By: Nelson S.B. No. 408
Substitute the following for S.B. No. 408:
By: King of Parker C.S.S.B. No. 408
A BILL TO BE ENTITLED
AN ACT
relating to the continuation, administration, and operations of the
Public Utility Commission of Texas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subtitle A, Title 2, Utilities
Code, is amended to read as follows:
SUBTITLE A. GENERALLY [PROVISIONS] APPLICABLE PROVISIONS [TO ALL
UTILITIES]
SECTION 2. Sections 11.002(a) and (b), Utilities Code, are
amended to read as follows:
(a) This title is enacted to protect the public interest
inherent in the delivery of [rates and] services and deployment of
networks by telecommunications providers [public utilities]. The
purpose of this title is to establish an appropriate [a
comprehensive and adequate] regulatory system for communications
service [public utilities to assure rates, operations, and services
that are just] and network providers for [reasonable to] the
benefit of consumers [and to the utilities].
(b) Electric [Public] utilities traditionally are by
definition monopolies in the areas they serve. As a result, the
normal forces of competition that regulate prices in a free
enterprise society do not operate. Public agencies regulate
utility rates, operations, and services as a substitute for
competition.
SECTION 3. Sections 11.003(1), (2), (3), (8), (10), (13),
(16), (19), (20), and (21), Utilities Code, are amended to read as
follows:
(1) "Affected person" means:
(A) a public utility, provider, or electric
cooperative affected by an action of a regulatory authority;
(B) a person whose [utility] service or rates are
affected by a proceeding before a regulatory authority; or
(C) a person who:
(i) is a competitor of a public utility or
provider with respect to a service delivered [performed] by the
utility or provider; or
(ii) wants to enter into competition with a
public utility or provider.
(2) "Affiliate" means:
(A) a person who directly or indirectly owns or
holds at least five percent of the voting securities of a public
utility or provider;
(B) a person in a chain of successive ownership
of at least five percent of the voting securities of a public
utility or provider;
(C) a corporation that has at least five percent
of its voting securities owned or controlled, directly or
indirectly, by a public utility or provider;
(D) a corporation that has at least five percent
of its voting securities owned or controlled, directly or
indirectly, by:
(i) a person who directly or indirectly
owns or controls at least five percent of the voting securities of a
public utility or provider; or
(ii) a person in a chain of successive
ownership of at least five percent of the voting securities of a
public utility or provider;
(E) a person who is an officer or director of a
public utility or provider or of a corporation in a chain of
successive ownership of at least five percent of the voting
securities of a public utility or provider; or
(F) a person determined to be an affiliate under
federal law or Section 11.006.
(3) "Allocation" means the division among
municipalities or among municipalities and unincorporated areas of
the plant, revenues, expenses, taxes, and reserves of an electric
[a] utility used to provide electric [public utility] service in a
municipality or for a municipality and unincorporated areas.
(8) "Counselor [Counsellor]" means the public utility
counsel.
(10) "Facilities" means all of the plant and equipment
of a public utility or provider, and includes the tangible and
intangible property, without limitation, owned, operated, leased,
licensed, used, controlled, or supplied for, by, or in connection
with the business of the public utility or provider.
(13) "Order" means all or a part of a final disposition
by a regulatory authority in a matter other than rulemaking,
without regard to whether the disposition is affirmative or
negative or injunctive or declaratory. The term includes:
(A) the issuance of a certificate or registration
[of convenience and necessity]; and
(B) the setting of a rate.
(16) "Rate" includes:
(A) any compensation, tariff, charge, fare,
toll, rental, or classification that is directly or indirectly
demanded, observed, charged, or collected by a public utility or
provider for a service, product, or commodity described in the
definition of utility in Section 31.002 or 51.002; and
(B) a rule, practice, or contract affecting the
compensation, tariff, charge, fare, toll, rental, or
classification.
(19) "Service" includes:
(A) basic local telecommunications service as
defined by Section 51.002;
(B) interexchange telecommunications service as
defined by Section 51.002;
(C) local exchange telephone service as defined
by Section 51.002;
(D) transmission service as defined by Section
31.002; and
(E) a service provided by a utility or electric
utility that is described in the definition of utility or electric
utility in Section 31.002 or 51.002 [has its broadest and most
inclusive meaning. The term includes any act performed, anything
supplied, and any facilities used or supplied by a public utility in
the performance of the utility's duties under this title to its
patrons, employees, other public utilities, an electric
cooperative, and the public. The term also includes the
interchange of facilities between two or more public utilities.
The term does not include the printing, distribution, or sale of
advertising in a telephone directory].
(20) "Test year" means the most recent 12 months,
beginning on the first day of a calendar or fiscal year quarter, for
which operating data for a public utility or provider are
available.
(21) "Trade association" means a nonprofit,
cooperative, and voluntarily joined association of business or
professional persons who are employed by public utilities, [or]
utility competitors, or providers to assist [the public utility
industry, a utility competitor, or the industry's or competitor's
employees] in dealing with mutual business or professional problems
and in promoting their common interest.
SECTION 4. Chapter 11, Utilities Code, is amended by adding
Sections 11.0042 and 11.0045 to read as follows:
Sec. 11.0042. DEFINITION OF AFFILIATE. (a) The term
"person" or "corporation" as used in the definition of "affiliate"
provided by Section 11.003(2) does not include:
(1) a broker or dealer registered under the Securities
Exchange Act of 1934 (15 U.S.C. Section 78a et seq.), as amended;
(2) a bank or insurance company as defined under the
Securities Exchange Act of 1934 (15 U.S.C. Section 78a et seq.), as
amended;
(3) an investment adviser registered under state law
or the Investment Advisers Act of 1940 (15 U.S.C. Section 80b-20 et
seq.);
(4) an investment company registered under the
Investment Company Act of 1940 (15 U.S.C. Section 80a-51 et seq.);
or
(5) an employee benefit plan, pension fund, endowment
fund, or other similar entity that may, directly or indirectly,
own, hold, or control five percent or more but not more than 15
percent of the voting securities of a public utility or the parent
corporation of a public utility if the entity did not acquire the
voting securities:
(A) for the purpose of or with the effect of
changing or influencing the control of the issuer of the
securities; or
(B) in connection with or as a participant in any
transaction that changes or influences the control of the issuer of
the securities.
(b) For the purpose of determining whether a person is an
affiliate under Section 11.006(a)(3), the term "person" does not
include an entity that may, directly or indirectly, own, hold, or
control five percent or more but not more than 15 percent of the
voting securities of a public utility or the parent corporation of a
public utility if the entity did not acquire the voting securities:
(1) for the purpose of or with the effect of changing
or influencing the control of the issuer of the securities; or
(2) in connection with or as a participant in any
transaction that changes or influences the control of the issuer of
the securities.
