HBA-DMD H.B. 1701 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 1701
By: Van de Putte
State Affairs
4/9/1999
Introduced



BACKGROUND AND PURPOSE 

Legislation passed by the 74th Legislature set in motion the state's
transition from a regulated environment to a fully competitive
telecommunications marketplace. Under this legislation, traditional
telephone companies were allowed to choose a new form of regulation which
freed them from regulatory scrutiny of their earnings and price levels for
competitive services, in exchange for certain requirements.  

H.B. 1701 authorizes an incumbent local exchange company (exchange company)
to introduce a new service 24 hours after providing an informational notice
to the Public Utility Commission (commission). This bill requires an
exchange company to price each new service at or above the service's long
run incremental cost. This bill also authorizes an exchange company to
exercise pricing flexibility, including the packaging of any regulated
service such as basic local telecommunications service with any other
regulated or unregulated service or any service of an affiliate. It
authorizes an exchange company to offer a promotion for a regulated service
for not more than 90 days in any 12-month period. H.B. 1701 authorizes an
exchange company to recover its universal service fund assessment through a
surcharge added to the bills of the local exchange company's customers.
This bill also authorizes an electing company to increase a rate for a
basic network service after the expiration of the period the company's
rates for basic network services are capped, rather than the four-year
period, with approval from the commission and to the extent consistent with
achieving universal affordable service. In addition, this bill authorizes
an electing company to exercise pricing flexibility for basic network
services, including the packaging of basic network services with any other
regulated or unregulated service or any service of an affiliate. It
prohibits a provider of telecommunications service from imposing a
restriction on the resale or sharing of a service entitled to regulatory
treatment as a nonbasic service. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends the section heading to Section 52.058, Utilities Code,
as follows: 

Sec. 52.058. New Title: GENERAL PROVISIONS RELATING TO NEW OR EXPERIMENTAL
SERVICES OR PROMOTIONAL RATES. 

SECTION 2.  Amends Subchapter B, Chapter 52, Utilities Code, by adding
Sections 52.0583, 52.0584, and 52.0585, as follows: 

Sec. 52.0583. NEW SERVICES. (a) Authorizes an incumbent local exchange
company (exchange company) to introduce a new service 24 hours after
providing an informational notice to the Public Utility Commission
(commission). 

(b) Requires an exchange company to price each new service at or above the
service's long run incremental cost. Requires the commission to allow a
company serving fewer than one million access lines in this state to
establish a service's long run incremental cost  by adopting, at that
company's option, the cost studies of a larger company for that service
that have been accepted by the commission.  

(c) Authorizes only an affected person to file a complaint with the
commission challenging whether the pricing by an exchange company of a new
service is in compliance with Subsection (b). Requires the commission to
allow the company to continue to provide the service while the complaint is
pending.  

(d) Provides that an affected person filing a complaint under Subsection
(c) has the burden of proving that the exchange company did not set the
price for the new service in accordance with the applicable provisions of
this subchapter. Specifies the requirements and authorizations for the
company, if the complaint is finally resolved in favor of the complainant.  

Sec. 52.0584. PRICING AND PACKAGING FLEXIBILITY; CUSTOMER PROMOTIONAL
OFFERINGS. (a) Authorizes an exchange company, notwithstanding any other
provision of this title, to exercise pricing flexibility in accordance with
this section, including the packaging of any regulated service such as
basic local telecommunications service with any other regulated or
unregulated service or any service of an affiliate. Authorizes the company
to exercise pricing flexibility 24 hours after providing an informational
notice to the commission.  

(b) Requires an exchange company, at the company's option, to price each
regulated service offered separately or as part of a package under
Subsection (a) at either the service's tariffed rate or at a rate not lower
than the service's long run incremental cost. Requires the commission to
allow a company serving fewer than one million access lines in this state
to establish a service's long run incremental cost by adopting, at that
company's option, the cost studies of a larger company for that service
that have been accepted by the commission.  

(c) Authorizes only an affected person to file a complaint alleging that an
exchange company has priced a regulated service in a manner that does not
meet the pricing standards of this subchapter. Provides that the complaint
must be filed before the 31st day after the company implements the rate.  

