SECOND REGULAR SESSION
[TRULY AGREED TO AND FINALLY PASSED]
SENATE SUBSTITUTE FOR
SENATE COMMITTEE SUBSTITUTE FOR
HOUSE COMMITTEE SUBSTITUTE FOR
94TH GENERAL ASSEMBLY
AN ACT
To repeal sections 319.015, 319.022, 319.024, 319.025, 319.026, 319.030, 319.036, 319.037, 319.041, 319.045, 319.050, 386.020, 392.200, 392.220, 392.230, 392.245, 392.361, 392.370, 392.420, 392.450, 392.451, 392.480, 392.490, 392.510, 392.515, and 392.520, RSMo, and to enact in lieu thereof twenty-nine new sections relating to utility service provision, with an effective date for certain sections.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 319.015, 319.022, 319.024, 319.025, 319.026, 319.030, 319.036, 319.037, 319.041, 319.045, 319.050, 386.020, 392.200, 392.220, 392.230, 392.245, 392.361, 392.370, 392.420, 392.450, 392.451, 392.480, 392.490, 392.510, 392.515, and 392.520, RSMo, are repealed and twenty-nine new sections enacted in lieu thereof, to be known as sections 319.015, 319.016, 319.022, 319.024, 319.025, 319.026, 319.027, 319.029, 319.030, 319.037, 319.041, 319.042, 319.045, 319.050, 386.020, 386.572, 392.200, 392.220, 392.230, 392.245, 392.361, 392.370, 392.420, 392.450, 392.451, 392.480, 392.510, 392.520, and 392.550, to read as follows:
319.015. For the purposes of sections 319.010 to 319.050, the following terms mean:
(1) "Approximate location", a strip of land not wider than the width of the underground facility plus two feet on either side thereof. In situations where reinforced concrete, multiplicity of adjacent facilities or other unusual specified conditions interfere with location attempts, the owner or operator shall designate to the best of his or her ability an approximate location of greater width;
(2) "Design request", a request from any person for facility location information for design purposes only;
(3) "Emergency", either:
(a) A sudden, unexpected occurrence, presenting a clear and imminent danger demanding immediate action to prevent or mitigate loss or damage to life, health, property, or essential public services. "Unexpected occurrence" includes, but is not limited to, thunderstorms, high winds, ice or snow storms, fires, floods, earthquakes, or other soil or geologic movements, riots, accidents, water or wastewater pipe breaks, vandalism, or sabotage; or
(b) Any interruption in the generation, transmission, or distribution of electricity, or any damage to property or facilities that causes or could cause such an interruption;
(4) "Excavation", any operation in which earth, rock or other material in or on the ground is moved, removed or otherwise displaced by means of any tools, equipment or explosives and includes, without limitation, backfilling, grading, trenching, digging, ditching, drilling, well-drilling, augering, boring, tunneling, scraping, cable or pipe plowing, plowing-in, pulling-in, ripping, driving, and demolition of structures, except that, the use of mechanized tools and equipment to break and remove pavement and masonry down only to the depth of such pavement or masonry, the use of [high-velocity] pressurized air to disintegrate and suction to remove earth, rock and other materials, [and] the tilling of soil for agricultural or seeding purposes, and the installation of marking flags and stakes for the location of underground facilities that are not driven shall not be deemed excavation. Backfilling or moving earth on the ground in connection with other excavation operations at the same site shall not be deemed separate instances of excavation;
(5) "Excavator", any person making one or more excavations who is required to make notices of excavation under the requirements of sections 319.010 to 319.050;
[(3)] (6) "Marking", the use of [stakes,] paint, flags, stakes, or other clearly identifiable materials to show the field location of underground facilities, or the area of proposed excavation, in accordance with the color code standard of the American Public Works Association. Unless otherwise provided by the American Public Works Association, the following color scheme shall be used: blue for potable water; purple for reclaimed water, irrigation and slurry lines; green for sewers and drain lines; red for electric, power lines, cables, conduit and lighting cables; orange for communications, including telephone, cable television, alarm or signal lines, cable or conduit; yellow for gas, oil, steam, petroleum or gaseous materials; white for proposed excavation; pink for temporary marking of construction project site features such as centerline and top of slope and toe of slope;
[(4)] (7) "Notification center", a statewide organization operating twenty-four hours a day, three hundred sixty-five days a year on a not-for-profit basis, supported by its participants, or by more than one operator of underground facilities, having as its principal purpose the statewide receipt and dissemination to participating owners and operators of underground facilities of information concerning intended excavation activities in the area where such owners and operators have underground facilities, and open to participation by any and all such owners and operators on a fair and uniform basis. Such notification center shall be governed by a board of directors elected by the membership and composed of representatives from each general membership group, provided that one of the board members shall be a representative of the state highways and transportation commission so long as the commission is a participant in the notification center;
(8) "Notification center participant", an underground facility owner who is a member and participant in the notification center;
[(5)] (9) "Permitted project", a project for which a permit for the work to be performed is required to be issued by a local, state or federal agency and, as a prerequisite to receiving such permit, the applicant is required to [locate all underground facilities in the area of the work and in the vicinity of the excavation and is required to notify each owner of such underground facilities] notify all underground facility owners in the area of the work for purposes of identifying the location of existing underground facilities;
[(6)] (10) "Person", any individual, firm, joint venture, partnership, corporation, association, cooperative, municipality, political subdivision, governmental unit, department or agency and shall include a notification center and any trustee, receiver, assignee or personal representative thereof;
[(7)] (11) "Pipeline facility" includes, without limitation, new and existing pipe, rights-of-way, and any equipment, facility, or building used or intended for use in the transportation of gas or the treatment of gas, or used or intended for use in the transportation of hazardous liquids including petroleum, or petroleum products;
[(8)] (12) "Preengineered project", a project which is approved by an agency or political subdivision of the state and for which the agency or political subdivision responsible for the project, as part of its engineering and contract procedures, holds a meeting prior to the commencement of any construction work on such project and in such meeting all persons determined by the agency or political subdivision to have underground facilities located within the excavation area of the project are invited to attend and given an opportunity to verify or inform any agency or political subdivision of the location of their underground facilities, if any, within the excavation area and where the location of all known underground facilities are duly located or noted on the engineering drawing as specifications for the project;
[(9) "Residential property", any real estate used or intended to be used as a residence by not more than four families on which no underground facilities exist which are owned or operated by any party other than the owner of said property;]
(13) "State plane coordinates", a system of locating a point on a flat plane developed by the National Oceanic and Atmospheric Administration and utilized by state agencies, local governments, and other persons to designate the site of a construction project;
(14) "Trenchless excavation", horizontal excavation parallel to the surface of the earth which does not use trenching or vertical digging as the primary means of excavation, including but not limited to directional boring, tunneling, or auguring;
[(10)] (15) "Underground facility", any item of personal property which shall be buried or placed below ground for use in connection with the storage or conveyance of water, storm drainage, sewage, telecommunications service, cable television service, electricity, oil, gas, hazardous liquids or other substances, and shall include but not be limited to pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments, or appurtenances, and those portions of pylons or other supports below ground that are within any public or private street, road or alley, right-of-way dedicated to the public use or utility easement of record, or prescriptive easement[; except that where] . If gas distribution lines or electric lines, telecommunications facilities, cable television facilities, water service lines, water system, storm drainage or sewer system lines [are and such lines or facilities] , other than those used for vehicular traffic control, lighting of streets and highways and communications for emergency response, are located on private property and are owned solely by the owner or owners of such private property, such lines or facilities receiving service shall not be considered underground facilities for purposes of this chapter[; provided, however], except at locations where they cross or lie within an easement or right-of-way dedicated to public use or owned by a person other than the owner of the private property. Water and sanitary sewer lines providing service to private property that are owned solely by the owner of such property shall not be considered underground facilities at any location. Water, storm drainage, cross road drainage, or sewer lines owned by the state highways and transportation commission shall not be considered underground facilities at any location. For railroads regulated by the Federal Railroad Administration, "underground facility" as used in sections 319.015 to 319.050 shall not include any excavating done by a railroad when such excavating is done entirely on land which the railroad owns or on which the railroad operates, or in the event of emergency, on adjacent land;
(16) "Underground facility owner", any person who owns or operates underground facilities as defined by this section;
[(11)] (17) "Working day", every day, except Saturday, Sunday or a legally declared local, state or federal holiday.
319.016. Notwithstanding any provision of sections 319.010 to 319.050 to the contrary, the state highways and transportation commission shall not be required to be a notification center participant after December 31, 2011, but nothing in this section shall prohibit the commission from voluntarily choosing to be a notification center participant after that date.
319.022. 1. Any person, except a railroad regulated by the Federal Railroad Administration, who installs or otherwise owns or operates an underground facility shall become a participant in a notification center upon first acquiring or owning or operating such underground facility. Except as provided in section 319.016, all owners and operators of underground facilities within the state shall maintain participation in a notification center.
2. All owners and operators of underground facilities which are located in a county of the first classification or second classification within the state who are not members of a notification center on August 28, 2001, shall become participants in the notification center prior to January 1, 2003. Any person who installs or otherwise becomes an owner or operator of an underground facility which is located within a county of the first classification or second classification on or after January 1, 2003, shall become a participant in the notification center within thirty days of acquiring or operating such underground facility. Beginning January 1, 2003, all owners and operators of underground facilities which are located in a county of the first classification or second classification within the state shall maintain participation in the notification center except as provided otherwise in section 319.016.
[2.] 3. All owners and operators of underground facilities which are located in a county of the third classification or fourth classification within the state who are not members of a notification center on August 28, 2001, shall become participants in the notification center prior to January 1, 2005. Any person who installs or otherwise becomes an owner or operator of an underground facility which is located within a county of the third classification or fourth classification on or after January 1, 2005, shall become a participant in the notification center within thirty days of acquiring or operating such underground facility. Beginning January 1, 2005, all owners and operators of underground facilities which are located in a county of the third classification or fourth classification within the state shall maintain participation in the notification center except as provided otherwise in section 319.016.
[3.] 4. The notification center shall maintain in its offices and make available to any [person] notification center participant or excavator upon request, a current list of the names and addresses of each [owner and operator participating in the] notification center participant, including the county or counties wherein each [owner or operator] participant has underground facilities. The notification center may charge a reasonable fee to [persons] notification center participants or excavators requesting such list as is necessary to recover the actual costs of printing and mailing.
[4.] 5. Excavators shall be informed of the availability of the list of notification center participants [in the notification center] required in subsection [2] 3 of this section in the manner provided for in section 319.024.
[5.] 6. An annual audit or review of the notification center shall be performed by a certified public accountant and a report of the findings submitted to the speaker of the house of representatives and the president pro tem of the senate.
319.024. 1. Every person owning or operating an underground facility shall assist excavators and the general public in determining the location of underground facilities before excavation activities are begun or as may be required by subsection 6 of section 319.026 or subsection 1 of section 319.030 after an excavation has commenced. Methods of informing the public and excavators of the means of obtaining such information may, but need not, include advertising, including advertising in periodicals of general circulation or trade publications, information provided to professional or trade associations which routinely provide information to excavators or design professionals, or sponsoring meetings of excavators and design professionals for such purposes. Information provided by the notification center on behalf of persons owning or operating an underground facility shall be deemed in compliance with this section by such persons. Every person owning or operating underground facilities who has a written policy in determining the location of its underground facilities shall make available a copy of said policy to any [person] notification center participant or excavator upon request.
2. Every person owning or operating underground pipeline facilities shall, in addition to the requirements of subsection 1 of this section:
(1) Identify on a current basis, persons who normally engage in excavation activities in the area in which the pipeline is located. Every such person who is a participant in a notification center shall be deemed to comply with this subdivision if such notification center maintains and updates a list of the names and addresses of all excavators who have given notice of intent to excavate to such notification center during the previous [five years] year and provided the notification center shall, not less frequently than annually, provide public notification and actual notification to all excavators on such list of the existence and purpose of the notification center, and procedures for obtaining information from the notification center;
(2) Either directly or through the notification center, notify excavators and the public in the vicinity of his or her underground pipeline facility of the availability of the notification center by including the information set out in subsection 1 of section 319.025, in notifications required by the safety rules of the Missouri public service commission relating to its damage prevention program;
(3) Notify excavators annually who give notice of their intent to excavate of the type of marking to be provided and how to identify the markings.
319.025. 1. Except as provided in [sections] subsection 3 of section 319.030 and in section 319.050, a person shall not make or begin any excavation in any public street, road or alley, right-of-way dedicated to the public use or utility easement of record or within any private street or private property without first giving notice to the notification center and obtaining information concerning the possible location of any underground facilities which may be affected by said excavation from [each and every owner and operator of underground facilities] underground facility owners whose [name appears] names appear on the current list of participants in the notification center and who were communicated to the excavator as notification center participants who would be informed of the excavation notice. Prior to January 1, 2003, a person shall not make or begin any excavation pursuant to this subsection without also making notice to owners or operators of underground facilities which do not participate in a notification center and whose name appears on the current list of the recorder of deeds in and for the county in which the excavation is to occur. Beginning January 1, 2003, notice to the notification center of proposed excavation shall be deemed notice to all owners and operators of underground facilities. The notice referred to in this section shall comply with the provisions of section 319.026. As part of the process to request the locating of underground facilities and having them properly marked, the notification center shall ask excavators to identify whether or not the proposed excavation will be on a public right-of-way or easement dedicated to public use for vehicular traffic.
2. An excavator's notice to owners and operators of underground facilities participating in the notification center pursuant to section 319.022 is ineffective for purposes of subsection 1 of this section unless given to such notification center. Prior to January 1, 2003, the notice required by subsection 1 of this section shall be given directly to owners or operators of underground facilities who are not represented by a notification center.
3. [If the excavator is engaged in trenching, ditching, drilling, well-drilling or -driving, augering or boring and, if upon notification by the excavator pursuant to section 319.026, the owner or operator notifies the excavator that the area of excavation cannot be determined from the description provided by the excavator, the excavator shall mark the proposed area of excavation prior to marking of location by the owner or operator of the facility. For any excavation, as defined in section 319.015,] Notification center participants shall be relieved of the responsibility to respond to a notice of intent to excavate received directly from the person intending to commence an excavation, except for requests for clarification of markings through on-site meetings as provided in subsection 1 of section 319.030 and requests for locations at the time of an emergency as provided by section 319.050.
