with the penalty shall:
13-25 (1) pay the penalty in full; or
13-26 (2) if the public utility, person, or corporation
13-27 seeks judicial review of either the amount of the penalty or the
13-28 fact of the violation, or both:
13-29 (A) forward the amount to the railroad
13-30 commission for placement in an escrow account; or
13-31 (B) in lieu of payment into escrow, post a
13-32 supersedeas bond with the railroad commission under the following
13-33 conditions. If the decision or order being appealed is the first
13-34 final railroad commission decision or order assessing any
13-35 administrative penalty against the public utility, person, or
13-36 corporation, the railroad commission shall accept a supersedeas
13-37 bond. In the case of appeal of any subsequent decision or order
13-38 assessing any administrative penalty against the public utility,
13-39 person, or corporation, regardless of the finality of judicial
13-40 review of any previous decision or order, the railroad commission
13-41 may accept a supersedeas bond. Each supersedeas bond shall be for
13-42 the amount of the penalty and in a form approved by the railroad
13-43 commission and shall stay the collection of the penalty until all
13-44 judicial review of the decision or order is final.
13-45 (k) If through judicial review of the decision or order it
13-46 is determined that no violation occurred or that the amount of the
13-47 penalty should be reduced or not assessed, the railroad commission
13-48 shall, within the 30-day period immediately following that
13-49 determination, if the penalty has been paid to the railroad
13-50 commission, remit the appropriate amount to the public utility,
13-51 person, or corporation with accrued interest, or where a
13-52 supersedeas bond has been posted, the railroad commission shall
13-53 execute a release of such bond.
13-54 (l) Failure to forward the money to the railroad commission
13-55 within the time provided by Subsection (j) of this section results
13-56 in a waiver of all legal rights to contest the violation or the
13-57 amount of the penalty.
13-58 (m) Civil penalties owed under this section may be recovered
13-59 in a civil action brought by the attorney general at the request of
13-60 the railroad commission.
13-61 (n) Judicial review of the order or decision of the railroad
13-62 commission assessing the penalty shall be under the substantial
13-63 evidence rule and shall be instituted by filing a petition with the
13-64 district court of Travis County, Texas, and not elsewhere, as
13-65 provided by Subchapter G, Chapter 2001, Government Code. (Sec.
13-66 73A)
13-67 Sec. 1.325. PERSONAL PENALTY. (a) Except as provided by
13-68 Section 3.301 of this Act, any person or persons who wilfully and
13-69 knowingly violate the provisions of this Act shall be guilty of a
13-70 third degree felony.
14-1 (b) All penalties accruing under this Act shall be
14-2 cumulative and a suit for the recovery of any penalty does not bar
14-3 or affect the recovery of any other penalty, or bar any criminal
14-4 prosecution against any public utility or any officer, director,
14-5 agent, or employee thereof or any other corporation or person.
14-6 (Sec. 74)
14-7 Sec. 1.326. CONTEMPT PROCEEDINGS. If any person fails to
14-8 comply with any lawful order of the commission or with any subpoena
14-9 or subpoena duces tecum or if any witness refuses to testify about
14-10 any matter on which he may be lawfully interrogated, the commission
14-11 may apply to any court of competent jurisdiction to compel
14-12 obedience by proceedings for contempt. (Sec. 75)
14-13 Sec. 1.327. DISPOSITION OF FINES AND PENALTIES. Fines and
14-14 penalties collected under this Act in other than criminal
14-15 proceedings shall be paid to the commission and paid by the
14-16 commission to the state treasury to be placed in the general
14-17 revenue fund. (Sec. 76)
14-18 Sec. 1.328. VENUE. Suits for injunction or penalties under
14-19 the provisions of this Act may be brought in Travis County, in any
14-20 county where such violation is alleged to have occurred, or in the
14-21 county or residence of any defendant. (Sec. 77)
14-22 SUBTITLE J. COMMISSION FINANCING
14-23 Sec. 1.351. ASSESSMENTS UPON PUBLIC UTILITIES. (a) An
14-24 assessment is imposed upon each public utility within the
14-25 commission's jurisdiction, including interexchange
14-26 telecommunications carriers, serving the ultimate consumer equal to
14-27 one-sixth of one percent of its gross receipts from rates charged
14-28 the ultimate consumers in Texas for the purpose of defraying the
14-29 costs and expenses incurred in the administration of this Act.
14-30 (b) The commission shall, subject to the approval of the
14-31 Legislature, adjust this assessment to provide a level of income
14-32 sufficient to fund the commission and the office of public utility
14-33 counsel.
14-34 (c) Nothing in this Act or any other provision of law shall
14-35 prohibit interexchange telecommunications carriers who do not
14-36 provide local exchange telephone service from collecting the fee
14-37 imposed under this Act as an additional item separately stated on
14-38 the customer bill as "Utility Gross Receipts Assessment." (Sec.
14-39 78)
14-40 Sec. 1.352. PAYMENT DATES; DELINQUENCY. (a) All
14-41 assessments shall be due on August 15 of each year. Any public
14-42 utility may instead make quarterly payments due on August 15,
14-43 November 15, February 15, and May 15 of each year.
14-44 (b) There shall be assessed as a penalty an additional fee
14-45 of 10 percent of the amount due for any late payment. Fees
14-46 delinquent for more than 30 days shall draw interest at the rate of
14-47 12 percent per annum on the assessment and penalty due. (Sec. 79)
14-48 Sec. 1.353. PAYMENT OF ASSESSMENTS. (a) For the
14-49 assessments covered by this section, assessments are due as
14-50 provided by this section notwithstanding Section 1.352 of this Act,
14-51 based on a public utility's estimate of its gross receipts.
14-52 (b) For the assessment due August 15, 1995, 50 percent of
14-53 the assessment must be paid by August 15, 1994, and 50 percent must
14-54 be paid by February 15, 1995.
14-55 (c) For the assessment due August 15, 1996, 50 percent of
14-56 the assessment must be paid by August 15, 1995, and 50 percent must
14-57 be paid by February 15, 1996.
14-58 (d) For the assessment due August 15, 1997, 50 percent of
14-59 the assessment must be paid by August 15, 1996, and the remainder
14-60 must be paid by August 15, 1997.
14-61 (e) Any assessment amounts underpaid on assessments due on
14-62 August 15, 1995, or August 15, 1996, must be paid by those
14-63 respective dates. Any assessment amounts overpaid shall be
14-64 credited against following assessments.
14-65 (f) This section expires September 1, 1997. (Sec. 79A)
14-66 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
14-67 FUND. All fees, penalties, and interest paid under the provisions
14-68 of Sections 1.351 and 1.352 of this Act shall be collected by the
14-69 comptroller of public accounts and paid into the general revenue
14-70 fund. The commission shall notify the comptroller of public
15-1 accounts of any adjustment of the assessment imposed in Section
15-2 1.351 when made. (Sec. 80)
15-3 Sec. 1.355. APPROVAL OF BUDGET. The budget of the
15-4 commission shall be subject to legislative approval as part of the
15-5 appropriations act. (Sec. 81)
15-6 Sec. 1.356. ACCOUNTING RECORDS; AUDIT. The commission shall
15-7 keep such accounting records as required by the comptroller. The
15-8 financial transactions of the commission are subject to audit by
15-9 the state auditor in accordance with Chapter 321, Government Code.
15-10 (Sec. 82)
15-11 SUBTITLE K. MISCELLANEOUS PROVISIONS
15-12 Sec. 1.401. COMPLAINT BY ANY AFFECTED PERSON. (a) Any
15-13 affected person may complain to the regulatory authority in writing
15-14 setting forth any act or thing done or omitted to be done by any
15-15 public utility in violation or claimed violation of any law which
15-16 the regulatory authority has jurisdiction to administer, or of any
15-17 order, ordinance, rule, or regulation of the regulatory authority.
15-18 The commission shall keep an information file about each complaint
15-19 filed with the commission relating to a utility. The commission
15-20 shall retain the file for a reasonable period.
15-21 (b) If a written complaint is filed with the commission
15-22 relating to a utility, the commission, at least as frequently as
15-23 quarterly and until final disposition of the complaint, shall
15-24 notify the parties to the complaint of the status of the complaint
15-25 unless the notice would jeopardize an undercover investigation.
15-26 (c) Any affected person may complain to the regulatory
15-27 authority in writing setting forth any act or thing done or not
15-28 done by any recreational vehicle park owner that provides metered
15-29 electric service under Article 1446d-2, Revised Statutes, in
15-30 violation or claimed violation of any law that the regulatory
15-31 authority has jurisdiction to administer or of any order,
15-32 ordinance, rule, or regulation of the regulatory authority. The
15-33 commission shall keep an information file about each complaint
15-34 filed with the commission relating to a recreational vehicle park
15-35 owner. The commission shall retain the file for a reasonable
15-36 period. The commission, quarterly or more often until final
15-37 disposition of the written complaint, shall notify the parties to
15-38 the complaint of the status of the complaint unless the notice
15-39 would jeopardize an undercover investigation. (Sec. 83)
15-40 Sec. 1.402. RECORD OF PROCEEDINGS; RIGHT TO HEARING. A
15-41 record shall be kept of all proceedings had before the regulatory
15-42 authority, and all the parties shall be entitled to be heard in
15-43 person or by attorney. (Sec. 84)
15-44 Sec. 1.403. JUDICIAL STAY OR SUSPENSION OF ORDER, RULING OR
15-45 DECISION. During the pendency of an appeal, the district court,
15-46 the court of civil appeals, or the supreme court, as the case may
15-47 be, may stay or suspend, in whole or in part, the operation of the
15-48 regulatory authority order, ruling, or decision and such courts in
15-49 granting or refusing a stay or suspension shall act in accordance
15-50 with the practice of courts exercising equity jurisdiction. (Sec.
15-51 85)
15-52 (Secs. 87 and 87A deleted)
15-53 Sec. 1.404. LIBERAL CONSTRUCTION. This Act shall be
15-54 construed liberally to promote the effectiveness and efficiency of
15-55 regulation of public utilities to the extent that such construction
15-56 preserves the validity of this Act and its provisions. The
15-57 provisions of this Act shall be construed to apply so as not to
15-58 conflict with any authority of the United States. (Sec. 89)
15-59 (Sec. 90 deleted)
15-60 Sec. 1.405. TERMINATING SERVICES TO ELDERLY AND DISABLED;
15-61 CRITERIA AND GUIDELINES; ESTABLISHMENT. The Public Utility
15-62 Commission is authorized to establish criteria and guidelines with
15-63 the utility industry relating to procedures employed by the
15-64 industry in terminating services to the elderly and disabled.
15-65 (Sec. 91)
15-66 Sec. 1.406. SEVERABILITY. If any provision of this Act or
15-67 the application thereof to any person or circumstances is held
15-68 invalid, such invalidity does not affect other provisions or
15-69 applications of this Act which can be given effect without the
15-70 invalid provision or application, and to this end the provisions of
16-1 this Act are declared to be severable. (Sec. 92)
16-2 TITLE II. ELECTRIC UTILITIES
16-3 SUBTITLE A. GENERAL PROVISIONS
16-4 Sec. 2.001. DEFINITIONS. In this title, " electric utility"
16-5 or "utility" means any person, corporation, river authority,
16-6 cooperative corporation, or any combination thereof, other than a
16-7 municipal corporation, or their lessees, trustees, and receivers,
16-8 now or hereafter owning or operating for compensation in this state
16-9 equipment or facilities for producing, generating, transmitting,
16-10 distributing, selling, or furnishing electricity, provided,
16-11 however, that this definition may not be construed to apply to or
16-12 include a qualifying small power producer or qualifying
16-13 cogenerator, as defined in Sections 3(17)(D) and 3(18)(C) of the
16-14 Federal Power Act, as amended (16 U.S.C. Sections 796(17)(D) and
16-15 796(18)(C)). The term does not include any person or corporation
16-16 not otherwise an electric utility that:
16-17 (1) furnishes the services or commodity described in
16-18 this section only to itself, its employees, or tenants as an
16-19 incident of such employee service or tenancy, when such service or
16-20 commodity is not resold to or used by others;
16-21 (2) owns or operates in this state equipment or
16-22 facilities for producing, generating, transmitting, distributing,
16-23 selling, or furnishing electric energy to an electric utility, if
16-24 the equipment or facilities are used primarily for the production
16-25 and generation of electric energy for consumption by the person or
16-26 corporation; or
16-27 (3) owns or operates in this state a recreational
16-28 vehicle park that provides metered electric service in accordance
16-29 with Article 1446d-2, Revised Statutes, provided that a
16-30 recreational vehicle park owner is considered an electric utility
16-31 if the owner fails to comply with Article 1446d-2, Revised
16-32 Statutes, with regard to the metered sale of electricity at the
16-33 recreational vehicle park. (Sec. 3(c) (part))
16-34 Sec. 2.002. COMMISSION AS RESOURCE CENTER; DEVELOPMENT OF
16-35 ENERGY EFFICIENT SCHOOL FACILITIES. The commission may serve as a
16-36 resource center to assist school districts in developing energy
16-37 efficient facilities. As such, the commission may:
16-38 (1) present to school districts programs relating to
16-39 managing energy, training school-plant operators, and designing
16-40 energy efficient buildings;
16-41 (2) provide school districts with technical assistance
16-42 in managing energy;
16-43 (3) collect and distribute information relating to
16-44 energy management in school facilities; and
16-45 (4) offer to educators energy resource workshops and
16-46 make available to educators a film library on energy-related
16-47 matters and energy education lesson packages. (Sec. 88A)
16-48 SUBTITLE B. ELECTRICAL PLANNING
16-49 Sec. 2.051. ELECTRICAL FORECAST. (a) The commission shall
16-50 develop a long-term statewide electrical energy forecast which
16-51 shall be sent to the governor biennially. The forecast will
16-52 include an assessment of how alternative energy sources,
16-53 conservation, and load management will meet the state's electricity
16-54 needs.
16-55 (b) Every generating electric utility in the state shall
16-56 prepare and transmit to the commission every two years a report
16-57 specifying at least a 10-year forecast for assessments of load and
16-58 resources for its service area. The report shall include a list of
16-59 facilities which will be required to supply electric power during
16-60 the forecast periods. The report shall be in a form prescribed by
16-61 the commission. The report shall include:
16-62 (1) a tabulation of estimated peak load, resources,
16-63 and reserve margins for each year during the forecast or assessment
16-64 period;
16-65 (2) a list of existing electric generating plants in
16-66 service with a description of planned and potential generating
16-67 capacity at existing sites;
16-68 (3) a list of facilities which will be needed to serve
16-69 additional electrical requirements identified in the forecasts or
16-70 assessments, the general location of such facilities, and the
17-1 anticipated types of fuel to be utilized in the proposed
17-2 facilities, including an estimation of shutdown costs and disposal
17-3 of spent fuel for nuclear power plants;
17-4 (4) a description of additional system capacity which
17-5 might be achieved through, among other things, improvements in:
17-6 (A) generating or transmission efficiency;
17-7 (B) importation of power;
17-8 (C) interstate or interregional pooling;
17-9 (D) other improvements in efficiencies of
17-10 operation; and
17-11 (E) conservation measures;
17-12 (5) an estimation of the mix and type of fuel
17-13 resources for the forecast or assessment period;
17-14 (6) an annual load duration curve and a forecast of
17-15 anticipated peak loads for the forecast or assessment period for
17-16 the residential, commercial, industrial, and such other major
17-17 demand sectors in the service area of the electric utility as the
17-18 commission shall determine; and
17-19 (7) a description of projected population growth,
17-20 urban development, industrial expansion, and other growth factors
17-21 influencing increased demand for electric energy and the basis for
17-22 such projections.
17-23 (c) The commission shall establish and every electric
17-24 utility shall utilize a reporting methodology for preparation of
17-25 the forecasts of future load and resources.
17-26 (d) The commission shall review and evaluate the electric
17-27 utilities' forecast of load and resources and any public comment on
17-28 population growth estimates prepared by Bureau of Business
17-29 Research, University of Texas at Austin.
17-30 (e) Within 12 months after the receipt of the reports
17-31 required by this section, the commission shall hold a public
17-32 hearing and subsequently issue a final report to the governor and
17-33 notify every electric utility of the commission's electric forecast
17-34 for that utility. The commission shall consider its electric
17-35 forecast in all certification proceedings covering new generation
17-36 plant. (Secs. 16(b)-(f))
17-37 Sec. 2.052. ENCOURAGEMENT OF ECONOMIC PRODUCTION. The
17-38 commission shall make and enforce rules to encourage the economical
17-39 production of electric energy by qualifying cogenerators and
17-40 qualifying small power producers. (Sec. 16(g))
17-41 SUBTITLE C. MUNICIPAL JURISDICTION
17-42 Sec. 2.101. JURISDICTION OF MUNICIPALITY; SURRENDER;
17-43 ORIGINAL AND APPELLATE JURISDICTION OF COMMISSION. (a) Subject to
17-44 the limitations imposed in this Act, and for the purpose of
17-45 regulating rates and services so that such rates may be fair, just,
17-46 and reasonable, and the services adequate and efficient, the
17-47 governing body of each municipality shall have exclusive original
17-48 jurisdiction over all electric utility rates, operations, and
17-49 services provided by an electric utility within its city or town
17-50 limits.
17-51 (b) A municipality may elect to have the commission exercise
17-52 exclusive original jurisdiction over electric utility rates,
17-53 operations, and services within the incorporated limits of the
17-54 municipality. The governing body of a municipality may by
17-55 ordinance elect to surrender its original jurisdiction to the
17-56 commission, or the governing body may submit the question of the
17-57 surrender to the qualified voters at a municipal election. Upon
17-58 receipt of a petition signed by the lesser of 20,000 or 10 percent
17-59 of the number of qualified voters voting in the last preceding
17-60 general election in that municipality, the governing body shall
17-61 submit the question of the surrender of the municipality's original
17-62 jurisdiction to the commission at a municipal election.
17-63 (c) A municipality that surrenders its jurisdiction to the
17-64 commission may at any time, by vote of the electorate, reinstate
17-65 the jurisdiction of the governing body; provided, however, that any
17-66 municipality which reinstates its jurisdiction shall be unable to
17-67 surrender that jurisdiction for five years after the date of the
17-68 election at which the municipality elected to reinstate its
17-69 jurisdiction. A municipality may not, by vote of the electorate,
17-70 reinstate the jurisdiction of the governing body during the
18-1 pendency of any case before the commission involving the
18-2 municipality.
18-3 (d) The commission shall have exclusive appellate
18-4 jurisdiction to review orders or ordinances of such municipalities
18-5 as provided in this Act.
18-6 (e) The commission shall have exclusive original
18-7 jurisdiction over electric utility rates, operations, and services
18-8 not within the incorporated limits of a municipality exercising
18-9 exclusive original jurisdiction over those rates, operations, and
18-10 services as provided in this Act. (Sec. 17)
18-11 Sec. 2.102. MUNICIPALLY OWNED UTILITIES. Nothing in this
18-12 subtitle shall be construed to confer on the commission power or
18-13 jurisdiction to regulate or supervise the rates or service of any
18-14 utility owned and operated by any municipality within its
18-15 boundaries either directly or through a municipally owned
18-16 corporation, or to affect or limit the power, jurisdiction, or
18-17 duties of the municipalities that have elected to regulate and
18-18 supervise electric utilities within their boundaries, except as
18-19 provided in this Act. (Sec. 20)
18-20 Sec. 2.103. FRANCHISES. If a municipality performs
18-21 regulatory functions under this Act, it may make such other charges
18-22 as may be provided in the applicable franchise agreement, together
18-23 with any other charges permitted by this Act. (Sec. 21 (part))
18-24 Sec. 2.104. LOCAL UTILITY SERVICE; EXEMPT AND NONEXEMPT
18-25 AREAS. (a) Notwithstanding any other provision of this section,
18-26 municipalities shall continue to regulate each kind of local
18-27 utility service inside their boundaries until the commission has
18-28 assumed jurisdiction over the respective utility pursuant to this
18-29 Act.
18-30 (b) If a municipality does not surrender its jurisdiction,
18-31 local utility service within the boundaries of the municipality
18-32 shall be exempt from regulation by the commission under the
18-33 provisions of this Act to the extent that this Act applies to local
18-34 service, and the municipality shall have, regarding service within
18-35 its boundaries, the right to exercise the same regulatory powers
18-36 under the same standards and rules as the commission, or other
18-37 standards and rules not inconsistent therewith.
18-38 (c) Notwithstanding any such election, the commission may
18-39 consider an electric utility's revenues and return on investment in
18-40 exempt areas in fixing rates and charges in nonexempt areas, and
18-41 may also exercise the powers conferred necessary to give effect to
18-42 orders under this Act, for the benefit of nonexempt areas.
18-43 Likewise, in fixing rates and charges in the exempt area, the
18-44 governing body may consider an electric utility's revenues and
18-45 return on investment in nonexempt areas.
18-46 (d) Utilities serving exempt areas shall be subject to the
18-47 reporting requirements of this Act. Such reports shall be filed
18-48 with the governing body of the municipality as well as with the
18-49 commission.
18-50 (e) Nothing in this section shall limit the duty and power
18-51 of the commission to regulate service and rates of municipally
18-52 regulated utilities for service provided to other areas in Texas.
18-53 (Sec. 22)
18-54 Sec. 2.105. RATE DETERMINATION. (a) Any municipality
18-55 regulating its electric utilities pursuant to this Act shall
18-56 require from those utilities all necessary data to make a
18-57 reasonable determination of rate base, expenses, investment, and
18-58 rate of return within the municipal boundaries.
18-59 (b) The standards for such determination shall be based on
18-60 the procedures and requirements of this Act and said municipality
18-61 shall retain any and all personnel necessary to make the
18-62 determination of reasonable rates required under this Act. (Sec.
18-63 23)
18-64 Sec. 2.106. RATEMAKING PROCEEDINGS; ENGAGEMENT OF
18-65 CONSULTANTS, ACCOUNTANTS, AUDITORS, ATTORNEYS AND ENGINEERS;
18-66 STANDING. (a) The governing body of any municipality
18-67 participating in or conducting ratemaking proceedings shall have
18-68 the right to select and engage rate consultants, accountants,
18-69 auditors, attorneys, engineers, or any combination thereof, to
18-70 conduct investigations, present evidence, advise and represent the
19-1 governing body, and assist with litigation in electric utility
19-2 ratemaking proceedings before the governing body, any regulatory
19-3 authority, or in court. The electric utility engaged in such
19-4 proceedings shall be required to reimburse the governing body for
19-5 the reasonable costs of such services to the extent found
19-6 reasonable by the applicable regulatory authority.
