16 Tex. Admin. Code § 26.420 - Administration of Texas Universal Service Fund (TUSF)
(a) Purpose. The provisions of this section
establish the administration of the Texas Universal Service Fund
(TUSF).
(b) Programs included in
the TUSF.
(1) Section
26.403 of this title (relating to
the Texas High Cost Universal Service Plan (THCUSP));
(2) Section
26.404 of this title (relating to
the Small and Rural Incumbent Local Exchange Company (ILEC) Universal Service
Plan);
(3) Section
26.406 of this title (relating to
the Implementation of the Public Utility Regulatory Act
§56.025);
(4) Section
26.408 of this title (relating to
Additional Financial Assistance (AFA));
(5) Section
26.410 of this title (relating to
Universal Service Fund Reimbursement for Certain IntraLATA Service);
(6) Section
26.412 of this title (relating to
Lifeline Service Program);
(7)
Section 26.414 of this title (relating to
Telecommunications Relay Service (TRS));
(8) Section
26.415 of this title (relating to
Specialized Telecommunications Assistance Program (STAP));
(9) Section
26.417 of this title (relating to
Designation as Eligible Telecommunications Providers to Receive Texas Universal
Service Funds (TUSF));
(10) Section
26.418 of this title (relating to
Designation of Common Carriers as Eligible Telecommunications Carriers to
Receive Federal Universal Service Funds);
(11) Section
26.420 of this title (relating to
Administration of Texas Universal Service Fund (TUSF));
(12) Section
26.421 of this title (relating to
Designation of Eligible Telecommunications Providers to Provide Service to
Uncertificated Areas);
(13) Section
26.422 of this title (relating to
Subsequent petitions for Service to Uncertificated Areas);
(14) Section
26.423 of this title (relating to
High Cost Universal Service Plan for Uncertificated Areas Where an Eligible
Telecommunications Provider Volunteers to Provide Basic Local
Telecommunications Service); and
(15) Section
26.424 of this title (relating to
Audio Newspaper Assistance Program).
(c) Responsibilities of the commission. The
commission is the official governing agency for the TUSF, but may delegate the
ministerial functions of TUSF administration to another entity (the TUSF
administrator) through contractual agreement.
(1) Monitoring, and supervising TUSF
administration. The commission reserves the exclusive power to revise rules
related to the operation and administration of the TUSF and to monitor and
supervise such operation and administration.
(2) Annual audit. The commission annually
shall provide for an audit of the TUSF by an independent auditor. The costs of
the audit are costs of the commission that are incurred in administering the
TUSF, and therefore shall be reimbursed from the TUSF.
(3) Inquiry into administration of the TUSF.
The commission may, upon its own motion, upon the petition of the commission
staff or the Office of Public Utility Counsel, initiate an inquiry into any
aspect of the administration of the TUSF. Any other party may initiate a
complaint proceeding pursuant to the commission's procedural rules.
(4) Selection of the TUSF administrator.
(A) The commission shall have the sole
discretion in the selection of the TUSF administrator. The selection of the
TUSF administrator shall be based on a competitive bidding process.
(B) The TUSF administrator must meet the
technical qualifications as provided in subsection (d)(1) of this section as
well as other requirements as determined by the commission.
(5) Contract term of the TUSF
administrator. The commission shall determine the duration of the TUSF
administrator's contract. Prior to expiration of the contract term, the
commission may discharge the TUSF administrator of its duties upon 60-days
written notice.
(6) Audit STAP
voucher payments and expenditures. The commission shall audit voucher payments
and other expenditures made under the STAP program.
(d) TUSF administrator. The TUSF
administrator serves at the discretion of the commission.
(1) Technical requirements of the TUSF
administrator. The TUSF administrator shall:
(A) be neutral and impartial, not advocate
specific positions to the commission in proceedings not related to the
administration of the universal service support mechanisms, and not have a
direct financial interest in the universal service support mechanisms
established by the commission;
(B)
possess demonstrated technical capabilities, competence, and resources to
perform the duties of the TUSF administrator as described in this section;
and
(C) be bonded or
bondable.