4. If the owner or operator notifies the excavator that the area of excavation cannot be determined from the description provided by the excavator through the notice required by this section, [the owner or operator may require] the excavator [to provide] shall provide clarification of the area of excavation by markings or by providing project plans to the owner or operator, or [meet] by meeting on the site of the excavation with representatives of the owner or operator as provided by subsection 1 of section 319.030. [The provisions of this subsection shall not apply to owners of residential property performing excavations on their own property.]
5. Notwithstanding the provisions of this section to the contrary, a person shall not make or begin any excavation in any state highway, or on the right-of-way of any state highway, without first obtaining a permit from the state highways and transportation commission pursuant to section 227.240, RSMo, provided however, the provisions of this subsection shall not apply to railroad right of way owned or operated by a railroad.
319.026. 1. An excavator shall serve notice of intent to excavate to the notification center by toll-free telephone number operated on a twenty-four hour per day, seven day per week basis or[, prior to January 1, 2003, to individual nonparticipant owners or operators] by facsimile or by completing notice via the Internet at least two working days, but not more than ten working days, before the expected date of commencing the excavation activity. The notification center receiving such notice shall inform the excavator of all [owners, operators and other persons] notification center participants to whom such notice will be transmitted and shall promptly transmit all details of such notice provided under subsection 2 of this section to every [public utility, municipal corporation and all persons owning or operating an underground facility] notification center participant in the area of excavation [and which are participants in and have registered their locations with the notification center. The notification center receiving such notice shall solicit all information required in subsection 2 of this section from the excavator and shall transmit all details of such notice as required by this section].
2. [Each notice] Notices of intent to excavate given pursuant to this section shall contain the following information:
(1) The name[, address] and telephone number [and facsimile number, if any,] of the person filing the notice of [intent,] excavation, if the telephone number is different than that of the excavator, and the name, address [and] , telephone number of the excavator[,] and whether the excavator's telephone is equipped with a recording device;
(2) The date the excavation activity is expected to commence, the depth of planned excavation and, if applicable, that the use of explosives is anticipated on the excavation site, and the type of excavation being planned, including whether the excavation involves [tunneling or horizontal boring. The notice shall state whether someone is available between 8:00 a.m. and 5:00 p.m. on working days at the telephone number given and whether the excavator's telephone is equipped with a recording device. The notice shall also specify] trenchless excavation;
(3) The facsimile number, email address, and cellular telephone number of the excavator, if any;
(4) The name of the person primarily responsible for conducting the excavation or managing the excavation process, and if any of the information stated in subdivisions (1) or (3) of this subsection is different for the person primarily responsible for the excavation, the notice shall also state the same information for that person;
(5) A detailed description accepted by the notification center sufficient for the location of the excavation by any one or more of the following means: by reference to a specific street address, [or by reference to specific quarter section, and shall state whether excavation is to take place within the city limits. The notice shall also include] or by description of location in relation to the nearest numbered, lettered, or named state or county road or city street for which a road sign is posted, or by latitude and longitude including the appropriate description in degrees, minutes, and seconds, or by state plane coordinates;
(6) A description of the site of excavation by approximate distance and direction from the nearest state or county road or city street or intersection of such roads or streets unless previously provided under subdivision (5) of this subsection, and the proximity of the site to any prominent landmarks;
(7) A description of the location or locations of the excavation at the site described by direction and approximate distance in relation to prominent features of the site, such as existing buildings or roadways[. For excavations occurring outside the limits of an incorporated city, the following additional information shall be provided: the location of the excavation in relation to the nearest numbered, lettered or named state or county road which is posted on a road sign, including the approximate distance from the nearest intersection or prominent landmark; and, if the excavation is not on or near a posted numbered, lettered or named state or county road,] ;
(8) Directions as to how to reach the site of the excavation from the nearest such road, if the excavation is not on or near a posted numbered, lettered, or named state or county road or city street.
3. The notification center receiving such notice shall solicit all information required [in this] by subsection 2 of this section and shall require the excavator to provide all such information before notice by the excavator is deemed to be completed pursuant to sections 319.015 to 319.050. The notification center shall transmit all details of such notice as required [in subsection 1 of] by this section.
[3.] 4. A [written] record of each notice of intent to excavate shall be maintained by the notification center or, prior to January 1, 2003, by the nonmember owner or operator receiving direct notifications for a period of five years. The record shall include the date the notice was received and all information required by subsection 2 of this section which was provided by the excavator and a record of the underground facility owners notified by the notification center. If the [recipient] notification center creates a record of the notice by [computer or] telephonic recording, such record of the original notice shall be maintained for one year from the date of receipt. Records of notices to excavate maintained by the notification center in electronic form shall be deemed to be records under this subsection. Persons holding records of notices of intent to excavate and records of information provided to the excavator by the notification center or owner or operator of the facility, shall make copies of such records available for a reasonable copying fee upon the request of the owner or operator of the underground facilities or the excavator filing the notice.
[4.] 5. If in the course of excavation the person responsible for the excavation operations discovers that the owner or operator of the underground facility who is a participant in a notification center has incorrectly located the underground facility, he or she shall notify the notification center which shall inform the [participating owner or operator] notification center participant. If the owner or operator of the underground facility is not a participant in a notification center prior to the January 1, 2003, effective date for mandatory participation pursuant to section 319.022, the person responsible for the excavation shall notify the owner. The person responsible for maintaining records of the location of underground facilities for the [owner or operator] notification center participant shall correct such records to show the actual location of such facilities, if current records are incorrect.
[5. Notwithstanding the fact that a project is a preengineered project or a permitted project, excavators connected therewith shall be required to give notification in accordance with this section prior to commencement of excavation.]
6. When markings have been provided in response to a notice of intent to excavate, excavators may commence or continue to work within the area described in the notice for so long as the markings are visible. If markings become unusable due to weather, construction or other cause, the excavator shall contact the notification center to request remarking. Such notice shall be given in the same manner as original notice of intent to excavate, and the owner or operator shall remark the site in the same manner, within the same time, as required in response to an original notice of intent to excavate. Each excavator shall exercise reasonable care not to unnecessarily disturb or obliterate markings provided for location of underground facilities. If remarking is required due to the excavator's failure to exercise reasonable care, or if repeated unnecessary requests for remarking are made by an excavator even though the markings are visible and usable, the excavator may be liable to the owner or operator for the reasonable cost of such remarking.
319.027. 1. Any person may make design requests by contacting the notification center. Such design requests shall include all information deemed necessary by the notification center to complete the notice, including the identification of the person and a description of the location of the project being designed and other information similar to that required of excavators under section 319.026.
2. Design requests shall be made to the notification center at least five working days, but not more than ten working days, before the date the person has requested receiving the information from the underground facility owner. Upon receipt of a design request, the notification center shall inform the person of the name of all notification center participants to whom the notice will be transmitted and shall promptly transmit such notice to the appropriate underground facility owners.
3. Every underground facility owner who receives a design request shall mark the location of the facility, or contact the person making the request, within five working days after the date the notice was received from the notification center. If the person making the request was contacted as an alternative to marking location, the person and the underground facility owner shall mutually agree on a schedule and method for providing the information.
4. No excavation may be commenced based upon information received through a design request. Obtaining information through a design request shall not excuse any person commencing an excavation from making notice and obtaining information under sections 319.025 and 319.026 concerning the possible location of any underground facilities which may be affected.
319.029. Notwithstanding the fact that a project is a preengineered project or a permitted project, or that a design request was previously made, excavators connected therewith shall be required to give notification in accordance with sections 319.025 and 319.026 prior to commencement of excavation.
319.030. 1. Every person owning or operating an underground facility to whom notice of intent to excavate is required to be given shall, upon receipt of such notice as provided in this section from a person intending to commence an excavation, inform the excavator as promptly as practical, but not in excess of two working days [from receipt of the notice], unless otherwise mutually agreed, of the approximate location of underground facilities in or near the area of the excavation so as to enable the person engaged in the excavation work to locate the facilities in advance of and during the excavation work. The two working days provided for notice in this subsection and subsection 1 of section 319.026, shall begin at 12:00 a.m. following the receipt of the request by the notification center. If the information available to the owner or operator of a pipeline facility or an underground electric or communications cable discloses that valves, vaults or other appurtenances are located in or near the area of excavation, the owner or operator shall either inform the excavator of the approximate location of such appurtenances at the same time and in the same manner as the approximate location of the remainder of the facility is provided, or shall at such time inform the excavator that appurtenances exist in the area and provide a telephone number through which the excavator may contact a representative of the owner or operator who will meet at the site within one working day after request from the excavator and at such meeting furnish the excavator with the available information about the location and nature of such appurtenances. If the excavator states in the notice of intent to excavate that the excavation will involve [tunneling or horizontal boring] trenchless technology, the owner or operator shall inform the excavator of the depth, to the best of his or her knowledge or ability, of the facility according to the records of the owner or operator. The owner or operator shall provide the approximate location of underground facilities by use of markings. If flags or stakes are used, [staking] such marking shall be consistent with the color code and other standards for ground markings. Persons representing the excavator and the owner or operator shall meet on the site of excavation within two working days of a request by either person for such meeting for the purpose of clarifying markings, or upon agreement of the excavator and owner or operator, such meeting may be an alternate means of providing the location of facilities by originally marking the approximate location of the facility at the time of the meeting. If upon receipt of a notice of intent to excavate, an owner or operator determines that he or she neither owns or operates underground facilities in or near the area of excavation, the owner or operator shall within two working days after receipt of the notice, inform the excavator that the owner or operator has no facilities located in the area of the proposed excavation. [If the notice of intent to excavate provided to the owner or operator of the underground facility by the notification center states that a person is available at the telephone number given in the notice between 8:00 a.m. and 5:00 p.m. on each working day or that the excavator's telephone is equipped with a recording device, or states a facsimile number for the excavator, the owner or operator shall make actual notice of no facilities in the area of the excavation described in the notice by one or more of the following methods: calling the telephone number given between 8:00 a.m. and 5:00 p.m. on a working day; leaving a message on the excavator's recording device; transmitting a facsimile message to the excavator; marking "no facilities" or "clear" at the site of excavation; or verbally informing the excavator at the site of excavation. If the notice of intent to excavate provided to the owner or operator does not indicate that a person is available at the telephone number given in the notice between 8:00 a.m. and 5:00 p.m. on each working day or that the excavator's telephone is equipped with a recording device or that a facsimile number is provided for receiving facsimile messages, then the owner or operator may attempt to notify the excavator of no facilities in the area of excavation by any of the methods indicated above; however, two documented attempts by the owner or operator to reach such an excavator by telephone shall constitute compliance with this subsection.] The owner or operator of the underground facility shall make notice to the excavator that no facilities are located in the area of excavation by contacting the excavator by any of the following methods:
(1) By calling the primary number of the excavator or by calling the telephone number of the responsible person as provided by the excavator under subdivision (4) of subsection 2 of section 319.026;
(2) By leaving a message on the recording device for such numbers;
(3) By calling the cellular telephone number of the excavator or responsible person;
(4) By notifying the excavator by facsimile or electronic mail at numbers or addresses stated by the excavator in the notice of excavation made under subsection 2 of section 319.026;
(5) By marking "clear" or "OK" at the site of excavation; or
(6) By verbally informing the excavator in person.
If the only means of contacting the excavator is one or more telephone numbers provided by the excavator in the notice of excavation under section 319.026, then two attempts by the underground facility owner to contact the excavator at one of the telephone numbers provided shall constitute compliance with this subsection.
2. A record of the date and means of informing the excavator that no facilities were located by the owner or operator shall be included in the written records [required by subsection 3 of section 319.026] of the underground facility owner regarding each specific notice of excavation.
[2. Owners and operators of underground facilities who are participants in the notification center according to the current list maintained in the offices of the notification center shall be relieved of the responsibility to respond to notices of intent to excavate received directly from the person intending to commence an excavation, except for requests for clarification of markings through on-site meetings and requests for locations at the time of an emergency as provided by section 319.050.]
3. In the event that a person owning or operating an underground facility fails to comply with the provisions of subsection 1 of this section after notice given by an excavator in compliance with section 319.026, the excavator, prior to commencing the excavation, shall give a second notice to the [same entity to whom the original notice was made] notification center as required by section 319.026 stating that there has been no response to the original notice given under section 319.026. [If,] After the receipt of the [second] notice stating there has been "no response", the owner or operator of an underground facility [fails to provide the excavator with location information during the next working day] shall, within two hours of the receipt of such notice, mark its facilities or contact and inform the excavator of when the facilities will be marked; provided, however, that for "no response" notices made to the notification center by 2:00 p.m., the markings shall be completed on the working day the notice is made to the notification center, and provided that for "no response" notices made to the notification center after 2:00 p.m., the markings shall be completed no later than 10:00 a.m. on the next working day. If an underground facility owner fails to mark its facilities or contact the excavator as required by this subsection, the excavator may commence the excavation. Nothing in this subsection shall excuse the excavator from exercising the degree of care in making the excavation as is otherwise required by law.
4. For purposes of this section, a period of two working days begins [upon receipt of the excavator's notice of intent to excavate or upon receipt of a request for a meeting and shall end on the second working day thereafter at the same time of day. If the excavator's notice of intent to excavate or a request for a meeting is received on a working day before 8:00 a.m., such period of time shall begin at 8:00 a.m. of that day. If the excavator's notice of intent to excavate or a request for a meeting is received after 5:00 p.m. on a working day, or at any time on a day that is not a working day, then such period of time shall begin at 8:00 a.m. of the first working day after the day of actual receipt] at 12:00 a.m. following when the request is made.
319.037. 1. Notwithstanding any other provision of law to the contrary, the procedures and requirements set forth in this section shall apply on the site of any excavation involving [horizontal boring] trenchless excavation, including directional drilling, where the approximate location of underground facilities has been marked in compliance with section 319.030 and where any part of the walls of the intended bore are within the marked approximate location of the underground facility.