19-7 (b) Municipalities shall have standing in all cases before
19-8 the commission regarding utilities serving within their corporate
19-9 limits subject to the right of the commission to determine standing
19-10 in cases involving retail service area disputes involving two or
19-11 more utilities and to consolidate municipalities on issues of
19-12 common interest and shall be entitled to judicial review of orders
19-13 regarding said proceedings in accordance with Section 1.301 of the
19-14 Act. (Sec. 24)
19-15 Sec. 2.107. ASSISTANCE OF COMMISSION. The commission may
19-16 advise and assist municipalities upon request in connection with
19-17 questions and proceedings arising under this Act. Such assistance
19-18 may include aid to municipalities in connection with matters
19-19 pending before the commission or the courts, or before the
19-20 governing body of any municipality, including making members of the
19-21 staff available as witnesses and otherwise providing evidence to
19-22 them. (Sec. 25)
19-23 Sec. 2.108. APPEAL. (a) Any party to a rate proceeding
19-24 before the governing body of a municipality may appeal the decision
19-25 of the governing body to the commission.
19-26 (b) Citizens of a municipality may appeal the decision of
19-27 the governing body in any rate proceeding to the commission through
19-28 the filing of a petition for review signed by the lesser of 20,000
19-29 or 10 percent of the number of qualified voters of such
19-30 municipality.
19-31 (c)(1) Ratepayers of a municipally owned electric utility
19-32 outside the municipal limits may appeal any action of the governing
19-33 body affecting the rates of the municipally owned electric utility
19-34 through filing with the commission a petition for review signed by
19-35 the lesser of 10,000 or five percent of the ratepayers served by
19-36 such utility outside the municipal limits. For purposes of this
19-37 subsection each person receiving a separate bill shall be
19-38 considered as a ratepayer. But a person is not considered as being
19-39 more than one ratepayer notwithstanding the number of bills
19-40 received. Such petition for review shall be considered properly
19-41 signed if signed by any person, or spouse of any such person, in
19-42 whose name residential utility service is carried.
19-43 (2) The municipality that owns the electric utility
19-44 shall on request disclose to any person the number of ratepayers
19-45 who reside outside the municipal limits. The municipality shall
19-46 provide the information by telephone or in a written form, as
19-47 preferred by the person making the request. The municipality may
19-48 not charge a fee for providing the information. The municipality
19-49 shall on request provide to any person a list of the names and
19-50 addresses of the ratepayers who reside outside the municipal
19-51 limits. The municipality may charge a reasonable fee to cover the
19-52 cost of providing the list.
19-53 (3) Not later than the 14th day after the date on
19-54 which the governing body makes a final decision, the municipality
19-55 shall issue a written report stating the effect of the decision on
19-56 each class of ratepayers. The appeal process shall be instituted
19-57 by filing a petition for review with the commission and serving
19-58 copies on all parties to the original rate proceeding. The
19-59 petition must be filed not later than the 45th day after the date
19-60 on which the municipality issues the written report prescribed by
19-61 this subsection.
19-62 (4) Not later than the 90th day after the date on
19-63 which a petition for review that meets the requirements of this
19-64 subsection is filed, the municipality shall file with the
19-65 commission a rate application that complies in all material
19-66 respects with the rules and forms prescribed by the commission.
19-67 The commission may, for good cause shown, extend the period for
19-68 filing the rate application.
19-69 (d) Any municipally owned electric utility whose rates have
19-70 been or are appealed under Subsection (c) of this section, and for
20-1 which the commission has ordered or orders a decrease in annual
20-2 nonfuel base revenues which exceeds the greater of $25,000,000 or
20-3 10 percent of the utility's nonfuel base revenues, as calculated on
20-4 a total system basis (without regard to the municipal utility's
20-5 corporate boundaries) and established in the rate ordinance or
20-6 ordinances appealed from, and for which the commission has found or
20-7 finds that the rates paid by the combined residential or any other
20-8 major customer class (other than any class or classes where the
20-9 city is itself the customer of the municipally owned utility) are
20-10 removed from cost of service levels to the extent that, under the
20-11 nonfuel base revenue requirement adopted by the commission (as
20-12 computed on a total system basis without regard to the
20-13 municipality's corporate boundaries), a change in nonfuel base rate
20-14 revenues in excess of 50 percent from adjusted test year levels
20-15 would be required to move that class to a relative rate of return
20-16 of unity (1.00 or 100 percent) under the cost of service
20-17 methodology adopted by the commission in an appeal under Subsection
20-18 (c) of this section, shall thereafter be subject to the following:
20-19 (1) For a period of 10 years beginning on the later of
20-20 August 28, 1989, or the effective date of the rate ordinance which
20-21 was the subject of the commission's final order invoking the
20-22 application of this subsection, the commission shall have appellate
20-23 jurisdiction over the rates charged by the municipally owned
20-24 utility, both inside and outside such municipality's corporate
20-25 limits, in the same manner and subject to the same commission
20-26 powers and authority as set forth in this Act for electric
20-27 utilities, but specifically limited as follows:
20-28 (A) The commission shall have the jurisdiction
20-29 to review the cost allocation and rate design methodologies adopted
20-30 by the City Council or other governing body of the municipally
20-31 owned utility subject to this subsection.
20-32 (i) If the commission finds that such cost
20-33 of service methodologies result in rates which are unjust,
20-34 unreasonable, or unreasonably discriminatory or unduly preferential
20-35 to any customer class, then the commission may order the
20-36 implementation of ratesetting methodologies which the commission
20-37 finds reasonable.
20-38 (ii) The commission shall ensure that a
20-39 customer class, other than any class or classes where the city is
20-40 itself the customer of the municipally owned utility, does not pay
20-41 rates which result in a relative rate of return exceeding 115
20-42 percent under the cost-of-service methodology found reasonable by
20-43 the commission, provided that a customer class may not experience a
20-44 percentage base rate increase that is greater than 1 1/2 times the
20-45 system average base increase. In moving above-cost classes toward
20-46 cost-of-service levels, those classes farthest above cost shall be
20-47 moved sequentially toward cost, such that no above-cost class moves
20-48 toward cost until no other class or classes are further removed
20-49 from cost.
20-50 (iii) The municipality may, as a matter of
20-51 intra-class rate design, design residential rates to accomplish
20-52 reasonable energy conservation goals, notwithstanding any other
20-53 provision of this Act.
20-54 (B) The commission's jurisdiction under this
20-55 subsection may be invoked by any party to the local rate
20-56 proceedings required by this subsection, in the same manner as
20-57 appeals of the rates of electric utilities under Subsection (a) of
20-58 this section. Provided, however, that the commission's
20-59 jurisdiction under this subsection does not extend to the
20-60 municipally owned utility's revenue requirements, whether base rate
20-61 or fuel revenues, its invested capital, its return on invested
20-62 capital, its debt service coverage ratio, or the level of any
20-63 transfer of revenues from the utility to the municipality's general
20-64 fund.
20-65 (2) The City Council or other governing board of a
20-66 municipally owned utility subject to this subsection shall
20-67 establish procedures similar to those procedures employed by
20-68 municipalities which have retained original jurisdiction under
20-69 Section 2.101(a) of this Act to regulate electric utilities
20-70 operating within such municipalities' corporate boundaries. Such
21-1 procedures shall include a public hearing process in which affected
21-2 ratepayers are granted party status on request and are grouped for
21-3 purposes of participation in accordance with their common or
21-4 divergent interests, including but not limited to the particular
21-5 interests of all-electric and out-of-city residential ratepayers.
21-6 Provided, however, that nothing in this Act or this subsection
21-7 shall require the City Council or governing board of the
21-8 municipally owned utility to which this subsection applies to
21-9 employ or establish procedures that require the use of the Texas
21-10 Rules of Evidence, the Texas Rules of Civil Procedure, or the
21-11 presentation of sworn testimony or other forms of sworn evidence.
21-12 The City Council or other governing board shall appoint a consumer
21-13 advocate to represent the interests of residential and small
21-14 commercial ratepayers in the municipality's local rate proceedings.
21-15 The consumer advocate's reasonable costs of participation in said
21-16 proceedings, including the reasonable costs of ratemaking
21-17 consultants and expert witnesses, shall be funded by and recovered
21-18 from such residential and small commercial ratepayers.
21-19 (3) The commission shall establish rules applicable to
21-20 any party to an appeal under Subsection (c) of this section that
21-21 provide for the public disclosure of financial and in-kind
21-22 contributions and expenditures related to preparation of and filing
21-23 of a petition for appeal and in preparation of expert testimony or
21-24 legal representation for an appeal. Any party or customer who is a
21-25 member of a party who makes a financial contribution or in-kind
21-26 contribution to assist in an appeal of another party or customer
21-27 class under Subsection (c) of this section shall, upon a finding of
21-28 the commission to that effect, be required to pay the municipally
21-29 owned utility a penalty equivalent in amount to two times the
21-30 contribution. Nothing in this subsection shall be construed to
21-31 limit the right of any party or customer to expend funds to
21-32 represent its own interests following the filing of a petition with
21-33 the commission under Subsection (c) of this section.
21-34 (e) Any municipally owned electric utility whose rates have
21-35 been or are appealed under Subsection (c) of this section, and for
21-36 which the commission has ordered or orders a decrease in annual
21-37 nonfuel base revenues which exceeds the greater of $25,000,000 or
21-38 10 percent of the utility's nonfuel base revenues, as calculated on
21-39 a total system basis (without regard to the municipal utility's
21-40 corporate boundaries) and established in the rate ordinance or
21-41 ordinances appealed from, and for which the commission has found or
21-42 finds that the rates paid by the combined residential or any other
21-43 major customer class (other than any class or classes where the
21-44 city is itself the customer of the municipally owned utility) are
21-45 removed from cost of service levels to the extent that, under the
21-46 nonfuel base revenue requirement adopted by the commission (as
21-47 computed on a total system basis without regard to the
21-48 municipality's corporate boundaries), a change in nonfuel base rate
21-49 revenues in excess of 50 percent from adjusted test year levels
21-50 would be required to move that class to a relative rate of return
21-51 of unity (1.00 or 100 percent) under the cost of service
21-52 methodology adopted by the commission in an appeal under Subsection
21-53 (c) of this section, shall thereafter be subject to the following:
21-54 (1) For a period of 10 years beginning on the later of
21-55 August 28, 1989, or the effective date of the rate ordinance which
21-56 was the subject of the commission's final order invoking the
21-57 application of this subsection, the commission shall have appellate
21-58 jurisdiction over the rates charged by the municipally owned
21-59 utility, outside the municipality's corporate limits, in the manner
21-60 and to the extent provided in this subsection.
21-61 (2) Ratepayers of a municipally owned utility subject
21-62 to this subsection who reside outside the municipality's corporate
21-63 limits may appeal any action of the governing body affecting the
21-64 rates charged by the municipally owned electric utility outside the
21-65 corporate limits through filing with the commission a petition for
21-66 review in accordance with the same procedures, requirements, and
21-67 standards applicable to appeals brought under Subsection (c) of
21-68 this section, except as otherwise specifically provided in this
21-69 subsection. The petition for review must plainly disclose that the
21-70 cost of bringing and pursuing the appeal will be funded by a
22-1 surcharge on the monthly electric bills of outside-city ratepayers
22-2 in a manner prescribed by the commission.
22-3 (A) Upon commission approval of the sufficiency
22-4 of a petition, the appellants shall submit for the approval of the
22-5 Office of Public Utility Counsel a budget itemizing the scope and
22-6 expected cost of consultant services to be purchased by the
22-7 appellants in connection with the appeal.
22-8 (B) After a final order has been entered by the
22-9 commission in the appeal, the consultant and legal costs approved
22-10 by public counsel as reasonable shall be assessed by the
22-11 municipality on a per capita basis among residential ratepayers who
22-12 reside outside the municipality. Surcharges shall be assessed in a
22-13 one-time charge not later than 120 days following entry of the
22-14 commission's final order. Costs incurred by the appellants shall
22-15 be reimbursed by the municipality within not later than 90 days
22-16 following the date the commission enters its final order.
22-17 (C) The municipality may not include the costs
22-18 associated with its defense of an appeal under this subsection in
22-19 the rates of outside-city ratepayers. Nor shall the municipality,
22-20 if it appeals from an order entered by the commission under this
22-21 subsection, include the costs associated with its appeal in the
22-22 rates of ratepayers who reside outside the city.
22-23 (D) Ratepayers who appeal under this subsection
22-24 may not receive funding for rate case expenses except from
22-25 residential ratepayers who reside outside the municipality's
22-26 boundaries or from other municipalities inside whose corporate
22-27 limits the municipally owned utility provides service. The
22-28 commission shall adopt rules for the reporting of financial and
22-29 in-kind contributions in support of appeals brought under this
22-30 subsection. Upon a finding by the commission that an appellant has
22-31 received contributions from any source other than outside-city
22-32 ratepayers or such other municipalities, the appeal and orders of
22-33 the commission entered therein shall be null and void.
22-34 (3) In appeals under this subsection, the commission
22-35 shall have jurisdiction and authority to review and ensure that the
22-36 revenue requirements of any municipally owned utility subject to
22-37 this subsection are reasonable, but such jurisdiction and authority
22-38 does not extend to regulation of the use and level of any transfer
22-39 of the utility's revenues to the municipality's general fund. The
22-40 commission shall also have jurisdiction and authority to review the
22-41 cost allocation and rate design methodologies adopted by the
22-42 governing body of the municipally owned utility. If the commission
22-43 finds that such cost of service methodologies result in rates which
22-44 are unjust, unreasonable, or unreasonably discriminatory or unduly
22-45 preferential to any customer class, then the commission may order
22-46 the implementation of ratesetting methodologies which the
22-47 commission finds reasonable; provided, however, that the
22-48 commission's jurisdiction under this subsection does not encompass
22-49 matters of intra-class residential rate design.
22-50 (4) An intervenor in an appeal brought under this
22-51 subsection shall be limited to presenting testimony and evidence on
22-52 cost allocation and rate design methodologies, except that
22-53 intervenors may present evidence and testimony in support of the
22-54 municipality on issues related to utility revenues.
22-55 (5) An appellant ratepayer residing outside the
22-56 corporate limits of a municipally owned utility subject to this
22-57 subsection shall, in appealing from a rate ordinance or other
22-58 ratesetting action of the municipality's governing board, elect to
22-59 petition for review under either Subsection (c) of this section or
22-60 this subsection.
22-61 (f) The appeal process shall be instituted within 30 days of
22-62 the final decision by the governing body with the filing of a
22-63 petition for review with the commission and copies served on all
22-64 parties to the original rate proceeding.
22-65 (g) The commission shall hear such appeal de novo based on
22-66 the test year presented to the municipality and by its final order
22-67 shall fix such rates as the municipality should have fixed in the
22-68 ordinance from which the appeal was taken. In the event that the
22-69 commission fails to enter its final order: (1) for proceedings
22-70 involving the rates of a municipally owned utility, within 185 days
23-1 from the date on which the appeal is perfected or on which the
23-2 utility files a rate application as prescribed by Subsection (c) of
23-3 this section; or (2) for proceedings in which similar relief has
23-4 also been concurrently sought from the commission under its
23-5 original jurisdiction, within 120 days from the date such appeal is
23-6 perfected or the date upon which final action must be taken in the
23-7 similar proceedings so filed with the commission whichever shall
23-8 last occur; or (3) in all other proceedings, within 185 days from
23-9 the date such appeal is perfected, the schedule of rates proposed
23-10 by the utility shall be deemed to have been approved by the
23-11 commission and effective upon the expiration of said applicable
23-12 period. Any rates, whether temporary or permanent, set by the
23-13 commission shall be prospective and observed from and after the
23-14 applicable order of the commission, except interim rate orders
23-15 necessary to effect uniform system-wide rates. (Sec. 26--Subsec.
23-16 (c) fixed)
23-17 SUBTITLE D. RATES AND SERVICES
23-18 Sec. 2.151. RATES; METHODS AND ACCOUNTS. (a) The
23-19 commission shall fix proper and adequate rates and methods of
23-20 depreciation, amortization, or depletion of the several classes of
23-21 property of each electric utility, and shall require every electric
23-22 utility to carry a proper and adequate depreciation account in
23-23 accordance with such rates and methods and with such other rules
23-24 and regulations as the commission prescribes. Such rates, methods,
23-25 and accounts shall be utilized uniformly and consistently
23-26 throughout the ratesetting and appeal proceedings.
23-27 (b) Every electric utility shall keep separate accounts to
23-28 show all profits or losses resulting from the sale or lease of
23-29 appliances, fixtures, equipment, or other merchandise. This profit
23-30 or loss may not be taken into consideration by the regulatory
23-31 authority in arriving at any rate to be charged for service by any
23-32 such electric utility, to the extent that such merchandise is not
23-33 integral to the provision of utility service.
23-34 (c) In determining the allocation of tax savings derived
23-35 from application of such methods as liberalized depreciation and
23-36 amortization and the investment tax credit, the regulatory
23-37 authority shall equitably balance the interests of present and
23-38 future customers and shall apportion such benefits between
23-39 consumers and the electric utilities accordingly. Where any
23-40 portion of the investment tax credit has been retained by an
23-41 electric utility, that same amount shall be deducted from the
23-42 original cost of the facilities or other addition to the rate base
23-43 to which the credit applied, to the extent allowed by the Internal
23-44 Revenue Code.
23-45 (d) For the purposes of this section, "electric utility"
23-46 includes "municipally owned utility." (Secs. 27(b), (c), (e), (f))
23-47 Sec. 2.152. REPORTING OF ADVERTISING OR PUBLIC RELATIONS
23-48 EXPENSES. (a) The regulatory authority may require an annual
23-49 reporting from each utility company of all its expenditures for
23-50 business gifts and entertainment, and institutional,
23-51 consumption-inducing and other advertising or public relations
23-52 expenses.
23-53 (b) The regulatory authority may not allow as costs or
23-54 expenses for ratemaking purposes any of these expenditures which
23-55 the regulatory authority determines not to be in the public
23-56 interest.
23-57 (c) The cost of legislative advocacy expenses may not in any
23-58 case be allowed as costs or expenses for ratemaking purposes.
23-59 (d) Reasonable charitable or civic contributions may be
23-60 allowed not to exceed the amount approved by the regulatory
23-61 authority. (Sec. 30)
23-62 Sec. 2.153. UNLAWFUL RATES, RULES AND REGULATIONS. It shall
23-63 be unlawful for any utility to charge, collect, or receive any rate
23-64 for electric utility service or to impose any rule or regulation
23-65 other than as herein provided. (Sec. 31)
23-66 Sec. 2.154. FILING SCHEDULE OF RATES, RULES AND REGULATIONS.
23-67 (a) Every electric utility shall file with each regulatory
23-68 authority schedules showing all rates which are subject to the
23-69 original or appellate jurisdiction of the regulatory authority and
23-70 which are in force at the time for any electric utility service,
24-1 product, or commodity offered by the utility.
24-2 (b) Every electric utility shall file with, and as a part of
24-3 such schedules, all rules and regulations relating to or affecting
24-4 the rates, electric utility service, product, or commodity
24-5 furnished by such utility. (Sec. 32)
24-6 Sec. 2.155. STANDARDS OF SERVICE. (a) Every electric
24-7 utility shall furnish such service, instrumentalities, and
24-8 facilities as shall be safe, adequate, efficient, and reasonable.
24-9 (b) The regulatory authority after reasonable notice and
24-10 hearing had on its own motion or on complaint, may:
24-11 (1) ascertain and fix just and reasonable standards,
24-12 classifications, regulations, or practices to be observed and
24-13 followed by any or all electric utilities with respect to the
24-14 service to be furnished;
24-15 (2) ascertain and fix adequate and reasonable
24-16 standards for the measurement of the quantity, quality, pressure,
24-17 initial voltage, or other condition pertaining to the supply of the
24-18 service;
24-19 (3) prescribe reasonable regulations for the
24-20 examination and testing of the service and for the measurement
24-21 thereof; and
24-22 (4) establish or approve reasonable rules,
24-23 regulations, specifications, and standards to secure the accuracy
24-24 of all meters, instruments and equipment used for the measurement
24-25 of any service of any electric utility.
24-26 (c) Any standards, classifications, regulations, or
24-27 practices now or hereafter observed or followed by any electric
24-28 utility may be filed by it with the regulatory authority, and the
24-29 same shall continue in force until amended by the electric utility
24-30 or until changed by the regulatory authority as herein provided.
24-31 (d) Notwithstanding any other provision of law, all lines
24-32 owned by an electric utility for the transmission and/or
24-33 distribution of electric energy shall be constructed, operated, and
24-34 maintained, as to clearances, in accordance with the National
24-35 Electrical Safety Code Standard ANSI (c)(2), as adopted by the
24-36 American National Safety Institute and in effect at the time of
24-37 construction. (Sec. 35)
24-38 Sec. 2.156. EXAMINATION AND TEST OF EQUIPMENT. (a) The
24-39 regulatory authority may examine and test any meter, instrument, or
24-40 equipment used for the measurement of any service of any electric
24-41 utility and may enter any premises occupied by any electric utility
24-42 for the purpose of making such examinations and tests and
24-43 exercising any power provided for in this Act and may set up and
24-44 use on such premises any apparatus and appliances necessary
24-45 therefor. The electric utility shall have the right to be
24-46 represented at the making of the examinations, tests, and
24-47 inspections. The electric utility and its officers and employees
24-48 shall facilitate the examinations, tests, and inspections by giving
24-49 every reasonable aid to the regulatory authority and any person or
24-50 persons designated by the regulatory authority for the duties
24-51 aforesaid.
24-52 (b) Any consumer or user may have any meter or measuring
24-53 device tested by the utility once without charge, after a
24-54 reasonable period to be fixed by the regulatory authority by rule,
24-55 and at shorter intervals on payment of reasonable fees fixed by the
24-56 regulatory authority. The regulatory authority shall declare and
24-57 establish reasonable fees to be paid for other examining and
24-58 testing such meters and other measuring devices on the request of
24-59 the consumer. If the test is requested to be made within the
24-60 period of presumed accuracy as fixed by the regulatory authority
24-61 since the last such test of the same meter or other measuring
24-62 device, the fee to be paid by the consumer or user at the time of
24-63 his request shall be refunded to the consumer or user if the meter
24-64 or measuring device is found unreasonably defective or incorrect to
24-65 the substantial disadvantage of the consumer or user. If the
24-66 consumer's request is made at a time beyond the period of presumed
24-67 accuracy fixed by the regulatory authority since the last such test
24-68 of the same meter or measuring device, the utility shall make the
24-69 test without charge to the consumer or user. (Sec. 36)
24-70 SUBTITLE E. PROCEEDINGS BEFORE THE REGULATORY AUTHORITY
25-1 Sec. 2.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
25-2 Subject to the provisions of this Act, the commission is hereby
25-3 vested with all authority and power of the State of Texas to insure
25-4 compliance with the obligations of electric utilities in this Act.