(2) Duties of
the TUSF administrator. The TUSF administrator will administer the TUSF in
accordance with the rules set forth in this section and in accordance with the
guidelines established by the commission in its contract with the TUSF
administrator. The TUSF administrator's general duties shall include, but not
be limited to:
(A) managing the daily
operations and affairs of the TUSF in an efficient, fair and competitively
neutral manner;
(B) taking steps
necessary to ensure that all eligible telecommunications providers (ETPs) are
in compliance with the relevant sections of this title under which they are
receiving universal service support;
(C) calculating and collecting the proper
assessment amount from every telecommunications provider and verifying that all
telecommunications providers are in compliance with the Public Utility
Regulatory Act §56.022;
(D)
disbursing the proper support amounts, ensuring that only eligible recipients
receive funds, and verifying that all recipients are in compliance with the
section or sections of this title under which they are eligible to receive
support;
(E) taking steps
necessary, including audits, to ensure that all telecommunications providers
that are subject to the TUSF assessment are accurately reporting required
information;
(F) taking steps
necessary, including audits, to ensure that all recipients of TUSF funds are
accurately reporting required information;
(G) submitting periodic summary reports to
the commission regarding the administration of the TUSF in accordance with
specifications established by the commission;
(H) notifying the commission of any
telecommunications providers that are in violation of any of the requirements
of this section, §
26.417 of this title and any
reporting requirements; and
(I)
performing other duties as determined by the commission.
(e) Determination of the amount
needed to fund the TUSF.
(1) Amount needed to
fund the TUSF. The amount needed to fund the TUSF shall be composed of the
following elements.
(A) Costs of TUSF
programs. The TUSF administrator shall compute and include the costs of the
following TUSF programs:
(i) Texas High Cost
Universal Service Plan, §
26.403 of this title;
(ii) Small and Rural ILEC Universal Service
Plan, §
26.404 of this title;
(iii) Implementation of the Public Utility
Regulatory Act §56.025, §
26.406 of this title;
(iv) Additional Financial Assistance, §
26.408 of this title;
(v) Reimbursement for Certain IntraLATA
Service, §
26.410 of this title;
(vi) Lifeline Service Program, §
26.412 of this title;
(vii) Telecommunications Relay Service,
§
26.414 of this title;
(viii) Specialized Telecommunications
Assistance Program (STAP), §
26.415 of this title;
and
(ix) Audio Newspaper Assistance
Program, §
26.424 of this title.
(B) Costs of implementation and
administration of the TUSF. The TUSF implementation and administration costs
shall include appropriate costs associated with the implementation and
administration of the TUSF incurred by the commission (including the costs
incurred by the TUSF administrator on behalf of the commission), and any costs
incurred by the Texas Commission for the Deaf and Hard of Hearing caused by its
administration of the Specialized Telecommunications Assistance Program (STAP)
and the Telecommunications Relay Service programs.
(C) Reserve for contingencies. The TUSF
administrator shall establish a reserve for such contingencies as late payments
and uncollectibles in an amount authorized by the commission.
(2) Determination of amount
needed. After the initial determination, the TUSF administrator shall
determine, on a periodic basis, the amount needed to fund the TUSF. The
determined amount shall be approved by the commission.
(f) Assessments for the TUSF.
(1) Providers subject to assessments. The
TUSF assessments shall be payable by all telecommunications providers having
access to the customer base; including but not limited to wireline and wireless
providers of telecommunications services. The following entities are exempt
from paying TUSF assessments on the services that they sell to their guests or
tenants but are not exempt from TUSF pass-through assessments from
telecommunications providers:
(A) a hotel or
motel;
(B) an owner or lessor of an
office or residential building development that contracts and pays for
telecommunications services for resale to guests or tenants; and
(C) a development that contracts and pays for
telecommunications services for resale to guests or tenants.
(2) Definitions. For the purposes
of this section the following definitions apply:
(A) Actual intrastate telecommunications
services receipts--Telecommunications services receipts that are clearly
identifiable as intrastate telecommunications services receipts, as defined in
subparagraph (E) of this paragraph.
(B) FCC--means the Federal Communications
Commission.
(C) Interstate
communications--Has the meaning assigned by
47 U.S.C. §
153 (22).
(D) International communications--Has the
meaning assigned by 47
U.S.C. §
153 (17) (foreign
communications).