(c) A report filed by an entity described by Subsection
(a)(5) or (b) with the Securities and Exchange Commission is
conclusive evidence of the entity's intent if the report confirms
that the voting securities were not acquired:
(1) for the purpose of or with the effect of changing
or influencing the control of the issuer of the securities; or
(2) in connection with or as a participant in any
transaction that changes or influences the control of the issuer of
the securities.
Sec. 11.0045. DEFINITION OF PROVIDER. In Subtitle A
"provider" means:
(1) a service provider; and
(2) a network provider.
SECTION 5. Section 11.006, Utilities Code, is amended to
read as follows:
Sec. 11.006. PERSON DETERMINED TO BE AFFILIATE. (a) The
commission may determine that a person is an affiliate for purposes
of this title if the commission after notice and hearing finds that
the person:
(1) actually exercises substantial influence or
control over the policies and actions of a public utility or
provider;
(2) is a person over which a public utility or provider
exercises the control described by Subdivision (1);
(3) is under common control with a public utility or
provider; or
(4) together with one or more persons with whom the
person is related by ownership or blood relationship, or by action
in concert, actually exercises substantial influence over the
policies and actions of a public utility or provider even though
neither person may qualify as an affiliate individually.
(b) For purposes of Subsection (a)(3), "common control with
a public utility or provider" means the direct or indirect
possession of the power to direct or cause the direction of the
management and policies of another, without regard to whether that
power is established through ownership or voting of securities or
by any other direct or indirect means.
SECTION 6. Chapter 11, Utilities Code, is amended by adding
Section 11.010 to read as follows:
Sec. 11.010. REPRESENTATION. (a) Except as provided by
Subsection (b), an individual who represents an entity in a
contested proceeding before the commission must be an attorney
licensed to practice law in this state or in another state.
(b) The commission may make an exception to Subsection (a)
based on the circumstances of a particular proceeding.
SECTION 7. Section 12.004, Utilities Code, is amended to
read as follows:
Sec. 12.004. REPRESENTATION BY [THE] ATTORNEY GENERAL. The
attorney general shall represent the commission in a matter before
a state court, a court of the United States, or a federal public
utility or service regulatory commission.
SECTION 8. Section 12.005, Utilities Code, is amended to
read as follows:
Sec. 12.005. APPLICATION OF SUNSET ACT. The Public Utility
Commission of Texas is subject to Chapter 325, Government Code
(Texas Sunset Act). Unless continued in existence as provided by
that chapter or by Chapter 39, the commission is abolished and this
title expires September 1, 2011 [2005].
SECTION 9. Section 12.051(a), Utilities Code, is amended to
read as follows:
(a) The commission is composed of five [three]
commissioners appointed by the governor with the advice and consent
of the senate.
SECTION 10. Section 12.053(b), Utilities Code, is amended
to read as follows:
(b) A person is not eligible for appointment as a
commissioner if the person:
(1) at any time during the two years preceding
appointment[:
[(A)] personally served as an officer, director,
owner, employee, partner, or legal representative of a [public]
utility, provider, affiliate, or direct competitor of a [public]
utility or provider; [or]
(2) owns [(B) owned] or controls [controlled],
directly or indirectly, stocks or bonds of any class with a value of
$10,000 or more in a [public] utility, provider, affiliate, or
direct competitor of a [public] utility or provider; or
(3) [(2)] is not qualified to serve under Section
12.151, 12.152, or 12.153.
SECTION 11. Section 12.054(a), Utilities Code, is amended
to read as follows:
(a) It is a ground for removal from the commission if a
commissioner:
(1) does not have at the time of appointment or
maintain during service on the commission the qualifications
required by Section 12.053;
(2) violates a prohibition provided by Section 12.053
or by Subchapter D;
(3) cannot discharge the commissioner's duties for a
substantial part of the term for which the commissioner is
appointed because of illness or disability; [or]
(4) is absent from more than half of the regularly
scheduled commission meetings that the commissioner is eligible to
attend during a calendar year unless the absence is excused by
majority vote of the commission; or
(5) personally serves as an officer, director, owner,
employee, partner, or legal representative of a utility, provider,
affiliate, or direct competitor of a utility or provider.
SECTION 12. Section 12.059, Utilities Code, is amended by
adding Subsection (c) to read as follows:
(c) A person who is appointed to the commission is entitled
to reimbursement, as provided by the General Appropriations Act,
for the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
SECTION 13. Section 12.102, Utilities Code, is amended to
read as follows:
Sec. 12.102. DUTIES OF EMPLOYEES. The commission shall
develop and implement policies that clearly separate [define] the
policymaking [respective] responsibilities of the commission and
the management responsibilities of the commission employees.
SECTION 14. Section 12.152(a), Utilities Code, is amended
to read as follows:
(a) A person is not eligible for appointment as a
commissioner or executive director of the commission if:
(1) the person serves on the board of directors of a
company that supplies fuel, utility-related services, or
utility-related products to a utility or provider [regulated or
unregulated electric or telecommunications utilities]; or
(2) the person or the person's spouse:
(A) is employed by or participates in the
management of a business entity or other organization that is
regulated by or receives funds from the commission;
(B) directly or indirectly owns or controls more
than a 10 percent interest or a pecuniary interest with a value
exceeding $10,000 in:
(i) a business entity or other organization
that is regulated by or receives funds from the commission; or
(ii) a utility, provider, affiliate, or
direct competitor of a[,] utility [supplier,] or provider [other
entity affected by a commission decision in a manner other than by
the setting of rates for that class of customer];
(C) uses or receives a substantial amount of
tangible goods, services, or funds from the commission, other than
compensation or reimbursement authorized by law for commission
membership, attendance, or expenses; or
(D) notwithstanding Paragraph (B), has an
interest in a mutual fund or retirement fund in which more than 10
percent of the fund's holdings at the time of appointment is in a
single utility, provider, affiliate, or direct [utility]
competitor of a[, or] utility or provider [supplier] in this state
and the person does not disclose this information to the governor,
senate, commission, or other entity, as appropriate.
SECTION 15. Section 12.153, Utilities Code, is amended to
read as follows:
Sec. 12.153. RELATIONSHIP WITH TRADE ASSOCIATION. A person
may not serve as a commissioner or be a commission employee who is
employed in a "bona fide executive, administrative, or professional
capacity," as that phrase is used for purposes of establishing an
exemption to the overtime provisions of the federal Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.), [exempt from
the state's position classification plan or is compensated at or
above the amount prescribed by the General Appropriations Act for
step 1, salary group 17, of the position classification salary
schedule] if the person is:
(1) an officer, employee, or paid consultant of a
trade association; or
(2) the spouse of an officer, manager, or paid
consultant of a trade association.
