To repeal sections 386.020, 386.320, 386.370, 392.180, 392.200, 392.210, 392.220, 392.230, 392.240, 392.370, 392.390, 392.400, 392.410, 392.450, 392.490, 392.500, 392.510 and 392.530, RSMo 1994, relating to the regulation of telecommunications companies, and to enact in lieu thereof twenty-five new sections, relating to the same subject.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI,

AS FOLLOWS:

Section A. Sections 386.020, 386.320, 386.370, 392.180, 392.200, 392.210, 392.220, 392.230, 392.240, 392.370, 392.390, 392.400, 392.410, 392.450, 392.490, 392.500, 392.510 and 392.530, RSMo 1994, are repealed and twenty-five new sections enacted in lieu thereof, to be known as sections 386.020, 386.320, 386.370, 386.900, 386.910, 392.180, 392.200, 392.210, 392.220, 392.230, 392.240, 392.245, 392.246, 392.247, 392.248, 392.370, 392.390, 392.400, 392.410, 392.450, 392.455, 392.490, 392.500, 392.510 and 392.530, to read as follows;

386.020. As used in this chapter, the following words and phrases mean:

(1) "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;

(2) "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;

(3) "Basic local telecommunications service", includes, at a minimum, two-way switched voice service within a local calling scope as determined by the commission and shall include other services as determined by the commission by rule upon periodic review and update, but does not include the offering or provision of basic local telecommunications service at private shared tenant service locations;

(4) "Basic network function", a discrete network function which is useful either as a stand alone function or in combination with other functions and for which costs can be identified;

(5) "Basic network service", a telecommunications service which contains components, features, basic network functions or capabilities and which is defined as a noncompetitive service by the commission, including but not limited to such services as basic local telecommunications service, 911 service, switched access to the local network and access as provided to customer-owned pay telephone providers;

[(4)] (6) "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;

[(5)] (7) "Commission", the "Public Service Commission" hereby created;

[(6)] (8) "Commissioner", one of the members of the commission;

[(7)] (9) "Common carrier" includes all railroad corporations, street railroad corporations, express companies, car companies, sleeping car companies, freight companies, freightline companies, steamboat, power boat, vessel boat and ferry companies, and 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 such agency for public use in the conveyance of persons or property within this state;

[(8)] (10) "Competitive telecommunications company", a telecommunications company which has been classified as such by the commission pursuant to section 392.361, RSMo;

[(9)] (11) "Competitive telecommunications service", a telecommunications service which has been classified as such by the commission pursuant to section 392.361, RSMo, or which has become a competitive telecommunications service pursuant to section 392.370, RSMo;

[(10)] (12) "Corporation" includes a corporation, company, association and joint stock association or company;

(13) "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;

(14) "Effective competition", a market condition for an exchange or telecommunications service component, feature, basic network function or capability; as determined by the commission based on a variety of factors including but not limited:

(a) Whether and to what extent competitors have market power;

(b) Whether and to what extent consumers have access to alternative providers and the extent to which consumers have selected alternative providers as their local exchange carrier;

(c) The competitors' financial resources;

(d) The competitors' name recognition; and

(e) Any other factor determined relevant by the public service commission;

[(11)] (15) "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;

[(12)] (16) "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 or street railroad corporation generating electricity solely for railroad 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 or street railroad purposes or for its own use or the use of its tenants and not for sale to others;

(17) "Electronic publisher", any person, corporation, company, association, joint stock company or association, or partnership which is primarily engaged in the provision of electronic publishing services but which is not a telecommunications company as defined in this chapter;

(18) "Electronic publishing services", the generation, dissemination, provision, publication, or sale by an electronic publisher, by way of network interconnection with a telecommunications company, to any person of any information which the electronic publisher has or has caused to be originated, authored, compiled, collected or edited or in which the electronic publisher has a direct or indirect financial or proprietary interest. Electronic publishing services include, but are not limited to: news; business and financial reports; editorials; electronic information directories; columns; sports reporting; features; advertising; photos or images; archival and research material; legal notices and public records; scientific, education, instructional, technical, professional, trade or other literary material; and any other similar information. Electronic publishing services, however, shall not include any network information, interconnection, access or transmission services and facilities provided by a telecommunications company to an electronic publisher;

[(13)] (19) "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;

[(14)] (20) "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;

[(15)] (21) "Express corporation" includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, engaged in or transacting the business of transporting any freight, merchandise or other property for compensation on the line of any common carrier within this state;

[(16)] (22) "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;

[(17)] (23) "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;

[(18)] (24) "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 under section 70.370, RSMo, shall be a heating company or subject to regulation by the commission;

[(19)] (25) "Interexchange telecommunications company", any company engaged in the provision of interexchange telecommunications service [which company does not also provide basic local telecommunications service];

[(20)] (26) "Interexchange telecommunications service", telecommunications service between points in two or more exchanges;

[(21)] (27) "Line" includes route;

[(22)] (28) "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 telecommunications exchange company" if it has less than one hundred thousand access lines in Missouri;

[(23)] (29) "Local exchange telecommunications service", telecommunications service between points within an exchange;

[(24)] (30) "Municipality" includes a city, village or town;

[(25)] (31) "Noncompetitive telecommunications company", a telecommunications company other than a competitive telecommunications company or a transitionally competitive telecommunications company;

[(26)] (32) "Noncompetitive telecommunications service", a telecommunications service other than a competitive or transitionally competitive telecommunications service;

[(27)] (33) "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;

[(28)] (34) "Operator services contract", any agreement between a traffic aggregator and a certificated interexchange telecommunications company to provide operator services at a traffic aggregator location;

[(29)] (35) "Person" includes an individual, and a firm or copartnership;

[(30)] (36) "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;

[(31)] (37) "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;

[(32)] (38) "Public utility" includes every common carrier, 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;

