77R11587 CBH-F
By Chisum, Hardcastle, Turner of Coleman, H.B. No. 2388
West
Substitute the following for H.B. No. 2388:
By Counts C.S.H.B. No. 2388
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the provision of telecommunications services to
1-3 permanent residential or business premises that are not included in
1-4 a certificated service area.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 56.001, Utilities Code, is amended to read
1-7 as follows:
1-8 Sec. 56.001. DEFINITIONS [DEFINITION]. In this chapter:
1-9 (1) "Department" [, "department"] means the Texas
1-10 Department of Human Services.
1-11 (2) "Designated provider" means a telecommunications
1-12 provider designated by the commission to provide services to an
1-13 uncertificated area under Subchapter F.
1-14 SECTION 2. Section 56.021, Utilities Code, is amended to read
1-15 as follows:
1-16 Sec. 56.021. UNIVERSAL SERVICE FUND ESTABLISHED. The
1-17 commission shall adopt and enforce rules requiring local exchange
1-18 companies to establish a universal service fund to:
1-19 (1) assist telecommunications providers in providing
1-20 basic local telecommunications service at reasonable rates in high
1-21 cost rural areas;
1-22 (2) reimburse telecommunications providers for revenue
1-23 lost by providing tel-assistance service under Subchapter C;
1-24 (3) reimburse the telecommunications carrier that
2-1 provides the statewide telecommunications relay access service
2-2 under Subchapter D;
2-3 (4) finance the specialized telecommunications
2-4 assistance program established under Subchapter E;
2-5 (5) reimburse the department, the Texas Commission for
2-6 the Deaf and Hard of Hearing, and the commission for costs incurred
2-7 in implementing this chapter and Chapter 57; [and]
2-8 (6) reimburse a telecommunications carrier providing
2-9 lifeline service as provided by 47 C.F.R. Part 54, Subpart E, as
2-10 amended; and
2-11 (7) reimburse a designated provider under Subchapter
2-12 F.
2-13 SECTION 3. Section 56.023, Utilities Code, is amended by
2-14 amending Subsections (b) and (c) and adding Subsection (d) to read
2-15 as follows:
2-16 (b) The eligibility criteria must require that a
2-17 telecommunications provider, in compliance with the commission's
2-18 quality of service requirements:
2-19 (1) offer service to each consumer within the
2-20 company's certificated area and to any permanent residential or
2-21 business premises to which the company is designated to provide
2-22 services under Subchapter F; and
2-23 (2) render continuous and adequate service within the
2-24 company's certificated area and to any permanent residential or
2-25 business premises to which the company is designated to provide
2-26 services under Subchapter F.
2-27 (c) A company designated under Subchapter F to provide
3-1 services to permanent residential or business premises within an
3-2 uncertificated area and that complies with Subsection (b) shall
3-3 receive universal service fund distributions to assist the provider
3-4 in providing those services. In addition, the commission shall
3-5 designate the provider as an eligible telecommunications carrier
3-6 under 47 U.S.C. Section 214(e)(2), as amended, for those permanent
3-7 residential or business premises.
3-8 (d) The commission shall adopt rules for the administration
3-9 of the universal service fund and this chapter and may act as
3-10 necessary and convenient to administer the fund and this chapter.
3-11 SECTION 4. Chapter 56, Utilities Code, is amended by adding
3-12 Subchapter F to read as follows:
3-13 SUBCHAPTER F. SERVICE TO UNCERTIFICATED AREA
3-14 Sec. 56.201. DEFINITION. In this subchapter, "permanent
3-15 residential or business premises" means a premises that has
3-16 permanent facilities for water, wastewater, and electricity.
3-17 Sec. 56.202. DESIGNATION OF PROVIDER. (a) Notwithstanding
3-18 Section 54.001, the commission may designate a telecommunications
3-19 provider under this section to provide voice-grade services to
3-20 permanent residential or business premises that are not included
3-21 within the certificated area of a holder of a certificate of
3-22 convenience and necessity.
3-23 (b) The commission may designate a provider only if the
3-24 provider is otherwise eligible to receive universal service funds
3-25 under Section 56.023(b).
