UTILITIES CODE
CHAPTER 54. CERTIFICATES
SUBCHAPTER A. GENERAL PROVISIONS
§ 54.001. CERTIFICATE REQUIRED. A person may not
provide local exchange telephone service, basic local
telecommunications service, or switched access service unless the
person obtains a:
(1) certificate of convenience and necessity;
(2) certificate of operating authority; or
(3) service provider certificate of operating
authority.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.002. EXCEPTIONS TO CERTIFICATE REQUIREMENT FOR
SERVICE EXTENSION. (a) A telecommunications utility is not
required to obtain a certificate of convenience and necessity, a
certificate of operating authority, or a service provider
certificate of operating authority for an:
(1) extension into territory that is:
(A) contiguous to the territory the
telecommunications utility serves;
(B) not receiving similar service from another
telecommunications utility; and
(C) not in another telecommunications utility's
certificated area;
(2) extension in or to territory the
telecommunications utility serves or is authorized to serve under a
certificate of public convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority; or
(3) operation, extension, or service in progress on
September 1, 1975.
(b) An extension allowed by Subsection (a) is limited to a
device used:
(1) to interconnect existing facilities; or
(2) solely to transmit telecommunications utility
services from an existing facility to a customer of retail utility
service.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.003. EXCEPTIONS TO CERTIFICATE REQUIREMENT FOR
CERTAIN SERVICES. A telecommunications utility is not required to
obtain a certificate of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority for:
(1) an interexchange telecommunications service;
(2) a nonswitched private line service;
(3) a shared tenant service;
(4) a specialized communications common carrier
service;
(5) a commercial mobile service; or
(6) an operator service as defined by Section 55.081.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.004. RELINQUISHMENT PLAN. A holder of a service
provider certificate of operating authority who applies for a
certificate of operating authority or a certificate of convenience
and necessity for the same territory must include with the
application a plan to relinquish the service provider certificate
of operating authority.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.005. NOTICE OF AND HEARING ON
APPLICATION. (a) When an application for a certificate of
convenience and necessity, a certificate of operating authority, or
a service provider certificate of operating authority is filed, the
commission shall:
(1) give notice of the application to interested
parties; and
(2) if requested:
(A) set a time and place for a hearing; and
(B) give notice of the hearing.
(b) A person interested in the application may intervene at
the hearing.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.006. REQUEST FOR PRELIMINARY ORDER. (a) A
telecommunications utility that wants to exercise a right or
privilege under a franchise or permit that the utility anticipates
obtaining but has not been granted may apply to the commission for a
preliminary order under this section.
(b) The commission may issue a preliminary order declaring
that the commission, on application and under commission rules,
will grant the requested certificate of convenience and necessity,
certificate of operating authority, or service provider
certificate of operating authority, on terms the commission
designates, after the telecommunications utility obtains the
franchise or permit.
(c) The commission shall grant the certificate on
presentation of evidence satisfactory to the commission that the
telecommunications utility has obtained the franchise or permit.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.007. FLEXIBILITY PLAN. (a) After the commission
grants an application for a certificate of convenience and
necessity, a certificate of operating authority, or a service
provider certificate of operating authority or determines that a
certificate is not needed for the applicant to provide the relevant
services, the commission shall conduct appropriate proceedings to
establish a transitional flexibility plan for the incumbent local
exchange company in the same area or areas as the new certificate
holder.
(b) A basic local telecommunications service price of the
incumbent local exchange company may not be increased before the
fourth anniversary of the date the certificate is granted to the
applicant except that the price may be increased as provided by this
title.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts1999, 76th Leg., ch. 1212, § 15, eff. Sept. 1, 1999.
§ 54.008. REVOCATION OR AMENDMENT OF
CERTIFICATE. (a) The commission may revoke or amend a
certificate of convenience and necessity, a certificate of
operating authority or a service provider certificate of operating
authority after notice and hearing if the commission finds that the
certificate holder has never provided or is no longer providing
service in all or any part of the certificated area.
(b) The commission may require one or more public utilities
to provide service in an area affected by the revocation or
amendment of a certificate held by a public utility.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER B. CERTIFICATE OF CONVENIENCE AND NECESSITY
§ 54.051. DEFINITION. In this subchapter,
"certificate" means a certificate of convenience and necessity.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.052. CERTIFICATE REQUIRED FOR PUBLIC
UTILITY. (a) A public utility may not directly or indirectly
provide service to the public under a franchise or permit unless the
utility first obtains from the commission a certificate that states
that the public convenience and necessity requires or will require
the installation, operation, or extension of the service.