(E) Intrastate
telecommunications services receipts--Taxable telecommunications services
receipts as reported by the telecommunications provider under Chapter 151 of
the Texas Tax Code, with the exception of:
(i) Pay telephone service revenues received
by providers of pay telephone services, which are exempt from the TUSF
assessment pursuant to PURA §56.022(c)(2);
(ii) Telecommunications services receipts
from interstate communications and international communications included in
telecommunications services receipts reported under Chapter 151 of the Texas
Tax Code; and
(iii) TUSF surcharges
collected from customers.
(F) Receipts--Has the meaning assigned by
Texas Tax Code §
151.007.
(G) Safe-Harbor intrastate telecommunications
services receipts--Means intrastate telecommunications receipts calculated by
applying a commission-ordered percentage to telecommunications services
receipts that are not clearly identifiable as intrastate.
(H) Telecommunications provider--Has the
meaning assigned by PURA §51.002(10).
(I) Telecommunications services--Has the
meaning assigned by Texas Tax Code §
151.0103.
(3) Basis for assessments.
Assessments will be based upon the following:
(A) Actuals. Effective December 1, 2017,
assessments shall be made to each telecommunications provider based upon its
monthly taxable actual intrastate telecommunications services receipts reported
by that telecommunications provider under Chapter 151 of the Texas Tax
Code.
(B) Commission-Ordered Safe
Harbor. A telecommunications provider that is unable to calculate actual
intrastate telecommunications services receipts by January 1, 2007, and does
not meet the de minimus exemption in subsection (c) of this section, may
request, and the commission may grant for good cause, the modification or
waiver of the requirement set forth in subsection (a) of this section, to allow
the telecommunications provider to calculate all or some of its intrastate
taxable telecommunications receipts using the relevant commission-ordered
safe-harbor percentage. Requests for waiver will be subject to administrative
review unless the presiding officer determines at any point during the review
that the request should be docketed. The presiding officer will issue an order
approving, denying or docketing the request for waiver within 180 calendar days
of the filing date of the waiver request.
(i)
A request for waiver must contain, at a minimum:
(I) an affidavit from a corporate officer of
the telecommunications provider attesting to the fact that the
telecommunications provider is unable to calculate all or some of its actual
intrastate telecommunications services receipts and, if applicable, that the
telecommunications provider is using a safe harbor authorized by the
FCC;
(II) a date by which the
telecommunications provider will be able to calculate actual intrastate
telecommunications services receipts;
(III) an explanation detailing why the
telecommunications provider is unable to calculate actual intrastate
telecommunications services receipts and why a waiver is necessary;
(IV) a detailed description of the
safe-harbor percentage that is requested and how it will be applied;
(V) if applicable, a compliance tariff filing
pursuant to paragraph (6)(C) of this subsection; and
(IV) any other information that the
telecommunications provider believes will aid in rendering of a
decision.
(ii) If a telecommunications provider
requests a permanent waiver from reporting its TUSF assessment based on actual
intrastate telecommunications services receipts, then the telecommunications
provider must file a waiver containing all elements in clause (i) of this
subparagraph, as well as an explanation detailing why a permanent waiver is
required, and why it is in the public interest.
(iii) A telecommunications provider that has
been granted a waiver shall apply, for the duration of that waiver, a
safe-harbor percentage to its telecommunications services receipts using one of
the methods described in subclauses (I) or (II) of this clause as follows:
(I) If a telecommunications provider is
reporting interstate communications and international communications revenues
for assessment for the federal universal service fund based on an FCC
safe-harbor percentage, then the telecommunications provider shall apply the
inverse of that percentage to its telecommunications services receipts as
reported under Chapter 151 of the Texas Tax Code. The resulting total will be
the telecommunications provider's safe-harbor-calculated total intrastate
telecommunications services receipts to which the TUSF assessment rate shall
apply pursuant to paragraph (4) of this subsection.
(II) If a telecommunications provider is not
using an FCC safe-harbor percentage, the telecommunications provider shall
apply a commission-ordered safe harbor percentage to its telecommunications
services receipts under Chapter 151 of the Texas Tax Code as described in its
waiver request approved by the commission. The resulting total will be the
telecommunications provider's safe-harbor-calculated intrastate
telecommunications services receipts to which the TUSF assessment rate shall
apply pursuant to paragraph (4) of this subsection.
(iv) If a telecommunications provider that
has been granted a waiver seeks to change its safe-harbor assessment
methodology, or seeks an extension of its existing waiver, it must file another
waiver request with the commission.
