16 TAC §26.128
The Public Utility Commission of Texas (commission) adopts
new §26.128, relating to Telephone Directories, with changes to the proposed
test as published in the July 31, 1998 issue of the
Texas Register
(23 TexReg 7687). The new rule will address directory
requirements applicable to telecommunications utilities or their affiliates,
and private for-profit publishers of residential telephone directories. These
sections are adopted under project number 19431.
The commission initiated this rulemaking to conform the requirements in
existing §23.96 of this title (relating to Telephone Directories) with
new Senate Bill 897, 75th Texas Legislature (1997). Although Senate Bill 897
applies only to directories issued by private for-profit publishers, the commission
in adopting this section applies its requirements to directories published
by dominant telecommunications utilities or their affiliates, pursuant to
its general rulemaking authority under the Public Utility Regulatory Act (PURA)
§14.002. This section will require more user-friendly state directory
pages in telephone directories. The section requires that telephone directories
incorporate both alphabetical listings by state agency subject matter and
alphabetical listings by agency name.
The Appropriations 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 commission held three workshops to conduct
a preliminary review of its rules. As a result of these workshops, the commission
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. Chapter 26 has been established for all
commission substantive rules applicable to telecommunications service providers.
The duplicative sections of Chapter 23 will be repealed as each new section
is proposed for publication in the new chapter.
The commission requested specific comments on the Section 167 requirement
as to whether the reason for adopting or readopting the rule continues to
exist. No comments were received regarding the 167 requirement. The commission
finds that the reason for adopting the rule continues to exist.
Interested parties filed written comments on August 31, 1998. The commission
received timely written comments on the proposed rule from Southwestern Bell
Telephone Company (SWBT), the Texas Telephone Association (TTA), and the Texas
Statewide Telephone Cooperative, Inc. (TSTCI). A public hearing was held on
September 21, 1998. Representatives from SWBT and TSTCI attended the hearing
and provided comments. To the extent that these comments differ from the submitted
written comments, they are summarized herein.
The commission adopts the section with changes to the order of the subsections
as published. In addition, the commission changes subsection (a) from a definition
subsection to an applicability subsection. A cross-reference guide follows:
Proposed §26.128(a) Definition is now Adopted §26.128(a) Applicability;
Proposed §26.128(b)(1) - (5), (11) is now Adopted §26.128(d);
Proposed §26.128(c) is now Adopted §26.128(c);
Proposed §26.128(d) is now Adopted §26.128(b); and
Proposed §26.128(b)(6) - (10) is now Adopted §26.128(f).
All references in this section are to the proposed version of the rule,
unless otherwise specified.
General comments regarding §26.128
SWBT, TTA, and TSTCI expressed concerns about the cost of producing the
state directory pages and stated that the proposed rule would expand listings
at a cost to telephone directory publishers. SWBT indicated that adding the
proposed pages could come at considerable expense to telephone directory publishers,
counter to the commission's preamble statement. Further, SWBT and TTA maintained
that requiring publication of listings, as specified in subsection (d)(1),
is tantamount to a confiscatory action, since this provision is not required
by Texas statute.
The costs to which parties refer were not quantified. The commission believes
that the public benefit of making state official and state agency telephone
numbers more accessible is substantial.
The issue of confiscation does not arise in this context, where a company
is able to request a rate increase, raise prices on its own, or is already
enjoying its constitutionally- mandated opportunity to recover its costs as
a whole. The fact that the commission requires dominant certificated telecommunications
utilities (DCTUs) to publish additional pages at some unquantified cost no
more raises an issue of confiscation than does the legislature's similar requirement
imposed on private, for-profit directory publishers.
TSTCI expressed concern about the possibility of obtaining accurate, up-to-date
information about state agency numbers, since they had difficulty obtaining
these records from the General Services Commission, as the rule directs. TSTCI
encouraged the commission to determine an effective way to obtain updated
state information.
The state directory produced by the General Services Commission is compiled
under the guidance of the Records Management Interagency Coordinating Council
(Council) and should, therefore, contain up-to-date information. Although
production of the state directory under Council guidelines may still be in
its development, the commission believes that the General Services Commission
is the appropriate source to contact for this information.
In the published version of this section, the commission requested comments
regarding whether this rule, in combination with §23.97(e)(1)(D) of this
title (relating to Interconnection), provides clear and adequate guidance
to parties regarding the availability of directory listings to all Texas telephone
customers, and how directory assistance and listings may enhance or impede
telecommunications competition. During the public hearing, SWBT commented
that it would list a competitive local exchange carrier's (CLEC's) customer
names in the SWBT directory, as required by SWBT's interconnection agreement.
