TITLE economic-regulation

Part II. Public Utility Commission of Texas

Chapter 23. Substantive Rules

Subchapter H. Telephone

16 TAC §23.94

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Public Utility Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Public Utility Commission of Texas (commission) proposes the repeal of §23.94 of this title (relating to Small Local Exchange Carrier Regulatory Flexibility). Project Number 17709 has been assigned to this proceeding. Section 23.94 was created to implement the provisions of the Public Utility Regulatory Act (PURA), Chapter 53, Subchapter G. This subchapter gives small local exchange carriers the ability to use limited pricing flexibility. Elimination of §23.94 will in no way curtail a small local exchange carrier's ability to use the pricing flexibility available in Subchapter G. However, by acts of the 76th Legislature, Regular Session (1999) Senate Bill 560 makes broader pricing flexibility available to incumbent local exchange companies as of September 1, 1999. Therefore, because Senate Bill 560 makes broad pricing flexibility available, the provisions of Subchapter G are no longer attractive to small local exchange carriers and §23.94 is no longer necessary. The commission notes that §23.94 has been used little by the local exchange industry.

Charles Johnson, assistant general counsel, Office of Regulatory Affairs, has determined that for each year of the first five-year period the proposed repeal of this section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal.

Mr. Johnson has determined that for each year of the first five years the proposed repeal of this section is in effect the public benefit anticipated as a result of enforcing the repeal of this section will be elimination of a rule that created a lengthy and cumbersome procedure in comparison to the procedure set out in Senate Bill 560. There will be no effect on small businesses or micro-businesses as a result of enforcing the repeal of this section. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed.

Mr. Johnson has also determined that for each year of the first five years the proposed repeal is in effect there should be no affect on a local economy, and therefore no local employment impact statement is required under Administrative Procedure Act §2001.022.

Comments on the proposed repeal (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, within 30 days after publication. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the proposed repeal. The commission will consider the costs and benefits in deciding whether to adopt the repeal. All comments should refer to Project Number 17709.

This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction; and specifically, Senate Bill 560, 76th Legislature, Regular Session, (1999).

Cross-Index to Statutes: Public Utility Regulatory Act §14.002.

§23.94. Small Local Exchange Carrier Regulatory Flexibility.

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 July 22, 1999.

TRD-9904439

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 936-7308

Chapter 26. Substantive Rules Applicable to Telecommunications Service Providers

The Public Utility Commission of Texas (commission) proposes to amend §26.5, relating to Definitions, and proposes new §26.32, relating to Protection Against Unauthorized Billing Charges ("Cramming"). The proposed amendment adds four new definitions to the definition section. The proposed new rule will prevent telecommunications utility customers from being billed ("crammed") on their telecommunications bill for products and/or services they have not authorized. Project Number 21006 has been assigned to this proceeding.

The authority for promulgation of this rule derives from Senate Bill 86, §3, 76th Legislature, Regular Session (1999) (SB 86), adding new Chapter 17 to the Texas Utilities Code, Title 2, Subtitle A, specifically Chapter 17, Customer Protection, Subchapter D, Protection Against Unauthorized Charges, §§17.151, et seq.; Senate Bill 560, §55, 76th Legislature, Regular Session (1999) (SB 560), adding new Chapter 64 to Utilities Code, Title 2, Subtitle C, specifically Chapter 64, Customer Protection, Subchapter D, Protection Against Unauthorized Charges, §§64.151, et seq.; and the commission's continuing mandate to "protect the public interest." Further, the Public Utility Regulatory Act (PURA), §52.002, grants the commission "exclusive original jurisdiction over the business and property of a telecommunications utility in this state subject to the limitations imposed by this title."

The commission proposed an earlier version of this rule, §26.45, relating to Truth in Telecommunications Billing; Avoidance of Unauthorized Billing Charges ("Cramming"). In anticipation of and preparation for a new rule pertaining to "cramming," a workshop was conducted at the commission offices on November 24, 1997. After gathering information at the workshop and integrating the participants' input into a proposed rule, the earlier version of a "cramming" rule was published in the Texas Register on August 28, 1998 (23 TexReg 8784). The prior proposed new rule would also have prevented telecommunications utility customers from being billed ("crammed") on their telecommunications bill for products and/or services they had not authorized.

After all responses and reply comments were received and analyzed by commission staff, a public hearing was held at the commission's offices on October 28, 1998. Further information was gathered from this session and the final draft of the earlier proposal was submitted to the Commissioners for consideration at the Open Meeting on January 20, 1999. At that meeting Chairman Pat Wood, III, and Commissioner Judy Walsh determined that a rule should be postponed until the 76th Legislature had an opportunity to consider, deliberate, and enact a specific statute that would squarely address the issue of "cramming" and its prevention. Effective September 1, 1999, both SB 86 and SB 560 incorporate into PURA nearly identical new Chapter 17 and Chapter 64, both of which include a new Subchapter D, Protection Against Unauthorized Charges. The proposed rule that follows this preamble is a revision of the earlier version with changes that reflect the mandates and language of SB 86 and SB 560.

Jo Alene Kirkel, Director, Office of Customer Protection, has determined that for each year of the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Ms. Kirkel has determined that for each year of the first five years the proposed section is in effect the public benefit anticipated as a result of enforcing the section will be to prevent fraudulent, unfair, misleading, deceptive and anticompetitive practices in telecommunications utility billing for miscellaneous products and/or service charges. There will be no net effect on small businesses or micro-businesses as a result of enforcing this section. There may be an anticipated economic cost to persons who are required to comply with the section as proposed.

Ms. Kirkel has also determined that for each year of the first five years the proposed section is in effect there should be no effect on a local economy, and therefore no local impact statement is required under Administrative Procedure Act §2001.022.

The commission staff will conduct a public hearing on this rulemaking under Government Code §2001.029 at the commission's offices located in the William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701, on Tuesday, September 21, 1999, at 9:00 a.m. in the Commissioners' Hearing Room.

Comments on the proposed section (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication. Reply comments may be submitted within 40 days after publication. The commission invites specific comments regarding any costs associated with implementation of the proposed section. The commission will consider any costs as well as all other comments in deciding whether to revise the proposed section or adopt the proposed section as published. All comments should refer to Project Number 21006.

Subchapter A. General Provisions

16 TAC §26.5

This amendment is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and under SB 86 and SB 560.

Cross-Index to Statutes: Public Utility Regulatory Act §§14.002, 52.001 and 52.002.

§26.5.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1)-(14)

(No change.)

(15)

Billing agent - Any entity that submits charges to a billing telecommunications utility on behalf of itself or any service provider.

(16)

Billing telecommunications utility - Any telecommunications provider, as defined in §51.002 of the Public Utility Regulatory Act that issues a bill directly to a customer for any telecommunications product or service.

(17)

[ (15) ] Bit Error Ratio (BER) - The ratio of the number of bits received in error to the total number of bits transmitted in a given time interval.

(18)

[ (16) ] Bit Rate - The rate at which data bits are transmitted over a communications path, normally expressed in bits per second.

(19)

[ (17) ] Bona fide request - A written request to an incumbent local exchange company (ILEC) from a certificated telecommunications utility or an enhanced service provider, requesting that the ILEC unbundle its network/services to the extent ordered by the Federal Communications Commission. A bona fide request indicates an intent to purchase the service subject to the purchaser being able to obtain acceptable rates, terms, and conditions.

(20)

[ (18) ] Business service - A telecommunications service provided a customer where the use is primarily of a business, professional, institutional or otherwise occupational nature.

(21)

[ (19) ] Busy hour - The clock hour each day during which the greatest usage occurs.

(22)

[ (20) ] Busy season - That period of the year during which the greatest volume of traffic is handled in a switching office.

(23)

[ (21) ] Call aggregator - Any person or entity that owns or otherwise controls telephones intended to be utilized by the public, which control is evidenced by the authority to post notices on and/or unblock access at the telephone.

(24)

[ (22) ] Call splashing - Call transferring (whether caller-requested or operator service provider-initiated) that results in a call being rated and/or billed from a point different from that where the call originated.

(25)

[ (23) ] Call transferring - Handing off a call from one operator service provider (OSP) to another OSP.

(26)

[ (24) ] Caller identification materials (caller ID materials) - Any advertisements, educational materials, training materials, audio and video marketing devices, and any information disseminated about caller ID services.

(27)

[ (25) ] Caller identification service (caller ID service) - A service offered by a telecommunications provider that provides calling party information to a device capable of displaying the information.

(28)

[ (26) ] Calling area - The area within which telecommunications service is furnished to customers under a specific schedule of exchange rates. A "local" calling area may include more than one exchange area.

(29)

[ (27) ] Calling party information -

(A)

the telephone listing number and/or name of the customer from whose telephone instrument a telephone number is dialed; or

(B)

other information that may be used to identify the specific originating number or originating location of a wire or electronic communication transmitted by a telephone instrument.

(30)

[ (28) ] Capitalization - Long-term debt plus total equity.

(31)

[ (29) ] Carrier of choice - An option that allows an individual to choose an interexchange carrier for long distance calls made through Telecommunications Relay Service.

(32)

[ (30) ] Carrier-initiated change - A change in the telecommunications utility serving a customer that was initiated by the telecommunications utility to which the customer is changed, whether the switch is made because a customer did or did not respond to direct mail solicitation, telemarketing, or other actions initiated by the carrier.

(33)

[ (31) ] Central office - A switching unit in a telecommunications system which provides service to the general public, having the necessary equipment and operating arrangements for terminating and interconnecting customer lines and trunks or trunks only.

(34)

[ (32) ] Census block group (CBG) - A United States Census Bureau geographic designation that generally contains between 250 and 550 housing units.

(35)

[ (33) ] Certificated service area - The geographic area within which a company has been authorized to provide basic local telecommunications services pursuant to a certificate of convenience and necessity (CCN), a certificate of operating authority (COA), or a service provider certificate of operating authority (SPCOA) issued by the commission.

(36)

[ (34) ] Certificated telecommunications utility - A telecommunications utility that has been granted either a certificate of convenience and necessity (CCN), a certificate of operating authority (COA), or a service provider certificate of operating authority (SPCOA).

