79R4617 E
By: King of Parker H.B. No. 789
A BILL TO BE ENTITLED
AN ACT
relating to telecommunications.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle C, Title 2, Utilities Code, is amended
to read as follows:
SUBTITLE C. [TELECOMMUNICATIONS UTILITIES] ADVANCED SERVICE
INFRASTRUCTURE AND INTERMODAL COMPETITION
CHAPTER 51. GENERAL PROVISIONS
Sec. 51.001. POLICY. (a) Significant technological
changes have occurred in telecommunications since the law from
which this title is derived was originally adopted. To encourage
and accelerate the development of a competitive and advanced
[telecommunications] services environment and infrastructure, new
rules, policies, and principles must be formulated [and applied to
protect] consistent with the understanding that as new technologies
become available, all public [interest. Changes in technology and]
policy must be driven by free-market [structure have increased the
need] principles for [minimum] the [standards] benefit of [service
quality, customer service, and fair business practices to ensure
high quality service to customers and a healthy marketplace where
competition is permitted by law. It is the purpose of this subtitle
to grant the commission authority to make and enforce rules
necessary to protect customers of telecommunications services]
Texas consumers consistent with the public interest.
(b) It is the policy of this state to:
(1) promote diversity of telecommunications and
advanced services providers and interconnectivity;
(2) promote and encourage the development of
competitive broadband networks;
(3) [(2)] encourage a fully competitive
telecommunications and advanced services marketplace; and
(4) [(3)] maintain a wide availability of high
quality, interoperable, standards-based telecommunications
services at affordable rates.
(c) The policy goals described by Subsection (b) are best
achieved by legislation that modernizes [telecommunications
regulation] the State's regulatory framework by:
(1) guaranteeing the affordability of basic telephone
service for the low income in a competitively neutral manner; [and]
(2) fostering free market intermodal competition[in
the telecommunications industry.]; and
(3) maintaining and enforcing effective remedies to
discourage and redress anticompetitive conduct.
(d) The technological advancements, [advanced
telecommunications] deployment of broadband network
infrastructure, and increased customer choices for
telecommunications and advanced services generated by a truly
competitive market play a critical role in Texas' economic future
by raising living standards for Texans through:
(1) enhanced economic development; and
(2) improved delivery of education, health, and other
public and private services.
(e) The strength of competitive forces varies widely
between markets, products, and services. It is the policy of this
state to require the commission to take action necessary to enhance
competition by [adjusting] avoiding the imposition of unnecessary
regulation [to match] in light of the degree of intra- and
inter-modal competition in the marketplace, to[:
[(1)] reduce the cost and burden of regulation[;], and
[(2)] to protect markets that are not competitive.
(f) It is the policy of this state to ensure that high
quality telecommunications and advanced services are available,
accessible, and usable by an individual with a disability, unless
making the services available, accessible, or usable would:
(1) result in an undue burden, including unreasonable
cost or technical infeasibility; or
(2) have an adverse competitive effect.
[(g) It is the policy of this state to ensure that customers
in all regions of this state, including low-income customers and
customers in rural and high cost areas, have access to
telecommunications and information services, including
interexchange services, cable services, wireless services, and
advanced telecommunications and information services, that are
reasonably comparable to those services provided in urban areas and
that are available at prices that are reasonably comparable to
prices charged for similar services in urban areas. Not later than
November 1, 1999, the commission shall begin a review and
evaluation of the availability and the pricing of
telecommunications and information services, including
interexchange services, cable services, wireless services, and
advanced telecommunications and information services, in rural and
high cost areas, as well as the convergence of telecommunications
services. The commission shall file a report with the legislature
not later than January 1, 2001. The report must include the
commission's recommendations on the issues reviewed and
evaluated.]
Sec. 51.002. DEFINITIONS. In this [subtitle] title:
(1) "Advanced services" means services requiring
delivery over broadband networks;
(2) [(1)] "Basic local telecommunications service"
means:
(A) [flat rate] residential and business local
exchange telephone service, including primary directory listings;
(B) tone dialing service;
(C) access to operator services;
(D) access to directory assistance services;
(E) access to 911 service provided by a local
authority or dual party relay service;
(F) the ability to report service problems seven
days a week;
(G) lifeline and tel-assistance services; and
(H) any other service the commission determines
after a hearing is a basic local telecommunications service.
(3) "Broadband networks" as used in this Act means
wireline networks which deliver a minimum downstream speed of 1.5
mbs and minimum upstream speed of 768 kbs to an end user premises.
DSL, fiber-to-the-premises and cable modem networks are
illustrative of broadband networks.
(4) [(2)] "Dominant carrier" means a provider of a
communication service provided wholly or partly over a telephone
system who the commission determines has sufficient market power in
a telecommunications market to control prices for that service in
that market in a manner adverse to the public interest. The term
includes a provider who provided local exchange telephone service
within a certificated exchange area on September 1, 1995, as to that
service and as to any other service for which a competitive
alternative is not available in a particular geographic market. In
addition, with respect to:
(A) intraLATA long distance message
telecommunications service originated by dialing the access code
"1-plus," the term includes a provider of local exchange telephone
service in a certificated exchange area for whom the use of that
access code for the origination of "1-plus" intraLATA calls in the
exchange area is exclusive; and
(B) interexchange telecommunications services,
the term does not include an interexchange carrier that is not a
certificated local exchange company.
(5) [(3)] "Incumbent local exchange company" means a
local exchange company that [has] held a certificate of convenience
and necessity on September 1, [1995.] 2004;
(6) "Interexchange telecommunications service" means
landline telecommunications between a point located within a local
access and transport area, as defined by the Federal Communications
Commission, and a point within another local access and transport
area;
(7) "Information service" has the same meaning as
applies under federal law;
(8) [(4)] "Local exchange company" means [a
telecommunications utility] an entity that has a certificate [of
convenience] and [necessity or a certificate of operating authority
to provide] is providing in this state:
(A) local exchange telephone service;
(B) basic local telecommunications service; or
(C) switched access service.
(9) [(5)] "Local exchange telephone service" means
telecommunications service provided [within an exchange] via any
landline technology to establish connections between customer
premises within the exchange, including connections between a
customer premises within a LATA and [a long distance provider
serving the exchange] an entity providing interexchange service.
The term includes [tone dialing service], [service connection
charges,] basic network and [directory] non-basic [assistance]
network services [offered in connection with basic local
telecommunications service] and interconnection with other service
providers. The term does not include the following services,
whether offered on an intraexchange or interexchange basis:
(A) central office based PBX-type services for
systems of 75 stations or more;
(B) billing and collection services;
(C) high-speed private line services of 1.544
megabits or greater;
(D) customized services;
(E) private line or virtual private line
services;
(F) resold or shared local exchange telephone
services if permitted by tariff;
(G) dark fiber services;
(H) non-voice data transmission service offered
as a separate service and not as a component of basic local
telecommunications service;
(I) dedicated or virtually dedicated access
services; or
(J) information services, as defined by the
Federal Communications Commission, and any other service the
commission determines is not a "local exchange telephone
service[.]";
[(6) "Long run incremental cost" has the meaning
assigned by 16 T.A.C. Section 23.91 or its
successor.] (10) "Network provider" means an entity, whether or
not certificated, that uses any technology to offer voice
communication to the public over a wireline network that it or an
affiliate owns or controls;
(11) [(7)] "Pricing flexibility" includes:
(A) customer specific contracts;
(B) packaging of services;
(C) volume, term, and discount pricing;
(D) zone density pricing, with a zone to be
defined as an exchange; and
(E) other promotional pricing.
(12) "Provider" means a network provider or service
provider;
(13) [(8)] "Public utility" or "utility" means a
person or river authority that owns or operates for compensation in
this state equipment or facilities to convey, transmit, or receive
communications over a telephone system as a dominant carrier. The
term includes a lessee, trustee, or receiver of any of those
entities, or a combination of those entities. The term does not
include a municipal corporation. A person is not a public utility
solely because the person:
(A) furnishes or furnishes and maintains a
private system;
(B) manufactures, distributes, installs, or
maintains customer premise communications equipment and
accessories; or
(C) furnishes a telecommunications service or
commodity only to itself, its employees, or its tenants as an
incident of employment or tenancy, if that service or commodity is
not resold to or used by others.
(14) [(9)] "Separation" means the division of plant,
revenues, expenses, taxes, and reserves applicable to exchange or
local service if these items are used in common to provide public
[utility] service to both local exchange telephone service and
other service, such as interstate or intrastate toll service.
(15) [(10) "Telecommunications] "Service
provider"[":
[(A)] means[:
[(i) a certificated telecommunications
utility;
[(ii) a shared tenant service provider;
[(iii) a nondominant carrier of
telecommunications services;
[(iv) a provider of commercial mobile
service as defined by Section 332(d), Communications Act of 1934
(47 U.S.C. Section 151 et seq.), Federal Communications Commission
rules, and the Omnibus Budget Reconciliation Act of 1993 (Public
Law 103-66), except that the term does not include these entities
for the purposes of Chapter 17 or 55 or 64;
[(v) a telecommunications entity that
provides central office based PBX-type sharing or resale
arrangements;
[(vi) an interexchange telecommunications
carrier;
[(vii) a specialized common carrier;
[(viii) a reseller of communications;
[(ix) a provider of operator services;
[(x) a provider of customer-owned pay
telephone service; or
[(xi) a person or entity determined by the
commission to provide telecommunications services to customers in
this state; and
[(B) does not mean:
[(i) a provider of enhanced or information
services, or another user of telecommunications services, who does
not also provide telecommunications services; or
[(ii) a state agency or state institution
of higher education, or a service provided by a state agency or
state institution of higher education.
[(11) "Telecommunications utility" means:
[(A) a public utility;
[(B) an interexchange telecommunications
carrier, including a reseller of interexchange telecommunications
services;
[(C) a specialized communications common
carrier;
[(D) a reseller of communications;
[(E) a communications carrier who conveys,
transmits, or receives communications wholly or partly over a
telephone system;
[(F) a provider of operator services as defined
by Section 55.081, unless the provider is a subscriber to
customer-owned pay telephone service; and]
[(G) a separated affiliate or an electronic
publishing joint venture as defined in Chapter 63.(12) "Tier 1]
local exchange company["] or provider of interexchange
telecommunications services, as those terms are defined in this
section;
(16) "Telecommunications" has the same meaning
[assigned by the Federal Communications Commission.] as applies
under federal law;
(17) "Telecommunications provider" means any person
or entity that offers telecommunications to others for a fee.
Sec. 51.003. APPLICABILITY. (1) Except as otherwise
expressly provided by this title, this title does not apply to:
(a) [(1)] a company that as its only form of
business:
(i) [(A)] is a telecommunications manager;
or
(ii) [(B)] administers central office
based or customer based PBX-type sharing/resale
arrangements;
(b) [(2)] telegraph services;
(c) [(3)] television or radio stations;
(d) [(4)] community antenna television services;
or
(e) [(5)] a provider of commercial mobile
service as defined by Section 332(d), Communications Act of 1934
(47 U.S.C. Section 151 et seq.), Federal Communications Commission
rules, and the Omnibus Budget Reconciliation Act of 1993 (Public
Law 103-66), other than conventional rural radio-telephone
services provided by a wire-line telephone company under the Public
Mobile Service rules of the Federal Communications Commission (47
C.F.R. Part 22).
(2) Service providers and network service providers
are subject to the commission's jurisdiction except to the extent
it is specifically preempted from exercising authority by federal
law.
Sec. 51.004. [PRICING FLEXIBILITY] DEREGULATION ELECTIONS.
[(a)]
(1) [A discount or other form of pricing flexibility
may not be:
[(1) unreasonably preferential, prejudicial, or
discriminatory; or] No later than September 1, 2005, each incumbent
local exchange company shall make an election to do business
pursuant to subsection.
[(2) predatory or anticompetitive.
[(b) This title does not prohibit a volume discount or other
discount based on a reasonable business purpose. A price that is
set at or above the long run incremental cost of a service is
presumed not to be a predatory price.
[(c) This title allows an offer based on a reasonable
business purpose] this section, including an offer made at any time
to a selected customer or a group of customers in response to a
competitor's offer or a former customer's acceptance of a
competitor's offer if the price of the offer meets the requirements
of Section 52.0584, 58.063, or 59.031.
[(d) An offer made under Subsection (c) must be made in
compliance with] Chapter [43, Business & Commerce Code, as added by
Chapter 1429, Acts of] 53, Chapter 58, or Chapter 59, which election
shall be made by filing a notice with the [77th Legislature, Regular
Session. 2001.] [Sec] commission.
(2) Notwithstanding any other provisions to the
contrary in this title, an incumbent local exchange company in the
State of Texas that elects deregulation under this paragraph is
subject only to the following provisions of this title: Chapter 52,
Sections 52.101-52.108; Sections 52.251(a); 52.255; Chapter 54,
Sections 54.001-54.005; 54.203-.206; 54.251-[.
51.005. ASSISTANCE TO MUNICIPALITY.] 253; 54.259-304; Chapter 55,
Sections 55.001; 55.013; 55.015; 55.021-.048; 55.201-.203;
55.251-.252; Chapter 56, Sections 56.001-.029; 56.101-.109;
56.151-.155; Chapter 57; Chapter 60; and Chapter 64 of this title,
provided that such incumbent local exchange company agrees as part
of its election to:
(a) Reduce its intrastate switched access
charges to its interstate switched access rate level in two
increments: by 50% of the difference in the intrastate and
interstate level by September 1, 2005, and by the remaining 50% by
January 1, 2007;
(b) Relinquish its eligibility to receive Texas
Universal Service Funds disbursements as of January 1, 2006, and
not raise its rates in exchanges where it is receiving such payments
until all actions necessary to implement Section 56.029(b) have
been accomplished; and
(c) Make the infrastructure improvements
required by and otherwise comply with Section 57.002.
Sec. 51.009. MUNICIPAL FEES. (a) Nothing in this title,
including Section 53.201, may be construed as in any way limiting
the right of a network provider or service provider to pass through
a municipal fee it is required to pay, including an increase in a
municipal fee.
(b) A network provider or service provider that passes
through municipal fees shall promptly pass through any municipal
fee reduction.
CHAPTER 52. COMMISSION JURISDICTION
SUBCHAPTER A. GENERAL POWERS AND DUTIES OF COMMISSION
Sec. 52.002. AUTHORITY TO REGULATE. The commission's
regulatory authority is only as prescribed by this title.
Sec. 52.003. COOPERATION WITH OTHER REGULATORY
AUTHORITIES. In regulating the services of a provider of local
exchange telephone service providing service in a municipality
located on the state line adjacent to a municipality in an adjoining
state, the commission may cooperate with the regulatory commission
of the adjoining state or of the federal government and may hold a
joint hearing or make a joint investigation with that commission.
Sec. 52.004. COOPERATION WITH MUNICIPALITIES. [On] (a)
Upon request of a municipality, the commission may advise and
assist the municipality with respect to a question or proceeding
arising under this title. Assistance provided by the commission
may include aid to a municipality on a matter pending before the
commission or a court, such as making a staff member available as a
witness or otherwise providing evidence to the municipality.
[Sec. 51.006. MUNICIPAL PARTICIPATION IN RATEMAKING
PROCEEDINGS. (a) The governing body of a municipality
participating in a ratemaking proceeding may engage rate
consultants, accountants, auditors, attorneys, and engineers to:
[(1) conduct investigations, present evidence, and
advise and represent the governing body; and
[(2) assist the governing body with litigation before
the commission or a court.
[(b) The public utility in the ratemaking proceeding shall
reimburse the governing body of the municipality for the reasonable
cost of the services of a person engaged under Subsection (a) to the
extent the commission determines is reasonable.
[Sec. 51.007. MUNICIPAL STANDING IN CERTAIN CASES.]
(b) [(a)] A municipality has standing in each case before
the commission that relates to a [utility] provider of local
exchange telephone service providing retail service [in] to the
municipality.
[(b)] A municipality's standing is subject to the right of
the commission to:
(1) determine standing in a case involving a retail
service area dispute that involves two or more [utilities]
providers of local exchange telephone services; and
(2) consolidate municipalities on an issue of common
interest.
[Sec. 51.008. JUDICIAL REVIEW. A municipality is entitled
to judicial review of a commission order relating to a utility
providing services in the municipality as provided by Section
15.001.
[Sec. 51.009. MUNICIPAL FEES. (a) Nothing in this title,
including Section 53.201, may be construed as in any way limiting
the right of a public utility to pass through a municipal fee,
including an increase in a municipal fee.
[(b) A public utility that traditionally passes through
municipal fees shall promptly pass through any municipal fee
reduction.
[Sec. 51.010. COMMISSION INVESTIGATION OF SALE, MERGER, OR
CERTAIN OTHER ACTIONS. (a) The commission, not later than the
180th day after the date a public utility reports to the commission
under Section 14.101, shall complete an investigation under that
section and enter a final order.
[(b) If a final order is not entered as required by
Subsection (a), the commission is considered to have determined
that the action taken by the public utility is consistent with the
public interest.
[(c) Section 14.101 does not apply to:
[(1) a company that receives a certificate of
operating authority or a service provider certificate of operating
authority under Chapter 54; or
[(2) a company electing under Chapter 58.
[CHAPTER 52. COMMISSION JURISDICTION
[SUBCHAPTER A. GENERAL POWERS AND DUTIES OF COMMISSION
[Sec. 52.001. POLICY. (a) It is the policy of this state to
protect the public interest in having adequate and efficient
telecommunications service available to each resident of this state
at just, fair, and reasonable rates.
[(b) The telecommunications industry, through technical
advancements, federal legislative, judicial, and administrative
actions, and the formulation of new telecommunications
enterprises, has become and will continue to be in many and growing
areas a competitive industry that does not lend itself to
traditional public utility regulatory rules, policies, and
principles. As a result, the public interest requires that rules,
policies, and principles be formulated and applied to:
[(1) protect the public interest; and
[(2) provide equal opportunity to each
telecommunications utility in a competitive marketplace.
[Sec. 52.002. AUTHORITY TO REGULATE. (a) To carry out the
public policy stated by Section 52.001 and to regulate rates,
operations, and services so that the rates are just, fair, and
reasonable and the services are adequate and efficient, the
commission has exclusive original jurisdiction over the business
and property of a telecommunications utility in this state subject
to the limitations imposed by this title.
[(b) The commission's regulatory authority as to a
telecommunications utility other than a public utility is only as
prescribed by this title.
[Sec. 52.003. COOPERATION WITH OTHER REGULATORY
AUTHORITIES. In regulating the rates, operations, and services of
a telecommunications utility providing service in a municipality
located on the state line adjacent to a municipality in an adjoining
state, the commission may cooperate with the utility regulatory
commission of the adjoining state or of the federal government and
may hold a joint hearing or make a joint investigation with that
commission.
[Sec. 52.004. COMMISSION MAY ESTABLISH SEPARATE MARKETS.]
The governing body of a municipality participating in a ratemaking
proceeding may engage rate consultants, accountants, auditors,
attorneys, and engineers to:
(1) conduct investigations, present evidence, and
advise and represent the governing body; and
(2) assist the governing body with litigation before
the commission or a court.
(d) [(a)] [The commission may establish separate
telecommunications markets in this state if] A provider of local
exchange telephone service in the ratemaking proceeding shall not
be required to reimburse the governing body of the municipality for
the reasonable cost of the services of a person engaged under
Subsection (c) to the extent the commission determines [that the
public interest will be served. The commission shall hold hearings
and require evidence as necessary to:] is reasonable.
[(1) carry out the public purpose of this chapter; and
[(2) determine the need and effect of establishing
separate markets.
[(b) A provider determined to be a dominant carrier as to a
particular telecommunications service in a market may not be
presumed to be a dominant carrier of a different telecommunications
service in that market.
[Sec. 52.005. MINIMUM REQUIREMENTS FOR DOMINANT CARRIERS.
The commission shall impose as minimum requirements for a dominant
carrier the same requirements imposed by Subchapter C, except
Section 52.107.]
Sec. 52.006. COMMISSION TO REPORT TO LEGISLATURE. (a)
Before January 15 of each odd-numbered year, the commission shall
report to the legislature on:
(1) the scope of competition in [regulated] all
telecommunications and information services markets, regardless of
technology; and
(2) the effect of competition on customers [in both
competitive and noncompetitive markets,] with a specific focus on
rural markets.
(b) The report shall include[:
[(1)] an assessment of the effect of competition on
the rates and availability of all telecommunications services for
residential and business customers, regardless of technologies;
[(2) a summary of commission action over the preceding
two years that reflects changes in the scope of competition in
regulated telecommunications markets; and
[(3) recommendations for legislation the commission
determines is appropriate to promote the public interest in the
context of a partially competitive telecommunications market.]
(c) The commission, in its assessment under Subsection
(b)[(1)], shall specifically address any effects on universal
service.
(d) [A telecommunications utility] Each Network Provider
and Service Provider shall cooperate with the commission as
reasonably necessary for the commission to satisfy the requirements
of this section.
SUBCHAPTER B. [INCUMBENT LOCAL EXCHANGE COMPANIES
[Sec. 52.051. POLICY. In adopting rules and establishing
procedures under this subchapter, the commission shall:
[(1) attempt to balance the public interest in a
technologically advanced telecommunications system providing a
wide range of new and innovative services with traditional
regulatory concerns for:
[(A) preserving universal service;
[(B) prohibiting anticompetitive practices; and
[(C) preventing the subsidization of competitive
services with revenues from regulated monopoly services; and
[(2) incorporate an appropriate mix of regulatory and
market mechanisms reflecting the level and nature of competition in
the marketplace.
[Sec. 52.052. APPLICABILITY. This subchapter does not
apply to basic local telecommunications service, including local
measured service.
[Sec. 52.053. CERTAIN RATES PROHIBITED. A rate established
under this subchapter may not be:
[(1) unreasonably preferential, prejudicial, or
discriminatory;
[(2) subsidized either directly or indirectly by a
regulated monopoly service; or
[(3) predatory or anticompetitive.
[Sec. 52.054. RULES AND PROCEDURES FOR INCUMBENT LOCAL
EXCHANGE COMPANIES. (a) To carry out the public policy stated in
Section 52.001, notwithstanding any other provision of this title,
the commission may adopt rules and establish procedures applicable
to incumbent local exchange companies to:
[(1) determine the level of competition in a specific
telecommunications market or submarket; and
[(2) provide appropriate regulatory treatment to
allow an incumbent local exchange company to respond to significant
competitive challenges.
[(b) This section does not change the burden of proof on an
incumbent local exchange company under Sections 53.003, 53.006,
53.051, 53.052, 53.053, 53.054, 53.055, 53.057, 53.058, 53.060, and
53.062.
[Sec. 52.055. HEARING TO DETERMINE LEVEL] PROVIDERS OF
[COMPETITION. In determining the level of competition in a
specific market or submarket, the commission shall hold an
evidentiary hearing to consider:
[(1) the number and size of telecommunications
utilities or other persons providing the same, equivalent, or
substitutable service;
[(2) the extent to which the same, equivalent, or
substitutable service is available;
[(3) the ability of a customer to obtain the same,
equivalent, or substitutable service at comparable rates and terms;
[(4) the ability of a telecommunications utility or
other person to make the same, equivalent, or substitutable service
readily available at comparable rates and terms;
[(5) the existence of a significant barrier to the
entry or exit of a provider of the service; and
[(6) other relevant information the commission
determines is appropriate.
[Sec. 52.056. SPECIFICALLY AUTHORIZED REGULATORY
TREATMENTS. The regulatory treatments the commission may implement
under Section 52.054 include:
[(1) approval of a range of rates for a specific
service;
[(2) approval of a customer-specific contract for a
specific service; and
[(3) the detariffing of rates.
[Sec. 52.057. CUSTOMER-SPECIFIC CONTRACTS. (a) The
commission shall approve a customer-specific contract that meets
the requirements of Subsection (b) to provide:
[(1) central office based PBX-type services for a
system of 200 stations or more;
[(2) billing and collection services;
[(3) high-speed private line services of 1.544
megabits or greater; or
[(4) customized services.
[(b) The commission shall approve a contract for a service
described by Subsection (a) if:
[(1) the contract is filed before the 30th day before
the date the service contracted for is initiated;
[(2) the contract is accompanied by an affidavit from
the person or entity contracting for the service stating that the
person or entity considered acquiring the same, equivalent, or
substitutable service by bid or quotation from a source other than
the incumbent local exchange company;
[(3) the incumbent local exchange company recovers the
appropriate costs of providing the service; and
[(4) approval of the contract is in the public
interest.
[(c) The commission shall approve or deny a contract under
this section not later than the 30th day after the date the contract
is filed, unless the commission for good cause extends the
effective date for an additional 35 days.
[(d) An incumbent local exchange company may not price
similar services provided under contracts governed by this section
in an unreasonably discriminatory manner.
[(e) This section and Section 52.056(2) do not apply to:
[(1) message telecommunications service;
[(2) switched access service for an interexchange
carrier; or
[(3) wide area telecommunications service.
[(f) In this section, "similar services" means services
that:
[(1) are provided at or near the same point in time;
[(2) have the same characteristics; and
[(3) are provided under the same or similar
circumstances.
[Sec. 52.058. GENERAL PROVISIONS RELATING TO NEW OR
EXPERIMENTAL SERVICES OR PROMOTIONAL RATES. (a) To encourage the
rapid introduction of new or experimental services or promotional
rates, the commission shall adopt rules and establish procedures
that allow:
[(1) the expedited introduction of new or experimental
services or promotional rates;
[(2) the establishment and adjustment of rates; and
[(3) the withdrawal of those services or promotional
rates.
[(b) The rules and procedures described by Subsection (a)
must include rules and procedures to allow the governing body of a
municipality served by an incumbent local exchange company having
more than 500,000 access lines in this state to make requests to the
commission for new or experimental services or promotional rates.
[(c) A rate established or adjusted at the request of a
municipality may not:
[(1) result in higher rates for ratepayers outside the
municipal boundaries; or
[(2) include a rate for incumbent local exchange
company interexchange service or interexchange carrier access
service.
[Sec. 52.0583. NEW SERVICES. (a) An incumbent local
exchange company may introduce a new service 10 days after
providing an informational notice to the commission, to the office,
and to any person who holds a certificate of operating authority in
the incumbent local exchange company's certificated area or areas
or who has an effective interconnection agreement with the
incumbent local exchange company.
[(b) An incumbent local exchange company shall price each
new service at or above the service's long run incremental cost.
The commission shall allow a company serving fewer than one million
access lines in this state to establish a service's long run
incremental cost by adopting, at that company's option, the cost
studies of a larger company for that service that have been accepted
by the commission.
[(c) An affected person, the office on behalf of residential
or small commercial customers, or the commission may file a
complaint at the commission challenging whether the pricing by an
incumbent local exchange company of a new service is in compliance
with Subsection (b).
[(d) If a complaint is filed under Subsection (c), the
incumbent local exchange company has the burden of proving that the
company set the price for the new service in accordance with the
applicable provisions of this subchapter. If the complaint is
finally resolved in favor of the complainant, the company:
[(1) shall, not later than the 10th day after the date
the complaint is finally resolved, amend the price of the service as
necessary to comply with the final resolution; or
[(2) may, at the company's option, discontinue the
service.
[(e) A company electing incentive regulation under Chapter
58 or 59 may introduce new services only in accordance with the
applicable provisions of Chapter 58 or 59.
[Sec. 52.0584. PRICING AND PACKAGING FLEXIBILITY; CUSTOMER
PROMOTIONAL OFFERINGS. (a) Notwithstanding any other provision
of this title, an incumbent local exchange company may exercise
pricing flexibility in accordance with this section, including the
packaging of any regulated service such as basic local
telecommunications service with any other regulated or unregulated
service or any service of an affiliate. The company may exercise
pricing flexibility 10 days after providing an informational notice
to the commission, to the office, and to any person who holds a
certificate of operating authority in the incumbent local exchange
company's certificated area or areas or who has an effective
interconnection agreement with the incumbent local exchange
company. Pricing flexibility includes all pricing arrangements
included in the definition of "pricing flexibility" prescribed by
Section 51.002 and includes packaging of any regulated service with
any unregulated service or any service of an affiliate.
[(b) An incumbent local exchange company, at the company's
option, shall price each regulated service offered separately or as
part of a package under Subsection (a) at either the service's
tariffed rate or at a rate not lower than the service's long run
incremental cost. The commission shall allow a company serving
fewer than one million access lines in this state to establish a
service's long run incremental cost by adopting, at that company's
option, the cost studies of a larger company for that service that
have been accepted by the commission.
(c) An affected person, the office on behalf of residential
or small commercial customers, or the commission may file a
complaint alleging that an incumbent local exchange company has
priced a regulated service in a manner that does not meet the
pricing standards of this subchapter. The complaint must be filed
before the 31st day after the date the company implements the rate.
[(d) A company electing incentive regulation under Chapter
58 or 59 may use pricing and packaging flexibility and introduce
customer promotional offerings only in accordance with the
applicable provisions of Chapter 58 or 59.
[Sec. 52.0585. CUSTOMER PROMOTIONAL OFFERINGS. (a) An
incumbent local exchange company may offer a promotion for a
regulated service for not more than 90 days in any 12-month period.
[(b) The company shall file with the commission a
promotional offering that consists of:
[(1) waiver of installation charges or service order
charges, or both, for not more than 90 days in a 12-month period; or
[(2) a temporary discount of not more than 25 percent
from the tariffed rate for not more than 60 days in a 12-month
period.
[(c) An incumbent local exchange company is not required to
obtain commission approval to make a promotional offering described
by Subsection (b).
[(d) An incumbent local exchange company may offer a
promotion of any regulated service as part of a package of services
consisting of any regulated service with any other regulated or
unregulated service or any service of an affiliate.
[Sec. 52.059. RATES TO COVER APPROPRIATE COSTS. (a) The
commission by rule shall adopt standards necessary to ensure that a
rate established under this subchapter covers appropriate costs as
determined by the commission.
[(b) Until standards are set under Subsection (a), the
commission shall use a costing methodology that is in the public
interest to determine whether a rate established under this
subchapter covers appropriate costs.
[Sec. 52.060. ADMINISTRATIVE FEE OR ASSESSMENT. The
commission may prescribe and collect a fee or assessment from local
exchange companies necessary to recover the cost to the commission
and to the office of activities carried out and services provided
under this subchapter and Section 52.006. SUBCHAPTER C.]
INTEREXCHANGE TELECOMMUNICATIONS [UTILITIES THAT ARE NOT DOMINANT
CARRIERS] SERVICES
Sec. 52.101. APPLICABILITY. This subchapter applies only
to a provider of interexchange telecommunications [utility that is
not:] services.
[(1) a dominant carrier; or
[(2) the holder of a certificate of operating
authority or a service provider certificate of operating
authority.]
Sec. 52.102. LIMITED REGULATORY AUTHORITY. [(a)] Except
as otherwise provided by this subchapter[, Subchapters] and
Subchapter D [and K], Chapter 55, [and Section 55.011] the
commission has [only the following] jurisdiction over a provider of
interexchange telecommunications [utility] services [subject] only
to require compliance with this [subchapter:] Subchapter.
[(1) to require registration under Section 52.103;
[(2) to conduct an investigation under Section 52.104;
[(3) to require the filing of reports as the
commission periodically directs;
[(4) to require the maintenance of statewide average
rates or prices of telecommunications service;
[(5) to require a telecommunications utility that had
more than six percent of the total intrastate access minutes of use
as measured for the most recent 12-month period to pass switched
access rate reductions under this title to customers as required by
Section 52.112;
[(6) to require access to telecommunications service
under Section 52.105; and
[(7) to require the quality of telecommunications
service provided to be adequate under Section 52.106.
[(b) The authority provided by Subsection (a)(5) expires on
the date on which Section 52.112 expires.]
Sec. 52.103. REGISTRATION REQUIRED. (a) A provider of
interexchange telecommunications [utility] services to customers
residing within Texas shall register with the commission not later
than the 30th day after the date the [utility] provider commences
service to the public.
(b) A [telecommunications utility] provider that registers
under Subsection (a) shall file with the commission a description
of:
(1) the location and type of service provided; and
(2) the price to the public of that service[; and].
[(3) other registration information the commission
directs.]
(c) [An] A provider of interexchange telecommunications
[utility] service doing business in this state shall maintain on
file with the commission tariffs or lists governing the terms of
providing its services.
[Sec. 52.104. COMMISSION MAY INVESTIGATE. (a) The
commission may investigate as necessary to determine the effect and
scope of competition in the telecommunications industry. The
investigation may include:
[(1) identifying dominant carriers in the local
telecommunications and intraLATA interexchange telecommunications
industry; and
[(2) defining the telecommunications market or
markets.
[(b) In conducting an investigation under this section, the
commission may:
[(1) hold a hearing;
[(2) issue a subpoena to compel the attendance of a
witness or the production of a document; and
[(3) make findings of fact and decisions to administer
this title or a rule, order, or other action of the commission.
[Sec. 52.105. ACCESS TO CERTAIN SERVICES REQUIRED. (a)
The commission may require that each local exchange area have
access to local and interexchange telecommunications service,
except as otherwise provided by this section.
[(b) The commission shall allow a telecommunications
utility to discontinue service to a local exchange area if:
[(1) comparable service is available in the area; and
[(2) discontinuing the service is not contrary to the
public interest.
[(c) This section does not authorize the commission to
require a telecommunications utility to initiate service to a local
exchange area to which the telecommunications utility:
[(1) did not provide service during the preceding
12-month period; and
[(2) has not provided service previously for a
cumulative period of at least one year.
[Sec. 52.106. QUALITY OF SERVICE REQUIRED. The commission
may require the quality of telecommunications service provided in a
local exchange in which the commission determines that service has
deteriorated and become unreliable to be adequate to protect the
public interest and the interests of customers of that exchange.
[Sec. 52.107. PREDATORY PRICING. (a) The commission may
enter an order necessary to protect the public interest if the
commission finds by a preponderance of the evidence after notice
and hearing that an interexchange telecommunications utility has:
[(1) engaged in predatory pricing; or
[(2) attempted to engage in predatory pricing.
[(b) A hearing held by the commission under Subsection (a)
must be based on a complaint from another interexchange
telecommunications utility.
[(c) An order entered under Subsection (a) may include the
imposition on a specific service of the commission's full
regulatory authority under:
[(1) this chapter;
[(2) Chapters 14, 15, 51, 53, and 54; and
[(3) Subchapters A, D, and H, Chapter 55.
[(d) This section applies only to an interexchange
telecommunications utility.]
Sec. 52.108. OTHER PROHIBITED PRACTICES. The commission
may enter any order necessary to protect the public interest if the
commission finds after notice and hearing that a provider of
interexchange telecommunications [utility] services has[:
[(1) failed to maintain statewide average rates;
[(2) abandoned] ceased interexchange [message]
telecommunications service to a local exchange area [in a manner
contrary to the public interest; or] where no competitive
alternative exists.
[(3) engaged in a pattern of preferential or
discriminatory activities prohibited by Section 53.003, 55.005, or
55.006; or
[(4) failed to pass switched access rate reductions to
customers under Chapter 56 or other law, as required by Section
52.112.]
SUBCHAPTER C.
[Sec. 52.109. AVAILABILITY OF SERVICE. (a) The commission
may require a telecommunications utility that provides a service to
make that service available in an exchange served by the
telecommunications utility within a reasonable time after receipt
of a bona fide request for the service in that exchange.
[(b) A telecommunications utility may not be required to
extend a service to an area if:
[(1) the local exchange company is unable to provide
the required access or other service; or
[(2) extending the service would, after consideration
of the public interest to be served, impose unreasonable costs on or
require unreasonable investments by the telecommunications
utility.
[(c) The commission may require from a telecommunications
utility or a local exchange company information necessary to
enforce this section.
[Sec. 52.110. BURDEN OF PROOF. (a) In a proceeding before
the commission in which it is alleged that a telecommunications
utility engaged in conduct in violation of Section 52.107, 52.108,
52.109, or 52.112 the burden of proof is on:
[(1) a telecommunications utility complaining of
conduct committed against it in violation of this subchapter; or
[(2) except as provided by Subsection (b), the
responding telecommunications utility if the proceedings are:
[(A) brought by a customer or customer
representative who is not a telecommunications utility; or
[(B) initiated by the commission.
[(b) The commission may impose the burden of proof on the
complaining party in a proceeding described by Subsection (a)(2) if
the commission determines that placing the burden of proof on the
complaining party is in the public interest.
[Sec. 52.111. COMMISSION MAY EXEMPT. The commission may
exempt from a requirement of this subchapter a telecommunications
utility that:
[(1) does not have a significant effect on the public
interest, as determined by the commission; or
[(2) relies solely on the facilities of others to
complete long distance calls, if the commission determines that the
exemption is in the public interest.
[Sec. 52.112. REDUCTION PASS-THROUGH REQUIRED. (a) Each
telecommunications utility that had more than six percent of the
total intrastate access minutes of use as measured for the most
recent 12-month period shall pass through to customers switched
access rate reductions under this title. The residential customer
class shall receive not less than a proportionate share of the
reductions.]
REQUIRED FILINGS AND ACCESS RATE PROHIBITIONS
Sec. 52.251. TARIFF FILINGS. (a) [(b) Within six months
following each reduction in intrastate switched access rates under
this title, each telecommunications utility subject to this section
A certificated provider shall file with the commission a [sworn
affidavit confirming] tariff or price list showing each rate
[schedule to reflect the per minute reduction in intrastate
switched access rates.] that [the utility has reduced the per
minute rates it charges under its basic] is:
[(c) This section expires on the second anniversary]
(1) subject to the commission's jurisdiction; or
(2) in effect for the provision of [the date
incumbent] local exchange [companies doing business in the state
are no longer prohibited by federal law from offering interLATA and
interstate long distance] telephone service.
[SUBCHAPTER D. CERTIFICATE HOLDERS]
(b) A provider of local exchange telephone service electing
under section 53, section 58 or section 59 shall file as a part of
the tariff required under Subsection (a) each rule that relates to
or affects:
(1) a rate; or
(2) the service, product, or commodity furnished.
[Sec. 52.151. APPLICABILITY. This subchapter applies only
to a telecommunications utility that holds a certificate of
operating authority or a service provider certificate of operating
authority.
[Sec. 52.152. LIMITED REGULATORY AUTHORITY. Except as
otherwise specifically provided by this title, the commission has
only the following authority over a telecommunications utility
subject to this subchapter:
[(1) to enforce this title under Subchapter B, Chapter
15;
[(2) to assert jurisdiction over a specific service
under Subchapter E;
[(3) to require co-carriage reciprocity; and
[(4) to regulate condemnation and building access.
[Sec. 52.153. BOOKS AND RECORDS. The commission may
prescribe forms of books, accounts, records, and memoranda to be
kept by a telecommunications utility, but only as necessary to
enforce the limited jurisdiction over those companies that this
title provides to the commission.
[Sec. 52.154. COMMISSION MAY NOT OVERBURDEN. The
commission may not, by a rule or regulatory practice adopted under
this chapter, impose on a telecommunications utility a greater
regulatory burden than is imposed on a holder of a certificate of
convenience and necessity serving the same area.]
Sec. [52.155.] 52.252. PROHIBITION OF EXCESSIVE ACCESS
CHARGES. (a) A [telecommunications utility that holds a
certificate of operating authority or a service] provider
[certificate] of [operating authority] local exchange telephone
service which is not an incumbent local exchange service provider
may not charge a higher amount for a combined originating [or] and
terminating intrastate switched access than the prevailing rates
charged by the [holder of the certificate of convenience and
necessity] incumbent local exchange service provider in whose
territory the call originated or terminated unless:
(1) the commission specifically approves the higher
rate; or
(2) subject to commission review, the
[telecommunications utility] local exchange telephone service
provider establishes statewide average composite originating and
terminating intrastate switched access rates based on a reasonable
approximation of traffic originating and terminating between all
holders of certificates of convenience and necessity in this state.
(b) Notwithstanding any other provision of this title, the
commission has all jurisdiction necessary to enforce this section.
[SUBCHAPTER E. DEREGULATION OF SERVICE]
[Sec. 52.201. DEREGULATION OF SERVICE. Notwithstanding any
other provision of this title, the commission may deregulate the
price of a service in a geographic market if, after notice and
hearing, the commission determines that:
[(1) the incumbent local exchange company is not
dominant for the service in that geographic market; or
[(2) the holder of a certificate of operating
authority who is a dominant carrier is no longer dominant for the
service in that geographic market.
[Sec. 52.202. DETERMINATION OF GEOGRAPHIC MARKET. In
determining the geographic market under Section 52.201, the
commission shall consider the economic and technical conditions of
the market.
[Sec. 52.203. MARKET POWER TEST. (a) To determine whether
an incumbent local exchange company or holder of a certificate of
operating authority who is a dominant carrier is no longer dominant
for a service in a geographic market, the commission must find that:
[(1) there is an effective competitive alternative;
and
[(2) the incumbent local exchange company or
certificate holder does not have market power sufficient to
control, in a manner that is adverse to the public interest, the
price of the service in the geographic area.
[(b) To determine whether the incumbent local exchange
company or certificate holder is dominant for a service in the
geographic area, the commission shall consider:
[(1) the number and size of telecommunications
utilities or other persons who provide the same, equivalent, or
substitutable service in the relevant market;
[(2) the extent to which the service is available in
the relevant market;
[(3) the ability of customers in the relevant market
to obtain the same, equivalent, or substitutable service at
comparable rates and on comparable terms;
[(4) the ability of a telecommunications utility or
other person to make the same, equivalent, or substitutable service
readily available in the relevant market at comparable rates and on
comparable terms;
[(5) the proportion of the relevant market that is
being provided the service by a telecommunications utility other
than the incumbent local exchange company or holder of a
certificate of operating authority who is a dominant carrier; and
[(6) other relevant information the commission
considers necessary.
[Sec. 52.204. RATE FOR DEREGULATED SERVICE. If the price of
a service in a geographic market is deregulated under this
subchapter, the incumbent local exchange company or holder of a
certificate of operating authority may set the rate for the service
at any level higher than the service's long run incremental cost.
[Sec. 52.205. INVESTIGATION OF COMPETITION. (a) On
request of an incumbent local exchange company or holder of a
certificate of operating authority who is a dominant carrier made
in conjunction with an application under this subchapter, the
commission shall investigate to determine the effect and scope of
competition in the geographic and service markets at issue.
[(b) The commission has the power necessary and convenient
to conduct the investigation. In conducting an investigation, the
commission may:
[(1) hold a hearing;
[(2) issue a subpoena to compel the attendance of a
witness and the production of a document; and
[(3) make findings of fact and decisions with respect
to the markets.
[(c) A party to a proceeding may use, in an application for
pricing flexibility, the results of an investigation conducted
under this section.
[Sec. 52.206. REREGULATION OF MARKET. The commission, on
its own motion or on a complaint that the commission considers to
have merit, may assert regulation over a service in a geographic
market if:
[(1) the incumbent local exchange company or holder of
a certificate of operating authority who was previously a dominant
carrier is found to again be dominant for the service in that
geographic market; or
[(2) the provider of services under a certificate of
operating authority or service provider certificate of operating
authority is found to be dominant for the service in that geographic
market.
[Sec. 52.207. REPORTS; CONFIDENTIAL INFORMATION. (a) In
conjunction with the commission's authority to collect and compile
information, the commission may collect a report from a holder of a:
[(1) certificate of operating authority; or
[(2) service provider certificate of operating
authority.
[(b) The commission shall maintain the confidentiality of
information contained in a report collected under this section that
is claimed to be confidential for competitive purposes. The
confidential information is exempt from disclosure under Chapter
552, Government Code.
[(c) To protect the confidential information, the
commission shall aggregate the information to the maximum extent
possible considering the purpose of the proceeding.
[SUBCHAPTER F. REQUIRED REPORTS AND FILINGS; RECORDS
[Sec. 52.251. TARIFF FILINGS. (a) A public utility shall
file with the commission a tariff showing each rate that is:
[(1) subject to the commission's jurisdiction; and
[(2) in effect for a utility service, product, or
commodity offered by the utility.
[(b) The public utility shall file as a part of the tariff
required under Subsection (a) each rule that relates to or affects:
[(1) a rate of the utility; or
[(2) a utility service, product, or commodity
furnished by the utility.
[Sec. 52.252. DEPRECIATION ACCOUNT. The commission shall
require each public utility to carry a proper and adequate
depreciation account in accordance with:
[(1) the rates and methods prescribed by the
commission under Section 53.056; and
[(2) any other rule the commission adopts.
[Sec. 52.253. ACCOUNTS OF PROFITS AND LOSSES. A public
utility shall keep separate accounts showing profits or losses from
the sale or lease of merchandise, including an appliance, a
fixture, or equipment.
[Sec. 52.254. REPORT OF CERTAIN EXPENSES. The commission
may require a public utility to annually report the utility's
expenditures for:
[(1) business gifts and entertainment; and
[(2) advertising or public relations, including
expenditures for institutional and consumption-inducing purposes.]
Sec. 52.255. AVAILABILITY OF RECORDS. Notwithstanding
Section 14.152, a book, account, record, or memorandum of a [public
utility] provider of local exchange telephone service may be
removed from this state if the book, account, record, or memorandum
is returned to this state for any commission inspection authorized
by this title.
Sec. 52.256. PLAN AND REPORT OF WORKFORCE DIVERSITY AND
OTHER BUSINESS PRACTICES. (a) In this section, "small business"
and "historically underutilized business" have the meanings
assigned by Section 481.191, Government Code.
[(b) Before January 1, 2000, each telecommunications
utility shall develop and submit to the commission a comprehensive
five-year plan to enhance diversity of its workforce in all
occupational categories and for increasing opportunities for small
and historically underutilized businesses. The plan must consist
of:
[(1) the telecommunications utility's performance
with regard to workforce diversity and contracting with small and
historically underutilized businesses;
[(2) initiatives that the telecommunications utility
will pursue in these areas over the period of the plan;
[(3) a listing of programs and activities the
telecommunications utility will undertake to achieve each of these
initiatives; and
[(4) a listing of the business partnership initiatives
the telecommunications utility will undertake to facilitate small
and historically underutilized business entry into the
telecommunications market, taking into account opportunities for
contracting and joint ventures.
