TITLE 16.ECONOMIC REGULATION

Part 2. PUBLIC UTILITY COMMISSION OF TEXAS

Chapter 22. PRACTICE AND PROCEDURE

The Public Utility Commission of Texas (commission) proposes amendments to various sections of Subchapter P relating to Dispute Resolution, Subchapter Q relating to Post- Interconnection Agreement Dispute Resolution, and Subchapter R relating to Approval of Amendments to Existing Interconnection Agreements and Agreements Adopting Terms and Conditions Pursuant to FTA96 §252(i). In Subchapter P, the commission also proposes new §22.311 relating to Interconnection Agreements Under the Texas 271 Agreement (T2A). Project Number 22678 has been assigned to this proceeding.

The following sections are being amended: In Subchapter P, §22.301, Purpose; §22.303, Mediation; §22.304, Voluntary Alternative Dispute Resolution; §22.305, Compulsory Arbitration; §22.306, Confidential Information; §22.307, Subsequent Proceedings; §22.308, Approval of Negotiated Agreements; §22.309, Approval of Arbitrated Agreements; and §22.310, Consolidation; in Subchapter Q, §22.323, Filing of Agreement; §22.325, Informal Settlement Conference; §22.326, Formal Dispute Resolution Proceeding; §22.327, Request for Expedited Ruling; and §22.328, Request for Interim Ruling Pending Dispute Resolution; in Subchapter R, §22.341, Approval of Amendments to Existing Interconnection Agreements; and §22.342, Approval of Agreements Adopting Terms and Conditions Pursuant to Federal Telecommunications Act of 1996 (FTA96) §252(i).

The amendments are proposed to clarify existing procedures and to modify the rules to be more administratively efficient for both the commission and parties. The proposed amendments reduce the number of copies required and allow for the dissemination of information by electronic mail and website to reduce costs; allow for commission staff in mediations to take part in the arbitration or review and approval proceedings unless objected to by the parties; modify timelines for greater efficiency; modify the confidential information requirements to be consistent with the proposed changes to the commission' procedural rules in Project Number 22870, Rulemaking to Amend Procedural Rules in Subchapters A - O ; establish procedures for motions for reconsideration; delete subparts no longer necessary due to uncontested cases being processed administratively; and other minor changes to better reflect commission practice. Proposed new §22.311 codifies the commission's order relating to interconnection agreements under the Texas 271 Agreement.

Diane Parker, Arbitration Project Manager, Policy Development Division, has determined that for each year of the first five-year period the proposed sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Ms. Parker has determined that for each year of the first five years the proposed sections are in effect the public benefit anticipated as a result of enforcing the sections will be rules that better meet the needs of parties and the commission, codify commission practice and policy and are more administratively efficient. There will be no effect on small businesses or micro-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. Parker has also determined that for each year of the first five years the proposed sections are in effect there should be no effect on a local economy, and therefore no local employment 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 Monday, April 2, 2001 at 1:00 p.m. in Hearing Room Gee located on the 7th floor.

Comments on the proposed amendments (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 the costs associated with, and benefits that will be gained by, implementation of the proposed sections. The commission will consider the costs and benefits in deciding whether to adopt the sections. All comments should refer to Project Number 22678.

Subchapter P. DISPUTE RESOLUTION

16 TAC §§22.301, 22.303 - 22.311

These amendments and new rule are proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998, Supplement 2001) (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, including rules of practice and procedure.

Cross Reference to Statutes: Public Utility Regulatory Act: §14.002, §14.052 and the federal Telecommunications Act of 1996, 47 U.S.C. §151, et. seq.

§22.301.Purpose.

This subchapter establishes the procedures for dispute resolution and approval of agreements pursuant to the commission's authority under the federal [ Federal ] Telecommunications Act of 1996 (FTA96) .

§22.303.Mediation.

(a)

Any party negotiating a request for interconnection, services or network elements under the federal Telecommunications Act of 1996 (FTA96) [ FTA96 ] §251 may request, in writing, at any time, that the commission assist the parties by mediating any differences that have arisen in the negotiations. Six copies of the request shall be filed with the commission filing clerk and a copy shall be served on each of the other parties involved in the negotiations. The request shall identify the parties involved in the negotiations, the potential issues for which mediation may be needed and, if possible, an estimate of the time period during which mediation will be pursued.

(b)

The commission shall notify the parties of the commission employee who is assigned to serve as a mediator. The commission employee assigned to serve as a mediator may [ not ]participate in arbitration or review and approval proceedings initiated under this subchapter involving the parties to the mediation , unless an objection is filed by one of the parties no later than ten days following initiation of the arbitration or review and approval proceeding . The mediator will work with the parties to establish an appropriate schedule and procedure for mediating any disputes. The mediator's role is limited to assisting the parties in attempting to reach an agreed resolution of the issues.

(c)

Mediation proceedings shall not be transcribed and only parties to the negotiation may participate in the mediation proceeding.

§22.304.Voluntary Alternative Dispute Resolution.

In order to facilitate negotiated resolutions of any dispute concerning a request for interconnection, services or network elements pursuant to the federal Telecommunications Act of 1996 (FTA96) §251[ of the FTA96 ], the parties are encouraged, but not required, to pursue any method of alternative dispute resolution agreeable to them, including, without limitation, mediation or private binding arbitration, in which the commission is not a direct participant. Agreements reached through the parties' use of alternative dispute resolution methods will be considered as equivalent to negotiated agreements, and will be processed for review and approval pursuant to §22.308 of this title (relating to Approval of Negotiated Agreements).

§22.305.Compulsory Arbitration.

(a)

Request for arbitration. Any party to negotiations concerning a request for interconnection, services or network elements pursuant to the federal Telecommunications Act of 1996 (FTA96) §251[ of the FTA96 ] may request arbitration by the commission by filing with the commission's filing clerk ten [ 13 ] copies of a request for arbitration. The request must be received by the commission during the period from the 135th to the 160th day (inclusive) after the date the local exchange company (LEC) [ LEC ] received the request for negotiation from the other negotiating party.

(1)

The request for arbitration shall include:

(A)

[ (1) ] the name, address , [ and ]telephone number , facsimile number, and, if available, email address of each party to the negotiations and the party's designated representative;

(B)

[ (2) ] a description of the parties' efforts to resolve their differences by negotiation;

(C)

[ (3) ] a list of any unresolved issues and the position of each of the parties on each issue [ of those issues ];

(D)

[ (4) ] a list of the issues that have been resolved by the parties and how such resolution complies with the requirements of the FTA96;

(E)

[ (5) ] if the request concerns a request for interconnection under §26.272 of this title (relating to Interconnection), the material required by §26.272(g) of this title; and

(F)

[ (6) ] the most current version of the interconnection agreement being negotiated by the parties, if any, containing both the agreed language and the disputed language of both parties.

(2)

Where a request for arbitration does not meet the requirements of this subsection, the arbitrator may consider dismissal without prejudice pursuant to §22.181 of this title (relating to Dismissal of a Proceeding) and order the party to refile.

(b)

Response. Any non-petitioning party to the negotiation may respond to the request for arbitration by filing ten [ 13 ] copies of the response with the commission's filing clerk and serving a copy on each party to the negotiation. The response must be filed within 25 days after the commission received the request for arbitration. The response shall indicate any disagreement with the matters contained in the request for arbitration and may provide such additional information as the party wishes to present.

(c)

Selection of arbitrator(s) [ arbitrator ]. Upon receipt of a complete request for arbitration, the arbitrator(s) [ an arbitrator ] shall be selected to act for the commission, unless two or more of the Commissioners choose to hear the arbitration en banc. The parties shall be notified of the commission-designated arbitrator(s) [ arbitrator ], or of the Commissioners' decision to act as arbitrator themselves. The arbitrator(s) [ arbitrator ] may be advised on legal and technical issues by members of the commission staff designated by the arbitrator(s) [ arbitrator ]. The commission staff members selected to advise the arbitrator(s) [ arbitrator ] shall be identified to the parties.