(37)

[ (35) ] Class of service or customer class - A description of utility service provided to a customer which denotes such characteristics as nature of use (business or residential) or type of rate (flat rate or message rate). Classes may be further subdivided into grades, denoting individual or multiparty line or denoting quality of service.

(38)

[ (36) ] Commission - The Public Utility Commission of Texas.

(39)

[ (37) ] Competitive exchange service - Any of the following services, when provided on an inter- or intrastate basis within an exchange area: central office based PBX-type services for systems of 75 stations or more; billing and collection services; (high speed private line services of 1.544 megabits or greater; customized services; private line and virtual private line services; resold or shared local exchange telephone services if permitted by tariff; dark fiber services; non- voice data transmission service when offered as a separate service and not as a component of basic local telecommunications service; dedicated or virtually dedicated access services; services for which a local exchange company has been granted authority to engage in pricing flexibility pursuant to §23.27 of this title (relating to Rate-Setting Flexibility); any service initially provided within an exchange after October 26, 1992, if first provided by an entity other than the incumbent local exchange company (companies) certificated to provide service within that exchange; and any other service the commission declares is not local exchange telephone service.

(40)

[ (38) ] Competitive services (CS) - Those services as defined in PURA §58.151, and any other service the commission subsequently categorizes as a competitive service.

(41)

[ (39) ] Completed call - a call that is answered by the called party.

(42)

[ (40) ] Complex service - The provision of a circuit requiring special treatment, special equipment, or special engineering design, including but not limited to private lines, WATS, PBX trunks, rotary lines, and special assemblies.

(43)

[ (41) ] Consumer good or service -

(A)

real property or tangible or intangible personal property that is normally used for personal, family, or household purposes, including personal property intended to be attached to or installed in any real property;

(B)

a cemetery lot;

(C)

a time-share estate; or

(D)

a service related to real or personal property.

(44)

[ (42) ] Consumer telephone call - An unsolicited call made to a residential telephone number to:

(A)

solicit a sale of a consumer good or service;

(B)

solicit an extension of credit for a consumer good or service; or

(C)

obtain information that will or may be used to directly solicit a sale of a consumer good or service or to extend credit for the sale.

(45)

[ (43) ] Cooperative - An incumbent local exchange company that is a cooperative corporation.

(46)

[ (44) ] Cooperative corporation -

(A)

An electric cooperative corporation organized and operating under the Electric Cooperative Corporation Act, Texas Utilities Code Annotated, Chapter 161, or a predecessor statute to Chapter 161 and operating under that chapter; or

(B)

A telephone cooperative corporation organized under the Telephone Cooperative Act, Texas Utilities Code, Chapter 162, or a predecessor statute to Chapter 162 and operating under that chapter.

(47)

[ (45) ] Corporate name - Has the meaning assigned by Texas Business Corporation Act, Article §2.05.

(48)

[ (46) ] Corporation - A domestic or foreign corporation, joint-stock company, or association, and each lessee, assignee, trustee, receiver or other successor in interest of the corporation, company, or association, that has any of the powers or privileges of a corporation not possessed by an individual or partnership. The term does not include a municipal corporation, except as expressly provided by the Public Utility Regulatory Act.

(49)

[ (47) ] Custom calling-type services - Call management services available from a central office switching system including, but not limited to, call forwarding, call waiting, caller ID, or automatic recall.

(50)

[ (48) ] Customer access line - A unit of measurement representing a telecommunications circuit or, in the case of ISDN, a telecommunications channel designated for a particular customer. One customer access line shall be counted for each circuit which is capable of generating usage on the line side of the switched network or a private line circuit, regardless of the quantity or ownership of customer premises equipment connected to each circuit. In the case of multiparty lines, each party shall be counted as a separate customer access line.

(51)

[ (49) ] Customer-initiated change - A change in the telecommunications utility serving a customer that is initiated by the customer and is not the result of direct mail solicitation, telemarketing, or other actions initiated by the carrier.

(52)

[ (50) ] Customer premises equipment (CPE) - Telephone terminal equipment located at a customer's premises. This does not include overvoltage protection equipment, inside wiring, coin-operated (or pay) telephones, "company-official" equipment, mobile telephone equipment, "911" equipment, equipment necessary for provision of communications for national defense, or multiplexing equipment used to deliver multiple channels to the customer.

(53)

[ (51) ] Customer proprietary network information (CPNI), customer- specific - Any information compiled about a customer by a telecommunications utility in the normal course of providing telephone service that identifies the customer by matching such information with the customer's name, address, or billing telephone number. This information includes, but is not limited to: line type(s), technical characteristics (e.g., rotary service), class of service, current telephone charges, long distance billing record, local service billing record, directory assistance charges, usage data, and calling patterns.

(54)

[ (52) ] Customer trouble report - Any oral or written report from a customer or user of telecommunications service received by any telecommunications utility relating to a physical defect, difficulty, or dissatisfaction with the service provided by the telecommunications utility's facilities. Each telephone or PBX switchboard position reported in trouble shall be counted as a separate report when several items are reported by one customer at the same time, unless the group of troubles so reported is clearly related to a common cause.

(55)

[ (53) ] dBrn - A unit used to express noise power relative to one Pico watt (-90 dBm).

(56)

[ (54) ] dBrnC - Noise power in dBrn, measured with C-message weighting.

(57)

[ (55) ] dBrnCO - Noise power in dBrnC referred to or measured at a zero transmission level point.

(58)

[ (56) ] D-Channel - The integrated-services-digital-network out-of-band signaling channel.

(59)

[ (57) ] Dedicated signaling transport - Transmission of out-of-band signaling information between an access customer's common channel signaling network and a certificated telecommunications utility's signaling transport point on facilities dedicated to the use of a single customer. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(60)

[ (58) ] Depreciation expenses - The charges based on the depreciation accrual rates designed to spread the cost recovery of the property over its economic life.

(61)

[ (59) ] Direct-trunked transport - Transmission of traffic between the serving wire center and another certificated telecommunications utility's office, without intermediate switching. It is charged on a flat-rate basis. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(62)

[ (60) ] Disconnection of telephone service - The event after which a customer's telephone number is deleted from the central office switch and databases.

(63)

[ (61) ] Discretionary services (DS) - Those services as defined in the Public Utility Regulatory Act §58.101, and any other service the commission subsequently categorizes as a discretionary service.

(64)

[ (62) ] Distance learning - Instruction, learning, and training that is transmitted from one site to one or more sites by telecommunications services that are used by an educational institution predominantly for such instruction, learning, or training--including: video, data, voice, and electronic information.

(65)

[ (63) ] Distribution lines - Those lines from which the end user may be provided direct service.

(66)

[ (64) ] Dominant carrier - A provider of a communication service provided wholly or partly over a telephone system who the commission determines has sufficient market power in a telecommunications market to control prices for that service in that market in a manner adverse to the public interest. The term includes a provider who provided local exchange telephone service within certificated exchange areas on September 1, 1995, as to that service and as to any other service for which a competitive alternative is not available in a particular geographic market. In addition with respect to:

(A)

intraLATA long distance message telecommunications service originated by dialing the access code "1-plus," the term includes a provider of local exchange telephone service in a certificated exchange area for whom the use of that access code for the origination of "1-plus" intraLATA calls in the exchange area is exclusive; and

(B)

interexchange services, the term does not include an interexchange carrier that is not a certificated local exchange company.

(67)

[ (65) ] Dominant certificated telecommunications utility (DCTU) - A certificated telecommunications utility that is also a dominant carrier. Unless clearly indicated otherwise, the rules applicable to a DCTU apply specifically to only those services for which the DCTU is dominant.

(68)

[ (66) ] Dual-party relay service - A service using oral and printed translations, by either a person or an automated device, between hearing- or speech-impaired individuals who use telecommunications devices for the deaf, computers, or similar automated devices, and others who do not have such equipment.

(69)

[ (67) ] Educational institution - Accredited primary or secondary schools owned or operated by state and local government entities or by private entities; institutions of higher education as defined by the Education Code, §61.003(13); the Texas Education Agency, its successors and assigns; regional education service centers established and operated pursuant to the Education Code, Chapter 8; and the Texas Higher Education Coordinating Board, its successors and assigns.

(70)

[ (68) ] Electing local exchange company (LEC) - A certificated telecommunications utility electing to be regulated under the terms of the Public Utility Regulatory Act, Chapter 58.

(71)

[ (69) ] Electric utility -

(A)

A person or river authority that owns or operates for compensation in this state equipment or facilities to produce, generate, transmit, distribute, sell, or furnish electricity in this state. The term includes a lessee, trustee, or receiver of an electric utility and a recreational vehicle park owner who does not comply with Texas Utilities Code, Chapter 184, Subchapter C, with regard to the metered sale of electricity at the recreational vehicle park. The term does not include:

(i)

a municipal corporation;

(ii)

a qualifying facility;

(iii)

an exempt wholesale generator;

(iv)

a power marketer;

(v)

a corporation described by Public Utility Regulatory Act §32.053 to the extent the corporation sells electricity exclusively at wholesale and not to the ultimate consumer; or

(vi)

a person not otherwise an electric utility who:

(I)

furnishes an electric service or commodity only to itself, its employees, or its tenants as an incident of employment or tenancy, if that service or commodity is not resold to or used by others;

(II)

owns or operates in this state equipment or facilities to produce, generate, transmit, distribute, sell or furnish electric energy to an electric utility, if the equipment or facilities are used primarily to produce and generate electric energy for consumption by that person; or

(III)

owns or operates in this state a recreational vehicle park that provides metered electric service in accordance with Texas Utilities Code, Chapter 184, Subchapter C.

(B)

With respect to transmission service and ancillary service, the term includes municipally owned utilities and river authorities that are not otherwise subject to the commission's ratesetting authority.

(72)

[ (70) ] Element - Unbundled network elements, including: interconnection, physical-collocation, and virtual-collocation elements.

(73)

[ (71) ] Eligible telecommunications provider (ETP) service area - The geographic area, determined by the commission, containing high cost rural areas which are eligible for Texas Universal Service Funds support under §23.133 or §23.134 of this title (relating to Texas High Cost Universal Service Plan (THCUSP) and Small and Rural Incumbent Local Exchange Company (ILEC) Universal Service Plan).