[(c) Each telecommunications utility]
(b) Each provider of local exchange telephone service shall
submit an annual report to the commission and the legislature
relating to its efforts to improve workforce diversity and
contracting opportunities for small and historically underutilized
businesses. The report must include:
(1) the diversity of the [telecommunications
utility's] provider's workforce as of the time of the report;
(2) the [telecommunications utility's] level of
contracting with small and historically underutilized businesses;
(3) the specific [progress made under the plan under
Subsection (b); (4) the specific] initiatives, programs, and
activities undertaken under the plan during the preceding year;
(4) [(5)] an assessment of the success of each of
those initiatives, programs, and activities;
(5) [(4)] the extent to which the
[telecommunications] provider [utility] has carried out its
initiatives to facilitate opportunities for contracts or joint
ventures with small and historically underutilized businesses; and
(6) [(7)] the initiatives, programs, and activities
the [telecommunications] provider [utility] will pursue during the
next year to increase the diversity of its workforce and
contracting opportunities for small and historically underutilized
businesses.
CHAPTER 53. RATES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 53.001. AUTHORIZATION TO ESTABLISH AND REGULATE RATES.
(a) The provisions of this chapter apply to any incumbent local
exchange company electing under this chapter or failing to file an
election as prescribed by Section 51.004(1).
(b) [(a)] Except as otherwise provided by this title, the
commission may establish and regulate rates of a public utility and
may adopt rules for determining:
(1) the classification of customers and services; and
(2) the applicability of rates.
(c) [(b)] A rule or order of the commission may not conflict
with a ruling of a federal regulatory body.
Sec. 53.002. COMPLIANCE WITH TITLE. A utility may not
charge or receive a rate for utility service except as provided by
this title.
Sec. 53.003. JUST AND REASONABLE RATES. (a) The commission
shall ensure that each rate a public utility or two or more public
utilities jointly make, demand, or receive is just and reasonable.
(b) A rate may not be unreasonably preferential,
prejudicial, or discriminatory but must be sufficient, equitable,
and consistent in application to each class of consumer.
(c) A public utility may not:
(1) grant an unreasonable preference or advantage
concerning rates to a person in a classification;
(2) subject a person in a classification to an
unreasonable prejudice or disadvantage concerning rates; or
(3) establish or maintain an unreasonable difference
concerning rates between localities or between classes of service.
(d) In establishing a public utility's rates, the
commission may treat as a single class two or more municipalities
that a public utility serves if the commission considers that
treatment to be appropriate.
Sec. 53.004. EQUALITY OF RATES AND SERVICES. (a) A public
utility may not directly or indirectly charge, demand, or receive
from a person a greater or lesser compensation for a service
provided or to be provided by the utility than the compensation
prescribed by the applicable tariff filed under Section 52.251.
(b) A person may not knowingly receive or accept a service
from a public utility for a compensation greater or less than the
compensation prescribed by the tariff.
(c) This title does not prevent a cooperative corporation
from returning to its members net earnings resulting from its
operations in proportion to the members' purchases from or through
the corporation.
Sec. 53.005. RATES FOR AREA NOT IN MUNICIPALITY. Without
the approval of the commission, a public utility's rates for an area
not in a municipality may not exceed 115 percent of the average of
all rates for similar services for all municipalities served by the
same utility in the same county as that area.
Sec. 53.006. BURDEN OF PROOF. (a) In a proceeding
involving a proposed rate change, the public utility has the burden
of proving that:
(1) the rate change is just and reasonable, if the
utility proposes the change; or
(2) an existing rate is just and reasonable, if the
proposal is to reduce the rate.
(b) In a proceeding in which the rate of an incumbent local
exchange company is in issue, the incumbent local exchange company
has the burden of proving that the rate is just and reasonable.
Sec. 53.007. LIMIT ON RECONNECTION FEE. The commission
shall establish a reasonable limit on the amount that a local
exchange company may charge a customer for changing the location at
which the customer receives service.
SUBCHAPTER B. COMPUTATION OF RATES
Sec. 53.051. ESTABLISHING OVERALL REVENUES. In
establishing a public utility's rates, the commission shall
establish the utility's overall revenues at an amount that will
permit the utility a reasonable opportunity to earn a reasonable
return on the utility's invested capital used and useful in
providing service to the public in excess of the utility's
reasonable and necessary operating expenses.
Sec. 53.052. ESTABLISHING REASONABLE RETURN. In
establishing a reasonable return on invested capital, the
commission shall consider applicable factors, including:
(1) the quality of the utility's services;
(2) the efficiency of the utility's operations; and
(3) the quality of the utility's management.
Sec. 53.053. COMPONENTS OF INVESTED CAPITAL. (a) Public
utility rates shall be based on the original cost, less
depreciation, of property used by and useful to the utility in
providing service.
(b) The original cost of property shall be determined at the
time the property is dedicated to public use, whether by the utility
that is the present owner or by a predecessor.
(c) In this section, "original cost" means the actual money
cost or the actual money value of consideration paid other than
money.
Sec. 53.054. CONSTRUCTION WORK IN PROGRESS. (a)
Construction work in progress, at cost as recorded on the public
utility's books, may be included in the utility's rate base. The
inclusion of construction work in progress is an exceptional form
of rate relief that the commission may grant only if the utility
demonstrates that inclusion is necessary to the utility's financial
integrity.
(b) Construction work in progress may not be included in the
rate base for a major project under construction to the extent that
the project has been inefficiently or imprudently planned or
managed.
Sec. 53.055. SEPARATIONS AND ALLOCATIONS. Costs of
facilities, revenues, expenses, taxes, and reserves shall be
separated or allocated as prescribed by the commission.
Sec. 53.056. DEPRECIATION, AMORTIZATION, AND DEPLETION.
(a) The commission shall establish proper and adequate rates and
methods of depreciation, amortization, or depletion for each class
of property of a public utility.
(b) On application of a utility, the commission shall
establish depreciation rates that promote the use of new technology
and infrastructure. In establishing rates under this subsection,
the commission shall consider depreciation practices of
nonregulated telecommunications providers.
(c) The rates and methods established under this section and
the depreciation account required by [Section 52.252] the
commission shall be used uniformly and consistently throughout
rate-setting and appeal proceedings.
(d) Notwithstanding this section, a company electing under
Chapter 58 may determine its own depreciation rates and
amortizations. The company shall notify the commission of any
change in those rates or amortizations.
Sec. 53.057. NET INCOME; DETERMINATION OF REVENUES AND
EXPENSES. (a) A public utility's net income is the total revenues
of the utility less all reasonable and necessary expenses as
determined by the commission.
(b) The commission shall determine revenues and expenses in
a manner consistent with this subchapter.
(c) The commission may adopt reasonable rules with respect
to whether an expense is allowed for ratemaking purposes.
Sec. 53.058. CONSIDERATION OF PAYMENT TO AFFILIATE. (a)
Except as provided by Subsection (b), the commission may not allow
as capital cost or as expense a payment to an affiliate for:
(1) cost of a service, property, right, or other item;
or
(2) interest expense.
(b) The commission may allow a payment described by
Subsection (a) only to the extent that the commission finds the
payment is reasonable and necessary for each item or class of items
as determined by the commission.
(c) A finding under Subsection (b) must include:
(1) a specific finding of the reasonableness and
necessity of each item or class of items allowed; and
(2) except as provided by Subsection (d), a finding
that the price to the utility is not higher than the prices charged
by the supplying affiliate to:
(A) its other affiliates or divisions for the
same item or class of items; or
(B) a nonaffiliated person within the same market
area or having the same market conditions.
(d) A finding under this section is not required as to the
prices charged by the supplying affiliate to its other affiliates
or divisions if the supplying affiliate computed its charges to the
utility in a manner consistent with Federal Communications
Commission rules.
(e) If the commission finds that the affiliate expense for
the test period is unreasonable, the commission shall:
(1) determine the reasonable level of the expense; and
(2) include that expense in determining the utility's
cost of service.
Sec. 53.059. TREATMENT OF CERTAIN TAX BENEFITS. (a) In
determining the allocation of tax savings derived from liberalized
depreciation and amortization, the investment tax credit, and the
application of similar methods, the commission shall:
(1) balance equitably the interests of present and
future customers; and
(2) apportion accordingly the benefits between
consumers and the public utility.
(b) If a public utility retains a portion of the investment
tax credit, that portion shall be deducted from the original cost of
the facilities or other addition to the rate base to which the
credit applied to the extent allowed by the Internal Revenue Code.
Sec. 53.060. COMPUTATION OF INCOME TAX; CONSOLIDATED
RETURN. (a) Unless it is shown to the satisfaction of the
commission that it was reasonable to choose not to consolidate
returns, a public utility's income taxes shall be computed as
though a consolidated return had been filed and the utility had
realized its fair share of the savings resulting from that return,
if:
(1) the utility is a member of an affiliated group
eligible to file a consolidated income tax return; and
(2) it is advantageous to the utility to do so.
(b) The amount of income tax that a consolidated group of
which a public utility is a member saves, because the consolidated
return eliminates the intercompany profit on purchases by the
utility from an affiliate, shall be applied to reduce the cost of
the property or service purchased from the affiliate.
(c) The investment tax credit allowed against federal
income taxes, to the extent retained by the utility, shall be
applied as a reduction in the rate-based contribution of the assets
to which the credit applies, to the extent and at the rate allowed
by the Internal Revenue Code.
Sec. 53.061. ALLOWANCE OF CERTAIN EXPENSES. (a) The
commission may not allow as a cost or expense for ratemaking
purposes:
(1) an expenditure for legislative advocacy; or
(2) an expenditure [described by Section 52.254] for
business gifts and entertainment as well as advertising or public
relations, including expenditures for institutional and
consumption-inducing purposes that the commission determines to be
not in the public interest.
(b) The commission may allow as a cost or expense reasonable
charitable or civic contributions not to exceed the amount approved
by the commission.
Sec. 53.062. CONSIDERATION OF CERTAIN EXPENSES. The
commission may not consider for ratemaking purposes:
(1) an expenditure for legislative advocacy, made
directly or indirectly, including legislative advocacy expenses
included in trade association dues;
(2) an expenditure for costs of processing a refund or
credit under Section 53.110; or
(3) any other expenditure, including an executive
salary, advertising expense, legal expense, or civil penalty or
fine the commission finds to be unreasonable, unnecessary, or not
in the public interest.
Sec. 53.063. CONSIDERATION OF PROFIT OR LOSS FROM SALE OR
LEASE OF MERCHANDISE. In establishing a public utility's rates,
the commission may not consider a profit or loss that results from
the sale or lease of merchandise, including appliances, fixtures,
or equipment, to the extent that merchandise is not integral to
providing utility service.
Sec. 53.064. SELF-INSURANCE. (a) A public utility may
self-insure all or part of the utility's potential liability or
catastrophic property loss, including windstorm, fire, and
explosion losses, that could not have been reasonably anticipated
and included under operating and maintenance expenses.
(b) The commission shall approve a self-insurance plan under
this section if the commission finds that:
(1) the coverage is in the public interest;
(2) the plan, considering all costs, is a lower cost
alternative to purchasing commercial insurance; and
(3) ratepayers will receive the benefits of the
savings.
(c) In computing a utility's reasonable and necessary
expenses under this subchapter, the commission, to the extent the
commission finds is in the public interest, shall allow as a
necessary expense money credited to a reserve account for
self-insurance. The commission shall determine reasonableness
under this subsection:
(1) from information provided at the time the
self-insurance plan and reserve account are established; and
(2) on the filing of a rate case by a utility that has a
reserve account.
(d) After a reserve account for self-insurance is
established, the commission shall:
(1) determine whether the account has a surplus or
shortage under Subsection (e); and
(2) subtract any surplus from or add any shortage to
the utility's rate base.
(e) A surplus in the reserve account exists if the charges
against the account are less than the money credited to the account.
A shortage in the reserve account exists if the charges against the
account are greater than the money credited to the account.
(f) The commission shall adopt rules governing
self-insurance under this section.
Sec. 53.065. INTEREXCHANGE SERVICES; RATES OF INCUMBENT
LOCAL EXCHANGE COMPANY. (a) An incumbent local exchange company's
rates for interexchange telecommunications services must be
statewide average rates except as ordered by the commission after
application and hearing.
(b) This section does not limit the ability of an incumbent
local exchange company to contract for high-speed private line
services of 1.544 megabits or greater [under Section 52.057].
SUBCHAPTER C. GENERAL PROCEDURES FOR RATE CHANGE PROPOSED BY
UTILITY
Sec. 53.101. DEFINITION. In this subchapter, "major
change" means an increase in rates that would increase the
aggregate revenues of the applicant more than the greater of
$100,000 or 2-1/2 percent. The term does not include an increase in
rates that the commission allows to go into effect or the utility
makes under an order of the commission after hearings held with
public notice.
Sec. 53.102. STATEMENT OF INTENT TO CHANGE RATES. (a) A
utility may not change its rates unless the utility files a
statement of its intent with the commission at least 35 days before
the effective date of the proposed change.
(b) The utility shall also mail or deliver a copy of the
statement of intent to the appropriate officer of each affected
municipality.
(c) The statement of intent must include:
(1) proposed revisions of tariffs; and
(2) a detailed statement of:
(A) each proposed change;
(B) the effect the proposed change is expected to
have on the revenues of the utility;
(C) each class and number of utility consumers
affected; and
(D) any other information required by the
commission's rules.
Sec. 53.103. NOTICE OF INTENT TO CHANGE RATES. (a) The
utility shall:
(1) publish, in conspicuous form and place, notice to
the public of the proposed change once each week for four successive
weeks before the effective date of the proposed change in a
newspaper having general circulation in each county containing
territory affected by the proposed change; and
(2) mail notice of the proposed change to any other
affected person as required by the commission's rules.
(b) The commission may waive the publication of notice
requirement prescribed by Subsection (a) in a proceeding that
involves only a rate reduction for each affected ratepayer. The
applicant shall give notice of the proposed rate change by mail to
each affected utility customer.
(c) The commission by rule shall define other proceedings
for which the publication of notice requirement prescribed by
Subsection (a) may be waived on a showing of good cause. A waiver
may not be granted in a proceeding involving a rate increase to any
class or category of ratepayer.
Sec. 53.104. EARLY EFFECTIVE DATE OF RATE CHANGE. (a) For
good cause shown, the commission may allow a rate change, other than
a major change, to take effect:
(1) before the end of the 35-day period prescribed by
Section 53.102; and
(2) under conditions the commission prescribes,
subject to suspension as provided by this subchapter.
(b) The utility shall immediately revise its tariffs to
include the change.
Sec. 53.105. DETERMINATION OF PROPRIETY OF CHANGE;
HEARING. (a) If a tariff changing rates is filed with the
commission, the commission shall, on complaint by an affected
person, or may, on its own motion, not later than the 30th day after
the effective date of the change, enter on a hearing to determine
the propriety of the change.
(b) The commission shall hold a hearing in every case in
which the change constitutes a major change. The commission may,
however, use an informal proceeding if the commission does not
receive a complaint before the 46th day after the date notice of the
change is filed.
(c) The commission shall give reasonable notice of the
hearing, including notice to the governing body of each affected
municipality and county. The utility is not required to provide a
formal answer or file any other formal pleading in response to the
notice, and the absence of an answer does not affect an order for a
hearing.
Sec. 53.106. REGIONAL HEARING. The commission shall hold a
regional hearing at an appropriate location in a case in which the
commission determines it is in the public interest to hear
testimony at a regional hearing for inclusion in the record.
Sec. 53.107. PREFERENCE TO HEARING. The commission shall:
(1) give preference to a hearing under this subchapter
and to deciding questions arising under this subchapter and
Subchapter E over any other question pending before it; and
(2) decide the questions as quickly as possible.
Sec. 53.108. RATE SUSPENSION; DEADLINE. (a) Pending the
hearing and a decision, the commission, after delivering to the
utility a written statement of the commission's reasons, may
suspend the rate change for not longer than 150 days after the date
the rate change would otherwise be effective.
(b) The 150-day period prescribed by Subsection (a) shall be
extended two days for each day the actual hearing on the merits of
the case exceeds 15 days.
(c) If the commission does not make a final determination
concerning a rate change before expiration of the suspension
period, the commission is considered to have approved the change.
This approval is subject to the authority of the commission
thereafter to continue a hearing in progress.
Sec. 53.109. TEMPORARY RATES. (a) The commission may
establish temporary rates to be in effect during the suspension
period under Section 53.108.
(b) If the commission does not establish temporary rates,
the rates in effect when the suspended tariff was filed continue in
effect during the suspension period.
Sec. 53.110. BONDED RATES. (a) A utility may put a changed
rate into effect by filing a bond with the commission if:
(1) the 150-day suspension period has been extended
under Section 53.108(b); and
(2) the commission fails to make a final determination
before the 151st day after the date the rate change would otherwise
be effective.
(b) The bonded rate may not exceed the proposed rate.
(c) The bond must be:
(1) payable to the commission in an amount, in a form,
and with a surety approved by the commission; and
(2) conditioned on refund.
(d) The utility shall refund or credit against future bills:
(1) money collected under the bonded rates in excess
of the rate finally ordered; and
(2) interest on that money, at the current interest
rate as determined by the commission.
Sec. 53.111. ESTABLISHMENT OF FINAL RATES. (a) If, after
hearing, the commission finds the rates are unreasonable or in
violation of law, the commission shall:
(1) enter an order establishing the rates the utility
shall charge or apply for the service in question; and
(2) serve a copy of the order on the utility.
(b) The rates established in the order shall be observed
thereafter until changed as provided by this title.
(c) This section does not apply to a company electing under
Chapter 58 or 59 except as otherwise provided by those chapters or
by Chapter 60.
Sec. 53.112. EXPIRATION OF SUSPENSION; EFFECT ON CERTAIN
RATES. (a) Notwithstanding Section 53.111(a), if the commission
does not make a final determination concerning an incumbent local
exchange company's rate change before expiration of the 150-day
suspension period, the rates finally approved by the commission
take effect on and the incumbent local exchange company is entitled
to collect those rates from the date the 150-day suspension period
expired.
(b) A surcharge or other charge necessary to effectuate this
section may not be recovered over a period of less than 90 days from
the date of the commission's final order.
Sec. 53.113. FCC-APPROVED TARIFFS FOR SWITCHED-ACCESS
SERVICE. (a) An incumbent local exchange company may file with
the commission tariffs for switched-access service that have been
approved by the Federal Communications Commission. The tariffs
must include all rate elements in the company's interstate access
tariff other than end-user charges.
(b) Not later than the 60th day after the date a company
files tariffs under Subsection (a), the commission shall order the
rates and terms to be the incumbent local exchange company's
intrastate switched-access rates and terms if, on review, the
tariffs contain the same rates and terms, excluding end-user
charges, as approved by the Federal Communications Commission.
SUBCHAPTER D. RATE CHANGES PROPOSED BY COMMISSION
Sec. 53.151. UNREASONABLE OR VIOLATIVE EXISTING
RATES. (a) If the commission, on its own motion or on complaint by
an affected person, after reasonable notice and hearing, finds that
the existing rates of a public utility for a service are
unreasonable or in violation of law, the commission shall:
(1) enter an order establishing the just and
reasonable rates to be observed thereafter, including maximum or
minimum rates; and
(2) serve a copy of the order on the utility.
(b) The rates established under Subsection (a) constitute
the legal rates of the public utility until changed as provided by
this title.
(c) This section does not apply to a company electing under
Chapter 58 or Chapter 59 except as otherwise provided by those
chapters.
Sec. 53.152. INVESTIGATING COSTS OF OBTAINING SERVICE FROM
ANOTHER SOURCE. If a public utility does not produce or generate
the service that it distributes, transmits, or furnishes to the
public for compensation but obtains the service from another
source, the commission may investigate the cost of that production
or generation in an investigation of the reasonableness of the
utility's rates.
SUBCHAPTER E. COST RECOVERY AND RATE ADJUSTMENTS
Sec. 53.201. AUTOMATIC ADJUSTMENT FOR CHANGE IN COSTS
PROHIBITED. The commission may not establish a rate or tariff that
authorizes a utility to automatically adjust and pass through to
the utility's customers a change in the utility's costs.
Sec. 53.202. ADJUSTMENT FOR CHANGE IN TAX LIABILITY. (a)
The commission, on its own motion or on the petition of a utility,
shall provide for the adjustment of the utility's billing to
reflect an increase or decrease in the utility's tax liability to
this state if the increase or decrease:
(1) results from Chapter 5, Acts of the 72nd
Legislature, 1st Called Session, 1991; and
(2) is attributable to an activity subject to the
commission's jurisdiction.
(b) The commission shall apportion pro rata to each type and
class of service provided by the utility any billing adjustment
under this section. The adjustment:
(1) remains effective only until the commission alters
the adjustment as provided by this section or enters an order for
the utility under Subchapter C or Subchapter D.
(c) Each year after an original adjustment, the commission
shall:
(1) review the utility's increase or decrease of tax
liability described by Subsection (a)(1); and
(2) alter the adjustment as necessary to reflect the
increase or decrease.
(d) A proceeding under this section is not a rate case under
Subchapter C.
SUBCHAPTER F. REGULATORY POLICY FOR SMALL INCUMBENT LOCAL EXCHANGE
COMPANIES AND COOPERATIVES
Sec. 53.251. GENERAL POLICY. Regulatory policy should
recognize that:
(1) there are differences between small and large
incumbent local exchange companies;
(2) there are a large number of customer-owned
telephone cooperatives and small, locally owned investor
companies; and
(3) it is appropriate to provide incentives and
flexibility to allow an incumbent local exchange company that
serves a rural area to:
(A) provide existing services; and
(B) introduce new technology and new services in
a prompt, efficient, and economical manner.
Sec. 53.252. ADOPTION OF CERTAIN POLICIES. Notwithstanding
any other provision of this title, the commission shall consider
and may adopt policies to:
(1) provide for evaluation of the overall
reasonableness of the rates of a rural or small incumbent local
exchange company or cooperative not more frequently than once every
three years;
(2) permit consideration of future construction plans
and operational changes in evaluating the reasonableness of the
rates of a rural or small incumbent local exchange company or
cooperative; or
(3) allow a rural or small incumbent local exchange
company or cooperative to:
(A) provide required information by report or by
other means, as necessary, including a required rate filing
package, in substantially less burdensome and complex form than is
required of a larger incumbent local exchange company;
(B) change depreciation and amortization rates,
if customer rates are not affected, after notice to the commission,
subject to commission review in a proceeding under Subchapter C or
Subchapter D;
(C) adopt for a new service the rates for the same
or a substantially similar service offered by a larger incumbent
local exchange company, without additional cost justification; and
(D) submit to the commission, instead of a
management audit otherwise required by law, policy, or rule,
financial audits regularly performed by an independent auditor or
required and performed as a result of the company's or cooperative's
participation in a federal or state financing or revenue-sharing
program.
SUBCHAPTER G. SPECIAL PROCEDURES FOR SMALL LOCAL EXCHANGE
COMPANIES AND COOPERATIVES
Sec. 53.301. DEFINITION. (a) In this subchapter, "minor
change" means a change, including the restructuring of rates of
existing services, that:
(1) decreases the rates or revenues of an incumbent
local exchange company; or
(2) together with any other rate or proposed or
approved tariff changes in the 12 months preceding the effective
date of the proposed change, increases the company's total
regulated intrastate gross annual revenues by not more than five
percent.
(b) With regard to a change to a basic local access line
rate, a "minor change" does not include a change that, together with
any other change to the basic local access line rate that took
effect during the 12 months preceding the effective date of the
proposed change, results in an increase of more than 10 percent.
Sec. 53.302. APPLICABILITY. This subchapter does not apply
to an incumbent local exchange company that is a cooperative
corporation partially deregulated under Subchapter H.
Sec. 53.303. PROVISIONS NOT EXCLUSIVE. This subchapter
does not prohibit:
(1) an incumbent local exchange company from filing
for a new service or rate change under another section of this
title; or
(2) the commission from conducting a review under
Subchapter D.
Sec. 53.304. PROCEDURE TO OFFER CERTAIN SERVICES OR MAKE
MINOR CHANGES. (a) An incumbent local exchange company may offer
an extended local calling service or a new service on an optional
basis or make a minor change in its rates or tariffs if the company:
(1) is a cooperative corporation or has, together with
all affiliated incumbent local exchange companies, fewer than
31,000 access lines in service in this state;
(2) files with the commission and the office a
statement of intent, as prescribed by Subsection (b), not later
than the 91st day before the effective date of the proposed change;
(3) provides notice as prescribed by Section 53.305;
and
(4) files with the commission affidavits verifying
that notice as prescribed by Section 53.305 was provided.
(b) The statement of intent must include:
(1) a copy of a resolution adopted by the incumbent
local exchange company's board of directors approving the proposed
change;
(2) a description of the services affected by the
proposed change;
(3) a copy of the proposed tariff for the affected
service;
(4) a copy of the customer notice required by
Subsection (a)(3);
(5) the number of access lines the company and each
affiliate have in service in this state; and
(6) the amount by which the company's total regulated
intrastate gross annual revenues will increase or decrease as a
result of the proposed change.
Sec. 53.305. NOTICE TO AFFECTED CUSTOMERS. (a) A company
shall provide notice of a proposed change to affected customers in
the manner prescribed by the commission.
(b) Notice must:
(1) be provided not later than the 61st day before the
effective date of the proposed change; and
(2) include:
(A) a description of the services affected by the
proposed change;
(B) the effective date of the proposed change;
(C) an explanation of the customer's right to
petition the commission for a review under Section 53.306,
including the number of persons required to petition before a
commission review will occur;
(D) an explanation of the customer's right to
information concerning how to obtain a copy of the proposed tariff
from the company;
(E) the amount by which the company's total
regulated intrastate gross annual revenues will increase or
decrease as a result of the proposed change; and
(F) a list of rates that are affected by the
proposed rate change.
Sec. 53.306. COMMISSION REVIEW OF PROPOSED CHANGE. (a)
The commission shall review a proposed change filed under this
subchapter if:
(1) the commission receives complaints relating to the
proposed change signed by a number of affected local service
customers equal at least to the lesser of 1,500 or five percent of
those customers;
(2) the commission receives a complaint relating to
the proposed change from an affected intrastate access customer, or
a group of affected intrastate access customers, that in the
preceding 12 months accounted for more than 10 percent of the
company's total intrastate gross access revenues;
(3) the proposed change is not a minor change;
(4) the company does not comply with the procedural
requirements of this subchapter; or
(5) the proposed change is inconsistent with the
commission's substantive policies as expressed in its rules.
(b) The commission may suspend a tariff proposed under this
subchapter during the review.
Sec. 53.307. COMPLIANCE WITH PRINCIPLES; REDUCED RATES. A
rate established under this subchapter must be in accordance with
the rate-setting principles of this chapter, except that a company
may provide to its board members, officers, employees, or agents
free or reduced rates for services.
Sec. 53.308. FEES AND ASSESSMENTS. The commission may
prescribe and collect a fee or assessment from incumbent local
exchange companies necessary to recover the cost to the commission
and to the office of activities carried out and services provided
under:
(1) this subchapter;
(2) Section 53.112; and
(3) Subchapter H[; and
[(4) Section 55.004].
SUBCHAPTER H. PARTIAL DEREGULATION AVAILABLE TO CERTAIN
COOPERATIVE CORPORATIONS
Sec. 53.351. PROVISIONS NOT EXCLUSIVE. (a) This
subchapter does not:
(1) prohibit a cooperative from filing for a new
service or a rate change under another applicable provision of this
title; or
(2) affect the application of a provision of this
title not directly related to:
(A) establishing rates; or
(B) the authority of the commission to require a
cooperative to file a report required under this title or the
commission's rules.
(b) Notwithstanding any other provision of this subchapter,
the commission may conduct a review under Subchapter D.
Sec. 53.352. PARTIAL DEREGULATION BY BALLOT. (a) An
incumbent local exchange company that is a cooperative corporation
may vote to partially deregulate the cooperative by sending a
ballot to each cooperative member. The incumbent local exchange
company may include the ballot in a bill or send the ballot
separately. The ballot shall be printed to permit voting for or
against the proposition: "Authorizing the partial deregulation of
the (name of the cooperative)."
(b) The cooperative is partially deregulated if a majority
of the ballots returned to the cooperative not later than the 45th
day after the date the ballots are mailed favor deregulation.
Sec. 53.353. VOTING PROCEDURES. The commission by rule
shall prescribe the voting procedures a cooperative must use under
this subchapter.
Sec. 53.354. PROCEDURE TO OFFER CERTAIN SERVICES OR MAKE
CERTAIN CHANGES. After the initial balloting, a cooperative may
offer extended local calling services, offer new services on an
optional basis, or make changes in its rates or tariffs if the
cooperative:
(1) files a statement of intent under Section 53.355;
(2) provides notice of the proposed action to each
customer and municipality as prescribed by Section 53.356; and
(3) files with the commission affidavits verifying
that notice was provided as prescribed by Section 53.357.
Sec. 53.355. STATEMENT OF INTENT. (a) A cooperative must
file a statement of intent to use this subchapter with the
commission and the office not later than the 61st day before the
effective date of the proposed change.
(b) The statement must include:
(1) a copy of a resolution, signed by a majority of the
members of the cooperative's board of directors, approving the
proposed action and authorizing the filing of the statement of
intent;
(2) a description of the services affected by the
proposed action;
(3) a copy of the proposed tariff for the affected
service; and
(4) a copy of the customer notice required by Section
53.356.
Sec. 53.356. NOTICE TO AFFECTED PERSONS. (a) The
cooperative shall provide to each affected customer or party,
including a municipality, at least two notices of the proposed
action by bill insert or by individual notice.
(b) The cooperative shall provide:
(1) the first notice not later than the 61st day before
the effective date of the proposed action; and
(2) the last notice not later than the 31st day before
the effective date of the proposed action.
(c) A notice prescribed by this section must include:
(1) a description of the services affected by the
proposed action;
(2) the effective date of the proposed action;
(3) an explanation of the customer's right to:
(A) obtain a copy of the proposed tariff from the
cooperative; and
(B) petition the commission for a review under
Section 53.358;
(4) a statement of the amount by which the
cooperative's total gross annual revenues will increase or decrease
and a statement explaining the effect on the cooperative revenues
as a result of the proposed action; and
(5) a list of rates that are affected by the proposed
rate action, showing the effect of the proposed action on each of
those rates.
Sec. 53.357. FILING OF AFFIDAVITS VERIFYING NOTICE. Not
later than the 15th day before the effective date of a proposed
action, the cooperative shall file with the commission affidavits
that verify that the cooperative provided each notice required by
Section 53.356.
Sec. 53.358. COMMISSION REVIEW OF PROPOSED ACTION. (a) The
commission shall review a proposed action filed under this
subchapter if:
(1) the commission receives, not later than the 45th
day after the date the first notice is provided under Section
53.356, complaints relating to the proposed action:
(A) signed by at least five percent of the
affected local service customers; or
(B) from an affected intrastate access customer,
or group of affected intrastate access customers, that in the
preceding 12 months accounted for more than 10 percent of the
cooperative's total intrastate access revenues;
(2) the cooperative does not comply with the
procedural requirements of this subchapter; or
(3) the proposed action is inconsistent with the
commission's substantive policies as expressed in its rules.
(b) If the commission conducts a review of the proposed
action under this section before the action's effective date, the
commission may suspend the proposed action during the review.
Sec. 53.359. REVERSAL OF DEREGULATION BY BALLOT. (a) A
cooperative that is partially deregulated under this subchapter may
vote to reverse the deregulation by sending a ballot to each
cooperative member.
(b) The cooperative's board of directors may order
reballoting on its own motion. If the board receives a written
request for that action from at least 10 percent of its members, the
board shall reballot not later than the 60th day after the date the
board receives that request.
(c) The cooperative may include the ballot in a bill or send
the ballot separately. The ballot shall be printed to permit voting
for or against the proposition: "Reversing the partial
deregulation of the (name of the cooperative)."
(d) The partial deregulation is reversed if a majority of
the ballots returned to the cooperative not later than the 45th day
after the date the ballots are mailed favor reversal.
CHAPTER 54. CERTIFICATES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 54.001. CERTIFICATE REQUIRED. [A person may not
provide local exchange telephone service, basic local
telecommunications service, or switched access service unless the
person obtains a:]
(1) [(1)] Effective as of August 31, 2005, each entity
holding a certificate of convenience and necessity[;
[(2)] , certificate of [operating] authority[;] or
[(3)] service provider certificate of [operating]
authority[.] as of that date shall be deemed to have a service
provider certificate unless prior to such date the certificate
holder files with the commission (a) a request for a network
provider certificate, or (b) a notice of certificate relinquishment
setting forth its qualification for an exemption under Section
54.002. A person possessing a certificate of convenience and
necessity, certificate of operating authority or service provider
certificate of operating authority on August 31, 2005, shall
immediately receive a certificate as a network provider or a
service provider, as appropriate, from the Commission which new
certificate shall be effective on September 1, 2005, should that
person present to the Commission its certificate in effect on
August 31, 2005.
(2) Unless a person qualifies under the exception in
Section 54.002, a person may not conduct business in Texas as either
a network provider or a service provider as defined in this title
without first obtaining a certificate issued by the Commission.
Sec. 54.002. EXCEPTIONS [TO CERTIFICATE REQUIREMENT FOR
SERVICE EXTENSION. (a) A telecommunications utility is not]
Network providers or service providers shall not be required to
obtain a certificate [of convenience and necessity, a certificate
of operating] if the Federal Communications Commission has
exercised lawful preemptive authority[, or a service provider
certificate of operating authority for an:] precluding state
certification requirements.
[(1) extension into territory that is:
[(A) contiguous to the territory the
telecommunications utility serves;
[(B) not receiving similar service from another
telecommunications utility; and
[(C) not in another telecommunications utility's
certificated area;
[(2) extension in or to territory the
telecommunications utility serves or is authorized to serve under a
certificate of public convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority; or
[(3) operation, extension, or service in progress on
September 1, 1975.
[(b) An extension allowed by Subsection (a) is limited to a
device used:
[(1) to interconnect existing facilities; or
[(2) solely to transmit telecommunications utility
services from an existing facility to a customer of retail utility
service.]
Sec. 54.003. [EXCEPTIONS TO CERTIFICATE REQUIREMENT FOR
CERTAIN SERVICES. A telecommunications utility is not required to
obtain a certificate of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority for:
[(1) an interexchange telecommunications service;
[(2) a nonswitched private line service;
[(3) a shared tenant service;
[(4) a specialized communications common carrier
service;
[(5) a commercial mobile service; or
[(6) an operator service as defined by Section 55.081.
[Sec. 54.004. RELINQUISHMENT PLAN. A holder of a service
provider certificate of operating authority who applies for a
certificate of operating authority or a certificate of convenience
and necessity for the same territory must include with the
application a plan to relinquish the service provider certificate
of operating authority.
[Sec. 54.005.] NOTICE OF AND HEARING ON APPLICATION. (a)
When an application for a Network Provider or Service Provider
certificate is filed for an entity that did not possess a
certificate of convenience and necessity, a certificate of
[operating] authority[,] or a service provider certificate of
operating authority [is filed,] on August 31, 2005, the commission
shall:
(1) give notice of the application to interested
parties; and
(2) if requested:
(A) set a time and place for a hearing; and
(B) give notice of the hearing.
(b) A person interested in the application may intervene at
the hearing.
Sec. [54.006. REQUEST FOR PRELIMINARY ORDER.]
54.004. GRANT OR DENIAL OF CERTIFICATE. (a) [A
telecommunications utility that wants to exercise a right or
privilege under a franchise or permit that the utility anticipates
obtaining but has not been granted may apply to the commission for a
preliminary order under this section.
[(b) The commission may issue a preliminary order declaring
that the commission, on application and under commission rules,
will grant the requested certificate of convenience and necessity,
certificate of operating authority, or service provider
certificate of operating authority, on terms the commission
designates,] The commission must grant or deny a certificate not
later than the 60th day after the [telecommunications utility
obtains] date the [franchise or permit] application for the
certificate is filed.
(b) The commission shall grant each certificate on a
nondiscriminatory basis after considering the technical and
financial qualifications of the applicant. No applicant shall
receive a certificate if any of its officers or directors has ever
been convicted of a felony.
[(c) The commission shall grant the certificate on
presentation of evidence satisfactory to the commission that the
telecommunications utility has obtained the franchise or permit.
[Sec. 54.007. FLEXIBILITY PLAN. (a) After the commission
grants an application for a certificate of convenience and
necessity, a certificate of operating authority, or a service
provider certificate of operating authority or determines that a
certificate is not needed for the applicant to provide the relevant
services, the commission shall conduct appropriate proceedings to
establish a transitional flexibility plan for the incumbent local
exchange company in the same area or areas as the new certificate
holder.
[(b) A basic local telecommunications service price of the
incumbent local exchange company may not be increased before the
fourth anniversary of the date the certificate is granted to the
applicant except that the price may be increased as provided by this
title.]
Sec. [54.008.] 54.005. REVOCATION OR AMENDMENT OF
CERTIFICATE. [(a)] The commission [may] shall revoke or amend a
certificate [of convenience and necessity, a certificate of
operating authority or a service provider certificate of operating
authority] after notice and hearing if the commission finds that
the certificate holder has never provided or is no longer providing
service in all or any part of the certificated area.
[(b) The commission may require one or more public utilities
to provide service in an area affected by the revocation or
amendment of a certificate held by a public utility.]
SUBCHAPTER B. [CERTIFICATE OF CONVENIENCE AND NECESSITY
[Sec. 54.051. DEFINITION. In this subchapter,
"certificate" means a certificate of convenience and necessity.
(Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.)
[Sec. 54.052. CERTIFICATE REQUIRED FOR PUBLIC UTILITY. (a)
A public utility may not directly or indirectly provide service to
the public under a franchise or permit unless the utility first
obtains from the commission a certificate that states that the
public convenience and necessity requires or will require the
installation, operation, or extension of the service.
[(b)Except as otherwise provided by this chapter, a public
utility may not furnish or make available retail public utility
service to an area in which retail utility service is being lawfully
furnished by another public utility unless the utility first
obtains a certificate that includes the area in which the consuming
facility is located.
[Sec. 54.053. APPLICATION FOR CERTIFICATE. (a) A public
utility that wants to obtain or amend a certificate must submit an
application to the commission.
[(b) The applicant shall file with the commission evidence
the commission requires to show the applicant has received the
consent, franchise, or permit required by the proper municipal or
other public authority.
[Sec. 54.054. GRANT OR DENIAL OF CERTIFICATE. (a) The
commission may approve an application and grant a certificate only
if the commission finds that the certificate is necessary for the
service, accommodation, convenience, or safety of the public.
[(b) The commission may:
[(1) grant the certificate as requested;
[(2) grant the certificate for the construction of a
portion of the requested system, facility, or extension or the
partial exercise of the requested right or privilege; or
[(3) refuse to grant the certificate.
[(c) The commission shall grant each certificate on a
nondiscriminatory basis after considering:
[(1) the adequacy of existing service;
[(2) the need for additional service;
[(3) the effect of granting the certificate on the
recipient of the certificate and any public utility of the same kind
serving the proximate area; and
[(4) other factors, such as:
[(A) community values;
[(B) recreational and park areas;
[(C) historical and aesthetic values;
[(D) environmental integrity; and
[(E) the probable improvement of service or
lowering of cost to consumers in the area if the certificate is
granted.
[SUBCHAPTER C. CERTIFICATE OF OPERATING AUTHORITY
[Sec. 54.101. DEFINITION. In this subchapter,
"certificate" means a certificate of operating authority. (Acts
1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.)
[Sec. 54.102. APPLICATION FOR CERTIFICATE. (a) A person
may apply for a certificate of operating authority.
[(b) The applicant must file with the application a sworn
statement that the applicant has applied for each municipal
consent, franchise, or permit required for the type of services and
facilities for which the applicant has applied.
[(c) An affiliate of a person holding a certificate of
convenience and necessity may hold a certificate of operating
authority if the holder of the certificate of convenience and
necessity is in compliance with federal law and Federal
Communications Commission rules governing affiliates and
structural separation. An affiliate of a person holding a
certificate of convenience and necessity may not directly or
indirectly sell to a non-affiliate any regulated product or service
purchased from the person holding a certificate of convenience and
necessity at any rate or price less than the price paid to the
person holding a certificate of convenience and necessity.
[(d) A person may hold a certificate for all or any portion
of a service area for which one or more affiliates of the person
holds a certificate of operating authority, a service provider
certificate of operating authority, or a certificate of convenience
and necessity.
[(e) An affiliate of a company that holds a certificate of
convenience and necessity and that serves more than five million
access lines in this state may hold a certificate of operating
authority or service provider certificate of operating authority to
provide service in an area of this state in which its affiliated
company is the incumbent local exchange company. However, the
affiliate holding the certificate of operating authority or service
provider certificate of operating authority may not provide in that
area any service listed in Sections 58.051(a)(1)-(4) or Sections
58.151(1)-(4), or any subset of those services, in a manner that
results in a customer-specific contract so long as the affiliated
company that is the incumbent local exchange company may not
provide those services or subsets of services in a manner that
results in a customer-specific contract under Section 58.003 in
that area. This subsection does not preclude an affiliate of a
company holding a certificate of convenience and necessity from
holding a certificate of operating authority in any area of this
state to provide advanced services as defined by rules or orders of
the Federal Communications Commission, or preclude such an advanced
services affiliate from using any form of pricing flexibility, with
regard to services other than those subject to the restrictions
provided by this subsection. This subsection does not preclude a
long distance affiliate from using any form of pricing flexibility
with regard to services other than those services subject to the
restrictions provided by this subsection. In addition, the
affiliate holding the certificate of operating authority or service
provider certificate of operating authority may not offer, in an
area for which the affiliated incumbent local exchange company
holds a certificate of convenience and necessity, a service listed
in Sections 58.151(1)-(4) as a component of a package of services,
as a promotional offering, or with a volume or term discount until
the affiliated incumbent local exchange company may offer those
services in pricing flexibility offerings in accordance with
Section 58.004, unless the customer of one of these pricing
flexibility offerings is a federal, state, or local governmental
entity.
[(f) The commission has the authority to enforce this
section.
[Sec. 54.103. GRANT OR DENIAL OF CERTIFICATE. (a) The
commission must grant or deny a certificate not later than the 60th
day after the date the application for the certificate is filed.
The commission may extend the deadline on good cause shown.
(b) The commission shall grant each certificate on a
nondiscriminatory basis after considering factors such as:
[(1) the technical and financial qualifications of the
applicant; and
[(2) the applicant's ability to meet the commission's
quality of service requirements.
[(c) In an exchange of an incumbent local exchange company
that serves fewer than 31,000 access lines, in addition to the
factors described by Subsection (b), the commission shall consider:
[(1) the effect of granting the certificate on a
public utility serving the area and on that utility's customers;
[(2) the ability of that public utility to provide
adequate service at reasonable rates;
[(3) the effect of granting the certificate on the
ability of that public utility to act as the provider of last
resort; and
[(4) the ability of the exchange, not the company, to
support more than one provider of service.
[(d) Except as provided by Subsections (e) and (f), the
commission may grant an application for a certificate only for an
area or areas that are contiguous and reasonably compact and cover
an area of at least 27 square miles.
[(e) In an exchange in a county that has a population of less
than 500,000 and that is served by an incumbent local exchange
company that has more than 31,000 access lines, an area covering
less than 27 square miles may be approved if the area is contiguous
and reasonably compact and has at least 20,000 access lines.
[(f) In an exchange of a company that serves fewer than
31,000 access lines in this state, the commission may grant an
application only for an area that has boundaries similar to the
boundaries of the serving central office that is served by the
incumbent local exchange company that holds the certificate of
convenience and necessity for the area.
[(g) The commission may not grant a certificate in an
exchange of an incumbent local exchange company that serves fewer
than 31,000 access lines. The commission shall require an
applicant to meet the other appropriate certification provisions of
this chapter. This subsection expires September 1, 1998.
[Sec. 54.104. TIME OF SERVICE REQUIREMENTS. (a) The
commission by rule may prescribe the period within which a
certificate holder must be able to serve customers.
[(b) Notwithstanding Subsection (a), a certificate holder
must serve a customer in the build-out area not later than the 30th
day after the date the customer requests service.
[Sec. 54.105. PENALTY FOR VIOLATION OF TITLE. If a
certificate holder fails to comply with a requirement of this
title, the commission may:
[(1) revoke the holder's certificate;
[(2) impose against the holder administrative
penalties under Subchapter B, Chapter 15; or
[(3) take another action under Subchapter B, Chapter
15.
[SUBCHAPTER D. SERVICE PROVIDER CERTIFICATE OF OPERATING AUTHORITY
[Sec. 54.151. DEFINITION. In this subchapter,
"certificate" means a service provider certificate of operating
authority. (Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1,
1997.)
[Sec. 54.152. LIMITATION ON GRANT OF CERTIFICATE. The
commission may not grant a certificate to a holder of a:
[(1) certificate of convenience and necessity for the
same territory; or
[(2) certificate of operating authority for the same
territory.
[Sec. 54.153. ELIGIBILITY FOR CERTIFICATE. (a) A company
is not eligible to obtain a certificate under this subchapter if the
company, together with affiliates, had more than six percent of the
total intrastate switched access minutes of use as measured for the
most recent 12-month period:
[(1) that precedes the date the application is filed;
and
[(2) for which the access information is available.
[(b) The commission shall obtain information necessary to
determine eligibility from the incumbent local exchange telephone
companies and the applicant.
[(c) The commission shall certify eligibility not later
than the 10th day after the date the application is filed.
[(d) In this section:
[(1) "Affiliate" means an entity that, directly or
indirectly, owns or controls, is owned or controlled by, or is under
common ownership or control with a company that applies for a
certificate under this subchapter.
[(2) "Control" means to exercise substantial
influence over the policies and actions of another.
[Sec. 54.154. APPLICATION FOR CERTIFICATE. (a) The
commission may grant a certificate to encourage an innovative,
competitive, and entrepreneurial business to provide
telecommunications services.
[(b) An applicant for a certificate must:
[(1) file with the application:
[(A) a sworn statement that the applicant has
applied for each municipal consent, franchise, or permit required
for the type of services and facilities for which the applicant has
applied; and
[(B) a description of the services the applicant
will provide;
[(2) show the areas in which the applicant will
provide the services;
[(3) demonstrate that the applicant has the financial
and technical ability to provide services; and
[(4) demonstrate that the services will meet the
requirements of this subchapter.
[Sec. 54.155. GRANT OR DENIAL OF CERTIFICATE. (a) The
commission must grant or deny a certificate not later than the 60th
day after the date the application for the certificate is filed.
The commission may extend the deadline on good cause shown.
