Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 9.
LP-GAS SAFETY RULES
Subchapter A. GENERAL REQUIREMENTS
16 TAC §9.41
The Railroad Commission of Texas adopts new §9.41, relating
to Testing of LP-Gas Systems in School Facilities, with changes to the version
published in the November 23, 2001, issue of the
Texas Register
(26 TexReg 9487). The Commission adopts new §9.41
under new Texas Natural Resources Code, Chapter 113, Subchapter L (§§113.351-113.357),
enacted by Senate Bill 310, 77th Legislature (2001) and effective September
1, 2001. New Subchapter L requires LP-gas systems in schools to be regularly
tested for leakage and sets forth the standards for conducting the tests and
reporting the results.
New §9.41 requires each school district to ensure that a pressure
test for leakage is performed on the LP-gas system every two years. For most
school districts, the first required leakage tests must be performed before
the beginning of the 2002-2003 school year; for school districts operating
on a year-round calendar, the first tests must be performed by July 1, 2002.
The new rule defines terms; states the requirements for the school districts
and the suppliers; requires leakage tests to be performed under the National
Fire Protection Association's National Fuel Gas Code (commonly referred to
as NFPA 54); and requires leaks to be reported to the board of trustees for
the school district. The rule also requires that if a leak is found in an
LP-gas system, the supplier may not introduce LP- gas into that system until
the leak is repaired and the system passes another leak test.
New §9.41(a) defines "school district" as an entity created under
the laws of this state and accredited by the Texas Education Agency under
Subchapter D, Chapter 39, Education Code; a private elementary or secondary
school, other than a school in a residence; or a state or regional school
for the blind and visually impaired or the deaf under Chapter 30, Education
Code. This definition is the same as that in Texas Natural Resources Code, §113.351(1).
The term "supplier," also defined the same as in the statute, means an individual
or company that sells and delivers liquefied petroleum gas to a school district
facility. If more than one individual or company sells and delivers LP-gas
to a facility of a school district, then each individual or company is a supplier
for purposes of the rule. The new rule also defines "board of trustees" as
the governing entity of a school district. This term is not defined in the
statute, but the term is used in the statute in such a way that it is clearly
intended to mean the governing body or governing entity of a school district
as that term is defined.
New §9.41(b) sets forth the obligations of school districts, the main
one being to ensure that a pressure test for leakage is performed on the LP-gas
piping system in each school district facility no less frequently than every
two years beginning prior to the 2002-2003 school year. A test performed under
a municipal code satisfies the pressure testing requirement. Unless performed
pursuant to an applicable municipal code, the subsection requires that the
pressure test be performed in accordance with the National Fire Protection
Association's Pamphlet 54, National Fuel Gas Code , commonly referred to as
NFPA 54, and that it be conducted to determine whether the LP-gas piping system
holds at least the amount of pressure specified by NFPA 54. A school district
must provide written notice to the Commission of the date and the result of
each pressure test or other inspection of the LP-gas piping system within
one week of the date the test is performed. In addition, before the introduction
of any LP-gas into the LP- gas piping system, the school district must provide
verification to the district's supplier that the LP-gas piping has been tested
in accordance with this section. If a leak is found, the school district must
immediately remove the LP-gas system from LP-gas service until repairs are
made and another test is done and passed, and report an identified LP-gas
leakage in a school district facility to the board of trustees of the district
in which the facility is located.
New §9.41(c) details the requirements of LP-gas suppliers. Suppliers
must terminate LP-gas service to a school district facility if the supplier
receives official notification from the firm or individual conducting the
test or from the school district that there is hazardous leakage in the facility's
LP-gas piping system; the test performed at the facility was not performed
in accordance with the requirements of this section; or the supplier has not
received verification from the school district that the LP-gas piping has
been tested in accordance with this section.
New §9.41(d) lists the obligations of the Commission. The Commission
must maintain a copy of each school district's written notice under subsection
(b)(4) for at least one year from the date the Commission receives the notice.
At the request of a school district, the Commission will assist the district
in providing for the certification of an employee of the school district or
school, as applicable, to conduct the test and in developing a procedure for
conducting the test. Finally, the Commission will enforce the provisions of
this rule pursuant to Texas Natural Resources Code, Chapter 113.
Compliance deadlines are set forth in new §9.41(e). School districts
must perform leakage tests at least once every two years beginning with the
2002-2003 school year, and must complete initial leakage tests before the
beginning of the 2002- 2003 school year. In the case of a year-round school,
a school district must ensure that the pressure test in each of those facilities
is conducted and reported not later than July 1 of the year in which the test
is performed. A school district may perform the pressure tests on a two-year
cycle under which the tests are performed for the LP-gas piping systems of
approximately one-half of the facilities each year.
The Commission received one comment on the proposed new rule from Southern
Building Code Congress International Inc., Southwest Regional Office. The
comment offered several revisions to the amendments as proposed. First, the
comment suggested that §9.41(b)(1) be amended to specify a pressure test
performed in accordance with the most current edition of the
International Fuel Gas Code
, as published by the International Code
Council, be allowed as an option to NFPA 54. The comment suggested that the
rule should address the actual codes adopted and enforced by municipalities
in Texas, rather than stating just that a test performed under a municipal
code satisfies the testing requirement. The comment stated that only codes
developed, published, and maintained by a recognized model code organization
should be used. The comment asserted that the recommended change would ensure
safety, uniformity, and consistency in testing of LP-gas systems.