[(33)] (39) "Railroad" includes every railroad and railway, other than street railroad, 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;

[(34)] (40) "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 or any cars or other equipment used thereon or in connection therewith;

[(35)] (41) "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;

[(36)] (42) "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;

[(37)] (43) "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;

[(38)] (44) "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;

[(39)] (45) "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;

[(40)] (46) "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; 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;

[(41)] (47) "Street 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 street railroad as herein defined; and any such street railroad, and all of its cars, buses, other equipment, instrumentalities, property and operations, shall be governed by and subject to the provisions of this chapter applicable to street railroads and street railroad corporations and not by the provisions applicable to other types of carriers;

[(42)] (48) "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;

[(43)] (49) "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 or obtained through tariff or contract by any telecommunications company to facilitate the provision of telecommunications service;

[(44)] (50) "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 public mobile 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; [or]

(g) The installation and maintenance of inside wire within a customer's premises; or

(h) Electronic publishing services;

[(45)] (51) "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;

[(46)] (52) "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;

[(47)] (53) "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;

[(48)] (54) "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;

[(49)] (55) "Transportation of persons" includes every service in connection with or incidental to the safety, comfort or convenience of the person transported and the receipt, carriage and delivery of such person and his baggage;

[(50)] (56) "Transportation of property" includes any service in connection with the receiving, delivery, elevation, transfer in transit, ventilation, refrigeration, icing, storage, and handling of the property transported;

[(51)] (57) "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;

[(52)] (58) "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.

386.320. 1. The commission shall have the general supervision of all common carriers, railroads, street railroads, railroad corporations, street railroad corporations, [and of all telegraph corporations or telephone corporations, and telegraph and telephone lines] telecommunications companies and telecommunications facilities, as herein defined, and shall have power to and shall examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines and property, owned, leased, controlled or operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all the provisions of law, orders and decisions of the commission and charter and franchise requirements.

2. The commission shall have power, either through its members or responsible engineers or inspectors or employees duly authorized by it, to enter in and upon and to inspect the property, equipment, buildings, plants, factories, powerhouses, offices, apparatus, machines, devices and lines of any of such corporations or persons, including the right for such inspection purpose to ride upon any freight locomotive or train or any passenger locomotive or train while in service; and to have upon reasonable notice the use of an inspection locomotive or special locomotive and inspection car for a physical inspection once annually of all the lines and stations of each common carrier under its supervision; and to the extent that such facilities for inspection involve transportation each commissioner and each such employee shall pay the published one way fare established by the common carrier for the transportation of persons by regular passenger trains over the distance covered by such inspection. The cost of such transportation, if the commission so elects, may be paid upon bill rendered to the commission after the transportation has been furnished and the amount thereof ascertained.

3. The commission and each commissioner shall have power to examine all books, contracts, records, documents and papers of any person or corporation subject to its supervision, and by subpoena duces tecum to compel production thereof. In lieu of requiring production of originals by subpoena duces tecum, the commission or any commissioner may require sworn copies of any such books, records, documents, contracts and papers or parts thereof to be filed with it.

386.370. 1. The commission shall, prior to the beginning of each fiscal year beginning with the fiscal year commencing on July 1, 1947, make an estimate of the expenses to be incurred by it during such fiscal year reasonably attributable to the regulation of public utilities as provided in chapters 386, 387, 392 and 393, RSMo, and shall also separately estimate the amount of such expenses directly attributable to such regulation of each of the following groups of public utilities: Railroad corporations, street railroad corporations, other common carriers, electrical corporations, gas corporations, water corporations, heating companies [and telephone corporations, telegraph corporations] telecommunications companies, sewer corporations, and any other public utility as defined in section 386.020, as well as the amount of such expenses not directly attributable to any such group.

2. The commission shall allocate to each such group of public utilities the estimated expenses directly attributable to the regulation of such group and an amount equal to such proportion of the estimated expenses not directly attributable to any group as the gross intrastate operating revenues of such group during the preceding calendar year bears to the total gross intrastate operating revenues of all public utilities subject to the jurisdiction of the commission, as aforesaid, during such calendar year. The commission shall then assess the amount so allocated to each group of public utilities, subject to reduction as herein provided, to the public utilities in such group in proportion to their respective gross intrastate operating revenues during the preceding calendar year, except that the total amount so assessed to all such public utilities shall not exceed one-fourth of one percent of the total gross intrastate operating revenues of all utilities subject to the jurisdiction of the commission. In the case of railroads, however, such assessment shall be calculated in a manner as to provide that no railroad with less than fifty route miles of track is assessed more than five hundred dollars in any year, and in a manner as to provide that no railroad with fifty or more route miles of track is assessed less than five thousand dollars in any year. The commission may impose a flat rate annual assessment for private shared tenant service providers and customer owned pay telephone providers in lieu of the allocation and assessment provisions in this section.

3. The commission shall render a statement of such assessment to each such public utility on or before July first and the amount so assessed to each such public utility shall be paid by it to the director of revenue in full on or before July fifteenth next following the rendition of [said] such statement[; provided, however], except that any such public utility may at its election pay such assessment in four equal installments not later than the following dates [next] following immediately the rendition of [said] such statement, to wit: July fifteenth, October fifteenth, January fifteenth and April fifteenth. The director of revenue shall remit such payments to the state treasurer.

4. The state treasurer shall credit such payments to a special fund, which is hereby created, to be known as "The Public Service Commission Fund", which fund, or its successor fund created pursuant to section 33.571, RSMo, shall be devoted solely to the payment of expenditures actually incurred by the commission and attributable to the regulation of such public utilities subject to the jurisdiction of the commission, as aforesaid. Any amount remaining in such special fund or its successor fund at the end of any fiscal year shall not revert to the general revenue fund, but shall be applicable by appropriation of the general assembly to the payment of such expenditures of the commission in the succeeding fiscal year and shall be applied by the commission to the reduction of the amount to be assessed to such public utilities in such succeeding fiscal year, such reduction to be allocated to each group of public utilities in proportion to the respective gross intrastate operating revenues of the respective groups during the preceding calendar year.

