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A BILL TO BE ENTITLED
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AN ACT
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relating to the continuation and functions of the Electric |
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Reliability Council of Texas, the Office of Public Utility Counsel, |
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and the Public Utility Commission of Texas; imposing an |
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administrative penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 12.005, Utilities Code, is amended to |
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read as follows: |
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Sec. 12.005. APPLICATION OF SUNSET ACT. The Public Utility |
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Commission of Texas is subject to Chapter 325, Government Code |
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(Texas Sunset Act). Unless continued in existence as provided by |
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that chapter or by Chapter 39, the commission is abolished and this |
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title expires September 1, 2023 [2011]. |
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SECTION 2. Section 12.155, Utilities Code, is amended by |
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adding Subsection (d) to read as follows: |
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(d) A commissioner may not be employed by an independent |
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organization certified under Section 39.151. The prohibition under |
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this subsection applies until the second anniversary of the date |
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the commissioner ceases to serve as a commissioner. |
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SECTION 3. Section 13.002, Utilities Code, is amended to |
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read as follows: |
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Sec. 13.002. APPLICATION OF SUNSET ACT. The Office of |
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Public Utility Counsel is subject to Chapter 325, Government Code |
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(Texas Sunset Act). Unless continued in existence as provided by |
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that chapter, the office is abolished and this chapter expires |
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September 1, 2023 [2011]. |
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SECTION 4. Section 15.023, Utilities Code, is amended by |
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amending Subsections (b), (c), and (d) and adding Subsection (b-1) |
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to read as follows: |
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(b) Except as provided by Subsection (b-1), the [The] |
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penalty for a violation may be in an amount not to exceed $25,000. |
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Each day a violation continues or occurs is a separate violation for |
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purposes of imposing a penalty. |
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(b-1) The penalty for a violation of a reliability standard |
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adopted by the independent organization certified under Section |
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39.151 or of a commission rule relating to reliability in the |
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wholesale electric market may be in an amount not to exceed |
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$100,000. Each day a violation continues or occurs is a separate |
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violation for purposes of imposing a penalty. |
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(c) The commission by rule shall establish a classification |
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system for violations described by Subsection (b) and a separate |
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classification system for violations described by Subsection |
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(b-1). Each system must include [that includes] a range of |
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administrative penalties that may be assessed for each class of |
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violation, based on: |
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(1) the seriousness of the violation, including: |
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(A) the nature, circumstances, extent, and |
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gravity of a prohibited act; and |
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(B) the hazard or potential hazard created to the |
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health, safety, or economic welfare of the public; |
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(2) the economic harm to property or the environment |
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caused by the violation; |
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(3) the history of previous violations; |
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(4) the amount necessary to deter future violations; |
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(5) efforts to correct the violation; and |
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(6) any other matter that justice may require. |
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(d) The classification system established under Subsection |
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(c) shall provide that a penalty in an amount that exceeds $5,000 |
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may be assessed only if the violation is included in the highest |
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class of violations in the classification system. This subsection |
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does not apply to the classification system established under |
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Subsection (c) for a violation described by Subsection (b-1). |
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SECTION 5. Chapter 15, Utilities Code, is amended by adding |
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Subchapter D to read as follows: |
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SUBCHAPTER D. CEASE AND DESIST ORDERS |
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Sec. 15.101. APPLICATION OF SUBCHAPTER. This subchapter |
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applies only to a person to whom Subtitle B applies. |
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Sec. 15.102. RULES. The commission shall adopt rules to |
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implement this subchapter. |
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Sec. 15.103. PROCEEDINGS UNDER OTHER LAW. The commission |
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may proceed solely under this subchapter or under this subchapter |
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in conjunction with other applicable law. |
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Sec. 15.104. AUTHORITY TO ISSUE ORDER. (a) The |
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commission on its own motion may issue a cease and desist order: |
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(1) after providing notice and an opportunity for a |
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hearing if practicable or without notice or opportunity for a |
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hearing; and |
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(2) if the commission determines that the conduct of a |
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person: |
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(A) poses a threat to continuous and adequate |