The comment next suggested that §9.41(b)(2) be reworded to require
that either the International Fuel Gas Code or NFPA 54 be used in areas where
no codes are adopted. The comment states that multiple codes are used in Texas
and regulating the pressure test solely by NFPA 54 is not practical or recommended.
The comment asserted that the person or firm performing the test should have
the choice of which document to use.
The Commission disagrees with these comments primarily because Texas Natural
Resources Code §113.353 directs that school districts perform the pressure
test in accordance with National Fire Protection Association Pamphlet 54.
Further, Texas Natural Resources Code, §113.352, provides that a test
performed under a municipal code satisfies the pressure testing requirements.
The Commission does not have authority to direct otherwise. In addition, mandating
use of a single standard for all schools in Texas could impose significant
costs on the schools, the municipalities, and the Commission. Under the rule
as proposed and adopted, schools must have the test performed in compliance
with NFPA 54, which is the code adopted by the Commission in 16 TAC Chapter
9, Subchapter D, or in compliance with a municipal code. As the agency with
statewide jurisdiction over LP-gas safety, the Commission places importance
on consistent requirements for the entire state; nevertheless, the Commission
recognizes that municipalities may enforce different standards. Requiring
that municipalities use a code with which its local inspectors might not be
familiar could cause confusion and perhaps undermine, rather than ensure,
the safety of LP-gas piping in schools. In addition, the suggestion that the
rule adopt "the most current edition" of the International Fuel Gas Code would
not comply with the requirements of 1 Tex. Admin. Code §91.73, which
requires that documents adopted by reference state the revision date; to adopt
a newer version of an adopted- by-reference document, the agency must amend
the rule.
The Commission adopts new §9.41 with minor changes to subsections
(b)(2), (b)(3) and (d)(1). Additional language was added at the beginning
of subsection (b)(2) ("Unless performed pursuant to paragraph (1) of this
subsection,") to clarify that subsections (b)(1) and (b)(2) are alternative
requirements. The proposed text of subsection (b)(3) read: "If leak is found,
. . . " The Commission has amended this wording to read: "If a leak is found,
. . . " A typographical error in subsection (d)(1) was corrected (deletion
of an extra word, "one").
The Commission adopts new §9.41 under Texas Natural Resources
Code, §113.051, which authorizes the Commission to adopt rules relating
to any and all aspects or phases of the LP-gas industry that will protect
or tend to protect the health, welfare, and safety of the general public,
and Texas Natural Resources Code, §§113.351-113.357, which require
the testing of LP-gas systems in school districts.
Texas Natural Resources Code, §§113.051 and 113.351- 113.357,
are affected by the adopted section.
Issued in Austin, Texas, on March 21, 2002.
§9.41.Testing of LP-Gas Systems in School Facilities.
(a)
Definitions. The following words and terms, when used in
this section, have the following meanings, unless the context clearly indicates
otherwise:
(1)
Board of trustees--The governing entity of a school district.
(2)
School district--An entity created under the laws of this
state and accredited by the Texas Education Agency under Texas Education Code,
Chapter 39, Subchapter D; a private elementary or secondary school, other
than a school in a residence; or a state or regional school for the blind
and visually impaired or the deaf created under Texas Education Code, Chapter
30.
(3)
Supplier--An individual or company that sells and delivers
LP-gas to a school district facility. If more than one individual or company
sells and delivers LP-gas to a school district facility, each individual or
company is a supplier for purposes of this section.
(b)
School district requirements. Each school district shall
ensure that a pressure test for leakage is performed on the LP- gas piping
system in each school district facility as specified in this section.
(1)
A test performed under a municipal code shall satisfy the
pressure testing requirements of this section.
(2)
Unless performed pursuant to paragraph (1) of this subsection,
the pressure test shall be conducted in accordance with the National Fire
Protection Association's Pamphlet 54, National Fuel Gas Code, commonly referred
to as NFPA 54, as adopted by the Commission in this chapter, and shall be
performed to determine whether the LP-gas piping system holds at least the
amount of pressure specified by NFPA 54.
(3)
If a leak is found, the school district shall immediately:
(A)
remove the LP-gas system from LP-gas service until repairs
are made and another test is done and passed; and
(B)
report an identified LP-gas leakage in a school district
facility to the board of trustees of the district in which the facility is
located.
(4)
A school district shall provide written notice to the Commission
specifying the date and the result of each pressure test or other inspection
of the LP-gas piping system within one week of the date each test is performed.
(5)
Before the introduction of any LP-gas into an LP-gas piping
system, each school district shall provide verification to the district's
supplier that the LP-gas piping has been tested in accordance with this section.
(c)
Supplier requirements. A supplier shall terminate LP-gas
service to a school district facility if:
(1)
the supplier receives official notification from the firm
or individual conducting the test or from the school district that there is
hazardous leakage in the facility's LP-gas piping system;
(2)
the test performed at the facility was not performed in
accordance with the requirements of this section; or
(3)
the supplier has not received verification from the school
district that the LP-gas piping has been tested in accordance with this section.
(d)
Commission requirements.
(1)
The Commission shall maintain a copy of each school district's
written notice under subsection (b)(4) of this section for at least one year
from the date the Commission receives the notice.
(2)
At the request of a school district, the Commission shall
assist the district in providing for the certification of an employee of the
school district or school, as applicable, to conduct the test and in developing
a procedure for conducting the test.
