1-1 By: Chisum, et al. (Senate Sponsor - Bivins) H.B. No. 2388
1-2 (In the Senate - Received from the House May 11, 2001;
1-3 May 11, 2001, read first time and referred to Committee on Business
1-4 and Commerce; May 11, 2001, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the provision of telecommunications services to
1-9 permanent residential or business premises that are not included in
1-10 a certificated service area.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 56.001, Utilities Code, is amended to read
1-13 as follows:
1-14 Sec. 56.001. DEFINITIONS [DEFINITION]. In this chapter:
1-15 (1) "Department" [, "department"] means the Texas
1-16 Department of Human Services.
1-17 (2) "Designated provider" means a telecommunications
1-18 provider designated by the commission to provide services to an
1-19 uncertificated area under Subchapter F.
1-20 SECTION 2. Section 56.021, Utilities Code, is amended to read
1-21 as follows:
1-22 Sec. 56.021. UNIVERSAL SERVICE FUND ESTABLISHED. The
1-23 commission shall adopt and enforce rules requiring local exchange
1-24 companies to establish a universal service fund to:
1-25 (1) assist telecommunications providers in providing
1-26 basic local telecommunications service at reasonable rates in high
1-27 cost rural areas;
1-28 (2) reimburse telecommunications providers for revenue
1-29 lost by providing tel-assistance service under Subchapter C;
1-30 (3) reimburse the telecommunications carrier that
1-31 provides the statewide telecommunications relay access service
1-32 under Subchapter D;
1-33 (4) finance the specialized telecommunications
1-34 assistance program established under Subchapter E;
1-35 (5) reimburse the department, the Texas Commission for
1-36 the Deaf and Hard of Hearing, and the commission for costs incurred
1-37 in implementing this chapter and Chapter 57; [and]
1-38 (6) reimburse a telecommunications carrier providing
1-39 lifeline service as provided by 47 C.F.R. Part 54, Subpart E, as
1-40 amended; and
1-41 (7) reimburse a designated provider under Subchapter
1-42 F.
1-43 SECTION 3. Section 56.023, Utilities Code, is amended by
1-44 amending Subsections (b) and (c) and adding Subsection (d) to read
1-45 as follows:
1-46 (b) The eligibility criteria must require that a
1-47 telecommunications provider, in compliance with the commission's
1-48 quality of service requirements:
1-49 (1) offer service to each consumer within the
1-50 company's certificated area and to any permanent residential or
1-51 business premises to which the company is designated to provide
1-52 services under Subchapter F; and
1-53 (2) render continuous and adequate service within the
1-54 company's certificated area and to any permanent residential or
1-55 business premises to which the company is designated to provide
1-56 services under Subchapter F.
1-57 (c) A company designated under Subchapter F to provide
1-58 services to permanent residential or business premises within an
1-59 uncertificated area and that complies with Subsection (b) shall
1-60 receive universal service fund distributions to assist the provider
1-61 in providing those services. In addition, the commission shall
1-62 designate the provider as an eligible telecommunications carrier
1-63 under 47 U.S.C. Section 214(e)(2), as amended, for those permanent
1-64 residential or business premises.
2-1 (d) The commission shall adopt rules for the administration
2-2 of the universal service fund and this chapter and may act as
2-3 necessary and convenient to administer the fund and this chapter.
2-4 SECTION 4. Chapter 56, Utilities Code, is amended by adding
2-5 Subchapter F to read as follows:
2-6 SUBCHAPTER F. SERVICE TO UNCERTIFICATED AREA
2-7 Sec. 56.201. DEFINITION. In this subchapter, "permanent
2-8 residential or business premises" means a premises that has
2-9 permanent facilities for water, wastewater, and electricity.
2-10 Sec. 56.202. DESIGNATION OF PROVIDER. (a) Notwithstanding
2-11 Section 54.001, the commission may designate a telecommunications
2-12 provider under this section to provide voice-grade services to
2-13 permanent residential or business premises that are not included
2-14 within the certificated area of a holder of a certificate of
2-15 convenience and necessity.
2-16 (b) The commission may designate a provider only if the
2-17 provider is otherwise eligible to receive universal service funds
2-18 under Section 56.023(b).
