US Laws, Codes, Statutes & Cases

Chapter 759 — Telecommunications Utility Regulation

 

2005 EDITION

 

 

TELECOMMUNICATIONS UTILITY REGULATION

 

UTILITY REGULATION

 

GENERAL PROVISIONS

 

759.005     Definitions

 

759.015     Legislative findings on universal telecommunications service

 

759.016     Legislative findings on broadband services

 

759.020     Certificate of authority required; application; procedure; criteria; intrastate toll service level

 

759.025     Certificates of authority for persons, companies and corporations providing services on January 1, 1986

 

759.027     Shared telecommunications service provider; alternative access to local exchange telecommunications services

 

759.035     Duty to furnish adequate and safe service at reasonable rates

 

REGULATION OF TELECOMMUNICATIONS SERVICES

 

759.036     Commission authority

 

759.040     Exemptions for certain unaffiliated utilities with fewer than 50,000 access lines

 

759.045     Special rules for utilities exempted from regulation under ORS 759.040

 

759.050     Competitive zone service regulation

 

759.052     Commission authority to exempt telecommunications services from regulation

 

759.054     Price listing for product or service offered as part of local exchange telecommunications services

 

759.056     Price listing for product or service offered as part of interexchange telecommunications services

 

759.058     Commission action on petition under ORS 759.052, 759.054 or 759.056

 

759.060     Information submitted by local exchange telecommunications utilities; rules exempting disclosure

 

RIGHTS OF WAY

 

759.075     Authority to construct lines and facilities; condemnation power; procedure

 

759.080     Use of property outside limits of municipal corporation; agreement; condemnation upon failure to agree

 

ACCOUNTS AND RECORDS

 

759.120     Form and manner of accounts prescribed by commission

 

759.125     Records and accounts prescribed by commission; others prohibited; exception; commission to furnish blanks for reports

 

759.130     Closing date of accounts; filing balance sheet; audit

 

759.135     Depreciation accounts; undepreciated investment allowed in rates; conditions

 

RATE REGULATION AND PROCEDURES; MEASURING EQUIPMENT

 

759.175     Filing rate schedules and data with commission

 

759.180     Hearing on reasonableness of rates; procedures; exceptions

 

759.182     Rate schedules for service promotions; rules

 

759.185     Suspension of rates pending hearing; time limitation; revenue collected subject to refund; interim rates

 

759.190     Notice of schedule change required

 

759.195     Price listing of services; conditions; maximum rates; essential services; justification by utility of rates for price-listed services

 

759.200     Amortizations included in rates; deferral of certain expenses or revenues; limitation on amounts; prohibited uses

 

759.205     Rates charged required to conform to schedule

 

759.210     Classification of service and rates; considerations

 

759.215     Public access to schedules

 

759.217     Effect of tax credit under ORS 315.511

 

759.218     Revenues and expenses of unregulated activities

 

759.219     Certain taxes allowable as operating expense; charge pro rata to users; condition

 

759.220     Joint rates and classifications; procedure; considerations

 

759.225     Application of ORS 759.220 to unincorporated associations and cooperative corporations

 

759.230     Measured service rate for business customers; restriction

 

759.235     Mandatory measured service rate; prohibition

 

759.240     Measuring quality of service; standards; rules

 

759.245     Examination and testing of measuring appliances

 

759.250     Contracts for special services; procedure for filing and approval; subsequent review and investigation

 

759.255     Prices charged set without regard to return on utility investment; petition; findings; conditions; application of statutes to approved plan

 

759.257     Extended area service: Portland to Scappoose

 

759.259     Extended area service: Portland to Molalla

 

ILLEGAL PRACTICES

 

759.260     Unjust discrimination in rates

 

759.265     Practices not constituting unjust discrimination

 

759.267     Service promotion activities not discrimination

 

759.270     Reducing rates for persons furnishing part of facilities; rental of customer facilities; furnishing meters and appliances

 

759.275     Undue preferences and prejudices

 

759.280     Soliciting or accepting rebates or special advantage

 

759.285     Charging rates based on cost of property not presently providing service

 

759.290     Automatic dialing and announcing device use limited; exceptions

 

ISSUANCE OF SECURITIES

 

759.300     “Stocks” defined

 

759.305     Power to regulate issuance of telecommunications stocks

 

759.310     When issuance of securities void

 

759.315     Purposes for which securities may be issued; order required; exceptions

 

759.320     Application of ORS 759.315

 

759.325     Application of ORS 759.375

 

759.330     Hearings and supplemental orders for securities issuance; joint approval for issuance by utility operating in another state

 

759.335     State not obligated by approval of issuance

 

759.340     Conditional approval of issuance

 

759.345     Use of proceeds from issuance restricted; accounting for use of proceeds

 

759.350     Limitation on authority of utility to guarantee debt of another

 

759.355     Issuance or use of proceeds contrary to commission order prohibited

 

759.360     Prohibited acts regarding issuance of securities

 

TRANSACTIONS OF UTILITIES

 

759.375     Approval required prior to sale, mortgage or disposal of operative utility property

 

759.380     Purchase of stock or property of another utility restricted

 

759.385     Contracts regarding use of utility property; filing with commission; investigation

 

759.390     Contracts with affiliated interests restricted; procedure; use in rate proceedings

 

759.393     Applicability of ORS 759.385 and 759.390

 

PRICE CAP REGULATION

 

(Generally)

 

759.400     Definitions

 

759.405     Telecommunications carrier may elect regulation under ORS 759.405 and 759.410; conditions; Telecommunications Infrastructure Account; remedy for failure of utility to comply with conditions

