Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
Subchapter R. PROVISIONS RELATING TO MUNICIPAL REGULATION AND RIGHTS-OF-WAY MANAGEMENT
16 TAC §26.469
The Public Utility Commission of Texas (commission) adopts
new §26.469, relating to Municipal Authorized Review of a Certificated
Telecommunication Provider's Business Records with no changes to the proposed
text as published in the December 17, 2004, issue of the
Texas Register
(29 TexReg 11511).
The new rule will define the scope and procedures attendant to an authorized
review of a provider's business records by a municipality pursuant to Texas
Local Government Code §283.056(c)(3). This new rule is adopted under
Project Number 29719.
The commission received comments on the proposed new section from the Coalition
of Cities and the City of Houston (Coalition); SBC Texas; GTE Southwest Incorporated,
doing business as Verizon Southwest (Verizon); Sprint Corporation (Sprint);
CLEC Coalition and the City of Garland.
The comments that were received by commission staff indicated that there
was a consensus among the parties to accept this rule as proposed at the December
2, 2004, Open Meeting. The only suggested modification to the rule was requested
by Sprint. Additionally, some parties included comments containing proposed
language changes to be included in the preamble to the rule.
Comments on Specific Rule Provisions
Sprint stated its concern regarding §26.469(c)(4)(B), which requires
that the review be performed on-premises at the principal Texas office of
the certificated telecommunications provider (CTP), unless otherwise agreed
by the CTP and the municipality. Sprint suggested that the word "Texas" be
removed from this section since its business records reside at its corporate
headquarters in Overland Park, Kansas. Sprint argued that if a municipality
determines that an on-premises review is necessary, it is more efficient to
conduct that review at the location where the business records are kept. Sprint
maintained that the majority of the audit could be handled by regular, overnight
and electronic mail.
The City of Garland argued that if municipal representatives had to travel
to Kansas, travel time alone would add substantially to the process, along
with the uncertainties caused by travel delays. Efficiency would be better
attained by having Sprint ship the records to Texas.
Commission response
The commission did not receive comments from any other party which participated
in the negotiation of this rule voicing any concerns regarding the requirement
of having an authorized review held at the CTP's principal Texas office. The
commission notes that under P.U.C. Substantive Rule §26.465(i), relating
to Methodology for Counting Access Lines and Reporting Requirements for Certificated
Telecommunications Providers, a CTP is required to maintain all records, books,
accounts, or memoranda relating to access lines deployed in a municipality
in a manner which allows for easy identification and review by the commission
and, as appropriate, by the relevant municipality. The commission finds that
in order to provide easy identification and review for the commission and
the municipalities, it is incumbent upon the CTP to provide access to all
records, books, accounts, or memoranda at the principal Texas office of the
CTP. The commission therefore, declines to adopt Sprint's recommendation to
remove the word "Texas" from P.U.C. Substantive Rule §26.469(c)(4)(B).
Comments on Preamble Language
The written comments that pertained to the preamble were received from
the Coalition of Cities and the City of Houston (Coalition); SBC Texas; GTE
Southwest Incorporated, doing business as Verizon Southwest (Verizon); Sprint
Corporation (Sprint); CLEC Coalition and the City of Garland.
Business Records
The Coalition argued that the preamble should provide clarity as to the
types of CTP business records which are subject to access by having commission
staff list examples of types of business records that should be available
for access. The Coalition suggested that the following business records be
included in the preamble: (1) List of Services; (2) Procedure(s) used to determine
classification of products and services as access lines and identification
of categories of access lines; (3) Street address guide (SAG); (4) Adequate
proof agreements; (5) Samples of billing records or invoices to customers;
(6) Underlying records to support uncollectible customer accounts; and (7)
Records as to lines added or dropped relevant to the reviewing period. The
Coalition stated that the CTP's billing system should be sufficient to substantiate
compliance with the access line reporting requirements pursuant to P.U.C.
Substantive Rule §26.467(k)(2). Moreover, the Coalition noted that records
are to be maintained in a manner which allows for easy identification and
review consistent with P.U.C. Substantive Rule §26.465(i). The Coalition
further argued that a list of all services that the CTP provides is necessary
to ensure that all services have been characterized properly, categorized
correctly, and that they have been designated as an access line.
SBC Texas argued that the Coalition continues to try to modify the intent
of the Texas Legislature by changing the authorized review into an audit.