SWBT indicated uncertainty about whether private directories would be willing
to list a CLEC's customer names.
The commission believes that individual interconnection agreements should
serve as the forum for settling competitive issues relating to telephone directory
listings.
Section 26.128(a), as proposed, defined the term
private for profit-publisher. Section 26.128(a), as adopted, sets forth the
applicability of the rule.
TSTCI expressed confusion as to why the commission revised the definition
of private for-profit publishers in this subsection to exclude telecommunications
utilities, yet extended §26.128(d) to include telecommunications utilities
and their affiliates.
The proposed definition of private for-profit publisher was a modification
of the definition in existing §23.96. As adopted, subsection (a) describes
the applicability of the section. This modification should eliminate TSTCI's
confusion.
Section 26.128(c) sets forth requirements regarding
the publication of elected official listing information.
The adopted version of subsection (c) was modified to reflect changes made
to subsection (b), as adopted, which now consolidates the directory requirements
for private for-profit publishers and telecommunications utilities and their
affiliates. Subsection (c), as adopted, sets forth requirements for business
directories published by telecommunications utilities and their affiliates.
The subsection has been slightly changed to require that publishers include
the toll-free telephone number and local telephone numbers of elected officials.
The publication of the addresses of these officials is no longer required
by the subsection.
Section 26.128(d),as proposed, (section 26.128(b),
as adopted) sets forth requirements regarding state agency, service and officials'
telephone directory listings.
TTA and SWBT stated that the commission is in error by applying some of
the requirements of PURA §55.203 to telecommunications utilities and
their affiliates in §26.128(d). TTA noted that §55.203, and not
§55.202, was amended by the legislature; therefore, TTA maintained that
§26.128(d) imposes requirements on telecommunications utilities and their
affiliates that exceed PURA §55.202.
The commission rejects SWBT's and TTA's arguments. First, it is reasonable
to assume that the legislature intended for all telephone directory publishers
to make the benefits of user-friendly state directory pages available to all
Texas telephone directory users, not merely the small fraction of Texas consumers
who receive their directories from private for-profit publishers. Second,
the legislature is aware of the commission's general rulemaking authority,
and did not restrict it in regard to directory publication by telecommunications
utilities. The legislature only addressed private for-profit publishers in
Senate Bill 897 because prior to this statute, the commission had no regulatory
authority over private for-profit publishers.
TTA, SWBT, and TSTCI all noted that the application of §26.128(d)
to telecommunications utilities and their affiliates is beyond the scope of
the requirements of Texas statute. TSTCI stated that the requirements of 26.128(d)(1)-(4)
are not consistent with PURA §55.203, which is applicable to private
for-profit publishers, and that the commission therefore lacks the authority
to enforce §55.203 on a telecommunications utility or its affiliate.
TSTCI and TTA recommended that the commission remove the reference to telecommunications
utilities and their affiliates from 26.128(d) in order to conform to PURA.
TTA maintained that the state listings requirement of §26.128(d) denies
the distinction of private for-profit publishers provided in §26.128(a).
The commission rejects TTA's, SWBT's, and TSTCI's arguments for the reasons
articulated in the previous set of comments. The commission submits that the
change in subsection (a) addresses TTA's concern about the consistency of
the applicability of the rule.
TTA and SWBT also pointed out that the statute uses different terms to
describe private for-profit publishers and telecommunications utilities and
their affiliates, a distinction which subsection (d) fails to make. TTA further
stated that PURA §55.203 even distinguishes between telecommunications
utilities and unregulated publishers.
The commission submits that, since the commission has general rulemaking
authority over telecommunications utilities and their affiliates, the specific
reference is a moot point.
SWBT stated that, by combining requirements of §55.202 and §55.203,
subsection (d) does not follow the provisions of §55.202, thereby rendering
it surplus language. SWBT maintained that the commission's contemporaneous
interpretation of PURA would only be appropriate under circumstances in which
the statute is ambiguous.
The commission is not rendering §55.202 as surplusage; we have simply
elaborated on how it should be implemented.
Section 26.128(d)(4)(F), as proposed, requires
directories to include the telephone number for state government information.
This requirement is in subsection
(b), as adopted.
The commission makes a change to the text as published that is not the
result of formal, written comments. Senate Bill 897 states that the commission's
rules applicable to private, for-profit publishers "must require a publisher
to list the telephone number for state government information." Although this
requirement was not published as part of the commission's proposed new §26.128,
the commission believes there is no harm to private, for-profit publishers
in adopting new subsection (d)(4)(F) because they are already required to
list the number by virtue of Senate Bill 897 itself. The commission also believes
that any harm to telecommunications utilities and their affiliates that are
subject to the section is insignificant in light of the commission's decision
to impose the other requirements of the section on them.
