PART 2. PUBLIC UTILITY COMMISSION OF TEXAS
CHAPTER 26. SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
SUBCHAPTER C. INFRASTRUCTURE AND RELIABILITY
16 TAC §26.57
The Public Utility Commission of Texas (commission)
adopts new §26.57, relating to the requirements for a certificate
holder's use of an alternate technology to meet its provider of last
resort (POLR) obligations, with changes to the proposed text as published
in the February 27, 2009, issue of the Texas Register
(34 TexReg 1333). The new rule implements the requirements
of Public Utility Regulatory Act (PURA) §54.251(c), which provides
that a holder of a certificate of convenience and necessity or a certificate
of operating authority (certificate holder) may meet its POLR obligations
using any available technology, so long as it meets minimum quality
of service standards, including standards for 911 service, comparable
to those established for traditional wireline or landline technologies,
as determined by the commission, and shall offer services at a price
comparable to the monthly service charge for comparable services in
that exchange or the provider's nearest exchange. This new rule is
adopted under Project Number 31958.
Initial comments on the proposed rule were filed by Big Bend Telephone
Company (Big Bend), the Office of Public Utility Counsel (OPUC), Southwestern
Bell Telephone Company, d/b/a AT&T Texas (AT&T), Texas State
Telephone Cooperative, Inc. (TSTCI), Texas 911 Alliance and the Texas
Commission on State Emergency Communications (collectively the 911
Alliance), GTE Southwest Incorporated, d/b/a Verizon Southwest (Verizon),
and Sprint Communications Company, LP, SprintCom, Inc., Sprint Spectrum,
LP, Nextel of Texas, Inc., NPCR, Inc., Time Warner Telecom of Texas,
LP, Time Warner Cable Information Services (Texas), LLC, and TWC Digital
Phone, LLC (collectively, the USF Reform Coalition). Reply comments
were filed by AT&T and Verizon.
General Comments
TSTCI commented that prior to the adoption of PURA §54.251(c)
and the advent of local competition in the telecommunications industry,
neither PURA nor the commission's Substantive Rules specified the
type of technology certificate holders must use to provide service.
Moreover, TSTCI stated that wireline technology was not mandated by
law or rule as a preferred technology, and there was no process or
requirement for a certificate holder to seek approval to use an alternate
technology. If a CCN holder using an alternate technology could not
meet the standards required in §26.54, or another rule, it generally
filed for a waiver from that rule because no other technology was
available. TSTCI noted that a few of its member companies have used
alternate technologies like Basic Exchange Telephone Radio Service
(BETRS) to serve extremely remote customers for many years.
Big Bend stated that it has been using some form of alternate technology
to provide Basic Local Telecommunications Service (BLTS) for the past
forty-nine years. Big Bend opined that the proposed rule adds nothing
new to the current regulatory fabric and, in fact, may unintentionally
diminish the commission's traditional regulatory oversight of BLTS
when offered via alternate technologies. Big Bend suggested that the
new rule could eliminate the applicability of the customer protection
rules currently applicable to BLTS when provided by a provider of
last resort utilizing an alternate technology.
Big Bend and TSTCI commented that instead of adopting a new rule
specific to alternate technologies, the commission should either eliminate
or modify existing rules that currently apply to all technologies.
In reply comments, Verizon disagreed with TSTCI that moderate changes
to the existing service quality rules would suffice. Verizon opined
that the workable solution arrived in the new rule would allow efficient
implementation of new technologies.
TSTCI commented that the proposed approval process for alternate
technologies represents a step backward in the commission's efforts
over the last several years to eliminate unnecessary and burdensome
regulation and rule requirements.
Big Bend stated that it is opposed to the adoption of the new rule
because the commission already has rules in place to deal with certificate
holders' BLTS offerings. Big Bend opined that the adoption of this
rule may result in some certificate holders arguing that because they
utilize an alternate technology to provide BLTS, the proposed rule
replaces otherwise-applicable technology-neutral regulations that
likely afford greater protections than those enumerated in the proposed
rule.
