Section 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, purpose1. 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.