(b) Except as otherwise provided by this chapter, a public
utility may not furnish or make available retail public utility
service to an area in which retail utility service is being lawfully
furnished by another public utility unless the utility first
obtains a certificate that includes the area in which the consuming
facility is located.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.053. APPLICATION FOR CERTIFICATE. (a) A public
utility that wants to obtain or amend a certificate must submit an
application to the commission.
(b) The applicant shall file with the commission evidence
the commission requires to show the applicant has received the
consent, franchise, or permit required by the proper municipal or
other public authority.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.054. GRANT OR DENIAL OF CERTIFICATE. (a) The
commission may approve an application and grant a certificate only
if the commission finds that the certificate is necessary for the
service, accommodation, convenience, or safety of the public.
(b) The commission may:
(1) grant the certificate as requested;
(2) grant the certificate for the construction of a
portion of the requested system, facility, or extension or the
partial exercise of the requested right or privilege; or
(3) refuse to grant the certificate.
(c) The commission shall grant each certificate on a
nondiscriminatory basis after considering:
(1) the adequacy of existing service;
(2) the need for additional service;
(3) the effect of granting the certificate on the
recipient of the certificate and any public utility of the same kind
serving the proximate area; and
(4) other factors, such as:
(A) community values;
(B) recreational and park areas;
(C) historical and aesthetic values;
(D) environmental integrity; and
(E) the probable improvement of service or
lowering of cost to consumers in the area if the certificate is
granted.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER C. CERTIFICATE OF OPERATING AUTHORITY
§ 54.101. DEFINITION. In this subchapter,
"certificate" means a certificate of operating authority.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts1999, 76th Leg., ch. 1212, § 16, eff. Sept. 1, 1999.
§ 54.102. APPLICATION FOR CERTIFICATE. (a) A person
may apply for a certificate of operating authority.
(b) The applicant must file with the application a sworn
statement that the applicant has applied for each municipal
consent, franchise, or permit required for the type of services and
facilities for which the applicant has applied.
(c) An affiliate of a person holding a certificate of
convenience and necessity may hold a certificate of operating
authority if the holder of the certificate of convenience and
necessity is in compliance with federal law and Federal
Communications Commission rules governing affiliates and
structural separation. An affiliate of a person holding a
certificate of convenience and necessity may not directly or
indirectly sell to a non-affiliate any regulated product or service
purchased from the person holding a certificate of convenience and
necessity at any rate or price less than the price paid to the
person holding a certificate of convenience and necessity.
(d) A person may 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.
(e) An affiliate of a company that holds a certificate of
convenience and necessity and that serves more than five million
access lines in this state may hold a certificate of operating
authority or service provider certificate of operating authority to
provide service in an area of this state in which its affiliated
company is the incumbent local exchange company. However, the
affiliate holding the certificate of operating authority or service
provider certificate of operating authority may not provide in that
area any service listed in Sections 58.051(a)(1)-(4) or Sections
58.151(1)-(4), or any subset of those services, in a manner that
results in a customer-specific contract so long as the affiliated
company that is the incumbent local exchange company may not
provide those services or subsets of services in a manner that
results in a customer-specific contract under Section 58.003 in
that area. This subsection does not preclude an affiliate of a
company holding a certificate of convenience and necessity from
holding a certificate of operating authority in any area of this
state to provide advanced services as defined by rules or orders of
the Federal Communications Commission, or preclude such an advanced
services affiliate from using any form of pricing flexibility, with
regard to services other than those subject to the restrictions
provided by this subsection. This subsection does not preclude a
long distance affiliate from using any form of pricing flexibility
with regard to services other than those services subject to the
restrictions provided by this subsection. In addition, the
affiliate holding the certificate of operating authority or service
provider certificate of operating authority may not offer, in an
area for which the affiliated incumbent local exchange company
holds a certificate of convenience and necessity, a service listed
in Sections 58.151(1)-(4) as a component of a package of services,
as a promotional offering, or with a volume or term discount until
the affiliated incumbent local exchange company may offer those
services in pricing flexibility offerings in accordance with
Section 58.004, unless the customer of one of these pricing
flexibility offerings is a federal, state, or local governmental
entity.