SBC Texas contended that if that had been the intent of the Legislature, then
the municipalities would have been granted the authority that ordinarily accompanies
an audit, or the ability to conduct "an unfettered examination." Furthermore,
SBC Texas contended that an authorized review is not and was not intended
to be a term of art that means the same as the word audit. According to SBC
Texas, these terms relate to the level of assurance regarding the reliability
of an assertion in a financial statement. An audit provides high, but not
absolute, assurance that the information subject to the audit is free of material
misstatements, and is expressed in an audit report as reasonable assurance.
A review, on the other hand, provides moderate assurance that the information
subject to review is free of material misstatements and is expressed in an
audit report as negative assurance. SBC stated that it is important to note
that there is a difference between an audit and an authorized review and that
the legislature clearly intended a less intrusive form of review.
SBC Texas further stated that had the CTPs and the municipalities been
able to agree on sample descriptions of the types of records that should be
subject to an authorized review, those examples would have been set forth
in the agreed rule. Samples of billing records and customer proprietary network
information are of significant concern to the CTPs. In addition, SBC Texas
stated that the Coalition has raised for the first time, the issue regarding
the category of documents described as "records as to lines added or dropped
relevant to the reviewing period." SBC Texas indicated that it's not clear
as to what is meant by this description and why it would be presented as requiring
a clarification when it was never discussed during two years of negotiations.
SBC Texas submitted that the commission should reject the request for these
added requirements under the guise of sample descriptions.
Sprint argued that clarification of the type of business records necessary
to conduct an authorized review is unnecessary since subsection (c)(3) of
the proposed new section states that the CTP must provide the requesting municipality
with a written list of the types of business records necessary to conduct
an authorized review. Sprint noted that the Coalition's request for "detailed
descriptions of services" provided substantially changes the intent of the
proposed new section because it conflicts with subsection (c)(3) of the proposed
new section, which requires a CTP to provide "brief" descriptions of the business
records that are necessary to conduct an authorized review.
The CLEC Coalition noted that the parties agreed to establish general guidelines
in the proposed new section because they could not agree on a "laundry list"
of business records subject to review. The CLEC Coalition and Verizon objected
to the Coalition's attempt to identify specific types of business records,
after the fact, through clarification to the preamble. The CLEC Coalition's
objection was also premised on its argument that CTPs are varied in their
record keeping and many CTPs employ outside vendors to prepare access line
reports.
Commission response
The commission finds that the proposed new section sets forth very general
guidelines. In addition, the commission recognizes that the parties reached
an agreement on the basic terms of the proposed new section with the understanding
that further issues could be worked out cooperatively during the authorized
review process. During such a process, the parties could determine the significance
of various issues and identify those issues that continue to be in dispute.
The commission believes that it is premature to place stipulations or numerous
clarifications on this rule prior to the parties conducting a number of authorized
reviews to determine what areas of dispute require resolution in the form
of an amendment to this rule. However, the commission also believes that it
would be in the best interest of the parties for the commission to communicate
what it views as examples of business records that may be utilized during
an authorized review. These examples are not intended to be all-inclusive
nor an indication that such business records must be produced by a CTP if
not currently generated in its normal course of business. Since the types
of business records necessary to conduct an authorized review may vary with
each CTP, the commission finds it is not possible to identify a comprehensive
list of business records in the preamble. The commission notes that the Coalition
has suggested numerous types of business records as examples to be placed
in the preamble. It is reasonable to expect that some of the business records
listed by the Coalition would vary by company, consequently, the commission
chose not to include those records in the examples below; however, the commission
expects the parties to work cooperatively to determine the additional business
records that will be reviewed.
The commission agrees with SBC Texas that the release of customer billing
statements that contain Customer Proprietary Network Information (CPNI) is
of significant concern. Pursuant to Section 222 of the 1996 Federal Telecommunications
Act (FTA), the commission determines that CTPs shall not be required to provide
customer billing statements. On the other hand, examples of different types
of business records that may be provided by the CTP are:
1. List of services that are being provided by the CTP including a brief
description of each service. The commission agrees with the Coalition that
the list of services is required by the municipalities to determine if services
have been categorized correctly by the CTPs.