SECTION 16. Sections 12.154(a), (b), (c), (d), (f), and
(h), Utilities Code, are amended to read as follows:
(a) During the period of service with the commission, a
commissioner or commission employee may not:
(1) have a pecuniary interest, including an interest
as an officer, director, partner, owner, employee, attorney, or
consultant, in:
(A) a [public] utility, provider, [or]
affiliate, or direct competitor of a utility or provider; or
(B) a person a significant portion of whose
business consists of furnishing goods or services to a utility,
provider, affiliate, or direct competitor of a utility or provider
[public utilities or affiliates];
(2) directly or indirectly own or control securities
in a [public] utility, provider, affiliate, or direct competitor of
a [public] utility or provider; or
(3) accept a gift, gratuity, or entertainment from:
(A) a [public] utility, provider, affiliate, or
direct competitor of a [public] utility or provider;
(B) a person a significant portion of whose
business consists of furnishing goods or services to [public]
utilities, providers, affiliates, or direct competitors of
[public] utilities or providers; or
(C) an agent, representative, attorney,
employee, officer, owner, director, or partner of a person
described by Paragraph (A) or (B).
(b) A commissioner or a commission employee may not directly
or indirectly solicit, request from, or suggest or recommend to a
[public] utility, provider, affiliate, or direct competitor of a
utility or provider or an agent, representative, attorney,
employee, officer, owner, director, or partner of a [public]
utility, provider, affiliate, or direct competitor of a utility or
provider the appointment to a position or the employment of a person
by the [public] utility, provider, [or] affiliate, or direct
competitor of a utility or provider.
(c) A person may not give or offer to give a gift, gratuity,
employment, or entertainment to a commissioner or commission
employee if that person is:
(1) a [public] utility, provider, affiliate, or direct
competitor of a [public] utility or provider;
(2) a person who furnishes goods or services to a
[public] utility, provider, affiliate, or direct competitor of a
[public] utility or provider; or
(3) an agent, representative, attorney, employee,
officer, owner, director, or partner of a person described by
Subdivision (1) or (2).
(d) A [public] utility, provider, affiliate, or direct
competitor of a [public] utility or provider or a person furnishing
goods or services to a [public] utility, provider, affiliate, or
direct competitor of a [public] utility or provider may not aid,
abet, or participate with a commissioner, commission employee, or
former commission employee in conduct that violates Subsection
(a)(3) or (c).
(f) It is not a violation of this section if a commissioner
or commission employee, on becoming the owner of stocks, bonds, or
another pecuniary interest in a [public] utility, provider,
affiliate, or direct competitor of a [public] utility or provider
otherwise than voluntarily, informs the commission and the attorney
general of the ownership and divests the ownership or interest
within a reasonable time.
(h) This section does not apply to a contract for a [public
utility] product or service from [or equipment for use of] a
[public] utility, provider, affiliate, or direct competitor of a
utility or provider [product] when a commissioner or commission
employee is acting as a consumer.
SECTION 17. Sections 12.155(a) and (c), Utilities Code, are
amended to read as follows:
(a) A commissioner, a commission employee, or an employee of
the State Office of Administrative Hearings involved in hearing
utility or provider cases may not:
(1) be employed by a [public] utility or provider that
was in the scope of the commissioner's or employee's official
responsibility while the commissioner or employee was associated
with the commission or the State Office of Administrative Hearings;
or
(2) represent a person before the commission or State
Office of Administrative Hearings or a court in a matter:
(A) in which the commissioner or employee was
personally involved while associated with the commission or State
Office of Administrative Hearings; or
(B) that was within the commissioner's or
employee's official responsibility while the commissioner or
employee was associated with the commission or State Office of
Administrative Hearings.
(c) The prohibition of Subsection (a)(2) applies while a
commissioner, commission employee, or employee of the State Office
of Administrative Hearings involved in hearing utility or provider
cases is associated with the commission or State Office of
Administrative Hearings and at any time after.
SECTION 18. Section 12.252, Utilities Code, is amended to
read as follows:
Sec. 12.252. COMMISSION AUTHORITY. The commission, after
notice and hearing, may require each utility or provider subject to
regulation under this title to make an effort to overcome the
underuse of historically underutilized businesses.
SECTION 19. Section 12.253, Utilities Code, is amended to
read as follows:
Sec. 12.253. REPORT REQUIRED. The commission shall require
each utility or provider subject to regulation under this title to
prepare and submit to the commission a comprehensive annual report
detailing its use of historically underutilized businesses.
SECTION 20. Section 14.001, Utilities Code, is amended to
read as follows:
Sec. 14.001. POWER TO REGULATE AND SUPERVISE. The
commission has the general power to regulate and supervise the
business of each [public] utility and provider within its
jurisdiction and to do anything specifically designated or implied
by this title that is necessary and convenient to the exercise of
that power and jurisdiction.
SECTION 21. Subchapter A, Chapter 14, Utilities Code, is
amended by adding Section 14.0025 to read as follows:
Sec. 14.0025. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION. (a) The commission shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the commission's
jurisdiction.
(b) The commission's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the commission.
SECTION 22. Section 14.008(a), Utilities Code, is amended
to read as follows:
(a) Except as otherwise provided by this title, this [This]
title does not restrict the rights and powers of a municipality to
grant or refuse a franchise to use the streets and alleys in the
municipality or to make a statutory charge for that use.
SECTION 23. Section 14.058, Utilities Code, is amended to
read as follows:
Sec. 14.058. FEES FOR ELECTRONIC ACCESS TO INFORMATION.
The fees charged by the commission for electronic access to
information that is stored in the system established by the
commission using funds from the Texas Public Finance Authority and
approved by the Department of Information Resources shall be
established:
(1) by the commission in consultation with the Texas
Building and Procurement [General Services] Commission; and
(2) in an amount reasonable and necessary to retire
the debt to the Texas Public Finance Authority associated with
establishing the electronic access system.
SECTION 24. Subchapter B, Chapter 14, Utilities Code, is
amended by adding Section 14.059 to read as follows:
Sec. 14.059. TECHNOLOGY POLICY. The commission shall
implement a policy requiring the commission to use appropriate
technological solutions to improve the commission's ability to
perform its functions. The policy must ensure that the public is
able to interact with the commission on the Internet.