5. In order to enable the commission to make the allocations and assessments [herein] provided for in this section, each public utility subject to the jurisdiction of the commission as aforesaid shall file with the commission, within ten days after this section becomes effective and thereafter on or before March thirty-first of each year, a statement under oath showing its gross intrastate operating revenues for the preceding calendar year, and if any public utility shall fail to file such statement within the time aforesaid the commission shall estimate such revenue which estimate shall be binding on such public utility for the purpose of this section.

6. Nothing in this section shall be construed to apply to motor carriers or contract haulers subject to the jurisdiction of the commission under sections 390.011 to 390.176, RSMo, and the expenses of the commission attributable to the exercise of such jurisdiction shall not be included in the expenses of the commission for the purposes of this section.

386.900. The "Office of Telecommunications Policy" is hereby created within the office of administration to be headed by a director appointed by the commissioner of the office of administration. The director of the office of telecommunications policy shall be a person experienced in telecommunications policy and management. The director shall not have any financial interest in a telecommunications company, as defined in section 386.020, RSMo.

386.910. 1. The director of the office of telecommunications policy shall have the following powers and duties:

(1) The director shall employ a staff or hire on a contract basis such employees, experts and attorneys as are necessary to carry out the purposes and responsibilities of this office, and shall set their compensation within the appropriation made for that purpose;

(2) The director may represent the interests of the state as an advocate for consistent development of telecommunications services and may represent the interests of the state government as a telecommunications customer in any proceeding before or appeal from the public service commission which relates to telecommunications;

(3) The director shall identify state options to facilitate education, health care, economic development and cultural growth opportunities for all Missourians, regardless of where they live or their income, through partnerships with businesses, consumers and the telecommunications industry;

(4) The director shall provide to the governor and general assembly on a periodic basis, and no less than annually, reports which compare telecommunications infrastructure and services to all Missourians with telecommunications infrastructure and services of leading governmental and private entities;

(5) Within the first year following enactment, the director, in conjunction with the commission, the public counsel and others, shall prepare a report identifying the impact of telecommunications on individuals with disabilities. The report shall address existing and potential barriers which inhibit the use of advanced telecommunications services among the disabled, contain specific recommendations for eliminating such barriers and include a proposed definition of basic telecommunications services for the disabled community. The report shall be transmitted to the governor, the general assembly and the commission;

(6) Two years following enactment and every two years thereafter, the director, in consultation with the commission and the public counsel, shall prepare and present a report to the governor and general assembly which examines the prices experienced for services, the penetration rates in the state, the extent to which new services have been introduced in the state, the extent to which markets have been open to competition, and the effect the universal service fund has had on such items.

2. The director may represent the interests of the state government as a telecommunications customer in any proceeding before or appeal from the public service commission which relates to telecommunications. The director shall be served with all proposed tariffs, initial pleadings, and applications in all telecommunications proceedings before the public service commission, and shall be served with a copy of all telecommunications orders of the public service commission. The director may apply for rehearing of commission orders and decisions relating to telecommunications as provided under section 386.500, RSMo, and may appeal commission orders and decisions relating to telecommunications as provided under section 386.510, RSMo.

392.180. The provisions of section 386.020, RSMo, defining words, phrases and terms, shall apply to and determine the meaning of all such words, phrases and terms as used in sections 392.190 to [392.360] 392.530.

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 competitive or transitionally competitive telecommunications service 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. No telecommunications company may define a telecommunications service as a different telecommunications service based on the geographic area or other market 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. 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. No telecommunications company may provide electronic publishing services or enter into electronic publishing ventures. However, separate subsidiaries of a telecommunications company may enter into electronic publishing ventures, either jointly or individually, if otherwise consistent with applicable law. As used in this section and in section 392.247, "separate subsidiary" means a corporation under common ownership or control with a telecommunications company that does not itself own or control a telecommunications company and which corporation is not owned or controlled by a telecommunications company. In addition to any requirements that might otherwise be required by applicable law or regulation, every telecommunications company operating in this state shall charge to any separate subsidiary, or impute to itself, the same quality, price, terms and conditions for the provision of network information, interconnection, access or transmission services and facilities, used in the provision of electronic publishing services, as it charges to any unaffiliated electronic publisher.

392.210. 1. Every telecommunications company shall file with the commission an annual report at a time and covering the yearly period fixed by the commission. 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. 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 information and the grounds for his belief as to any matters not stated to be verified on his knowledge. The commission shall prescribe the form of such reports and the character of the information to be contained therein and may, from time to time, make such changes and additions in regard to form and contents thereof as it may deem proper, and shall furnish a blank form for such annual reports to every telecommunications company required to make the same. The form of such reports shall follow, as nearly as may be, the form prescribed by the Federal Communications Commission. When the report of any telecommunications company is defective or erroneous, the commission shall notify the company to amend the same within a time prescribed by the commission. Such reports shall be preserved in the office of the commission and shall be kept open to public inspection as a public document, pursuant to chapter 610, RSMo, unless a telecommunications company, at the time it files the report, requests confidential treatment for specified portions thereof and provides the reasons for such a request. In such case, the portions of the report for which confidential treatment is required shall not be open to public inspection unless and until the commission, on its own motion, or at the request of the office of public counsel or some other interested person, determines that there are not sufficient grounds for maintaining the requested confidential treatment. The commission may require of any telecommunications company specific answers to questions upon which the commission may desire information. If any telecommunications company shall fail to make and file its annual report as and when required or within such extended time as the commission may allow, or shall fail to make specific answers to any question within the period specified by the commission for the making and filing of such answers, such company shall forfeit to the state the sum of one hundred dollars for each and every day it shall continue to be in default with respect to such report or answer. Such forfeiture shall be recovered in an action brought by the commission in the name of the state of Missouri. The amount recovered in any such action shall be paid to the public school fund of the state. The commission may, when it deems it advisable, exempt any telecommunications company from the necessity of filing annual reports until the further order of the commission.