2. The excavator shall not use power-driven equipment for [horizontal boring] trenchless excavation, including directional drilling, within the marked approximate location of such underground facilities until the excavator has made careful and prudent efforts to confirm the horizontal and vertical location thereof in the vicinity of the proposed excavation through methods appropriate to the geologic and weather conditions, and the nature of the facility, such as the use of electronic locating devices, hand digging, pot holing when practical, soft digging, vacuum methods, use of pressurized air or water, pneumatic hand tools or other noninvasive methods as such methods are developed. Such methods of confirming location shall not violate established safety practices. Nothing in this subsection shall authorize any person other than the owner or operator of a facility to attach an electronic locating device to any underground facility. For excavations paralleling the underground facility, such efforts to confirm the location of the facility shall be made at careful and prudent intervals. The excavator shall also make careful and prudent efforts by such means as are appropriate to the geologic and weather conditions and the nature of the facility, to confirm the horizontal and vertical location of the boring device during boring operations. Notwithstanding the foregoing, the excavator shall not be required to confirm the horizontal or vertical location of the underground facilities if the excavator, using the methods described in this section, excavates a hole over the underground facilities to a depth two feet or more below the planned boring path and then carefully and prudently monitors the horizontal and vertical location of the boring device in a manner calculated to enable the device to be visually observed by the excavator as it crosses the entire width of the marked approximate location of the underground facilities.
319.041. Nothing in the foregoing shall relieve an excavator from the obligation to excavate in a safe and prudent manner, nor shall it absolve an excavator from liability for damage to legally installed facilities. [Notwithstanding any provision of law to the contrary, nothing in this chapter shall abrogate any contractual provisions entered into between any railroad and any other party owning or operating an underground facility within the railroad's right-of-way.]
319.042. Notwithstanding any provision of law to the contrary, nothing in this chapter shall abrogate any contractual provisions entered into between any railroad and any other party owning or operating an underground facility within the railroad's right-of-way. For railroads regulated by the Federal Railroad Administration, sections 319.015 to 319.050 shall not include any underground facility owned or operated by a railroad on land which the railroad owns or any excavation done by a railroad when such excavation is done entirely on land which the railroad owns.
319.045. 1. In the event of any damage or dislocation or disturbance of any underground facility in connection with any excavation, the person responsible for the excavation operations shall immediately notify the notification center [and the owner or operator of the facility or the owner or operator, if known, if it is not a participant in the notification center prior to January 1, 2003. On or after January 1, 2003, the responsible party shall notify the notification center only] . This subsection shall be deemed to require reporting of any damage, dislocation, or disturbance to trace wires, encasements, cathode protection, permanent above-ground stakes or other such items utilized for protection of the underground facility.
2. In the event of any damage or dislocation or disturbance to any underground facility or any protective devices required to be reported by the excavator under subsection 1 of this section, in advance of or during the excavation work, the person responsible for the excavation operations shall not conceal or attempt to conceal such damage or dislocation or disturbance, nor shall that person attempt or make repairs to the facility unless authorized by the owner or operator of the facility. In the case of sewer lines or facilities, emergency temporary repairs may be made by the excavator after notification without the owners' or operators' authorization to prevent further damage to the facilities. Such emergency repairs shall not relieve the excavator of responsibility to make notification as required by subsection 1 of this section.
3. Any person who violates in any material respect the provisions of section 319.022, [319.023,] 319.025, 319.026, 319.029, 319.030, 319.037, or 319.045 or who willfully damages an underground facility shall be liable to the state of Missouri for a civil penalty of up to ten thousand dollars for each violation for each day such violation persists, except that the maximum penalty for violation of the provisions of sections 319.010 to 319.050 shall not exceed five hundred thousand dollars for any related series of violations. An action to recover such civil penalty may be brought by the attorney general or a prosecuting attorney on behalf of the state of Missouri in any appropriate circuit court of this state. Trial thereof shall be before the court, which shall consider the nature, circumstances and gravity of the violation, and with respect to the person found to have committed the violation, the degree of culpability, the absence or existence of prior violations, whether the violation was a willful act, the effect on ability to continue to do business, any good faith in attempting to achieve compliance, ability to pay the penalty, and such other matters as justice may require in determining the amount of penalty imposed.
4. The attorney general may bring an action in any appropriate circuit court of this state for equitable relief to redress or restrain a violation by any person of any provision of sections 319.010 to 319.050. The court may grant such relief as is necessary or appropriate, including mandatory or prohibitive injunctive relief, temporary or permanent.
319.050. The provisions of sections 319.025 and 319.026 shall not apply to any [utility which is repairing or replacing any of its facilities due to damage caused during an unexpected occurrence or when making an excavation at times of emergency resulting from a sudden, unexpected occurrence, and presenting a clear and imminent danger demanding immediate action to prevent or mitigate loss or damage to life, health, property or essential public services. "Unexpected occurrence" includes, but is not limited to, thunderstorms, high winds, ice or snow storms, fires, floods, earthquakes, or other soil or geologic movements, riots, accidents, water pipe breaks, vandalism or sabotage which cause damage to surface or subsurface facilities requiring immediate repair] excavation when necessary due to an emergency as defined in section 319.015. An [excavator or utility] excavation may proceed regarding such emergency, provided all reasonable precautions have been taken to protect the underground facilities. In any such case, the excavator [or utility] shall give notification, substantially in compliance with section 319.026, as soon as practical, and upon being notified that an emergency exists, each [owner and operator of an] underground facility owner in the area shall [immediately provide all location information reasonably available to any excavator who requests the same] , within two hours after receiving such notice, provide markings or contact the excavator with any information immediately available to assist the excavator and shall inform the excavator if not able to mark within the two hours of when the underground facility will be marked at the site of the emergency. The excavator may be liable to the owner or operator for costs directly associated with the locating of any such underground facility relating to a notification of an emergency that does not meet the definition of "emergency" as stated in section 319.015.
386.020. As used in this chapter, the following words and phrases mean:
(1) "Alternative local exchange telecommunications company", a local exchange telecommunications company certified by the commission to provide basic or nonbasic local telecommunications service or switched exchange access service, or any combination of such services, in a specific geographic area subsequent to December 31, 1995;
(2) "Alternative operator services company", any certificated interexchange telecommunications company which receives more than forty percent of its annual Missouri intrastate telecommunications service revenues from the provision of operator services pursuant to operator services contracts with traffic aggregators;
(3) "Basic interexchange telecommunications service" includes, at a minimum, two-way switched voice service between points in different local calling scopes as determined by the commission and shall include other services as determined by the commission by rule upon periodic review and update;
(4) "Basic local telecommunications service", two-way switched voice service within a local calling scope as determined by the commission comprised of any of the following services and their recurring and nonrecurring charges:
(a) Multiparty, single line, including installation, touchtone dialing, and any applicable mileage or zone charges;
(b) Assistance programs for installation of, or access to, basic local telecommunications services for qualifying economically disadvantaged or disabled customers or both, including, but not limited to, lifeline services and link-up Missouri services for low-income customers or dual-party relay service for the hearing impaired and speech impaired;
(c) Access to local emergency services including, but not limited to, 911 service established by local authorities;
(d) Access to basic local operator services;
(e) Access to basic local directory assistance;
(f) Standard intercept service;
(g) Equal access to interexchange carriers consistent with rules and regulations of the Federal Communications Commission;
(h) One standard white pages directory listing.
Basic local telecommunications service does not include optional toll-free calling outside a local calling scope but within a community of interest, available for an additional monthly fee or the offering or provision of basic local telecommunications service at private shared-tenant service locations;
(5) "Cable television service", the one-way transmission to subscribers of video programming or other programming service and the subscriber interaction, if any, which is required for the selection of such video programming or other programming service;
(6) "Carrier of last resort", any telecommunications company which is obligated to offer basic local telecommunications service to all customers who request service in a geographic area defined by the commission and cannot abandon this obligation without approval from the commission;
(7) "Commission", the "Public Service Commission" hereby created;
(8) "Commissioner", one of the members of the commission;
(9) "Competitive telecommunications company", a telecommunications company which has been classified as such by the commission pursuant to section 392.361 or 392.245, RSMo;
(10) "Competitive telecommunications service", a telecommunications service which has been classified as such by the commission pursuant to section 392.245, RSMo, or to section 392.361, RSMo, or which has become a competitive telecommunications service pursuant to section 392.370, RSMo;
(11) "Corporation" includes a corporation, company, association and joint stock association or company;
(12) "Customer-owned pay telephone", a privately owned telecommunications device that is not owned, leased or otherwise controlled by a local exchange telecommunications company and which provides telecommunications services for a use fee to the general public;
(13) "Effective competition" shall be determined by the commission based on:
(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) The extent to which the purposes and policies of chapter 392, RSMo, including the reasonableness of rates, as set out in section 392.185, RSMo, are being advanced;
(d) Existing economic or regulatory barriers to entry; and
(e) Any other factors deemed relevant by the commission and necessary to implement the purposes and policies of chapter 392, RSMo;
(14) "Electric plant" includes all real estate, fixtures and personal property operated, controlled, owned, used or to be used for or in connection with or to facilitate the generation, transmission, distribution, sale or furnishing of electricity for light, heat or power; and any conduits, ducts or other devices, materials, apparatus or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power;
(15) "Electrical corporation" includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, other than a railroad, light rail or street railroad corporation generating electricity solely for railroad, light rail or street railroad purposes or for the use of its tenants and not for sale to others, owning, operating, controlling or managing any electric plant except where electricity is generated or distributed by the producer solely on or through private property for railroad, light rail or street railroad purposes or for its own use or the use of its tenants and not for sale to others;
(16) "Exchange", a geographical area for the administration of telecommunications services, established and described by the tariff of a telecommunications company providing basic local telecommunications service;
(17) "Exchange access service", a service provided by a local exchange telecommunications company which enables a telecommunications company or other customer to enter and exit the local exchange telecommunications network in order to originate or terminate interexchange telecommunications service;
(18) "Gas corporation" includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operating, controlling or managing any gas plant operating for public use under privilege, license or franchise now or hereafter granted by the state or any political subdivision, county or municipality thereof;
(19) "Gas plant" includes all real estate, fixtures and personal property owned, operated, controlled, used or to be used for or in connection with or to facilitate the manufacture, distribution, sale or furnishing of gas, natural or manufactured, for light, heat or power;
(20) "Heating company" includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers, appointed by any court whatsoever, owning, operating, managing or controlling any plant or property for manufacturing and distributing and selling, for distribution, or distributing hot or cold water, steam or currents of hot or cold air for motive power, heating, cooking, or for any public use or service, in any city, town or village in this state; provided, that no agency or authority created by or operated pursuant to an interstate compact established pursuant to section 70.370, RSMo, shall be a heating company or subject to regulation by the commission;
(21) "High-cost area", a geographic area, which shall follow exchange boundaries and be no smaller than an exchange nor larger than a local calling scope, where the cost of providing basic local telecommunications service as determined by the commission, giving due regard to recovery of an appropriate share of joint and common costs as well as those costs related to carrier of last resort obligations, exceeds the rate for basic local telecommunications service found reasonable by the commission;
(22) "Incumbent local exchange telecommunications company", a local exchange telecommunications company authorized to provide basic local telecommunications service in a specific geographic area as of December 31, 1995, or a successor in interest to such a company;
(23) "Interconnected voice over Internet protocol service", service that:
(a) Enables real-time, two-way voice communications;
(b) Requires a broadband connection from the user's location;
(c) Requires Internet protocol-compatible customer premises equipment; and
(d) Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network;
(24) "Interexchange telecommunications company", any company engaged in the provision of interexchange telecommunications service;
[(24)] (25) "Interexchange telecommunications service", telecommunications service between points in two or more exchanges;
[(25)] (26) "InterLATA", interexchange telecommunications service between points in different local access and transportation areas;
[(26)] (27) "IntraLATA", interexchange telecommunications service between points within the same local access and transportation area;
[(27)] (28) "Light rail" includes every rail transportation system in which one or more rail vehicles are propelled electrically by overhead catenary wire upon tracks located substantially within an urban area and are operated exclusively in the transportation of passengers and their baggage, and including all bridges, tunnels, equipment, switches, spurs, tracks, stations, used in connection with the operation of light rail;
[(28)] (29) "Line" includes route;
[(29)] (30) "Local access and transportation area" or "LATA", contiguous geographic area approved by the U.S. District Court for the District of Columbia in United States v. Western Electric, Civil Action No. 82-0192 that defines the permissible areas of operations for the Bell Operating companies;
[(30)] (31) "Local exchange telecommunications company", any company engaged in the provision of local exchange telecommunications service. A local exchange telecommunications company shall be considered a "large local exchange telecommunications company" if it has at least one hundred thousand access lines in Missouri and a "small local exchange telecommunications company" if it has less than one hundred thousand access lines in Missouri;
[(31)] (32) "Local exchange telecommunications service", telecommunications service between points within an exchange;
[(32)] (33) "Long-run incremental cost", the change in total costs of the company of producing an increment of output in the long run when the company uses least cost technology, and excluding any costs that, in the long run, are not brought into existence as a direct result of the increment of output. The relevant increment of output shall be the level of output necessary to satisfy total current demand levels for the service in question, or, for new services, demand levels that can be demonstrably anticipated;
[(33)] (34) "Municipality" includes a city, village or town;
[(34)] (35) "Nonbasic telecommunications services" shall be all regulated telecommunications services other than basic local and exchange access telecommunications services, and shall include the services identified in paragraphs (d) and (e) of subdivision (4) of this section. Any retail telecommunications service offered for the first time after August 28, 1996, shall be classified as a nonbasic telecommunications service, including any new service which does not replace an existing service;
[(35)] (36) "Noncompetitive telecommunications company", a telecommunications company other than a competitive telecommunications company or a transitionally competitive telecommunications company;
[(36)] (37) "Noncompetitive telecommunications service", a telecommunications service other than a competitive or transitionally competitive telecommunications service;
[(37)] (38) "Operator services", operator-assisted interexchange telecommunications service by means of either human or automated call intervention and includes, but is not limited to, billing or completion of calling card, collect, person-to-person, station-to-station or third number billed calls;
[(38)] (39) "Operator services contract", any agreement between a traffic aggregator and a certificated interexchange telecommunications company to provide operator services at a traffic aggregator location;
[(39)] (40) "Person" includes an individual, and a firm or copartnership;
