16 TAC §§26.207-26.212
The Public Utility Commission of Texas (commission) proposes
new §§26.207 relating to Form and Filing of Tariffs, 26.208 relating
to General Tariff Procedures, 26.209 relating to New and Experimental Services,
26.210 relating to Promotional Rates for Local Exchange Company Services,
26.211 relating to Rate-Setting Flexibility for Services Subject to Significant
Competitive Challenges, and 26.212 relating to Procedures Applicable to Chapter
58 Electing Incumbent Local Exchange Companies. Project Number 20075 has been
assigned to this proceeding. The proposed new sections will replace §23.24
of this title (relating to Form and Filing of Tariffs); §23.25 of this
title (relating to Procedures Applicable to Chapter 58 Electing Incumbent
Local Exchange Companies (ILECs)); §23.26 of this title (relating to
New and Experimental Services); §23.27 of this title (relating to Rate-Setting
Flexibility for Services Subject to Significant Competitive Challenges); and
§23.28 of this title (relating to Promotional Rates for LEC Services).
The proposed new sections are necessary to clarify the commission's requirements
relating to the filing of tariffs.
The Appropriations Act of 1997, HB 1, Article IX, Section 167 (Section
167) requires that each state agency review and consider for readoption each
rule adopted by that agency pursuant to the Government Code, Chapter 2001
(Administrative Procedure Act). Such reviews shall include, at a minimum,
an assessment by the agency as to whether the reason for adopting or readopting
the rule continues to exist. The commission held three workshops to conduct
a preliminary review of its rules. As a result of these workshops, the commission
is reorganizing its current substantive rules located in 16 Texas Administrative
Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 167; (2)
repeal rules no longer needed; (3) update existing rules to reflect changes
in the industries regulated by the commission; (4) do clean-up amendments
made necessary by changes in law and commission organizational structure and
practices; (5) reorganize rules into new chapters to facilitate future amendments
and provide room for expansion; and (6) reorganize the rules according to
the industry to which they apply. Chapter 26 has been established for all
commission substantive rules applicable to telecommunications service providers.
The duplicative sections of Chapter 23 will be proposed for repeal as each
new section is proposed for publication in the new chapter.
General changes to rule language:
The proposed new sections reflect different section, subsection, and paragraph
designations due to the reorganization of the rules. Citations to the Public
Utility Regulatory Act have been updated to conform to the Texas Utilities
Code throughout the sections and citations to other sections of the commission's
rules have been updated to reflect the new section designations. Some text
has been proposed for deletion as unnecessary in the new sections, as a result
of making the new chapters industry specific; or because the dates and requirements
in the text no longer apply due to the passage of time and/or fulfillment
of the requirements. The
Texas Register
will
publish these sections as all new text. Persons who desire a copy of the proposed
new sections as they reflect changes to existing sections in Chapter 23 may
obtain a redlined version from the commission's Central Records under Project
Number 20075.
Other changes specific to each section:
Proposed new §26.207 will replace §23.24. The commission proposes
to delete all references to electric utilities as this new section only applies
to telecommunications utilities. Section 23.24 (h) and (i) have not been included
in §26.207, as these sections have been proposed for deletion.
Proposed new §26.208 will replace §23.26(e) and §23.28(f)
pertaining to notice; §23.26(g) and §23.28(h) pertaining to administrative
review; §23.26(h) and §23.28(i) pertaining to approval or denial
of applications; §23.26(i) and §23.28(j) pertaining to review of
applications after docketing; §23.26(k) and §23.28(l) pertaining
to reporting requirements; §23.27(e) and §23.28(o) pertaining to
review of cost standards; and §23.26(m) and §23.28(p) pertaining
to provisions for small local exchange companies. In order to incorporate
the similar provisions in §23.26(e) and §23.28(f) pertaining to
notice, the commission proposes new subsection (c) which details the general
requirements of notice. Those provisions in §23.26(e) and §23.28(f)
which specifically pertain to new and experimental services or promotional
services have been included in either §26.209 or 26.210. The commission
proposes to add a new subsection (h) pertaining to withdrawal of a service.
The addition of §26.208(h) is intended to incorporate existing commission
practice regarding withdrawal of a service.
Proposed new §26.209 will replace §23.26(a), (c), (d), (j), and
(l). Section 23.26(b) has not been included in §26.209, as these definitions
have been moved to §26.5 of this title (relating to Definitions).
Proposed new §26.210 will replace §23.28(a), (b), (d), (e), (k),
(m), and (n). Section 23.28(c) has not been included in §26.210, as these
definitions have been moved to §26.5 of this title (relating to Definitions).
In existing §23.28(b) and (e) part of a sentence was inadvertently deleted
in the last amendment to §23.28. In subsection (b), this omitted wording,
"may obtain authorization for offering promotional rates for the purpose of
increasing long term demand for a service and/or utilizing unused capacity
of the DCTU's" has been inserted back into the subsection between "...by which
DCTUs" and "network". In subsection (e) (proposed §26.210(d)) the omitted
wording, "which has inadequate resources to produce the required cost information
to meet the standard and if the presiding officer" has been inserted back
into the second sentence between "...an unreasonable burden on a DCTU" and
"determines that an appropriate alternative cost standard is available."
Proposed new §26.211 will replace §23.27(a) - (d), and (f).
Proposed new §26.212 will replace §23.25. The commission proposes
to delete some definitions from §23.25, as these definitions have been
moved to §26.5 of this title (relating to Definitions). The changes
to §26.212(h)(4), (i)(3), and (k)(3), which delay the staff recommendation
filing date until five days after the intervention deadline, will allow staff
time to consider interventions before issuing a recommendation, as well as
ensure that customers of the service being proposed for withdrawal have sufficient
time to respond.
Ms. Janis Ervin, telecommunications analyst, Office of Regulatory Affairs,
has determined that for each year of the first five-year period the proposed
section are in effect there will be no fiscal implications for state or local
government as a result of enforcing or administering the section.
Ms. Ervin has determined that for each year of the first five years proposed
§26.207 is in effect the public benefit anticipated as a result of enforcing
the section will be the establishment of consistent procedures and standards
for the filing of tariffs. The public benefit anticipated as a result of enforcing
proposed §26.208 will be the establishment of consistent, minimum standards
for commission review of telephone service offerings. The public benefit anticipated
as a result of enforcing §26.209 will be the establishment of consistent,
minimum procedures for obtaining approval to offer new and experimental services.
The public benefit anticipated as a result of enforcing §26.210 will
be the establishment of consistent, minimum procedures for obtaining approval
to offer promotional rates and increased competition in the provision of telecommunication
service. The public benefit anticipated as a result of enforcing §26.211
includes increased competition in the provision of telecommunication service
and enhanced customer awareness. The public benefit anticipated as a result
of enforcing §26.212 will be to facilitate the rapid introduction of
new and modified services by electing ILECs under the Public Utility Regulatory
Act (PURA). There will be no effect on small businesses as a result of enforcing
these sections. There is no anticipated economic cost to persons who are required
to comply with the sections as proposed.
Ms. Ervin has also determined that for each year of the first five years
the proposed sections are in effect there will be no impact on employment
in the geographic area affected by implementing the requirements of the sections.
Comments on the proposed new sections (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue,
PO Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
Reply comments may be submitted within 45 days after publication. The commission
invites specific comments regarding the costs associated with, and benefits
that will be gained by, implementation of the proposed section. The commission
will consider the costs and benefits in deciding whether to adopt the section.