2. The commission may establish a system of accounts to be used by telecommunications companies, which are required to make annual reports to it, or classify the companies, and prescribe a system of accounts for each class and may prescribe the manner in which such accounts shall be kept. The system of accounts required shall follow, as nearly as may be, the system prescribed by the Federal Communications Commission. It may also, in its discretion, prescribe the form of records to be kept by such companies. The commission shall at all times have access to all accounts, records and memoranda kept by telecommunications companies, and may designate any of its officers or employees who shall thereupon be authorized under the order of the commission to inspect and examine any and all accounts, records and memoranda kept by any such company; and the commission may, after hearing, prescribe, by order, the accounts in which particular outlays and receipts shall be entered, charged or credited. Any employee or agent of the commission who divulges any fact or information which may come to his knowledge during the course of any such inspection or examination, except insofar as he may be directed by the commission by regulation or otherwise, or by a court or judge thereof, or authorized by law, shall be guilty of a misdemeanor. Any provision of law prohibiting the disclosure of the contents of telegraph messages or the contents or substance of telecommunications transmissions shall not be deemed to prohibit the disclosure of any matter in accordance with the provisions of sections 392.190 to 392.530.

3. In setting just and reasonable rates for a telecommunications company, the commission may consider the company's historical accounts and, in addition, the commission may consider future known and measurable changes in the telecommunications company's revenues, expenses and investments.

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 [until September 30, 1996,] 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 392.245, 392.246 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 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 suspension period, but any such decision by the commission issued after the maximum sixty-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. [Until September 30, 1996,] The commission shall not suspend any proposed rate or charge for any telecommunications service which a telephone cooperative proposes to provide within an exchange or within a local calling scope as determined by the commission other than charges for exchange access service.

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. [Provided, however,] 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.

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 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.

[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.] 4. Whenever a small [telephone] local exchange telecommunications 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] local exchange telecommunications 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] local exchange 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 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.

5. Prior to becoming subject to regulation under section 392.245, a telecommunications company may file a tariff for commission approval, which tariff establishes or moves toward cost-based prices for the company's services. In determining cost-based pricing, after notice and hearing, the commission shall give due regard to recovery of joint and common costs of providing the service. In approving such tariffs, the commission may establish that any such tariff shall be phased in over a period of up to four years.

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.

392.240. 1. Except as provided in section 392.245, whenever the commission shall be of the opinion, after a hearing had upon its own motion or upon a complaint, that the rates, charges, tolls or rentals demanded, exacted, charged or collected by any telecommunications company for the transmission of messages or communications, or for the rental or use of any telecommunications facilities or that the rules, regulations or practices of any telecommunications company affecting such rates, charges, rentals or service are unjust, unreasonable, unjustly discriminatory or unduly preferential or in any wise in violation of law, or that the maximum rates, charges or rentals chargeable by any such telecommunications company are insufficient to yield reasonable compensation for the service rendered, the commission shall with due regard, among other things, to a reasonable average return upon the value of the property actually used in the public service and of the necessity of making reservation out of income for surplus and contingencies, determine the just and reasonable rates, charges and rentals to be thereafter observed and in force as the maximum to be charged, demanded, exacted or collected for the performance or rendering of the service specified and shall fix the same by order to be served upon all telecommunications companies by which such rates, charges and rentals are thereafter to be observed, and thereafter no increase in any rate, charge or rental so fixed shall be made without the consent of the commission.

2. Whenever the commission shall be of the opinion, after a hearing had upon its own motion or upon complaint, that the rules, regulations or practices of any telecommunications company are unjust or unreasonable, or that the equipment or service of any telecommunications company is inadequate, insufficient, improper or inefficient, the commission shall determine the just, reasonable, adequate, efficient and proper regulations, practices, equipment and service thereafter to be installed, to be observed and used and to fix and prescribe the same by order to be served upon every telecommunications company to be bound thereby, and thereafter it shall be the duty of every telecommunications company to which such order is directed to obey each and every such order so served upon it and to do everything necessary or proper in order to secure compliance with and observance of every such order by all its officers, agents and employees according to its true intent and meaning. Nothing contained in this chapter shall be construed as giving to the commission power to make any order, direction or requirement requiring any telecommunications company to perform any act which is unjust or unreasonable or in violation of any law of this state or of the United States not inconsistent with the provisions of this chapter.

3. Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that a physical connection can reasonably be made between the lines of two or more telecommunications companies whose facilities can be made to form a continuous link of communication by the construction and maintenance of suitable connections for the transfer of messages or conversations, and that public convenience and necessity will be subserved thereby, or shall find that two or more telecommunications companies have failed to establish joint rates, tolls or charges for service by or over their facilities, and that joint rates, tolls or charges ought to be established, the commission may, by its order, require that such connection be made[, except where the purpose of such connection is primarily to secure the transmission of local telecommunications service] and the telecommunications be transmitted over such connection under such rules and regulations as the commission may establish, and prescribe through lines and joint rates, tolls and charges to be made, and to be used, observed and in force in the future. If any two telecommunications companies do not agree upon the division between them of the cost of such physical connection or connections or the division of the joint rates, tolls or charges established by the commission over such through facilities, the commission shall have authority, after further hearing, to establish such division by supplemental order.