[(40)] (41) "Private shared tenant services" includes the provision of telecommunications and information management services and equipment within a user group located in discrete private premises as authorized by the commission by a commercial-shared services provider or by a user association, through privately owned customer premises equipment and associated data processing and information management services and includes the provision of connections to the facilities of local exchange telecommunications companies and to interexchange telecommunications companies;
[(41)] (42) "Private telecommunications system", a telecommunications system controlled by a person or corporation for the sole and exclusive use of such person, corporation or legal or corporate affiliate thereof;
[(42)] (43) "Public utility" includes every pipeline corporation, gas corporation, electrical corporation, telecommunications company, water corporation, heat or refrigerating corporation, and sewer corporation, as these terms are defined in this section, and each thereof is hereby declared to be a public utility and to be subject to the jurisdiction, control and regulation of the commission and to the provisions of this chapter;
[(43)] (44) "Railroad" includes every railroad and railway, other than street railroad or light rail, by whatsoever power operated for public use in the conveyance of persons or property for compensation, with all bridges, ferries, tunnels, equipment, switches, spurs, tracks, stations, real estate and terminal facilities of every kind used, operated, controlled or owned by or in connection with any such railroad;
[(44)] (45) "Railroad corporation" includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, holding, operating, controlling or managing any railroad or railway as defined in this section, or any cars or other equipment used thereon or in connection therewith;
[(45)] (46) "Rate", every individual or joint rate, fare, toll, charge, reconsigning charge, switching charge, rental or other compensation of any corporation, person or public utility, or any two or more such individual or joint rates, fares, tolls, charges, reconsigning charges, switching charges, rentals or other compensations of any corporation, person or public utility or any schedule or tariff thereof;
[(46)] (47) "Resale of telecommunications service", the offering or providing of telecommunications service primarily through the use of services or facilities owned or provided by a separate telecommunications company, but does not include the offering or providing of private shared tenant services;
[(47)] (48) "Service" includes not only the use and accommodations afforded consumers or patrons, but also any product or commodity furnished by any corporation, person or public utility and the plant, equipment, apparatus, appliances, property and facilities employed by any corporation, person or public utility in performing any service or in furnishing any product or commodity and devoted to the public purposes of such corporation, person or public utility, and to the use and accommodation of consumers or patrons;
[(48)] (49) "Sewer corporation" includes every corporation, company, association, joint stock company or association, partnership or person, their lessees, trustees or receivers appointed by any court, owning, operating, controlling or managing any sewer system, plant or property, for the collection, carriage, treatment, or disposal of sewage anywhere within the state for gain, except that the term shall not include sewer systems with fewer than twenty-five outlets;
[(49)] (50) "Sewer system" includes all pipes, pumps, canals, lagoons, plants, structures and appliances, and all other real estate, fixtures and personal property, owned, operated, controlled or managed in connection with or to facilitate the collection, carriage, treatment and disposal of sewage for municipal, domestic or other beneficial or necessary purpose;
[(50)] (51) "Street railroad" includes every railroad by whatsoever type of power operated, and all extensions and branches thereof and supplementary facilities thereto by whatsoever type of vehicle operated, for public use in the conveyance of persons or property for compensation, mainly providing local transportation service upon the streets, highways and public places in a municipality, or in and adjacent to a municipality, and including all cars, buses and other rolling stock, equipment, switches, spurs, tracks, poles, wires, conduits, cables, subways, tunnels, stations, terminals and real estate of every kind used, operated or owned in connection therewith but this term shall not include light rail as defined in this section; and the term "street railroad" when used in this chapter shall also include all motor bus and trolley bus lines and routes and similar local transportation facilities, and the rolling stock and other equipment thereof and the appurtenances thereto, when operated as a part of a street railroad or trolley bus local transportation system, or in conjunction therewith or supplementary thereto, but such term shall not include a railroad constituting or used as part of a trunk line railroad system and any street railroad as defined above which shall be converted wholly to motor bus operation shall nevertheless continue to be included within the term "street railroad" as used herein;
[(51)] (52) "Telecommunications company" includes telephone corporations as that term is used in the statutes of this state and every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operating, controlling or managing any facilities used to provide telecommunications service for hire, sale or resale within this state;
[(52)] (53) "Telecommunications facilities" includes lines, conduits, ducts, poles, wires, cables, crossarms, receivers, transmitters, instruments, machines, appliances and all devices, real estate, easements, apparatus, property and routes used, operated, controlled or owned by any telecommunications company to facilitate the provision of telecommunications service;
[(53)] (54) "Telecommunications service", the transmission of information by wire, radio, optical cable, electronic impulses, or other similar means. As used in this definition, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. Telecommunications service does not include:
(a) The rent, sale, lease, or exchange for other value received of customer premises equipment except for customer premises equipment owned by a telephone company certificated or otherwise authorized to provide telephone service prior to September 28, 1987, and provided under tariff or in inventory on January 1, 1983, which must be detariffed no later than December 31, 1987, and thereafter the provision of which shall not be a telecommunications service, and except for customer premises equipment owned or provided by a telecommunications company and used for answering 911 or emergency calls;
(b) Answering services and paging services;
(c) The offering of radio communication services and facilities when such services and facilities are provided under a license granted by the Federal Communications Commission under the commercial mobile radio services rules and regulations;
(d) Services provided by a hospital, hotel, motel, or other similar business whose principal service is the provision of temporary lodging through the owning or operating of message switching or billing equipment solely for the purpose of providing at a charge telecommunications services to its temporary patients or guests;
(e) Services provided by a private telecommunications system;
(f) Cable television service;
(g) The installation and maintenance of inside wire within a customer's premises;
(h) Electronic publishing services; [or]
(i) Services provided pursuant to a broadcast radio or television license issued by the Federal Communications Commission; or
(j) Interconnected voice over Internet protocol service;
[(54)] (55) "Telephone cooperative", every corporation defined as a telecommunications company in this section, in which at least ninety percent of those persons and corporations subscribing to receive local telecommunications service from the corporation own at least ninety percent of the corporation's outstanding and issued capital stock and in which no subscriber owns more than two shares of the corporation's outstanding and issued capital stock;
[(55)] (56) "Traffic aggregator", any person, firm, partnership or corporation which furnishes a telephone for use by the public and includes, but is not limited to, telephones located in rooms, offices and similar locations in hotels, motels, hospitals, colleges, universities, airports and public or customer-owned pay telephone locations, whether or not coin operated;
[(56)] (57) "Transitionally competitive telecommunications company", an interexchange telecommunications company which provides any noncompetitive or transitionally competitive telecommunications service, except for an interexchange telecommunications company which provides only noncompetitive telecommunications service;
[(57)] (58) "Transitionally competitive telecommunications service", a telecommunications service offered by a noncompetitive or transitionally competitive telecommunications company and classified as transitionally competitive by the commission pursuant to section 392.361 or 392.370, RSMo;
[(58)] (59) "Water corporation" includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees, or receivers appointed by any court whatsoever, owning, operating, controlling or managing any plant or property, dam or water supply, canal, or power station, distributing or selling for distribution, or selling or supplying for gain any water;
[(59)] (60) "Water system" includes all reservoirs, tunnels, shafts, dams, dikes, headgates, pipes, flumes, canals, structures and appliances, and all other real estate, fixtures and personal property, owned, operated, controlled or managed in connection with or to facilitate the diversion, development, storage, supply, distribution, sale, furnishing or carriage of water for municipal, domestic or other beneficial use.
386.572. 1. No corporation, person, public utility, or municipality that owns any gas plant shall violate any law or any order, decision, decree, rule, direction, demand, or requirement of the commission or any part or portion thereof relating to federally mandated natural gas safety standards. Notwithstanding the above, a municipality that owns any gas plant shall be subject to the provisions of this section only for violations of natural gas safety laws, rules, or orders.
2. The maximum penalties for violations of federally mandated natural gas safety standards, or such stricter natural gas safety standards or rules as may be approved by the commission, shall not be greater than fifteen thousand dollars for each violation with a maximum penalty for a continuing violation or a multiple series of violations of the same standard or rule provision not to exceed one hundred fifty thousand dollars, notwithstanding any provisions of subsection 1 of section 386.570 to the contrary. The maximum penalty for each violation shall increase to twenty thousand dollars, effective January 1, 2015, twenty-five thousand dollars, effective January 1, 2025, thirty thousand dollars, effective January 1, 2035, and forty thousand dollars, effective January 1, 2040. The maximum penalty for a continuing violation or a multiple series of violations of the same standard or rule provision shall increase to two hundred thousand dollars, effective January 1, 2015, two hundred fifty thousand dollars, effective January 1, 2025, three hundred thousand dollars, effective January 1, 2035, and four hundred thousand dollars, effective January 1, 2040. In determining the amount of the penalty, the commission shall consider the nature, circumstances, and gravity of the violation, and also shall consider, with respect to the entity found to have committed the violation:
(1) The degree of culpability;
(2) Any history of prior violations;
(3) The effect of the penalty on the entity's ability to continue operation;
(4) Any good faith effort in attempting to achieve compliance;
(5) Ability to pay the penalty; and
(6) Such other matters as are relevant in the case.
3. Every violation of a specific natural gas safety standard or rule by any corporation, person, public utility, or municipality that owns any gas plant is a separate and distinct offense, regardless of whether such violations relate to the same incident. In case of a continuing violation, each day's continuance thereof shall be a separate and distinct offense.
4. In construing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or employee of any corporation, person, public utility, or municipality that owns any gas plant acting within the scope of official duties of employment shall in every case be considered the act, omission, or failure of such corporation, person, public utility, or municipality that owns any gas plant.
392.200. 1. Every telecommunications company shall furnish and provide with respect to its business such instrumentalities and facilities as shall be adequate and in all respects just and reasonable. All charges made and demanded by any telecommunications company for any service rendered or to be rendered in connection therewith shall be just and reasonable and not more than allowed by law or by order or decision of the commission. Every unjust or unreasonable charge made or demanded for any such service or in connection therewith or in excess of that allowed by law or by order or decision of the commission is prohibited and declared to be unlawful.
2. No telecommunications company shall directly or indirectly or by any special rate, rebate, drawback or other device or method charge, demand, collect or receive from any person or corporation a greater or less compensation for any service rendered or to be rendered with respect to telecommunications or in connection therewith, except as authorized in this chapter, than it charges, demands, collects or receives from any other person or corporation for doing a like and contemporaneous service with respect to telecommunications under the same or substantially the same circumstances and conditions. Promotional programs for telecommunications services may be offered by telecommunications companies for periods of time so long as the offer is otherwise consistent with the provisions of this chapter and approved by the commission. Neither this subsection nor subsection 3 of this section shall be construed to prohibit an economy rate telephone service offering. This section and section 392.220 to the contrary notwithstanding, the commission is authorized to approve tariffs filed by local exchange telecommunications companies which elect to provide reduced charges for residential telecommunications connection services pursuant to the lifeline connection assistance plan as promulgated by the federal communications commission. Eligible subscribers for such connection services shall be those as defined by participating local exchange telecommunications company tariffs.
3. No telecommunications company shall make or give any undue or unreasonable preference or advantage to any person, corporation or locality, or subject any particular person, corporation or locality to any undue or unreasonable prejudice or disadvantage in any respect whatsoever except that telecommunications messages may be classified into such classes as are just and reasonable, and different rates may be charged for the different classes of messages.
4. (1) No telecommunications company may define a telecommunications service as a different telecommunications service based on the geographic area or other market segmentation within which such telecommunications service is offered or provided, unless the telecommunications company makes application and files a tariff or tariffs which propose relief from this subsection. Any such tariff shall be subject to the provisions of sections 392.220 and 392.230 and in any hearing thereon the burden shall be on the telecommunications company to show, by clear and convincing evidence, that the definition of such service based on the geographic area or other market within which such service is offered is reasonably necessary to promote the public interest and the purposes and policies of this chapter.
(2) It is the intent of this act to bring the benefits of competition to all customers and to ensure that incumbent and alternative local exchange telecommunications companies have the opportunity to price and market telecommunications services to all prospective customers in any geographic area in which they compete. To promote the goals of the federal Telecommunications Act of 1996, for an alternative local exchange telecommunications company or for an incumbent local exchange telecommunications company in any exchange where an incumbent local exchange telecommunications company has been classified competitive under sections 392.245 and 392.361, an alternative local exchange telecommunications company has been certified and is providing basic local telecommunications services or switched exchange access services, or [for an alternative local exchange telecommunications company] an interconnected voice over Internet protocol service provider has been registered and is providing local voice service, the commission shall review and approve or reject, within forty-five days of filing, tariffs for proposed different services as follows:
(a) For services proposed on an exchangewide basis, it shall be presumed that a tariff which defines and establishes prices for a local exchange telecommunications service or exchange access service as a different telecommunications service in the geographic area, no smaller than an exchange, within which such local exchange telecommunications service or exchange access service is offered is reasonably necessary to promote the public interest and the purposes and policies of this chapter;
(b) For services proposed in a geographic area smaller than an exchange or other market segmentation within which or to whom such telecommunications service is proposed to be offered, a local exchange telecommunications company may petition the commission to define and establish a local exchange telecommunications service or exchange access service as a different local exchange telecommunications service or exchange access service. The commission shall approve such a proposal unless it finds that such service in a smaller geographic area or such other market segmentation is contrary to the public interest or is contrary to the purposes of this chapter. Upon approval of such a smaller geographic area or such other market segmentation for a different service for one local exchange telecommunications company, all other local exchange telecommunications companies certified to provide service in that exchange may file a tariff to use such smaller geographic area or such other market segmentation to provide that service;
(c) For proposed different services described in paragraphs (a) and (b) of this subdivision, the local exchange telecommunications company which files a tariff to provide such service shall provide the service to all similarly situated customers, upon request in accordance with that company's approved tariff, in the exchange or geographic area smaller than an exchange or such other market segmentation for which the tariff was filed, and no price proposed for such service by an incumbent local exchange telecommunications company, other than for a competitive service, shall be lower than its long-run incremental cost, as defined in section 386.020, RSMo;
(3) The commission, on its own motion or upon motion of the public counsel, may by order, after notice and hearing, define a telecommunications service offered or provided by a telecommunications company as a different telecommunications service dependent upon the geographic area or other market within which such telecommunications service is offered or provided and apply different service classifications to such service only upon a finding, based on clear and convincing evidence, that such different treatment is reasonably necessary to promote the public interest and the purposes and policies of this chapter.
