16 TAC §26.133
The Public Utility Commission of Texas (commission) proposes
new §26.133, relating to the Business and Marketing Code of Conduct for
Certificated Telecommunications Utilities (CTUs). The proposed new rule is
intended to ensure that CTUs conduct fair business practices and safeguard
against fraudulent, unfair, misleading, deceptive or anticompetitive practices
in order to ensure quality service and a competitive market. Project Number
26955 is assigned to this proceeding.
Randy Klaus, Policy Analyst, Telecommunications Division and Katherine
Farrell, Attorney, Legal and Enforcement Division, have determined that, for
each year of the first five-year period the proposed section is in effect,
there will be no fiscal implications for state or local government as a result
of enforcing or administering the section.
Ms. Farrell and Mr. Klaus have determined that, for each year of the first
five years the proposed section is in effect, the public benefit anticipated
as a result of enforcing the section will be to encourage a fully competitive
telecommunications marketplace and promote diversity of telecommunications
providers by discouraging certain activities that would tend to have an anti-competitive
impact. There will be no adverse economic effect on small businesses or micro-businesses
as a result of enforcing this section. It is anticipated that there may be
some economic costs incurred by persons who are required to comply with the
new section as proposed. The costs incurred are likely to vary from CTU to
CTU, and are difficult to ascertain. The benefits accruing from implementation
of these rules, however, are expected to outweigh these costs.
Ms. Farrell and Mr. Klaus have 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,
pursuant to the Administrative Procedure Act, Texas Government Code §2001.029,
at the commission's offices located in the William B. Travis Building, 1701
North Congress Avenue, Austin, Texas 78701 on Thursday, May 29, 2003 at 10:00
a.m. in Hearing Room Gee.
Comments on the proposed new section (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue,
PO Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
Reply comments are due 45 days after publication. Comments should be organized
in a manner consistent with the organization of the proposed rule. 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 26955.
In addition, the commission requests specific comments on the following
questions:
1. What should be the proper and permissible standard of proof of a violation
of any provision in this rule?
2. What proof is sufficient and allowable pursuant to PURA to meet such
standards (i.e., affidavit only, valid customer complaint, live testimony,
letter, etc.)?
This new section is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated (Vernon 1998, Supplement 2003) (PURA) §14.002,
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 PURA §51.001 and §64.001, which grant the commission authority
to make and enforce rules necessary to protect customers of telecommunications
services consistent with the public interest and to encourage a fully competitive
telecommunications marketplace.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
51.001 and 64.001.
§26.133.Business and Marketing Code of Conduct for Certificated Telecommunications Utilities (CTUs).
(a)
Purpose. The purpose of this section is to establish a
code of conduct in order to implement Public Utility Regulatory Act (PURA) §51.001
and §64.001 relating to fair business practices and safeguards against
fraudulent, unfair, misleading, deceptive, or anticompetitive practices in
order to ensure quality service and a competitive market.
(b)
Application. This section applies to all certificated telecommunications
utilities (CTUs), as defined in §26.5 of this title (relating to Definitions),
and CTU employees. This section also applies to all authorized agents of the
CTU.
(c)
Communications.
(1)
A CTU employee or authorized agent shall conduct communications
with competitors and competitors' end-user customers with the same degree
of professionalism, courtesy, and efficiency as that performed on behalf of
their employer and end-user customers.
(2)
A CTU employee or authorized agent, while engaged in the
installation of equipment or the rendering of services (including the processing
of an order for the installation, repair or restoration of service, or engaged
in the actual repair or restoration of service) on behalf of a competitor
shall not make false or misleading statements regarding the service of any
competitor and shall not promote any of the CTU's services to the competitor's
end-user customers.
(d)
Corporate advertising and marketing.
(1)
A CTU, CTU employee or authorized agent shall not engage
in false, misleading or deceptive practices, advertising or marketing with
respect to the offering of any telecommunications service.
(2)
A CTU, CTU employee or authorized agent shall not falsely
state or falsely imply that the services provided by the CTU on behalf of
a competitor are superior when purchased directly from the CTU.
(3)
A CTU, CTU employee or authorized agent shall not falsely
state or falsely imply that the services offered by a competitor cannot be
reliably rendered, or that the quality of service provided by a competitor
is of a substandard nature.
(4)
A CTU, CTU employee or authorized agent shall not falsely
state nor imply to any end-user customer that the continuation of any telecommunications
service provided by the CTU is contingent upon ordering any other telecommunications
service offered by the CTU. This section is not intended to prohibit a CTU
from offering, or enforcing the terms of, any bundled or packaged service
or any other form of pricing flexibility permitted by PURA and commission
rules.
(e)
Information sharing and disclosure.
(1)
Pursuant to the federal Telecommunications Act §222(a),
each CTU has a duty to protect the confidentiality of proprietary information
of, and relating to, other CTUs.
(2)
Pursuant to the federal Telecommunications Act §222(b),
each CTU that receives or obtains proprietary information from another CTU
for purposes of providing any telecommunications service shall use such information
only for such purpose, and shall not use such information for its own marketing
efforts or any other unauthorized purpose.
(f)
References to other Chapter 26 substantive rules. The following
commission rules also affect the conduct of CTU employees and authorized agents.
The applicability of each of the following sections is unaffected by the reference
in this section and does not relieve any CTU of its responsibility to abide
by other applicable commission rules.
(1)
Section 26.21 of this title (relating to General Provisions
of Customer Service and Protection Rules);
(2)
Section 26.31 of this title (relating to Disclosures to
Applicants and Customers);
(3)
Section 26.32 of this title (relating to Protection Against
Unauthorized Billing Charges ("Cramming"));
(4)
Section 26.37 of this title (relating to Texas No-Call
List);
(5)
Section 26.122 of this title (relating to Customer Proprietary
Network Information (CPNI));
(6)
Section 26.126 of this title (relating to Telephone Solicitation);
and
(7)
Section 26.130 of this title (relating to Selection of
Telecommunications Utilities).
(g)
Adoption and dissemination.
(1)
Every CTU or authorized agent shall formally adopt and
implement all applicable provisions of this section as company policy, or
modify existing company policy as needed to incorporate all applicable provisions,
within 90 days of the effective date of this section. A CTU shall provide
a copy of its internal code of conduct required by this section to the commission
upon request.
(2)
Every CTU or authorized agent shall disseminate the applicable
provisions of this section to all existing and new employees and agents, and
take appropriate actions to both train employees and enforce compliance with
this section on an ongoing basis. Every CTU shall document every employee's
and agent's receipt and acknowledgement of its internal policies required
by this section, and every CTU shall make such documentation available to
the commission upon request.
(h)
Investigation and enforcement.
(1)
Administrative penalties. If the commission finds that
a CTU has violated any provision of this section, the commission shall order
the utility to take corrective action, as necessary, and the utility may be
subject to administrative penalties and other enforcement actions pursuant
to PURA, Chapter 15.
(2)
Certificate revocation. If the commission finds that a
CTU is repeatedly and recklessly in violation of this section, and if consistent
with the public interest, the commission may suspend, restrict, or revoke
the registration or certificate of the CTU.
(3)
Coordination with the Office of the Attorney General. The
commission shall coordinate its enforcement efforts regarding the prosecution
of fraudulent, misleading, deceptive, and anticompetitive business practices
with the Office of the Attorney General in order to ensure consistent treatment
of specific alleged violations.
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 April 4, 2003.
TRD-200302224
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 18, 2003
For further information, please call: (512) 936-7223