3-26 Sec. 56.203. PETITION FOR SERVICE. Persons residing in
3-27 permanent residential premises or owners of permanent residential
4-1 or business premises that are not included within the certificated
4-2 area of a holder of a certificate of convenience and necessity may
4-3 petition the commission to designate a telecommunications provider
4-4 to provide to those premises voice-grade services supported by
4-5 state and federal universal service support mechanisms.
4-6 Sec. 56.204. CONTENTS OF PETITION. (a) A petition for
4-7 designation of a service provider must:
4-8 (1) state with reasonable particularity the locations
4-9 of the permanent residential or business premises for which the
4-10 petitioners are requesting service;
4-11 (2) establish that those locations are within
4-12 reasonable proximity to one another so that the petitioners possess
4-13 a sufficient community of interest to warrant the designation of a
4-14 provider and the expenditure of universal service funds necessary
4-15 to establish service;
4-16 (3) except as provided by Subsection (b), be signed by
4-17 at least five persons who:
4-18 (A) are not members of the same household;
4-19 (B) reside in the permanent residential premises
4-20 or are the owners of the permanent residential or business premises
4-21 for which service is sought and that are not located within a
4-22 certificated area;
4-23 (C) want service to those premises; and
4-24 (D) commit to pay the aid to construction
4-25 charges for service to those premises as determined by the
4-26 commission;
4-27 (4) nominate as potential providers of service not
5-1 more than five telecommunications providers serving territory that
5-2 is contiguous to the location of the permanent residential or
5-3 business premises using wireless or wireline facilities, resale, or
5-4 unbundled network elements; and
5-5 (5) include as an attachment or an appendix
5-6 documentation indicating the required residence or ownership,
5-7 including a state-issued license or identification, tax records,
5-8 deeds, or voter registration materials.
5-9 (b) The commission may accept a petition that is signed by
5-10 fewer than five persons if a petitioner provides an affidavit
5-11 stating that the petitioners have taken all reasonable steps to
5-12 secure the signatures of the residents of permanent residential
5-13 premises or the owners of permanent residential or business
5-14 premises within reasonably close proximity to the petitioning
5-15 premises who are not receiving telephone service when the petition
5-16 is filed and who want telephone service initiated.
5-17 Sec. 56.205. HEARING. If the commission finds that the
5-18 petition complies with Section 56.204, the commission shall hold an
5-19 evidentiary hearing to determine if a telecommunications provider
5-20 is willing to be designated to provide service to those premises
5-21 or, if a provider is not willing to be designated, to determine the
5-22 telecommunications provider that is best able to serve those
5-23 premises under the criteria prescribed by this subchapter.
5-24 Sec. 56.206. DENIAL OF PETITION. The commission shall deny a
5-25 petition if the commission determines that services cannot be
5-26 extended to the petitioning premises at a reasonable cost. In
5-27 making that determination, the commission shall consider all
6-1 relevant factors, including:
6-2 (1) the original cost to be incurred by a designated
6-3 provider to deploy service to the petitioning premises, and the
6-4 effect of reimbursement of those costs on the state universal
6-5 service fund;
6-6 (2) the number of access lines requested by the
6-7 petitioners for the petitioning premises;
6-8 (3) the size of the geographic territory in which the
6-9 petitioning premises are included;
6-10 (4) the proximity of existing facilities and the
6-11 existence of a preferred designated provider under Section 56.213;
6-12 and
6-13 (5) any technical barriers to the provision of
6-14 service.
6-15 Sec. 56.207. ORDER. In any order granting a petition, the
6-16 commission shall:
6-17 (1) approve the facilities to be deployed based on the
6-18 estimated costs of deployment submitted in accordance with Section
6-19 56.208(a);
6-20 (2) approve the amount of original cost of deployment
6-21 to be recovered from the state universal service fund and the terms
6-22 of original cost recovery under Section 56.209; and
6-23 (3) approve the recurring cost recovery under Section
6-24 56.209, including the monthly rate for services and the monthly per
6-25 line fee to be recovered from the state universal service fund
6-26 under that section.
6-27 Sec. 56.208. DESIGNATION OF PROVIDER. (a) In determining
7-1 which nominated telecommunications provider the commission will
7-2 designate to provide service to the petitioning premises, the
7-3 commission shall consider the relative estimated cost to be
7-4 incurred by contiguous providers to serve the petitioning premises
7-5 and give preference to the provider having the least cost
7-6 technology that meets the quality of service standards prescribed
7-7 by the commission applicable to that provider.