Section 26.128(e) lists other substantive rules
requiring directory publication notices.
TSTCI proposed language to be added as subsection (e), which would make
§26.128 more user-friendly for telephone directory publishers. TSTCI's
proposed language references other substantive rules requiring directory publication
notices (§§23.40(h)(3), 23.41(b)(6), 23.106(h)(4)(B), 26.121(e),
26.122(f), and 26.126(b)).
The commission agrees, and therefore adds new subsection (e).
New subsection (f) sets forth additional requirements.
The commission moves §26.128(b)(6) through(10), as published in the
July 31, 1998
Texas Register,
to adopted §26.128(f).
This new section is adopted under the Public Utility Regulatory
Act, Texas Utilities. Code Annotated §14.002 (Vernon 1998) (PURA), which
provides the Public Utility Commission with the authority to make and enforce
rules reasonably required in the exercise of its powers and jurisdiction;
and specifically, §55.202, §55.203 and Act of May 28, 1997, 75th
Leg., R.S., ch. 1186, §2, 1997 Tex. Gen. Laws 4574 (Senate Bill 897).
PURA §55.202 requires that directories published by a telecommunications
utility or affiliate of that utility must include names, addresses and telephone
numbers of state senators and representatives who represent all or part of
the geographical area for which the directory contains listings. PURA §55.203
requires that private for-profit publishers of residential telephone directories
include toll-free and local telephone numbers of state agencies, state public
services and state elected officials who represent all or part of the geographical
area for which the directory contains listings in a clearly identified manner.
Senate Bill 897 requires that private for-profit publishers follow guidelines
developed by the Records Management Interagency Coordinating Council for state
telephone number listings.
Cross Index to Statutes: Public Utility Regulatory Act §§14.002,
55.202, 55.203, and Senate Bill 897.
§26.128.Telephone Directories.
(a)
Applicability. The provisions of this section shall apply
to all telephone directory providers to the extent outlined in this section.
(b)
Telephone directory requirements for all providers. Any
private for-profit publisher and any telecommunications utility or its affiliate
that publishes a residential telephone directory shall comply with the following
requirements:
(1)
A telephone directory shall contain a listing of each toll-free
and local telephone number for each of the following:
(A)
state agencies;
(B)
state public services; and
(C)
elected state officials who represent all or part of the
geographical area for which the directory contains listings.
(2)
The directory shall include the information required
in paragraph (1) of this subsection from the most current edition of the State
of Texas Telephone Directory prepared and issued by the General Services Commission
of the State of Texas and those modifications to the State of Texas Telephone
Directory that are available upon request from the General Services Commission
of Texas.
(3)
All publishers shall contact the General Services
Commission of Texas in writing to determine which issue of the State of Texas
Telephone Directory is most current and to obtain the modifications referred
to in paragraph (2) of this subsection. The General Services Commission shall
respond within 30 days of receiving the request.
(4)
The listings required by paragraph (1) of this subsection:
(A)
may be located at the front of the directory or, if not
located at the front of the directory, shall be referenced clearly on the
inside page of the cover or on the first page following the cover before the
main listing of residential and business telephone numbers;
(B)
shall be labeled "GOVERNMENT OFFICES - STATE" in 24 point
type;
(C)
shall be bordered or shaded in such a way (on the three
unbound sides with a border) that will distinguish the state listings from
the other listings;
(D)
shall be included in the directory at no cost to the agency
or official;
(E)
shall be in compliance with the categorization developed
by the Records Management Interagency Coordinating Council. The categorization
shall be available upon request from the General Services Commission. The
listings shall be arranged in two ways:
(i)
alphabetically by subject matter of state agencies; and
(ii)
alphabetically by agency and public service name;
(F)
shall include the telephone number for state government
information: (512) 463-4630.
(5)
For purposes of this subsection, the term "a
private for-profit publisher" shall mean a publisher, other than a telecommunications
utility or its affiliate, of a telephone directory that contains residential
listings and that is distributed to the public at minimal or not cost.
(c)
Additional Requirement for telecommunications utilities
or affiliates that publish telephone directories. A telecommunications utility
or an affiliate of that utility that publishes a business telephone directory
that is distributed to the public shall publish a listing of each toll-free
and local telephone number of each elected official who represents all or
part of the geographical area for which the directory contains listings.
