By Danburg                                            H.B. No. 1730
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the protection of telecommunications and electric
 1-3     services customers; providing penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 11.002, Utilities Code, is amended by
 1-6     adding Subsection (c) to read as follows:
 1-7           (c)  Significant changes have occurred in the
 1-8     telecommunications and electric power industries since the Public
 1-9     Utility Regulatory Act was originally adopted.  Changes in
1-10     technology and market structure have increased the need for minimum
1-11     standards of service quality, customer service, and fair business
1-12     practices to ensure high-quality service to customers and a healthy
1-13     marketplace where competition is permitted by law.  It is the
1-14     purpose of this title to grant the Public Utility Commission of
1-15     Texas authority to make and enforce rules necessary to protect
1-16     customers of telecommunications and electric services consistent
1-17     with the public interest.
1-18           SECTION 2.  Section 15.024, Utilities Code, is amended to
1-19     read as follows:
1-20           Sec. 15.024.  ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
1-21     (a)  If the executive director determines that a violation has
 2-1     occurred, the executive director may issue to the commission a
 2-2     report that states the facts on which the determination is based
 2-3     and the executive director's recommendation on the imposition of an
 2-4     administrative penalty, including a recommendation on the amount of
 2-5     the penalty.
 2-6           (b)  Not later than the 14th day after the date the report is
 2-7     issued, the executive director shall give written notice of the
 2-8     report to the person against whom the penalty may be assessed.  The
 2-9     notice may be given by certified mail. The notice must:
2-10                 (1)  include a brief summary of the alleged violation;
2-11                 (2)  state the amount of the recommended penalty; and
2-12                 (3)  inform the person that the person has a right to a
2-13     hearing on the occurrence of the violation, the amount of the
2-14     penalty, or both the occurrence of the violation and the amount of
2-15     the penalty.
2-16           (c)  [A penalty may not be assessed under this section if the
2-17     person against whom the penalty may be assessed remedies the
2-18     violation before the 31st day after the date the person receives
2-19     the notice under Subsection (b).  A person who claims to have
2-20     remedied an alleged violation has the burden of proving to the
2-21     commission that the alleged violation was remedied and was
2-22     accidental or inadvertent.]
2-23           [(d)]  Not later than the 20th day after the date the person
2-24     receives the notice, the person may accept the determination and
2-25     recommended penalty of the executive director in writing or may
 3-1     make a written request for a hearing on the occurrence of the
 3-2     violation, the amount of the penalty, or both the occurrence of the
 3-3     violation and the amount of the penalty.
 3-4           (d) [(e)]  If the person accepts the executive director's
 3-5     determination and recommended penalty, the commission by order
 3-6     shall approve the determination and impose the recommended penalty.
 3-7           (e) [(f)]  If the person requests a hearing or fails to
 3-8     timely respond to the notice, the executive director shall set a
 3-9     hearing and give notice of the hearing to the person.  The hearing
3-10     shall be held by an administrative law judge of the State Office of
3-11     Administrative Hearings.  The administrative law judge shall make
3-12     findings of fact and conclusions of law and promptly issue to the
3-13     commission a proposal for a decision about the occurrence of the
3-14     violation and the amount of a proposed penalty.  Based on the
3-15     findings of fact, conclusions of law, and proposal for a decision,
3-16     the commission by order may find that a violation has occurred and
3-17     impose a penalty or may find that no violation occurred.
3-18           (f) [(g)]  The notice of the commission's order shall be
3-19     given to the person as provided by Chapter 2001, Government Code,
3-20     and must include a statement of the right of the person to judicial
3-21     review of the order.