25-5 For this purpose the regulatory authority is empowered to fix and
25-6 regulate rates of electric utilities, including rules and
25-7 regulations for determining the classification of customers and
25-8 services and for determining the applicability of rates. A rule or
25-9 order of the regulatory authority may not conflict with the rulings
25-10 of any federal regulatory body. (Sec. 37)
25-11 Sec. 2.202. JUST AND REASONABLE RATES. It shall be the duty
25-12 of the regulatory authority to insure that every rate made,
25-13 demanded, or received by any electric utility, or by any two or
25-14 more electric utilities jointly, shall be just and reasonable.
25-15 Rates may not be unreasonably preferential, prejudicial, or
25-16 discriminatory, but shall be sufficient, equitable, and consistent
25-17 in application to each class of consumers. For ratemaking
25-18 purposes, the commission may treat two or more municipalities
25-19 served by an electric utility as a single class wherever it deems
25-20 such treatment to be appropriate. (Sec. 38 (part))
25-21 Sec. 2.203. FIXING OVERALL REVENUES. (a) In fixing the
25-22 rates of an electric utility the regulatory authority shall fix its
25-23 overall revenues at a level which will permit such utility a
25-24 reasonable opportunity to earn a reasonable return on its invested
25-25 capital used and useful in rendering service to the public over and
25-26 above its reasonable and necessary operating expenses.
25-27 (b) In fixing a reasonable return on invested capital, the
25-28 regulatory authority shall consider, in addition to other
25-29 applicable factors, efforts to comply with the statewide energy
25-30 plan, the efforts and achievements of such utility in the
25-31 conservation of resources, the quality of the utility's services,
25-32 the efficiency of the utility's operations, and the quality of the
25-33 utility's management. (Sec. 39)
25-34 Sec. 2.204. BURDEN OF PROOF. Except as hereafter provided,
25-35 in any proceeding involving any proposed change of rates, the
25-36 burden of proof to show that the proposed change, if proposed by
25-37 the utility, or that the existing rate, if it is proposed to reduce
25-38 the rate, is just and reasonable shall be on the electric utility.
25-39 (Sec. 40 (part))
25-40 Sec. 2.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME.
25-41 The components of invested capital and net income shall be
25-42 determined according to Sections 2.206, 2.207, and 2.208. (Sec. 41
25-43 (part))
25-44 Sec. 2.206. INVESTED CAPITAL. (a) Utility rates shall be
25-45 based upon the original cost of property used by and useful to the
25-46 electric utility in providing service including construction work
25-47 in progress at cost as recorded on the books of the utility.
25-48 (b) The inclusion of construction work in progress is an
25-49 exceptional form of rate relief to be granted only upon the
25-50 demonstration by the utility that such inclusion is necessary to
25-51 the financial integrity of the utility. Construction work in
25-52 progress may not be included in the rate base for major projects
25-53 under construction to the extent that such projects have been
25-54 inefficiently or imprudently planned or managed.
25-55 (c) Original cost shall be the actual money cost, or the
25-56 actual money value of any consideration paid other than money, of
25-57 the property at the time it shall have been dedicated to public
25-58 use, whether by the utility which is the present owner or by a
25-59 predecessor, less depreciation. (Sec. 41(a))
25-60 Sec. 2.207. SEPARATIONS AND ALLOCATIONS. Costs of
25-61 facilities, revenues, expenses, taxes, and reserves shall be
25-62 separated or allocated as prescribed by the regulatory authority.
25-63 (Sec. 41(b))
25-64 Sec. 2.208. NET INCOME. (a) "Net income" means the total
25-65 revenues of the electric utility less all reasonable and necessary
25-66 expenses as determined by the regulatory authority. The regulatory
25-67 authority shall determine expenses and revenues in a manner
25-68 consistent with this section.
25-69 (b) Transactions with Affiliated Interests. Payment to
25-70 affiliated interests for costs of any services, or any property,
26-1 right or thing, or for interest expense may not be allowed either
26-2 as capital cost or as expense except to the extent that the
26-3 regulatory authority shall find such payment to be reasonable and
26-4 necessary for each item or class of items as determined by the
26-5 commission. Any such finding shall include specific findings of
26-6 the reasonableness and necessity of each item or class of items
26-7 allowed and a finding that the price to the utility is no higher
26-8 than prices charged by the supplying affiliate to its other
26-9 affiliates or divisions for the same item or class of items, or to
26-10 unaffiliated persons or corporations. The price paid by gas
26-11 utilities to affiliated interests for natural gas from Outer
26-12 Continental Shelf lands shall be subject to a rebuttable
26-13 presumption that such price is reasonable if the price paid does
26-14 not exceed the price permitted by federal regulation if such gas is
26-15 regulated by any federal agency or if not regulated by a federal
26-16 agency does not exceed the price paid by nonaffiliated parties for
26-17 natural gas from Outer Continental Shelf lands. The burden of
26-18 establishing that such a price paid is not reasonable shall be on
26-19 any party challenging the reasonableness of such price.
26-20 (c) Income Taxes. If the electric utility is a member of an
26-21 affiliated group that is eligible to file a consolidated income tax
26-22 return, and if it is advantageous to the electric utility to do so,
26-23 income taxes shall be computed as though a consolidated return had
26-24 been so filed and the utility had realized its fair share of the
26-25 savings resulting from the consolidated return, unless it is shown
26-26 to the satisfaction of the regulatory authority that it was
26-27 reasonable to choose not to consolidate returns. The amounts of
26-28 income taxes saved by a consolidated group of which an electric
26-29 utility is a member by reason of the elimination in the
26-30 consolidated return of the intercompany profit on purchases by the
26-31 electric utility from an affiliate shall be applied to reduce the
26-32 cost of the property or services so purchased. The investment tax
26-33 credit allowed against federal income taxes, to the extent retained
26-34 by the utility, shall be applied as a reduction in the rate-based
26-35 contribution of the assets to which such credit applies, to the
26-36 extent and at such rate as allowed by the Internal Revenue Code.
26-37 (d) Expenses Disallowed. The regulatory authority may not
26-38 consider for ratemaking purposes the following expenses:
26-39 (1) legislative advocacy expenses, whether made
26-40 directly or indirectly, including but not limited to legislative
26-41 advocacy expenses included in trade association dues;
26-42 (2) payments, except those made under an insurance or
26-43 risk-sharing arrangement executed before the date of loss, made to
26-44 cover costs of an accident, equipment failure, or negligence at a
26-45 utility facility owned by a person or governmental body not selling
26-46 power inside the State of Texas;
26-47 (3) costs of processing a refund or credit under
26-48 Subsection (e) of Section 2.212 of this Act; or
26-49 (4) any expenditure found by the regulatory authority
26-50 to be unreasonable, unnecessary, or not in the public interest,
26-51 including but not limited to executive salaries, advertising
26-52 expenses, legal expenses, and civil penalties or fines.
26-53 (e) The regulatory authority may promulgate reasonable rules
26-54 and regulations with respect to the allowance or disallowance of
26-55 any expenses for ratemaking purposes. (Sec. 41(c))
26-56 Sec. 2.209. COGENERATOR OR SMALL-POWER PRODUCER; AGREEMENT
26-57 WITH ELECTRIC UTILITY FOR PURCHASE OF CAPACITY; CERTIFICATION BY
26-58 COMMISSION. (a) In this section "qualifying facility" means a
26-59 qualifying cogenerator or a qualifying small-power producer, as
26-60 defined by Sections 3(18)(C) and 3(17)(D), respectively, Federal
26-61 Power Act (16 U.S.C. Sections 796(18)(C) and 796(17)(D)).
26-62 (b) If an electric utility and a qualifying facility enter
26-63 into an agreement providing for the purchase of capacity, the
26-64 electric utility or qualifying facility may submit a copy of the
26-65 agreement to the commission for certification under this section.
26-66 The agreement may provide that it is contingent on that
26-67 certification. Before the deadline specified by Subsection (d) of
26-68 this section, the commission shall determine whether:
26-69 (1) the payments provided for in the agreement over
26-70 the contract term are equal to or less than the utility's avoided
27-1 costs as established by the commission and in effect at the time
27-2 the agreement was signed. Contracts entered into before the
27-3 effective date of this section may not be submitted for
27-4 certification by the commission; and
27-5 (2) the agreement provides the electric utility the
27-6 opportunity to acquire the cogeneration or small-power production
27-7 installation before the installation is offered to another
27-8 purchaser in the event of its abandonment, or provides other
27-9 sufficient assurance that the electric utility will be provided
27-10 with a comparable supply of electricity, if the qualifying facility
27-11 ceases to operate the installation.
27-12 (c) If the commission determines that the agreement meets
27-13 the requirements of Subdivisions (1) and (2) of Subsection (b) of
27-14 this section, it shall certify that the agreement meets these
27-15 requirements. If the commission does not make a determination
27-16 under Subsection (b) of this section before the deadline specified
27-17 by Subsection (d) of this section, the agreement is considered to
27-18 meet the requirements of Subdivisions (1) and (2) of Subsection (b)
27-19 of this section and certification is considered granted. A
27-20 certification is effective until the earlier of 15 years after the
27-21 date of the certification or the expiration date of the agreement.
27-22 (d) The commission shall make its determination under this
27-23 section within 90 days after the date that the agreement is
27-24 submitted, unless before this deadline the electric utility, the
27-25 qualifying facility, or an affected person requests a hearing or
27-26 the commission on its own motion decides to hold a hearing. If a
27-27 hearing is requested or the commission decides to hold a hearing,
27-28 the commission shall hold the hearing and make its determination
27-29 within 120 days after the date that the agreement is submitted,
27-30 except that this deadline is extended two days for each day in
27-31 excess of five days on which the commission conducts a hearing on
27-32 the merits of the case.
27-33 (e) In setting the electric utility's rates for a period
27-34 during which the certification is effective, the regulatory
27-35 authority shall consider payments made under the agreement to be
27-36 reasonable and necessary operating expenses of the electric
27-37 utility. The regulatory authority shall allow full, concurrent,
27-38 and monthly recovery of the amount of the payments. (Sec. 41A)
27-39 Sec. 2.210. SELF-INSURANCE. (a) An electric utility may
27-40 self-insure all or a portion of its potential liability or
27-41 catastrophic property loss, including windstorm, fire, and
27-42 explosion losses which could not have been reasonably anticipated
27-43 and included under operating and maintenance expenses. The
27-44 commission shall approve a self-insurance plan under this section
27-45 if it finds that the coverage is in the public interest and the
27-46 plan is a lower cost alternative to purchasing commercial
27-47 insurance, considering all costs, and that ratepayers will receive
27-48 the benefits of that saving.
27-49 (b) In computing a utility's reasonable and necessary
27-50 expenses under Section 2.208 of this Act, the regulatory authority
27-51 shall allow as a necessary expense the funds credited to reserve
27-52 accounts for the self-insurance, to the extent the regulatory
27-53 authority finds it in the public interest. After the reserve
27-54 account is established, the regulatory authority shall consider if
27-55 the reserve account has a surplus or shortage in determining the
27-56 utility's rate base. A surplus in the reserve account will exist
27-57 if the charges against the reserve account are less than the funds
27-58 credited to the reserve. A shortage in the reserve account will
27-59 exist if the charges against the account are greater than the funds
27-60 credited to the reserve. The regulatory authority shall subtract
27-61 any surplus from and add any shortage to the rate base.
27-62 (c) The regulatory authority shall determine reasonableness
27-63 under Subsection (b) of this section from information provided at
27-64 the time the self-insurance plan and reserve account are
27-65 established and upon the filing of each rate case by a utility that
27-66 has such a fund.
27-67 (d) The commission shall adopt rules governing
27-68 self-insurance under this section.
27-69 (e) The allowance for self-insurance under this Act for
27-70 ratemaking purposes will not be applicable to nuclear plant
28-1 investment. (Sec. 41B)
28-2 Sec. 2.211. UNREASONABLE OR VIOLATIVE EXISTING RATES;
28-3 INVESTIGATING COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE.
28-4 (a) Whenever the regulatory authority, after reasonable notice and
28-5 hearing, on its own motion or on complaint by any affected person,
28-6 finds that the existing rates of any electric utility for any
28-7 service are unreasonable or in any way in violation of any
28-8 provision of law, the regulatory authority shall determine the just
28-9 and reasonable rates, including maximum or minimum rates, to be
28-10 thereafter observed and in force, and shall fix the same by order
28-11 to be served on the electric utility; and such rates shall
28-12 constitute the legal rates of the electric utility until changed as
28-13 provided in this Act.
28-14 (b) Whenever an electric utility does not itself produce or
28-15 generate that which it distributes, transmits, or furnishes to the
28-16 public for compensation, but obtains the same from another source,
28-17 the regulatory authority shall have the power and authority to
28-18 investigate the cost of such production or generation in any
28-19 investigation of the reasonableness of the rates of such electric
28-20 utility. (Sec. 42)
28-21 Sec. 2.212. STATEMENT OF INTENT TO CHANGE RATES; MAJOR
28-22 CHANGES; HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF
28-23 RATE LEVEL. (a) A utility may not make changes in its rates
28-24 except by filing a statement of intent with the regulatory
28-25 authority having original jurisdiction at least 35 days prior to
28-26 the effective date of the proposed change. The statement of intent
28-27 shall include proposed revisions of tariffs and schedules and a
28-28 statement specifying in detail each proposed change, the effect the
28-29 proposed change is expected to have on the revenues of the company,
28-30 the classes and numbers of utility consumers affected, and such
28-31 other information as may be required by the regulatory authority's
28-32 rules and regulations. A copy of the statement of intent shall be
28-33 mailed or delivered to the appropriate officer of each affected
28-34 municipality, and notice shall be given by publication in
28-35 conspicuous form and place of a notice to the public of such
28-36 proposed change once in each week for four successive weeks prior
28-37 to the effective date of the proposed change in a newspaper having
28-38 general circulation in each county containing territory affected by
28-39 the proposed change, and by mail to such other affected persons as
28-40 may be required by the regulatory authority's rules and
28-41 regulations. The regulatory authority may waive the publication of
28-42 notice requirement prescribed by this subsection in a proceeding
28-43 that involves a rate reduction for all affected ratepayers only.
28-44 The applicant shall give notice of the proposed rate change by mail
28-45 to all affected utility customers. The regulatory authority by
28-46 rule shall also define other proceedings for which the publication
28-47 of notice requirement prescribed by this subsection may be waived
28-48 on a showing of good cause, provided that a waiver may not be
28-49 granted in any proceeding involving a rate increase to any class or
28-50 category of ratepayer.
28-51 (b) The regulatory authority, for good cause shown, may,
28-52 except in the case of major changes, allow changes in rate to take
28-53 effect prior to the end of such 35 day period under such conditions
28-54 as it may prescribe, subject to suspension as provided herein. All
28-55 such changes shall be indicated immediately upon its schedules by
28-56 such utility. "Major changes" shall mean an increase in rates
28-57 which would increase the aggregate revenues of the applicant more
28-58 than the greater of $100,000 or two and one-half percent, but does
28-59 not include changes in rates allowed to go into effect by the
28-60 regulatory authority or made by the utility pursuant to an order of
28-61 the regulatory authority after hearings held upon notice to the
28-62 public.
28-63 (c) Whenever there is filed with the Regulatory Authority
28-64 any schedule modifying or resulting in a change in any rates then
28-65 in force, the Regulatory Authority shall on complaint by any
28-66 affected person or may on its own motion, at any time within 30
28-67 days from the date when such change would or has become effective,
28-68 and, if it so orders, without answer or other formal pleading by
28-69 the utility, but on reasonable notice, including notice to the
28-70 governing bodies of all affected municipalities and counties, enter
29-1 on a hearing to determine the propriety of such change. The
29-2 Regulatory Authority shall hold such a hearing in every case in
29-3 which the change constitutes a major change in rates, provided that
29-4 an informal proceeding may satisfy this requirement if a complaint
29-5 has not been received before the expiration of 45 days after notice
29-6 of the change shall have been filed. In each case where the
29-7 commission determines it is in the public interest to collect
29-8 testimony at a regional hearing for the inclusion in the record,
29-9 the commission shall hold a regional hearing at an appropriate
29-10 location. A regional hearing is not required in a case involving a
29-11 member-owned utility, unless the commission determines otherwise.
29-12 (d) Pending the hearing and decision, the local Regulatory
29-13 Authority, after delivery to the affected utility of a statement in
29-14 writing of its reasons therefor, may suspend the operation of the
29-15 schedule for a period not to exceed 90 days beyond the date on
29-16 which the schedule of rates would otherwise go into effect and the
29-17 commission may suspend the operation of the schedule for a period
29-18 not to exceed 150 days beyond the date on which the schedule would
29-19 otherwise go into effect. If the Regulatory Authority does not
29-20 make a final determination concerning any schedule of rates prior
29-21 to expiration of the period or periods of suspension, the schedule
29-22 shall be deemed to have been approved by the Regulatory Authority.
29-23 However, the 150-day period shall be extended two days for each one
29-24 day of actual hearing on the merits of the case that exceeds 15
29-25 days. This approval is subject to the authority of the Regulatory
29-26 Authority thereafter to continue a hearing in progress. The
29-27 Regulatory Authority may in its discretion fix temporary rates for
29-28 any period of suspension under this section. During the suspension
29-29 by the Regulatory Authority as above provided, the rates in force
29-30 when the suspended schedule was filed shall continue in force
29-31 unless the Regulatory Authority shall establish a temporary rate.
29-32 The Regulatory Authority shall give preference to the hearing and
29-33 decision of questions arising under this section over all other
29-34 questions pending before it and decide the same as speedily as
29-35 possible.
29-36 (e) If the 150-day period has been extended, as provided for
29-37 in Subsection (d) of this section, and the commission fails to make
29-38 its final determination of rates within 150 days from the date that
29-39 the proposed change otherwise would have gone into effect, the
29-40 utility concerned may put a changed rate, not to exceed the
29-41 proposed rate, into effect upon the filing with the regulatory
29-42 authority of a bond payable to the regulatory authority in an
29-43 amount and with sureties approved by the regulatory authority
29-44 conditioned upon refund and in a form approved by the regulatory
29-45 authority. The utility concerned shall refund or credit against
29-46 future bills all sums collected during the period of suspension in
29-47 excess of the rate finally ordered plus interest at the current
29-48 rate as finally determined by the regulatory authority.
29-49 (f) If, after hearing, the Regulatory Authority finds the
29-50 rates to be unreasonable or in any way in violation of any
29-51 provision of law, the Regulatory Authority shall determine the
29-52 level of rates to be charged or applied by the utility for the
29-53 service in question and shall fix the same by order to be served
29-54 upon the utility; these rates are thereafter to be observed until
29-55 changed, as provided by this Act.
29-56 (g)(1) A rate or tariff set by the commission may not
29-57 authorize a utility to automatically adjust and pass through to its
29-58 customers changes in fuel or other costs of the utility.
29-59 (2)(A) Any revision of a utility's billings to its
29-60 customers to allow for the recovery of additional fuel costs may be
29-61 made only upon a public hearing and order of the commission.
29-62 (B) The commission may consider any evidence
29-63 that is appropriate and in the public interest at such hearing.
29-64 (C) A proceeding under this subsection may not
29-65 be considered a rate case under this section.
29-66 (3) The commission may, after a hearing, grant interim
29-67 relief for fuel cost increases that are the result of unusual and
29-68 emergency circumstances or conditions.
29-69 (4)(A) This subsection applies only to increases or
29-70 decreases in the cost of purchased electricity which have been:
30-1 (i) accepted by a federal regulatory
30-2 authority; or
30-3 (ii) approved after a hearing by the
30-4 commission.
30-5 (B) The commission may utilize any appropriate
30-6 method to provide for the adjustment of the cost of purchased
30-7 electricity upon such terms and conditions as the commission may
30-8 determine. Such purchased electricity costs may be recovered
30-9 concurrently with the effective date of the changed costs to the
30-10 purchasing utility or as soon thereafter as is reasonably
30-11 practical.
30-12 (old Subsec. (h) deleted)
30-13 (h) The commission on its own motion or on the petition of a
30-14 utility shall provide for the adjustment of a utility's billing to
30-15 reflect any increase or decrease of tax liability of the utility to
30-16 the state resulting from House Bill 11, Acts of the 72nd
30-17 Legislature, 1st Called Session, 1991, and that is attributable to
30-18 activities that are subject to the jurisdiction of the commission.
30-19 Any adjustment to billings under this section must be apportioned
30-20 pro-rata to all types and classes of service provided by the
30-21 utility and is effective only until the commission alters the
30-22 adjustment as provided by this subsection or enters an order for
30-23 the utility under this section or Section 2.211 of this Act. The
30-24 adjustment of billings must be made effective at the same time as
30-25 the increase or decrease of tax liability resulting from House Bill
30-26 11, Acts of the 72nd Legislature, 1st Called Session, 1991, or as
30-27 soon after as is reasonably practical. Each year after any
30-28 original adjustment, the commission shall review the utility's
30-29 increase or decrease of tax liability resulting from House Bill 11,
30-30 Acts of the 72nd Legislature, 1st Called Session, 1991, and alter
30-31 the adjustment to reflect the increase or decrease. A proceeding
30-32 under this subsection is not a rate case under this section. (Sec.
30-33 43)
30-34 Sec. 2.213. RATES FOR AREAS NOT WITHIN MUNICIPALITY.
30-35 Electric utility rates for areas not within any municipality may
30-36 not exceed without commission approval 115 percent of the average
30-37 of all rates for similar services of all municipalities served by
30-38 the same utility within the same county. (Sec. 44)
30-39 Sec. 2.214. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
30-40 OR SERVICES. An electric utility may not, as to rates or services,
30-41 make or grant any unreasonable preference or advantage to any
30-42 corporation or person within any classification, or subject any
30-43 corporation or person within any classification to any unreasonable
30-44 prejudice or disadvantage. An electric utility may not establish
30-45 and maintain any unreasonable differences as to rates of service
30-46 either as between localities or as between classes of service.
30-47 (Sec. 45)
30-48 Sec. 2.215. EQUALITY OF RATES AND SERVICES. (a) An
30-49 electric utility may not, directly or indirectly, by any device
30-50 whatsoever or in any manner, charge, demand, collect, or receive
30-51 from any person a greater or less compensation for any service
30-52 rendered or to be rendered by the utility than that prescribed in
30-53 the schedule of rates of the electric utility applicable thereto
30-54 when filed in the manner provided in this Act, nor may any person
30-55 knowingly receive or accept any service from an electric utility
30-56 for a compensation greater or less than that prescribed in the
30-57 schedules.