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. As used in this chapter, "price cap regulation" shall mean establishment of maximum allowable prices for noncompetitive local telecommunications services, which maximum prices shall not be subject to increase except as otherwise provided in this section. New entrants certified to provide basic local telecommunications service under section 392.455 shall be ineligible for regulatory treatment under this section. Reasonable rates shall be established as follows:

(1) Rates for noncompetitive services, as defined in section 386.020, RSMo, will be subject to price cap regulation pursuant to this section;

(2) Rates for services which are transitionally competitive or competitive shall be regulated pursuant to sections 392.361 and 392.370.

2. Except as otherwise provided in this section, all rates established for a company under subsection 1 of this section shall be those in effect on the effective date of this section. Tariffs previously authorized under subsection 5 of section 392.230 shall be phased in as provided under such tariffs as approved by the commission.

3. All large local exchange telecommunications companies shall be subject to regulation under this section upon a determination by the commission that the safeguards established pursuant to section 392.247 have been implemented. All small local exchange telecommunication companies shall be subject to regulation under this section upon providing written notice to the commission that the company has chosen to be regulated under this section.

4. All local exchange telecommunications companies regulated under this section shall submit, at the time the company becomes regulated under this section, a plan which complies with the requirements of section 392.246.

5. The local telecommunications services of an incumbent local exchange telecommunications company shall be classified as competitive in any exchange in which at least one new entrant has been certified under section 392.455 and has provided service in that exchange for at least three years, unless the commission determines, after a hearing, that effective competition does not exist in the exchange.

6. Nothing in this section shall be interpreted to alter the commission's jurisdiction over quality and conditions of service or to relieve telecommunications companies from the obligation to comply with commission rules relating to minimum basic local and interexchange telecommunications service.

7. If the commission finds, after notice and hearing, that an incumbent local exchange telecommunications company regulated under this section is not subject to competition for basic local telecommunications services within its service area, then the commission may initiate a review or entertain complaints as to the reasonableness of that telecommunications company's rates according to the standards in sections 392.200, 392.210, 392.220, 392.230 and 392.240.

8. In local exchange areas subject to competition for basic local telecommunications service, the incumbent provider shall be designated as the carrier of last resort for basic local telecommunications service for a minimum of three years after a competitor begins to provide basic local telecommunications service in that area. Thereafter, the commission may designate a provider of last resort for any exchange or other area designated by the commission. For all other areas served by the incumbent provider and in which competition for basic local telecommunications service is not present, the incumbent provider shall continue to act as the carrier of last resort for basic local telecommunications service.

392.246. 1. All local exchange telecommunication companies certified on the effective date of this section to serve one or more exchanges and all new entrants seeking certification under section 392.455 shall submit a plan addressing the matters required in this section for the commission's approval. The commission shall allow opportunity for participation by the office of the public counsel and the director of the office of telecommunications policy. The commission shall determine whether to approve the proposed plan within sixty days of its submission.

2. Including all terms of the plan described in this section, any local exchange telecommunications company subject to regulation under section 392.245 and any new entrant certified under section 392.455 shall be required to make an average annual investment throughout its service area in the state over four consecutive years of at least twenty-five percent of its annual intrastate revenues as recorded in the year prior to submission of the plan. The investment shall be dedicated to completing network modernization as required by commission rules, constructing fiber optic interoffice facilities and providing public schools, not-for-profit hospitals and public libraries with requested access to advanced telecommunications services; except that a company may dedicate the investment in alternate projects upon demonstrating to the commission that such alternate investments are in the public interest.

3. The plan shall require annually, for three years, that at least one percent of the telecommunications company's intrastate annual regulated revenue as recorded in the year prior to the submission of the plan be used to fund telecommunications projects designed to foster education, health care and economic development. One-third of this amount shall be paid each of the three years into a special fund for telecommunications projects, which is hereby created in the state treasury, to be administered by the director of the office of telecommunications policy and used to foster education, health care and economic development throughout the state as determined by the office of telecommunications policy. The plan shall ensure that investments made pursuant to this section provide benefits both in exchanges where competition exists and in exchanges where competition does not exist.

4. The plan approved by the commission shall address the following:

(1) The promotion of universal services;

(2) The payment into a universal service fund;

(3) Non-discriminatory access to telecommunications services at non-discriminatory, just and reasonable rates;

(4) Protection against improper cross-subsidies and predatory pricing;

(5) The provision of electronic publishing services through separate subsidiaries;

(6) A commitment to provide, upon request, facilities for advanced telecommunications services at public education institutions, public libraries and not-for-profit health care facilities without application of construction charges to those institutions;

(7) A commitment to establish discounted rates for public education institutions, public libraries and not-for-profit health facilities;

(8) A commitment to continue to invest in new telecommunications technology and infrastructure; and

(9) The protection of privacy.

392.247. To facilitate the objective of advancing full and fair competition, the commission shall immediately initiate proceedings and, where appropriate, issue decisions or adopt rules relating to the competitive safeguards specified in this section no later than August 28, 1997, which shall be fully implemented no later than August 28, 1998, unless mutually agreed otherwise by the affected parties and approved by the commission. The commission may consider whether and to what extent the safeguards are applicable to various telecommunications companies and, where appropriate, apply different rules to incumbent local exchange telecommunications companies of various sizes, new entrants, and other telecommunications companies. The competitive safeguards shall determine, at a minimum, the extent to which the commission shall:

(1) Require interconnection and access to the telecommunications companies' networks, including access to conduits and rights-of-way, at prices and under terms and conditions which are equally applicable to all telecommunications companies, provided that any telecommunications company seeking access to networks of another company shall make such request of the other company and inform the commission of the request, and, if the companies are unable to reach an agreement regarding prices for such access within ninety days of such notice, the commission shall serve as arbiter and, after hearing and comment, establish within ninety additional days, the prices for such access which shall be subject to renegotiation after two years;

(2) Require the imputation by a telecommunications company of the same price for any service or function utilized by such telecommunications company as it charges to any other telecommunications company, provided that such imputation shall conform to any agreements and prices established as provided in subdivision (1) of this section;

