16 TAC §26.141
The Public Utility Commission of Texas proposes new §26.141,
relating to Distance Learning, Information Sharing Programs, and Interactive
Multimedia Communications. Project Number 18700 has been assigned to this
proposed new rule. New §26.141 will replace corresponding §23.93
of this title (relating to Distance Learning, Information Sharing Programs,
and Interactive Multimedia Communications). The specific change to this rule
adds new subsection (c) in order to clarify the combination of state and federal
discount programs for qualifying schools, libraries, and other consortia pursuant
to this rule and §23.107 of this title (relating to Educational Percentage
Discount Rates or E-Rates). The commission makes this change based on the
recent ruling by the Federal Communications Commission (FCC),
In the Matter of Federal-State Joint Board on Universal Service,
CC
Docket No. 96-45, Fourth Order on Reconsideration (December 30, 1997). In
that order, the FCC determined that any federal discount should be applied
prior to the application of any state discount. Therefore, the new language
implements this ruling, and directs that federal educational percentage discount
rates (E-rates) be applied prior to any applicable state discount. Further,
any subsequent state discount should be applied based on the federal discount,
not the full tariffed rate.
The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167)
requires that each state agency review and consider for readoption each rule
adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative
Procedure Act). Such reviews shall include, at a minimum, an assessment by
the agency as to whether the reason for adopting or readopting the rule continues
to exist. The PUC held three workshops to conduct a preliminary review of
its rules. As a result of these workshops, the PUC is reorganizing its current
substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23
to: (1) satisfy the requirements of Section 167; (2) repeal rules no longer
needed; (3) update existing rules to reflect changes in the industries regulated
by the commission; (4) do clean-up amendments made necessary by changes in
law and commission organizational structure and practices; (5) reorganize
rules into new chapters to facilitate future amendments and provide room for
expansion; and (6) reorganize the rules according to the industry to which
they apply. 16 TAC Chapter 26 has been established for all commission substantive
rules applicable to telecommunications service providers. The duplicative
sections of Chapter 23 will be proposed for repeal as each new section is
proposed for publication in Chapter 26.
Parties should note that the commission is considering a related matter
in
Investigation into the Interaction of Federal
and State Discounts for Schools and Libraries Pursuant to Chapters 58 &
59 of PURA,
Project Number 18723. The commission tentatively will address
that project at its open meeting scheduled for February 25 ,1998.
Tammy Cooper, senior attorney, Office of Policy Development, has determined
that for the first five years the section is in effect there will be no fiscal
implications for state or local governments as a result of the enforcing or
administering the sections.
Ms. Cooper also has determined that for each year of the first five years
the section is in effect, the public benefit anticipated as a result of enforcing
this section will be the increased access by schools and libraries to new
technologies and communications services due to lower costs of such services
and the necessary infrastructure.
There is no anticipated economic cost to persons who are required to comply
with the section as proposed. The persons required to comply with this section
will receive reimbursement for certain costs by the federal E-Rates discount
program.
For each year of the first five years the section is in effect, there will
be no effect on small businesses as a result of enforcing the proposed section.
Ms. Cooper has further determined that for the first five years the proposed
section is in effect there will be no impact on the opportunities for employment
in the geographic areas of Texas affected by implementing the requirements
of the rules.
Comments on the proposed rule (16 copies) may be submitted to Filing Clerk,
Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 13326,
Austin, Texas, 78701-3326, within 10 days after publication. All comments
should refer to Project Number 18700. The commission invites specific comments
regarding whether the reason for adopting the rule in Chapter 23 continues
to exist in adopting its corresponding section in the new chapter. The commission
also invites specific comments regarding the costs associated with, and benefits
that will be gained by, implementation of the rule. The commission will consider
the costs and benefits in deciding whether to adopt the rule.
This rule is proposed under the Public Utility Regulatory Act,
Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides
the Public Utility Commission of Texas with the authority to make and enforce
rules reasonably required in the exercise of its powers and jurisdiction.
This rule is also proposed under the authority delegated to the Public
Utility Commission pursuant to the Public Utility Regulatory Act, §§57.021
-57.025.
Cross Index to Statutes: PURA §§14.002; 57.021; 57.022; 57.023;
57.024; 57.025.
§26.141. Distance Learning, Information Sharing Programs, and Interactive Multimedia Communications.
(a)
Definitions. The following words and terms, when used
in this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Distance learning. Instruction, learning, and training
that is transmitted from one site to one or more sites by telecommunications
services that are used by an educational institution predominantly for such
instruction, learning, or training, including video, data, voice, and electronic
information.
(2)
Educational institution. Accredited primary or secondary
schools owned or operated by state and local government entities or by private
entities; institutions of higher education as defined by the Education Code,
§61.003(13); the Texas Education Agency, its successors and assigns;
regional education service centers established and operated pursuant to the
Education Code, Chapter 8; and the Texas Higher Education Coordinating Board,
its successors and assigns.