30-58 (b) Nothing in this Act shall prevent a cooperative
30-59 corporation from returning to its members the whole, or any part
30-60 of, the net earnings resulting from its operations in proportion to
30-61 their purchases from or through the corporation. (Sec. 46)
30-62 Sec. 2.216. DISCRIMINATION; RESTRICTION ON COMPETITION. An
30-63 electric utility may not discriminate against any person or
30-64 corporation that sells or leases equipment or performs services in
30-65 competition with the electric utility, nor may any electric utility
30-66 engage in any other practice that tends to restrict or impair such
30-67 competition. (Sec. 47)
30-68 Sec. 2.217. PAYMENTS IN LIEU OF TAXES. Payments made in
30-69 lieu of taxes by an electric utility to the municipality by which
30-70 it is owned may not be considered an expense of operation for the
31-1 purpose of determining, fixing, or regulating the rates to be
31-2 charged for the provision of utility service to a school district
31-3 or hospital district. Rates received by an electric utility from a
31-4 school district or hospital district may not be used to make or to
31-5 cover the cost of making payments in lieu of taxes to the
31-6 municipality by which the electric utility is owned. (Sec. 48)
31-7 SUBTITLE F. CERTIFICATES OF CONVENIENCE AND NECESSITY
31-8 Sec. 2.251. DEFINITION. For the purposes of this subtitle
31-9 only, "retail electric utility" means any person, corporation,
31-10 municipality, political subdivision or agency, or cooperative
31-11 corporation, now or hereafter operating, maintaining, or
31-12 controlling in Texas facilities for providing retail electric
31-13 utility service. (Sec. 49--Subsec. (b) deleted)
31-14 Sec. 2.252. CERTIFICATE REQUIRED. (a) An electric utility
31-15 may not in any way render service directly or indirectly to the
31-16 public under any franchise or permit without first having obtained
31-17 from the commission a certificate that the present or future public
31-18 convenience and necessity require or will require such
31-19 installation, operation, or extension.
31-20 (b) Except as otherwise provided in this subtitle, a retail
31-21 electric utility may not furnish, make available, render, or extend
31-22 retail electric utility service to any area to which retail utility
31-23 service is being lawfully furnished by another retail electric
31-24 utility without first having obtained a certificate of public
31-25 convenience and necessity that includes the area in which the
31-26 consuming facility is located. (Sec. 50)
31-27 Sec. 2.253. EXCEPTIONS FOR EXTENSION OF SERVICE. (a) An
31-28 electric utility is not required to secure a certificate of public
31-29 convenience and necessity for:
31-30 (1) an extension into territory contiguous to that
31-31 already served by it and not receiving similar service from another
31-32 electric utility and not within the area of public convenience and
31-33 necessity of another utility of the same kind;
31-34 (2) an extension within or to territory already served
31-35 by it or to be served by it under a certificate of public
31-36 convenience and necessity; or
31-37 (3) operation, extension, or service in progress on
31-38 September 1, 1975.
31-39 (b) Any extensions allowed by Subsection (a) of this section
31-40 shall be limited to devices for interconnection of existing
31-41 facilities or devices used solely for transmitting electric utility
31-42 services from existing facilities to customers of retail utility
31-43 service. (Sec. 51)
31-44 Sec. 2.254. APPLICATION; MAPS; EVIDENCE OF CONSENT. (a) An
31-45 electric utility shall submit to the commission an application to
31-46 obtain a certificate of public convenience and necessity or an
31-47 amendment thereof.
31-48 (b) On or before 90 days after September 1, 1975, or at a
31-49 later date on request in writing by an electric utility when good
31-50 cause is shown, or at such later dates as the commission may order,
31-51 each electric utility shall file with the commission a map or maps
31-52 showing all its facilities and illustrating separately facilities
31-53 for generation, transmission, and distribution of its services.
31-54 (c) Each applicant for a certificate shall file with the
31-55 commission such evidence as is required by the commission to show
31-56 that the applicant has received the required consent, franchise, or
31-57 permit of the proper municipality or other public authority. (Sec.
31-58 52)
31-59 (Sec. 53 deleted)
31-60 Sec. 2.255. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS
31-61 CONSIDERED; FILING OF NOTICE OF INTENT BY ELECTRIC UTILITIES; TIME
31-62 FOR APPROVAL OR DENIAL OF NEW TRANSMISSION FACILITIES. (a) When
31-63 an application for a certificate of public convenience and
31-64 necessity is filed, the commission shall give notice of such
31-65 application to interested parties and, if requested, shall fix a
31-66 time and place for a hearing and give notice of the hearing. Any
31-67 person interested in the application may intervene at the hearing.
31-68 (b) The commission may grant applications and issue
31-69 certificates only if the commission finds that the certificate is
31-70 necessary for the service, accommodation, convenience, or safety of
32-1 the public. The commission may issue the certificate as prayed
32-2 for, or refuse to issue it, or issue it for the construction of a
32-3 portion only of the contemplated system or facility or extension
32-4 thereof, or for the partial exercise only of the right or
32-5 privilege.
32-6 (c) Certificates of convenience and necessity shall be
32-7 granted on a nondiscriminatory basis after consideration by the
32-8 commission of the adequacy of existing service, the need for
32-9 additional service, the effect of the granting of a certificate on
32-10 the recipient of the certificate and on any electric utility of the
32-11 same kind already serving the proximate area, and on such factors
32-12 as community values, recreational and park areas, historical and
32-13 aesthetic values, environmental integrity, and the probable
32-14 improvement of service or lowering of cost to consumers in such
32-15 area resulting from the granting of such certificate.
32-16 (d) In addition to the requirements of this section, an
32-17 electric utility applying for certificate of convenience and
32-18 necessity for a new generating plant must first file a notice of
32-19 intent to file an application for certification.
32-20 (1) The notice of intent shall set out alternative
32-21 methods considered to help meet the electrical needs, related
32-22 electrical facilities, and the advantages and disadvantages of the
32-23 alternatives. In addition, the notice shall indicate compatibility
32-24 with the most recent long-term forecast provided in this Act.
32-25 (2) The commission shall conduct a hearing on the
32-26 notice of intent to determine the appropriateness of the proposed
32-27 generating plant as compared to the alternatives and shall issue a
32-28 report on its findings. In conjunction with the issuance of the
32-29 report, the commission shall render a decision approving or
32-30 disapproving the notice. Such decision shall be rendered within
32-31 180 days from the date of filing the notice of intent.
32-32 (e) On approval of the notice of intent, a utility may apply
32-33 for certification for a generating plant, site, and site facilities
32-34 not later than 12 months before construction is to commence.
32-35 (1) The application for certification shall contain
32-36 such information as the commission may require to justify the
32-37 proposed generating plant, site, and site facilities and to allow a
32-38 determination showing compatibility with the most recent forecast.
32-39 (2) Certificates of convenience and necessity shall be
32-40 granted on a nondiscriminatory basis if the commission finds that
32-41 the proposed new plant is required under the service area forecast,
32-42 that it is the best and most economical choice of technology for
32-43 that service area as compatible with the commission's forecast, and
32-44 that conservation and alternative energy sources cannot meet the
32-45 need.
32-46 (f) If the application for a certificate of convenience and
32-47 necessity involves new transmission facilities, the commission
32-48 shall approve or deny the application within one year after the
32-49 date the application is filed. If the commission does not approve
32-50 or deny the application before this deadline, any party may seek a
32-51 writ of mandamus in a district court of Travis County to compel the
32-52 commission to make a decision on the application. (Sec. 54)
32-53 Sec. 2.256. AREA INCLUDED WITHIN CITY, TOWN OR VILLAGE.
32-54 (a) If an area has been or shall be included within the boundaries
32-55 of a city, town, or village as the result of annexation,
32-56 incorporation, or otherwise, all electric utilities certified or
32-57 entitled to certification under this Act to provide service or
32-58 operate facilities in such area prior to the inclusion shall have
32-59 the right to continue and extend service in its area of public
32-60 convenience and necessity within the annexed or incorporated area,
32-61 pursuant to the rights granted by its certificate and this Act.
32-62 (b) Notwithstanding any other provision of law, an electric
32-63 utility shall have the right to continue and extend service within
32-64 its area of public convenience and necessity and to utilize the
32-65 roads, streets, highways, alleys, and public property for the
32-66 purpose of furnishing such retail utility service, subject to the
32-67 authority of the governing body of a municipality to require any
32-68 electric utility, at its own expense, to relocate its facilities to
32-69 permit the widening or straightening of streets by giving to the
32-70 electric utility 30 days' notice and specifying the new location
33-1 for the facilities along the right-of-way of the street or streets.
33-2 (c) This section may not be construed as limiting the power
33-3 of cities, towns, and villages to incorporate or extend their
33-4 boundaries by annexation, nor may this section be construed as
33-5 prohibiting any city or town from levying taxes and other special
33-6 charges for the use of the streets as are authorized by Section
33-7 182.025, Tax Code.
33-8 (d) Where a municipal corporation offers retail electric
33-9 utility service in a city of more than 135,000 population located
33-10 in a county of more than 1,500,000 population according to the last
33-11 federal decennial census, the commission shall singly certificate
33-12 areas within the corporate limits of such municipality where more
33-13 than one electric utility provides electric utility service within
33-14 such corporate limits. In singly certificating such areas, the
33-15 commission shall preserve the respective electric utilities' rights
33-16 to serve the customers such electric utilities are serving on June
33-17 17, 1983. Provided, however, the foregoing does not apply to
33-18 customers served, at least partially, by a nominal 69,000 volts
33-19 system, who have given notice of termination to the utility
33-20 servicing that customer prior to June 17, 1983. (Sec. 55)
33-21 Sec. 2.257. CONTRACTS VALID AND ENFORCEABLE. Contracts
33-22 between retail electric utilities designating areas to be served
33-23 and customers to be served by those utilities, when approved by the
33-24 commission, shall be valid and enforceable and shall be
33-25 incorporated into the appropriate areas of public convenience and
33-26 necessity. (Sec. 56)
33-27 Sec. 2.258. PRELIMINARY ORDER FOR CERTIFICATE. If an
33-28 electric utility desires to exercise a right or privilege under a
33-29 franchise or permit which it contemplates securing but which has
33-30 not as yet been granted to it, such electric utility may apply to
33-31 the commission for an order preliminary to the issuance of the
33-32 certificate. The commission may thereupon make an order declaring
33-33 that it will, on application, under such rules as it prescribes,
33-34 issue the desired certificate on such terms and conditions as it
33-35 designates, after the electric utility has obtained the
33-36 contemplated franchise or permit. On presentation to the
33-37 commission of evidence satisfactory to it that the franchise or
33-38 permit has been secured by the electric utility, the commission
33-39 shall issue the certificate. (Sec. 57)
33-40 Sec. 2.259. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE,
33-41 REDUCTION OR IMPAIRMENT OF SERVICE. (a) Except as provided by
33-42 this section or Section 2.260 of this Act, the holder of any
33-43 certificate of public convenience and necessity shall serve every
33-44 consumer within its certified area and shall render continuous and
33-45 adequate service within the area or areas.
33-46 (b) Unless the commission issues a certificate that neither
33-47 the present or future convenience and necessity will be adversely
33-48 affected, the holder of a certificate may not discontinue, reduce,
33-49 or impair service to a certified service area or part thereof
33-50 except for:
33-51 (1) nonpayment of charges;
33-52 (2) nonuse; or
33-53 (3) other similar reasons in the usual course of
33-54 business.
33-55 (c) Any discontinuance, reduction, or impairment of service,
33-56 whether with or without approval of the commission, shall be in
33-57 conformity with and subject to such conditions, restrictions, and
33-58 limitations as the commission shall prescribe. (Sec. 58)
33-59 Sec. 2.260. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
33-60 holder of a certificate of public convenience and necessity shall
33-61 refuse to serve a customer within its certified area if the holder
33-62 of the certificate is prohibited from providing the service under
33-63 Section 212.012 or 232.0047, Local Government Code. (Sec. 58A)
33-64 Sec. 2.261. SALE, ASSIGNMENT OR LEASE OF CERTIFICATE. If
33-65 the commission determines that a purchaser, assignee, or lessee is
33-66 capable of rendering adequate service, an electric utility may
33-67 sell, assign, or lease a certificate of public convenience and
33-68 necessity or any rights obtained under the certificate. The sale,
33-69 assignment, or lease shall be on the conditions prescribed by the
33-70 commission. (Sec. 59)
34-1 Sec. 2.262. INTERFERENCE WITH OTHER UTILITY. If an electric
34-2 utility in constructing or extending its lines, plant, or system
34-3 interferes or attempts to interfere with the operation of a line,
34-4 plant, or system of any other utility, the commission may issue an
34-5 order prohibiting the construction or extension or prescribing
34-6 terms and conditions for locating the lines, plants, or systems
34-7 affected. (Sec. 60)
34-8 Sec. 2.263. IMPROVEMENTS IN SERVICE; INTERCONNECTING
34-9 SERVICE. After notice and hearing, the commission may:
34-10 (1) order an electric utility to provide specified
34-11 improvements in its service in a defined area, if service in such
34-12 area is inadequate or is substantially inferior to service in a
34-13 comparable area and it is reasonable to require the company to
34-14 provide such improved service; and
34-15 (2) order two or more electric utilities to establish
34-16 specified facilities for the interconnecting service. (Sec. 61
34-17 (part))
34-18 Sec. 2.264. REVOCATION OR AMENDMENT OF CERTIFICATE.
34-19 (a) The commission at any time after notice and hearing may revoke
34-20 or amend any certificate of convenience and necessity if it finds
34-21 that the certificate holder has never provided or is no longer
34-22 providing service in the area, or part of the area, covered by the
34-23 certificate.
34-24 (b) When the certificate of any electric utility is revoked
34-25 or amended, the commission may require one or more electric
34-26 utilities to provide service in the area in question. (Sec. 62)
34-27 TITLE III. TELECOMMUNICATIONS UTILITIES
34-28 SUBTITLE A. GENERAL PROVISIONS
34-29 Sec. 3.001. DEFINITIONS. In this title:
34-30 (1) "Dominant carrier" means:
34-31 (A) a provider of any particular communication
34-32 service which is provided in whole or in part over a telephone
34-33 system who as to such service has sufficient market power in a
34-34 telecommunications market as determined by the commission to enable
34-35 such provider to control prices in a manner adverse to the public
34-36 interest for such service in such market; and
34-37 (B) any provider of local exchange telephone
34-38 service within a certificated exchange area as to such service. A
34-39 telecommunications market shall be statewide until January 1, 1985.
34-40 After this date the commission may, if it determines that the
34-41 public interest will be served, establish separate markets within
34-42 the state. Prior to January 1, 1985, the commission shall hold
34-43 such hearings and require such evidence as is necessary to carry
34-44 out the public purpose of this Act and to determine the need and
34-45 effect of establishing separate markets. Any such provider
34-46 determined to be a dominant carrier as to a particular
34-47 telecommunications service in a market may not be presumed to be a
34-48 dominant carrier of a different telecommunications service in that
34-49 market. The term does not include an interexchange carrier that is
34-50 not a certificated local exchange company, with respect to
34-51 interexchange services. (Sec. 3(c) (part))
34-52 (2) "Local exchange company" means a
34-53 telecommunications utility certificated to provide local exchange
34-54 service within the state. (Sec. 3(v))
34-55 (3) "Telecommunications utility" or "utility" means
34-56 any person, corporation, river authority, cooperative corporation,
34-57 or any combination thereof, other than a municipal corporation, or
34-58 their lessees, trustees, and receivers, now or hereafter owning or
34-59 operating for compensation in this state equipment or facilities
34-60 for the conveyance, transmission, or reception of communications
34-61 over a telephone system as a dominant carrier. A person or
34-62 corporation not otherwise a telecommunications utility within the
34-63 meaning of this Act may not be deemed such solely because of the
34-64 furnishing or furnishing and maintenance of a private system or the
34-65 manufacture, distribution, installation, or maintenance of customer
34-66 premise communications equipment and accessories. Nothing in this
34-67 Act shall be construed to apply to telegraph services, television
34-68 stations, radio stations, community antenna television services, or
34-69 radio-telephone services that may be authorized under the Public
34-70 Mobile Radio Services rules of the Federal Communications
35-1 Commission, other than such radio-telephone services provided by
35-2 wire-line telephone companies under the Domestic Public Land Mobile
35-3 Radio Service and Rural Radio Service rules of the Federal
35-4 Communications Commission. Interexchange telecommunications
35-5 carriers (including resellers of interexchange telecommunications
35-6 services), specialized communications common carriers, other
35-7 resellers of communications, other communications carriers who
35-8 convey, transmit, or receive communications in whole or in part
35-9 over a telephone system, and providers of operator services as
35-10 defined in Section 3.052(a) of this Act (except that subscribers to
35-11 customer-owned pay telephone service may not be deemed to be
35-12 telecommunications utilities) are also telecommunications
35-13 utilities, but the commission's regulatory authority as to them is
35-14 only as hereinafter defined. The term "telecommunications utility"
35-15 or "utility" does not include any person or corporation not
35-16 otherwise a telecommunications utility that furnishes the services
35-17 or commodity described in this section only to itself, its
35-18 employees, or tenants as an incident of such employee service or
35-19 tenancy, when such service or commodity is not resold to or used by
35-20 others. (Sec. 3(c) (part))
35-21 (4) "Separation" means the division of plant,
35-22 revenues, expenses, taxes, and reserves, applicable to exchange or
35-23 local service where such items are used in common for providing
35-24 telecommunications utility service to both local exchange service
35-25 and other service, such as interstate or intrastate toll service.
35-26 (Sec. 3(r))
35-27 SUBTITLE B. JURISDICTION OF COMMISSION
35-28 Sec. 3.051. TELECOMMUNICATIONS UTILITIES; REGULATION OF
35-29 COMPETITION. (a) It is the policy of this state to protect the
35-30 public interest in having adequate and efficient telecommunications
35-31 service available to all citizens of the state at just, fair, and
35-32 reasonable rates. The legislature finds that the
35-33 telecommunications industry through technical advancements, federal
35-34 judicial and administrative actions, and the formulation of new
35-35 telecommunications enterprises has become and will continue to be
35-36 in many and growing areas a competitive industry which does not
35-37 lend itself to traditional public utility regulatory rules,
35-38 policies, and principles; and that therefore, the public interest
35-39 requires that new rules, policies, and principles be formulated and
35-40 applied to protect the public interest and to provide equal
35-41 opportunity to all telecommunications utilities in a competitive
35-42 marketplace. It is the purpose of this section to grant to the
35-43 commission the authority and the power under this Act to carry out
35-44 the public policy herein stated.
35-45 (b) Subject to the limitations imposed in this Act, and for
35-46 the purpose of carrying out the public policy above stated and of
35-47 regulating rates, operations, and services so that such rates may
35-48 be just, fair, and reasonable, and the services adequate and
35-49 efficient, the commission shall have exclusive original
35-50 jurisdiction over the business and property of all
35-51 telecommunications utilities in this state. In the exercise of its
35-52 jurisdiction to regulate the rates, operations, and services of a
35-53 telecommunications utility providing service in a municipality on
35-54 the state line adjacent to a municipality in an adjoining state,
35-55 the commission may cooperate with the utility regulatory commission
35-56 of the adjoining state or the federal government and may hold joint
35-57 hearings and make joint investigations with any of those
35-58 commissions.
35-59 (c) Except as provided by Subsections (l) and (m) of this
35-60 section and Section 3.052 of this Act, the commission shall only
35-61 have the following jurisdiction over all telecommunications
35-62 utilities who are not dominant carriers:
35-63 (1) to require registration as provided in Subsection
35-64 (d) of this section;
35-65 (2) to conduct such investigations as are necessary to
35-66 determine the existence, impact, and scope of competition in the
35-67 telecommunications industry, including identifying dominant
35-68 carriers in the local exchange and intralata interexchange
35-69 telecommunications industry and defining the telecommunications
35-70 market or markets, and in connection therewith may call and hold
36-1 hearings, issue subpoenas to compel the attendance of witnesses and
36-2 the production of papers and documents, and make findings of fact
36-3 and decisions with respect to administering the provisions of this
36-4 Act or the rules, orders, and other actions of the commission;
36-5 (3) to require the filing of such reports as the
36-6 commission may direct from time to time;
36-7 (4) to require the maintenance of statewide average
36-8 rates or prices of telecommunications service;
36-9 (5) to require that every local exchange area have
36-10 access to interexchange telecommunications service, except that an
36-11 interexchange telecommunications carrier must be allowed to
36-12 discontinue service to a local exchange area if comparable service
36-13 is available in the area and the discontinuance is not contrary to
36-14 the public interest. This section does not authorize the
36-15 commission to require an interexchange telecommunications carrier
36-16 that has not provided services to a local exchange area during the
36-17 previous 12 months and that has never provided services to that
36-18 same local exchange area for a cumulative period of one year at any
36-19 time in the past to initiate services to that local exchange area;
36-20 and
36-21 (6) to require the quality of interexchange
36-22 telecommunications service provided in each exchange to be adequate
36-23 to protect the public interest and the interests of customers of
36-24 that exchange if the commission determines that service to a local
36-25 exchange has deteriorated to the point that long distance service
36-26 is not reliable.
36-27 (d) All providers of communications service described in
36-28 Subsection (c) of this section who commence such service to the
36-29 public shall register with the commission within 30 days of
36-30 commencing service. Such registration shall be accomplished by
36-31 filing with the commission a description of the location and type
36-32 of service provided, the cost to the public of such service, and
36-33 such other registration information as the commission may direct.
36-34 Notwithstanding any other provision of this Act, an interexchange
36-35 telecommunications carrier doing business in this state shall
36-36 continue to maintain on file with the commission tariffs or lists
36-37 governing the terms of providing its services.
36-38 (e)(1) For the purpose of carrying out the public policy
36-39 stated in Subsection (a) of this section and any other section of
36-40 this Act notwithstanding, the commission is granted all necessary
36-41 power and authority under this Act to promulgate rules and
36-42 establish procedures applicable to local exchange companies for
36-43 determining the level of competition in specific telecommunications
36-44 markets and submarkets and providing appropriate regulatory
36-45 treatment to allow local exchange companies to respond to
36-46 significant competitive challenges. Nothing in this section is
36-47 intended to change the burden of proof of the local exchange
36-48 company under Sections 3.202, 3.203, 3.204, 3.205, 3.206, 3.207,
36-49 and 3.208 of this Act.