In reply comments, Verizon disagreed with Big Bend and noted that
the rule's intent is clearly to regulate the use of an alternate technology
used by a POLR and is not intended to replace any other obligations
a certificate holder has under the commission's substantive rules.
TSTCI opined that the intent of PURA §54.251(c) is to enable
the commission to regulate TUSF disbursements and quality of service
obligations for alternate technologies--not to establish an approval
process for use of alternate technologies. TSTCI suggested that instead
of having an approval process to use alternate technologies, a certificate
holder could simply provide notice to the commission of its intent
to use a nontraditional or alternate technology.
TSTCI and Big Bend stated that if the commission decides to adopt
the rule in its present form, language should be added to grandfather
existing alternate technologies that are currently being used by certificate
holders.
In reply comments, Verizon agreed with TSTCI's contention that
the rules should not require certification of an existing technology,
and proposed that currently-utilized methods be grandfathered-in.
OPC commented that the proposed rule is unclear on how comparisons
can or should be made across technologies. OPC opined that where technology
differences necessitate different measurements in order to meet the
same quality of service root standard then it is appropriate to set
out what the different technologies must do in order to meet the root
standard. OPC suggested that the proposed rule should be construed
as consistent with certain "root" customer concerns such as: (1) service
activation; (2) customer service; (3) service reliability; (4) transmission
quality; and (5) other requirements including the provision of 911
emergency telecommunications. These standards should be technologically
neutral.
Verizon and the USF Reform Coalition opined that because technologies
are constantly changing, it is reasonable and appropriate for the
commission to consider each technology's ability to meet the statutory
standards on a case-by-case basis.
Commission Response
PURA §54.251(c) provides that a certificate holder with POLR
obligations may use any available technology to meet those obligations.
PURA §54.251(c) further provides that, as determined by the commission,
a certificate holder shall meet minimum quality of service standards,
including standards for 911 service, comparable to those established
for traditional wireline or landline technologies and shall offer
services at a price comparable to the monthly service charge for comparable
services in that exchange or the provider's nearest exchange. In the
rule, the commission sets the standards by which certificate holders
with POLR obligations may obtain a commission determination relative
to their use of technologies other than traditional wireline or landline
technologies to meet their POLR obligations. The standards for the
use of wireline technology to meet a dominant certificate holder's
service quality obligations are found in §26.54 (relating to
Service Objectives and Performance Benchmarks) and the other rules
in Chapter 26, Subchapter C. This new option for certificate holders
with POLR obligations must be consistent with the commission's obligations
to ensure customers have high-quality service under PURA §11.002(c)
and §54.251(a)(2) and to "encourage and accelerate the development
of a competitive and advanced telecommunications environment and infrastructure"
under PURA §51.001(a). Thus the commission must harmonize these
sometimes conflicting obligations and establish a rule implementing
PURA §54.251(c) that is not burdensome or inflexible for certificate
holders with POLR obligations, yet that still ensures consumers have
access to a high level of service quality and customer service.
The new rule applies to all certificate holders with POLR obligations,
regardless of how they are regulated by this commission. However,
as pointed out by several commenters, the rule applies only to certificate
holders when they deploy a technology other than traditional wireline
or landline to meet their POLR obligations. The rule is technology
neutral and does not regulate investment or deployment decisions in
any manner other than by imposing the requirements of PURA §54.251(c).
The commission agrees with TSTCI; there is no express requirement
under statute or rule that a certificate holder with POLR obligations
must use any particular technology, including traditional wireline
or landline technology. However, since the enactment of PURA §54.251(c)
in September 2005, there has been an express requirement that the
commission use its established service quality rules for traditional
wireline or landline technology as a basis for making a determination
as to whether any other technology used by a certificate holder is
"comparable" for purposes of §54.251(c).