(d)

(No change.)

(e)

Participation. Only parties to the negotiation may participate as parties in the arbitration hearing. [ The arbitrator may allow interested persons to file a statement of position and/or list of issues to be considered in the proceeding. ]

(f)

Prehearing conference; challenges. As soon as practical after[ his or her ] selection, the arbitrator(s) [ arbitrator ] shall schedule a prehearing conference with the parties to the arbitration. At the prehearing conference, parties shall [ should be prepared to ] raise any challenges to the appointment of the arbitrator(s) [ arbitrator ] or to the inclusion of any issue identified for arbitration in the petition [ the arbitrability of any issue ]. If such challenges are not raised at the first prehearing conference, they shall be deemed waived by the parties. The arbitrator(s) [ arbitrator ] shall serve on the parties orders ruling on challenges within five [ 10 ] working days of the first prehearing conference.

(g)

Discovery issues. Parties may obtain discovery by submitting requests for information (RFIs), which include requests for inspection and production of documents, requests for admissions, and depositions by oral examination, as provided by Subchapter H of this chapter (relating to Discovery Procedures) and as allowed within the discretion of the arbitrator(s). Parties shall file a proposed discovery schedule that accommodates the FTA96 nine-month deadline, taking into consideration relevant commission timeframes including, but not limited to, the time for decision set out in subsection (s) of this section. If any party requests to extend beyond 45 days, all parties must agree to the extension and file a joint waiver to extend the nine-month deadline under FTA96.

(h)

[ (g) ] Notice. The arbitrator(s) [ arbitrator ] shall make arrangements for the arbitration hearing, which shall [ may not ]be scheduled within [ earlier than ] 35 days after the commission receives a complete request for arbitration. The arbitrator(s) [ arbitrator ] shall notify the parties, not less than ten [ 10 working ] days before the hearing, of the date, time, and location of the hearing.

(i)

[ (h) ] Record of hearing. The arbitration hearing shall be open to the public. If any party requests it, a stenographic record shall be made of the hearing by an official court reporter appointed by the commission. It is the responsibility of the party ordering [ desiring ] the stenographic record to request the commission have an [ arrange for the ] official reporter [ to be ]present. A party may purchase a copy of the transcript from the official reporter at rates set by the commission. The court reporter shall provide the transcript and exhibits in a hearing to the arbitrator(s) [ arbitrator ] at the time the transcript is provided to the requesting party. If no court reporter is requested by a party, the arbitrator shall record the proceedings and maintain the official record and exhibits. Each party to the arbitration hearing shall be responsible for its own costs of participation in the arbitration process.

(j)

[ (i) ] Hearing procedures.

(1)

The parties to the arbitration are entitled to be heard, to present evidence, and to cross-examine witnesses appearing at the hearing.

(2)

Redirect may be allowed at the discretion of the arbitrator(s), as long as parties have reserved time for redirect.

(3)

The arbitrator(s) [ arbitrator ] may temporarily close the arbitration hearing to the public to hear evidence containing information filed as confidential under §22.306 of this title [ subchapter ] (relating to Confidential Information). The arbitrator(s) [ arbitrator ] shall close the hearing only if there is no other practical means of protecting the confidentiality of the information.

(4)

For purposes of appeal, all parties shall provide three copies of all exhibits at the hearing.

(k)

[ (j) ] Rules applicable. The rules of privilege and exemption recognized by Texas law shall apply to arbitration proceedings under this subchapter. The Texas Rules of Civil Procedure, Texas Rules of Civil Evidence, and Subchapters A-O of this chapter are not applicable to proceedings under this subchapter unless specifically referenced in this subchapter.

(l)

[ (k) ] Authority of arbitrator(s) [ arbitrator ]. An arbitrator(s) [ The arbitrator ] has broad discretion in conducting the arbitration hearing and has the authority given to a presiding officer pursuant to §22.202 of this title (relating to Presiding Officer).

(m)

[ (l) ] Time for hearing. The arbitration hearing shall be conducted expeditiously and in an informal manner. The arbitrator(s) may continue a hearing from time to time and place to place. Unless additional time is allowed by the commission or additional information is requested by the arbitrator(s) [ arbitrator ], the hearing may not exceed five working days.

(n)

[ (m) ] Prefiled evidence. Parties to the hearing shall provide their direct cases to the arbitrator(s) [ arbitrator ] at least five working days prior to the hearing unless the arbitrator(s) [ arbitrator ] establishes a different deadline. Ten [ Eighteen ] copies of the direct case shall be filed with the commission filing clerk and a copy shall be provided to each of the other parties to the hearing at the same time it is provided to the arbitrator(s) [ arbitrator ]. The prepared direct case shall include all of the party's direct evidence, including written direct testimony of all of its witnesses and all exhibits that the party intends to offer. The prepared case shall present the entirety of the party's direct evidence on each of the issues in controversy and shall serve as the party's complete direct case. Except as provided in §22.306 of this title[ (relating to Confidential Information) ], all materials filed with the commission or provided to the arbitrator(s) [ arbitrator ] shall be considered public information under the Open Records Act, Texas Government [ Gov't. ] Code, §552.001, et. seq.

(o)

[ (n) ] Decision point list (DPL) and witness list . Parties [ At the arbitrator's request, the parties ] shall file [ develop ] a jointly-populated DPL , in a format approved by the arbitrator, no later than five days before the commencement [ start ] of the hearing . An electronic copy of the DPL shall also be provided. The DPL shall identify all issues to be addressed, the witnesses who will address each issue, and a short synopsis of each witness's position on each issue, with specific citation to the parties' testimony relevant to that issue. [ that includes the specific issues to be decided in the compulsory arbitration, the parties' position on each issue and reference to the parties' testimony relevant to that issue. The DPL may be amended before the close of the arbitration hearing, provided that the opposing party has a reasonable opportunity to present evidence on any issue to be added to the DPL. ] Except as provided in §22.306 of this title, all materials filed with the commission or provided to the arbitrator(s) shall be considered public information under the Open Records Act, Texas Government Code §552.001, et seq.

(p)

[ (o) ] Cross-examination. Each witness presenting written direct testimony shall be available for cross-examination by the other parties to the arbitration. The arbitrator(s) [ arbitrator ] shall judge the credibility of each witness and the weight to be given the [ his or her ] testimony in part based upon the responses [ his or her response ] to cross-examination. If the arbitrator(s) [ arbitrator ] determines that a witness' responses are evasive or non- responsive to the questions asked, the arbitrator(s) [ arbitrator ] may disregard the witness' testimony on the basis of a lack of credibility.

(q)

[ (p) ] Clarifying questions. The arbitrator(s) [ arbitrator ] or a staff member identified as an advisor to the arbitrator(s) [ arbitrator ] may ask clarifying questions at any point during the proceeding and may direct a party or a witness to provide additional information as needed to fully develop the record of the proceeding. If a party fails to present information requested by the arbitrator(s) [ arbitrator ], the arbitrator(s) [ arbitrator ] shall render a decision on the basis of the best information available from whatever source derived.

(r)

[ (q) ] Briefs. The arbitrator(s) [ arbitrator ] may require the parties to submit post-hearing briefs or written summaries of their positions. The arbitrator(s) [ arbitrator ] shall determine the filing deadline and any limitations on the length of such submissions.