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electric service; |
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(B) is fraudulent; |
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(C) is hazardous; |
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(D) creates an immediate danger to the public |
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safety; or |
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(E) is causing or can be reasonably expected to |
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cause an immediate injury to a customer of electric services and |
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that the injury is incapable of being repaired or rectified by |
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monetary compensation. |
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(b) The commission by order or rule may delegate to the |
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executive director the authority to issue cease and desist orders |
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under this subchapter. |
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Sec. 15.105. NOTICE. (a) Notice of a proposed order must be |
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given not later than the 10th day before the date set for a hearing |
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if the commission requires notice and hearing before issuing the |
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order. |
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(b) On issuance of an order under Section 15.104 with or |
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without a hearing, the commission shall serve on the person |
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affected by the order an order that: |
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(1) contains a statement of the charges; and |
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(2) requires the person immediately to cease and |
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desist from the acts, methods, or practices stated in the order. |
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(c) The commission shall serve the order by registered or |
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certified mail, return receipt requested, to the person's last |
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known address. |
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Sec. 15.106. HEARING. (a) Chapter 2001, Government Code, |
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does not apply to the issuance of a cease and desist order under |
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this subchapter without a hearing. A hearing conducted before or |
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after issuance of an order under this subchapter is a contested case |
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under Chapter 2001, Government Code. |
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(b) Not later than the 10th day after the date the |
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commission issues an order under this subchapter without a hearing, |
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the commission shall set the time and place for a hearing to affirm, |
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modify, or set aside the order. The commission shall set the |
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hearing for a date that is not later than the 30th day after the date |
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the commission sets the time and place. |
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(c) At or following the hearing, the commission shall wholly |
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or partly affirm, modify, or set aside the order. |
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(d) The commission may hold a hearing under this subchapter |
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or may authorize the State Office of Administrative Hearings to |
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hold the hearing. |
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Sec. 15.107. EFFECT OF ORDER PENDING HEARING. Pending a |
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hearing under this subchapter, an order continues in effect unless |
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the order is stayed by the commission. |
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Sec. 15.108. ADMINISTRATIVE PENALTY. The commission may |
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impose an administrative penalty under Subchapter B against a |
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person who violates an order issued under this subchapter. |
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SECTION 6. Section 39.151, Utilities Code, is amended by |
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amending Subsections (d-1), (e), and (g) and adding Subsections |
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(d-2), (d-3), (d-4), (e-1), (g-2), (g-3), and (n) to read as |
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follows: |
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(d-1) The commission shall require an independent |
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organization certified by the commission under this section to |
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annually submit to the commission for review and approval the |
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organization's entire proposed annual budget. The commission may |
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approve, disapprove, or modify any item included in the proposed |
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budget. The commission by rule shall establish the type of |
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information or documents needed to effectively evaluate the |
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proposed budget and reasonable dates for the submission of that |
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information or those documents. The commission shall establish a |
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procedure to provide public notice of and public participation in |
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the budget review process. |
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(d-2) An independent organization certified by the |
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commission under this section must submit to the commission for |
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review and approval proposals for obtaining debt financing or for |
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refinancing existing debt. The commission may approve, disapprove, |
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or modify a proposal. |
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(d-3) An independent organization certified by the |
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commission under this section shall develop proposed performance |
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measures to track the organization's operations. The independent |
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organization must submit the proposed performance measures to the |
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commission for review and approval. The commission shall annually |
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review the organization's performance as part of the budget review |
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process under Subsection (d-1). The commission shall prepare an |
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annual report detailing the organization's performance and submit |
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the report to the lieutenant governor, the speaker of the house of |
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representatives, and each house and senate standing committee that |
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has jurisdiction over electric utility issues. |
