This website will be unavailable from Thursday, May 30, 2024 at 6:00 p.m. through Monday, June 3, 2024 at 7:00 a.m. due to data center maintenance.
78R8558 CBH-F
By: Nixon H.B. No. 2352
A BILL TO BE ENTITLED
AN ACT
relating to powers and duties of a telecommunications utility.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 51.002, Utilities Code, is amended by
adding Subdivision (13) to read as follows:
(13) "Provider of last resort" means a certificated
telecommunications utility that must offer basic local
telecommunications service throughout a certificated geographic
area to all customers who request that service and who comply with
this title and the utility's tariffs and terms for obtaining that
service.
SECTION 2. Section 54.251(b), Utilities Code, is amended to
read as follows:
(b) Except as otherwise provided by this subchapter, the
[The] holder of a certificate of convenience and necessity for an
area has the obligations of a provider of last resort regardless of
whether another provider has a certificate of operating authority
or service provider certificate of operating authority for that
area.
SECTION 3. Subchapter F, Chapter 54, Utilities Code, is
amended by adding Section 54.2515 to read as follows:
Sec. 54.2515. CERTAIN ACTIONS NOT CESSATION OF OPERATIONS
OR DISCONTINUATION OF SERVICE. For purposes of this title, a merger
or an acquisition affecting a telecommunications utility, or a
transfer of a certificate under this title, does not constitute
either a cessation of operations or the discontinuation of service
by that utility.
SECTION 4. Section 54.252, Utilities Code, is amended to
read as follows:
Sec. 54.252. GROUNDS FOR REDUCTION OF SERVICE BY HOLDER OF
CERTIFICATE OF CONVENIENCE AND NECESSITY.(a) Except as provided by
this subchapter [Unless the commission issues a certificate that
the present and future convenience and necessity will not be
adversely affected], the holder of a certificate of convenience and
necessity may not discontinue, reduce, or impair service to any
part of the holder's certificated service area except for:
(1) nonpayment of charges;
(2) nonuse; or
(3) another similar reason that occurs in the usual
course of business.
(b) A discontinuance, reduction, or impairment of service
must be in compliance with and in accordance with this subchapter
[is subject to any condition or restriction the commission
prescribes].
SECTION 5. Section 54.253, Utilities Code, is amended to
read as follows:
Sec. 54.253. DISCONTINUATION OF SERVICE BY [CERTAIN]
CERTIFICATE HOLDERS. (a) A telecommunications utility that holds
a certificate of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority may, in accordance with this subchapter:
(1) cease operations in all or part of the utility's
certificated area; or
(2) discontinue an optional service that is not
essential to providing basic local telecommunications service.
(b) Before the telecommunications utility ceases operations
as provided by Subsection (a) [or discontinues an optional
service], the utility, in the form and manner required by the
commission, must give notice of the intended action to:
(1) the commission; [and]
(2) each affected customer, which notice must include
a toll-free customer service telephone number maintained by the
utility to facilitate continuous service and transition of the
customer's service to an alternative provider; and
(3) each provider of wholesale services or facilities
from whom the utility purchases services for resale or leases
unbundled facilities to provide basic local telecommunications
services in this state.
(c) The telecommunications utility may not cease operations
in all or part of its certificated area unless:
(1) another provider of basic local
telecommunications services has adequate facilities and capacity
to serve the customers in the area; and
(2) the commission authorizes the utility to cease
operations.
(d) The commission shall authorize a telecommunications
utility to cease operations in all or part of the utility's
certificated area, and the [telecommunications] utility is
entitled to cease those operations [discontinue an optional
service] on or after the 100th [61st] day after the date the utility
gives the notice, if:
(1) the utility provides for an adequate transition of
service of the utility's customers to another holder of a
certificate for that area; and
(2) the utility pays or agrees to pay:
(A) the costs affected customers incur in
establishing new service with the other telecommunications
utility, including tariffed or reasonable and customary
installation charges;
(B) the actual costs incurred by the other
telecommunications utility in accepting affected customers and
establishing service to the affected area, including the costs of
restoring or upgrading the other utility's facilities in the
geographic area as necessary to make those facilities compatible
with the facilities in the utility's other certificated areas and
to comply with commission quality of service standards;
(C) the costs estimated to be necessary to
maintain the operations of the telecommunications utility ceasing
operations as necessary to provide service to customers until
another utility can provide service; and
(D) the amounts the telecommunications utility
owes to the utility's vendors and wholesale providers, including
other utilities.