(s)

[ (r) ] Time for decision. The arbitrator(s) [ arbitrator ] shall endeavor to issue a final decision on the arbitration within 30 days after filing of any post- hearing briefs, unless waived by the parties [ the conclusion of the hearing ]. The arbitrator(s) [ arbitrator ] shall issue a final decision not later than nine months after the date the local exchange company (LEC) [ LEC ] received the request for negotiation under the FTA96 , unless the deadline is waived by all parties .

(t)

[ (s) ] Decision. The final decision and report of the arbitrator(s) [ arbitrator ] shall be based upon the record of the arbitration hearing. The arbitrator(s) [ arbitrator ] may agree with the positions of one or more of the parties on any or all issues or may offer an independent resolution of the issues. The final decision and report of the arbitrator(s) [ arbitrator ] shall include:

(1)

a ruling on each of the issues presented for arbitration by the parties;

(2)

a statement of any conditions imposed on the parties to the agreement in order to comply with the provisions of FTA96 §252(c);

(3)

a statement of how the final decision meets the requirements of FTA96 §251, including any regulations adopted by the FCC pursuant to §251;

(4)

the rates for interconnection, services, and/or network elements established according to FTA96 §252(d);

(5)

a schedule for implementation of the terms and conditions by the parties to the agreement; and

(6)

a narrative report explaining the arbitrator's rationale for each of the rulings included in the final decision, unless the arbitration is conducted by two or more of the Commissioners acting as the arbitrator(s) [ arbitrator ].

(u)

[ (t) ] Distribution. The final decision and report of the arbitrator(s) [ arbitrator ] shall be filed with the commission as a public record and shall be mailed by first class mail to all parties of record in the arbitration. On the same day that the decision is issued, the arbitrator(s) shall notify the parties by facsimile or electronic mail that the decision has been issued. If the decision involves 9- 1-1 issues, the arbitrator(s) shall also notify the Commission on State Emergency Communications (CSEC) by facsimile or electronic mail on the same day.

(v)

Implementation. Unless modified under subsection (t)(5) of this section implementation of the terms and conditions of the final decision and report shall comply with §22.309 of this title (relating to Approval of Arbitrated Agreements).

(w)

Motions for reconsideration. Motions for reconsideration of a compulsory arbitration award shall be filed pursuant to §22.309 of this title.

§22.306.Confidential Information.

(a)

General. If any party believes that any material it files with the commission or provides to the arbitrator(s) [ arbitrator ] during the arbitration process should be exempt from disclosure under the Open Records Act, it may designate such material as confidential information and submit the information under seal , pursuant to the requirements of §22.71(d) of this title (relating to Filing of Pleadings, Documents and Other Materials) and subsection (b) of this section .

(b)

Filing under seal. Copies of the material shall be delivered to the filing clerk [ Filing Clerk ] of the commission [ and to the arbitrator ]in a sealed envelope that is clearly marked on the outside, in letters at least one inch tall, "CONFIDENTIAL AND UNDER SEAL" [ as containing "Confidential Information" ]. Each page of the material submitted under seal shall be consecutively numbered and the envelope shall clearly specify the number of pages contained therein. The party designating the material as confidential information shall clearly identify each portion of the material alleged to be confidential information, and provide a written explanation of the claimed exemption. Such explanation may be accompanied by affidavits providing appropriate factual support for any claimed exemption. The claim of exemption shall also indicate:

(1) - (3)

(No change.)

(c)

Exemption from disclosure. Material received by the commission or by the arbitrator(s) [ arbitrator ] in accordance with this procedure shall be treated as exempt from public disclosure until and unless such confidential information is determined to be public information as the result of an Open Records Decision by the Attorney General, or pursuant to an order of the presiding officer entered after notice to the parties and hearing, or pursuant to an order of a court having jurisdiction.

(d) - (f)

(No change.)

(g)

Disposition of confidential information. Upon the completion of commission proceedings to review the arbitration agreement pursuant to the federal Telecommunications Act of 1996 (FTA96) [ FTA96 ] §252 and any appeals thereof, confidential information received by the parties shall be returned to the producing party. Any notes or workproduct prepared by the receiving party which were derived in whole or in part from the confidential information shall be destroyed at that time. Material filed with the commission will remain under seal at the commission and will continue to be treated as confidential information under this subchapter. The commission may destroy confidential information in accordance with its records retention standards.

(h)

(No change.)

(i)

Reclassification of confidential material. Materials filed as confidential are presumed to be confidential. However, in any disputes regarding whether materials filed as confidential should be reclassified as not being confidential, the party asserting the confidential nature of the materials shall have the burden of proof.

§22.307.Subsequent Proceedings.

A commission employee who has participated as a mediator under §22.303 of this title (relating to Mediation), an arbitrator(s) [ arbitrator ] under §22.305 of this title (relating to Compulsory Arbitration), or a staff member designated as an advisor to the arbitrator(s) [ arbitrator ] under §22.305(c) may not participate as an ex parte advisor to Commissioners in any subsequent commission proceedings concerning the review and approval of the resulting agreement pursuant to the federal Telecommunications Act of 1996 (FTA96) [ FTA96 ] §252(e), except in cases where two or more of the Commissioners act as the arbitrator(s) [ arbitrator ]. In a proceeding to approve an arbitrated agreement pursuant to §22.309 of this title (relating to Approval of Arbitrated Agreements), the commission or the presiding officer may call upon a commission employee who has participated as an arbitrator under this subchapter to the extent necessary to explain any ambiguities in the arbitrator's final decision.

§22.308.Approval of Negotiated Agreements.

(a)

Application. Any agreement adopted by negotiation shall be submitted to the commission for review and approval and may be submitted by any of the parties to the agreement. The parties requesting approval shall submit an application for approval of the agreement by filing ten [ 13 ] copies of the application with the commission's filing clerk and serving a copy on each of the parties to the agreement. Any agreement submitted to the commission for approval is a public record and no portion of the agreement may be treated as confidential information under §22.306 of this title (relating to Confidential Information). An application for approval of a negotiated agreement shall include:

(1) - (3)

(No change.)

(b)

Notice. The presiding officer may require the parties to the agreement to provide reasonable notice of the filing of the agreement. The presiding officer may require publication of the notice in addition to direct notice to affected persons. At the presiding officer's discretion, direct notice may be provided by electronic mail or a web site, provided all affected persons are made aware of the web site. The presiding officer shall determine the appropriate scope and wording of the notice to be provided. In addition to any notice ordered by the presiding officer, the commission shall cause to be published notice of the filing of the agreement in the Texas Register .

(c)

Proceedings.

(1)

(No change.)

(2)

Formal review. The presiding officer may determine that a formal review is necessary to determine if the negotiated agreement meets the requirements of the federal Telecommunications Act of 1996 (FTA96) [ FTA96 ] §252. At a minimum, the commission will allow interested persons[ , the Office of Regulatory Affairs ] and the Office of Public Utility Counsel to file written comments, provided such comments are filed within 25 days of the filing of the application.

(d)

Comments. An interested person[ , the Office of Regulatory Affairs, ] or the Office of Public Utility Counsel may file comments on the negotiated agreement by filing ten [ 13 ] copies of the comments with the commission's filing clerk and serving a copy of the comments on each party to the agreement. As a part of the comments, a person may include a request for a public hearing on the negotiated agreement. The comments shall include the following information:

(1) - (3)

(No change.)

(e)

(No change.)

(f)

Authority of presiding officer. The presiding officer has broad discretion in conducting the proceeding and has the authority given to a presiding officer pursuant to §22.202 of this title (relating to Presiding Officer). [ Any discovery allowed by the presiding officer shall be limited to the issues relevant to the proceeding. ]

(g)

Final decision.

(1)

Administrative review. The commission delegates its authority to the presiding officer to administratively approve or deny any negotiated interconnection agreements subject to the administrative review process in subsection (c)(1) of this section. The notice [ Notice ] of approval or denial shall be issued within 35 days of the filing of the application. If a notice of denial is filed, the notice of denial shall include written findings indicating any deficiencies in the agreement.