3-22           SECTION 3.  Subtitle A, Title 2, Utilities Code, is amended
3-23     by adding Chapter 17 to read as follows:
3-24                       CHAPTER 17. CUSTOMER PROTECTION
3-25                      SUBCHAPTER A. GENERAL PROVISIONS
 4-1           Sec. 17.001.  CUSTOMER PROTECTION POLICY.  (a) The
 4-2     legislature finds that new developments in telecommunications
 4-3     services and the production and delivery of electricity, as well as
 4-4     changes in market structure, marketing techniques, and technology,
 4-5     make it essential that customers have safeguards against
 4-6     fraudulent, misleading, or deceptive business practices and against
 4-7     businesses that do not have the technical and financial resources
 4-8     to provide adequate service.
 4-9           (b)  The purpose of this chapter is to establish customer
4-10     protection standards and confer on the commission authority to
4-11     adopt and enforce rules to protect customers from unfair,
4-12     deceptive, or anticompetitive practices.
4-13           (c)  Nothing in this section shall be construed to abridge
4-14     customer rights set forth in commission rules in effect at the time
4-15     of the enactment of this chapter.
4-16           (d)  This chapter does not limit in any way the
4-17     constitutional, statutory and common law authority of the Office of
4-18     the Attorney General of Texas.
4-19           Sec. 17.002.  DEFINITIONS. In this chapter:
4-20                 (1)  "Billing agent" means any entity that submits
4-21     charges to the billing utility on behalf of itself or any provider
4-22     of a product or service.
4-23                 (2)  "Billing utility" means any telecommunications
4-24     service provider or electric utility that issues a bill directly to
4-25     a customer for any telecommunications or electric product or
 5-1     service.
 5-2                 (3)  "Certificated telecommunications utility" means a
 5-3     telecommunications utility that has been granted either a
 5-4     certificate of convenience and necessity, a certificate of
 5-5     operating authority, or a service provider certificate of operating
 5-6     authority.
 5-7                 (4)  "Customer" means any person in whose name
 5-8     telephone or electric service is billed, including individuals,
 5-9     governmental units at all levels of government, corporate entities,
5-10     and any other entity with legal capacity to be billed for telephone
5-11     or electric service.
5-12                 (5)  "Electric Utility" has the meaning assigned by
5-13     Section 31.002.
5-14                 (6)  "Service provider" means any entity that offers a
5-15     product or service to a customer and that directly or indirectly
5-16     charges to or collects from a customer's bill an amount for the
5-17     product or service on a customer's local or long distance telephone
5-18     or electric utility bill.
5-19                 (7)  "Telecommunications utility" has the meaning
5-20     assigned by Section 51.002.
5-21           Sec. 17.003.  CUSTOMER AWARENESS.  (a)  The commission shall
5-22     promote public awareness of changes in the electric and
5-23     telecommunications markets, provide customers with information
5-24     necessary to make informed choices about available options, and
5-25     ensure that customers have an adequate understanding of their
 6-1     rights.
 6-2           (b)  The commission shall compile a report on customer
 6-3     service at least once each year showing such comparative customer
 6-4     information from reports given to the commission as it deems
 6-5     necessary.
 6-6           (c)  The commission shall make and enforce rules to require a
 6-7     certificated telecommunications utility or an electric utility to
 6-8     give clear, uniform, and understandable information to customers
 6-9     about rates, terms, services, customer rights, and other necessary
6-10     information as determined by the commission.
6-11           (d)  Customer awareness efforts shall be conducted in English
6-12     and Spanish and any other language as necessary.
6-13           Sec. 17.004.  CUSTOMER PROTECTION STANDARDS.  (a)  All buyers
6-14     of telecommunications and electric services are entitled to:
6-15                 (1)  protection from fraudulent, unfair, misleading,
6-16     deceptive, or anticompetitive practices, including protection from
6-17     being billed for services that were not authorized or provided;
6-18                 (2)  choice of a telecommunications service provider or
6-19     an electric utility, where such choice is permitted by law, and to
6-20     have that choice honored;
6-21                 (3)  information in English and Spanish and any other
6-22     language as the commission deems necessary concerning rates, key
6-23     terms and conditions, and the basis for any claim of environmental
6-24     benefits of certain production facilities;
6-25                 (4)  protection from discrimination on the basis of
 7-1     race, color, sex, nationality, religion, or marital status;
 7-2                 (5)  impartial and prompt resolution of disputes with a
 7-3     certificated telecommunications utility or an electric utility and
 7-4     disputes with a telecommunications service provider related to
 7-5     unauthorized charges and switching of service;
 7-6                 (6)  privacy of customer consumption and credit
 7-7     information;
 7-8                 (7)  accuracy of metering and billing;
 7-9                 (8)  bills presented in a clear, readable format and
7-10     easy-to-understand language;
7-11                 (9)  information in English and Spanish and any other
7-12     language as the commission deems necessary concerning low-income
7-13     assistance programs and deferred payment plans; and
7-14                 (10)  other information or protections necessary to
7-15     ensure high-quality service to customers.