(v) A telecommunications provider may, at any
time during the duration of its waiver and upon notice to the commission and
the TUSF administrator, change its methodology to assess actual intrastate
telecommunications services receipts. This will terminate any existing
waiver.
(C) De minimus
exemption. A telecommunications provider that is unable to calculate actual
intrastate telecommunications services receipts by January 1, 2007, and whose
TUSF assessment is less than $500 per month using the relevant
commission-ordered safe-harbor percentage, is not required to file a waiver
request pursuant to subparagraph (B) of this paragraph.
(D) Intrastate telecommunications services
receipts received by telecommunications providers from telecommunications
services supplied to pay telephone providers for the provision of pay telephone
services are subject to TUSF assessment.
(4) Assessment. Each telecommunications
provider shall pay its TUSF assessment each month by multiplying the
commission-approved assessment rate by the basis for assessments as determined
pursuant to paragraph (3) of this subsection.
(5) Reporting requirements. Each
telecommunications provider shall report its taxable intrastate
telecommunications services receipts under Chapter 151 of the Tax Code to the
commission or the TUSF administrator. When reporting its intrastate
telecommunications services receipts, each telecommunications provider shall
report its total taxable telecommunications services receipts under Chapter 151
of the Tax Code, and indicate which methodology or methodologies (i.e., actual
and/or commission-ordered safe-harbor percentage) it used to arrive at its
total intrastate telecommunications services receipts.
(6) Recovery of assessments. A
telecommunications provider may recover the amount of its TUSF assessment based
on its intrastate telecommunications services receipts from its retail
customers who are subject to tax under Chapter 151 of the Texas Tax Code,
except for Lifeline and/or Link Up services. For purposes of the recovery of
the TUSF assessment, pay telephone providers are considered retail customers
subject to Chapter 151 of the Texas Tax Code. The commission may order
modifications in a telecommunications provider's method of recovery.
(A) Retail customers' bills. In the event a
telecommunications provider chooses to recover its TUSF assessment through a
surcharge added to its retail customers' bills:
(i) the surcharge must be listed on the
retail customers' bills as "Texas Universal Service"; and
(ii) the surcharge must be assessed as a
percentage of intrastate telecommunications services receipts on every retail
customers' bill, except Lifeline and/or Link Up services.
(B) Commission approval of surcharge
mechanism. An ILEC choosing to recover the TUSF assessment through a surcharge
on its retail customers' bills must file for commission approval of the
surcharge mechanism.
(C) Tariff
and/or price sheet changes. A certificated telecommunications utility choosing
to recover the TUSF assessment through a surcharge on its retail customers'
bills shall file the appropriate changes as necessary to its tariff and/or
price sheet and provide supporting documentation for the method of
recovery.
(D) Recovery period. A
single universal service fund surcharge shall not recover more than one month
of assessments.
(7)
Disputing assessments. Any telecommunications provider may dispute the amount
of its TUSF assessment. The telecommunications provider should endeavor to
first resolve the dispute with the TUSF administrator. If the
telecommunications provider and the TUSF administrator are unable to
satisfactorily resolve their dispute, either party may petition the commission
to resolve the dispute. Pending final resolution of disputed TUSF assessment
rates and/or amounts, the disputing telecommunications provider shall remit all
undisputed amounts to the TUSF administrator by the due date.
(g) Disbursements from the TUSF to
ETPs, ILECs, other entities and agencies.
(1)
ETPs, ILECs, other entities, and agencies.
(A) ETPs. The commission shall determine
whether an ETP qualifies to receive funds from the TUSF. An ETP qualifying for
the following programs is eligible to receive funds from the TUSF:
(i) Texas High Cost Universal Service
Plan;
(ii) Small and Rural ILEC
Universal Service Plan; and/or
(iii) Lifeline Service and Link Up
Service.
(B) ILECs. The
commission shall determine whether an ILEC qualifies to receive support from
the following TUSF programs:
(i)
Implementation of the Public Utility Regulatory Act §56.025;
and/or
(ii) Additional Financial
Assistance program.
(C)
Other entities. The commission shall determine whether other entities qualify
to receive funds from the TUSF. Entities qualifying for the following programs
are eligible to receive funds from the TUSF:
(i) Telecommunications Relay
Service;
(ii) Specialized
Telecommunications Assistance Program; and/or
(iii) Audio Newspaper Assistance
Program.