(3)
The Commission shall enforce the provisions of this rule
pursuant to Texas Natural Resources Code, Chapter 113.
(e)
Compliance deadlines.
(1)
Each school district shall perform leakage tests as required
by this section at least once every two years beginning with the 2002-2003
school year.
(2)
School districts shall complete the initial leakage tests
before the beginning of the 2002-2003 school year. In the case of a year-round
school, a school district shall ensure that the pressure test in each of those
facilities is conducted and reported not later than July 1 of the year in
which the test is performed, with the first test due by July 1, 2002.
(3)
A school district may perform the pressure tests on a two-year
cycle under which the tests are performed for the LP-gas piping systems of
approximately one-half of the facilities each year.
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 March 21, 2002.
TRD-200201759
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: April 10, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 475-1295
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
Subchapter P. TEXAS UNIVERSAL SERVICE FUND
16 TAC §26.418
The Public Utility Commission of Texas (commission) adopts
amendments to §26.418, relating to Designation of Common Carriers as
Eligible Telecommunications Carriers to Receive Federal Universal Service
Funds with changes to the proposed text as published in the December 7, 2001
The commission received written comments on the amendments from the following
parties: Office of Public Utility Counsel (OPC); Texas Statewide Telephone
Cooperative, Inc. (TSTCI); Western Wireless Corporation (WWC); and State of
Texas (State). Reply comments were received from OPC, TSTCI, Texas Telephone
Association (TTA), and State.
Section 26.418(j) pertaining to rural and non-rural
carriers' requirements for annual certification to receive FUSF support.
Section 26.418(j) is added to provide an annual certification process to
determine whether the Federal Universal Service Fund (FUSF) support provided
to rural and non-rural telecommunications carriers is being utilized consistent
with the Federal Telecommunications Act (FTA) §254(e). Specifically,
subsection (j) establishes the filing deadlines for the annual certification,
and the commission's authority and responsibilities for review of the carriers'
submissions.
WWC argued that the proposed language in §26.418(j) inappropriately
grants the commission the authority to revoke the FUSF certification of any
carrier that it determines has not complied with the federal requirements
in 47 United States Code (U.S.C.) §254(e). WWC contended that nowhere
in 47 Code of Federal Regulations (C.F.R.) §54.314 or §54.315 does
it state that a state commission can revoke FUSF certification or make the
determination that a carrier is not in compliance with 47 U.S.C. §254(e).
WWC asserted that such language is beyond any authority the commission derives
from federal law or regulation and should be stricken.
OPC argued that the commission has not exceeded its authority in including
47 U.S.C. §254(e) as a basis for certificate revocation. OPC contended
that WWC's argument is contrary to the
FCC's Report
and Order
. OPC maintained that the condition requiring that FUSF support
be utilized for facilities for which support is intended is identical to the
certification assertions required of the state regulatory agency under the
FCC rules. OPC claimed that the standards under 47 U.S.C. §254(e) and
47 C.F.R. §54.313 and §54.314 are identical. OPC contended that
a change in the reference to 47 U.S.C. §254(e) to the standards set out
in 47 C.F.R. §54.313 and §54.314 would not result in a republication
of the proposed amendment.
The State supported the adoption of §26.418(j)(4), relating to revocation
of FUSF support certification. The State maintained that the commission has
the authority to rescind a certification.
TSTCI maintained that the substance of 47 C.F.R. §54.313 and §54.314
cited by OPC is included in the proposed rules.
The commission adopts §26.418(j) with changes to the proposed language.
The commission finds that §26.418(j) establishes an annual certification
process that meets the requirements outlined in the
FCC's Report and Order
. Therefore, the commission shall not include
any reference to 47 C.F.R. §54.313 and §54.314 in subsection (j).
The commission adopts internal references and minor non-substantive changes
in this subsection that are necessary to ensure consistency with changes made
by the
FCC's Report and Order
. However, the
commission adopts subsection (j)(4) with changes to clarify that the
Section 26.418(k) pertaining to disaggregation
of rural carriers' FUSF support.
Section 26.418(k) is added to provide procedures for disaggregation of
rural telecommunications carriers' FUSF support below the study area as outlined
in the
FCC's Report and Order
. Specifically,
subsection (k) provides rural carriers the flexibility to disaggregate FUSF
support according to three "paths" outlined by the FCC. The amendments allow
a rural carrier to elect not to disaggregate and to continue receiving funds
on an access line averaged basis, in accordance with its federal study area.
The amendment also allows a rural carrier to either disaggregate its study
area based on a plan that has been approved by the commission or elect a self-certification
process to receive greater high cost support for targeted areas. Section 26.418(k)
addresses the commission's authority to review and monitor the requirements
outlined in the
FCC's Report and Order
.