[(b) The commission shall grant each certificate on a
nondiscriminatory basis after considering factors such as:
[(1) the technical and financial qualifications of the
applicant; and
[(2) the applicant's ability to meet the commission's
quality of service requirements.
[Sec. 54.156. RESALE OF SERVICES. (a) A certificate holder
may obtain services under the resale tariffs approved by the
commission under Subchapter C, Chapter 60, except in a certificated
area of a company that serves fewer than 31,000 access lines.
[(b) A certificate holder may obtain for resale the monthly
recurring flat rate local exchange telephone service and associated
nonrecurring charges, including any mandatory extended area
service, of an incumbent local exchange company at a five percent
discount to the tariffed rate.
[(c) The incumbent local exchange company shall sell a
feature service that may be provided to a customer in conjunction
with local exchange service at a five percent discount to the
tariffed rate, including any associated nonrecurring charge for
those services, provided that the incumbent local exchange company
shall make available to a certificate holder, at an additional five
percent discount, any discounts made available to customers of the
incumbent local exchange company who are similarly situated to the
customers of the certificate holder. In this subsection "feature
service" includes:
[(1) toll restriction;
[(2) call control options;
[(3) tone dialing;
[(4) custom calling; and
[(5) caller identification.
[(d) A certificate holder and an incumbent local exchange
company may agree to a rate lower than the tariffed rate or
discounted rate.
[(e) The five percent discounts provided by this section do
not apply in an exchange of a company that has fewer than 31,000
access lines in this state.
[(f) If the tariffed rate for a resold service changes, the
five percent discount prescribed by this section applies to the
changed rate. The commission may not, for certificate holders,
create a special class for purposes of resold services.
[(g) A certificate holder:
[(1) may not use a resold flat rate local exchange
telephone service to avoid the rates and terms of an incumbent local
exchange company's tariffs;
[(2) may not terminate both flat rate local exchange
telephone service and services obtained under the resale tariff
approved under Section 60.041 on the same end user customer's
premises;
[(3) may not use resold flat rate local exchange
telephone services to provide access services to another
interexchange carrier, cellular carrier, competitive access
provider, or retail telecommunications provider, but may permit
customers to use resold local exchange telephone services to access
such a carrier or provider;
[(4) may sell the flat rate local exchange telephone
service only to the same class of customers to which the incumbent
local exchange company sells that service;
[(5) may obtain services offered by or negotiated with
a holder of a certificate of convenience and necessity or a
certificate of operating authority; and
[(6) may obtain for resale single or multiple line
flat rate intraLATA calling service when provided by the local
exchange company at the tariffed rate for online digital
communications.
[Sec. 54.157. OPTIONAL EXTENDED AREA SERVICE OR EXPANDED
LOCAL CALLING SERVICE. (a) A certificate holder may purchase for
resale:
[(1) optional extended area service; and
[(2) expanded local calling service.
[(b) The purchase of optional extended area service and
expanded local calling service may not be discounted.
[Sec. 54.158. INTERFERENCE WITH RESOLD SERVICES
PROHIBITED. An incumbent local exchange company may not:
[(1) delay providing or maintaining a service provided
under this subchapter;
[(2) degrade the quality of access the company
provides to another provider;
[(3) impair the speed, quality, or efficiency of a
line used by another provider;
[(4) fail to fully disclose in a timely manner after a
request all available information necessary for a certificate
holder to provide resale services; or
[(5) refuse to take a reasonable action to allow a
certificate holder efficient access to the company's ordering,
billing, or repair management system.
[Sec. 54.159. RETENTION OF ACCESS SERVICE AND INTRALATA
TOLL SERVICE. An incumbent local exchange company that sells flat
rate local exchange telephone service to a certificate holder may
retain all access service and "1-plus" intraLATA toll service that
originates over the resold flat rate local exchange telephone
service.
[SUBCHAPTER E.] MUNICIPALITIES
Sec. 54.201. CERTIFICATION PROHIBITED. The commission may
not grant to a municipality a[:
[(1) certificate of convenience and necessity;
[(2) certificate of operating authority;] network
provider or
[(3)] service provider certificate [of operating
authority].
Sec. 54.202. PROHIBITED MUNICIPAL SERVICES. [(a)] A
municipality or [municipal electric system may not] municipally
owned utility may not, directly or indirectly, on its own or with
another entity, offer [for sale] to the public:
(1) a service for which a certificate [of convenience
and necessity, a certificate of operating authority, or a service
provider certificate of operating authority] is required; [or]
(2) a service as a network provider; or
(3) [(2) a nonswitched] any telecommunications or
information service, without regard to the technology platform used
to [connect a customer's premises with:] provide the service.
[(A) another customer's premises within the
exchange; or
[(B) a long distance provider that serves the
exchange.
[(b) Subsection (a) applies to a service offered either
directly or indirectly through a telecommunications provider.]
Sec. 54.2025. LEASE OF FIBER OPTIC CABLE FACILITIES.
Nothing in this subchapter shall prevent a municipality[, or] which
operates a municipal electric system that is a member of a municipal
power agency formed under Chapter 163 by adoption of a concurrent
resolution by the participating municipalities on or before August
1, 1975, from leasing any of the excess capacity of its fiber optic
cable facilities (dark fiber), so long as the rental of the fiber
facilities is done on a nondiscriminatory, nonpreferential basis.
Sec. 54.203. SERVICE IN ANNEXED OR INCORPORATED AREA. (a)
If an area is or will be included within a municipality as the
result of annexation, incorporation, or another reason, each
[telecommunications utility] person that holds or is entitled to
hold a certificate under this title to provide service or operate a
facility in the area before the inclusion has the right to continue
to provide the service or operate the facility and extend service in
the [utility's] person's certificated area within the annexed or
incorporated area under the rights granted by the certificate and
this title.
(b) Notwithstanding any other law, a [certificated
telecommunications utility] holder of a certificate has the right
to:
(1) continue and extend service within [the utility's]
its certificated area; and
(2) use roads, streets, highways, alleys, and public
property to furnish [retail utility] communications service.
(c) The governing body of a municipality may require a
[certificated telecommunications utility] holder of a certificate
to relocate the [utility's] certificate holder's facility [at the
utility's expense] to permit the widening or straightening of a
street by:
(1) giving the [utility] certificate holder 30 days'
notice; and
(2) simultaneously specifying the new location for the
facility along the right-of-way of the street.
(d) This section does not limit the power of a city, town, or
village to incorporate or of a municipality to extend its
boundaries by annexation.
Sec. 54.204. DISCRIMINATION BY MUNICIPALITY PROHIBITED.
(a) Notwithstanding Section 14.008, a municipality or a
municipally owned utility may not discriminate against a
[telecommunications] certificate [utility] holder regarding:
(1) the authorization or placement of a
[telecommunications] facility in a public right-of-way;
(2) access to a building; or
(3) a municipal utility pole attachment rate or term[,
to the extent not addressed by federal law].
(b) In granting consent, a franchise, or a permit for the
use of a public street, alley, or right-of-way within its municipal
boundaries, a municipality or municipally owned utility may not
discriminate in favor of or against a [telecommunications utility
that holds or has applied for] holder of a certificate [of
convenience and necessity, a certificate of operating authority, or
a service provider certificate of operating authority] regarding:
(1) municipal utility pole attachment or underground
conduit rates or terms[, to the extent not addressed by federal
law]; or
(2) the authorization, placement, replacement, or
removal of a [telecommunications] facility in a public right-of-way
and the reasonable compensation for the authorization, placement,
replacement, or removal regardless of whether the compensation is
in the form of:
(A) money;
(B) services;
(C) use of facilities; or
(D) another kind of consideration.
(c) [Notwithstanding Subsection (b)(1), a] A municipal
utility or municipally owned utility may not charge a pole
attachment rate or underground conduit rate that exceeds the fee
[the utility] it would be permitted to charge if [the utility's] its
rates were regulated under federal law and the rules of the Federal
Communications Commission. Provided further, consistent with the
requirement of Sec. 57.002 of this Act, a municipal utility shall
charge a certificate holder which also qualifies under Sec. 57.002,
the lower of the attachment fee that would apply to networks or
facilities carrying voice or to networks or facilities carrying
other services including cable television services, consistent
with that section.
(d) Notwithstanding any other law, the commission has the
jurisdiction necessary to enforce this section.
Sec. 54.205. MUNICIPALITY'S RIGHT TO CONTROL ACCESS. (a)
This title does not restrict a municipality's historical right to
control and receive reasonable compensation for access to the
municipality's public streets, alleys, or rights-of-way or to other
public property.
(b) The legislature finds that controversy exists between
municipalities and providers of voice and video services over the
appropriate method by which municipalities should be compensated
for use of the public right of way. The commission is directed to
develop a new mechanism that shall be technology neutral for the
compensation of municipalities that shall apply uniformly to
providers of voice and video services that provide that service
including community antenna television services and commercial
mobile service. The new mechanism shall be revenue neutral and
shall replace all current forms of compensation whether by
franchise, ordinance or statute. The commission is granted such
authority as is required to perform this duty; however, this
paragraph shall not be construed to grant any jurisdiction to the
commission to otherwise regulate video services in this state.
Sec. 54.206. RECOVERY OF MUNICIPAL FEE. (a) A [holder of a
certificate of convenience and necessity, a certificate of
operating authority, or a service] provider [certificate of
operating authority] that is required to pay a municipal fee has the
right to collect a fee that a municipality imposes under Section
54.204 or 54.205 through a pro rata charge to the customers in the
boundaries of the municipality.
(b) The charge may be shown on the customer's bill as a
separate line item.
SUBCHAPTER [F] C. REGULATION OF SERVICES, AREAS, AND FACILITIES
Sec. 54.251. PROVISION OF SERVICE. [(a)] Except as
provided by this [section, Section 54.252, Section 54.253,]
Subchapter and [Section 54.254, a telecommunications utility that
holds a certificate of convenience and necessity or a certificate
of operating authority shall:
[(1) offer all basic local telecommunications
services to each customer in the utility's certificated area; and
[(2) provide continuous and adequate service in that
area.
[(b) Except as specifically determined otherwise by the
commission under this subchapter or] Subchapter G, [the holder of a
certificate of convenience and necessity for] an [area] incumbent
local exchange company has the [obligations] obligation 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], although it may
meet those obligations using any technology available.
Sec. 54.252. GROUNDS FOR REDUCTION OF SERVICE BY HOLDER OF
CERTIFICATE OF CONVENIENCE AND NECESSITY. [(a)] Except to the
extent otherwise ordered by the commission in accordance with the
subchapter, the holder of a certificate of convenience and
necessity prior to September 1, 2005 may not discontinue, reduce,
or impair [service] local exchange telephone services 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 is subject to any condition or
restriction the commission prescribes.]
Sec. 54.253. [DISCONTINUATION OF SERVICE BY CERTAIN
CERTIFICATE HOLDERS. (a) A telecommunications utility that holds
a certificate of operating authority or a service provider
certificate of operating authority may:
[(1) cease operations in 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 or discontinues an optional service, the utility, in the
manner required by the commission, must give notice of the intended
action to:
[(1) the commission;
[(2) each affected customer;
[(3) the Commission on State Emergency
Communications;
[(4) the office; and
[(5) each wholesale provider of telecommunications
facilities or services from which the utility has purchased
facilities or services.
[(c) The telecommunications utility is entitled to
discontinue an optional service on or after the 61st day after the
date the utility gives the notice.
[(d) The telecommunications utility may not cease
operations in its certificated area unless the commission
authorizes the utility to cease operations and:
[(1) another provider of basic local
telecommunications services has adequate facilities and capacity
to serve the customers in the certificated area; and
[(2) the utility is an "exiting utility," as that term
is defined by Section 54.301, no other telecommunications utility
has facilities sufficient to provide basic local
telecommunications service in the defined geographic area, and the
utility acts in good faith to provide for a transition of the
utility's existing basic local telecommunications service
customers to another holder of a certificate for that area.
[(e) The commission may not authorize the
telecommunications utility to cease operations under Subsection
(d) before the 61st day after the date the utility gives the notice
required by Subsection (b). Unless the commission receives a
complaint from an affected person, the commission may enter an
order under this subsection administratively.
[Sec. 54.254.] REQUIRED REFUSAL OF SERVICE. A holder of a
certificate [of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority] shall refuse to serve a customer in the holder's
certificated area if the holder is prohibited from providing the
service under Section 212.012 or 232.029, Local Government Code.
[Sec. 54.255. TRANSFER OF CERTAIN CERTIFICATES. (a) A
telecommunications utility may sell, assign, or lease a certificate
of convenience and necessity or a certificate of operating
authority or a right obtained under such a certificate if the
commission determines that the purchaser, assignee, or lessee can
provide adequate service.
[(b) The sale, assignment, or lease of a certificate or a
right is subject to conditions the commission prescribes.
[Sec. 54.256. APPLICATION OF CONTRACTS. A contract
approved by the commission between telecommunications utilities
that designates areas and customers to be served by the utilities:
[(1) is valid and enforceable; and
[(2) shall be incorporated into the appropriate areas
of certification.
[Sec. 54.257. INTERFERENCE WITH ANOTHER TELECOMMUNICATIONS
UTILITY. If a telecommunications utility constructing or extending
the utility's lines, plant, or system interferes or attempts to
interfere with the operation of a line, plant, or system of another
utility, the commission by order may:
[(1) prohibit the construction or extension; or
[(2) prescribe terms for locating the affected lines,
plants, or systems.
[Sec. 54.258. MAPS. A public utility shall file with the
commission one or more maps that show each utility facility and that
separately illustrate each utility facility for transmission or
distribution of the utility's services on a date the commission
orders.]
Sec. 54.259. DISCRIMINATION BY PROPERTY OWNER PROHIBITED.
(a) If a [telecommunications utility] holder of a certificate
holds a consent, franchise, or permit as determined to be the
appropriate grants of authority by the municipality [and holds a
certificate if required by this title], a public or private
property owner may not:
(1) prevent the [utility] certificate holder from
installing on the owner's property a telecommunications service
facility a tenant requests;
(2) interfere with the [utility's] certificate
holder's installation on the owner's property of a
telecommunications service facility a tenant requests;
(3) discriminate against such a [utility] certificate
holder regarding installation, terms, or compensation of a
telecommunications service facility to a tenant on the owner's
property;
(4) demand or accept an unreasonable payment of any
kind from a tenant or the utility for allowing the utility on or in
the owner's property; or
(5) discriminate in favor of or against a tenant in any
manner, including rental charge discrimination, because of the
[utility] certificate holder from which the tenant receives a
telecommunications service.
(b) Subsection (a) does not apply to an institution of
higher education. In this subsection, "institution of higher
education" means:
(1) an institution of higher education as defined by
Section 61.003, Education Code; or
(2) a private or independent institution of higher
education as defined by Section 61.003, Education Code.
(c) Notwithstanding any other law, the commission has the
jurisdiction to enforce this section.
Sec. 54.260. PROPERTY OWNER'S CONDITIONS. (a)
Notwithstanding Section 54.259, if a [telecommunications utility]
holder of a certificate 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] provider 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] certificate holder 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] certificate holder to agree
to indemnify the owner for damage caused installing, operating, or
removing a facility;
(5) require the tenant or the [utility] certificate
holder to bear the entire cost of installing, operating, or
removing a facility; and
(6) require the [utility] certificate holder to pay
compensation that is reasonable and nondiscriminatory among such
[telecommunications] services [utilities] providers.
(b) Notwithstanding any other law, the commission has the
jurisdiction to enforce this section.
[Sec. 54.261. SHARED TENANT SERVICES CONTRACT. Sections
54.259 and 54.260 do not require a public or private property owner
to enter into a contract with a telecommunications utility to
provide shared tenant services on a property.]
SUBCHAPTER [G] D. PROVIDER OF LAST RESORT
Sec. 54.301. DEFINITIONS. In this subchapter:
(1) "Exiting [utility] provider" means a
[telecommunications utility] holder of a local exchange telephone
certificate that:
[(A) holds a certificate of operating authority
or a service provider certificate of operating authority;]
(A) [(B)] is the [predominant provider of basic]
dominant local [telecommunications] exchange [service] company in
a defined geographic area and provides those services using [the
utility's] its own facilities; and
(B) [(C)] ceases operations in all or part of the
utility's certificated service area under Section 54.253 or 54.303.
(2) "Provider of last resort" means a [certificated
telecommunications utility] certificate holder that must offer
[basic] local [telecommunications] exchange telephone service
throughout a defined geographic area.
(3) "Successor [utility] provider" means a
[telecommunications utility that holds] holder of a local exchange
telephone certificate [of convenience and necessity, certificate
of operating authority, or service provider certificate of
operating authority,] and that is or is designated to become the
provider of last resort for the defined geographic area previously
served by an exiting [utility] provider.
Sec. 54.302. PROVIDER OF LAST RESORT; FACILITIES-BASED
PROVIDERS. (a) Notwithstanding any other provision of this title,
if a [telecommunications utility] holder of a local exchange
telephone certificate installs facilities to serve customers
located in a defined geographic area to provide telecommunications
services, including [basic] local [telecommunications] exchange
telephone service, before the [holder] previously-designated
provider of [the certificate of convenience and necessity] last
resort installs facilities to serve customers located in that
defined geographic area, the [holder] previously-designated
provider of [the certificate of convenience and necessity] last
resort may petition the commission for an order relieving the
[utility of the utility's designation as the]
previously-designated provider of last resort of its obligations in
that defined geographic area.
(b) The commission shall relieve the [holder of the
certificate of convenience and necessity of the] entity with prior
obligations of service as the provider of last resort for the
defined geographic area, and the commission shall designate the
facilities-based [telecommunications utility] holder of a local
exchange telephone certificate as the provider of last resort if
the commission determines that:
(1) the [holder of the certificate of convenience and
necessity] previously-designated provider of last resort does not
have facilities in place to provide basic local telecommunications
service to all customers within that defined geographic area;
(2) [another certificated telecommunications utility]
holder of a local exchange telephone certificate has installed
facilities adequate to provide that service throughout that area[;
and].
[(3) the public interest would be served by
transferring the provider of last resort obligations for that
area.]
(c) The commission shall complete proceedings necessary to
make the determinations prescribed by this section not later than
the 91st day after the date the petition is filed under Subsection
(a).
Sec. 54.303. SUCCESSOR TELECOMMUNICATIONS [UTILITY]
SERVICE PROVIDER WHEN NO SUFFICIENT FACILITIES EXIST. (a) When the
commission obtains notice as required under Section 54.253 or
otherwise that [a utility] an entity with a certificate to provide
local exchange telephone service intends to become an exiting
[utility] provider and no other [telecommunications] certificate
[utility] holder has facilities sufficient to provide basic local
telecommunications service in that defined geographic area, the
commission shall open a contested case proceeding to determine[:
[(1)] the identity of the successor [utility] provider
under this section[; and
[(2) the amount of universal service funding under
Subchapter G, Chapter 56, to be made available to the successor
utility].
(b) On designation as the successor [utility] provider
under this section, the commission, if applicable, shall provide to
the successor [utility] provider:
(1) a reasonable time, in accordance with industry
practices and not subject to otherwise applicable commission
service quality rules or standards, to modify, construct, or obtain
facilities necessary to serve the customers of the exiting
[telecommunications utility] certificate holder; and
(2) an exemption on a transitional basis from any
obligation to unbundle the [utility's] certificate holder's network
elements or to provide service for resale within that defined
geographic area for nine months or another reasonable period the
commission may authorize as necessary to modify the [utility's]
certificate holder's network to provide that unbundling or resale.
(c) A customer within the defined geographic area to be
served by the successor utility provider is considered to have
applied for service from the successor utility provider on the
effective date of that designation by the commission. Each right,
privilege, and obligation of being a customer of the successor
[utility] provider applies to that customer and the customer is
subject to the successor [utility's] provider's applicable terms of
service as specified in an applicable tariff or contract.
Sec. 54.304. ABANDONMENT OR CESSATION BY FACILITIES-BASED
PROVIDER; EMERGENCY RESTORATION. (a) The commission, on its own
motion or on the petition of an interested party, may institute an
expedited proceeding under this section if the commission finds
that:
(1) a holder of a [certificate of operating authority
or service provider certificate of operating authority is the
predominant provider of basic] local [telecommunications service
in a defined geographic area and the utility provides that]
exchange telephone certificate provides local exchange telephone
service using [the utility's] its own facilities;
(2) no other [telecommunications utility] certificate
holder has facilities sufficient to provide [basic] local
[telecommunications] exchange telephone service in that defined
geographic area; and
(3) the holder of the certificate [of operating
authority or] to provide local exchange telephone service [provider
certificate of operating authority] has:
(A) ceased providing [basic] local
[telecommunications] exchange telephone service to the [utility's]
customers in that defined geographic area; or
(B) abandoned the operation of [the utility's]
its facilities in the defined geographic area that are used to
provide [basic] local [telecommunications] exchange telephone
service.
(b) In a proceeding under this section, the commission may
declare that an emergency exists and issue any order necessary to
protect the health, safety, and welfare of affected customers of
the utility and to expedite the restoration and continuation of
[basic] local [telecommunications] exchange telephone service to
those customers. An order issued by the commission under this
subsection may include an order to:
(1) provide for a temporary arrangement for operation
of the [utility's] certificate holder's facilities by an
uncertificated entity that agrees to provide service;
(2) authorize one or more third parties to enter the
premises of the abandoned facilities; or
(3) grant temporary waivers from quality of service
requirements.
(c) The commission may designate a successor [utility]
provider in accordance with Section 54.303 during a proceeding
under this section.
Sec. 54.305. COMMISSION PARTICIPATION IN BANKRUPTCY
PROCEEDINGS. (a) The commission, on written notice that a
[certificated telecommunications utility] holder of a certificate
has filed a petition in bankruptcy or is the subject of an
involuntary petition in bankruptcy, may 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.
(c) The office may inform the appropriate court and parties
of the office's interest in obtaining notice of the proceedings.
Within the time prescribed by the applicable statutes, rules, and
court orders, the office may intervene and participate in any
bankruptcy proceeding on behalf of residential and small commercial
customers.
CHAPTER 55. REGULATION OF TELECOMMUNICATIONS SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 55.001. [GENERAL STANDARD] EMERGENCY SERVICE. [A
public utility shall furnish service, instrumentalities, and
facilities that are safe, adequate, efficient, and reasonable.
[Sec. 55.002. COMMISSION AUTHORITY CONCERNING STANDARDS.
The commission, on its own motion or on complaint and after
reasonable notice and hearing, may:
[(1) adopt just and reasonable standards,
classifications, rules, or practices a public utility must follow
in furnishing a service;
[(2) adopt adequate and reasonable standards for
measuring a condition, including quantity and quality, relating to
the furnishing of a service;
[(3) adopt reasonable rules for examining, testing,
and measuring a service; and
[(4) adopt or approve reasonable rules,
specifications, and standards to ensure the accuracy of equipment,
including meters and instruments, used to measure a service.
[Sec. 55.003. RULE OR STANDARD. (a) A public utility may
not impose a rule except as provided by this title.
[(b) A public utility may file with the commission a
standard, classification, rule, or practice the utility follows.
[(c) The standard, classification, rule, or practice
continues in force until:
[(1) amended by the utility; or
[(2) changed by the commission as provided by this
subtitle.
[Sec. 55.004. LOCAL EXCHANGE COMPANY RULE OR PRACTICE
CHANGE. (a) To make a change in an incumbent local exchange
company's tariffed rules or practices that does not affect the
company's charges or rates, the company must file the proposed
change with the commission at least 35 days before the effective
date of the change. The commission may require the incumbent local
exchange company to provide to ratepayers appropriate notice as
determined by the commission.
[(b) The commission, on complaint by an affected person or
on its own motion and after reasonable notice, may hold a hearing to
determine the propriety of a change proposed under this section.
Pending the hearing and decision, the commission may suspend the
change for not longer than 120 days after the date the change would
otherwise be effective. The commission shall approve, deny, or
modify the change before the period of suspension expires.
[(c) In a proceeding under this section, the incumbent local
exchange company has the burden of proving the proposed change:
[(1) is in the public interest; and
[(2) complies with this title.
[Sec. 55.005. UNREASONABLE PREFERENCE OR PREJUDICE
CONCERNING SERVICE PROHIBITED. In providing a service to persons
in a classification, a public utility may not:
[(1) grant an unreasonable preference or advantage to
a person in the classification; or
[(2) subject a person in the classification to an
unreasonable prejudice or disadvantage.
[Sec. 55.006. DISCRIMINATION AND RESTRICTION ON
COMPETITION. A public utility may not:
[(1) discriminate against a person who sells or leases
equipment or performs services in competition with the public
utility; or
[(2) engage in a practice that tends to restrict or
impair that competition.
[Sec. 55.007. MINIMUM SERVICES. (a) The commission shall
require a] A holder of a certificate [of convenience and necessity
or] pursuant to Chapter 54 shall provide access to 911 service
provided by a [certificate of operating] local authority [to
provide at the applicable tariff rate, if any, to each customer,
regardless of race, national origin, income,] or [residence in an
urban or rural area:
[(1) single-] dual party relay service[;].
[(2) tone-dialing service;
[(3) basic custom calling features;
[(4) equal access for an interLATA interexchange
carrier on a bona fide request; and
[(5) digital switching capability in an exchange on
customer request, provided by a digital switch in the exchange or by
connection to a digital switch in another exchange.
[(b) Notwithstanding Subsection (a), an electing incumbent
local exchange company serving more than 175,000 but fewer than
1,500,000 access lines on January 1, 1995, shall install a digital
switch in each central office that serves an exchange of fewer than
20,000 access lines.
[(c) The commission may temporarily waive a requirement
imposed by Subsection (a) or (b) on a showing of good cause.
[(d) The commission may not consider the cost of
implementing this section in determining whether an electing
company is entitled to:
[(1) a rate increase under Chapter 58 or 59; or
[(2) increased universal service funds under
Subchapter B, Chapter 56.
[(e) A holder of a certificate of convenience and necessity
or a certificate of operating authority shall comply with
Subsection (a) not later than December 31, 2000. This subsection
expires September 1, 2003.
[(f) An electing incumbent local exchange company subject
to Subsection (b) shall comply with that subsection not later than
December 31, 1998. This subsection expires September 1, 2001.
[Sec. 55.008. IMPROVEMENTS IN SERVICE; INTERCONNECTING
SERVICE. The commission, after notice and hearing, may:
[(1) order a public utility to provide specified
improvements in its service in a specified area if:
[(A) service in the area is inadequate or
substantially inferior to service in a comparable area; and
[(B) requiring the company to provide the
improved service is reasonable; or
[(2) order two or more utilities to establish
specified facilities for interconnecting service.
[Sec. 55.009. INTRALATA CALLS. (a) If federal law
prohibits a local exchange company in this state from providing
interLATA telecommunications services, the local exchange
companies in this state designated or de facto authorized to
receive a "0-plus" or "1-plus" dialed intraLATA call are
exclusively designated or authorized to receive such a call.
[(b) A telecommunications utility operating under a
certificate of operating authority or a service provider
certificate of operating authority is de facto authorized to
receive a "0-plus" or "1-plus" dialed intraLATA call on the date the
utility receives its certificate, to the extent the utility is not
restricted by Section 54.159.
[(c) If federal law allows all local exchange companies to
provide interLATA telecommunications services, the commission
shall ensure that:
[(1) a customer may designate a provider of the
customer's choice to carry the customer's "0-plus" and "1-plus"
dialed intraLATA calls; and
[(2) equal access in the public network is implemented
to allow the provider to carry those calls.
[Sec. 55.010. BILLING FOR SERVICE TO THE STATE. A
telecommunications utility providing service to the state,
including service to an agency in any branch of state government,
may not impose a fee, a penalty, interest, or any other charge for
delinquent payment of a bill for that service.
[Sec. 55.011. NOTICE OF IDENTITY OF INTEREXCHANGE CARRIER.
(a) A local exchange company shall print on the first page of each
bill sent to a customer of the local exchange company the name of
the customer's primary interexchange carrier if the company
provides billing services for that carrier.
[(b) The bill must contain instructions on how the customer
can contact the commission if the customer believes that the named
carrier is not the customer's primary interexchange carrier.
[(c) The commission may, for good cause, waive the billing
requirement prescribed by this section in exchanges served by local
exchange companies serving not more than 31,000 access lines.
[Sec. 55.012. LIMITATIONS ON DISCONTINUANCE OF BASIC LOCAL
TELECOMMUNICATIONS SERVICE. (Added by SB 86) (a) A provider of
basic local telecommunications service may not discontinue that
service because of nonpayment by a residential customer of charges
for long distance service. Payment shall first be allocated to
basic local telecommunications service.
[(b) For purposes of allocating payment in this section, if
the provider of basic local telecommunications service bundles its
basic local telecommunications service with long distance service
or any other service and provides a discount for the basic local
telecommunications service because of that bundling, the rate of
basic local telecommunications service shall be the rate the
provider charges for stand-alone basic local telecommunications
service.
[(c) Notwithstanding Subsection (a), the commission shall
adopt and implement rules, not later than January 1, 2000, to
prevent customer abuse of the protections afforded by this section.
The rules must include:
[(1) provisions requiring a provider of basic local
telecommunications service to offer and implement, at the request
and expense of a long distance service provider, toll blocking
capability to limit a customer's ability to incur additional
charges for long distance services after nonpayment for long
distance services; and
[(2) provisions regarding fraudulent activity in
response to which a provider may discontinue a residential
customer's basic local telecommunications service.
[(d) Notwithstanding any other provision of this title, the
commission has all jurisdiction necessary to establish a maximum
price that an incumbent local exchange company may charge a long
distance service provider to initiate the toll blocking capability
required to be offered under the rules adopted under Subsection
(c). The maximum price established under this subsection shall be
observed by all providers of basic local telecommunications service
in the incumbent local exchange company's certificated service
area. Notwithstanding Sections 52.102 and 52.152, the commission
has all jurisdiction necessary to enforce this section.
[Sec. 55.012. LIFELINE SERVICE. [REPEALED]
Sec. 55.013. LIMITATIONS ON DISCONTINUANCE OF BASIC [LOCAL
TELECOMMUNICATIONS] NETWORK SERVICE. [(Added by SB 560)] (a) A
provider of basic [local telecommunications] network service may
not discontinue that service because of nonpayment by a residential
customer of charges for [long distance service] Interexchange
Telecommunications Service. Payment shall first be allocated to
basic [local telecommunications] network service.
[(b) For purposes of allocating payment in this section, if
the provider of basic local telecommunications service bundles its
basic local telecommunications service with long distance service
or any other service and provides a discount for the basic local
telecommunications service because of that bundling, the rate of
basic local telecommunications service shall be the rate the
provider charges for stand-alone basic local telecommunications
service.
[(c) Notwithstanding Subsection (a), the commission shall
adopt and implement rules, not later than January 1, 2000, to
prevent customer abuse of the protections afforded by this section.
The rules must include:
[(1) provisions requiring a provider of basic local
telecommunications service to offer and implement toll blocking
capability to limit a customer's ability to incur additional
charges for long distance services after nonpayment for long
distance services; and
[(2) provisions regarding fraudulent activity in
response to which a provider may discontinue a residential
customer's basic local telecommunications service.]
(b) [(d)] Notwithstanding any other provision of this
title, the commission has all jurisdiction necessary to establish a
maximum price that [an incumbent] a local exchange company may
charge a long distance service provider to initiate the toll
blocking capability required to be offered under the rules [adopted
under Subsection (c)] of the commission. The maximum price
established under this subsection shall be observed by all
providers of basic [local telecommunications] network service in
the [incumbent] local exchange company's certificated service
area. [Notwithstanding Sections 52.102 and 52.152, the commission
has all jurisdiction necessary to enforce this section.
[(e) A provider of basic local exchange telecommunications
service shall comply with the requirements of this section not
later than March 1, 2000.
[Sec. 55.014. PROVISION OF ADVANCED TELECOMMUNICATIONS
SERVICES. (a) In this section, "advanced service" means any
telecommunications service other than residential or business
basic local exchange telephone service, caller identification
service, and customer calling features.
[(b) This section applies to a company electing under
Chapter 58 or a company that holds a certificate of operating
authority or service provider certificate of operating authority.
(c) Notwithstanding any other provision of this title,
beginning September 1, 2001, a company to which this section
applies that provides advanced telecommunications services within
the company's urban service areas, shall, on a bona fide retail
request for those services, provide in rural areas of this state
served by the company advanced telecommunications services that
are reasonably comparable to the advanced services provided in
urban areas.] The [company shall offer the advanced
telecommunications services:
[(1) at prices, terms, and conditions that are
reasonably comparable to the prices, terms, and conditions for
similar advanced services provided by the company in urban areas;
and
[(2) within 15 months after the bona fide request for
those advanced services.
[(d) Notwithstanding any other provision of this title, a
company to which this section applies shall, on a bona fide retail
request for those services, offer caller identification service and
custom calling features in rural areas served by the company. The
company shall offer the services:
[(1) at prices, terms, and conditions reasonably
comparable to the company's prices, terms, and conditions for
similar services in urban areas; and
[(2) within 15 months after the bona fide request for
those services.
[(e) This section may not be construed to require a company
to:
[(1) begin providing services in a rural area in which
the company does not provide local exchange telephone service; or
[(2) provide a service in a rural area of this state
unless the company provides the service in urban areas of this
state.
[(f) For purposes of this section, a company to which this
section applies is considered to provide services in urban areas of
this state if the company provides services in a municipality with a
population of more than 190,000.
(g) Notwithstanding any other provision of this title, the]
commission has all jurisdiction necessary to enforce this section.
Sec. 55.015. LIFELINE SERVICE. [(Added by SB 560)] (a) The
commission shall adopt rules prohibiting a [telecommunications
provider from discontinuing basic] holder of a certificate to
provide local exchange telephone service from discontinuing basic
network service to a consumer who receives lifeline service because
of nonpayment by the consumer of charges for other services billed
by the provider, including [long distance] interexchange service.
(b) The commission shall adopt rules providing for
automatic enrollment to receive lifeline service for eligible
consumers. The Texas Department of Human Services, on request of
the commission, shall assist in the adoption and implementation of
those rules. The commission and the Texas Department of Human
Services shall enter into a memorandum of understanding
establishing the respective duties of the commission and department
in relation to the automatic enrollment.
(c) A [telecommunications provider] certificate holder may
block a lifeline service participant's access to all [long
distance] interexchange service except toll-free numbers when the
participant owes an outstanding amount for that service. The
[telecommunications] certificate [provider] holder shall remove
the block without additional cost to the participant on payment of
the outstanding amount.
(d) A [telecommunications provider] certificate holder
shall offer a consumer who applies for or receives lifeline service
the option of blocking all toll calls or, if technically capable,
placing a limit on the amount of toll calls. The provider may not
charge the consumer an administrative charge or other additional
amount for the blocking service.
(e) In this section, "lifeline service" means a retail local
service offering described by 47 C.F.R. Section 54.401(a), as
amended.
[Sec. 55.016. TELECOMMUNICATIONS BILLING. (Added by SB
560) (a) The proliferation of charges for separate services,
products, surcharges, fees, and taxes on a bill for
telecommunications products or services has increased the
complexity of those bills to such an extent that in some cases the
bills have become difficult for customers to understand.
[(b) A bill from a local exchange company for
telecommunications products or services should be consistent with
providing customers sufficient information about the charges
included in the bill to understand the basis and source of the
charges.
(f) [(c) To the extent permitted by law, a monthly bill from
a local exchange company for] A holder of a certificate to provide
local exchange telephone service shall [clearly identify all
charges including basic local] provide access to lifeline service
[charges] to any customer with an income at or below 150% of the
federal poverty guidelines, [fees] or receiving benefits from any
of the following programs: Medicaid, [carrier's] food
[charges]stamps, [assessments] Supplemental Security Income (SSI),
[surcharges]federal public housing assistance, [optional services,
and taxes] or Low Income Energy Assistance Program (LIHEAP).
[(d) Local exchange carriers shall annually file a copy of
that portion of their bill that has not been previously approved by
the commission for compliance review with this section.
[(e) The commission shall have all necessary authority to
enforce this section.]
SUBCHAPTER B. EXTENDED AREA SERVICE
Sec. 55.021. EXTENDED AREA SERVICE. After notice and a
hearing, the commission may order one or more incumbent local
exchange companies [that are dominant carriers] to provide:
(1) mandatory extended area service in accordance with
Section 55.022; or
(2) optional extended area service [in accordance with
Section 55.023.]
Sec. 55.022. MANDATORY SERVICE. The commission may order
mandatory extended area service in a specified metropolitan area
if:
(1) there is a sufficient community of interest in the
area; and
(2) the company can reasonably provide the service.
Sec. 55.023. OPTIONAL EXTENDED AREA SERVICE. (a) The
commission may order optional extended area service in a specified
calling area if:
(1) each affected company and the representatives of
at least one political subdivision in the proposed calling area
agree to the service; and
(2) the proposed common calling area has a single,
continuous boundary.
(b) The commission may not adopt rules that diminish in any
manner the ability of an affected company or a political
subdivision to enter into joint agreements for optional extended
area service under this section.
(c) In this section, "political subdivision" means:
(1) a county;
(2) a municipality; or
(3) an unincorporated town or village that has 275 or
more access lines.
[Sec. 55.024. CHARGE FOR EXTENDED AREA SERVICE. (a) An
incumbent local exchange company that provides mandatory two-way
extended area service to customers shall impose for that service a
separately stated monthly charge of $3.50 a line for a residential
customer and $7 a line for a business customer if, on September 1,
1995, the company:
[(1) served more than 1,000,000 access lines in this
state; and
[(2) imposed a separately stated monthly charge for
mandatory two-way extended area service of more than $3.50 a line
for a residential customer and more than $7 a line for a business
customer.
[(b) The company shall recover all costs incurred and all
loss of revenue that results from imposition of the rates
prescribed by Subsection (a) in the manner prescribed by Section
55.048(c).
[(c) The rate limitation prescribed by Subsection (a) does
not apply to a separately stated monthly charge for:
[(1) extended area service in or into a metropolitan
exchange; or
[(2) extended metropolitan service.
[Sec. 55.025. HUNTING SERVICE. (a) A local exchange
company shall make available, at a reasonable tariffed rate,
hunting service from local exchange lines to extended metropolitan
service lines.
(b) The company may not require a customer to purchase
additional extended metropolitan service to obtain the hunting
service.]
SUBCHAPTER C. EXPANDED TOLL-FREE LOCAL CALLING AREAS
Sec. 55.041. DEFINITIONS. In this subchapter,
"metropolitan exchange," "local calling area of a metropolitan
exchange," and "exchange" have the meanings and boundaries assigned
by the commission on September 1, 1993.
Sec. 55.042. CONTIGUOUS EXCHANGE. The commission may
expand a toll-free local calling area into an exchange that is not
in a metropolitan exchange but is in a local calling area that is
contiguous to a metropolitan exchange that the commission
determines has a community of interest with the exchange for which a
petition is filed under this subchapter.
Sec. 55.043. SPLITTING EXCHANGES PROHIBITED.
Notwithstanding any other provision of this subchapter, the
commission may not split a petitioning or requested exchange in
establishing a toll-free local calling area.
Sec. 55.044. EXEMPTION. (a) The commission may not require
an incumbent local exchange company serving the petitioning or
requested exchange to expand the company's toll-free local calling
area under this subchapter if:
(1) the incumbent local exchange company has fewer
than 10,000 access lines;
(2) the petitioning or requested exchange is served by
a telephone cooperative corporation;
(3) extended area service or extended metropolitan
service is available between the exchanges;
(4) the petitioning or requested exchange is a
metropolitan exchange; or
(5) the commission determines that the company has
shown that to serve the area is not geographically or
technologically feasible.
(b) To promote the wide dispersion of pay telephones, the
commission may:
(1) exempt pay telephones from this subchapter; or
(2) change the rates charged for calls from pay
telephones.
Sec. 55.045. ELIGIBILITY TO PETITION. The telephone
subscribers of an incumbent local exchange company exchange that
serves not more than 10,000 access lines may petition the
commission for expansion of the company's toll-free local calling
area if:
(1) the petitioning exchange's central switching
office is located within 22 miles, using vertical and horizontal
geographic coordinates, of the central switching office of the
exchange requested for expanded local calling service; or
(2) the petitioning exchange's central office is not
more than 50 miles from the central office of the exchange requested
for expanded local calling service and the exchanges share a
community of interest.
Sec. 55.046. PETITION REQUIREMENTS. (a) A petition under
this subchapter must be signed by a number of the exchange's
subscribers equal at least to the lesser of 100 of the exchange's
subscribers or five percent of the exchange's subscribers.
(b) An exchange that petitions under Section 55.045(2) must
demonstrate in the petition that the exchange shares a community of
interest with the requested exchange.
(c) For purposes of this section, the relationships between
exchanges that create a community of interest include:
(1) a relationship because of schools, hospitals,
local governments, or business centers; or
(2) other relationships that would make the
unavailability of expanded local calling service a hardship for the
residents of the area.
Sec. 55.047. BALLOTING AND CONSIDERATION. (a) If the
commission receives a petition that complies with this subchapter,
the commission shall order the incumbent local exchange company to
provide ballots to the subscribers in the petitioning exchange.
(b) The commission shall consider the request for expansion
of the toll-free local calling area if at least 70 percent of the
subscribers who vote do so in favor of the expansion.
(c) The commission by rule shall provide for an expedited
hearing on the issue of expansion.
Sec. 55.048. CHARGES. [(a)] The incumbent local exchange
company [shall recover all costs incurred and all loss of revenue
from an expansion of] impose a [toll-free local calling area under
this subchapter through a request other than a revenue requirement
showing by imposing a] monthly fee [under Subsection (b) or (c), or
both.] against each residential and business customer in the
petitioning exchange.
[(b) The company may impose a monthly fee against each
residential and business customer in the petitioning exchange. The
fee may not exceed $3.50 a line for a residential customer and $7 a
line for a business customer unless the customer's toll-free local
calling area includes more than five exchanges. The company may
impose an additional monthly fee of $1.50 for each exchange in
excess of five. This subsection applies regardless of the number of
petitions required to obtain access to the exchanges. A company may
impose a fee under this subsection only until the company's next
general rate case.
[(c) The company may impose a monthly fee against each of
the company's local exchange service customers in this state. This
fee is in addition to the company's local exchange rates.
[(d) The company may not recover regulatory case expenses
under this subchapter by imposing a surcharge on the subscribers of
the petitioning exchange.]
SUBCHAPTER D. OPERATOR SERVICE PROVIDERS
Sec. 55.081. DEFINITION. In this subchapter, "operator
service" means a service using live operator or automated operator
functions to handle telephone service such as toll calling using
collect, third-number billing, and calling card services. The term
does not include a call for which the called party has arranged to
be billed (800 service).
[Sec. 55.082. APPLICABILITY. Except as provided by Section
55.088, this subchapter applies only to a telecommunications
utility that is not a dominant carrier.
[Sec. 55.083. RULES AND PROCEDURES. (a) The commission may
adopt rules and establish procedures to enforce and implement this
subchapter.
[(b) A rule adopted under this subchapter must be
nondiscriminatory and designed to promote competition that
facilitates consumer choice.]
Sec. 55.084. INFORMATION DISPLAYED ON PUBLIC USE TELEPHONE.
(a) An operator service provider shall furnish each entity with
which it contracts to provide operator service a sticker, card, or
other form of information approved by the commission for each
telephone that:
(1) has access to the service; and
(2) is intended for use by the public.
(b) The commission may grant the owner of a telephone
approval for an alternative form of information.
(c) The information must state:
(1) the provider's name;
(2) that the operator service provider will provide
rate information on a caller's request;
(3) that a caller, on the caller's request, will be
informed of the method of access to the local exchange carrier
operator; and
(4) that a complaint about the service may be made to
the provider or to the commission at the designated telephone
number.
(d) The operator service provider shall by contract require
an entity receiving information to display the information on or
near each telephone for which the operator service provider is
required to furnish the information.
Sec. 55.085. CONNECTION ANNOUNCEMENT. Before connecting a
call, the operator service provider shall[:
[(1)] announce the provider's name [; and
[(2) at the caller's request, quote the rate and any
other fee or surcharge that applies to the call and is charged by
the provider.]
Sec. 55.086. INFORMATION REQUIRED ON ACCESS TO LOCAL
EXCHANGE COMPANY OPERATOR. (a) An operator service provider, on a
caller's request, shall inform the caller of the method of access to
the local exchange carrier operator serving the exchange from which
the call is made.
(b) A charge may not be made for information provided under
this section.
Sec. 55.087. ACCESS TO LOCAL EXCHANGE COMPANY [AND OTHER
UTILITIES REQUIRED]. (a) The commission by rule shall require an
operator service provider to include in its contract with each
entity through which it provides operator service a provision that
requires each telephone subscribed to its service to allow access
to[:
[(1)] the local exchange carrier operator serving the
exchange from which the call is made; and
[(2) other telecommunications utilities.]
(b) To prevent fraudulent use of its service, an operator
service provider or an entity through which it provides operator
service may block the access described by Subsection (a) by
obtaining a waiver for this purpose from the commission or the
Federal Communications Commission. The commission by rule shall
establish the procedure and criteria for obtaining a waiver from
the commission.
Sec. 55.088. ACCESS TO LIVE OPERATOR REQUIRED. (a) [A
dominant or nondominant telecommunications utility] Any entity
that provides operator service shall ensure that a caller has
access to a live operator [at] during the [beginning of a live or
mechanized operator-assisted] call through a method designed to be
easily and clearly understandable and accessible to the caller.
[(b) A telecommunications utility described by Subsection
(a) shall submit to the commission for review the method by which
the utility will provide access to a live operator.
[(c) This section applies regardless of the method by which
the telecommunications utility provides operator service.]
[(d)] (b) This section does not apply to a telephone located
in a prison or jail facility.
Sec. 55.089. COMMISSION MAY INVESTIGATE AND ACT ON
VIOLATION. (a) If the commission determines that an operator
service provider has violated or is about to violate this
subchapter, the commission, after notice and evidentiary hearing,
may take action to stop, correct, or prevent the violation.
(b) The commission may investigate a complaint that it
receives concerning an operator service.
SUBCHAPTER E. [CALLER IDENTIFICATION SERVICE]
[Sec. 55.101. DEFINITIONS. In this subchapter:
[(1) "Caller identification information" means any
information that may be used to identify the specific originating
number or originating location of a wire or electronic
communication transmitted by a telephone, including the telephone
listing number or the name of the customer from whose telephone a
telephone number is dialed.