5. No telecommunications company may charge a different price per minute or other unit of measure for the same, substitutable, or equivalent interexchange telecommunications service provided over the same or equivalent distance between two points without filing a tariff for the offer or provision of such service pursuant to sections 392.220 and 392.230. In any proceeding under sections 392.220 and 392.230 wherein a telecommunications company seeks to charge a different price per minute or other unit of measure for the same, substitutable, or equivalent interexchange service, the burden shall be on the subject telecommunications company to show that such charges are in the public interest and consistent with the provisions and purposes of this chapter. The commission may modify or prohibit such charges if the subject telecommunications company fails to show that such charges are in the public interest and consistent with the provisions and purposes of this chapter. This subsection shall not apply to reasonable price discounts based on the volume of service provided, so long as such discounts are nondiscriminatory and offered under the same rates, terms, and conditions throughout a telecommunications company's certificated or service area.
6. Every telecommunications company operating in this state shall receive, transmit and deliver, without discrimination or delay, the conversations and messages of every other telecommunications company with whose facilities a connection may have been made.
7. The commission shall have power to provide the limits within which telecommunications messages shall be delivered without extra charge.
8. Customer-specific pricing is authorized on an equal basis for incumbent and alternative local exchange companies, and for interexchange telecommunications companies for:
(1) Dedicated, nonswitched, private line and special access services;
(2) Central office-based switching systems which substitute for customer premise, private branch exchange (PBX) services; and
(3) Any business service offered in an exchange in which basic local telecommunications service offered [to business customers] by the incumbent local exchange telecommunications company has been declared competitive under section 392.245, and any retail business service offered to an end-user in a noncompetitive exchange.
9. This act shall not be construed to prohibit the commission, upon determining that it is in the public interest, from altering local exchange boundaries, provided that the incumbent local exchange telecommunications company or companies serving each exchange for which the boundaries are altered provide notice to the commission that the companies approve the alteration of exchange boundaries.
10. Notwithstanding any other provision of this section, every telecommunications company is authorized to offer term agreements of up to five years on any of its telecommunications services.
11. Notwithstanding any other provision of this section, every telecommunications company is authorized to offer discounted rates or special promotions on any of its telecommunications services to any existing, new, and/or former customers.
12. Packages of services may be offered on an equal basis by incumbent and alternative local exchange companies and shall not be subject to regulation under section 392.240 or 392.245, nor shall packages of services be subject to the provisions of subsections 1 through 5 of this section, provided that each telecommunications service included in a package is available apart from the package of services and still subject to regulation under section 392.240 or 392.245. For the purposes of this subsection, a "package of services" includes more than one telecommunications service or one or more telecommunications service combined with one or more nontelecommunications service. Any tariff to introduce a new package or to make any change to an existing package, except for the elimination of a package, shall be filed, on an informational basis, with the commission at least one day prior to the introduction of such new package or implementation of such change. Any tariff to eliminate an existing package shall be filed, on an informational basis, with the commission at least ten days prior to the elimination of the package.
392.220. 1. Every telecommunications company shall print and file with the commission schedules showing the rates, rentals and charges for service of each and every kind by or over its facilities between points in this state and between each point upon its facilities and all points upon all facilities leased or operated by it and between each point upon its facilities or upon any facility leased or operated by it and all points upon the line of any other telecommunications company whenever a through service or joint rate shall have been established between any two points. If no joint rate over through facilities has been established, the several companies joined over such through facilities shall file with the commission the separately established rates and charges applicable where through service is afforded. Such schedule shall plainly state the places between which telecommunications service will be rendered and shall also state separately all charges and all privileges or facilities granted or allowed and any rules or regulations or forms of contract which may in any wise change, affect or determine any or the aggregate of the rates, rentals or charges for the service rendered. Such schedule shall be plainly printed and kept open to public inspection. The commission shall have the power to prescribe the form of every such schedule and may from time to time prescribe, by order, changes in the form thereof. The commission shall also have power to establish rules and regulations for keeping such schedules open to public inspection and may from time to time modify the same. Every telecommunications company shall file with the commission as and when required by it a copy of any contract, agreement or arrangement in writing with any other telecommunications company or with any other corporation, association or person relating in any way to the construction, maintenance or use of telecommunications facilities or service by or rates and charges over or upon any facilities.
2. Unless the commission otherwise orders, and except for the rates charged by a telephone cooperative for providing telecommunications service within an exchange or within a local calling scope as determined by the commission other than the rates for exchange access service, no change shall be made in any rate, charge or rental, or joint rate, charge or rental which shall have been filed by a telecommunications company in compliance with the requirements of sections 392.190 to 392.530, except after thirty days' notice to the commission, which notice shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rate, charge or rental shall go into effect; and all proposed changes shall be shown by filing new schedules or shall be plainly indicated upon the schedules filed and in force at the time and kept open to public inspection. The commission for good cause shown may allow changes in rates, charges or rentals without requiring the thirty days' notice, under such conditions as it may prescribe. All such changes shall be immediately indicated upon its schedules by such telecommunications company. No telecommunications company shall charge, demand, collect or receive a different compensation for any service rendered or to be rendered than the charge applicable to such service as specified in its schedule on file and in effect at that time. No telecommunications company shall refund or remit directly or indirectly any portion of the rate or charge so specified, nor extend to any person or corporation any form of contract or agreement, or any rule or regulation, or any privilege or facility other than such privileges and facilities as are contemplated by sections 392.200, 392.245, and 392.455, except such as are specified in its schedule filed and in effect at the time and regularly and uniformly extended to all persons and corporations under like circumstances for a like or substantially similar service.
3. No telecommunications company subject to the provisions of this law shall, directly or indirectly, give any free or reduced service, or any free pass or frank for the provision of telecommunications services between points within this state, except to its officers, employees, agents, surgeons, physicians, attorneys at law and their families; to persons or corporations exclusively engaged in charitable and eleemosynary work and ministers of religions; to officers and employees of other telegraph corporations and telephone corporations, railroad corporations and street railroad corporations; public education institutions, public libraries and not-for-profit health care institutions. This subsection shall not apply to state, municipal or federal contracts.
4. Any proposed rate or charge for any new telecommunications service which has not previously been provided by a telecommunications company to its Missouri customers may be suspended by the commission for a period not to exceed [sixty] thirty days from the proposed effective date of such proposed rate or charge. This subsection shall not be applicable to any new price or method of pricing for a service presently being offered by any telecommunications company to its Missouri customers. Upon proposing a rate or charge for a telecommunications service which has not previously been provided by a telecommunications company to its Missouri customers, the offeror must file with the commission its justification for considering such offering a new service and such other information as may be required by rule or regulation, and must identify that service as being noncompetitive, transitionally competitive or competitive. If the offeror is a noncompetitive or transitionally competitive telecommunications company and it proposes such service as a transitionally competitive or competitive telecommunications service, the telecommunications service shall be treated as a transitionally competitive telecommunications service until such time as the commission finally determines the appropriate classification. If the offeror is a competitive telecommunications company and it proposes such service as a competitive service, the competitive classification proposed by the offeror of the service shall apply until such time as the commission finally determines the appropriate classification. Such final determination by the commission of the appropriate classification of such service may be made by the commission after the end of the maximum [sixty-day] thirty-day suspension period, but any such decision by the commission issued after the maximum [sixty-day] thirty-day suspension period shall be prospective in nature. The commission shall expedite proceedings under this subsection in order to facilitate the rapid introduction of new telecommunications products and services into the marketplace.
5. Unless the commission otherwise orders, any change in rates or charges, or change in any classification or tariff resulting in a change in rates or charges, for any telephone cooperative shall be filed, on an informational basis, with the commission at least thirty days prior to the date for implementation of such change. Nothing contained in this section shall be construed as conferring jurisdiction upon the commission over the rates charged by a telephone cooperative for providing telecommunications service within an exchange or within a local calling scope as determined by the commission, except for exchange access service.
6. If after notice and hearing, the commission determines that a telecommunications company has violated the requirements of section 392.200 or this section, it may revoke the certificate of service authority under which that telecommunications company operates and shall direct its general counsel to initiate an action under section 386.600, RSMo, to recover penalties from such telecommunications company in an amount not to exceed the revenues received as a result of such violation multiplied by three or the gross jurisdictional operating revenues of that company for the preceding twelve months, the provisions of section 386.570, RSMo, notwithstanding.
392.230. 1. No telecommunications company subject to the provisions of this chapter shall charge or receive any greater compensation in the aggregate for the transmission of any interexchange telecommunications service offered or provided for a shorter than for a longer distance over the same line or route in the same direction, within this state, the shorter being included within the longer distance, or charge any greater compensation for a through interexchange telecommunications service than the aggregate of the intermediate rates or tolls subject to the provisions of this chapter; but this shall not be construed as authorizing any such telecommunications company to charge or receive as great a compensation for a shorter as for a longer distance.
2. Upon application to the commission, a telecommunications company may, in special cases, after investigation, be authorized by the commission to charge less for a longer than for a shorter distance service for the transmission of messages or conversations, and the commission may from time to time prescribe the extent to which such telecommunications companies may be relieved from the operation and requirements of this section.
3. Whenever there shall be filed with the commission by any telecommunications company, other than a small telephone company, any schedule stating a new individual or joint rate, rental or charge, or any new individual or joint regulation or practice affecting any rate, rental or charge, the commission shall have, and it is hereby given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested telecommunications company or companies, but upon reasonable notice, to enter upon a hearing concerning the propriety of such rate, rental, charge, regulation or practice; and pending such hearing and the decision thereon the commission, upon filing with such schedule and delivering to the telecommunications company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, rental, charge, regulation or practice, but not for a longer period than [one hundred and twenty] sixty days beyond the time when such rate, rental, charge, regulation or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, rental, charge, regulation or practice goes into effect, the commission may make such order in reference to such rate, rental, charge, regulation or practice as would be proper in a proceeding initiated after the rate, rental, charge, regulation or practice had become effective, however, if any such hearing cannot be concluded within the period of suspension, as above stated, the commission may, in its discretion, extend the time of suspension for a further period not exceeding [six months] ninety days.
4. For the purposes of this section, a "small telephone company" is defined as a local exchange telecommunications company which serves no more than twenty-five thousand subscriber access lines in the state of Missouri.
5. Whenever a small telephone company seeks to implement any new individual or joint rate, rental or charge, or any individual or joint regulation or practice affecting any rate, rental or charge, it shall file same with the commission and notify its customers of such change at least thirty days in advance of the date on which the new rate, rental, charge, regulation or practice is proposed to become effective. Upon the filing by a small telephone company of any new individual or joint rate, rental or charge, or any new individual or joint regulation or practice affecting any rate, rental or charge, the commission shall have, and it is hereby given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested small telephone company or companies, but upon reasonable notice, to enter upon a hearing concerning the propriety of such rate, rental, charge, regulation or practice; and pending such hearing and the decision thereon the commission, upon filing with such schedule and delivering to the small telephone company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, rental, charge, regulation or practice, but not for a longer period than one hundred fifty days beyond the time when such rate, rental, charge, regulation or practice would otherwise go into effect. If the commission fails to issue its decision within the one-hundred-fifty-day suspension period, the investigation shall be closed and the rate, rental, charge, regulation or practice shall be considered approved for all purposes.
6. At any hearing involving a rate increased or a rate sought to be increased after the passage of this law, the burden of proof to show that the increased rate or proposed increased rate is just and reasonable shall be upon the telecommunications company, and the commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.
392.245. 1. The commission shall have the authority to ensure that rates, charges, tolls and rentals for telecommunications services are just, reasonable and lawful by employing price cap regulation. Any rate, charge, toll, or rental that does not exceed the maximum allowable price under this section shall be deemed to be just, reasonable, and lawful. As used in this chapter, "price cap regulation" shall mean establishment of maximum allowable prices for telecommunications services offered by an incumbent local exchange telecommunications company, which maximum allowable prices shall not be subject to increase except as otherwise provided in this section.
2. A large incumbent local exchange telecommunications company shall be subject to regulation under this section upon a determination by the commission that an alternative local exchange telecommunications company has been certified to provide basic local telecommunications service or an interconnected voice over Internet protocol service provider has been registered to provide service under section 392.550, and is providing such service in any part of the large incumbent company's service area. A small incumbent local exchange telecommunications company may elect to be regulated under this section upon providing written notice to the commission if an alternative local exchange telecommunications company has been certified to provide basic local telecommunications service or an interconnected voice over Internet protocol service provider has been registered to provide service under section 392.550, and is providing such service, or if two or more commercial mobile service providers providing wireless two-way voice communications services are providing services, in any part of the small incumbent company's service area, and the incumbent company shall remain subject to regulation under this section after such election.
3. Except as otherwise provided in this section, the maximum allowable prices established for a company under subsection 1 of this section shall be those in effect on December thirty-first of the year preceding the year in which the company is first subject to regulation under this section. Tariffs authorized under subsection 9 of this section shall be phased in as provided under such tariffs as approved by the commission.
4. (1) Except as otherwise provided in subsections 8 and 9 of this section and section 392.248, the maximum allowable prices for exchange access and basic local telecommunications services of a small, incumbent local exchange telecommunications company regulated under this section shall not be changed for a period of twelve months after the date the company is subject to regulation under this section. Except as otherwise provided in subsections 8 and 9 of this section and section 392.248, the maximum allowable prices for exchange access and basic local telecommunications services of a large, incumbent local exchange telecommunications company regulated under this section shall not be changed prior to January 1, 2000. Thereafter, the maximum allowable prices for exchange access and basic local telecommunications services of an incumbent local exchange telecommunications company shall be annually changed by [one of] the following methods:
(a) By the change in the [telephone service component of the] Consumer Price Index [(CPI-TS)] (CPI), as published by the United States Department of Commerce or its successor agency for the preceding twelve months; provided however, that if such a change in the [CPI-TS] (CPI) for the preceding twelve months is negative, upon request by the company and approval by the commission for good cause shown, the commission may waive any requirement to reduce prices of exchange access and basic local telecommunications service and those existing prices shall remain the maximum allowable prices for purposes of this section until the next annual change. All revenues that are attributable to a [CPI-TS] (CPI) reduction waiver shall be used for the purposes approved by the commission to benefit local exchange ratepayers in a specific exchange or exchanges, including but not limited to expanded local calling scopes; [or]
(b) [Upon request by the company and approval by the commission, by the change in the Gross Domestic Product Price Index (GDP-PI), as published by the United States Department of Commerce or its successor agency for the preceding twelve months, minus the productivity offset established for telecommunications service by the Federal Communications Commission and adjusted for exogenous factors.] Notwithstanding the foregoing, upon a finding that a company that is subject to price-cap regulation has telecommunications services in one or more exchanges classified as competitive, the company may increase the maximum allowable rate for basic local telecommunications service in noncompetitive exchanges at a level not to exceed the statewide average for basic local telecommunications service in the competitively classified exchanges of that company, provided that any annual increase in rates for residential basic local telecommunications service shall not exceed two dollars per line per month for a period of four years.
