16 Tex. Admin. Code § 26.228 - Requirements Applicable to Chapter 52 Companies
(a) Application. This section applies to
incumbent local exchange companies (ILECs), as defined in the Public Utility
Regulatory Act (PURA) §51.002(3), which have not elected to be regulated
pursuant to PURA Chapters 58 or 59.
(b) Purpose. The purpose of this section is
to establish the substantive and procedural requirements for an ILEC to
introduce new services and/or to exercise pricing and packaging flexibility,
including customer promotional offerings, and for complaints regarding service
offerings introduced by informational notice offerings.
(c) New services. The term "new services" has
the meaning assigned in §
26.5 of this title (relating to
Definitions) and shall include services for which no rate was in effect on
September 1, 1999. An ILEC may file an informational notice to introduce a new
service. An ILEC filing an informational notice pursuant to this subsection
shall file the appropriate information in accordance with subsection (g)(2) of
this section.
(1) Pricing standards.
(A) An ILEC shall price each new service at
or above the service's long run incremental cost (LRIC).
(B) The price of a new service may not be
preferential, prejudicial, discriminatory, predatory, or
anticompetitive.
(C) A price that
is set at or above the service's LRIC is presumed not to be
predatory.
(2) LRIC
studies. An ILEC may establish a service's LRIC by submitting a LRIC study, as
specified in subsection (g)(2)(D)(ix) of this section, that conforms to the
requirements of §
26.214 of this title (relating to
Long Run Incremental Cost (LRIC) Methodology for Services Provided by Certain
Incumbent Local Exchange Companies (ILECs)).
(3) LRIC adoption. An ILEC serving fewer than
one million access lines in Texas may establish a service's LRIC by adopting
the commission-approved cost studies of a larger company for the same
service.
(4) Rate adoption. In lieu
of filing a LRIC study or adopting the LRIC studies of a larger company, an
ILEC with less than one million access lines may adopt a rate that is identical
to or higher than a larger company's tariffed rate for the same
service.
(5) Packaging of new
services. If an ILEC offers a new service as a component of a package, the ILEC
shall also offer the new service as a separately tariffed service.
(d) Pricing and packaging
flexibility. An ILEC may file an informational notice to exercise pricing and
packaging flexibility by filing the appropriate information in accordance with
subsection (g)(2) of this section.
(1)
General requirements.
(A) Pricing flexibility
includes:
(i) customer specific
contracts;
(ii) packaging of
services;
(iii) volume, term, and
discount pricing;
(iv) zone density
pricing, with a zone defined as an exchange; and
(v) other promotional pricing.
(B) A discount or other form of
pricing flexibility may not be preferential, prejudicial, discriminatory,
predatory, or anticompetitive.
(C)
An ILEC may exercise pricing flexibility, including the packaging or joint
marketing of any regulated service with any other regulated or unregulated
service or any service of an affiliate.
(2) Pricing standards.
(A) An ILEC shall price each regulated
service offered separately or as part of a package at either the service's
tariffed rate or at a rate not lower than the service's LRIC.
(B) An ILEC shall price each service at or
above the service's LRIC.
(C) A
price that is set at or above the service's LRIC is presumed not to be
predatory.
(D) The price of a
package that combines regulated products or services with unregulated products
or services shall recover the cost to the ILEC of acquiring and providing the
unregulated products or services. In this section, unregulated products or
services are products or services provided by an entity that is unaffiliated
with the ILEC.
(E) The price of a
package that combines regulated products or services with the products or
services of an affiliate shall recover the cost to the ILEC of acquiring and
providing its affiliate's products or services, which shall be greater than or
equal to the cost to the affiliate of acquiring and/or providing the products
or services. The cost to an ILEC of acquiring or providing the affiliate's
products or services shall be valued in a manner consistent with Federal
Communications Commission (FCC) requirements, to the extent such requirements
are applicable to the ILEC, and with subparagraph (F) of this paragraph. A
group of products or services that are jointly marketed by an ILEC in
conjunction with one or more of its affiliates shall be priced in a manner
consistent with FCC requirements, to the extent such requirements are
applicable to the ILEC, and with subparagraph (F) of this paragraph.
(F) Consistent with PURA §52.051(1)(C),
an ILEC shall not use revenues from regulated monopoly services to subsidize
services subject to competition.
(3) LRIC studies. An ILEC may establish a
service's LRIC by submitting a LRIC study, as specified in subsection
(g)(2)(D)(ix) of this section, that conforms to the requirements of §
26.214 of this title.
(4) LRIC adoption. An ILEC serving fewer than
one million access lines in Texas may establish a service's LRIC by adopting
the commission-approved cost studies of a larger company for the same
services.
(5) Rate adoption. In
lieu of filing a LRIC study or adopting the LRIC studies of a larger company,
an ILEC with less than one million access lines may adopt a rate that is
identical to or higher than a larger company's tariffed rate for the same
service.
(e) Customer
promotional offerings. An ILEC may file an informational notice to offer
customer promotional offerings by filing the appropriate information in
accordance with subsection (g)(2) of this section.
(1) An ILEC may offer a promotion for a
regulated service for not more than 90 days in any 12-month period.