2-19 Sec. 56.203. PETITION FOR SERVICE. Persons residing in
2-20 permanent residential premises or owners of permanent residential
2-21 or business premises that are not included within the certificated
2-22 area of a holder of a certificate of convenience and necessity may
2-23 petition the commission to designate a telecommunications provider
2-24 to provide to those premises voice-grade services supported by
2-25 state and federal universal service support mechanisms.
2-26 Sec. 56.204. CONTENTS OF PETITION. (a) A petition for
2-27 designation of a service provider must:
2-28 (1) state with reasonable particularity the locations
2-29 of the permanent residential or business premises for which the
2-30 petitioners are requesting service;
2-31 (2) establish that those locations are within
2-32 reasonable proximity to one another so that the petitioners possess
2-33 a sufficient community of interest to warrant the designation of a
2-34 provider and the expenditure of universal service funds necessary
2-35 to establish service;
2-36 (3) except as provided by Subsection (b), be signed by
2-37 at least five persons who:
2-38 (A) are not members of the same household;
2-39 (B) reside in the permanent residential premises
2-40 or are the owners of the permanent residential or business premises
2-41 for which service is sought and that are not located within a
2-42 certificated area;
2-43 (C) want service to those premises; and
2-44 (D) commit to pay the aid to construction
2-45 charges for service to those premises as determined by the
2-46 commission;
2-47 (4) nominate as potential providers of service not
2-48 more than five telecommunications providers serving territory that
2-49 is contiguous to the location of the permanent residential or
2-50 business premises using wireless or wireline facilities, resale, or
2-51 unbundled network elements; and
2-52 (5) include as an attachment or an appendix
2-53 documentation indicating the required residence or ownership,
2-54 including a state-issued license or identification, tax records,
2-55 deeds, or voter registration materials.
2-56 (b) The commission may accept a petition that is signed by
2-57 fewer than five persons if a petitioner provides an affidavit
2-58 stating that the petitioners have taken all reasonable steps to
2-59 secure the signatures of the residents of permanent residential
2-60 premises or the owners of permanent residential or business
2-61 premises within reasonably close proximity to the petitioning
2-62 premises who are not receiving telephone service when the petition
2-63 is filed and who want telephone service initiated.
2-64 Sec. 56.205. HEARING. If the commission finds that the
2-65 petition complies with Section 56.204, the commission shall hold an
2-66 evidentiary hearing to determine if a telecommunications provider
2-67 is willing to be designated to provide service to those premises
2-68 or, if a provider is not willing to be designated, to determine the
2-69 telecommunications provider that is best able to serve those
3-1 premises under the criteria prescribed by this subchapter.
3-2 Sec. 56.206. DENIAL OF PETITION. The commission shall deny a
3-3 petition if the commission determines that services cannot be
3-4 extended to the petitioning premises at a reasonable cost. In
3-5 making that determination, the commission shall consider all
3-6 relevant factors, including:
3-7 (1) the original cost to be incurred by a designated
3-8 provider to deploy service to the petitioning premises, and the
3-9 effect of reimbursement of those costs on the state universal
3-10 service fund;
3-11 (2) the number of access lines requested by the
3-12 petitioners for the petitioning premises;
3-13 (3) the size of the geographic territory in which the
3-14 petitioning premises are included;
3-15 (4) the proximity of existing facilities and the
3-16 existence of a preferred designated provider under Section 56.213;
3-17 and
3-18 (5) any technical barriers to the provision of
3-19 service.
3-20 Sec. 56.207. ORDER. In any order granting a petition, the
3-21 commission shall:
3-22 (1) approve the facilities to be deployed based on the
3-23 estimated costs of deployment submitted in accordance with Section
3-24 56.208(a);
3-25 (2) approve the amount of original cost of deployment
3-26 to be recovered from the state universal service fund and the terms
3-27 of original cost recovery under Section 56.209; and
3-28 (3) approve the recurring cost recovery under Section
3-29 56.209, including the monthly rate for services and the monthly per
3-30 line fee to be recovered from the state universal service fund
3-31 under that section.
3-32 Sec. 56.208. DESIGNATION OF PROVIDER. (a) In determining
3-33 which nominated telecommunications provider the commission will
3-34 designate to provide service to the petitioning premises, the
3-35 commission shall consider the relative estimated cost to be
3-36 incurred by contiguous providers to serve the petitioning premises
3-37 and give preference to the provider having the least cost
3-38 technology that meets the quality of service standards prescribed
3-39 by the commission applicable to that provider.