PURA §54.251(c) does not require service quality for technologies
other than traditional wireline or landline to be "identical" to the
commission's established service quality requirements, which for transmission
quality are based on traditional wireline or landline technology,
only that the service quality be "comparable," as determined by the
commission. Therefore, this rule specifies the commission's established
service quality rules as the baseline from which it will determine
whether or not other technologies are "comparable" for purposes of §54.251(c).
The new rule protects customers by ensuring minimum standards for
service quality, customer service, and pricing. It also protects certificate
holders with POLR obligations who choose to deploy a technology other
than traditional wireline or landline technology to meet their POLR
obligations, because a determination by the commission that certain
service quality standards are "comparable" may eliminate the possibility
of certain types of customer complaints and any potential enforcement
actions relating to service quality.
The commission agrees with Verizon that the new rule should allow
efficient implementation of technologies other than traditional wireline
or landline. The commission disagrees with Big Bend and notes that
the rule's intent is to regulate the use of technology other than
traditional wireline or landline if used by a certificate holder to
meet its POLR obligations and is not intended to replace any other
obligations a certificate holder has under the commission's substantive
rules. The commission agrees with Verizon that because technologies
are constantly changing, it is reasonable and appropriate to consider
each technology's comparability for purposes of PURA §54.251(c)
on a case-by-case basis. The commission agrees with TSTCI that existing
technologies, other than traditional wireline or landline, that are
already deployed and have been approved by the commission for use
by a particular certificate holder, should be grandfathered. However,
in the event a certificate holder with POLR obligations has already
deployed a technology other than traditional wireline or landline
technology and has not obtained the commission's approval, such deployment
is not grandfathered.
Subsections (a) and (b)
OPC noted that the proposed rule uses the term "provider of last
resort" and "POLR" rather than "carrier of last resort" or "COLR,"
as is used in other sections of Chapter 26 of the commission's rules.
OPC suggested that this dichotomy of terms within the same body of
rules should be resolved so as to avoid confusion or possible misinterpretation
that could result from the use of two separate terms for the same
obligation. OPC opined that in order to effectuate the intent of the
commission and Legislature, the fact that two different terms have
been used should be acknowledged and that the proposed rule should
make clear that "provider of last resort" and "carrier of last resort"
have the same meanings. OPC proposed that a new term "ACOLR", defined
as a holder of a certificate of convenience and necessity or certificate
of operating authority that uses alternate technology to meet its
carrier of last report (COLR) obligations under PURA §54.251(c),
be added to subsection (b).
Big Bend stated that the term "POLR obligations" should be defined.
Commission Response
The commission has changed subsection (a) to make clear that "provider
of last resort" and "carrier of last resort" have the same meaning.
The commission declines to adopt the term ACOLR, because it believes
that introducing this technology-based differentiation is inconsistent
with the purpose of this rule. In addition, it is unnecessary to define
POLR obligations in this rule.
Subsection (d)(1)(A) and (d)(1)(B)
AT&T opined that these two requirements should be deleted from
the rule because neither of the rules contained within these subsections
are true "service quality" standards.
Commission Response
The commission declines to delete subsections (d)(1)(A) and (B).
Subsection (d)(1)(A) requires a certificate holder to show that in
deploying a technology other than traditional wireline or landline
to meet its POLR obligations, it has comparable provisions to ensure
the continuity of service during emergency situations as required
for traditional wireline or landline technologies under §26.52
of this title (relating to Emergency Operations). The intent of the
subsection (d)(1)(B) is to ensure that the certificate holder that
deploys a technology other than traditional wireline or landline to
meet its POLR obligations has programs in place that allow for periodic
tests, inspections, and preventive maintenance aimed at achieving
efficient operation of its system and provision of safe, adequate,
and continuous service. The types of tests and test points may not
be the same as are provided for traditional wireline or landline technology,
but the requirement of the rule is that the certificate holder is
required to show how other types of tests that are applicable to its
chosen technology are comparable in ensuring provision of safe, adequate,
and continuous service. Similar to the commission's response above
to general comments, it concludes that these requirements are important
to protect customers, and obtaining commission approval of any waiver
or modification of the requirements in these two subsections protects
the certificated holder that has chosen to deploy a technology other
than traditional wireline or landline to meet its POLR obligations.