(f) The commission has the authority to enforce this
section.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts1999, 76th Leg., ch. 1212, § 16, eff. Sept. 1, 1999.
§ 54.103. GRANT OR DENIAL OF CERTIFICATE. (a) The
commission must grant or deny a certificate not later than the 60th
day after the date the application for the certificate is filed.
The commission may extend the deadline on good cause shown.
(b) The commission shall grant each certificate on a
nondiscriminatory basis after considering factors such as:
(1) the technical and financial qualifications of the
applicant; and
(2) the applicant's ability to meet the commission's
quality of service requirements.
(c) In an exchange of an incumbent local exchange company
that serves fewer than 31,000 access lines, in addition to the
factors described by Subsection (b), the commission shall consider:
(1) the effect of granting the certificate on a public
utility serving the area and on that utility's customers;
(2) the ability of that public utility to provide
adequate service at reasonable rates;
(3) the effect of granting the certificate on the
ability of that public utility to act as the provider of last
resort; and
(4) the ability of the exchange, not the company, to
support more than one provider of service.
(d) Except as provided by Subsections (e) and (f), the
commission may grant an application for a certificate only for an
area or areas that are contiguous and reasonably compact and cover
an area of at least 27 square miles.
(e) In an exchange in a county that has a population of less
than 500,000 and that is served by an incumbent local exchange
company that has more than 31,000 access lines, an area covering
less than 27 square miles may be approved if the area is contiguous
and reasonably compact and has at least 20,000 access lines.
(f) In an exchange of a company that serves fewer than
31,000 access lines in this state, the commission may grant an
application only for an area that has boundaries similar to the
boundaries of the serving central office that is served by the
incumbent local exchange company that holds the certificate of
convenience and necessity for the area.
(g) Expired.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts1999, 76th Leg., ch. 1212, § 16, eff. Sept. 1, 1999.
§ 54.104. TIME OF SERVICE REQUIREMENTS. (a) The
commission by rule may prescribe the period within which a
certificate holder must be able to serve customers.
(b) Notwithstanding Subsection (a), a certificate holder
must serve a customer not later than the 30th day after the date the
customer requests service.
Acts 1997, 75th Leg., ch. 166, § 1, Sept. 1, 1997. Renumbered
from § 54.106 and amended by Acts 1999, 76th Leg., ch. 1212, §
16, eff. Sept. 1, 1999.
§ 54.105. PENALTY FOR VIOLATION OF TITLE. If a
certificate holder fails to comply with a requirement of this
title, the commission may:
(1) revoke the holder's certificate;
(2) impose against the holder administrative
penalties under Subchapter B, Chapter 15; or
(3) take another action under Subchapter B, Chapter
15.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
Renumbered from § 54.111 by Acts 1999, 76th Leg., ch. 1212, §
16, eff. Sept. 1, 1999.
SUBCHAPTER D. SERVICE PROVIDER CERTIFICATE OF OPERATING AUTHORITY
§ 54.151. DEFINITION. In this subchapter,
"certificate" means a service provider certificate of operating
authority.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.152. LIMITATION ON GRANT OF CERTIFICATE. The
commission may not grant a certificate to a holder of a:
(1) certificate of convenience and necessity for the
same territory; or
(2) certificate of operating authority for the same
territory.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.153. ELIGIBILITY FOR CERTIFICATE. (a) A company
is not eligible to obtain a certificate under this subchapter if the
company, together with affiliates, had more than six percent of the
total intrastate switched access minutes of use as measured for the
most recent 12-month period:
(1) that precedes the date the application is filed;
and
(2) for which the access information is available.
(b) The commission shall obtain information necessary to
determine eligibility from the incumbent local exchange telephone
companies and the applicant.
(c) The commission shall certify eligibility not later than
the 10th day after the date the application is filed.
(d) In this section:
(1) "Affiliate" means an entity that, directly or
indirectly, owns or controls, is owned or controlled by, or is under
common ownership or control with a company that applies for a
certificate under this subchapter.
(2) "Control" means to exercise substantial influence
over the policies and actions of another.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.154. APPLICATION FOR CERTIFICATE. (a) The
commission may grant a certificate to encourage an innovative,
competitive, and entrepreneurial business to provide
telecommunications services.