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(d-4) The commission may: |
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(1) require an independent organization to provide |
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reports and information relating to the independent organization's |
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performance of the functions prescribed by this section and |
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relating to the organization's revenues, expenses, and other |
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financial matters; |
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(2) prescribe a system of accounts for an independent |
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organization; |
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(3) conduct audits of an independent organization's |
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performance of the functions prescribed by this section or relating |
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to its revenues, expenses, and other financial matters and may |
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require an independent organization to conduct such an audit; |
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(4) inspect an independent organization's facilities, |
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records, and accounts during reasonable hours and after reasonable |
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notice to the independent organization; |
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(5) assess administrative penalties against an |
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independent organization that violates this title or a rule or |
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order adopted by the commission and, at the request of the |
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commission, the attorney general may apply for a court order to |
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require an independent organization to comply with commission rules |
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and orders in the manner provided by Chapter 15; and |
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(6) resolve disputes between an affected person and an |
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independent organization and adopt procedures for the efficient |
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resolution of such disputes. |
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(e) After approving the budget of an independent |
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organization under Subsection (d-1), the [The] commission shall |
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[may] authorize the [an independent] organization [that is
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certified under this section] to charge [a reasonable and
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competitively neutral rate] to wholesale buyers and sellers a |
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system administration fee, within a range determined by the |
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commission, that is reasonable and competitively neutral to fund |
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[to cover] the independent organization's approved budget [costs]. |
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The commission shall investigate the organization's cost |
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efficiencies, salaries and benefits, and use of debt financing and |
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may require the organization to provide any information needed to |
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effectively evaluate [the organization's budget and] the |
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reasonableness and neutrality of the fee [a rate or proposed rate] |
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or to evaluate the effectiveness or efficiency of the |
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organization. The commission shall work with the organization to |
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establish the detail of information, both current and historical, |
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and the time frames the commission needs to effectively evaluate |
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the fee. The commission shall require the independent organization |
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to closely match actual revenues generated by the fee with revenue |
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necessary to fund the budget and make quarterly fee adjustments to |
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ensure that the budget year does not end with surplus or |
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insufficient funds. The commission shall require the organization |
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to submit to the commission quarterly reports that compare actual |
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expenditures with budgeted expenditures [a rate or a rate request]. |
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(e-1) The review and approval of a proposed budget under |
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Subsection (d-1) or a proceeding to authorize and set the range for |
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the amount of a fee under Subsection (e) is not a contested case for |
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purposes of Chapter 2001, Government Code. |
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(g) To maintain certification as an independent |
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organization under this section, an organization's governing body |
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must be composed of persons specified by this section and selected |
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in accordance with formal bylaws or protocols of the |
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organization. The bylaws or protocols must be approved by the |
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commission and must reflect the input of the commission. The |
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bylaws must specify the process by which appropriate stakeholders |
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elect members and, for unaffiliated members, prescribe |
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professional qualifications for selection as a member. The bylaws |
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must require the use of a professional search firm to identify |
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candidates for membership of unaffiliated members. The process |
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must allow for commission input in identifying candidates. The |
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governing body must be composed of: |
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(1) one member unaffiliated with any market segment |
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and selected by [the chairman of] the commission, who may be a |
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former commissioner, to serve a three-year term [as an ex officio
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nonvoting member]; |
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(2) one member [the counsellor as an ex officio voting
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member] representing residential and small commercial consumer |
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interests and selected by the counsellor to serve a one-year term; |
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(3) the chief executive officer of the independent |
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organization as an ex officio voting member; |
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(4) six market participants elected by their |