(74)

[ (72) ] Embedded customer premises equipment - All customer premises equipment owned by a telecommunications utility, including inventory, which was tariffed or subject to the separations process of January 1, 1983.

(75)

[ (73) ] End user choice - A system that allows the automatic routing of interexchange, operator-assisted calls to the billed party's chosen carrier without the use of access codes.

(76)

[ (74) ] Enhanced service provider - A company that offers computer- based services over transmission facilities to provide the customer with value- added telephone services.

(77)

[ (75) ] Entrance facilities - The transmission path between the access customer's (such as an interexchange carrier's) point of demarcation and the serving wire center.

(78)

[ (76) ] Equal access -Access which is equal in type, quality and price to Feature Group C, and which has unbundled rates. From an end user's perspective, equal access is characterized by the availability of "1-plus" dialing with the end user's carrier of choice.

(79)

[ (77) ] Equipment distribution program (EDP) - Program to assist individuals who are deaf or hard of hearing or who have an impairment of speech to purchase specialized telecommunications devices for telephone service access, authorized by 1997 Texas General Laws Chapter 149, to be jointly administered by the commission and the Texas Commission for the Deaf and Hard of Hearing.

(80)

[ (78) ] Equipment distribution program (EDP) voucher - a voucher issued by Texas Commission for the Deaf and Hard of Hearing under the equipment distribution program, in accordance with its rules, that an eligible individual may use to acquire eligible specialized telecommunications devices from a vendor of such equipment.

(81)

[ (79) ] Exchange area - The geographic territory delineated as an exchange area by official commission boundary maps. An exchange area usually embraces a city or town and its environs. There is usually a uniform set of charges for telecommunications service within the exchange area. An exchange area may be served by more than one central office and/or one certificated telephone utility. An exchange area may also be referred to as an exchange.

(82)

[ (80) ] Expenses - Costs incurred in the provision of services that are expensed, rather than capitalized, in accordance with the Uniform System of Accounts applicable to the carrier.

(83)

[ (81) ] Experimental service - A new service that is proposed to be offered on a temporary basis for a specified period not to exceed one year from the date the service is first provided to any customer.

(84)

[ (82) ] Extended area service (EAS) - A telephone switching and trunking arrangement which provides for optional calling service by dominant certificated telecommunications utilities within a local access and transport area and between two contiguous exchanges or between an exchange and a contiguous metropolitan exchange local calling area. For purposes of this definition, a metropolitan exchange local calling area shall include all exchanges having local or mandatory EAS calling throughout all portions of any of the following exchanges: Austin metropolitan exchange, Corpus Christi metropolitan exchange, Dallas metropolitan exchange, Fort Worth metropolitan exchange, Houston metropolitan exchange, San Antonio metropolitan exchange, or Waco metropolitan exchange. EAS is provided at rate increments in addition to local exchange rates, rather than at toll message charges.

(85)

[ (83) ] Extended local calling service (ELCS) - Service provided pursuant to §23.49(c) of this title (relating to Telephone Extended Area Service and Expanded Toll-free Local Calling Areas).

(86)

[ (84) ] Facilities - All the plant and equipment of a public utility, including all tangible and intangible real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished, or supplied for, by, or in connection with the business of any public utility, including any construction work in progress allowed by the commission.

(87)

[ (85) ] Facilities-based provider - A telecommunications provider that provides telecommunications services using facilities that it owns or leases or a combination of facilities that it owns and leases, including unbundled network elements.

(88)

[ (86) ] Foreign exchange (FX) - exchange service furnished by means of a circuit connecting a customer's station to a primary serving office of another exchange.

(89)

[ (87) ] Foreign serving office (FSO) - Exchange service furnished by means of a circuit connecting a customer's station to a serving office of the same exchange but outside of the serving office area in which the station is located.

(90)

[ (88) ] Forward-looking common costs - Economic costs efficiently incurred in providing a group of elements or services that cannot be attributed directly to individual elements or services.

(91)

[ (89) ] Forward-looking economic cost - The sum of the total element long-run incremental cost of an element and a reasonable allocation of its forward-looking common costs.

(92)

[ (90) ] Forward-looking economic cost per unit - The forward-looking economic cost of the element as defined in this section, divided by a reasonable projection of the sum of the total number of units of the element that the dominant certificated telephone utility (DCTU) is likely to provide to requesting telecommunications carriers and the total number of units of the element that the DCTU is likely to use in offering its own services, during a reasonable time period.

(93)

[ (91) ] Geographic scope - The geographic area in which the holder of a Certificate of Operating Authority or of a Service Provider Certificate of Operating Authority is authorized to provide service.

(94)

[ (92) ] Grade of service - The number of customers a line is designated to serve.

(95)

[ (93) ] Hearing - Any proceeding at which evidence is taken on the merits of the matters at issue, not including prehearing conferences.

(96)

[ (94) ] Hearing carryover - A technology that allows an individual who is speech-impaired to hear the other party in a telephone conversation and to use specialized telecommunications devices to send communications through the telecommunications relay service operator.

(97)

[ (95) ] High cost area - A geographic area for which the costs established using a forward-looking economic cost methodology exceed the benchmark levels established by the commission.

(98)

[ (96) ] High cost assistance (HCA) - A program administered by the commission in accordance with the provisions of §23.133 of this title (relating to Texas High Cost Universal Service Plan (THCUSP).

(99)

[ (97) ] Identity - The name, address, telephone number, and/or facsimile number of a person, whether natural, partnership, municipal corporation, cooperative corporation, corporation, association, governmental subdivision, or state agency and the relationship of the person to the entity being represented.

(100)

[ (98) ] Impulse noise - Any momentary occurrence of the noise on a channel significantly exceeding the normal noise peaks. It is evaluated by counting the number of occurrences that exceed a threshold. This noise degrades voice and data transmission.

(101)

[ (99) ] Incumbent local exchange company (ILEC) - A local exchange company that had a certificate of convenience and necessity on September 1, 1995.

(102)

[ (100) ] Information sharing program - Instruction, learning, and training that is transmitted from one site to one or more sites by telecommunications services that are used by a library predominantly for such instruction, learning, or training, including video, data, voice, and electronic information.

(103)

[ (101) ] Integrated services digital network (ISDN) - a digital network architecture that provides a wide variety of communications services, a standard set of user-network messages, and integrated access to the network. Access methods to the ISDN are the Basic Rate Interface (BRI) and the Primary Rate Interface (PRI).

(104)

[ (102) ] Interactive multimedia communications - Real-time, two-way, interactive voice, video, and data communications conducted over networks that link geographically dispersed locations. This definition includes interactive communications within or between buildings on the same campus or library site.

(105)

[ (103) ] Intercept service - A service arrangement provided by the local exchange carrier whereby calls placed to a disconnected or discontinued telephone number are intercepted and the calling party is informed by an operator or by a recording that the called telephone number has been disconnected, discontinued, changed to another number, or otherwise is not in service.

(106)

[ (104) ] Interconnection - Generally means: The point in a network where a customer's transmission facilities interface with the dominant carrier's network under the provisions of this section. More particularily it means: The termination of local traffic (including basic telecommunications service as delineated in §24.32 of this title (Relating to Universal Service) or integrated services digital network (ISDN) as defined in this section and/or extended area service/extended local calling service traffic of a certificated telephone utility (CTU) using the local access lines of another CTU, as described in section §23.97(d)(4)(A)(i) of this title (relating to Interconnection). Interconnection shall include non-discriminatory access to signaling systems, databases, facilities and information as required to ensure interoperability of networks and efficient, timely provision of services to customers without permitting access to network proprietary information or customer proprietary network information, as defined in §23.57 of this title (relating to Telecommunications Privacy), unless otherwise permitted in §23.97 of this title.

(107)

[ (105) ] Interconnector - A customer that interfaces with the dominant carrier's network under the provisions of §23.92 of this title (relating to Expanded Interconnection).

(108)

[ (106) ] Interexchange carrier (IXC) - A carrier providing any means of transporting intrastate telecommunications messages between local exchanges, but not solely within local exchanges, in the State of Texas. The term may include a certificated telecommunications utility (CTU) or CTU affiliate to the extent that it is providing such service. An entity is not an IXC solely because of:

(A)

the furnishing, or furnishing and maintenance of a private system;

(B)

the manufacture, distribution, installation, or maintenance of customer premises equipment;

(C)

the provision of services authorized under the FCC's Public Mobile Radio Service and Rural Radio Service rules; or

(D)

the provision of shared tenant service.

(109)

[ (107) ] Interoffice trunks - Those communications circuits which connect central offices.

(110)

[ (108) ] IntraLATA equal access - The ability of a caller to complete a toll call in a local access and transport area (LATA) using his or her provider of choice by dialing "1" or "0" plus an area code and telephone number.

(111)

[ (109) ] Intrastate - Refers to communications which both originate and terminate within Texas state boundaries.

(112)

[ (110) ] Least cost technology - The technology, or mix of technologies, that would be chosen in the long run as the most economically efficient choice. The choice of least cost technologies, however, shall:

(A)

be restricted to technologies that are currently available on the market and for which vendor prices can be obtained;

(B)

be consistent with the level of output necessary to satisfy current demand levels for all services using the basic network function in question; and

(C)

be consistent with overall network design and topology requirements.

(113)

[ (111) ] License - The whole or part of any commission permit, certificate, approval, registration, or similar form of permission required by law.

(114)

[ (112) ] Licensing - The commission process respecting the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.

(115)

[ (113) ] Lifeline Service - A program certified by the Federal Communications Commission to provide for the reduction or waiver of the federal subscriber line charge for residential consumers.

(116)

[ (114) ] Line - A circuit or channel extending from a central office to the customer's location to provide telecommunications service. One line may serve one customer, or all customers served by a multiparty line.

(117)

[ (115) ] Local access and transport area (LATA) - A geographic area established for the provision and administration of communications service. It encompasses one or more designated exchanges, which are grouped to serve common social, economic and other purposes. For purposes of these rules, market areas, as used and defined in the Modified Final Judgment and the GTE Final Judgment, are encompassed in the term local access and transport area.

