UTILITIES CODE
CHAPTER 62. BROADCASTER SAFEGUARDS
SUBCHAPTER A. GENERAL PROVISIONS
§ 62.001. APPLICABILITY OF CHAPTER. This chapter does
not apply to a cable company.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.002. DEFINITIONS. In this chapter:
(1) "Audio programming":
(A) means programming:
(i) provided by an amplitude modulation or
frequency modulation broadcast radio station; or
(ii) generally considered comparable to
programming described by Subparagraph (i); and
(B) does not include an audio-related service
offered by an incumbent local exchange company on September 1,
1995.
(2) "Video programming" means programming provided by
or generally considered comparable to programming provided by a
television broadcast station as defined by Section 602,
Communications Act of 1934 (47 U.S.C. Section 522).
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER B. CUSTOMER PROPRIETARY NETWORK INFORMATION
§ 62.021. DEFINITIONS. In this subchapter:
(1) "Specific customer proprietary network
information" means information, other than subscriber list
information:
(A) that concerns the customer and is available
to the telecommunications utility because of the customer's use of
the telecommunications utility service;
(B) that is contained in the bills relating to
telecommunications services received by a customer of a
telecommunications utility; or
(C) that:
(i) is made available to a
telecommunications utility by a customer of the utility, other than
a wireless telecommunications provider, solely because of the
utility-customer relationship; and
(ii) relates to the quantity, technical
configuration, type, destination, or amount of use of voice or data
telecommunications services to which the customer subscribes.
(2) "Subscriber list information" means information:
(A) that identifies the listed name of a
telecommunications utility subscriber or the subscriber's
telephone number, address, or primary advertising classification;
and
(B) that the telecommunications utility or an
affiliate has published or accepted for publication.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.022. USE OF SPECIFIC CUSTOMER PROPRIETARY NETWORK
INFORMATION. (a) A telecommunications utility may not use
specific customer proprietary network information for a commercial
purpose other than the sale or provision of, or billing or
collection for, telecommunications or enhanced services.
(b) This section does not prohibit:
(1) the use of specific customer proprietary network
information with the customer's consent; or
(2) the provision of specific customer proprietary
network information to an affiliate telecommunications provider.
(c) Subsection (a) has no effect to the extent it is
preempted by an action of the Federal Communications Commission.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.023. RULES. (a) The commission shall adopt rules
that are consistent with rules on the use of specific customer
proprietary network information adopted by the Federal
Communications Commission.
(b) Rules adopted under Subsection (a) shall:
(1) require each telecommunications utility annually
to notify, by means approved by the commission, each subscriber of
the subscriber's right to reject the utility's use of specific
customer proprietary network information for marketing other
services; and
(2) require a telecommunications utility that makes
nonproprietary aggregate customer proprietary network information
available to its affiliates to make the information available to
nonaffiliated entities on the same terms.
(c) If the Federal Communications Commission adopts rules
regarding customer proprietary network information that no longer
preempt this state's authority to adopt inconsistent rules, the
commission shall conduct a proceeding to determine the appropriate
use of customer proprietary network information by a
telecommunications utility. A rule, policy, or order adopted by
the commission on customer proprietary network information may not
be discriminatory in its application to telecommunications
utilities.
(d) A commission rule governing customer proprietary
network information may not apply to an incumbent local exchange
company that has 100,000 or fewer access lines in service in this
state if the rule is more burdensome to the company than the
customer proprietary network information rules of the Federal
Communications Commission. This prohibition does not apply to a
rule regarding a use of customer proprietary network information
that is not related to a telecommunications service or product.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER C. ADVERTISING
§ 62.041. DEFINITION. In this subchapter, "advertising
agency services" includes:
(1) advertising development;
(2) advertising purchase;
(3) advertising consultation;
(4) advertising copy writing;
(5) advertising research; and
(6) other functions generally performed by a general
advertising agency.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.042. APPLICABILITY OF SUBCHAPTER. This subchapter
does not apply to an incumbent local exchange company that has
100,000 or fewer access lines in service in this state.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.043. ADVERTISING AGENCY SERVICES
PROHIBITED. (a) An incumbent local exchange company may not sell
an advertising agency service to a nonaffiliate in this state.
(b) Subsection (a) does not prohibit a local exchange
company from:
(1) promoting or selling a telecommunications service
or telecommunications equipment, including:
(A) voice service or equipment;
(B) data service or equipment;
(C) video dial tone service or equipment;
(D) video or audio programming service or
equipment;
(E) cellular service or equipment;
(F) interactive media service or equipment;
(G) software service or equipment; or
(H) another related service or piece of
equipment; or
(2) enhancing or promoting the use of the
telecommunications network.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.044. ADVERTISING ACTIVITIES OF AFFILIATE. (a) A
separate corporate affiliate of an incumbent local exchange company
may engage in advertising agency activities. In conducting an
advertising agency activity, the affiliate shall comply with this
section.