SECTION 25. Section 14.101(d), Utilities Code, is amended
to read as follows:
(d) This section does not apply to:
(1) the purchase of a unit of property for
replacement;
(2) an addition to the facilities of a public utility
by construction; [or]
(3) transactions that facilitate unbundling, asset
valuation, minimization of ownership or control of generation
assets, or other purposes consistent with Chapter 39;
(4) transactions of or relating to:
(A) an electing company under Chapter 58 or 59;
or
(B) a company holding a certificate of operating
authority or a service provider certificate of operating authority
on August 31, 2005; or
(5) transactions that are reported to or reviewed by a
federal agency, another state, or another state agency.
SECTION 26. Subchapter B, Chapter 15, Utilities Code, is
amended by adding Section 15.0205 to read as follows:
Sec. 15.0205. DEFINITION. In this subchapter, "person"
includes a municipally owned utility and an electric cooperative
for the purposes of enforcing compliance with and providing
penalties for violations of Sections 39.151(j) and 39.157(a).
SECTION 27. Section 15.023, Utilities Code, is amended by
amending Subsections (b) and (c) and adding Subsections (d), (e),
and (f) to read as follows:
(b) Except as otherwise provided by this title, the [The]
penalty for a violation may be in an amount not to exceed $10,000
[$5,000]. Each day a violation continues or occurs is not a
separate violation for purposes of imposing a penalty, except as
otherwise provided by this title. Each settlement interval in the
wholesale electric market during which a violation continues or
occurs is not a separate violation for purposes of imposing a
penalty.
(c) The commission by rule shall establish a classification
system for violations that includes a range [The amount] of [an]
administrative penalties that may be assessed for each class of
violation [penalty shall be] based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and
gravity of a prohibited act; and
(B) the hazard or potential hazard created to the
health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require,
including the amount of a penalty imposed on a similarly situated
person.
(d) The classification system established under Subsection
(c) shall provide that the penalty for a violation may exceed
$10,000 only if the violation is included in the highest class of
violations in the classification system.
(e) Notwithstanding the classification system established
under Subsection (c), a person regulated under this title who
wilfully and knowingly violates this title or a rule or order
adopted under this title may be assessed a penalty included in the
range of penalties that may be assessed for the highest class of
violations in the classification system.
(f) The commission may not initiate the process for
assessing an administrative penalty after the second anniversary of
the later of:
(1) the date on which the violation occurred; or
(2) the date on which the commission knew that the
violation occurred.
SECTION 28. Section 15.024, Utilities Code, as amended by
Chapters 1212 and 1579, Acts of the 76th Legislature, Regular
Session, 1999, is reenacted and amended to read as follows:
Sec. 15.024. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
(a) If the executive director contends [determines] that a
violation has occurred, the executive director shall [may] issue to
the commission a report that states the facts on which the
contention [determination] is based, including whether service to
an end-user consumer is the basis of the contention, and the
executive director's recommendation on the imposition of an
administrative penalty, including a recommendation on the amount of
the penalty.
(b) Not later than the 14th day after the date the report is
issued, the executive director shall give written notice of the
report to the person against whom the penalty may be assessed. The
notice shall be given by certified mail, return receipt requested.
The notice must:
(1) include a brief summary of the alleged violation;
(2) state whether service to an end-user consumer is
the basis of the alleged violation, including instruction or
information on how to contact the end-user consumer;
(3) state the amount of the recommended penalty,
including the reasons why that penalty is recommended, considering
the classification system created under Section 15.023; and
(4) [(3)] inform the person that the person has a
right to a hearing on the occurrence of the violation, the amount of
the penalty, or both the occurrence of the violation and the amount
of the penalty.
(c) A penalty may not be assessed under this section if the
person against whom the penalty may be assessed remedies the
violation before the 31st day after the date the person receives the
notice under Subsection (b). A person who claims to have remedied
an alleged violation has the burden of proving to the commission
that the alleged violation was remedied and was accidental or
inadvertent. This subsection does not apply to a violation of
Chapter [17,] 55[,] or 64.
(d) Not later than the 60th [20th] day after the date the
person receives the notice, the person may accept or agree not to
contest the contention [determination] and recommended penalty of
the executive director in writing or may make a written request for
a hearing on the occurrence of the violation, the amount of the
penalty, or both the occurrence of the violation and the amount of
the penalty.
(e) If the person accepts, agrees not to contest, or fails
to timely respond to the notice of the executive director's
contention [determination] and recommended penalty, the commission
by order shall approve the contention [determination] and impose
the recommended penalty.
(f) If the person requests a hearing [or fails to timely
respond to the notice], the executive director shall set a hearing
and give notice of the hearing to the person. The hearing shall be
held in accordance with Subchapter B, Chapter 14. If a hearing is
conducted by [an administrative law judge of] the State Office of
Administrative Hearings, the [. The] administrative law judge
shall make findings of fact and conclusions of law and promptly
issue to the commission a proposal for a decision about the
occurrence of the violation and the amount of a proposed penalty.
Based on the findings of fact, conclusions of law, and proposal for
a decision, the commission by order may find that a violation has
occurred and impose a penalty or may find that no violation
occurred.
(g) The notice of the commission's order shall be given to
the person as provided by Chapter 2001, Government Code, and must
include a statement of the right of the person to judicial review of
the order.
SECTION 29. Section 15.027(c), Utilities Code, is amended
to read as follows:
(c) The executive director may delegate any power or duty
relating to an administrative penalty given the executive director
by this subchapter to the deputy [a person designated by the]
executive director.
SECTION 30. Section 15.032, Utilities Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) Except as provided by Subsection (c), a [A] suit for the
recovery of a penalty does not:
(1) bar or affect the recovery of any other penalty; or
(2) bar a criminal prosecution or an action for civil
damages against any person.
(c) An action for civil damages may not be brought against a
person if the commission has acted under Section 39.151(j) or
39.157(a) to address the conduct that is the subject of the proposed
action for civil damages.
SECTION 31. Section 15.033, Utilities Code, is amended to
read as follows:
Sec. 15.033. DISPOSITION OF CERTAIN AMOUNTS [FINES AND
PENALTIES]. (a) A fine or penalty collected under this title,
other than a [fine or penalty collected in a criminal proceeding or
a] penalty collected under Section 15.027(a), shall be paid to the
commission.
(b) Notwithstanding any other law, a disgorgement or refund
amount collected under Section 39.151(j) or 39.157(a) shall be paid
to the independent organization certified by the commission under
Section 39.151 for distribution according to commission order.
SECTION 32. Sections 15.051(a) and (b), Utilities Code, are
amended to read as follows:
(a) An affected person may complain to the regulatory
authority in writing setting forth an act or omission by a [public]
utility or provider in violation or claimed violation of a law that
the regulatory authority has jurisdiction to administer or of an
order, ordinance, or rule of the regulatory authority.