(b) An applicant for a certificate must:
(1) file with the application:
(A) a sworn statement that the applicant has
applied for each municipal consent, franchise, or permit required
for the type of services and facilities for which the applicant has
applied; and
(B) a description of the services the applicant
will provide;
(2) show the areas in which the applicant will provide
the services;
(3) demonstrate that the applicant has the financial
and technical ability to provide services; and
(4) demonstrate that the services will meet the
requirements of this subchapter.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.155. GRANT OR DENIAL OF CERTIFICATE. (a) The
commission must grant or deny a certificate not later than the 60th
day after the date the application for the certificate is filed.
The commission may extend the deadline on good cause shown.
(b) The commission shall grant each certificate on a
nondiscriminatory basis after considering factors such as:
(1) the technical and financial qualifications of the
applicant; and
(2) the applicant's ability to meet the commission's
quality of service requirements.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.156. RESALE OF SERVICES. (a) A certificate
holder may obtain services under the resale tariffs approved by the
commission under Subchapter C, Chapter 60, except in a certificated
area of a company that serves fewer than 31,000 access lines.
(b) A certificate holder may obtain for resale the monthly
recurring flat rate local exchange telephone service and associated
nonrecurring charges, including any mandatory extended area
service, of an incumbent local exchange company at a five percent
discount to the tariffed rate.
(c) The incumbent local exchange company shall sell a
feature service that may be provided to a customer in conjunction
with local exchange service at a five percent discount to the
tariffed rate, including any associated nonrecurring charge for
those services, provided that the incumbent local exchange company
shall make available to a certificate holder, at an additional five
percent discount, any discounts made available to customers of the
incumbent local exchange company who are similarly situated to the
customers of the certificate holder. In this subsection "feature
service" includes:
(1) toll restriction;
(2) call control options;
(3) tone dialing;
(4) custom calling; and
(5) caller identification.
(d) A certificate holder and an incumbent local exchange
company may agree to a rate lower than the tariffed rate or
discounted rate.
(e) The five percent discounts provided by this section do
not apply in an exchange of a company that has fewer than 31,000
access lines in this state.
(f) If the tariffed rate for a resold service changes, the
five percent discount prescribed by this section applies to the
changed rate. The commission may not, for certificate holders,
create a special class for purposes of resold services.
(g) A certificate holder:
(1) may not use a resold flat rate local exchange
telephone service to avoid the rates and terms of an incumbent local
exchange company's tariffs;
(2) may not terminate both flat rate local exchange
telephone service and services obtained under the resale tariff
approved under Section 60.041 on the same end user customer's
premises;
(3) may not use resold flat rate local exchange
telephone services to provide access services to another
interexchange carrier, cellular carrier, competitive access
provider, or retail telecommunications provider, but may permit
customers to use resold local exchange telephone services to access
such a carrier or provider;
(4) may sell the flat rate local exchange telephone
service only to the same class of customers to which the incumbent
local exchange company sells that service;
(5) may obtain services offered by or negotiated with
a holder of a certificate of convenience and necessity or a
certificate of operating authority; and
(6) may obtain for resale single or multiple line flat
rate intraLATA calling service when provided by the local exchange
company at the tariffed rate for online digital communications.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.157. OPTIONAL EXTENDED AREA SERVICE OR EXPANDED
LOCAL CALLING SERVICE. (a) A certificate holder may purchase for
resale:
(1) optional extended area service; and
(2) expanded local calling service.
(b) The purchase of optional extended area service and
expanded local calling service may not be discounted.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.158. INTERFERENCE WITH RESOLD SERVICES
PROHIBITED. An incumbent local exchange company may not:
(1) delay providing or maintaining a service provided
under this subchapter;
(2) degrade the quality of access the company provides
to another provider;
(3) impair the speed, quality, or efficiency of a line
used by another provider;
(4) fail to fully disclose in a timely manner after a
request all available information necessary for a certificate
holder to provide resale services; or
(5) refuse to take a reasonable action to allow a
certificate holder efficient access to the company's ordering,
billing, or repair management system.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.159. RETENTION OF ACCESS SERVICE AND INTRALATA TOLL
SERVICE. An incumbent local exchange company that sells flat rate
local exchange telephone service to a certificate holder may retain
all access service and "1-plus" intraLATA toll service that
originates over the resold flat rate local exchange telephone
service.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER E. MUNICIPALITIES
§ 54.201. CERTIFICATION PROHIBITED. The commission may
not grant to a municipality a:
(1) certificate of convenience and necessity;
(2) certificate of operating authority; or
(3) service provider certificate of operating
authority.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.202. PROHIBITED MUNICIPAL SERVICES. (a) A
municipality or municipal electric system may not offer for sale to
the public:
(1) a service for which a certificate of convenience
and necessity, a certificate of operating authority, or a service
provider certificate of operating authority is required; or
(2) a nonswitched telecommunications service used to
connect a customer's premises with:
(A) another customer's premises within the
exchange; or
(B) a long distance provider that serves the
exchange.