(3) Require uniform technical standards which will ensure the effective and efficient interconnection and interoperability of the networks of telecommunications providers;

(4) Require the unbundling of telecommunications companies' networks into their underlying network functions;

(5) Require the assignment of local telephone numbers and dialing patterns in a non-discriminatory, competitively neutral manner so that, to the extent technically feasible, any user may change from one provider of telecommunications services to another without the need for the subscriber to change the local telephone number or numbers assigned to that subscriber, which shall be known as local number portability;

(6) Require all telecommunications companies to cease prohibiting the resale of any service offered by the telecommunications company, unless the commission determines, after hearing on a case-by-case basis, that such restriction is in the public interest;

(7) Prohibit use by telecommunications companies of competitors' customer or subscriber lists or any information included in such lists, for purposes of marketing services offered by the telecommunications company;

(8) Require the protection of subscribers' privacy interests;

(9) Require the establishment of a state universal service fund consistent with section 392.248, and

(10) Require that certain telecommunications services be provided by separate subsidiaries of a telecommunications company.

392.248. 1. In order to ensure reasonable rates for basic local telecommunications services throughout the state, a fund known as the "Universal Service Fund" shall be established. The commission shall adopt rules governing the operations of the universal service fund, and shall retain an independent neutral administrator who will be responsible for the day-to-day operations of the universal service fund. The agency, individual, firm, partnership, or corporation that is selected by the commission as the neutral administrator of the universal service fund may neither contribute to nor receive disbursements from the universal service fund, except as provided in subsection 2. The administrator may not have any financial interest in a telecommunications company, as defined in section 386.020, RSMo. The commission shall cause the books and records of the universal service fund administrator to be independently audited on an annual basis. The independent audit shall be paid for from funds held in the universal service fund.

2. The commission shall adopt and enforce rules to be implemented by the universal service fund administrator, governing the system of funding and disbursing funds from the universal service fund in a manner that does not grant a preference or competitive advantage to any telecommunications company or subject a telecommunications company to prejudice or disadvantage. Funds from the universal service fund shall only be used: (1) to ensure affordable and reasonable rates for the provision of basic local telecommunications service in high cost areas, and to assist low-income customers and disabled customers in obtaining affordable basic telecommunications services; and (2) to pay the reasonable, audited costs of administering the universal service fund.

3. The universal service fund shall be funded by all telecommunications companies. The commission shall establish the level of the universal service fund funding requirement necessary to fund the purposes set forth in subsection 2 of this section. The universal service fund funding requirements shall be paid in accordance with procedures approved by the commission.

4. To facilitate provision of basic local telecommunications service, the commission shall determine whether and to what extent any telecommunications company in the state providing basic local telecommunications service in any part of the state, shall be eligible to receive funding. In making such determination, the commission shall give due regard to all relevant factors including whether a telecommunications company has carrier of last resort obligations and whether a telecommunications company provides basic local telecommunications service to end-users in whole or in part through the resale of telecommunications services or facilities of other telecommunications companies. Distributions from the universal service fund shall be made by the universal service fund administrator in accordance with rules approved by the commission.

5. In determining whether, and to what extent, universal service fund funding is required to facilitate provision of basic local telecommunications service, the commission shall on a periodic basis:

(1) Determine the costs, for each local exchange telecommunications company by geographic area, of providing basic local telecommunications service, as that term is defined in section 386.020, RSMo;

(2) Establish a standard to determine whether and to what extent particular end-user customers may be eligible for assistance in paying for basic local telecommunications service.

6. Nothing in this section shall require the commission, the universal service fund administrator, or any other person or agency to take any actions that are inconsistent with federal statutes, administrative rules, or court decisions concerning provision of basic local telecommunications service.

7. The commission may do all things necessary and convenient to implement and administer the universal service fund.

392.370. 1. 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".

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. Pending a final decision by the commission in this proceeding, the service shall retain transitionally competitive status for a period not to exceed six months from the date the service would otherwise obtain competitive status. 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.

392.390. Except as provided in subsection 1 of section 392.520, a telecommunications company shall at a minimum:

(1) File annual reports with the commission as required by the commission and in a form and at times prescribed by the commission. The commission may require different forms of annual reports for different telecommunications companies. All annual reports retained by the commission shall be kept open to public inspection as a public document, pursuant to chapter 610, unless a telecommunications company, at the time it files the report, requests confidential treatment for specified portions thereof and provides the reasons for such a request. In such case, the portions of the report for which confidential treatment is requested shall not be open to public inspection unless and until the commission, on its own motion, or at the request of the office of the public counsel or some other interested person, determines that there are not sufficient grounds for maintaining the requested confidential treatment;

(2) Comply with any subpoena issued by the commission, any order issued by the commission pursuant to section 386.450, RSMo, and provide specific answers to any questions asked by the commission pursuant to subsection 1 of section 392.210;

(3) Comply with any reasonable requirements which shall be imposed by the commission for determining and reporting the jurisdictional nature of the telecommunications services it provides;

(4) Be subject to the provisions of sections 386.320 and 386.330, RSMo; and

(5) Be subject to the provisions of subsections 2, 3, 4 and 5 of section 392.200, so far as such provisions are applicable to a telecommunications company.

392.400. 1. In permitting, approving, investigating or establishing rates, charges, classifications or tariffs for noncompetitive telecommunications services, the commission shall not allow or establish rates, charges, classifications or tariffs for noncompetitive services which in any way, directly or indirectly, recover the expenses, investment, incremental risk or increased cost of capital associated with the provision of competitive or transitionally competitive telecommunications services.

2. The commission shall, after hearing, by rule or order, establish procedures[, including but not limited to] which shall include accounting procedures, and may include any other procedure, to be followed by all noncompetitive and transitionally competitive telecommunications companies which assist in implementing the prohibition contained in subsection 1 of this section.