(118)

[ (116) ] Local call - A call within the certificated telephone utility's toll- free calling area including calls which are made toll-free through a mandatory extended area service (EAS) or expanded local calling (ELC) proceeding.

(119)

[ (117) ] Local calling area - The area within which telecommunications service is furnished to customers under a specific schedule of exchange rates. A local calling area may include more than one exchange area.

(120)

[ (118) ] Local exchange company (LEC) - A telecommunications utility that has been granted either a certificate of convenience and necessity or a certificate of operating authority to provide local exchange telephone service, basic local telecommunications service, or switched access service within the state. A local exchange company is also referred to as a local exchange carrier.

(121)

[ (119) ] Local exchange telephone service or local exchange service - A telecommunications service provided within an exchange to establish connections between customer premises within the exchange, including connections between a customer premises and a long distance provider serving the exchange. The term includes tone dialing service, service connection charges, and directory assistance services offered in connection with basic local telecommunications service and interconnection with other service providers. The term does not include the following services, whether offered on an intraexchange or interexchange basis:

(A)

central office based PBX-type services for systems of 75 stations or more;

(B)

billing and collection services;

(C)

high-speed private line services of 1.544 megabits or greater;

(D)

customized services;

(E)

private line or virtual private line services;

(F)

resold or shared local exchange telephone services if permitted by tariff;

(G)

dark fiber services;

(H)

non-voice data transmission service offered as a separate service and not as a component of basic local telecommunications service;

(I)

dedicated or virtually dedicated access services;

(J)

a competitive exchange service; or

(K)

any other service the commission determines is not a "local exchange telephone service."

(122)

[ (120) ] Local message - A completed call between customer access lines located within the same local calling area.

(123)

[ (121) ] Local message charge - The charge that applies for a completed telephone call that is made when the calling customer access line and the customer access line to which the connection is established are both within the same local calling area, and a local message charge is applicable.

(124)

[ (122) ] Local service charge - The charge for furnishing facilities to enable a customer to send or receive telecommunications within the local calling area. This local calling area may include more than one exchange area.

(125)

[ (123) ] Local telecommunications traffic -

(A)

Telecommunications traffic between a dominant certificated telecommunications utility (DCTU) and a telecommunications carrier other than a commercial mobile radio service (CMRS) provider that originates and terminates within the mandatory single or multi-exchange local calling area of a DCTU including the mandatory extended area service (EAS) areas served by the DCTU; or

(B)

Telecommunications traffic between a DCTU and a CMRS provider that, at the beginning of the call, originates and terminates within the same major trading area.

(126)

[ (124) ] Long distance telecommunications service - That part of the total communication service rendered by a telecommunications utility which is furnished between customers in different local calling areas in accordance with the rates and regulations specified in the utility's tariff.

(127)

[ (125) ] Long run - A time period long enough to be consistent with the assumption that the company is in the planning stage and all of its inputs are variable and avoidable.

(128)

[ (126) ] Long run incremental cost (LRIC) - The change in total costs of the company of producing an increment of output in the long run when the company uses least cost technology. The LRIC should exclude any costs that, in the long run, are not brought into existence as a direct result of the increment of output.

(129)

[ (127) ] Mandatory minimum standards - The standards established by the Federal Communications Commission, outlining basic mandatory telecommunication relay services.

(130)

[ (128) ] Meet point billing - An access billing arrangement for services to access customers when local transport is jointly provided by more than one certificated telecommunications utility. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(131)

[ (129) ] Message - A completed customer telephone call.

(132)

[ (130) ] Message rate service - A form of local exchange service under which all originated local messages are measured and charged for in accordance with the utility's tariff.

(133)

[ (131) ] Minor change - A change, including the restructuring of rates of existing services, that decreases the rates or revenues of the small local exchange company (SLEC) or that, together with any other rate or proposed or approved tariff changes in the 12 months preceding the date on which the proposed change will take effect, results in an increase of the SLEC's total regulated intrastate gross annual revenues by not more than 5.0%. Further, with regard to a change to a basic local access line rate, a minor change may not, together with any other change to that rate that went into effect during the 12 months preceding the proposed effective date of the proposed change, result in an increase of more than 10%.

(134)

[ (132) ] Municipality - A city, incorporated village, or town, existing, created, or organized under the general, home rule, or special laws of the state.

(135)

[ (133) ] National integrated services digital network (ISDN) - the standards and services promulgated for integrated services digital network by Bellcore.

(136)

[ (134) ] Negotiating party - A certificated telecommunications utility (CTU) or other entity with which a requesting CTU seeks to interconnect in order to complete all telephone calls made by or placed to a customer of the requesting CTU.

(137)

[ (135) ] New service - Any service not offered on a tariffed basis prior to the date of the application relating to such service and specifically excludes basic local telecommunications service including local measured service. If a proposed service could serve as an alternative or replacement for a service offered prior to the date of the new-service application and does not provide significant improvements (other than price) over, or significant additional services not available under, a service offered prior to the date of such application, it shall not be considered a new service.

(138)

[ (136) ] Non-discriminatory - Type of treatment that is not less favorable than that an interconnecting certificated telecommunications utility (CTU) provides to itself or its affiliates or other CTUs.

(139)

[ (137) ] Non-dominant certificated telecommunications utility (NCTU) - A certificated telecommunications utility (CTU) that is not a dominant certificated telecommunications utility (DCTU) and has been granted a certificate of convenience and necessity (CCN) (after September 1, 1995, in an area already certificated to a DCTU), a certificate of operating authority (COA), or a service provider certificate of operating authority (SPCOA) to provide local exchange service.

(140)

[ (138) ] Nondominant carrier -

(A)

An interexchange telecommunications carrier (including a reseller of interexchange telecommunications services).

(B)

Any of the following that is not a dominant carrier:

(i)

a specialized communications common carrier;

(ii)

any other reseller of communications;

(iii)

any other communications carrier that conveys, transmits, or receives communications in whole or in part over a telephone system; or

(iv)

a provider of operator services that is not also a subscriber.

(141)

[ (139) ] Open network architecture - The overall design of an incumbent local exchange company's (ILEC's) network facilities and services to permit all users of the network, including the enhanced services operations of an ILEC and its competitors, to interconnect to specific basic network functions on an unbundled and non-discriminatory basis.

(142)

[ (140) ] Operator service - Any service using live operator or automated operator functions for the handling of telephone service, such as local collect, toll calling via collect, third number billing, credit card, and calling card services. The transmission of "1-800" and "1-888" numbers, where the called party has arranged to be billed, is not operator service.

(143)

[ (141) ] Operator service provider (OSP) - Any person or entity that provides operator services by using either live or automated operator functions. When more than one entity is involved in processing an operator service call, the party setting the rates shall be considered to be the OSP. However, subscribers to customer-owned pay telephone service shall not be deemed to be OSPs.

(144)

[ (142) ] Originating line screening (OLS) - A two digit code passed by the local switching system with the automatic number identification (ANI) at the beginning of a call that provides information about the originating line.

(145)

[ (143) ] Out-of-service trouble report - An initial customer trouble report in which there is complete interruption of incoming or outgoing local exchange service. On multiple line services a failure of one central office line or a failure in common equipment affecting all lines is considered out of service. If an extension line failure does not result in the complete inability to receive or initiate calls, the report is not considered to be out of service.

(146)

[ (144) ] Partial deregulation - The ability of a cooperative to offer new services on an optional basis and/or change its rates and tariffs under the provisions of the Public Utility Regulatory Act, §§53.351 - 53.359.

(147)

[ (145) ] Pay-per-call-information services - Services that allow a caller to dial a specified 1-900-XXX-XXXX or 976-XXXX number. Such services routinely deliver, for a predetermined (sometimes time-sensitive) fee, a pre- recorded or live message or interactive program. Usually a telecommunications utility will transport the call and bill the end-user on behalf of the information provider.

(148)

[ (146) ] Pay telephone access service (PTAS) - A service offered by a certificated telecommunications utility which provides a two-way, or optionally, a one-way originating-only business access line composed of the serving central office line equipment, all outside plant facilities needed to connect the serving central office with the customer premises, and the network interface; this service is sold to pay telephone service providers.

(149)

[ (147) ] Pay telephone service (PTS) - A telecommunications service utilizing any coin, coinless, credit card reader, or cordless instrument that can be used by members of the general public, or business patrons, employees, and/or visitors of the premise's owner, provided that the end user pays for local or toll calls from such instrument on a per call basis. Pay per call telephone service provided to inmates of confinement facilities is PTS. For purposes of this section, coinless telephones provided in guest rooms by a hotel/motel are not pay telephones. A telephone that is primarily used by business patrons, employees, and/or visitors of the premise's owner is not a pay telephone if all local calls and "1-800" and "1-888" type calls from such telephone are free to the end user.

(150)

[ (148) ] Per-call blocking - A telecommunications service provided by a telecommunications provider that prevents the transmission of calling party information to a called party on a call-by-call basis.

(151)

[ (149) ] Per-line blocking - A telecommunications service provided by a telecommunications utility that prevents the transmission of calling party information to a called party on every call, unless the calling party acts affirmatively to release calling party information.

(152)

[ (150) ] Percent interstate usage (PIU) - An access customer-specific ratio or ratios determined by dividing interstate access minutes by total access minutes. The specific ratio shall be determined by the certificated telecommunications utility (CTU) unless the CTU's network is incapable of determining the jurisdiction of the access minutes. A PIU establishes the jurisdiction of switched access usage for determining rates charged to switched access customers and affects the allocation of switched access revenue and costs by CTUs between the interstate and intrastate jurisdictions. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(153)

[ (151) ] Person - Any natural person, partnership, municipal corporation, cooperative corporation, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.

(154)

[ (152) ] Pleading - A written document submitted by a party, or a person seeking to participate in a proceeding, setting forth allegations of fact, claims, requests for relief, legal argument, and/or other matters relating to a proceeding.

(155)

[ (153) ] Prepaid local telephone service (PLTS) - Prepaid local telephone service means:

(A)

voice grade dial tone residential service consisting of flat rate service or local measured service, if chosen by the customer and offered by the dominant certificated telecommunications utility (DCTU);

(B)

if applicable, mandatory services, including extended area service, extended metropolitan service, or expanded local calling service;

(C)

tone dialing service;

(D)

access to 911 service;

(E)

access to dual party relay service;

(F)

the ability to report service problems seven days a week;

(G)

access to business office;

(H)

primary directory listing;

(I)

toll blocking service; and

(J)

non-published service and non-listed service at the customer's option.