(b) The commission shall keep for a reasonable period
information about each complaint filed with the commission that the
commission has authority to resolve. The information shall
include:
(1) the date the complaint is received;
(2) the name of the complainant;
(3) the subject matter of the complaint;
(4) a record of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) if the commission took no action on the complaint,
an explanation of the reason the complaint was closed without
action.
SECTION 33. The heading to Subchapter A, Chapter 16,
Utilities Code, is amended to read as follows:
SUBCHAPTER A. ASSESSMENT ON [PUBLIC] UTILITIES, RETAIL ELECTRIC
PROVIDERS, ELECTRIC COOPERATIVES, AND PROVIDERS
SECTION 34. Section 16.001, Utilities Code, is amended to
read as follows:
Sec. 16.001. ASSESSMENT ON [PUBLIC] UTILITIES, RETAIL
ELECTRIC PROVIDERS, ELECTRIC COOPERATIVES, AND PROVIDERS. (a) To
defray the expenses incurred in the administration of this title,
an assessment is imposed on each [public] utility, retail electric
provider, provider, and electric cooperative within the
jurisdiction of the commission that serves the ultimate consumer[,
including each interexchange telecommunications carrier].
(b) An assessment under this section may not exceed [is
equal to] one-sixth of one percent of the [public utility's, retail
electric provider's, or electric cooperative's] gross receipts from
services over which the commission has jurisdiction, including a
service for which a provider receives interconnection under Chapter
60 [rates charged to the ultimate consumer in this state].
(c) Each utility and provider [An interexchange
telecommunications carrier that does not provide local exchange
telephone service] may collect the fee imposed under this section
as an additional item separately stated on the customer bill as
"public utility commission gross receipts assessment."
SECTION 35. Section 16.002(b), Utilities Code, is amended
to read as follows:
(b) A [public] utility, retail electric provider, provider,
or electric cooperative may instead make quarterly payments due
August 15, November 15, February 15, and May 15.
SECTION 36. Section 39.262(c), Utilities Code, is amended
to read as follows:
(c) After January 10, 2004, at a schedule and under
procedures to be determined by the commission, each transmission
and distribution utility, its affiliated retail electric provider,
and its affiliated power generation company shall jointly file to
finalize stranded costs under Subsections (h) and (i) and reconcile
those costs with the estimated stranded costs used to develop the
competition transition charge in the proceeding held under Section
39.201. Any resulting difference shall be applied to the
nonbypassable delivery rates of the transmission and distribution
utility, except that at the utility's option, any or all of the
amounts recovered under this section [remaining stranded costs] may
be securitized under Subchapter G.
SECTION 37. Section 39.301, Utilities Code, is amended to
read as follows:
Sec. 39.301. PURPOSE. The purpose of this subchapter is to
enable utilities to use securitization financing to recover
regulatory assets, all other amounts determined under Section
39.262, and any amounts being recovered under a competition
transition charge determined as a result of a proceeding under
Section 39.201 or 39.262. It is the policy of this state to
encourage electric utilities and transmission and distribution
utilities to use securitization financing [stranded costs,]
because this type of debt will lower the carrying costs of the
assets relative to the costs that would be incurred using
conventional utility financing methods. The proceeds of the
transition bonds shall be used solely for the purposes of reducing
the amount of recoverable regulatory assets and other amounts
[stranded costs], as determined by the commission in accordance
with this chapter, through the refinancing or retirement of utility
debt or equity. The commission shall ensure that securitization
provides tangible and quantifiable benefits to ratepayers, greater
than would have been achieved absent the issuance of transition
bonds. The commission shall ensure that the structuring and
pricing of the transition bonds result in the lowest transition
bond charges consistent with market conditions and the terms of the
financing order. The amount securitized may not exceed the present
value of the revenue requirement over the life of the proposed
transition bond associated with the regulatory assets or stranded
costs sought to be securitized. The present value calculation
shall use a discount rate equal to the proposed interest rate on the
transition bonds.
SECTION 38. Section 39.302(4), Utilities Code, is amended
to read as follows:
(4) "Qualified costs" means 100 percent of an electric
utility's regulatory assets and 75 percent of its recoverable costs
determined by the commission under Section 39.201 and any remaining
amounts [stranded costs] determined under Section 39.262 together
with the costs of issuing, supporting, and servicing transition
bonds and any costs of retiring and refunding the electric
utility's existing debt and equity securities in connection with
the issuance of transition bonds. The term includes the costs to
the commission of acquiring professional services for the purpose
of evaluating proposed transactions under Section 39.201 and this
subchapter.
SECTION 39. Sections 39.303(a) and (b), Utilities Code, are
amended to read as follows:
(a) The commission shall adopt a financing order, on
application of a utility to recover the utility's regulatory assets
and other amounts determined [eligible stranded costs] under
Section 39.201 or 39.262, on making a finding that the total amount
of revenues to be collected under the financing order is less than
the revenue requirement that would be recovered over the remaining
life of the stranded costs using conventional financing methods and
that the financing order is consistent with the standards in
Section 39.301.
(b) The financing order shall detail the amount of
regulatory assets and other amounts [stranded costs] to be
recovered and the period over which the nonbypassable transition
charges shall be recovered, which period may not exceed 15 years.
SECTION 40. Subtitle C, Title 2, Utilities Code, is amended
by adding Chapter 65 to read as follows:
CHAPTER 65. STATEWIDE CABLE AND VIDEO FRANCHISE
Sec. 65.001. DEFINITIONS. In this chapter:
(1) "Cable service" is defined as set forth in 47
U.S.C. Section 522(6).
(2) "Cable service provider" means a person who
provides cable service.
(3) "Certificated provider" means a person who has
been issued a certificate under Chapter 54.
(4) "Communications facility" means the equipment and
components of a communications network provider, and includes the
property owned, operated, or controlled in connection with the
provider's business operations.
(5) "Communications network" means a component or
facility that is, in whole or in part, physically located within a
public right-of-way and that is used to provide video programming,
cable, voice, or data services.
(6) "Communications service" means the transmission,
conveyance, or routing of a cable service or video programming as
defined in this chapter, voice service, or data service by or
through any communications network regardless of the protocol used
for such transmission or conveyance.
(7) "Communications service provider" means a person
or group of persons engaged in the provision of communications
services, without regard to ownership of a communications network.
(8) "Franchise" means an initial authorization, or
renewal of an authorization, issued by a franchising authority,
regardless of whether the authorization is designated as a
franchise, permit, license, resolution, contract, certificate,
agreement, or otherwise, that authorizes the construction and
operation of a communications network in the public rights-of-way.
(9) "Franchise fee" means the amount of compensation
paid to a franchising authority by a franchisee under the terms of
the franchise.