Sec. 52.0585. CUSTOMER PROMOTIONAL OFFERINGS. Authorizes an exchange
company to offer a promotion for a regulated service for not more than 90
days in any 12-month period. Specifies the provisions to be included in a
promotional offering that the company is required to file with the
commission. Provides that a exchange company is not required to obtain
commission approval to make a promotional offering. Authorizes an exchange
company to offer a promotion of any regulated service as part of a package
of services consisting of any regulated service with any other regulated or
unregulated service or any service of an affiliate.  

SECTION 3.  Amends Subchapter C, Chapter 54, Utilities Code, by adding
Section 54.1015, as follows: 

Sec. 54.1015. EFFECT OF AFFILIATE. Authorizes a person, notwithstanding any
other provision of this title, to hold a certificate for all or any portion
of a service area for which one or more affiliates of the person holds a
certificate of operating authority, a service provider certificate of
operating authority, or a certificate of convenience and necessity.  

SECTION 4.  Amends Section 54.103, Utilities Code, by adding Subsection
(g), to prohibit the commission, notwithstanding any other provision of
this title, in determining whether to grant a certificate, from considering
whether an affiliate of the applicant holds a certificate of operating
authority, a service provider certificate of operating authority, or a
certificate of convenience and necessity for all or part of the territory
the applicant has applied to serve.  

SECTION 5.  Amends Section 56.026, Utilities Code, is amended by adding
Subsections (c) and (d),  as follows: 

(c) Prohibits the commission, notwithstanding any other provision of this
title, if a company electing under Chapters 58 (Incentive Regulation) or 59
(Infrastructure Plan), Utilities Code, agrees to reduce rates in
conjunction with receiving disbursements from the universal service fund,
from reducing the amount of those disbursements unless the electing company
agrees to the disbursement reduction.  

(d) Requires any reductions in switched access services rates to offset
disbursements from the universal service fund under Section 56.021(1)
(Universal Service Fund Established), Utilities Code, to local exchange
companies with more than 125,000 access lines in service in this state on
December 31, 1998, to be proportional, based on equivalent minutes of use,
to reductions in intraLATA toll rates. Requires the decreases, to the
extent that the disbursements from the universal service fund under Section
56.021(1) for small and rural local exchange companies are used to decrease
the implicit support in intraLATA toll and switched access rates, to be
made in a competitively neutral manner.  

SECTION 6.  Amends Subchapter B, Chapter 56, Utilities Code, by adding
Sections 56.027 and 56.028, as follows: 

Sec. 56.027. UNIVERSAL SERVICE CHARGE SURCHARGE. Authorizes a local
exchange company to recover its universal service fund assessment through a
surcharge added to the bills of the local exchange company's customers.  

Sec. 56.028. UNIVERSAL SERVICE FUND REIMBURSEMENT FOR CERTAIN INTRALATA
SERVICE. Requires the commission, on request of a local exchange company
that is not an electing company under Chapters 58 or 59, to provide
reimbursement through the universal service fund for reduced rates for
intraLATA interexchange high capacity (1.544 Mbps) service for entities
described by Section 58.253(a) (Private Network Services for Certain
Entities), Utilities Code. Requires the amount of reimbursement to be equal
to the difference between the company's tariffed rates for that service on
January 1, 1998, and the lowest rate offered for that service by any
company electing incentive regulation under Chapter 58.  

SECTION 7.  Amends Section 58.021, Utilities Code, by adding Subsections
(c) and (d), as follows: 

(c) Provides that except as provided by Subsection (d), an election under
this chapter remains in effect until the legislature eliminates the
incentive regulation authorized by this chapter and Chapter 59.  

(d) Authorizes an electing company serving fewer than five million access
lines in this state, notwithstanding any other provision of this chapter,
to withdraw its election under this chapter at any time after the later of
September 1, 2001, or the fourth anniversary of the company's election
date.  

SECTION 8.  Amends Section 58.023, Utilities Code, as follows:

Sec. 58.023. SERVICE CLASSIFICATION. Provides that on election, the
services provided by an electing company are classified into two, rather
than three, categories containing basic network services governed by
Subchapter C (Basic Network Services), Chapter 58, Utilities Code, and
nonbasic services governed by Subchapter E (Competitive Services), Chapter
58, Utilities Code, rather than discretionary services governed by
Subchapter D (Discretionary Services), Chapter 58, Utilities Code, and
competitive services governed by Subchapter E.  

SECTION 9.  Amends Sections 58.024(a) and (b), Utilities Code, to authorize
the commission to reclassify a basic network service as a nonbasic service,
rather than a discretionary or competitive service or discretionary service
as a competitive service. Authorizes the criteria established for
determining whether a service should be reclassified to only, rather than
the criteria must, include certain considerations. 
  