(156)

[ (154) ] Premises - A tract of land or real estate including buildings and other appurtenances thereon.

(157)

[ (155) ] Pricing flexibility - Discounts and other forms of pricing flexibility may not be preferential, prejudicial, or discriminatory. Pricing flexibility includes:

(A)

customer specific contracts;

(B)

volume, term, and discount pricing;

(C)

zone density pricing;

(D)

packaging of services; and

(E)

other promotional pricing flexibility.

(158)

[ (156) ] Primary interexchange carrier (PIC) - The provider chosen by a customer to carry that customer's toll calls.

(159)

[ (157) ] Primary interexchange carrier (PIC) freeze indicator - An indicator that the end user has directed the certificated telecommunications utility to make no changes in the end user's PIC.

(160)

[ (158) ] Primary rate interface (PRI) integrated services digital network (ISDN) - One of the access methods to ISDN, the 1.544-Mbps PRI comprises either twenty-three 64 Kbps B-channels and one 64 Kbps D-channel (23B+D) or twenty-four 64 Kbps B-channels (24B) when the associated call signaling is provided by another PRI in the group.

(161)

[ (159) ] Primary service - The initial provision of voice grade access between the customer's premises and the switched telecommunications network. This includes the initial connection to a new customer or the move of an existing customer to a new premises but does not include complex services.

(162)

[ (160) ] Print translations - The temporary storage of a message in an operator's screen during the actual process of relaying a conversation.

(163)

[ (161) ] Privacy issue - An issue that arises when a telecommunications provider proposes to offer a new telecommunications service or feature that would result in a change in the outflow of information about a customer. The term privacy issue is to be construed broadly. It includes, but is not limited to, changes in the following:

(A)

the type of information about a customer that is released;

(B)

the customers about whom information is released;

(C)

the entity or entities to whom the information about a customer is released;

(D)

the technology used to convey the information;

(E)

the time at which the information is conveyed; and

(F)

any other change in the collection, use, storage, or release of information.

(164)

[ (162) ] Private line - A transmission path that is dedicated to a customer and that is not connected to a switching facility of a telecommunications utility, except that a dedicated transmission path between switching facilities of interexchange carriers shall be considered a private line.

(165)

[ (163) ] Proceeding - A hearing, investigation, inquiry, or other procedure for finding facts or making a decision. The term includes a denial of relief or dismissal of a complaint. It may be rulemaking or nonrulemaking; rate setting or non-rate setting.

(166)

[ (164) ] Promotional rate - A temporary tariff, fare, toll, rental or other compensation charged by a certificated telecommunications utility (DCTU) to new or new and existing customers and designed to induce customers to test a service. A promotional rate shall incorporate a reduction or a waiver of some rate element in the tariffed rates of the service, or a reduction or waiver of the service's installation charge and/or service connection charges, and shall not incorporate any charge for discontinuance of the service by the customer. Such rates may not be offered for basic local telecommunications service, including local measured service.

(167)

[ (165) ] Provider of pay telephone service - The entity that purchases pay telephone access service (PTAS) from a certificated telecommunications utility (CTU) and registers with the Public Utility Commission as a provider of pay telephone service (PTS) to end users.

(168)

[ (166) ] Public utility or utility - A person or river authority that owns or operates for compensation in this state equipment or facilities to convey, transmit, or receive communications over a telephone system as a dominant carrier. The term includes a lessee, trustee, or receiver of any of those entities, or a combination of those entities. The term does not include a municipal corporation. A person is not a public utility solely because the person:

(A)

furnishes or furnishes and maintains a private system;

(B)

manufactures, distributes, installs, or maintains customer premise communications equipment and accessories; or

(C)

furnishes a telecommunications service or commodity only to itself, its employees, or its tenants as an incident of employment or tenancy, if that service or commodity is not resold to or used by others.

(169)

[ (167) ] Public Utility Regulatory Act (PURA) - The enabling statute for the Public Utility Commission of Texas, located in the Texas Utilities Code Annotated, §§11.001 - 63.063, (Vernon 1998).

(170)

[ (168) ] Qualifying low-income consumer - A consumer that participates in one of the following programs: Medicaid, food stamps, Supplemental Security Income, federal public housing assistance, or Low-Income Home Energy Assistance Program.

(171)

[ (169) ] Qualifying services -

(A)

residential flat rate basic local exchange service;

(B)

residential local exchange access service; and

(C)

residential local area calling usage.

(172)

[ (170) ] Rate - Includes:

(A)

any compensation, tariff, charge, fare, toll, rental, or classification that is directly or indirectly demanded, observed, charged, or collected by a public utility for a service, product, or commodity, described in the definition of utility in the Public Utility Regulatory Act §§31.002 or 51.002; and

(B)

a rule, practice, or contract affecting the compensation, tariff, charge, fare, toll, rental, or classification.

(173)

[ (171) ] Reciprocal compensation - An arrangement between two carriers in which each of the two carriers receives compensation from the other carrier for the transport and termination on each carrier's network facilities of local telecommunications traffic that originates on the network facilities of the other carrier.

(174)

[ (172) ] Reclassification area - The geographic area within the electing ILEC's territory, consisting of one or more exchange areas, for which it seeks reclassification of a service.

(175)

[ (173) ] Redirect the call - A procedure used by operator service providers (OSPs) that transmits a signal back to the originating telephone instrument that causes the instrument to disconnect the OSP's connection and to redial the digits originally dialed by the caller directly to the local exchange carrier's network.

(176)

[ (174) ] Regulatory authority - In accordance with the context where it is found, either the commission or the governing body of a municipality.

(177)

[ (175) ] Relay Texas Advisory Committee (RTAC) - The committee authorized by the Public Utility Regulatory Act, §56.110 and 1997 Texas General Laws Chapter 149.

(178)

[ (176) ] Relay Texas - The name by which telecommunications relay service in Texas is known.

(179)

[ (177) ] Relay Texas administrator - The individual employed by the commission to oversee the administration of statewide telecommunications relay service.

(180)

[ (178) ] Repeated trouble report - A customer trouble report regarding a specific line or circuit occurring within 30 days or one calendar month of a previously cleared trouble report on the same line or circuit.

(181)

[ (179) ] Residual charge - The per-minute charge designed to account for historical contribution to joint and common costs made by switched transport services.

(182)

[ (180) ] Retail service - A telecommunications service is considered a retail service when it is provided to residential or business end users and the use of the service is other than resale. Each tariffed or contract offering which a customer may purchase to the exclusion of other offerings shall be considered a service. For example: the various mileage bands for standard toll services are rate elements, not services; however, individual optional calling plans that can be purchased individually and which are offered as alternatives to each other are services, not rate elements.

(183)

[ (181) ] Return-on-assets - After-tax net operating income divided by total assets.

(184)

[ (182) ] Reversal of partial deregulation - The ability of a minimum of 10% of the members of a partially deregulated cooperative to request, in writing, that a vote be conducted to determine whether members prefer to reverse partial deregulation. Ten percent shall be calculated based upon the total number of members of record as of the calendar month preceding receipt of the request from members for reversal of partial deregulation.

(185)

[ (183) ] Rule - A statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of the commission. The term includes the amendment or repeal of a prior rule but does not include statements concerning only the internal management or organization of the commission and not affecting private rights or procedures.

(186)

[ (184) ] Rulemaking proceeding - A proceeding conducted pursuant to the Administrative Procedure Act, Texas Government Code, §§2001.021 - 2001.037 to adopt, amend, or repeal a commission rule.

(187)

[ (185) ] Rural incumbent local exchange company (ILEC) - An ILEC that qualifies as a "rural telephone company" as defined in 47 United States Code §3(37) and/or 47 United States Code §251(f)(2).

(188)

[ (186) ] Selective routing - The feature provided with 311 service by which 311 calls are automatically routed to the 311 answering point for serving the place from which the call originates.

(189)

[ (187) ] Separation - The division of plant, revenues, expenses, taxes, and reserves applicable to exchange or local service if these items are used in common to provide public utility service to both local exchange telephone service and other service, such as interstate or intrastate toll service.

(190)

[ (188) ] Service - Has its broadest and most inclusive meaning. The term includes any act performed, anything supplied, and any facilities used or supplied by a public utility in the performance of the utility's duties under the Public Utility Regulatory Act to its patrons, employees, other public utilities, and the public. The term also includes the interchange or facilities between two or more public utilities. The term does not include the printing, distribution, or sale of advertising in a telephone directory.

(191)

[ (189) ] Service connection charge - A charge designed to recover the costs of non-recurring activities associated with connection of local exchange telephone service.

(192)

Service provider - Any entity that offers a product or service to a customer and that directly or indirectly charges to or collects from a customer's bill an amount for the product or service on a customer's bill received from a billing telecommunications utility.

(193)

[ (190) ] Service provider certificate of operating authority (SPCOA) reseller - A holder of a service provider certificate of operating authority that uses only resold telecommunications services provided by an incumbent local exchange company (ILEC) or by a certificate of operating authority (COA) holder or by a service provider certificate of operating authority (SPCOA) holder.

(194)

[ (191) ] Service restoral charge - A charge applied by the DCTU to restore service to a customer's telephone line after it has been suspended by the DCTU.

(195)

[ (192) ] Serving wire center (SWC) - The certificated telecommunications utility designated central office which serves the access customer's point of demarcation. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(196)

[ (193) ] Signaling for tandem switching - The carrier identification code (CIC) and the OZZ code or equivalent information needed to perform tandem switching functions. The CIC identifies the interexchange carrier and the OZZ digits identify the call type and thus the interexchange carrier trunk to which traffic should be routed.

(197)

[ (194) ] Small certificated telecommunications utility (CTU) - A CTU with fewer than 2.0% of the nation's subscriber lines installed in the aggregate nationwide.