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respective market segments to serve one-year terms, with: |
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(A) one representing independent generators; |
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(B) one representing investor-owned utilities; |
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(C) one representing power marketers; |
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(D) one representing retail electric providers; |
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(E) one representing municipally owned |
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utilities; and |
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(F) one representing electric cooperatives; |
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(5) one member representing industrial consumer |
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interests and elected by the industrial consumer market segment to |
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serve a one-year term; |
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(6) one member representing large commercial consumer |
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interests selected in accordance with the bylaws to serve a |
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one-year term; [and] |
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(7) five members unaffiliated with any market segment |
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and selected by the other members of the governing body to serve |
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three-year terms; and |
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(8) one member unaffiliated with any market segment |
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who possesses financial expertise and is selected by the other |
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members of the governing body to serve a three-year term. |
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(g-2) To maintain certification as an independent |
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organization under this section, the organization's governing body |
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must establish and implement a formal process for adopting new |
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protocols or revisions to existing protocols. The process must |
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require that: |
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(1) the organization's governing body initiate the |
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creation or revision of protocols; and |
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(2) the organization's staff develop the new or |
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revised protocols and submit the protocols to the governing body |
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for adoption. |
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(g-3) The governing body of an independent organization |
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certified by the commission under this section shall, in accordance |
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with formal bylaws or protocols adopted by the organization and |
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approved by the commission, establish and maintain an advisory |
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committee whose membership is broadly representative of the |
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organization's members to assist the organization's governing body |
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and staff in developing or revising protocols or in performing the |
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organization's other duties and functions. This subsection does |
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not prohibit the governing body of the organization from appointing |
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one or more additional committees or subcommittees to assist the |
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organization's governing body and staff in performing the |
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organization's duties and functions. |
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(n) An independent organization certified by the commission |
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under this section is subject to review under Chapter 325, |
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Government Code (Texas Sunset Act), but is not abolished under that |
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chapter. The independent organization shall be reviewed during |
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the periods in which the Public Utility Commission of Texas is |
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reviewed. |
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SECTION 7. Section 39.1515(c), Utilities Code, is amended |
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to read as follows: |
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(c) The independent organization shall use money from the |
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fee [rate] authorized by Section 39.151(e) to pay for the market |
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monitor's activities. |
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SECTION 8. Section 52.057, Utilities Code, is amended by |
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amending Subsections (a), (b), and (c) and adding Subsections (c-1) |
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and (d-1) to read as follows: |
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(a) This section applies only to [The commission shall
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approve] a customer-specific contract [that meets the requirements
|
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of Subsection (b)] to provide: |
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(1) central office based PBX-type services for a |
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system of 200 stations or more; |
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(2) billing and collection services; |
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(3) high-speed private line services of 1.544 megabits |
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or greater; or |
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(4) customized services. |
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(b) The commission may require an incumbent local exchange |
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company to submit the company's customer-specific contract to the |
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commission for review [shall approve a contract for a service
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described by Subsection (a) if:
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[(1)
the contract is filed before the 30th day before
|
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the date the service contracted for is initiated;
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[(2)
the contract is accompanied by an affidavit from
|
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the person or entity contracting for the service stating that the
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person or entity considered acquiring the same, equivalent, or
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substitutable service by bid or quotation from a source other than
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the incumbent local exchange company;
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[(3)
the incumbent local exchange company recovers the
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appropriate costs of providing the service; and
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[(4)
approval of the contract is in the public
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interest]. |