(b) Subsection (a) applies to a service offered either
directly or indirectly through a telecommunications provider.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.2025. LEASE OF FIBER OPTIC CABLE
FACILITIES. Nothing in this subchapter shall prevent a
municipality, or a municipal electric system that is a member of a
municipal power agency formed under Chapter 163 by adoption of a
concurrent resolution by the participating municipalities on or
before August 1, 1975, from leasing any of the excess capacity of
its fiber optic cable facilities (dark fiber), so long as the rental
of the fiber facilities is done on a nondiscriminatory,
nonpreferential basis.
Added by Acts 1999, 76th Leg., ch. 1212, § 17, eff. Sept. 1,
1999.
§ 54.203. SERVICE IN ANNEXED OR INCORPORATED
AREA. (a) If an area is or will be included within a municipality
as the result of annexation, incorporation, or another reason, each
telecommunications utility that holds or is entitled to hold a
certificate under this title to provide service or operate a
facility in the area before the inclusion has the right to continue
to provide the service or operate the facility and extend service in
the utility's certificated area within the annexed or incorporated
area under the rights granted by the certificate and this title.
(b) Notwithstanding any other law, a certificated
telecommunications utility has the right to:
(1) continue and extend service within the utility's
certificated area; and
(2) use roads, streets, highways, alleys, and public
property to furnish retail utility service.
(c) The governing body of a municipality may require a
certificated telecommunications utility to relocate the utility's
facility at the utility's expense to permit the widening or
straightening of a street by:
(1) giving the utility 30 days' notice; and
(2) specifying the new location for the facility along
the right-of-way of the street.
(d) This section does not limit the power of a city, town, or
village to incorporate or of a municipality to extend its
boundaries by annexation.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.204. DISCRIMINATION BY MUNICIPALITY
PROHIBITED. (a) Notwithstanding Section 14.008, a municipality
may not discriminate against a telecommunications utility
regarding:
(1) the authorization or placement of a
telecommunications facility in a public right-of-way;
(2) access to a building; or
(3) a municipal utility pole attachment rate or term,
to the extent not addressed by federal law.
(b) In granting consent, a franchise, or a permit for the
use of a public street, alley, or right-of-way within its municipal
boundaries, a municipality may not discriminate in favor of or
against a telecommunications utility that holds or has applied for
a certificate of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority regarding:
(1) municipal utility pole attachment or underground
conduit rates or terms, to the extent not addressed by federal law;
or
(2) the authorization, placement, replacement, or
removal of a telecommunications facility in a public right-of-way
and the reasonable compensation for the authorization, placement,
replacement, or removal regardless of whether the compensation is
in the form of:
(A) money;
(B) services;
(C) use of facilities; or
(D) another kind of consideration.
(c) Notwithstanding Subsection (b)(1), a municipal utility
may not charge a pole attachment rate or underground conduit rate
that exceeds the fee the utility would be permitted to charge if the
utility's rates were regulated under federal law and the rules of
the Federal Communications Commission.
(d) Notwithstanding any other law, the commission has the
jurisdiction necessary to enforce this section.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.205. MUNICIPALITY'S RIGHT TO CONTROL ACCESS. This
title does not restrict a municipality's historical right to
control and receive reasonable compensation for access to the
municipality's public streets, alleys, or rights-of-way or to other
public property.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.206. RECOVERY OF MUNICIPAL FEE. (a) A holder of a
certificate of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority has the right to collect a fee that a municipality imposes
under Section 54.204 or 54.205 through a pro rata charge to the
customers in the boundaries of the municipality.
(b) The charge may be shown on the customer's bill as a
separate line item.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER F. REGULATION OF SERVICES, AREAS, AND FACILITIES
§ 54.251. PROVISION OF SERVICE. (a) Except as
provided by this section, Section 54.252, Section 54.253, and
Section 54.254, a telecommunications utility that holds a
certificate of convenience and necessity or a certificate of
operating authority shall:
(1) offer all basic local telecommunications services
to each customer in the utility's certificated area; and
(2) provide continuous and adequate service in that
area.