(198)

[ (195) ] Small local exchange company (SLEC) - Any incumbent certificated telecommunications utility as of September 1, 1995, that has fewer than 31,000 access lines in service in this state, including the access lines of all affiliated incumbent local exchange companies within the state, or a telephone cooperative organized pursuant to the Telephone Cooperative Act, Texas Utilities Code Annotated, Chapter 162.

(199)

[ (196) ] Small incumbent local exchange company (Small ILEC) - An incumbent local exchange company that is a cooperative corporation or has, together with all affiliated incumbent local exchange companies, fewer than 31,000 access lines in service in Texas.

(200)

[ (197) ] Spanish speaking person - a person who speaks any dialect of the Spanish language exclusively or as their primary language.

(201)

[ (198) ] Special access - A transmission path connecting customer designated premises to each other either directly or through a hub or hubs where bridging, multiplexing or network reconfiguration service functions are performed and includes all exchange access not requiring switching performed by the dominant carrier's end office switches.

(202)

[ (199) ] Stand-alone costs - The stand-alone costs of an element or service are defined as the forward-looking costs that an efficient entrant would incur in providing only that element or service.

(203)

[ (200) ] Station - A telephone instrument or other terminal device.

(204)

[ (201) ] Study area - An incumbent local exchange company's (ILEC's) existing service area in a given state.

(205)

[ (202) ] Supplemental services - Telecommunications features or services offered by a certificated telecommunications utility for which analogous services or products may be available to the customer from a source other than a dominant certificated telecommunications utility. Supplemental services shall not be construed to include optional extended area calling plans that a dominant certificated telecommunications utility may offer pursuant to §23.49 of this title (relating to Telephone Extended Area Service (EAS) and Expanded Toll-free Local Calling Area), or pursuant to a final order of the commission in a proceeding pursuant to the Public Utility Regulatory Act, Chapter 53. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(206)

[ (203) ] Suspension of service - That period during which the customer's telephone line does not have dial tone but the customer's telephone number is not deleted from the central office switch and databases.

(207)

[ (204) ] Switched access - Access service that is provided by certificated telecommunications utilities (CTUs) to access customers and that requires the use of CTU network switching or common line facilities generally, but not necessarily, for the origination or termination of interexchange calls. Switched access includes all forms of transport provided by the CTU over which switched access traffic is delivered. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(208)

[ (205) ] Switched access demand - Switched access minutes of use, or other appropriate measure where not billed on a minute of use basis, for each switched access rate element, normalized for out of period billings. For the purposes of this section, switched access demand shall include minutes of use billed for the local switching rate element.

(209)

[ (206) ] Switched access minutes - The measured or assumed duration of time that a certificated telecommunications utility's network facilities are used by access customers. Access minutes are measured for the purpose of calculating access charges applicable to access customers. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(210)

[ (207) ] Switched transport - Transmission between a certificated telecommunications utility's central office (including tandem-switching offices) and an interexchange carrier's point of presence.

(211)

[ (208) ] Tandem-switched transport - Transmission of traffic between the serving wire center and another certificated telecommunications utility office that is switched at a tandem switch and charged on a usage basis. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(212)

[ (209) ] Tariff - The schedule of a utility containing all rates, tolls, and charges stated separately by type or kind of service and the customer class, and the rules and regulations of the utility stated separately by type or kind of service and the customer class.

(213)

[ (210) ] Tel-assistance service - A program providing eligible consumers with a 65% reduction in the applicable tariff rate for qualifying services.

(214)

[ (211) ] Texas Universal Service Fund (TUSF) - The fund authorized by the Public Utility Regulatory Act, §56.021 and 1997 Texas General Laws Chapter 149.

(215)

[ (212) ] Telecommunications relay service (TRS) - A service using oral and print translations by either live or automated means between individuals who are hearing-impaired or speech-impaired who use specialized telecommunications devices and others who do not have such devices. Unless specified in the text, this term shall refer to intrastate telecommunications relay service only.

(216)

[ (213) ] Telecommunications relay service (TRS) carrier - The telecommunications carrier selected by the commission to provide statewide telecommunications relay service.

(217)

[ (214) ] Telecommunications utility -

(A)

a public utility;

(B)

an interexchange telecommunications carrier, including a reseller of interexchange telecommunications services;

(C)

a specialized communications common carrier;

(D)

a reseller of communications;

(E)

a communications carrier who conveys, transmits, or receives communications wholly or partly over a telephone system;

(F)

a provider of operator services as defined by §55.081, unless the provider is a subscriber to customer-owned pay telephone service; and

(G)

a separated affiliate or an electronic publishing joint venture as defined in the Public Utility Regulatory Act, Chapter 63.

(218)

[ (215) ] Telephones intended to be utilized by the public - Telephones that are accessible to the public, including, but not limited to, pay telephones, telephones in guest rooms and common areas of hotels, motels, or other lodging locations, and telephones in hospital patient rooms.

(219)

[ (216) ] Telephone solicitation - An unsolicited telephone call.

(220)

[ (217) ] Telephone solicitor - A person who makes or causes to be made a consumer telephone call, including a call made by an automatic dialing/announcing device.

(221)

[ (218) ] Test year - The most recent 12 months, beginning on the first day of a calendar or fiscal year quarter, for which operating data for a public utility are available.

(222)

[ (219) ] Tier 1 local exchange company - A local exchange company with annual regulated operating revenues exceeding $100 million.

(223)

[ (220) ] Title IV-D Agency - The office of the attorney general for the state of Texas.

(224)

[ (221) ] Toll blocking - A service provided by telecommunications carriers that lets consumers elect not to allow the completion of outgoing toll calls from their telecommunications channel.

(225)

[ (222) ] Toll control - A service provided by telecommunications carriers that allows consumers to specify a certain amount of toll usage that may be incurred on their telecommunications channel per month or per billing cycle.

(226)

[ (223) ] Toll limitation - Denotes both toll blocking and toll control.

(227)

[ (224) ] Total element long-run incremental cost (TELRIC) - The forward-looking cost over the long run of the total quantity of the facilities and functions that are directly attributable to, or reasonably identifiable as incremental to, such element, calculated taking as a given the certificated telecommunications utility's (CTU's) provision of other elements. In Chapter 23 of this title, this term is applicable only to dominant certificated telecommunications utilities when the context clearly indicates.

(228)

[ (225) ] Transport - The transmission and/or any necessary tandem and/or switching of local telecommunications traffic from the interconnection point between the two carriers to the terminating carrier's end office switch that directly serves the called party, or equivalent facility provided by a carrier other than a dominant certificated telecommunications utility.

(229)

[ (226) ] Trunk - A circuit facility connecting two switching systems.

(230)

[ (227) ] Two-primary interexchange carrier (Two-PIC) equal access - A method that allows a telephone subscriber to select one carrier for all 1+ and 0+ interLATA calls and the same or a different carrier for all 1+ and 0+ intraLATA calls.

(231)

Unauthorized charge - Any charge on a customer's telephone bill that was not authorized or verified in compliance with this section.

(232)

[ (228) ] Unbundling - The disaggregation of the ILEC's network/service to make available the individual network functions or features or rate elements used in providing an existing service.

(233)

[ (229) ] Unit cost - A cost per unit of output calculated by dividing the total long run incremental cost of production by the total number of units.

(234)

[ (230) ] Usage sensitive blocking - Blocking of a customer's access to services which are charged on a usage sensitive basis for completed calls. Such calls shall include, but not be limited to, call return, call trace, and auto redial.

(235)

[ (231) ] Virtual private line - Circuits or bandwidths, between fixed locations, that are available on demand and that can be dynamically allocated.

(236)

[ (232) ] Voice carryover - A technology that allows an individual who is hearing-impaired to speak directly to the other party in a telephone conversation and to use specialized telecommunications devices to receive communications through the telecommunications relay service operator.

(237)

[ (233) ] Volume insensitive costs - The costs of providing a basic network function (BNF) that do not vary with the volume of output of the services that use the BNF.

(238)

[ (234) ] Volume sensitive costs - The costs of providing a basic network function (BNF) that vary with the volume of output of the services that use the BNF.

(239)

[ (235) ] Wholesale service - A telecommunications service is considered a wholesale service when it is provided to a telecommunications utility and the use of the service is to provide a retail service to residence or business end-user customers.

(240)

[ (236) ] Working capital requirements - The additional capital required to fund the increased level of accounts receivable necessary to provide telecommunications service.

(241)

[ (237) ] "0-" call - A call made by the caller dialing the digit "0" and no other digits within five seconds. A "0-" call may be made after a digit (or digits) to access the local network is (are) dialed.

(242)

[ (238) ] "0+" call - A call made by the caller dialing the digit "0" followed by the terminating telephone number. On some automated call equipment, a digit or digits may be dialed between the "0" and the terminating telephone number.

(243)

[ (239) ] 311 answering point - A communications facility that:

(A)

is operated, at a minimum, during normal business hours;

(B)

is assigned the responsibility to receive 311 calls and, as appropriate, to dispatch the non-emergency police or other governmental services, or to transfer or relay 311 calls to the governmental entity;

(C)

is the first point of reception by a governmental entity of a 311 call; and

(D)

serves the jurisdictions in which it is located or other participating jurisdictions.

(244)

[ (240) ] 311 service - A telecommunications service provided by a certificated telecommunications provider through which the end user of a public telephone system has the ability to reach non-emergency police and other governmental services by dialing the digits 3-1-1. 311 service must contain the selective routing feature or other equivalent state-of-the-art feature.

(245)

[ (241) ] 311 service request - A written request from a governmental entity to a certificated telecommunications utility requesting the provision of 311 service. A 311 service request must:

(A)

be in writing;

(B)

contain an outline of the program the governmental entity will pursue to adequately educate the public on the 311 service;

(C)

contain an outline from the governmental entity for implementation of 311 service;

(D)

contain a description of the likely source of funding for the 311 service (i.e., from general revenues, special appropriations, etc.); and

(E)

contain a listing of the specific departments or agencies of the governmental entity that will actually provide the non-emergency police and other governmental services.

(246)

[ (242) ] 311 system - A system of processing 311 calls.

(247)

[ (243) ] 911 system - A system of processing emergency 911 calls, as defined in Tex. Health & Safety Code §772.001, as may be subsequently amended.