36-50 (2) In determining the level of competition in a
36-51 specific market or submarket, the commission shall hold an
36-52 evidentiary hearing to consider the following:
36-53 (A) the number and size of telecommunications
36-54 utilities or other persons providing the same, equivalent, or
36-55 substitutable service;
36-56 (B) the extent to which the same, equivalent, or
36-57 substitutable service is available;
36-58 (C) the ability of customers to obtain the same,
36-59 equivalent, or substitutable services at comparable rates, terms,
36-60 and conditions;
36-61 (D) the ability of telecommunications utilities
36-62 or other persons to make the same, equivalent, or substitutable
36-63 service readily available at comparable rates, terms, and
36-64 conditions;
36-65 (E) the existence of any significant barrier to
36-66 the entry or exit of a provider of the service; and
36-67 (F) other relevant information deemed
36-68 appropriate.
36-69 (3) The regulatory treatments which the commission may
36-70 implement include but are not limited to:
37-1 (A) approval of a range of rates for a specific
37-2 service;
37-3 (B) approval of customer-specific contracts for
37-4 a specific service; provided, however, that the commission shall
37-5 approve a contract to provide central office based PBX-type
37-6 services for systems of 200 stations or more, billing and
37-7 collection services, high-speed private line services of 1.544
37-8 megabits or greater, and customized services, provided that the
37-9 contract is filed at least 30 days before initiation of the service
37-10 contracted for; that the contract is accompanied with an affidavit
37-11 from the person or entity contracting for the telecommunications
37-12 service stating that he considered the acquisition of the same,
37-13 equivalent, or substitutable services by bid or quotation from a
37-14 source other than the local exchange company; that the local
37-15 exchange company is recovering the appropriate costs of providing
37-16 the services; and that approval of the contract is in the public
37-17 interest. The contract shall be approved or denied within 30 days
37-18 after filing, unless the commission for good cause extends the
37-19 effective date for an additional 35 days; and
37-20 (C) the detariffing of rates.
37-21 (f) Moreover, in order to encourage the rapid introduction
37-22 of new or experimental services or promotional rates, the
37-23 commission shall promulgate rules and establish procedures which
37-24 allow the expedited introduction of, the establishment and
37-25 adjustment of rates for, and withdrawal of such services, including
37-26 requests for such services made to the commission by the governing
37-27 body of a municipality served by a local exchange company having
37-28 more than 500,000 access lines throughout the state. Rates
37-29 established or adjusted at the request of a municipality may not
37-30 result in higher rates for ratepayers outside the boundaries of the
37-31 municipality and may not include any rates for local exchange
37-32 company interexchange services or interexchange carrier access
37-33 service.
37-34 (g) In promulgating new rules and establishing the
37-35 procedures contemplated in Subsections (e) and (f) of this section,
37-36 the commission shall seek to balance the public interest in a
37-37 technologically advanced telecommunications system providing a wide
37-38 range of new and innovative services with traditional regulatory
37-39 concerns for preserving universal service, prohibiting
37-40 anticompetitive practices, and preventing the subsidization of
37-41 competitive services with revenues from regulated monopoly
37-42 services. The commission shall promulgate these rules and
37-43 establish these procedures so as to incorporate an appropriate mix
37-44 of regulatory and market mechanisms reflecting the level and nature
37-45 of competition in the marketplace. Rates established under
37-46 Subsections (e) and (f) of this section may not be:
37-47 (1) unreasonably preferential, prejudicial, or
37-48 discriminatory;
37-49 (2) subsidized either directly or indirectly by
37-50 regulated monopoly services; or
37-51 (3) predatory or anticompetitive.
37-52 (h) The commission shall initiate a rulemaking proceeding
37-53 and take public comment and promulgate rules which prescribe the
37-54 standards necessary to ensure that all rates set under the
37-55 provisions of this section cover their appropriate costs as
37-56 determined by the commission. Until such rules are promulgated,
37-57 the commission shall use a costing methodology that is in the
37-58 public interest in determining whether the rates set under the
37-59 provisions of this section cover their appropriate costs.
37-60 (i) The commission is granted all necessary power and
37-61 authority to prescribe and collect fees and assessments from local
37-62 exchange companies necessary to recover the commission's and the
37-63 office's costs of activities carried out and services provided
37-64 under this subsection and Subsections (e), (f), (g), (h), (j), and
37-65 (k) of this section.
37-66 (j) Subsections (e) and (f) of this section are not
37-67 applicable to basic local exchange service, including local
37-68 measured service. Paragraph (B) of Subdivision (3) of Subsection
37-69 (e) of this section is not applicable to message telecommunications
37-70 services, switched access services for interexchange carriers, or
38-1 wide area telecommunications service. A local exchange company may
38-2 not price similar services provided pursuant to contracts under
38-3 Paragraph (B) of Subdivision (3) of Subsection (e) of this section
38-4 in an unreasonably discriminatory manner. For purposes of this
38-5 section, similar services shall be defined as those services which
38-6 are provided at or near the same point in time, which have the same
38-7 characteristics and which are provided under the same or similar
38-8 circumstances.
38-9 (k) Before January 15 of each odd-numbered year, the
38-10 commission shall report to the legislature on the scope of
38-11 competition in regulated telecommunications markets and the impact
38-12 of competition on customers in both competitive and noncompetitive
38-13 markets, with a specific focus on rural markets. The report shall
38-14 include an assessment of the impact of competition on the rates and
38-15 availability of telecommunications services for residential and
38-16 business customers and shall specifically address any effects on
38-17 universal service. The report shall provide a summary of
38-18 commission actions over the preceding two years which reflect
38-19 changes in the scope of competition in regulated telecommunications
38-20 markets. The report shall also include recommendations to the
38-21 legislature for further legislation which the commission finds
38-22 appropriate to promote the public interest in the context of a
38-23 partially competitive telecommunications market.
38-24 (l) Notwithstanding any other provision of this Act, the
38-25 commission may enter such orders as may be necessary to protect the
38-26 public interest, including the imposition on any specific service
38-27 or services of its full regulatory authority under this subtitle,
38-28 Subtitles C-F of this title, and Subtitles D-I of Title I of this
38-29 Act, if the commission upon complaint from another interexchange
38-30 telecommunications carrier finds by a preponderance of the evidence
38-31 upon notice and hearing that an interexchange telecommunications
38-32 carrier has engaged in predatory pricing or attempted to engage in
38-33 predatory pricing.
38-34 (m) Notwithstanding any other provision of this Act, the
38-35 commission may enter such orders as may be necessary to protect the
38-36 public interest if the commission finds upon notice and hearing
38-37 that an interexchange telecommunications carrier has:
38-38 (1) failed to maintain statewide average rates;
38-39 (2) abandoned interexchange message telecommunications
38-40 service to a local exchange area in a manner contrary to the public
38-41 interest; or
38-42 (3) engaged in a pattern of preferential or
38-43 discriminatory activities prohibited by Sections 3.213 and 3.215 of
38-44 this Act, except that nothing in this Act shall prohibit volume
38-45 discounts or other discounts based on reasonable business purposes.
38-46 (n) In any proceeding before the commission alleging conduct
38-47 or activities by an interexchange telecommunications carrier
38-48 against another interexchange carrier in contravention of
38-49 Subsections (l), (m), and (o) of this section, the burden of proof
38-50 shall be upon the complaining interexchange telecommunications
38-51 carrier; however, in such proceedings brought by customers or their
38-52 representatives who are not themselves interexchange
38-53 telecommunications carriers or in such proceedings initiated by the
38-54 commission, the burden of proof shall be upon the respondent
38-55 interexchange telecommunications carrier. However, if the
38-56 commission finds it to be in the public interest, the commission
38-57 may impose the burden of proof in such proceedings on the
38-58 complaining party.
38-59 (o) The commission shall have the authority to require that
38-60 a service provided by an interexchange telecommunications carrier
38-61 described in Subsection (c) of this section be made available in an
38-62 exchange served by the carrier within a reasonable time after
38-63 receipt of a bona fide request for such service in that exchange,
38-64 subject to the ability of the local exchange company to provide the
38-65 required access or other service. A carrier may not be required to
38-66 extend a service to an area if provision of that service would
38-67 impose, after consideration of the public interest to be served,
38-68 unreasonable costs upon or require unreasonable investments by the
38-69 interexchange telecommunications carrier. The commission may
38-70 require such information from interexchange carriers and local
39-1 exchange carriers as may be necessary to enforce this provision.
39-2 (p) The commission may exempt from any requirement of this
39-3 section an interexchange telecommunications carrier that the
39-4 commission determines does not have a significant effect on the
39-5 public interest, and it may exempt any interexchange carrier which
39-6 solely relies on the facilities of others to complete long distance
39-7 calls if the commission deems this action to be in the public
39-8 interest.
39-9 (q) Requirements imposed by Subsections (c), (d), (k), (l),
39-10 (m), (n), (o), and (p) of this section on an interexchange
39-11 telecommunications carrier shall apply to nondominant carriers and
39-12 shall constitute the minimum requirements to be imposed by the
39-13 commission for any dominant carrier. (Sec. 18--old Subsec. (p)
39-14 deleted)
39-15 Sec. 3.052. OPERATOR SERVICE; REGULATION AND DISCLOSURE OF
39-16 INFORMATION. (a) In this section "operator service" means any
39-17 service using live operator or automated operator functions for the
39-18 handling of telephone service such as toll calling via collect,
39-19 third number billing, and calling card services. Calls for which
39-20 the called party has arranged to be billed (800 service) are not
39-21 considered operator services.
39-22 (b) Prior to the connection of each call the operator
39-23 service provider shall:
39-24 (1) announce the provider's name; and
39-25 (2) quote, at the caller's request, the rate and any
39-26 other fees or surcharges applicable to the call and charged by the
39-27 provider.
39-28 (c) An operator service provider shall furnish each entity
39-29 with which it contracts to provide operator service a sticker,
39-30 card, or other form of information approved by the commission for
39-31 each telephone that has access to the service and is intended to be
39-32 utilized by the public, unless the owner of the telephone has
39-33 received approval from the commission for an alternative form of
39-34 information. The information must state the provider's name, that
39-35 the operator service provider will provide rate information on the
39-36 caller's request, that the caller will be informed how to access
39-37 the local exchange company operator on request, and that any
39-38 complaint about the service may be made to the provider or the
39-39 commission at the designated telephone number. The operator
39-40 service provider shall require by contract that the entity
39-41 receiving the information display it on or near each of the
39-42 telephones that has access to the service and is intended for use
39-43 by the public.
39-44 (d) An operator service provider must, on request, inform
39-45 the caller how to access the operator for the local exchange
39-46 company serving the exchange from which the call is made. A charge
39-47 may not be made for this information.
39-48 (e) The commission shall adopt rules requiring an operator
39-49 service provider to include in its contract with each entity
39-50 through which it provides operator service a requirement that the
39-51 telephones subscribed to its services shall allow access to the
39-52 local exchange carrier operator serving the exchange from which the
39-53 call is made and to other telecommunications utilities; but in
39-54 order to prevent fraudulent use of its services, an operator
39-55 service provider and individual entities through which it provides
39-56 operator services may block access if either obtains a waiver for
39-57 this purpose from the commission or the Federal Communications
39-58 Commission. The procedure and criteria for obtaining a waiver from
39-59 the commission shall be set forth in the commission's rules.
39-60 (f) The commission shall promulgate rules consistent with
39-61 the requirements of this section and any additional requirements
39-62 deemed necessary to protect the public interest by January 1, 1990.
39-63 All rules promulgated under this section shall be nondiscriminatory
39-64 and designed to promote competition that facilitates consumer
39-65 choice.
39-66 (g) The commission may investigate a complaint that it
39-67 receives concerning operator services. If the commission
39-68 determines that an operator service provider has violated or is
39-69 about to violate this section, the commission may, upon proper
39-70 notice and evidentiary hearing, take action to stop, correct, or
40-1 prevent the violation.
40-2 (h) Except as provided by Subsection (i) of this section,
40-3 this section applies only to a telecommunications utility that is
40-4 not a dominant carrier. The commission is granted all necessary
40-5 power and authority under this Act to promulgate rules and
40-6 establish procedures for the purposes of enforcing and implementing
40-7 this section.
40-8 (i) Each dominant or nondominant telecommunications utility
40-9 that provides operator service shall ensure that a caller may
40-10 access a live operator at the beginning of all live or mechanized
40-11 operator assisted calls through a method designed to be easily and
40-12 clearly understandable and accessible to the caller. A
40-13 telecommunications utility shall submit to the commission the
40-14 method by which the utility will provide access to a live operator
40-15 for review. This subsection applies regardless of the method by
40-16 which the telecommunications utility provides the operator service.
40-17 The requirements of this subsection do not apply to telephones
40-18 located in prison or jail facilities. (Sec. 18A)
40-19 SUBTITLE C. MUNICIPALITIES
40-20 Sec. 3.101. RATEMAKING PROCEEDINGS; ENGAGEMENT OF
40-21 CONSULTANTS, ACCOUNTANTS, AUDITORS, ATTORNEYS AND ENGINEERS;
40-22 STANDING. (a) The governing body of any municipality
40-23 participating in ratemaking proceedings shall have the right to
40-24 select and engage rate consultants, accountants, auditors,
40-25 attorneys, engineers, or any combination thereof, to conduct
40-26 investigations, present evidence, advise and represent the
40-27 governing body, and assist with litigation in telecommunications
40-28 utility ratemaking proceedings before the commission or in court.
40-29 The telecommunications utility engaged in such proceedings shall be
40-30 required to reimburse the governing body for the reasonable costs
40-31 of such services to the extent found reasonable by the commission.
40-32 (b) Municipalities shall have standing in all cases before
40-33 the commission regarding utilities serving within their corporate
40-34 limits subject to the right of the commission to determine standing
40-35 in cases involving retail service area disputes involving two or
40-36 more utilities and to consolidate municipalities on issues of
40-37 common interest and shall be entitled to judicial review of orders
40-38 regarding said proceedings in accordance with Section 1.301 of the
40-39 Act. (Sec. 24 (part))
40-40 Sec. 3.102. ASSISTANCE OF COMMISSION. The commission may
40-41 advise and assist municipalities upon request in connection with
40-42 questions and proceedings arising under this Act. Such assistance
40-43 may include aid to municipalities in connection with matters
40-44 pending before the commission or the courts, including making
40-45 members of the staff available as witnesses and otherwise providing
40-46 evidence to them. (Sec. 25)
40-47 SUBTITLE D. RATES AND SERVICES
40-48 Sec. 3.151. RATES; METHODS AND ACCOUNTS. (a) The
40-49 commission shall fix proper and adequate rates and methods of
40-50 depreciation, amortization, or depletion of the several classes of
40-51 property of each telecommunications utility, and shall require
40-52 every telecommunications utility to carry a proper and adequate
40-53 depreciation account in accordance with such rates and methods and
40-54 with such other rules and regulations as the commission prescribes.
40-55 Such rates, methods, and accounts shall be utilized uniformly and
40-56 consistently throughout the ratesetting and appeal proceedings.
40-57 (b) Every telecommunications utility shall keep separate
40-58 accounts to show all profits or losses resulting from the sale or
40-59 lease of appliances, fixtures, equipment, or other merchandise.
40-60 This profit or loss may not be taken into consideration by the
40-61 commission in arriving at any rate to be charged for service by any
40-62 such telecommunications utility, to the extent that such
40-63 merchandise is not integral to the provision of utility service.
40-64 (c) In determining the allocation of tax savings derived
40-65 from application of such methods as liberalized depreciation and
40-66 amortization and the investment tax credit, the commission shall
40-67 equitably balance the interests of present and future customers and
40-68 shall apportion such benefits between consumers and the utilities
40-69 accordingly. Where any portion of the investment tax credit has
40-70 been retained by a telecommunications utility, that same amount
41-1 shall be deducted from the original cost of the facilities or other
41-2 addition to the rate base to which the credit applied, to the
41-3 extent allowed by the Internal Revenue Code. (Secs. 27(b), (c),
41-4 (e))
41-5 Sec. 3.152. REPORTING OF ADVERTISING OR PUBLIC RELATIONS
41-6 EXPENSES. (a) The commission may require an annual reporting from
41-7 each utility company of all its expenditures for business gifts and
41-8 entertainment, and institutional, consumption-inducing and other
41-9 advertising or public relations expenses.
41-10 (b) The commission may not allow as costs or expenses for
41-11 ratemaking purposes any of these expenditures which the commission
41-12 determines not to be in the public interest.
41-13 (c) The cost of legislative advocacy expenses may not in any
41-14 case be allowed as costs or expenses for ratemaking purposes.
41-15 (d) Reasonable charitable or civic contributions may be
41-16 allowed not to exceed the amount approved by the commission. (Sec.
41-17 30)
41-18 Sec. 3.153. UNLAWFUL RATES, RULES AND REGULATIONS. It shall
41-19 be unlawful for any utility to charge, collect, or receive any rate
41-20 for utility service or to impose any rule or regulation other than
41-21 as herein provided. (Sec. 31)
41-22 Sec. 3.154. FILING SCHEDULE OF RATES, RULES AND REGULATIONS.
41-23 (a) Every telecommunications utility shall file with the
41-24 commission schedules showing all rates which are subject to the
41-25 jurisdiction of the commission and which are in force at the time
41-26 for any utility service, product, or commodity offered by the
41-27 utility.
41-28 (b) Every telecommunications utility shall file with, and as
41-29 a part of such schedules, all rules and regulations relating to or
41-30 affecting the rates, utility service, product, or commodity
41-31 furnished by such utility. (Sec. 32 (part))
41-32 Sec. 3.155. STANDARDS OF SERVICE. (a) Every
41-33 telecommunications utility shall furnish such service,
41-34 instrumentalities, and facilities as shall be safe, adequate,
41-35 efficient, and reasonable.
41-36 (b) The commission after reasonable notice and hearing had
41-37 on its own motion or on complaint, may:
41-38 (1) ascertain and fix just and reasonable standards,
41-39 classifications, regulations, or practices to be observed and
41-40 followed by any or all utilities with respect to the service to be
41-41 furnished;
41-42 (2) ascertain and fix adequate and reasonable
41-43 standards for the measurement of the quantity, quality, or other
41-44 condition pertaining to the supply of the service;
41-45 (3) prescribe reasonable regulations for the
41-46 examination and testing of the service and for the measurement
41-47 thereof; and
41-48 (4) establish or approve reasonable rules,
41-49 regulations, specifications, and standards to secure the accuracy
41-50 of all meters, instruments and equipment used for the measurement
41-51 of any service of any telecommunications utility.
41-52 (c) Any standards, classifications, regulations, or
41-53 practices now or hereafter observed or followed by any
41-54 telecommunications utility may be filed by it with the commission,
41-55 and the same shall continue in force until amended by the
41-56 telecommunications utility or until changed by the commission as
41-57 herein provided. (Sec. 35 (part))
41-58 SUBTITLE E. PROCEEDINGS BEFORE THE COMMISSION
41-59 Sec. 3.201. POWER TO INSURE COMPLIANCE; RATE REGULATION.
41-60 Subject to the provisions of this Act, the commission is hereby
41-61 vested with all authority and power of the State of Texas to insure
41-62 compliance with the obligations of telecommunications utilities in
41-63 this Act. To the extent otherwise provided by this Act, the
41-64 commission is empowered to fix and regulate rates of
41-65 telecommunications utilities, including rules and regulations for
41-66 determining the classification of customers and services and for
41-67 determining the applicability of rates. A rule or order of the
41-68 commission may not conflict with the rulings of any federal
41-69 regulatory body. (Sec. 37--changed to reflect different
41-70 regulation)
42-1 Sec. 3.202. JUST AND REASONABLE RATES. It shall be the duty
42-2 of the commission to insure that every rate made, demanded, or
42-3 received by any telecommunications utility, or by any two or more
42-4 utilities jointly, shall be just and reasonable. Rates may not be
42-5 unreasonably preferential, prejudicial, or discriminatory, but
42-6 shall be sufficient, equitable, and consistent in application to
42-7 each class of consumers. For ratemaking purposes, the commission
42-8 may treat two or more municipalities served by a telecommunications
42-9 utility as a single class wherever it deems such treatment to be
42-10 appropriate. Approval by the commission of a reduced rate for
42-11 service for a class of consumers eligible under Section 3.352 of
42-12 this Act for tel-assistance service does not constitute a violation
42-13 of this section. (Sec. 38)
42-14 Sec. 3.203. FIXING OVERALL REVENUES. (a) In fixing the
42-15 rates of a telecommunications utility the commission shall fix its
42-16 overall revenues at a level which will permit such utility a
42-17 reasonable opportunity to earn a reasonable return on its invested
42-18 capital used and useful in rendering service to the public over and
42-19 above its reasonable and necessary operating expenses.
42-20 (b) In fixing a reasonable return on invested capital, the
42-21 commission shall consider, in addition to other applicable factors,
42-22 the quality of the utility's services, the efficiency of the
42-23 utility's operations, and the quality of the utility's management.
42-24 (Sec. 39 (part))
42-25 Sec. 3.204. BURDEN OF PROOF. Except as hereafter provided,
42-26 in any proceeding involving any proposed change of rates, the
42-27 burden of proof to show that the proposed change, if proposed by
42-28 the utility, or that the existing rate, if it is proposed to reduce
42-29 the rate, is just and reasonable shall be on the telecommunications
42-30 utility. In any proceeding involving a local exchange company in
42-31 which the local exchange company's rate or rates are in issue, the
42-32 burden of proof that such rate or rates are just and reasonable
42-33 shall be on the local exchange company. (Sec. 40)
42-34 Sec. 3.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME.
42-35 The components of invested capital and net income shall be
42-36 determined according to Sections 3.206, 3.207, and 3.208. (Sec. 41
42-37 (part))
42-38 Sec. 3.206. INVESTED CAPITAL. (a) Utility rates shall be
42-39 based upon the original cost of property used by and useful to the
42-40 telecommunications utility in providing service including
42-41 construction work in progress at cost as recorded on the books of
42-42 the utility.
42-43 (b) The inclusion of construction work in progress is an
42-44 exceptional form of rate relief to be granted only upon the
42-45 demonstration by the utility that such inclusion is necessary to
42-46 the financial integrity of the utility. Construction work in
42-47 progress may not be included in the rate base for major projects
42-48 under construction to the extent that such projects have been
42-49 inefficiently or imprudently planned or managed.
42-50 (c) Original cost shall be the actual money cost, or the
42-51 actual money value of any consideration paid other than money, of
42-52 the property at the time it shall have been dedicated to public
42-53 use, whether by the utility which is the present owner or by a
42-54 predecessor, less depreciation. (Sec. 41(a))
42-55 Sec. 3.207. SEPARATIONS AND ALLOCATIONS. Costs of
42-56 facilities, revenues, expenses, taxes, and reserves shall be
42-57 separated or allocated as prescribed by the commission. (Sec.