(b) The affiliate shall prepare financial statements that
are not consolidated with the financial statements of the incumbent
local exchange company. Financial statements and consolidated tax
returns that consolidate the operation of the separate corporate
affiliate with a parent company and the parent company's other
subsidiaries may be prepared.
(c) The affiliate shall:
(1) maintain, in accordance with generally accepted
accounting principles, books, records, and accounts that are
separate from the books, records, and accounts of the incumbent
local exchange company; and
(2) maintain a corporate identity separate from the
incumbent local exchange company.
(d) The affiliate may not:
(1) incur debt in a manner that, on the affiliate's
default, would permit a creditor to have recourse against an asset
of the incumbent local exchange company;
(2) use a name, trademark, or service mark of the
incumbent local exchange company, unless the name, trademark, or
service mark is used in common with the parent, affiliate, or owner
of the incumbent local exchange company; or
(3) have a director, officer, or employee in common
with the incumbent local exchange company.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.045. JOINT MARKETING PROHIBITED. (a) Except as
permitted by Section 62.043, an incumbent local exchange company
that has an affiliate that provides advertising agency services on
behalf of a nonaffiliate in this state may not jointly market the
affiliate's advertising agency services in connection with a
telecommunications service or telecommunications equipment the
incumbent local exchange company provides.
(b) This section does not apply to advertising in a
telephone directory disseminated in any form.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.046. CHARITABLE TELEPHONE SOLICITATION. This
subchapter does not prohibit an incumbent local exchange company
from providing a telephone solicitation service for a charitable
organization.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.047. WAIVER. (a) A company may petition the
commission for a waiver from a requirement this subchapter imposes
on the company.
(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
(c) The commission may revoke a waiver granted under this
section if:
(1) conditions under which the waiver was granted have
materially changed; and
(2) the revocation is in the public interest.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER D. AUDIO AND VIDEO PROGRAMMING
§ 62.071. APPLICABILITY OF SUBCHAPTER. This subchapter
does not apply to an incumbent local exchange company that has
100,000 or fewer access lines in service in this state.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.072. AUDIO OR VIDEO PROGRAMMING
PROHIBITED. (a) An incumbent local exchange company may not
provide audio or video programming in this state.
(b) This section does not prohibit a separate corporate
affiliate of an incumbent local exchange company from providing
audio or video programming.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.073. RELATIONSHIP BETWEEN EXCHANGE COMPANY AND
AFFILIATE THAT PROVIDES AUDIO OR VIDEO PROGRAMMING. (a) This
section applies only to an incumbent local exchange company's
separate corporate affiliate that provides audio or video
programming.
(b) For a telecommunications service the affiliate obtains
from the incumbent local exchange company, the affiliate shall pay:
(1) a tariffed rate;
(2) the fair market value of the service, if the
service is not provided under a tariff; or
(3) the service's long run incremental cost, if:
(A) the service is not provided under a tariff;
and
(B) the service:
(i) does not have a fair market value; or
(ii) has a fair market value that is less
than the service's long run incremental cost.
(c) In making a transaction with the incumbent local
exchange company to purchase, use, rent, or access information,
services, space, or devices that are not telecommunications
services, the affiliate shall act in a manner consistent with the
affiliate transaction rules of the Federal Communications
Commission. The subject of a transaction described by this
subsection may not be valued at less than the greater of the
subject's net book value or fair market value, whichever is
applicable.
(d) The affiliate shall prepare financial statements that
are not consolidated with those of the incumbent local exchange
company. Financial statements and consolidated tax returns that
consolidate the operation of the separate corporate affiliate with
a parent company and the parent company's other subsidiaries may be
prepared.
(e) The affiliate shall:
(1) maintain, in accordance with generally accepted
accounting principles, books, records, and accounts that are
separate from the books, records, and accounts of the incumbent
local exchange company;
(2) perform its marketing and sales functions and
operation in compliance with open network architecture and the
affiliate transaction rules of the Federal Communications
Commission; and
(3) maintain a corporate identity separate from the
incumbent local exchange company.
(f) The affiliate may not:
(1) incur debt in a manner that, on the affiliate's
default, would permit a creditor to have recourse against an asset
of the incumbent local exchange company;
(2) use a name, trademark, or service mark of the
incumbent local exchange company, unless the name, trademark, or
service mark is used in common with the parent, affiliate, or owner
of the incumbent local exchange company; or
(3) have a director, officer, or employee in common
with the incumbent local exchange company.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.074. REGULATION OF EXCHANGE COMPANY DEALINGS WITH
SEPARATE AFFILIATE. (a) This section applies only to an
incumbent local exchange company's separate corporate affiliate
that provides audio or video programming.
