16 Tex. Admin. Code § 26.467 - Rates, Allocation, Compensation, Adjustments and Reporting
(a) Purpose. This
section establishes the following:
(1) rates
for categories of access lines;
(2)
default allocation for municipalities;
(3) adjustments to the base amount and
allocation;
(4) municipal
compensation; and
(5) associated
reporting requirements.
(b) Application. The provisions of this
section apply to certificated telecommunication providers (CTPs) and
municipalities in the State of Texas, unless specified otherwise in this
section.
(c) Rate determination.
The sum of the amounts derived from multiplying the rate for each category of
access line by the total number of access lines in that category in a
municipality shall be equal to the base amount. The rate for each of the access
line categories established pursuant to §
26.461 of this title (relating to
Access Line Categories) shall be calculated using a 1998 access line count in
general accordance with the following formula:
(d)
Estimating a 1998 access line count. If a CTP does not provide an actual 1998
access line count, the commission shall use the CTP's 1999 access line count,
reported pursuant to §
26.465 of this title (relating to
Methodology for Counting Access Lines and Reporting Requirements for
Certificated Telecommunications Providers), to derive an estimated 1998 access
line count.
(1) Estimating access line count
for category 1 (residential) access lines. The estimated statewide growth rate
for category 1 access lines in 1999 is 4.5%. This percentage is determined
using the statewide growth rate for residential access lines as reported to the
Texas Legislature in the 1997 and 1999 reports entitled "Scope of Competition
in Telecommunications Markets." The commission shall estimate a municipality's
1998 access line count for category 1 by discounting 4.5% from the 1999 line
count for category 1 lines reported by a CTP.
(2) Estimating access line count for category
2 (non-residential) and category 3 (point-to-point) access lines. The estimated
statewide growth rate for category 2 and category 3 access lines in 1999 is
7.0%. This percentage is determined using the statewide growth rate for
business access lines as reported to the Texas Legislature in the 1997 and 1999
reports entitled "Scope of Competition in Telecommunications Markets." The
commission shall estimate a municipality's 1998 access line count for category
2 and category 3 by discounting 7.0% from the 1999 line count for category 2
and category 3 lines reported by a CTP.
(3) Municipal request for exception.
(A) No later than March 15, 2000, a
municipality may request the use of a municipality-specific growth rate(s), by
category, for estimating its 1998 access line count, instead of using the
estimated statewide growth rates determined under paragraphs (1) and (2) of
this subsection. The municipality's request shall include its proposed growth
rates(s), along with proof and methodology for deriving the growth rate(s),
from public and verifiable sources.
(B) No later than March 15, 2000, a
municipality that requests to use a municipality-specific growth rate(s) shall
provide a copy of its filing to all CTPs that have filed access line counts for
the municipality.
(C) No later than
March 31, 2000, any CTP that has filed access line counts for that municipality
may file objections to the municipality's proposed growth rate(s), if any. In
order to be considered, an objection must include actual 1998 line count data
for that municipality.
(D) Until
resolution of the request approval process, the estimated statewide growth
rate(s) determined under paragraphs (1) and (2) of this subsection shall be
used to determine the municipality's 1998 access line count. Upon resolution of
any objections to the request approval process, the commission shall develop a
new access line count for 1998 incorporating the new growth rate(s), by
category, as appropriate.
(e) Default allocation. The commission's
default allocation shall be a ratio of 1:2.3:3.5 for access line categories 1,
2, and 3 respectively. This default allocation represents an average of all
allocation ratios filed by municipalities with the commission pursuant to
§
26.463 of this title (relating to
Calculation and Reporting of a Municipality's Base Amount).
(1) The commission shall establish access
line rates for municipalities using the default allocation unless a
municipality has filed its own allocation pursuant to §
26.463 of this title.
(2) The access line rates established by the
commission for municipalities using the default allocation shall remain in
effect until a municipality updates its initial allocation pursuant to
subsection (g) of this section or revises its allocation pursuant to subsection
(h) of this section.
(f)
Initial rates. No later than March 1, 2000, the commission shall establish
rates for each category of access line in a municipality. These rates shall be
considered to be initial rates. The initial rates shall be implemented no later
than 90 days from the date the commission establishes the rates. These initial
rates shall remain in effect until the rates are updated pursuant to subsection
(g) of this section or revised pursuant to subsection (h) of this
section.