42-58 41(b))
42-59 Sec. 3.208. NET INCOME. (a) "Net income" means the total
42-60 revenues of the telecommunications utility less all reasonable and
42-61 necessary expenses as determined by the commission. The commission
42-62 shall determine expenses and revenues in a manner consistent with
42-63 this section.
42-64 (b) Transactions with Affiliated Interests. Payment to
42-65 affiliated interests for costs of any services, or any property,
42-66 right or thing, or for interest expense may not be allowed either
42-67 as capital cost or as expense except to the extent that the
42-68 commission shall find such payment to be reasonable and necessary
42-69 for each item or class of items as determined by the commission.
42-70 Any such finding shall include specific findings of the
43-1 reasonableness and necessity of each item or class of items allowed
43-2 and a finding that the price to the utility is no higher than
43-3 prices charged by the supplying affiliate to its other affiliates
43-4 or divisions for the same item or class of items, or to
43-5 unaffiliated persons or corporations.
43-6 (c) Income Taxes. If the telecommunications utility is a
43-7 member of an affiliated group that is eligible to file a
43-8 consolidated income tax return, and if it is advantageous to the
43-9 telecommunications utility to do so, income taxes shall be computed
43-10 as though a consolidated return had been so filed and the utility
43-11 had realized its fair share of the savings resulting from the
43-12 consolidated return, unless it is shown to the satisfaction of the
43-13 commission that it was reasonable to choose not to consolidate
43-14 returns. The amounts of income taxes saved by a consolidated group
43-15 of which a telecommunications utility is a member by reason of the
43-16 elimination in the consolidated return of the intercompany profit
43-17 on purchases by the telecommunications utility from an affiliate
43-18 shall be applied to reduce the cost of the property or services so
43-19 purchased. The investment tax credit allowed against federal
43-20 income taxes, to the extent retained by the utility, shall be
43-21 applied as a reduction in the rate based contribution of the assets
43-22 to which such credit applies, to the extent and at such rate as
43-23 allowed by the Internal Revenue Code.
43-24 (d) Expenses Disallowed. The commission may not consider
43-25 for ratemaking purposes the following expenses:
43-26 (1) legislative advocacy expenses, whether made
43-27 directly or indirectly, including but not limited to legislative
43-28 advocacy expenses included in trade association dues;
43-29 (2) costs of processing a refund or credit under
43-30 Subsection (e) of Section 3.211 of this Act; or
43-31 (3) any expenditure found by the commission to be
43-32 unreasonable, unnecessary, or not in the public interest, including
43-33 but not limited to executive salaries, advertising expenses, legal
43-34 expenses, and civil penalties or fines.
43-35 (e) The commission may promulgate reasonable rules and
43-36 regulations with respect to the allowance or disallowance of any
43-37 expenses for ratemaking purposes. (Sec. 41(c))
43-38 Sec. 3.209. SELF-INSURANCE. (a) A telecommunications
43-39 utility may self-insure all or a portion of its potential liability
43-40 or catastrophic property loss, including windstorm, fire, and
43-41 explosion losses which could not have been reasonably anticipated
43-42 and included under operating and maintenance expenses. The
43-43 commission shall approve a self-insurance plan under this section
43-44 if it finds that the coverage is in the public interest and the
43-45 plan is a lower cost alternative to purchasing commercial
43-46 insurance, considering all costs, and that ratepayers will receive
43-47 the benefits of that saving.
43-48 (b) In computing a utility's reasonable and necessary
43-49 expenses under Section 3.208 of this Act, the commission shall
43-50 allow as a necessary expense the funds credited to reserve accounts
43-51 for the self-insurance, to the extent the commission finds it in
43-52 the public interest. After the reserve account is established, the
43-53 commission shall consider if the reserve account has a surplus or
43-54 shortage in determining the utility's rate base. A surplus in the
43-55 reserve account will exist if the charges against the reserve
43-56 account are less than the funds credited to the reserve. A
43-57 shortage in the reserve account will exist if the charges against
43-58 the account are greater than the funds credited to the reserve.
43-59 The commission shall subtract any surplus from and add any shortage
43-60 to the rate base.
43-61 (c) The commission shall determine reasonableness under
43-62 Subsection (b) of this section from information provided at the
43-63 time the self-insurance plan and reserve account are established
43-64 and upon the filing of each rate case by a utility that has such a
43-65 fund.
43-66 (d) The commission shall adopt rules governing
43-67 self-insurance under this section. (Secs. 41B(a)-(d))
43-68 Sec. 3.210. UNREASONABLE OR VIOLATIVE EXISTING RATES;
43-69 INVESTIGATING COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE.
43-70 (a) Whenever the commission, after reasonable notice and hearing,
44-1 on its own motion or on complaint by any affected person, finds
44-2 that the existing rates of any telecommunications utility for any
44-3 service are unreasonable or in any way in violation of any
44-4 provision of law, the commission shall determine the just and
44-5 reasonable rates, including maximum or minimum rates, to be
44-6 thereafter observed and in force, and shall fix the same by order
44-7 to be served on the telecommunications utility; and such rates
44-8 shall constitute the legal rates of the telecommunications utility
44-9 until changed as provided in this Act.
44-10 (b) Whenever a telecommunications utility does not itself
44-11 produce or generate that which it distributes, transmits, or
44-12 furnishes to the public for compensation, but obtains the same from
44-13 another source, the commission shall have the power and authority
44-14 to investigate the cost of such production or generation in any
44-15 investigation of the reasonableness of the rates of such
44-16 telecommunications utility. (Sec. 42 (part))
44-17 Sec. 3.211. STATEMENT OF INTENT TO CHANGE RATES; MAJOR
44-18 CHANGES; HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF
44-19 RATE LEVEL. (a) A utility may not make changes in its rates
44-20 except by filing a statement of intent with the commission at least
44-21 35 days prior to the effective date of the proposed change. The
44-22 statement of intent shall include proposed revisions of tariffs and
44-23 schedules and a statement specifying in detail each proposed
44-24 change, the effect the proposed change is expected to have on the
44-25 revenues of the company, the classes and numbers of utility
44-26 consumers affected, and such other information as may be required
44-27 by the commission's rules and regulations. A copy of the statement
44-28 of intent shall be mailed or delivered to the appropriate officer
44-29 of each affected municipality, and notice shall be given by
44-30 publication in conspicuous form and place of a notice to the public
44-31 of such proposed change once in each week for four successive weeks
44-32 prior to the effective date of the proposed change in a newspaper
44-33 having general circulation in each county containing territory
44-34 affected by the proposed change, and by mail to such other affected
44-35 persons as may be required by the commission's rules and
44-36 regulations. The commission may waive the publication of notice
44-37 requirement prescribed by this subsection in a proceeding that
44-38 involves a rate reduction for all affected ratepayers only. The
44-39 applicant shall give notice of the proposed rate change by mail to
44-40 all affected utility customers. The commission by rule shall also
44-41 define other proceedings for which the publication of notice
44-42 requirement prescribed by this subsection may be waived on a
44-43 showing of good cause, provided that a waiver may not be granted in
44-44 any proceeding involving a rate increase to any class or category
44-45 of ratepayer.
44-46 (b) The commission, for good cause shown, may, except in the
44-47 case of major changes, allow changes in rate to take effect prior
44-48 to the end of such 35-day period under such conditions as it may
44-49 prescribe, subject to suspension as provided herein. All such
44-50 changes shall be indicated immediately upon its schedules by such
44-51 utility. "Major changes" shall mean an increase in rates which
44-52 would increase the aggregate revenues of the applicant more than
44-53 the greater of $100,000 or 2 1/2 percent, but does not include
44-54 changes in rates allowed to go into effect by the commission or
44-55 made by the utility pursuant to an order of the commission after
44-56 hearings held upon notice to the public.
44-57 (c) Whenever there is filed with the commission any schedule
44-58 modifying or resulting in a change in any rates then in force, the
44-59 commission shall on complaint by any affected person or may on its
44-60 own motion, at any time within 30 days from the date when such
44-61 change would or has become effective, and, if it so orders, without
44-62 answer or other formal pleading by the utility, but on reasonable
44-63 notice, including notice to the governing bodies of all affected
44-64 municipalities and counties, enter on a hearing to determine the
44-65 propriety of such change. The commission shall hold such a hearing
44-66 in every case in which the change constitutes a major change in
44-67 rates, provided that an informal proceeding may satisfy this
44-68 requirement if a complaint has not been received before the
44-69 expiration of 45 days after notice of the change shall have been
44-70 filed. In each case where the commission determines it is in the
45-1 public interest to collect testimony at a regional hearing for the
45-2 inclusion in the record, the commission shall hold a regional
45-3 hearing at an appropriate location. A regional hearing is not
45-4 required in a case involving a member-owned utility, unless the
45-5 commission determines otherwise.
45-6 (d) Pending the hearing and decision, the commission, after
45-7 delivery to the affected utility of a statement in writing of its
45-8 reasons therefor, may suspend the operation of the schedule for a
45-9 period not to exceed 150 days beyond the date on which the schedule
45-10 would otherwise go into effect. If the commission does not make a
45-11 final determination concerning any schedule of rates prior to
45-12 expiration of the period or periods of suspension, the schedule
45-13 shall be deemed to have been approved by the commission. However,
45-14 the 150-day period shall be extended two days for each one day of
45-15 actual hearing on the merits of the case that exceeds 15 days.
45-16 This approval is subject to the authority of the commission
45-17 thereafter to continue a hearing in progress. The commission may
45-18 in its discretion fix temporary rates for any period of suspension
45-19 under this section. During the suspension by the commission as
45-20 above provided, the rates in force when the suspended schedule was
45-21 filed shall continue in force unless the commission shall establish
45-22 a temporary rate. The commission shall give preference to the
45-23 hearing and decision of questions arising under this section over
45-24 all other questions pending before it and decide the same as
45-25 speedily as possible.
45-26 (e) If the 150-day period has been extended, as provided by
45-27 Subsection (d) of this section, and the commission fails to make
45-28 its final determination of rates within 150 days from the date that
45-29 the proposed change otherwise would have gone into effect, the
45-30 utility concerned may put a changed rate, not to exceed the
45-31 proposed rate, into effect upon the filing with the commission of a
45-32 bond payable to the commission in an amount and with sureties
45-33 approved by the commission conditioned upon refund and in a form
45-34 approved by the commission. The utility concerned shall refund or
45-35 credit against future bills all sums collected during the period of
45-36 suspension in excess of the rate finally ordered plus interest at
45-37 the current rate as finally determined by the commission.
45-38 (f) If, after hearing, the commission finds the rates to be
45-39 unreasonable or in any way in violation of any provision of law,
45-40 the commission shall determine the level of rates to be charged or
45-41 applied by the utility for the service in question and shall fix
45-42 the same by order to be served upon the utility; these rates are
45-43 thereafter to be observed until changed, as provided by this Act.
45-44 (g) A rate or tariff set by the commission may not authorize
45-45 a utility to automatically adjust and pass through to its customers
45-46 changes in costs of the utility.
45-47 (h) If the commission does not make a final determination
45-48 concerning a local exchange company's schedule of rates prior to
45-49 the expiration of the 150-day suspension period, the schedule of
45-50 rates finally approved by the commission shall become effective and
45-51 the local exchange company shall be entitled to collect such rates
45-52 from the date the 150-day suspension period expired. Any
45-53 surcharges or other charges necessary to effectuate this subsection
45-54 may not be recovered over a period of less than 90 days from the
45-55 date of the commission's final order.
45-56 (i) The commission on its own motion or on the petition of a
45-57 utility shall provide for the adjustment of a utility's billing to
45-58 reflect any increase or decrease of tax liability of the utility to
45-59 the state resulting from House Bill 11, Acts of the 72nd
45-60 Legislature, 1st Called Session, 1991, and that is attributable to
45-61 activities that are subject to the jurisdiction of the commission.
45-62 Any adjustment to billings under this section must be apportioned
45-63 pro-rata to all types and classes of service provided by the
45-64 utility and is effective only until the commission alters the
45-65 adjustment as provided by this subsection or enters an order for
45-66 the utility under this section or Section 3.210 of this Act. The
45-67 adjustment of billings must be made effective at the same time as
45-68 the increase or decrease of tax liability resulting from House Bill
45-69 11, Acts of the 72nd Legislature, 1st Called Session, 1991, or as
45-70 soon after as is reasonably practical. Each year after any
46-1 original adjustment, the commission shall review the utility's
46-2 increase or decrease of tax liability resulting from House Bill 11,
46-3 Acts of the 72nd Legislature, 1st Called Session, 1991, and alter
46-4 the adjustment to reflect the increase or decrease. A proceeding
46-5 under this subsection is not a rate case under this section. (Sec.
46-6 43 (part))
46-7 Sec. 3.212. CHANGES BY LOCAL EXCHANGE COMPANIES; HEARINGS;
46-8 SUSPENSION OF PROPOSED CHANGES. (a) A local exchange company may
46-9 make changes in its tariffed rules, regulations, or practices that
46-10 do not affect its charges or rates by filing the proposed changes
46-11 with the commission at least 35 days prior to the effective date of
46-12 the changes. The commission may require such notice to ratepayers
46-13 as it considers appropriate.
46-14 (b) The commission may on complaint by any affected person
46-15 or on its own motion hold a hearing, after reasonable notice, to
46-16 determine the propriety of the change. Pending the hearing and
46-17 decision, the commission may suspend the operation of the proposed
46-18 changes for a period not to exceed 120 days after the date on which
46-19 the changes would otherwise go into effect.
46-20 (c) The commission shall approve, deny, or modify the
46-21 proposed changes before expiration of the suspension period. In
46-22 any proceeding under this section, the burden of proving that the
46-23 requested relief is in the public interest and complies with this
46-24 Act shall be borne by the local exchange company. (Sec. 43A)
46-25 Sec. 3.213. COOPERATIVE OR SMALL LOCAL EXCHANGE COMPANIES;
46-26 STATEMENT OF INTENT TO CHANGE RATES; NOTICE OF INTENT; SUSPENSION
46-27 OF RATE SCHEDULE; REVIEW. (a) Except as otherwise provided by
46-28 this section, a local exchange company that is a cooperative
46-29 corporation or that has fewer than 5,000 access lines in service in
46-30 this state may change rates by publishing notice of the change at
46-31 least 60 days before the date of the change in the place and form
46-32 as prescribed by the commission. The notice must include:
46-33 (1) the reasons for the rate change;
46-34 (2) a description of the affected service;
46-35 (3) an explanation of the right of the subscriber to
46-36 petition the commission for a hearing on the rate change; and
46-37 (4) a list of rates that are affected by the proposed
46-38 rate change.
46-39 (b) At least 60 days before the date of the change, the
46-40 local exchange company shall file with the commission a statement
46-41 of intent to change rates containing:
46-42 (1) a copy of the notice required by Subsection (a) of
46-43 this section;
46-44 (2) the number of access lines the company has in
46-45 service in this state;
46-46 (3) the date of the most recent commission order
46-47 setting rates of the company;
46-48 (4) the increase in total gross annual local revenues
46-49 that will be produced by the proposed rates;
46-50 (5) the increase in total gross annual local revenues
46-51 that will be produced by the proposed rates together with any local
46-52 rate changes which went into effect during the 12 months preceding
46-53 the proposed effective date of the requested rate change and any
46-54 other proposed local rate changes then pending before the
46-55 commission;
46-56 (6) the increase in rates for each service category;
46-57 and
46-58 (7) other information the commission by rule requires.
46-59 (c) The commission shall review a proposed change in the
46-60 rates set by a local exchange company under this section upon the
46-61 receipt of complaints signed by at least five percent of all
46-62 affected subscribers or upon its own motion. The commission may
46-63 require notice to ratepayers as it considers appropriate. If
46-64 sufficient complaints are presented to the commission within 60
46-65 days after the date notice of the rate change was sent to
46-66 subscribers, the commission shall review the proposed change.
46-67 After notice to the local exchange company, the commission may
46-68 suspend the rates during the pendency of the review and reinstate
46-69 the rates previously in effect. Review under this subsection shall
46-70 be as provided by Section 3.211 of this Act. The period for review
47-1 by the commission does not begin until the local exchange company
47-2 files a complete rate-filing package.
47-3 (d) If the commission has entered an order setting a rate,
47-4 the affected local exchange company may not change that rate under
47-5 this section before 365 days after the date of the commission's
47-6 order setting the rate.
47-7 (e) This section does not prohibit a local exchange company
47-8 from filing for a rate change under any other applicable section of
47-9 this Act.
47-10 (f) The commission shall review a proposed change in the
47-11 rates of a local exchange company under this section if the
47-12 proposed rates, together with any local rate changes which went
47-13 into effect during the 12 months preceding the proposed effective
47-14 date of the requested rate change as well as any other proposed
47-15 local rate changes then pending before the commission, will
47-16 increase its total gross annual local revenues by more than 2 1/2
47-17 percent or if the proposed change would increase the rate of any
47-18 service category by more than 25 percent, except for basic local
47-19 service, which shall be limited to a maximum of 2 1/2 percent of
47-20 the total gross annual local revenue. Review under this subsection
47-21 shall be as provided by Section 3.211 of this Act. Each local
47-22 exchange company may receive a change in its local rates or in any
47-23 service category pursuant to this section only one time in any
47-24 12-month period.
47-25 (g) Rates established under this section must be in
47-26 accordance with the rate-setting principles of this subtitle.
47-27 (h) The commission is granted all necessary power and
47-28 authority to prescribe and collect fees and assessments from local
47-29 exchange companies necessary to recover the commission's and the
47-30 office's costs of activities carried out and services provided
47-31 under this section, Subsection (h) of Section 3.211 and Section
47-32 3.212 of this Act. (Sec. 43B)
47-33 Sec. 3.214. RATES FOR AREAS NOT WITHIN MUNICIPALITY.
47-34 Telecommunications utility rates for areas not within any
47-35 municipality may not exceed without commission approval 115 percent
47-36 of the average of all rates for similar services of all
47-37 municipalities served by the same utility within the same county.
47-38 (Sec. 44)
47-39 Sec. 3.215. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
47-40 OR SERVICES. A telecommunications utility may not, as to rates or
47-41 services, make or grant any unreasonable preference or advantage to
47-42 any corporation or person within any classification, or subject any
47-43 corporation or person within any classification to any unreasonable
47-44 prejudice or disadvantage. A telecommunications utility may not
47-45 establish and maintain any unreasonable differences as to rates of
47-46 service either as between localities or as between classes of
47-47 service. (Sec. 45)
47-48 Sec. 3.216. EQUALITY OF RATES AND SERVICES. (a) A
47-49 telecommunications utility may not, directly or indirectly, by any
47-50 device whatsoever or in any manner, charge, demand, collect, or
47-51 receive from any person a greater or less compensation for any
47-52 service rendered or to be rendered by the utility than that
47-53 prescribed in the schedule of rates of the telecommunications
47-54 utility applicable thereto when filed in the manner provided in
47-55 this Act, nor may any person knowingly receive or accept any
47-56 service from a telecommunications utility for a compensation
47-57 greater or less than that prescribed in the schedules.
47-58 (b) Nothing in this Act shall prevent a cooperative
47-59 corporation from returning to its members the whole, or any part
47-60 of, the net earnings resulting from its operations in proportion to
47-61 their purchases from or through the corporation. (Sec. 46)
47-62 Sec. 3.217. DISCRIMINATION; RESTRICTION ON COMPETITION. A
47-63 telecommunications utility may not discriminate against any person
47-64 or corporation that sells or leases equipment or performs services
47-65 in competition with the telecommunications utility, nor may any
47-66 telecommunications utility engage in any other practice that tends
47-67 to restrict or impair such competition. (Sec. 47)
47-68 Sec. 3.218. TELECOMMUNICATIONS UTILITY PROVIDING SERVICE TO
47-69 THE STATE; DELINQUENT PAYMENT CHARGES. A telecommunications
47-70 utility providing any service to the state, including service to an
48-1 agency in any branch of state government, may not charge a fee,
48-2 penalty, interest, or other charge for delinquent payment of a bill
48-3 for that service. (Sec. 48A)
48-4 SUBTITLE F. CERTIFICATES OF CONVENIENCE AND NECESSITY
48-5 Sec. 3.251. CERTIFICATE REQUIRED. (a) A telecommunications
48-6 utility may not in any way render service directly or indirectly to
48-7 the public under any franchise or permit without first having
48-8 obtained from the commission a certificate that the present or
48-9 future public convenience and necessity require or will require
48-10 such installation, operation, or extension.
48-11 (b) Except as otherwise provided in this subtitle, a
48-12 telecommunications utility may not furnish, make available, render,
48-13 or extend retail telecommunications utility service to any area to
48-14 which retail utility service is being lawfully furnished by another
48-15 telecommunications utility, without first having obtained a
48-16 certificate of public convenience and necessity that includes the
48-17 area in which the consuming facility is located. (Sec. 50)
48-18 Sec. 3.252. EXCEPTIONS FOR EXTENSION OF SERVICE. (a) A
48-19 telecommunications utility is not required to secure a certificate
48-20 of public convenience and necessity for:
48-21 (1) an extension into territory contiguous to that
48-22 already served by it and not receiving similar service from another
48-23 telecommunications utility and not within the area of public
48-24 convenience and necessity of another utility of the same kind;
48-25 (2) an extension within or to territory already served
48-26 by it or to be served by it under a certificate of public
48-27 convenience and necessity; or
48-28 (3) operation, extension, or service in progress on
48-29 September 1, 1975.
48-30 (b) Any extensions allowed by Subsection (a) of this section
48-31 shall be limited to devices for interconnection of existing
48-32 facilities or devices used solely for transmitting
48-33 telecommunications utility services from existing facilities to
48-34 customers of retail utility service. (Sec. 51)
48-35 Sec. 3.253. APPLICATION; MAPS; EVIDENCE OF CONSENT. (a) A
48-36 telecommunications utility shall submit to the commission an
48-37 application to obtain a certificate of public convenience and
48-38 necessity or an amendment thereof.
48-39 (b) On or before 90 days after September 1, 1975, or at a
48-40 later date on request in writing by a telecommunications utility
48-41 when good cause is shown, or at such later dates as the commission
48-42 may order, each telecommunications utility shall file with the
48-43 commission a map or maps showing all its facilities and
48-44 illustrating separately facilities for transmission and
48-45 distribution of its services.
48-46 (c) Each applicant for a certificate shall file with the
48-47 commission such evidence as is required by the commission to show
48-48 that the applicant has received the required consent, franchise, or
48-49 permit of the proper municipality or other public authority. (Sec.