 

759.410     Intent of ORS 759.410; establishing maximum and minimum price for telecommunications services; packaging services; notice of price change, new service; enforcement

 

759.415     Order in rate proceeding filed prior to January 1, 1999, to establish maximum rate for affected telecommunications services; dismissal of rate proceeding filed after January 1, 1999

 

759.420     Application of ORS 759.400 to 759.455 to wholesale transactions regulated under federal law

 

(Universal Service Fund)

 

759.425     Universal service fund; commission to establish price for basic telephone service; universal service surcharge; application to cellular services

 

(Public Purpose Funding)

 

759.430     Approval of projects funded by carrier’s Telecommunications Infrastructure Account; Connecting Oregon Communities Advisory Board

 

759.435     Assessment of telecommunications infrastructure and community needs; contents; report

 

759.440     Additional funding for evaluating project plans

 

759.445     Connecting Oregon Communities Fund; School Technology Account; Public Access Account

 

SERVICE QUALITY STANDARDS AND PROHIBITED ACTS

 

759.450     Minimum service quality standards; rules; standards to relate to customer impact indices; factors; standards for wholesale services; improvement plan; penalties; exception

 

759.455     Prohibited acts; commission action on allegation of violation; penalties; judicial review

 

ALLOCATION OF TERRITORIES

 

(Generally)

 

759.500     Definitions for ORS 759.500 to 759.570

 

759.506     Purpose of allocated territory laws

 

759.535     Application to serve unserved territory; hearing; notice

 

759.560     Assignment or transfer of allocated territory

 

759.565     Injunction against unauthorized provision of service

 

759.570     Application of law to local government

 

(Unserved Territory)

 

759.580     Power of commission to require service to unserved territory

 

759.585     Definitions for ORS 759.585 to 759.595

 

759.590     Application for service by unserved person; rules

 

759.595     Criteria for granting application for service; effect on other territorial allocation

 

ATTACHMENT REGULATION

 

759.650     Definitions for ORS 759.650 to 759.675

 

759.655     Authority of commission to regulate attachments

 

759.660     Fixing charges or rates; criteria; costs of hearing

 

759.665     Considerations in determining just and reasonable rate

 

759.670     Presumption of reasonableness of rates set by agreement

 

759.675     Regulatory procedure

 

OPERATOR SERVICE PROVIDERS

 

759.690     Operator service provider duties to service users; rules

 

RESIDENTIAL SERVICE PROTECTION

 

                  (Temporary provisions relating to residential telecommunication service protection are compiled as notes following ORS 759.690)

 

DEVICES FOR HEARING AND SPEECH IMPAIRED

 

                  (Temporary provisions relating to telecommunication devices for hearing and speech impaired individuals are compiled as notes following ORS 759.690)

 

INFORMATION SERVICE PROVIDERS

 

759.700     Definitions for ORS 759.700 to 759.720

 

759.705     Program message preamble required; information to be included

 

759.710     Pay-per-call information; disclosure

 

759.715     Information service blocking; suspension or termination of telephone service for nonpayment of information service charges prohibited

 

759.720     Action against information provider for failure to comply with law; remedies; customers not liable for charges

 

UNAUTHORIZED CHANGES IN TELECOMMUNICATIONS CARRIERS

 

759.730     Unauthorized changes in telecommunications carriers (“slamming”); rules

 

DAMAGES

 

759.900     Utility liable for damages caused by law violation; effect on other remedies; personal injury or property damaged excepted

 

OREGON TELECOMMUNICATIONS COORDINATING COUNCIL

 

                  (Temporary provisions relating to Oregon Telecommunications Coordinating Council are compiled as notes following ORS 759.900)

 

PENALTIES

 

759.990     Penalties

 

GENERAL PROVISIONS

 

      Note: Sections 1 and 2, chapter 742, Oregon Laws 2005, provide:

      Sec. 1. (1) There is created the Task Force on Telecommunications Law Revision, consisting of 10 members appointed as follows:

      (a) The Governor shall appoint six members.

      (b) The President of the Senate shall appoint two members from among members of the Senate.

      (c) The Speaker of the House of Representatives shall appoint two members from among members of the House of Representatives.

      (2) The task force shall review ORS chapter 759 and other laws governing telecommunications for the purpose of:

      (a) Identifying and correcting inconsistent terminology;

      (b) Revising the statutory provisions to reflect changing technology; and

      (c) Making Oregon laws on telecommunications consistent with the requirements of federal law.

      (3) A majority of the members of the task force constitutes a quorum for the transaction of business.

      (4) Official action by the task force requires the approval of a majority of the members of the task force.

      (5) The task force shall elect one of its members to serve as chairperson.

      (6) If there is a vacancy for any cause, the appointing authority shall make an appointment to become immediately effective.

      (7) The task force shall meet at times and places specified by the call of the chairperson or of a majority of the members of the task force.

      (8) The task force may adopt rules necessary for the operation of the task force.

      (9) The task force may presession file legislation in the manner provided in ORS 171.130 for interim committees. All legislation recommended by official action of the task force must indicate that it is introduced at the request of the task force.

      (10) The task force shall report to the Legislative Assembly in the manner provided in ORS 192.245 at any time within 30 days after its final meeting or at such later time as the President and Speaker may designate.

      (11) The Public Utility Commission shall provide staff necessary to the performance of the task force’s functions.

      (12) All agencies of state government, as defined in ORS 174.111, are directed to assist the task force in the performance of its duties and, to the extent permitted by laws relating to confidentiality, to furnish such information and advice as the members of the task force consider necessary to perform their duties.