WWC argued that the proposed rule should provide for the disaggregation
of the study area as a service area. WWC contended that the geographic area
of the rural telephone company, which is defined as the study area, must be
disaggregated to allow competitive carriers to service the same, targeted
geographic service area in a manner that parallels the disaggregation of its
FUSF support. WWC stated that this change would encourage competition among
carriers, such as wireless carriers, with service coverage areas differing
from the incumbent rural telephone company. In addition, WWC maintained that
the title of §26.418(k) should be amended to read as follows: "Disaggregation
of incumbent rural local exchange carriers' service areas and disaggregation
and targeting of support by rural incumbent local exchange carriers." Moreover,
WWC claimed that §26.418(k)(1)(B), (C), and (D) should be revised, for
the sake of clarification, to state that the disaggregation plan submitted
to the commission shall result in the disaggregation of service areas for
that carrier (and any Eligible Telecommunications Carriers (ETCs) serving
in that incumbent's service area) in the same manner and degree as the disaggregation
and targeting of support. WWC maintained that the same disaggregation rules
from the
FCC's Report and Order
should apply
to the administration of the Texas Universal Service Fund (TUSF) in §26.417
of this title, relating to Designation as Eligible Telecommunications Providers
to Receive Texas Universal Service Funds (TUSF). WWC claimed that §26.417
should be amended and clarified to state that the disaggregation plan submitted
to the commission shall result in the disaggregation of service areas for
that carrier (and any ETCs serving in that incumbent's service area) in the
same manner and degree as the disaggregation and targeting of support.
OPC argued that the paragraphs contained in 47 C.F.R. §53.315(e)(5)
and (7), regarding the federal rule requirements for disaggregation plans,
should be included in the proposed rule. OPC maintained that the inclusion
of these two paragraphs would ensure uniformity with federal law and avoid
arguments on the legal interpretation of the rule. In addition, OPC contended
that maintaining the study area as a service area substantially mitigates,
if not eliminates, "cherry picking". Without the service area being co-extensive
with the study area, OPC claimed that a customer's access to telecommunications
service may be denied or significantly hindered because the customer does
not live within the "more profitable" service area targeted by the competitive
carrier. OPC maintained that 47 C.F.R. §54.207 outlines the federal procedure
requiring a state regulatory agency to petition the FCC in order to break
up a study area into multiple service areas. OPC stated that the statute provides
for disaggregation on a rural telephone company by rural telephone company
basis. OPC asserted that a substantive rule attempting to disaggregate rural
telephone companies all at once for purposes of FUSF is outside the authority
granted by the FCC. OPC agreed with the State that rule amendments should
set out the commission's authority to perform audits such as those required
for the ETC certification applications. OPC asserted that the proposed rule
should require all ETCs to utilize the same accounting procedures used by
the National Exchange Carriers Association (NECA) to ensure consistency in
the reporting of costs. OPC claimed that such consistency would enhance the
commission's auditing and monitoring for ETC certification compliance. OPC
asserted that the commission could monitor the effectiveness of the §26.418
amendments without amending §26.417. OPC maintained that §26.417
may be amended to address any deficiencies found in implementing §26.418,
if necessary.
The State agreed with OPC regarding the addition of language used in 47
C.F.R. §54.315(e)(5) and (7) to §26.418(k)(3). Moreover, the State
argued that the proposed amendments should contain a periodic, competitively
neutral, audit requirement for the disaggregation plans filed with the commission.
The State argued that the audit requirement would serve as a safeguard to
prevent abuse of self-certification and protect the public.
In response to WWC's initial comments, TSTCI argued that the rule should
not provide for the disaggregation of the study area as a service area. TSTCI
contended that such a position is beyond the scope of the
FCC's Report and Order
. Moreover, TSTCI maintained that the
FCC's Report and Order
is based on maintaining the integrity of the
rural carrier's study areas. TSTCI stated that disaggregation of a rural carrier's
study area has serious implications for the public interest and the rural
carrier's ability to serve as the carrier of last resort (COLR). TSTCI claimed
that such an action would seriously undermine the integrity of the incumbent
rural carrier and its ability to service the least profitable zones of their
study area as the COLR. TSTCI contended that WWC, or any other interested
party, has the ability, under subsection (k)(5), to file a motion requesting
the commission order disaggregation of a rural Incumbent Local Exchange Carrier's
(ILEC's) FUSF support. TSTCI argued that WWC or any other interested party
should be required to make a case for disaggregation of any rural ILEC's FUSF
support on a case-by-case basis.
TSTCI stated that the proposed amendments do not impact §26.417. TSTCI
contended that it would be more appropriate and efficient to determine the
impact of the FCC's disaggregation order on the TUSF in the context of the
commission's upcoming scheduled review of the TUSF. In addition, TSTCI claimed
that proposed §26.418(k)(3) and (k)(3)(G) capture the meaning of the
corresponding federal rule without distortion. In response to the State's
initial comments, TSTCI argued that it was not necessary to include a specific
audit requirement for the disaggregation plans filed with the commission.
TSTCI maintained that the Public Utility Regulatory Act (PURA) §§14.201-14.207
provides the commission with broad authority to conduct audits and inspections.
TSTCI asserted that ILECs are subject to the existing oversight responsibility
and reporting requirements of the NECA. Moreover, TSTCI claimed that there
are sufficient safeguards and oversight procedures in place to ensure the
integrity of the program.