(2)

(No change.)

[ (h)

Rehearing process regarding administratively approved negotiated agreements.]

[ (1)

On the first and fifteenth day of each month, the presiding officer shall file a monthly status report in a project created for that purpose listing all of the negotiated interconnection agreements administratively approved since the previous report.]

[ (2)

Motions for reconsideration seeking commission review of any agreement in a status report shall be filed within ten days of the filing of that report. All motions for reconsideration shall state any claimed error with specificity. Motions for reconsideration filed by non-parties will be considered as comments filed by an interested person.]

[ (3)

Upon the filing of a motion for reconsideration, the Office of Policy Development shall send separate ballots to each commissioner to determine whether the docket should be placed on an open meeting agenda. If a majority of commissioners ballot to reconsider the motion within five days of its filing, the agreement shall be considered at the next open meeting for which notice of the docket may be properly made. The administratively approved agreement shall be considered approved on an interim basis from the date the presiding officer files the notice of approval until the time to file motions for reconsideration has expired, or if a motion for reconsideration is filed, until considered at open meeting.]

(h)

[ (i) ] Filing of agreement. If the commission approves the agreement with modifications the parties to the agreement shall file two copies, one unbound, of the complete agreement with the commission's filing clerk within ten days of the commission's decision [ it will be filed in central records, along with the commission's final decision approving the agreement ]. The copies shall be clearly marked with the control number assigned to the proceeding and the language "Complete interconnection agreement as modified and approved on (insert date)".

(i)

Motions for reconsideration.

(1)

Limitations. Only parties to the negotiated agreement or the Office of Public Utility Counsel may file motions for reconsideration. Any motions for reconsideration filed by non-parties will be considered as comments filed by an interested person. Issues subject to motions for reconsideration are limited to modifications made to the negotiated agreement.

(2)

Procedure. A motion for reconsideration of a negotiated agreement shall be filed within five working days of the issuance of the final order. The motion for reconsideration shall be served on all parties by hand delivery, facsimile transmission, or by overnight courier delivery. Responses to a motion for reconsideration shall be filed within three working days of the filing of the motion.

(3)

Content. A motion for reconsideration shall specify the reasons why the order is unjustified or improper.

(4)

Agenda ballot. Upon filing a motion for reconsideration, the Policy Development Division shall send separate ballots to each Commissioner to determine whether they will consider the motion at an open meeting. The Policy Development Division shall notify the parties by letter whether a Commissioner by individual ballot has added the motion to an open meeting agenda, but will not identify the requesting Commissioner(s).

(5)

Denial or granting of motion.

(A)

If after five working days of the filing of a motion, no Commissioner has by agenda ballot, placed the motion on the agenda for an open meeting, the motion is deemed denied.

(B)

If any Commissioner has balloted in favor of considering the motion, it shall be placed on the agenda for the next regularly scheduled open meeting or such other meeting as the Commissioner may direct by the agenda ballot. In the event two or more Commissioners vote to consider the motion, but differ as to the date the motion shall be heard, the motion shall be placed on the latest of the dates specified by the ballots. The time for ruling on the motion shall expire three days after the open meeting, unless extended by action of the commission.

§22.309.Approval of Arbitrated Agreements.

(a)

Application. Any agreement resulting from arbitration shall be filed with [ submitted to ] the commission for review and approval in accordance with the arbitrator's requirements within 30 days of the date of the arbitrator's final decision and report, unless otherwise provided by the arbitrator(s) [ arbitrator ]. Following the conclusion of an arbitration proceeding under §22.305 of this title (relating to Compulsory Arbitration), the parties shall jointly file an application for approval of the agreement by filing ten [ 13 ] copies of the application with the commission's filing clerk. Any agreement submitted to the commission for approval is a public record and no portion of the agreement may be treated as confidential information under §22.306 of this title (relating to Confidential Information). The application for approval of an arbitrated agreement shall include:

(1)

(No change.)

(2)

the name, address, [ and ]telephone number , facsimile number, and, if available, email address of each of the parties to the agreement, and

(3)

(No change.)

(b)

Notice. The presiding officer may require the parties to the agreement to provide reasonable notice of the filing of the agreement. The presiding officer may require publication of the notice in addition to direct notice to affected persons. At the presiding officer's discretion, direct notice may be provided by electronic mail or a web site, provided all affected persons are made aware of the web site. The presiding officer shall determine the appropriate scope and wording of the notice to be provided. In addition to any notice ordered by the presiding officer, the commission shall cause to be published notice of the filing of the agreement in the Texas Register .

(c)

Proceedings. The commission may conduct whatever proceeding it deems necessary in order to review the arbitrated agreement, including, but not limited to, authorizing a presiding officer to conduct an expedited contested case hearing. The commission or the presiding officer may issue a procedural order or a preliminary order establishing additional procedural requirements for the proceedings. At a minimum, the commission shall allow interested persons[ , the Office of Regulatory Affairs, ] and the Office of Public Utility Counsel to file written comments, provided such comments are filed within seven days of the filing of the application. The arbitrator(s) [ arbitrator ] shall file a recommendation concerning the agreement's compliance with the arbitrator's award and any issues that remain in dispute between the parties.

(d)

Comments. An interested person[ , the Office of Regulatory Affairs ] and the Office of Public Utility Counsel may file written comments concerning the arbitrated agreement by filing ten [ 13 ] copies of the comments with the commission's filing clerk and serving a copy of the comments on each of the parties to the agreement. Such comments shall be limited to whether the arbitrated agreement meets the requirements of the federal Telecommunications Act of 1996 (FTA96) [ FTA96 ] and relevant portions of state law. If such comments request rejection or modification of the agreement, the interested person must provide the following information:

(1)

(No change.)

(2)

specific allegations that the agreement, or some portion thereof:

(A)

does not meet the requirements of FTA96 §251, including any Federal Communications Commission (FCC) [ FCC ] regulation implementing §251; or

(B) - (C)

(No change.)

(3)

(No change.)

(e)

(No change.)

(f)

Final decision. The commission will issue its final decision on the agreement within 45 [ 30 ] days of publication of Texas Register notice pursuant to subsection (b) of this section [ following the filing of the application ]. The commission's final decision may reject the agreement as submitted, approve the agreement as submitted, or approve the agreement with modifications necessary to establish or enforce compliance with other requirements of state law or commission policy . If the commission rejects the agreement, the final decision will include written findings indicating any deficiencies in the agreement.

(g)

Filing of agreement. If the commission approves the agreement with modifications, the parties to the agreement shall file two copies, one unbound, of the complete agreement with the commission's filing clerk within ten days of the commission's decision [ it will be filed in central records, along with the commission's final decision approving the agreement ]. The copies shall be clearly marked with the control number assigned to the proceeding and the language "Complete interconnection agreement as modified and approved on (insert date)".

(h)

Motions for reconsideration.

(1)

Limitations. Only parties to the arbitrated agreement or the Office of Public Utility Counsel may file motions for reconsideration. Any motions for reconsideration filed by non-parties will be considered as comments filed by an interested person.

(2)

Procedure. A motion for reconsideration of an arbitrated agreement shall be filed within five working days of the issuance of the commission's final order. The motion for reconsideration shall be served on all parties by hand delivery, facsimile transmission, or by overnight courier delivery. Responses to a motion for reconsideration shall be filed within three working days of the filing of the motion.

(3)

Content. A motion for reconsideration shall specify the reasons why the order is unjustified or improper.

(4)

Agenda ballot. Upon filing a motion for reconsideration, the Policy Development Division shall send separate ballots to each Commissioner to determine whether they will consider the motion at an open meeting. The Policy Development Division shall notify the parties by letter whether a Commissioner by individual ballot has added the motion to an open meeting agenda, but will not identify the requesting Commissioner(s).