      (13) Members of the task force who are legislators shall be paid compensation and expense reimbursement as provided in ORS 171.072 from funds appropriated to the Legislative Assembly. Members of the task force who are not legislators shall be paid compensation and expenses as provided in ORS 292.495 from funds appropriated to the Public Utility Commission for that purpose, or from funds made available for that purpose by an increase in the expenditure limitation of the Public Utility Commission. [2005 c.742 §1]

      Sec. 2. Section 1 of this 2005 Act is repealed on the date of the convening of the next regular biennial legislative session [January 8, 2007]. [2005 c.742 §2]

 

      759.005 Definitions. (1)(a) As used in this chapter, except as provided in paragraph (b) of this subsection, “telecommunications utility” means:

      (A) Any corporation, company, individual, association of individuals, or its lessees, trustees or receivers, that owns, operates, manages or controls all or a part of any plant or equipment in this state for the provision of telecommunications service, directly or indirectly to or for the public, whether or not the plant or equipment, or any portion of the plant or equipment, is wholly within any town or city.

      (B) Any corporation, company, individual or association of individuals that is party to an oral or written agreement for the payment by a telecommunications utility, for service, managerial construction, engineering or financing fees, and having an affiliated interest with the telecommunications utility.

      (b) As used in this chapter, “telecommunications utility” does not include:

      (A) Any plant owned or operated by a municipality.

      (B) Any corporation not providing intrastate telecommunications service to the public in this state, whether or not the corporation has an office in this state or has an affiliated interest with a telecommunications utility as defined in this chapter.

      (C) Any person acting only as a competitive telecommunications provider.

      (D) Any corporation, company, individual or association of individuals providing only telephone customer premises equipment to the public.

      (2) As used in this chapter:

      (a) “Competitive telecommunications provider” means a telecommunications services provider that has been classified as a competitive telecommunications provider by the Public Utility Commission pursuant to ORS 759.020.

      (b) “Intrastate telecommunications service” means any telecommunications service in which the information transmitted originates and terminates within the boundaries of the State of Oregon.

      (c) “Local exchange telecommunications service” means telecommunications service provided within the boundaries of exchange maps filed with and approved by the commission.

      (d) “Private telecommunications network” means a system for the provision of telecommunications service or any portion of telecommunications service, including the construction, maintenance or operation of the system, by a person for the exclusive use of that person and not for resale, directly or indirectly.

      (e) “Radio common carrier” means any corporation, company, association, joint stock association, partnership and person, their lessees, trustees or receivers and any town making available facilities to provide radio communications service, radio paging or cellular communications service for hire.

      (f) “Shared telecommunications service” means the provision of telecommunications and information management services and equipment to a user group located in discrete premises in building complexes, campuses or high-rise buildings, by a commercial shared services provider or by a users’ association, through privately owned customer premises equipment and associated data processing and information management services and includes the provision of connections to local exchange telecommunications service.

      (g) “Telecommunications service” means two-way switched access and transport of voice communications but does not include:

      (A) Services provided by radio common carrier.

      (B) One-way transmission of television signals.

      (C) Surveying.

      (D) Private telecommunications networks.

      (E) Communications of the customer that take place on the customer side of on-premises equipment.

      (h) “Toll” means switched telecommunications between exchanges carried on the public switched network. “Toll” does not include services that are an option to flat rate local or extended area service, even though the options may include charges on a per-unit basis. [1987 c.447 §1; 1989 c.5 §15; 1991 c.326 §2; 2005 c.232 §1]

 

      759.010 [1987 c.447 §2; 1989 c.17 §2; repealed by 2005 c.232 §2]

 

      759.015 Legislative findings on universal telecommunications service. The Legislative Assembly finds and declares that it is the goal of the State of Oregon to secure and maintain high-quality universal telecommunications service at just and reasonable rates for all classes of customers and to encourage innovation within the industry by a balanced program of regulation and competition. The Public Utility Commission shall administer the statutes with respect to telecommunications rates and services in accordance with this policy. [Formerly 757.810]

 

      759.016 Legislative findings on broadband services. The Legislative Assembly finds and declares:

      (1) That it is the goal of this state to promote access to broadband services for all Oregonians in order to improve the economy in Oregon, improve the quality of life in Oregon communities and reduce the economic gap between Oregon communities that have access to broadband digital applications and services and those that do not, for both present and future generations; and

      (2) That the goal set forth in subsection (1) of this section may be achieved by:

      (a) Expanding broadband and other telecommunications services;

      (b) Creating incentives to establish and expand broadband and other telecommunications services;

      (c) Undertaking telecommunications planning at the local, regional and state levels that includes participants from both the public and the private sectors;

      (d) Removing barriers to the full deployment of broadband digital applications and services and providing incentives for the removal of those barriers; and

      (e) Removing barriers to public-private partnerships in areas where the private sector cannot justify investments. [2003 c.775 §1]

 

      Note: 759.016 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 759 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      759.020 Certificate of authority required; application; procedure; criteria; intrastate toll service level. (1) No person, corporation, company, association of individuals or their lessees, trustees, or receivers shall provide intrastate telecommunications service on a for-hire basis without a certificate of authority issued by the Public Utility Commission under this section.

      (2) Applications for certificates of authority shall be in a form prescribed by the commission and shall describe the telecommunications services the applicant proposes to provide. Notice of all applications shall, within 30 days of filing, be served by the commission upon all persons holding authority to provide telecommunications service issued under this section or providing local exchange telecommunications service.

