Missouri Revised Statutes













Chapter 392

Telephone and Telegraph Companies

←392.390

Section 392.400.1

392.410→

August 28, 2015

Noncompetitive telecommunication services, rates not to cover expenses of competitive services, exception--complaint may be filed by another company, purpose--commission may examine records, purpose.

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 accounting procedures, 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, 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, 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.



(L. 1987 H.B. 360)







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