16 TAC §26.465, §26.469
The Public Utility Commission of Texas (commission) proposes
an amendment to §26.465 relating to Methodology for Counting Access Lines
and Reporting Requirements for Certificated Telecommunications Providers and
proposes new §26.469 relating to Public Right-of-Way Fees and Penalties.
The proposed amendment and new section will implement House Bill 1777, 76th
Legislature, Regular Session (1999) (HB 1777) which authorizes the commission
to determine a uniform method for calculating municipal franchise compensation
paid by certificated telecommunications providers (CTPs). The proposed amendment
and new rule clarify which access lines are subject to HB 1777, specifying
its application to lines that pass through municipalities and set standards
for fees and penalties assessed by municipalities with regard to use of public
right-of-way (ROW) by CTPs. Nothing in this rule proposal is intended to expand
the statutory definition of "CTP" or definition of "transmission path." Local
Government Code, §283.003(2) defines a CTP to mean a "person who has
been issued a certificate of convenience and necessity, certificate of operating
authority, or service provider certificate of operating authority by the commission
to offer local exchange telephone service." A transmission path is defined
in the commission's substantive rules at §26.465(c)(2) as "A path within
the transmission media that allows the delivery of switched local exchange
service. Each individual circuit-switched service shall constitute a single
transmission path. Where services are offered as part of a bundled group of
services, each switched service in that bundled group of services shall constitute
a single transmission path. Only those services that require the use of a
circuit-switch shall constitute a switched service. Services that constitute
vertical features of a switched service, such as call waiting, caller-ID,
etc., that do not require a separate switched path, do not constitute a transmission
path. Where a service or technology is channelized by the CTP and results
in a separate switched path for each channel, each such channel shall constitute
a single transmission path." Project Number 22909 has been assigned to this
proceeding.
Alyssa Eacono, Network Analyst, Telecommunications Division and Michelle
Lingo, Senior Attorney, Policy Development Division, have determined that
for each year of the first five-year period the proposed amendment and proposed
new section are in effect, there will be no fiscal implications for the state
as a result of enforcing or administering the sections. Because there are
at least 1100 diverse municipalities in Texas, fiscal implications may vary.
However, because these proposed rules do not alter a municipality's option
to exercise its police power-based regulations in accordance with Local Government
Code, §283.056(c), there should be no fiscal impact on any given municipality.
In addition, because Local Government Code, §283.051(b) provides that
municipalities continue to have the right to initiate legal action against
CTPs, there is no fiscal implication regarding remedies available to municipalities.
Ms. Eacono and Ms. Lingo have determined that for each year of the first
five years the proposed amendment and proposed new section are in effect,
the public benefit anticipated as a result of enforcing the sections will
be greater accessibility to telecommunications services and more efficient
use of public ROW. Because HB 1777 decreases barriers to entry into the telecommunications
market, small businesses and micro-businesses will incur no negative effect
as a result of enforcing these sections. Persons who are required to comply
with the proposed sections will experience some economic costs, but the economic
benefits may outweigh the costs. Municipalities had various arrangements with
CTPs prior to HB 1777. Because HB 1777 provides uniformity for CTPs to gain
access to all public ROW, implementation of HB 1777 may have impacts that
differ among municipalities. Some municipalities and CTPs may even experience
an economic benefit due to the clarity, consistency, and uniformity imposed
in the amended and new rules. As a result of these decreased barriers to entry
into the telecommunications market, telecommunications competition is likely
to increase, thereby providing greater choice for telecommunications consumers
in Texas. The public also benefits through more efficient use of public ROW.
Ms. Eacono and Ms. Lingo have also determined that for each year of the
first five years the proposed amendment and proposed new section are in effect,
there should generally be no effect on a local economy; therefore, no local
employment impact statement is required under Administrative Procedure Act, §2001.022.
The commission acknowledges that infrastructure is constantly being built
on an on-going basis. However, HB 1777 was designed to be revenue neutral;
the effects of construction will neither increase nor decrease impacts to
the local economy. In fact, the fiscal impact of pass through lines rests
on the expectation of a municipality for a revenue amount rather than on a
true impact to that amount. The proposed amendment and new rule does not alter
a provider's choice as to where infrastructure should be placed. With regard
to fees and penalties, the net effect of the rule is an enhancement and clarification
of a city's ROW management authority as it relates to compensation issues.
The proposal does not modify, but rather clarifies, the amount of fees or
penalties that are being correctly assessed. Therefore, this rulemaking poses
no impact to the local economy.
The commission staff will conduct a public hearing on this rulemaking under
Government Code, §2001.029 in the Commissioners' Hearing Room (7-100)
at the commission's offices, located in the William B. Travis Building, 1701
North Congress Avenue, Austin, Texas 78701, on Thursday, June 21, 2001 at
10:00 a.m.
During the November 8, 2000 Workshop and in the briefs which followed,
there was discussion regarding the creation of a standardized ordinance. The
commission invites comments on whether the commission should promulgate rules
or create guidelines for a uniform public ROW ordinance to be adopted by municipalities
in Texas.