[(2) "Caller identification service" means a service
that provides caller identification information to a device that
can display the information.
[(3) "Per-call blocking" means a telecommunications
service that prevents caller identification information from being
transmitted to a called party on an individual call when the calling
party affirmatively acts to prevent the transmission.
[(4) "Per-line blocking" means a telecommunications
service that prevents caller identification information from being
transmitted to a called party on each call unless the calling party
affirmatively acts to permit the transmission.
[Sec. 55.102. APPLICABILITY. (a) This subchapter applies
only to the provision of caller identification service.
[(b) This subchapter does not apply to:
[(1) an identification service that is used in a
limited system, including a central office based PBX-type system;
[(2) information that is used on a public agency's
emergency telephone line or on a line that receives the primary
emergency telephone number (911);
[(3) information exchanged between telecommunications
utilities, enhanced service providers, or other entities that is
necessary for the setting up, processing, transmission, or billing
of telecommunications or related services;
[(4) information provided in compliance with
applicable law or legal process; or
[(5) an identification service provided in connection
with a 700, 800, or 900 access code telecommunications service.
[Sec. 55.103. PROVISION OF SERVICE. (a) A
telecommunications utility may offer caller identification
services under this subchapter only if the utility obtains written
authorization from the commission.
[(b) A commercial mobile service provider may offer caller
identification services in accordance with Sections 55.104,
55.105, 55.106, 55.1065, and 55.107.
[Sec. 55.104. USE OF INFORMATION. (a) A person may not use
a caller identification service to compile and sell specific local
call information without the affirmative approval of the
originating telephone customer.
[(b) This section does not prohibit a provider of caller
identification service from:
[(1) verifying network performance or testing the
caller identification service;
[(2) compiling, using, and disclosing aggregate
caller identification information; or
[(3) complying with applicable law or legal process.
[Sec. 55.105. PER-CALL BLOCKING. Except as provided by
Section 55.1065, the commission shall require that a provider of
caller identification service offer free per-call blocking to each
telephone subscriber in the specific area in which the service is
offered.
[Sec. 55.106. PER-LINE BLOCKING. (a) Except as provided by
Section 55.1065, the commission shall require that a provider of
caller identification service offer free per-line blocking to a
particular customer if the commission receives from the customer
written certification that the customer has a compelling need for
per-line blocking.
[(b) A provider who is ordered to offer per-line blocking
under this section shall notify the customer by mail of the date the
blocking will begin.
[(c) If a customer removes and later reinstates the per-line
block, the provider may assess a service order charge in an amount
approved by the commission for the provider's administrative
expenses relating to the reinstatement.
[(d) The commission may impose a fee or assessment on a
provider in an amount sufficient to cover the additional expenses
the commission incurs in implementing the customer certification
provisions of this section.
[(e) Information received under this section by the
commission or by a provider is confidential and may be used only to
administer this section.
[Sec. 55.1065. USE OF BLOCKING BY TELEPHONE SOLICITOR.
REPEALED
[Sec. 55.107. LIMITATION ON COMMISSION AUTHORITY. The
commission may prescribe in relation to blocking only a requirement
authorized by Sections 55.105, 55.106, and 55.1065.
[Sec. 55.108. CALLER ID CONSUMER EDUCATION PANEL. (a) The
Caller ID Consumer Education Panel is composed of:
[(1) one person appointed by the governor;
[(2) one person appointed by the presiding officer of
the commission after the presiding officer consults with the Texas
Council on Family Violence; and
[(3) one person appointed by the counsellor.
[(b) The panel shall:
[(1) meet at least quarterly;
[(2) file an annual report with the commission
regarding:
[(A) the level of effort and effectiveness of
consumer education materials; and
[(B) the panel's recommendations for:
[(i) increasing the safe use of caller ID
services and the privacy of the calling customer; and
[(ii) decreasing the likelihood of harm
resulting from the use of caller ID services; and
[(3) investigate whether educational caller ID
materials are distributed in as effective a manner as marketing
caller ID materials.
[(c) A provider of caller ID services shall file with the
panel all caller ID materials as the materials become available.
[(d) The panel is abolished and this section expires
September 1, 1999.
[(e) In this section:
[(1) "Caller ID service" has the meaning assigned by
Section 55.110.
[(2) "Caller ID materials" means any disseminated
information relating to caller ID services, including
advertisements, educational material, training material, and audio
and video marketing devices.
[Sec. 55.109. IMPLEMENTATION OF PANEL RECOMMENDATIONS. The
commission may implement the recommendations of the Caller ID
Consumer Education Panel and interested parties to the extent
consistent with the public interest.
[Sec. 55.110. REPORT OF BLOCKING FAILURE. (a) A provider
of caller ID services who becomes aware of the failure of per-call
or per-line blocking to block identification of a customer shall
report that failure to the commission, the Caller ID Consumer
Education Panel, and the customer whose identification was not
blocked.
[(b) The provider shall make a reasonable effort to notify
the customer within 24 hours after the provider becomes aware of the
failure. The provider is not required to notify the customer if the
customer reported the failure.
[(c) In this section, "caller ID service" means a service
that permits the called party to determine the identity, telephone
number, or address of the calling party. The term does not include
911 services.
[SUBCHAPTER F. AUTOMATIC DIAL ANNOUNCING DEVICES
[Sec. 55.121. DEFINITION. In this subchapter, "automated
dial announcing device" means automated equipment used for
telephone solicitation or collection that can:
[(1) store telephone numbers to be called or produce
numbers to be called through use of a random or sequential number
generator; and
[(2) convey, alone or in conjunction with other
equipment, a prerecorded or synthesized voice message to the number
called without the use of a live operator.
[Sec. 55.122. EXEMPTIONS. This subchapter does not apply
to the use of an automated dial announcing device:
[(1) to make a call relating to an emergency or a
public service under a program developed or approved by the
emergency management coordinator of the county in which the call is
received; or
[(2) by a public or private primary or secondary
school system to locate or account for a truant student.
[Sec. 55.123. NOTICE OF USE OF DEVICE TO TELECOMMUNICATIONS
UTILITY. A person may not use an automated dial announcing device
to make a telephone call in which the device plays a recorded
message when the connection is completed unless the person gives to
each telecommunications utility over whose system the device is to
be used written notice specifying the type of device to be used.
[Sec. 55.124. RANDOM OR SEQUENTIAL NUMBER CALLING. A
person may not use an automated dial announcing device for random
number dialing or to dial numbers determined by successively
increasing or decreasing integers if the person uses the device to
make a telephone call in which the device plays a recorded message
when the connection is completed.
[Sec. 55.125. HOURS WHEN USE PROHIBITED. (a) A person may
not use an automated dial announcing device to make a telephone
solicitation call terminating in this state in which the device
plays a recorded message when the connection is completed if the
call is made:
[(1) before noon or after 9 p.m. on a Sunday; or
[(2) before 9 a.m. or after 9 p.m. on a weekday or a
Saturday.
[(b) A person may not use an automated dial announcing
device to make a telephone collection call terminating in this
state in which the device plays a recorded message when the
connection is completed if the call is made at an hour at which
collection calls are prohibited under the federal Fair Debt
Collection Practices Act (15 U.S.C. Section 1692 et seq.).
[Sec. 55.126. DEVICE DISCONNECTION. A person may not use an
automated dial announcing device to make a telephone call in which
the device plays a recorded message when the connection is
completed unless the device disconnects from the called person's
line not later than five seconds after the call is terminated by
either party. If the device cannot disconnect during that period, a
live operator must introduce the call and receive the called
person's oral consent before beginning a prerecorded or synthesized
voice message.
[Sec. 55.127. CONTENTS OF RECORDED MESSAGE. (a) A person
may not use an automated dial announcing device to make a telephone
call in which the device plays a recorded message when the
connection is completed unless the recorded message states during
the first 30 seconds of the call:
[(1) the nature of the call;
[(2) the identity of the person, company, or
organization making the call; and
[(3) the telephone number from which the call is made.
[(b) In addition to the requirements prescribed by
Subsection (a), a call during which a cross-promotion or reference
to a pay-per-call information service is made must include a
statement of:
[(1) the fact that a caller who makes a call to a
pay-per-call information service's telephone number will be
charged for that call;
[(2) the amount of the flat-rate or cost-per-minute
charge the caller will incur or the amount of both if both charges
will be incurred; and
[(3) the estimated amount of time required to receive
all the information offered by the service during a call.
[(c) Subsection (a) does not apply to the use of a device if
the device is used:
[(1) for debt collection purposes in compliance with
applicable federal law and regulations; and
[(2) by a live operator for automated dialing or hold
announcement purposes.
[(d) In this section, "pay-per-call information service"
means a service that routinely delivers, for a predetermined and
sometimes time-sensitive fee, a prerecorded or live message or
interactive program after the caller dials a specified 900 or 976
number.
[Sec. 55.128. DURATION OF RECORDED MESSAGE. A person may
not use an automated dial announcing device to make for
solicitation purposes a telephone call in which the device plays a
recorded message when the connection is completed unless:
[(1) the recorded message is shorter than 30 seconds;
or
[(2) the device has the technical capacity to:
[(A) recognize a telephone answering device on
the called person's line; and
[(B) terminate the call within 30 seconds.
[Sec. 55.129. PERMIT REQUIRED. A person may not use an
automated dial announcing device to make a telephone call in which
the device plays a recorded message when the connection is
completed unless the person has a permit under Section 55.130.
[Sec. 55.130. PERMIT. (a) A person may not use an
automated dial announcing device without a permit issued by the
commission.
[(b) An applicant for an original permit must submit to the
commission an application on a form that:
[(1) is prescribed by the commission; and
[(2) contains:
[(A) the telephone number of each automated dial
announcing device that the person will use; and
[(B) the physical address from which each
automated dial announcing device will operate.
[(c) An original permit is valid for one year and may be
renewed annually by filing with the commission the information
required by Subsection (b)(2).
[(d) An application for an original permit or a filing
required for the renewal of the permit must be accompanied by the
appropriate fee prescribed by Section 55.131.
[(e) In determining whether to deny an application for an
original permit or renewal of the permit, the commission shall
consider the compliance record of the owner or operator of the
automated dial announcing device and may deny the application based
on that record.
[Sec. 55.131. PERMIT FEE. (a) The commission shall
prescribe a fee for an original permit or renewal of a permit.
[(b) The amount of the original permit fee must be
reasonable and cover the enforcement cost to the commission but may
not exceed $500.
[(c) The fee for renewal of a permit may not exceed $100.
[Sec. 55.132. NOTIFICATION OF CHANGE. (a) The owner or
operator of an automated dial announcing device shall notify the
commission if the telephone number of the device or the physical
address from which the device operates changes.
[(b) The owner or operator shall give the notice by
certified mail not later than the 48th hour before the hour the
device begins operating with the new telephone number or at the new
address.
[(c) If the owner or operator of a device fails to give
notice as required by Subsection (b), the person's permit is
invalid.
[Sec. 55.133. NOTIFICATION OF LOCAL EXCHANGE COMPANY. The
commission shall provide to a local exchange company on request a
copy of a permit issued under this subchapter and of any change
relating to the permit.
[Sec. 55.134. COMPLAINTS AND ENFORCEMENT. (a) The
commission shall:
[(1) investigate complaints relating to the use of an
automated dial announcing device; and
[(2) enforce this subchapter.
[(b) A local exchange company that receives a complaint
relating to the use of an automated dial announcing device shall
send the complaint to the commission. The commission by rule shall
prescribe the procedures and requirements for sending a complaint
to the commission.
[Sec. 55.135. REVOCATION OF PERMIT. The commission may
revoke a person's permit if the person fails to comply with this
subchapter.
[Sec. 55.136. DISCONNECTION OF SERVICE. (a) If the
commission or a court determines that a person has violated this
subchapter, the commission or court shall require a
telecommunications utility to disconnect service to the person.
[(b) The telecommunications utility may reconnect service
to the person only on a determination by the commission that the
person will comply with this subchapter.
[(c) Not later than the third day before the date of the
disconnection, the telecommunications utility shall give notice to
the person using the device of its intent to disconnect service.
However, if the device is causing network congestion or blockage,
the notice may be given on the day before the date of disconnection.
[(d) A telecommunications utility, without an order by the
commission or a court, may disconnect or refuse to connect service
to a person using or intending to use an automated dial announcing
device if the utility determines that the device would cause or is
causing network harm.
[Sec. 55.137. ADMINISTRATIVE PENALTY. (a) The commission
may impose an administrative penalty against a person who owns or
operates an automated dial announcing device in violation of this
subchapter or a commission rule or order.
[(b) The penalty for a violation may be in an amount not to
exceed $1,000 for each day or portion of a day during which the
device operates in violation of this subchapter or a commission
rule or order.
[(c) The administrative penalty is civil in nature and is in
addition to any other penalty provided by law.
[(d) The commission by rule shall prescribe the procedures
for assessing an administrative penalty under this section. The
procedures must require proper notice and hearing in accordance
with Chapter 2001, Government Code.
[(e) A person may appeal the final order of the commission
under Chapter 2001, Government Code. The substantial evidence rule
applies on appeal.
[(f) The proceeds of administrative penalties collected
under this section shall be deposited to the credit of the
commission. The commission shall use the proceeds to enforce this
subchapter.
[Sec. 55.138. CRIMINAL PENALTY. (a) A person commits an
offense if the person owns or operates an automated dial announcing
device that the person knows is operating in violation of this
subchapter.
[(b) An offense under this section is a Class A misdemeanor.
[SUBCHAPTER G. [REPEALED]
[SUBCHAPTER H.] PAY TELEPHONES
[Sec. 55.171. DEFINITION. In this subchapter, "provider"
means an entity that provides pay telephone service, including:
[(1) an incumbent local exchange company; and
[(2) a subscriber to a customer-owned pay telephone
service.
[Sec. 55.172. LIMITATION. This subchapter prescribes the
limits of:
[(1) the right of a provider to set the provider's
rates and charges for pay telephone services; and
[(2) the commission's authority over the pay telephone
service rates of an incumbent local exchange company.]
Sec. 55.173. REGISTRATION. (a) A person may not provide
pay telephone service in this state unless the person is registered
with the commission.
(b) This section does not apply to a provider who holds a
certificate [of convenience and necessity] as a Network Provider
or a Services Provider.
Sec. 55.174. PROHIBITION ON CHARGE FOR CERTAIN CALLS. A
provider may not charge a person making a call on a pay telephone
for:
[(1) local directory assistance; or
[(2)] a call made under Chapter 771 or 772, Health and
Safety Code.
Sec. 55.175. [CHARGE FOR LOCAL CALLS. (a) The commission
shall establish the limit on the amount a provider may charge for a
pay telephone coin sent-paid call in the local exchange company's
toll-free calling area.
[(b) The commission may establish a statewide ceiling on the
amount a provider may charge for a local pay telephone call that is:
[(1) collect;
[(2) operator assisted; or
[(3) paid by credit card or calling card.
[(c) The commission may not establish the ceiling under
Subsection (b) at an amount that is less than the applicable local
rates for such a call imposed by any of the four largest
interexchange telecommunications carriers operating in this state.
[Sec. 55.176. CHARGE FOR 800-TYPE CALLS. (a) A provider
may charge at a pay telephone a fee of not more than 25 cents for
initiating an 800-type call.
[(b) A provider may impose the fee only if:
[(1) the pay telephone is registered with the
commission; and
[(2) the provider certifies that the pay telephone
complies with commission rules regarding the provision of pay
telephone service.
[(c) Subsection (b) does not apply to a local exchange
company pay telephone.
[(d) A provider may not impose the fee if imposition is
inconsistent with federal law.
[(e) A provider may not impose the fee for a:
[(1) local call;
[(2) 911 call;
[(3) local directory assistance call; or
[(4) call that is covered by the Telephone Operator
Consumer Services Improvement Act of 1990 (47 U.S.C. Section 226).
[(f) A provider who imposes the fee must post on each pay
telephone notice that the fee will be charged. The provider must
post the notice:
[(1) in plain sight of the user; and
[(2) in a manner consistent with existing commission
requirements for posting information.
[(g) The commission may not impose on a local exchange
company the duty or obligation to:
[(1) record the use of pay telephone service;
[(2) bill or collect for the use of the pay telephone;
or
[(3) remit to the provider the fee authorized by this
section.
[Sec. 55.177. CHARGE FOR CREDIT CARD, CALLING CARD, OR
OPERATOR-ASSISTED CALLS. (a) A provider may not impose for a
credit card, calling card, or live or automated operator-assisted
call a rate or charge that is greater than the authorized rates and
charges published on March 18, 1995, in the eight newspapers having
the largest circulation in this state.
[(b) The published rates may not be changed.
[(c) This section does not apply to a local exchange
company. Chapter 58 governs the pay telephone rates of an incumbent
local exchange company that elects incentive regulation under that
chapter.
[Sec. 55.178.] NOTICE OF INABILITY TO RECEIVE CALLS. (a) A
provider may not display the telephone number of a pay telephone
that cannot receive telephone calls.
(b) A provider shall place in a conspicuous location on each
pay telephone that cannot receive telephone calls a notice stating
in letters one-fourth inch high: "THIS TELEPHONE CANNOT RECEIVE
TELEPHONE CALLS."
(c) A provider that violates this section or a rule or order
adopted by the commission under this section is subject to a civil
penalty as provided by Section 15.028 unless the provider takes
corrective action to comply with this section or the rule or order
not later than the 14th day after the date the provider receives
written notice of the violation.
(d) The commission has jurisdiction over a provider to the
extent necessary to enforce this section regardless of whether a
provider is a telecommunications utility regulated under this
title.
(e) The commission may establish procedures to enforce this
section.
[Sec. 55.179. INFORMATION REQUIREMENTS. (a) The
commission by rule may prescribe the information that must be
posted on a pay telephone.
[(b) A commission rule may not require a provider or an
affiliate of a provider to police compliance by another provider
with the commission's rules.]
Sec. [55.180.] 55.176. VIOLATIONS. The commission may
order the disconnection of pay telephone service for not more than
one year for repeat violations of commission rules.
SUBCHAPTER [I] F. DIRECTORY LISTINGS [AND ASSISTANCE]
Sec. 55.201. TERMS OF DIRECTORY LISTINGS [AND ASSISTANCE].
(a) Each company that provides local exchange telephone service in
overlapping certificated areas shall negotiate the terms of printed
directory listings and directory assistance in those areas.
(b) On complaint by [the incumbent local exchange company or
the] a certificate holder [of a certificate of convenience and
necessity, a certificate of operating authority, or a service
provider certificate of operating authority], the commission may:
(1) resolve a dispute between the parties; and
(2) issue an order setting the terms of the directory
listings or directory assistance, if necessary.
[(c) This section does not affect the authority of an
incumbent local exchange company to voluntarily conduct
negotiations with an applicant for a certificate of convenience and
necessity, a certificate of operating authority, or a service
provider certificate of operating authority.
[Sec. 55.202. DIRECTORY PUBLISHED BY TELECOMMUNICATIONS
UTILITY. A telecommunications utility or an affiliate of that
utility that publishes a residential or business telephone
directory that is distributed to the public shall publish in the
directory the name of each state senator or representative who
represents all or part of the geographical area for which the
directory contains listings.]
Sec. 55.203. DIRECTORY PUBLISHED BY PRIVATE PUBLISHER. (a)
A private for-profit publisher of a residential telephone directory
that is distributed to the public at minimal or no cost shall
include in the directory:
(1) a listing of any toll-free and local telephone
numbers of:
(A) state agencies;
(B) state public services; and
(C) each state elected official who represents
all or part of the geographical area for which the directory
contains listings; and
(2) the Internet address of TexasOnline and a
statement that Internet sites for state agencies may be accessed
through TexasOnline.
(b) The listing required by this section must be:
(1) clearly identified; and
(2) located or clearly referenced at the front of the
directory before the main listing of residential and business
telephone numbers.
(c) The [commission by rule may specify:
[(1)] Commission shall not promulgate rules that
dictate the format or content of [the listing; and
[(2) criteria for inclusion of agencies, services, and
officials] a directory or otherwise create requirements beyond
those contained in this subchapter.
[(d) The commission's rules must require a publisher to
list:
[(1) the telephone number for state government
information; and
[(2) telephone numbers alphabetically by:
[(A) the subject matter of agency programs; and
[(B) agency name.
[(e) The commission, with the cooperation of other state
agencies, shall:
[(1) compile relevant information to ensure accuracy
of information in the listing; and
[(2) provide the information to a telecommunications
utility or telephone directory publisher within a reasonable time
after a request by the utility or publisher.
[(f) The General Service Commission shall cooperate with
the commission and with publishers to ensure that the subject
matter listing of programs and telephone numbers in the telephone
directories are consistent with the categorization developed by the
Records Management Interagency Coordinating Council under Section
441.203(j), Government Code.
[(g) The rules adopted under Subsection (d) must provide
that a telecommunications utility that publishes and distributes to
the public a residential or business telephone directory shall list
prominently in the directory the contact information for the
specialized telecommunications assistance program established
under Subchapter E, Chapter 56.]
SUBCHAPTER [J] G. TELECOMMUNICATIONS SERVICE BY CERTAIN PROVIDERS
Sec. 55.251. [CHARGE FOR HOTEL OR MOTEL CALL. A hotel or
motel may not charge more than 50 cents for:
[(1) a local telephone call;
[(2) a credit card telephone call;
[(3) a collect telephone call; or
[(4) any other local telephone call for which
assistance from the hotel or motel operator is not required.
[Sec. 55.252.] 900 SERVICE USED BY PROBATIONERS OR
PAROLEES. (a) This section applies only to a [telecommunications
utility] service provider that transports or provides an intrastate
900 service that is:
(1) covered by a contract authorized by Chapter 76 or
508, Government Code; and
(2) used by a defendant under the supervision of a
community supervision and corrections department or the pardons and
paroles division of the Texas Department of Criminal Justice to:
(A) pay a fee or cost; or
(B) comply with telephone reporting
requirements.
(b) A [telecommunications utility] service provider may
adjust or authorize the adjustment of an end-user's bill for 900
service described by Subsection (a) only with the consent of the
contracting community supervision and corrections department or
the contracting pardons and paroles division of the Texas
Department of Criminal Justice.
Sec. [55.253.] 55.252. TELEPHONE PREPAID CALLING SERVICES.
(a) In this section:
(1) "Prepaid calling card company" means a company
that provides a prepaid calling service to the public using its own
network or resold services.
(2) "Prepaid calling service" means a prepaid
telecommunications service that allows an end user to originate a
call using an access number and authorization code.
(b) The commission by rule may prescribe standards
regarding the information a prepaid calling card company shall
disclose to customers in relation to the rates and terms of service
for prepaid calling services offered in this state.
(c) The commission is granted all necessary jurisdiction to
adopt rules under this section and to enforce those rules and this
section.
(d) A violation of a rule adopted under this section is
subject to enforcement under Subchapter B, Chapter 15.
[SUBCHAPTER K. SELECTION OF TELECOMMUNICATIONS UTILITIES
[Sec. 55.301. STATE POLICY. It is the policy of this state
to ensure that all customers are protected from the unauthorized
switching of a telecommunications utility selected by the customer
to provide telecommunications service.
[Sec. 55.302. COMMISSION RULES. (a) The commission shall
adopt nondiscriminatory and competitively neutral rules to
implement this subchapter, including rules that:
[(1) ensure that customers are protected from
deceptive practices in the obtaining of authorizations and
verifications required by this subchapter;
[(2) are applicable to all local exchange telephone
services, interexchange telecommunications service, and other
telecommunications service provided by telecommunications
utilities in this state;
[(3) are consistent with the rules and regulations
prescribed by the Federal Communications Commission for the
selection of telecommunications utilities;
[(4) permit telecommunications utilities to select
any method of verification of a change order authorized by Section
55.303;
[(5) require the reversal of certain changes in the
selection of a customer's telecommunications utility in accordance
with Section 55.304(a);
[(6) prescribe, in accordance with Section 55.304(b),
the duties of a telecommunications utility that initiates an
unauthorized customer change; and
[(7) provide for corrective action and the imposition
of penalties in accordance with Sections 55.305 and 55.306.
[(b) The commission is granted all necessary jurisdiction
to adopt rules required by this subchapter and to enforce those
rules and this subchapter.
[(c) The commission may notify customers of their rights
under the rules.
[Sec. 55.303. VERIFICATION OF CHANGE. A telecommunications
utility may verify a change order by:
[(1) obtaining written authorization from the
customer;
[(2) obtaining a toll-free electronic authorization
placed from the telephone number that is the subject of the change
order; or
[(3) an oral authorization obtained by an independent
third party.
[Sec. 55.304. UNAUTHORIZED CHANGE. (a) If a change in the
selection of a customer's telecommunications utility is not made or
verified in accordance with this subchapter, the change, on request
by the customer, shall be reversed within a period established by
commission ruling.
[(b) A telecommunications utility that initiates an
unauthorized customer change shall:
[(1) pay all usual and customary charges associated
with returning the customer to its original telecommunications
utility;
[(2) pay the telecommunications utility from which the
customer was changed any amount paid by the customer that would have
been paid to that telecommunications utility if the unauthorized
change had not been made;
[(3) return to the customer any amount paid by the
customer that exceeds the charges that would have been imposed for
identical services by the telecommunications utility from which the
customer was changed if the unauthorized change had not been made;
and
[(4) provide to the original telecommunications
utility from which the customer was changed all billing records to
enable that telecommunications utility to comply with this
subchapter.
[(c) The telecommunications utility from which the customer
was changed shall provide to the customer all benefits associated
with the service on receipt of payment for service provided during
the unauthorized change.
[(d) A customer is not liable for charges incurred during
the first 30 days after the date of an unauthorized carrier change.
[Sec. 55.305. CORRECTIVE ACTION AND PENALTIES. (a) If the
commission finds that a telecommunications utility has repeatedly
violated the commission's telecommunications utility selection
rules, the commission shall order the utility to take corrective
action as necessary. In addition, the utility may be subject to
administrative penalties under Sections 15.023-15.027.
[(b) An administrative penalty collected under this section
shall be used to enforce this subchapter.
[Sec. 55.306. REPEATED AND RECKLESS VIOLATION. If the
commission finds that a telecommunications utility has repeatedly
and recklessly violated the commission's telecommunications
utility selection rules, the commission may, if consistent with the
public interest, suspend, restrict, deny, or revoke the
registration or certificate, including an amended certificate, of
the telecommunications utility and, by taking that action, deny the
telecommunications utility the right to provide service in this
state.
[Sec. 55.307. DECEPTIVE OR FRAUDULENT PRACTICE. The
commission may prohibit a utility from engaging in a deceptive or
fraudulent practice, including a marketing practice, involving the
selection of a customer's telecommunications utility. The
commission may define deceptive and fraudulent practices to which
this section applies.
[Sec. 55.308. CONSISTENCY WITH FEDERAL LAW.
Notwithstanding any other provision of this subchapter, rules
adopted by the commission under this subchapter shall be consistent
with applicable federal laws and rules.]
CHAPTER 56. TELECOMMUNICATIONS ASSISTANCE AND UNIVERSAL SERVICE
FUND
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 56.001. DEFINITIONS. In this chapter:
(1) "Department" means the Texas Department of Human
Services.
(2) "Designated provider" means a telecommunications
provider designated by the commission to provide services to an
uncertificated area under Subchapter F.
Sec. 56.002. CONFLICT OF PROVISIONS. If this chapter
conflicts with another provision of this title, this chapter
prevails.
SUBCHAPTER B. UNIVERSAL SERVICE FUND
Sec. 56.021. UNIVERSAL SERVICE FUND ESTABLISHED. The
commission shall adopt and enforce rules requiring [local exchange
companies] providers to establish a universal service fund to:
(1) assist telecommunications providers in providing
[basic] local [telecommunications] exchange telephone 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] local
exchange company 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]
64.005 for customer service discounts relating to
[telecommunications services] local exchange telephone service,
including outreach expenses the commission determines are
reasonable and necessary;
(7) reimburse a designated provider under Subchapter
F[; and].
[(8) reimburse a successor utility under Subchapter
G.]
Sec. 56.022. UNIFORM CHARGE. (a) The universal service
fund is funded by a statewide uniform charge payable by each
[telecommunications] provider that has access to the customer base.
(b) [A telecommunications] provider shall pay the charge in
accordance with procedures approved by the commission.
(c) The uniform charge is on services and at rates the
commission determines. In establishing the charge and the services
to which the charge will apply, the commission may not:
(1) grant an unreasonable preference or advantage to a
[telecommunications] provider;
(2) assess the charge on pay telephone service; or
(3) subject a [telecommunications] provider to
unreasonable prejudice or disadvantage.
Sec. 56.023. COMMISSION POWERS AND DUTIES. (a) The
commission shall:
(1) in a manner that assures reasonable rates for
[basic] local [telecommunications] exchange telephone service,
adopt eligibility criteria and review procedures, including a
method for administrative review, the commission finds necessary to
fund the universal service fund and make distributions from that
fund;
(2) determine which [telecommunications providers]
local exchange companies meet the eligibility criteria;
(3) determine the amount of and approve a procedure
for reimbursement to telecommunications providers of revenue lost
in providing tel-assistance service under Subchapter C;
(4) establish and collect fees from the universal
service fund necessary to recover the costs the department and the
commission incur in administering this chapter [and Chapter 57];
and
(5) approve procedures for the collection and
disbursal of the revenue of the universal service fund.
(b) The eligibility criteria must require that [a
telecommunications providers, in compliance with the commission's
quality of service requirements] local exchange companies:
(1) offer service to each consumer within the
company's certificated area and to any permanent residential or
business premises to which the company is designated to provide
services under Subchapter F; and
(2) render continuous and adequate service within the
company's certificated area and to any permanent residential or
business premises to which the company is designated to provide
services under Subchapter F.
(c) A local exchange company designated under Subchapter F
to provide services to permanent residential or business premises
within an uncertificated area and that complies with Subsection (b)
shall receive universal service fund distributions to assist the
provider in providing those services. In addition, the commission
shall designate the provider as an eligible telecommunications
carrier under 47 U.S.C. Section 214(e)(2), as amended, for those
permanent residential or business premises.
(d) The commission shall adopt rules for the administration
of the universal service fund and this chapter and may act as
necessary and convenient to administer the fund and this chapter.
[(e) A successor utility, as that term is defined by section
54.301, that is or becomes an eligible telecommunications carrier
under 47 U.S.C. Section 214(e)(2), as amended, is entitled to
receive universal service fund distributions for costs in
accordance with Subsection G.]
Sec. 56.024. REPORTS[; CONFIDENTIALITY. [(a)] The
commission may require a [telecommunications] provider to provide a
report or information necessary to assess contributions and
disbursements to the universal service fund.
[(b) A report or information is confidential and not subject
to disclosure under Chapter 552, Government Code.
[Sec. 56.025. MAINTENANCE OF RATES AND EXPANSION OF FUND
FOR CERTAIN COMPANIES. (a) In addition to the authority provided
by Section 56.021, for each local exchange company that serves
fewer than five million access lines, the commission:
[(1) may adopt a mechanism necessary to maintain
reasonable rates for local exchange telephone service; and
[(2) shall adopt rules to expand the universal service
fund in the circumstances prescribed by this section.
[(b) The commission shall implement a mechanism through the
universal service fund to replace the reasonably projected
reduction in high cost assistance revenue caused by a commission
order, rule, or policy. This subsection does not apply to an order
entered in a proceeding related to an individual company's revenue
requirements.
[(c) The commission shall implement a mechanism to replace
the reasonably projected change in revenue caused by a Federal
Communications Commission order, rule, or policy that changes:
[(1) the federal universal service fund revenue of a
local exchange company; or
[(2) costs or revenue assigned to the intrastate
jurisdiction.
[(d) The commission shall implement a mechanism to replace
the reasonably projected reduction in contribution caused by a
change of commission policy regarding intraLATA "1-plus" dialing
access. In this subsection, "contribution" means the average
intraLATA long distance message telecommunications service revenue
per minute, including intraLATA toll pooling and associated
impacts, less the average message telecommunications service cost
per minute less the average contribution from switched access
multiplied by the projected change in intraLATA "1-plus" minutes of
use.
[(e) The commission shall implement a mechanism to replace
the reasonably projected increase in costs or decrease in revenue
of the intrastate jurisdiction caused by another governmental
agency's order, rule, or policy.
[(f) A mechanism implemented under Subsection (c), (d), or
(e) must be through:
[(1) an increase in rates, if the increase would not
adversely affect universal service; or
[(2) the universal service fund.]
Sec. 56.026. UNIVERSAL SERVICE FUND DISBURSEMENTS. [(a) A
revenue requirement showing is not required for a disbursement from
the universal service fund under this subchapter.]
[(b)] (a) The commission shall make each disbursement from
the universal service fund promptly and efficiently so that a
telecommunications provider does not experience an unnecessary
cash-flow change as a result of a change in governmental policy.
[(c)] (b) Notwithstanding any other provision of this
title, if [an electing] a local exchange company reduces rates in
conjunction with receiving disbursements from the universal
service fund, the commission may not reduce the amount of those
disbursements, except that:
(1) if a local end user customer of the [electing]
local exchange company switches to another local service provider
that serves the customer entirely through the use of its own
facilities and not partially or solely through the use of unbundled
network elements, the [electing company's] disbursement [may] to
the prior local exchange company shall be reduced by the amount
attributable to that customer under Section 56.021(1); or
(2) if a local end user customer of [the electing] a
local exchange company switches to another local service provider,
and the new local service provider serves the customer partially or
solely through the use of unbundled network elements [provided by
the electing company], the [electing company's] disbursement
attributable to that customer under Section 56.021(1) may be
reduced only if the commission establishes an equitable allocation
formula for the disbursement, such that the entity providing the
unbundled network elements to the new local service provider is
fully compensated for its costs.
[(d)] (c) [Any reductions in switched access service rates
for local exchange companies with more than 125,000 access lines in
service in this state on December 31, 1998, that are made in
accordance with this section] Providers electing under chapter 58
shall not be [proportional, based on equivalent minutes of use,]
entitled to receive disbursements from the universal service fund
to offset reductions in [intraLATA toll rates, and those reductions
shall be offset by equal disbursements from the universal] access
charges. [service fund under Section 56.021(1). To the extent that
the disbursements from the universal service fund under
Section 56.021(1) for small and rural local exchange companies are
used to decrease the implicit support in intraLATA toll and
switched access rates, the decrease shall be made in a
competitively neutral manner.]
Sec. [56.028.] 56.029 TEXAS UNIVERSAL SERVICE FUND
[REIMBURSEMENT FOR CERTAIN INTRALATA SERVICE] STUDY. [On request
of an incumbent local exchange company that is not an electing
company under Chapters 58 and 59, the commission shall provide
reimbursement through the universal service fund for reduced rates
for intraLATA interexchange high capacity (1.544 Mbps) service for
entities described in Section 58.253(a). The amount of
reimbursement shall be the difference between the company's
tariffed rate for that service as of January 1, 1998, and the lowest
rate offered for that service by any local exchange company
electing incentive regulation under Chapter 58.
[SUBCHAPTER C. [REPEALED]
[In repealing Subchapter C, HB 2156 stated the following:
[SECTION 4:
[(a) Subchapter C, Chapter 56, Utilities Code, is repealed.
[(b) The tel-assistance service program under Subchapter C,
Chapter 56, Utilities Code, is discontinued. On September 1, 2001:
[(1) all funds, employees, and resources of the Public
Utility Commission of Texas and the Texas Department of Human
Services dedicated to the tel-assistance service program become
funds, employees, and resources dedicated to the lifeline service
program under Section 55.015, Utilities Code; and
[(2) all persons receiving benefits under the
tel-assistance service program shall be automatically enrolled in
the lifeline service program.
[SECTION 5:
[If a person receiving benefits under the tel-assistance
service program immediately before the effective date of this Act
receives a greater benefit under the tel-assistance service program
than]
(a) Not later than October 1, 2005, the [person will receive
under the lifeline service program, the telecommunications
provider] commission shall [continue the higher benefit] commence a
review and [may be reimbursed for the higher benefit from]
evaluation of the universal service fund. The [provider must
continue to provide that] review shall constitute a comprehensive
assessment of the appropriate use of universal service [until]
funds collected and the [person discontinues basic local service in
the exchange in which the person is receiving service] method of
collecting and distributing those funds.
(b) With respect to companies electing under section
51.004(2), by January 1, 2006, the commission shall have concluded
the following determinations and entered the appropriate enabling
orders to accomplish the following:
(1) Require such companies to provide to the
commission:
(a) the numbers of business and residential
customers subscribing only to basic local exchange
telecommunications service in each geographic area for which
universal service funds were received in 2004;
(b) the amount of state universal service funds
received by the company during 2004 to support each such customer;
and
(c) all known competitive alternative service
providers offering basic local exchange telecommunications service
to such customers.
(c) With respect to companies electing under chapters 53, 58
or 59, the study referenced in paragraph (a) above shall also
include the following:
(1) the cost of building and maintaining the network
and associated costs necessary to provide basic local exchange
telecommunications service in each geographic area for which
universal service funds were received in 2004;
(2) the in service dates of and depreciation schedule
associated with the network described in (1) above;
(3) the numbers of residential and business customers
who subscribe to only basic local exchange telecommunications
service in each such geographic area, the number of such customers
added to the network in each year for the last five years, and the
net gain or loss of such customer numbers in each year for the last
five years;
(4) identify the capital expenditures specifically
associated with the customers added to the network who subscribe to
only basic local exchange telecommunications service in each such
geographic area in each of the last five years and state separately
other incremental costs associated with providing such customers
basic local exchange telecommunications service.
(5) an accounting of the use of the universal service
funds received in each geographic area in each of the three previous
years;
(6) each known competitive alternative service
provider actually offering basic local exchange telecommunications
service to residential and business customers in such geographic
areas;
(7) the incremental cost, in relation to the costs
identified in subparagraph (1) above, to deploy broadband service
in each geographic area identified by the commission for which
universal service funds are received, identifying the incremental
costs specific to each broadband technology determined by the
commission to be a viable alternative technology to deliver
broadband services.
(8) such other information as will enable the
Commission to determine the actual cost which is unrecovered
through revenues to the ILEC, to build, expand, maintain and
operate the network necessary to provide basic local
telecommunications service in those areas currently receiving USF.
(d) The commission may group companies as it deems
appropriate for purposes of efficiency and may permit companies to
share the cost of developing data the commission determines is
necessary to discharge its responsibilities under this section.
(e) Not later than September 1, 2006 the commission shall
conclude the study and make the following determinations:
(1) whether any company has received USF funds which,
when combined with revenues to the ILEC from that USF supported
area, exceed its costs in such area of providing basic local
telecommunications service as determined by the Commission by more
than 5% in two out of the last three years;
(2) whether any company has used USF funds for any
purpose other than providing basic local telecommunications in the
geographic area for which the funds were authorized.
If either (1) or (2) above are found, the Commission shall reduce
the overall fund and the funds available to each company to the
amount necessary to cover only the costs as determined by the
Commission.
(f) The commission shall deliver its report on the results
of this study to the legislature on or before September 1, 2006,
along with the commission's recommendations concerning changes in
universal service funding including changes in how universal
service funds should be collected, how they should be dispersed and
the purposes for which they should be used.
SUBCHAPTER D. STATEWIDE TELECOMMUNICATIONS RELAY ACCESS SERVICE
Sec. 56.101. PURPOSE. The purpose of this subchapter is to
provide for the uniform and coordinated provision by one
telecommunications carrier of a statewide telecommunications relay
access service for persons with an impairment of hearing or speech.
Sec. 56.102. TELECOMMUNICATIONS RELAY ACCESS SERVICE. (a)
The commission shall adopt and enforce rules establishing a
statewide telecommunications relay access service for the use of a
person with an impairment of hearing or speech.
(b) The commission rules shall provide that the service
must:
(1) use specialized communications equipment, such as
a telecommunications device for the deaf, and operator
translations; and
(2) meet the criteria provided by Sections 56.103,
56.104, and 56.105.
Sec. 56.103. TELECOMMUNICATIONS RELAY ACCESS SERVICE
REQUIREMENTS. (a) The telecommunications relay access service
shall provide a person with an impairment of hearing or speech with
access to the telecommunications network in this state equivalent
to the access provided other customers.
(b) The service consists of:
(1) switching and transmission of the call;
(2) live or automated verbal and print translations of
communications between a person with an impairment of hearing or
speech who uses a telecommunications device for the deaf or a
similar automated device and a person who does not have such
equipment; and
(3) other service enhancements proposed by the carrier
and approved by the commission.
Sec. 56.104. TELECOMMUNICATIONS RELAY ACCESS SERVICE
CHARGES. (a) For a call made using the telecommunications relay
access service, the person calling or called:
(1) may not be charged for a call that originates and
terminates in the same local calling area; and
(2) shall pay one-half of the total charges
established by contract with the commission for intrastate
interexchange calls.
(b) Charges related to providing the service that, under
Subsection (a), are not charged to a person calling or called shall
be funded from the universal service fund, as specified by the
service provider's contract with the commission.
(c) A local exchange company may not impose an interexchange
carrier access charge on a call using the service that originates
and terminates in the same local calling area.
(d) A local exchange company shall provide billing and
collection services for the service at just and reasonable rates.
Sec. 56.105. TRIAL SERVICE COSTS AND DESIGN INFORMATION.
If the commission orders a local exchange company to provide for a
trial telecommunications relay access service for persons with an
impairment of hearing or speech, all pertinent costs and design
information from the trial must be made available to the public.
Sec. 56.106. TELECOMMUNICATIONS RELAY ACCESS SERVICE
ASSESSMENTS. (a) The commission shall set appropriate assessments
for all telecommunications [utilities] providers to fund the
telecommunications relay access service.
(b) In setting an assessment, the commission shall
consider:
(1) the aggregate calling pattern of service users;
and
(2) any other factor the commission finds appropriate
and in the public interest.
(c) The commission shall:
(1) review the assessments annually; and
(2) adjust the assessments as appropriate.
Sec. 56.107. UNIVERSAL SERVICE FUND SURCHARGE. (a) A
telecommunications [utility] provider may recover the utility's
universal service fund assessment for the telecommunications relay
access service through a surcharge added to the utility customers'
bills.
(b) The commission shall specify how each
telecommunications [utility] provider is to determine the amount of
the surcharge.
(c) If a telecommunications [utility] provider imposes the
surcharge, the bill shall list the surcharge as the "universal
service fund surcharge."
Sec. 56.108. SELECTION OF TELECOMMUNICATIONS RELAY ACCESS
SERVICE CARRIER. (a) The commission shall select one
telecommunications carrier to provide the statewide
telecommunications relay access service.
(b) The commission shall make a written award of the
contract to the telecommunications carrier whose proposal is the
most advantageous to this state, considering:
(1) price;
(2) the interests of the community of persons with an
impairment of hearing or speech in having access to a high quality
and technologically advanced telecommunications system; and
(3) any other factor listed in the commission's
request for proposals.
(c) The commission shall consider each proposal in a manner
that does not disclose the contents of the proposal to a
telecommunications carrier making a competing proposal.
(d) The commission's evaluation of a telecommunications
carrier's proposal shall include the:
(1) charges for the service;
(2) service enhancements proposed by the carrier;
(3) technological sophistication of the network
proposed by the carrier; and
(4) date proposed for beginning the service.
Sec. 56.1085. SPECIAL FEATURES FOR RELAY ACCESS SERVICE.
(a) The commission may contract for a special feature for the
state's telecommunications relay access service if the commission
determines:
(1) the feature will benefit the communication of
persons with an impairment of hearing or speech;
(2) installation of the feature will be of benefit to
the state; and
(3) the feature will make the relay access service
available to a greater number of users.
(b) If the carrier selected to provide the
telecommunications relay access service under Section 56.108 is
unable to provide the special feature at the best value to the
state, the commission may make a written award of a contract for a
carrier to provide the special feature to the telecommunications
carrier whose proposal is most advantageous to the state,
considering:
(1) the factors provided by Section 56.108(b); and
(2) the past performance, demonstrated capability,
and experience of the carrier.
(c) The commission shall consider each proposal in a manner
that does not disclose the contents of the proposal to a
telecommunications carrier making a competing proposal.
(d) The commission's evaluation of a telecommunications
carrier's proposal shall include the considerations provided by
Section 56.108(d).
Sec. 56.109. COMPENSATION OF CARRIER. (a) The
telecommunications carrier selected to provide the
telecommunications relay access service under Section 56.108 or the
carrier selected to provide a special feature for the
telecommunications relay access service under Section 56.1085
shall be compensated at rates and on terms provided by the carrier's
contract with the commission.
(b) The compensation may include:
(1) a return on the investment required to provide the
service; and
(2) compensation for unbillable or uncollectible
calls placed through the service.
(c) Compensation for unbillable or uncollectible calls is
subject to a reasonable limitation determined by the commission.
Sec. 56.110. ADVISORY COMMITTEE. (a) An advisory
committee to assist the commission in administering this subchapter
is composed of the following persons appointed by the commission:
(1) two persons with disabilities that impair the
ability to effectively access the telephone network other than
disabilities described by Subdivisions (2)-(7);
(2) one deaf person recommended by the Texas Deaf
Caucus;
(3) one deaf person recommended by the Texas
Association of the Deaf;
(4) one person with a hearing impairment recommended
by Self-Help for the Hard of Hearing;
(5) one person with a hearing impairment recommended
by the American Association of Retired Persons;
(6) one deaf and blind person recommended by the Texas
Deaf/Blind Association;
(7) one person with a speech impairment and one person
with a speech and hearing impairment recommended by the Coalition
of Texans with Disabilities;
(8) two representatives of telecommunications
[utilities] providers, one representing a nonlocal exchange
[utility] company and one representing a local exchange company,
chosen from a list of candidates provided by the Texas Telephone
Association;
(9) two persons, at least one of whom is deaf, with
experience in providing relay services recommended by the Texas
Commission for the Deaf and Hard of Hearing; and
(10) two public members recommended by organizations
representing consumers of telecommunications services.
(b) Members of the advisory committee serve two-year terms.
A member whose term has expired shall continue to serve until a
qualified replacement is appointed.
Sec. 56.111. ADVISORY COMMITTEE DUTIES. The advisory
committee shall:
(1) monitor the establishment, administration, and
promotion of the statewide telecommunications relay access
service;
(2) advise the commission in pursuing a service that
meets the needs of persons with an impairment of hearing or speech
in communicating with other telecommunications services users; and
(3) advise the commission and the Texas Commission for
the Deaf and Hard of Hearing, at the request of either commission,
regarding any issue related to the specialized telecommunications
assistance program established under Subchapter E, including:
(A) devices or services suitable to meet the
needs of persons with disabilities in communicating with other
users of telecommunications services; and
(B) oversight and administration of the program.