48-50 52)
48-51 Sec. 3.254. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS
48-52 CONSIDERED. (a) When an application for a certificate of public
48-53 convenience and necessity is filed, the commission shall give
48-54 notice of such application to interested parties and, if requested,
48-55 shall fix a time and place for a hearing and give notice of the
48-56 hearing. Any person interested in the application may intervene at
48-57 the hearing.
48-58 (b) The commission may grant applications and issue
48-59 certificates only if the commission finds that the certificate is
48-60 necessary for the service, accommodation, convenience, or safety of
48-61 the public. The commission may issue the certificate as prayed
48-62 for, or refuse to issue it, or issue it for the construction of a
48-63 portion only of the contemplated system or facility or extension
48-64 thereof, or for the partial exercise only of the right or
48-65 privilege.
48-66 (c) Certificates of convenience and necessity shall be
48-67 granted on a nondiscriminatory basis after consideration by the
48-68 commission of the adequacy of existing service, the need for
48-69 additional service, the effect of the granting of a certificate on
48-70 the recipient of the certificate and on any telecommunications
49-1 utility of the same kind already serving the proximate area, and on
49-2 such factors as community values, recreational and park areas,
49-3 historical and aesthetic values, environmental integrity, and the
49-4 probable improvement of service or lowering of cost to consumers in
49-5 such area resulting from the granting of such certificate. (Sec.
49-6 54 (part))
49-7 Sec. 3.255. AREA INCLUDED WITHIN CITY, TOWN OR VILLAGE.
49-8 (a) If an area has been or shall be included within the boundaries
49-9 of a city, town, or village as the result of annexation,
49-10 incorporation, or otherwise, all telecommunications utilities
49-11 certified or entitled to certification under this Act to provide
49-12 service or operate facilities in such area prior to the inclusion
49-13 shall have the right to continue and extend service in its area of
49-14 public convenience and necessity within the annexed or incorporated
49-15 area, pursuant to the rights granted by its certificate and this
49-16 Act.
49-17 (b) Notwithstanding any other provision of law, a
49-18 telecommunications utility shall have the right to continue and
49-19 extend service within its area of public convenience and necessity
49-20 and to utilize the roads, streets, highways, alleys, and public
49-21 property for the purpose of furnishing such retail utility service,
49-22 subject to the authority of the governing body of a municipality to
49-23 require any telecommunications utility, at its own expense, to
49-24 relocate its facilities to permit the widening or straightening of
49-25 streets by giving to the telecommunications utility 30 days' notice
49-26 and specifying the new location for the facilities along the
49-27 right-of-way of the street or streets.
49-28 (c) This section may not be construed as limiting the power
49-29 of cities, towns, and villages to incorporate or extend their
49-30 boundaries by annexation. (Sec. 55 (part))
49-31 Sec. 3.256. CONTRACTS VALID AND ENFORCEABLE. Contracts
49-32 between telecommunications utilities designating areas to be served
49-33 and customers to be served by those utilities, when approved by the
49-34 commission, shall be valid and enforceable and shall be
49-35 incorporated into the appropriate areas of public convenience and
49-36 necessity. (Sec. 56)
49-37 Sec. 3.257. PRELIMINARY ORDER FOR CERTIFICATE. If a
49-38 telecommunications utility desires to exercise a right or privilege
49-39 under a franchise or permit which it contemplates securing but
49-40 which has not as yet been granted to it, such telecommunications
49-41 utility may apply to the commission for an order preliminary to the
49-42 issuance of the certificate. The commission may thereupon make an
49-43 order declaring that it will, on application, under such rules as
49-44 it prescribes, issue the desired certificate on such terms and
49-45 conditions as it designates, after the telecommunications utility
49-46 has obtained the contemplated franchise or permit. On presentation
49-47 to the commission of evidence satisfactory to it that the franchise
49-48 or permit has been secured by the telecommunications utility, the
49-49 commission shall issue the certificate. (Sec. 57)
49-50 Sec. 3.258. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE,
49-51 REDUCTION OR IMPAIRMENT OF SERVICE. (a) Except as provided by
49-52 this section or Section 3.259 of this Act, the holder of any
49-53 certificate of public convenience and necessity shall serve every
49-54 consumer within its certified area and shall render continuous and
49-55 adequate service within the area or areas.
49-56 (b) Unless the commission issues a certificate that neither
49-57 the present or future convenience and necessity will be adversely
49-58 affected, the holder of a certificate may not discontinue, reduce,
49-59 or impair service to a certified service area or part thereof
49-60 except for:
49-61 (1) nonpayment of charges;
49-62 (2) nonuse; or
49-63 (3) other similar reasons in the usual course of
49-64 business.
49-65 (c) Any discontinuance, reduction, or impairment of service,
49-66 whether with or without approval of the commission, shall be in
49-67 conformity with and subject to such conditions, restrictions, and
49-68 limitations as the commission shall prescribe. (Sec. 58)
49-69 Sec. 3.259. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
49-70 holder of a certificate of public convenience and necessity shall
50-1 refuse to serve a customer within its certified area if the holder
50-2 of the certificate is prohibited from providing the service under
50-3 Section 212.012 or 232.0047, Local Government Code. (Sec. 58A)
50-4 Sec. 3.260. SALE, ASSIGNMENT OR LEASE OF CERTIFICATE. If
50-5 the commission determines that a purchaser, assignee, or lessee is
50-6 capable of rendering adequate service, a telecommunications utility
50-7 may sell, assign, or lease a certificate of public convenience and
50-8 necessity or any rights obtained under the certificate. The sale,
50-9 assignment, or lease shall be on the conditions prescribed by the
50-10 commission. (Sec. 59)
50-11 Sec. 3.261. INTERFERENCE WITH OTHER TELECOMMUNICATIONS
50-12 UTILITY. If a telecommunications utility in constructing or
50-13 extending its lines, plant, or system interferes or attempts to
50-14 interfere with the operation of a line, plant, or system of any
50-15 other utility, the commission may issue an order prohibiting the
50-16 construction or extension or prescribing terms and conditions for
50-17 locating the lines, plants, or systems affected. (Sec. 60)
50-18 Sec. 3.262. IMPROVEMENTS IN SERVICE; INTERCONNECTING
50-19 SERVICE; EXTENDED AREA TOLL-FREE TELEPHONE SERVICE. After notice
50-20 and hearing, the commission may:
50-21 (1) order a telecommunications utility to provide
50-22 specified improvements in its service in a defined area, if service
50-23 in such area is inadequate or is substantially inferior to service
50-24 in a comparable area and it is reasonable to require the company to
50-25 provide such improved service;
50-26 (2) order two or more utilities to establish specified
50-27 facilities for the interconnecting service; and
50-28 (3) order a telephone company or telephone companies
50-29 to provide extended area toll-free service within a specified
50-30 metropolitan area where there is a sufficient community of interest
50-31 within the area and such service can reasonably be provided. (Sec.
50-32 61)
50-33 Sec. 3.263. REVOCATION OR AMENDMENT OF CERTIFICATE.
50-34 (a) The commission at any time after notice and hearing may revoke
50-35 or amend any certificate of convenience and necessity if it finds
50-36 that the certificate holder has never provided or is no longer
50-37 providing service in the area, or part of the area, covered by the
50-38 certificate.
50-39 (b) When the certificate of any telecommunications utility
50-40 is revoked or amended, the commission may require one or more
50-41 public utilities to provide service in the area in question. (Sec.
50-42 62)
50-43 SUBTITLE G. PROVISION OF TELEPHONE SERVICE
50-44 Sec. 3.301. DEDICATED LINE LONG DISTANCE SERVICE. A
50-45 telecommunications utility providing dedicated line long distance
50-46 service (TEXAN) to the state on August 31, 1987, shall continue to
50-47 have this type of service available to the state on a
50-48 month-to-month contract basis until September 1, 1988. The
50-49 contract will become effective on September 1, 1987, and shall be
50-50 under terms and conditions negotiated by the state and the utility
50-51 in accordance with the amounts appropriated by the General
50-52 Appropriations Act for this purpose. The General Services
50-53 Commission shall perform all actions necessary to insure that one
50-54 or more contracts for telecommunications services as provided in
50-55 Article 10 of the State Purchasing and General Services Act
50-56 (Article 601b, Vernon's Texas Civil Statutes) (TEXAN II) are
50-57 awarded pursuant to the requirements of the State Purchasing and
50-58 General Services Act (Article 601b, Vernon's Texas Civil Statutes)
50-59 by October 15, 1987, and that TEXAN II is operational not later
50-60 than August 31, 1988. Those funds appropriated by the General
50-61 Appropriations Act for extending the existing TEXAN contract which
50-62 are not expended in fiscal year 1988 shall be transferred to the
50-63 General Services Commission for the sole purpose of offsetting the
50-64 expenses associated with the administration of the TEXAN II
50-65 network. If, during the period of time this section is in effect,
50-66 any supplemental or other telecommunications service is required by
50-67 the state, it may be acquired from vendors other than the utility
50-68 or utilities providing TEXAN or TEXAN II service. (Sec. 87B)
50-69 Sec. 3.302. CALLER IDENTIFICATION SERVICES. (a) This
50-70 section applies only to the provision of caller identification
51-1 service.
51-2 (b) A person may not offer a caller identification service
51-3 unless the person obtains written authorization from the
51-4 commission.
51-5 (c) The commission shall require that a provider of caller
51-6 identification service offer per-call blocking at no charge to each
51-7 telephone subscriber in the specific area in which the service is
51-8 offered.
51-9 (d) The commission shall require that a provider offer
51-10 per-line blocking at no charge to a particular customer if the
51-11 commission receives from the customer written certification that
51-12 the customer has a compelling need for per-line blocking. If a
51-13 customer later removes the per-line block, the provider may assess
51-14 a service order charge relating to administrative costs in an
51-15 amount approved by the commission to reinstate the per-line block.
51-16 The commission may prescribe and assess fees and assessments from
51-17 providers of caller identification service in an amount sufficient
51-18 to cover the additional expenses incurred by the commission in
51-19 implementing the customer certification provisions of this
51-20 subsection. Reports, records, and information received under this
51-21 subsection by the commission or by a provider of caller
51-22 identification service are confidential and may be used only for
51-23 the purposes of administering this subsection.
51-24 (e) The commission may only prescribe in relation to
51-25 blocking the requirements prescribed by Subsections (c) and (d) of
51-26 this section.
51-27 (f) A person may not use a caller identification service to
51-28 compile and sell specific local call information without the
51-29 affirmative consent and approval of the originating telephone
51-30 customer. This subsection does not prohibit the provider from:
51-31 (1) verifying network performance or from testing the
51-32 provision of caller identification service;
51-33 (2) compiling, using, and disclosing aggregate caller
51-34 identification information; or
51-35 (3) complying with applicable law or legal process.
51-36 (g) This section does not apply to:
51-37 (1) an identification service that is used within the
51-38 same limited system, including a central office based PBX-type
51-39 system;
51-40 (2) information that is used on a public agency's
51-41 emergency telephone line or on a line that receives the primary
51-42 emergency telephone number (9-1-1);
51-43 (3) information passed between telecommunications
51-44 utilities, enhanced service providers, or other entities that is
51-45 necessary for the set-up, processing, transmission, or billing of
51-46 telecommunications or related services;
51-47 (4) information provided in compliance with applicable
51-48 law or legal process; or
51-49 (5) an identification service provided in connection
51-50 with a "700," "800," or "900" access code telecommunications
51-51 service.
51-52 (h) In this section:
51-53 (1) "Caller identification information" means:
51-54 (A) the telephone listing number and/or name of
51-55 the customer from whose telephone instrument a telephone number is
51-56 dialed; or
51-57 (B) other information that may be used to
51-58 identify the specific originating number or originating location of
51-59 a wire or electronic communication transmitted by a telephone
51-60 instrument.
51-61 (2) "Caller identification service" means a service
51-62 offered by a telecommunications utility that provides caller
51-63 identification information to a device capable of displaying the
51-64 information.
51-65 (3) "Per-call blocking" means a telecommunications
51-66 service that prevents the transmission of caller identification
51-67 information to a called party on an individual call if the calling
51-68 party acts affirmatively to prevent the transmission of the caller
51-69 identification information.
51-70 (4) "Per-line blocking" means a telecommunications
52-1 service that prevents the transmission of caller identification
52-2 information to a called party on every call unless the calling
52-3 party acts affirmatively to release the caller identification
52-4 information. (Sec. 87C)
52-5 Sec. 3.303. INTEREXCHANGE SERVICES; LOCAL EXCHANGE
52-6 COMPANIES' RATES. Local exchange companies' rates for
52-7 interexchange telecommunications services must be statewide average
52-8 rates unless the commission on application and hearing orders
52-9 otherwise. Nothing in this section limits a local exchange
52-10 company's ability to enter into contracts for high speed private
52-11 line services of 1.544 megabits or greater under the provisions of
52-12 Section 3.051 of this Act. (Sec. 93)
52-13 Sec. 3.304. EXPANSION OF TOLL-FREE CALLING AREAS; CRITERIA.
52-14 (a) To address telephone calling needs between nearby telephone
52-15 exchanges, the commission shall initiate a rulemaking proceeding to
52-16 approve rules to provide for an expedited hearing to allow the
52-17 expanding of toll-free calling areas according to the following
52-18 criteria:
52-19 (1) Toll-free calling boundaries may only be expanded
52-20 under this section after the filing of a petition signed by the
52-21 lesser of five percent of the subscribers or 100 subscribers within
52-22 an exchange. If such a petition is filed with the commission, the
52-23 commission shall order the local exchange company to provide for
52-24 the balloting of its subscribers within the petitioning exchange
52-25 and, if there is an affirmative vote of at least 70 percent of
52-26 those responding, the commission shall consider the request.
52-27 (2) The commission shall provide for the expansion of
52-28 toll-free calling areas for each local exchange customer in the
52-29 petitioning exchange if the petitioning exchange serves not more
52-30 than 10,000 lines and if:
52-31 (A) the petitioning exchange is located within
52-32 22 miles of the exchange requested for toll-free calling service;
52-33 or
52-34 (B) the petitioning exchange shares a community
52-35 of interest with the exchange requested for toll-free calling
52-36 service. For purposes of this paragraph, "community of interest"
52-37 includes areas that have a relationship because of schools,
52-38 hospitals, local governments, business centers, and other
52-39 relationships the unavailability of which would cause a hardship to
52-40 the residents of the area but need not include an area where the
52-41 affected central offices are more than 50 miles apart.
52-42 (3)(A) The local exchange company shall recover all of
52-43 its costs incurred and all loss of revenue from any expansion of
52-44 toll-free calling areas under this section through a request other
52-45 than a revenue requirement showing by:
52-46 (i) a monthly fee for toll-free calling
52-47 service of not more than $3.50 per line for residential customers
52-48 nor more than $7 per line for business customers, to be collected
52-49 from all such residential or business customers in the petitioning
52-50 exchange and only until the local exchange company's next general
52-51 rate case;
52-52 (ii) a monthly fee for toll-free calling
52-53 service for all of the local exchange company's local exchange
52-54 service customers in the state in addition to the company's current
52-55 local exchange rates; or
52-56 (iii) both (i) and (ii).
52-57 (B) A local exchange company may not recover
52-58 regulatory case expenses under this section by surcharging
52-59 petitioning exchange subscribers.
52-60 (b)(1) The commission and a local exchange company are not
52-61 required to comply with this section with regard to a petitioning
52-62 exchange or petitioned exchange if:
52-63 (A) the commission determines that there has
52-64 been a good and sufficient showing of a geographic or technological
52-65 infeasibility to serve the area;
52-66 (B) the local exchange company has less than
52-67 10,000 lines;
52-68 (C) the petitioning or petitioned exchange is
52-69 served by a cooperative;
52-70 (D) extended area service or extended
53-1 metropolitan service is currently available between the petitioning
53-2 and petitioned exchanges; or
53-3 (E) the petitioning or petitioned exchange is a
53-4 metropolitan exchange.
53-5 (2) The commission may expand the toll-free calling
53-6 area into an exchange not within a metropolitan exchange but within
53-7 the local calling area contiguous to a metropolitan exchange that
53-8 the commission determines to have a community of interest
53-9 relationship with the petitioning exchange. For the purposes of
53-10 this section, metropolitan exchange, local calling area of a
53-11 metropolitan exchange, and exchange have the meanings and
53-12 boundaries as defined and approved by the commission on September
53-13 1, 1993. However, under no circumstances shall a petitioning or
53-14 petitioned exchange be split in the provision of a toll-free
53-15 calling area.
53-16 (c) The commission may, in order to promote the wide
53-17 dispersion of pay telephones, either exempt such telephones from
53-18 the provisions of this section or change the rates to be charged
53-19 from such telephones in an amount sufficient to promote this goal.
53-20 (Sec. 93A)
53-21 Sec. 3.305. PAY TELEPHONES; NUMBERS AND NOTICES DISPLAYED.
53-22 (a) A pay telephone service provider may not display the telephone
53-23 number of a pay telephone that cannot receive a telephone call.
53-24 (b) A pay telephone service provider shall place in a
53-25 conspicuous location on each pay telephone that cannot receive
53-26 telephone calls a notice stating in letters one-fourth inch high:
53-27 "THIS TELEPHONE CANNOT RECEIVE TELEPHONE CALLS."
53-28 (c) A pay telephone service provider that violates a
53-29 provision of this section or a rule or order adopted by the
53-30 commission under this section is subject to a civil penalty as
53-31 provided by Section 1.322 of this Act, unless such provider, within
53-32 14 days of receiving written notice of a violation, takes
53-33 corrective action to comply with the provisions of this section.
53-34 (d) The commission has jurisdiction over all pay telephone
53-35 service providers to the extent necessary to enforce this section
53-36 regardless of whether a pay telephone service provider is a
53-37 telecommunications utility regulated under this Act.
53-38 (e) The commission may adopt rules and establish procedures
53-39 to enforce this section. (Sec. 93A)
53-40 Sec. 3.306. HOTELS OR MOTELS; CHARGES FOR TELEPHONE CALLS.
53-41 The amount a hotel or motel charges for a local telephone call, a
53-42 credit card telephone call, a collect telephone call, or any other
53-43 local telephone call for which assistance from the hotel or motel
53-44 operator is not required may not exceed 50 cents. (Sec. 93B)
53-45 Sec. 3.307. "1-900" SERVICE. (a) A telecommunications
53-46 utility that transports or provides a "1-900" service under a
53-47 contract authorized by Article 42.131 or 42.18, Code of Criminal
53-48 Procedure, and its subsequent amendments that is used by a
53-49 defendant under the supervision of a community supervision and
53-50 corrections department or the pardons and paroles division of the
53-51 Texas Department of Criminal Justice to pay a fee or cost or to
53-52 comply with telephone reporting requirements may adjust or
53-53 authorize the adjustment of an end-user's bill for those fees or
53-54 costs or charges for reporting only with the consent of the
53-55 contracting community supervision and corrections department or the
53-56 contracting pardons and paroles division of the Texas Department of
53-57 Criminal Justice.
53-58 (b) This section applies only to an intrastate "1-900"
53-59 service. (Sec. 93C)
53-60 SUBTITLE H. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM;
53-61 UNIVERSAL SERVICE FUND
53-62 Sec. 3.351. TEL-ASSISTANCE SERVICE. The commission shall
53-63 adopt and enforce rules requiring each local exchange company to
53-64 establish a telecommunications service assistance program to be
53-65 called "tel-assistance service." This service is established to
53-66 provide eligible consumers with a reduction in costs of
53-67 telecommunications services. (Sec. 94)
53-68 Sec. 3.352. ELIGIBILITY FOR TEL-ASSISTANCE SERVICE; BURDEN
53-69 OF PROOF; BILLING. (a) To be eligible for tel-assistance service,
53-70 an applicant must be a head of household, 65 years of age or older,
54-1 and disabled as determined by the Texas Department of Human
54-2 Services and must have a household income at or below the poverty
54-3 level as determined by the United States Office of Management and
54-4 Budget and reported annually in the Federal Register. The
54-5 department, in accordance with this subtitle and rules adopted by
54-6 the department for the program, shall develop procedures for taking
54-7 applications for certification of eligibility and for determining
54-8 program eligibility. The burden of proving eligibility for
54-9 tel-assistance service is on the consumer applying for the service.
54-10 (b) Each six months the department shall provide a list or
54-11 lists of the names, addresses, and, if applicable, telephone
54-12 numbers of all persons eligible for tel-assistance service to each
54-13 local exchange company. The local exchange company shall determine
54-14 from the list those consumers to whom the company provides service
54-15 and within 60 days after receiving the list shall begin
54-16 tel-assistance billing for eligible consumers. This billing shall
54-17 continue until the local exchange company is notified by the
54-18 department that a consumer is no longer eligible to receive
54-19 tel-assistance service. (Sec. 95)
54-20 Sec. 3.353. TEL-ASSISTANCE SERVICES; BILLING; RATES.
54-21 (a) The local exchange company shall provide tel-assistance
54-22 service to all eligible consumers within its certificated area in
54-23 the form of a reduction on each eligible consumer's telephone bill.
54-24 The reduction shall apply only to the following types of service:
54-25 (1) residential flat rate basic local exchange
54-26 service;
54-27 (2) residential local exchange access service; and
54-28 (3) residential local area calling usage, except that
54-29 the reduction for local area calling usage shall be limited to an
54-30 amount such that together with the reduction for local exchange
54-31 access service the rate does not exceed the comparable reduced flat
54-32 rate for the service.
54-33 (b) No other local voice service may be provided to the
54-34 dwelling place of a tel-assistance consumer, nor may single or
54-35 party line optional extended area service, optional extended area
54-36 calling service, foreign zone, or foreign exchange service be
54-37 provided to a tel-assistance consumer. Nothing in this section
54-38 shall prohibit a person otherwise eligible to receive
54-39 tel-assistance service from obtaining and using telecommunications
54-40 equipment designed to aid such person in utilizing
54-41 telecommunications services.
54-42 (c) The reduction allowed by the telecommunications service
54-43 assistance program shall be 65 percent of the applicable tariff
54-44 rate for the service provided. (Sec. 96)
54-45 Sec. 3.354. STATEWIDE TELECOMMUNICATIONS RELAY ACCESS
54-46 SERVICE FOR HEARING-IMPAIRED AND SPEECH-IMPAIRED. (a) The
54-47 commission shall adopt and enforce rules establishing a statewide
54-48 telecommunications relay access service for the hearing-impaired
54-49 and speech-impaired using specialized communications equipment such
54-50 as telecommunications devices for the deaf (TDD) and operator
54-51 translations. The purpose of this section is to provide for the
54-52 uniform and coordinated provision of the service on a statewide
54-53 basis by one telecommunications carrier.