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 July 20, 1999.

TRD-9904371

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 936-7308

Subchapter B. Customer Service and Protection

16 TAC §26.32

This new section is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and under SB 86 and SB 560.

Cross-Index to Statutes: Public Utility Regulatory Act §§14.002, 52.001 and 52.002.

§26.32.Protection Against Unauthorized Billing Charges ("Cramming").

(a)

Purpose. The provisions of this section are intended to ensure that all customers in this state are protected from unauthorized charges on a customer's telecommunications utility bill.

(b)

Application. This section applies to all "telecommunications utilities," as that term is defined in §26.5 of this title (relating to Definitions) or the Public Utility Regulatory Act (PURA). This section does not apply to:

(1)

an unauthorized change in a customer's local or long distance service provider which is addressed in §26.130 of this title (relating to Selection of Telecommunications Utilities); and,

(2)

message telecommunications charges that are initiated by dialing 1+, 0+, 0-, 1010XXX, or collect calls and charges for video services if the service provider has the necessary call detail record to establish the billing for the call or service.

(c)

Definition. The term "customer," when used in this section, shall mean any person in whose name telephone service is billed, including individuals, governmental units at all levels of government, corporate entities, and any other entity with legal capacity to be billed for telephone service.

(d)

Requirements for billing authorized charges. A service provider or billing agent shall meet all of the following requirements before submitting charges for any product or service to be billed on any customer's telephone bill:

(1)

Inform the customer. The service provider offering the product or service has thoroughly informed the customer of the product or service being offered, including all associated charges, and has explicitly informed the customer that the associated charges for the product or service will appear on the customer's telephone bill.

(2)

Obtain customer consent. The customer has clearly and explicitly consented to obtaining the product or service offered and to have the associated charges appear on the customer's telephone bill. The consent must be verified by the service provider in accordance with subsection (e) of this section. A record of the consent, including verification, must be maintained by the service provider offering the product or service for a period of at least 24 months immediately after the consent and verification were obtained.

(3)

Provide contact information. The service provider offering the product or service and any billing agent for the service has provided the customer with a toll-free telephone number the customer may call and an address to which the customer may write to resolve any billing dispute and to answer questions.

(4)

Provide business information. The service provider, other than the billing telecommunications utility, and any billing agent for the service provider has provided the billing telecommunications utility with its name, business address, business telephone number, and a list with accurate descriptions of the products and services it intends to charge on any customer's telephone bill so that any product or service being charged can clearly and easily be identified on a customer's telephone bill.

(5)

Obtain billing telecommunications utility consent. The service provider and any billing agent for the service provider has executed a written agreement with the billing telecommunications utility bill for each specific product or service on the billing telecommunications utility's telephone bill. Record of this agreement shall be maintained by:

(A)

the service provider;

(B)

any billing agent for the service provider; and

(C)

the billing telecommunications utility for as long as the billing for the product or service continues and for the 24 months immediately following the permanent discontinuation of the billing.

(e)

Authorization requirements.

(1)

All of the following information shall be provided in a clear and conspicuous manner and contained in any communication with a customer for consent and verification of authorization from that customer for an order for a product or service:

(A)

date of consent and verification of authorization;

(B)

name and telephone number of the customer;

(C)

question and answer to ensure that the customer is qualified to order the product or service and to authorize the billing;

(D)

question and answer to ensure that the customer is at least 18 years of age;

(E)

explanation of each product or service offered;

(F)

explanation of all applicable charges;

(G)

explicit customer acknowledgment that the charges will be assessed on the customer's telephone bill;

(H)

explanation of how a product or service can be cancelled;

(I)

description of how the charge will appear on the customer's telephone bill; and

(J)

information on whom to call and a working, toll-free telephone number for customer inquiries.

(2)

Except in customer-initiated transactions with a certificated telecommunications utility for which the service provider has the appropriate documentation, the consent and verification of authorization from a customer for an order for a product or service shall be obtained by one or more of the following methods:

(A)

Written documentation.

(i)

Written consent and verification of authorization shall be a separate document containing only the information required by paragraph (1) of this subsection for the sole purpose of authorizing the charges for a product or service on the customer's telephone bill.

(ii)

The document shall be signed and dated only by the customer.

(iii)

The document shall not be combined with inducements of any kind on the same document.

(iv)

If any portion of the document is translated into another language, then all portions of the document shall be translated into that language. Every document shall be translated into the same language as any promotional materials, oral descriptions, or instructions provided with the document.

(B)

Toll-free electronic authorization as prescribed by the Federal Communications Commission in 47 C.F.R. §64.1100(b).

(C)

Voice recording.

(i)

The recorded conversation with a customer shall be in a clear, easy-to- understand, slow, and deliberate manner and shall contain the information required by paragraph (1) of this subsection for the sole purpose of authorizing the charges for a product or service on the customer's telephone bill.

(ii)

The recording shall be clearly audible.

(iii)

The recording shall include the entire and actual conversation with the customer including any marketing or sales promotion.

(iv)

The verification of authorization for an order for a product or service shall be made by an independent third party with no help, interruption, or participation whatsoever by the service provider or its sales or marketing agents.

(f)

Unauthorized charges.

(1)

Responsibilities of the billing telecommunications utility for unauthorized charges.

(A)

If a customer's telephone bill is charged for any product or service without proper customer consent and verification of authorization in compliance with this section, the telecommunications utility that billed the customer, on its knowledge or notification of any unauthorized charge, shall promptly, but not later than 45 days after the date of the knowledge or notification of an unauthorized charge:

(i)

notify the service provider to immediately cease charging the customer for the unauthorized product or service;

(ii)

remove the unauthorized charge from the customer's bill;

(iii)

refund or credit to the customer all money that has been paid by the customer for any unauthorized charge, and if any unauthorized charge that has been paid is not refunded or credited within three billing cycles, shall pay interest at an annual rate established by the commission pursuant to §26.27(d)(3) of this title (relating to Bill Payment and Adjustments) on the amount of any unauthorized charge until it is refunded or credited;

(iv)

on the customer's request, provide the customer with all billing records under its control related to any unauthorized charge within 15 business days after the date of the removal from the customer's telephone bill; and,

(v)

maintain for at least 24 months a record of every customer who has experienced any unauthorized charge for a product or service on the customer's telephone bill and has notified the billing utility of the unauthorized charge. The record shall contain for each unauthorized charge:

(I)

the name of the service provider that offered the product or service;

(II)

any affected telephone number(s) or addresses;

(III)

the date each customer requested that the billing telecommunications utility remove the unauthorized charge from the customer's telephone bill;

(IV)

the date the unauthorized charge was removed from the customer's telephone bill; and,

(V)

the date the customer was refunded or credited any money that the customer paid for the unauthorized charges.

(B)

Once an unauthorized charge is removed from the customer's telephone bill, it shall not be re-billed on the telephone bill for past or future periods.

(C)

A billing telecommunications utility may not:

(i)

suspend, disconnect, or terminate telecommunications service to any customer who disputes any billing charge pursuant to this section or for nonpayment of an unauthorized charge; or

(ii)

file an unfavorable credit report against a customer who has not paid charges that the customer has alleged were unauthorized unless the dispute regarding the unauthorized charges is ultimately resolved against the customer, except that the customer shall remain obligated to pay any charges that are not in dispute

(2)

Responsibilities of the service provider for unauthorized charges. The service provider responsible for placing any unauthorized charge on a customer's telephone bill shall:

(A)

immediately cease billing upon notice from the customer or the billing telecommunications utility that a charge for a product or service has not been authorized by the customer; and

(B)

for at least 24 months following the completion of all of the steps required by paragraph (1)(A)-(C) of this subsection, maintain a record for every disputed charge for a product or service on the customer's telephone bill. Each record shall contain:

(i)

any affected telephone number(s) or addresses;

(ii)

the date the customer requested that the billing telecommunications utility remove the unauthorized charge from the customer's telephone bill;

(iii)

the date the unauthorized charge was removed from the customer's telephone bill; and

(iv)

the date that action was taken to refund or credit to the customer any money that the customer paid for the unauthorized charges.

(g)

Notice of customer rights.

(1)

Each notice provided as set out in paragraph (2) of this subsection shall also contain the name, address, and a working, toll-free telephone number where a customer can contact the billing telecommunications utility.

(2)

Every billing telecommunications utility shall provide the following notice verbatim to each of the utility's customers:

Figure: 16 TAC §26.32(g)(2).

(3)

Distribution and timing of notice.

(A)

Each billing telecommunications utility shall mail the notice as set out in paragraph (2) of this subsection to each of its residential and business customers no later than October 31, 1999, or by inclusion in the publication of the utility's telephone directory next following September 1, 1999. In addition, each billing telecommunications utility shall send the notice to new customers at the time service is initiated and on any customer's request.

(B)

Every telecommunications utility that prints its own telephone directories shall print the notice in the white pages of such directories, in 12 point print or larger, beginning with the first publication of the directories after September 1, 1999; thereafter, the notice must appear in the white pages of each telephone directory published for the telecommunications utility.

(4)

Any bill sent to a customer from a telecommunications utility must provide the notice verbatim in paragraph (2) of this subsection in legible, bold, ten point or larger type.

(5)

Each billing telecommunications utility shall make available to its customers the notice as set out in paragraph (2) of this subsection in both English and Spanish as necessary to adequately inform the customer; however, the commission may exempt a billing telecommunications utility from the requirement that the information be provided in Spanish upon application and a showing that 10% or fewer of its customers are exclusively Spanish-speaking, and that the billing telecommunications utility will notify all customers through a statement in both English and Spanish, as an addendum to the notice, that the information is available in Spanish from the telecommunications utility, both by mail and at the utility's offices.

(6)

The customer notice requirements in paragraphs (1) and (2) of this subsection may be combined with the notice requirements of §26.130(g)(3) of this title (relating to Selection of Telecommunications Utilities) if all of the information required by each is in the combined notice.

(h)

Compliance and enforcement.

(1)

Records of customer authorizations. A billing telecommunications utility or a service provider shall provide a copy of records maintained under the requirements of subsections (d) and (e) of this section to the commission staff upon request.