(5)

Denial or granting of motion.

(A)

If after five working days of the filing of a motion, no Commissioner has by agenda ballot, placed the motion on the agenda for an open meeting, the motion is deemed denied.

(B)

If any Commissioner has balloted in favor of considering the motion, it shall be placed on the agenda for the next regularly scheduled open meeting or such other meeting as the Commissioner may direct by the agenda ballot. In the event two or more Commissioners vote to consider the motion, but differ as to the date the motion shall be heard, the motion shall be placed on the latest of the dates specified by the ballots. The time for ruling on the motion shall expire three days after the open meeting, unless extended by action of the commission.

§22.310.Consolidation.

Consistent with the federal Telecommunications Act of 1996 (FTA96) §252(g), the [ The ] commission or the arbitrator(s) [ arbitrator ] may , to the extent practical, consolidate separate [ arbitration ]proceedings under §22.305 of this title (relating to Compulsory Arbitration) or §22.326 of this title (relating to Formal Dispute Resolution Proceedings) in order to reduce the administrative burdens on parties and the commission. The [ and the ] presiding officer may consolidate separate applications for approval of negotiated or arbitrated agreements as appropriate under §22.34 of this title (relating to Consolidation and Severance). The commission may consolidate the arbitration proceeding and the approval process for any arbitration conducted by the commission.

§22.311.Interconnection Agreements Under the Texas 271 Agreement (T2A).

(a)

Acceptance of full T2A.

(1)

Any party who accepts the terms of the T2A agreement as approved in Project Number 16251, Investigation of Southwestern Bell Telephone Company's Entry into the Texas Interlata Telecommunications Market , Order Number 55, Approving the Texas 271 Agreement, shall notify Southwestern Bell Telephone Company (SWBT) in writing. Within five business days of notification, SWBT shall present the party with a signed interconnection agreement substantively identical to the T2A. Within five days of receipt of the signed interconnection agreement, the party shall sign the interconnection agreement and file a copy of the agreement's executed signature page with the commission.

(2)

The signed interconnection agreement shall become effective by operation of law immediately upon filing the executed signature page with the commission.

(b)

Acceptance of less than the full T2A.

(1)

If a party opts into less than the full T2A, in combination with its own interconnection agreement, taking all legitimate related terms, conditions and prices outlined in the T2A document, the commission's expedited approval process pursuant to §22.341 of this title (relating to Approval of Amendments to Existing Interconnection Agreements) shall apply.

(2)

If a party opts into less than the full T2A, in combination with provisions from other commission-approved interconnection agreements, taking all legitimate related terms, conditions and prices outlined in the T2A document, the commission's expedited approval process pursuant to §22.342 of this title (relating to Approval of Agreements Adopting Terms and Conditions Pursuant to Federal Telecommunications Act of 1996 (FTA96) §252(i)) shall apply.

(3)

If a party opts into less than the full T2A, taking all legitimate related terms, conditions and prices outlined in the T2A document, and negotiates the remaining provisions under FTA96 §252, the commission's approval process pursuant to §22.308 of this title (relating to Approval of Negotiated Agreements) shall apply.

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 February 1, 2001.

TRD-200100652

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: March 18, 2001

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

Subchapter Q. POST-INTERCONNECTION AGREEMENT DISPUTE RESOLUTION

16 TAC §§22.323, 22.325 - 22.328

These amendments are proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998, Supplement 2001) (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, including rules of practice and procedure.

Cross Reference to Statutes: Public Utility Regulatory Act: §14.002, §14.052 and the federal Telecommunications Act of 1996, 47 U.S.C. §151, et. seq.

§22.323.Filing of Agreement.

To the extent that the arbitrator(s) [ arbitrator ] concludes that the dispute resolution requires amending the interconnection agreement, the [ such ] amended agreement shall be submitted to the commission for review and approval in accordance with [ Subchapter P, ]§22.309 of this title (relating to Approval of Arbitrated Agreements). The amended agreement shall be submitted within 20 days after the arbitrator's decision is final. If amendments are filed as substitution pages to an existing interconnection agreement, the revision date and docket number shall be clearly marked on each substituted page.

§22.325.Informal Settlement Conference.

(a)

Filing a request. Either party to an interconnection agreement may request an informal settlement conference by filing ten [ 13 ] copies of a written request with the commission and, on the same day, delivering a copy of the request either by hand delivery or by facsimile to the other party (respondent) to the interconnection agreement from which the dispute arises. The written request should include:

(1)

The name, address, telephone number , [ and ] facsimile number , and, if available, email address of each party to the interconnection agreement and the requesting party's designated representative;

(2) - (4)

(No change.)

(b)

The settlement conference. The commission staff conducting the informal settlement conference shall notify the parties of the time, date, and location of the settlement conference, which , if held, shall be conducted [ held ] no later than ten [ 10 ] business days from the date the request was filed. The commission staff may require the respondent to file a response to the request. The parties should provide the appropriate personnel with authority to discuss and to resolve the disputes at the settlement conference. If the parties are in disagreement as to the need of a settlement conference, the presiding officer may deny the request for good cause.

(c) - (d)

(No change.)

§22.326.Formal Dispute Resolution Proceeding.

(a)

Initiation of formal proceeding. A formal proceeding for dispute resolution under this subchapter will commence when a party (complainant) files a complaint with the commission and, on the same day, delivers a copy of the complaint either by hand delivery or by facsimile to the other party (respondent) to the interconnection agreement from which the dispute arises.

(1)

The complaint shall include:

(A)

the name, address, telephone number , [ and ] facsimile number , and, if available, email address of each party to the interconnection agreement and the complainant's designated representative;

(B)

(No change.)

(C)

a detailed list of the discrete issues in dispute, with a cross-reference to the area or areas of the interconnection agreement applicable or pertaining to the issues in dispute;

(D) - (E)

(No change.)

(2)

(No change.)

(3)

Where a request for formal dispute resolution does not meet the requirements of this subsection, the arbitrator(s) may consider dismissal without prejudice pursuant to §22.181 of this title (relating to Dismissal of a Proceeding) and order the party to refile.

(b)

Response to the complaint. Unless §22.327 or §22.328 of this title apply, the respondent shall file a response to the complaint within ten [ 10 ] business days after the filing of the complaint. On the response filing date, the respondent shall serve a copy of the response on the complainant. The response shall specifically affirm or deny each allegation in the complaint. The response shall include the respondent's position on each issue in dispute, a cross-reference to the area or areas of the interconnection agreement [ contract ] applicable or pertaining to the issue in dispute, and the respondent's proposed solution on each issue in dispute. In addition, the response also shall:

(1) - (2)

(No change.)

(c)

(No change.)

(d)

Provisions incorporated from [ Subchapter P, ]§22.305 of this title (relating to Compulsory Arbitration). Except as specified otherwise in this subchapter, the [ following ]provisions of [ Subchapter P, ]§22.305 (c), (d) (f), (i), (j), (k), (m), (n), (o), (p), (q), and (r) of this title are incorporated by reference into this subchapter[ : §22.305(c), (d), (f), (h), (i), (j), (l), (o), (p), and (q) ].

(e)

Number of copies to be filed. Unless otherwise ordered by the arbitrator(s) [ arbitrator ], parties shall file ten [ 13 ] copies of pleadings subject to this subchapter.

(f)

(No change.)

(g)

Notice and hearing. Unless §22.327 or §22.328 of this title apply, the arbitrator(s) [ arbitrator ] shall make arrangements for the hearing to address the complaint, which shall commence no later than 50 days after filing of the complaint. The arbitrator(s) [ arbitrator ] shall notify the parties, not less than ten [ 15 ] days before the hearing, of the date, time, and location of the hearing. The hearing shall be transcribed by a court reporter designated by the arbitrator(s) [ arbitrator ].