The commission also invites specific comments regarding the Section 167 requirement
as to whether the reason for adopting §§23.24 - 23.28 continues
to exist in the proposed new sections. All comments should refer to Project
Number 20075.
These new sections are 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, PURA §52.058, relating to new or experimental services
or promotional rates; and §58.051-§58.152, relating to basic network
services, discretionary services and competitive services.
Cross Index to Statutes: Public Utility Regulatory Act §§14.002,
14.052, 52.057, 52.058, 52.251, 53.102, 53.103, 58.051-58.152.
§26.207.Form and Filing of Tariffs.
(a)
Application. Unless the context clearly indicates otherwise,
in this section the term "utility" insofar as it relates to telecommunications
utilities, shall refer to dominant carriers.
(b)
Purpose. The purpose of this section is to establish procedures
and standards for the form, filing and review of dominant certificated telecommunications
utilities' (DCTUs) tariffs.
(c)
Effective tariff. No utility shall directly or indirectly
demand, charge, or collect any rate or charge, or impose any classifications,
practices, rules, or regulations different from those prescribed in its effective
tariff filed with the commission.
(d)
Requirements as to size, form, identification and filing
of tariffs.
(1)
Every public utility shall file with the commission filing
clerk five copies of its tariff containing schedules of all its rates, tolls,
charges, rules, and regulations pertaining to all of its utility service when
it applies for a certificate of convenience and necessity to operate as a
public utility. It shall also file five copies of each subsequent revision.
Each revision shall be accompanied by a cover page which contains a list of
pages being revised, a statement describing each change, its effect if it
is a change in an existing rate, and a statement as to impact on rates of
the change by customer class, if any. If a proposed tariff revision constitutes
an increase in existing rates of a particular customer class or classes, then
the commission may require that notice be given.
(2)
All tariffs shall be in loose-leaf form of size 8
1/2 inches by 11 inches and shall be plainly printed or reproduced on paper
of good quality. The front page of the tariff shall contain the name of the
utility and location of its principal office and the type of service rendered
(telephone, electric, etc.).
(3)
Each rate schedule must clearly state the territory,
city, county, or exchange wherein said schedule is applicable.
(4)
Tariff sheets are to be numbered consecutively per
schedule. Each sheet shall show an effective date, a revision number, section
number, sheet number, name of the utility, the name of the tariff, and title
of the section in a consistent manner. Sheets issued under new numbers are
to be designated as original sheets. Sheets being revised should show the
number of the revision, and the sheet numbers shall be the same.
(5)
Any telecommunications utility, after a declaration
by the commission that it is a dominant carrier, shall file tariffs complying
with the above requirements. These tariffs shall be filed within the time
specified in the commission order finding the telecommunications utility a
dominant carrier, or within 60 days in the absence of such a specification.
(e)
Composition of tariffs. The tariff shall contain sections
setting forth:
(1)
a table of contents;
(2)
a preliminary statement containing a brief description
of the utility's operations;
(3)
a list of the cities, exchanges, and counties in which
service is provided;
(4)
the rate schedules; and
(5)
the service rules and regulations, including forms
of the service agreements.
(f)
Tariff filings in response to commission orders. Tariff
filings made in response to an order issued by the commission shall include
a transmittal letter stating that the tariffs attached are in compliance with
the order, giving the docket number, date of the order, a list of tariff sheets
filed, and any other necessary information. The tariff sheets shall comply
with all other rules in this chapter and shall include only changes ordered.
The effective date and/or wording of the tariffs shall comply with the provisions
of the order.
(g)
Symbols for changes. Each proposed tariff sheet shall contain
notations in the right-hand margin indicating each change made on these sheets.
Notations to be used are: (C) to denote a change in regulations; (D) to denote
discontinued rates or regulations; (E) to denote the correction of an error
made during a revision (the revision which resulted in the error must be one
connected to some material contained in the tariff prior to the revision);
(I) to denote a rate increase; (N) to denote a new rate or regulation; (R)
to denote a rate reduction; and (T) to denote a change in text, but no change
in rate or regulation. In addition to symbols for changes, each changed provision
in the tariff shall contain a vertical line in the right-hand margin of the
page which clearly shows the exact number of lines being changed.
(h)
Availability of tariffs. Each utility shall make available
to the public at each of its business offices or designated sales offices
within Texas all of its tariffs currently on file with the commission, and
its employees shall lend assistance to persons seeking information on its
tariffs and afford inquirers an opportunity to examine any tariff upon request.
The utility also shall provide copies of any portion of its tariffs at a reasonable
cost.
(i)
Effective date of tariff change. No jurisdictional tariff
change may take effect prior to 35 days after filing without commission approval.
The requested date will be assumed to be 35 days after filing unless a different
date is requested in the application. The commission may suspend the effective
date of the tariff change for 120 days after the requested effective date
and may extend that suspension another 30 days if required for final determination.
In the case of an actual hearing on the merits of a case that exceeds 15 days,
the suspension date is extended two days for each one day of actual hearing
in excess of 15 actual hearing days.
§26.208.General Tariff Procedures.
(a)
Application. This section applies to dominant certificated
telecommunications utilities (DCTUs) as defined by §26.5 of this title
(relating to Definitions).
(b)
Purpose. The procedures outlined in this section establish
a process for the review of DCTU tariff applications.
(c)
Content of Public Notice. The DCTU shall include public
notice plans in its application to the commission. Notices shall be written
in plain language and shall contain sufficient detail to give customers and
affected parties adequate notice of the filing. The presiding officer may
require notice to be provided to the public in addition to that proposed by
the DCTU. Public notice of the application shall include at a minimum:
(1)
a description of the proposed service and rates;
(2)
the proposed effective date of the service or, if
the service is promotional or experimental, the time period during which the
promotional rates are proposed to be in effect;
(3)
the types of customers likely to be affected if the
application is approved;
(4)
the probable effect on the DCTU's revenues if the
service is approved;
(5)
and the following language: "Persons with questions
or who want more information on this application may contact (DCTU name) at
(DCTU address) or call (DCTU toll-free telephone number) during normal business
hours. A complete copy of the application is available for inspection at the
address listed above. The commission has assigned Control Number (provided
by DCTU) to this application. Persons who wish to formally participate in
the commission's proceedings concerning this application, or who wish to express
their comments concerning this application should contact the Public Utility
Commission of Texas, Office of Customer Protection, PO Box 13326, Austin,
Texas 78711-3326, or call the Public Utility Commission's Office of Customer
Protection at (512) 936-7120 or, toll free, at (888) 782-8477. Hearing- and
speech-impaired individuals with text telephones (TTY) may contact the commission
at (512) 936- 7136 or reach the commission's toll free number through Relay
Texas at (800) 735-2988. Requests to participate in the proceedings and comments
should reach the commission no later than (date, ten days before the effective
date of the proposed filing)."
(d)
Proof of Notice. Not less than ten days before the effective
date of the application, the DCTU shall file a statement indicating the date
on which all notice provided to the public was completed and proof of such
notice.