TTA argued that WWC is attempting to bypass the process established by
FTA §214(e) and the rules established by the FCC with regard to a rural
telephone company's service area. TTA contended that state commissions lack
independent jurisdiction to redefine a rural telephone company's service area
for purposes of FUSF support under FTA §214(e). TTA maintained that the
procedural steps for the redefinition of a rural telephone company's service
area by a state commission are outlined in 47 C.F.R. §54.207(c). TTA
stated that the procedure requires both state commission and FCC consensus
on changes to the rural service area definition. TTA claimed that a reference
to the federal rules outlining the procedure is unnecessary in a state commission's
substantive rules. In addition, TTA contended that WWC acknowledged that state
commissions lack independent authority to redefine a rural telephone company's
service area in the
Direct Testimony of Mr. Blundell
in Docket Number 22289,
Application of WWC
Texas RSA Limited Partnership for Designation as an Eligible Telecommunications
Provider Pursuant to P.U.C. SUBSt. R. §26.417
, and Docket Number
22295,
Application of WWC Texas RSA Limited Partnership
for Designation as an Eligible Telecommunications Carrier Pursuant to 47 U.S.C. §214(c) &
P.U.C. SUBST. R. §26.418
. TTA maintained that any FUSF funding
disaggregation that may be sought by any of the underlying rural telephone
companies will simply move universal support to certain higher cost zones
in which costs are lower. TTA claimed that the redistribution of universal
support from one or more cost zones to other cost zones will have no benefit
to WWC given its current obligations to provide its competitive ETC services
to all end users within its ETC designated service area. TTA argued that the
prevention of "cream skimming" is specifically the reason why the service
areas of rural telephone companies are defined as study areas. TTA contended
that the commission would prevent competitive ETCs from "cream skimming" customers
within lower cost zones by rejecting WWC's proposal to redefine a rural telephone
company's study area. TTA claimed WWC is seeking relief that has been previously
requested and rejected by the FCC in the
Petition
for Reconsideration
filed by the Competitive Universal Service Coalition
in the
FCC's Report and Order
.
The commission adopts §26.418(k) with clarifying changes to the proposed
language in subsection (k)(3)(D) and (k)(4) that it believes address the concerns
expressed by parties regarding adoption of the precise language in 47 C.F.R. §54.315(e)(5)
and (7). The commission intends all of the federal requirements to apply to
applications for disaggregation. The revised adopted language accomplishes
this purpose.
The commission declines to adopt WWC's proposal that the proposed rule
should provide for the disaggregation of the study area as a service area.
The commission finds that the FCC does not grant it the authority to disaggregate
a carrier's study area as a service area. The commission finds that the adopted
language will prevent, if not eliminate, "cream skimming", by defining a carrier's
service areas as its study areas. The commission finds that the adopted language
shall prevent competitive ETCs from "cream skimming" customers within lower
cost zones, thereby ensuring that all customers throughout Texas have access
to affordable basic local telecommunications services. The commission notes
that 47 C.F.R. §54.207, which outlines the federal procedure requiring
a state regulatory agency to petition the FCC in order to disaggregate a study
area into multiple study areas, provides for disaggregation of any rural ILEC's
FUSF support after a case-by-case analysis. Therefore, the commission finds
that an attempt to disaggregate rural telephone carriers all at once for purposes
of FUSF support is outside of the authority granted by the FCC. Moreover,
consistent with its determination in WWC's
Application
for Designation as an Eligible Telecommunications Carrier Pursuant to 47 U.S.C. §214(e)
and PUC SUBST. R. 26.418
, PUC Docket Numbers 22289 and 22295, Final
Order at paragraph 6 (October 30, 2000), "if the {commission} determines that
it is appropriate to redefine {an ILEC's} service area, it will file a petition
with the FCC and seek its agreement."
The commission declines to adopt an audit requirement for the disaggregation
plans filed at the commission. The commission points out that its complaint
procedures allow a party to file a complaint against another parties' disaggregation
plan if warranted. The commission finds that existing safeguards and oversight
procedures during the review of disaggregation plans will ensure the integrity
of the program, and, therefore, make an audit requirement unwarranted.
The commission declines to amend §26.417 to address any deficiencies
found in the implementation of §26.418. The commission finds that the
adopted amendments to §26.418 do not impact the administration of the
TUSF. The commission believes that the impact of the
FCC's Report and Order
upon §26.417 requirements, if any, shall
be determined in the commission's upcoming scheduled review of the TUSF.
These amendments are adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2002) (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, specifically, the FCC's
Fourteenth
Report and Order, Twenty-Second Order on Reconsideration, and Further Notice
of Proposed Rulemaking in CC Docket No. 96-45, and Report and Order in CC
Docket No. 00-256 (FCC's Report and Order)
adopted on May 10, 2001,
which requires a state commission to implement an annual certification process
to determine whether rural and non-rural carriers are utilizing FUSF support
consistent with 47 U.S.C. §254(e) and to establish procedures for the
disaggregation of a rural carrier's FUSF support below the study area.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
56.021-56.028.
§26.418.Designation of Common Carriers as Eligible Telecommunications Carriers to Receive Federal Universal Service Funds.
(a)
Purpose. This section provides the requirements for the
commission to designate common carriers as eligible telecommunications carriers
(ETCs) to receive support from the federal universal service fund (FUSF).
Only common carriers designated by the commission pursuant to 47 United States
Code (U.S.C.) §214(e) (relating to Provision of Universal Service) as
eligible for federal universal service support may qualify to receive universal
service support under the FUSF. In addition, this section provides guidelines
for rural and non-rural carriers to meet the federal requirements of annual
certification for FUSF support criteria and, if requested or ordered, for
the disaggregation of rural carriers' FUSF support.
(b)
Service areas. The commission may designate ETC service
areas according to the following criteria.
(1)
Non-rural service area. To be eligible to receive federal
universal service support in non-rural areas, a carrier must provide federally
supported services pursuant to 47 Code of Federal Regulations (C.F.R.) §54.101
(relating to Supported Services for Rural, Insular, and High Cost Areas) throughout
the area for which the carrier seeks to be designated an ETC.