(h)

Authority of arbitrator. The arbitrator(s) [ arbitrator ] has broad discretion in conducting the dispute resolution proceeding and has the authority given to a presiding officer pursuant to [ Subchapter K, ]§22.202 of this title (relating to Presiding Officer). The arbitrator(s) [ arbitrator ] shall also have the authority to award remedies or relief deemed necessary by the arbitrator(s) [ arbitrator ] to resolve a dispute subject to the procedures established in this subchapter. The authority to award remedies or relief includes, but is not limited to, the award of prejudgment interest, specific performance of any obligation created in or found by the arbitrator(s) [ arbitrator ] to be intended under the interconnection agreement subject to the dispute, issuance of an injunction, or imposition of sanctions for abuse or frustration of the dispute resolution process subject to this subchapter and Subchapter P of this chapter (relating to Dispute Resolution) , except that the arbitrator does not have authority to award punitive or consequential damages.

(i)

Discovery. Parties may obtain discovery by submitting requests for information (RFIs), which include requests for inspection and production of documents, requests for admissions, and depositions by oral examination, as provided by Subchapter H of this chapter [ , §22.141(b) of this title ] (relating to Discovery Procedures [ Methods ]), and as allowed within the discretion of the arbitrator(s) [ arbitrator ].

[ (j)

Prefiled evidence/witness list. The arbitrator shall require the parties to file a direct case and a joint decision point list (DPL) on or before the commencement of the hearing. The arbitrator shall require the parties to file their direct cases under the same deadline. The prepared direct case shall include all of the party's direct evidence, including written direct testimony of all of its witnesses and all exhibits that the party intends to offer. The DPL shall identify all issues to be addressed, the witnesses who will be addressing each issue, and a short synopsis of each witness's position on each issue. Except as provided in §22.324 of this title (relating to Confidential Information), all materials filed with the commission or provided to the arbitrator shall be considered public information under the Open Records Act, Tex. Gov't Code, §552.001, et seq .]

(j)

[ (k) ] Decision.

(1)

The arbitrator(s) shall endeavor to issue a final decision on the dispute resolution within 30 days [ written decision of the arbitrator shall be filed with the commission within 15 days ] after the filing of any post-hearing briefs [ and shall be mailed by first-class mail to all parties of record ]in the dispute resolution proceeding.

(2)

The final decision and report of the arbitrator(s) shall be filed with the commission as a public record and shall be mailed by first class mail to all parties of record in the dispute resolution. On the same day that the decision is issued, the arbitrator(s) [ arbitrator ] shall notify the parties by facsimile that the decision has been issued. If [ To the extent that ] the decision involves 9-1-1 issues, the arbitrator(s) [ arbitrator ] shall also notify the [ Advisory ]Commission on State Emergency Communications (CSEC) [ (ACSEC) ] by facsimile on the same day.

(3)

[ (2) ] The decision of the arbitrator(s) [ arbitrator ] shall be based upon the record of the dispute resolution hearing, and shall include a specific ruling on each of the disputed issues presented for resolution by the parties. The arbitrator may agree with the positions of one or more of the parties on any or all issues or may offer an independent resolution of the issues. The arbitrator(s) [ arbitrator ] may provide for later implementation of specific provisions as addressed in the arbitrator's decision. The decision may also contain the items addressed in §22.305(t)(4) - (6) of this title [ Subchapter P, §22.305(s)(4)-(6) ] to the extent deemed necessary by the arbitrator(s) [ arbitrator ] to explain or support the decision.

[ (3)

Within three business days from the date the arbitrator's decision is issued, any commissioner may place the arbitrator's decision on the agenda for the next available open meeting. If the decision is scheduled for open meeting, then the decision shall be stayed until the commission affirms or modifies the decision.]

(4)

The commission will consider the report of the arbitrator(s) resolving the dispute within 45 days following the filing of the arbitrator's final decision and report. The commission's final decision may reject the report as submitted, approve the report as submitted, or approve the report with modifications necessary to establish or enforce compliance with other requirements of state law or commission policy. [ If no commissioner places the arbitrator's decision on the open meeting agenda within three business days, the arbitrator's decision is final and effective on the expiration of that third business day. The arbitrator shall notify the parties when the arbitrator's decision is deemed final under this paragraph. ]

(k)

Motions for reconsideration.

(1)

Limitations. Only parties to the negotiated agreement or the Office of Public Utility Counsel may file motions for reconsideration. Any motions for reconsideration filed by non-parties will be considered as comments filed by an interested person. Issues subject to motions for reconsideration are limited to modifications made to the negotiated agreement.

(2)

Procedure. A motion for reconsideration of a negotiated agreement shall be filed within five working days of the issuance of the final order. The motion for reconsideration shall be served on all parties by hand delivery, facsimile transmission, or by overnight courier delivery. Responses to a motion for reconsideration shall be filed within three working days of the filing of the motion.

(3)

Content. A motion for reconsideration shall specify the reasons why the order is unjustified or improper.

(4)

Agenda ballot. Upon filing a motion for reconsideration, the Policy Development Division shall send separate ballots to each Commissioner to determine whether they will consider the motion at an open meeting. The Policy Development Division shall notify the parties by letter whether a Commissioner by individual ballot has added the motion to an open meeting agenda, but will not identify the requesting Commissioner(s).

(5)

Denial or granting of motion.

(A)

If after five working days of the filing of a motion, no Commissioner has by agenda ballot, placed the motion on the agenda for an open meeting, the motion is deemed denied.

(B)

If any Commissioner has balloted in favor of considering the motion, it shall be placed on the agenda for the next regularly scheduled open meeting or such other meeting as the Commissioner may direct by the agenda ballot. In the event two or more Commissioners vote to consider the motion, but differ as to the date the motion shall be heard, the motion shall be placed on the latest of the dates specified by the ballots. The time for ruling on the motion shall expire three days after the open meeting, unless extended by action of the commission.

§22.327.Request for Expedited Ruling.

(a)

Purpose. This section establishes procedures pursuant to which a party who files a complaint to initiate a dispute resolution under this subchapter may request an expedited ruling when the dispute directly affects the ability of a party to provide uninterrupted service to its customers or precludes the provisioning of any service, functionality, or network element. The arbitrator(s) [ arbitrator ] has the discretion to determine whether the resolution of the complaint may be expedited based on the complexity of the issues or other factors deemed relevant. Except as specifically provided in this section, the provisions and procedures of §22.326 of this title (relating to Formal Dispute Resolution Proceeding) apply.

(b)

Filing a request. Any request for expedited ruling shall be filed at the same time and in the same document as the complaint filed pursuant to §22.326 of this title . The complaint shall be entitled "Complaint and Request for Expedited Ruling." In addition to the requirements listed in §22.326(a) of this title , the complaint shall also state the specific circumstances that make the dispute eligible for an expedited ruling.

(c)

Response to complaint. The respondent shall file a response to the complaint within five business days after the filing of the complaint. In addition to the requirements listed in §22.326(b) of this title , the respondent shall state its position on the request for an expedited ruling. The respondent shall serve a copy of the response on the complainant by hand-delivery or facsimile on the same day as it is filed with the commission.

(d)

Hearing. After reviewing the complaint and the response, the arbitrator(s) [ arbitrator ] will determine whether the complaint warrants an expedited ruling. If so, the arbitrator(s) [ arbitrator ] shall make arrangements for the hearing, which shall commence no later than 20 days after the filing of the complaint. The arbitrator(s) [ arbitrator ] shall notify the parties, not less than three business days before the hearing of the date, time, and location of the hearing. If the arbitrator(s) [ arbitrator ] determines that the complaint is not eligible for an expedited ruling, the arbitrator(s) [ arbitrator ] shall so notify the parties within five days of the filing of the response.