[(d) The telecommunications utility may not cease operations
in its certificated area unless:
[(1) another provider of basic local
telecommunications services has adequate facilities and capacity
to serve the customers in the certificated area; and
[(2) the commission authorizes the utility to cease
operations.]
(e) The commission may not authorize the telecommunications
utility to cease operations under Subsection (d) before the 100th
[61st] day after the date the utility gives the notice required by
Subsection (b) unless the utility shows that good cause exists for
ceasing operations before that date and ceasing operations before
that date will not prejudice the utility's customers, suppliers, or
vendors. Unless the commission receives a complaint from an
affected person, the commission may enter an order under this
subsection administratively.
(f) To secure payment of the obligations prescribed by
Subsection (d), the telecommunications utility shall, not later
than the 30th day after providing notice under Subsection (b),
establish a bond or security in an amount equal to $250 for each
access line the utility serves in the affected certificated area.
The commission, on motion of an affected party and on notice and
hearing, shall determine the adequacy of the bond or security and
require an increase in the bond or security if the sum of the
estimated costs payable under this section is more than an amount
equal to $250 for each access line. If the utility defaults in the
payment of the utility's obligations under this section, the
commission shall determine the costs under this section and the
bond or security shall be apportioned among obligees in accordance
with the commission's determination of costs.
(g) A telecommunications utility is entitled to discontinue
an optional service that is not essential to providing basic local
telecommunications service by providing the commission with notice
of that discontinuation not later than the 30th day before the date
on which the utility intends to discontinue that service.
SECTION 6. Section 54.260(a), Utilities Code, is amended to
read as follows:
(a) Notwithstanding Section 54.259, if a telecommunications
utility holds a [municipal consent, franchise, or permit as
determined to be the appropriate grant of authority by the
municipality and holds a] certificate [if] required by this title,
a public or private property owner may:
(1) impose a condition on the utility that is
reasonably necessary to protect:
(A) the safety, security, appearance, and
condition of the property; and
(B) the safety and convenience of other persons;
(2) impose a reasonable limitation on the time at
which the utility may have access to the property to install a
telecommunications service facility;
(3) impose a reasonable limitation on the number of
such utilities that have access to the owner's property, if the
owner can demonstrate a space constraint that requires the
limitation;
(4) require the utility to agree to indemnify the
owner for damage caused installing, operating, or removing a
facility;
(5) require the tenant or the utility to bear the
entire cost of installing, operating, or removing a facility; and
(6) require the utility to pay compensation that is
reasonable and nondiscriminatory among such telecommunications
utilities.
SECTION 7. Subchapter F, Chapter 54, Utilities Code, is
amended by adding Sections 54.262-54.266 to read as follows:
Sec. 54.262. PROVIDER OF LAST RESORT WHERE FACILITIES-BASED
PROVIDER PRECEDES HOLDER OF CERTIFICATE OF CONVENIENCE AND
NECESSITY. (a) Notwithstanding any other provision of this title,
if a telecommunications utility installs facilities to serve
customers located in a geographic area to provide
telecommunications services, including basic local
telecommunications service, before the holder of the certificate of
convenience and necessity installs facilities to serve customers
located in that geographic area, the holder of the certificate of
convenience and necessity may provide notice to the commission that
the utility no longer wants to be the provider of last resort in
that geographic area.
(b) On the date the commission receives notice under
Subsection (a), the holder of the certificate of convenience and
necessity is relieved of the obligations of serving as the provider
of last resort, and the commission shall designate the
facilities-based telecommunications utility as the provider of
last resort.