2. Street address guide (SAG). The commission notes that street address
information is initially provided by the municipalities to the CTPs to be
entered into the SAG. The commission agrees with the Coalition that a SAG
would enable the municipalities to compare what addresses the CTP shows to
be in the city limits as to what addresses the municipality actually has in
the city limits to ensure that access lines have been reported correctly.
3. Support documentation for write-offs or uncollectible accounts. The
commission notes that §26.467(k)(3)(A)(iii) states that if a CTP deducts
or includes a direct write-off pursuant to §26.467(m)(2), the CTP shall
complete a reconciliation report, showing a monthly delineation of the amount
added to the total payment due to previously uncollectible direct write-offs,
and the amount deducted from the total payment due to direct write-offs. The
commission finds that since this report should already be submitted as part
of the quarterly access line report filing under §26.467(k)(3)(A)(iii),
it should be made available to the municipalities during the authorized review.
4. Adequate proof agreements. The commission notes that §26.467(k)(4)(H)
states that a CTP, whether an underlying CTP or reselling CTP, shall make
its adequate proof agreements available for review by municipalities and the
commission upon request. The commission finds that since adequate proof agreements
are currently required under §26.467(k)(4)(H), such agreements should
be made available to the municipalities during the authorized review.
The commission has the expectation that the CTP and the municipality will
work together to identify business records necessary to successfully complete
the authorized review. Such cooperative effort should ultimately provide assurance
to the municipalities that the CTPs have been correctly and accurately categorizing,
reporting and submitting compensation to the municipalities for all access
lines that are being served within the municipalities' city limits.
Time Period of Records Subject to Review
The Coalition argued that Texas Local Government Code §283.056(c)(3)
mandates that an authorized review must be commenced within 90 days after
the filing of a CTP's access line report, however, it does not restrict the
time period for which the records may be examined. The Coalition stated that
when no previous examination of the initial access line reports and supporting
documents has been performed, it is paramount that these records be examined
to determine the initial characterization of services and the designation
of access line categories. The Coalition cited P.U.C Substantive Rule §26.465(i)
that states, in part, "...The books and records for each access line count
shall be maintained for a period of at least three years," as evidence that
the commission intended for the municipalities to have access to CTP records
for this period of time. The City of Garland concurred with the Coalition's
comments.
The CLEC Coalition objected to any clarification of this rule as they deem
it is unnecessary.
Sprint argued that the Coalition is attempting to rewrite the proposed
new section with its clarifications. The proposed new section contains a 90-day
window to conduct an authorized review of the CTP's records in order to ensure
compliance with access line reporting requirements. This rule is consistent
with Texas Local Government Code §283.056(c)(3), which requires a municipality
to inspect a CTP's records within 90 days of the filing of a CTP's access
line report.
Verizon objected to the Coalition's attempt to rewrite the rule after committing
to the rule as it had been negotiated between the parties.
SBC Texas argued that the Coalition, in its interpretation of the 90-day
limitation in the Texas Local Government Code §283.056(c)(3), has ignored
a very important word--the word "if." The Texas Legislature has allowed municipalities
to conduct authorized reviews if commenced within 90 days after the filing
of a CTP's report of access lines pursuant to Texas Local Government Code §283.056(c)(3).
SBC Texas averred that in the review of all the relevant language allowing
authorized reviews as exceptions to the prohibition against broader inspection
of CTP business records, the Coalition's argument fails.
Commission response
The commission finds that, pursuant to Texas Local Government Code §283.056(c)(3),
a municipality may perform an inspection of a provider's business records
to the extent necessary to conduct an authorized review, if commenced within
90 days
after the filing of a certificated telecommunications
provider's report of access lines.
Since CTPs file access line reports
on a quarterly basis, the commission finds that the only access line report
which shall be subject to an authorized review by the municipalities is the
access line report for the quarter for which a municipality initiated an authorized
review within the 90 day time limit imposed by Texas Local Government Code §283.056(c)(3).
The commission determines that the computation of the 90-day filing deadline,
for the purpose of municipal authorized review, should commence on the first
day of the access line reporting period for the next quarter. This practice
shall allow a CTP an opportunity to file any amendments or corrections to
a previously filed access line count for the quarter for which a municipality
seeks authorized review. Moreover, it will eliminate any possible confusion
as to what point the 90-day clock would commence for a municipality to file
an intent to conduct an authorized review, in the event that a CTP filed modifications
to its quarterly access line report prior to the start of the next reporting
period. The commission recognizes that a CTP shall maintain the books and
records for each access line count for a period, at minimum, of three years
in accordance with P.U.C. Substantive Rule §26.465(i). The business records
from other quarters may be utilized to determine the accuracy of the access
line count report for the quarter subject to the authorized review. However,
the municipalities may not challenge the accuracy of access line reports for
quarters in which a municipality failed to initiate an authorized review within
the time limit imposed by Texas Local Government Code §283.056(c)(3).