SECTION 10.  Amends Section 58.051, Utilities Code, as follows:

Sec. 58.051. SERVICES INCLUDED. Deletes flat rate business local exchange
telephone service, switched access service, interconnection to competitive
providers, interconnection for commercial mobile service providers,
directory assistance, and "1 plus" intraLATA message toll service as basic
network services, unless reclassified under Section 58.024 (Service
Reclassification), Utilities Code. Includes flat rate residential local
exchange voice telephone service, residential tone dialing service, service
connection for basic residential service, direct inward dialing service for
basic residential services, access for all residential and business end
users to 911 service provided by a local authority and access to dual party
relay service among the list of basic network services, unless reclassified
under Section 58.024. 
 
SECTION 11.  Amends Section 58.054, Utilities Code, by adding Subsections
(c) and (d), as follows: 

(c) Prohibits the cap on the rates for basic network services for a company
electing under this subchapter from expiring before September 1, 2001,
notwithstanding Subsections (a) and (b).  


(d) Provides that the cap on the rates for basic network services does not
preclude an electing company from charging and collecting a surcharge or
fee, or both, required or permitted to be assessed under any provision of
this title.  

SECTION 12.  Amends Section 58.055, Utilities Code, as follows:

Sec. 58.055. RATE ADJUSTMENT BY COMPANY. (a) Authorizes an electing company
to increase a rate for a basic network service during the period the
company's rates for basic network services are capped, rather than the
four-year period, as prescribed by Section 58.054.  

(b) Makes a conforming change.

(c) Authorizes the company to decrease the rate for a basic local
telecommunications service, rather than a basic local telecommunications
service other than switched access, to an amount above the service's
appropriate cost. Deletes text authorizing the company to decrease the rate
for switched access service to an amount above the service's long run
incremental cost. Redesignates existing Subsection (d) to (c). 

SECTION 13.  Amends Section 58.058, Utilities Code, as follows:

Sec. 58.058. RATE GROUP RECLASSIFICATION. Requires the commission,
notwithstanding Section 58.054, rather than Subchapter B, to allow a rate
group reclassification that results from access line growth, on request of
the electing company. 
 
SECTION 14.  Amends Subchapter C, Chapter 58, Utilities Code, is amended by
adding Section 58.0595 to read as follows: 

Sec. 58.0595. PRICING AND PACKAGING FLEXIBILITY. (a) Authorizes an electing
company, notwithstanding Section 58.052(b) (Regulation of Services) or
Subchapter F (Pricing), Chapter 60 (Competitive Safeguards), to exercise
pricing flexibility for basic network services including the packaging of
basic network services with any other regulated or unregulated service or
any service of an affiliate. Authorizes the company to exercise pricing
flexibility in accordance with this section 24 hours after providing an
informational notice to the commission.  

(b) Specifies the level that an electing company is required to set the
price of a package of services containing basic network services and
nonbasic services.  
 
SECTION 15.  Amends Section 58.060, Utilities Code, to authorize an
electing company to increase a rate for a basic network service only with
the commission approval subject to this title and to the extent consistent
with achieving universal affordable service, after the expiration of the
period during which the company's rates for basic network services are
capped as prescribed by Section 58.054, rather than after the four-year
period prescribed by Section 58.054 expires. 

SECTION 16.  Amends Subchapter E, Chapter 58, Utilities Code, as follows:

SUBCHAPTER E. New Heading: NONBASIC SERVICES

Sec. 58.151. SERVICES INCLUDED. Sets forth the services that are classified
as nonbasic services, rather than competitive services. 

Sec. 58.152. PRICES. (a) Authorizes an electing company to set the price
for any nonbasic service, rather than a competitive service, at any level
above the service's long run incremental cost in accordance with the
imputation rules prescribed by or under Subchapter D (Imputation), Chapter
60, Utilities Code, or price for the service in effect on September 1,
1999, whichever is less.  

(b) Authorizes an electing company, rather than subject to the requirements
of Sections 60.001 (Fair Competition) and 60.002 (Exclusive Jurisdiction,
Enforcement), Utilities Code, to use pricing flexibility for a nonbasic
service, rather than competitive service. Provides that pricing flexibility
includes all pricing  arrangements included in the definition of "pricing
flexibility" prescribed by Section 51.002 (Definition), Utilities Code, and
includes packages that include basic network services.  