(3)
Information sharing program. Instruction, learning,
and training that is transmitted from one site to one or more sites by telecommunications
services that are used by a library predominantly for such instruction, learning,
or training, including video, data, voice, and electronic information.
(4)
Interactive multimedia communications. Real-time,
two-way, interactive voice, video, and data communications conducted over
networks that link geographically dispersed locations. This definition includes
interactive communications within or between buildings on the same campus
or library site.
(5)
Library. Public library or regional library system
as defined by Government Code, §441.122, or a library operated by an
institution of higher education or a school district.
(b)
Telecommunications services eligible for reduced rates.
(1)
Any tariffed service, if used predominantly for distance
learning purposes by an educational institution or information sharing program
purposes by a library, is eligible for reduced rates, as set forth in this
section.
(2)
A service is used predominantly for distance learning
purposes by an educational institution or information sharing program purposes
by a library when over 50% of the traffic carried, whether in video, data,
voice, and/or electronic information, is identified for such use pursuant
to the requirements of subsection (d)(1) of this section.
(c)
Coordination with federal discounts. For any discount
received pursuant to §23.107 of this title (relating to Educational Percentage
Discount Rates (E- Rates)), an eligible school, library or consortia may apply
such discount prior to any discount received under this section. Any subsequent
discount received under this section shall apply to the discounted E-Rate
and not the tariffed rate.
(d)
Process by which an educational institution or library
qualifies for reduced rates other than through a customer-specific contract.
(1)
Affidavit. To qualify for a discounted rate, an educational
institution or library, as defined in subsection (a) of this section, must
provide a sworn affidavit to the dominant certificated telecommunications
utility account representative or, if no account representative is assigned,
to the business office of the utility.
(A)
The affidavit shall:
(i)
specify the requested service(s) to be discounted;
(ii)
quantify, if applicable, the requested service(s) to
be discounted;
(iii)
state that the discounted service(s) will be used predominantly
for distance learning purposes or information sharing program purposes; and
(iv)
specify the intended use(s) of the discounted service(s).
(B)
The affidavit shall be signed by the administrative head
of the institution (e.g., principal, president, chancellor) or library , or
a designee given the task and authority to execute the affidavit on behalf
of the educational institution or library requesting the discounted rates.
(C)
No other special form needs to be provided as part of
the application process.
(D)
The educational institution or library shall provide an
affidavit each time it orders services that will be used predominantly for
distance learning purposes or information sharing program purposes.
(2)
Tariff filing. Within 30 days after the most
recent effective date of this section, each dominant certificated telecommunications
utility as of September 1, 1995, shall file a distance learning and information
sharing program tariff, providing for a 25% discount on any service used predominantly
for distance learning or information sharing program purposes, other than
a service offered pursuant to a customer-specific contract. The tariff filing
shall concern only the implementation of this section and not affect any of
the utility's other rates or services not utilized for distance learning or
information sharing program purposes. Once the tariff goes into effect, any
educational institution or library subsequently filing an affidavit, as described
in paragraph (1) of this subsection, shall be eligible to receive the requested
service at the discounted rate.
(e)
Interactive multimedia communications services. Any dominant
certificated telecommunications utility that provides interactive multimedia
communications services may file a tariff to establish rates at levels necessary,
using sound rate- making principles, to recover costs associated with providing
such services to educational institutions or libraries. Those interactive
multimedia communications services used predominantly for distance learning
or information sharing program purposes, however, shall qualify for a 25%
discount pursuant to subsection (d) of this section.
(f)
Customer-specific contracts. When a service is provided
to an educational institution or library pursuant to §23.27(c) of this
title (relating to Rate-Setting Flexibility for Services Subject to Significant
Competitive Challenges), the dominant certificated telecommunications utility
shall price those components of the service used predominantly for distance
learning or an information sharing program no less than 105%, and no greater
than 110%, of the customer-specific long-run incremental cost.
(g)
Cost determination. Not withstanding subsections (d) and
(e) of this section, once the commission develops cost determination rules
for telecommunications services generally, a reduced rate approved under this
section shall recover the service- specific long-run incremental costs. In
the case of interactive multimedia communications services, however, the commission
may allow a rate to be set lower than the long-run incremental cost of a specific
service if such is determined to be in the public interest.
(h)
Filing requirements. Each dominant certificated telecommunications
utility shall file an annual report with the commission on September 1 of
each year indicating the demand for distance learning or information sharing
program services provided under the distance learning or information sharing
program tariff. The report shall include the following:
(1)
the type of institution(s) or libraries provided service(s);
(2)
type(s) of service(s) provided to each institution
or libraries; and
(3)
quantity of the service(s) provided.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State on February
6, 1998.