(b) An incumbent local exchange company may not:
(1) develop a rate for a telecommunications service or
provide a telecommunications service to benefit primarily the
company's separate affiliate for the affiliate's video or audio
programming unless the rate or service is available to any
purchaser without discrimination;
(2) provide a telecommunications service for the
separate affiliate's audio or video programming in an unreasonably
preferential manner;
(3) transfer an asset to the separate affiliate for
less than the amount for which the asset is available to a third
party in an arm's-length transaction;
(4) have a director, officer, or employee in common
with the separate affiliate;
(5) own property in common with the separate
affiliate; or
(6) enter into a customer-specific contract with the
separate affiliate to provide tariffed telecommunications services
unless substantially the same contract terms are generally
available to nonaffiliated interests.
(c) An incumbent local exchange company shall:
(1) maintain and file with the commission copies of
each contract or arrangement between the company and the separate
affiliate and report the contract amount for each cash or noncash
transaction with the separate affiliate, including payments for:
(A) the cost of a good, service, property right,
or other item; or
(B) interest expense;
(2) value an asset the company transfers to the
separate affiliate at the greater of the asset's net book value or
fair market value;
(3) value an asset the separate affiliate transfers to
the company at the lesser of the asset's net book value or fair
market value except in an instance in which Federal Communications
Commission regulations or commission rules permit:
(A) in-arrears payment for a tariffed
telecommunications service; or
(B) an affiliate to invest a dividend or profit
derived from an incumbent local exchange company;
(4) comply with applicable Federal Communications
Commission cost and other accounting rules; and
(5) if the company offers telecommunications
equipment or services to an audio or video programmer, provide the
equipment or services:
(A) at just and reasonable rates that, if
commission rules require the provision to be under a tariff, are
tariffed on nondiscriminatory terms; and
(B) on similar terms to all video or audio
programmers, if the equipment or services are not subject to
regulation.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.075. BILLING OR COLLECTION SERVICES FOR
NONAFFILIATED PROGRAMMER. (a) An incumbent local exchange
company that offers billing or collection service to a
nonaffiliated audio or video programmer shall provide the service
on nondiscriminatory terms.
(b) This section does not require an incumbent local
exchange company to offer billing or collection service to a
nonaffiliated programmer.
(c) An incumbent local exchange company may exclude a class
of programmers from the company's billing or collection service.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.076. COMPLIANCE AUDIT. (a) An incumbent local
exchange company shall have a compliance audit performed every
three years to determine whether the incumbent local exchange
company, during the preceding three years, complied with the
requirements this subchapter imposes on the company.
(b) An independent accounting firm:
(1) must conduct the audit; and
(2) shall file the audit report with the commission.
(c) If the audit report concludes that the incumbent local
exchange company is not in compliance with this subchapter, the
commission shall take appropriate action against the company.
(d) The audit report is confidential commercial or
financial information for the purposes of Chapter 552, Government
Code.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.077. WAIVER. (a) A company may petition the
commission for a waiver from a requirement this subchapter imposes
on the company.
(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
(c) The commission may revoke a waiver granted under this
section if:
(1) conditions under which the waiver was granted have
materially changed; and
(2) the revocation is in the public interest.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.078. LIMITATION OF JURISDICTION. Except as
otherwise specifically provided by this title, the commission's
jurisdiction over an incumbent local exchange company's affiliate
that is an audio or video programmer is limited to the specific
requirements of this subchapter.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
SUBCHAPTER E. VIDEO CARRIAGE
§ 62.101. APPLICABILITY OF SUBCHAPTER.
Text of section effective until August 31, 2005
This subchapter does not apply to:
(1) an incumbent local exchange company that has
100,000 or fewer access lines in service in this state; or
(2) a programmer on the video dial tone platform of an
incumbent local exchange company described by Subdivision (1).
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.102. RATE FOR BROADCAST STATION ACCESS TO
TELECOMMUNICATIONS SERVICES.
Text of section effective until August 31, 2005
Unless the company is a programmer subject to Section 62.104,
an incumbent local exchange company that provides a
telecommunications service used to transmit video programming
directly to a subscriber or used to enable a customer to access
video programming shall give a local full-power broadcast station
licensed by the Federal Communications Commission access to the
telecommunications service at a tariffed rate, to the extent
capacity permits. If the service is not provided under a tariff,
the company shall provide the service on terms similar to those on
which the service is provided to other video programmers that
provide similar programming.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.103. DUTIES OF LOCAL EXCHANGE COMPANY.
Text of section effective until August 31, 2005
(a) An incumbent local exchange company shall transmit
without material degradation the signals a local broadcast station
delivers. The transmission quality offered the station may not be
less than the quality made available to another video programmer.
(b) An incumbent local exchange company that provides a
telecommunications service used to transmit video programming
directly to a subscriber or used to enable a customer to access
video programming may not:
(1) discriminate unreasonably among programming
providers regarding transmission of their signals; or
(2) delete, change, or alter a copyright
identification transmitted as part of the programming signal.
