16 Tex. Admin. Code § 26.229 - Requirements Applicable to Chapter 59 Electing Companies
(a) Application. This section applies to
electing companies, as defined in the Public Utility Regulatory Act (PURA)
§59.002(1).
(b) Purpose. The
purpose of this section is to establish the substantive and procedural
requirements for an electing company that chooses to provide an informational
notice 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 electing company may file an informational notice to
introduce a new service. An electing company 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 electing company 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 electing company 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 electing company
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 electing company 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 electing company offers a new service as a
component of a package, the electing company shall also offer the new service
as a separately tariffed service.
(d) Pricing and packaging flexibility. An
electing company 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 electing company 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 electing company 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 electing company 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 electing company 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 electing company.
(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 electing
company 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 electing company 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 electing company, and
with subparagraph (F) of this paragraph. A group of products or services that
are jointly marketed by an electing company 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 electing company, and with
subparagraph (F) of this paragraph.
(F) Consistent with PURA §52.051(1)(C),
an electing company shall not use revenues from regulated monopoly services to
subsidize services subject to competition.
(3) LRIC studies. An electing company 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 electing company
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 electing company 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
electing company 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 electing
company 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
electing companies 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 electing company 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 electing
company 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 electing companies choosing to introduce new services
and exercise pricing and packaging flexibility including customer promotional
offerings through informational notice filings.
(1) Notice requirements.
(A) An electing company 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 electing company's certificated area
or areas, or who has an effective interconnection agreement with the electing
company.
(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 electing company 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 electing company 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 electing company 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 electing company 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 electing company 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 electing company's
provisioning of the service to the electing company's customers; providing the
products or services. The cost to an electing company 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
electing company, 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 electing company;
(xiv) for package offerings that
combine regulated products or services with unregulated products or services
and/or with the products or services of an electing company's affiliate, an
affidavit indicating that the price of the package recovers the cost to the
electing company 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 electing company 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 electing company 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 electing company, 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 electing company;
(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 electing company 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 electing
company 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.
(h) A telecommunications provider
that is not subject to rate-of-return regulation under PURA, Chapter 53:
(1) may, but is not required to, maintain on
file with the commission tariffs, price lists, or customer service agreements
in relation to services that are not subject to regulation without commission
approval;
(2) may make changes in
its tariffs, price lists, and customer service agreements in relation to
services that are not subject to regulation without commission approval;
and
(3) may cross-reference its
federal tariff in its state tariff if its intrastate switched access rates are
the same as its interstate switched access rates.
(i) A telecommunications provider may
withdraw a tariff, price list, or customer service agreement not required to be
filed or maintained with the commission under this section if the provider:
(1) files written notice of the withdrawal
with the commission; and
(2)
notifies its customers of the withdrawal and posts the current tariffs, price
lists, or generic customer service agreements on its Internet
website.
Notes
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