(g) Updated rates. No
later than April 14, 2000, the commission shall establish updated rates for
each category of access line in a requesting municipality. The initial rates
established under subsection (f) of this section shall be updated to
incorporate municipal filings pursuant to paragraph (1) of this subsection
and/or CTP filings pursuant to paragraph (2) of this subsection, as
appropriate. Subject to approval by the commission, the updated municipal and
CTP information shall be used to establish updated access line rates. The
updated rates shall be in effect until revised pursuant to subsection (h) of
this subsection.
(1) Updates to municipal
base amount filings. No later than March 31, 2000, a municipality may update
its base amount and allocation filed with the commission pursuant to §
26.463 of this title. No later
than March 31, 2000, a municipality that filed a request to update its base
amount and/or allocation shall forward a copy of its filing to all CTPs who
have filed access line counts for the municipality.
(A) Updates to base amount. A municipal
filing for updates to base amount shall use a methodology for calculating the
base amount that is consistent with §
26.463 of this title, and shall
include appropriate justification for the update. Appropriate justification may
include:
(i) receipt of late payments from
CTPs attributable to 1998 usage of rights-of-way;
(ii) reduction to judgment of disputed
payments attributable to 1998 usage of rights-of-way;
(iii) settlement of disputed payments
attributable to 1998 usage of rights-of-way;
(iv) eligibility under effective agreements
or ordinances to receive a known and measurable amount due to specifically
prescribed fee rate escalations provisions for the period between January 1,
2000 and March 1, 2000; and
(v) an
inadvertent base amount computational error.
(B) Updates to allocation. A municipality
that has filed with the commission its own allocation pursuant to §
26.463 of this title may file an
updated allocation no later than March 31, 2000.
(2) Updates to CTP access line counts. No
later than March 15, 2000, a CTP may request to update its access line count
filed with the commission pursuant to §
26.465 of this title. A CTP's
request for updates to access line count shall use a methodology for counting
access lines that is consistent with §
26.465 of this title, and shall
include appropriate justification for the update. Appropriate justification may
include, but is not limited to:
(A) an
inadvertent access line count computational error;
(B) reconciliation of reported retail and
resold access line lines; and
(C)
access line counting issues associated with merger, sale, or transfer of
CTPs.
(3) Choosing lower
than maximum rate(s). The rates obtained by applying the allocation to the base
amount and dividing the amounts allocated to each category by the appropriate
number of access lines in that category in a municipality shall be considered
to be maximum rates for a municipality. No later than March 31, 2000, a
municipality that wishes to choose lower access line rate(s) than the maximum
initial rates established under subsection (f) of this section, shall notify
the commission and all CTPs that filed access line counts for that municipality
of the lower access line rate(s) it chooses. If a municipality's request to
choose lower initial rate(s) is higher than its updated rates, the updated
rates shall remain in effect until revised pursuant to subsection (h) of this
section.
(h) Revised
rates. No later than October 15 of each calendar year, upon request from a
municipality pursuant to paragraphs (l) and (2) of this subsection, the
commission shall establish revised access line rates for each category of
access line in a municipality, as applicable. A CTP shall apply the revised
rates to access lines in a municipality in January of the next calendar year
and compensate a municipality pursuant to the revised rates.
(1) Adjustments within established rates. No
later than September 1 of each calendar year, a municipality may change its
rates within the maximum rates by notifying the commission and all CTPs in that
municipality that its wishes to revise its access line rate for the next
calendar year. In its notification to the commission and the CTPs, the
municipality shall indicate the rates that it wishes to have the commission
apply in the next calendar year. Upon such notification, the commission shall
revise the rates accordingly.
(2)
Revising allocation formula. No later than September 1 of each calendar year,
and not more than once every 24 months, a municipality may petition a
modification of the default allocation or its own allocation by notifying the
commission and all affected CTPs in the municipality. In its notification to
the commission and the CTPs, the municipality shall designate the allocation
that it wishes to have the commission apply in the next calendar
year.
(i) Resolution of
municipal allocations.
(1) The commission
shall implement a municipality's allocation unless, the commission determines
that the allocation is not just and reasonable, is not competitively neutral,
or is discriminatory.
(2) No later
than March 15, 2000 any affected CTP may complain regarding a municipality's
initial allocation filed pursuant to §
26.463 of this title. No later
than April 7, 2000 any affected CTP may complain regarding a municipality's
updated allocation filed pursuant to subsection (g)(1)(B) of this section. No
later than September 15 of any calendar year any affected CTP may complain
regarding a municipality's revised allocation filed pursuant to subsection
(h)(2) of this section.