3-40 (b) The commission may not designate a telecommunications
3-41 provider to serve the petitioning premises unless the premises are
3-42 located in an area that is contiguous to an area in which the
3-43 telecommunications provider has previously been designated eligible
3-44 to receive universal service funding under Section 56.023(b). This
3-45 subsection does not apply if the commission designates the provider
3-46 after the provider voluntarily agrees to provide service to the
3-47 petitioning premises.
3-48 Sec. 56.209. RECOVERY OF COSTS. (a) If, after a hearing,
3-49 the commission designates a telecommunications provider to serve
3-50 the petitioning premises, the commission shall permit the
3-51 designated provider to recover from the state universal service
3-52 fund the provider's actual costs of providing service to the
3-53 premises, including the provider's original cost of deployment and
3-54 actual recurring costs.
3-55 (b) The reimbursable original cost of deploying facilities
3-56 to the petitioning premises is the original cost of the
3-57 telecommunications provider's facilities installed in, or upgraded
3-58 to permit the provision of service to, the petitioning premises as
3-59 determined by the financial accounting standards applicable to the
3-60 provider, including an amount for the recovery of all costs that
3-61 are typically included as capital costs for accounting purposes,
3-62 that are not recovered through an aid to construction charge
3-63 assessed to the petitioners. The final order permitting or
3-64 requiring the designated provider to provide service to the
3-65 petitioning premises shall ensure that all the original cost of
3-66 the provider shall be amortized and recovered from the state
3-67 universal service fund, together with interest at the prevailing
3-68 commercial lending rate:
3-69 (1) not later than the third anniversary of the date
4-1 of the order, for a deployment with an original cost of $1 million
4-2 or less;
4-3 (2) not later than the fifth anniversary of the date
4-4 of the order, for a deployment with an original cost of more than
4-5 $1 million, but not more than $2 million; and
4-6 (3) not later than the seventh anniversary of the date
4-7 of the order, for a deployment with an original cost of more than
4-8 $2 million.
4-9 (c) The designated provider shall recover the provider's
4-10 actual recurring costs of service, including maintenance and the
4-11 ongoing operational costs of providing service after deployment of
4-12 the facilities to the petitioning premises and a reasonable
4-13 operating margin, from:
4-14 (1) the monthly rate charged the customer; and
4-15 (2) a monthly per line state universal service fund
4-16 payment in an amount equal to the unrecovered recurring costs
4-17 incurred in providing service divided by the access lines served in
4-18 the petitioning premises.
4-19 (d) The monthly per line fee established under Subsection
4-20 (c) is in addition to the universal service funds associated with
4-21 the recovery of the original cost of deployment and interest
4-22 authorized by Subsection (b) and in addition to the universal
4-23 service funds the designated provider receives to provide service
4-24 in other areas of this state.
4-25 (e) The commission may not authorize or require any services
4-26 to be provided to petitioning premises under this subchapter during
4-27 a fiscal year if the total amount of required reimbursements of
4-28 actual original cost of deployment to all approved petitioning
4-29 premises under this section, together with interest, including
4-30 obligations for reimbursements from preceding years, would equal an
4-31 amount that exceeds 0.02 percent of the annual gross revenues
4-32 reported to the state universal service fund during the preceding
4-33 fiscal year.
4-34 Sec. 56.210. AID TO CONSTRUCTION CHARGE; CONTRACT FOR
4-35 SERVICES. The commission shall establish a reasonable aid to
4-36 construction charge, not to exceed $3,000, to be assessed each
4-37 petitioner. The commission may not require a designated provider to
4-38 begin construction until:
4-39 (1) each petitioner has paid or executed an agreement
4-40 acceptable to the provider to pay the aid to construction charge;
4-41 and
4-42 (2) each petitioner has executed an assignable
4-43 agreement for subscription to basic local service to the
4-44 petitioning premises from the designated provider for a period at
4-45 least equal to the period during which the provider will receive
4-46 reimbursement for the original cost of deployment under Section
4-47 56.209(b).