      (3) Except as provided in ORS 759.050, no certificate shall authorize any person to provide local exchange telecommunications service within the local exchange telecommunications service area of a telecommunications utility unless such utility consents, is unable to provide the service, or fails to protest an application. This subsection shall not apply to any application for a certificate by a provider of shared telecommunications services.

      (4) After notice, a hearing need not be held prior to issuance of a certificate of authority except upon the commission’s own motion or unless the application is to authorize a person to provide local exchange telecommunications service in the local exchange telecommunications service area of a telecommunications utility and such utility protests. After hearing, the commission shall issue the certificate only upon a showing that the proposed service is required by the public interest.

      (5) The commission may classify a successful applicant for a certificate as a telecommunications utility or as a competitive telecommunications services provider. If the commission finds that a successful applicant for a certificate has demonstrated that services it offers are subject to competition or that its customers or those proposed to become customers have reasonably available alternatives, the commission shall classify the applicant as a competitive telecommunications services provider. The commission shall conduct the initial classification and any subsequent review of the classification in accordance with such procedures as the commission may establish by rule, after hearings. The commission may attach reasonable conditions to such classification and may amend or revoke any such order as provided in ORS 756.568. For purposes of this section, in determining whether telecommunications services are subject to competition or whether there are reasonably available alternatives, the commission shall consider:

      (a) The extent to which services are available from alternative providers in the relevant market.

      (b) The extent to which the services of alternative providers are functionally equivalent or substitutable at comparable rates, terms and conditions.

      (c) Existing economic or regulatory barriers to entry.

      (d) Any other factors deemed relevant by the commission.

      (6) Any provider of intrastate toll service must inform customers of the service level furnished by that provider, according to rules of the commission. The commission, by rule, shall determine the level of intrastate toll service that is standard. Any provider of intrastate toll service must identify the service level the provider plans to furnish in an annual report to the commission. The commission shall revoke the certification of any provider that does not consistently furnish the service level identified in the provider’s annual report. [Formerly 757.815; 1991 c.326 §1; 1993 c.423 §1]

 

      759.025 Certificates of authority for persons, companies and corporations providing services on January 1, 1986. (1) Notwithstanding ORS 759.020, the Public Utility Commission shall issue to any person, company or corporation providing intrastate telecommunications services that are subject to regulation by the commission on January 1, 1986, a certificate of authority to continue to provide those services on and after January 1, 1986.

      (2) Notwithstanding any other provision of law, the commission shall issue to any cooperative corporation, or unincorporated association providing intrastate telecommunications service on January 1, 1986, a certificate of authority to continue to provide those services on and after January 1, 1986. Such actions shall not subject such cooperative corporations or association to the commission’s general powers of regulation. [Formerly 757.820]

 

      759.027 Shared telecommunications service provider; alternative access to local exchange telecommunications services. If the Public Utility Commission finds upon notice and investigation that customers of shared telecommunications services have no alternative access to local exchange telecommunications services, the commission may require the shared telecommunications service provider to make alternative facilities or conduit space available on reasonable terms and conditions and at reasonable prices. [2005 c.232 §5]

 

      759.030 [Formerly 757.825; 1991 c.301 §1; repealed by 2005 c.232 §6]

 

      759.035 Duty to furnish adequate and safe service at reasonable rates. Every telecommunications utility is required to furnish adequate and safe service, equipment and facilities, and the charges made by any public utility for any service rendered or to be rendered in connection therewith shall be reasonable and just, and every unjust or unreasonable charge for such service is prohibited. [1987 c.447 §3]

 

REGULATION OF TELECOMMUNICATIONS SERVICES

 

      759.036 Commission authority. Except as otherwise provided by law, the Public Utility Commission shall have authority to determine the manner and extent of the regulation of telecommunications services within the State of Oregon. [2005 c.232 §7]

 

      Note: Sections 2 and 3, chapter 589, Oregon Laws 1999, provide:

      Sec. 2. In order to ensure consistency with the federal Telecommunications Act of 1996 (P.L. 104-104), to enhance fair competition and to promote deregulation of the telecommunications industry, the Public Utility Commission biennially shall submit a report to the Governor and the Legislative Assembly or the Emergency Board on or before January 31 each odd-numbered year. The report shall include information on:

      (1) The status of competition in the telecommunications industry;

      (2) Significant changes that have occurred in the telecommunications industry during the preceding 12 months;

      (3) Statutes that inhibit or discourage competition in and deregulation of the telecommunications industry;

      (4) Specific actions taken by the commission to reduce the regulatory burden imposed on the telecommunications industry, including telecommunications utilities and competitive telecommunications providers;

      (5) Specific actions taken by the commission to maximize the opportunities for telecommunications utilities and competitive telecommunications providers to achieve pricing flexibility, including rate rebalancing, exemption from regulation and streamlined regulations;

      (6) Specific actions taken by the commission to:

      (a) Minimize implicit sources of support; and

      (b) Maximize explicit sources of support that are specific, sufficient, competitively neutral and technologically neutral and that support telecommunications services for customers of telecommunications providers in high-cost locations;

      (7) Statutes that should be enacted, amended or repealed to enhance and respond to the competitive telecommunications environment or promote the orderly deregulation of the telecommunications industry;

      (8) The number of public bodies, as defined by ORS 174.109, providing basic telecommunications infrastructure so that private entities may use that infrastructure to provide advanced information and communications services; and

      (9) The availability of broadband services, the rates charged for broadband services, the demand for broadband services and the usage of broadband services. The commission may not impose reporting requirements on telecommunications utilities for the purpose of implementing this subsection. [1999 c.589 §2; 2003 c.775 §2; 2005 c.293 §3]

      Sec. 3. Sections 1 and 2, chapter 589, Oregon Laws 1999, are repealed June 30, 2008. [1999 c.589 §3; 2005 c.293 §1]

 

      759.040 Exemptions for certain unaffiliated utilities with fewer than 50,000 access lines. (1) Subject to subsection (6) of this section, ORS 759.180 to 759.190 do not apply to new or revised tariff schedules filed with the Public Utility Commission by telecommunications utilities or affiliated groups of telecommunications utilities serving fewer than 50,000 access lines in Oregon and not affiliated or under common control with any other kind of public utility providing service in Oregon.