(e)

Decision point list (DPL) and witness list. Parties shall [ The arbitrator may require the parties to ] file a jointly-populated DPL , in a format approved by the arbitrator, no later than five days [ on or ] before the commencement of the hearing. An electronic copy of the DPL shall also be provided. [ The arbitrator shall require the parties to file their DPL under the same deadline. ]The DPL shall identify all issues to be addressed, the witnesses [ witness, if any, ] who will address [ be addressing ] each issue, and a short synopsis of each witness's position on each issue , with specific citation to the parties' testimony relevant to that issue . Except as provided in §22.324 of this title (relating to Confidential Information), all materials filed with the commission or provided to the arbitrator(s) [ arbitrator ] shall be considered public information under the Open Records Act, Texas Government Code [ Tex. Gov't Code ], §552.001, et seq.

(f)

Decision. The arbitrator(s) [ arbitrator ] shall issue a written decision on the complaint within ten [ 10 ] days after the close of the hearing. On the day of [ the ] issuance, the arbitrator(s) [ arbitrator ] shall notify the parties by facsimile that the decision has been issued. If [ To the extent that ] the decision involves 9-1-1 issues, the arbitrator(s) [ arbitrator ] shall also notify the [ Advisory ]Commission on State Emergency Communications (CSEC) [ (ACSEC) ] by facsimile on the same day. [ A decision issued pursuant to this section is subject to the commission review provisions under §22.326(k) and will become final under the terms therein. ]

§22.328.Request for Interim Ruling Pending Dispute Resolution.

(a)

Purpose. This section establishes procedures pursuant to which a party who files a complaint to initiate a dispute resolution under either §22.326 of this title (relating to Formal Dispute Resolution Proceeding) or §22.327 of this title (relating to Request for Expedited Ruling) may also request an interim ruling on whether the party is entitled to relief pending the resolution of the merits of the dispute. This section is intended to provide an interim remedy when the dispute compromises the ability of a party to provide uninterrupted service or precludes the provisioning of any [ scheduled ] service , functionality, or network element .

(b) - (c)

(No change.)

(d)

Response. The respondent shall file a response to the complaint within three business days of the filing of the complaint.

(e)

[ (d) ] Hearing. Within five [ three ] business days of the filing of a complaint and request for interim ruling, the arbitrator(s) [ arbitrator ] selected under this subchapter shall conduct a hearing to determine whether interim relief should be granted during the pendency of the dispute resolution process. The arbitrator(s) [ arbitrator ] will notify the parties of the date and time of the hearing by facsimile within two business days [ 24 hours ] of the filing of a complaint and request for interim ruling. The parties shall [ should ] be prepared to present their positions and evidence on factors including but not limited to: the type of service requested; the economic and technical feasibilities of providing that service; and the potential harm in providing the service. The arbitrator(s) [ arbitrator ] will issue an interim ruling on the request based on the evidence provided at the hearing.

(f)

[ (e) ] Ruling. The arbitrator(s) [ arbitrator ] shall issue a written ruling on the request within three business days [ 24 hours ] of the close of the hearing and will notify the parties by facsimile or electronic mail of the ruling. If [ To the extent that ] the decision involves 9-1-1 issues, the arbitrator(s) [ arbitrator ] shall also notify the [ Advisory ]Commission on State Emergency Communications (CSEC) [ (ACSEC) ]by facsimile on the same day. The interim ruling will be effective throughout the dispute resolution proceeding until a final decision is issued pursuant to this subchapter.

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 February 1, 2001.

TRD-200100653

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: March 18, 2001

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

Subchapter R. APPROVAL OF AMENDMENTS TO EXISTING INTERCONNECTION AGREEMENTS AND AGREEMENTS ADOPTING TERMS AND CONDITIONS PURSUANT TO FTA96 §252(i)

16 TAC §22.341, §22.342

These amendments are proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998, Supplement 2001) (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, including rules of practice and procedure.

Cross Reference to Statutes: Public Utility Regulatory Act: §14.002, §14.052 and the federal Telecommunications Act of 1996, 47 U.S.C. §151, et. seq.

§22.341.Approval of Amendments to Existing Interconnection Agreements.

(a)

Application. Any amendments, including modifications, to a previously approved interconnection agreement shall be submitted to the commission for review and approval. Any or all parties to the agreement may file the application for approval of the amendments. The parties requesting approval shall file ten [ 13 ] copies of the application with the commission's filing clerk and, when applicable, serve a copy on each of the other parties to the agreement. An application for approval of an amended agreement shall include:

(1) - (3)

(No change.)

(b)

Notice. The commission may require the parties to the agreement to provide reasonable notice of the filing of the agreement. The commission shall determine the appropriate scope and wording of the notice to be provided. At the commission's discretion, reasonable notice may be provided by electronic mail or a web site, provided all affected persons are made aware of the web site. In addition to any notice ordered by the commission, the commission shall cause to be published notice of the filing of the agreement and request for comments in the Texas Register .

(c)

Proceeding.

(1)

Administrative review and approval.

(A)

To be considered for administrative review and approval an application shall:

(i)

(No change.)

(ii)

meet the requirements of the federal Telecommunications Act of 1996 (FTA96) [ FTA96 ] §252.

(B)

(No change.)

(C)

At a minimum, the commission will allow interested persons[ , the Office of Regulatory Affairs, ] and the Office of Public Utility Counsel [ Policy Development ] to file comments pursuant to subsection (e) of this section.

(2)

Formal review. The presiding officer may determine that a formal review is necessary to determine if the negotiated agreement meets the requirements of the FTA96 §252. At a minimum, the commission will allow interested persons and the Office of Public Utility Counsel [ Regulatory Affairs ] to file written comments, provided the comments are filed within 25 days of the filing of the application.

(d)

(No change.)

(e)

Comments. An interested person or the Office of Public Utility Counsel [ Regulatory Affairs ] may file comments on the amended agreement by filing ten [ 13 ] copies of the comments with the commission's filing clerk and serving a copy of the comments on each party to the agreement within 20 days of the filing of the application. The comments shall include the following information:

(1) - (3)

(No change.)

(f)

Approval or denial of application.

(1)

(No change.)

(2)

The application shall be approved if, based on the presiding officer's [ staff's ] review, it is determined [ the commission determines ] that all requirements have been met. If the commission determines that not all requirements have been met, the application shall either be denied or scheduled for further review pursuant to §22.308 of this title (relating to Approval of Negotiated Agreements) or §22.309 of this title (relating to Approval of Arbitrated Agreements) . The commission shall issue notice of approval, denial, or further review within 35 days of the filing of the application.

(g)

(No change.)

[ (h)

Rehearing regarding administratively approved amendments to existing interconnection agreements.]

[ (1)

On the first and fifteenth day of each month the presiding officer shall file a monthly status report, in a project created for that purpose, listing all of the amendments to existing interconnection agreements administratively approved since the previous report.]

[ (2)

Motions for reconsideration seeking commission review of any amendment in a status report shall be filed within ten days of the filing of that report. All motions for reconsideration shall state any claimed error with specificity. Motions for reconsideration filed by non-parties will be considered as comments filed by an interested person.]

[ (3)

Upon the filing of a motion for reconsideration, the Office of Policy Development shall send separate ballots to each commissioner to determine whether the docket should be placed on an open meeting agenda. If a majority of commissioners ballot to reconsider the motion within five days of its filing, the amendment shall be considered at the next open meeting for which notice of the docket may properly be made. The administratively approved agreement shall be considered approved on an interim basis from the date the presiding officer filed the notice of approval until the time to file motions for reconsideration has expired, or if a motion for reconsideration is filed, until considered at open meeting.]