(e)
Administrative review. An application filed pursuant to
§§26.207 of this title (relating to Form and Filing of Tariffs),
26.209 of this title (relating to New and Experimental Services), 26.210 of
this title (relating to Promotional Rates for Local Exchange Company Services),
26.211 of this title (relating to Rate Setting Flexibility for Services Subject
to Significant Competitive Challenges), or 26.212 of this title (relating
to Procedures Applicable to Chapter 58-Electing Incumbent Local Exchange Companies)
shall be reviewed administratively unless the presiding officer, for good
cause, determines at any point during the review that the application should
be docketed. The operation of the proposed rate schedule may be suspended
for 35 days after the effective date of the application. The effective date
shall be no earlier than 30 days after the filing date of the application
or 30 days after public notice is completed, whichever is later. The application
shall be examined for sufficiency. If the presiding officer concludes that
material deficiencies exist in the application, the applicant shall be notified
within ten working days of the filing date of the specific deficiency in its
application, and the earliest possible effective date of the application shall
be no less than 30 days after the filing of a sufficient application with
substantially complete information as required by the presiding officer. Thereafter,
any time deadlines shall be determined from the 30th day after the filing
of the sufficient application and information or from the effective date if
the presiding officer extends that date. While the application is being administratively
reviewed, the commission staff and the staff of the Office of Public Utility
Counsel may submit requests for information to the DCTU. Three copies of all
answers to such requests for information shall be provided to the commission
staff and the Office of Public Utility Counsel within ten days after receipt
of the request by the DCTU. No later than 20 days after the filing date of
the application, interested persons may provide to the commission staff written
comments or recommendations concerning the application. The commission staff
shall and the Office of Public Utility Counsel may file with the presiding
officer written comments or recommendations concerning the application. No
later than 35 days after the effective date of the application, the presiding
officer shall complete an administrative review to determine whether the DCTU's
application meets the following requirements:
(1)
The proposed service meets all requirements pursuant to
the applicable section under which it is filed;
(2)
Notice was provided as required by the presiding officer;
(3)
The proposed rates and terms of the service are not
unreasonably preferential, prejudicial, or discriminatory, subsidized directly
or indirectly by regulated monopoly services, or predatory or anticompetitive;
and
(4)
Provision of the service is consistent with the public
interest in a technologically advanced telecommunications system, the preservation
of universal service, and the prevention of anticompetitive practices and
of subsidization of new and experimental services with revenues from regulated
monopoly services.
(f)
Approval or denial of applications. For its application
to be approved, the DCTU must meet all of the requirements in the applicable
section pursuant to which the application is made, unless such requirements
are modified or waived by the presiding officer as provided under provisions
of that section. If, based on the administrative review, the presiding officer
determines that all requirements not waived have been met, the DCTU shall
be permitted to offer the service at the rates and terms approved by the presiding
officer. If, based on the administrative review, the presiding officer determines
that one or more of the requirements not waived have not been met, the presiding
officer may dismiss or, upon prior request of the DCTU, shall docket the application.
(g)
Review of the applications after docketing. If the application
is docketed, the operation of the proposed rate schedule shall be automatically
suspended to a date 120 days after the applicant has filed all of its direct
testimony and exhibits, or 155 days after the effective date, whichever is
later. Three copies of all answers to requests for information shall be filed
with the commission within ten days after receipt of the request. Affected
persons may move to intervene in the docket, and a hearing on the merits shall
be scheduled. The application shall be processed in accordance with the commission's
rules applicable to docketed proceedings.
(h)
Withdrawal of a service. When a DCTU seeks to withdraw
a tariffed service, the application shall be filed pursuant to this subsection
and shall be docketed to allow adequate time for review, and completion of
notice. The DCTU shall provide direct mail notice to all current customers
of the service and shall issue such notice only after the commission has reviewed
and approved the notice. The DCTU shall provide the following information
in its application:
(1)
The number of current subscribers in each exchange;
(2)
The reason for withdrawing the service;
(3)
Provisions for grandfathering current customers or
competitive alternatives available within the exchange locations, including
incumbent local exchange carrier provided alternatives;
(4)
Annual revenues for the last three years for the service;
and
(5)
If the service has no current subscriber, the DCTU
shall provide an affidavit to this effect.
§26.209.New and Experimental Services
(a)
Application. This section applies to dominant certificated
telecommunications utilities (DCTUs), as that term is defined by §26.5
of this title (relating to Definitions). In addition, the services to which
this section applies are those that are a subset of a service for which the
utility is dominant.
(b)
Purpose. The procedures in this section establish the process
by which DCTUs obtain approval to offer new and experimental services.
(c)
Filings requesting approval of new and experimental services.
A DCTU may request approval of a new or experimental service by following
the procedures outlined in this section. In addition to copies required by
other commission rules, one copy of the application shall be delivered to
the Office of Regulatory Affairs and one copy to the Office of Public Utility
Counsel. Nothing in this section precludes a DCTU from utilizing other provisions
of this title to seek approval to offer such services, however, the commission
or the presiding officer, in its discretion, may require any application for
a new or experimental service to comply with the requirements of this section.
Not later than 30 days prior to the proposed effective date of the new or
experimental service, the DCTU shall file with the commission and the Office
of Public Utility Counsel an application containing the following information:
(1)
a statement of intent by the DCTU to use the procedures
established in this section;
(2)
a description of the proposed service and the rates,
terms and conditions under which the service is proposed to be offered;
(3)
the proposed effective date of the service;
(4)
a statement detailing the type of notice, if any,
the utility has provided or intends to provide to the public regarding the
application and a brief statement explaining why the DCTU's notice proposal
is reasonable and in compliance with §26.208(c) of this title (relating
to General Tariff Procedures);
(5)
a copy of the text of the notice, if any;
(6)
detailed documentation showing that the proposed service
is priced above the long run incremental cost of such service. The commission
shall allow an incumbent local exchange carrier (LEC) that is not a Tier 1
LEC as of September 1, 1995, at that company's option, to adopt the cost studies
approved by the commission for a Tier 1 LEC. The application shall also include
projections of revenues, demand, and expenses demonstrating that in the second
year after the service is first offered, the proposed rates will generate
sufficient annual revenues to recover the annual long run incremental costs
of providing the service, as well as a contribution for joint and/or common
costs. Capital costs related to providing the service shall be separately
identified in these projections. The application shall also include all workpapers
and supporting documentation relating to computations or assumptions contained
in the application.
(7)
If the application concerns a service which will not
initially be offered system-wide, the application shall separately explain
for each exchange in which the service will not be offered why the DCTU's
facilities in that exchange do not have the technical capability to handle
the service. The application shall also include an implementation plan which
shall specify the DCTU's plans for making the service available in such exchanges
within a reasonable time after receipt by the LEC of a bona fide request for
the service. The DCTU shall also specify in its plan what requirements must
be met for a request for service to be considered bona fide. This requirement
does not apply to experimental services, but the DCTU shall specify the exchanges
in which it proposes to offer the experimental service.
(8)
If the application concerns an experimental service
for which a range of rates is proposed, the application shall state the range
of rates requested and show in detail how the upper and lower rates in that
range relate to the long run incremental cost of the service.
(9)
Any other information which the DCTU wants considered
in connection with the commission's review of its application.