      (2) Subject to subsection (6) of this section, ORS 759.375 to 759.393 do not apply to telecommunications utilities or affiliated groups of telecommunications utilities serving fewer than 50,000 access lines in Oregon and not affiliated or under common control with any other kind of public utility providing service in Oregon.

      (3) Subject to subsection (6) of this section, ORS 759.300 to 759.360 do not apply to telecommunications utilities or affiliated groups of telecommunications utilities serving fewer than 50,000 access lines in Oregon and not affiliated or under common control with any other kind of public utility providing service in Oregon.

      (4) Upon petition by any telecommunications utility serving fewer than 50,000 access lines in Oregon and affiliated or under common control with another public utility providing service in Oregon, and a finding that such action is consistent with the public interest, the commission by order may exempt such telecommunications utility from:

      (a) ORS 759.180 to 759.190.

      (b) ORS 759.375 to 759.393.

      (c) ORS 759.300 to 759.360.

      (5) Upon petition by any telecommunications utility serving fewer than 50,000 access lines in Oregon, and finding that such action is consistent with the public interest, the commission by order may exempt such telecommunications utility from ORS 759.175 and 759.205 to 759.215.

      (6) Upon petition by the telecommunications utility or upon petition by 10 percent of the then current access line subscribers, or 500 subscribers, whichever is the lesser, of any telecommunications utility:

      (a) Filed with the commission not less than 10 days prior to the proposed effective date of new or revised tariff schedules, the commission may impose all or part of the procedures of ORS 759.180 to 759.190 to any of the schedules of a telecommunications utility exempted from ORS 759.180 to 759.190 pursuant to this section.

      (b) After notice and hearing and a finding that the action is required by the public interest, the commission may revoke any exemption granted pursuant to this section or impose reasonable conditions upon the continued exercise of the exemption.

      (7) Any telecommunications utility for which an exemption from the application of ORS 759.180 to 759.190 is provided pursuant to this section shall notify its affected customers of any price increase for intrastate telecommunications services at least 45 days prior to the proposed effective date of the increase.

      (8) Any telecommunications utility for which an exemption from the application of any statute is provided pursuant to this section shall file with the commission an annual report that includes copies of the income statement and balance sheet the telecommunications utility files with the Federal Communications Commission. Each telecommunications utility described in this subsection shall notify customers that the income statement and balance sheet are on file with the commission. [Formerly 757.870; 1999 c.451 §1; 2005 c.232 §12]

 

      759.045 Special rules for utilities exempted from regulation under ORS 759.040. The Public Utility Commission shall adopt specific rules to apply to telecommunications utilities which are exempted from certain regulation under ORS 759.040. An objective of these rules shall be to minimize the regulatory burden on these utilities to the extent this objective is feasible and consistent with the public interest. These rules shall not pertain to the statutes from which these utilities are exempted under ORS 759.040. [1991 c.658 §2]

 

      759.050 Competitive zone service regulation. (1) As used in this section:

      (a) “Competitive zone” means a telecommunications service area within all or part of a local exchange, described both by service and territory, that has been designated a competitive zone by the Public Utility Commission under subsection (2) or (4) of this section.

      (b) “Competitive zone service” means a local exchange telecommunications service that the commission has authorized to be provided within a competitive zone.

      (c) “Essential function” means a functional component of a competitive zone service necessary to the provision of the service by a telecommunications provider for which there is no adequate alternative in terms of quality, quantity and price to the incumbent telecommunications utility.

      (d) “Telecommunications utility” and “competitive provider” mean those entities that are classified as such by the commission under ORS 759.020. “Telecommunications provider” includes both telecommunications utilities and competitive providers.

      (2)(a) Notwithstanding the provisions of ORS 759.020 (3), the commission may certify one or more persons, including another telecommunications utility, to provide local exchange telecommunications service within the local exchange telecommunications service area of a certificated telecommunications utility if the commission determines that the authorization would be in the public interest. For the purpose of determining whether the authorization would be in the public interest, the commission shall consider:

      (A) The effect on rates for local exchange telecommunications service customers both within and outside the competitive zone.

      (B) The effect on competition in the local exchange telecommunications service area.

      (C) The effect on access by customers to high quality, innovative telecommunications service in the local exchange telecommunications service area.

      (D) Any other facts the commission considers relevant.

      (b) Upon certification of a telecommunications provider under paragraph (a) of this subsection, the commission shall establish a competitive zone defined by the services to be provided by the telecommunications provider and the geographic area to be served by the telecommunications provider. Price and service competition within the meaning of ORS 759.052 may not be deemed to exist by virtue of the establishment of a competitive zone.

      (c) At the time of certification of a telecommunications provider, or thereafter, the commission may impose reasonable conditions upon the authority of the telecommunications provider to provide competitive zone service within the competitive zone. Reasonable conditions include, but are not limited to, conditions:

      (A) Designed to promote fair competition, such as interconnection; and

      (B) Requiring contributions of the type required of a telecommunications utility on account of the provision of local exchange service, including those to the Residential Service Protection Fund or the Telecommunication Devices Access Program.