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(c) An affected party may request in writing that the |
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commission review a customer-specific contract. The commission by |
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rule may establish guidelines for submitting a request [shall
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approve or deny a contract under this section not later than the
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30th day after the date the contract is filed, unless the commission
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for good cause extends the effective date for an additional 35
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days]. |
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(c-1) The commission by rule may establish the criteria the |
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commission will consider when reviewing a customer-specific |
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contract. |
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(d-1) The commission by rule shall prescribe the period |
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during which an incumbent local exchange company must keep a record |
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of a customer-specific contract to which the company is a party. |
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SECTION 9. Subchapter C, Chapter 52, Utilities Code, is |
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amended by adding Section 52.1035 to read as follows: |
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Sec. 52.1035. RENEWAL OF CERTAIN REGISTRATIONS OR |
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CERTIFICATES. (a) The commission by rule shall require each |
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interexchange telecommunications utility, holder of a certificate |
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of operating authority, and holder of a service provider |
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certificate of operating authority to file with the commission on a |
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one-time or regular basis: |
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(1) the utility's or holder's name; |
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(2) the utility's or holder's address; and |
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(3) the most recent version of each annual report the |
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commission requires the utility or holder to file under this |
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subtitle. |
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(b) The rules must: |
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(1) require the commission to automatically allow a |
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utility or holder an extension of a filing deadline for the number |
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of days prescribed by the rule, as applicable; and |
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(2) state that the registration or certificate of a |
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utility or holder will not be valid after the last day of the |
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automatic extension period described by Subdivision (1) if the |
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utility or holder does not file information required by the |
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commission under this section by the end of the automatic extension |
|
period. |
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(c) A utility or holder whose registration or certificate is |
|
no longer valid may reregister or obtain a new certificate only by |
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complying with the requirements prescribed for an original |
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registration or for obtaining an original certificate. |
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SECTION 10. Subchapter B, Chapter 55, Utilities Code, is |
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amended by adding Section 55.026 to read as follows: |
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Sec. 55.026. NEW ORDERS PROHIBITED AFTER A CERTAIN DATE. On |
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or after September 1, 2011, the commission may not order a local |
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exchange company that is a dominant carrier to provide mandatory or |
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optional extended area service to additional metropolitan areas or |
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calling areas under this subchapter. |
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SECTION 11. Section 58.255, Utilities Code, is amended by |
|
amending Subsection (c) and adding Subsection (e) to read as |
|
follows: |
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(c) The commission may require an electing company to file a |
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private network service contract with the commission. The |
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commission shall require an electing company to file the company's |
|
contract with the commission on the written request of an entity |
|
described by Section 58.253(a). [Each contract shall be filed with
|
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the commission.] Commission approval of a contract is not |
|
required. |
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(e) The commission by rule shall prescribe the period during |
|
which an electing company must keep a record of a private network |
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service contract to which the company is a party. |
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SECTION 12. Section 59.074, Utilities Code, is amended by |
|
amending Subsection (c) and adding Subsection (d) to read as |
|
follows: |
|
(c) The commission may require an electing company to file a |
|
private network service contract with the commission. The |
|
commission shall require an electing company to file the company's |
|
contract with the commission on the written request of an entity |
|
described by Section 59.072(a). [Each contract shall be filed with
|
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the commission.] Commission approval of a contract is not |
|
required. |
|
(d) The commission by rule shall prescribe the period during |
|
which an electing company must keep a record of a private network |
|
service contract to which the company is a party. |
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SECTION 13. The Public Utility Commission of Texas shall |
|
adopt rules to implement the filing process required by Section |
|
52.1035, Utilities Code, as added by this Act, as soon as |
|
practicable. The rules must specify whether the commission will |
|
require that an interexchange telecommunications utility, holder |
|
of a certificate of operating authority, or holder of a service |
|
provider certificate of operating authority file the information |
|
required by Section 52.1035, Utilities Code, as added by this Act, |
|
once or on a regular basis. Regardless of the frequency of filing |
|
required, each utility or holder shall file the information |
|
required by Section 52.1035, Utilities Code, as added by this Act, |
|
not later than January 1, 2012. If the commission requires regular |
|
filings, the rules must specify the timing of the subsequent |
|
filings. |
|
SECTION 14. The change in law made by this Act to Section |
|
15.023, Utilities Code, applies only to a violation that occurs on |
|
or after the effective date of this Act. For purposes of this |
|
section, a violation occurs before the effective date of this Act if |
|
any element of the violation occurs before that date. A violation |
|
that occurs before the effective date of this Act is covered by the |
|
law in effect on the date the violation occurred, and the former law |
|
is continued in effect for that purpose. |
|
SECTION 15. This Act takes effect September 1, 2011. |