(D) Agencies.
The commission, the Texas Department of Aging and Disability Services, the
Texas Department of Assistive and Rehabilitative Services, and the TUSF
administrator are eligible for reimbursement of the costs directly and
reasonably associated with the implementation of the provisions of PURA
Chapters 56 and 57.
(2)
Reporting requirements.
(A) ETPs. An ETP
shall report to the TUSF administrator as required by the provisions of the
section or sections under which it qualifies to receive funds from the
TUSF.
(B) Other entities. A
qualifying entity shall report to the TUSF administrator as required by the
provisions of the section or sections under which it qualifies to receive funds
from the TUSF.
(C) Agencies. A
qualifying agency shall report its qualifying expenses to the TUSF
administrator each month.
(3) Disbursements.
(A) The TUSF administrator shall verify that
the appropriate information has been provided by each ETP, local exchange
company (LEC), other entities or agencies and shall issue disbursements to
ETPs, LECs, other entities and agencies within 45 days of the due date of their
reports except as otherwise provided.
(B) Prior to August 31, 2007, if an electing
LEC, as defined in §
26.5 of this title (relating to
Definitions), reduces rates in conjunction with receiving disbursements from
the TUSF, the commission may not reduce the amount of those disbursements below
the initial level of disbursements upon implementation of the TUSF, except
that:
(i) if a local end user customer of the
electing company switches to another local service provider that serves the
customer entirely through the use of its own facilities and not partially or
solely through the use of unbundled network elements, the electing LEC's
disbursement may be reduced by the amount attributable to that customer under
PURA §56.021(1); or
(ii) if a
local end user customer of the electing company switches to another local
service provider, and the new local service provider serves the customer
partially or solely through the use of unbundled network elements provided by
the electing LEC, the electing LEC's disbursement attributable to that customer
under PURA §56.021(1) may be reduced according to the commission
established equitable allocation formula for the disbursement as described in
§
26.403(e)(3)(C)
of this title (relating to Texas High Cost Universal Service Plan
(THCUSP)).
(C) The
commission may adjust disbursements from the universal service fund to
companies using technologies other than traditional wireline or landline
technologies to meet provider of last resort obligations.
(h) True-up. The assessment amount
determined pursuant to subsections (e) and (f) of this section shall be subject
to true-up as determined by the TUSF administrator and approved by the
commission. True-ups shall be limited to a three year period for
under-reporting and a one year period for over-reporting.
(i) Sale or transfer of exchanges.
(1) An ETP that acquires exchanges from an
unaffiliated small or rural ILEC receiving support for those exchanges pursuant
to §
26.404 of this title, shall
receive the per-line support amount for which those exchanges were eligible
prior to the sale or transfer.
(2)
An ETP that acquires exchanges from an unaffiliated ETP receiving support for
those exchanges pursuant to §
26.403 of this title, shall
receive the per-line support amount for which those exchanges were eligible
prior to the transfer of the exchanges.
(j) Proprietary information. The commission
and the TUSF administrator are subject to the Texas Open Records Act, Texas
Government Code, Chapter 552. Information received by the TUSF administrator
from the individual telecommunications providers shall be treated as
proprietary only under the following circumstances:
(1) An individual telecommunications provider
who submits information to the TUSF administrator shall be responsible for
designating it as proprietary at the time of submission. Information considered
to be confidential by law, either constitutional, statutory, or by judicial
decision, may be properly designated as proprietary.
(2) An individual telecommunications provider
who submits information designated as proprietary shall stamp on the face of
such information "PROPRIETARY PURSUANT TO PUC SUBST. R.
§26.420(j)".
(3) The TUSF
administrator may disclose all information from an individual
telecommunications provider to the telecommunications provider who submitted it
or to the commission and its designated representatives without notifying the
telecommunications provider.
(4)
All third party requests for information shall be directed through the
commission. If the commission or the TUSF administrator receives a third party
request for information that a telecommunications provider has designated
proprietary, the commission shall notify the telecommunications provider. If
the telecommunications provider does not voluntarily waive the proprietary
designation, the commission shall submit the request and the responsive
information to the Office of the Attorney General for an opinion regarding
disclosure pursuant to the Texas Open Records Act, Texas Government Code,
Chapter 552, Subchapter G.
Notes
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