The commission recognizes that a CTP is not required to maintain such historical
business records beyond the three year mandate. However, the commission expects
that a CTP should, to the extent practicable, provide any and all pertinent
historical business records in excess of three years of age in its care, custody
or control. The commission believes that such cooperative effort between the
CTP and municipality is consistent with the provisions of this new rule and
the underlying purposes of Texas Local Government Code, Chapter 283 in assuring
accurate and efficient municipal authorized access line count reviews.
The commission may revisit the record retention provisions in P.U.C. Substantive
Rule §26.465(i) in the event that a three-year review of pertinent historical
business records is insufficient to establish appropriate accuracy or if collaborative
efforts fail to produce additional relevant business records within the care,
custody or control of the CTP.
Administrative Remedy
The Coalition maintained that Texas Local Government Code §283.051(b)
does not affect the right of a municipality to initiate legal action against
a CTP that uses the public right-of-way to provide local exchange telephone
service within a municipality and has not compensated the municipality in
accordance with Texas Local Government Code Chapter 283. The City of Garland
concurred with the Coalition's comments.
The CLEC Coalition argued that the Coalition's request for clarification
of municipal rights is an attempt to determine substantive rights and should
be rejected.
Verizon objected to the Coalition's attempt to rewrite the rule after committing
to the rule as it had been negotiated between the parties.
SBC Texas argued that the language that the Coalition has suggested including
in the preamble is an indication that the authorized review is not an administrative
remedy. SBC Texas further explained that the CTPs and the municipalities disagreed
as to whether an authorized review is an administrative remedy to be exhausted
prior to filing suit on a failure to comply with access line reporting requirements.
SBC Texas stated that the Legislature granted jurisdiction pursuant to Texas
Local Government Code §283.058 to the commission over municipalities
and certificated telecommunications providers necessary to enforce Texas Local
Government Code Chapter 283 and to ensure that all other legal requirements
are enforced in a competitively neutral, non-discriminatory, and reasonable
manner. SBC Texas maintained that the administrative remedies provided through
the commission should be exhausted before municipalities seek judicial intervention.
Commission response
The commission acknowledges the filed comments of the parties on the issue
of exhaustion of administrative remedies related to the application of municipal
authorized reviews of access line reports pursuant to Local Government Code,
Chapter 283. However, at this time, the commission declines to express comment
on this issue but reserves the right to address it in the event of a subsequent
relevant case, controversy or court decision.
All comments, including any not specifically referenced herein, were fully
considered by the commission.
This new section is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2005) (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 Texas Local Government Code §283.058, which grants
the commission the jurisdiction over municipalities and CTPs necessary to
enforce the whole of Chapter 283 and to ensure that all other legal requirements
are enforced in a competitively neutral, nondiscriminatory, and reasonable
manner.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002
and Texas Local Government Code §283.056 and §283.058.
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 April 11, 2005.
TRD-200501494
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 1, 2005
Proposal publication date: December 17, 2004
For further information, please call: (512) 936-7223
Chapter 60.
TEXAS COMMISSION OF LICENSING AND REGULATION
Subchapter C. FEES
16 TAC §60.83
The Texas Department of Licensing and Regulation ("Department")
adopts an amendment to an existing rule at 16 Texas Administrative Code, §60.83
regarding late renewal fees as it applies to individuals on active duty in
the United States armed forces serving outside the state as published in the
January 7, 2005, issue of the
Texas Register
(30
TexReg 15) with changes from the rule as proposed.
The amendment adds a new subsection (d) to comply with Texas Occupations
Code, §55.002, which exempts individuals who hold a license issued by
a state agency from increased fees or other penalties for failing to renew
their license in a timely manner if they satisfactorily establish that the
reason they failed to timely renew was because they were on active duty in
the United States armed forces serving outside of the state. The licensee
would be able to renew their license by paying the normally required renewal
fee.