(b) Except as specifically determined otherwise by the
commission under this subchapter or Subchapter G, the holder of a
certificate of convenience and necessity for an area has the
obligations of a provider of last resort regardless of whether
another provider has a certificate of operating authority or
service provider certificate of operating authority for that area.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts 2003, 78th Leg., ch. 76, § 1, eff. Sept. 1, 2003.
§ 54.252. GROUNDS FOR REDUCTION OF SERVICE BY HOLDER OF
CERTIFICATE OF CONVENIENCE AND NECESSITY. (a) Except to the
extent otherwise ordered by the commission in accordance with this
subchapter, the holder of a certificate of convenience and
necessity may not discontinue, reduce, or impair service to any
part of the holder's certificated service area except for:
(1) nonpayment of charges;
(2) nonuse; or
(3) another similar reason that occurs in the usual
course of business.
(b) A discontinuance, reduction, or impairment of service
must be in compliance with and is subject to any condition or
restriction the commission prescribes.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts 2003, 78th Leg., ch. 76, § 2, eff. Sept. 1, 2003.
§ 54.253. DISCONTINUATION OF SERVICE BY CERTAIN
CERTIFICATE HOLDERS. (a) A telecommunications utility that holds
a certificate of operating authority or a service provider
certificate of operating authority may:
(1) cease operations in the utility's certificated
area; or
(2) discontinue an optional service that is not
essential to providing basic local telecommunications service.
(b) Before the telecommunications utility ceases operations
or discontinues an optional service, the utility, in the manner
required by the commission, must give notice of the intended action
to:
(1) the commission;
(2) each affected customer;
(3) the Commission on State Emergency Communications;
(4) the office; and
(5) each wholesale provider of telecommunications
facilities or services from which the utility has purchased
facilities or services.
(c) The telecommunications utility is entitled to
discontinue an optional service on or after the 61st day after the
date the utility gives the notice.
(d) The telecommunications utility may not cease operations
in its certificated area unless the commission authorizes the
utility to cease operations and:
(1) another provider of basic local
telecommunications services has adequate facilities and capacity
to serve the customers in the certificated area; or
(2) the utility is an "exiting utility," as that term
is defined by Section 54.301, no other telecommunications utility
has facilities sufficient to provide basic local
telecommunications service in the defined geographic area, and the
utility acts in good faith to provide for a transition of the
utility's existing basic local telecommunications service
customers to another holder of a certificate for that area.
(e) The commission may not authorize the telecommunications
utility to cease operations under Subsection (d) before the 61st
day after the date the utility gives the notice required by
Subsection (b). Unless the commission receives a complaint from an
affected person, the commission may enter an order under this
subsection administratively.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts 2003, 78th Leg., ch. 76, § 3, eff. Sept. 1, 2003.
§ 54.254. REQUIRED REFUSAL OF SERVICE. A holder of a
certificate of convenience and necessity, a certificate of
operating authority, or a service provider certificate of operating
authority shall refuse to serve a customer in the holder's
certificated area if the holder is prohibited from providing the
service under Section 212.012 or 232.029, Local Government Code.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.255. TRANSFER OF CERTAIN CERTIFICATES. (a) A
telecommunications utility may sell, assign, or lease a certificate
of convenience and necessity or a certificate of operating
authority or a right obtained under such a certificate if the
commission determines that the purchaser, assignee, or lessee can
provide adequate service.