(h)

[ (i) ] Filing of agreement. If the commission approves the amendments to the agreement, the parties to the agreement shall file two [ three ] copies, one unbound, of the complete amended interconnection agreement with the commission's filing clerk, if one has not already been filed, within ten days of the commission's decision. The copies shall be clearly marked with the control number assigned to the proceeding and the language "Complete amended interconnection agreement as approved on (insert date)."

(i)

Motions for reconsideration.

(1)

Limitations. Only parties to the amended agreement or the Office of Public Utility Counsel may file motions for reconsideration. Any motions for reconsideration filed by non-parties will be considered as comments filed by an interested person. Issues subject to motions for reconsideration are limited to the amendments and/or modifications made to the amended agreement.

(2)

Procedure. A motion for reconsideration of a negotiated agreement shall be filed within five working days of the issuance of the final order. The motion for reconsideration shall be served on all parties by hand delivery, facsimile transmission, or by overnight courier delivery. Responses to a motion for reconsideration shall be filed within three working days of the filing of the motion.

(3)

Content. A motion for reconsideration shall specify the reasons why the order is unjustified or improper.

(4)

Agenda ballot. Upon filing a motion for reconsideration, the Policy Development Division shall send separate ballots to each Commissioner to determine whether they will consider the motion at an open meeting. The Policy Development Division shall notify the parties by letter whether a Commissioner by individual ballot has added the motion to an open meeting agenda, but will not identify the requesting Commissioner(s).

(5)

Denial or granting of motion.

(A)

If after five working days of the filing of a motion, no Commissioner has by agenda ballot, placed the motion on the agenda for an open meeting, the motion is deemed denied.

(B)

If any Commissioner has balloted in favor of considering the motion, it shall be placed on the agenda for the next regularly scheduled open meeting or such other meeting as the Commissioner may direct by the agenda ballot. In the event two or more Commissioners vote to consider the motion, but differ as to the date the motion shall be heard, the motion shall be placed on the latest of the dates specified by the ballots. The time for ruling on the motion shall expire three days after the open meeting, unless extended by action of the commission.

§22.342.Approval of Agreements Adopting Terms and Conditions Pursuant to Federal Telecommunications Act of 1996 (FTA96) §252(i).

(a)

Application. Under FTA96 §252(i), a local exchange carrier shall make available any interconnection, service, or network element provided under a previously approved interconnection agreement to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement. Any agreement adopting terms and conditions of a previously approved interconnection agreement pursuant to FTA96 §252(i) shall be submitted to the commission for review and approval. Any or all of the parties to the agreement may file the application for approval. The parties requesting approval shall file ten [ 13 ] copies of the application with the commission's filing clerk and, when applicable, serve a copy on each of the other parties to the agreement. An application for approval of an agreement adopting terms and conditions pursuant to §252(i) shall include:

(1) - (4)

(No change.)

(b)

(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 February 1, 2001.

TRD-200100654

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: March 18, 2001

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

Chapter 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS

Subchapter J. COSTS, RATES, AND TARIFFS

1. RETAIL RATES

16 TAC §25.236

The Public Utility Commission of Texas (commission) proposes to amend §25.236 relating to Recovery of Fuel Costs. The proposed amendment will implement the provisions of Public Utility Regulatory Act (PURA) §39.202(c) establishing the requirement of final fuel reconciliation for affiliated power generation companies. Project Number 23014 has been assigned to this proceeding.

The commission proposes to amend §25.236 by adding a new subsection (g) establishing a timeline for the filing of the final fuel reconciliation. The timeline as proposed is based upon staff estimates of available commission staff, complexity of the reconciliation filings and the anticipated workload of staff and potential interested parties.

Andy Curtis, Fuel Analyst, Electric Division, 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.

Mr. Curtis 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 the timely evaluation of the fuel expenses of affiliated power generation companies in accordance with the requirements of Senate Bill 7, 76th Legislature, Regular Session (SB7). There will be no effect on small businesses or micro-businesses as a result of enforcing this section. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Mr. Curtis 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 employment 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 Friday, March 23, 2001 from 1:00 to 4:00 p.m. in Hearing Room Gee.

Comments on the proposed amendment (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. 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. All comments should refer to Project Number 23014.

This amendment is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement 2001) (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, §39.202(c), which requires each affiliated power generation company to file a final fuel reconciliation for the period ending the day before the date customer choice is introduced.

Cross Reference to Statutes: Public Utility Regulatory Act §14.002 and §39.202

§25.236.Recovery of Fuel Costs.

(a) - (f)

(No change.)

(g)

Final fuel reconciliation. Notwithstanding the provisions of subsections (b) and (f) of this section, each electric utility's affiliated power generation company, except El Paso Electric Company's, shall file after January 1, 2002, a final fuel reconciliation according to the schedule in paragraphs (1) - (9) of this subsection. For the final fuel reconciliation, the presiding officer shall set a procedural schedule that will enable the commission to issue a final order in the proceeding within six months of the filing date, except for Reliant Energy and TXU Electric proceedings, which will be completed in eight months.

(1)

West Texas Utilities - June 1, 2002;

(2)

Reliant Energy - July 1, 2002;

(3)

Southwestern Public Service - August 1, 2002;

(4)

TXU Electric - October 1, 2002;

(5)

Central Power & Light - December 1, 2002;

(6)

Lower Colorado River Authority - February 1, 2003;

(7)

Entergy Gulf States, Inc. - March 1, 2003;

(8)

Texas-New Mexico Power Company - April 1, 2003; and

(9)

Southwestern Electric Power Company - May 1, 2003.

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 February 2, 2001.

TRD-200100683

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: March 18, 2001

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

Part 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION

Chapter 31. ADMINISTRATION

16 TAC §31.2

The Texas Alcoholic Beverage Commission proposes an amendment to §31.2, governing the management of state-owned vehicles within the commission's care. The proposed amendments relate to the use of vehicles not assigned to enforcement agents and is proposed to comply with the terms of Government Code, §2171.1045.

Lou Bright, General Counsel, has determined that there will be no fiscal impact on state or local government as a result of the amendment.

Mr. Bright has determined that the public will benefit by this amendment because its adoption will bring the commission into compliance with the relevant provisions of the Government Code. There will be no fiscal impact on small business as a result of the amendment.

Comments should be addressed to Lou Bright, General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711.

The amendment is proposed under Government Code, §2171.6045 which commands state agencies to adopt rules such as the one proposed herein.

Cross Reference: No provision of statutory law is affected by this rule.

§31.2.Vehicle Inscription Exemption and Assignment of Vehicles .

(a)

State-owned vehicles utilized by the commission for the enforcement of the Alcoholic Beverage Code shall, in accordance with Texas Civil Statutes, Article 6701m-l, as amended, be exempt from the requirement that such vehicles bear inscriptions. The primary use of the exempt vehicles is by enforcement agents of the commission in the detection and investigation of criminal violations of the code. The purpose served by not printing inscriptions on such vehicles is to increase the effectiveness of commission enforcement agents in detecting and investigating violations of the Code and to provide a greater degree of safety for such agents and the state property under their control.

(b)

Vehicles not assigned to enforcement agents of the commission shall be assigned to the agency motor pool and made available for checkout by qualified agency employees who require such vehicles for the performance of their duties.

(c)

Vehicles assigned to the agency motor pool may not be assigned to an individual employee on a regular or everyday basis unless the administrator or his designee makes a written documented finding that such assignment is critical to the needs and mission of the agency.

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 January 30, 2001.

TRD-200100546

Doyne Bailey

Administrator

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: March 18, 2001

For further information, please call: (512) 206-3204