3. The commission shall establish, after hearing, by rule or order, appropriate methods for calculating the costs of providing any telecommunications service offered by a noncompetitive or transitionally competitive telecommunications company and for determining whether the rates or charges for such telecommunications service are at a level equal to or greater than such cost. The commission may order any noncompetitive or transitionally competitive telecommunications company to conduct a cost study and to provide the results thereof to the commission. Any cost study provided to the commission pursuant to the provisions of this section may, in the commission's discretion, be accorded proprietary treatment at the request of such company.

4. Notwithstanding subsection 1 of this section and except as otherwise provided for those companies regulated under the provisions of section 392.245, the commission may take into account revenues received from competitive and transitionally competitive telecommunications services in setting just and reasonable rates for noncompetitive telecommunications services offered or provided by a noncompetitive local exchange telecommunications company, but only if the total revenue received from the offering or provision of the aggregate of all competitive and transitionally competitive telecommunications services exceeds the total expense plus a reasonable return on investment attributable to the offering or provision of the aggregate of all competitive and transitionally competitive telecommunications services. Should the commission consider revenues from a competitive or transitionally competitive telecommunications service in setting just and reasonable rates for noncompetitive telecommunications service offered or provided by a noncompetitive local exchange telecommunications company, the commission shall also consider all expenses, investment, and revenues associated with the offering or provision of all competitive and transitionally competitive telecommunications services offered or provided by such telecommunications company unless the consideration of the expenses, investment, and revenues associated with the offering or provision of a particular competitive or transitionally competitive telecommunications service is otherwise prohibited by law, or the commission in its original order classifying a telecommunications service as competitive or transitionally competitive, finds that it is not in the interest of customers of noncompetitive telecommunications services for the expenses, investment, and revenues associated with a particular competitive service or transitionally competitive telecommunications service to be taken into account in setting just and reasonable rates for noncompetitive telecommunications service. If the commission finds that it is not in the interest of customers of noncompetitive telecommunications services for the expenses, investment, and revenues associated with a particular competitive service or transitionally competitive telecommunications service to be taken into account in setting just and reasonable rates for noncompetitive telecommunications service, then the noncompetitive local exchange telecommunications company shall have the option of not offering or providing that particular competitive or transitionally competitive telecommunications service.

5. It shall be unjust, unreasonable, and unlawful for a noncompetitive or transitionally competitive telecommunications company to offer or provide a competitive or transitionally competitive telecommunications service below the cost of such service as determined by the commission if the commission finds that such offering or provision of service constitutes conduct which is not consistent with the promotion of full and fair competition.

6. A telecommunications company may file a complaint as to the reasonableness or lawfulness of any rate or charge for service offered or provided by a noncompetitive or transitionally competitive telecommunications company. Nothing in this chapter shall in any way preempt, modify, exempt, abrogate or otherwise affect any right, cause of action, defense, liability, duty or obligation arising from any federal, state or local law governing unfair business practices, antitrust, restraint of trade or other anticompetitive activity.

7. In order to implement and enforce the provisions of this section the commission shall have power to examine the books and records, including but not limited to any accounts, contracts, documents, papers, outside auditor workpapers, and computer data, of any noncompetitive or transitionally competitive telecommunications company and any affiliate of a noncompetitive or transitionally competitive telecommunications company whether such affiliate is a competitive, noncompetitive, or transitionally competitive telecommunications company. The commission shall also have the power to examine the books and records, including but not limited to any accounts, contracts, documents, papers, outside auditor workpapers, and computer data, of any affiliate of a noncompetitive or transitionally competitive telecommunications company which is not a telecommunications company as defined by this chapter for the purpose of investigating any transactions or the allocation of any costs between such noncompetitive or transitionally competitive telecommunications company and such affiliate. Any sanctions for violation of this section or for violation of a commission order provided for in sections 386.360, 386.390, 386.460, 386.570, 386.580, RSMo, and section 392.361, shall not be applied against a telecommunications company for failure to produce outside auditor workpapers, if the subject telecommunications company shows that the failure to produce outside auditor workpapers was due to circumstances beyond its control.

392.410. 1. A telecommunications company not possessing a certificate of public convenience and necessity from the commission at the time this section goes into effect shall have not more than ninety days in which to apply for a certificate of service authority from the commission pursuant to this chapter unless a company holds a state charter issued in or prior to the year 1913 which charter authorizes a company to engage in the telephone business. No telecommunications company not exempt from this subsection shall transact any business in this state until it shall have obtained a certificate of service authority from the commission pursuant to the provisions of this chapter, except that any telecommunications company which is providing telecommunications service on September 28, 1987, and which has not been granted or denied a certificate of public convenience and necessity prior to September 28, 1987, may continue to provide that service exempt from all other requirements of this chapter until a certificate of service authority is granted or denied by the commission so long as the telecommunications company applies for a certificate of service authority within ninety days from September 28, 1987.

2. No telecommunications company offering or providing, or seeking to offer or provide, any interexchange telecommunications service shall do so until it has applied for and received a certificate of interexchange service authority pursuant to the provisions of subsection 1 of this section. No telecommunications company offering or providing, or seeking to offer or provide, any local exchange telecommunications service shall do so until it has applied for and received a certificate of local exchange service authority pursuant to the provisions of section 392.420.

3. No certificate of service authority issued by the commission[, except a grant of authority to provide basic local telecommunications service,] shall be construed as granting a monopoly or exclusive privilege, immunity or franchise. The issuance of a certificate of service authority to any telecommunications company shall not preclude the commission from issuing additional certificates of service authority to another telecommunications company providing the same or equivalent service or serving the same geographical area or customers as any previously certified company, except to the extent otherwise provided by section 392.450.