Subsection (d)(2)(A)
Texas 9-1-1 Agencies, OPC, AT&T, and Verizon each proposed
alternative language for subsection (d)(2)(A).
Commission Response
The commission concurs with alternative language proposed by Texas
911 agencies for subsection (d)(2)(A) and has incorporated the alternative
language into the new rule.
Subsection (d)(2)(B)
Verizon commented that the requirements of this subsection are
already required by some other statute or are an unreasonable burden
on the alternate technology (if it must provide something that other
technologies do not).
Commission Response
The commission does not consider the requirements of this subsection
as unreasonable or burdensome because this requirement is comparable
to that imposed on all providers of telecommunications service in §26.272(e)(1)(B)(i)(V)
of this title (relating to Interconnection). Further this requirement
clarifies that if the certificate holder uses an alternate technology
to meet its POLR obligations that can be used in either a fixed or
nomadic form, if the service is provided at a fixed location, a validated
address must be provided.
Subsection (e)
Verizon opined that the word "detailed" is superfluous and should
be omitted from this section. The USF Reform Coalition proposed that
this subsection require an applicant to file its application in a
format that is "publicly available" to all interested parties.
In reply comments, AT&T stated that the USF Reform Coalition's
proposed revisions are unnecessary because the commission's rules
prohibit a party from filing an entire application under seal if only
part of it contains confidential information.
Commission Response
The commission concurs with AT&T. Non-confidential information
must be filed with the commission in a non-confidential filing. In
addition, §22.71(d)(1) of this title (relating to Filing of Pleadings,
Documents, and Other Materials) states that a confidential filing
shall not include any non-confidential materials unless directly related
to and essential for clarity of the confidential material. If a party
believes material has been improperly filed as confidential, the party
may move to have the material declassified. In addition, any person
who is not also a party to the contested case in which confidential
information is filed may file a request for the information in the
commission's possession by submitting a Public Information Act (PIA)
request in writing to open.records@puc.state.tx.us. As required by
the PIA, if confidentially filed information is requested, the PUC
will notify the submitting party of the request and forward the information
to the Office of the Attorney General for review and decision. Please
see http://www.puc.state.tx.us/about/openrec.cfm#con for more information.
Subsection (f)(1)
The 911 Alliance proposed a requirement that the applicant provide
notice to the Texas Commission on State Emergency Communications within
two working days of filing its application. AT&T stated that it
agreed with the notice requirement proposed by the 911 Alliance.
Commission Response
The commission concurs with the 911 Alliance's proposed changes
to the notice requirement and has incorporated these changes in the
new rule.
All comments, including any not specifically referenced herein,
were fully considered by the commission. In adopting this section,
the commission makes other minor modifications for the purpose of
clarifying its intent.
This new rule is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 2007 and
Supplement 2008) (PURA), which provides the commission with the authority
to make and enforce rules reasonably required in the exercise of its
powers and jurisdiction; and specifically, §11.002, which expresses
the purpose of Title II of PURA to grant the commission authority
to make and enforce rules necessary to protect telecommunications
customers, in the context of increased competition and changes in
market structure and technology, §51.001, which expresses the
purpose of Subtitle C of Title II of PURA to grant the commission
authority to make and enforce rules necessary to protect telecommunications
customers, in the context of increased competition and changes in
market structure and technology and the need for standards for service
quality, customer service, and fair business practices, and §54.251(c),
which provides for the commission to establish quality of service
standards that are comparable to the standards for wireline or landline
service.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
11.002, 51.001, and 54.251.
§26.57.Requirements for a Certificate Holder's Use of an Alternate Technology to Meet Its Provider of Last Resort Obligation.
(a) Purpose. This section establishes the requirements
that apply when a certificate holder uses an alternate technology
to meet its provider of last resort (POLR, sometimes also referred
to as a carrier of last resort in other parts of this chapter) obligations.
