CHAPTER 52. COMMISSION JURISDICTION - Texas Statutes

UTILITIES CODE

TITLE 2. PUBLIC UTILITY REGULATORY ACT

SUBTITLE C. TELECOMMUNICATIONS UTILITIES

CHAPTER 52. COMMISSION JURISDICTION

SUBCHAPTER A. GENERAL POWERS AND DUTIES OF COMMISSION

Sec. 52.001. POLICY. (a) It is the policy of this state to

protect the public interest in having adequate and efficient

telecommunications service available to each resident of this

state at just, fair, and reasonable rates.

(b) The telecommunications industry, through technical

advancements, federal legislative, judicial, and administrative

actions, and the formulation of new telecommunications

enterprises, has become and will continue to be in many and

growing areas a competitive industry that does not lend itself to

traditional public utility regulatory rules, policies, and

principles. As a result, the public interest requires that rules,

policies, and principles be formulated and applied to:

(1) protect the public interest; and

(2) provide equal opportunity to each telecommunications utility

in a competitive marketplace.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.002. AUTHORITY TO REGULATE. (a) To carry out the

public policy stated by Section 52.001 and to regulate rates,

operations, and services so that the rates are just, fair, and

reasonable and the services are adequate and efficient, the

commission has exclusive original jurisdiction over the business

and property of a telecommunications utility in this state

subject to the limitations imposed by this title.

(b) The commission's regulatory authority as to a

telecommunications utility other than a public utility is only as

prescribed by this title.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.003. COOPERATION WITH OTHER REGULATORY AUTHORITIES. In

regulating the rates, operations, and services of a

telecommunications utility providing service in a municipality

located on the state line adjacent to a municipality in an

adjoining state, the commission may cooperate with the utility

regulatory commission of the adjoining state or of the federal

government and may hold a joint hearing or make a joint

investigation with that commission.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.004. COMMISSION MAY ESTABLISH SEPARATE MARKETS. (a)

The commission may establish separate telecommunications markets

in this state if the commission determines that the public

interest will be served. The commission shall hold hearings and

require evidence as necessary to:

(1) carry out the public purpose of this chapter; and

(2) determine the need and effect of establishing separate

markets.

(b) A provider determined to be a dominant carrier as to a

particular telecommunications service in a market may not be

presumed to be a dominant carrier of a different

telecommunications service in that market.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.005. MINIMUM REQUIREMENTS FOR DOMINANT CARRIERS. The

commission shall impose as minimum requirements for a dominant

carrier the same requirements imposed by Subchapter C, except

Section 52.107.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.006. COMMISSION TO REPORT TO LEGISLATURE. (a) Before

January 15 of each odd-numbered year, the commission shall report

to the legislature on:

(1) the scope of competition in regulated telecommunications

markets; and

(2) the effect of competition on customers in both competitive

and noncompetitive markets, with a specific focus on rural

markets.

(b) The report shall include:

(1) an assessment of the effect of competition on the rates and

availability of telecommunications services for residential and

business customers;

(2) a summary of commission action over the preceding two years

that reflects changes in the scope of competition in regulated

telecommunications markets; and

(3) recommendations for legislation the commission determines is

appropriate to promote the public interest in the context of a

partially competitive telecommunications market.

(c) The commission, in its assessment under Subsection (b)(1),

shall specifically address any effects on universal service.

(d) A telecommunications utility shall cooperate with the

commission as necessary for the commission to satisfy the

requirements of this section.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER B. INCUMBENT LOCAL EXCHANGE COMPANIES

Sec. 52.051. POLICY. In adopting rules and establishing

procedures under this subchapter, the commission shall:

(1) attempt to balance the public interest in a technologically

advanced telecommunications system providing a wide range of new

and innovative services with traditional regulatory concerns for:

(A) preserving universal service;

(B) prohibiting anticompetitive practices; and

(C) preventing the subsidization of competitive services with

revenues from regulated monopoly services; and

(2) incorporate an appropriate mix of regulatory and market

mechanisms reflecting the level and nature of competition in the

marketplace.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.052. APPLICABILITY. This subchapter does not apply to

basic local telecommunications service, including local measured

service.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.053. CERTAIN RATES PROHIBITED. A rate established under

this subchapter may not be:

