By Chisum H.B. No. 2388
77R5743 CBH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the provision of telecommunications services to an area
1-3 not included in a certificated service area.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 56.001, Utilities Code, is amended to read
1-6 as follows:
1-7 Sec. 56.001. DEFINITIONS [DEFINITION]. In this chapter:
1-8 (1) "Department"[, "department"] means the Texas
1-9 Department of Human Services.
1-10 (2) "Designated provider" means a telecommunications
1-11 provider designated by the commission to provide services to an
1-12 uncertificated area under Section 56.029.
1-13 SECTION 2. Section 56.023, Utilities Code, is amended by
1-14 amending Subsections (b) and (c) and adding Subsection (d) to read
1-15 as follows:
1-16 (b) The eligibility criteria must require that a
1-17 telecommunications provider, in compliance with the commission's
1-18 quality of service requirements:
1-19 (1) offer service to each consumer within the
1-20 company's certificated area and within any area in which the
1-21 company is designated under Section 56.029 to provide services to
1-22 an uncertificated area; and
1-23 (2) render continuous and adequate service within the
1-24 company's certificated area and within any area in which the
2-1 company is designated under Section 56.029 to provide services to
2-2 an uncertificated area.
2-3 (c) A company designated under Section 56.029 to provide
2-4 services to an uncertificated area and that complies with
2-5 Subsection (b) shall receive universal service fund distributions
2-6 to assist the provider in providing those services. In addition,
2-7 the commission shall designate the provider as an eligible
2-8 telecommunications carrier under 47 U.S.C. Section 214(e)(2) for
2-9 that area.
2-10 (d) The commission shall adopt rules for the administration
2-11 of the universal service fund and this section and may act as
2-12 necessary and convenient to administer the fund and this section.
2-13 SECTION 3. Section 56.025, Utilities Code, is amended by
2-14 adding Subsection (g) to read as follows:
2-15 (g) The commission shall implement a mechanism to determine
2-16 a reasonable rate of recovery for the reimbursable costs incurred
2-17 by a designated provider in providing service in an uncertificated
2-18 area. The mechanism may not allow a designated provider to recover
2-19 more than the actual unreimbursed costs of providing that service.
2-20 The mechanism must allow a designated provider to recover the
2-21 provider's unreimbursed costs over a reasonable period considering
2-22 the effect of the increased expense on the universal service fund
2-23 when the order is entered. The mechanism may not result in an
2-24 increase in the annual fund expense that is equal to more than 0.02
2-25 percent of the annual gross revenues reported in the previous
2-26 fiscal year of the universal service fund. The mechanism may allow
2-27 the commission to increase the fund assessment rate or to increase
3-1 the designated provider's per line recovery rate from the universal
3-2 service fund.
3-3 SECTION 4. Subchapter B, Chapter 56, Utilities Code, is
3-4 amended by adding Section 56.029 to read as follows:
3-5 Sec. 56.029. SERVICE TO UNCERTIFICATED AREA. (a) In this
3-6 section, "permanent residential or business premises" means a
3-7 premises that has permanent facilities for water, wastewater, and
3-8 electricity.
3-9 (b) Notwithstanding Section 54.001, the commission may
3-10 designate a telecommunications provider under this section to
3-11 provide voice-grade services to residents of a community that is
3-12 not included within the certificated area of a holder of a
3-13 certificate of convenience and necessity. The commission may
3-14 designate a provider only if the provider is otherwise eligible to
3-15 receive universal service funds under Section 56.023(a).
3-16 (c) Residents of a community that is not included within the
3-17 certificated area of a holder of a certificate of convenience and
3-18 necessity may petition the commission to designate a
3-19 telecommunications provider to provide to those petitioners
3-20 voice-grade services supported by state and federal universal
3-21 service support mechanisms. If the commission finds that the
3-22 petition complies with Subsection (d), the commission shall hold an
3-23 evidentiary hearing to determine if a telecommunications provider
3-24 is willing to be designated to provide service to those petitioners
3-25 or, if a provider is not willing to be designated, to determine the
3-26 telecommunications provider that is best able to serve those
3-27 petitioners under the criteria prescribed by this section.