Sec. 56.112. ADVISORY COMMITTEE SUPPORT AND COSTS. (a) The
commission shall provide to the advisory committee:
(1) clerical and staff support; and
(2) a secretary to record committee meetings.
(b) The costs associated with the advisory committee shall
be reimbursed from the universal service fund.
Sec. 56.113. ADVISORY COMMITTEE COMPENSATION AND EXPENSES.
A member of the advisory committee serves without compensation but
is entitled to reimbursement at rates established for state
employees for travel and per diem incurred in the performance of the
member's official duties.
SUBCHAPTER E. SPECIALIZED TELECOMMUNICATIONS ASSISTANCE PROGRAM
Sec. 56.151. SPECIALIZED TELECOMMUNICATIONS ASSISTANCE
PROGRAM. The commission and the Texas Commission for the Deaf and
Hard of Hearing by rule shall establish a specialized
telecommunications assistance program to provide financial
assistance to individuals with disabilities that impair the
individuals' ability to effectively access the telephone network to
assist the individuals with the purchase of basic specialized
equipment or services to provide the individuals with telephone
network access that is functionally equivalent to that enjoyed by
individuals without disabilities. The agencies may adopt joint
rules that identify devices and services eligible for vouchers
under the program.
Sec. 56.152. ELIGIBILITY. The Texas Commission for the
Deaf and Hard of Hearing by rule shall prescribe eligibility
standards for individuals, including deaf individuals and
individuals who have an impairment of hearing or speech, to receive
an assistance voucher under the program. To be eligible, an
individual must be a resident of this state with a disability that
impairs the individual's ability to effectively access the
telephone network.
Sec. 56.153. VOUCHERS. (a) The Texas Commission for the
Deaf and Hard of Hearing shall determine a reasonable price for a
basic specialized telecommunications device that permits, or basic
specialized services that permit, telephone network access and
distribute to each eligible applicant a voucher that guarantees
payment of that amount to a distributor of new specialized
telecommunications devices described by Section 56.151 or to a
provider of services described by that section. The Texas
Commission for the Deaf and Hard of Hearing may issue a voucher for
a service only if the service is less expensive than a device
eligible for a voucher under the program to meet the same need.
(b) A voucher must have the value printed on its face. The
individual exchanging a voucher for the purchase of a specialized
telecommunications device or service is responsible for payment of
the difference between the voucher's value and the price of the
device or service.
(c) The commission and the Texas Commission for the Deaf and
Hard of Hearing by rule shall provide that a distributor of devices
or a provider of services will receive not more than the full price
of the device or service if the recipient of a voucher exchanges the
voucher for a device or service that the distributor or provider
sells for less than the voucher's value.
(d) An individual who has exchanged a voucher for a
specialized telecommunications device is not eligible to receive
another voucher before the fifth anniversary of the date the
individual exchanged the previously issued voucher unless, before
that date, the recipient develops a need for a different type of
telecommunications device or service under the program because the
recipient's disability changes or the recipient acquires another
disability.
(e) Except as provided by rules adopted under this
subsection, an individual is not eligible for a voucher if the Texas
Commission for the Deaf and Hard of Hearing has issued a voucher for
a device or service to another individual with the same type of
disability in the individual's household. The Texas Commission for
the Deaf and Hard of Hearing by rule may provide for financially
independent individuals who reside in a congregate setting to be
eligible for a voucher regardless of whether another individual
living in that setting has received a voucher.
(f) The Texas Commission for the Deaf and Hard of Hearing
shall determine eligibility of each person who files an application
for a voucher and issue each eligible applicant an appropriate
voucher.
(g) The Texas Commission for the Deaf and Hard of Hearing
shall maintain a record regarding each individual who receives a
voucher under the program.
(h) The Texas Commission for the Deaf and Hard of Hearing
shall deposit money collected under the program to the credit of the
universal service fund.
Sec. 56.154. COMMISSION DUTIES. (a) Not later than the
45th day after the date the commission receives a voucher a
telecommunications device distributor presents for payment or a
voucher a telecommunications service provider presents for
payment, the commission shall pay to the distributor or service
provider the lesser of the value of a voucher properly exchanged for
a specialized telecommunications device or service or the full
price of the device or service for which a voucher recipient
exchanges the voucher. The payments must be made from the universal
service fund.
(b) The commission may investigate whether the presentation
of a voucher for payment represents a valid transaction for a
telecommunications device or service under the program. The Texas
Commission for the Deaf and Hard of Hearing shall cooperate with and
assist the commission in an investigation under this subsection.
(c) Notwithstanding Section 56.153(a), the commission may:
(1) delay payment of a voucher to a distributor of
devices or a service provider if there is a dispute regarding the
amount or propriety of the payment or whether the device or service
is appropriate or adequate to meet the needs of the person to whom
the Texas Commission for the Deaf and Hard of Hearing issued the
voucher until the dispute is resolved;
(2) provide that payment of the voucher is conditioned
on the return of the payment if the device is returned to the
distributor or if the service is not used by the person to whom the
voucher was issued; and
(3) provide an alternative dispute resolution process
for resolving a dispute regarding a subject described by
Subdivision (1) or (2).
Sec. 56.155. RECOVERY OF SPECIALIZED TELECOMMUNICATIONS
DEVICE ASSISTANCE PROGRAM SURCHARGE. (a) The commission shall
allow a telecommunications [utility] provider to recover the
universal service fund assessment related to the specialized
telecommunications assistance program through a surcharge added to
the [utility'] provider's customers' bills.
(b) The commission shall specify how each [utility]
telecommunications provider must determine the amount of the
surcharge and by rule shall prohibit a [utility] telecommunications
provider from recovering an aggregation of more than 12 months of
assessments in a single surcharge. The rules must require a
[utility] provider to apply for approval of a surcharge before the
91st day after the date the period during which the aggregated
surcharges were assessed closes. If a [utility] provider chooses
to impose the surcharge, the [utility] provider shall include the
surcharge in the "universal service fund surcharge[: listing as
provided by Section 3.604(c) of this Act].
Sec. 56.156. PROMOTION OF PROGRAM. The Texas Commission
for the Deaf and Hard of Hearing may promote the program established
under this subchapter by means of participation in events,
advertisements, pamphlets, brochures, forms, pins, or other
promotional items or efforts that provide contact information for
persons interested in applying for a voucher under the program.
SUBCHAPTER F. SERVICE TO UNCERTIFICATED AREA
Sec. 56.201. DEFINITION. In this subchapter, "permanent
residential or business premises" means a premises that has
permanent facilities for water, wastewater, and electricity.
Sec. 56.202. DESIGNATION OF PROVIDER. (a) Notwithstanding
Section 54.001, the commission may designate a [telecommunications
provider under this section] local exchange company to provide
voice-grade services to permanent residential or business premises
that are not included within the certificated area of a [holder of a
certificate of convenience and necessity] local exchange company.
(b) The commission may designate a provider only if the
provider is otherwise eligible to receive universal service funds
under Section 56.023(b).
Sec. 56.203. PETITION FOR SERVICE. Persons residing in
permanent residential premises or owners of permanent residential
or business premises that are not included within the certificated
area of a holder of a certificate [of convenience and necessity] to
provide local exchange telephone service may petition the
commission to designate a telecommunications provider to provide to
those premises voice-grade services supported by state and federal
universal service support mechanisms.
Sec. 56.204. CONTENTS OF PETITION. [(a)] A petition for
designation of a service provider must:
[(1)] (a) state with reasonable particularity the
locations of the permanent residential or business premises for
which the petitioners are requesting service;
[(2)] (b) establish that those locations are within
reasonable proximity to one another so that the petitioners possess
a sufficient community of interest to warrant the designation of a
provider and the expenditure of universal service funds necessary
to establish service;
[(3)] (c) except as provided by Subsection (b), be
signed by at least five persons who:
[(A)] (1) are not members of the same household;
[(B)] (2) reside in the permanent residential
premises or are the owners of the permanent residential or business
premises for which service is sought and that are not located within
a certificated area;
[(C)] (3) want service to those premises; and
[(D)] (4) commit to pay the aid to construction
charges for service to those premises as determined by the
commission;
[(4)] (d) nominate as potential providers of service
not more than five telecommunications providers serving territory
that is contiguous to the location of the permanent residential or
business premises using wireless or wireline facilities, resale, or
unbundled network elements; and
[(5)] (e) include as an attachment or an appendix
documentation indicating the required residence or ownership,
including a state-issued license or identification, tax records,
deeds, or voter registration materials.
[(b) The commission may accept a petition that is signed by
fewer than five persons if a petitioner provides an affidavit
stating that the petitioners have taken all reasonable steps to
secure the signatures of the residents of permanent residential
premises or the owners of permanent residential or business
premises within reasonably close proximity to the petitioning
premises who are not receiving telephone service when the petition
is filed and who want telephone service initiated.]
Sec. 56.205. HEARING. If the commission finds that the
petition complies with Section 56.204, the commission shall hold an
evidentiary hearing to determine if a telecommunications provider
is willing to be designated to provide service to those premises or,
if a provider is not willing to be designated, to determine the
telecommunications provider that is best able to serve those
premises under the criteria prescribed by this subchapter.
Sec. 56.206. DENIAL OF PETITION. The commission shall deny
a petition if the commission determines that services cannot be
extended to the petitioning premises at a reasonable cost. In
making that determination, the commission shall consider all
relevant factors, including:
(1) the original cost to be incurred by a designated
provider to deploy service to the petitioning premises, and the
effect of reimbursement of those costs on the state universal
service fund;
(2) the number of access lines requested by the
petitioners for the petitioning premises;
(3) the size of the geographic territory in which the
petitioning premises are included;
(4) the proximity of existing facilities and the
existence of a preferred designated provider under Section 56.213;
and
(5) any technical barriers to the provision of
service.
Sec. 56.207. ORDER. In any order granting a petition, the
commission shall:
(1) approve the facilities to be deployed based on the
estimated costs of deployment submitted in accordance with Section
56.208(a);
(2) approve the amount of original cost of deployment
to be recovered from the state universal service fund and the terms
of original cost recovery under Section 56.209; and
(3) approve the recurring cost recovery under Section
56.209, including the monthly rate for services and the monthly per
line fee to be recovered from the state universal service fund under
that section.
Sec. 56.208. DESIGNATION OF PROVIDER. (a) In determining
which nominated telecommunications provider the commission will
designate to provide service to the petitioning premises, the
commission shall consider the relative estimated cost to be
incurred by contiguous providers to serve the petitioning premises
and give preference to the provider having the least cost
technology that meets the quality of service standards prescribed
by the commission applicable to that provider.
(b) The commission may not designate a telecommunications
provider to serve the petitioning premises unless the premises are
located in an area that is contiguous to an area in which the
telecommunications provider has previously been designated
eligible to receive universal service funding under Section
56.023(b). This subsection does not apply if the commission
designates the provider after the provider voluntarily agrees to
provide service to the petitioning premises.
Sec. 56.209. RECOVERY OF COSTS. (a) If, after a hearing,
the commission designates a telecommunications provider to serve
the petitioning premises, the commission shall permit the
designated provider to recover from the state universal service
fund the provider's actual costs of providing service to the
premises, including the provider's original cost of deployment and
actual recurring costs.
(b) The reimbursable original cost of deploying facilities
to the petitioning premises is the original cost of the
telecommunications provider's facilities installed in, or upgraded
to permit the provision of service to, the petitioning premises as
determined by the financial accounting standards applicable to the
provider, including an amount for the recovery of all costs that are
typically included as capital costs for accounting purposes, that
are not recovered through an aid to construction charge assessed to
the petitioners. The final order permitting or requiring the
designated provider to provide service to the petitioning premises
shall ensure that all the original cost of the provider 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 third anniversary of the date of
the order, for a deployment with an original cost of $1 million or
less;
(2) not later than the fifth anniversary of the date of
the order, for a deployment with an original cost of more than $1
million, but not more than $2 million; and
(3) not later than the seventh anniversary of the date
of the order, for a deployment with an original cost of more than $2
million.
(c) The designated provider shall recover the provider's
actual recurring costs of service, including maintenance and the
ongoing operational costs of providing service after deployment of
the facilities to the petitioning premises and a reasonable
operating margin, from:
(1) the monthly rate charged the customer; and
(2) a monthly per line state universal service fund
payment in an amount equal to the unrecovered recurring costs
incurred in providing service divided by the access lines served in
the petitioning premises.
(d) The monthly per line fee established under Subsection
(c) is in addition to the universal service funds associated with
the recovery of the original cost of deployment and interest
authorized by Subsection (b) and in addition to the universal
service funds the designated provider receives to provide service
in other areas of this state.
(e) The commission may not authorize or require any services
to be provided to petitioning premises under this subchapter during
a fiscal year if the total amount of required reimbursements of
actual original cost of deployment to all approved petitioning
premises under this section, together with interest, including
obligations for reimbursements from preceding years, would equal an
amount that exceeds 0.02 percent of the annual gross revenues
reported to the state universal service fund during the preceding
fiscal year.
Sec. 56.210. AID TO CONSTRUCTION CHARGE; CONTRACT FOR
SERVICES. The commission shall establish a reasonable aid to
construction charge, not to exceed $3,000, to be assessed each
petitioner. The commission may not require a designated provider to
begin construction until:
(1) each petitioner has paid or executed an agreement
acceptable to the provider to pay the aid to construction charge;
and
(2) each petitioner has executed an assignable
agreement for subscription to basic local service to the
petitioning premises from the designated provider for a period at
least equal to the period during which the provider will receive
reimbursement for the original cost of deployment under Section
56.209(b).
Sec. 56.211. PERMANENT PREMISES REQUIRED. A
telecommunications provider may not under any circumstances be
required to extend service to a location that is not a permanent
residential or business premises or be required to provide service
to the petitioning premises before the 180th day after the date the
provider was designated to provide service to the petitioning
premises.
Sec. 56.212. SUBSEQUENT RELATED PETITIONS. (a) If the
commission approves a petition requesting service, residents of
permanent residential premises or owners of permanent residential
or business premises in reasonable proximity to the premises that
were the subject of an approved petition who did not sign the prior
petition requesting service are not entitled to receive service
under this subchapter until the fifth anniversary of the date the
prior petition was filed unless the residents or owners file a new
petition under this subchapter and agree to pay aid to construction
charges on the same terms as applicable to the prior petitioners.
(b) The designated provider shall receive reimbursement for
the original cost of deployment and actual recurring costs of
providing service to those additional residents in the same manner
as the provider received reimbursement of those costs in relation
to the prior petitioners. The provider may not receive
reimbursement for the original cost of deployment under a
subsequent petition if the provider previously received complete
reimbursement for those costs from the state universal service
fund. If the state universal service fund has completely
reimbursed the original cost of deployment as provided by this
subchapter, each subsequent petitioner must pay into the state
universal service fund an amount equal to the aid to construction
charge paid by each prior petitioner.
Sec. 56.213. PREFERRED PROVIDER. (a) A provider who is
designated to serve petitioning premises located within an
uncertificated area under this subchapter is the preferred provider
for any permanent residential or business premises in reasonable
proximity to those petitioning premises for later petitions filed
under Section 56.212.
(b) A preferred designated provider is entitled to an
opportunity for a hearing under Section 56.205 on a petition filed
under Section 56.203.
Sec. 56.214. CERTIFICATE NOT AMENDED. The designation of a
provider to serve permanent residential or business premises within
an uncertificated area under this subchapter does not have the
effect of:
(1) amending the boundaries of the provider's
certificate to provide local exchange service; or
(2) imposing carrier of last resort responsibilities
on the provider.
[SUBCHAPTER G. FUNDING FOR CERTAIN TELECOMMUNICATIONS UTILITIES
[Sec. 56.251. DEFINITION. In this subchapter, "successor
utility" has the meaning assigned by Section 54.301.
[Sec. 56.252. TELECOMMUNICATIONS UTILITIES ELIGIBLE TO
RECEIVE FUNDING UNDER THIS SUBCHAPTER. A telecommunications
utility may receive funding under this subchapter only if:
[(1) the telecommunications utility is eligible to
receive universal service funding under Section 56.023(b); and
[(2) the telecommunications utility is designated as a
successor utility under Section 54.303.
[Sec. 56.253. DETERMINATION OF SUCCESSOR UTILITY'S COSTS TO
BE RECOVERED. (a) At the time the commission designates the
successor utility under Section 54.303, the commission shall
determine the extent to which the utility should recover the costs
the utility will incur in accepting and establishing service to the
affected service area.
[(b) In making the determination under Subsection (a), the
commission shall consider relevant information, 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 service areas and to comply with commission quality of
service standards.
[Sec. 56.254. RECOVERY OF COSTS. The commission order
designating the successor utility under Section 54.303 shall
authorize the utility to recover the costs determined under Section
56.253. The costs may 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 no 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.]
CHAPTER 57. [DISTANCE LEARNING AND OTHER ADVANCED
SERVICES] DEPLOYMENT INCENTIVES
SUBCHAPTER A. [GENERAL] BROADBAND [PROVISIONS] DEPLOYMENT
Sec. 57.001. [CONFLICT] STATEMENT OF [PROVISIONS] STATE
GOAL. (a) It is the goal of this state to facilitate and promote
the deployment of an advanced broadband infrastructure to spur
economic development throughout this state. This state should be
among the leaders in achieving this objective.
(b) The primary means of achieving this goal is through
encouraging private investment in this state's broadband
infrastructure by creating incentives for that investment and
promoting the development of competition.
(c) The most effective way to bring the benefits of an
advanced broadband network infrastructure to communities in this
state is through innovation and competition among all the state's
communications providers. Competition will provide residents of
this state with a choice of providers and will drive technology
deployment, innovation, service quality, and cost-based prices as
competing firms try to satisfy customer needs.
Sec. 57.002. ENCOURAGEMENT OF BROADBAND NETWORK DEPLOYMENT
FOR ALL TEXANS. [If this chapter conflicts with another]
(1) Notwithstanding any other provision of this title, [this
chapter prevails.] beginning September 1, 2005, an incumbent local
exchange company electing pursuant to Section 51.004 (2):
(a) shall, on a bona fide retail request for those
services, provide in rural areas of this state served by the
company, advanced services that are reasonably comparable to the
advanced services it provides in non-rural areas of the state. The
company shall offer the advanced services:
(i) at prices, terms, and conditions that are
reasonably comparable to the prices, terms, and conditions for
similar advanced services provided by the company in non-rural
areas; and
(ii) within 15 months after the bona fide request
of a minimum of 50 customers for those advanced services.
(b) Notwithstanding any other provision of this title,
such incumbent local exchange company on a bona fide retail request
for those services, shall offer caller identification service and
custom calling features in rural areas served by the company. The
company shall offer the services:
(i) at prices, terms, and conditions reasonably
comparable to the company's prices, terms, and conditions for
similar services in urban areas; and
(ii) within 15 months after the bona fide request
for those services.
(c) This section may not be construed to require such
incumbent local exchange company to:
(i) begin providing services in a rural area in
which the company does not provide local exchange telephone
service; or
(ii) provide a service in a rural area of this
state unless the company provides the service in non-rural areas of
this state.
(d) For purposes of this section, a rural area is any
community located in a county not included within any Metropolitan
Statistical Area (MSA) boundary, as defined by the United States
Office of Management and Budget, and any community within an MSA
with a population of 20,000 or fewer not adjacent to the primary MSA
city.
(e) Notwithstanding any other provision of this title,
beginning September 1, 2005, such incumbent local exchange company
which deploys broadband networks and provides advanced services
within a non-rural area shall deploy such networks and provide such
services throughout that non-rural area at reasonably comparable
prices, terms and conditions. Beginning September 1, 2005, such
incumbent local exchange company shall submit to the governing body
of each such non-rural area its construction plans for any
deployment or expansion of its broadband network, including maps
and a build-out schedule showing completion of the build-out
throughout the non-rural area within four years of the commencement
of the construction.
(2) In furtherance of the goals and policies of this State
set forth in this title to encourage the deployment of competitive
broadband networks through private investment, no provider,
utility, agency or political subdivision of the State of Texas,
either directly or through a separate enterprise entity such as a
municipally-owned utility, may:
(a) enforce, impose or permit the imposition on such
networks or such broadband network providers of any regulation,
fee, tax, assessment or other form of economic burden greater than
is imposed on networks carrying voice or other services, including
cable television and other video services, whichever is lower, and
in no event shall such networks or such broadband network providers
be subject to multiple assessments for the carriage of multiple
services over a single network; or
(b) enforce or impose on a broadband network provider
any regulation, fee, tax, assessment or other economic burden in
connection with its services, including intrastate services, which
originate on such provider's broadband network, greater than is
imposed in connection with functionally-similar services over
which federal jurisdiction has been asserted for any purpose,
including but not limited to voice over the internet (VoIP)
services.
(3) Notwithstanding any other provision of this title, the
commission has all jurisdiction necessary to enforce this section,
including authority to determine compliance with these provisions,
remedy noncompliance, impose fines up to $25,000 per day for
failure to comply, and redress complaints from competing providers
negatively impacted by such noncompliance. A party aggrieved by
any entity's failure to comply with this section may also, or in the
alternative, pursue private remedies, including damages and
injunctive relief, in an appropriate court of law.
SUBCHAPTER B. [DISTANCE LEARNING AND INFORMATION SHARING
[Sec. 57.021. DEFINITIONS. In this subchapter:
[(1) "Distance learning" means an instruction,
learning, or training resource, including video, data, voice, or
electronic information, that is:
[(A) used by an educational institution
predominantly for instruction, learning, or training; and
[(B) transmitted from a site to one or more other
sites by a telecommunications service.
[(2) "Educational institution" includes:
[(A) an accredited primary or secondary school;
[(B) an institution of higher education as
defined by Section 61.003, Education Code;
[(C) a private institution of higher education
accredited by a recognized accrediting agency as defined by Section
61.003, Education Code;
[(D) the Texas Education Agency and its
successors and assigns;
[(E) a regional education service center
established and operated in accordance with Chapter 8, Education
Code; or
[(F) the Texas Higher Education Coordinating
Board and its successors and assigns.
[(3) "Library" means:
[(A) a public library or regional library system
as defined by Section 441.122, Government Code; or
[(B) a library operated by an institution of
higher education or a school district.
[Sec. 57.022. REDUCED RATES FOR DISTANCE LEARNING OR
INFORMATION SHARING SERVICES. (a) The commission by rule shall
require a dominant carrier to file a tariff that includes a reduced
rate for a telecommunications service the commission finds is
directly related to:
[(1) a distance learning activity that is or could be
conducted by an educational institution in this state; or
[(2) an information sharing program that is or could
be conducted by a library in this state.
[(b) The commission rules shall specify:
[(1) each telecommunications service to which
Subsection (a) applies;
[(2) the process for an educational institution or
library to qualify for a reduced rate;
[(3) the date by which a dominant carrier is required
to file a tariff;
[(4) guidelines and criteria that require the services
and reduced rates to further the goals prescribed by Section
57.023; and
[(5) any other requirement or term that the commission
determines to be in the public interest.
[(c) The commission is not required to determine the long
run incremental cost of providing a service before approving a
reduced rate for the service.
[(d) Until cost determination rules are developed and the
rates established under this section are changed as necessary to
ensure proper cost recovery, the reduced rates established by the
commission shall be equal to 75 percent of the otherwise applicable
rate.
[(e) After the commission develops cost determination rules
for telecommunications services generally, the commission shall
ensure that a reduced rate approved under this section:
[(1) recovers service-specific long run incremental
costs; and
[(2) avoids subsidizing an educational institution or
a library.
[Sec. 57.023. SERVICE AND RATE REQUIREMENTS. The services
and reduced rates must be designed to:
[(1) encourage the development and offering of:
[(A) distance learning activities by educational
institutions; and
[(B) information sharing programs of libraries;
[(2) meet the:
[(A) distance learning needs identified by the
educational community; and
(B) information sharing needs identified by
libraries; and
[(3) recover the long run incremental costs of
providing the services, to the extent those costs can be
identified, to avoid subsidizing an educational institution or a
library.
[Sec. 57.024. TARIFF FILINGS. A tariff filed by a dominant
carrier under Section 57.022:
[(1) may concern the implementation of this subchapter
only;
[(2) is not a rate change under Subchapter C, Chapter
53; and
[(3) does not affect the carrier's other rates or
services.
[Sec. 57.025. CHANGES IN RATE PROGRAM. (a) An educational
institution, library, or dominant carrier may request the
commission to:
[(1) provide for a reduced rate for a service that:
[(A) is directly related to a distance learning
activity or an information sharing program; and
[(B) is not covered by commission rules;
[(2) change a rate;
[(3) amend a tariff; or
[(4) amend a commission rule.
[(b) The commission shall take the action requested under
Subsection (a) if the commission determines the action is
appropriate.
[SUBCHAPTER C.] TELECOMMUNICATIONS INFRASTRUCTURE FUND
Sec. 57.041. FINDINGS AND POLICY. (a) The legislature
finds that commercial mobile service providers:
(1) benefit from the public telecommunications
network by the ability to originate and terminate calls that
traverse the mobile and cellular network; and
(2) will benefit by the advancement of the public
telecommunications network through projects funded under this
subchapter.
(b) It is the policy of this state that commercial mobile
service providers contribute an appropriate amount to the
telecommunications infrastructure fund.
Sec. 57.042. DEFINITIONS. In this subchapter:
(1) "Ambulatory health care center" means a health
care clinic or an association of such a clinic that is:
(A) exempt from federal income taxation under
Section 501(a), Internal Revenue Code of 1986, as amended, as an
organization described by Section 501(c)(3), as amended; and
(B) funded wholly or partly by a grant under 42
U.S.C. Section 254b, 254c, or 256, as amended.
(2) "Board" means the telecommunications
infrastructure fund board.
(3) "Commercial mobile service provider" means a
provider of commercial mobile service as defined by Section 332(d),
Communications Act of 1934 (47 U.S.C. Section 151 et seq.), Federal
Communications Commission rules, and the Omnibus Budget
Reconciliation Act of 1993 (Pub. L. No. 103-66).
(4) "Fund" means the telecommunications
infrastructure fund.
(5) "Institution of higher education" means:
(A) an institution of higher education as defined
by Section 61.003, Education Code; or
(B) a private or independent institution of
higher education as defined by Section 61.003, Education Code.
(6) "Library" means:
(A) a public library or regional library system
as those terms are defined by Section 441.122, Government Code; or
(B) a library operated by an institution of
higher education or a school district; or
(C) a library operated by a nonprofit corporation
as defined by Section 441.221(3), Government Code.
(7) "Public not-for-profit health care facility"
means a rural or regional hospital or other entity such as a rural
health clinic that:
(A) is supported by local or regional tax
revenue;
(B) is a certified not-for-profit health
corporation, under federal law; or
(C) is an ambulatory health care center.
(8) "School district" includes an independent school
district, a common school district, and a rural high school
district.
(9) "Public school" means a public elementary or
secondary school, including an open-enrollment charter school, a
home-rule school district school, and a school with a campus or
campus program charter.
(10) "Taxable telecommunications receipts" means
taxable telecommunications receipts reported under Chapter 151,
Tax Code.
(11) "Telehealth service" means a health service,
other than a telemedicine medical service, delivered by a licensed
or certified health professional acting within the scope of the
health professional's license or certification who does not perform
a telemedicine medical service that requires the use of advanced
telecommunications technology, other than by telephone or
facsimile, including:
(A) compressed digital interactive video, audio,
or data transmission;
(B) clinical data transmission using computer
imaging by way of still-image capture and store and forward; and
(C) other technology that facilitates access to
health care services or medical specialty expertise.
(13) "Telemedicine medical service" means a health
care service initiated by a physician or provided by a health
professional acting under physician delegation and supervision for
purposes of patient assessment by a health professional, diagnosis
or consultation by a physician, treatment, or the transfer of
medical data, that requires the use of advanced telecommunications
technology, other than by telephone or facsimile, including:
(A) compressed digital interactive video, audio,
or data transmission;
(B) clinical data transmission using computer
imaging by way of still-image capture; and
(C) other technology that facilitates access to
health care services or medical specialty expertise.
(2003 Amendments: HB 3506 § 2 (137).)
(12) "Telepharmacy system" means a system that
monitors the dispensing of prescription drugs and provides for
related drug use review and patient counseling services by an
electronic method, including the use of the following types of
technology:
(A) audio and video;
(B) still image capture; and
(C) store and forward.
Sec. 57.043. TELECOMMUNICATIONS INFRASTRUCTURE FUND AND
ACCOUNTS. (a) The telecommunications infrastructure fund is an
account in the general revenue fund. The telecommunications
infrastructure fund account is composed of the public schools
account and the qualifying entities account. Section 403.095,
Government Code, does not apply to the telecommunications
infrastructure fund account or to the accounts that compose the
fund account.
(b) The public schools account and qualifying entities
account are financed by an annual assessment imposed as prescribed
by Section 57.048 on each [telecommunications utility and]
provider, including commercial mobile service [provider]
providers, doing business in this state.
(c) Money in the fund may be appropriated only for a use
consistent with the purposes of this subchapter.
Sec. 57.044. TELECOMMUNICATIONS INFRASTRUCTURE FUND BOARD.
(a) The telecommunications infrastructure fund board consists of:
(1) three members appointed by the governor;
(2) three members appointed by the governor from a
list of individuals provided by the speaker of the house of
representatives; and
(3) three members appointed by the lieutenant
governor.
(b) The governor shall designate the presiding officer of
the board.
(c) The governor and the lieutenant governor, in making
appointments to the board, and the speaker of the house of
representatives, in compiling a list of recommended persons, shall
attempt to select members who are representative of, but not
limited to:
(1) urban and rural school districts;
(2) institutions of higher education;
(3) libraries; and
(4) the public.
(d) A person may not serve on the board if the person is
required to register as a lobbyist under Chapter 305, Government
Code, because of the person's activities for compensation on behalf
of a profession related to the operation of the board.
(e) Members of the board:
(1) serve without pay; and
(2) are entitled to reimbursement for their actual
expenses incurred in attending meetings of the board or attending
to other work of the board if approved by the presiding officer.
(f) Members of the board serve for staggered, six-year
terms, with three members' terms expiring on August 31 of each
odd-numbered year.
Sec. 57.045. POWERS AND DUTIES OF BOARD. (a) The board
shall administer the fund and the two accounts in the fund.
(b) The board shall prepare an annual report that:
(1) details the revenues deposited to the credit of
the fund, including each account; and
(2) summarizes the grants and loans made from each
account.
(c) Not later than January 15 of each year, the board shall
submit the report for the preceding year to the governor and to each
standing committee in the senate and house of representatives that
has jurisdiction over public or higher education.
(d) The board may:
(1) enter into contracts with state agencies or
private entities necessary to perform the board's duties;
(2) adopt rules as necessary to administer this
chapter;
(3) employ personnel reasonably necessary to perform
duties delegated by the board;
(4) appoint one or more committees to assist the board
in performing the board's duties; and
(5) accept a gift or grant and use it for the purposes
of this subchapter.
(e) The board shall establish an assistance program to
provide education concerning the telecommunications infrastructure
fund and to facilitate access to funds and programs under this
subchapter by health care facilities and by physicians licensed to
practice medicine in this state. The assistance program must
include a toll-free telephone number and provide access to
information through the Internet.
Sec. 57.0455. MASTER PLAN FOR INFRASTRUCTURE DEVELOPMENT.
(a) The board shall adopt a master plan for infrastructure
development. The plan must:
(1) cover a five-year period;
(2) be updated annually; and
(3) describe the project, timeline, and resource
allocation targets for each year included in the plan.
(b) The board shall publish each proposed amendment to the
plan and each proposed annual update in the Texas Register in
accordance with Subchapter B, Chapter 2002, Government Code.
Sec. 57.046. USE OF ACCOUNTS. (a) The board shall use
money in the public schools account to:
(1) to the extent directed in the General
Appropriations Act, fund the technology allotment under Section
32.005, Education Code; and
(2) award grants and loans in accordance with this
subchapter to fund:
(A) equipment for public schools, including
computers, printers, computer labs, and video equipment; and
(B) intracampus and intercampus wiring to enable
those public schools to use the equipment.
(b) The board shall use money in the qualifying entities
account for any purpose authorized by this subchapter, including:
(1) equipment;
(2) wiring;
(3) material;
(4) program development;
(5) training;
(6) installation costs;
(7) a statewide telecommunications network; and
(8) funding an automated system to integrate client
services and eligibility requirements for health and human services
across agencies.
(c) Section 57.047(d) does not apply to the use of money in
the public school account for the purpose specified by Subsection
(a)(1).
(d) In addition to the purposes for which the qualifying
entities account may be used, the board may use money in the account
to award grants to the Health and Human Services Commission for
technology initiatives of the commission.
Sec. 57.047. GRANT AND LOAN PROGRAM. (a) The board may
award a grant to a project or proposal that:
(1) provides equipment and infrastructure necessary
for:
(A) distance learning;
(B) an information sharing program of a library;
(C) telemedicine medical services; or
(D) telehealth services;
(E) a telepharmacy system;
(2) develops and implements the initial or
prototypical delivery of a course or other distance learning
material;
(3) trains teachers, faculty, librarians, or
technicians in the use of distance learning or information sharing
materials and equipment;
(4) develops a curriculum or instructional material
specially suited for telecommunications delivery;
(5) provides electronic information; or
(6) establishes or carries out an information sharing
program.
(b) The board may award a loan to a project or proposal to
acquire equipment needed for distance learning and telemedicine
medical service projects.
(c) In awarding a grant or loan under this subchapter, the
board shall give priority to a project or proposal that:
(1) represents collaborative efforts involving more
than one school, university, or library;
(2) contributes matching funds from another source;
(3) shows promise of becoming self-sustaining;
(4) helps users of information learn new ways to
acquire and use information through telecommunications;
(5) extends specific educational information and
knowledge services to a group not previously served, especially a
group in an economically depressed, rural, or remote area;
(6) results in more efficient or effective learning
than through conventional teaching;
(7) improves the effectiveness and efficiency of
health care delivery;
(8) takes advantage of distance learning
opportunities in a rural or urban school district with a:
(A) disproportionate number of at-risk youths;
or
(B) high dropout rate; or
(9) assists the community telecommunications alliance
program created under Subchapter O, Chapter 487, Government Code.
(d) In distributing money to public schools, the board
shall:
(1) consider the relative property wealth per student
of the school districts that receive the money; and
(2) recognize the unique needs of rural communities.
(e) A grant or loan awarded under this section is subject to
the limitations prescribed by Section 57.046.
Sec. 57.0471. GRANTS TO CERTAIN HEALTH CARE FACILITIES.
(As added by SB 1536) (a) A physician, health care professional,
or health care facility providing telemedicine medical services or
telehealth services and participating in a pilot program under
Section 531.02171, Government Code, is eligible to receive a grant
under Section 57.047.
(b) The physician, health care professional, or health care
facility providing telemedicine medical services or telehealth
services and participating in a pilot program under Section
531.02171, Government Code, is not eligible to receive private
network services under Section 58.253(a), except with respect to a
project that would have been eligible to be funded by the
telecommunications infrastructure fund under this subchapter as it
existed on January 1, 2001.
Sec. 57.0471. GRANTS TO CERTAIN HEALTH CARE FACILITIES.
(As added by HB 2700) (a) A health care facility providing
telemedicine medical services or telehealth services and
participating in a pilot program under Section 531.02171,
Government Code, is eligible to receive a grant under Section
57.047.
(b) The health care facility is not eligible to receive
private network services under Section 58.253(a), except with
respect to a project that would have been eligible to be funded by
the telecommunications infrastructure fund under this subchapter
as it existed on January 1, 2001.
Sec. 57.0475. ELIGIBILITY FOR GRANTS TO HEALTH CARE
FACILITIES. (a) The board may award a grant under Section
57.047(a)(1)(C) only to a health care facility that:
(1) is a hospital or other entity, including a health
clinic, that:
(A) is supported by local or regional tax
revenue;
(B) is a certified nonprofit health corporation
under federal law; or
(C) is an ambulatory health care center; or
(2) meets the criteria adopted by the board and the
Health and Human Services Commission under Subsection (b).
(b) The board and the Health and Human Services Commission
shall jointly adopt rules prescribing the criteria a health care
facility not described by Subsection (a)(1) must meet to be
eligible to receive a grant under Section 57.047(a)(1)(C). In
determining the criteria, the board and commission shall prioritize
health care facilities based on:
(1) the amount of charity care provided by each
facility during the year preceding the year in which the facility
applies for a grant; and
(2) the number of Medicaid patients and patients
enrolled in the state child health plan treated by each facility
during the year preceding the year in which the facility applies for
a grant.
(c) The criteria adopted under Subsection (b) must provide
that a health care facility is not eligible to receive a grant under
Section 57.047(a)(1)(C) if the health care facility did not provide
any charity care or treat any patients described by Subsection
(b)(2) during the year preceding the year in which the facility
applies for a grant.
Sec. 57.048. ASSESSMENTS AND COLLECTIONS. (a) An annual
assessment is imposed on each [telecommunications utility and]
provider, including each commercial mobile service provider, doing
business in this state.
(b) The assessment is imposed at the rate of 1.25 percent of
the taxable telecommunications receipts of the [telecommunications
utility or] provider, including commercial mobile service
provider, subject to this section.
(c) The total amount deposited to the credit of the fund,
excluding interest and loan repayments, may not exceed $1.75
billion. Not later than August 31 of each year, the comptroller
shall determine the total amount, excluding interest and loan
repayments, that has been deposited to the credit of the fund during
that fiscal year and the preceding fiscal years. If the comptroller
determines that a total of $1.5 billion or more, excluding interest
and loan repayments, has been deposited to the credit of the fund,
the comptroller shall impose the assessment during the next fiscal
year at a rate that the comptroller estimates is sufficient to
produce the amount necessary to result in the deposit in the fund of
a total of not more than $1.75 billion, excluding interest and loan
repayments.
(d) The comptroller may not collect the assessment during a
fiscal year if the comptroller determines after the yearly review
that the total amount deposited to the credit of the fund during
that fiscal year and the preceding fiscal years is $1.74 billion or
more, excluding interest and loan repayments, and it is not
possible to impose the assessment during the next fiscal year at a
practical rate without collecting more than a total of $1.75
billion, excluding interest and loan repayments.
(e) The comptroller may require a [telecommunications
utility or] provider, including commercial mobile service
provider, to provide any report or information necessary to fulfill
the comptroller's duties under this section. Information provided
to the comptroller under this section is confidential and exempt
from disclosure under Chapter 552, Government Code.
Sec. 57.0485. ACCOUNTS. (a) The comptroller shall deposit
50 percent of the money collected by the comptroller under
Section 57.048 to the credit of the public schools account in the
fund.
(b) Interest earned on money in an account shall be
deposited to the credit of that account.
Sec. 57.049. ISSUANCE OF WARRANTS. From money appropriated
to the board, the comptroller shall issue warrants the board
requests in accordance with the purposes of this subchapter,
including warrants to grantees of the board in amounts the board
certifies to the comptroller.
Sec. 57.050. ASSISTANCE OF OTHER AGENCIES. The following
agencies, in consultation with the board, shall adopt policies and
procedures that are designed to aid the board in achieving the
purposes of this subchapter:
(1) the Texas Higher Education Coordinating Board;
(2) the Texas Education Agency; and
(3) the Texas State Library and Archives Commission.
Sec. 57.051. SUNSET PROVISION. The Telecommunications
Infrastructure Fund Board is subject to Chapter 325, Government
Code (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the board is abolished and this subchapter expires
September 1, [2005.] 2010.
[SUBCHAPTER D. INTERACTIVE MULTIMEDIA COMMUNICATIONS
[Sec. 57.071. DEFINITION. In this subchapter, "interactive
multimedia communications" means real-time, two-way, interactive
voice, video, and data communications conducted over networks that
link geographically dispersed locations.
[Sec. 57.072. RATES FOR INTERACTIVE MULTIMEDIA
COMMUNICATIONS. (a) The commission shall permit a local exchange
company that provides an interactive multimedia communications
service to establish, using sound ratemaking principles, rates
necessary to recover costs associated with providing the service.
[(b) A local exchange company may not establish a rate under
Subsection (a) that is less than the local exchange company's long
run incremental costs of providing the interactive multimedia
communications service, unless the commission determines it to be
in the public interest to do so.]
CHAPTER 58. INCENTIVE REGULATION FOR INCUMBENT LOCAL EXCHANGE
COMPANIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 58.001. POLICY. [Considering] It is the [status]
policy of [competition] this state to [in] regulate the
telecommunications industry in a technology-neutral manner, [it is
the policy of this state to:] through adherence to free-market
principles.
[(1) provide a framework for an orderly transition
from the traditional regulation of return on invested capital to a
fully competitive telecommunications marketplace in which all
telecommunications providers compete on fair terms;
[(2) preserve and enhance universal
telecommunications service at affordable rates;
[(3) upgrade the telecommunications infrastructure of
this state;
[(4) promote network interconnectivity; and
[(5) promote diversity in the supply of
telecommunications services and innovative products and services
throughout the entire state, including urban and rural areas.
[Sec. 58.002. DEFINITION. In this chapter, "electing
company" means an incumbent local exchange company that elects to
be subject to incentive regulation and to make the corresponding
infrastructure commitment under this chapter.
[Sec. 58.003. CUSTOMER-SPECIFIC CONTRACTS. (a)
Notwithstanding any other provision of this chapter, but subject to
Subsection (b), an electing company may not offer in an exchange a
service, or an appropriate subset of a service, listed in Sections
58.051(a)(1)-(4) or Sections 58.151(1)-(4) in a manner that results
in a customer-specific contract, unless the other party to the
contract is a federal, state, or local governmental entity, until
the earlier of September 1, 2003, or the date on which the
commission finds that at least 40 percent of the total access lines
for that service or appropriate subset of that service in that
exchange are served by competitive alternative providers that are
not affiliated with the electing company.
[(b) The requirements prescribed by Subsection (a) do not
apply to an electing company serving fewer than five million access
lines after the date on which it completes the infrastructure
improvements described in this subsection. The electing company
must also notify the commission of the company's binding commitment
to make the following infrastructure improvements not later than
September 1, 2000:
[(1) install Common Channel Signaling 7 capability in
each central office; and
[(2) connect all of the company's serving central
offices to their respective LATA tandem central offices with
optical fiber or equivalent facilities.
[(c) The commission by rule shall prescribe appropriate
subsets of services.
[(d) An electing company may file with the commission a
request for a finding under this section. The filing must include
information sufficient for the commission to perform a review and
evaluation in relation to the particular exchange and the
particular service or appropriate subset of a service for which the
electing company wants to offer customer-specific contracts. The
commission must grant or deny the request not later than the 60th
day after the date the electing company files the request.
[(e) The commitments described by Subsection (b) do not
apply to exchanges of the company sold or transferred before, or for
which contracts for sale or transfer are pending on, September 1,
2001. In the case of exchanges for which contracts for sale or
transfer are pending as of March 1, 2001, where the purchaser
withdrew or defaulted before September 1, 2001, the company shall
have one year from the date of withdrawal or default to comply with
the commitments.
[(f) This section does not preclude an electing company from
offering a customer-specific contract to the extent allowed by this
title as of August 31, 1999.
[Sec. 58.004. PACKAGING, TERM AND VOLUME DISCOUNTS, AND
PROMOTIONAL OFFERINGS. (a) Notwithstanding any other provision of
this chapter, an electing company that has more than five million
access lines in this state may not offer in an exchange a service
listed in Sections 58.151(1)-(4) as a component of a package of
services or as a promotional offering until the company makes the
reduction in switched access service rates required by Section
58.301(2) unless the customer of one of the pricing flexibility
offerings described in this subsection is a federal, state, or
local governmental entity.
[(b) Notwithstanding any other provision of this chapter,
an electing company that has more than five million access lines in
this state may not offer a volume or term discount on any service
listed in Sections 58.151(1)-(4) until September 1, 2000, unless
the customer of one of the pricing flexibility offerings described
in this subsection is a federal, state, or local governmental
entity.
[(c) Notwithstanding any other provision of this chapter,
an electing company that has more than five million access lines in
this state may offer in an exchange a service listed in Sections
58.051(a)(1)-(4) as a component of a package of services, as a
promotional offering, or with a volume or term discount on and after
September 1, 1999.
[SUBCHAPTER B. ELECTION OF INCENTIVE REGULATION
[Sec. 58.021. ELECTION. (a) An incumbent local exchange
company may elect to be subject to incentive regulation and to make
the corresponding infrastructure commitment under this chapter by
notifying the commission in writing of its election.
[(b) The notice must include a statement that the company
agrees to:
[(1) limit until September 1, 2005, any increase in a
rate the company charges for basic network services as prescribed
by Subchapter C; and
[(2) fulfill the infrastructure commitment prescribed
by Subchapters F and G.
[(c) Except as provided in Subsection (d), an election under
this chapter remains in effect until the legislature eliminates the
incentive regulation authorized by this chapter and Chapter 59.
[(d) The commission may allow an electing company serving
fewer than five million access lines to withdraw the company's
election under this chapter:
[(1) on application by the company; and
[(2) only for good cause.
[(e) In this section, "good cause" includes only matters
beyond the control of the company.
[Sec. 58.022. CHAPTER CONTROLS. This chapter governs the
regulation of an electing company's telecommunications services
regardless of whether the company is a dominant carrier.]
Sec. 58.023. SERVICE CLASSIFICATION. (a) The provisions
of this chapter apply to any incumbent local exchange carrier
electing under this chapter or chapter 65.
[On election, the] (b) The services provided by an Incumbent
Local Exchange Company electing [company] under this Chapter are
classified into two categories:
(1) basic network services governed by Subchapter C;
and
(2) nonbasic network services governed by Subchapter
[E] D.
[Sec. 58.024. SERVICE RECLASSIFICATION. (a) The
commission may reclassify a basic network service as a nonbasic
service.
[(b) The commission shall establish criteria for
determining whether a service should be reclassified. The criteria
must include consideration of the:
[(1) availability of the service from other providers;
[(2) effect of the reclassification on service
subscribers; and
[(3) nature of the service.
[(c) The commission may not reclassify a service until:
[(1) each competitive safeguard prescribed by
Subchapters B-H, Chapter 60, is fully implemented; or
[(2) for a company that serves more than five million
access lines in this state, the date on which the Federal
Communications Commission determines in accordance with 47 U.S.C.