(2)
Rural service area. In the case of areas served by a rural
telephone company, as defined in §26.404 of this title (relating to Small
and Rural Incumbent Local Exchange Company (ILEC) Universal Service Plan),
a carrier must provide federally supported services pursuant to 47 C.F.R. §54.101
throughout the study area of the rural telephone company in order to be eligible
to receive federal universal service support.
(c)
Criteria for determination of ETCs. A common carrier shall
be designated as eligible to receive federal universal service support if
it:
(1)
offers the services that are supported by the federal universal
service support mechanisms under 47 C.F.R. §54.101 either using its own
facilities or a combination of its own facilities and resale of another carrier's
services; and
(2)
advertises the availability of and charges for such services
using media of general distribution.
(d)
Criteria for determination of receipt of federal universal
service support. In order to receive federal universal service support, a
common carrier must:
(1)
meet the requirements of subsection (c) of this section;
(2)
offer Lifeline Service to qualifying low-income consumers
in compliance with 47 C.F.R. Part 54, Subpart E (relating to Universal Service
Support for Low-Income Consumers); and
(3)
offer toll limitation services in accordance with 47 C.F.R. §54.400
(relating to Terms and Definitions) and §54.401 (relating to Lifeline
Defined).
(e)
Designation of more than one ETC.
(1)
Non-rural service areas. In areas not served by rural telephone
companies, as defined in §26.404 of this title, the commission shall
designate, upon application, more than one ETC in a service area so long as
each additional carrier meets the requirements of subsection (b)(1) of this
section and subsection (c) of this section.
(2)
Rural service areas. In areas served by rural telephone
companies, as defined in §26.404 of this title, the commission may designate
as an ETC a carrier that meets the requirements of subsection (b)(2) of this
section and subsection (c) of this section if the commission finds that the
designation is in the public interest.
(f)
Proceedings to designate ETCs.
(1)
At any time, a common carrier may seek commission approval
to be designated an ETC for a requested service area.
(2)
In order to receive support under this section for exchanges
purchased from an unaffiliated carrier, the acquiring ETC shall file an application,
within 30 days after the date of the purchase, to amend its ETC service area
to include those geographic areas that are eligible for support.
(3)
If an ETC receiving support under this section sells an
exchange to an unaffiliated carrier, it shall file an application, within
30 days after the date of the sale, to amend its ETC designation to exclude
from its designated service area those exchanges for which it was receiving
support.
(g)
Application requirements and commission processing of applications.
(1)
Requirements for notice and contents of application.
(A)
Notice of application. Notice shall be published in the
(B)
Contents of application for each common carrier seeking
ETC designation. A common carrier that seeks to be designated as an ETC shall
file with the commission an application complying with the requirements of
this section. In addition to copies required by other commission rules, one
copy of the application shall be delivered to the commission's Regulatory
Division and one copy shall be delivered to the Office of Public Utility Counsel.
The application shall:
(i)
show that the applicant offers each of the services that
are supported by the FUSF support mechanisms under 47 U.S.C. §254(c)
(relating to Universal Service) either using its own facilities or a combination
of its own facilities and resale of another carrier's services throughout
the service area for which it seeks designation as an ETC;
(ii)
show that the applicant assumes the obligation to offer
each of the services that are supported by the FUSF support mechanisms under
47 U.S.C. §254(c) to any consumer in the service area for which it seeks
designation as an ETC;
(iii)
show that the applicant advertises the availability of,
and charges for, such services using media of general distribution;
(iv)
show the service area in which the applicant seeks designation
as an ETC;
(v)
contain a statement detailing the method and content of
the notice the applicant has provided or intends to provide to the public
regarding the application and a brief statement explaining why the proposed
notice is reasonable and in compliance with applicable law;
(vi)
contain a copy of the text of the notice;
(vii)
contain the proposed effective date of the designation;
and
(viii)
contain any other information which the applicant wants
considered in connection with the commission's review of its application.
(C)
Contents of application for each common carrier seeking
ETC designation and receipt of federal universal service support. A common
carrier that seeks to be designated as an ETC and receive federal universal
service support shall file with the commission an application complying with
the requirements of this section. In addition to copies required by other
commission rules, one copy of the application shall be delivered to the commission
staff and one copy shall be delivered to the Office of Public Utility Counsel.
The application shall:
(i)
comply with the requirements of subparagraph (B) of this
paragraph;
(ii)
show that the applicant offers Lifeline Service to qualifying
low- income consumers in compliance with 47 C.F.R. Part 54, Subpart E; and
(iii)
show that the applicant offers toll limitation services
in accordance with 47 C.F.R. §54.400 and §54.401.
(2)
Commission processing of application.
(A)
Administrative review. An application considered under
this section may be reviewed administratively unless the presiding officer,
for good cause, determines at any point during the review that the application
should be docketed.
(i)
The effective date shall be no earlier than 30 days after
the filing date of the application or 30 days after notice is completed, whichever
is later.
(ii)
The application shall be examined for sufficiency. If
the presiding officer concludes that material deficiencies exist in the application,
the applicant shall be notified within ten working days of the filing date
of the specific deficiency in its application. The earliest possible effective
date of the application shall be no less than 30 days after the filing of
a sufficient application with substantially complete information as required
by the presiding officer. Thereafter, any deadlines shall be determined from
the 30th day after the filing of the sufficient application and information
or from the effective date if the presiding officer extends that date.