7-8 (b) The commission may not designate a telecommunications
7-9 provider to serve the petitioning premises unless the premises are
7-10 located in an area that is contiguous to an area in which the
7-11 telecommunications provider has previously been designated eligible
7-12 to receive universal service funding under Section 56.023(b). This
7-13 subsection does not apply if the commission designates the provider
7-14 after the provider voluntarily agrees to provide service to the
7-15 petitioning premises.
7-16 Sec. 56.209. RECOVERY OF COSTS. (a) If, after a hearing,
7-17 the commission designates a telecommunications provider to serve
7-18 the petitioning premises, the commission shall permit the
7-19 designated provider to recover from the state universal service
7-20 fund the provider's actual costs of providing service to the
7-21 premises, including the provider's original cost of deployment and
7-22 actual recurring costs.
7-23 (b) The reimbursable original cost of deploying facilities
7-24 to the petitioning premises is the original cost of the
7-25 telecommunications provider's facilities installed in, or upgraded
7-26 to permit the provision of service to, the petitioning premises as
7-27 determined by the financial accounting standards applicable to the
8-1 provider, including an amount for the recovery of all costs that
8-2 are typically included as capital costs for accounting purposes,
8-3 that are not recovered through an aid to construction charge
8-4 assessed to the petitioners. The final order permitting or
8-5 requiring the designated provider to provide service to the
8-6 petitioning premises shall ensure that all the original cost of
8-7 the provider shall be amortized and recovered from the state
8-8 universal service fund, together with interest at the prevailing
8-9 commercial lending rate:
8-10 (1) not later than the third anniversary of the date
8-11 of the order, for a deployment with an original cost of $1 million
8-12 or less;
8-13 (2) not later than the fifth anniversary of the date
8-14 of the order, for a deployment with an original cost of more than
8-15 $1 million, but not more than $2 million; and
8-16 (3) not later than the seventh anniversary of the date
8-17 of the order, for a deployment with an original cost of more than
8-18 $2 million.
8-19 (c) The designated provider shall recover the provider's
8-20 actual recurring costs of service, including maintenance and the
8-21 ongoing operational costs of providing service after deployment of
8-22 the facilities to the petitioning premises and a reasonable
8-23 operating margin, from:
8-24 (1) the monthly rate charged the customer; and
8-25 (2) a monthly per line state universal service fund
8-26 payment in an amount equal to the unrecovered recurring costs
8-27 incurred in providing service divided by the access lines served in
9-1 the petitioning premises.
9-2 (d) The monthly per line fee established under Subsection
9-3 (c) is in addition to the universal service funds associated with
9-4 the recovery of the original cost of deployment and interest
9-5 authorized by Subsection (b) and in addition to the universal
9-6 service funds the designated provider receives to provide service
9-7 in other areas of this state.
9-8 (e) The commission may not authorize or require any services
9-9 to be provided to petitioning premises under this subchapter during
9-10 a fiscal year if the total amount of required reimbursements of
9-11 actual original cost of deployment to all approved petitioning
9-12 premises under this section, together with interest, including
9-13 obligations for reimbursements from preceding years, would equal an
9-14 amount that exceeds 0.02 percent of the annual gross revenues
9-15 reported to the state universal service fund during the preceding
9-16 fiscal year.
9-17 Sec. 56.210. AID TO CONSTRUCTION CHARGE; CONTRACT FOR
9-18 SERVICES. The commission shall establish a reasonable aid to
9-19 construction charge, not to exceed $3,000, to be assessed each
9-20 petitioner. The commission may not require a designated provider to
9-21 begin construction until:
9-22 (1) each petitioner has paid or executed an agreement
9-23 acceptable to the provider to pay the aid to construction charge;
9-24 and
9-25 (2) each petitioner has executed an assignable
9-26 agreement for subscription to basic local service to the
9-27 petitioning premises from the designated provider for a period at
10-1 least equal to the period during which the provider will receive
10-2 reimbursement for the original cost of deployment under Section
10-3 56.209(b).