(1) unreasonably preferential, prejudicial, or discriminatory;

(2) subsidized either directly or indirectly by a regulated

monopoly service; or

(3) predatory or anticompetitive.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.054. RULES AND PROCEDURES FOR INCUMBENT LOCAL EXCHANGE

COMPANIES. (a) To carry out the public policy stated in Section

52.001, notwithstanding any other provision of this title, the

commission may adopt rules and establish procedures applicable to

incumbent local exchange companies to:

(1) determine the level of competition in a specific

telecommunications market or submarket; and

(2) provide appropriate regulatory treatment to allow an

incumbent local exchange company to respond to significant

competitive challenges.

(b) This section does not change the burden of proof on an

incumbent local exchange company under Sections 53.003, 53.006,

53.051, 53.052, 53.053, 53.054, 53.055, 53.057, 53.058, 53.060,

and 53.062.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.055. HEARING TO DETERMINE LEVEL OF COMPETITION. In

determining the level of competition in a specific market or

submarket, the commission shall hold an evidentiary hearing to

consider:

(1) the number and size of telecommunications utilities or other

persons providing the same, equivalent, or substitutable service;

(2) the extent to which the same, equivalent, or substitutable

service is available;

(3) the ability of a customer to obtain the same, equivalent, or

substitutable service at comparable rates and terms;

(4) the ability of a telecommunications utility or other person

to make the same, equivalent, or substitutable service readily

available at comparable rates and terms;

(5) the existence of a significant barrier to the entry or exit

of a provider of the service; and

(6) other relevant information the commission determines is

appropriate.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.056. SPECIFICALLY AUTHORIZED REGULATORY TREATMENTS. The

regulatory treatments the commission may implement under Section

52.054 include:

(1) approval of a range of rates for a specific service;

(2) approval of a customer-specific contract for a specific

service; and

(3) the detariffing of rates.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.057. CUSTOMER-SPECIFIC CONTRACTS. (a) The commission

shall approve a customer-specific contract that meets the

requirements of Subsection (b) to provide:

(1) central office based PBX-type services for a system of 200

stations or more;

(2) billing and collection services;

(3) high-speed private line services of 1.544 megabits or

greater; or

(4) customized services.

(b) The commission shall approve a contract for a service

described by Subsection (a) if:

(1) the contract is filed before the 30th day before the date

the service contracted for is initiated;

(2) the contract is accompanied by an affidavit from the person

or entity contracting for the service stating that the person or

entity considered acquiring the same, equivalent, or

substitutable service by bid or quotation from a source other

than the incumbent local exchange company;

(3) the incumbent local exchange company recovers the

appropriate costs of providing the service; and

(4) approval of the contract is in the public interest.

(c) The commission shall approve or deny a contract under this

section not later than the 30th day after the date the contract

is filed, unless the commission for good cause extends the

effective date for an additional 35 days.

(d) An incumbent local exchange company may not price similar

services provided under contracts governed by this section in an

unreasonably discriminatory manner.

(e) This section and Section 52.056(2) do not apply to:

(1) message telecommunications service;

(2) switched access service for an interexchange carrier; or

(3) wide area telecommunications service.

(f) In this section, "similar services" means services that:

(1) are provided at or near the same point in time;

(2) have the same characteristics; and

(3) are provided under the same or similar circumstances.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.058. GENERAL PROVISIONS RELATING TO NEW OR EXPERIMENTAL

SERVICES OR PROMOTIONAL RATES. (a) To encourage the rapid

introduction of new or experimental services or promotional

rates, the commission shall adopt rules and establish procedures

that allow:

(1) the expedited introduction of new or experimental services

or promotional rates;

(2) the establishment and adjustment of rates; and

(3) the withdrawal of those services or promotional rates.

(b) The rules and procedures described by Subsection (a) must

include rules and procedures to allow the governing body of a

municipality served by an incumbent local exchange company having

more than 500,000 access lines in this state to make requests to

the commission for new or experimental services or promotional

rates.

(c) A rate established or adjusted at the request of a

municipality may not:

(1) result in higher rates for ratepayers outside the municipal

boundaries; or

(2) include a rate for incumbent local exchange company

interexchange service or interexchange carrier access service.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 1212, Sec. 7, eff. Sept. 1,

1999.

Sec. 52.0583. NEW SERVICES. (a) An incumbent local exchange

company may introduce a new service 10 days after providing an

informational notice to the commission, to the office, and to any

person who holds a certificate of operating authority in the

incumbent local exchange company's certificated area or areas or

who has an effective interconnection agreement with the incumbent

local exchange company.

(b) An incumbent local exchange company shall price each new

service at or above the service's long run incremental cost. The

commission shall 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) An affected person, the office on behalf of residential or

small commercial customers, or the commission may file a

complaint at the commission challenging whether the pricing by an

incumbent local exchange company of a new service is in

compliance with Subsection (b).

(d) If a complaint is filed under Subsection (c), the incumbent

local exchange company has the burden of proving that the company

set the price for the new service in accordance with the

applicable provisions of this subchapter. If the complaint is

finally resolved in favor of the complainant, the company:

(1) shall, not later than the 10th day after the date the

complaint is finally resolved, amend the price of the service as

necessary to comply with the final resolution; or

(2) may, at the company's option, discontinue the service.

(e) A company electing incentive regulation under Chapter 58 or

59 may introduce new services only in accordance with the

applicable provisions of Chapter 58 or 59.

Added by Acts 1999, 76th Leg., ch. 1212, Sec. 8, eff. Sept. 1,

1999.

Sec. 52.0584. PRICING AND PACKAGING FLEXIBILITY; CUSTOMER

PROMOTIONAL OFFERINGS. (a) Notwithstanding any other provision

of this title, an incumbent local exchange company may 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. The company

may exercise pricing flexibility 10 days after providing an

informational notice to the commission, to the office, and to any

person who holds a certificate of operating authority in the

incumbent local exchange company's certificated area or areas or

who has an effective interconnection agreement with the incumbent

local exchange company. Pricing flexibility includes all pricing

arrangements included in the definition of "pricing flexibility"

prescribed by Section 51.002 and includes packaging of any

regulated service with any unregulated service or any service of

an affiliate.

(b) An incumbent local exchange company, at the company's

option, shall 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. The commission shall 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) An affected person, the office on behalf of residential or

small commercial customers, or the commission may file a

complaint alleging that an incumbent local exchange company has

priced a regulated service in a manner that does not meet the

pricing standards of this subchapter. The complaint must be filed

before the 31st day after the date the company implements the

rate.

(d) A company electing incentive regulation under Chapter 58 or

59 may use pricing and packaging flexibility and introduce

customer promotional offerings only in accordance with the

applicable provisions of Chapter 58 or 59.

Added by Acts 1999, 76th Leg., ch. 1212, Sec. 8, eff. Sept. 1,

1999.

Sec. 52.0585. CUSTOMER PROMOTIONAL OFFERINGS. (a) An incumbent

local exchange company may offer a promotion for a regulated

service for not more than 90 days in any 12-month period.

(b) The company shall file with the commission a promotional

offering that consists of:

(1) waiver of installation charges or service order charges, or

both, for not more than 90 days in a 12-month period; or

(2) 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) An incumbent local exchange company is not required to

obtain commission approval to make a promotional offering

described by Subsection (b).

(d) An incumbent local exchange company may 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.

Added by Acts 1999, 76th Leg., ch. 1212, Sec. 8, eff. Sept. 1,

1999.

Sec. 52.059. RATES TO COVER APPROPRIATE COSTS. (a) The

commission by rule shall adopt standards necessary to ensure that

a rate established under this subchapter covers appropriate costs

as determined by the commission.

(b) Until standards are set under Subsection (a), the commission

shall use a costing methodology that is in the public interest to

determine whether a rate established under this subchapter covers

appropriate costs.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.060. ADMINISTRATIVE FEE OR ASSESSMENT. The commission

may prescribe and collect a fee or assessment from local exchange

companies necessary to recover the cost to the commission and to

the office of activities carried out and services provided under

this subchapter and Section 52.006.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER C. TELECOMMUNICATIONS UTILITIES THAT ARE NOT DOMINANT

CARRIERS

Sec. 52.101. APPLICABILITY. This subchapter applies only to a

telecommunications utility that is not:

(1) a dominant carrier; or

(2) the holder of a certificate of operating authority or a

service provider certificate of operating authority.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.102. LIMITED REGULATORY AUTHORITY. (a) Except as

otherwise provided by this subchapter, Subchapters D and K,

Chapter 55, and Section 55.011, the commission has only the

following jurisdiction over a telecommunications utility subject

to this subchapter:

(1) to require registration under Section 52.103;

(2) to conduct an investigation under Section 52.104;

(3) to require the filing of reports as the commission

periodically directs;

(4) to require the maintenance of statewide average rates or

prices of telecommunications service;

(5) to require a telecommunications utility that had more than

six percent of the total intrastate access minutes of use as

measured for the most recent 12-month period to pass switched

access rate reductions under this title to customers as required

by Section 52.112;

(6) to require access to telecommunications service under

Section 52.105; and

(7) to require the quality of telecommunications service

provided to be adequate under Section 52.106.

(b) The authority provided by Subsection (a)(5) expires on the

date on which Section 52.112 expires.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 62, Sec. 18.04(a), eff.

Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1212, Sec. 9, eff. Sept.

1, 1999.

Sec. 52.103. REGISTRATION REQUIRED. (a) A telecommunications

utility shall register with the commission not later than the

30th day after the date the utility commences service to the

public.

(b) A telecommunications utility that registers under Subsection

(a) shall file with the commission a description of:

(1) the location and type of service provided;

(2) the price to the public of that service; and

(3) other registration information the commission directs.

(c) An interexchange telecommunications utility doing business

in this state shall maintain on file with the commission tariffs

or lists governing the terms of providing its services.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.104. COMMISSION MAY INVESTIGATE. (a) The commission

may investigate as necessary to determine the effect and scope of

competition in the telecommunications industry. The investigation

may include:

(1) identifying dominant carriers in the local

telecommunications and intraLATA interexchange telecommunications

industry; and

(2) defining the telecommunications market or markets.

(b) In conducting an investigation under this section, the

commission may:

(1) hold a hearing;

(2) issue a subpoena to compel the attendance of a witness or

the production of a document; and

(3) make findings of fact and decisions to administer this title

or a rule, order, or other action of the commission.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.105. ACCESS TO CERTAIN SERVICES REQUIRED. (a) The

commission may require that each local exchange area have access

to local and interexchange telecommunications service, except as

otherwise provided by this section.

(b) The commission shall allow a telecommunications utility to

discontinue service to a local exchange area if:

(1) comparable service is available in the area; and

(2) discontinuing the service is not contrary to the public

interest.

(c) This section does not authorize the commission to require a

telecommunications utility to initiate service to a local

exchange area to which the telecommunications utility:

(1) did not provide service during the preceding 12-month

period; and

(2) has not provided service previously for a cumulative period

of at least one year.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.106. QUALITY OF SERVICE REQUIRED. The commission may

require the quality of telecommunications service provided in a

local exchange in which the commission determines that service

has deteriorated and become unreliable to be adequate to protect

the public interest and the interests of customers of that

exchange.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.107. PREDATORY PRICING. (a) The commission may enter

an order necessary to protect the public interest if the

commission finds by a preponderance of the evidence after notice

and hearing that an interexchange telecommunications utility has:

(1) engaged in predatory pricing; or

(2) attempted to engage in predatory pricing.

(b) A hearing held by the commission under Subsection (a) must

be based on a complaint from another interexchange

telecommunications utility.

(c) An order entered under Subsection (a) may include the

imposition on a specific service of the commission's full

regulatory authority under:

(1) this chapter;

(2) Chapters 14, 15, 51, 53, and 54; and

(3) Subchapters A, D, and H, Chapter 55.

(d) This section applies only to an interexchange

telecommunications utility.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.108. OTHER PROHIBITED PRACTICES. The commission may

enter any order necessary to protect the public interest if the

commission finds after notice and hearing that a

telecommunications utility has:

(1) failed to maintain statewide average rates;

(2) abandoned interexchange message telecommunications service

to a local exchange area in a manner contrary to the public

interest;

(3) engaged in a pattern of preferential or discriminatory

activities prohibited by Section 53.003, 55.005, or 55.006; or

(4) failed to pass switched access rate reductions to customers

under Chapter 56 or other law, as required by Section 52.112.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 1212, Sec. 10, eff. Sept. 1,

1999.

Sec. 52.109. AVAILABILITY OF SERVICE. (a) The commission may

require a telecommunications utility that provides a service to

make that service available in an exchange served by the

telecommunications utility within a reasonable time after receipt

of a bona fide request for the service in that exchange.

(b) A telecommunications utility may not be required to extend a

service to an area if:

(1) the local exchange company is unable to provide the required

access or other service; or

(2) extending the service would, after consideration of the

public interest to be served, impose unreasonable costs on or

require unreasonable investments by the telecommunications

utility.

(c) The commission may require from a telecommunications utility

or a local exchange company information necessary to enforce this

section.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.110. BURDEN OF PROOF. (a) In a proceeding before the

commission in which it is alleged that a telecommunications

utility engaged in conduct in violation of Section 52.107,

52.108, 52.109, or 52.112, the burden of proof is on:

(1) a telecommunications utility complaining of conduct

committed against it in violation of this subchapter; or

(2) except as provided by Subsection (b), the responding

telecommunications utility if the proceedings are:

(A) brought by a customer or customer representative who is not

a telecommunications utility; or

(B) initiated by the commission.

(b) The commission may impose the burden of proof on the

complaining party in a proceeding described by Subsection (a)(2)

if the commission determines that placing the burden of proof on

the complaining party is in the public interest.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 1212, Sec. 11, eff. Sept. 1,

1999.

Sec. 52.111. COMMISSION MAY EXEMPT. The commission may exempt

from a requirement of this subchapter a telecommunications

utility that:

(1) does not have a significant effect on the public interest,

as determined by the commission; or

(2) relies solely on the facilities of others to complete long

distance calls, if the commission determines that the exemption

is in the public interest.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.112. REDUCTION PASS-THROUGH REQUIRED. (a) Each

telecommunications utility that had more than six percent of the

total intrastate access minutes of use as measured for the most

recent 12-month period shall pass through to customers switched

access rate reductions under this title. The residential customer

class shall receive not less than a proportionate share of the

reductions.

(b) Within six months following each reduction in intrastate

switched access rates under this title, each telecommunications

utility subject to this section shall file with the commission a

sworn affidavit confirming that the utility has reduced the per

minute rates it charges under its basic rate schedule to reflect

the per minute reduction in intrastate switched access rates.

(c) This section expires on the second anniversary of the date

incumbent local exchange companies doing business in the state

are no longer prohibited by federal law from offering interLATA

and interstate long distance service.

Added by Acts 1999, 76th Leg., ch. 1212, Sec. 12, eff. Sept. 1,

1999.

SUBCHAPTER D. CERTIFICATE HOLDERS

Sec. 52.151. APPLICABILITY. This subchapter applies only to a

telecommunications utility that holds a certificate of operating

authority or a service provider certificate of operating

authority.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.152. LIMITED REGULATORY AUTHORITY. Except as otherwise

specifically provided by this title, the commission has only the

following authority over a telecommunications utility subject to

this subchapter:

(1) to enforce this title under Subchapter B, Chapter 15;

(2) to assert jurisdiction over a specific service under

Subchapter E;

(3) to require co-carriage reciprocity; and

(4) to regulate condemnation and building access.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.153. BOOKS AND RECORDS. The commission may prescribe

forms of books, accounts, records, and memoranda to be kept by a

telecommunications utility, but only as necessary to enforce the

limited jurisdiction over those companies that this title

provides to the commission.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.154. COMMISSION MAY NOT OVERBURDEN. The commission may

not, by a rule or regulatory practice adopted under this chapter,

impose on a telecommunications utility a greater regulatory

burden than is imposed on a holder of a certificate of

convenience and necessity serving the same area.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.155. PROHIBITION OF EXCESSIVE ACCESS CHARGES. (a) A

telecommunications utility that holds a certificate of operating

authority or a service provider certificate of operating

authority may not charge a higher amount for originating or

terminating intrastate switched access than the prevailing rates

charged by the holder of the certificate of convenience and

necessity or the holder of a certificate of operating authority

issued under Chapter 65 in whose territory the call originated or

terminated unless:

(1) the commission specifically approves the higher rate; or

(2) subject to commission review, the telecommunications utility

establishes statewide average composite originating and

terminating intrastate switched access rates based on a

reasonable approximation of traffic originating and terminating

between all holders of certificates of convenience and necessity

in this state.

(b) Notwithstanding any other provision of this title, the

commission has all jurisdiction necessary to enforce this

section.

(c) Notwithstanding Subsection (a), Chapter 65 governs the

switched access rates of a company that holds a certificate of

operating authority issued under Chapter 65.

Added by Acts 1999, 76th Leg., ch. 1212, Sec. 13, eff. Sept. 1,

1999.

Amended by:

Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 3, eff. September 7, 2005.

Sec. 52.156. RETAIL RATES, TERMS, AND CONDITIONS. A

telecommunications utility may not:

(1) establish a retail rate, term, or condition that is

anticompetitive or unreasonably preferential, prejudicial, or

discriminatory; or

(2) engage in predatory pricing or attempt to engage in

predatory pricing.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 4, eff. September 7, 2005.

SUBCHAPTER E. DEREGULATION OF SERVICE

Sec. 52.201. DEREGULATION OF SERVICE. Notwithstanding any other

provision of this title, the commission may deregulate the price

of a service in a geographic market if, after notice and hearing,

the commission determines that:

(1) the incumbent local exchange company is not dominant for the

service in that geographic market; or

(2) the holder of a certificate of operating authority who is a

dominant carrier is no longer dominant for the service in that

geographic market.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.202. DETERMINATION OF GEOGRAPHIC MARKET. In determining

the geographic market under Section 52.201, the commission shall

consider the economic and technical conditions of the market.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.203. MARKET POWER TEST. (a) To determine whether an

incumbent local exchange company or holder of a certificate of

operating authority who is a dominant carrier is no longer

dominant for a service in a geographic market, the commission

must find that:

(1) there is an effective competitive alternative; and

(2) the incumbent local exchange company or certificate holder

does not have market power sufficient to control, in a manner

that is adverse to the public interest, the price of the service

in the geographic area.

(b) To determine whether the incumbent local exchange company or

certificate holder is dominant for a service in the geographic

area, the commission shall consider:

(1) the number and size of telecommunications utilities or other

persons who provide the same, equivalent, or substitutable

service in the relevant market;

(2) the extent to which the service is available in the relevant

market;

(3) the ability of customers in the relevant market to obtain

the same, equivalent, or substitutable service at comparable

rates and on comparable terms;

(4) the ability of a telecommunications utility or other person

to make the same, equivalent, or substitutable service readily

available in the relevant market at comparable rates and on

comparable terms;

(5) the proportion of the relevant market that is being provided

the service by a telecommunications utility other than the

incumbent local exchange company or holder of a certificate of

operating authority who is a dominant carrier; and

(6) other relevant information the commission considers

necessary.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.204. RATE FOR DEREGULATED SERVICE. If the price of a

service in a geographic market is deregulated under this

subchapter, the incumbent local exchange company or holder of a

certificate of operating authority may set the rate for the

service at any level higher than the service's long run

incremental cost.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.205. INVESTIGATION OF COMPETITION. (a) On request of

an incumbent local exchange company or holder of a certificate of

operating authority who is a dominant carrier made in conjunction

with an application under this subchapter, the commission shall

investigate to determine the effect and scope of competition in

the geographic and service markets at issue.

(b) The commission has the power necessary and convenient to

conduct the investigation. In conducting an investigation, the

commission may:

(1) hold a hearing;

(2) issue a subpoena to compel the attendance of a witness and

the production of a document; and

(3) make findings of fact and decisions with respect to the

markets.

(c) A party to a proceeding may use, in an application for

pricing flexibility, the results of an investigation conducted

under this section.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.206. REREGULATION OF MARKET. The commission, on its own

motion or on a complaint that the commission considers to have

merit, may assert regulation over a service in a geographic

market if:

(1) the incumbent local exchange company or holder of a

certificate of operating authority who was previously a dominant

carrier is found to again be dominant for the service in that

geographic market; or

(2) the provider of services under a certificate of operating

authority or service provider certificate of operating authority

is found to be dominant for the service in that geographic

market.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.207. REPORTS; CONFIDENTIAL INFORMATION. (a) In

conjunction with the commission's authority to collect and

compile information, the commission may collect a report from a

holder of a:

(1) certificate of operating authority; or

(2) service provider certificate of operating authority.

(b) The commission shall maintain the confidentiality of

information contained in a report collected under this section

that is claimed to be confidential for competitive purposes. The

confidential information is exempt from disclosure under Chapter

552, Government Code.

(c) To protect the confidential information, the commission

shall aggregate the information to the maximum extent possible

considering the purpose of the proceeding.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER F. REQUIRED REPORTS AND FILINGS; RECORDS

Sec. 52.251. TARIFF FILINGS. (a) A public utility shall file

with the commission a tariff showing each rate that is:

(1) subject to the commission's jurisdiction; and

(2) in effect for a utility service, product, or commodity

offered by the utility.

(b) The public utility shall file as a part of the tariff

required under Subsection (a) each rule that relates to or

affects:

(1) a rate of the utility; or

(2) a utility service, product, or commodity furnished by the

utility.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.252. DEPRECIATION ACCOUNT. The commission shall require

each public utility to carry a proper and adequate depreciation

account in accordance with:

(1) the rates and methods prescribed by the commission under

Section 53.056; and

(2) any other rule the commission adopts.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.253. ACCOUNTS OF PROFITS AND LOSSES. A public utility

shall keep separate accounts showing profits or losses from the

sale or lease of merchandise, including an appliance, a fixture,

or equipment.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.255. AVAILABILITY OF RECORDS. Notwithstanding Section

14.152, a book, account, record, or memorandum of a public

utility may be removed from this state if the book, account,

record, or memorandum is returned to this state for any

commission inspection authorized by this title.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 52.256. PLAN AND REPORT OF WORKFORCE DIVERSITY AND OTHER

BUSINESS PRACTICES. (a) In this section, "small business" and

"historically underutilized business" have the meanings assigned

by Section 481.191, Government Code.

(b) Before January 1, 2000, each telecommunications utility

shall develop and submit to the commission a comprehensive

five-year plan to enhance diversity of its workforce in all

occupational categories and for increasing opportunities for

small and historically underutilized businesses. The plan must

consist of:

(1) the telecommunications utility's performance with regard to

workforce diversity and contracting with small and historically

underutilized businesses;

(2) initiatives that the telecommunications utility will pursue

in these areas over the period of the plan;

(3) a listing of programs and activities the telecommunications

utility will undertake to achieve each of these initiatives; and

(4) a listing of the business partnership initiatives the

telecommunications utility will undertake to facilitate small and

historically underutilized business entry into the

telecommunications market, taking into account opportunities for

contracting and joint ventures.

(c) Each telecommunications utility shall submit an annual

report to the commission and the legislature relating to its

efforts to improve workforce diversity and contracting

opportunities for small and historically underutilized

businesses. The report must include:

(1) the diversity of the telecommunications utility's workforce

as of the time of the report;

(2) the telecommunications utility's level of contracting with

small and historically underutilized businesses;

(3) the specific progress made under the plan under Subsection

(b);

(4) the specific initiatives, programs, and activities

undertaken under the plan during the preceding year;

(5) an assessment of the success of each of those initiatives,

programs, and activities;

(6) the extent to which the telecommunications utility has

carried out its initiatives to facilitate opportunities for

contracts or joint ventures with small and historically

underutilized businesses; and

(7) the initiatives, programs, and activities the

telecommunications utility will pursue during the next year to

increase the diversity of its workforce and contracting

opportunities for small and historically underutilized

businesses.

Added by Acts 1999, 76th Leg., ch. 1212, Sec. 14, eff. Sept. 1,

1999.