      (3) Upon demand, a competitive provider of competitive zone services shall make available to the commission any information relating to competitive zone services that the commission requests. Information provided to the commission by a competitive provider under this subsection shall be confidential and may not be disclosed by the commission, except for regulatory purposes in the context of a proceeding before the commission.

      (4) Upon application by a telecommunications utility and a showing of competition within its local exchange, whether or not from certificated providers, the commission may designate all or part of the local exchange a competitive zone.

      (5)(a) Except with respect to telecommunications utilities that are exempt from the provisions of ORS 759.180 to 759.190, unless the commission determines that it is not in the public interest at the time a competitive zone is created, upon designation of a competitive zone, price changes, service variations and modifications of competitive zone services offered by a telecommunications utility in the zone are not subject to ORS 759.180 to 759.190 and, at the telecommunication utility’s discretion, may be made effective upon filing with the commission.

      (b) The price and terms of service offered by a telecommunications utility for a competitive zone service within a competitive zone may differ from that outside of the zone. However, the price for a competitive zone service within the zone may not be lower than the total service long run incremental cost, for nonessential functions, of providing the service within the zone and the charges for essential functions used in providing the service, but the commission may establish rates for residential local exchange telecommunications service at any level necessary to achieve the commission’s universal service objectives. Within the zone, the price of a competitive zone service, or any essential function used in providing the competitive zone service, may not be higher than those prices in effect when the competitive zone was established, unless authorized by the commission.

      (c) The commission may revoke the exemption of a telecommunications utility from ORS 759.180 to 759.190 if the commission finds that the utility has violated statutes, rules or conditions of the commission applicable to competitive zone services or that there has been a substantial change in the circumstances that prevailed at the time the competitive zone was first established.

      (d) On the motion of a telecommunications provider or on its own motion, the commission may order a telecommunications utility to disaggregate and offer essential functions of the telecommunications utility’s local exchange network.

      (6) A decision of the commission, with respect to the terms and conditions under which competitive zone services may be offered within a competitive zone by a telecommunications utility, to authorize a competitor to provide service within the local exchange service area of a telecommunications utility or to otherwise designate a competitive zone shall be subject to judicial review, but may not be stayed other than by order of the commission, except upon a showing by clear and convincing evidence that failure to stay the decision will result in irreparable harm to the aggrieved party.

      (7) The exclusive remedy of a telecommunications provider aggrieved by the prices, terms of service or practices of another provider with respect to competitive zone services within a competitive zone is to file a complaint with the commission under ORS 756.500. The commission, either upon complaint or its own motion, may permanently suspend a filing made by a provider with respect to a competitive zone service or take such other action as the commission deems appropriate, except an award for damages. A claim for damages arising from a commission decision in favor of the provider on a matter alleged in the complaint shall be brought as a separate action at law.

      (8) Nothing in this section shall serve to shield any telecommunications provider of local exchange telecommunications service from state or federal antitrust laws.

      (9) The commission shall report annually to the Legislative Assembly:

      (a) The number of competitive zones created under ORS 759.020 and 759.050;

      (b) The number of competitive providers authorized under ORS 759.020 and 759.050;

      (c) The number and types of competitive services made available to consumers; and

      (d) Consumer comments on competitive telecommunications services. [1993 c.423 §3; 2005 c.232 §13]

 

      759.052 Commission authority to exempt telecommunications services from regulation. (1)(a) Upon petition by any interested party and following notice and investigation, the Public Utility Commission may exempt in whole or in part from regulation those telecommunications services for which the commission finds that:

      (A) Price or service competition exists;

      (B) Telecommunications services can be demonstrated by the petitioner or the commission to be subject to competition; or

      (C) The public interest no longer requires full regulation of the telecommunications services.

      (b) The commission may attach reasonable conditions to an exemption made under paragraph (a) of this subsection and may amend or revoke any order as provided in ORS 756.568.

      (2) Upon petition by a telecommunications utility, and after notice and hearing, the commission shall exempt a telecommunications service from regulation if the commission finds that price and service competition exists.

      (3) Prior to making the findings required by subsection (1) or (2) of this section, the commission shall consider:

      (a) The extent to which services are available from alternative providers in the relevant market.

      (b) The extent to which the services of alternative providers are functionally equivalent or substitutable at comparable rates and under comparable terms and conditions.

      (c) Existing economic or regulatory barriers to entry.

      (d) Any other factors deemed relevant by the commission.

      (4) A service that is deregulated under subsection (2) of this section may be reregulated, after notice and hearing, if the commission determines an essential finding on which the deregulation was based no longer prevails, and reregulation is necessary to protect the public interest. [2005 c.232 §8]

 

      759.054 Price listing for product or service offered as part of local exchange telecommunications services. (1) If the Public Utility Commission determines that a product or service offered by a telecommunications utility as part of local exchange telecommunications services can be demonstrated by the utility to be subject to competition, or that a product or service is not an essential product or service, the commission may authorize the utility to file a price list with the commission.

      (2) The price list shall contain the description, terms, conditions and prices of the service or product described in subsection (1) of this section. No other schedule for price listed services need be filed with the commission. The price list or any revision of the price list is not subject to the provisions of ORS 759.180 to 759.190 and shall become effective immediately upon filing with the commission unless a later date is specified.