(3) Where
the market price of a telecommunications service is less than or equal to the
amount derived from multiplying the access line rates with the number of access
lines used to provide that service, the allocation used to develop the access
line rate shall be presumed to be discriminatory, not just and reasonable and
not competitively neutral.
(j) Consumer price index (CPI) adjustment to
commission-established rates. Beginning 24 months after the commission
establishes access line rates, the commission shall annually adjust the rates
per access line by category for each municipality by an amount equal to
one-half the annual change, if any, in the most recent consumer price index
(CPI), as determined by the Federal Bureau of Labor Statistics.
(k) CTP implementation of
commission-established rates. The requirements listed in this subsection shall
apply to all CTPs in the State of Texas, except those exempted pursuant to
§
26.465 of this title.
(1) Interim compensation. CTPs shall continue
to compensate municipalities at the rates required under the terms of the
expired or terminated agreements or ordinances until the CTP implements the
commission-established rates. A CTP not subject to an existing franchise
agreement or ordinance that wants to construct facilities to offer
telecommunications services in the municipality shall pay fees that are
competitively neutral and non-discriminatory, consistent with the charges of
the most recent agreement or ordinance between the municipality and the CTP
serving the largest number of access lines within the municipality until the
right-of-way fees established by the commission take effect.
(2) Billing systems. A CTP shall develop and
maintain billing systems as necessary to implement access line rates, by
category, as established by the commission. These systems must be sufficient to
substantiate compliance with the access line reporting requirements in this
section.
(3) Quarterly compensation
and reporting. All CTPs are responsible for reporting to the commission their
own quarterly access line count report and compensating each municipality,
absent a reporting arrangement as described in subsection (l) of this section.
All CTPs shall implement commission-established rates for each quarter. Unless
otherwise specified, periodic reporting shall be consistent with this
subsection and §
26.465 of this title.
(A) Quarterly access line count report.
(i) No later than 45 days from the end of the
preceding calendar quarter, a CTP shall file a quarterly access line count
report for the preceding calendar quarter with the commission.
(ii) The quarterly access line count report
shall include a count of the number of access lines, by category, by
municipality, for the end of each month of the preceding quarter.
(iii) If a CTP deducts or includes a direct
write-off pursuant to subsection (m)(2) of this section, the CTP shall complete
a reconciliation report, showing a monthly delineation of the amount added to
the total payment due to previously uncollectible direct write-offs, and the
amount deducted from the total payment due to direct write-offs. This report
shall be part of the quarterly access line count report filing.
(iv) The report shall exclude lines that are
resold, leased or otherwise provided to other CTPs unless the CTP is reporting
on behalf of another CTP pursuant to subsection (l) of this section.
(v) The CTP contact person listed in the
Municipal Access Line Reporting System (MARS) at the time that the quarterly
access line counts are entered for each quarter shall be the duly authorized
representative of the CTP who certifies that the information contained in the
report is based upon personal knowledge and is true and correct.
(vi) The CTP shall respond to any request for
additional information from the commission within 30 days from receipt of the
request.
(vii) Reports required
under this subsection may be used by the commission only to verify the number
of access lines that serve customer premises within a municipality.
(viii) On request and subject to the
confidentiality protections of the Local Government Code, §
283.005, each
CTP shall provide each affected municipality with a copy of the report required
by this subsection.
(B)
Compensation.
(i) All CTPs shall apply the
most recent commission-established rates to access lines in a
municipality.
(ii) The municipal
compensation shall be an amount equal to the rate per category of access line
multiplied by the number of access lines in that category in that municipality
at the end of each month in a calendar quarter as reflected in reports filed
pursuant to subparagraph (A) of this paragraph.
(iii) All payments for calendar quarters
shall be made no later than 45 days from the end of that quarter.
(4) Adequate proof of
reporting and compensation responsibilities.
(A) Definition of "underlying CTP" and
"reselling CTP."
(i) An underlying CTP is a
CTP that owns facilities or provides facilities or capacity to another CTP in
the rights-of-way of municipalities.
(ii) A reselling CTP is a CTP to whom an
underlying CTP resold, leased or otherwise provided access lines that extend to
the end-use customer's premises.