Section 271 that the company or any of its affiliates may enter the
interLATA telecommunications market in this state.
[(d) The commission may reclassify a service subject to the
following conditions:
[(1) the electing company must file a request for a
service reclassification including information sufficient for the
commission to perform a review and evaluation under Subsection (b);
[(2) the commission must grant or deny the request not
later than the 60th day after the date the electing company files
the request for service reclassification; and
[(3) there is a rebuttable presumption that the
request for service reclassification by the electing company should
be granted if the commission finds that there is a competitive
alternative provider serving customers through means other than
total service resale.]
Sec. 58.025. COMPLAINT OR HEARING. [(a) An electing
company] Except as specifically provided in other provisions of
this Act, an incumbent local exchange company that is not[,]
regulated under [any circumstances,] Chapter 53 is not subject to a
traditional rate of return complaint, hearing, or determination
regarding the reasonableness of the company's:
[(1)] (a) rates;
[(2)] (b) overall revenues;
[(3)] (c) return on invested capital; or
[(4)] (d) net income.
[(b) This section does not prohibit a complaint, hearing, or
determination on an electing company's implementation and
enforcement of a competitive safeguard required by Chapter 60.]
Sec. 58.026. CONSUMER COMPLAINTS REGARDING TARIFFS. (a)
This chapter does not restrict:
(1) a consumer's right to complain to the commission
about the application of an ambiguous tariff; or
(2) the commission's right to determine[:(A)] the
proper application of that tariff[; or] .
[(B) the proper rate if that tariff does not
apply.]
(b) This [section] title does not permit the commission to:
(1) lower a tariff rate [except as specifically
provided by this title];
(2) change the commission's interpretation of a
tariff; or
(3) extend the application of a tariff to a new class
of customers.
Sec. 58.027. CONSUMER COMPLAINTS REGARDING SERVICES[;
ENFORCEMENT OF STANDARDS]. This chapter does not restrict:
(1) a consumer's right to complain to the commission
about quality of service.[; or]
(2) the commission's right to enforce [a quality of
service standard.
[Sec. 58.028. REVIEW AND REPORT OF EFFECTS OF ELECTION. (a)
Not later than January 1, 2004, the commission shall begin a review
and evaluation of each company that elects under this chapter or
Chapter 59.
[(b) The review must include an evaluation of the effects of
the election, including:
[(1)] consumer [benefits;] protection under Chapter
64.
[(2) impact of competition;
[(3) infrastructure investments; and
[(4) quality of service.
[(c) The commission shall file a report with the legislature
not later than January 1, 2005. The report must include the
commission's recommendations as to whether the incentive
regulation provided by this chapter and Chapter 59 should be
extended, modified, eliminated, or replaced with another form of
regulation.
[(d) This section expires September 1, 2005.]
SUBCHAPTER C. BASIC NETWORK SERVICES
Sec. 58.051. SERVICES INCLUDED. (a) [Unless reclassified
under Section 58.024, the] The following services are basic network
services:
(1) flat rate residential local exchange telephone
service[, including primary directory listings and the], if such
service is ordered and received [receipt] independent of [a
directory and] any [applicable mileage] nonbasic network services,
any packages of services that include nonbasic or [zone charges]
other services, or another flat-rate residential local exchange
service delivered by landline;
(2) residential tone dialing service;
(3) lifeline and tel-assistance service;
(4) service connection for basic [residential]
network services;
(5) direct inward dialing service for basic
residential services;
[(6) private pay telephone access service;
[(7)] (6) call trap and trace service;
[(8)] (7) access for all residential and business end
users to 911 service provided by a local authority and access to
dual party relay service[;].
[(9) mandatory residential extended area service
arrangements;
[(10) mandatory residential extended metropolitan
service or other mandatory residential toll-free calling
arrangements; and
[(11) residential call waiting service.]
(b) [Electing] Incumbent local exchange companies that
elect under this Chapter shall offer shall offer each basic network
service as a separately tariffed service, but may also include
basic network service in [addition to] any packages or other
pricing flexibility offerings that include those basic network
[services] service.
[Sec. 58.052. REGULATION OF SERVICES. (a) Except as
provided by Subchapter E, Chapter 52, basic network services of an
electing company are regulated:
[(1) in accordance with this chapter; and
[(2) to the extent not inconsistent with this chapter,
in accordance with:
[(A) Subtitle A;
[(B) Chapters 51, 54, 60, 62, and 63;
[(C) Chapter 52, except for Subchapter F;
[(D) Subchapters C, D, and E, Chapter 53;
[(E) Chapter 55, except for:
[(i) Subchapters F and G; and
[(ii) Sections 55.001, 55.002, 55.003, and
55.004;
[(F) Sections 53.001, 53.003, 53.004, 53.006,
53.065, 55.005, 55.006, 55.009, and 55.010; and
[(G) commission rules and procedures.
[(b) The commission must approve a change in the terms of
the tariff offering of a basic network service.
[Sec. 58.053. INVESTMENT LIMITATION ON SERVICE STANDARDS.
(a) The commission may not raise a service standard applicable to
the provision of local exchange telephone service by an electing
company if the increased investment required to comply with the
raised standard in any year exceeds 10 percent of the company's
average annual intrastate additions in capital investment for the
most recent five-year period.
[(b) In computing the average under Subsection (a), the
company shall exclude:
[(1) extraordinary investments made during the
five-year period; and
[(2) investments required by Section 58.203.
[Sec. 58.054. RATES CAPPED (a) As a condition of election
under this chapter, an electing company shall commit to not
increasing a rate for a basic network service on or before the
fourth anniversary of its election date.
[(b) The rates an electing company may charge on or before
that fourth anniversary are the rates charged by the company on June
1, 1995, or, for a company that elects under this chapter after
September 1, 1999, the rates charged on the date of its election,
without regard to a proceeding pending under:
[(1) Section 15.001;
[(2) Subchapter D, Chapter 53; or
[(3) Subchapter G, Chapter 2001, Government Code.
[(c) Notwithstanding Subsections (a) and (b), the cap on the
rates for basic network services for a company electing under this
chapter may not expire before September 1, 2005.
[Sec. 58.055. RATE ADJUSTMENT BY COMPANY. (a) An electing
company may increase a rate for a basic network service during the
election period prescribed by Section 58.054 only:
[(1) with commission approval that the proposed change
is included in Section 58.056, 58.057, or 58.058; and
[(2) as provided by Sections 58.056, 58.057, 58.058,
and 58.059.
[(b) Notwithstanding Subchapter F, Chapter 60, an electing
company may, on its own initiative, decrease a rate for a basic
network service during the electing period.
[(c) The company may decrease the rate for a basic local
telecommunications service to an amount above the service's
appropriate cost. If the company has been required to perform or
has elected to perform a long run incremental cost study, the
appropriate cost for the service is the service's long run
incremental cost.
[Sec. 58.056. RATE ADJUSTMENT FOR CHANGES IN FCC
SEPARATIONS. The commission, on motion of the electing company or
on its own motion, shall proportionally adjust rates for services
to reflect changes in Federal Communications Commission
separations that affect intrastate net income by at least 10
percent.
[Sec. 58.057. RATE ADJUSTMENT FOR CERTAIN COMPANIES. (a)
An electing company, after the 42nd month after the date the company
elects incentive regulation under this chapter, may file an
application for a commission review of the company's need for
changes in the rates of its services if the company:
[(1) has fewer than five million access lines in this
state; and
[(2) is complying with:
[(A) the company's infrastructure commitment;
[(B) each requirement relating to quality of
service; and
[(C) each commission rule adopted under Chapter
60.
[(b) The company's application may request that the
commission adjust rates, implement new pricing plans, restructure
rates, or rebalance revenues between services to recognize changed
market conditions and the effects of competitive entry.
[(c) The commission may use an index and a productivity
offset in determining the requested changes.
[(d) The commission may not:
[(1) order an increase in the rate for residential
local exchange telephone service that would cause the rate to
increase by more than the United States Consumer Price Index in any
12-month period; or
[(2) set the monthly rate for residential local
exchange telephone service in an amount that exceeds the nationwide
average rates for similar local exchange telephone services.
[Sec. 58.058. RATE GROUP RECLASSIFICATION.
Notwithstanding Subchapter B, the commission, on request of the
electing company, shall allow a rate group reclassification that
results from access line growth.
[Sec. 58.059. COMMISSION RATE ADJUSTMENT PROCEDURE. (a)
In accordance with this section, an electing company may request
and the commission may authorize a rate adjustment under Section
58.056, 58.057, or 58.058.
[(b) The electing company must provide to the commission
notice of its intent to adjust rates. The notice must be
accompanied by sufficient documentary evidence to demonstrate that
the rate adjustment is authorized under Section 58.056, 58.057, or
58.058. The commission by rule or order shall prescribe the
documentation required under this subsection.
[(c) The electing company must also provide notice to its
customers after providing notice to the commission. The notice to
the customers must:
[(1) within a reasonable period after notice to the
commission, be published once in a newspaper of general circulation
in the affected service area;
[(2) be included in or printed on each affected
consumer's bill in the first billing that occurs after notice is
filed with the commission;
[(3) have a title that includes the name of the company
and the words "NOTICE OF POSSIBLE RATE CHANGE"; and
[(4) include:
[(A) a statement that the consumer's rate may
change;
[(B) an estimate of the amount of the annual
change for the typical residential, business, or access consumer if
the commission approves the rate change;
[(C) a statement that a consumer who wants to
comment on the rate change or who wants additional information
regarding the rate change may call or write the commission and that
the information will be provided without cost to the consumer and at
the expense of the electing company; and
[(D) the commission's telephone number and
address.
[(d) The estimate of the amount of the annual change
required by Subsection (c)(4)(B) must be printed in a type style and
size that is distinct from and larger than the type style and size
of the body of the notice.
[(e) The commission shall review the proposed rates to
determine if the rate adjustment is authorized under Section
58.056, 58.057, or 58.058.
[(f) The rate adjustment takes effect on the 90th day after
the date the electing company completes the notice required by this
section unless the commission suspends the effective date under
Subsection (g).
[(g) At any time before a rate adjustment is scheduled to
take effect, the commission, on its own motion or on complaint by an
affected party, may suspend the effective date of the rate
adjustment and conduct a hearing to review the proposed adjustment.
After the hearing, the commission may issue an order approving the
adjustment, or if it finds that the adjustment is not authorized
under Section 58.056, 58.057, or 58.058, issue an order modifying
or rejecting the adjustment. An order modifying or rejecting a rate
adjustment must specify:
[(1) each reason why the proposed adjustment was not
authorized by Section 58.056, 58.057, or 58.058; and
[(2) how the proposed adjustment may be changed so
that it is authorized.
[(h) Except as provided by this section, a request for a
rate restructure must comply with the notice and hearing
requirements prescribed by Sections 53.101-53.106.
[(i) An electing company that has not more than five percent
of the total access lines in this state may adopt as the cost for a
service the cost for the same or substantially similar service
offered by a larger incumbent local exchange company. The electing
company may adopt the larger company's cost only if the cost was
determined based on a long run incremental cost study. An electing
company that adopts a cost under this subsection is not required to
present its own long run incremental cost study to support the
adopted cost.
[Sec. 58.060. RATE ADJUSTMENT AFTER CAP EXPIRATION. After
the expiration of the period during which the rates for basic
network services are capped as prescribed by Section 58.054, an
electing company may increase a rate for a basic network service
only:
[(1) with commission approval subject to this title;
and
[(2) to the extent consistent with achieving universal
affordable service.]
Sec. 58.061. EFFECT ON CERTAIN CHARGES. This subchapter
does not affect a charge permitted under:
[(1) Section 55.024;
[(2)] (1) Subchapter C, Chapter 55; or
[(3)] (2) Subchapter B, Chapter 56.
[Sec. 58.062. SWITCHED ACCESS RATES. [REPEALED].
[Sec. 58.063. PRICING AND PACKAGING FLEXIBILITY. (a)
Notwithstanding Section 58.052(b) or Subchapter F, Chapter 60, an
electing company may exercise pricing flexibility for basic network
services, including the packaging of basic network services with
any other regulated or unregulated service or any service of an
affiliate. The company may exercise pricing flexibility in
accordance with this section 10 days after providing an
informational notice to the commission, to the office, and to any
person who holds a certificate of operating authority in the
electing company's certificated area or areas or who has an
effective interconnection agreement with the electing company.
[(b) An electing company shall set the price of a package of
services containing basic network services and nonbasic services at
any level at or above the lesser of:
[(1) the sum of the long run incremental costs of any
basic network services and nonbasic services contained in the
package; or
[(2) the sum of the tariffed prices of any basic
network services contained in the package and the long run
incremental costs of nonbasic services contained in the package.
[(c) Except as provided by Section 58.003, an electing
company may flexibly price a package that includes a basic network
service in any manner provided by Section 51.002(7).]
SUBCHAPTER D. [[REPEALED]
[SUBCHAPTER E.] NONBASIC NETWORK SERVICES
Sec. 58.151. SERVICES INCLUDED. The following services
offered pursuant to this Chapter are classified as nonbasic network
services:
(1) any basic network service when ordered and
received with any other basic network service or a nonbasic network
service;
[(1)] (2) flat rate business local exchange telephone
service, including primary directory listings and the receipt of a
directory, and any applicable mileage or zone charges[, except that
the prices for this service shall be capped until September 1, 2005,
at the prices in effect on September 1, 1999];
[(2)] (3) business tone dialing service[, except that
the prices for this service shall be capped until September 1, 2005,
at the prices in effect on September 1, 1999];
[(3)] (4) service connection for all business
services[, except that the prices for this service shall be capped
until September 1, 2005, at the prices in effect on September 1,
1999];
[(4)] (5) direct inward dialing for basic business
services[, except that the prices for this service shall be capped
until September 1, 2005, at the prices in effect on September 1,
1999];
[(5)] (6) "1-plus" intraLATA message toll services;
[(6)] (7) 0+ and 0- operator services;
[(7)] (8) call waiting, call forwarding, and custom
calling[, except that:
[(A) residential call waiting service shall be
classified as a basic network service].
(9) call return, caller identification, and call
control options; [and
[(B) for an electing company subject to Section
58.301, prices for residential call forwarding and other custom
calling services shall be capped at the prices in effect on
September 1, 1999, until the electing company implements the
reduction in switched access rates described by Section 58.301(2);
[(8) call return, caller identification, and call
control options, except that, for an electing company subject to
Section 58.301, prices for residential call return, caller
identification, and call control options shall be capped at the
prices in effect on September 1, 1999, until the electing company
implements the reduction in switched access rates described by
Section 58.301(2);
[(9)] (10) central office based PBX-type services;
[(10)] (11) billing and collection services,
[including] limited to installment billing and late payment charges
for retail customers of the [electing] billing [company] provider;
[(11)] (12) integrated services digital network
(ISDN) services[, except that prices for Basic Rate Interface (BRI)
ISDN services, which comprise up to two 64 Kbps B-channels and one
16 Kbps D-channel, shall be capped until September 1, 2005, at the
prices in effect on September 1, 1999];
[(12)] (13) new services;
[(13)] (14) directory assistance services[, except
that an electing company shall provide to a residential customer
the first three directory assistance inquiries in a monthly billing
cycle at no charge];
(15) services described in the WATS tariff as the
tariff existed on January 1, 1995;
[(14) services described in the WATS tariff as the
tariff existed on January 1, 1995; services described in the WATS
tariff as the tariff existed on January 1, 1995;
[(15)] (16) 800 and foreign exchange services;
[(16)] (17) private line service;
[(17)] (18) special access service;
[(18)] (19) services from public pay telephones;
[(19)] (20) paging services and mobile services
(IMTS);
[(20)] (21) 911 services provided to a local authority
that are available from another provider;
[(21)] (22) speed dialing;
[(22)] (23) three-way calling; and
[(23)] (24) all other local exchange services subject
to the commission's jurisdiction that are not specifically
classified as basic network services in Section [58.051, except
that nothing in this section shall preclude a customer from
subscribing to a local flat rate residential] 58.051 or [business
line for a computer modem or a facsimile machine.] as switched
access services.
Sec. 58.152. PRICES. [(a)] An incumbent local exchange
company electing [company] under this Chapter may set the retail
price for any nonbasic network service at any level at or above [the
lesser of the: (1) service's] long run incremental cost [in
accordance with]. Prior to September 1, 2011, an incumbent local
exchange company electing under this Chapter may not raise its
retail price for any basic network service more than 20% percent
higher than the [imputation rules prescribed by or under Subchapter
D, Chapter 60; or] price being charged for the same basic network
service as of January 1, 2005.
[(2) price for the service in effect on September 1,
1999.
[(b) Subject to Section 51.004, an electing company may use
pricing flexibility for a nonbasic service. Pricing flexibility
includes all pricing arrangements included in the definition of
"pricing flexibility" prescribed by Section 51.002 and includes
packages that include basic network services.]
Sec. 58.153. NEW SERVICES. [(a)] Subject to the pricing
conditions prescribed by Section [58.152(] 58.152, a[), an
electing] local exchange company may introduce a new service [10]
one [days] day after providing an informational notice to the
commission[, to the office, and to any person who holds a
certificate of operating authority in the electing company's
certificated area or areas or who has an effective interconnection
agreement with the electing company].
[(b) An electing company serving more than five million
access lines in this state shall provide notice to any person who
holds a certificate of operating authority in the electing
company's certificated area or areas or who has an effective
interconnection agreement with the electing company of any changes
in the generally available prices and terms under which the
electing company offers basic or nonbasic telecommunications
services regulated by the commission at retail rates to subscribers
that are not telecommunications providers. Changes requiring
notice under this subsection include the introduction of any new
nonbasic services, any new features or functions of basic or
nonbasic services, promotional offerings of basic or nonbasic
services, or the discontinuation of then-current features or
services. The electing company shall provide the notice:
[(1) if the electing company is required to give
notice to the commission, at the same time the company provides that
notice; or
[(2) if the electing company is not required to give
notice to the commission, at least 45 days before the effective date
of a price change or 90 days before the effective date of a change
other than a price change, unless the commission determines that
the notice should not be given.
[(c) An affected person, the office on behalf of residential
or small commercial customers, or the commission may file a
complaint at the commission challenging whether the pricing by an
incumbent local exchange company of a new service is in compliance
with Section 58.152(a). The commission shall allow the company to
continue to provide the service while the complaint is pending.
[(d) If a complaint is filed under Subsection (c), the
electing company has the burden of proving that the company set the
price for the new service in accordance with Section 58.152(a). If
the complaint is finally resolved in favor of the complainant, the
company:
[(1) shall, not later than the 10th day after the date
the complaint is finally resolved, amend the price of the service as
necessary to comply with the final resolution; or
[(2) may, at the company's option, discontinue the
service.
[(e) The notice requirement prescribed by Subsection (b)
expires September 1, 2003.
Sec. 58.155. INTERCONNECTION. [Because interconnection to
competitive providers and interconnection for commercial mobile
service providers are subject to the requirements of Sections 251
and 252, Communications Act of 1934 (47 U.S.C. Sections 251 and
252), as amended, and Federal Communications Commission rules,
including the commission's authority to arbitrate issues,
interconnection is not addressed in] An incumbent local exchange
company electing under this [subchapter or Subchapter B.
[SUBCHAPTER F. GENERAL INFRASTRUCTURE COMMITMENT
[Sec. 58.201. STATEMENT OF STATE GOAL. (a) It is the goal
of this state to facilitate and promote the deployment of an
advanced telecommunications infrastructure to spur economic
development throughout this state. This state should be among the
leaders in achieving this objective.
[(b) The primary means of achieving this goal is through
encouraging private investment in this state's telecommunications
infrastructure by creating incentives for that investment and
promoting the development of competition.
[(c) The best way to bring the benefits of an advanced
telecommunications network infrastructure to communities in this
state is through innovation and competition among all the state's
communications providers. Competition will provide residents of
this state with a choice of telecommunications providers and will
drive technology deployment, innovation, service quality, and
cost-based prices as competing firms try to satisfy customer needs.
[Sec. 58.202. POLICY GOALS FOR IMPLEMENTATION. In
implementing this subchapter, the commission shall consider this
state's policy goals to:
[(1) ensure the availability of the widest possible
range of competitive choices in the provision of telecommunications
services and facilities;
[(2) foster competition and rely on market forces
where competition exists to determine the price, terms, and
availability of service;
[(3) ensure the universal availability of basic local
telecommunications services at reasonable rates;
[(4) encourage the continued development and
deployment of advanced and reliable capabilities and services in
telecommunications networks;
[(5) ensure interconnection and interoperability,
based on uniform technical standards, among telecommunications
carriers;
[(6) eliminate unnecessary administrative procedures
that impose regulatory barriers to competition and ensure that
competitive entry is fostered on an economically rational basis;
[(7) ensure consumer protection and protection
against anticompetitive conduct;
[(8) regulate a provider of services only to the
extent the provider has market power to control the price of
services to customers;
[(9) encourage cost-based pricing of
telecommunications services so that consumers pay a fair price for
services they use; and
[(10) subject to Subchapter C, develop appropriate
quality of service standards for local exchange companies so as to
place this state among the leaders in deployment of an advanced
telecommunications infrastructure.
[Sec. 58.203. INFRASTRUCTURE GOALS OF ALL ELECTING
COMPANIES. (a) Recognizing that it will take time for competition
to develop in the local exchange market, the commission shall, in
the absence of competition, ensure that each electing company
achieves the infrastructure goals described by this section.
[(b) Not later than December 31, 1996, an electing company
shall make available to each customer in the company's territory
access to end-to-end digital connectivity.
[(c) Each new central office switch installed for an
electing company after September 1, 1995, must be digital or
technically equal to or superior to digital. In addition, a switch
installed after September 1, 1997, must, at a minimum, be capable of
providing integrated services digital network (ISDN) services in a
manner consistent with generally accepted national standards.
[(d) Not later than January 1, 2000, 50 percent of the local
exchange access lines in each electing company's territory must be
served by a digital central office switch.
[(e) Not later than January 1, 2000, an electing company's
public switched network backbone interoffice facilities must
employ broadband facilities capable of 45 or more megabits a
second. The company may employ facilities at a lower bandwidth if
technology permits the delivery of video signal at the lower
bandwidth at a quality level comparable to a television broadcast
signal. The requirements of this subsection do not apply to local
loop facilities.
[Sec. 58.204. ADDITIONAL INFRASTRUCTURE COMMITMENT OF
CERTAIN COMPANIES. (a) Not later than December 31, 1998, an
electing company serving more than one million but fewer than five
million access lines shall provide digital switching central
offices in all exchanges.
[(b) Not later than January 1, 2000, an electing company
serving more than five million access lines shall:
[(1) install Common Channel Signaling 7 capability in
each central office; and
[(2) connect all of the company's serving central
offices to their respective LATA tandem central offices with
optical fiber or equivalent facilities.
[Sec. 58.205. EXTENSION OR WAIVER OF INFRASTRUCTURE
REQUIREMENTS. (a) For an electing company that serves more than
one million but fewer than two million access lines, the commission
may temporarily extend a deadline prescribed by Section 58.203 if
the company demonstrates that the extension is in the public
interest.
[(b) For an electing company that serves fewer than one
million access lines, the commission may waive a requirement
prescribed by Section 58.203 if the company demonstrates that the
investment is not viable economically.
[(c) Before granting a waiver under Subsection (b), the
commission must consider the public benefits that would result from
compliance with the requirement.
[Sec. 58.206. IMPLEMENTATION COSTS; INCREASE IN RATES AND
UNIVERSAL SERVICE FUNDS. The commission may not consider the cost
of implementing Section 58.203 or 58.204 in determining whether an
electing company is entitled to:
[(1) a rate increase under this chapter; or
[(2) increased universal service funds under
Subchapter B,] Chapter [56.] is subject to interconnection
obligations set forth in Chapter 60, Subchapter G.
SUBCHAPTER G. [INFRASTRUCTURE COMMITMENT TO CERTAIN ENTITIES
[Sec. 58.251. INTENT AND GOAL OF SUBCHAPTER. (a) It is the
intent of this subchapter to establish a telecommunications
infrastructure that interconnects the public entities described in
this subchapter. The interconnection of these entities requires
ubiquitous, broadband, digital services for voice, video, and data
in the local serving area. The ubiquitous nature of these
connections must allow individual networks of these entities to
interconnect and interoperate across the broadband digital service
infrastructure. The delivery of these advanced telecommunications
services requires collaborations and partnerships of public,
private, and commercial telecommunications service network
providers.
[(b) The goal of this subchapter is to interconnect and
aggregate the connections to every entity described in this
subchapter, in the local serving area. It is further intended that
the infrastructure implemented under this subchapter connect each
entity that requests a service offered under this subchapter.
[Sec. 58.252. DEFINITIONS. In this subchapter:
[(1) "Educational institution" has the meaning
assigned by Section 57.021.
[(2) "Library" has the meaning assigned by Section
57.042.
[(3) "Private network services" means:
[(A) broadband digital service that is capable of
providing transmission speeds of 45 megabits a second or greater
for customer applications; and
[(B) other customized or packaged network
services.
[(4) "Telemedicine center" means a facility that is
equipped to transmit, by video, data, or voice service, medical
information for the diagnosis or treatment of illness or disease
and that is:
[(A) owned or operated by a public or
not-for-profit hospital, including an academic health center; or
[(B) owned by one or more state-licensed health
care practitioners and operated on a nonprofit basis.
[Sec. 58.253. PRIVATE NETWORK SERVICES FOR CERTAIN
ENTITIES. (a) On customer request, an electing company shall
provide private network services to:
[(1) an educational institution;
[(2) a library as defined in Section 57.042(6)(A) and
(B);
[(3) a nonprofit telemedicine center;
[(4) a public or not-for-profit hospital;
[(5) a project that would have been eligible to be
funded by the telecommunications infrastructure fund under
Subchapter C, Chapter 57, as that subchapter existed on January 1,
2001; or
[(5) a project funded by the telecommunications
infrastructure fund under Subchapter C, Chapter 57, except for a
telepharmacy system; or
[(5) a project eligible to have been funded by the
telecommunications infrastructure fund under Subchapter C, Chapter
57, as of January 1, 2001; or
[(6) a legally constituted consortium or group of
entities listed in this subsection.
[(b) Except as provided by Section 58.266, the electing
company shall provide the private network services for the private
and sole use of the receiving entity.
[Sec. 58.254. PRIORITIES. An electing company shall give
priority to serving:
[(1) rural areas;
[(2) areas designated as critically underserved
either medically or educationally; and
[(3) educational institutions with high percentages
of economically disadvantaged students.
[Sec. 58.255. CONTRACTS FOR PRIVATE NETWORK SERVICES. (a)
An electing company shall provide a private network service under a
customer specific contract.
[(b) An electing company shall offer private network
service contracts under this subchapter at 105 percent of the long
run incremental cost of providing the private network service,
including installation.
[(c) Each contract shall be filed with the commission.
Commission approval of a contract is not required.
[(d) Subtitle D, Title 10, Government Code, does not apply
to a contract entered into under this subchapter.
[Sec. 58.256. PREFERRED RATE TREATMENT WARRANTED. An
entity described by Section 58.253(a) warrants preferred rate
treatment. However, a rate charged for a service must cover the
service's long run incremental cost.
[Sec. 58.257. ELECTION OF RATE TREATMENT. An educational
institution or a library may elect the rate treatment provided by
this subchapter or the discount provided by Subchapter B, Chapter
57.
[Sec. 58.258. PRIVATE NETWORK SERVICES RATES AND TARIFFS.
(a) Notwithstanding the pricing flexibility authorized by this
subtitle, an electing company's rates for private network services
may not be increased on or before the sixth anniversary of the
company's date of election. However, an electing company may
increase a rate in accordance with the provisions of a customer
specific contract.
[(b) An electing company may not charge an entity described
by Section 58.253(a) a special construction or installation charge.
[Sec. 58.259. TARIFF RATE FOR CERTAIN INTRALATA SERVICE.
(a) An electing company shall file a flat monthly tariff rate for
point-to-point intraLATA 1.544 megabits a second service for the
entities described by Section 58.253(a).
[(b) The tariff rate may not be:
[(1) distance sensitive; or
[(2) higher than 105 percent of the service's
statewide average long run incremental cost, including
installation.
[Sec. 58.260. POINT-TO-POINT 45 MEGABITS A SECOND INTRALATA
SERVICE. (a) On request of an entity described by Section
58.253(a), an electing company shall provide to the entity
point-to-point 45 megabits a second intraLATA services.
[(b) The service must be provided under a customer specific
contract except that any interoffice portion of the service must be
recovered on a statewide average basis that is not distance
sensitive.
[(c) The rate for the service may not be higher than 105
percent of the service's long run incremental cost, including
installation.
[Sec. 58.261. BROADBAND DIGITAL SPECIAL ACCESS SERVICE.
(a) An electing company shall provide to an entity described by
Section 58.253(a) broadband digital special access service to
interexchange carriers.
[(b) The rate for the service may not be higher than 105
percent of the service's long run incremental cost, including
installation.
[Sec. 58.262. EXPANDED INTERCONNECTION. (a) On request of
an entity described by Section 58.253(a), an electing company shall
provide to the entity expanded interconnection (virtual
collocation).
[(b) The company shall provide expanded interconnection:
[(1) in accordance with commission rules adopted under
Subchapter H, Chapter 60; and
[(2) at 105 percent of long run incremental cost,
including installation.
[(c) An entity described by Section 58.253(a) is not
required to qualify for expanded interconnection if expanded
interconnection is ordered by the commission.
[Sec. 58.263. INTERNET ACCESS. (a) This section applies
only to an educational institution or library in an exchange of an
electing company serving more than five million access lines in
which toll-free access to the Internet is not available.
[(b) On request of the educational institution or library,
the electing company shall make available a toll-free connection or
toll-free dialing arrangement that the institution or library may
use to obtain access to the Internet in an exchange in which
toll-free access to the Internet is available.
[(c) The electing company shall provide the connection or
dialing arrangement at no charge to the educational institution or
library until Internet access becomes available in the exchange of
the requesting educational institution or library.
[(d) The electing company is not required to arrange for
Internet access or to pay Internet charges for the requesting
educational institution or library.
[Sec. 58.264. COMPLAINTS LIMITED. (a) Notwithstanding any
other provision of this title, an electing company is subject to a
complaint under this subchapter only by an entity described by
Section 58.253(a).
[(b) An entity may only complain that the company provided a
private network service under this subchapter preferentially to a
similarly situated customer.
[Sec. 58.265. INTERCONNECTION OF NETWORK SERVICES. The
private network services provided under this subchapter may be
interconnected with other similar networks for distance learning,
telemedicine, and information-sharing purposes.
[Sec. 58.266. SHARING OR RESALE OF NETWORK SERVICES. (a) A
private network service may be used by and shared among the entities
described by Section 58.253(a) but may not be otherwise shared or
resold to other customers.
[(b) A service provided under this subchapter may not be
required to be resold to another customer at a rate provided by this
subchapter.
[(c) This section does not prohibit an otherwise permitted
resale of another service that an electing company may offer
through the use of the same facilities used to provide a private
network service offered under this subchapter.
[Sec. 58.267. IMPLEMENTATION COSTS; INCREASE IN RATES AND
UNIVERSAL SERVICE FUNDS. The commission may not consider the cost
of implementing this subchapter in determining whether an electing
company is entitled to:
[(1) a rate increase under this chapter; or
[(2) increased universal service funds under
Subchapter B, Chapter 56.
[SUBCHAPTER H.] SWITCHED ACCESS SERVICES
Sec. 58.301. SWITCHED ACCESS RATE REDUCTION. An ILEC
electing [company with greater than five million access lines in]
under this [state] chapter shall reduce its switched access rates
on a combined originating and terminating basis as follows:
(1) [the electing company shall reduce switched access
rates on a combined originating and terminating basis in effect on]
effective September 1, [1999, by one cent] 2005, the company shall
reduce intra-state switched access rates on a [minute;] combined
originating and terminating basis, by one half of the difference
between the intra-state switched access rate in effect on January
1, 2005 and the inter-state switched access rate in effect on
January 1, 2005; and
(2) effective January 1, 2007, the [electing] company
shall reduce intra-state switched access rates on a combined
originating and terminating basis [by an additional two cents a
minute on the earlier of:] to parity with interstate switched
access rates
[(A) July 1, 2000; or
[(B) the date the electing company, or its
affiliate formed in compliance with 47 U.S.C. Section 272, as
amended, actually begins providing interLATA services in this state
in accordance with the authorization required by 47 U.S.C. Section
271, as amended.]
Sec. 58.302. SWITCHED ACCESS RATE CAP. [(a) An] After
January 1, 2007, an electing company may not increase the per minute
rates for switched access services on a combined originating and
terminating basis above the [lesser of:] interstate rate for
switched access.
[(1) the rates for switched access services charged by
that electing company on September 1, 1999, as may be further
reduced on implementation of the universal service fund under
Chapter 56; or
[(2) the applicable rate described by Section 58.301
as may be further reduced on implementation of the universal
service fund under Chapter 56.
[(b) Notwithstanding Subchapter F, Chapter 60, but subject
to Section 60.001, an electing company may, on its own initiative,
decrease a rate charged for switched access service to any amount
above the long run incremental cost of the service.
[Sec. 58.303. SWITCHED ACCESS CHARGE STUDY. (a) Not later
than November 1, 1999, the commission shall begin a review and
evaluation of the rates for intrastate switched access service.
The review shall include an evaluation of at least the following
issues:
[(1) whether alternative rate structures for recovery
of switched access revenues are in the public interest and
competitively neutral; and
[(2) whether disparities in rates for switched access
service between local exchange companies are in the public
interest.
[(b) The commission shall file a report with the legislature
not later than January 1, 2001. The report must include the
commission's recommendations on the issues reviewed and evaluated.
[(c) This section expires September 1, 2001.]
CHAPTER 59. INFRASTRUCTURE PLAN
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 59.001. POLICY. It is the policy of this state that an
incumbent local exchange company that does not elect to be
regulated under Chapter 58 should have incentives to deploy
infrastructure that will benefit the residents of this state while
maintaining reasonable local rates and universal service.
Sec. 59.002. DEFINITIONS. In this chapter:
(1) "Electing company" means an incumbent local
exchange company that elects for an infrastructure commitment and
corresponding regulation under this chapter.
(2) "Election date" means the date on which the
commission receives notice of election under Subchapter B.
SUBCHAPTER B. INFRASTRUCTURE INCENTIVES
Sec. 59.021. ELECTION. (a) An incumbent local exchange
company may elect to make an infrastructure commitment and to be
subject to corresponding regulation under this chapter if the
company:
(1) serves less than five percent of the access lines
in this state; and
(2) has not elected incentive regulation under Chapter
58.
(b) A company makes the election by notifying the commission
in writing of the company's election.
(c) A company electing under this chapter may renew the
election for successive two-year periods. An election that is
renewed under this subsection remains in effect until the earlier
of the date that:
(1) the election expires because it was not renewed;
(2) the commission allows the company to withdraw its
election under Section 59.022; or
(3) the legislature eliminates the incentive
regulation authorized by this chapter and Chapter 58.
Sec. 59.022. WITHDRAWAL OF ELECTION. (a) The commission
may allow an electing company to withdraw the company's election
under this chapter:
(1) on application by the company; and
(2) only for good cause.
(b) In this section, "good cause" includes only matters
beyond the control of the company.
Sec. 59.023. ELECTION UNDER CHAPTER 58. (a) This chapter
does not prohibit a company electing under this chapter from
electing incentive regulation under Chapter 58.
(b) If a company makes an election under Chapter 58, the
infrastructure commitment made under this chapter offsets the
infrastructure commitment required in connection with the Chapter
58 election.
Sec. 59.024. RATE CHANGES. (a) Except for the charges
permitted under Subchapter C, Chapter 55, Subchapter B, and Chapter
56, [and Section 55.024,] , an electing company may not, before the
end of the company's elections period under this chapter, increase
a rate previously established for that company under this title
unless the commission approves the proposed change as authorized
under Subsection (c) or (d).
(b) For purposes of Subsection (a), the company's
previously established rates are the rates charged by the company
on its election date without regard to a proceeding pending under:
(1) Section 15.001;
(2) Subchapter D, Chapter 53; or
(3) Subchapter G, Chapter 2001, Government Code.
(c) The commission, on motion of the electing company or on
its own motion, shall adjust prices for services to reflect changes
in Federal Communications Commission separations that affect
intrastate net income by at least 10 percent.
(d) Notwithstanding Subsection (a), the commission, on
request of the electing company, shall allow a rate group
reclassification that results from access line growth.
[(e) Section 58.059 applies to a rate change under this
section.]
Sec. 59.025. SWITCHED ACCESS RATES. Notwithstanding any
other provision of this title, the commission may not, on the
commission's own motion, reduce an electing company's rates for
switched access services before the expiration of the election
period prescribed by Section 59.024 but may approve a reduction
proposed by the electing company.
Sec. 59.026. COMPLAINT OR HEARING. (a) On or before the
end of the company's election period, an electing company is not,
under any circumstances, subject to:
(1) a complaint or hearing regarding the
reasonableness of the company's:
(A) rates;
(B) overall revenues;
(C) return on invested capital; or
(D) net income; or
(2) a complaint that a rate is excessive.
(b) Subsection (a) applies only to a company that is in
compliance with the company's infrastructure commitment under this
chapter.
(c) This section does not prohibit a complaint, hearing, or
determination on an electing company's implementation of a
competitive safeguard required by Chapter 60.
Sec. 59.027. CONSUMER COMPLAINTS REGARDING TARIFFS. (a)
This chapter does not restrict:
(1) a consumer's right to complain to the commission
about the application of an ambiguous tariff; or
(2) the commission's right to determine:
(A) the proper application of that tariff; or
(B) the proper tariff rate if that tariff does
not apply.
(b) This section does not permit the commission to:
(1) lower a tariff rate except as specifically
provided by this title;
(2) change the commission's interpretation of a
tariff; or
(3) extend the application of a tariff to a new class
of customers.
Sec. 59.028. CONSUMER COMPLAINTS REGARDING SERVICES;
ENFORCEMENT OF STANDARDS. This chapter does not restrict:
(1) a consumer's right to complain to the commission
about quality of service; or
(2) the commission's right to enforce a quality of
service standard.
Sec. 59.029. INVESTMENT LIMITATION ON SERVICE STANDARDS.
(a) The commission may not raise a service standard applicable to
the provision of local exchange telephone service by an electing
company if the increased investment required to comply with the
raised standard in any year exceeds 10 percent of the company's
average annual intrastate additions in capital investment for the
most recent five-year period.
(b) In computing the average under Subsection (a), the
electing company shall exclude[: (1)] extraordinary investments
made during the five-year period[; and].
[(2) investments required by Section 59.052.]
Sec. 59.030. NEW SERVICES. (a) An electing company may
introduce a new service 10 days after providing an informational
notice to the commission, to the office, and to any person who holds
a certificate of operating authority in the electing company's
certificated area or areas or who has an effective interconnection
agreement with the electing company.
(b) An electing company shall price each new service at or
above the service's long run incremental cost. The commission
shall allow a company serving fewer than one million access lines to
establish a service's long run incremental cost by adopting, at
that company's option, the cost studies of a larger company for that
service that has been accepted by the commission.
(c) An affected person, the office on behalf of residential
or small commercial customers, or the commission may file a
complaint at the commission challenging whether the pricing by an
electing company of a new service is in compliance with Subsection
(b).
(d) If a complaint is filed under Subsection (c), the
electing company has the burden of proving that the company set the
price for the new service in accordance with the applicable
provisions of this subchapter. If the complaint is finally
resolved in favor of the complainant, the electing company:
(1) shall, not later than the 10th day after the date
the complaint is finally resolved, amend the price of the service as
necessary to comply with the final resolution; or
(2) may, at the company's option, discontinue the
service.
Sec. 59.031. PRICING AND PACKAGING FLEXIBILITY. (a)
[Notwithstanding Section 59.027(b) or Subchapter F, Chapter 60, an]
An electing company may exercise pricing flexibility in accordance
with this section, including the packaging of any regulated service
such as basic local telecommunications service with any other
regulated or unregulated service or any service of an affiliate.
The electing company may exercise pricing flexibility 10 days after
providing an informational notice to the commission, to the office,
and to any person who holds a certificate of operating authority in
the electing company's certificated area or areas or who has an
effective interconnection agreement with the electing company.
[Pricing flexibility includes all pricing arrangements included in
the definition of "pricing flexibility" prescribed by Section
51.002(7) and includes packaging of regulated services with
unregulated services or any service of an affiliate.]
(b) An electing company, at the company's option, shall
price each regulated service offered separately or as part of a
package under Subsection (a) at either the service's tariffed rate
or at a rate not lower than the service's long run incremental cost.
The commission shall allow a company serving fewer than one million
access lines to establish a service's long run incremental cost by
adopting, at that company's option, the cost studies of a larger
company for that service that have been accepted by the commission.
(c) An affected person, the office on behalf of residential
or small commercial customers, or the commission may file a
complaint alleging that an electing company has priced a regulated
service in a manner that does not meet the pricing standards of this
subchapter. The complaint must be filed before the 31st day after
the company implements the rate.
Sec. 59.032. CUSTOMER PROMOTIONAL OFFERINGS. (a) An
electing company may offer a promotion for a regulated service for
not more than 90 days in any 12-month period.
(b) The electing company shall file with the commission a
promotional offering that consists of:
(1) waiver of installation charges or service order
charges, or both, for not more than 90 days in a 12-month period; or
(2) a temporary discount of not more than 25 percent
from the tariffed rate for not more than 60 days in a 12-month
period.
(c) An electing company is not required to obtain commission
approval to make a promotional offering described by Subsection
(b).
(d) An electing company may offer a promotion of any
regulated service as part of a package of services consisting of any
regulated service with any other regulated or unregulated service
or any service of an affiliate.
SUBCHAPTER C. INFRASTRUCTURE COMMITMENT AND GOALS
[Sec. 59.051. INFRASTRUCTURE COMMITMENT. (a) An electing
company shall commit to make in this state, during the six years
after the election date, the telecommunications infrastructure
investment prescribed by this chapter.
[(b) The company shall make the commitment to the governor
and the commission in writing.
[Sec. 59.052. INFRASTRUCTURE GOALS. (a) The commission
shall ensure that each electing company achieves the infrastructure
goals described by this section.
[(b) Each new central office switch installed for an
electing company in this state after September 1, 1995, must be
digital.
[(c) An electing company shall make available to each
customer in the company's territory access to end-to-end digital
connectivity. In this subsection, "make available" has the meaning
assigned by 16 T.A.C. Section 23.69.
[(d) In each electing company's territory, 50 percent of the
local exchange access lines must be served by a digital central
office switch.
[(e) An electing company's public switched network backbone
interoffice facilities must employ broadband facilities that serve
at least 50 percent of the local exchange access lines and are
capable of 45 or more megabits a second. The company may employ
facilities at a lower bandwidth if technology permits the delivery
of video signal at the lower bandwidth at a quality level comparable
to a television broadcast signal. The requirements of this
subsection do not apply to local loop facilities.
[(f) An electing company shall install Common Channel
Signaling 7 capability in each access tandem office.
[(g) The infrastructure goals specified by Subsections
(c)-(f) must be achieved not later than January 1, 2000.
[Sec. 59.053. WAIVER OF INFRASTRUCTURE REQUIREMENTS. (a)
For an electing company that serves fewer than one million lines,
the commission may waive a requirement prescribed by Section 59.052
if the company demonstrates that the investment is not viable
economically.
[(b) Before granting a waiver under Subsection (a), the
commission must consider the public benefits that would result from
compliance with the requirement.
[Sec. 59.054. PROGRESS REPORT. (a) On each anniversary of
the company's election date, an electing company shall file with
the commission a report on the company's progress on its
infrastructure commitment.
[(b) The report must include a statement of:
[(1) the institutions requesting service under
Subchapter D;
[(2) the institutions served under Subchapter D;
[(3) the investments and expenses for the previous
period and the total investments and expenses for all periods; and
[(4) other information the commission considers
necessary.]
Sec. 59.055. IMPLEMENTATION COSTS; INCREASE IN RATES AND
UNIVERSAL SERVICE FUNDS. The commission may not consider the cost
of implementing the costs associated with achievement of the
infrastructure goals contained in ch. 231, § 49 of Acts 1997, 75th
Leg., as continued by ch. 166, § 1, Acts 1997, 75th Leg. (former
Section 59.052 ) in determining whether an electing company is
entitled to:
(1) a rate increase under this chapter; or
(2) increased universal service funds under
Subchapter B, Chapter 56.
SUBCHAPTER D. INFRASTRUCTURE COMMITMENT TO CERTAIN ENTITIES
Sec. 59.071. DEFINITIONS. In this subchapter:
(1) "Educational institution" [has the meaning
assigned by Section 57.021.] includes:
(A) an accredited primary or secondary school;
(B) an institution of higher education as defined
by Section 61.003, Education Code;
(C) a private institution of higher education
accredited by a recognized accrediting agency as defined by Section
61.003, Education Code;
(D) the Texas Education Agency and its successors
and assigns;
(E) a regional education service center
established and operated in accordance with Chapter 8, Education
Code; or
(F) the Texas Higher Education Coordinating
Board and its successors and assigns.
(2) "Library" [has the meaning assigned by Section
57.042.] means:
(A) a public library or regional library system
as defined by Section 441.122, Government Code; or
(B) a library operated by an institution of
higher education or a school district.
(3) "Private network services" means
telecommunications services provided to an entity described by
Section 59.072(a), including broadband services, customized
services, and packaged network services.
(4) "Telemedicine center" means a facility that is
equipped to transmit, by video or data service, medical information
for the diagnosis or treatment of illness or disease and that is:
(A) owned or operated by a public or
not-for-profit hospital; or
(B) owned by a state-licensed health care
practitioner and operated on a nonprofit basis.
Sec. 59.072. PRIVATE NETWORK SERVICES FOR CERTAIN ENTITIES.
(a) On customer request, an electing company shall provide private
network services to:
(1) an educational institution;
(2) a library;
(3) a telemedicine center; or
(4) a legally constituted consortium or group of
entities listed in this subsection.
(b) Except as provided by Section 59.081, the electing
company shall provide the private network services for the private
and sole use of the receiving entity. However, the company may
provide the services with a facility that is used to provide another
service to another customer.
(c) The customers listed in Subsection (a) are a special
class of customers for purposes of the private network for distance
learning, telemedicine, and information-sharing purposes.