(d)
Modifications and waivers of requirements. In its application
a DCTU may request and the commission or the presiding officer may grant for
good cause the modification or waiver of requirements set forth in this section
concerning system-wide rates; system- wide provision of service; the one-year
maximum period for offering an experimental service; the one-year, cost-related
prove-in period; or long run incremental cost support. Subsequent to the introduction
of an experimental service, a DCTU may also apply for modification of the
period initially approved for offering the service. However, no experimental
service shall be approved for more than two years, no prove-in period shall
be extended beyond two years and, in lieu of incremental cost information,
the DCTU must provide other cost support demonstrating that the proposed rates
for the service will recover its costs plus a contribution within the required
period. A waiver of the incremental cost standard shall only be granted if
the presiding officer determines that such a standard imposes an unreasonable
burden on a DCTU which has inadequate resources to produce the required cost
information to meet that standard and if the presiding officer determines
that an appropriate alternative cost standard is available. Any request for
modification or waiver of these requirements shall include a complete statement
of the DCTU's arguments supporting that request. The presiding officer shall
rule on the waiver request within 15 days of the filing of the request. A
copy of the presiding officer's ruling shall be provided to the commission,
and the commission may overrule any waiver granted by a presiding officer
within 15 days of the presiding officer's ruling.
(e)
Requirements for proposed new and experimental services.
Unless waived or modified by the presiding officer as provided under subsection
(d) of this section, the following requirements shall apply to any new service
approved under this section:
(1)
Such new service shall be offered at the same price throughout
the DCTU's system.
(2)
The service shall also be offered in every exchange
served by the DCTU, except exchanges in which the DCTU's facilities do not
have the technical capability to handle the service.
(3)
The rates for a new service shall be designed to generate
sufficient annual revenues to recover the annual long run incremental cost
of the service, including a contribution for joint and/or common costs, in
the second year after it is first offered. Requirements related to system-wide
pricing and system-wide provision of service do not apply to a proposed experimental
service.
(4)
An experimental service approved under this section
may be flexibly priced provided that the minimum rate in the range of rates
shall be above the long run incremental cost of providing the service. The
DCTU may make a change in rates within an approved range of rates upon such
notice to customers and the commission as the presiding officer may require.
In addition, before discontinuing provision of an experimental service, the
DCTU shall give such notice of the discontinuation as the presiding officer
may require.
(f)
Interim rates. For good cause, interim rates may be approved
after docketing. However, interim rates shall not be approved if the new service
requires substantial initial investment by customers before they may receive
the service unless the commission requires the DCTU to notify every customer
prior to purchasing the service that this investment is at risk due to the
interim nature of the service and the rates for the service and unless the
DCTU makes appropriate provisions to protect its customers from the risks
of the DCTU's failure to notify.
(g)
Reporting requirements. If a new service is approved based
on either an administrative review or a docketed proceeding, the DCTU shall
file with the commission tracking reports showing the actual revenues; demand
and related expenses for the service; its progress on the implementation plan,
if any such plan was approved by the commission; and such other information
as may be required by the commission (or, in connection with an administrative
review, by the presiding officer) or requested by the commission staff. One
such report shall be due nine months after the service is first offered and
shall contain information for at least the first six months the service was
offered. The second such report shall be filed 12 months after the service
is first offered and shall contain information for at least the first nine
months the service was offered. The third such report shall be filed no later
than 15 months after the service is first offered and shall contain information
for at least the first 12 months the service was offered. Such reporting requirements
shall be waived for experimental services of one year's duration or less,
but the DCTU shall retain in its record such information related to revenues,
demand and expenses and shall submit such information with any subsequent
request to make a formerly experimental service a permanent new service.
(h)
Subsequent review of the service. Except as prohibited
by the Public Utility Regulatory Act Chapters 58 or 59, if a new or experimental
service is approved under the procedures set forth in this section, the commission
staff or any affected person may file with the commission a petition seeking
modification of the rates or terms under which the service is offered or withdrawal
of the service.
(i)
Provisions for SLECs. Notwithstanding §26.208(e) of
this title (relating to General Tariff Procedures) and subsections (c), (d),
and (e) of this section, the provisions of this subsection apply to a small
local exchange company (SLEC) as defined in §26.5 of this title (relating
to Definitions). If the presiding examiner determines that the SLEC is seeking
to adopt as its rates for its new or experimental services the rates for the
same or substantially similar services offered by a incumbent local exchange
company:
(1)
the SLEC's proposed rates and terms of the service will
be deemed not to be unreasonably preferential, prejudicial, or discriminatory,
subsidized directly or indirectly by regulated monopoly services, or predatory
or anticompetitive; and
(2)
a waiver of the incremental cost standard shall be
granted.
§26.210.Promotional Rates for Local Exchange Company Services.
(a)
Application. This section applies to dominant certificated
telecommunications utilities (DCTUs) as that term is defined by §26.5
of this title (relating to Definitions) which are subject to the ratemaking
jurisdiction of the commission for any service or market.
(b)
Purpose. The procedures outlined in this section are intended
to establish a process by which DCTUs may obtain authorization for offering
promotional rates for the purpose of increasing long term demand for a service
and/or utilizing unused capacity of the DCTU's network.
(c)
Filings requesting approval of promotional rates. After
the effective date of this section, a DCTU may request approval of promotional
rates for a service by following the procedures outlined in this section.
In addition to copies required by other commission rules, one copy of the
application shall be delivered to the Regulatory Division. Nothing in this
section precludes a DCTU from utilizing other provisions of this title to
offer such promotional rates. Not later than 30 days prior to the proposed
effective date of the promotional rate, the DCTU shall file with the commission
and the Office of Public Utility Counsel an application containing the following
information:
(1)
a statement of intent by the DCTU to use the procedures
established in this section;
(2)
a description of the specific proposed or tariffed
service for which promotional rates are proposed and a description of the
temporary rates for such service proposed by the DCTU;
(3)
if the promotional rates are proposed to be offered
on less than a system-wide basis as provided in subsection (d) of this section,
a description of the locations for which the promotional rates are proposed:
(4)
the starting date and ending date of the period over
which the promotional rates are proposed to be offered;
(5)
a description of all time periods during the five
years preceding the filing of this application for which promotional rates
were offered for the service as authorized under this section;
(6)
a statement detailing the type of notice, if any,
the DCTU has provided or intends to provide to the public regarding the application
and a brief statement explaining why the DCTU's notice proposal is reasonable
and in compliance with §26.208(c) of this title (relating to General
Tariff Procedures);
(7)
a copy of the text of the notice, if any;
(8)
detailed documentation showing the long run incremental
cost of the service for which promotional rates are requested, including projections
of revenues, demand and expenses of the service for the period during which
the promotional rates are proposed to be offered. The commission shall allow
an incumbent local exchange company (LEC) that is not a Tier 1 LEC as of September
1, 1995, at that company's option, to adopt the cost studies approved by the
commission for a Tier 1 LEC. The application shall include projections of
the effect of the promotional rate on the service's revenues and cost and
its impact on the service's contribution during the promotional period and
over the remaining life of the service. The application shall also include
all workpapers and supporting documentation relating to computations or assumptions
contained in the application; and
(9)
any other information which the DCTU wants considered
in connection with the commission's review of its application.
(d)
Modification and waivers of requirements. In its application
a DCTU may request the waiver of the long run incremental cost requirements
set forth in this section. Such a waiver shall only be granted if the presiding
officer determines that the long run incremental cost standard imposes an
unreasonable burden on a DCTU which has inadequate resources to produce the
required cost information to meet the standard and if the presiding officer
determines that an appropriate alternative cost standard is available. If
the long run incremental cost standard is waived, the DCTU must provide other
cost information showing the relationship between its proposed promotional
rates and the costs of providing the service. A DCTU may also request a waiver
of the requirement that promotional rates be offered in every exchange when
such rates are proposed to be offered for a tariffed service which is being
expanded into central offices which previously did not provide the service.