Sec. 54.263. CERTIFICATE HOLDERS' OBLIGATIONS. (a)
Notwithstanding Section 54.252, if a telecommunications utility
attempting to cease operations in all or part of the utility's
certificated area fails to establish a bond or security as provided
by Section 54.253, a telecommunications utility that does not own
facilities adequate to serve customers in that area may not
automatically be required to serve as the provider of last resort
for that area.
(b) If a telecommunications utility does not elect to serve
as the provider of last resort for an area described by Subsection
(a), the commission may establish a proceeding under Subchapter G
to designate one or more utilities as the provider of last resort
for that area.
(c) A telecommunications utility designated as the provider
of last resort for an area described by Subsection (a):
(1) shall have a reasonable time in accordance with
industry practices to modify, construct, or obtain facilities
necessary to serve the customers in that area; and
(2) is exempt on a transitional basis from any
obligation to unbundle the utility's network elements or to provide
services for resale for not less than 18 months or the time
necessary for the utility to modify the network to provide that
unbundling or resale.
Sec. 54.264. RESPONSIBILITIES AND RIGHTS OF MIGRATING
CUSTOMERS. (a) If a customer of basic local telecommunications
services provided by a telecommunications utility is migrated to
another telecommunications utility, the customer is responsible
for all applicable rates and is subject to all applicable terms and
conditions of the succeeding utility.
(b) This section does not require a customer to accept the
provision of services from any telecommunications utility.
However, if the commission designates a telecommunications utility
to serve as the provider of last resort in the area in which the
customer is located, another certificated utility may not be
required to offer service to that customer.
Sec. 54.265. BONDING AS CONDITION OF OBTAINING CERTIFICATE
FOR CERTAIN PROVIDERS. (a) A person that wants to obtain a
certificate of operating authority or a service provider
certificate of authority and to purchase services for resale or to
lease unbundled network elements from a telecommunications utility
shall establish a cash deposit or other equivalent security for the
benefit of each utility that will provide services for resale and
unbundled facilities to the person applying for the certificate.
The cash deposit or other equivalent security must be conditioned
on the person timely and fully paying to each utility the charges
for resold services or unbundled facilities.
(b) The commission shall establish the initial amount of the
cash deposit or other equivalent security at the time the person is
granted a certificate of operating authority or service provider
certificate of operating authority. The commission shall determine
the amount of the cash deposit or other equivalent security based on
the person's representation of the wholesale charges of the
underlying utility or utilities it anticipates using to provide
services to customers. The amount of the initial cash deposit or
other equivalent security may be not less than an amount equal to
three months anticipated use.
(c) The commission, on petition of one or more underlying
telecommunications utilities, shall require the certificate holder
to increase the cash deposit or other equivalent security to an
amount equal to the certificate holder's actual use for the three
months preceding the date the petition is filed or an amount that
the petitioning utility or utilities can demonstrate, by a
preponderance of the evidence, that the certificate holder is
likely to use during any future three-month period.
Sec. 54.266. COMMISSION INTERVENTION OR PARTICIPATION IN
BANKRUPTCY PROCEEDINGS. (a) The commission, on notice that a
certificated telecommunications utility has filed a petition in
bankruptcy or is the subject of an involuntary petition in
bankruptcy, shall inform the appropriate court and parties of the
commission's interest in obtaining notice of proceedings.
(b) Within the time prescribed by the applicable statutes,
rules, and court orders, the commission may intervene and
participate in any bankruptcy proceedings that affect customers or
providers of telecommunications services in this state.
SECTION 8. Chapter 54, Utilities Code, is amended by adding
Subchapter G to read as follows:
SUBCHAPTER G. FUNDING FOR CERTAIN TELECOMMUNICATIONS UTILITIES
Sec. 54.301. DETERMINATION OF PROVIDER OF LAST RESORT WHEN
NO PROVIDER HAS ADEQUATE FACILITIES. (a) When a certificated
utility provides notice under Section 54.253 that the utility
intends to cease operations in all or part of the utility's
certificated area, the commission shall open a contested case
proceeding to determine:
(1) the amount of the bond or security to be provided
under Section 54.253;
(2) the identity of the telecommunications utility
that will be required to serve as the provider of last resort for
the area under this section; and
(3) if necessary, the amount of universal service
funding to be made available to benefit customers of two utilities.