(iii)
While the application is being administratively reviewed,
the commission staff and the staff of the Office of Public Utility Counsel
may submit requests for information to the telecommunications carrier. Three
copies of all answers to such requests for information shall be provided to
the commission staff and the Office of Public Utility Counsel within ten days
after receipt of the request by the telecommunications carrier.
(iv)
No later than 20 days after the filing date of the application
or the completion of notice, whichever is later, interested persons may provide
the commission staff with written comments or recommendations concerning the
application. The commission staff shall and the Office of Public Utility Counsel
may file with the presiding officer written comments or recommendations regarding
the application.
(v)
No later than 35 days after the proposed effective date
of the application, the presiding officer shall issue an order approving,
denying, or docketing the application.
(B)
Approval or denial of application.
(i)
An application filed pursuant to paragraph (1)(B) of this
subsection shall be approved by the presiding officer if the application meets
the following requirements:
(I)
the provision of service constitutes the services that
are supported by the FUSF support mechanisms under 47 U.S.C. §254(c);
(II)
the applicant will provide service using either its own
facilities or a combination of its own facilities and resale of another carrier's
services;
(III)
the applicant advertises the availability of, and charges
for, such services using media of general distribution;
(IV)
notice was provided as required by this section;
(V)
the applicant satisfies the requirements contained in subsection
(b) of this section; and
(VI)
if, in areas served by a rural telephone company, the
ETC designation is consistent with the public interest.
(ii)
An application filed pursuant to paragraph (1)(C) of this
subsection shall be approved by the presiding officer if the application meets
the following requirements:
(I)
the applicant has satisfied the requirements set forth
in clause (i) of this subparagraph;
(II)
the applicant offers Lifeline Service to qualifying low-income
consumers in compliance with 47 C.F.R. Part 54, Subpart E; and
(III)
the applicant offers toll limitation services in accordance
with 47 C.F.R. §54.400 and §54.401.
(C)
Docketing. If, based on the administrative review, the
presiding officer determines that one or more of the requirements have not
been met, the presiding officer shall docket the application.
(D)
Review of the application after docketing. If the application
is docketed, the effective date of the application shall be automatically
suspended to a date 120 days after the applicant has filed all of its direct
testimony and exhibits, or 155 days after the proposed effective date, whichever
is later. Three copies of all answers to requests for information shall be
filed with the commission within ten days after receipt of the request. Affected
persons may move to intervene in the docket, and a hearing on the merits shall
be scheduled. A hearing on the merits shall be limited to issues of eligibility.
The application shall be processed in accordance with the commission's rules
applicable to docketed cases.
(E)
Waiver. In the event that an otherwise ETC requests additional
time to complete the network upgrades needed to provide single-party service,
access to enhanced 911 service, or toll limitation, the commission may grant
a waiver of these service requirements upon a finding that exceptional circumstances
prevent the carrier from providing single-party service, access to enhanced
911 service, or toll limitation. The period for the waiver shall not extend
beyond the time that the commission deems necessary for that carrier to complete
network upgrades to provide single- party service, access to enhanced 911
service, or toll limitation services.
(h)
Designation of ETC for unserved areas. If no common carrier
will provide the services that are supported by federal universal service
support mechanisms under 47 U.S.C. §254(c) to an unserved community or
any portion thereof that requests such service, the commission, with respect
to intrastate services, shall determine which common carrier or carriers are
best able to provide such service to the requesting unserved community or
portion thereof and shall order such carrier or carriers to provide such service
for that unserved community or portion thereof.
(i)
Relinquishment of ETC designation. A common carrier may
seek to relinquish its ETC designation.
(1)
Area served by more than one ETC. The commission shall
permit a common carrier to relinquish its designation as an ETC in any area
served by more than one ETC upon:
(A)
written notification not less than 90 days prior to the
proposed effective date that the common carrier seeks to relinquish its designation
as an ETC;
(B)
determination by the commission that the remaining eligible
telecommunications carrier or carriers can offer federally supported services
to the relinquishing carrier's customers; and
(C)
determination by the commission that sufficient notice
of relinquishment has been provided to permit the purchase or construction
of adequate facilities by any remaining eligible telecommunications carrier
or carriers.
(2)
Area where the common carrier is the sole ETC. In areas
where the common carrier is the only ETC, the commission may permit it to
relinquish its ETC designation upon:
(A)
written notification not less than 90 days prior to the
proposed effective date that the common carrier seeks to relinquish its designation
as an ETC; and
(B)
commission designation of a new ETC for the service area
or areas.
(j)
Rural and non-rural carriers' requirements for annual certification
to receive FUSF support. A common carrier serving a rural or non-rural study
area shall comply with the following requirements for annual certification
for the receipt of FUSF support.
(1)
Annual certification. Common carriers must provide the
commission with an affidavit annually, on or before September 1st of each
year, which certifies that the carrier is complying with the federal requirements
for the receipt of FUSF support. Upon receipt and acceptance of the affidavits
filed on or before September 1st each year, the commission will certify these
carriers' eligibility for FUSF to the FCC and the Federal Universal Service
Fund Administrator by October 1st each year.
(2)
Failure to file. Common carriers failing to file an affidavit
by September 1st may still be certified by the commission for annual FUSF.
However, the carrier is ineligible for support until the quarter following
the federal universal service administrator's receipt of the commission's
supplemental submission of the carrier's compliance with the federal requirements.