(b) The sale, assignment, or lease of a certificate or a
right is subject to conditions the commission prescribes.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.256. APPLICATION OF CONTRACTS. A contract
approved by the commission between telecommunications utilities
that designates areas and customers to be served by the utilities:
(1) is valid and enforceable; and
(2) shall be incorporated into the appropriate areas
of certification.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.257. INTERFERENCE WITH ANOTHER TELECOMMUNICATIONS
UTILITY. If a telecommunications utility constructing or
extending the utility's lines, plant, or system interferes or
attempts to interfere with the operation of a line, plant, or system
of another utility, the commission by order may:
(1) prohibit the construction or extension; or
(2) prescribe terms for locating the affected lines,
plants, or systems.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.258. MAPS. A public utility shall file with the
commission one or more maps that show each utility facility and that
separately illustrate each utility facility for transmission or
distribution of the utility's services on a date the commission
orders.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.259. DISCRIMINATION BY PROPERTY OWNER
PROHIBITED. (a) If a telecommunications utility holds a consent,
franchise, or permit as determined to be the appropriate grants of
authority by the municipality and holds a certificate if required
by this title, a public or private property owner may not:
(1) prevent the utility from installing on the owner's
property a telecommunications service facility a tenant requests;
(2) interfere with the utility's installation on the
owner's property of a telecommunications service facility a tenant
requests;
(3) discriminate against such a utility regarding
installation, terms, or compensation of a telecommunications
service facility to a tenant on the owner's property;
(4) demand or accept an unreasonable payment of any
kind from a tenant or the utility for allowing the utility on or in
the owner's property; or
(5) discriminate in favor of or against a tenant in any
manner, including rental charge discrimination, because of the
utility from which the tenant receives a telecommunications
service.
(b) Subsection (a) does not apply to an institution of
higher education. In this subsection, "institution of higher
education" means:
(1) an institution of higher education as defined by
Section 61.003, Education Code; or
(2) a private or independent institution of higher
education as defined by Section 61.003, Education Code.
(c) Notwithstanding any other law, the commission has the
jurisdiction to enforce this section.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.260. PROPERTY OWNER'S
CONDITIONS. (a) Notwithstanding Section 54.259, if a
telecommunications utility holds a municipal consent, franchise,
or permit as determined to be the appropriate grant of authority by
the municipality and holds a certificate if required by this title,
a public or private property owner may:
(1) impose a condition on the utility that is
reasonably necessary to protect:
(A) the safety, security, appearance, and
condition of the property; and
(B) the safety and convenience of other persons;
(2) impose a reasonable limitation on the time at
which the utility may have access to the property to install a
telecommunications service facility;
(3) impose a reasonable limitation on the number of
such utilities that have access to the owner's property, if the
owner can demonstrate a space constraint that requires the
limitation;
(4) require the utility to agree to indemnify the
owner for damage caused installing, operating, or removing a
facility;
(5) require the tenant or the utility to bear the
entire cost of installing, operating, or removing a facility; and
(6) require the utility to pay compensation that is
reasonable and nondiscriminatory among such telecommunications
utilities.
(b) Notwithstanding any other law, the commission has the
jurisdiction to enforce this section.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.261. SHARED TENANT SERVICES CONTRACT. Sections
54.259 and 54.260 do not require a public or private property owner
to enter into a contract with a telecommunications utility to
provide shared tenant services on a property.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 54.301. DEFINITIONS. In this subchapter:
(1) "Exiting utility" means a telecommunications
utility that:
(A) holds a certificate of operating authority or
a service provider certificate of operating authority;
(B) is the predominant provider of basic local
telecommunications service in a defined geographic area and
provides those services using the utility's own facilities; and
(C) ceases operations in all or part of the
utility's certificated service area under Section 54.253 or 54.303.
(2) "Provider of last resort" means a certificated
telecommunications utility that must offer basic local
telecommunications service throughout a defined geographic area.
(3) "Successor utility" means a telecommunications
utility that holds a certificate of convenience and necessity,
certificate of operating authority, or service provider
certificate of operating authority, and that is or is designated to
become the provider of last resort for the defined geographic area
previously served by an exiting utility.
Added by Acts 2003, 78th Leg., ch. 76, § 4, eff. Sept. 1, 2003.
§ 54.302. PROVIDER OF LAST RESORT; FACILITIES-BASED
PROVIDERS. (a) Notwithstanding any other provision of this
title, if a telecommunications utility installs facilities to serve
customers located in a defined geographic area to provide
telecommunications services, including basic local
telecommunications service, before the holder of the certificate of
convenience and necessity installs facilities to serve customers
located in that defined geographic area, the holder of the
certificate of convenience and necessity may petition the
commission for an order relieving the utility of the utility's
designation as the provider of last resort in that defined
geographic area.
(b) The commission shall relieve the holder of the
certificate of convenience and necessity of the obligations of
service as the provider of last resort for the defined geographic
area, and the commission shall designate the facilities-based
telecommunications utility as the provider of last resort if the
commission determines that:
(1) the holder of the certificate of convenience and
necessity does not have facilities in place to provide basic local
telecommunications service to all customers within that defined
geographic area;
(2) another certificated telecommunications utility
has installed facilities adequate to provide that service
throughout that area; and
(3) the public interest would be served by
transferring the provider of last resort obligations for that area.