(2) The commission shall approve a change to a maximum allowable price or make a determination regarding a request for waiver filed pursuant to [paragraph (a) of] subdivision (1) of this subsection within forty-five days of filing of notice by the local exchange telecommunications company. An incumbent local exchange telecommunications company shall file a tariff to reduce the rates charged for any service in any case in which the current rate exceeds the maximum allowable price established under this subsection.
(3) [As a part of its request under paragraph (b) of subdivision (1) of this subsection, a company may seek commission approval to use a different productivity offset in lieu of the productivity offset established by the Federal Communications Commission. An adjustment under paragraph (b) of subdivision (1) of this subsection shall not be implemented if the commission determines, after notice and hearing to be conducted within forty-five days of the filing of the notice of a change to a maximum allowable price, that it is not in the public interest. In making such a determination, the commission shall consider the relationship of the proposed price of service to its cost and the impact of competition on the incumbent local exchange telecommunications company's intrastate revenues from regulated telecommunications services. Any adjustments for exogenous factors shall be allocated to the maximum allowable prices for exchange access and basic local telecommunications service in the same percentage as the revenues for such company bears to such company's total revenues from basic local, nonbasic and exchange access services for the preceding twelve months.
(4) For the purposes of this section, the term "exogenous factor" shall mean a cumulative impact on a local exchange telecommunications company's intrastate regulated revenue requirement of more than three percent, which is attributable to federal, state or local government laws, regulations or policies which change the revenue, expense or investment of the company, and the term "exogenous factor" shall not include the effect of competition on the revenue, expense or investment of the company nor shall the term include any assessment made under section 392.248.
(5)] An incumbent local exchange telecommunications company may change the rates for its services, consistent with the provisions of subsections 2 through 5 of section 392.200, but not to exceed the maximum allowable prices, by filing tariffs which shall be approved by the commission within [thirty] ten days, provided that any such rate is not in excess of the maximum allowable price established for such service under this section.
5. Each telecommunications service offered to business customers, other than exchange access service, of an incumbent local exchange telecommunications company regulated under this section shall be classified as competitive in any exchange in which at least two nonaffiliated entities in addition to the incumbent local exchange company are providing basic local telecommunications service to business or residential customers within the exchange. Each telecommunications service offered to residential customers, other than exchange access service, of an incumbent local exchange telecommunications company regulated under this section shall be classified as competitive in an exchange in which at least two nonaffiliated entities in addition to the incumbent local exchange company are providing basic local telecommunications service to residential customers within the exchange. For purposes of this subsection and not for purposes of defining the commission's jurisdiction:
(1) Commercial mobile service providers as identified in 47 U.S.C. Section 332(d)(1) and 47 C.F.R. Parts 22 or 24 shall be considered as entities providing basic local telecommunications service, provided that only one such nonaffiliated provider shall be considered as providing basic local telecommunications service within an exchange. If the commercial mobile service provider does not designate customers by business or residential class, such provider will be deemed to be providing service to both business and residential customers;
(2) Any entity providing local voice service in whole or in part over telecommunications facilities or other facilities in which it or one of its affiliates have an ownership interest shall be considered as [a] providing basic local telecommunications service [provider] regardless of whether such entity is subject to regulation by the commission, including any interconnected voice over Internet protocol service provider registered under section 392.550. A provider of local voice service that requires the use of a third party, unaffiliated broadband network or dial-up Internet network for the origination of local voice service shall not be considered a basic local telecommunications service provider. For purposes of this subsection only, a "broadband network" is defined as a connection that delivers services at speeds exceeding two hundred kilobits per second in at least one direction;
(3) Regardless of the technology utilized, local voice service shall mean two-way voice service capable of receiving calls from a provider of basic local telecommunications services as defined by subdivision (4) of section 386.020, RSMo;
(4) Telecommunications companies only offering prepaid telecommunications service or only reselling telecommunications service as defined in subdivision [(46)] (54) of section 386.020, RSMo, in the exchange being considered for competitive classification shall not be considered entities providing basic telecommunications service; [and]
(5) "Prepaid telecommunications service" shall mean a local service for which payment is made in advance that excludes access to operator assistance and long distance service;
(6) Upon request of an incumbent local exchange telecommunications company seeking competitive classification of [business service or residential service, or both] its services under this subsection, the commission shall, within thirty days of the request, determine whether [the requisite number of entities are] there are at least two entities providing basic local telecommunications service [to business or residential customers, or both,] in an exchange and if so shall approve tariffs designating all such [business or residential] services other than exchange access service, as competitive within such exchange. Notwithstanding any other provision of this subsection, any incumbent local exchange company may petition the commission for competitive classification within an exchange based on competition from any entity providing local voice service in whole or in part by using its own telecommunications facilities or other facilities or the telecommunications facilities or other facilities of a third party, including those of the incumbent local exchange company as well as providers that rely on an unaffiliated third-party Internet service. The commission shall approve such petition within sixty days [unless it finds that such competitive classification is contrary to the public interest]. The commission shall maintain records of [regulated] certified and registered providers of local voice service, including those [regulated] providers who provide local voice service over their own facilities, or through the use of facilities of another provider of local voice service. In reviewing an incumbent local exchange telephone company's request for competitive status in an exchange, the commission shall consider their own records concerning ownership of facilities and shall make all inquiries as are necessary and appropriate from [regulated] certified and registered providers of local voice service to determine the extent and presence of [regulated] local voice providers in an exchange. If the services of an incumbent local exchange telecommunications company are classified as competitive under this subsection, the local exchange telecommunications company may thereafter adjust its rates for such competitive services upward or downward as it determines appropriate in its competitive environment, upon filing tariffs which shall become effective within the time lines identified in section 392.500. The commission [shall] may, [at least] not more than once every two years[, or where an incumbent local exchange telecommunications company increases rates for basic local telecommunications services in an exchange classified as competitive,] review those exchanges where an incumbent local exchange carrier's services have been classified as competitive, to determine if the conditions of this subsection for competitive classification continue to exist in the exchange and if the commission determines, after hearing, that such conditions no longer exist for the incumbent local exchange telecommunications company in such exchange, it shall reimpose upon the incumbent local exchange telecommunications company, in such exchange, the provisions of paragraph (c) of subdivision (2) of subsection 4 of section 392.200 and the new maximum allowable prices for basic local telecommunications service in such exchange shall be established by the provisions of [subsections] subsection 4 [and 11] of this section[, and, in any such case, the maximum allowable prices established for the telecommunications services of such incumbent local exchange telecommunications company shall reflect all index adjustments which were or could have been filed from all preceding years since the company's maximum allowable prices were first adjusted pursuant to subsection 4 or 11 of this section.] ;
(7) Upon a finding that fifty-five percent or more of an incumbent local exchange telecommunications company's total subscriber access lines are in exchanges where such company's services have been declared competitive, the incumbent local exchange telecommunications company shall be deemed competitive and shall no longer be subject to price-cap regulation, except that rates charged for basic local telecommunications service in exchanges that were noncompetitive immediately prior to this finding can be increased to a rate that is no higher than the statewide average rate for basic local telecommunications service in the incumbent local exchange company's competitively classified exchanges for a period of four years. During the four year period, any annual increase in rates for residential basic local telecommunications service shall not exceed two dollars per line per month. Rates charged for exchange access service by an incumbent local exchange telecommunications company deemed competitive shall not exceed the rates charged at the time the company was deemed competitive;
(8) An incumbent local exchange telecommunications company deemed competitive under this section and all alternative local exchange telecommunications companies shall not be required to comply with customer billing rules, network engineering and maintenance rules, and rules requiring the recording and submitting of service objectives or surveillance levels established by the commission, but shall be subject to commission authority to hear and resolve customer complaints to the extent the customer complaint is based on Truth-in-Billing regulations established by the Federal Communications Commission, or network engineering and maintenance standards established within the National Electric Safety Code. In addition, the commission shall continue to have authority to hear and resolve customer complaints to the extent such complaints are based on a failure to comply with the provisions of applicable tariffs, or a failure to comply with the rules of the commission other than those rules related to customer billing, network engineering and maintenance, and service objectives and surveillance levels or a failure to provide service in a manner that is safe, adequate, usual and customary in the telecommunications industry;
(9) The commission may reimpose its customer billing rules, network engineering and maintenance rules, and rules requiring the recording and submitting of service objectives or surveillance levels, as applicable, on an incumbent local exchange telecommunications company that has been deemed competitive under this section, only upon a finding that the incumbent local exchange telecommunications company has engaged in a pattern or practice of inadequate service in these subject areas and that the reimposition of such rules is necessary to ensure the protection of consumer rights and/or the public safety. Prior to formal notice and hearing, the commission shall notify the incumbent local exchange telecommunications company of any deficiencies and provide such company an opportunity to remedy such deficiencies in a reasonable amount of time, but not less than sixty days. Should the incumbent local exchange telecommunications company remedy such deficiencies within a reasonable amount of time, the commission shall not reimpose the applicable customer billing rules, network engineering and maintenance rules, and rules requiring the recording and submitting of service objectives or surveillance levels. Should the incumbent local exchange telecommunications company fail to remedy such deficiencies, the commission shall reimpose the applicable customer billing rules, network engineering and maintenance rules, and rules requiring the recording and submitting of service objectives or surveillance levels, if it finds that:
(a) The reimposition of such rules is necessary for the protection of the majority of the incumbent local exchange telecommunications company's customers or for the public safety;
(b) No alternative or less burdensome action is adequate to protect the majority of the incumbent local exchange telecommunications company's customers; and
(c) Competitive market forces have been and will continue to be insufficient to protect the majority of the incumbent local exchange telecommunications company's customers;
(10) Should the commission determine that an emergency exists that impacts public safety or is essential for the protection of a majority of customers of all local exchange telecommunications companies operating in this state, the commission may, on an emergency basis, impose its customer billing rules, network engineering and maintenance rules, and rules requiring the recording and submitting of service objectives or surveillance levels, as applicable, on all local exchange telecommunications companies on a uniform and non-discriminatory basis through the promulgation of emergency rules pursuant to section 536.025, RSMo. The commission shall only promulgate such emergency rules after determining that:
(a) The rules are essential for the protection of a majority of customers of local exchange telecommunications companies operating in this state;
(b) No alternative or less burdensome mechanism will suffice to protect the majority of customers of local exchange telecommunications companies operating in this state; and
(c) Competitive market forces have been and will continue to be insufficient to protect the majority of customers of local exchange telecommunications companies operating in this state.
Notwithstanding the provisions of subsection 7 of section 536.025, RSMo, emergency rules promulgated by the commission pursuant to this subdivision shall remain in effect until the legislature concludes its next regular legislative session following the imposition of any such rules.
6. Nothing in this section shall be interpreted to alter the commission's jurisdiction over quality and conditions of [service] noncompetitive telecommunications services or to relieve noncompetitive telecommunications companies from the obligation to comply with commission rules relating to minimum basic local and interexchange telecommunications service.
7. A company regulated under this section shall not be subject to regulation under subsection 1 of section 392.240.
8. An incumbent local exchange telecommunications company regulated under this section may reduce intrastate access rates, including carrier common line charges, subject to the provisions of subsection 9 of this section, to a level not to exceed one hundred fifty percent of the company's interstate rates for similar access services in effect as of December thirty-first of the year preceding the year in which the company [is] first [subject to regulation under this section] exercises its option to rebalance rates under this subsection. [Absent commission action under subsection 10 of this section, an incumbent local exchange telecommunications company regulated under this section shall have four years from the date the company becomes subject to regulation under this section to make the adjustments authorized under this subsection and subsection 9 of this section.] Nothing in this subsection shall preclude an incumbent local exchange telecommunications company from establishing its intrastate access rates at a level lower than one hundred fifty percent of the company's interstate rates for similar access services in effect as of December thirty-first of the year preceding the year in which the company [is] first [subject to regulation under this section] exercises its option to rebalance rates under this subsection.
9. Other provisions of this section to the contrary notwithstanding [and no earlier than January 1, 1997], the commission shall allow an incumbent local exchange telecommunications company regulated under this section which reduces its intrastate access service rates pursuant to subsection 8 of this section to offset the annual revenue loss resulting from [the first year's] its access service rate reduction by increasing each year its monthly maximum allowable prices applicable to basic local exchange telecommunications services by an amount not to exceed one dollar fifty cents. A large incumbent local exchange telecommunications company shall not increase its monthly rates applicable to basic local telecommunications service under this subsection unless it also reduces its rates for intraLATA interexchange telecommunications services by at least ten percent in the year it first exercises its option to rebalance rates under subsection 8 of this section. [No later than one year after the date the incumbent local exchange telecommunications company becomes subject to regulation under this section, the commission shall complete an investigation of the cost justification for the reduction of intrastate access rates and the increase of maximum allowable prices for basic local telecommunications service. If the commission determines that the company's monthly maximum allowable average statewide prices for basic local telecommunications service after adjustment pursuant to this subsection will be equal to or less than the long-run incremental cost, as defined in section 386.020, RSMo, of providing basic local telecommunications service and that the company's intrastate access rates after adjustment pursuant to this subsection will exceed the long-run incremental cost, as defined in section 386.020, RSMo, of providing intrastate access services, the commission shall allow the company to offset the revenue loss resulting from the remaining three-quarters of the total needed to bring that company's intrastate access rates to one hundred fifty percent of the interstate level by increasing the company's monthly maximum allowable prices applicable to basic local telecommunications service by an amount not to exceed one dollar fifty cents on each of the next three anniversary dates thereafter; otherwise, the commission shall order the reduction of intrastate access rates and the increase of monthly maximum allowable prices for basic local telecommunications services to be terminated at the levels the commission determines to be cost-justified.] The total annual revenue increase due to the increase to the monthly maximum allowable prices for basic local telecommunications service shall not exceed the total annual revenue loss resulting from the reduction to intrastate access service rates.