54-54 (b) Commission rules relating to a statewide
54-55 telecommunications relay access service for the hearing-impaired
54-56 and speech-impaired shall provide that:
54-57 (1) the service shall provide the hearing-impaired and
54-58 speech-impaired with access to the telecommunications network in
54-59 Texas equal to that provided other customers;
54-60 (2) the service shall consist of the following:
54-61 (A) switching and transmission of the call;
54-62 (B) verbal and print translations by either live
54-63 or automated means between hearing-impaired and speech-impaired
54-64 individuals who use TDD equipment or similar automated devices and
54-65 others who do not have such equipment; and
54-66 (C) other service enhancements proposed by the
54-67 carrier and approved by the commission;
54-68 (3) the calling or called party shall bear no charge
54-69 for calls originating and terminating within the same local calling
54-70 area;
55-1 (4) the calling or called party shall bear one-half of
55-2 the total charges established by contract with the commission for
55-3 intrastate interexchange calls;
55-4 (5) as specified in its contract with the commission,
55-5 charges related to providing the service which are not borne by a
55-6 calling or called party pursuant to Subdivisions (3) and (4) of
55-7 this subsection shall be funded from the universal service fund;
55-8 (6) local exchange companies may not impose
55-9 interexchange carrier access charges on calls which make use of
55-10 this service and which originate and terminate in the same local
55-11 calling area;
55-12 (7) local exchange companies shall provide billing and
55-13 collection services in support of this service at just and
55-14 reasonable rates; and
55-15 (8) if the commission orders a local exchange company
55-16 to provide for a trial telecommunications relay access service for
55-17 the hearing-impaired or speech-impaired, all pertinent costs and
55-18 design information from this trial shall be available to the
55-19 general public.
55-20 (c) The commission shall allow telecommunications utilities
55-21 to recover their universal service fund assessment related to this
55-22 service through a surcharge which the utility may add to its
55-23 customers' bills. The commission shall specify how the amount of
55-24 the surcharge is to be determined by each utility. If a utility
55-25 chooses to impose the surcharge, the bill shall list the surcharge
55-26 as the "universal service fund surcharge."
55-27 (d) The commission shall set the appropriate assessments for
55-28 the funding of the service by all telecommunications utilities. In
55-29 setting the appropriate assessments, the commission shall consider
55-30 the aggregate calling pattern of the users of the service and all
55-31 other factors found appropriate and in the public interest by the
55-32 commission. The commission shall review the assessments annually
55-33 and adjust the assessments as found appropriate hereunder.
55-34 (e) The commission shall select the telecommunications
55-35 carrier which will provide the statewide telecommunications relay
55-36 access service for the hearing-impaired and speech-impaired. In
55-37 awarding the contract for this service, the commission shall make a
55-38 written award of the contract to the offerer whose proposal is the
55-39 most advantageous to the state, considering price, the interests of
55-40 the hearing-impaired and speech-impaired community in having access
55-41 to a high quality and technologically advanced telecommunications
55-42 system, and all other factors listed in the commission's request
55-43 for proposals. The commission shall consider each proposal in a
55-44 manner that does not disclose the contents of the proposal to
55-45 competing offerers. The commission's evaluation of the proposals
55-46 shall include:
55-47 (1) charges for the service;
55-48 (2) service enhancements proposed by the offerers;
55-49 (3) technological sophistication of the network
55-50 proposed by the offerers; and
55-51 (4) the proposed commencement date for the service.
55-52 (f) The telecommunications carrier providing the service
55-53 shall be compensated for providing such service at rates, terms,
55-54 and conditions established in its contract with the commission.
55-55 This compensation may include a return on the investment required
55-56 to provide the service and compensation for unbillable and
55-57 uncollectible calls placed through the service, provided that
55-58 compensation for unbillable and uncollectible calls shall be
55-59 subject to a reasonable limitation as determined by the commission.
55-60 (g) The advisory committee to assist the commission in
55-61 administering this section is composed of the following persons
55-62 appointed by the commission:
55-63 (1) two deaf persons recommended by the Texas
55-64 Association of the Deaf;
55-65 (2) one hearing-impaired person recommended by
55-66 Self-Help for the Hard of Hearing;
55-67 (3) one hearing-impaired person recommended by the
55-68 American Association of Retired Persons;
55-69 (4) one deaf and blind person recommended by the Texas
55-70 Deaf/Blind Association;
56-1 (5) one speech-impaired person and one speech-impaired
56-2 and hearing-impaired person recommended by the Coalition of Texans
56-3 with Disabilities;
56-4 (6) two representatives of telecommunications
56-5 utilities, one representing a nonlocal exchange utility and one
56-6 representing a local exchange company, chosen from a list of
56-7 candidates provided by the Texas Telephone Association;
56-8 (7) two persons, at least one of whom is deaf, with
56-9 experience in providing relay services recommended by the Texas
56-10 Commission for the Deaf; and
56-11 (8) two public members recommended by organizations
56-12 representing consumers of telecommunications services.
56-13 (h) The commission shall appoint advisory committee members
56-14 based on recommended lists of candidates submitted in accordance
56-15 with Subdivision (6) of Subsection (g) of this section. The
56-16 advisory committee shall monitor the establishment, administration,
56-17 and promotion of the statewide telecommunications relay access
56-18 service and advise the commission in pursuing a service which meets
56-19 the needs of the hearing-impaired and speech-impaired in
56-20 communicating with other users of telecommunications services. The
56-21 terms of office of each member of the advisory committee shall be
56-22 two years. A member whose term has expired shall continue to serve
56-23 until a qualified replacement is appointed. The members of the
56-24 advisory committee shall serve without compensation but shall be
56-25 entitled to reimbursement at rates established for state employees
56-26 for travel and per diem incurred in the performance of their
56-27 official duties. The commission shall reimburse members of the
56-28 advisory committee in accordance with this subsection and shall
56-29 provide clerical and staff support to the advisory committee,
56-30 including a secretary to record the committee meetings. The
56-31 commission's costs associated with the advisory committee shall be
56-32 reimbursed from the universal service fund. (Sec. 96A)
56-33 Sec. 3.355. DISTANCE LEARNING ACTIVITIES BY EDUCATIONAL
56-34 INSTITUTIONS; REDUCED RATES. (a) The commission by rule shall
56-35 require a dominant carrier to file a tariff containing a reduced
56-36 rate for a telecommunications service the commission finds is
56-37 directly related to a distance learning activity that is or could
56-38 be conducted by an educational institution in this state.
56-39 (b) The commission rules shall specify:
56-40 (1) the telecommunications services that qualify under
56-41 this section;
56-42 (2) the process by which an educational institution
56-43 qualifies for a reduced rate;
56-44 (3) the date by which a dominant carrier shall file a
56-45 tariff;
56-46 (4) guidelines and criteria by which the services and
56-47 reduced rates shall further the goals stated in Subsection (d) of
56-48 this section; and
56-49 (5) any other requirements, terms, and conditions that
56-50 the commission determines to be in the public interest.
56-51 (c) A tariff filing by a dominant carrier under this
56-52 section:
56-53 (1) shall concern only the implementation of this
56-54 section;
56-55 (2) is not a rate change under Section 3.211 of this
56-56 Act; and
56-57 (3) does not affect any of the carrier's other rates
56-58 or services.
56-59 (d) The services and reduced rates shall be designed to:
56-60 (1) encourage the development and offering of distance
56-61 learning activities by educational institutions;
56-62 (2) meet the distance learning needs identified by the
56-63 educational community; and
56-64 (3) recover the long-run incremental costs of
56-65 providing the services, to the extent those costs can be
56-66 identified, so as to avoid subsidizing educational institutions.
56-67 (e) The commission is not required to determine the long-run
56-68 incremental cost of providing a service before approving a reduced
56-69 rate for the service. Until cost determination rules are developed
56-70 and the rates established under this section are changed as
57-1 necessary to ensure proper cost recovery, the reduced rates
57-2 established by the commission shall be equal to 75 percent of the
57-3 otherwise applicable rate. After the commission develops cost
57-4 determination rules for telecommunications services generally, it
57-5 shall ensure that a reduced rate approved under this section
57-6 recovers service-specific long-run incremental costs and avoids
57-7 subsidization.
57-8 (f) An educational institution or dominant carrier may at
57-9 any time request the commission to:
57-10 (1) provide for a reduced rate for a service directly
57-11 related to a distance learning activity that is not covered by
57-12 commission rules;
57-13 (2) change a rate;
57-14 (3) amend a tariff; or
57-15 (4) amend a commission rule.
57-16 (g) If the commission determines that a change requested
57-17 under Subsection (f) is appropriate, it shall make the requested
57-18 change.
57-19 (h) In this section:
57-20 (1) "Distance learning" means instruction, learning,
57-21 and training that is transmitted from one site to one or more sites
57-22 by telecommunications services that are used by an educational
57-23 institution predominantly for such instruction, learning, or
57-24 training, including video, data, voice, and electronic information.
57-25 (2) "Educational institution" means and includes:
57-26 (A) accredited primary or secondary schools
57-27 owned or operated by state and local governmental entities or
57-28 private entities;
57-29 (B) institutions of higher education as defined
57-30 by Section 61.003, Education Code;
57-31 (C) private institutions of higher education
57-32 accredited by a recognized accrediting agency as defined by Section
57-33 61.003(13), Education Code;
57-34 (D) the Central Education Agency, its successors
57-35 and assigns;
57-36 (E) regional education service centers
57-37 established and operated pursuant to Sections 11.32 and 11.33,
57-38 Education Code; and
57-39 (F) the Texas Higher Education Coordinating
57-40 Board, its successors and assigns. (Sec. 96B)
57-41 Sec. 3.356. RECOVERY OF LOST REVENUES. A local exchange
57-42 company is entitled to recover the lost revenue, if any, resulting
57-43 solely from the provision of tel-assistance service from the
57-44 universal service fund, the establishment of which is provided for
57-45 by this Act. (Sec. 97)
57-46 Sec. 3.357. UNIVERSAL SERVICE FUND. (a) The commission
57-47 shall adopt and enforce rules requiring local exchange companies to
57-48 establish a universal service fund to assist local exchange
57-49 companies in providing basic local exchange service at reasonable
57-50 rates in high cost rural areas, to reimburse local exchange
57-51 companies for revenues lost as a result of providing tel-assistance
57-52 service under this Act, to reimburse the telecommunications carrier
57-53 providing the statewide telecommunications relay access service for
57-54 the hearing-impaired and speech-impaired as authorized in Section
57-55 3.354 of this Act, and to reimburse the Texas Department of Human
57-56 Services and the commission for costs incurred in implementing the
57-57 provisions of this subtitle.
57-58 (b) The universal service fund shall be funded by a
57-59 statewide uniform charge, at rates and on services determined by
57-60 the commission, payable by all telecommunications utilities that
57-61 have access to the customer base. In establishing the uniform
57-62 level of the charge and the services to which it will apply, the
57-63 commission may not make or grant an unreasonable preference or
57-64 advantage to a telecommunications utility or subject a
57-65 telecommunications utility to unreasonable prejudice or
57-66 disadvantage. The charge shall be paid in accordance with
57-67 procedures approved by the commission.
57-68 (c) The commission shall:
57-69 (1) establish, in a manner that assures reasonable
57-70 rates for basic local exchange service, eligibility criteria it
58-1 finds necessary for participation in the universal service fund;
58-2 (2) determine which local exchange companies meet the
58-3 eligibility criteria;
58-4 (3) determine the amount of and approve a procedure
58-5 for reimbursement to local exchange companies of revenue lost in
58-6 providing tel-assistance service under this Act;
58-7 (4) prescribe and collect fees from the universal
58-8 service fund necessary to recover the costs the Texas Department of
58-9 Human Services and the commission incurred in implementing and
58-10 administrating the provisions of this subtitle; and
58-11 (5) approve procedures for the collection and
58-12 disbursal of the revenues of the universal service fund.
58-13 (d) The commission shall adopt rules for the implementation
58-14 and administration of the universal service fund.
58-15 (e) The commission may do all things necessary and
58-16 convenient to implement and administer the universal service fund.
58-17 (Sec. 98)
58-18 Sec. 3.358. INTERACTIVE MULTIMEDIA COMMUNICATIONS. (a) The
58-19 commission shall permit a local exchange company that provides
58-20 interactive multimedia communications services to establish rates
58-21 at levels necessary, using sound ratemaking principles, to recover
58-22 costs associated with providing the services. Unless determined by
58-23 the commission to be in the public interest, a local exchange
58-24 company may not establish rates under this subsection that are less
58-25 than the local exchange company's long run incremental costs of
58-26 providing the interactive multimedia communications services.
58-27 (b) In this section, "interactive multimedia communications"
58-28 has the meaning assigned by Section 14.0451(a), Education Code, as
58-29 added by Chapter 868, Acts of the 73rd Legislature, Regular
58-30 Session, 1993. (Sec. 98A)
58-31 Sec. 3.359. SEVERABILITY. If this subtitle conflicts with
58-32 another provision of this Act, this subtitle prevails. (Sec. 99)
58-33 SUBTITLE I. AUTOMATIC DIAL ANNOUNCING DEVICES
58-34 Sec. 3.401. DEFINITIONS. In this subtitle:
58-35 (1) "Automated dial announcing device" or "ADAD" means
58-36 automated equipment used for telephone solicitation or collection
58-37 that is capable:
58-38 (A) of storing telephone numbers to be called or
58-39 has a random or sequential number generator capable of producing
58-40 numbers to be called; and
58-41 (B) alone or in conjunction with other
58-42 equipment, of conveying a prerecorded or synthesized voice message
58-43 to the number called without the use of a live operator.
58-44 (2) "LEC" means a local exchange company, as that term
58-45 is defined by Section 3.001 of this Act. (Sec. 111)
58-46 Sec. 3.402. EXEMPTIONS. This subtitle does not apply to the
58-47 use of an ADAD to make a telephone call:
58-48 (1) relating to an emergency or a public service under
58-49 a program developed or approved by the emergency management
58-50 coordinator of the county in which the call was received; or
58-51 (2) made by a public or private primary or secondary
58-52 school system to locate or account for a truant student. (Sec.
58-53 112)
58-54 Sec. 3.403. REQUIREMENTS FOR OPERATION OF ADAD. (a) A
58-55 person may not operate an ADAD to make a telephone call if the
58-56 device plays a recorded message when a connection is completed to a
58-57 telephone number unless:
58-58 (1) the person has obtained a permit from the
58-59 commission and given written notice specifying the type of device
58-60 to each telecommunications utility over whose system the device is
58-61 to be used;
58-62 (2) the device is not used for random number dialing
58-63 or to dial numbers determined by successively increasing or
58-64 decreasing integers;
58-65 (3) the message states during the first 30 seconds of
58-66 the call the nature of the call, the identity of the person,
58-67 company, or organization making the call, and the telephone number
58-68 from which the call was made;
58-69 (4) the device disconnects from the called person's
58-70 line not later than 30 seconds after the call is terminated by
59-1 either party or, if the device cannot disconnect within that
59-2 period, a live operator introduces the call and receives the oral
59-3 consent of the called person before beginning a prerecorded or
59-4 synthesized voice message; and
59-5 (5) for calls terminating in this state, the device is
59-6 not used to make a call:
59-7 (A) before noon or after 9 p.m. on a Sunday or
59-8 before 9 a.m. or after 9 p.m. on a weekday or a Saturday, if the
59-9 device is used for solicitation; or
59-10 (B) at an hour at which collection calls would
59-11 be prohibited under the federal Fair Debt Collection Practices Act
59-12 (15 U.S.C. Section 1692 et seq.), if the device is used for
59-13 collection purposes.
59-14 (b) In addition to the requirements prescribed by Subsection
59-15 (a) of this section, if during the call a cross-promotion or
59-16 reference to a pay-per-call information service is made, the call
59-17 shall include:
59-18 (1) a statement that a charge will be incurred by a
59-19 caller who makes a call to a pay-per-call information services
59-20 telephone number;
59-21 (2) the amount of the flat-rate or cost-per-minute
59-22 charge that will be incurred or the amount of both if both charges
59-23 will be incurred; and
59-24 (3) the estimated amount of time required to receive
59-25 the entire information offered by the service during a call.
59-26 (c) In this section, "pay-per-call information service"
59-27 means a service that allows a caller to dial a specified "900" or
59-28 "976" number to call a service that routinely delivers, for a
59-29 predetermined and sometimes time-sensitive fee, a prerecorded or
59-30 live message or interactive program. (Sec. 113)
59-31 Sec. 3.404. INVESTIGATION OF COMPLAINTS; VIOLATIONS;
59-32 DISCONNECTION OF SERVICE. (a) The commission shall investigate
59-33 complaints relating to the use of an ADAD and enforce this
59-34 subtitle.
59-35 (b) If the commission or a court determines that a person
59-36 has violated this subtitle, the commission or court shall require a
59-37 telecommunications utility to disconnect service to the person.
59-38 The telecommunications utility may reconnect service to the person
59-39 only on a determination by the commission that the person will
59-40 comply with this subtitle. The utility shall give notice to the
59-41 person using the device of its intent to disconnect service not
59-42 later than the third day before the date of the disconnection,
59-43 except that if the device is causing network congestion or
59-44 blockage, the notice may be given on the day before the date of
59-45 disconnection.
59-46 (c) A telecommunications utility may, without an order by
59-47 the commission or a court, disconnect or refuse to connect service
59-48 to a person using or intending to use an ADAD if the utility
59-49 determines that the device would cause or is causing network harm.
59-50 (Sec. 114)
59-51 Sec. 3.405. APPLICATION FOR PERMIT TO OPERATE ADAD. (a) An
59-52 application for a permit to use one or more ADADs must be made
59-53 using the form prescribed by the commission and must be accompanied
59-54 by a fee in a reasonable amount computed to cover the enforcement
59-55 cost to the commission, but not to exceed $500, as determined by
59-56 the commission. A permit is valid for one year after its effective
59-57 date. Subject to Subsection (c) of this section, a permit may be
59-58 renewed annually by making the filing required by this section and
59-59 paying a filing fee of not more than $100, as determined by the
59-60 commission. The proceeds of the fees shall be deposited to the
59-61 credit of the General Revenue Fund.
59-62 (b) Each application for the issuance or renewal of a permit
59-63 under this section must contain the telephone number of each ADAD
59-64 that will be used and the physical address from which the ADAD will
59-65 operate. If the telephone number of an ADAD or the physical
59-66 address from which the ADAD operates changes, the owner or operator
59-67 of the ADAD shall notify the commission by certified mail of each
59-68 new number or address not later than the 48th hour before the hour
59-69 at which the ADAD will begin operating with the new telephone
59-70 number or at the new address. If the owner or operator of an ADAD
60-1 fails to notify the commission as required by this subsection
60-2 within the period prescribed by this subsection, the permit is
60-3 automatically invalid.
60-4 (c) In determining if a permit should be issued or renewed,
60-5 the commission shall consider the compliance record of the owner or
60-6 operator of the ADAD. The commission may deny an application for
60-7 the issuance or renewal of a permit because of the applicant's
60-8 compliance record.
60-9 (d) The commission shall provide to an LEC on request a copy
60-10 of a permit issued under this section and of any changes relating
60-11 to the permit.
60-12 (e) An LEC that receives a complaint relating to the use of
60-13 an ADAD shall send the complaint to the commission. The commission
60-14 by rule shall prescribe the procedures and requirements for sending
60-15 a complaint to the commission. (Sec. 115)
60-16 Sec. 3.406. VIOLATIONS; PENALTIES. (a) A person who owns
60-17 or operates an ADAD and who operates the ADAD without a valid
60-18 permit or with an expired permit or who operates the ADAD in
60-19 violation of this subtitle or a commission rule or order is subject
60-20 to an administrative penalty of not more than $1,000 for each day
60-21 or portion of a day during which the ADAD was operating in
60-22 violation of this section.
60-23 (b) The administrative penalty authorized by this section is
60-24 civil in nature and is cumulative of any other penalty provided by
60-25 law.
60-26 (c) The commission by rule shall prescribe the procedures
60-27 for assessing an administrative penalty under this section. The
60-28 procedures shall require proper notice and hearing in accordance
60-29 with Chapter 2001, Government Code.
60-30 (d) A person may appeal the final order of the commission
60-31 under Chapter 2001, Government Code, using the substantial evidence
60-32 rule on appeal.
60-33 (e) The proceeds of administrative penalties collected under
60-34 this section shall be deposited to the credit of the General
60-35 Revenue Fund. (Sec. 116)
60-36 Sec. 3.407. REVOCATION OF PERMIT; OFFENSES. (a) The
60-37 commission may revoke a permit issued under this subtitle for
60-38 failure to comply with this subtitle.
60-39 (b) A person commits an offense if the person owns or
60-40 operates an ADAD that the person knows is operating in violation of
60-41 this subtitle. An offense under this subsection is a Class A
60-42 misdemeanor. (Sec. 117)
60-43 Sec. 3.408. RULE-MAKING AUTHORITY. The commission may adopt
60-44 any rules necessary to carry out its powers and duties under this
60-45 subtitle. (Sec. 118)
60-46 Sec. 3.409. COMPLIANCE WITH CONSUMERS' REQUESTS NOT TO BE
60-47 CALLED. Every telephone solicitor operating in this state who
60-48 makes consumer telephone calls subject to Section 37.02 of the
60-49 Business & Commerce Code shall implement in-house systems and
60-50 procedures so that every effort is made not to call consumers who
60-51 ask not to be called again. The commission is granted all
60-52 necessary power and authority to enforce the provisions of this
60-53 section. (Sec. 119)
60-54 Sec. 3.410. NOTICE TO CONSUMER OF PROVISIONS OF CHAPTER 37
60-55 OF THE BUSINESS & COMMERCE CODE AND SEC. 3.409. The commission by
60-56 rule shall require that a local exchange company or telephone
60-57 cooperative inform its customers of the provisions of Chapter 37 of
60-58 the Business & Commerce Code and Section 3.409 of this Act by:
60-59 (1) inserting the notice annually in the billing
60-60 statement mailed to a customer; or
60-61 (2) publishing the notice in the consumer information
60-62 pages of its local telephone directory. (Sec. 120)
60-63 SECTION 2. (a) The Public Utility Regulatory Act (Article
60-64 1446c, Vernon's Texas Civil Statutes) is repealed.
60-65 (b) A reference in law to the "Public Utility Regulatory
60-66 Act" means the "Public Utility Regulatory Act of 1995."
60-67 SECTION 3. The importance of this legislation and the
60-68 crowded condition of the calendars in both houses create an
60-69 emergency and an imperative public necessity that the
60-70 constitutional rule requiring bills to be read on three several
61-1 days in each house be suspended, and this rule is hereby suspended,
61-2 and that this Act take effect and be in force from and after its
61-3 passage, and it is so enacted.
61-4 * * * * *