(c) An incumbent local exchange company described by
Subsection (b) that provides a video dial tone service with a level
one gateway, as that term is defined by the Federal Communications
Commission, shall make available to programmers a menu or
programming guide on which a programmer may display a listing of the
stations the programmer is required to carry under Section 62.104.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.104. BROADCAST STATION ACCESS THROUGH
TELECOMMUNICATIONS SERVICES.
Text of section effective until August 31, 2005
(a) As permitted by federal law and Federal Communications
Commission rules and orders, a programmer shall make available to
subscribers local full-power television stations licensed by the
Federal Communications Commission if:
(1) the programmer is operating as a common channel
manager;
(2) for a commercial purpose, the programmer purchases
50 or more analog channels on a local exchange video dial tone level
one platform over which video programming is made available to
subscribers; and
(3) the television stations grant retransmission
consent.
(b) The programmer shall make available up to six television
stations under this section. If the programmer is in a market that
contains a county with a population of more than one million, the
programmer shall make available up to nine television stations
under this section.
(c) The programmer shall select the television stations the
programmer makes available to subscribers under this section.
(d) This title does not require a programmer or incumbent
local exchange company to provide valuable consideration in
exchange for carriage under this section.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.105. RETRANSMISSION CONSENT.
Text of section effective until August 31, 2005
A television station licensed by the Federal Communications
Commission that seeks carriage under Section 62.104 shall grant
consent for programming retransmission to the programmer and the
incumbent local exchange company.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.106. WAIVER.
Text of section effective until August 31, 2005
(a) A company may petition the commission for a waiver from
a requirement this subchapter imposes on the company.
(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
(c) The commission may revoke a waiver granted under this
section if:
(1) conditions under which the waiver was granted have
materially changed; and
(2) the revocation is in the public interest.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.107. LIMITATION OF JURISDICTION.
Text of section effective until August 31, 2005
Except as otherwise specifically provided by this title, the
commission's jurisdiction over an incumbent local exchange
company's affiliate that is a video programmer is limited to the
specific requirements of this subchapter.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.108. EXPIRATION.
Text of section effective until August 31, 2005
This subchapter expires August 31, 2005.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 1212, § 53, eff. Sept. 1, 1999.
SUBCHAPTER F. AUDIO CARRIAGE
§ 62.131. APPLICABILITY OF SUBCHAPTER.
Text of section effective until August 31, 2005
This subchapter does not apply to:
(1) an incumbent local exchange company that has
100,000 or fewer access lines in service in this state; or
(2) a programmer on the video dial tone platform of an
incumbent local exchange company described by Subdivision (1).
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.132. BROADCAST STATION ACCESS THROUGH
TELECOMMUNICATIONS SERVICES.
Text of section effective until August 31, 2005
(a) As permitted by federal law and Federal Communications
Commission rules and orders, and as consistent with technical
specifications, a programmer shall make available to subscribers
local radio stations licensed by the Federal Communications
Commission if:
(1) the programmer is operating as a common channel
manager;
(2) for a commercial purpose, the programmer makes 12
or more channels of audio programming available to subscribers on
an incumbent local exchange company's level one video dial tone
platform;
(3) the available audio programming is similar to a
broadcast of a radio station licensed by the Federal Communications
Commission; and
(4) the radio stations grant retransmission consent.
(b) The programmer is not required to make available more
than one-third of the programmer's analog audio channels to radio
stations.
(c) The programmer shall select the radio stations the
programmer makes available to subscribers under this section.
(d) This title does not require a programmer or incumbent
local exchange company to provide valuable consideration in
exchange for carriage under this section.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.133. RETRANSMISSION CONSENT.
Text of section effective until August 31, 2005
A local radio station licensed by the Federal Communications
Commission that seeks carriage under Section 62.132 shall grant
consent for programming retransmission to the programmer and the
incumbent local exchange company.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.134. WAIVER.
Text of section effective until August 31, 2005
(a) A company may petition the commission for a waiver from
a requirement this subchapter imposes on the company.
(b) The commission shall grant the waiver if the waiver is
in the public interest, after considering whether there is a need
for the requirement in the affected market.
(c) The commission may revoke a waiver granted under this
section if:
(1) conditions under which the waiver was granted have
materially changed; and
(2) the revocation is in the public interest.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.135. LIMITATION OF JURISDICTION.
Text of section effective until August 31, 2005
Except as otherwise specifically provided by this title, the
commission's jurisdiction over an incumbent local exchange
company's affiliate that is an audio programmer is limited to the
specific requirements of this subchapter.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 62.136. EXPIRATION.
Text of section effective until August 31, 2005
This subchapter expires August 31, 2005.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 1212, § 54, eff. Sept. 1, 1999.