(c) The commission shall complete proceedings necessary to
make the determinations prescribed by this section not later than
the 91st day after the date the petition is filed under Subsection
(a).
Added by Acts 2003, 78th Leg., ch. 76, § 4, eff. Sept. 1, 2003.
§ 54.303. SUCCESSOR TELECOMMUNICATIONS UTILITY WHEN NO
SUFFICIENT FACILITIES EXIST. (a) When the commission obtains
notice as required under Section 54.253 or otherwise that a utility
intends to become an exiting utility and no other
telecommunications utility has facilities sufficient to provide
basic local telecommunications service in that defined geographic
area, the commission shall open a contested case proceeding to
determine:
(1) the identity of the successor utility under this
section; and
(2) the amount of universal service funding under
Subchapter G, Chapter 56, to be made available to the successor
utility.
(b) On designation as the successor utility under this
section, the commission, if applicable, shall provide to the
successor utility:
(1) a reasonable time, in accordance with industry
practices and not subject to otherwise applicable commission
service quality rules or standards, to modify, construct, or obtain
facilities necessary to serve the customers of the exiting
telecommunications utility; and
(2) an exemption on a transitional basis from any
obligation to unbundle the utility's network elements or to provide
service for resale within that defined geographic area for nine
months or another reasonable period the commission may authorize as
necessary to modify the utility's network to provide that
unbundling or resale.
(c) A customer within the defined geographic area to be
served by the successor utility is considered to have applied for
service from the successor utility on the effective date of that
designation by the commission. Each right, privilege, and
obligation of being a customer of the successor utility applies to
that customer and the customer is subject to the successor
utility's applicable terms of service as specified in an applicable
tariff or contract.
Added by Acts 2003, 78th Leg., ch. 76, § 4, eff. Sept. 1, 2003.
§ 54.304. ABANDONMENT OR CESSATION BY FACILITIES-BASED
PROVIDER; EMERGENCY RESTORATION. (a) The commission, on its own
motion or on the petition of an interested party, may institute an
expedited proceeding under this section if the commission finds
that:
(1) a holder of a certificate of operating authority
or service provider certificate of operating authority is the
predominant provider of basic local telecommunications service in a
defined geographic area and the utility provides that service using
the utility's own facilities;
(2) no other telecommunications utility has
facilities sufficient to provide basic local telecommunications
service in that defined geographic area; and
(3) the holder of the certificate of operating
authority or service provider certificate of operating authority
has:
(A) ceased providing basic local
telecommunications service to the utility's customers in that
defined geographic area; or
(B) abandoned the operation of the utility's
facilities in the defined geographic area that are used to provide
basic local telecommunications service.
(b) In a proceeding under this section, the commission may
declare that an emergency exists and issue any order necessary to
protect the health, safety, and welfare of affected customers of
the utility and to expedite the restoration and continuation of
basic local telecommunications service to those customers. An
order issued by the commission under this subsection may include an
order to:
(1) provide for a temporary arrangement for operation
of the utility's facilities by an uncertificated entity that agrees
to provide service;
(2) authorize one or more third parties to enter the
premises of the abandoned facilities; or
(3) grant temporary waivers from quality of service
requirements.
(c) The commission may designate a successor utility in
accordance with Section 54.303 during a proceeding under this
section.
Added by Acts 2003, 78th Leg., ch. 76, § 4, eff. Sept. 1, 2003.
§ 54.305. COMMISSION PARTICIPATION IN BANKRUPTCY
PROCEEDINGS. (a) The commission, on written notice that a
certificated telecommunications utility has filed a petition in
bankruptcy or is the subject of an involuntary petition in
bankruptcy, may inform the appropriate court and parties of the
commission's interest in obtaining notice of proceedings.
(b) Within the time prescribed by the applicable statutes,
rules, and court orders, the commission may intervene and
participate in any bankruptcy proceedings that affect customers or
providers of telecommunications services in this state.
(c) The office may inform the appropriate court and parties
of the office's interest in obtaining notice of the proceedings.
Within the time prescribed by the applicable statutes, rules, and
court orders, the office may intervene and participate in any
bankruptcy proceeding on behalf of residential and small commercial
customers.
Added by Acts 2003, 78th Leg., ch. 76, § 4, eff. Sept. 1, 2003.