Written comments on the proposed amendment and new rule (16 copies) may
be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701
North Congress Avenue, PO Box 13326, Austin, Texas 78711-3326, until 3:00
p.m. on Monday, June 4, 2001. Reply comments may be submitted until 3:00 p.m.
on Monday, June 18, 2001. The commission invites comments regarding the costs
associated with, and benefits that will be gained by, implementation of the
proposed amendment and new section. All comments and reply comments should
refer to Project Number 22909 and must be filed in the Central Records Division.
The amendment and new rule are proposed under the Public Utility
Regulatory Act, Texas Utilities Code Annotated, §14.002 (Vernon 1998,
Supplement 2001), which provides the Public Utility Commission with the authority
to make and enforce rules reasonably required in the exercise of its powers
and jurisdiction. The new rule and rule amendment are also proposed under
Local Government Code, §283.058, which grants the commission jurisdiction
over municipalities and CTPs necessary to enforce the provisions of Chapter
283.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002
and Local Government Code §283.058.
§26.465.Methodology for Counting Access Lines and Reporting Requirements for Certificated Telecommunications Providers.
(a) - (c)
(No change.)
(d)
Methodology for counting access lines. A CTP's access line
count shall be the sum of all lines counted pursuant to paragraphs (1), (2),
and (3) of this subsection, and shall be consistent with subsections (e),
(f) and (g) of this section.
(1)
Switched transmission paths and services.
(A) - (B)
(No change.)
(C)
If the transmission path crosses more than one municipality,
the line shall be counted in, and attributed to, the municipality where the
end-use customer is located.
Pursuant to Local Government Code, §283.056(f),
the per-access-line franchise fee paid by CTPs constitutes full compensation
to a municipality for all of a CTP's facilities located within a public right-of-
way, including interoffice transport and other transmission media that do
not terminate at an end-use customer's premises, even though those types of
lines are not used in the calculation of the compensation.
(2) - (3)
(No change.)
(e)
(No change.)
(f)
Lines not to be counted. A CTP shall not count the following
lines:
(1) - (3)
(No change.)
(4)
lines used by any other affiliate of a CTP for interoffice
transport; [
and
]
(5)
lines that pass through a municipality
but do not terminate at an end-use customer's premises within that municipality,
including interoffice transport and other transmission media that do not terminate
at an end-use customer's premises in accordance with Local Government Code, §283.056(f);
and
(6)
[
(5)
] any other lines that do not
meet the definition of access line as set forth in §26.461 of this title.
(g) - (m)
(No change.)
§26.469.Public Right-Of-Way Fees and Penalties.
(a)
Purpose. The provisions of this section clarify the definitions
and applicability of fees and penalties as these relate to municipal compensation
and right-of-way (ROW) management.
(b)
Applicability. The provisions of this section apply to
certificated telecommunications providers (CTPs), as defined by §26.461(c)
of this title (relating to Access Line Categories) and to incorporated municipalities
within the State of Texas.
(c)
Definitions. The following words and terms when used in
this section, shall have the following meaning, unless the context clearly
indicates otherwise.
(1)
Fees--Compensation to a municipality for the use of public
ROW. Fees are uniformly applied to all similarly-situated ROW users.
(2)
Penalties--Fines charged for noncompliance with a clear,
nondiscriminatory, and competitively neutral standard.
(d)
Assessment of fees by municipalities.
(1)
A municipality may not require a CTP to pay any compensation
other than the per- access-line franchise fee authorized by Local Government
Code, §283.055, for the right to use a public right-of-way to provide
telecommunications services in the municipality. In accordance with Local
Government Code, §283.056, such prohibited fees include, but are not
limited to, application, franchise, license, permit, approval, excavation,
inspection, or other similar fees or charges.
(2)
Notwithstanding paragraph (1) of this subsection, a municipality
may require a CTP to pay pole rental fees, special assessments, and taxes
of any kind, including ad valorem or sales and use taxes, or other compensation
not related to the use of a public right-of-way.
(e)
Assessment of penalties by a municipality.
(1)
To the extent elsewhere authorized by law, a municipality
may assess penalties against a CTP for violations of a municipality's public
right-of-way management ordinance or other written municipal policy.
(2)
Any penalties for violation of a municipality's public
right-of-way management ordinance or other written municipal policy shall
be assessed on a non- discriminatory and competitively neutral basis, in accordance
with a written policy made publicly available.
(3)
As set forth in Local Government Code, §283.056, any
penalties assessed by a municipality for non-compliance by a CTP are not included
within the per-access- line franchise fee paid by CTPs under Local Government
Code, §283.055.
(4)
Any penalties assessed by a municipality for non-compliance
by a CTP are not franchise fees or municipal fees within the meaning of the
Utilities Code; therefore, penalties may not be passed through to customers
as a municipal fee.
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 March 23, 2001.
TRD-200101673
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 6, 2001
For further information, please call: (512) 936-7308