0001| SENATE BILL 194 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| ROMAN M. MAES III | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO THE REGULATION OF PUBLIC UTILITIES AND CERTAIN | 0012| OTHER INDUSTRIES WHICH AFFECT THE PUBLIC INTEREST; PROVIDING | 0013| FOR THE ENCOURAGEMENT AND PROTECTION OF COMPETITION AND THE | 0014| ULTIMATE DIMINISHMENT OF REGULATION; PROVIDING BOTH THE | 0015| FRAMEWORK AND POLICIES NECESSARY TO CREATE A MODERN AND | 0016| RESPONSIBLE PUBLIC REGULATION COMMISSION ("THE COMMISSION") TO | 0017| REPLACE THE STATE CORPORATION COMMISSION AND THE NEW MEXICO | 0018| PUBLIC UTILITY COMMISSION, WHICH ARE HEREBY ABOLISHED, | 0019| PURSUANT TO ARTICLE 11, SECTIONS 1 AND 2 OF THE CONSTITUTION | 0020| OF NEW MEXICO; PROVIDING FOR THE REPEAL OF OBSOLETE | 0021| SUBSTANTIVE LEGISLATION REGULATING ENTITIES AND OTHER | 0022| INDUSTRIES; PROVIDING FOR LEGISLATIVE POLICY AND DIRECTIONS | 0023| FOR THE COMMISSION TO PROPERLY PERFORM ITS DUTIES HEREUNDER; | 0024| MOVING THE STATE FIRE MARSHAL AND THE FIREFIGHTER'S TRAINING | 0025| ACADEMY TO THE DEPARTMENT OF PUBLIC SAFETY; ABOLISHING THE | - 1 - 0001| INSURANCE BOARD AND THE FIRE BOARD; AND TRANSFERRING TO THE | 0002| COMMISSION PERSONNEL, PROPERTY, AND EXISTING CONTRACTUAL | 0003| AGREEMENTS FROM THE ABOLISHED COMMISSIONS. | 0004| | 0005| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0006| | 0007| TITLE I. GENERAL PROVISIONS APPLICABLE TO PUBLIC UTILITIES | 0008| AND TO | 0009| CERTAIN ENTITIES WHICH ARE NOT PUBLIC UTILITIES | 0010| SUBTITLE A. GENERAL PROVISIONS | 0011| | 0012| Sec. 1.001. SHORT TITLE. This Act may be referred to as the | 0013| "Public Regulation Act of 1998." | 0014| Sec. 1.002. LEGISLATIVE POLICY AND PURPOSE. This Act is | 0015| enacted to create a Public Regulation Commission (1) to | 0016| promote free market competition; (2) to regulate market | 0017| dominate public utilities; and (3) to regulate certain | 0018| entities which are not public utilities but which also affect | 0019| the public interest. | 0020| | 0021| Regarding public utilities as defined hereafter, in | 0022| Titles II, III and IV of this Act, it is the policy and | 0023| purpose of the legislature to allow and encourage open | 0024| market competition between and among public utilities | 0025| which have the market power to control services, and thus | - 2 - 0001| must be subject to regulation, and entitled which are not | 0002| public utilities because they do not have such market | 0003| power and should not be regulated. The legislature | 0004| recognizes that regulation of investor-owned public | 0005| utilities is, at best, an imperfect substitute for | 0006| competition and should be as limited and as short-term as | 0007| market conditions permit. Accordingly, market entry by | 0008| non-dominant firms must be encouraged and the regulation | 0009| of dominant firms should be exercised by the commission | 0010| only during a transition period for as long and to the | 0011| extent it can be factually demonstrated that regulation | 0012| is essential to protect consumers and competitors from | 0013| excessive pricing above real costs or predatory anti- | 0014| competitive policies or practices. The commission shall | 0015| deregulate previously-dominant public utilities as soon | 0016| as a vigorous competitive market place exists. The | 0017| determinations of the commission shall be made only after | 0018| notice, pre-hearing discovery and factual findings are | 0019| made in accordance with court rules of procedure and | 0020| evidence. | 0021| | 0022| The commission shall exercise its responsibilities in a | 0023| manner which is compatible and consistent with federal | 0024| statutes, regulations and case decisions, except to the | 0025| extent the commission has exclusive state jurisdiction | - 3 - 0001| under applicable constitutional principles and the | 0002| exercise of such state jurisdiction is consistent with | 0003| this Act. | 0004| | 0005| The Legislature's further policies as to electric public | 0006| utilities and telecommunications public utilities are | 0007| stated