Sec. 59.073. INVESTMENT PRIORITIES. An electing company
shall give investment priority to serving:
(1) rural areas;
(2) areas designated as critically underserved
medically or educationally; and
(3) educational institutions with high percentages of
economically disadvantaged students.
Sec. 59.074. CONTRACTS FOR PRIVATE NETWORK SERVICES. (a)
An electing company shall provide a private network service under a
customer-specific contract.
(b) An electing company shall offer private network service
contracts under this subchapter at 110 percent of the long run
incremental cost of providing the private network service,
including installation costs.
(c) Each contract shall be filed with the commission.
Commission approval of a contract is not required.
Sec. 59.075. PREFERRED RATE TREATMENT WARRANTED. The
classes of customers described by Section 59.072(a) warrant
preferred rate treatment. However, a rate charged for a service
must cover the service's long run incremental cost.
Sec. 59.076. ELECTION OF RATE TREATMENT. An educational
institution or a library may elect the rate treatment provided by
this subchapter or the discount provided by Subchapter B, Chapter
57.
Sec. 59.077. PRIVATE NETWORK SERVICES RATES AND TARIFFS.
(a) Notwithstanding the pricing flexibility authorized by this
subtitle, an electing company's rates for private network services
may not be increased on or before the sixth anniversary of the
company's election date.
(b) An electing company may not assess an entity described
by Section 59.072(a) a tariffed special construction or
installation charge unless the company and the entity agree on the
assessment.
Sec. 59.078. PRIVATE LINE OR SPECIAL ACCESS RATES. (a) On
request by an educational institution or a library, an electing
company shall provide 1.544 megabits a second private line or
special access service at 110 percent of the service's long run
incremental cost, including installation costs.
(b) The rate provided by Subsection (a) is in lieu of the
discount provided by Subchapter B, Chapter 57.
Sec. 59.079. COMPLAINTS LIMITED. Notwithstanding any other
provision of this title, an electing company is subject to a
complaint under Subchapter C or this subchapter only by an entity
described by Section 59.072(a).
Sec. 59.080. INTERCONNECTION OF NETWORK SERVICES. The
private network services provided under this subchapter may be
interconnected with other similar networks for distance learning,
telemedicine, and information-sharing purposes.
Sec. 59.081. SHARING OR RESALE OF NETWORK SERVICES. (a) A
private network service may be used and shared among the entities
described by Section 59.072(a) but may not be otherwise shared or
resold to other customers.
(b) A service provided under this subchapter may not be
required to be resold to other customers at a rate provided by this
subchapter.
(c) This section does not prohibit an otherwise permitted
resale of another service that an electing company may offer
through the use of the same facilities used to provide a private
network service offered under this subchapter.
Sec. 59.082. IMPLEMENTATION COSTS; INCREASE IN RATES AND
UNIVERSAL SERVICE FUNDS. The commission may not consider the cost
of implementing this subchapter in determining whether an electing
company is entitled to:
(1) a rate increase under this chapter; or
(2) increased universal service funds under
Subchapter B, Chapter 56.
CHAPTER 60. FAIR COMPETITION AND COMPETITIVE SAFEGUARDS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 60.001. FAIR COMPETITION. [To the extent necessary to
ensure that competition in telecommunications is fair to each
participant and to accelerate the improvement of
telecommunications in this state, the commission shall ensure that
the rates and rules of an incumbent local exchange company:] (a) A
rate, term, condition or a practice shall not be:
(1) unreasonably preferential, prejudicial, or
discriminatory;
(2) improperly subsidized either directly or
indirectly; or
(3) predatory or anticompetitive.
(b) [(1) are not] Notwithstanding other definitions and
standards that may be applicable under state or federal law, for
purposes of this Chapter: (i) a rate may be predatory,
anticompetitive, or improperly subsidized if each component
service for purposes of reporting to taxing authorities is not set
at or above its long run incremental cost, (ii) a rate, term,
condition or practice may be unreasonably preferential,
prejudicial, or discriminatory[; and] if it is not offered or
applicable to all comparably situated customers within a
metropolitan statistical area, (iii) a rate, term, condition or
practice may be anticompetitive regardless of whether it also
constitutes a breach of a duty of interconnection or
nondiscriminatory access. End users are considered comparably
situated for purposes of this section if they are within the same
customer class (e.g. residential versus business). No restriction
on the availability of a retail service for resale shall be
permitted except as specifically allowed under federal law.
(c) [(2) are applied equitably and consistently.
[Sec. 60.002. EXCLUSIVE JURISDICTION; ENFORCEMENT. (a)
The commission has exclusive jurisdiction to implement competitive
safeguards.
[(b) Section 58.025 does not prevent the commission from
enforcing] It shall not be a defense to a claim brought under this
[chapter] Chapter or under state or federal antitrust laws that the
rates charged, terms and conditions applied, or the practice
engaged in is protected state action.
(d) In addition to (a) through (c) of this section, all
providers shall be bound by a Code of Conduct adopted and enforced
by the commission which will ensure integrity of business practices
in carrier-to-carrier, marketing and advertising practices.
(e) A complaint under this Chapter shall be arbitrated at
the election of any party to the dispute. If arbitration is
elected, the dispute shall be expeditiously adjudicated by binding
arbitration before a panel of three independent arbitrators. Each
party shall select one member and the members thus chosen shall
select the third. In the event the arbitrators chosen by the
parties are unable to agree on the third member of the panel, they
shall request a list of candidates from an independent alternative
dispute resolution organization, and the third member shall be
elected in accordance with the published procedures of the
alternative dispute resolution organization. The arbitration
shall be conducted in accordance with the rules of such
organization unless mutually agreed by the parties. The panel
shall be specifically authorized and empowered to award damages,
including punitive damages. Further, the panel may issue
preliminary and permanent injunctive relief. The panel shall issue
its final decision within 180 days from the date arbitration is
requested. The decision of the arbitration panel shall be final and
the award shall be entitled to confirmation unless overturned or
modified pursuant to narrowly defined grounds for judicial review
set forth in Tex. Civ. Prac. & Rem. Code section 171.088 (a) (1),
(2), or (3). The fees and expenses the parties and of the
arbitration panel shall be allocated between the parties by the
panel in a manner consistent with the relief granted.
Sec. 60.003. COMMISSION AUTHORITY. (a) [(a)] The
commission [may:(1)] has all necessary authority to establish
procedures [with respect to a policy stated in this subchapter or
Subchapters B-H;] and resolve disputes arising under this Chapter,
and to provide and enforce remedies including, but not limited to,
injunctive relief.
(b) Notwithstanding the provisions of section 15.023(b),
for [(2) resolve] a [dispute that arises] violation of this
subchapter the commission may impose administrative penalties up to
$100,000 per day for each violation, which penalty shall apply day
for day for the duration of the violation. The imposition of such
administrative penalty shall not constitute an exclusive remedy
under [a policy described by Subdivision (1)] the law.
(c) The commission must resolve a complaint filed with it
under this chapter not later than 270 days after the complaint is
filed.
(d) Any appeal from a commission order issued under this
Chapter, except orders issued in connection with interconnection
under Subchapter G, shall be subject to judicial review by appeal
directly to the Court of Appeals in Travis County.
[(b) The commission shall adopt procedures for a proceeding
under Subchapters B and C. A procedure may:
[(1) limit discovery; and
[(2) for purposes of cross-examination align any
party, other than the office, with another party that has a similar
position.
[(c) In adopting a procedure under this section and in
resolving a dispute, the commission shall consider the action's
effect on:
[(1) consumers;
[(2) competitors; and
[(3) the incumbent local exchange company.
[(d) The commission, by order or rule, may not implement a
requirement that is contrary to a federal law or rule.
[Sec. 60.004. APPLICABILITY TO CERTAIN SMALLER INCUMBENT
LOCAL EXCHANGE COMPANIES; RULES. (a) Subchapters B, C, and H may
be applied to an incumbent local exchange company that serves fewer
than 31,000 access lines only on a bona fide request from a
certificated telecommunications utility.
[(b) In applying the rules adopted under Subchapters B, C,
and H to a company described by Subsection (a), the commission may
modify the rules in the public interest.
[(c) This section takes effect September 1, 1998.
[Sec. 60.0041. APPLICABILITY TO CERTAIN SMALLER INCUMBENT
LOCAL EXCHANGE COMPANIES. (a) Subchapters B, C, E, G, and H do not
apply to an incumbent local exchange company that serves fewer than
31,000 access lines.
[(b) This section expires September 1, 1998.
[Sec. 60.005. APPLICABILITY TO CERTAIN LARGER INCUMBENT
LOCAL EXCHANGE COMPANIES; RULES. (a) Subchapters B, D, and F may
be applied to an incumbent local exchange company that, as of
September 1, 1995, has 31,000 or more access lines in this state but
fewer than one million access lines in this state only on a bona
fide request from a holder of a certificate of operating authority
or a service provider certificate of operating authority.
[(b) In applying the rules adopted under Subchapters B, D,
and F to a company described by Subsection (a), the commission may
modify the rules in the public interest.
[Sec. 60.006. BULLETIN BOARD SYSTEMS UNAFFECTED. This
subtitle does not:
[(1) require the commission to change the rate
treatment established by the commission in Docket No. 8387 for a
bulletin board system in a residence;
[(2) regulate or tax a bulletin board system or
Internet service provider that provides only enhanced or
information services and that does not provide a telecommunications
service; or
[(3) require a change in a rate charged to an entity
described by Subdivision (2) under a tariff in effect on September
1, 1995.
[SUBCHAPTER B. UNBUNDLING
[Sec. 60.021. MINIMUM UNBUNDLING REQUIREMENT. At a
minimum, an incumbent local exchange company shall unbundle its
network to the extent the Federal Communications Commission orders.
[Sec. 60.022. COMMISSION UNBUNDLING ORDERS. (a) The
commission may adopt an order relating to the issue of unbundling of
local exchange company services in addition to the unbundling
required by Section 60.021.
[(b) Before ordering further unbundling, the commission
must consider the public interest and competitive merits of further
unbundling.
[(c) On the request of a party, the commission shall proceed
by evidentiary hearing. If a request for a hearing is not made, the
commission may proceed by rulemaking.
[Sec. 60.023. ASSIGNMENT OF UNBUNDLED COMPONENT TO CATEGORY
OF SERVICE. The commission may assign an unbundled component to the
appropriate category of services under Chapter 58 according to the
purposes and intents of the categories.
[SUBCHAPTER C. RESALE
[Sec. 60.041. LOOP RESALE TARIFF. (a) An incumbent local
exchange company that on September 1, 1995, serves one million or
more access lines or that on or before September 1, 1995, elects
regulation under Chapter 58 shall file a usage sensitive loop
resale tariff.
[(b) An incumbent local exchange company shall file a usage
sensitive loop resale tariff not later than the 60th day after the
date a certificate of operating authority or a service provider
certificate of operating authority is granted under Chapter 54 if
the company:
[(1) serves fewer than one million access lines; and
[(2) is not an electing company under Chapter 58.
[(c) The commission shall conduct an appropriate proceeding
to determine the rates and terms of the resale tariff not later than
the 180th day after the date the tariff is filed.
[(d) The commission may not approve a usage sensitive rate
unless the rate recovers:
[(1) the total long run incremental cost of the loop on
an unseparated basis; and
[(2) an appropriate contribution to joint and common
costs.
[(e) Except as provided by Section 60.044, a person may not
purchase from the resale tariff unless the person is the holder of:
[(1) a certificate of convenience and necessity;
[(2) a certificate of operating authority; or
[(3) a service provider certificate of operating
authority.
[(f) In this section, "loop resale" means the purchase of
the local distribution channel or loop facility from the incumbent
local exchange company to resell to end user customers.
[Sec. 60.042. PROHIBITED RESALE OR SHARING. (a) A provider
of telecommunications service may not impose a restriction on the
resale or sharing of a service:
[(1) for which the provider is not a dominant
provider; or
[(2) entitled to regulatory treatment as a nonbasic
service under Subchapter E, Chapter 58, if the provider is a company
electing regulation under Chapter 58.
[(b) An incumbent local exchange company must comply with
the resale provisions of 47 U.S.C. Section 251(c)(4), as amended,
unless exempted under 47 U.S.C. Section 251(f), as amended.
[(c) If a company electing under Chapter 58 offers basic or
nonbasic services regulated by the commission to its retail
customers as a promotional offering, the electing company shall
make those services available for resale by a certificated
telecommunications utility on terms that are no less favorable than
the terms on which the services are made available to retail
customers in accordance with this section. For a promotion with a
duration of 90 days or less, the electing company's basic or
nonbasic services shall be made available to the certificated
telecommunications utility at the electing company's promotional
rate, without an avoided-cost discount. For a promotion with a
duration of more than 90 days, the electing company's basic or
nonbasic services shall be made available to the certificated
telecommunications utility at a rate reflecting the avoided-cost
discount, if any, from the promotional rate.
[Sec. 60.043. RESALE OBLIGATION. A holder of a certificate
of operating authority or a service provider certificate of
operating authority shall permit a local exchange company to resell
the holder's loop facilities at the holder's regularly published
rates if the local exchange company:
[(1) does not have loop facilities; and
[(2) has a request for service.
[Sec. 60.044. ELIMINATION OF RESALE PROHIBITIONS. (a)
Except as provided by Subsections (c) and (d), the commission shall
eliminate all resale prohibitions in the tariffs of an electing
company on the:
[(1) completion of the commission's costing and
pricing rulemaking;
[(2) completion of rate rebalancing of the incumbent
local exchange company rates under Subchapter F; and
[(3) removal of all prohibitions on an incumbent local
exchange company's provision of interLATA services.
[(b) Except as provided by Subsections (c) and (d), the
commission shall eliminate all resale prohibitions in the tariffs
of an electing company that has one million access lines or more on
removal of all prohibitions on the company's provision of interLATA
service.
[(c) After the resale prohibitions are eliminated under
this section:
[(1) the commission shall continue to prohibit the
resale of local exchange or directory assistance flat rate services
as a substitute for usage sensitive services; and
[(2) residence service may not be resold to a business
customer.
[(d) A service or function may be offered for resale only to
the same class of customer to which the incumbent local exchange
company sells the service if the commission finds that:
[(1) as a result of the costing and pricing proceeding
the rate for the service or function will be less than the cost of
providing the service or function; and
[(2) the difference in rate and cost will not be
recovered from the universal service fund.
[Sec. 60.045. RESALE OR SHARING ARRANGEMENTS UNAFFECTED.
This subchapter does not change a resale or sharing arrangement
permitted in an incumbent local exchange company tariff that:
[(1) existed on September 1, 1995; or
[(2) was filed on or before May 1, 1995, by an
incumbent local exchange company that serves more than five million
access lines in this state.
[SUBCHAPTER D. IMPUTATION
[Sec. 60.061. RULES. (a) The commission shall adopt rules
governing imputation of the price of a service.
[(b) Imputation is a regulatory policy the commission shall
apply to prevent an incumbent local exchange company from selling a
service or function to another telecommunications utility at a
price that is higher than the rate the incumbent local exchange
company implicitly includes in services it provides to the
company's retail customers.
[(c) The commission may require imputation only of the price
of a service that is:
[(1) not generally available from a source other than
the incumbent local exchange company; and
[(2) necessary for the competitor to provide a
competing service.
[(d) The commission may require imputation only on a
service-by-service basis and may not require imputation on a
rate-element-by-element basis.
[(e) For a service for which the commission may require
imputation under Subsection (c) and that is provided under a
customer specific contract, the commission:
[(1) may require imputation only on a
service-by-service basis within the contract; and
[(2) may not require imputation on a
rate-element-by-element basis.
[Sec. 60.062. EXCEPTION FOR CAPPED PRICE. The commission
may not require imputation of the price to a local exchange
telephone service while the price is capped under Chapter 58 or 59.
[Sec. 60.063. IMPUTATION FOR SWITCHED ACCESS. The
commission shall impute the price of switched access service to the
price of each service for which switched access service is a
component until switched access service is competitively
available.
[Sec. 60.064. RECOVERY OF COST OF PROVIDING SERVICE. (a)
An incumbent local exchange company shall demonstrate that the
price it charges for retail service recovers the cost of providing
the service.
[(b) For purposes of this section, the cost of providing the
service is the sum of:
[(1) each specifically tariffed premium rate for each
noncompetitive service or service function, or each element of a
noncompetitive service or service function, or the functional
equivalent, that is used to provide the service;
[(2) the total service long run incremental cost of
the competitive services or service functions that are used;
[(3) each cost, not reflected in Subdivision (1) or
(2), that is specifically associated with providing the service or
group of services; and
[(4) each cost or surcharge associated with an
explicit subsidy applied to all providers of the service to promote
universal service.
[Sec. 60.065. WAIVERS. If the commission determines that a
waiver is in the public interest, the commission may waive an
imputation requirement for a public interest service such as:
[(1) 9-1-1 service; or
[(2) dual party relay service.]
SUBCHAPTER E. TELECOMMUNICATIONS NUMBER PORTABILITY
Sec. 60.081. DEFINITION. In this subchapter,
"telecommunications number portability" means the ability of a
telecommunications services user who is changing from one
telecommunications service provider to another provider to retain a
telephone number, to the extent technically feasible, without
impairing the quality, reliability, or convenience of service.
Sec. 60.082. PORTABILITY GUIDELINES. (a) Because a
uniform national number plan is valuable and necessary to this
state, the commission by rule shall adopt guidelines governing
telecommunications number portability and the assignment of
telephone numbers in a competitively neutral manner.
(b) [The] Commission rules [may not] shall be
[inconsistent] consistent with the rules and regulations of the
Federal Communications Commission regarding telecommunications
number portability and not impose any obligations beyond those
required under federal law.
[Sec. 60.083. INTERIM RETENTION OF CONSUMER NUMBERS. As an
interim measure, the commission shall adopt reasonable mechanisms,
including, at minimum, the use of call forwarding and direct inward
dialing, to allow consumers to retain their telephone numbers.
[Sec. 60.084. RATES FOR INTERIM PORTABILITY MEASURES. (a)
An incumbent local exchange company with one million or more access
lines shall file tariffs, and the commission shall determine
reasonable rates to be charged by the company for:
[(1) call forwarding;
[(2) direct inward dialing; and
[(3) any other mechanism the commission determines
should be used as an interim telecommunications number portability
measure by a new entrant.
[(b) An incumbent local exchange company with fewer than one
million access lines that serves an area in which a certificate of
operating authority or a service provider certificate of operating
authority has been granted shall, not later than the 60th day after
the date of a bona fide request, file tariffs in accordance with
Subsection (a).
[(c) Not later than the 60th day after the date a company
files tariffs under Subsection (b), the commission shall determine
reasonable rates in accordance with Subsection (a).
[SUBCHAPTER F. PRICING
[Sec. 60.101. PRICING RULE. (a) The commission shall adopt
a pricing rule.
[(b) In adopting the pricing rule, the commission shall:
[(1) ensure that each price for a monopoly service
remains affordable;
[(2) ensure that each price for competitive service is
not:
[(A) unreasonably preferential, prejudicial, or
discriminatory;
[(B) directly or indirectly subsidized by a
noncompetitive service; or
[(C) predatory or anticompetitive; and
[(3) require that each service recover the appropriate
costs, including joint and common costs, of each facility and
function used to provide the service.
[Sec. 60.102. ADOPTION OF COST STUDIES BY CERTAIN
COMPANIES. The commission shall allow an incumbent local exchange
company that is not a Tier 1 local exchange company on September 1,
1995, to adopt, at that company's option, the cost studies approved
by the commission for a Tier 1 local exchange company.]
SUBCHAPTER G. INTERCONNECTION
Sec. 60.121. DEFINITION. In this subchapter,
"interconnection" means [, for calls that originate] transmission,
routing and [terminate in this state, the] termination [of local
intraexchange] traffic of another [local exchange company or holder
of a service provider certificate of operating authority] Network
Provider or Service Provider within [the local calling] a area
served by the interconnecting providers. The term
"interoperability" means the standards necessary to ensure that
Network and Service Providers conduct their business in a way that
enables consumers to efficiently communicate with each other and to
exercise their choice of [the terminating local exchange company or
certificate holder] provider and service without unreasonable
disruption and delay.
Sec. 60.122. EXCLUSIVE JURISDICTION. The commission has
exclusive jurisdiction to determine interconnection rates [and],
terms [for interconnection for a holder of a certificate of
convenience] and [necessity, a certificate] conditions for
interconnection in accordance with the terms of [operating] this
Act. The commission has all necessary authority[, or a service
provider certificate] to promulgate rules and conduct proceedings
to implement this subchapter. The commission has all necessary but
not exclusive jurisdiction to resolve disputes regarding breach of
[operating] interconnection [authority] obligations.
Sec. 60.123. INAPPLICABILITY OF SUBCHAPTER. This
subchapter does not apply to a rate for the existing termination of
[cellular] commercial mobile radio service (CMRS) or interexchange
telecommunications service traffic. No requirement of this
subchapter shall impose an obligation on a provider that is exempt
from such requirement under federal law.
Sec. 60.124. INTEROPERABLE NETWORKS REQUIRED. (a) The
commission shall require each [telecommunications provider]
Network and Service Provider to maintain interoperable networks.
(b) A Network or service Provider shall be entitled to
interconnect at least at a single point of interconnection within a
LATA. Such point shall be technically feasible, efficient from a
network and economic standpoint and transparent to the consumer.
(c) [(b)] The commission may:
(1) adopt rules, including generic rules that are
responsive to changes in federal law or a development in the [local
exchange] market; and
(2) set policies consistent with federal law governing
interconnection arrangements.
Sec. 60.125. DETERMINATION OF INTERCONNECTION RATES. (a)
Except where mutually agreed by the parties, and as approved under
subsection (c) of this section, the rates for traffic exchanged
pursuant to interconnection agreements shall be as follows: (i)
intraLATA toll traffic shall be at parity with interstate switched
access rates, (ii) transit traffic rate approved by the commission
in Docket No. 28821, and (iii) all other traffic at 0.00075 per
minute. Other interconnection rates, including rates for
facilities necessary for interconnecting, shall be based on TELRIC.
(b) [(a)] Telecommunications providers shall negotiate
network interconnectivity, [charges, and] terms and conditions.
(c) [(b)] If interconnectivity [, charges, and] terms and
conditions are successfully negotiated, the commission shall
approve the interconnection [rates] agreement if it finds the
agreement to be in the public interest and nondiscriminatory.
[(c) If telecommunications providers do not enter into a
mutually agreed compensation rate under this section, each provider
shall reciprocally terminate the other provider's traffic at no
charge for the first nine months after the date the first call is
terminated between the providers.
[(d) During the nine-month period prescribed by Subsection
(c), the commission shall complete a proceeding to establish
reciprocal interconnection rates and terms. The commission shall
establish reciprocal interconnection rates and terms based solely
on the commission proceeding.
[(e) In establishing the initial interconnection rate, the
commission may not require cost studies from the new entrant.
[(f) On or after the third anniversary of the date the first
call is terminated between the providers, the commission, on
receipt of a complaint, may require cost studies by a new entrant to
establish interconnection rates.] (d) The commission shall have
all necessary authority to promulgate rules and conduct proceedings
as necessary to implement and enforce this section.
Sec. 60.126. INTERCONNECTIVITY NEGOTIATIONS; DISPUTE
RESOLUTION. A party to interconnection negotiations may file for
resolution of disputed issues between 135 and 180 days of receipt of
a request for negotiation. The commission [may] shall resolve a
dispute filed by a party to a negotiation under Section 60.125(a)
within 270 days of the date the request for negotiation was
received.
Sec. 60.127. ADOPTION OF APPROVED INTERCONNECTION RATES.
[(a) An incumbent local exchange company] A Network or Service
Provider may adopt [the] any interconnection [rates] agreement
approved by the commission [approves for a larger incumbent local
exchange company without additional cost justification].
[(b) If an incumbent local exchange company does not adopt
the interconnection rates of a larger company or negotiates under
Section 60.125(a), the company is governed by Sections
60.125(c)-(f).
[(c) If the incumbent local exchange company adopts the
interconnection rates of another incumbent local exchange company,
the new entrant may adopt those rates as the new entrant's
interconnection rates.
[(d) If the incumbent local exchange company elects to file
its own tariff, the new entrant must also file its own
interconnection tariff.]
Sec. 60.128. [USE OF RATES RESTRICTED] CONSUMER ORIENTED
STANDARDS. The commission [may not use interconnection rates under
this subchapter as a basis to alter interconnection rates for other
services.
[SUBCHAPTER H. EXPANDED INTERCONNECTION
[Sec. 60.141. EXPANDED INTERCONNECTION RULES. The
commission shall adopt rules for expanded interconnection that:
[(1) are consistent with the rules and regulations of
the Federal Communications Commission relating to expanded
interconnection;
[(2) treat intrastate private line services as special
access service; and
[(3) provide that if an incumbent local exchange
company is required to provide expanded interconnection to another
local exchange company] shall adopt rules applicable to all
interconnecting entities which ensure that E-911 systems, [the
second local exchange company shall in a similar manner provide
expanded interconnection to the first company] number portability
and other customer migration processes, operator services; white
pages, telephone directory listings, publication and distribution;
directory assistance and such other consumer friendly services are
efficient and secure for consumers.
Sec. 60.130 VoIP PROVIDERS. To the extent that federal law
has not been held to preclude the exercise of interconnection
rights as specified in Title 47 U.S.C. sections 251 and 252 by
facilities-based VoIP providers, such entities shall also be
presumed to have such rights and obligations under Texas law and
shall be entitled to use the commission as a forum for mediating or
arbitrating interconnection agreements with network providers and
service providers within Texas. Any facilities-based VoIP provider
seeking to invoke such rights at the Texas commission shall be
required to certify that it will comply with the requirements of
Title 47 U.S.C. section 251(a) with respect to telecommunications
carriers and other broadband service providers. Nothing herein
shall be construed to grant to the commission or any state or local
government authority to regulate VoIP services beyond that
authority granted or permitted by federal law.
SUBCHAPTER [I. LOCAL EXCHANGE COMPANY] H. NETWORK PROVIDER AND
SERVICE PROVIDER REQUIREMENTS
Sec. 60.161. [INCUMBENT LOCAL EXCHANGE COMPANY] NETWORK
PROVIDER AND SERVICE PROVIDER REQUIREMENTS. [An incumbent local
exchange company] Network providers and service providers may not
[unreasonably]:
(1) discriminate against another provider [by
refusing access to the local exchange] in providing
interconnection; traffic exchange terms and conditions; or
facility use, rates, terms and conditions for purposes of
exchanging traffic between and among providers;
(2) refuse or delay an interconnection to another
provider;
(3) degrade the quality of access the company provides
to another provider;
(4) impair the speed, quality, or efficiency of a line
used by another provider;
(5) fail to fully disclose in a timely manner on
request all available information necessary to design equipment
that will meet the specifications of the local exchange network;
[or]
(6) refuse or delay access by a person to another
provider[.]; or
(7) fail to fully disclose information necessary to
determine compliance with these requirements.
[Sec. 60.162. EXPANDED INTERCONNECTION. This subchapter
does not require an incumbent local exchange company to provide
expanded interconnection as that term is defined by the Federal
Communications Commission.
[Sec. 60.163. INFRASTRUCTURE SHARING. (a) The commission
shall adopt rules that require a local exchange company to share
public switched network infrastructure and technology with a
requesting local exchange company that lacks economies of scale or
scope, to enable the requesting company to provide
telecommunications services in each geographic area for which the
requesting company is designated as the sole carrier of last
resort.
[(b) The rules governing the sharing:
[(1) may not require a local exchange company to make a
decision that is uneconomic or adverse to the public;
[(2) shall permit, but may not require, joint
ownership and operation of public switched network infrastructure
and services by or among the local exchange companies that share
infrastructure; and
[(3) shall establish conditions that promote
cooperation between local exchange companies.
[Sec. 60.164. PERMISSIBLE JOINT MARKETING. Except as
prescribed in Chapters 61, 62, and 63, the commission may not adopt
any rule or order that would prohibit a local exchange company from
jointly marketing or selling its products and services with the
products and services of any of its affiliates in any manner
permitted by federal law or applicable rules or orders of the
Federal Communications Commission.
[Sec. 60.165. AFFILIATE RULE. Except as prescribed in
Chapters 61, 62, and 63, the commission may not adopt any rule or
order that would prescribe for any local exchange company any
affiliate rule, including any accounting rule, any cost allocation
rule, or any structural separation rule, that is more burdensome
than federal law or applicable rules or orders of the Federal
Communications Commission. Notwithstanding any other provision in
this title, the commission may not attribute or impute to a local
exchange company a price discount offered by an affiliate of the
local exchange company to the affiliate's customers. This section
does not limit the authority of the commission to consider a
complaint brought under Subchapter A, Chapter 52, Section 53.003,
or this chapter.
[CHAPTER 61. INFORMATION TECHNOLOGY SERVICES
[SUBCHAPTER A. GENERAL PROVISIONS
[Sec. 61.001. DEFINITIONS. In this chapter:
[(1) "Management consulting" means the development,
refinement, and coordination of a strategy to support a client's
business direction, positively affect business performance, and
improve an operating result, in a field such as business planning,
operations, information technology, marketing, finance, and human
resources.
[(2) "Process management" means the ongoing
responsibility for direction and operation of a business process in
an enterprise in a field such as administration, finance, human
resources, operations, sales, or marketing.
[(3) "Systems development" means the creation,
migration, or improvement of a computer system, including hardware
and software, to:
[(A) meet a specific business need; or
[(B) take advantage of a change in information
technology.
[(4) "Systems integration" means the acquisition,
installation, and integration of hardware, software,
communications, and related support components or services.
[(5) "Systems management" means the ongoing
management and operation of information technology components,
ranging from specialized system applications to an enterprise's
entire information technology function, including related
facilities and personnel.
[SUBCHAPTER B. PROVISION OF INFORMATION TECHNOLOGY SERVICES
[Sec. 61.021. PROVISION OF CERTAIN SERVICES OR PRODUCTS
PROHIBITED. (a) A local exchange company that serves more than
five million access lines in this state may not provide the
following customized business services or products to a customer
who has 50 or more access lines in this state:
[(1) management consulting, except for consulting
related exclusively to telecommunications;
[(2) information technology process or systems
development;
[(3) information technology process or systems
integration; or
[(4) information technology process or systems
management.
[(b) This section does not apply to a service or product
provided on September 1, 1995.
[Sec. 61.022. PERMISSIBLE SERVICES AND PRODUCTS. Section
61.021 does not prohibit:
[(1) an affiliate of the local exchange company from
providing a service or product described by that section in
accordance with this subchapter and Subchapter C; or
[(2) a local exchange company from:
[(A) providing a service or product described by
Section 61.021 to an affiliate if:
[(i) the company is not providing a service
or product described by that section to a nonaffiliated third
party; and
[(ii) there is not an affiliate of the
company engaged in providing a service or product described by that
section to a nonaffiliated third party;
[(B) providing mass market and consumer market
products and services directly to a customer that:
[(i) has fewer than 50 access lines in this
state; and
[(ii) uses or relies on the use of
information services, information systems, or information
technology or processes;
[(C) selling or leasing billing and collection
services, local area networks, wide area networks, or other
telecommunications services; or
[(D) providing to itself a service or product
described by Section 61.021.
[Sec. 61.023. SEPARATE AFFILIATE REQUIREMENTS. (a) A
local exchange company's affiliate that provides a service or
product described by Section 61.021:
[(1) shall:
[(A) operate independently from the local
exchange company in providing the service or product; and
[(B) maintain the affiliate's own books of
accounts; and
[(2) may not have an officer, director, or employee in
common with the local exchange company.
[(b) Notwithstanding Subsection (a)(2), an officer of a
corporate parent or holding company may serve as a director of the
local exchange company and as a director of another subsidiary of
the parent if the subsidiary existed on September 1, 1995.
[Sec. 61.024. ARM'S-LENGTH TRANSACTIONS. A local exchange
company and an affiliate shall conduct at arm's length each
transaction regarding the acquisition from the affiliate of a
service or product described by Section 61.021.
[Sec. 61.025. CONTRACTS AND RECORDS. (a) A local exchange
company shall maintain and keep available for inspection by the
commission copies of each contract or arrangement between the
company and an affiliate that relates to the company's acquisition
from the affiliate of a service or product described by Section
61.021.
[(b) The local exchange company's records must show each
cash or noncash transaction with the affiliate for the service or
product, including each payment for a good, service, or property
right.
[Sec. 61.026. JOINT OWNERSHIP OR USE PROHIBITED. A local
exchange company and an affiliate engaged in providing a service or
product described by Section 61.021 may not:
[(1) own property jointly; or
[(2) share in the use of property.
[SUBCHAPTER C. ADDITIONAL COMPETITIVE SAFEGUARDS
[Sec. 61.041. PROHIBITED DISCRIMINATION. A local exchange
company may not discriminate between an affiliate that provides a
service or product described by Section 61.021 and another person
in:
[(1) providing or procuring a good, a service, a
facility, or information; or
[(2) establishing a standard.
[Sec. 61.042. SUBSIDIZATION OF SERVICES PROHIBITED. A
local exchange company or the company's affiliate may not subsidize
the provision of a service or product described by Section 61.021
with revenue from:
[(1) a local exchange telephone service; or
[(2) an access service provided by the local exchange
company.
[Sec. 61.043. PERMISSIBLE INVESTMENT. This subchapter
does not prohibit a local exchange company's affiliate from
investing a dividend or profit derived from a local exchange
company or developing a service or product described by
Section 61.021 for the local exchange company if the investment or
development complies with Subchapter B.
[CHAPTER 62. BROADCASTER SAFEGUARDS
[SUBCHAPTER A. GENERAL PROVISIONS
[Sec. 62.001. APPLICABILITY OF CHAPTER. This chapter does
not apply to a cable company.
[Sec. 62.002. DEFINITIONS. In this chapter:
[(1) "Audio programming":
[(A) means programming:
[(i) provided by an amplitude modulation or
frequency modulation broadcast radio station; or
[(ii) generally considered comparable to
programming described by Subparagraph (i); and
[(B) does not include an audio-related service
offered by an incumbent local exchange company on September 1,
1995.
[(2) "Video programming" means programming provided
by or generally considered comparable to programming provided by a
television broadcast station as defined by Section 602,
Communications Act of 1934 (47 U.S.C. Section 522).
[SUBCHAPTER B. CUSTOMER PROPRIETARY NETWORK INFORMATION
[Sec. 62.021. DEFINITIONS. In this subchapter:
[(1) "Specific customer proprietary network
information" means information, other than subscriber list
information:
[(A) that concerns the customer and is available
to the telecommunications utility because of the customer's use of
the telecommunications utility service;
[(B) that is contained in the bills relating to
telecommunications services received by a customer of a
telecommunications utility; or
[(C) that:
[(i) is made available to a
telecommunications utility by a customer of the utility, other than
a wireless telecommunications provider, solely because of the
utility-customer relationship; and
[(ii) relates to the quantity, technical
configuration, type, destination, or amount of use of voice or data
telecommunications services to which the customer subscribes.
[(2) "Subscriber list information" means information:
[(A) that identifies the listed name of a
telecommunications utility subscriber or the subscriber's
telephone number, address, or primary advertising classification;
and
[(B) that the telecommunications utility or an
affiliate has published or accepted for publication.
[Sec. 62.022. USE OF SPECIFIC CUSTOMER PROPRIETARY NETWORK
INFORMATION. (a) A telecommunications utility may not use
specific customer proprietary network information for a commercial
purpose other than the sale or provision of, or billing or
collection for, telecommunications or enhanced services.
[(b) This section does not prohibit:
[(1) the use of specific customer proprietary network
information with the customer's consent; or
[(2) the provision of specific customer proprietary
network information to an affiliate telecommunications provider.
[(c) Subsection (a) has no effect to the extent it is
preempted by an action of the Federal Communications Commission.
[Sec. 62.023. RULES. (a) The commission shall adopt rules
that are consistent with rules on the use of specific customer
proprietary network information adopted by the Federal
Communications Commission.
[(b) Rules adopted under Subsection (a) shall:
[(1) require each telecommunications utility annually
to notify, by means approved by the commission, each subscriber of
the subscriber's right to reject the utility's use of specific
customer proprietary network information for marketing other
services; and
[(2) require a telecommunications utility that makes
nonproprietary aggregate customer proprietary network information
available to its affiliates to make the information available to
nonaffiliated entities on the same terms.
[(c) If the Federal Communications Commission adopts rules
regarding customer proprietary network information that no longer
preempt this state's authority to adopt inconsistent rules, the
commission shall conduct a proceeding to determine the appropriate
use of customer proprietary network information by a
telecommunications utility. A rule, policy, or order adopted by
the commission on customer proprietary network information may not
be discriminatory in its application to telecommunications
utilities.
[(d) A commission rule governing customer proprietary
network information may not apply to an incumbent local exchange
company that has 100,000 or fewer access lines in service in this
state if the rule is more burdensome to the company than the
customer proprietary network information rules of the Federal
Communications Commission. This prohibition does not apply to a
rule regarding a use of customer proprietary network information
that is not related to a telecommunications service or product.
[SUBCHAPTER C. ADVERTISING
[Sec. 62.041. DEFINITION. In this subchapter, "advertising
agency services" includes:
[(1) advertising development;
[(2) advertising purchase;
[(3) advertising consultation;
[(4) advertising copy writing;
[(5) advertising research; and
[(6) other functions generally performed by a general
advertising agency.
[Sec. 62.042. APPLICABILITY OF SUBCHAPTER. This subchapter
does not apply to an incumbent local exchange company that has
100,000 or fewer access lines in service in this state.
[Sec. 62.043. ADVERTISING AGENCY SERVICES PROHIBITED. (a)
An incumbent local exchange company may not sell an advertising
agency service to a nonaffiliate in this state.
[(b) Subsection (a) does not prohibit a local exchange
company from:
[(1) promoting or selling a telecommunications
service or telecommunications equipment, including:
[(A) voice service or equipment;
[(B) data service or equipment;
[(C) video dial tone service or equipment;
[(D) video or audio programming service or
equipment;
[(E) cellular service or equipment;
[(F) interactive media service or equipment;
[(G) software service or equipment; or
[(H) another related service or piece of
equipment; or
[(2) enhancing or promoting the use of the
telecommunications network.
[Sec. 62.044. ADVERTISING ACTIVITIES OF AFFILIATE. (a) A
separate corporate affiliate of an incumbent local exchange company
may engage in advertising agency activities. In conducting an
advertising agency activity, the affiliate shall comply with this
section.
[(b) The affiliate shall prepare financial statements that
are not consolidated with the financial statements of the incumbent
local exchange company. Financial statements and consolidated tax
returns that consolidate the operation of the separate corporate
affiliate with a parent company and the parent company's other
subsidiaries may be prepared.
[(c) The affiliate shall:
[(1) maintain, in accordance with generally accepted
accounting principles, books, records, and accounts that are
separate from the books, records, and accounts of the incumbent
local exchange company; and
[(2) maintain a corporate identity separate from the
incumbent local exchange company.
[(d) The affiliate may not:
[(1) incur debt in a manner that, on the affiliate's
default, would permit a creditor to have recourse against an asset
of the incumbent local exchange company;
[(2) use a name, trademark, or service mark of the
incumbent local exchange company, unless the name, trademark, or
service mark is used in common with the parent, affiliate, or owner
of the incumbent local exchange company; or
[(3) have a director, officer, or employee in common
with the incumbent local exchange company.
[Sec. 62.045. JOINT MARKETING PROHIBITED. (a) Except as
permitted by Section 62.043, an incumbent local exchange company
that has an affiliate that provides advertising agency services on
behalf of a nonaffiliate in this state may not jointly market the
affiliate's advertising agency services in connection with a
telecommunications service or telecommunications equipment the
incumbent local exchange company provides.
[(b) This section does not apply to advertising in a
telephone directory disseminated in any form.
[Sec. 62.046. CHARITABLE TELEPHONE SOLICITATION. This
subchapter does not prohibit an incumbent local exchange company
from providing a telephone solicitation service for a charitable
organization.
[Sec. 62.047. WAIVER. (a) A company may petition the
commission for a waiver from a requirement this subchapter imposes
on the company.
[(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
[(c) The commission may revoke a waiver granted under this
section if:
[(1) conditions under which the waiver was granted
have materially changed; and
[(2) the revocation is in the public interest.
[SUBCHAPTER D. AUDIO AND VIDEO PROGRAMMING
[Sec. 62.071. APPLICABILITY OF SUBCHAPTER. This subchapter
does not apply to an incumbent local exchange company that has
100,000 or fewer access lines in service in this state.
[Sec. 62.072. AUDIO OR VIDEO PROGRAMMING PROHIBITED. (a)
An incumbent local exchange company may not provide audio or video
programming in this state.
[(b) This section does not prohibit a separate corporate
affiliate of an incumbent local exchange company from providing
audio or video programming.
[Sec. 62.073. RELATIONSHIP BETWEEN EXCHANGE COMPANY AND
AFFILIATE THAT PROVIDES AUDIO OR VIDEO PROGRAMMING. (a) This
section applies only to an incumbent local exchange company's
separate corporate affiliate that provides audio or video
programming.
[(b) For a telecommunications service the affiliate obtains
from the incumbent local exchange company, the affiliate shall pay:
[(1) a tariffed rate;
[(2) the fair market value of the service, if the
service is not provided under a tariff; or
[(3) the service's long run incremental cost, if:
[(A) the service is not provided under a tariff;
and
[(B) the service:
[(i) does not have a fair market value; or
[(ii) has a fair market value that is less
than the service's long run incremental cost.
[(c) In making a transaction with the incumbent local
exchange company to purchase, use, rent, or access information,
services, space, or devices that are not telecommunications
services, the affiliate shall act in a manner consistent with the
affiliate transaction rules of the Federal Communications
Commission. The subject of a transaction described by this
subsection may not be valued at less than the greater of the
subject's net book value or fair market value, whichever is
applicable.
[(d) The affiliate shall prepare financial statements that
are not consolidated with those of the incumbent local exchange
company. Financial statements and consolidated tax returns that
consolidate the operation of the separate corporate affiliate with
a parent company and the parent company's other subsidiaries may be
prepared.
[(e) The affiliate shall:
[(1) maintain, in accordance with generally accepted
accounting principles, books, records, and accounts that are
separate from the books, records, and accounts of the incumbent
local exchange company;
[(2) perform its marketing and sales functions and
operation in compliance with open network architecture and the
affiliate transaction rules of the Federal Communications
Commission; and
[(3) maintain a corporate identity separate from the
incumbent local exchange company.
[(f) The affiliate may not:
[(1) incur debt in a manner that, on the affiliate's
default, would permit a creditor to have recourse against an asset
of the incumbent local exchange company;
[(2) use a name, trademark, or service mark of the
incumbent local exchange company, unless the name, trademark, or
service mark is used in common with the parent, affiliate, or owner
of the incumbent local exchange company; or
[(3) have a director, officer, or employee in common
with the incumbent local exchange company.
[Sec. 62.074. REGULATION OF EXCHANGE COMPANY DEALINGS WITH
SEPARATE AFFILIATE. (a) This section applies only to an incumbent
local exchange company's separate corporate affiliate that
provides audio or video programming.
[(b) An incumbent local exchange company may not:
[(1) develop a rate for a telecommunications service
or provide a telecommunications service to benefit primarily the
company's separate affiliate for the affiliate's video or audio
programming unless the rate or service is available to any
purchaser without discrimination;
[(2) provide a telecommunications service for the
separate affiliate's audio or video programming in an unreasonably
preferential manner;
[(3) transfer an asset to the separate affiliate for
less than the amount for which the asset is available to a third
party in an arm's-length transaction;
[(4) have a director, officer, or employee in common
with the separate affiliate;
[(5) own property in common with the separate
affiliate; or
[(6) enter into a customer-specific contract with the
separate affiliate to provide tariffed telecommunications services
unless substantially the same contract terms are generally
available to nonaffiliated interests.
[(c) An incumbent local exchange company shall:
[(1) maintain and file with the commission copies of
each contract or arrangement between the company and the separate
affiliate and report the contract amount for each cash or noncash
transaction with the separate affiliate, including payments for:
[(A) the cost of a good, service, property right,
or other item; or
[(B) interest expense;
[(2) value an asset the company transfers to the
separate affiliate at the greater of the asset's net book value or
fair market value;
[(3) value an asset the separate affiliate transfers
to the company at the lesser of the asset's net book value or fair
market value except in an instance in which Federal Communications
Commission regulations or commission rules permit:
[(A) in-arrears payment for a tariffed
telecommunications service; or
[(B) an affiliate to invest a dividend or profit
derived from an incumbent local exchange company;
[(4) comply with applicable Federal Communications
Commission cost and other accounting rules; and
[(5) if the company offers telecommunications
equipment or services to an audio or video programmer, provide the
equipment or services:
[(A) at just and reasonable rates that, if
commission rules require the provision to be under a tariff, are
tariffed on nondiscriminatory terms; and
[(B) on similar terms to all video or audio
programmers, if the equipment or services are not subject to
regulation.
[Sec. 62.075. BILLING OR COLLECTION SERVICES FOR
NONAFFILIATED PROGRAMMER. (a) An incumbent local exchange company
that offers billing or collection service to a nonaffiliated audio
or video programmer shall provide the service on nondiscriminatory
terms.
[(b) This section does not require an incumbent local
exchange company to offer billing or collection service to a
nonaffiliated programmer.
[(c) An incumbent local exchange company may exclude a class
of programmers from the company's billing or collection service.
[Sec. 62.076. COMPLIANCE AUDIT. (a) An incumbent local
exchange company shall have a compliance audit performed every
three years to determine whether the incumbent local exchange
company, during the preceding three years, complied with the
requirements this subchapter imposes on the company.
[(b) An independent accounting firm:
[(1) must conduct the audit; and
[(2) shall file the audit report with the commission.
[(c) If the audit report concludes that the incumbent local
exchange company is not in compliance with this subchapter, the
commission shall take appropriate action against the company.
[(d) The audit report is confidential commercial or
financial information for the purposes of Chapter 552, Government
Code.
[Sec. 62.077. WAIVER. (a) A company may petition the
commission for a waiver from a requirement this subchapter imposes
on the company.
[(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
[(c) The commission may revoke a waiver granted under this
section if:
[(1) conditions under which the waiver was granted
have materially changed; and
[(2) the revocation is in the public interest.