(2) Customer promotional offerings may
consist of:
(A) a waiver of installation
charges or service order charges, or both, for not more than 90 days in a
12-month period; or
(B) a temporary
discount of not more than 25% from the tariffed rate for not more than 60 days
in a 12-month period.
(3) Although ILECs are not required to file
LRIC studies with informational notices regarding these customer promotional
offerings, the offerings are subject to the standards for pricing flexibility
in subsection (d) of this section, in the event of a complaint.
(f) Requirements for customer
specific contracts. An ILEC may enter into customer-specific contracts for
certain services as provided in §
26.211 of this title (relating to
Rate-Setting Flexibility for Services Subject to Significant Competitive
Challenges). For all services not addressed in §
26.211 of this title, an ILEC must
offer customer-specific contracts pursuant to this section.
(g) Procedures related to the filing of
informational notices and associated tariffs. The provisions of this subsection
apply to ILECs choosing to introduce new services and exercise pricing and
packaging flexibility including customer promotional offerings through
informational notice filings.
(1) Notice
requirements.
(A) An ILEC shall provide the
informational notice in compliance with this section to the commission, to the
Office of Public Utility Counsel (OPC), and to any person who holds a
certificate of operating authority in the ILEC's certificated area or areas, or
who has an effective interconnection agreement with the ILEC.
(B) Unless an interconnection agreement
contract specifies otherwise, an incumbent local exchange carrier shall
continue to provide to affected resellers of retail services the same notice of
rate changes or withdrawal of detariffed services that it was required to
provide prior to detariffing.
(2) Filing requirements.
(A) Filing of informational notice and
confidential information. At the time the informational notice is filed in
Central Records, a copy of the informational notice, including confidential
information, shall be delivered to OPC. In addition to the record copy, an
additional copy of any confidential information shall be filed in Central
Records for use by the commission staff.
(i)
The commission shall assign each informational notice a unique control number
and shall stamp the tariff sheets "received."
(ii) The commission staff shall file any
notice of deficiencies (including deficiencies in LRIC studies submitted) for
incomplete filings not in compliance with this section or pleading alleging
that the service offering is inappropriately filed as an informational notice
filing within three working days after the date of the filing of the
informational notice.
(iii) Within
two working days after the date of the commission staff's filing, the applicant
shall file an explanation of the actions it has taken or intends to take in
response to a notice or pleading filed under clause (ii) of this
subparagraph.
(B)
Effective date. A service offering shall be effective no earlier than ten days
after the ILEC files a complete informational notice with the
commission.
(C) Access to
confidential information. Access to confidential information filed with the
commission as part of an informational notice filing shall be available to
commission staff and OPC, upon execution of a commission approved protective
agreement, at the time the informational notice is filed.
(D) Format of filing. An informational notice
under this section must include the following elements:
(i) name of company;
(ii) PURA chapter under which company
operates;
(iii) date of
submission;
(iv) effective
date;
(v) new and/or revised tariff
pages, written in plain language and conforming to the requirements of §
26.207 of this title (relating to
Form and Filing of Tariffs);
(vi)
proposed implementation date (if different from effective date);
(vii) affidavit of notice to the Office of
Public Utility Counsel, certificate of operating authority holders, and parties
to interconnection agreements;
(viii) type of filing (new service; pricing
flexibility; packaging, or promotional offering; customer specific
contract);
(ix) except for customer
promotional offerings, relevant LRIC study or LRIC study reference, and
relevant support materials (confidential/proprietary/protected materials
provided to commission only). When LRIC studies for which commission approval
has not been obtained are provided with an informational notice filing, an
application for approval of that LRIC study must be filed pursuant to the
standards in §
26.214 of this title to establish
a LRIC floor and shall be filed before or simultaneously with the informational
notice filing. The ILEC shall file a notice of intent to file LRIC studies
pursuant to §
26.214 of this title no later than
ten days before the filing of the LRIC study;
(x) except for customer promotional
offerings, relevant LRIC study or LRIC study reference, and relevant supporting
materials (confidential/proprietary/protected materials provided to commission
only), if an ILEC chooses to adopt LRIC studies of a larger company pursuant to
the requirements of subsection (c)(3) or (d)(4) of this section, as
applicable;
(xi) except for
customer promotional offerings, relevant tariff rates or specific tariff
references, if the ILEC chooses to adopt rates of a larger company pursuant to
requirements of subsection (c)(4) or (d)(5) of this section, as
applicable;
(xii) a response of
"yes", "no", or "not applicable", with explanatory language, to the following
question: "Is the sum of the TELRIC-based wholesale prices of components needed
for provision of the retail service at or below the retail price set forth in
this filing?" Except for customer promotional offerings, if the response is
"yes" or "no", the filing must identify the components needed for the provision
of the retail service, along with a list of relevant wholesale and retail
prices;
(xiii) a response of "yes"
or "no" to the following question: "Is the service available for resale by a
competitor?" If the answer is "no", does the proposed price meet the standards
set forth in §
26.274(f) - (h)
of this title (relating to Imputation)? For purposes of this question,
"available for resale" means:
(I) the service
is not subject to tariffed resale restrictions; and
(II) the ILEC is not aware of any constraints
that would prevent a competitor from functionally provisioning the service to
the competitor's customers in parity with the ILEC's provisioning of the
service to the ILEC's customers;
(xiv) for package offerings that combine
regulated products or services with unregulated products or services and/or
with the products or services of an ILEC's affiliate, an affidavit indicating
that the price of the package recovers the cost to the ILEC of acquiring and
providing the unregulated products or services or the affiliate's products or
services. The affidavit shall also indicate that the cost to the ILEC of
acquiring and providing an affiliate's products or services is greater than or
equal to the cost to the affiliate of acquiring and/or providing the products
or services. The cost to an ILEC of acquiring or providing the affiliate's
products or services shall be valued in a manner consistent with FCC
requirements, to the extent FCC requirements are applicable to the ILEC, and
with subsection (d)(2)(F) of this section. For a joint marketing effort that
includes regulated products or services and the products or services of an
affiliate, an affidavit shall be provided by each affected affiliate attesting
that the affiliate's costs are recovered in a manner consistent with subsection
(d)(2)(F) of this section and FCC requirements, to the extent FCC requirements
are applicable to the ILEC;
(xv)
description of the offering's terms and conditions, including location of
service or a statement that it is to be provided state-wide; and
(xvi) a privacy concerns statement.