The Department drafted and distributed the proposed rule to persons internal
and external to the agency. The proposed rule was published in the
Texas Register
on January 7, 2005. The comment period closed on February
7, 2005. One public comment was received regarding the proposed rule.
The commenter applauded the Department for initiating the rule, and asked
the Department to lengthen the time allowed for an exemption from a later
penalty to two years, if the individual can prove they were on active duty.
The commenter’s point is well taken because Texas Occupations Code, §1305.167(d)
allows for a late renewal of electrician licenses for up to two years after
license expiration. In response to the comment, the phrase "and whose license
has been expired for less than one year" is being replaced with "but is still
within the late renewal period".
The amendment is adopted under Texas Occupations Code, Chapter
55 which requires state agencies to adopt rules to exempt military personnel
who hold state licenses from incurring penalties or additional fees if they
were on active duty in the armed forces and serving outside of the state and
Texas Occupations Code, Chapter 51 which authorizes the Department to adopt
rules as necessary to implement this chapter and any other law establishing
a program regulated by the Department.
The statutory provisions affected by the adoption are those set forth in
Texas Occupations Code, Chapter 51 and Chapter 55. No other statutes, articles,
or codes are affected by the adoption.
§60.83.Late Renewal Fees.
(a)
A person whose license has been expired for 90 days or
less may renew the license by paying a late renewal fee equal to 1 and 1/2
times the normally required renewal fee.
(b)
A person whose license has been expired for more than 90
days but less than one year may renew the license by paying a late renewal
fee equal to two times the normally required renewal fee.
(c)
A person paying a late renewal fee is not required to pay
the normally required renewal fee.
(d)
Pursuant to Title 2, Occupations Code, §55.002, an
individual who fails to renew a license in a timely manner but is still within
the late renewal period is exempt from the requirement to pay a late renewal
fee if the individual furnishes to the department satisfactory documentation
that the individual failed to renew the license in a timely manner because
the individual was on active duty in the United States armed forces serving
outside this state. An individual who is exempt from paying a late renewal
fee under this subsection may renew the license by paying the normally required
renewal fee.
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 April 11, 2005.
TRD-200501499
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Effective date: May 1, 2005
Proposal publication date: January 7, 2005
For further information, please call: (512) 463-7348
16 TAC §66.80, §66.82
The Texas Department of Licensing and Regulation ("Department")
adopts amendments to existing rules at 16 Texas Administrative Code, §66.80
and §66.82 regarding fees in the registration of property tax consultants
program as published in the February 25, 2005, issue of the
Texas Register
(30 TexReg 995) without changes and will not be republished.
The amendments to §66.80 lower the original application fee for a
property tax consultant from $100 to $50 and the original application fee
for a senior property tax consultant from $150 to $75. The amendment to §66.82
lowers the fee for issuing a duplicate registration from $50 to $25. Texas
Occupations Code, §51.202 requires the Department to set fees in amounts
reasonable and necessary to cover the costs of administering programs under
its jurisdiction. The Department conducted its annual fee review pursuant
to §51.202 and recommended to the Texas Commission of Licensing and Regulation
("Commission") that the referenced fees be reduced as indicated. The revenue
generated by current fees exceeds the amount required by the Department to
cover costs of administering the property tax consultants program. On August
9, 2004, the Commission directed the Department to initiate the recommended
fee reductions.
The Department drafted and distributed the proposed rules to persons internal
and external to the agency. The proposed rules were published in the
The amendments are adopted under Texas Occupations Code, Chapter
1152 and Chapter 51, §§51.201, 51.202, and 51.203 which authorizes
the Department to adopt rules as necessary to implement this chapter and any
other law establishing a program regulated by the Department and which requires
the Commission to set fees in amounts reasonable and necessary to cover the
costs of administering Department programs.
The statutory provisions affected by the adoption are those set forth in
Texas Occupations Code, Chapter 1152 and Chapter 51. No other statutes, articles,
or codes are affected by the adoption.
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 April 11, 2005.
TRD-200501498
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Effective date: May 1, 2005
Proposal publication date: February 25, 2005
For further information, please call: (512) 463-7348
Part 4.
TEXAS DEPARTMENT OF LICENSING AND REGULATION
Chapter 66.
REGISTRATION OF PROPERTY TAX CONSULTANTS
Chapter 70.
INDUSTRIALIZED HOUSING AND BUILDINGS