4-48 Sec. 56.211. PERMANENT PREMISES REQUIRED. A
4-49 telecommunications provider may not under any circumstances be
4-50 required to extend service to a location that is not a permanent
4-51 residential or business premises or be required to provide service
4-52 to the petitioning premises before the 180th day after the date the
4-53 provider was designated to provide service to the petitioning
4-54 premises.
4-55 Sec. 56.212. SUBSEQUENT RELATED PETITIONS. (a) If the
4-56 commission approves a petition requesting service, residents of
4-57 permanent residential premises or owners of permanent residential
4-58 or business premises in reasonable proximity to the premises that
4-59 were the subject of an approved petition who did not sign the prior
4-60 petition requesting service are not entitled to receive service
4-61 under this subchapter until the fifth anniversary of the date the
4-62 prior petition was filed unless the residents or owners file a new
4-63 petition under this subchapter and agree to pay aid to construction
4-64 charges on the same terms as applicable to the prior petitioners.
4-65 (b) The designated provider shall receive reimbursement for
4-66 the original cost of deployment and actual recurring costs of
4-67 providing service to those additional residents in the same manner
4-68 as the provider received reimbursement of those costs in relation
4-69 to the prior petitioners. The provider may not receive
5-1 reimbursement for the original cost of deployment under a
5-2 subsequent petition if the provider previously received complete
5-3 reimbursement for those costs from the state universal service
5-4 fund. If the state universal service fund has completely
5-5 reimbursed the original cost of deployment as provided by this
5-6 subchapter, each subsequent petitioner must pay into the state
5-7 universal service fund an amount equal to the aid to construction
5-8 charge paid by each prior petitioner.
5-9 Sec. 56.213. PREFERRED PROVIDER. (a) A provider who is
5-10 designated to serve petitioning premises located within an
5-11 uncertificated area under this subchapter is the preferred provider
5-12 for any permanent residential or business premises in reasonable
5-13 proximity to those petitioning premises for later petitions filed
5-14 under Section 56.212.
5-15 (b) A preferred designated provider is entitled to an
5-16 opportunity for a hearing under Section 56.205 on a petition filed
5-17 under Section 56.203.
5-18 Sec. 56.214. CERTIFICATE NOT AMENDED. The designation of a
5-19 provider to serve permanent residential or business premises within
5-20 an uncertificated area under this subchapter does not have the
5-21 effect of:
5-22 (1) amending the boundaries of the provider's
5-23 certificate to provide local exchange service; or
5-24 (2) imposing carrier of last resort responsibilities
5-25 on the provider.
5-26 SECTION 5. Section 51.002(10), Utilities Code, as amended by
5-27 Chapters 1212 and 1579, Acts of the 76th Legislature, Regular
5-28 Session, 1999, is reenacted and amended to read as follows:
5-29 (10) "Telecommunications provider":
5-30 (A) means:
5-31 (i) a certificated telecommunications
5-32 utility;
5-33 (ii) a shared tenant service provider;
5-34 (iii) a nondominant carrier of
5-35 telecommunications services;
5-36 (iv) a provider of commercial mobile
5-37 service as defined by Section 332(d), Communications Act of 1934
5-38 (47 U.S.C. Section 151 et seq.), Federal Communications Commission
5-39 rules, and the Omnibus Budget Reconciliation Act of 1993 (Public
5-40 Law 103-66), except that the term does not include these entities
5-41 for the purposes of Chapter 17, 55, or 64;
5-42 (v) a telecommunications entity that
5-43 provides central office based PBX-type sharing or resale
5-44 arrangements;
5-45 (vi) an interexchange telecommunications
5-46 carrier;
5-47 (vii) a specialized common carrier;
5-48 (viii) a reseller of communications;
5-49 (ix) a provider of operator services;
5-50 (x) a provider of customer-owned pay
5-51 telephone service; or
5-52 (xi) a [another] person or entity
5-53 determined by the commission to provide telecommunications services
5-54 to customers in this state; and
5-55 (B) does not mean:
5-56 (i) a provider of enhanced or information
5-57 services, or another user of telecommunications services, who does
5-58 not also provide telecommunications services; or
5-59 (ii) a state agency or state institution
5-60 of higher education, or a service provided by a state agency or
5-61 state institution of higher education.
5-62 SECTION 6. This Act takes effect September 1, 2001.
5-63 * * * * *