(b) Definitions. The following terms used in this section
shall have the following meanings, unless the context indicates otherwise.
(1) Alternate technology--a technology other than traditional
wireline or landline technologies.
(2) Certificate holder--a holder of a certificate of
convenience and necessity or a certificate of operating authority.
(c) Application of this section. A certificate holder
may use an alternate technology to meet its POLR obligations only
after the commission approves the use of that alternate technology
by the certificate holder pursuant to this section. A certificate
holder must obtain approval for each type of alternate technology
used to meet its POLR obligations. Unless determined otherwise by
the commission, upon receiving approval to use an alternate technology
to meet its POLR obligations, a certificate holder may use that technology
anywhere in its service territory to meet its POLR obligations. If,
as of the effective date of this rule, a certificate holder has deployed
an alternate technology to meet its POLR obligations and obtained
commission approval for that alternate technology, the certificate
holder is not required to obtain approval for that alternative technology
pursuant to this section unless it seeks changes to what was approved
by the commission.
(d) Standards for meeting POLR obligations using an
alternate technology. In using an alternate technology to meet its
POLR obligations, a certificate holder shall comply with the following
standards.
(1) Quality of service. Unless determined otherwise
by the commission, the certificate holder shall meet applicable minimum
quality of service standards comparable to the following requirements.
(A) §26.52 of this title (relating to Emergency Operations);
(B) §26.53 of this title (relating to Inspections and Tests); and
(C) §26.54 of this title (relating to Service
Objectives and Performance Benchmarks).
(2) 911 Service. The certificate holder shall meet
the following 911 service requirements.
(A) A certificate holder shall provide 911 services
comparable to the requirements established for traditional wireline
or landline technologies; and
(B) A certificate holder providing 911 service to a
fixed location shall include validated address location as part of
the Automatic Location Identification.
(3) Price. The service provided by the certificate
holder to meet its POLR obligations in an exchange shall be offered
at a price comparable to the monthly service charge for comparable
services in that exchange or in the certificate holder's nearest exchange.
(e) Application to meet its POLR obligations using
an alternate technology. A certificate holder shall file a detailed
application demonstrating that the certificate holder meets the standards
set forth in subsection (d) of this section.
(f) Commission processing of application.
(1) Notice.
(A) The commission shall provide notice in the Texas Register.
(B) Not later than two working days after filing an
application, the applicant shall notify the Commission on State Emergency
Communications by providing it a copy of the application.
(C) The applicant shall provide additional notice as
required by the commission.
(2) Sufficiency of application. A motion to find an
application materially deficient shall be filed no later than 15 working
days after an application is filed. The motion shall be served on
the applicant such that the applicant receives it by the day after
it is filed. The motion shall specify the nature of the deficiency
and the relevant portions of the application, and cite the particular
requirement with which the application is alleged not to comply. The
applicant's response to a motion to find an application materially
deficient shall be filed no later than five working days after such
motion is received. If within 26 working days after the filing of
the application, the presiding officer has not filed a written order
concluding that material deficiencies exist in the application, the
application is deemed sufficient. The presiding officer shall notify
the parties of any material deficiencies by written order and the
applicant must cure the deficiencies within 30 days of receipt of
the order.
(3) Review of application. If the requirements of §22.35
of this title (relating to Informal Disposition) are met, the presiding
officer shall issue a notice of approval or proposed order within
60 days of the date a materially sufficient application is filed unless
good cause exists to extend this deadline. If the requirements of §22.35
of this title are not met, the presiding officer shall establish a
procedural schedule that provides for the resolution of the issues
in the proceeding.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise
of the agency's legal authority.
Filed with the Office of the Secretary of State on July 10, 2009.
TRD-200902836
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: July 30, 2009
Proposal publication date: February 27, 2009
For further information, please call: (512) 936-7223
CHAPTER 74. ELEVATORS, ESCALATORS, AND RELATED EQUIPMENT
PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION