UTILITIES CODE
SUBTITLE C. TELECOMMUNICATIONS UTILITIES
CHAPTER 51. GENERAL PROVISIONS
§ 51.001. POLICY. (a) Significant changes have
occurred in telecommunications since the law from which this title
is derived was originally adopted. To encourage and accelerate the
development of a competitive and advanced telecommunications
environment and infrastructure, new rules, policies, and
principles must be formulated and applied to protect the public
interest. Changes in technology and market structure have
increased the need for minimum standards of service quality,
customer service, and fair business practices to ensure
high-quality service to customers and a healthy marketplace where
competition is permitted by law. It is the purpose of this subtitle
to grant the commission authority to make and enforce rules
necessary to protect customers of telecommunications services
consistent with the public interest.
(b) It is the policy of this state to:
(1) promote diversity of telecommunications providers
and interconnectivity;
(2) encourage a fully competitive telecommunications
marketplace; and
(3) maintain a wide availability of high quality,
interoperable, standards-based telecommunications services at
affordable rates.
(c) The policy goals described by Subsection (b) are best
achieved by legislation that modernizes telecommunications
regulation by:
(1) guaranteeing the affordability of basic telephone
service in a competitively neutral manner; and
(2) fostering free market competition in the
telecommunications industry.
(d) The technological advancements, advanced
telecommunications infrastructure, and increased customer choices
for telecommunications services generated by a truly competitive
market play a critical role in Texas' economic future by raising
living standards for Texans through:
(1) enhanced economic development; and
(2) improved delivery of education, health, and other
public and private services.
(e) The strength of competitive forces varies widely
between markets, products, and services. It is the policy of this
state to require the commission to take action necessary to enhance
competition by adjusting regulation to match the degree of
competition in the marketplace to:
(1) reduce the cost and burden of regulation; and
(2) protect markets that are not competitive.
(f) It is the policy of this state to ensure that high
quality telecommunications services are available, accessible, and
usable by an individual with a disability, unless making the
services available, accessible, or usable would:
(1) result in an undue burden, including unreasonable
cost or technical infeasibility; or
(2) have an adverse competitive effect.
(g) It is the policy of this state to ensure that customers
in all regions of this state, including low-income customers and
customers in rural and high cost areas, have access to
telecommunications and information services, including
interexchange services, cable services, wireless services, and
advanced telecommunications and information services, that are
reasonably comparable to those services provided in urban areas and
that are available at prices that are reasonably comparable to
prices charged for similar services in urban areas. Not later than
November 1, 1999, the commission shall begin a review and
evaluation of the availability and the pricing of
telecommunications and information services, including
interexchange services, cable services, wireless services, and
advanced telecommunications and information services, in rural and
high cost areas, as well as the convergence of telecommunications
services. The commission shall file a report with the legislature
not later than January 1, 2001. The report must include the
commission's recommendations on the issues reviewed and evaluated.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts1999, 76th Leg., ch. 1212, § 4, eff. Sept. 1, 1999.
§ 51.002. DEFINITIONS. In this subtitle:
(1) "Basic local telecommunications service" means:
(A) flat rate residential and business local
exchange telephone service, including primary directory listings;
(B) tone dialing service;
(C) access to operator services;
(D) access to directory assistance services;
(E) access to 911 service provided by a local
authority or dual party relay service;
(F) the ability to report service problems seven
days a week;
(G) lifeline and tel-assistance services; and
(H) any other service the commission determines
after a hearing is a basic local telecommunications service.
(2) "Dominant carrier" means a provider of a
communication service provided wholly or partly over a telephone
system who the commission determines has sufficient market power in
a telecommunications market to control prices for that service in
that market in a manner adverse to the public interest. The term
includes a provider who provided local exchange telephone service
within a certificated exchange area on September 1, 1995, as to that
service and as to any other service for which a competitive
alternative is not available in a particular geographic market. In
addition, with respect to:
(A) intraLATA long distance message
telecommunications service originated by dialing the access code
"1-plus," the term includes a provider of local exchange telephone
service in a certificated exchange area for whom the use of that
access code for the origination of "1-plus" intraLATA calls in the
exchange area is exclusive; and
(B) interexchange services, the term does not
include an interexchange carrier that is not a certificated local
exchange company.
(3) "Incumbent local exchange company" means a local
exchange company that has a certificate of convenience and
necessity on September 1, 1995.
(4) "Local exchange company" means a
telecommunications utility that has a certificate of convenience
and necessity or a certificate of operating authority to provide in
this state:
(A) local exchange telephone service;
(B) basic local telecommunications service; or
(C) switched access service.
(5) "Local exchange telephone service" means
telecommunications service provided within an exchange to
establish connections between customer premises within the
exchange, including connections between a customer premises and a
long distance provider serving the exchange. The term includes
tone dialing service, service connection charges, and directory
assistance services offered in connection with basic local
telecommunications service and interconnection with other service
providers. The term does not include the following services,
whether offered on an intraexchange or interexchange basis:
(A) central office based PBX-type services for
systems of 75 stations or more;
(B) billing and collection services;
(C) high-speed private line services of 1.544
megabits or greater;
(D) customized services;
(E) private line or virtual private line
services;
(F) resold or shared local exchange telephone
services if permitted by tariff;
(G) dark fiber services;
(H) non-voice data transmission service offered
as a separate service and not as a component of basic local
telecommunications service;
(I) dedicated or virtually dedicated access
services; or
(J) any other service the commission determines
is not a "local exchange telephone service."
(6) "Long run incremental cost" has the meaning
assigned by 16 T.A.C. Section 23.91 or its successor.
(7) "Pricing flexibility" includes:
(A) customer specific contracts;
(B) packaging of services;
(C) volume, term, and discount pricing;
(D) zone density pricing, with a zone to be
defined as an exchange; and
(E) other promotional pricing.
(8) "Public utility" or "utility" means a person or
river authority that owns or operates for compensation in this
state equipment or facilities to convey, transmit, or receive
communications over a telephone system as a dominant carrier. The
term includes a lessee, trustee, or receiver of any of those
entities, or a combination of those entities. The term does not
include a municipal corporation. A person is not a public utility
solely because the person:
(A) furnishes or furnishes and maintains a
private system;
(B) manufactures, distributes, installs, or
maintains customer premise communications equipment and
accessories; or
(C) furnishes a telecommunications service or
commodity only to itself, its employees, or its tenants as an
incident of employment or tenancy, if that service or commodity is
not resold to or used by others.
(9) "Separation" means the division of plant,
revenues, expenses, taxes, and reserves applicable to exchange or
local service if these items are used in common to provide public
utility service to both local exchange telephone service and other
service, such as interstate or intrastate toll service.
(10) "Telecommunications provider":
(A) means:
(i) a certificated telecommunications
utility;
(ii) a shared tenant service provider;
(iii) a nondominant carrier of
telecommunications services;
(iv) a provider of commercial mobile
service as defined by Section 332(d), Communications Act of 1934
(47 U.S.C. Section 151 et seq.), Federal Communications Commission
rules, and the Omnibus Budget Reconciliation Act of 1993 (Public
Law 103-66), except that the term does not include these entities
for the purposes of Chapter 17, 55, or 64;
(v) a telecommunications entity that
provides central office based PBX-type sharing or resale
arrangements;
(vi) an interexchange telecommunications
carrier;
(vii) a specialized common carrier;
(viii) a reseller of communications;
(ix) a provider of operator services;
(x) a provider of customer-owned pay
telephone service; or
(xi) a person or entity determined by the
commission to provide telecommunications services to customers in
this state; and
(B) does not mean:
(i) a provider of enhanced or information
services, or another user of telecommunications services, who does
not also provide telecommunications services; or
(ii) a state agency or state institution of
higher education, or a service provided by a state agency or state
institution of higher education.
(11) "Telecommunications utility" means:
(A) a public utility;
(B) an interexchange telecommunications carrier,
including a reseller of interexchange telecommunications services;
(C) a specialized communications common carrier;
(D) a reseller of communications;
(E) a communications carrier who conveys,
transmits, or receives communications wholly or partly over a
telephone system;
(F) a provider of operator services as defined by
Section 55.081, unless the provider is a subscriber to
customer-owned pay telephone service; and
(G) a separated affiliate or an electronic
publishing joint venture as defined in Chapter 63.
(12) "Tier 1 local exchange company" has the meaning
assigned by the Federal Communications Commission.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 1212, § 5, eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 1579, § 4, eff. Aug. 30, 1999; Acts 2001,
77th Leg., ch. 651, § 5, eff. Sept. 1, 2001.
§ 51.003. APPLICABILITY. Except as otherwise expressly
provided by this title, this title does not apply to:
(1) a company that as its only form of business:
(A) is a telecommunications manager; or
(B) administers central office based or customer
based PBX-type sharing/resale arrangements;
(2) telegraph services;
(3) television or radio stations;
(4) community antenna television services; or
(5) a provider of commercial mobile service as defined
by Section 332(d), Communications Act of 1934 (47 U.S.C. Section
151 et seq.), Federal Communications Commission rules, and the
Omnibus Budget Reconciliation Act of 1993 (Public Law 103-66),
other than conventional rural radio-telephone services provided by
a wire-line telephone company under the Public Mobile Service rules
of the Federal Communications Commission (47 C.F.R. Part 22).
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 51.004. PRICING FLEXIBILITY. (a) A discount or
other form of pricing flexibility may not be:
(1) unreasonably preferential, prejudicial, or
discriminatory; or
(2) predatory or anticompetitive.
(b) This title does not prohibit a volume discount or other
discount based on a reasonable business purpose. A price that is
set at or above the long run incremental cost of a service is
presumed not to be a predatory price.
(c) This title allows an offer based on a reasonable
business purpose, including an offer made at any time to a selected
customer or a group of customers in response to a competitor's offer
or a former customer's acceptance of a competitor's offer if the
price of the offer meets the requirements of Section 52.0584,
58.063, or 59.031.
(d) An offer made under Subsection (c) must be made in
compliance with Chapter 43, Business & Commerce Code, as added by
Chapter 1429, Acts of the 77th Legislature, Regular Session, 2001.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 1212, § 6, eff. Sept. 1, 1999; Acts
2003, 78th Leg., ch. 32, § 1, eff. Sept. 1, 2003.
§ 51.005. ASSISTANCE TO MUNICIPALITY. On request of a
municipality, the commission may advise and assist the municipality
with respect to a question or proceeding arising under this title.
Assistance provided by the commission may include aid to a
municipality on a matter pending before the commission or a court,
such as making a staff member available as a witness or otherwise
providing evidence to the municipality.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 51.006. MUNICIPAL PARTICIPATION IN RATEMAKING
PROCEEDINGS. (a) The governing body of a municipality
participating in a ratemaking proceeding may engage rate
consultants, accountants, auditors, attorneys, and engineers to:
(1) conduct investigations, present evidence, and
advise and represent the governing body; and
(2) assist the governing body with litigation before
the commission or a court.
(b) The public utility in the ratemaking proceeding shall
reimburse the governing body of the municipality for the reasonable
cost of the services of a person engaged under Subsection (a) to the
extent the commission determines is reasonable.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 51.007. MUNICIPAL STANDING IN CERTAIN CASES. (a) A
municipality has standing in each case before the commission that
relates to a utility providing service in the municipality.
(b) A municipality's standing is subject to the right of the
commission to:
(1) determine standing in a case involving a retail
service area dispute that involves two or more utilities; and
(2) consolidate municipalities on an issue of common
interest.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 51.008. JUDICIAL REVIEW. A municipality is entitled
to judicial review of a commission order relating to a utility
providing services in the municipality as provided by Section
15.001.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 51.009. MUNICIPAL FEES. (a) Nothing in this title,
including Section 53.201, may be construed as in any way limiting
the right of a public utility to pass through a municipal fee,
including an increase in a municipal fee.
(b) A public utility that traditionally passes through
municipal fees shall promptly pass through any municipal fee
reduction.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 51.010. COMMISSION INVESTIGATION OF SALE, MERGER, OR
CERTAIN OTHER ACTIONS. (a) The commission, not later than the
180th day after the date a public utility reports to the commission
under Section 14.101, shall complete an investigation under that
section and enter a final order.
(b) If a final order is not entered as required by
Subsection (a), the commission is considered to have determined
that the action taken by the public utility is consistent with the
public interest.
(c) Section 14.101 does not apply to:
(1) a company that receives a certificate of operating
authority or a service provider certificate of operating authority
under Chapter 54; or
(2) a company electing under Chapter 58.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