Any request for waiver of the long run incremental cost information requirement
or the system-wide application of the promotional rates requirement shall
include a complete statement of the DCTU' arguments supporting that request.
(e)
Notice of intent to file. At least ten days before any
application under this section may be filed by a DCTU, the DCTU shall file
a statement of intent to file such an application and the expected filing
date. Such notice shall also include a statement of the DCTU's intent to use
the expedited procedures of this section, a description of the service, and
a description of the proposed promotional rates and the proposed promotional
period. The commission shall then publish notice of the DCTU's intent to file
such application in the
Texas Register.
(f)
Requirements for promotional rates. Unless waived or modified
by the presiding officer as provided in subsection (d) of this section, the
following requirements shall apply to promotional rates approved under this
section:
(1)
the promotional rates shall be offered in every exchange
in which the service is offered throughout the DCTU's system;
(2)
promotional rates for any particular service in any
specific exchange shall not be offered for more than six months during any
five-year period, and no customer shall be charged promotional rates for more
than three consecutive months;
(3)
promotional rates shall be offered only to new customers
of a service or to new and existing customers, provided that, for existing
customers, the promotional rates shall only apply to additional units of service
ordered during the promotional rate period; and
(4)
the promotional rate shall be designed to generate
sufficient revenue to recover the long run incremental cost of providing the
service (or, if the long run incremental cost standard is waived, such other
costs as are approved by the commission) within one year of introduction of
the promotional rate. If the proposed promotional rate is for the reduction
or elimination of an installation charge or service connection charge, the
revenue and costs related to provision of the entire service shall be used
in determining whether the cost standard for the service is met. If the proposed
promotional rate is for a service whose tariffed rate does not recover the
costs of providing the service, a promotional rate may be approved if the
DCTU can demonstrate that the promotional rate will move the service closer
to full cost recovery. However, no promotional rate shall be approved for
a service whose tariffed rate does not recover the cost of the service if
such service has been found to be subject to significant competition under §26.211
of this title (related to Rate-Setting Flexibility for Services Subject to
Significant Competitive Challenges) or if the service is enumerated in the
Public Utility Regulatory Act §52.057. The commission may approve a promotional
rate even if it does not provide a contribution to joint and common costs.
(g)
Notification to the public of services to be offered at
promotional rates. If promotional rates for a service are approved under this
section, all advertising related to such service and its promotional rates
shall clearly describe the temporary nature of the rate, the date on which
the promotional rate will expire, and the rate which will apply after expiration
of the promotional rate. The DCTU shall provide the same information to all
customers requesting rate information for such service or ordering the service
during the period the promotional rates are in effect.
(h)
Reporting requirements. If promotional rates are approved
based on either an administrative review or a docketed proceeding, the DCTU
shall file with the commission a report showing the actual revenues, demand
and related expenses and investment for the service over each period promotional
rates are in effect. This report shall be filed with the commission within
three months after each authorized period for offering promotional rates has
expired.
(i)
Treatment of revenues and expenses related to promotional
rates in subsequent rate cases. In any subsequent rate case in which a service
was offered at promotional rates during the test year, the revenues attributed
to such service shall be adjusted upward to reflect the revenues which would
have been collected if all customers who were charged the promotional rate
had been charged the permanent tariffed rate over the promotional period.
(j)
Subsequent review of the promotional rates. If promotional
rates for a service are approved under the procedures set forth in this section,
the commission's Office of Regulatory Affairs, the Office of Public Utility
Counsel, or any affected person may file with the commission a petition seeking
modification of the rates or terms under which the promotional rate is offered
or withdrawal of the promotional rate. If multiple promotional rate periods
are approved for a service under the provisions of this section and if the
reports filed in accordance with subsection (h) of this section indicate that
the rates for the service did not recover the costs of the service as required
in subsection (f) of this section, the commission shall initiate an inquiry
into the reasonableness of such promotional rates and shall suspend those
rates pending the completion of the inquiry.
(k)
Provisions for SLECs. Notwithstanding §26.208(e) of
this title (relating to General Tariff Procedures) and subsections (c), (d),
and (f) of this section, the provisions of this subsection apply to a small
local exchange company (SLEC) as defined in §26.5 of this title (relating
to definitions). If the presiding examiner determines that the SLEC is seeking
to adopt as its promotional rates for its services the rates for the same
or similar services offered by an incumbent local exchange carrier:
(1)
the SLEC's proposed rates and terms of the service will
be deemed not to be unreasonably preferential, prejudicial, or discriminatory,
subsidized directly or indirectly by regulated monopoly services, or predatory
or anticompetitive; and
(2)
a waiver of the incremental cost standard shall be
granted.
§26.211.Rate-Setting Flexibility for Services Subject to Significant Competitive Challenges.
(a)
Application. The provisions of this section apply to incumbent
local exchange companies (ILECs), as defined by §26.5 of this title
(relating to Definitions).
(b)
Purpose. The purpose of this section is to establish procedures
for pricing flexibility for services subject to competition and a process
for the review of pricing flexibility applications and customer specific contracts.
(c)
Pricing flexibility.
(1)
The types of pricing flexibility that a local exchange
company (LEC) may request are set forth in subparagraphs (A)-(D) of this paragraph.
(A)
Banded rates. If a LEC is granted the authority to charge
banded rates, the minimum rates shall yield revenues that are equal to or
greater than 105% of the long run incremental cost of the service in the geographic
market in which the service will be provided. When an LEC is granted the authority
to charge banded rates, the LEC shall file a tariff showing the minimum and
maximum rates and specifying its current rate. The current rate, as specified
in the LEC's tariff, shall be applied uniformly to all customers of the service
in each exchange for which the commission has approved banded rates. If the
LEC desires to charge a rate different from its current rate, but between
the minimum and maximum rates, it shall file a revised tariff on or before
the effective date of the rate change. The minimum and maximum rates may only
be changed as provided for in the Public Utility Regulatory Act, Chapter 53,
Subchapters C and D, or G.
(B)
Customer-specific contracts. If a LEC is granted the authority
to enter into customer-specific contracts, the contract shall be filed and
approved pursuant to subsection (d) of this section. Customer-specific contracts
filed pursuant to subsection (d) of this section may include services in addition
to the service for which the LEC has been granted authority to price on a
flexible basis only if each such adjunct service is clearly specified in the
contract and provided pursuant to a tariff approved by the commission.
(C)
Detariffing. If a LEC is granted the authority to detariff
a service, the LEC shall maintain at the commission a current price list for
the service, and the commission shall retain authority to regulate the quality,
terms and conditions of the detariffed service, other than rates. The commission
may determine the appropriate ratemaking treatment of any revenues from or
costs of providing a detariffed service in a proceeding under the Public Utility
Regulatory Act, Chapter 53, Subchapters C and D, or G.
(D)
Other types of pricing flexibility. If a LEC is granted
the authority to engage in a type of pricing flexibility that the commission
finds to be in the public interest other than those specified in subparagraphs
(A)-(C) of this paragraph, that pricing flexibility shall be offered under
such terms and conditions as the commission orders.
(2)
LECs have the authority to enter into customer-specific
contracts for those services specified in subsection (d) of this section.