TRD-9801704
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 936-7308
Subchapter L. Wholesale Market Provisions
16 TAC §26.283
The Public Utility Commission of Texas proposes new §26.283,
concerning Infrastructure Sharing. The proposed new section will implement
the Public Utility Regulatory Act, Texas Utilities Code Annotated §60.163
(Vernon 1998) (PURA), which requires the commission to adopt rules requiring
a local exchange company to share public switched network infrastructure and
technology with another local exchange company under certain conditions. Project
Number 17296 has been assigned to this proposed new section.
Martin Wilson, assistant general counsel, has determined that for each
year of the first five-year period the proposed new section is in effect there
will be no fiscal implications for state or local government as a result of
enforcing or administering the new section.
Mr. Wilson has determined that for each year of the first five years the
proposed new section is in effect the public benefit anticipated as a result
of enforcing the section will be more efficient use of resources by local
exchange companies. There will be no effect on small businesses as result
of enforcing this section. There is no anticipated economic cost to entities
who are required to comply with the section as proposed.
Mr. Wilson has also determined that for each year of the first five years
the proposed section is in effect there will be no impact on employment in
the geographic area affected by implementing the requirements of the section.
Comments on the proposed new section (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North. Congress Avenue,
P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
All comments should refer to Project Number 17296.
This new section is proposed under the Public Utility Regulatory Act, Texas
Utilities Code Annotated §14.002 and §60.163 (Vernon 1998) (PURA).
Section 14.002 provides the commission with the authority to make and enforce
rules reasonably required in the exercise of its powers and jurisdiction.
Section 60.163 requires the commission to adopt rules regarding the sharing
of public switched network infrastructure and technology.
Cross Index to Statutes: PURA §14.002 and §60.163.
§26.283. Infrastructure Sharing.
(a)
Definitions. The following words and terms, when used
in this section, shall have the following meanings unless the context clearly
indicates otherwise.
(1)
Local exchange company (LEC) - As defined in the Public
Utility Regulatory Act, Texas Utilities Code §51.002(4)(Vernon 1998)(PURA).
(2)
Public switched network infrastructure and technology
- Includes, but is not limited to:
(A)
Basic public switched network infrastructure and technology
- The physical plant and corresponding functionalities that provide basic
network services such as those listed in PURA §58.051.
(B)
Advanced public switched network infrastructure and technology
- The physical plant and corresponding functionalities that provide integrated
services digital network (ISDN) services as set forth in PURA §58.203(c),
optical fiber or equivalent facilities, and Common Channel Signaling System
7.
(3)
Requesting LEC - A LEC that requests another
LEC to share public switched network infrastructure and technology.
(4)
Sharing LEC - A LEC that has been requested by another
LEC to share public switched network infrastructure and technology.
(5)
Sole carrier of last resort - The LEC holding a certificate
of convenience and necessity, as to the geographic area covered by such certificate.
(b)
Requirement to share. The commission may require any LEC
to share public switched network infrastructure and technology with any other
LEC that requests such sharing. In determining whether a LEC is required to
share public switched network infrastructure and technology, the commission
will consider such matters as:
(1)
whether the requesting LEC lacks economies of scale or
scope that would prohibit the requesting LEC from offering a particular telecommunications
service in an economically efficient manner in a specific geographic area;
(2)
whether the requesting LEC is the sole carrier of
last resort in the specific geographic area involved;
(3)
whether requiring a LEC to share its public switched
network infrastructure and technology would be economically efficient for
the sharing LEC, or, if not, whether terms and conditions can and should be
imposed that would make such sharing economically efficient; and
(4)
whether requiring a LEC to share its public switched
network infrastructure and technology is in the public interest.
(c)
Procedure to request sharing.
(1)
A LEC requesting that another LEC share public switched
network infrastructure and technology shall make its request to the sharing
LEC in writing.
(2)
The requesting LEC and the sharing LEC shall negotiate
terms and conditions of the sharing arrangement. The terms and conditions
may include, but are not required to include, joint ownership and/or operation
of public switched network infrastructure and services by the LECs.
(3)
Within 60 days after a LEC has received a request
for sharing, the sharing and requesting LECs shall jointly file an agreement
setting forth the terms and conditions of the sharing arrangement. If the
parties cannot reach agreement on the appropriate terms and conditions, the
requesting party shall instead file, not later than the 60th day after the
sharing LEC's receipt of the request, a petition to resolve issues related
to infrastructure sharing. The petition shall set forth, as appropriate, the
terms and conditions on which agreement has been reached, the specific issues
the commission is being asked to resolve, the requesting LEC's suggested resolution
of such issues in terms that could be inserted into an agreement, and a suggested
procedural schedule for resolution of the issues. The petition shall also
address the factors that the commission must consider under subsection (b)
of this section. If a petition is filed in lieu of an agreement, the sharing
LEC must file a response within 10 days of the filing of the petition. The
sharing LEC's response must address, in like manner, each item required by
this subsection to be included in the petition.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State on February
6, 1998.
TRD-9801706
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 936-7308