      (3) In determining whether a product or service is subject to competition, the commission shall consider:

      (a) The extent to which services are available from alternative providers in the relevant market.

      (b) The extent to which services of alternative providers are functionally equivalent or substitutable at comparable rates or under comparable terms and conditions.

      (c) Existing economic or regulatory barriers to entry.

      (d) Any other factors deemed relevant by the commission. [2005 c.232 §9]

 

      759.056 Price listing for product or service offered as part of interexchange telecommunications services. (1) If the Public Utility Commission determines that a product or service offered by a telecommunications utility as part of interexchange telecommunications services can be demonstrated by the utility to be subject to competition, the commission, under conditions that the commission determines are reasonable, may authorize the utility to file a price list with the commission.

      (2) The price list shall contain the description, terms, conditions and prices of the service or product described in subsection (1) of this section. No other schedule for price listed services need be filed with the commission. The price list or any revision of the price list is not subject to the provisions of ORS 759.180 to 759.190 and shall become effective immediately on filing with the commission unless a later date is specified.

      (3) In determining whether a product or service is subject to competition, the commission shall consider:

      (a) The extent to which services are available from alternative providers in the relevant market.

      (b) The extent to which services of alternative providers are functionally equivalent or substitutable at comparable rates or under comparable terms and conditions.

      (c) Existing economic or regulatory barriers to entry.

      (d) Any other factors deemed relevant by the commission. [2005 c.232 §10]

 

      759.058 Commission action on petition under ORS 759.052, 759.054 or 759.056. Within 60 days of a filing under ORS 759.052, 759.054 or 759.056, the Public Utility Commission shall either determine the appropriateness of the filing or determine that further investigation is necessary. If the commission determines that further investigation is necessary, the commission may suspend operation of the filing for a period not longer than five months from the end of the initial 60-day period. Upon a showing of good cause, any party may request extension of the suspension period for an additional three months. [2005 c.232 §11]

 

      759.060 Information submitted by local exchange telecommunications utilities; rules exempting disclosure. (1) The Public Utility Commission, by rule, shall specify information submitted to the commission by local exchange telecommunications utilities or cooperatives that is exempt from disclosure under ORS 192.410 to 192.505 as provided in this section. In adopting rules, the commission shall consider, among other matters:

      (a) Whether the information is of a type that could potentially be used to the competitive disadvantage of a local exchange telecommunications utility or cooperative.

      (b) Whether the information concerns matters of a nature personal to an employee or stockholder of a local exchange telecommunications utility or an employee or member of a cooperative.

      (c) Whether the information is otherwise publicly available.

      (2) Information specified under subsection (1) of this section is exempt from disclosure unless the public interest requires disclosure in the particular instance.

      (3) Nothing in subsection (1) of this section limits the exemptions granted to a local exchange telecommunications utility or cooperative under ORS 192.410 to 192.505. [1995 c.538 §2]

 

RIGHTS OF WAY

 

      759.075 Authority to construct lines and facilities; condemnation power; procedure. (1) Any telecommunications utility may:

      (a) Enter upon lands within this state for the purpose of examining, locating and surveying the line thereof and also other lands necessary and convenient for the purpose of construction of service facilities, doing no unnecessary damage thereby.

      (b) Condemn such lands not exceeding 100 feet in width for its lines (including poles, towers, wires, supports and necessary equipment therefor) and in addition thereto, other lands necessary and convenient for the purpose of construction of service facilities.

      (2) Notwithstanding subsection (1) of this section, any telecommunications utility may, when necessary or convenient for transmission lines (including poles, towers, wires, supports and necessary equipment therefor) designed for voltages in excess of 330,000 volts, condemn land not to exceed 300 feet in width. In addition, if the lands are covered by trees which are liable to fall and constitute a hazard to its wire or line, such telecommunications utility may condemn such trees for a width not exceeding 100 feet on either side of the condemned land, as may be necessary or convenient for such purpose.

      (3) The proceedings for the condemnation of such lands shall be the same as that provided in ORS chapter 35, provided that any award shall include, but shall not be limited to, damages for destruction of forest growth, premature cutting of timber and diminution in value to remaining timber caused by increased harvesting costs. [1987 c.447 §69]

 

      759.080 Use of property outside limits of municipal corporation; agreement; condemnation upon failure to agree. When it is necessary or convenient, in the location of any poles or lines mentioned in ORS 759.075, to appropriate any part of any public road, street, alley or public grounds not within the corporate limits of any municipal corporation, the county court or board of county commissioners of the county within which such road, street, alley or public grounds is located, may agree with the telecommunications utility upon the extent, terms and conditions upon which the same may be appropriated or used and occupied by such corporation. If such parties are unable to agree, the telecommunications utility may condemn so much thereof as is necessary and convenient in the location and construction of the poles or lines. The provisions of ORS chapter 35 are applicable to condemnations under this section. [1987 c.447 §70]

 

ACCOUNTS AND RECORDS

 

      759.100 [1987 c.447 §5; repealed by 2005 c.232 §14]

 

      759.105 [1989 c.484 §7; renumbered 759.219 in 2005]

 

      759.110 [1987 c.447 §6; repealed by 2005 c.232 §14]

 

      759.115 [1987 c.447 §7; repealed by 2005 c.232 §14]

 

      759.120 Form and manner of accounts prescribed by commission. (1) Every telecommunications utility shall keep and render to the Public Utility Commission, in the manner and form prescribed by the commission, uniform accounts of all business transacted. All forms of accounts which may be prescribed by the commission shall conform as nearly as practicable to similar forms prescribed by federal authority.