For those services, LECs may apply to the commission pursuant to this subsection
to obtain a type of pricing flexibility specified in paragraph (1) of this
subsection other than customer-specific contracts. For other services, LECs
may apply to the commission pursuant to this subsection to obtain any type
of pricing flexibility specified in paragraph (1) of this subsection. However,
nothing in this subsection shall permit a LEC to obtain pricing flexibility
for basic local telecommunications service, including local measured service,
or for any service that includes as a component a service not subject to significant
competitive challenge. Additionally, nothing in this subsection shall permit
an LEC to enter into customer-specific contracts or to obtain detariffing
with respect to message telecommunications services, switched access services,
or wide area telecommunications service.
(3)
An application for pricing flexibility filed under
this paragraph shall:
(A)
include a statement of the LEC's intention to use the procedures
established in this subsection;
(B)
specify the type of pricing flexibility requested and,
if the type of pricing flexibility requested is either banded rates or some
other type of pricing flexibility pursuant to paragraph (1)(D) of this subsection
that involves rate-setting:
(i)
state the proposed rates, and if the type of pricing flexibility
is banded rates, state the maximum and minimum rates;
(ii)
include detailed documentation demonstrating that the
minimum rates yield revenues that are equal to or greater than 105% of the
long run incremental cost of the service in the geographic market in which
the service will be provided;
(iii)
demonstrate that the rates are not unreasonably preferential,
prejudicial or discriminatory;
(iv)
demonstrate that the rates are such that the service identified
pursuant to subparagraph (C) of this paragraph will not be subsidized directly
or indirectly by regulated monopoly services; and
(v)
demonstrate that the rates are not predatory or anticompetitive;
(C)
identify the service for which the LEC is requesting pricing
flexibility, including each component thereof, and provide functional and
technical descriptions of the service, including:
(i)
the functions that the service is intended to perform for
the customer;
(ii)
the types of equipment used to provide the service (including,
but not limited to, transmission facilities, switching facilities, customer
equipment, software functions, and protocol);
(iii)
the network configurations used to provide the service;
and
(iv)
schematics;
(D)
identify each service that is not subject to significant
competitive challenge but that, at the time the LEC files its application
for pricing flexibility, the LEC intends to provide as a tariffed adjunct
to the service identified in subparagraph (C) of this paragraph and, for each
such service, provide:
(i)
functional and technical descriptions; and
(ii)
citations to the tariff provisions pursuant to which each
such service will be provided;
(E)
designate the exchange(s) as to which the LEC is seeking
pricing flexibility;
(F)
include a map or maps of the exchange(s) designated pursuant
to subparagraph (E) of this paragraph that can be coordinated with the official
commission boundary maps;
(G)
describe the products or services known to the LEC that
are currently available in the exchange(s) designated pursuant to subparagraph
(E) of this paragraph, and that are the same, equivalent, or substitutable
for the service identified pursuant to subparagraph (C) of this paragraph,
and identify the providers of those products or services;
(H)
with respect to the products or services described pursuant
to subparagraph (G) of this paragraph, discuss:
(i)
the number and size of telecommunications utilities or
other persons providing such products or services;
(ii)
the extent to which such products or services are available;
(iii)
the ability of customers to obtain such products or services
at rates, terms, and conditions comparable to those that the LEC will offer;
(iv)
the ability of telecommunications utilities or other persons
to make such products or services readily available at rates, terms, and conditions
comparable to those that the LEC will offer; and
(v)
the existence of any significant barrier to the entry or
exit of a provider of such products or services;
(I)
demonstrate that the level of competition with respect
to all components of the LEC's service identified pursuant to subparagraph
(C) of this paragraph represents a significant competitive challenge within
the exchange(s) designated pursuant to subparagraph (E) of this paragraph
that warrants the pricing flexibility specified pursuant to subparagraph (B)
of this paragraph;
(J)
demonstrate that the service identified pursuant to subparagraph
(C) of this paragraph is not basic local telecommunications service, including
local measured service;
(K)
if the type of pricing flexibility requested pursuant to
subparagraph (B) of this paragraph is customer-specific pricing or detariffing,
demonstrate that the service identified pursuant to subparagraph (C) of this
paragraph is not message telecommunications service, switched access service,
or wide area telecommunications service;
(L)
to prevent the subsidization of the service identified
pursuant to subparagraph (C) of this paragraph with revenues from regulated
monopoly services, propose mechanisms to recover costs that may not be identified
and recovered in a long run incremental cost study, including but not limited
to costs associated with advertising, unsuccessful bids, and all items of
plant used in the provision of the service;
(M)
identify and address the impact that approval of the application
for pricing flexibility may have on universal service;
(N)
for any type of pricing flexibility other than detariffing,
include proposed tariffs and identify any tariff language that restricts the
resale, sharing, or joint use of the service identified pursuant to subparagraph
(C) of this paragraph and any component thereof and demonstrate why such restrictive
tariff language is consistent with the policy established in the Public Utility
Regulatory Act §52.001; and
(O)
include any other information that the LEC wants considered
in connection with the review of its application.
(4)
The commission shall allow an incumbent LEC that
is not a Tier 1 LEC as of September 1, 1995, at that company's option, to
adopt the cost studies approved by the commission for a Tier 1 LEC.
(5)
An application for pricing flexibility shall be docketed
and assigned to a presiding officer. No later than ten working days after
the filing of an application for pricing flexibility, the presiding officer
shall issue an order scheduling a prehearing conference for the purposes of
determining notice requirements, establishing a procedural schedule, and addressing
other matters as may be appropriate. The commission shall make a final decision
no later than 180 days after the completion of notice, as ordered by the presiding
officer. However, this 180-day period shall be extended two days for each
one day of actual hearing on the merits of the case that exceeds 15 days.
The presiding officer or commission, upon a showing of good cause relating
to the applicant's failure or refusal to prosecute, including but not limited
to the applicant's unreasonable resistance to discovery, may further extend
the timeline, provided that the order shall specifically identify the facts
found to constitute good cause. This deadline may be expressly waived by the
applicant.
(6)
For LECs with less than 31,000 access lines, the commission
shall not be limited under paragraph (7)(D)(i)-(x) of this subsection to considering
only competition within the exchange(s) where the LEC will provide the service.
Pursuant to paragraph (3)(O) of this subsection, a LEC with less than 31,000
access lines may provide information that addresses the criteria of paragraph
(3)(G)-(I) of this subsection with respect to products or services available
outside the exchange(s) designated in paragraph (3)(E) of this subsection.