in Sec. 2.001 and 3.002 below. | 0008| | 0009| Regarding those industries and businesses which are not | 0010| public utilities, in Title V of this Act, as defined | 0011| hereafter, the commission shall regulate such entities by | 0012| licenses and other regulatory methods hereafter specified | 0013| in Title V, only to the extent essential to protect the | 0014| public interest and safety. This Act shall not be | 0015| construed to authorize the commission to regulate such | 0016| entities in a manner which would impair any entity's | 0017| property rights except for serious violation of its | 0018| license or obligations under this Act. Each such entity | 0019| shall have the opportunity to conduct a profitable | 0020| business and freely and fairly compete with other | 0021| regulated entities in the same line of business. | 0022| Sec. 1.003. DEFINITIONS: In this Act: | 0023| (1) "Affected person" means any public utility affected | 0024| by an action of the regulatory authority, any | 0025| person or corporation, whose utility service or | - 4 - 0001| rates are affected by any proceeding before the | 0002| regulatory authority, or any person or corporation | 0003| that is a competitor of a public utility with | 0004| respect to any service performed by the utility or | 0005| that desires to enter into competition. | 0006| (2) "Affiliated interest" or "affiliate" means: | 0007| (A) any person or corporation owning or holding | 0008| directly or indirectly, five percent or more | 0009| of the voting securities of a public utility; | 0010| (B) any person or corporation in any chain of | 0011| successive ownership of five percent or more | 0012| of the voting securities of a public utility; | 0013| (C) any corporation five percent or more of the | 0014| voting securities of which is owned or | 0015| controlled, directly or indirectly, by a | 0016| public utility; | 0017| (D) any corporation five percent or more of the | 0018| voting securities of which is owned or | 0019| controlled, directly or indirectly, by any | 0020| person or corporation that owns or controls, | 0021| directly or indirectly, five percent or more | 0022| of the voting securities of any public utility | 0023| or by any person or corporation in any chain | 0024| of successive ownership of five percent of | 0025| such securities; | - 5 - 0001| (E) any person who is an officer or director of a | 0002| public utility or of any corporation in any | 0003| chain of successive ownership of five percent | 0004| or more of voting securities of a public | 0005| utility; | 0006| (F) any person or corporation that the commission, | 0007| after notice and hearing, determines actually | 0008| exercises any substantial influence or control | 0009| over the policies and actions of a public | 0010| utility, or over which a public utility | 0011| exercises that control, or that is under | 0012| common control with a public utility, that | 0013| control being the possession, directly or | 0014| indirectly, of the power to direct or cause | 0015| the direction of the management and policies | 0016| of another, whether that power is established | 0017| through ownership or voting of securities or | 0018| by any other direct or indirect means; or | 0019| (G) any person or corporation that the commission | 0020| after notice and hearing determines is | 0021| actually exercising that substantial influence | 0022| over the policies and action of the public | 0023| utility in conjunction with one or more | 0024| persons or corporations with which they are | 0025| related by ownership or blood relationship, or | - 6 - 0001| by action in concert, that together they are | 0002| affiliated with the public utility within the | 0003| meaning of this section, even though no one of | 0004| them alone is so affiliated. | 0005| (3) "Allocations" means, for all utilities, the | 0006| division of plant, revenues, expenses, taxes, and | 0007| reserves between municipalities or between | 0008| municipalities and unincorporated areas, where | 0009| those items are used for providing public utility | 0010| service in a municipality, or