4-1 (d) A petition for designation of a service provider must:
4-2 (1) state with reasonable particularity the geographic
4-3 territory for which the petitioners are requesting service;
4-4 (2) establish that the geographic area for which
4-5 service is requested possesses a sufficient community of interest
4-6 to warrant the designation of a provider and the expenditure of
4-7 universal service funds necessary to establish service;
4-8 (3) except as provided by Subsection (e), be signed by
4-9 at least five persons who:
4-10 (A) are not members of the same household;
4-11 (B) are permanent residents of the petitioned
4-12 geographic territory or owners of businesses permanently located in
4-13 the petitioned geographic territory;
4-14 (C) want service to a permanent residential or
4-15 business premises; and
4-16 (D) commit to pay the aid to construction
4-17 charges for service to those premises as determined by the
4-18 commission;
4-19 (4) nominate as potential providers of service not
4-20 more than five telecommunications providers serving territory
4-21 contiguous to the petitioned geographic territory using wireless or
4-22 wireline facilities, resale, or unbundled network elements; and
4-23 (5) include as an attachment or an appendix
4-24 documentation indicating permanent residence in the geographic area
4-25 for which service is requested, including a state-issued license or
4-26 identification, tax records, deeds, or voter registration
4-27 materials.
5-1 (e) The commission may accept a petition that is signed by
5-2 fewer than five persons if each petitioner provides an affidavit
5-3 stating that the petitioner has taken all reasonable steps to
5-4 secure the signatures of each person within reasonably close
5-5 proximity of the geographic territory who is not receiving
5-6 telephone service when the petition is filed and who want telephone
5-7 service initiated.
5-8 (f) In determining which nominated telecommunications
5-9 provider the commission will designate to provide service to the
5-10 petitioners, the commission shall consider the relative estimated
5-11 cost to be incurred by contiguous providers to serve the
5-12 petitioners and give preference to the provider having the least
5-13 cost technology that meets the quality of service standards
5-14 prescribed by the commission.
5-15 (g) The commission may not designate a telecommunications
5-16 provider to serve petitioners unless the area for which service is
5-17 requested is contiguous to an area in which the telecommunications
5-18 provider is eligible to receive universal service funding under
5-19 Section 56.023(b). This subsection does not apply if the commission
5-20 designates the provider after the provider voluntarily agrees to
5-21 provide service to the uncertificated territory.
5-22 (h) The commission shall deny a petition if the commission
5-23 determines that services cannot be extended to the petitioners at a
5-24 reasonable cost. In making that determination, the commission
5-25 shall consider all relevant factors, including:
5-26 (1) the actual costs to be incurred by a designated
5-27 provider in providing service to the petitioners, and the effect of
6-1 reimbursement of those costs on the universal service fund;
6-2 (2) the number of access lines requested by the
6-3 petitioners for permanent residences and business premises;
6-4 (3) the size of the geographic territory for which the
6-5 petitioners request service;
6-6 (4) the proximity of existing facilities and the
6-7 existence of a preferred designated provider under Subsection (m);
6-8 and
6-9 (5) any technical barriers to the provision of
6-10 service.
6-11 (i) If, after a hearing, the commission designates a
6-12 telecommunications provider to serve the petitioners, the
6-13 commission shall permit the designated provider to recover its
6-14 actual costs of providing service to the petitioners from the
6-15 universal service fund. The reimbursable costs of extending
6-16 facilities to the petitioners are:
6-17 (1) the actual capitalized costs of the designated
6-18 provider's facilities to be installed in the uncertificated
6-19 territory as determined by the commission that are not recovered
6-20 through the aid to construction charge assessed to the petitioners;
6-21 and
6-22 (2) the monthly recurring costs of service, including
6-23 operations and maintenance costs, not recovered through the monthly
6-24 rate charged the petitioners and not included in the monthly per
6-25 line fee recovered from the universal service fund.