(7)
An application for pricing flexibility shall be approved
if, after an evidentiary hearing, the commission finds, based on the evidence,
that:
(A)
no service for which pricing flexibility is sought is basic
local telecommunications service, including local measured service;
(B)
no service for which the LEC requests detariffing of rates
or authority to enter into customer-specific contracts is message telecommunications
service, switched access service, or wide area telecommunications service;
(C)
no service for which pricing flexibility is sought includes
a component that is not subject to significant competitive challenge;
(D)
the grant of pricing flexibility for the service identified
pursuant to paragraph (3)(C) of this subsection within the exchange(s) designated
pursuant to paragraph (3)(E) of this subsection is appropriate to allow the
LEC to respond to a significant competitive challenge, based upon consideration
of the following:
(i)
the number and size of telecommunications utilities or
other persons providing the same, equivalent, or substitutable service within
the exchange(s) designated pursuant to paragraph (3)(E) of this subsection;
(ii)
the extent to which the same, equivalent, or substitutable
service is available within the exchange(s) designated pursuant to paragraph
(3)(E) of this subsection;
(iii)
the ability of customers to obtain the same, equivalent,
or substitutable services at comparable rates, terms, and conditions within
the exchange(s) designated pursuant to paragraph (3)(E) of this subsection;
(iv)
the ability of telecommunications utilities or other persons
to make the same, equivalent, or substitutable service readily available at
comparable rates, terms, and conditions within the exchange(s) designated
pursuant to paragraph (3)(E) of this subsection;
(v)
the existence of any significant barrier to the entry or
exit of a provider of the same, equivalent or substitutable services within
the exchange(s) designated pursuant to paragraph (3)(E) of this subsection;
(vi)
whether there are mechanisms to minimize potential anti-competitive
practices, to the extent that any such practice has been identified in the
record;
(vii)
whether there are mechanisms to prevent the subsidization
of the service with revenues from regulated monopoly services;
(viii)
whether the ability of the LEC to flexibly price the
service within the designated exchange(s) would have any significant impact
on universal service;
(ix)
whether the type of pricing flexibility requested is appropriate
in light of the level and nature of competition within the exchange(s) where
the LEC will provide the service; and
(x)
any other relevant information contained in the record;
(E)
the rates, if the type of pricing flexibility granted is
either banded rates or some other type of pricing flexibility pursuant to
paragraph (1)(D) of this subsection that involves rate-setting, are just and
reasonable and:
(i)
yield revenues that are equal to or greater than 105% of
the long run incremental cost of the service in the geographic market in which
the service will be provided;
(ii)
are not unreasonably preferential, prejudicial or discriminatory;
(iii)
are such that the service will not be subsidized directly
or indirectly by regulated monopoly services; and
(iv)
are not predatory or anticompetitive.
(8)
Nothing in this subsection is intended to
prevent the presiding officer from recommending, or the commission from approving
based on the record evidence, relief other than that requested in the application.
(d)
Customer-specific contracts.
(1)
A LEC shall have the authority to enter into customer-specific
contracts for:
(A)
central office based PBX-type services for systems of 200
stations or more, as those services compete with customer premises equipment
provided by PBX vendors;
(B)
billing and collection services;
(C)
high-speed private line services of 1.544 megabits or greater;
(D)
customized services that are unique because of size or
configuration, provided that such customized services shall not include basic
local telecommunications service, including local measured service, or message
telecommunications services, switched access services, or wide area telecommunications
service; and
(E)
any other service for which the commission has authorized
the LEC to enter into customer-specific contracts pursuant to this section.
(2)
A LEC will file quarterly reports to the commission
which provide the following information regarding all customer specific contracts
for services pursuant to paragraph (1)(A)-(E) of this subsection:
(A)
customer name, location and contact;
(B)
type of services, exchange location and quantities;
(C)
terms and rates for services;
(D)
affidavit of the customer attesting to the fact that the
customer was aware of the possibility of purchasing of such services from
other providers; and
(E)
affidavit of the LEC attesting that the rates:
(i)
are set at 105% or more of the long run incremental costs
of the services;
(ii)
are not unreasonably preferential, prejudicial or discriminatory;
(iii)
are such that the contracted services will not be subsidized
directly or indirectly by regulated monopoly services; and
(iv)
are not predatory or anticompetitive.
(e)
Subsequent review. The commission may modify, or revoke,
upon notice and hearing, the authorization of any type or types of pricing
flexibility granted pursuant to this section.
(f)
Severability. If any provision of this section or the application
thereof to any person or any circumstances is held invalid, such invalidity
shall not affect other provisions or applications of this section that can
be given effect without the invalid provision or application. It is the intent
of the commission that the provisions of this section are severable.
§26.212.Procedures Applicable to Chapter 58-Electing Incumbent Local Exchange Companies (ILECs).
(a)
Application. This section applies to an incumbent local
exchange company that is regulated pursuant to the Public Utility Regulatory
Act (PURA) Chapter 58.
(b)
Purpose. The purpose of this section is to establish expedited
procedures for a Chapter 58 electing ILEC to introduce a new service or to
modify the rates or tariff terms for an existing service.
(c)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Basic network service - This term has the meaning assigned
in PURA §58.
(2)
Competitive service - This term has the meaning assigned
in PURA §58.
(3)
Electing incumbent local exchange company (ILEC) -
An ILEC that has filed the election referenced in PURA §58.
(4)
Existing discretionary service - This term has the
meaning assigned in PURA §58. An existing discretionary service had a
commission-approved rate in existence on September 1, 1995.
(5)
New service - This term has the meaning assigned in
§26.5 of this title (relating to Definitions). The term new service shall
include a discretionary service for which no rate was in effect on September
1, 1995.
(d)
General provisions.
(1)
Tariffs and notices shall be written in plain language,
shall contain sufficient detail to give customers and affected parties adequate
notice of the filing, and shall conform to the requirements of and in compliance
with §26.207 of this title (relating to Form and Filing of Tariffs)
and §26.208 of this title (relating to General Tariff Procedures). If
an application contains material deficiencies, all time frames set forth in
the rule shall be adjusted day-for-day until such deficiencies are cured.
(2)
Rates and terms for a package of services that contains
a basic network service shall be governed by the procedures found in subsection
(k) and (l) of this section.
(3)
Rates and terms for a package containing discretionary
services and competitive services but no basic network service shall be governed
by the procedures found in subsections (i) and (j) of this section.
(4)
A local exchange company that does not elect to be
regulated pursuant to PURA Chapter 58 may not exercise the pricing flexibility
available to an electing ILEC even if the local exchange company concurs in
a tariff of an electing ILEC.
(5)
If commission staff recommends rejection of an application,
an electing ILEC may request docketing.
(6)
The commission may suspend the effective date of a
tariff change proposed under this section for 120 days after the proposed
effective date. If an application is docketed, the operation of the proposed
tariff shall be automatically suspended to a date 120 days after the applicant
has filed all of its direct testimony and exhibits, or 155 days after the
proposed effective date, whichever is later.
(e)
Notice. Semi-annually, an electing ILEC shall notify affected
persons, either by bill insert, bill message, or direct mail, that proposed
changes in the rates or terms of service are regularly published in the Texas Register
through the Office of the Secretary
of State. Such notification shall also appear in the public information pages
of all telephone directories published in Texas. The notification shall identify
the Internet address for the
Texas Register
(www.sos.state.tx.us) and shall provide a toll-free phone number for affected
persons to request direct notice from an electing ILEC of proposed changes
in the rates or terms of service. For purposes of notice, affected persons
include the applicant's Texas customers, persons registered with the commission
to offer long distance service, and persons certified by the commission to
provide local exchange telephone service.
(f)
Proprietary or confidential information.
(1)
Information filed pursuant to this rule is presumed to
be public information. An electing ILEC shall have the burden of establishing
that information filed pursuant to this rule is proprietary or confidential.
(2)
Nothing in this subsection shall be construed to change
the presumption that information filed pursuant to this rule is public information.
An electing ILEC that intends to rely upon data it purports is proprietary
or confidential in support of an application made pursuant to this section
shall submit one copy of the proprietary or confidential data to the Office
of Regulatory Affairs subject to a commission-approved protection agreement.
An electing ILEC that intends to rely upon proprietary or confidential data
has the burden of providing such data on the same date the associated tariff
sheets are filed. In the event an electing ILEC's proprietary or confidential
data is not provided with the associated tariff sheets, the procedural schedule
shall be adjusted day-for-day to reflect the number of days the proprietary
or confidential data is delayed.