(10) "Franchisee" means a communications service
provider that has been granted a franchise.
(11) "Public right-of-way" means the area on, below,
or above a public roadway, highway, street, public sidewalk, alley,
waterway, or utility easement in which a municipality has an
interest.
(12) "Video programming" means programming provided
by, or generally considered comparable to programming provided by,
a television broadcast station, as set forth in 47 U.S.C. Section
522(20).
(13) "Video service" means video programming services
provided through wireline facilities located at least in part in
the public right-of-way without regard to delivery technology,
including Internet protocol technology. This definition does not
include any video service provided by a commercial mobile service
provider as defined in 47 U.S.C. Section 332(d).
(14) "Video service provider" means a video
programming distributor that distributes video programming
services through wireline facilities located at least in part in
the public right-of-way without regard to delivery technology.
This term does not include a cable service provider.
(15) "Voice service" means voice communications
services provided through wireline facilities located at least in
part in the public right-of-way, without regard to the delivery
technology, including Internet protocol technology.
Sec. 65.002. STATE AUTHORIZATION TO PROVIDE CABLE OR VIDEO
SERVICE. (a) Any entity or person seeking to provide cable or
video service in this state shall file an application for a state
franchise with the commission as required by this section.
(b) The commission shall issue and review a certificate of
franchise authority to offer cable or video service within this
state upon receiving from the applicant an affidavit signed by an
officer or general partner of the applicant entity affirming the
following representations and information:
(1) that, if applicable, the applicant has filed or
will timely file with the Federal Communications Commission all
forms required by that agency in advance of offering cable service;
(2) that the applicant agrees to comply with all
applicable federal and state statutes and regulations;
(3) a description of the geographic areas to be served
by the applicant, which may include unincorporated areas, which
description shall be promptly updated by the applicant if service
is expanded to a previously undesignated geographic area; and
(4) the location of the principal place of business
and the names of the principal executive officers of the applicant.
(c) The certificate of franchise authority issued by the
commission shall contain the following:
(1) a grant of authority to provide cable or video
service as requested in the application;
(2) a grant of authority to use and occupy the public
rights-of-way in the delivery of that service, subject to the laws
of this state, including the police powers of the municipalities in
which the service is delivered; and
(3) a statement that the grant of authority is subject
to lawful operation of the cable or video service by the applicant
or its successor in interest.
(d) The certificate of franchise authority issued by the
commission is fully transferable to any successor in interest to
the applicant to which it is initially granted. A notice of
transfer shall be promptly filed with the commission upon the
completion of such transfer.
Sec. 65.003. TERMINATION OF MUNICIPAL FRANCHISE BY CABLE
SERVICE PROVIDER. (a) Beginning September 1, 2005, a cable service
provider may elect to terminate any municipal franchise by
providing written notice to the commission and the affected
municipality. The termination shall be effective as of the date the
commission receives the notice.
(b) A cable service provider electing to terminate an
existing municipal franchise shall be responsible for remitting to
the affected municipality within 90 days of the effective date of
termination any accrued but unpaid franchise fees due under the
franchise being terminated. If the cable service provider has
credit remaining from prepaid franchise fees, the provider may
deduct the amount of the remaining credit from any future fees or
taxes it must pay to the municipality, either directly or through
the comptroller.
Sec. 65.004. REQUIREMENTS APPLICABLE TO CABLE SERVICE
PROVIDERS AND VIDEO SERVICE PROVIDERS. (a) Not later than 120 days
after a request by a municipality served by the cable or video
service provider as specified in the certificate issued by the
commission, entities, to extent required by 47 U.S.C. Section 531,
shall provide the municipality, where technically capable, with
capacity in its communications network to allow public,
educational, and governmental (PEG) access channels for
noncommercial programming as follows. If a municipality did not
have any public, educational, and governmental access channels as
of September 1, 2005, then the cable or video service provider shall
furnish:
(1) up to three PEG channels for a municipality with a
population of at least 50,000; and
(2) up to two PEG channels for a municipality with a
population of less than 50,000.
(b) Notwithstanding Subsection (a), the number of PEG
channels required to be provided by each cable or video service
provider shall not be less than the number of PEG channels a
municipality has activated under the terms of any franchise,
contract, or other agreement, including any channels received as of
September 1, 2005, in lieu of public, educational, or governmental
channels, regardless of whether the municipal franchise is
terminated under this chapter. The following conditions shall
apply to the provision of any PEG channels carried in accordance
with this subsection or Subsection (a):
(1) the cable or video service provider may, at its
sole discretion, place any channel utilized by a municipality on
any tier of service following September 1, 2005, except that the
municipality may, at its sole discretion, designate up to three PEG
channels (or, in the case of a municipality with a population of
less than 50,000, up to two PEG channels) utilized by the
municipality, which shall remain on the lowest service tier for
which no equipment is required to receive the channel; provided,
however, if service is provided only in digital format, the PEG
channels shall be made available in that format;
(2) after a cable or video service provider has
commenced commercial delivery of cable or video services in a
municipality and no later than 120 days after a written request from
a municipality, a cable or video service provider shall, as
applicable, either provide the initial access channel allowed in
Subsection (a) if a municipality did not have any PEG channels as of
September 1, 2005, or shall continue to provide the channels in
service as of September 1, 2005, subject to the terms of this
section. In the event a municipality has not utilized the minimum
number of access channels as permitted in Subsection (a), access to
the additional channel capacity allowed in Subsection (a) shall be
provided upon 90 days' written notice if the municipality meets the
following standard: if a municipality has one active PEG channel
and wishes to activate an additional PEG channel, the initial
channel shall be considered to be substantially utilized when 12
hours are programmed on that channel each calendar day. In
addition, at least 40 percent of the 12 hours of programming for
each business day on average over each calendar quarter must be
nonrepeat programming. Nonrepeat programming shall include the
first three video-castings of a program. If a municipality is
entitled to three PEG channels under Subsection (a) and has in
service two active PEG channels, each of the two active channels
shall be considered to be substantially utilized when 12 hours are
programmed on each channel each calendar day and at least 50 percent
of the 12 hours of programming for each business day on average over
each calendar quarter is nonrepeat programming for three
consecutive calendar quarters;
(3) a municipality shall bear the cost of any
construction required to establish a connection between a
municipality's origination point and the cable or video service
provider's communication network;
(4) the operation of any PEG channel provided pursuant
to this section shall be the responsibility of the municipality
receiving the benefit of such channel, and the cable or video
service provider shall have no obligation to operate such channel
other than the transmission of such channel; and
(5) any PEG channel provided pursuant to this section
that is not utilized by the municipality for at least eight hours a
day shall no longer be made available to the municipality, but may
be programmed at the cable or video service provider's discretion.