(B) For the purposes of this paragraph,
"adequate proof" shall consist of a written agreement that specifically cites,
and assigns responsibility for compliance with, the Texas Local Government
Code, Chapter 283, and the reporting and compensation requirements of this
subchapter.
(C) To ensure that each
CTP reports and compensates municipalities for those lines that it uses to
serve end-use customers, underlying CTPs and their reselling CTPs shall, as
part of their business relationship, enter into an agreement that meets the
adequate proof standard of this paragraph.
(D) An underlying CTP shall obtain adequate
proof that the reselling CTP will directly report its lines and remit the
related payments to municipalities.
(E) A reselling CTP must provide adequate
proof to the underlying CTP upon request.
(F) The underlying CTP must acquire this
adequate proof within 90 days of the effective date of this section, at the
time of the signing of an initial interconnection agreement, or at the time of
signing its agreement for the provision of services if the parties do not have
an interconnection agreement
(G) If
the underlying CTP fails to obtain adequate proof that the reselling CTP will
include the access line in its monthly count and remit payment on those access
lines to the municipality, the underlying CTP must include such lines in its
monthly count of access lines and remit a right-of-way fee to the
municipality.
(H) A CTP, whether an
underlying CTP or reselling CTP, shall make its adequate proof agreements
available for review by municipalities and the commission upon
request.
(l)
Alternate reporting and compensation arrangements. Notwithstanding any other
subsection, a CTP shall be subject to the following terms when making alternate
reporting and compensation arrangements.
(1)
For the purposes of this subsection, "underlying CTP" and "reselling CTP" shall
have the same meanings as assigned in subsection (k) of this section.
(2) Designated reporting party. A CTP may
reach a written agreement separate from any other agreement, including the
adequate proof agreement, to have a designated reporting party fulfill the
reporting and compensation requirements of this section on its behalf. If the
CTP is a reselling CTP, the designated reporting party may be the underlying
CTP.
(A) If such an agreement is reached, the
designated reporting party shall file the quarterly access line count report in
each municipality, by category, on behalf of the CTP, and also compensate the
municipality for those lines.
(B)
The designated reporting party shall file the quarterly access line count
report for each municipality, by category, with the commission on a
disaggregated basis by CTP.
(C)
Nothing in this subsection shall prevent a designated reporting party from
charging a reasonable administrative fee for reporting and compensating a
municipality on behalf of a CTP.
(D) Nothing in this subsection shifts the
liability from a CTP, reselling or otherwise, for non-payment of municipal
compensation and failure to report pursuant to this section.
(3) Affiliates. A CTP may file
access line reports and remit payments for itself and its affiliates that are
CTPs on an aggregated basis. If the CTP does so, the CTP shall include a list
of the affiliates and their certification numbers in its quarterly access line
count report.
(m)
Pass-through. A CTP recovering its municipal compensation from its customers
within the boundaries of a municipality shall not recover a total amount
greater than the sum of the amounts derived from the multiplication of access
line rates by the number of lines, per category, for that municipality.
Pass-through of the commission's rates established under this chapter shall be
considered to be a pro rata charge to customers.
(1) Where a CTP chooses to pass through the
municipal fee to its customers such CTP shall not pass through any costs
associated with its administration of municipal fees. The pass-through amount
shall not exceed the access line rate, by category, established by the
commission for that municipality.
(2) A CTP shall be allowed to deduct from its
current payment any amounts that are direct write-offs as a result of its
collection efforts. Any amounts subsequently recovered from the customer after
the direct write-offs shall be included in the amounts payable to each affected
municipality in the month(s) received. There shall be no reduction in payment
for any estimated uncollectible allowances reported for financial purposes by
the CTP.
(3) Beginning January 1,
2001, on request from the commission, a CTP shall report the amounts collected
in municipal fees from customers and the municipal fees paid to municipalities
for a period determined by the commission. This report shall be filed with the
commission by the CTP no later than 60 days from the date the CTP receives this
request.
(n)
Compensation from customers of lifeline or other low-income assistance
programs. A municipality may choose to forgo municipal compensation from access
lines serving Lifeline customers or customers of other similar low-income
assistance programs. A municipality electing this option shall notify all CTPs
in the municipality of this decision before September 1 on any given year. Upon
receipt of such notification, CTPs shall exclude such end-use customers from
their quarterly access line count, not pass through a municipal fee to such
end-use customers for the next calendar year, and shall be relieved of any
obligation to pay fees on such access lines to the municipality.
Notes
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