(3)
Supplemental certification. For carriers not subject to
the annual certification process, the schedule set forth in 47 C.F.R. §54.313
and 47 C.F.R. §54.314(d) for the filing of supplemental certifications
shall apply.
(4)
Recommendation for Revocation of FUSF support certification.
The commission may recommend the revocation of the FUSF support certification
of any carrier that it determines has not complied with the federal requirements
pursuant to 47 U.S.C. §254(e) and will review any challenge to a carrier's
FUSF support certification and make an appropriate recommendation as a result
of any such review.
(k)
Disaggregation of rural carriers' FUSF support. Common
carriers serving rural study areas must comply with the following requirements
regarding disaggregation of FUSF support.
(1)
Election by May 15, 2002. On or before May 15, 2002, all
rural incumbent local exchange carriers (ILECs) may notify the commission
of one of the following elections regarding FUSF support. This election will
remain in place for four years from the effective date of certification, pursuant
to 47 C.F.R. §54.315, unless the commission, on its own motion, or upon
the motion of the rural ILEC or an interested party, requires a change to
the elected disaggregation plan:
(A)
a rural ILEC may choose to certify to the commission that
it will not disaggregate at this time;
(B)
a rural ILEC may seek disaggregation of its FUSF support
by filing a targeted plan with the commission that meets the criteria in paragraph
(3) of this subsection, subject to the commission's approval of the plan;
(C)
a rural ILEC may self-certify a disaggregation targeted
plan that meets the criteria in paragraphs (3) and (4) of this subsection,
disaggregate support to the wire center level or up to no more than two cost
zones, or mirror a plan for disaggregation that has received prior commission
approval; or
(D)
if the rural ILEC serves a study area that is served by
another carrier designated as an ETC prior to the effective date of 47 C.F.R. §54.315,
(June 19, 2001), the ILEC may only self-certify the disaggregation of its
FUSF support by adopting a plan for disaggregation that has received prior
commission approval.
(2)
Abstain from filing. If a rural ILEC abstains from filing
an election on or before May 15, 2002, the carrier will not be permitted to
disaggregate its FUSF support unless it is ordered to do so by the commission
pursuant to the terms of paragraph (5) of this subsection.
(3)
Requirements for rural ILECs' disaggregation plans. Pursuant
to the federal requirements in 47 C.F.R. §54.315(e) a rural ILEC's disaggregation
plan, whether submitted pursuant to paragraph (1)(B), (C) or (D) of this subsection,
must meet the following requirements:
(A)
the sum of the disaggregated annual support must be equal
to the study area's total annual FUSF support amount without disaggregation;
(B)
the ratio of the per line FUSF support between disaggregation
zones for each disaggregated category of FUSF support shall remain fixed over
time, except as changes are required pursuant to paragraph (5) of this subsection;
(C)
the ratio of per line FUSF support shall be publicly available;
(D)
the per line FUSF support amount for each disaggregated
zone or wire center shall be recalculated whenever the rural ILEC's total
annual FUSF support amount changes and revised total per line FUSF support
and updated access line counts shall then be applied using the changed FUSF
support amount and updated access line counts applicable at that point;
(E)
each support category complies with subparagraphs (A) and
(B) of this paragraph;
(F)
monthly payments of FUSF support shall be based upon the
annual amount of FUSF support divided by 12 months if the rural ILEC's study
area does not contain a competitive carrier designated as an ETC; and
(G)
a rural ILEC's disaggregation plan methodology and the
underlying access line count upon which it is based will apply to any competitive
carrier designated as an ETC in the study area.
(4)
Additional requirements for self-certification of a disaggregation
plan. Pursuant to 47 C.F.R. §54.315(d)(2), a rural ILEC's self-certified
disaggregation plan must also include the following items in addition to those
items required by paragraph (3) of this subsection:
(A)
support for, and a description of, the rationale used,
including methods and data relied upon, as well as a discussion of how the
plan meets the requirements in paragraph (3) of this subsection and this paragraph;
(B)
a reasonable relationship between the cost of providing
service for each disaggregation zone within each disaggregation category of
support proposed;
(C)
a clearly specified per-line level of FUSF support for
each category pursuant to 47 C.F.R. §54.315(d)(2)(iii);
(D)
if the plan uses a benchmark, a detailed explanation of
the benchmark and how it was determined that is generally consistent with
how the level of support for each category of costs was derived so that competitive
ETCs may compare the disaggregated costs for each cost zone proposed; and
(E)
maps identifying the boundaries of the disaggregated zones
within the study area.
(5)
Disaggregation upon commission order. The commission on
its own motion or upon the motion of an interested party may order a rural
ILEC to disaggregate FUSF support under the following criteria:
(A)
the commission determines that the public interest of the
rural study area is best served by disaggregation of the rural ILEC's FUSF
support;
(B)
the commission establishes the appropriate disaggregated
level of FUSF support for the rural ILEC; or
(C)
changes in ownership or changes in state or federal regulation
warrant the commission's action.
(6)
Effective dates of disaggregation plans. The effective
date of a rural ILEC's disaggregation plan shall be as specified in 47 C.F.R. §54.315.
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 March 20, 2002.
TRD-200201731
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: April 9, 2002
Proposal publication date: December 7, 2001
For further information, please call: (512) 936-7308
Chapter 109.
LESSORS AND LEASE FACILITATORS
Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Part 6.
TEXAS MOTOR VEHICLE BOARD