(g)
Establishment of a long run incremental cost floor. Establishment
of a LRIC floor requires commission approval of a cost study prepared by an
electing ILEC pursuant to the standards in §23.91 of this title (relating
to Long Run Incremental Cost Methodology for Dominant Certificated Telecommunications
Utility Services). After commission approval of a LRIC floor for a particular
service, an electing ILEC may change the rates of that service in accordance
with the procedures in this section. The procedures in this section may not
be available to an electing ILEC for a service that does not have a LRIC floor.
An electing ILEC that has 5.0% or fewer of the total access lines in this
state may adopt the cost, if determined through a LRIC study based on §23.91
of this title, for the same or substantially similar services offered by a
large ILEC without the requirement of presenting LRIC studies of its own.
(h)
Price changes for competitive services.
(1)
After commission approval of a LRIC floor, an electing
ILEC may exercise pricing flexibility or may change the price of a competitive
service. An electing ILEC may set the price for a competitive service at any
level above the long run incremental cost of the service, except that the
price of the service may not be increased by an electing ILEC in a geographic
area in which the service or a functionally equivalent service is not readily
available from another provider.
(2)
An electing ILEC may file one or more revised tariff
sheets to introduce new or modified rates or terms for competitive services.
The tariff sheets shall be accompanied by a commission-approved application.
The tariff sheets shall be received and effective on an interim basis, subject
to refund, the day following the filing or on a later date designated by the
electing ILEC.
(3)
The commission shall cause notice of the application
to be published in the
Texas Register.
The
notice shall state the intervention deadline, which shall be no earlier than
five days following publication.
(4)
On or before five days after the intervention deadline
of the application, commission staff may file a recommendation to suspend,
docket, or reject the electing ILEC's application. If either a request for
intervention or a recommendation to docket is filed, the expedited administrative
procedures in this subsection shall no longer apply. The tariff sheets shall
remain effective, on an interim basis, unless an order is issued to change
the status.
(5)
If neither an intervention request nor a commission
staff recommendation to suspend, docket, or reject is timely filed, the commission
shall issue an order approving the tariff sheets.
(i)
Price changes for existing discretionary services.
(1)
After commission approval of a LRIC floor, an electing
ILEC may exercise pricing flexibility or may change the price of an existing
discretionary service within the range of the LRIC floor and the price in
effect on September 1, 1995, by following the procedures in this subsection.
(2)
An electing ILEC shall file a commission-approved
application to introduce new or modified rates or terms for an existing discretionary
service. On the same date, an electing ILEC shall file one or more tariff
sheets to introduce new or modified rates or terms for services with the commission-approved
application and all data necessary to support the application shall accompany
the tariff sheets.
(3)
The commission shall cause the notice of the application
to be published in the
Texas Register.
The
published notice shall state the intervention deadline, which shall be no
earlier than five days following publication of notice. On or before five
days after the intervention deadline of the application, commission staff
may file a recommendation to suspend, docket, or reject the electing ILEC's
application. If either a request for intervention or a recommendation to docket
is filed, the expedited administrative procedures in this subsection shall
no longer apply. If neither an intervention request nor a staff recommendation
to suspend, docket, or reject the application is filed, the tariff sheets
shall be approved by the commission effective ten days following the intervention
deadline.
(j)
Establishment of prices for new discretionary services.
An application to establish a price for a new discretionary service shall
be administered in the same manner as price changes for existing discretionary
services, except that in addition to establishing the long run incremental
cost of a new service, an electing ILEC shall file information which complies
with the commission's requirements for establishment of a price ceiling. After
commission approvals of both a LRIC floor and a price ceiling are obtained,
an electing ILEC may flexibly price a new service within the range of the
LRIC floor and the price ceiling by following the procedures in subsection
(i) of this section.
(k)
Price decreases for basic network services.
(1)
After commission approval of a LRIC floor, an electing
ILEC shall follow the procedures in this subsection to decrease a rate for
a basic network service or to change the tariff terms of a basic network service.
(2)
An electing ILEC shall file a commission-approved
application to decrease the rate for or change the tariff terms of a basic
network service. On the same date, an electing ILEC shall file one or more
tariff sheets to decrease a rate for or change the terms of a basic network
service with the commission-approved application and all data necessary to
support the application shall accompany the tariff sheets.
(3)
The commission shall cause a notice of the application
to be published in the
Texas Register.
The
published notice shall state the intervention deadline, which shall be no
earlier than 15 days following publication of notice. On or before five days
after the intervention deadline of the application, commission staff may file
a recommendation to suspend, docket, or reject the application. If either
a request for intervention or a recommendation to docket is filed, the expedited
administrative procedures in this subsection shall no longer apply. If neither
an intervention request nor a staff recommendation to suspend, docket, or
reject the application is filed, the tariff sheets shall be approved by the
commission effective ten days following the intervention deadline.
(l)
Price increases for basic network services.
(1)
For a four-year period following Chapter 58 election, an
increase in the rate for a basic network service is permitted only after commission
approval and only within the parameters set forth in PURA §§58.054
- 58.057 and this section. Changes to tariff terms require commission approval
as set forth in PURA §58.052(b).
(2)
An electing ILEC shall file an application on the
commission-approved form to increase the rate for a basic network service.
The application shall refer to this section, shall be accompanied with sufficient
documentary support to demonstrate that the rate adjustment meets the criteria
prescribed in PURA Chapter 58, shall describe the increase, and shall identify,
with specificity, the customers and competitors to be affected by the electing
ILEC's application. The application shall include a copy of the text of any
proposed notice to customers. The proposed notice to customers shall comply
with §26.208 of this title and shall meet the criteria prescribed in
PURA §58.059 and §53.103. The application shall also state the electing
ILEC's preferred effective date, which shall be no earlier than 90 days after
completion of notice.
(3)
On the same date that the application is filed, an
electing ILEC shall file one or more tariff sheets to increase the rate for
a basic network service with the commission- approved application. All data
necessary to support the application shall accompany the tariff sheets.
(4)
The commission shall cause notice of the application
to be published in the
Texas Register.
The
published notice shall state the intervention deadline, which shall be no
earlier than 40 days following publication of notice. After publication of
notice in the
Texas Register,
the presiding
officer shall establish a deadline for the filing of a staff recommendation,
which shall be no earlier than five days following the intervention deadline.
(5)
Within 20 days of filing of the application and revised
tariff sheets, the presiding officer shall notify the applicant if material
deficiencies exist in the application and if the proposed notice is inadequate.
(6)
Within 50 days of filing of the application and revised
tariff sheets, the applicant shall file an affidavit attesting to the fact
that notice to customers was published in accordance with the requirements
of PURA §58.059 and §53.103. The affidavit shall contain a copy
of all notice given.
(7)
Following receipt of a request for intervention filed
by an affected party, or on the recommendation of commission staff, or on
the commission's own motion, the commission may suspend the effective date
of the rate adjustment and may hold a hearing. After a review, the commission
shall issue an order approving, modifying, or rejecting the rate adjustment
if it is not in compliance with this rule and PURA §§58.056, 58.057
or 58.058. Any order modifying or rejecting the proposed rate adjustment shall
specify why the proposed adjustment is not in compliance with the applicable
provisions of PURA §§58.056, 58.057 or 58.058 and the means by which
the proposed adjustment may be brought into compliance.
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 December
16, 1998.
TRD-9818409
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: January 31, 1999
For further information, please call: (512) 936-7308