(E) For customer promotional
offerings:
(i) Affidavit that a promotion for
this service has not exceeded 90 days for the previous 12-month
period.
(ii) Promotional tariff or
letter identifying the promotional service and whether it is for a waiver of
installation or service order charges, or both (90 days) or a discount of 25%
or less (60 days).
(3) Disputes as to sufficiency or
appropriateness of informational notice filing.
(A) If the ILEC advises the commission by
written filing that a dispute exists with respect to a notice of deficiency or
the inappropriateness of an informational notice, and requests the assignment
of an administrative law judge to resolve the dispute, the commission will
consider the dispute to be a contested case.
(B) A contested case will also exist if the
commission files a complaint addressing sufficiency or appropriateness of an
informational notice filing.
(C)
Parties other than the commission staff may not challenge the sufficiency of an
informational notice filing.
(4) Complaints regarding service offerings
introduced by informational notice filings.
(A) Subject to subparagraph (E) of this
paragraph, an affected person, the OPC, or the commission may file a complaint
at the commission on or after the date the informational notice has been filed.
The filing of a complaint will initiate a contested case.
(B) A complaint addressing an informational
notice involving pricing flexibility, including customer promotions, may
challenge whether the filing is in compliance with PURA and the commission
substantive rules.
(C) A complaint
addressing an informational notice involving a new service may challenge
whether the tariff is in compliance with the pricing standards of PURA and
commission substantive rules. If the complaint is finally resolved in a final
order issued by the commission in favor of the complainant, the ILEC shall
either:
(i) not later than the tenth day
after the date the complaint is finally resolved, amend the price of the
service as necessary to comply with the final resolution; or
(ii) discontinue the service.
(D) The commission shall dismiss a
complaint filed prior to the filing of an informational notice on the grounds
that the commission lacks jurisdiction to hear the complaint.
(E) The commission shall consider any
complaint alleging that the pricing of a regulated service does not meet the
pricing standards of PURA and commission substantive rules, which is filed 31
or more days after the implementation date of the tariff, to be
untimely.
(F) All complaints shall
be docketed and governed by the commission's procedural rules and shall be
filed and reviewed pursuant to the following requirements:
(i) Complaints shall be captioned: COMPLAINT
BY {NAME OF COMPLAINANT} REGARDING TARIFF CONTROL NUMBER(S) {NUMBER(S)} {STYLE
OF TARIFF CONTROL NUMBER}.
(ii)
Processing. The commission shall assign each complaint filed with respect to an
informational notice a unique control number. The presiding officer shall cause
a copy of each complaint, bearing the assigned control number, to be filed in
the relevant tariff control number(s) for the related informational
notice(s).
(G) The
commission staff shall have standing in all proceedings related to
informational notice filings before the commission and may intervene by filing
a notice of intervention at any time prior to determination on the merits. No
motion is necessary for such intervention.
(H) A complaint filed pursuant to this
section shall be considered to be an exception to the informal resolution
requirements of procedural rule §
22.242(c) of
this title (relating to Complaints).
(5) Interim relief. All tariffs introduced by
informational notice filings will remain in effect during the pendency of any
complaint unless interim relief suspending the tariff is granted pursuant to
this subsection.
(A) Any request that a
tariff be suspended during the pendency of a complaint must meet the following
requirements:
(i) the pleading must state an
appropriate and bona fide cause of action;
(ii) the pleading must be verified or
supported with affidavits based on personal knowledge; and
(iii) the pleading must set forth the
following elements: probable right of recovery, probable and irreparable injury
in the interim, and no adequate alternative remedy.
(B) The presiding officer shall schedule a
hearing on interim relief in the form of suspension of a tariff on an expedited
basis.
(C) The burden of proof
shall be upon the complainant with respect to each element of proof necessary
to obtain any interim relief requested by the complainant.
Notes
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