(2)

Records of unauthorized charges. A billing telecommunications utility or a service provider shall provide a copy of records maintained under the requirements of subsection (f) of this section to the commission staff upon request.

(3)

Administrative penalties. If the commission finds that a billing telecommunications utility has violated any provision of this section, the commission shall order the utility to take corrective action, as necessary, and the utility may be subject to administrative penalties and other enforcement actions pursuant to PURA, Chapter 15.

(4)

If the commission finds that any other service provider or billing agent subject to PURA, Chapter 17, Subchapter D, has violated any provision of this section or has knowingly provided false information to the commission on matters subject to PURA, Chapter 17, Subchapter D, the commission shall order the service provider or billing agent to take corrective action, as appropriate, and the commission may enforce the provisions of PURA, Chapter 15, against the service provider or billing agent as if the service provider or billing agent were regulated by the commission.

(5)

Certificate revocation. If the commission finds that a billing telecommunications utility or a service provider has repeatedly violated this section, and if consistent with the public interest, the commission may suspend, restrict, or revoke the registration or certificate of the telecommunications service provider, thereby denying the service provider the right to provide service in this state.

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 July 20, 1999.

TRD-9904370

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 936-7308

Part IV. Texas Department of Licensing and Regulation

Chapter 60. Texas Commission of Licensing and Regulation

As part of the rule review specified by the General Appropriations Act, HB1, 75th Legislature, Regular Session, 1997, the Texas Department of Licensing and Regulation proposes amendments to §§60.1, 60.63, and 60.159 regarding the Texas Commission of Licensing and Regulation.

The 76th Legislature enacted HB3155, which made non-substantive changes to Article 9100 and codified the article into the Occupations Code. These changes are reflected in §§60.1 and 60.63. The amendment to §60.159 clarify the procedure regarding witness testimony and participation by telephone.

The rules were reviewed as required by Rider 167 of the General Appropriations Act, 75th Legislature, Regular Session, 1997 to ensure that the language is clear and that reasons continue to exist for all rules.

Theda Lambert, General Counsel and Director of Legal Services, has determined that for each year of the first five years these sections are in effect there will be no foreseeable additional fiscal implications for state or local government as a result of enforcing or administering these rules. The cost of compliance for small businesses or individuals will be none.

Ms. Lambert has also determined that for each year of the first five years these sections are in effect the public benefit anticipated as a result of enforcing these sections will be greater accessibility to administrative hearings.

Comments on the proposal may be submitted to Theda Lambert, General Counsel and Director of Legal Services, P. O. Box 12157, Austin, TX 78711 or facsimile (512) 475-2872 or by email theda.lambert@license.state.tx.us. The deadline for comments is thirty days after publication in the Texas Register .

Subchapter A. Authority and Responsibilities

16 TAC §60.1

The amendments are proposed under Texas Revised Civil Statutes Annotated, article 9100 (Vernon 1991) which authorizes the Texas Commission of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of the Act.

The amendments affect:

Air Conditioning and Refrigeration Contractor License Law, Texas Civil Statutes Annotated, article 8861 (Vernon 1999);

Architectural Barriers, Texas Civil Statutes Annotated, article 9102 (Vernon 1999);

Regulation of Auctioneers, Texas Civil Statutes Annotated, article 8700 (Vernon 1991) (Auctioneers, Texas Occupations Code §1802 (Vernon 1999));

Boilers, Texas Health and Safety Code Annotated §755 (1999);

Boxing and Wrestling Act, Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 1995), (Combative Sports, Texas Occupations Code §2052 (Vernon 1999));

Career Counseling Services, Texas Revised Civil Statutes Annotated, article 52221a-8 (Vernon 1993);

Elevators, Escalators, and Related Equipment, Texas Health and Safety Code Annotated §754 (1995);

Industrialized Housing and Buildings, Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 1989);

Personnel Employment Services, Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989);

Registration of Property Tax Consultants, Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995);

Staff Leasing Services, Texas Labor Code Annotated §91 (1999);

Talent Agency Registration, Texas Revised Civil Statutes Annotated, article 5221a-9 (Vernon 1989), (Regulation of Talent Agencies, Texas Occupations Code §2105 (Vernon 1999));

Temporary Common Workers, Texas Labor Code Annotated §92 (Vernon 1995);

Regulation of Certain Transportation Service Providers, Texas Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997); and

Water Well Drillers and Water Well Pump Installers, Texas Water Code, §§32 and 33 (1999).

§60.1.Authority.

These rules are promulgated under the authority of the Texas Department of Licensing and Regulation, Texas Occupations Code §51 (Vernon 1999) [ Civil Statute, Article 9100 ].

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 July 20, 1999.

TRD-9904366

Rachelle A. Martin

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 463-7357

Subchapter B. Organization

16 TAC §60.63

The amendments are proposed under Texas Revised Civil Statutes Annotated, article 9100 (Vernon 1991) which authorizes the Texas Commission of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of the Act.

The amendments affect:

Air Conditioning and Refrigeration Contractor License Law, Texas Civil Statutes Annotated, article 8861 (Vernon 1999);

Architectural Barriers, Texas Civil Statutes Annotated, article 9102 (Vernon 1999);

Regulation of Auctioneers, Texas Civil Statutes Annotated, article 8700 (Vernon 1991) (Auctioneers, Texas Occupations Code §1802 (Vernon 1999));

Boilers, Texas Health and Safety Code Annotated §755 (1999);

Boxing and Wrestling Act, Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 1995), (Combative Sports, Texas Occupations Code §2052 (Vernon 1999));

Career Counseling Services, Texas Revised Civil Statutes Annotated, article 52221a-8 (Vernon 1993);

Elevators, Escalators, and Related Equipment, Texas Health and Safety Code Annotated §754 (1995);

Industrialized Housing and Buildings, Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 1989);

Personnel Employment Services, Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989);

Registration of Property Tax Consultants, Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995);

Staff Leasing Services, Texas Labor Code Annotated §91 (1999);

Talent Agency Registration, Texas Revised Civil Statutes Annotated, article 5221a-9 (Vernon 1989), (Regulation of Talent Agencies, Texas Occupations Code §2105 (Vernon 1999));

Temporary Common Workers, Texas Labor Code Annotated §92 (Vernon 1995);

Regulation of Certain Transportation Service Providers, Texas Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997); and

Water Well Drillers and Water Well Pump Installers, Texas Water Code, §§32 and 33 (1999).

§60.63.Responsibilities of the Department and Executive Director.

(a)

The Executive Director shall implement the sanctions described in and set forth in Texas Occupations Code §51 (Vernon 1999) [ Civil Statutes, Article 9100 ], and issue orders accordingly.

(b)-(i)

(No change.)

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 July 20, 1999.

TRD-9904367

Rachelle A. Martin

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 463-7357

Subchapter D. Practice and Procedure

16 TAC §60.159

The amendments are proposed under Texas Revised Civil Statutes Annotated, article 9100 (Vernon 1991) which authorizes the Texas Commission of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of the Act.

The amendments affect:

Air Conditioning and Refrigeration Contractor License Law, Texas Civil Statutes Annotated, article 8861 (Vernon 1999);

Architectural Barriers, Texas Civil Statutes Annotated, article 9102 (Vernon 1999);

Regulation of Auctioneers, Texas Civil Statutes Annotated, article 8700 (Vernon 1991) (Auctioneers, Texas Occupations Code §1802 (Vernon 1999));

Boilers, Texas Health and Safety Code Annotated §755 (1999);

Boxing and Wrestling Act, Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 1995), (Combative Sports, Texas Occupations Code §2052 (Vernon 1999));

Career Counseling Services, Texas Revised Civil Statutes Annotated, article 52221a-8 (Vernon 1993);

Elevators, Escalators, and Related Equipment, Texas Health and Safety Code Annotated §754 (1995);

Industrialized Housing and Buildings, Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 1989);

Personnel Employment Services, Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989);

Registration of Property Tax Consultants, Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995);

Staff Leasing Services, Texas Labor Code Annotated §91 (1999);

Talent Agency Registration, Texas Revised Civil Statutes Annotated, article 5221a-9 (Vernon 1989), (Regulation of Talent Agencies, Texas Occupations Code §2105 (Vernon 1999));

Temporary Common Workers, Texas Labor Code Annotated §92 (Vernon 1995);

Regulation of Certain Transportation Service Providers, Texas Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997); and

Water Well Drillers and Water Well Pump Installers, Texas Water Code, §§32 and 33 (1999).

§60.159.Participation by Telephone.

(a)

Upon timely motion containing the pertinent telephone number(s), a party may request to appear by telephone [ or to present the testimony of a witness by telephone ]. If the request is granted, a party may appear [ or a witness may testify ] by telephone if each party [ participant in the hearing ] has an opportunity to participate in and hear the proceeding. In lieu of a motion, a party may appear by telephone if all parties involved are in agreement and if the parties notify the Hearings Examiner's Office of the telephone testimony prior to the date of the hearing.

(b)

All substantive and procedural rights apply to telephone prehearings and hearings, subject only to the limitations of the physical arrangement.

(c)

When a party is appearing by telephone, all documentary [ Documentary ] evidence to be offered at a telephone prehearing conference or hearing shall be served on all Parties and filed with the Hearings Examiner at least 48 hours before the prehearing or hearing unless the Hearings Examiner, by written order, amends the filing deadline.

(d)

For a telephone hearing or prehearing conference, the following may be considered a failure to appear and grounds for default if the conditions exist for more than 15 minutes after the scheduled time for hearing:

(1)

failure to answer the telephone;

(2)

failure to free the line for the proceeding; or

(3)

failure to be ready to proceed with the hearing or prehearing conference as scheduled.

(e)

Upon timely motion containing the pertinent telephone number(s), a party may request to present a witness by telephone. If the request is granted, a witness may testify by telephone if each party has an opportunity to participate in and hear the proceeding. In lieu of a motion, a party may call a witness by telephone if all parties involved are in agreement and if the parties notify the Hearings Examiner's Office of the telephone testimony prior to the date of the hearing.

[ (e)

Any long distance charges shall be borne by the Party requesting to appear by telephone or to present the testimony of a witness by telephone.]

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 July 20, 1999.

TRD-9904368

Rachelle A. Martin

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 5, 1999

For further information, please call: (512) 463-7357