(c) Requires an electing company, when the electing company that is
required, as of January 1, 1999, to obtain the authorization described by
47 U.S.C. Section 271 and its subsequent amendments to provide certain
interLATA services obtains a final order permitting the company to provide
those services in this state and the electing company or an affiliate of
the company formed in compliance with 47 U.S.C. Section 272 and its
subsequent amendments actually begins providing that service in this state,
to reduce its rates in effect on that date for originating and terminating
switched access services by the amount of two cents per conversation minute
of use. Deletes text prohibiting the company from increasing the price of a
competitive service in a geographic area in which that service or a
functionally equivalent service is not readily available from another
provider.  

(d) Prohibits an electing company, notwithstanding Subsection (a), from
increasing the rates for switched access services, computed on an average
conversation minute of use basis above a certain amount. 

Sec. 58.153. NEW SERVICES. (a) Authorizes an electing company to introduce
a new service 24 hours after providing an informational notice to the
commission, subject to the pricing conditions prescribed by Section
58.152(a).  

(b) Authorizes only an affected person to file a complaint with the
commission challenging whether the pricing by an exchange company of a new
service is in compliance with Section 58.152(a). Requires the commission to
allow the company to continue to provide the service while the complaint is
pending.  

(c) Provides that an affected person filing a complaint under Subsection
(b) has the burden of proving that the exchange company did not set the
price for the new service in accordance with Section 58.152(a). Sets
requirements and authorization for the company, if the complaint is finally
resolved in favor of the complainant.  

SECTION 17.  Amends Section 59.021, Utilities Code, by adding Subsection
(c), to authorize a company electing under this chapter to renew the
election for successive two-year periods. Specifies the date until which an
election that is renewed under this subsection remains in effect.  
 
SECTION 18.  Amends Section 59.024, Utilities Code, by amending Subsections
(a), (d), and (e) and adding Subsections (f) and (g), as follows: 

(a) Prohibits an electing company, except for the charges permitted under
Subchapter C (Expanded Toll-Free Local Calling Areas), Chapter 55
(Regulation of Telecommunications Services), Subchapter B (Universal
Service Fund), Chapter 56 (Telecommunications Assistance and Universal
Service), and Section 55.024, before the end of the company's  election
period under this chapter, rather than on or before the sixth anniversary
of its election date, from increasing a rate previously established for
that company under this title unless the commission approves the proposed
change as authorized under Subsection (c) or (d).  

(d) Requires the commission, notwithstanding Subsection (a), on request of
the electing company, to allow a rate group reclassification that results
from access line growth.  

(e) Provides that the cap on an electing company's rates does not preclude
the company from charging and collecting a surcharge or fee, or both,
required or permitted to be assessed under any provision of this title.  

(f) Authorizes an electing company to, on its own initiative, decrease a
rate during the company's election period. Sets forth that Section 58.059
(Commission Rate Adjustment Procedure), Utilities Code, does not apply to a
rate decrease under this subsection.  

(g) Provides that Section 58.059 applies to a rate change under this
section, except as provided by Subsection (f).  

SECTION 19.  Amends Section 59.025, Utilities Code, as follows:

Sec. 59.025. SWITCHED ACCESS RATES. Prohibits the commission,
notwithstanding any other provision of this title, on the commission's own
motion, from reducing an electing company's rates for switched  access
services before the expiration of the election period, rather than six-year
period, prescribed by Section 59.024, but the commission is authorized to
approve a reduction proposed  by the electing company.  

SECTION 20.  Amends Section 59.026(a), Utilities Code, to provide that on
or before the end of the company's election period, rather than on or
before the sixth anniversary of the company's election date, an electing
company is not, under  any circumstances, subject to certain complaints. 

SECTION 21.  Amends Subchapter B, Chapter 59, Utilities Code, by adding
Sections 59.030, 59.031, and 59.032, as follows: 

Sec. 59.030. NEW SERVICES. (a) Authorizes an electing company to introduce
a new service 24 hours after providing an informational notice to the
commission.  

(b) Requires an electing company to price each new service at or above the
service's long run incremental cost. Requires the commission to allow a
company serving fewer than one million access lines in this state to
establish a service's long run incremental cost by adopting, at that
company's option, the cost studies of a larger company for that service
that have been accepted by the commission.  