7-16           (b)  The commission shall adopt and enforce such rules as may
7-17     be necessary or appropriate to carry out this section, including
7-18     but not limited to rules for minimum service standards for a
7-19     certificated telecommunications utility or an electric utility
7-20     relating to customer deposits and the extension of credit,
7-21     switching fees, levelized billing programs, and termination of
7-22     service.  The commission may waive language requirements for a good
7-23     cause.
7-24           (c)  The commission shall request the comments of the Office
7-25     of the Attorney General in developing the rules that may be
 8-1     necessary or appropriate to carry out this section.
 8-2           (d)  The commission shall coordinate its enforcement efforts
 8-3     regarding the prosecution of fraudulent, misleading and deceptive
 8-4     business practices with the Office of the Attorney General in order
 8-5     to ensure consistent treatment of specified alleged violations.
 8-6           (e)  Nothing in this section shall be construed to abridge
 8-7     customer rights set forth in commission rules in effect at the time
 8-8     of the enactment of this chapter.
 8-9           Sec. 17.005.  PROTECTIONS FOR CUSTOMERS OF MUNICIPALLY OWNED
8-10     UTILITIES.  A municipally owned utility shall not be deemed to be a
8-11     "service provider" for purposes of Section 17.156(b) and 17.156(e).
8-12     The governing body of a municipally owned utility shall adopt,
8-13     implement and enforce rules which shall have the effect of
8-14     accomplishing the objectives set out in Section 17.004(a) and (b)
8-15     and Section 17.102.  The governing body of a municipally owned
8-16     utility or its designate shall perform the dispute resolution
8-17     function provided for by Section 17.157 for customers served within
8-18     its certified service area.
8-19                 SUBCHAPTER B. CERTIFICATION, REGISTRATION,
8-20                         AND REPORTING REQUIREMENTS
8-21           Sec. 17.051.  ADOPTION OF RULES.  (a) The commission shall
8-22     adopt rules relating to certification, registration, and reporting
8-23     requirements for a certificated telecommunications utility or an
8-24     electric utility, as well as all telecommunications utilities that
8-25     are not dominant carriers, pay telephone providers, qualifying
 9-1     facilities, exempt wholesale generators, and power marketers.
 9-2           (b)  The rules adopted under Subsection (a) shall be
 9-3     consistent with and no less effective than federal law and shall
 9-4     not require the disclosure of highly-sensitive competitive or trade
 9-5     secret information.
 9-6           Sec. 17.052.  SCOPE OF RULES.  The commission shall have
 9-7     authority to make and enforce rules to:
 9-8                 (1)  require certification or registration with the
 9-9     commission as a condition of doing business in this state;
9-10                 (2)  amend certificates or registrations to reflect
9-11     changed ownership and control.
9-12                 (3)  establish rules for customer service and
9-13     protection;
9-14                 (4)  suspend or revoke certificates or registrations
9-15     for repeated violations of this chapter or commission rules; and
9-16                 (5)  order disconnection of a pay telephone service
9-17     provider's pay telephones or revocation of certification or
9-18     registration for repeated violations of this chapter or commission
9-19     rules.