10. Any telecommunications company whose intrastate access costs are reduced pursuant to subsections 8 and 9 of this section shall decrease its rates for intrastate toll telecommunications service to flow through such reduced costs to its customers. The commission may permit a telecommunications company to defer a rate reduction required by this subdivision until such reductions, on a cumulative basis, reach a level that is practical to flow through to its customers.
11. [The maximum allowable prices for nonbasic telecommunications services of a small, incumbent local exchange telecommunications company regulated under this section shall not be changed until twelve months after the date the company is subject to regulation under this section or, on an exchange-by-exchange basis, until an alternative local exchange telecommunications company is certified and providing basic local telecommunications service in such exchange, whichever is earlier. The maximum allowable prices for nonbasic telecommunications services of a large, incumbent local exchange telecommunications company regulated under this section shall not be changed until January 1, 1999, or on an exchange-by-exchange basis, until an alternative local exchange telecommunications company is certified and providing basic local telecommunications service in such exchange, whichever is earlier. Thereafter, the maximum allowable prices for nonbasic telecommunications services of an incumbent local exchange telecommunications company may be annually increased by up to five percent for each of the following twelve-month periods upon providing notice to the commission and filing tariffs establishing the rates for such services in such exchanges at such maximum allowable prices. This subsection shall not preclude an incumbent local exchange telecommunications company from proposing new telecommunications services and establishing prices for such new services. An incumbent local exchange telecommunications company may change the rates for its services, consistent with the provisions of subsections 2 through 5 of section 392.200, but not to exceed the maximum allowable prices, by filing tariffs which shall be approved by the commission within thirty days, provided that any such rate is not in excess of the maximum allowable price established for such service under this section.] All nonbasic telecommunications services of an incumbent local exchange telecommunications company that is subject to price-cap regulation shall be exempt from limitations on maximum allowable prices.
12. The commission shall permit an incumbent local exchange telecommunications company regulated under this section to determine and set its own depreciation rates which shall be used for all intrastate regulatory purposes. Provided, however, that such a determination is not binding on the commission in determining eligibility for or reimbursement under the universal service fund established under section 392.248.
13. Prior to January 1, 2006, the commission shall determine the weighted, statewide average rate of nonwireless basic local telecommunications services as of August 28, 2005. The commission shall likewise determine the weighted, statewide average rate of nonwireless basic local telecommunications services two years and five years after August 28, 2005. The commission shall report its findings to the general assembly by January 30, 2008, and provide a second study by January 30, 2011. If the commission finds that the weighted, statewide average rate of nonwireless basic local telecommunications service in 2008 or 2011 is greater than the weighted, statewide average rate of nonwireless basic local telecommunications service in 2006 multiplied by one plus the percentage increase in the Consumer Price Index for all goods and services for the study periods, the commission shall recommend to the general assembly such changes in state law as the commission deems appropriate to achieve the purposes set forth in section 392.185. In determining the weighted, statewide average rate of nonwireless basic local telecommunications service, the commission shall exclude rate increases to nonwireless basic telecommunications service permitted under subsections 8 and 9 of this section and section 392.240 or exogenous costs incurred by the providers of nonwireless basic local telecommunications service.
392.361. 1. As an alternative to the provisions of section 392.245, a telecommunications company, including price-cap regulated companies, may file with the commission a petition to be classified as a competitive telecommunications company or a transitionally competitive telecommunications company under this section, or to have services classified as competitive or transitionally competitive telecommunications services under this section. [The office of public counsel may initiate classification proceedings by petition. The commission may initiate classification proceedings on its own motion. The commission may require all telecommunications companies potentially affected by a classification proceeding to appear as parties for a determination of their interests.]
2. The commission [or a petitioner] shall serve by regular mail a copy of any petition or motion filed under subsection l of this section on all telecommunications companies that have applied for authority to provide or are authorized to provide intrastate telecommunications service within this state. In response to a petition filed [or a proceeding instituted upon its own motion], the commission shall afford all interested persons reasonable notice and an opportunity to be heard to determine whether a telecommunications company or service may be subject to sufficient competition to justify a lesser degree of regulation. In making this determination, the commission shall, within nine months of the filing of the petition [or initiation of a proceeding] under this section, consider all relevant factors and shall issue written findings of fact delineating all factors considered. [The commission may, for good cause, extend the time for determination for an additional three months. A second extension period not exceeding three months may, for good cause, be granted by the commission.] In any hearing involving the same telecommunications service or company, the commission may, if appropriate and if no new finding of fact is required, rely on a finding of fact made in a prior hearing.
3. The commission may classify a telecommunications company as a competitive telecommunications company [only] upon a finding that [all] a majority of its telecommunications services offered by such company are competitive telecommunications services.
4. If, after following the procedures required under subsection 2 of this section, the commission determines that a telecommunications service is subject to sufficient competition to justify a lesser degree of regulation and that such lesser regulation is consistent with the protection of ratepayers and promotes the public interest it may, by order, classify:
(1) The subject telecommunications service offered by a telecommunications company as a competitive telecommunications service;
(2) The subject telecommunications service offered by a noncompetitive or transitionally competitive telecommunications company as a transitionally competitive telecommunications service;
(3) The subject telecommunications company, subject to the condition set forth in subsection 3 of this section, as a competitive telecommunications company; or
(4) The subject interexchange telecommunications company as a transitionally competitive telecommunications company.
5. By its order classifying a telecommunications service as competitive or transitionally competitive or a telecommunications company as competitive or transitionally competitive, the commission may, with respect to that service or company and with respect to one or more providers of that service, suspend or modify the application of its rules or the application of any statutory provision contained in sections 392.200 to 392.340, except as provided in section 392.390. [The commission may suspend different requirements for different telecommunications companies, if such different treatment is reasonable and not detrimental to the public interest.]
6. If the commission suspends the application of a statutory requirement under this section, it may require a telecommunications company to comply with any conditions reasonably made necessary to protect the public interest by the suspension of the statutory requirement. The exchange access rates of an incumbent local exchange company that is declared a competitive telecommunications company shall not exceed the rates that were charged at the time the company became a competitive telecommunications company. The exchange access rates of an alternative local exchange company shall not exceed the exchange access rates of the incumbent local exchange company against whom the alternative local exchange company is competing.
7. [If necessary to protect the public interest, the commission may at any time, by order, after hearing upon its own motion or petition filed by the public counsel, a telecommunications company, or any person or persons authorized to file a complaint as to the reasonableness of any rates or charges under section 386.390, RSMo, reimpose or modify the statutory provisions suspended under subsection 5 of this section upon finding that the company or service is no longer competitive or transitionally competitive or that the lesser regulation previously authorized is no longer in the public interest or no longer consistent with the provisions and purposes of this chapter.
8.] A telecommunications company may file a petition to have a telecommunications service it then offers classified as competitive or transitionally competitive under this section no more than once every two years, unless exceptional circumstances are demonstrated. A telecommunications company shall consolidate in a single petition all telecommunications services the company then offers which it seeks to classify as competitive or transitionally competitive within two years from the date such petition is filed, unless the commission determines, for good cause shown, that a waiver of this provision should be granted.
8. Notwithstanding the foregoing or the provisions of section 392.245, intrastate operator and directory services, including directory assistance services, shall be deemed competitive on a statewide basis for all local exchange telecommunications companies.
392.370. [l.] After the effective date of an order of the commission which finds, pursuant to section 392.361, that a telecommunications service is sufficiently competitive to justify a lesser degree of regulation, the same, substitutable, or equivalent service offered by a transitionally competitive or noncompetitive telecommunications company shall be classified as transitionally competitive [pursuant to the procedure set out in subsection 2 of section 392.490], if the telecommunications service granted a lesser degree of regulation is authorized to be provided anywhere within the certificated or service area of the transitionally competitive or noncompetitive telecommunications company. Any transitionally competitive telecommunications service offered by a noncompetitive local exchange telecommunications company shall be classified as a competitive telecommunications service no later than three years after the effective date of a tariff for such service bearing the classification "transitionally competitive". Any transitionally competitive service offered by a transitionally competitive interexchange telecommunications company shall be classified as a competitive telecommunications service no later than two years after the effective date of a tariff for such service bearing the classification "transitionally competitive". The exchange access rates of an incumbent local exchange company that is declared a competitive telecommunications company shall not exceed the rates that were charged at the time the company became a competitive telecommunications company. The exchange access rates of an alternative local exchange company shall not exceed the exchange access rates of the incumbent local exchange company against whom the alternative local exchange company is competing.
[2. The commission may extend or reinstate a transitionally competitive service classification applicable to any service provided by a noncompetitive local exchange telecommunications company for two periods in addition to the initial three-year period, each additional period not to exceed three years, after notice and hearing, upon the issuance of an order finding that a competitive classification for such service is not in the public interest or not consistent with the purposes and policies of this chapter. The commission may extend or reinstate a transitionally competitive service classification applicable to any service provided by a transitionally competitive interexchange telecommunications company for two periods in addition to the initial two-year period, each additional period not to exceed two years, after notice and hearing, upon the issuance of an order finding that a competitive classification for such service is not in the public interest or not consistent with the purposes and policies of this chapter. The commission, on its own motion, or public counsel or any telecommunications company, by complaint, may initiate a proceeding in which the commission shall consider whether to extend or reinstate a transitionally competitive service classification under this section. In any proceeding initiated under this subsection by the commission or the public counsel, the burden to prove that such service is a competitive telecommunications service shall be on the noncompetitive or transitionally competitive telecommunications company providing such service. The commission may consolidate different proceedings under this section involving different transitionally competitive telecommunications services for purposes of hearing.
3. The commission may issue an order, effective at or after such time as the commission may no longer extend or reinstate a transitionally competitive service classification, that reclassifies a competitive or transitionally competitive telecommunications service as a noncompetitive telecommunications service if the commission, after notice and hearing upon its own motion or petition filed by the public counsel, a telecommunications company, or any person or persons authorized to file a complaint as to the reasonableness of any rates or charges under section 386.390, RSMo, determines that a competitive classification for such service is not in the public interest or not consistent with the provisions and purposes of this chapter. Should the commission issue an order under this subsection reclassifying a competitive or transitionally competitive telecommunications service as noncompetitive it shall thereafter apply equal regulation, with respect to such service, to all telecommunications companies providing the same equivalent or substitutable telecommunications service.
4. No tariff which proposes a new rate, rental, or charge or new regulation or practice affecting any rate, rental, or charge for a transitionally competitive telecommunications service which is filed by a noncompetitive local exchange telecommunications company, or a noncompetitive or transitionally competitive interexchange telecommunications company, shall be effective unless and until the noncompetitive local exchange telecommunications company, or the noncompetitive or transitionally competitive interexchange telecommunications company, offering or providing, or seeking to offer or provide, such proposed transitionally competitive telecommunications service prepares and files a study of the cost of providing such service. Such study may in the commission's discretion be given proprietary treatment at the request of such company.
5. Except as provided in subsection 6 of this section, the provisions of sections 392.220 and 392.230 shall apply to any tariff filed for the offer or provision of a transitionally competitive telecommunications service.
6. So long as a transitionally competitive interexchange telecommunications company charges the same price per minute or other unit of measure for the same, equivalent, or substitutable interexchange telecommunications service provided over the same or equivalent distance between any two points, the provisions of subsections 4 and 5 of this section shall not apply to such transitionally competitive interexchange telecommunications company for any proposed decrease in rates for a transitionally competitive interexchange telecommunications service. Such proposed decrease shall instead be treated as a competitive service pursuant to section 392.500.
7. A transitionally competitive telecommunications service which becomes a competitive telecommunications service pursuant to this section or section 392.361 shall no longer be subject to the provisions of subsections 4, 5, and 6 of this section and any increase or decrease in rates or charges applicable to such competitive service shall be treated pursuant to section 392.500.]
392.420. The commission is authorized, in connection with the issuance or modification of a certificate of interexchange or local exchange service authority or the modification of a certificate of public convenience and necessity for interexchange or local exchange telecommunications service, to entertain a petition [under section 392.361 and in accordance with the procedures set out in section 392.361,] to suspend or modify the application of its rules or the application of any statutory provision contained in sections 392.200 to 392.340 if such waiver or modification is otherwise consistent with the other provisions of sections 392.361 to 392.520 and the purposes of this chapter. In the case of an application for certificate of service authority to provide basic local telecommunications service filed by an alternative local exchange telecommunications company, and for all existing alternative local exchange telecommunications companies, the commission shall waive, at a minimum, the application and enforcement of its quality of service and billing standards rules, as well as the provisions of subsection 2 of section 392.210, subsection 1 of section 392.240, and sections 392.270, 392.280, 392.290, 392.300, 392.310, 392.320, 392.330, and 392.340. Notwithstanding any other provision of law in this chapter and chapter 386, RSMo, where an alternative local exchange telecommunications company is authorized to provide local exchange telecommunications services in an incumbent local exchange telecommunications company's authorized service area, the incumbent local exchange telecommunications company may opt into all or some of the above-listed statutory and commission rule waivers by filing a notice of election with the commission that specifies which waivers are elected. In addition, where an interconnected voice over Internet protocol service provider is registered to provide service in an incumbent local exchange telecommunications company's authorized service area under section 392.550, the incumbent local exchange telecommunications company may opt into all or some of the above-listed statutory and commission rule waivers by filing a notice of election with the commission that specifies which waivers are elected. The commission may reimpose its quality of service and billing standards rules, as applicable, on an incumbent local exchange telecommunications company but not on a company granted competitive status under subdivision (7) of subsection 5 of section 392.245 in an exchange where there is no alternative local exchange telecommunications company or interconnected voice over Internet protocol service provider that is certificated or registered to provide local voice service only upon a finding, following formal notice and hearing, that the incumbent local exchange telecommunications company has engaged in a pattern or practice of inadequate service. Prior to formal notice and hearing, the commission shall notify the incumbent local exchange telecommunications company of any deficiencies and provide such company an opportunity to remedy such deficiencies in a reasonable amount of time, but not less than sixty days. Should the incumbent local exchange telecommunications company remedy such deficiencies within a reasonable amount of time, the commission shall not reimpose its quality of service or billing standards on such company.
392.450. 1. The commission shall approve an application for a certificate of local exchange service authority to provide basic local telecommunications service or for the resale of basic local telecommunications service only upon a showing by the applicant, and a finding by the commission, after notice and hearing that the applicant has complied with the certification process established pursuant to section 392.455.
