392.400. Noncompetitive telecommunication services, rates not to cover expenses of competitive services, exception--complaint may be filed by another company, purpose--commission may examine records,
Noncompetitive telecommunication services, rates not to coverexpenses of competitive services, exception--complaint may be filed byanother company, purpose--commission may examine records, purpose.
392.400. 1. In permitting, approving, investigating orestablishing rates, charges, classifications or tariffs fornoncompetitive telecommunications services, the commission shallnot allow or establish rates, charges, classifications or tariffsfor noncompetitive services which in any way, directly orindirectly, recover the expenses, investment, incremental risk orincreased cost of capital associated with the provision ofcompetitive or transitionally competitive telecommunicationsservices.
2. The commission shall, after hearing, by rule or order,establish procedures, including but not limited to accountingprocedures, to be followed by all noncompetitive andtransitionally competitive telecommunications companies whichassist in implementing the prohibition contained in subsection 1of this section.
3. The commission shall establish, after hearing, by rule ororder, appropriate methods for calculating the costs of providingany telecommunications service offered by a noncompetitive ortransitionally competitive telecommunications company and fordetermining whether the rates or charges for suchtelecommunications service are at a level equal to or greaterthan such cost. The commission may order any noncompetitive ortransitionally competitive telecommunications company to conducta cost study and to provide the results thereof to thecommission. Any cost study provided to the commission pursuantto the provisions of this section may, in the commission'sdiscretion, be accorded proprietary treatment at the request ofsuch company.
4. Notwithstanding subsection 1 of this section, thecommission may take into account revenues received fromcompetitive and transitionally competitive telecommunicationsservices in setting just and reasonable rates for noncompetitivetelecommunications services offered or provided by anoncompetitive local exchange telecommunications company, butonly if the total revenue received from the offering or provisionof the aggregate of all competitive and transitionallycompetitive telecommunications services exceeds the total expenseplus a reasonable return on investment attributable to theoffering or provision of the aggregate of all competitive andtransitionally competitive telecommunications services. Shouldthe commission consider revenues from a competitive ortransitionally competitive telecommunications service in settingjust and reasonable rates for noncompetitive telecommunicationsservice offered or provided by a noncompetitive local exchangetelecommunications company, the commission shall also considerall expenses, investment, and revenues associated with theoffering or provision of all competitive and transitionallycompetitive telecommunications services offered or provided bysuch telecommunications company unless the consideration of theexpenses, investment, and revenues associated with the offeringor provision of a particular competitive or transitionallycompetitive telecommunications service is otherwise prohibited bylaw, or the commission in its original order classifying atelecommunications service as competitive or transitionallycompetitive, finds that it is not in the interest of customers ofnoncompetitive telecommunications services for the expenses,investment, and revenues associated with a particular competitiveservice or transitionally competitive telecommunications serviceto be taken into account in setting just and reasonable rates fornoncompetitive telecommunications service. If the commissionfinds that it is not in the interest of customers ofnoncompetitive telecommunications services for the expenses,investment, and revenues associated with a particular competitiveservice or transitionally competitive telecommunications serviceto be taken into account in setting just and reasonable rates fornoncompetitive telecommunications service, then thenoncompetitive local exchange telecommunications company shallhave the option of not offering or providing that particularcompetitive or transitionally competitive telecommunicationsservice.
5. It shall be unjust, unreasonable, and unlawful for anoncompetitive or transitionally competitive telecommunicationscompany to offer or provide a competitive or transitionallycompetitive telecommunications service below the cost of suchservice as determined by the commission if the commission findsthat such offering or provision of service constitutes conductwhich is not consistent with the promotion of full and faircompetition.
6. A telecommunications company may file a complaint as tothe reasonableness or lawfulness of any rate or charge forservice offered or provided by a noncompetitive or transitionallycompetitive telecommunications company. Nothing in this chaptershall in any way preempt, modify, exempt, abrogate or otherwiseaffect any right, cause of action, defense, liability, duty orobligation arising from any federal, state or local law governingunfair business practices, antitrust, restraint of trade or otheranticompetitive activity.
7. In order to implement and enforce the provisions of thissection the commission shall have power to examine the books andrecords, including but not limited to any accounts, contracts,documents, papers, outside auditor workpapers, and computer data,of any noncompetitive or transitionally competitivetelecommunications company and any affiliate of a noncompetitiveor transitionally competitive telecommunications company whethersuch affiliate is a competitive, noncompetitive, ortransitionally competitive telecommunications company. Thecommission shall also have the power to examine the books andrecords, including but not limited to any accounts, contracts,documents, papers, outside auditor workpapers, and computer data,of any affiliate of a noncompetitive or transitionallycompetitive telecommunications company which is not atelecommunications company as defined by this chapter for thepurpose of investigating any transactions or the allocation ofany costs between such noncompetitive or transitionallycompetitive telecommunications company and such affiliate. Anysanctions for violation of this section or for violation of acommission order provided for in sections 386.360, 386.390,386.460, 386.570, 386.580, RSMo, and section 392.361, shall notbe applied against a telecommunications company for failure toproduce outside auditor workpapers, if the subjecttelecommunications company shows that the failure to produceoutside auditor workpapers was due to circumstances beyond itscontrol.
(L. 1987 H.B. 360)