At such time as the municipality can certify to the cable or video
service provider a schedule for at least eight hours of daily
programming, the cable or video service provider shall restore the
previously lost channel but shall be under no obligation to carry
that channel on a basic or analog tier.
(6) The commission shall oversee the requirements of
this Section to ensure compliance with federal law.
(c) The requirements of Subsections (a) and (b) shall apply
equally to all cable or video service providers that own a
communications network or lease or otherwise use a third-party
communications network, including that of an affiliate, to deliver
cable or video service within a municipality, subject to Subsection
(e).
(d) Only a municipality may seek enforcement of the
requirements of Subsections (a), (b), and (c) by initiating a
proceeding with the commission.
(e) It is the sole responsibility of the municipality to
ensure that any and all transmissions, content, or programming to
be transmitted over a channel or facility are provided or submitted
to the cable or video service provider in a manner or form that is
capable of being accepted and transmitted by a provider, without
requirement for additional alteration or change in content by the
provider, over the particular network of the cable or video service
provider, which is compatible with the technology or protocol
utilized by the cable or video service provider to deliver
services.
(f) Pursuant to a franchise issued by the Commission, and to
the extent required by 47 U.S.C. Section 541(a)(3), a cable or video
service provider may not deny access to service to any group of
potential residential subscribers because of the income of the
residents of the local area in which such group resides. A provider
may satisfy the requirements of this subsection through the use of
an alternative technology notwithstanding differences in the
specific content or functionality provided.
(g) An affected person may seek enforcement of the
requirement described in Subsection (f) by initiating a proceeding
with the commission. A municipality within which the potential
residential cable or video subscribers referenced in Subsection (f)
reside shall be an affected person for purposes of this section.
(h) Pursuant to a franchise issued by the commission, a
cable or video service provider shall comply with customer service
requirements consistent with 47 C.F.R. Section 76.309(c) until
there are more than two providers offering service including
direct-to-home satellite service in the affected area.
(i) This state, the commission, or a political subdivision
shall not require a mandatory build out on either a cable or video
service provider except as specifically required by federal law.
(j) Should a cable or video service provider be found by the
commission to be in noncompliance with the requirements of this
section, the commission shall order such provider, within a
reasonable period of time, to cure such noncompliance. Failure to
comply shall subject the provider to such penalties as the
commission shall reasonably impose, up to and including revocation
of any state franchise granted under this chapter. A municipality
within which the provider offers cable or video service shall be an
appropriate party in any such litigation.
(k) The commission may not prefer or give advantage to any
cable or video service provider operating under a state franchise
or discriminate against any cable or video service provider
operating under a state franchise in any manner in the requirements
provided in this subsection. Any requirements shall be uniformly
applied to all cable or video service providers operating under a
state franchise within the municipality. A municipality's
authority to regulate the activities of a cable or video service
provider is limited to the requirements imposed on a cable or video
service provider operating under a state franchise by this
subsection. Specifically, the commission shall allow a
municipality the authority to:
(1) require that a communications service provider
that is providing cable or video service within the municipality
register with the municipality and maintain a point of contact;
(2) establish reasonable guidelines regarding the use
of the public, educational, and governmental access channels; and
(3) submit reports within 30 days on the customer
service standards referenced in Subsection (h) if the provider is
subject to those standards and has continued and unresolved
customer service complaints indicating a clear failure on the part
of the provider to comply with the standards. If the reports are
not provided or are incomplete, or if they verify noncompliance,
then the municipality, after providing appropriate due process and
a right to be heard, may file an appropriate proceeding in the
municipal court.
(l) The commission shall adopt a policy whereby it receives
service quality complaints from customers of franchised cable and
video providers. The commission shall post on its internet website
each calendar quarter the number of complaints lodged against each
franchise holder.
(m) Nothing in this section prohibits a municipality from
exercising its nondiscriminatory police power with respect to a
communications service provider's use of the public rights-of-way.
The commission shall have jurisdiction to enforce and determine the
lawfulness of any ordinance adopted by a municipality under this
section.
(n) Except as provided in this chapter, a municipality may
not require any monetary compensation, nonmonetary compensation,
facilities, value, in-kind support, free service, or other thing of
value for the right or privilege of a cable provider or video
service provider to provide service or to occupy or use a public
right-of-way.
(o) Upon written notice to the Commission, a cable or video
service provider electing to terminate an existing municipal
franchise or initiating service after September 1, 2005, shall pay
each municipality in which it provides service a fee equal to five
percent of the provider's gross revenues.
(p) For purposes of this section, "gross revenues" means:
(1) all consideration of any kind or nature, including
without limitation cash, credits, property, and in-kind
contributions (services or goods) derived by the provider from the
operation of the provider's system to provide cable or video
service within the municipality;
(2) all fees charged to subscribers for any and all
cable or video service provided by the provider, and compensation
received by the provider or its affiliates that is derived from the
operation of the provider's system to provide cable or video
service with respect to commissions that are paid to the provider as
compensation for promotion or exhibition of any products or
services on its system, such as a "home shopping" or a similar
channel, subject to Subsection (p)(5); and
(3) a pro rata portion of all revenue derived by the
cable or video provider or its affiliates pursuant to compensation
arrangements for advertising derived from the operation of the
provider's system to provide cable or video service within the
municipality, subject to Subsection (p)(3). The allocation shall
be based on the number of subscribers in the municipality divided by
the total number of subscribers in relation to the relevant
regional or national compensation arrangement.
(q) For purposes of this section, "gross revenues" does not
include:
(1) revenues not actually received, even if billed,
such as bad debt;
(2) revenues received by any affiliate or any other
person in exchange for supplying goods or services used by the
provider to provide cable or video service;
(3) refunds, rebates, or discounts made to
subscribers, leased access providers, advertisers, or the
municipality;
(4) any revenues from services classified as non-cable
or non-video service under federal or state law, including without
limitation revenue received from telecommunications services,
revenue received from information services, and any other revenues
attributed by the provider to non-cable or non-video service in
accordance with commission or Federal Communications Commission
rules, regulations, standards, or orders;
(5) any revenue paid by subscribers to home shopping
programmers directly from the sale of merchandise through any home
shopping channel offered as part of the cable or video service;
(6) the sale of cable or video service for resale in
which the purchaser is required to collect the five percent fee from
the purchaser's customer;
(7) any tax of general applicability imposed upon the
provider or upon subscribers by a city, state, federal, or any other
governmental entity and required to be collected by the provider
and remitted to the taxing entity, including, but not limited to,
sales and use tax, gross receipts tax, excise tax, utility users
tax, public service tax, and communication taxes;
(8) the provision of cable service to customers at no
charge as required or allowed by a municipality, including without
limitation the provision of cable service to public institutions,
public schools, or governmental entities;
(9) any foregone revenue from the provider's provision
of free or reduced-cost cable service to any person, including
without limitation the municipality and other public institutions
or other institutions;
(10) sales of capital assets or sales of surplus
equipment;
(11) reimbursement by programmers of marketing costs
incurred by the provider for the introduction of new programming;
or
(12) directory or Internet advertising revenue
including, but not limited to, yellow page, white page, banner
advertisement, and electronic publishing.