6-26 (j) The commission shall establish a reasonable aid to
6-27 construction charge, not to exceed $3,000, to be assessed each
7-1 petitioner. The commission may not require a designated provider
7-2 to begin construction until each petitioner has paid or executed an
7-3 agreement acceptable to the provider to pay the aid to construction
7-4 charge.
7-5 (k) A telecommunications provider may not under any
7-6 circumstances be required to extend service to a location that is
7-7 not a permanent residential or business premises or be required to
7-8 provide service to an area before the 180th day after it was
7-9 designated to provide service to the area.
7-10 (l) If the commission approves a petition requesting service
7-11 within an area, residents of that area who did not sign the
7-12 petition requesting service are not entitled to receive service
7-13 under this section until the fifth anniversary of the date the
7-14 petition was filed unless the residents file a new petition under
7-15 this section and agree to pay aid to construction charges on the
7-16 same terms as applicable to the initial petitioning residents. The
7-17 designated provider shall receive reimbursement for the costs of
7-18 deployment and recurring costs of providing service to those
7-19 additional residents in the same manner as the provider received
7-20 reimbursement of those costs in relation to the initial
7-21 petitioners. The provider may not receive reimbursement for
7-22 expenses in a geographic area if the provider previously received
7-23 complete reimbursement for those expenses from the universal
7-24 service fund. If the universal service fund has completely
7-25 reimbursed those expenses, each subsequent petitioning resident in
7-26 the geographic area must pay into the universal service fund an
7-27 amount equal to the aid to construction charge paid by each
8-1 original petitioner.
8-2 (m) A provider who is designated to serve petitioners
8-3 residing within an uncertificated area under this section is the
8-4 preferred provider in that area for later petitions filed under
8-5 Subsection (l). A preferred designated provider is entitled to an
8-6 opportunity for a hearing under Subsection (c) on a petition filed
8-7 under Subsection (l).
8-8 (n) The designation of a provider to serve an uncertificated
8-9 area under this section does not have the effect of:
8-10 (1) amending the boundaries of the provider's
8-11 certificate to provide local exchange service; or
8-12 (2) imposing carrier of last resort responsibilities
8-13 on the provider.
8-14 SECTION 5. Section 51.002(10), Utilities Code, as amended by
8-15 Chapters 1212 and 1579, Acts of the 76th Legislature, Regular
8-16 Session, 1999, is reenacted and amended to read as follows:
8-17 (10) "Telecommunications provider":
8-18 (A) means:
8-19 (i) a certificated telecommunications
8-20 utility;
8-21 (ii) a shared tenant service provider;
8-22 (iii) a nondominant carrier of
8-23 telecommunications services;
8-24 (iv) a provider of commercial mobile
8-25 service as defined by Section 332(d), Communications Act of 1934
8-26 (47 U.S.C. Section 151 et seq.), Federal Communications Commission
8-27 rules, and the Omnibus Budget Reconciliation Act of 1993 (Public
9-1 Law 103-66), except that the term does not include these entities
9-2 for the purposes of Chapter 17, 55, or 64;
9-3 (v) a telecommunications entity that
9-4 provides central office based PBX-type sharing or resale
9-5 arrangements;
9-6 (vi) an interexchange telecommunications
9-7 carrier;
9-8 (vii) a specialized common carrier;
9-9 (viii) a reseller of communications;
9-10 (ix) a provider of operator services;
9-11 (x) a provider of customer-owned pay
9-12 telephone service; or
9-13 (xi) a [another] person or entity
9-14 determined by the commission to provide telecommunications services
9-15 to customers in this state; and
9-16 (B) does not mean:
9-17 (i) a provider of enhanced or information
9-18 services, or another user of telecommunications services, who does
9-19 not also provide telecommunications services; or
9-20 (ii) a state agency or state institution
9-21 of higher education, or a service provided by a state agency or
9-22 state institution of higher education.
9-23 SECTION 6. This Act takes effect September 1, 2001.