(d)
Requirements for telecommunications utilities found to
be dominant. This subsection applies to any telecommunications utility found
to be dominant as to local exchange telephone service or its affiliate which
publishes a directory on behalf of such telecommunications utility.
(1)
Annual publication. Telephone directories shall be published
annually. Except for customers who request that information be unlisted, directories
shall list the names, addresses, and telephone numbers of all customers receiving
local phone service, including customers of other certificated telecommunications
utilities in the geographic area covered by that directory. Numbers of pay
telephones need not be listed.
(2)
Distribution. Upon issuance, a copy of each directory
shall be distributed at no charge for each customer access line served by
the telecommunications utility in the geographic area covered by that directory
and, if requested, one extra copy per customer access line shall be provided
at no charge. A telecommunications utility shall also distribute copies of
directories pursuant to any agreement reached with another certificated telecommunications
utility. A copy of each directory shall be furnished to the commission.
(3)
Front cover requirements. The name of the telecommunications
utility, an indication of the area included in the directory, and the month
and the year of issue shall appear on the front cover. Information pertaining
to emergency calls such as for the police and fire departments shall appear
conspicuously in the front part of the directory pages.
(4)
Required instructions. The directory shall contain
instructions concerning:
(A)
placing local and long distance calls on the network of
the telecommunications utility for which the directory is issued;
(B)
calls to the telecommunications utility's repair and directory
assistance services, and locations; and
(C)
telephone numbers of the business offices of the telecommunications
utility as may be appropriate to the area served by the directory.
(5)
Sample long distance rates. It shall also contain
a section setting out sample long distance rates within the long distance
service area, if any, on the network of the telecommunications utility for
which the directory is issued, applicable at the time the directory is compiled
for publication, with a clear statement that the published rates are effective
as of the date of compilation.
(6)
Customer addresses. At the customer's option the directory
shall list either the customer's street address or post office box number.
A charge can be imposed upon those customers who desire both listings.
(e)
References to other sections relating to directory notification.
The requirements of this section are in addition to the requirements referenced
in paragraphs (1) through (6) of this subsection, or any other applicable
section in this title. The applicability of each of the sections referenced
in paragraphs (1) through (6) of this subsection is unaffected by the inclusion
of the reference in this subsection.
(1)
Section 23.40(h)(3) of this title (relating to Prepaid
Local Telephone Service) concerning consumer education;
(2)
Section 23.41(b)(6) of this title (relating to Customer
Relations) concerning information to customers;
(3)
Section 23.106(h)(4)(B) of this title (relating to
Selection of Telecommunications Utilities) concerning notice of customer rights;
(4)
Section 26.121(e) of this title (relating to Privacy
Issues) concerning notice of number delivery over 800, 888, and other toll-free
prefixes and 900 services;
(5)
Section 26.122(f) of this title (relating to Customer
Proprietary Network Information) concerning notification;
(6)
Section 26.126(b) of this title (relating to Telephone
Solicitation) concerning responsibility of LECs.
(f)
Additional requirements. The following requirements apply
to telecommunications utilities found to be dominant as to local exchange
telephone service or its affiliate which publishes a directory on behalf of
such telecommunications utility.
(1)
Directory assistance. Each telecommunications utility shall
list each customer with its directory assistance within 72 hours after service
connection (except those numbers excluded from listing in (d)(1) of this section)
in order that the directory assistance operators can provide the requested
telephone numbers based on customer names and addresses.
(2)
Non-assigned numbers. All non-assigned telephone numbers
in central offices serving more than 300 customer access lines shall be intercepted
unless otherwise approved by the commission.
(3)
Disconnected numbers. Disconnected residence telephone
numbers shall not be reassigned for 30 days and disconnected business numbers
shall not be reassigned, unless requested by the customer, for 30 days or
the life of the directory, whichever is longer, unless no other numbers are
available to provide service to new customers.
(4)
Incorrect listings. If a customer's number is incorrectly
listed in the directory and if the incorrect number is a working number and
if the customer to whom the incorrect number is assigned requests, the number
of the customer to whom the incorrect number is assigned shall be changed
at no charge. If the incorrect number is not a working number and is a usable
number, the customer's number shall be changed to the listed number at no
charge if requested.
(5)
Changing telephone numbers to a group of customers.
When additions or changes in plant or changes to any other certificated telecommunications
utility's operations necessitate changing telephone numbers to a group of
customers, at least 30 days' written notice shall be given to all customers
so affected even though the addition or changes may be coincident with a directory
issue.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on December
31, 1998.
TRD-9818605
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: January 20, 1999
Proposal publication date: July 31, 1998
For further information, please call: (512) 936-7308