10-4 Sec. 56.211. PERMANENT PREMISES REQUIRED. A
10-5 telecommunications provider may not under any circumstances be
10-6 required to extend service to a location that is not a permanent
10-7 residential or business premises or be required to provide service
10-8 to the petitioning premises before the 180th day after the date the
10-9 provider was designated to provide service to the petitioning
10-10 premises.
10-11 Sec. 56.212. SUBSEQUENT RELATED PETITIONS. (a) If the
10-12 commission approves a petition requesting service, residents of
10-13 permanent residential premises or owners of permanent residential
10-14 or business premises in reasonable proximity to the premises that
10-15 were the subject of an approved petition who did not sign the prior
10-16 petition requesting service are not entitled to receive service
10-17 under this subchapter until the fifth anniversary of the date the
10-18 prior petition was filed unless the residents or owners file a new
10-19 petition under this subchapter and agree to pay aid to construction
10-20 charges on the same terms as applicable to the prior petitioners.
10-21 (b) The designated provider shall receive reimbursement for
10-22 the original cost of deployment and actual recurring costs of
10-23 providing service to those additional residents in the same manner
10-24 as the provider received reimbursement of those costs in relation
10-25 to the prior petitioners. The provider may not receive
10-26 reimbursement for the original cost of deployment under a
10-27 subsequent petition if the provider previously received complete
11-1 reimbursement for those costs from the state universal service
11-2 fund. If the state universal service fund has completely
11-3 reimbursed the original cost of deployment as provided by this
11-4 subchapter, each subsequent petitioner must pay into the state
11-5 universal service fund an amount equal to the aid to construction
11-6 charge paid by each prior petitioner.
11-7 Sec. 56.213. PREFERRED PROVIDER. (a) A provider who is
11-8 designated to serve petitioning premises located within an
11-9 uncertificated area under this subchapter is the preferred provider
11-10 for any permanent residential or business premises in reasonable
11-11 proximity to those petitioning premises for later petitions filed
11-12 under Section 56.212.
11-13 (b) A preferred designated provider is entitled to an
11-14 opportunity for a hearing under Section 56.205 on a petition filed
11-15 under Section 56.203.
11-16 Sec. 56.214. CERTIFICATE NOT AMENDED. The designation of a
11-17 provider to serve permanent residential or business premises within
11-18 an uncertificated area under this subchapter does not have the
11-19 effect of:
11-20 (1) amending the boundaries of the provider's
11-21 certificate to provide local exchange service; or
11-22 (2) imposing carrier of last resort responsibilities
11-23 on the provider.
11-24 SECTION 5. Section 51.002(10), Utilities Code, as amended by
11-25 Chapters 1212 and 1579, Acts of the 76th Legislature, Regular
11-26 Session, 1999, is reenacted and amended to read as follows:
11-27 (10) "Telecommunications provider":
12-1 (A) means:
12-2 (i) a certificated telecommunications
12-3 utility;
12-4 (ii) a shared tenant service provider;
12-5 (iii) a nondominant carrier of
12-6 telecommunications services;
12-7 (iv) a provider of commercial mobile
12-8 service as defined by Section 332(d), Communications Act of 1934
12-9 (47 U.S.C. Section 151 et seq.), Federal Communications Commission
12-10 rules, and the Omnibus Budget Reconciliation Act of 1993 (Public
12-11 Law 103-66), except that the term does not include these entities
12-12 for the purposes of Chapter 17, 55, or 64;
12-13 (v) a telecommunications entity that
12-14 provides central office based PBX-type sharing or resale
12-15 arrangements;
12-16 (vi) an interexchange telecommunications
12-17 carrier;
12-18 (vii) a specialized common carrier;
12-19 (viii) a reseller of communications;
12-20 (ix) a provider of operator services;
12-21 (x) a provider of customer-owned pay
12-22 telephone service; or
12-23 (xi) a [another] person or entity
12-24 determined by the commission to provide telecommunications services
12-25 to customers in this state; and
12-26 (B) does not mean:
12-27 (i) a provider of enhanced or information
13-1 services, or another user of telecommunications services, who does
13-2 not also provide telecommunications services; or
13-3 (ii) a state agency or state institution
13-4 of higher education, or a service provided by a state agency or
13-5 state institution of higher education.
13-6 SECTION 6. This Act takes effect September 1, 2001.