[Sec. 62.078. LIMITATION OF JURISDICTION. Except as
otherwise specifically provided by this title, the commission's
jurisdiction over an incumbent local exchange company's affiliate
that is an audio or video programmer is limited to the specific
requirements of this subchapter.
[SUBCHAPTER E. VIDEO CARRIAGE
[Sec. 62.101. APPLICABILITY OF SUBCHAPTER. This subchapter
does not apply to:
[(1) an incumbent local exchange company that has
100,000 or fewer access lines in service in this state; or
[(2) a programmer on the video dial tone platform of an
incumbent local exchange company described by Subdivision (1).
[Sec. 62.102. RATE FOR BROADCAST STATION ACCESS TO
TELECOMMUNICATIONS SERVICES. Unless the company is a programmer
subject to Section 62.104, an incumbent local exchange company that
provides a telecommunications service used to transmit video
programming directly to a subscriber or used to enable a customer to
access video programming shall give a local full-power broadcast
station licensed by the Federal Communications Commission access to
the telecommunications service at a tariffed rate, to the extent
capacity permits. If the service is not provided under a tariff,
the company shall provide the service on terms similar to those on
which the service is provided to other video programmers that
provide similar programming.
[Sec. 62.103. DUTIES OF LOCAL EXCHANGE COMPANY. (a) An
incumbent local exchange company shall transmit without material
degradation the signals a local broadcast station delivers. The
transmission quality offered the station may not be less than the
quality made available to another video programmer.
[(b) An incumbent local exchange company that provides a
telecommunications service used to transmit video programming
directly to a subscriber or used to enable a customer to access
video programming may not:
[(1) discriminate unreasonably among programming
providers regarding transmission of their signals; or
[(2) delete, change, or alter a copyright
identification transmitted as part of the programming signal.
[(c) An incumbent local exchange company described by
Subsection (b) that provides a video dial tone service with a level
one gateway, as that term is defined by the Federal Communications
Commission, shall make available to programmers a menu or
programming guide on which a programmer may display a listing of the
stations the programmer is required to carry under Section 62.104.
[Sec. 62.104. BROADCAST STATION ACCESS THROUGH
TELECOMMUNICATIONS SERVICES. (a) As permitted by federal law and
Federal Communications Commission rules and orders, a programmer
shall make available to subscribers local full-power television
stations licensed by the Federal Communications Commission if:
[(1) the programmer is operating as a common channel
manager;
[(2) for a commercial purpose, the programmer
purchases 50 or more analog channels on a local exchange video dial
tone level one platform over which video programming is made
available to subscribers; and
[(3) the television stations grant retransmission
consent.
[(b) The programmer shall make available up to six
television stations under this section. If the programmer is in a
market that contains a county with a population of more than one
million, the programmer shall make available up to nine television
stations under this section.
[(c) The programmer shall select the television stations
the programmer makes available to subscribers under this section.
[(d) This title does not require a programmer or incumbent
local exchange company to provide valuable consideration in
exchange for carriage under this section.
[Sec. 62.105. RETRANSMISSION CONSENT. A television station
licensed by the Federal Communications Commission that seeks
carriage under Section 62.104 shall grant consent for programming
retransmission to the programmer and the incumbent local exchange
company.
[Sec. 62.106. WAIVER. (a) A company may petition the
commission for a waiver from a requirement this subchapter imposes
on the company.
[(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
[(c) The commission may revoke a waiver granted under this
section if:
[(1) conditions under which the waiver was granted
have materially changed; and
[(2) the revocation is in the public interest.
[Sec. 62.107. LIMITATION OF JURISDICTION. Except as
otherwise specifically provided by this title, the commission's
jurisdiction over an incumbent local exchange company's affiliate
that is a video programmer is limited to the specific requirements
of this subchapter.
[Sec. 62.108. EXPIRATION. This subchapter expires August
31, 2005.
[SUBCHAPTER F. AUDIO CARRIAGE
[Sec. 62.131. APPLICABILITY OF SUBCHAPTER. This subchapter
does not apply to:
[(1) an incumbent local exchange company that has
100,000 or fewer access lines in service in this state; or
[(2) a programmer on the video dial tone platform of an
incumbent local exchange company described by Subdivision (1).
[Sec. 62.132. BROADCAST STATION ACCESS THROUGH
TELECOMMUNICATIONS SERVICES. (a) As permitted by federal law and
Federal Communications Commission rules and orders, and as
consistent with technical specifications, a programmer shall make
available to subscribers local radio stations licensed by the
Federal Communications Commission if:
[(1) the programmer is operating as a common channel
manager;
[(2) for a commercial purpose, the programmer makes 12
or more channels of audio programming available to subscribers on
an incumbent local exchange company's level one video dial tone
platform;
[(3) the available audio programming is similar to a
broadcast of a radio station licensed by the Federal Communications
Commission; and
[(4) the radio stations grant retransmission consent.
[(b) The programmer is not required to make available more
than one-third of the programmer's analog audio channels to radio
stations.
[(c) The programmer shall select the radio stations the
programmer makes available to subscribers under this section.
[(d) This title does not require a programmer or incumbent
local exchange company to provide valuable consideration in
exchange for carriage under this section.
[Sec. 62.133. RETRANSMISSION CONSENT. A local radio
station licensed by the Federal Communications Commission that
seeks carriage under Section 62.132 shall grant consent for
programming retransmission to the programmer and the incumbent
local exchange company.
[Sec. 62.134. WAIVER. (a) A company may petition the
commission for a waiver from a requirement this subchapter imposes
on the company.
[(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
[(c) The commission may revoke a waiver granted under this
section if:
[(1) conditions under which the waiver was granted
have materially changed; and
[(2) the revocation is in the public interest.
[Sec. 62.135. LIMITATION OF JURISDICTION. Except as
otherwise specifically provided by this title, the commission's
jurisdiction over an incumbent local exchange company's affiliate
that is an audio programmer is limited to the specific requirements
of this subchapter.
[Sec. 62.136. EXPIRATION. This subchapter expires August
31, 2005.
[CHAPTER 63. ELECTRONIC PUBLISHING
[SUBCHAPTER A. GENERAL PROVISIONS
[Sec. 63.001. GENERAL DEFINITIONS. In this chapter:
[(1) "Affiliate" means an entity, other than a
separated affiliate, that, directly or indirectly, is:
[(A) under common ownership or control with an
incumbent local exchange company;
[(B) owned or controlled by an incumbent local
exchange company; or
[(C) the owner or in control of an incumbent
local exchange company.
[(2) "Basic telephone service" means a wireline
telephone exchange facility or service provided by an incumbent
local exchange company in a telephone exchange area, other than a:
[(A) competitive wireline telephone exchange
service provided in a telephone exchange area in which another
entity provides a wireline telephone exchange service that was
provided on January 1, 1984; or
[(B) commercial mobile service provided by an
affiliate that the Federal Communications Commission requires to be
a corporate entity separate from the local exchange company.
[(3) "Basic telephone service information" means:
[(A) an incumbent local exchange company's
network or customer information; and
[(B) information acquired by an incumbent local
exchange company as a result of its provision of basic telephone
service.
[(4) "Control" has the meaning assigned by:
[(A) 17 C.F.R. Section 240.12b--2 as adopted by
the Securities and Exchange Commission under the Securities
Exchange Act of 1934 (15 U.S.C. Section 78a et seq.); or
[(B) a successor to that section.
[(5) "Electronic publishing joint venture" means a
joint venture owned by an incumbent local exchange company or
affiliate that provides electronic publishing disseminated by the
basic telephone service of:
[(A) the incumbent local exchange company; or
[(B) an affiliate of the incumbent local exchange
company.
[(6) "Entity" means an organization and includes a
corporation, partnership, sole proprietorship, association, or
joint venture.
[(7) "Inbound telemarketing" means marketing
property, goods, or services by telephone to a customer or
potential customer who initiates the call.
[(8) "Modification of final judgment" means the order
entered August 24, 1982, in the antitrust action styled United
States v. Western Electric, Civil Action No. 82-0192, in the United
States District Court for the District of Columbia, and includes
any judgment or order with respect to that action issued on or after
August 24, 1982.
[(9) "Own" means to have the:
[(A) equivalent of a direct or indirect equity
interest of more than 10 percent of an entity; or
[(B) right to more than 10 percent of the gross
revenues of an entity under a revenue sharing or royalty agreement.
[(10) "Separated affiliate" means a corporation that:
[(A) does not own or control an incumbent local
exchange company;
[(B) is not owned or controlled by an incumbent
local exchange company; and
[(C) is under common ownership or control with an
incumbent local exchange company and provides electronic
publishing that is disseminated by the basic telephone service of:
[(i) the incumbent local exchange company;
or
[(ii) an affiliate of the incumbent local
exchange company.
[Sec. 63.002. ELECTRONIC PUBLISHING DEFINED. (a) In this
chapter, "electronic publishing" means the use of an incumbent
local exchange company's basic telephone service to disseminate,
provide, publish, or sell to a nonaffiliated entity or person:
[(1) news;
[(2) entertainment other than an interactive game;
[(3) business, financial, legal, consumer, or credit
material;
[(4) an editorial;
[(5) a column;
[(6) sports reporting;
[(7) a feature;
[(8) advertising;
[(9) a photograph or image;
[(10) archival or research material;
[(11) a legal notice or public record;
[(12) scientific, educational, instructional,
technical, professional, trade, or other literary material; or
[(13) other similar information.
[(b) In this chapter, "electronic publishing" does not
include providing the following network services:
[(1) information access, as that term is defined by
the modification of final judgment;
[(2) transmission of information as a common carrier;
[(3) transmission of information as part of a gateway
to an information service that does not involve the generation or
alteration of the content of information, including data
transmission, address translation, protocol conversion, billing
management, introductory information content, or navigational
systems that enable users to access electronic publishing services
and that do not affect the presentation of those electronic
publishing services to users;
[(4) a voice storage and retrieval service, including
voice messaging and electronic mail service;
[(5) level two gateway services as those services are
defined by the Federal Communications Commission's Second Report
and Order, Recommendation to Congress and Second Further Notice of
Proposed Rulemaking in CC Docket No. 87-266 dated August 14, 1992 (7
FCC Record 5781 (1992));
[(6) a data processing service that does not involve
the generation or alteration of the content of information;
[(7) a transaction processing system that does not
involve the generation or alteration of the content of information;
[(8) electronic billing or advertising of a regulated
telecommunications service of an incumbent local exchange company;
[(9) language translation;
[(10) conversion of information from one format to
another;
[(11) information necessary for the management,
control, or operation of a telephone company telecommunications
system;
[(12) directory assistance that:
[(A) provides names, addresses, and telephone
numbers; and
[(B) does not include advertising;
[(13) a caller identification service;
[(14) repairing and provisioning a database for a
telephone company operation;
[(15) credit card and billing validation for a
telephone company operation;
[(16) a 911-E or another emergency assistance
database;
[(17) another network service of a type that:
[(A) is similar to the network services listed in
this subsection; and
[(B) does not involve the generation or
alteration of the content of information;
[(18) an upgrade to a network service listed in this
subsection that does not involve the generation or alteration of
the content of information;
[(19) full motion video entertainment on demand; or
[(20) video programming, as defined by Section 602,
Communications Act of 1934 (47 U.S.C. Section 522).
[Sec. 63.003. INCUMBENT LOCAL EXCHANGE COMPANY DEFINED.
(a) Except as provided by Subsection (b), in this chapter,
"incumbent local exchange company" means:
[(1) a corporation that:
[(A) serves more than five million access lines
in this state; and
[(B) is subject to the modification of final
judgment;
[(2) an entity owned or controlled by a corporation
described by Subdivision (1); or
[(3) a successor or assign of a corporation described
by Subdivision (1).
[(b) In this chapter "incumbent local exchange company"
does not include an electronic publishing joint venture that is:
[(1) owned by a corporation or entity described by
Subsection (a); and
[(2) permitted by Section 63.039, 63.040, or 63.041.
[Sec. 63.004. CERTAIN SERVICES NOT PROHIBITED. This
chapter does not prohibit:
[(1) a separated affiliate or electronic publishing
joint venture from providing in any area electronic publishing or
another service; or
[(2) an incumbent local exchange company or affiliate
from providing:
[(A) a service other than electronic publishing
in any area; or
[(B) electronic publishing that is not
disseminated by the basic telephone service of:
[(i) the company; or
[(ii) an affiliate of the company.
[Sec. 63.005. INVESTMENT OF DIVIDENDS. This chapter does
not prohibit an affiliate from investing a dividend derived from an
incumbent local exchange company in its separated affiliate.
[Sec. 63.006. JOINT VIOLATIONS. An incumbent local
exchange company, an affiliate, or a separated affiliate may not
act jointly with another entity to knowingly and wilfully violate
or evade a requirement of this chapter.
[Sec. 63.007. PRIVATE COMPLAINT; APPLICATION FOR ORDER.
(a) A person may file with the commission a complaint that an act or
practice of an incumbent local exchange company, affiliate, or
separated affiliate violates this chapter.
[(b) A person may apply to the commission for the commission
to order an incumbent local exchange company, affiliate, or
separated affiliate to cease and desist from an act or practice that
violates this chapter.
[Sec. 63.008. PRIVATE SUIT FOR INJUNCTION. A person may
bring suit in district court for an injunction to compel an
incumbent local exchange company, affiliate, or separated
affiliate to discontinue a violation of this chapter or to comply
with a requirement of this chapter.
[Sec. 63.009. PRIVATE SUIT FOR DAMAGES. (a) A person may
bring suit to recover damages that result from a violation of this
chapter.
[(b) An incumbent local exchange company, affiliate, or
separated affiliate is liable for damages if the incumbent local
exchange company violates this chapter or causes a violation of
this chapter.
[(c) The incumbent local exchange company is liable to a
person injured by a violation of this chapter caused by the company
for:
[(1) the amount of the damages that result from the
violation; and
[(2) reasonable attorney's fees.
[(d) The court shall determine and award attorney's fees in
each case in which damages are awarded. The attorney's fees shall
be taxed and collected as part of the costs of the suit.
[(e) The court may not award damages for a violation:
[(1) discovered by a compliance review under Section
63.034; and
[(2) corrected before the 91st day after the date of
its discovery.
[Sec. 63.010. APPLICABILITY OF ANTITRUST LAWS. This
chapter does not modify, impair, or supersede the applicability of
antitrust laws.
[Sec. 63.011. APPLICABILITY OF CHAPTER. This chapter does
not apply to conduct that occurs after June 30, 2001.
[SUBCHAPTER B. ELECTRONIC PUBLISHING SAFEGUARDS
[Sec. 63.031. PUBLICATION BY BASIC TELEPHONE SERVICE
PROHIBITED. An incumbent local exchange company or affiliate may
not provide electronic publishing disseminated by the basic
telephone service of:
[(1) the incumbent local exchange company; or
[(2) an affiliate of the incumbent local exchange
company.
[Sec. 63.032. SEPARATED AFFILIATE OR JOINT VENTURE
REQUIREMENTS. (a) A separated affiliate or electronic publishing
joint venture shall maintain books, records, and accounts that:
[(1) are separate from the books, records, and
accounts of the incumbent local exchange company and any affiliate;
and
[(2) record, in accordance with generally accepted
accounting principles, all direct and indirect transactions with
the incumbent local exchange company.
[(b) A separated affiliate or electronic publishing joint
venture shall prepare financial statements that are not
consolidated with the financial statements of the incumbent local
exchange company or an affiliate. Additional consolidated
statements may be prepared.
[(c) A separated affiliate or electronic publishing joint
venture shall file annual reports with the commission. The reports
must be in a form substantially equivalent to the Form 10-K required
by federal Securities and Exchange Commission regulations.
[(d) A separated affiliate or electronic publishing joint
venture may not hire:
[(1) as a corporate officer, a sales or marketing
manager whose responsibilities at the separated affiliate or
electronic publishing joint venture include a geographic area in
which the incumbent local exchange company provides basic telephone
service;
[(2) network operations personnel whose
responsibilities at the separated affiliate or electronic
publishing joint venture require dealing directly with the
incumbent local exchange company; or
[(3) a person who was employed by the incumbent local
exchange company during the year preceding the date of hire.
[(e) Subsection (d)(3) does not apply to a person who is
subject to a collective bargaining agreement under which the person
has a right to be employed by a separated affiliate or electronic
publishing joint venture of the local exchange company.
[(f) A separated affiliate or electronic publishing joint
venture may not:
[(1) incur debt in a manner that, on default, would
permit a creditor to have recourse against an asset of the incumbent
local exchange company;
[(2) provide a wireline telephone exchange service in
a telephone exchange area in which an incumbent local exchange
company with which it is under common ownership or control provides
basic telephone exchange service, unless the service is provided by
resale; or
[(3) use a name, trademark, or service mark of an
incumbent local exchange company unless the name, trademark, or
service mark is used in common with the entity that owns or controls
the incumbent local exchange company.
[Sec. 63.033. INCUMBENT LOCAL EXCHANGE COMPANY
REQUIREMENTS. (a) This section applies only to an incumbent local
exchange company that is under common ownership or control with a
separated affiliate or electronic publishing joint venture.
[(b) An incumbent local exchange company shall:
[(1) carry out each transaction with a separated
affiliate in a manner:
[(A) equivalent to the manner that unrelated
parties would carry out an independent transaction; and
[(B) able to be audited in accordance with
generally accepted auditing standards;
[(2) carry out a transaction with a separated
affiliate that involves the transfer of personnel, assets, or
anything of value, in accordance with a written contract or tariff
that is filed with the commission and made available to the public;
[(3) value an asset the company transfers to a
separated affiliate at the greater of the asset's net book cost or
fair market value;
[(4) value an asset the company's separated affiliate
transfers to the company at the lesser of the asset's net book cost
or fair market value; and
[(5) comply fully with applicable accounting rules of
the Federal Communications Commission and the commission,
including rules on cost allocation.
[(c) An incumbent local exchange company may not directly or
indirectly provide anything of monetary value to a separated
affiliate unless the item is provided in exchange for consideration
valued in an amount at least equal to the greater of the item's net
book cost or fair market value. This subsection does not apply to
an affiliate's investment of a dividend or profit derived from an
incumbent local exchange company.
[(d) An incumbent local exchange company may not:
[(1) provide a separated affiliate a facility, a
service, or basic telephone service information unless the company
makes the facility, service, or information available to
nonaffiliated entities on request and on the same terms;
[(2) provide debt or equity financing directly or
indirectly to a separated affiliate, except in an instance in which
Federal Communications Commission regulations or commission rules
permit:
[(A) in-arrears payment for a tariffed
telecommunications service; or
[(B) an affiliate to invest a dividend or profit
derived from an incumbent local exchange company;
[(3) discriminate in the presentation or provision of
a gateway for electronic publishing services or an electronic
directory of information services that is provided over the
company's basic telephone service;
[(4) have a director, officer, or employee in common
with a separated affiliate;
[(5) own property in common with a separated
affiliate;
[(6) hire or train personnel for a separated
affiliate;
[(7) purchase, install, or maintain equipment for a
separated affiliate, except for telephone service that the company
provides under tariff or contract subject to this chapter; or
[(8) perform a research or development activity for a
separated affiliate.
[Sec. 63.034. COMPLIANCE REVIEW AND REPORT. (a) A
separated affiliate or an electronic publishing joint venture
annually shall have a compliance review performed to determine
whether the separated affiliate or joint venture, during the
preceding calendar year, complied with the requirements this
chapter imposes on the separated affiliate or joint venture.
[(b) An incumbent local exchange company that is under
common ownership or control with a separated affiliate or
electronic publishing joint venture annually shall have a
compliance review performed to determine whether the company,
during the preceding calendar year, complied with the requirements
this chapter imposes on the company.
[(c) An independent entity that is subject to professional,
legal, and ethical obligations must conduct the compliance review.
[(d) The compliance review must be performed each year
before:
[(1) March 31; or
[(2) another date prescribed by the commission.
[(e) An entity subject to a compliance review under
Subsection (a) or (b) shall maintain the results of the entity's
compliance review for five years subject to review by a lawful
authority.
[(f) Before the 91st day after the date an entity subject to
a compliance review under Subsection (a) or (b) receives the
results of a compliance review under this section, the entity
shall:
[(1) file with the commission a report of any
exceptions or corrective actions; and
[(2) allow any person to inspect and copy the report.
[(g) The right of a person to inspect and copy the report is
subject to reasonable safeguards to protect proprietary
information in the report from being used for a purpose other than
to enforce this chapter or to pursue a remedy under this chapter.
[Sec. 63.035. SERVICES TO ELECTRONIC PUBLISHER. (a) This
section applies only to an incumbent local exchange company that is
under common ownership and control with a separated affiliate or an
electronic publishing joint venture.
[(b) If the incumbent local exchange company provides a
facility or service for telecommunication, transmission, billing
and collection, or expanded interconnection to an electronic
publisher, including a separated affiliate, for use in connection
with the provision of electronic publishing disseminated by the
basic telephone service of the incumbent local exchange company or
an affiliate of the incumbent local exchange company, the incumbent
local exchange company shall provide to any electronic publisher on
request the same type of facility or service. The facility or
service must be:
[(1) provided on the same terms as provided to another
electronic publisher or as required by the Federal Communications
Commission or the commission; and
[(2) unbundled and individually tariffed to the
smallest extent technically feasible and economically reasonable.
[(c) The incumbent local exchange company shall provide
network access and interconnection for basic telephone service to
an electronic publisher:
[(1) at any technically feasible and economically
reasonable point in the incumbent local exchange company's network;
and
[(2) at a just and reasonable rate that:
[(A) is tariffed if rates for the service are
subject to regulation; and
[(B) is not higher on a per unit basis than the
rate charged for the service to another electronic publisher or a
separated affiliate engaged in electronic publishing.
[(d) If the price for network access or interconnection for
basic telephone service is not subject to regulation, the incumbent
local exchange company shall provide the service to an electronic
publisher on the same terms under which a separated affiliate
receives the service.
[(e) If a tariff is not required for a basic telephone
service used by an electronic publisher, the incumbent local
exchange company shall provide an electronic publisher with the
service on the same terms under which a separated affiliate
receives the service.
[Sec. 63.036. INFORMATION PROVIDED. (a) An incumbent
local exchange company under common ownership or control with a
separated affiliate or an electronic publishing joint venture shall
give to each affected electronic publisher reasonable advance
notification of information that:
[(1) is necessary for an interconnected electronic
publisher to transmit or route information;
[(2) is necessary to ensure the interoperability of an
electronic publisher's network with the exchange company's network;
or
[(3) relates to a change in basic telephone service
network design or a technical standard that may affect the
provision of electronic publishing.
[(b) The notification must be given to each electronic
publisher at the same time and on the same terms.
[Sec. 63.037. CUSTOMER PROPRIETARY NETWORK INFORMATION. In
accordance with Subchapter B, Chapter 62, an incumbent local
exchange company or an affiliate may not provide an electronic
publisher, including a separated affiliate or electronic
publishing joint venture, with customer proprietary network
information for use with or in connection with providing electronic
publishing disseminated by the basic telephone service of the
incumbent local exchange company or an affiliate of the incumbent
local exchange company unless the exchange company or affiliate
makes the information available to all electronic publishers on the
same terms.
[Sec. 63.038. PROHIBITED JOINT ACTIVITIES. Except as
provided by Sections 63.039-63.041, an incumbent local exchange
company may not engage in any:
[(1) promotion, marketing, sales, or advertising for
or with a separated affiliate; or
[(2) promotion, marketing, sales, or advertising for
or with an affiliate if the activity is related to electronic
publishing.
[Sec. 63.039. PERMITTED JOINT MARKETING OR REFERRAL
ACTIVITIES. (a) An incumbent local exchange company may provide an
inbound telemarketing or referral service related to the provision
of electronic publishing for:
[(1) a separated affiliate;
[(2) an electronic publishing joint venture;
[(3) an affiliate; or
[(4) a nonaffiliated electronic publisher.
[(b) To ensure that the company's method of providing the
service or the company's price structure does not competitively
disadvantage an electronic publisher, regardless of the
publisher's size or whether the publisher uses a telemarketing
service of the company, an incumbent local exchange company that
provides an inbound telemarketing or referral service to a
separated affiliate, electronic publishing joint venture, or
affiliate shall make the service available to all electronic
publishers:
[(1) on request;
[(2) on nondiscriminatory terms;
[(3) at compensatory prices; and
[(4) subject to rules of the commission.
[Sec. 63.040. ELECTRONIC PUBLISHING TEAMING OR BUSINESS
ARRANGEMENTS. (a) An incumbent local exchange company may engage
in a nondiscriminatory teaming or business arrangement to engage in
electronic publishing with a separated affiliate or with another
electronic publisher.
[(b) An incumbent local exchange company engaged in a
teaming or business arrangement under Subsection (a) may not own
the teaming or business arrangement.
[(c) An incumbent local exchange company engaged in a
teaming or business arrangement under Subsection (a) may provide
only facilities, services, and basic telephone service information
authorized by this chapter.
[Sec. 63.041. JOINT VENTURE PARTICIPATION. (a) Except as
provided by Subsection (b), an incumbent local exchange company or
affiliate may participate on a nonexclusive basis in an electronic
publishing joint venture to provide electronic publishing services
with an entity that is not:
[(1) an incumbent local exchange company;
[(2) an affiliate; or
[(3) a separated affiliate.
[(b) An incumbent local exchange company or affiliate may
not participate in an electronic publishing joint venture if the
company or affiliate has:
[(1) a direct or indirect equity interest in the
venture, or the equivalent, of more than 50 percent; or
[(2) the right to more than 50 percent of the gross
revenues of the venture under a revenue sharing or royalty
agreement.
[(c) Officers and employees of an incumbent local exchange
company or affiliate that participates in an electronic publishing
joint venture may not have more than 50 percent of the voting
control over the venture.
[(d) The commission for good cause shown may authorize an
incumbent local exchange company or affiliate to have a larger
percentage of equity interest, revenue share, or voting control
than that prescribed by Subsection (b) or (c) for a joint venture
between the company and a small, local, electronic publisher. The
larger percentage may not exceed 80 percent.
[(e) An incumbent local exchange company that participates
in an electronic publishing joint venture may provide promotion,
marketing, sales, or advertising personnel or services to the joint
venture.
[Sec. 63.042. OTHER ELECTRONIC PUBLISHERS. (a) Except as
provided by Section 63.041:
[(1) an incumbent local exchange company may not have
an officer, employee, property, or facility in common with an
entity whose principal business is publishing if the business
includes electronic publishing; and
[(2) an officer or employee of an incumbent local
exchange company may not serve as a director of an entity whose
principal business is publishing if the business includes
electronic publishing.
[(b) For the purposes of Subsection (a), an incumbent local
exchange company or affiliate that owns an electronic publishing
joint venture is not considered engaged in the electronic
publishing business solely because of that ownership.
[(c) Except as provided by Section 63.041, an incumbent
local exchange company may not:
[(1) market or sell for an entity that engages in
electronic publishing;
[(2) provide a facility, service, or basic telephone
service information to an entity that engages in electronic
publishing, for use with or in connection with the provision of
electronic publishing that is disseminated by the basic telephone
service of the incumbent local exchange company or an affiliate of
the incumbent local exchange company, unless an equivalent
facility, service, or information is made available on equivalent
terms to all other entities; or
[(3) hire personnel, purchase, or carry out production
for an entity that engages in electronic publishing.
[SUBCHAPTER C. ELECTRONIC PUBLISHING TRANSACTIONS
[Sec. 63.061. ELECTRONIC PUBLISHING TRANSACTIONS BETWEEN
INCUMBENT LOCAL EXCHANGE COMPANY AND AFFILIATE GENERALLY. (a) If
related to the provision of electronic publishing, the provision of
a facility, a service, or basic telephone service information by an
incumbent local exchange company to an affiliate or the transfer of
an asset, including personnel or something of commercial or
competitive value, from an incumbent local exchange company to an
affiliate shall be:
[(1) recorded in the books and records of the
incumbent local exchange company and the affiliate;
[(2) able to be audited in accordance with generally
accepted auditing standards; and
[(3) done in accordance with a written contract or
tariff filed with the commission.
[(b) A transfer of an asset directly related to the
provision of electronic publishing from an incumbent local exchange
company to an affiliate shall be valued at the greater of the
asset's net book cost or fair market value.
[(c) A transfer of an asset related to the provision of
electronic publishing from an affiliate to the incumbent local
exchange company shall be valued at the lesser of the asset's net
book cost or fair market value.
[(d) An incumbent local exchange company may not directly or
indirectly provide to a separated affiliate a facility, a service,
or basic telephone service information related to the provision of
electronic publishing unless the facility, service, or information
is made available to nonaffiliated companies on the same terms.
[Sec. 63.062. ELECTRONIC PUBLISHING TRANSACTIONS BETWEEN
INCUMBENT LOCAL EXCHANGE COMPANY AND SEPARATED AFFILIATE. (a) If
an incumbent local exchange company provides to an affiliate a
facility, a service, or basic telephone service information subject
to Section 63.061(a) or transfers to an affiliate an asset subject
to that section and the affiliate provides the facility, service,
or information to a separated affiliate or transfers the asset to a
separated affiliate, the transaction shall be:
[(1) recorded in the books and records of each entity;
[(2) able to be audited in accordance with generally
accepted auditing standards; and
[(3) done in accordance with a written contract or
tariff filed with the commission.
[(b) A transfer of an asset directly related to the
provision of electronic publishing from an incumbent local exchange
company to an affiliate as described by Section 63.061 and then
transferred to a separated affiliate shall be valued at the greater
of the asset's net book cost or fair market value.
[(c) A transfer of an asset related to the provision of
electronic publishing from a separated affiliate to an affiliate
and then transferred to the incumbent local exchange company as
described by Section 63.061 shall be valued at the lesser of the
asset's net book cost or fair market value.
[(d) An affiliate may not provide directly or indirectly to
a separated affiliate a facility, a service, or basic telephone
service information related to the provision of electronic
publishing unless the facility, service, or information is made
available to nonaffiliated companies on the same terms.
[Sec. 63.063. EXCEPTION. This subchapter does not apply to
an investment described by Section 63.005.]
CHAPTER 64. CUSTOMER PROTECTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 64.001. CUSTOMER PROTECTION POLICY. (a) The
[legislature finds that new developments in telecommunications
services, as well as changes in market structure, marketing
techniques, and technology, make it essential that customers have
safeguards against fraudulent, unfair, misleading, deceptive, or
anticompetitive business practices and against businesses that do
not have the technical and financial resources to provide adequate
service.
[(b) The] purpose of this chapter is to establish retail
customer protection standards and confer on the commission
authority to adopt and enforce rules only as expressly provided in
this chapter, to protect retail customers from fraudulent, unfair,
misleading, deceptive, or anticompetitive practices.
(b) [(c) Nothing in this section shall be construed to
abridge customer rights set forth in commission rules in effect at
the time of the enactment of this chapter.
[(d)] This chapter does not limit the constitutional,
statutory, and common law authority of the office of the attorney
general.
Sec. 64.002. DEFINITIONS. In this chapter:
(1) "Billing agent" means any entity that submits
charges to the billing [utility] provider on behalf of itself or any
provider of a product or service.
(2) "Billing [utility] provider" means any
[telecommunications] service provider[, as defined by Section
51.002,] or network provider that issues a bill directly to a
customer for any telecommunications product or service.
(3) ["Certificated telecommunications utility" means
a telecommunications utility that has been granted either a
certificate of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority.
[(4)] "Customer" means any person in whose name
[telephone] service from a provider is billed, including
individuals, governmental units at all levels of government,
corporate entities, and any other entity with legal capacity to be
billed for [telephone] telecommunications service.
(4) [(5) "Service provider" means any entity that
offers a product or service to a customer and that directly or
indirectly charges to or collects from a customer's bill an amount
for the product or service on a customer's bill received from a
billing utility.
[(6) "Telecommunications utility" has the meaning]
"Network provider" and "service provider" and "provider" have the
meanings assigned by Section 51.002.
Sec. 64.003. CUSTOMER AWARENESS. (a) The commission shall
promote public awareness of changes in the telecommunications
markets, provide customers with information necessary to make
informed choices about available options, and ensure that customers
have an adequate understanding of their rights.
(b) The commission shall compile a report on customer
service at least once each year showing the comparative customer
information [from reports given to the commission it deems
necessary].
(c) The commission shall adopt and enforce rules to require
[a certificated telecommunications utility] service providers and
network providers to give clear, uniform, and understandable
information to customers about rates, terms, services, and customer
rights[, and other necessary information as determined] directed by
[the] this [commission] Chapter.
(d) Customer awareness efforts by the commission shall be
conducted in English and Spanish [and any other language as
necessary].
Sec. 64.004. CUSTOMER PROTECTION STANDARDS. (a) All
buyers of [telecommunications] services from providers subject to
this Title are entitled to:
(1) protection from fraudulent, unfair, misleading,
deceptive, or anticompetitive practices, including protection from
being billed for services that were not authorized or provided;
(2) choice of a [telecommunications service]
provider, and to have that choice honored;
(3) information in English and Spanish [and any other
language as the commission deems necessary] concerning rates, key
terms[,] and conditions;
(4) protection from discrimination on the basis of
race, color, sex, nationality, religion, marital status, income
level, or source of income and from unreasonable discrimination on
the basis of geographic location;
(5) impartial and prompt resolution of disputes with
[a certificated telecommunications utility and disputes with a
telecommunications service] provider related to unauthorized
charges and switching of service;
(6) privacy of customer consumption and credit
information;
(7) accuracy of metering and billing;
(8) bills presented in a clear, readable format and
easy-to-understand language;
(9) information in English and Spanish [and any other
language as the commission deems necessary] concerning low-income
assistance programs and deferred payment plans;
(10) all consumer protections and disclosures
established by the Fair Credit Reporting Act (15 U.S.C. Section
1681 et seq.) and the Truth in Lending Act (15 U.S.C. Section 1601
et seq.); and
(11) apply for programs [that] to [offer] assist
eligible low-income customers, [an] receive affordable [rate]
telecommunications [package] services and to obtain bill payment
assistance programs designed to reduce uncollectible accounts.
(b) The commission may adopt and enforce rules as necessary
or appropriate to carry out this section, including rules [for
minimum service standards for a certificated telecommunications
utility] relating to customer deposits and the extension of
credit[,] switching fees, and termination of service, [an] and
affordable [rate package] services, and bill payment assistance
programs for low-income customers. The commission may waive
language requirements for good cause.
(c) The commission shall request the comments of the office
of the attorney general in developing the rules that may be
necessary or appropriate to carry out this section.
(d) The commission shall coordinate its enforcement efforts
regarding the prosecution of fraudulent, misleading, or
deceptive[, and anticompetitive] business practices with the
office of the attorney general in order to ensure consistent
treatment of specific alleged violations.
(e) The commission shall adopt rules to provide automatic
enrollment of eligible service customers for lifeline telephone
service available to low-income households. Each state agency, on
the request of the commission, shall assist in the adoption and
implementation of those rules.
(f) Notwithstanding any other provision of this title, the
rules adopted under Subsection (b) shall provide full, concurrent
reimbursement for the costs of any programs provided under
Subsection (a)(11) and for reimbursement for the difference between
any affordable rate package provided under Subsection (a)(11) and
any rates otherwise applicable.
(g) [Nothing in this section shall be construed to abridge
customer rights set forth in commission rules in effect at] Where
federal rules or requirements exist with respect to issues governed
by this Chapter, the [time of] Commission's rules shall be
identical to those federal rules or requirements and shall in no
case be more burdensome or stringent on the [enactment] providers
of [this chapter] services than the federal rules or requirements.
Sec. 64.005. ELIGIBILITY PROCESS FOR CUSTOMER SERVICE
DISCOUNTS. The commission by rule shall provide for an integrated
eligibility process for customer service discounts.
SUBCHAPTER B. [CERTIFICATION, REGISTRATION, AND REPORTING
[REQUIREMENTS
[Sec. 64.051. ADOPTION OF RULES. (a) The commission shall
adopt rules relating to certification, registration, and reporting
requirements for a certificated telecommunications utility, all
telecommunications utilities that are not dominant carriers, and
pay telephone providers.
[(b) The rules adopted under Subsection (a) shall be
consistent with and no less effective than federal law and may not
require the disclosure of highly sensitive competitive or trade
secret information.
[Sec. 64.052. SCOPE OF RULES. The commission may adopt and
enforce rules to:
[(1) require certification or registration with the
commission as a condition of doing business in this state;
[(2) amend certificates or registrations to reflect
changed ownership and control;
[(3) establish rules for customer service and
protection;
[(4) suspend or revoke certificates or registrations
for repeated violations of this chapter or commission rules, except
that the commission may not revoke a certificate of convenience and
necessity of a telecommunications utility except as provided by
Section 54.008; and
[(5) order disconnection of a pay telephone service
provider's pay telephones or revocation of certification or
registration for repeated violations of this chapter or commission
rules.
[Sec. 64.053. REPORTS. The commission may require a
telecommunications service provider to submit reports to the
commission concerning any matter over which it has authority under
this chapter.
[SUBCHAPTER C.] CUSTOMER'S RIGHT TO CHOICE
Sec. 64.101. POLICY. It is the policy of this state that
all customers be protected from the unauthorized switching of a
[telecommunications] service provider selected by the customer to
provide service.
Sec. 64.102. RULES RELATING TO CHOICE. The commission
shall adopt and enforce rules that:
(1) ensure that customers are protected from deceptive
practices employed in obtaining authorizations of service and in
the verification of change orders, including negative option
marketing, sweepstakes, and contests that cause customers to
unknowingly change their telecommunications service provider;
(2) provide for clear, easily understandable
identification, in each bill sent to a customer, of all
[telecommunications] service providers submitting charges on the
bill;
(3) ensure that every service provider submitting
charges on the bill is clearly and easily identified on the bill
along with its services, products, and charges;
(4) provide that unauthorized changes in service be
remedied at no cost to the customer within a period established by
the commission;
(5) require refunds or credits to the customer in the
event of an unauthorized change; and
(6) provide for penalties for violations of commission
rules adopted under this section, including fines and revocation of
certificates or registrations.[, by this action denying the
certificated telecommunications utility the right to provide
service in this state, except that the commission may not revoke a
certificate of convenience and necessity of a telecommunications
utility except as provided by Section 54.008.
[SUBCHAPTER D. PROTECTION AGAINST UNAUTHORIZED CHARGES
[Sec. 64.151. REQUIREMENTS FOR SUBMITTING CHARGES. (a) A
service provider or billing agent may submit charges for a new
product or service to be billed on a customer's telephone bill on or
after the effective date of this section only if:
[(1) the service provider offering the product or
service has thoroughly informed the customer of the product or
service being offered, including all associated charges, and has
explicitly informed the customer that the associated charges for
the product or service will appear on the customer's telephone
bill;
[(2) the customer has clearly and explicitly consented
to obtain the product or service offered and to have the associated
charges appear on the customer's telephone bill and the consent has
been verified as provided by Subsection (b); and
[(3) the service provider offering the product or
service and any billing agent for the service provider:
[(A) has provided the customer with a toll-free
telephone number the customer may call and an address to which the
customer may write to resolve any billing dispute and to answer
questions; and
[(B) has contracted with the billing utility to
bill for products and services on the billing utility's bill as
provided by Subsection (c).
[(b) The customer consent required by Subsection (a)(2)
must be verified by the service provider offering the product or
service by authorization from the customer. A record of the
customer consent, including verification, must be maintained by the
service provider offering the product or service for a period of at
least 24 months immediately after the consent and verification have
been obtained. The method of obtaining customer consent and
verification must include one or more of the following:
[(1) written authorization from the customer;
[(2) toll-free electronic authorization placed from
the telephone number that is the subject of the product or service;
[(3) oral authorization obtained by an independent
third party; or
[(4) any other method of authorization approved by the
commission or the Federal Communications Commission.
[(c) The contract required by Subsection (a)(3)(B) must
include the service provider's name, business address, and business
telephone number and shall be maintained by the billing utility for
as long as the billing for the products and services continues and
for the 24 months immediately following the permanent
discontinuation of the billing.
[(d) A service provider offering a product or service to be
charged on a customer's telephone bill and any billing agent for the
service provider may not use any fraudulent, unfair, misleading,
deceptive, or anticompetitive marketing practice to obtain
customers, including the use of negative option marketing,
sweepstakes, and contests.
[(e) Unless verification is required by federal law or rules
implementing federal law, Subsection (b) does not apply to
customer-initiated transactions with a certificated
telecommunications provider for which the service provider has the
appropriate documentation.
[(f) If a service provider is notified by a billing utility
that a customer has reported to the billing utility that a charge
made by the service provider is unauthorized, the service provider
shall cease to charge the customer for the unauthorized product or
service.
[(g) This section does not apply to message
telecommunications services charges that are initiated by dialing
1+, 0+, 0-, 1010XXX, or collect calls and charges for video services
if the service provider has the necessary call detail record to
establish the billing for the call or service.
[Sec. 64.152. RESPONSIBILITIES OF BILLING UTILITY. (a) If
a customer's telephone bill is charged for any product or service
without proper customer consent or verification, the billing
utility, on its knowledge or notification of any unauthorized
charge, shall promptly, not later than 45 days after the date of
knowledge or notification of the charge:
[(1) notify the service provider to cease charging the
customer for the unauthorized product or service;
[(2) remove any unauthorized charge from the
customer's bill;
[(3) refund or credit to the customer all money that
has been paid by the customer for any unauthorized charge, and if
the unauthorized charge is not adjusted within three billing
cycles, shall pay interest on the amount of the unauthorized
charge;
[(4) on the customer's request, provide the customer
with all billing records under its control related to any
unauthorized charge within 15 business days after the date of the
removal of the unauthorized charge from the customer's bill; and
[(5) maintain for at least 24 months a record of every
customer who has experienced any unauthorized charge for a product
or service on the customer's telephone bill and who has notified the
billing utility of the unauthorized charge.
[(b) A record required by Subsection (a)(5) shall contain
for each unauthorized charge:
[(1) the name of the service provider that offered the
product or service;
[(2) any affected telephone numbers or addresses;
[(3) the date the customer requested that the billing
utility remove the unauthorized charge;
[(4) the date the unauthorized charge was removed from
the customer's telephone bill; and
[(5) the date any money that the customer paid for the
unauthorized charges was refunded or credited to the customer.
[(c) A billing utility may not:
[(1) disconnect or terminate telecommunications
service to any customer for nonpayment of an unauthorized charge;
or
[(2) file an unfavorable credit report against a
customer who has not paid charges the customer has alleged were
unauthorized unless the dispute regarding the unauthorized charge
is ultimately resolved against the customer, except that the
customer shall remain obligated to pay any charges that are not in
dispute, and this subsection does not apply to those undisputed
charges.
[Sec. 64.153. RECORDS OF DISPUTED CHARGES. (a) Every
service provider shall maintain a record of every disputed charge
for a product or service placed on a customer's bill.
[(b) The record required under Subsection (a) shall contain
for every disputed charge:
[(1) any affected telephone numbers or addresses;
[(2) the date the customer requested that the billing
utility remove the unauthorized charge;
[(3) the date the unauthorized charge was removed from
the customer's telephone bill; and
[(4) the date action was taken to refund or credit to
the customer any money that the customer paid for the unauthorized
charges.
[(c) The record required by Subsection (a) shall be
maintained for at least 24 months following the completion of all
steps required by Section 64.152(a).
[Sec. 64.154. NOTICE. (a) A billing utility shall provide
notice of a customer's rights under this section in the manner
prescribed by the commission.
[(b) Notice of a customer's rights must be provided by mail
to each residential and retail business customer within 60 days of
the effective date of this section or by inclusion in the
publication of the telephone directory next following the effective
date of this section. In addition, each billing utility shall send
the notice to new customers at the time service is initiated or to
any customer at that customer's request.
[Sec. 64.155. PROVIDING COPY OF RECORDS. A billing utility
shall provide a copy of records maintained under Sections
64.151(c), 64.152, and 64.154 to the commission staff on request. A
service provider shall provide a copy of records maintained under
Sections 64.151(b) and 64.153 to the commission on request.
[Sec. 64.156. VIOLATIONS. (a) If the commission finds that
a billing utility violated this subchapter, the commission may
implement penalties and other enforcement actions under Chapter 15.
[(b) If the commission finds that any other service provider
or billing agent subject to this subchapter has violated this
subchapter or has knowingly provided false information to the
commission on matters subject to this subchapter, the commission
may enforce the provisions of Chapter 15 against the service
provider or billing agent as if it were regulated by the commission.
[(c) Neither the authority granted under this section nor
any other provision of this subchapter shall be construed to grant
the commission jurisdiction to regulate service providers or
billing agents who are not otherwise subject to commission
regulation, other than as specifically provided by this chapter.
[(d) If the commission finds that a billing utility or
service provider repeatedly violates this subchapter, the
commission may, if the action is consistent with the public
interest, suspend, restrict, or revoke the registration or
certificate of the telecommunications service provider, by this
action denying the telecommunications service provider the right to
provide service in this state, except that the commission may not
revoke a certificate of convenience and necessity of a
telecommunications utility except as provided by Section 54.008.
[(e) If the commission finds that a service provider or
billing agent has repeatedly violated any provision of this
subchapter, the commission may order the billing utility to
terminate billing and collection services for that service provider
or billing agent.
[(f) Nothing in this subchapter shall be construed to
preclude a billing utility from taking action on its own to
terminate or restrict its billing and collection services.
[Sec. 64.157. DISPUTES. (a) The commission may resolve
disputes between a retail customer and a billing utility, service
provider, or telecommunications utility.
[(b) In exercising its authority under Subsection (a), the
commission may:
[(1) order a billing utility or service provider to
produce information or records;
[(2) require that all contracts, bills, and other
communications from a billing utility or service provider display a
working toll-free telephone number that customers may call with
complaints and inquiries;
[(3) require a billing utility or service provider to
refund or credit overcharges or unauthorized charges with interest
if the billing utility or service provider has failed to comply with
commission rules or a contract with the customer;
[(4) order appropriate relief to ensure that a
customer's choice of a telecommunications service provider is
honored;
[(5) require the continuation of service to a
residential or small commercial customer while a dispute is pending
regarding charges the customer has alleged were unauthorized; and
[(6) investigate an alleged violation.
[(c) The commission shall adopt procedures for the
resolution of disputes in a timely manner, which in no event shall
exceed 60 days.
[Sec. 64.158. CONSISTENCY WITH FEDERAL LAW. Rules adopted
by the commission under this subchapter shall be consistent with
and not more burdensome than applicable federal laws and rules.]
SECTION 2. This Act takes effect September 1, 2005.