4. Any certificate of public convenience and necessity granted by the commission to a telecommunications company prior to September 28, 1987, shall remain in full force and effect unless modified by the commission, and such companies need not apply for a certificate of service authority in order to continue offering or providing service to the extent authorized in such certificate of public convenience and necessity. Any such carrier, however, prior to substantially altering the nature or scope of services provided under a certificate of public convenience and necessity, or adding or expanding services beyond the authority contained in such certificate, must apply for a certificate of service authority for such alterations or additions pursuant to the provisions of this section.

5. The commission may review and modify the terms of any certificate of public convenience and necessity issued to a telecommunications company prior to September 28, 1987, in order to ensure its conformity with the requirements and policies of this chapter. Any certificate of service authority may be altered or modified by the commission after notice and hearing, upon its own motion or upon application of the person or company affected. Unless exercised within a period of one year from the issuance thereof, authority conferred by a certificate of service authority or a certificate of public convenience and necessity shall be null and void.

6. The commission may issue a temporary certificate which shall remain in force not to exceed one year to assure maintenance of adequate service or to serve particular customers, without notice and hearing, pending the determination of an application for a certificate.

392.450. 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:

[(1) The applicant possesses sufficient technical, financial and managerial resources and abilities to provide basic local telecommunications service; and

(2) Reasonably safe and adequate service is not being offered by the principal provider of basic local telecommunications service.]

(1) On and after January 1, 1997, for exchanges served at the time of application by large local exchange telecommunications companies, the applicant has complied with the certification process established pursuant to section 392.455;

(2) Prior to January 1, 2002, for exchanges served at the time of application by small local exchange telecommunications companies, that such small local exchange telecommunications company is regulated pursuant to the provisions of section 392.245 and that the applicant has complied with the certification process established pursuant to section 392.455;

(3) On and after January 1, 2002, for exchanges served at the time of application by small local exchange telecommunications companies, certification of a new applicant in an exchange or exchanges is in the public interest and that the applicant has complied with the certification procedures established pursuant to section 392.455.

392.455. 1. Upon enactment of this section, the commission shall immediately begin a proceeding to establish a basic local telecommunications certification process. On and after January 1, 1997, the commission may begin granting certificates to new entrants to provide basic local telecommunications service on a common carriage basis, subject to the provisions of sections 392.380 and 392.390. Such process shall include, but not be limited to:

(1) A requirement that the applicant possess sufficient technical, financial and managerial resources and abilities to provide basic local telecommunications service;

(2) A requirement that the applicant demonstrate that the services it proposes to offer and the geographic areas in which it proposes to offer them satisfy the minimum standards established by the commission for such services and areas;

(3) A requirement that the commission give due consideration to the equitable access for all Missourians, regardless of where they live or their income, to affordable telecommunications services.

2. New entrants seeking certification under this section shall submit a plan which complies with the requirements of section 392.246.

392.490. 1. Except as provided in subsection 2 of this section and in subsection 4 of section 392.220, any noncompetitive 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 the tariff and such other information as may be required by rule or regulation 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.

392.500. Except as provided in section 392.200, proposed changes in rates or charges, or any classification or tariff provision affecting rates or charges, for any competitive telecommunications service, shall be treated pursuant to this section as follows:

(1) Any proposed decrease in rates or charges, or proposed change in any classification or tariff resulting in a decrease in rates or charges, for any competitive telecommunications service shall be permitted only upon the filing of the proposed rate, charge, classification or tariff after seven days' notice to the commission; and

(2) Any proposed increase in rates or charges, or proposed change in any classification or tariff resulting in an increase in rates or charges, for any competitive telecommunications service shall be permitted only upon the filing of the proposed rate, charge, classification or tariff and upon notice to all potentially affected customers through a notice in each such customer's bill at least ten days prior to the date for implementation of such increase or change, or[, where such customers are not billed,] by an equivalent means of prior notice approved by the commission by order or rule, except that when a company proposes increases in particular rate elements in conjunction with decreases in other rate elements for the same service and the combination of changes would not reasonably be expected to yield an increase in revenues for the service from existing customers other than by stimulating usage, such combination of changes may be made pursuant to subdivision (1) of this section.

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 noncompetitive telecommunications company shall file with the commission written notice of [the] a rate [change and] decrease within the band or range authorized pursuant to this section at least ten days prior to its effective date [with the commission within ten days after the effective date of any increase or decrease authorized pursuant to this section]. Any proposed increase in rates or charges, or proposed change in any classification or tariff resulting in any increase in rates or charges shall be permitted only upon the filing of the proposed rate, charge, classification or tariff and upon notice to all potentially affected customers through a notice in each such customer's bill at least ten days prior to the date for implementation of such increase or by an equivalent means of prior notice approved by the commission by order or rule.

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[,] and 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.

392.530. 1. The provisions of this chapter shall be construed to:

(1) Promote universally available and widely affordable telecommunications services;

(2) Maintain and advance the efficiency and availability of telecommunications services;

(3) Promote diversity in the supply of telecommunications services and products throughout the state of Missouri;

(4) Ensure that customers pay only reasonable charges for telecommunications service;

(5) Permit flexible regulation of competitive telecommunications companies and competitive telecommunications services; [and]

(6) Allow full and fair competition to function as a substitute for regulation when consistent with the protection of ratepayers and otherwise consistent with the public interest[.];

(7) Promote one hundred percent universal subscription to basic local telecommunications service;

(8) Promote parity of urban and rural telecommunications services;

(9) Promote economic, educational, health care and cultural enhancements; and

(10) Protect consumer privacy.

2. Sections 392.361 to 392.520 are enacted in part to clarify and specify the law existing prior to September 28, 1987. Any specific grant of authority to the commission contained in those provisions shall not be construed as indicating or meaning that the commission did not possess such authority under the law existing prior to September 28, 1987.