2. In addition, the commission shall adopt such rules, consistent with section 253(b) of the federal Telecommunications Act of 1996 to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. Such rules, at a minimum, shall require that all applicants seeking a certificate to provide basic local telecommunications services under this section:
(1) File and maintain tariffs with the commission in the same manner and form as the commission requires of the incumbent local exchange telecommunications company with which the applicant seeks to compete; and
(2) Meet the minimum service standards[, including quality of service and billing standards,] as the commission requires of the incumbent local exchange telecommunications company with which the applicant seeks to compete.
3. An alternative local exchange telecommunications company which possesses a certificate of service authority to provide basic local telecommunications service as of August 28, 2008, in some but not all exchanges of the state may request the commission to modify its existing certificate to include some or all of the remaining exchanges in the state. The commission shall grant such request within thirty days of its filing as long as the alternative local exchange telecommunications company is in good standing, in all respects, with all applicable commission rules and requirements.
4. Nothing in this chapter or in chapter 386, RSMo, is intended to alter the rights and obligations arising under federal law, including the interconnection and unbundling provisions of 47 U.S.C. Sections 251 and 252, irrespective of the type of technology being used by the requesting local exchange telecommunications company and whether the local exchange telecommunications company is providing telecommunications service or interconnected voice over Internet protocol service, as those terms are defined in chapter 386, RSMo, and the jurisdiction and authority of the commission to mediate and arbitrate disputes arising under said federal law provisions shall remain unaffected.
392.451. [1. Notwithstanding any provisions of this act to the contrary, and consistent with section 253(f) of the federal Telecommunications Act of 1996, the commission shall approve an application for a certificate of local exchange service authority to provide basic local telecommunications service or for the resale of basic local telecommunications service in an area that is served by a small incumbent local exchange telecommunications company only upon a showing by the applicant, and a finding by the commission, after notice and hearing, that:
(1) The applicant shall, throughout the service area of the incumbent local exchange telecommunication company, offer all telecommunications services which the commission has determined are essential for purposes of qualifying for state universal service fund support; and
(2) The applicant shall advertise the availability of such essential services and the charges therefor using media of general distribution.
2. In addition, the commission shall adopt such rules, consistent with section 253(b) of the federal Telecommunications Act of 1996 to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. Such rules, at a minimum, shall require that all applicants seeking a certificate to provide basic local telecommunications services under this section:
(1) File and maintain tariffs with the commission in the same manner and form as the commission requires of the incumbent local exchange telecommunications company with which the applicant seeks to compete;
(2) Meet the minimum service standards, including quality of service and billing standards, as the commission requires of the incumbent local exchange telecommunications company with which the applicant seeks to compete;
(3) Make such reports to and other information filings with the commission as is required of the incumbent local exchange telecommunications company with which the applicant seeks to compete; and
(4) Comply with all of the same rules and regulations as the commission may impose on the incumbent local exchange telecommunications company with which the applicant seeks to compete.
3.] The state of Missouri hereby adopts and incorporates in total the provisions of section 251(f)(1) of the federal Telecommunications Act of 1996 providing exemption for certain rural telephone companies.
392.480. [1.] Except as provided in section 392.520, all telecommunications services offered or provided by telecommunications companies shall be offered under tariff and classified as either competitive, transitionally competitive, or noncompetitive telecommunications services, subject to proper certification and other applicable provisions of this chapter. Any tariff filed with the commission shall indicate whether the telecommunications service to be offered or provided is competitive, transitionally competitive, or noncompetitive.
[2. Subject to the provisions of subsection 4 of section 392.220, an offering or the provision of a telecommunications service shall be classified as competitive only if, and only to the extent that, the commission has issued an order to that effect pursuant to section 392.361 or pursuant to its findings issued in an order granting or modifying a certificate of authority or certificate of public convenience and necessity pursuant to section 392.410 or if, and only to the extent that, a transitionally competitive telecommunications service has become a competitive telecommunications service pursuant to section 392.370. Subject to the provisions of subsection 4 of section 392.220, an offering or the provision of a telecommunications service shall be classified as transitionally competitive only if, and only to the extent that, the commission has issued an order to that effect pursuant to section 392.361 or pursuant to its findings issued in an order granting or modifying a certificate of authority or certificate of public convenience and necessity pursuant to section 392.410 or if, and only to the extent that, a telecommunications service has become a transitionally competitive telecommunications service pursuant to subsection 1 of section 392.370 and subsection 2 of section 392.490. All telecommunications services not properly classified as competitive or transitionally competitive shall be classified as noncompetitive telecommunications service.]
392.510. 1. Telecommunications companies may file proposed tariffs for any competitive or transitionally competitive telecommunications service, which includes and specifically describes a range, or band, setting forth a maximum and minimum rate within which range a change in rates or charges for such telecommunications service could be made without prior notice or prior commission approval.
2. The commission may approve such a proposed tariff for a transitionally competitive service only if a noncompetitive or transitionally competitive telecommunications company demonstrates, and the commission finds, that any and all rates or charges within the band or range, are consistent with the public interest and the provisions and purposes of this chapter. To the extent any proposed band or range encompasses rates or charges which are not consistent with the public interest and the provisions and purposes of this chapter, the commission shall have the power, upon notice and after hearing, to modify the level, scope or limits of such band or range, as necessary, to ensure that rates or charges resulting therefrom are consistent with the public interest and the provisions and purposes of this chapter.
3. The provisions of sections 392.220, 392.230, [subsections 4 and 5 of section 392.370,] and [section] 392.500 shall not apply to any rate increase or decrease within the band or range authorized pursuant to this section. A telecommunications company shall file written notice of the rate change and its effective date with the commission within ten days after the effective date of any increase or decrease authorized pursuant to this section.
4. Any tariffs that have been approved by the commission prior to September 28, 1987, which establish a range or band of rates within which range or band of rates a change in rates or charges for such telecommunications service could be made without prior notice or prior commission approval shall be deemed approved by the commission. The provisions of sections 392.220, 392.230, [subsections 4 and 5 of section 392.370,] and [section] 392.500 shall not apply to any rate increase or decrease within such band or range.
392.520. 1. The commission shall have jurisdiction over the provision of private shared tenant services and customer owned coin telephone telecommunications services, but shall subject such services to the minimum regulation permitted by this chapter for competitive telecommunications services. The commission shall exempt the provision of private shared and customer owned coin telephone telecommunications services from the tariff filing requirements of sections 392.220, 392.230, [subsections 4 and 5 of section 392.370,] and [section] 392.500 and may exempt the provision of such telecommunications services from the provisions of subdivisions (1) and (3) of section 392.390 and from the provisions of section 386.370, RSMo.
2. The commission shall establish the rates or charges and terms of connection for access by such services to the local exchange network. In so doing, the commission shall consider the network integrity of the principal provider of local exchange service and the impact of private shared tenant services on the cost to provide, and rates or charges, for local exchange service. If the commission finds, upon notice and investigation, that tenants in private shared tenant services locations have no alternative access to a local exchange telecommunications company providing basic local telecommunications service, it may require the private shared tenant services provider to make alternative facilities available on reasonable terms and conditions at reasonable prices.
392.550. 1. No person, corporation, or other entity shall offer or provide interconnected voice over Internet protocol service as defined in section 386.020, RSMo, without first having obtained a registration from the commission allowing it to do so. Upon application, the commission shall grant a registration to any person, corporation, or other entity to provide interconnected voice over Internet protocol service, subject to the provisions of this section.
2. Interconnected voice over Internet protocol service shall be subject to appropriate exchange access charges to the same extent that telecommunications services are subject to such charges. Until January 1, 2010, this subsection shall not alter intercarrier compensation provisions specifically addressing interconnected voice over Internet protocol service contained in an interconnection agreement approved by the commission pursuant to 47 U.S.C. Section 252 and in existence as of August 28, 2008.
3. The commission shall grant a registration, without a hearing and no later than thirty days following the filing of an application accompanied by an affidavit signed by an officer or general partner of the applicant stating the following:
(1) The location of the principal place of business and the names of the principal executive officers of the applicant;
(2) Each exchange, in whole or in part, of a local exchange company in which the applicant proposes to provide interconnected voice over Internet protocol service;
(3) That the applicant is legally, financially, and technically qualified to provide interconnected voice over Internet protocol services;
(4) That the applicant is ready, willing, able, and will comply with all applicable state and federal laws and regulations imposed upon providers of interconnected voice over Internet protocol services;
(5) That the applicant will charge and collect from its end-user customers on interconnected voice over Internet protocol service, and remit to the appropriate authority, fees and surcharges in the same manner as are charged and collected upon end user customers of local exchange telecommunications service and remitted by local exchange telecommunications companies, including but not necessarily limited to:
(a) Telecommunications programs under section 209.255, RSMo;
(b) Missouri universal service fund under section 392.248;
(c) Local enhanced 911;
(d) Any applicable license tax;
(6) That the applicant will remit the annual assessment imposed by the commission under section 386.370, RSMo;
(7) That the applicant will file, either directly or indirectly through an affiliated competitive local exchange carrier, with the commission an annual report at a time and covering the yearly period fixed by the commission. Verification shall be made by the official holding office at the time of the filing of such report, and if not made upon the knowledge of the person verifying, the same shall set forth in general terms the sources of his or her information and the grounds for his or her belief as to any matters not stated to be verified on his or her knowledge. Such annual report shall be verified by the oath of the president, treasurer, general manager, or receiver, if any, of any of such companies, or by the person required to file the same. The commission shall prescribe the form of such reports and the character of the information to be contained therein; provided, however, that such form and character of the information to be provided shall be limited to:
(a) Information necessary to enable the commission to determine the assessment of the fees and surcharges set forth in subdivisions (5) and (6) of this subsection;
(b) A list of all Missouri exchanges, in whole or in part, in which customers are served; and
(c) The number of customers or lines served in each exchange. The commission shall maintain such information as proprietary and not available to the public; and
(8) That the applicant has established a process for handling inquiries from customers concerning billing issues, service issues, and other consumer-related complaints.
4. Notwithstanding any other provision of law to the contrary, the public service commission shall have the following authority with respect to providers of interconnected voice over Internet protocol service and their provision of such service:
(1) To assess and collect fees to support telecommunications programs under section 209.255, RSMo;
(2) To assess and collect fees to support the Missouri universal service fund under section 392.248;
(3) To assess and collect fees to support the operations of the commission under section 386.370, RSMo;
(4) To assess and collect fees and surcharges under subdivisions (5) and (6) of subsection 3 of this section;
(5) To hear and resolve complaints under sections 386.390 and 386.400, RSMo, regarding the payment or nonpayment for exchange access services regardless of whether a user of exchange access service has been certificated or registered by the commission and regardless of whether the commission otherwise has authority over such user. This subdivision shall not grant the commission authority to review rates for exchange access services that are set under section 392.245; and
(6) To revoke or suspend the registration of any provider of interconnected voice over Internet protocol service who fails to comply with the requirements of this section.
[319.036. Any person owning or leasing agricultural property shall not be required to make notice of excavation required by section 319.022 for excavations on such property, if such excavation is not in the proximity of an underground facility which is marked with an aboveground placard or line marker and is not in the proximity of a utility easement known to that person. For purposes of this section "agricultural property" means any property used to produce an agricultural product as defined by section 348.400, RSMo, or defined as agricultural property by that section.]
[392.490. 1. Except as provided in subsection 2 of this section and in subsection 4 of section 392.220, any telecommunications company which seeks to file a tariff classifying a telecommunications service as competitive or transitionally competitive shall apply to the commission consistent with section 392.361, prior to offering or providing such service as competitive or transitionally competitive, for an order finding that the proposed tariff is proper and consistent with the law. The commission or the telecommunications company applying for commission approval pursuant to this subsection shall provide notice of its application and proposed tariff as provided in section 392.361, and the commission shall afford all interested persons reasonable notice and an opportunity to be heard. No such tariff shall become effective until after the commission issues an order consistent with section 392.361.
2. A noncompetitive or transitionally competitive telecommunications company which seeks to file a tariff classifying a telecommunications service as transitionally competitive by operation of subsection 1 of section 392.370, shall apply to the commission for an order finding that the transitionally competitive classification is consistent with subsection 1 of section 392.370. If such tariff does not otherwise propose a new rate, rental or charge or new regulation or practice affecting any rate, rental or charge, the transitionally competitive classification shall become effective ninety days after filing with the commission and notice to public counsel and all telecommunications companies unless the commission issues an order prior to the effective date of such tariff, after notice and hearing, upon its own motion or upon complaint by the public counsel or a telecommunications company, which finds that the transitionally competitive classification is not consistent with subsection 1 of section 392.370.]
[392.515. Notwithstanding the provisions of sections 392.361, 392.370, 392.380, 392.400, 392.480, 392.490, 392.500, 392.510 and 392.520 to the contrary:
(1) Intrastate operator services provided by alternative operator service companies shall be provided pursuant to rates approved by the commission under the provisions of subsection 2 of section 392.220, provided that proposed rates shall be presumed reasonable by the commission and approved if they are no higher than operator services rates of certificated interexchange telecommunications companies which are not alternative operator services companies;
(2) The commission shall promulgate rules as are supported by evidence as to reasonableness to protect users of intrastate operator services provided by interexchange telecommunications companies at traffic aggregator locations from unjust and unreasonable rates, charges, and practices; and to ensure that such users have the opportunity to make informed choices between and among providers of operator services. All such proposed rules shall be filed with the secretary of state and published in the Missouri Register as provided in chapter 536, RSMo, and a hearing shall be held at which affected parties may present evidence as to the reasonableness of any proposed rule. The provisions of subdivision (6) of section 386.250, RSMo, shall apply to rules promulgated under the authority of this section;
(3) Notwithstanding the provisions of paragraph (d) of subdivision (44) of section 386.020, RSMo, to the contrary, no traffic aggregator shall deny a user of intrastate operator services access to that user's interexchange telecommunications company of choice unless the commission, after hearing, orders otherwise for good cause shown.]
Section B. The repeal and reenactment of sections 319.015, 319.022, 319.024, 319.025, 319.026, 319.030, 319.037, 319.041, 319.045, and 319.050, the enactment of sections 319.027, 319.029, and 319.042, and the repeal of section 319.036 of this act shall become effective on January 1, 2009.
•