      (2) Every telecommunications utility engaged directly or indirectly in any other business than that of a telecommunications utility shall, if required by the commission, keep and render separately to the commission, in like manner and form, the accounts of all such other business, in which case all the provisions of this chapter shall apply with like force and effect to the accounts and records of such other business. [1987 c.447 §8]

 

      759.125 Records and accounts prescribed by commission; others prohibited; exception; commission to furnish blanks for reports. (1) The Public Utility Commission shall prescribe the accounts and records required to be kept and every telecommunications utility is required to keep and render its accounts and records accurately and faithfully in the manner prescribed by the commission and to comply with all directions of the commission relating to such accounts and records.

      (2) No telecommunications utility shall keep any other accounts or records of its telecommunications utility business transacted than those prescribed or approved by the commission except such as may be required by the laws of the United States.

      (3) The commission shall cause to be prepared suitable blanks for reports for carrying out the purposes of this chapter, and shall, when necessary, furnish such blanks for reports to each telecommunications utility. [1987 c.447 §9]

 

      759.130 Closing date of accounts; filing balance sheet; audit. (1) The accounts shall be closed annually on December 31 and a balance sheet of that date promptly taken therefrom. On or before April 1 following, such balance sheet, together with such other information as the Public Utility Commission shall prescribe, verified by an officer of the telecommunications utility, shall be filed with the commission.

      (2) The commission may examine and audit any account. Items shall be allocated to the accounts in the manner prescribed by the commission. [1987 c.447 §10]

 

      759.135 Depreciation accounts; undepreciated investment allowed in rates; conditions. (1) Every telecommunications utility shall carry a proper and adequate depreciation account. The Public Utility Commission shall ascertain and determine the proper and adequate rates of depreciation of the several classes of property of each telecommunications utility. The rates shall be such as will provide the amounts required over and above the expenses of maintenance, to keep such property in a state of efficiency corresponding to the progress of the industry. Each telecommunications utility shall conform its depreciation accounts to the rates so ascertained and determined by the commission. The commission may make changes in such rates of depreciation from time to time as the commission may find to be necessary.

      (2) In the following cases the commission may allow in rates, directly or indirectly, amounts on the utility’s books of account which the commission finds represent undepreciated investment in a utility plant, including that which has been retired from service:

      (a) When the retirement is due to ordinary wear and tear, casualties, acts of God, acts of governmental authority; or

      (b) When the commission finds that the retirement is in the public interest. [1987 c.447 §11; 1989 c.956 §3]

 

RATE REGULATION AND PROCEDURES; MEASURING EQUIPMENT

 

      759.175 Filing rate schedules and data with commission. (1) Every telecommunications utility shall file with the Public Utility Commission, within a time to be fixed by the commission, schedules showing all rates, tolls and charges that the utility has established and that are in force at the time for any service performed by the utility within the state, or for any service in connection with or performed by any utility controlled or operated by the utility. Schedules filed with the commission shall be open to public inspection.

      (2) Every telecommunications utility shall file, with and as part of every schedule filed under subsection (1) of this section, all rules and regulations that in any manner affect the rates charged or to be charged for any service.

      (3) Where a schedule of joint rates or charges is or may be in force between two or more telecommunications utilities, the schedule shall in like manner be printed and filed with the commission. [1987 c.447 §12; 2005 c.232 §15]

 

      759.180 Hearing on reasonableness of rates; procedures; exceptions. (1)(a) Except as provided in ORS 759.195 and 759.410 and ORS 759.052, 759.054 or 759.056, whenever any telecommunications utility files with the Public Utility Commission any rate or schedule of rates stating or establishing a new rate or schedule of rates or increasing an existing rate or schedule of rates, the commission may, either upon written complaint or upon the commission’s own initiative, after reasonable notice, conduct a hearing to determine the propriety and reasonableness of the rate or schedule. The commission shall conduct the hearing upon written complaint filed by the telecommunications utility, its customer or customers, or any other proper party within 60 days of the telecommunications utility’s filing. A hearing need not be held if the particular rate change is the result of an automatic adjustment clause. At the hearing the telecommunications utility shall bear the burden of showing that the rate or schedule of rates proposed to be established or increased or changed is just and reasonable.

      (b) As used in this subsection, “automatic adjustment clause” means a provision of a rate schedule, authorized pursuant to ORS 759.195 (6), that provides for rate increases, decreases or both, without prior hearing, reflecting increases, decreases or both in costs incurred by a telecommunications utility and that is subject to review by the commission at least once every two years.

      (2) The commission and staff may consult at any time with, and provide technical assistance to, telecommunications utilities, their customers, and other interested parties on matters relevant to utility rates and charges. If a hearing is held with respect to a rate change, the decisions of the commission shall be based on the record made at the hearing. [1987 c.447 §13; 1989 c.5 §16; 2005 c.232 §16]

 

      759.182 Rate schedules for service promotions; rules. (1) A telecommunications utility may file rate schedules for service promotions that are offered by the utility for the purpose of:

      (a) Increasing the use of the utility’s services by present or future customers;

      (b) Preventing a decrease in the use of the utility’s services by present or future customers; or

      (c) Inducing any person to use the utility’s services instead of a competing provider’s services.

      (2) The rates charged under a service promotion by a telecommunications utility must be adequate to ensure that:

      (a) The utility will recover an amount equal to the sum of the total service long run incremental cost of providing the nonessential functions of the service and the price that is charged to other telecommunications carriers for the essential functions; and

      (b) The utility will recover the amount under paragraph (a) of this subsection during the average time that customers use the service.

      (3) Notwithstandin