(r) The fee payable under this section is to be paid to the
municipality quarterly, 45 days after the end of the quarter. Each
payment shall be accompanied by a summary as to the basis for the
calculation of the fee. A municipality and the commission may
review the business records of the cable provider or video service
provider to the extent necessary to ensure compensation in
accordance with this chapter. Each party shall bear the party's own
costs of the examination. The municipality may, in the event of a
dispute as to proper compensation under this chapter, bring an
action in a court of competent jurisdiction.
(s) For purposes of this section, a provider's system shall
consist solely of the optical spectrum wavelength(s), bandwidth, or
other current or future technological capacity used for the
transmission of video programming over wireline directly to
subscribers within the geographic area within the municipality as
designated by the provider in its franchise.
(t) The commission shall not permit a municipality to
require a cable service provider or video service provider to pay
the municipality any fee or assessment, including any application,
permit, excavation, or inspection fee or any fee for the support of
public, educational, or governmental access channels. This
subsection does not preclude the assessment of generally applicable
taxes or fees.
(u) The commission shall permit a cable service provider or
a video service provider may recover from the provider's customers
the fee imposed by this chapter.
(v) Notwithstanding that a municipal cable franchise may be
terminated pursuant to Section 65.003, the following services shall
continue to be provided by the cable provider that was furnishing
services pursuant to its terminated franchise until 2015 or until
the term of the franchise was to expire, whichever is sooner:
(1) institutional network capacity, however defined
or referred to in the municipal cable franchise, but generally
referring to a private line data network capacity for use by the
municipality for noncommercial purposes, shall continue to be
provided at the same capacity as was provided to the municipality
prior to the date of the termination; and
(2) cable services to community public buildings, such
as municipal buildings and public schools, shall continue to be
provided to the same extent provided immediately prior to the date
of the termination. Such cable service generally refers to the
existing cable drop connections to such facilities and the tier of
cable service provided pursuant to the franchise at the time of the
termination.
Sec. 65.005. APPLICABILITY OF OTHER LAWS. Nothing herein
shall be interpreted to prevent a voice provider, cable service
provider or video service provider, or municipality from seeking
clarification of its rights and obligations under federal law or to
exercise any right or authority under federal or state law.
SECTION 41. The Public Utility Commission of Texas shall
conduct a study and shall file a report with the legislature not
later than September 1, 2006, containing the commission's
revenue-neutral, technology-neutral, and competitive-neutral
recommendations concerning compensation flowing to the cities from
voice, video, and cable providers. The report shall identify the
following:
(1) all sources of compensation that have been
received by the cities historically from providers of voice, video,
and cable;
(2) the providers of voice, video, and cable services
available to consumers within municipalities without regard to the
technology used to deliver such services;
(3) alternative funding mechanisms, including an
additional municipal sales tax or any other additional municipally
imposed alternatives, which would be revenue-neutral to the
municipalities, and technology-neutral and competitive-neutral in
application to providers, their services, and their customers; and
(4) the payment mechanism of the fees, including all
municipal fees and franchise fees.
SECTION 42. (a) Promptly after this Act takes effect, the
Public Utility Commission of Texas shall conduct a comprehensive
review of the reporting requirements relating to
telecommunications providers that are prescribed by statute or
commission rules to determine the necessity for the required
reports.
(b) In conducting the review, the Public Utility Commission
of Texas shall:
(1) solicit input and assistance from interested
parties;
(2) establish criteria for when and in what manner the
information included in a report will be used;
(3) ensure that information included in a report is
not duplicative of information included in a different report;
(4) eliminate a report required by rule that the
commission determines is unnecessary; and
(5) change the requirements relating to a report the
commission determines is necessary to make the reporting process
more efficient.
(c) The Public Utility Commission of Texas shall conclude
the review required by this section not later than September 1,
2006, and shall report to the legislature in the biennial report
required by Section 52.006, Utilities Code, on the results of the
review. The report must include:
(1) the results of the review and the actions the
commission has taken to amend commission rules to reflect the
results of the review; and
(2) recommendations on any legislation the commission
determines is necessary or appropriate to eliminate or change
reporting requirements prescribed by statute.
SECTION 43. The following provisions of the Utilities Code
are repealed on the effective date of this Act:
(1) Section 11.008;
(2) Section 15.003(c);
(3) Section 15.028;
(4) Section 15.030;
(5) Section 15.052;
(6) Chapter 17; and
(7) Chapter 62.
SECTION 44. Promptly after this Act takes effect, the
governor shall appoint two additional members to the Public Utility
Commission of Texas. Of those members, the governor shall
designate one to serve a term expiring September 1, 2009, and one to
serve a term expiring January 1, 2011. Until all appointees have
taken office, a quorum of the commission is a majority of the number
of members who are qualified.
SECTION 45. The repeal by this Act of Section 15.003(c),
Utilities Code, does not apply to a suit commenced before the
effective date of the repeal. A suit commenced before the effective
date of the repeal is governed by the law as it existed immediately
before the effective date of the repeal, and that law is continued
in effect for that purpose.
SECTION 46. The repeal by this Act of Sections 15.028 and
15.030, Utilities Code, does not apply to a violation of those
sections that occurs before the effective date of the repeal. A
violation that occurs before the effective date of the repeal is
governed by the law as it existed immediately before the effective
date of the repeal, and that law is continued in effect for that
purpose.
SECTION 47. The change in law made by this Act relating to
qualifications and eligibility to serve as a commissioner or to be
employed with the Public Utility Commission of Texas applies only
to a commissioner or employee appointed or employed after the
effective date of this Act. A commissioner or employee of the
Public Utility Commission of Texas who is serving or employed on the
effective date of this Act is governed by the law as it existed
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
SECTION 48. The changes in law made by this Act to Sections
15.023 and 15.024, Utilities Code, apply only to a violation
committed on or after the effective date of this Act. A violation
committed before the effective date of this Act is governed by the
law in effect when the violation was committed, and the former law
is continued in effect for that purpose.
SECTION 49. This Act takes effect September 1, 2005.