(b) The commission may designate a telecommunications
utility as the provider of last resort only if the utility is
otherwise eligible to receive universal service funds under Section
56.023(b).
Sec. 54.302. HEARING FOR DESIGNATION OF SUCCEEDING
TELECOMMUNICATIONS UTILITY. (a) If no telecommunications
utilities have facilities adequate to serve the customers of an
area in which a telecommunications utility is ceasing operations
and no utility offers to provide service with funding provided
under the bond or security established under Section 54.253, the
commission shall designate a holder of a certificate of convenience
and necessity as the provider of last resort for the area.
(b) At the time the commission designates the holder of a
certificate of convenience and necessity as the provider of last
resort, the commission shall determine and provide for that utility
to recover the actual costs the utility will incur in accepting and
establishing service to the affected certificated area, including
the costs of acquiring and restoring or upgrading the utility's
facilities in the geographic area as necessary to make those
facilities compatible with the facilities in the utility's other
certificated areas and to comply with commission quality of service
standards.
Sec. 54.303. RECOVERY OF ACTUAL COSTS. The commission
order designating the telecommunications utility that will serve as
the provider of last resort shall ensure that the utility will
recover all of the actual costs that the utility will incur in
accepting and establishing service to the affected certificated
area as determined under Section 54.302. Actual costs shall be
amortized and recovered from the state universal service fund,
together with interest at the prevailing commercial lending rate:
(1) not later than the first anniversary of the date of
the order if the costs are not more than $1 million;
(2) not later than the second anniversary of the date
of the order if the costs are more than $1 million but not more than
$2 million; and
(3) not later than the third anniversary of the date of
the order if the costs are more than $2 million.
SECTION 9. Section 56.021, Utilities Code, as amended by
Chapters 651 and 1451, Acts of the 77th Legislature, Regular
Session, 2001, is reenacted and amended to read as follows:
Sec. 56.021. UNIVERSAL SERVICE FUND ESTABLISHED. The
commission shall adopt and enforce rules requiring local exchange
companies to establish a universal service fund to:
(1) assist telecommunications providers in providing
basic local telecommunications service at reasonable rates in high
cost rural areas;
(2) reimburse the telecommunications carrier that
provides the statewide telecommunications relay access service
under Subchapter D;
(3) finance the specialized telecommunications
assistance program established under Subchapter E;
(4) reimburse the department, the Texas Commission for
the Deaf and Hard of Hearing, and the commission for costs incurred
in implementing this chapter and Chapter 57;
(5) reimburse a telecommunications carrier providing
lifeline service as provided by 47 C.F.R. Part 54, Subpart E, as
amended;
(6) finance the implementation and administration of
an integrated eligibility process created under Section 17.007 for
customer service discounts relating to telecommunications
services, including outreach expenses the commission determines
are reasonable and necessary; [and]
(7) reimburse a designated provider under Subchapter
F; and
(8) reimburse a succeeding utility under Subchapter G,
Chapter 54.
SECTION 10. Section 56.023, Utilities Code, is amended by
adding Subsection (e) to read as follows:
(e) A telecommunications utility designated as a provider
of last resort under Subchapter G, Chapter 54, that does not have
adequate facilities in place to provide service to the customers in
that area is entitled to receive universal service fund
distributions for the actual costs incurred by the utility in
providing those services under Subchapter G, Chapter 54, if the
utility ceasing operations in that area fails to provide a bond or
security in accordance with Section 54.253. The commission shall
also designate the new provider of last resort as an eligible
telecommunications carrier under 47 U.S.C. Section 214(e)(2), as
amended, for the geographic area in which that utility is to provide
service under Subchapter G, Chapter 54.
SECTION 11. (a) This Act takes effect September 1, 2003.
(b) Not later than December 1, 2003, a telecommunications
utility that holds a certificate of operating authority or service
provider certificate of operating authority on the effective date
of this Act shall establish a cash deposit or other equivalent
security in the amount determined by the Public Utility Commission
of Texas as required by Section 54.265, Utilities Code, as added by
this Act.