(c) Authorizes only an affected person to file a complaint with the
commission challenging whether the pricing by an electing company of a new
service is in compliance with Subsection (b). Requires the commission to
allow the company to continue to provide the service while the complaint is
pending.  

(d) Sets forth that an affected person filing a complaint under Subsection
(c) has the burden of proving that the electing company did not set the
price for the new service in accordance with the applicable provisions of
this subchapter. Specifies authorizations and requirements for the company,
if the complaint is finally resolved in favor of the  complainant. 
 
Sec. 59.031. PRICING AND PACKAGING FLEXIBILITY; CUSTOMER PROMOTIONAL
OFFERINGS. (a) Authorizes an electing company, notwithstanding Section
59.027(b) or Subchapter F, Chapter 60, to exercise pricing flexibility in
accordance with this section, including the packaging of any regulated
service such as basic local telecommunications service with any other
regulated or unregulated service or any service of an affiliate. Authorizes
the company to exercise pricing flexibility 24 hours after providing an
informational notice to the commission.  

(b) Requires an electing company, at the company's option, to price each
regulated service offered separately or as part of a package under
Subsection (a) at either the service's tariffed rate or at a rate not lower
than the service's long run incremental cost. Requires the commission to
allow a company serving fewer than one million access lines in this state
to establish a service's long run incremental cost by adopting, at that
company's option, the cost studies of a larger company for that service
that have been accepted by the commission.  

(c) Authorizes only an affected person to file a complaint alleging that an
electing company has priced a regulated service in a manner that does not
meet the pricing standards of this subchapter.  Provides that the complaint
must be filed before the 31st day after the company implements the rate.  

Sec. 59.032. CUSTOMER PROMOTIONAL OFFERINGS. (a) Authorizes a electing
company to offer a promotion for a regulated service for not more than 90
days in any 12-month period.  

(b) Requires the company to file with the commission a promotional offering
that consists of waiver of installation charges or service order charges,
or both, for not more than 90 days in a 12-month period, or a temporary
discount of not more than 25 percent from the tariffed rate for not more
than 60 days in a 12-month period.  

(c) Provides that an electing company is not required to obtain commission
approval to make a promotional offering described by Subsection (b).  

(d) Authorizes an electing company to offer a promotion of any regulated
service as part of a package of services consisting of any regulated
service with any other regulated or unregulated service or any service of
an affiliate.  

SECTION 22.  Amends Section 60.042, Utilities Code, as follows:

Sec. 60.042. PROHIBITED RESALE OR SHARING. Prohibits a provider of
telecommunications service from imposing a restriction on the resale or
sharing of a service entitled to regulatory treatment as a nonbasic, rather
than competitive, service under Subchapter E, Chapter 58, if the provider
is a company electing regulation under Chapter 58.  

SECTION 23.  Amends Subchapter I, Chapter 60, Utilities Code, by adding
Sections 60.164 and 60.165, as follows: 

Sec. 60.164. PERMISSIBLE JOINT MARKETING. Prohibits the commission, except
as prescribed by Chapters 61 (Information Technology Services) and 63
(Electronic Publishing), Utilities Code, from adopting a rule or order that
would prohibit a local exchange company from marketing or selling the
company's products and services jointly with the products and services of
an affiliate in a manner permitted by federal law or applicable rules of
the Federal Communications Commission.  

Sec. 60.165. AFFILIATE RULES. (a) Prohibits the commission, except as
prescribed by Chapters 61 and 63, from adopting a rule or order that would
prescribe for a local exchange company an affiliate rule, including an
accounting rule, cost allocation rule, or structural  separation rule, that
is more burdensome than prescribed by federal law or applicable rules of
the Federal Communications Commission.  

(b) Prohibits the commission, notwithstanding any other provision of this
title, from attributing or imputing to a local exchange company a price
discount offered by an affiliate to the affiliate's customers.  

SECTION 24. (a) Requires the commission to implement the universal service
fund in all areas of this state no later than November 1, 1999.  

(b) Requires the commission to establish and implement the universal
service fund provisions required by Section 56.021(1), Utilities Code, for
all eligible telecommunications providers no later than November 1, 1999.  

SECTION 25. Repealer:  Section 58.062 (Switched Access Rates), Utilities
Code.  

Repealer: Subchapter D (Discretionary Services), Chapter 58 (Incentive
Regulation), Utilities Code.  

SECTION 26.Effective date: September 1, 1999.  

SECTION 27.Emergency clause.