9-20           Sec. 17.053.  REPORTS.  The commission may require a
9-21     telecommunications service provider or an electric utility to
9-22     submit reports to the commission concerning any matter over which
9-23     it has authority under this chapter.
9-24                  SUBCHAPTER C.  CUSTOMER'S RIGHT TO CHOICE
9-25           Sec. 17.101.  POLICY.  It is the policy of this state that
 10-1    all customers are protected from the unauthorized switching of a
 10-2    telecommunications service provider or an electric utility selected
 10-3    by the customer to provide service.
 10-4          Sec. 17.102.  RULES RELATING TO CHOICE.  The commission shall
 10-5    adopt and enforce rules that:
 10-6                (1)  ensure that customers are protected from deceptive
 10-7    practices employed in obtaining authorizations of service and in
 10-8    the verification of provider-initiated change orders, including but
 10-9    not limited to negative option marketing, sweepstakes, and contests
10-10    that cause customers to unknowingly change their telecommunications
10-11    service provider or electric utility;
10-12                (2)  provide for clear, easily understandable
10-13    identification on the first page of each non-electric bill sent to
10-14    a customer of all telecommunications service providers or electric
10-15    utilities submitting charges on the bill;
10-16                (3)  ensure that every service provider submitting
10-17    charges on the bill is clearly and easily identified on the bill
10-18    along with its services, products, and charges;
10-19                (4)  require a telecommunications service provider or
10-20    an electric utility to maintain records of nonpublic
10-21    customer-specific information that may be used to establish that
10-22    the customer authorized a change in service for 24 months;
10-23                (5)  provide that unauthorized changes in service be
10-24    remedied at no cost to the customer within a period established by
10-25    the commission;
 11-1                (6)  require refunds or credit with interest to the
 11-2    customer in the event of an unauthorized change; and
 11-3                (7)  provide for penalties for violations of commission
 11-4    rules adopted under this section, including but not limited to
 11-5    fines and revocation of certificates or registrations, thereby
 11-6    denying the certificated telecommunications utility or the electric
 11-7    utility the right to provide service in this state.
 11-8          SUBCHAPTER D.  PROTECTION AGAINST UNAUTHORIZED CHARGES
 11-9          Sec. 17.151.  REQUIREMENTS FOR SUBMITTING CHARGES.  (a)  A
11-10    service provider or billing agent may submit charges for a product
11-11    or service to be billed on a customer's telephone or electric bill
11-12    only if:
11-13                (1)  the service provider offering the product or
11-14    service has thoroughly informed the customer of the product or
11-15    service being offered, including all associated charges, and has
11-16    explicitly informed the customer that the associated charges for
11-17    the product or service will appear on the customer's telephone or
11-18    electric bill;
11-19                (2)  the customer has clearly and explicitly consented
11-20    to obtain the product or service offered and to have the associated
11-21    charges appear on the customer's telephone or electric bill and the
11-22    consent has been verified and recorded as provided by Subsection
11-23    (b); and
11-24                (3)  the service provider offering the product or
11-25    service and any billing agent for the service provider:
 12-1                      (A)  has provided the customer with a toll-free
 12-2    telephone number the customer may call and an address to which the
 12-3    customer may write to resolve any billing dispute and to answer
 12-4    questions; and
 12-5                      (B)  has contracted  with the billing utility to
 12-6    bill for products and services on the billing utility's bill.  The
 12-7    contract must include the service provider's name, business
 12-8    address, and business telephone number and shall be maintained as
 12-9    provided by Subsection (c).
12-10          (b)  The customer consent required by Subsection (a)(2) must
12-11    be verified by the person, corporation, or telecommunications or
12-12    electric utility offering the product or service by authorization
12-13    from the customer in the manner prescribed by the commission. A
12-14    record of the customer consent, including verification, must be
12-15    maintained by the person, corporation, or telecommunications or
12-16    electric utility offering the product or service and any billing
12-17    agent for such person, corporation, or telecommunications or
12-18    electric utility for a period of  at least 24 months immediately
12-19    after the consent and verification have been obtained.
12-20          (c)  The contract required by Subsection (a)(30)(B) shall be
12-21    maintained by the billing utility for as long as the billing for
12-22    such products and services continues and for the 24 months
12-23    immediately following the permanent discontinuation of such
12-24    billing.
12-25          (d)  A service provider offering a product or service to be
 13-1    charged on a customer's telephone or electric bill and any billing
 13-2    agent for the service provider shall not use any fraudulent,
 13-3    unfair, misleading, deceptive, or anticompetitive marketing
 13-4    practice to obtain customers, including the use of negative option
 13-5    marketing, sweepstakes, and contests.
 13-6          (e)  This section does not apply to customer initiated
 13-7    transactions for which the service provider has appropriate
 13-8    documentation.
 13-9          Sec. 17.152.  RESPONSIBILITIES OF A BILLING UTILITY.  (a)  If
13-10    a customer's telephone or electric bill is charged for any product
13-11    or service without proper customer consent or verification, the
13-12    billing utility, upon its knowledge or notification of any
13-13    unauthorized charge, shall promptly, but in no event later than 45
13-14    days after such knowledge or notification of such charge:
13-15                (1)  cease to charge the customer for such unauthorized
13-16    product or service;
13-17                (2)  remove any unauthorized charge from the customer's
13-18    bill;
13-19                (3)  refund or credit to the customer all money that
13-20    has been paid by the customer for any unauthorized charge;
13-21                (4)  upon the customer's request, provide the customer
13-22    with all billing records under its control related to any
13-23    unauthorized charge within 10 business days of the removal of the
13-24    unauthorized charge from the customer's bill; and
13-25                (5)  maintain for at least 24 months a record of every
 14-1    customer who has experienced any unauthorized charge for a product
 14-2    or service on the customer's telephone or electric bill and who has
 14-3    notified the billing utility of the unauthorized charge.
 14-4          (b)  A record required by Subsection (a)(5) shall contain for
 14-5    each unauthorized charge:
 14-6                (1)  the name of the service provider that offered the
 14-7    product or service;
 14-8                (2)  any affected telephone numbers or addresses;
 14-9                (3)  the date the customer requested that the billing
14-10    utility remove the unauthorized charge;
14-11                (4)  the date the unauthorized charge was removed from
14-12    the customer's telephone or electric bill; and
14-13                (5)  the date any money that the customer paid for the
14-14    unauthorized charges was refunded or credited to the customer.
14-15          (c)  A billing utility shall not:
14-16                (1)  disconnect or terminate telecommunications or
14-17    electric service to any customer for nonpayment of an unauthorized
14-18    charge; or
14-19                (2)  file an unfavorable credit report against a
14-20    customer who has not paid charges under this section unless the
14-21    dispute is ultimately resolved against the customer.
14-22          Sec. 17.153.  RECORDS OF DISPUTED CHARGES.  (a)  Every
14-23    service provider shall maintain a record of every disputed charge
14-24    for a product or service placed on a customer's bill.
14-25          (b)  The record required under Subsection (a) shall contain
 15-1    for every disputed charge:
 15-2                (1)  any affected telephone numbers or addresses;
 15-3                (2)  the date the customer requested that the billing
 15-4    utility remove the unauthorized charge;
 15-5                (3)  the date the unauthorized charge was removed from
 15-6    the customer's telephone or electric bill; and
 15-7                (4)  the date action was taken to refund or credit to
 15-8    the customer any money that the customer paid for the unauthorized
 15-9    charges.
15-10          (c)  The record required by Subsection (a) shall be
15-11    maintained for at least 24 months following the completion of all
15-12    steps required by Section 17.152(a).
15-13          Sec. 17.154.  NOTICE.  (a)  A billing utility shall provide
15-14    notice of a customer's rights under this section in the manner
15-15    prescribed by the commission.
15-16          (b)  Notice of a customer's rights must be provided by mail
15-17    to each residential and business customer within 60 days of the
15-18    effective date of this section or by publication of the next
15-19    telephone directory following the effective date of this section.
15-20    In addition, each billing utility shall send the notice to new
15-21    customers at the time service is initiated or to any customer at
15-22    that customer's request.
15-23          Sec. 17.155.  PROVIDING COPY OF RECORDS.  A billing utility
15-24    shall provide a copy of records maintained under the requirements
15-25    of Sections 17.152, 17.153, and 17.154 to the commission staff upon
 16-1    request.
 16-2          Sec. 17.156.  VIOLATIONS.  (a)  If the commission finds that
 16-3    a billing utility has engaged in a violation of this subchapter,
 16-4    the commission has the authority to implement penalties and other
 16-5    enforcement actions pursuant to Chapter 15.
 16-6          (b)  If the commission finds that any service provider or
 16-7    billing agent subject to the provisions of this subchapter has
 16-8    engaged in violations of this subchapter or has knowingly provided
 16-9    false information to the commission on matters subject to this
16-10    subchapter, the commission may enforce the provisions of Chapter 15
16-11    against the service provider or billing agent as if it were
16-12    regulated by the commission.
16-13          (c)  Neither the authority granted under this section nor any
16-14    other provision of this subchapter shall be construed to grant the
16-15    commission jurisdiction to regulate service providers or billing
16-16    agents who are not otherwise subject to commission regulation,
16-17    other than as specifically provided by this chapter.
16-18          (d)  If the commission finds that a billing utility
16-19    repeatedly violates this subchapter, the commission may, if such
16-20    action is consistent with the public interest, suspend, restrict,
16-21    or revoke the registration or certificate of the telecommunications
16-22    service provider or electric utility, thereby denying the
16-23    telecommunications service provider or electric utility the right
16-24    to provide service in this state.
16-25          (e)  If the commission finds that a service provider or
 17-1    billing agent has repeatedly violated any provision of this
 17-2    subchapter, the commission may order the billing utility to
 17-3    terminate billing and collection services for that service provider
 17-4    or billing agent.
 17-5          (f)  Nothing in this subchapter shall be construed to
 17-6    preclude a billing utility from taking action on its own to
 17-7    terminate or restrict its billing and collection services.
 17-8          Sec. 17.157.  DISPUTES.  (a)  The commission is authorized to
 17-9    resolve disputes between a customer and a certificated
17-10    telecommunications utility or an electric utility.
17-11          (b)  In exercising its authority under Subsection (a), the
17-12    commission may:
17-13                (1)  order a certificated telecommunications utility or
17-14    an electric utility to produce information or records;
17-15                (2)  require that all contracts, bills, and other
17-16    communications from a certificated telecommunications utility or an
17-17    electric utility display a working toll-free telephone number that
17-18    customers may call with complaints and inquiries;
17-19                (3)  require a certificated telecommunications utility
17-20    or an electric utility to refund overcharges or unauthorized
17-21    charges with interest if the certificated telecommunications
17-22    utility or the electric utility has failed to comply with
17-23    commission rules or a contract with the customer;
17-24                (4)  order appropriate relief to ensure that a
17-25    customer's choice of a telecommunications service provider or an
 18-1    electric utility that encompasses a geographic area in which more
 18-2    than one provider has been certified is honored;
 18-3                (5)  require the continuation of service to a
 18-4    residential or small commercial customer while a dispute is pending
 18-5    regarding charges the customer has alleged were unauthorized; and
 18-6                (6)  investigate an alleged violation.
 18-7          (c)  The commission shall adopt procedures for resolution of
 18-8    disputes in a timely manner which in no event shall exceed 60 days.
 18-9          SECTION 4.  The importance of this legislation and the
18-10    crowded condition of the calendars in both houses create an
18-11    emergency and an imperative public necessity that the
18-12    constitutional rule requiring bills to be read on three several
18-13    days in each house be suspended, and this rule is hereby suspended,
18-14    and that this Act take effect and be in force from and after its
18-15    passage, and it is so enacted.