for a municipality | 0011| and unincorporated areas. | 0012| (4) "Commission" means the New Mexico Public Regulatory | 0013| Commission, including its Commissioners, employees | 0014| and counsel. | 0015| (5) "Commissioner" means a member of the New Mexico | 0016| Public Regulation Commission. | 0017| (6) "Corporation" means any corporation, joint-stock | 0018| company, or association, domestic or foreign, and | 0019| its lessees, assignees, trustees, receivers, or | 0020| other successors in interest, having any of the | 0021| powers or privileges of corporations not possessed | 0022| by individuals or partnerships, but does not | 0023| include municipal corporations unless expressly | 0024| provided otherwise in this Act. | 0025| (7) "Facilities" means all the plant and equipment of a | - 7 - 0001| public utility, including all tangible and | 0002| intangible real and personal property without | 0003| limitation, and any and all means and | 0004| instrumentalities in any manner owned, operated, | 0005| leased, licensed, used, controlled, furnished, or | 0006| supplied for, by, or in connection with the | 0007| business of any public utility. | 0008| (8) "Municipally owned utility" means any utility | 0009| owned, operated, and controlled by a municipality | 0010| or by a nonprofit corporation whose directors are | 0011| appointed by one or more municipalities. | 0012| (9) "Office" means the Office of Public Counsel. | 0013| (10) "Order" means the whole or a part of the final | 0014| disposition, whether affirmative, negative, | 0015| injunctive, or declaratory in form, of the | 0016| regulatory authority in a matter other than | 0017| rulemaking, but including issuance of licenses, | 0018| certificates of convenience and necessity and | 0019| ratesetting. | 0020| (11) "Other entities regulated by this Act, but not | 0021| public utilities" means any person, corporation, | 0022| other business entity and affiliates which, by any | 0023| means or technology: | 0024| (A) by motor carrier or railroad, provides | 0025| transportation of persons or goods, whether as | - 8 - 0001| common carriers, contract carriers or | 0002| otherwise, in this state; or | 0003| (B) provides transmission or pipeline services in | 0004| this state, other than those public utilities | 0005| providing transmission or pipeline services; | 0006| or | 0007| (C) provides insurance coverage or related | 0008| services or products and others engaged in | 0009| risk assumption in this state; or | 0010| (D) or engages in business subject to the Business | 0011| Development Corporation Act or the nonprofit | 0012| Corporation Act; or | 0013| (E) or ambulance services | 0014| (F) or provides natural gas in this state; | 0015| (G) or provides water in this state; | 0016| (H) or functions as state fire marshal and related | 0017| functions. | 0018| (12) "Person" includes a natural person, partnership of | 0019| two or more persons having a joint or common | 0020| interest, mutual or cooperative association, | 0021| corporation, rural electric cooperative, rural | 0022| telephone cooperative, lessees, trustees and | 0023| receivers. | 0024| (13) "Proceeding" means any hearing, investigation, | 0025| inquiry, or other fact-finding or decision making | - 9 - 0001| procedure under this Act and includes the denial of | 0002| relief or the dismissal of a complaint. | 0003| (13A) The term "ratemaking proceeding" is limited to | 0004| those proceedings in which rates are changed, | 0005| except the term shall include proceedings | 0006| initiated under Section 2.051 of this Act. | 0007| (14) "Public Utility" means any person, corporation, | 0008| other business entity and affiliates which, by any | 0009| means or technology: | 0010| (a) provides electric power to consumers in this | 0011| state or other electric public utilities; or | 0012| (b) provides telecommunications services to | 0013| consumers in this state or other | 0014| telecommunications public utilities or | 0015| telecommunications firms which are not public | 0016| utilities; or | 0017| (c) provides water to consumers in this state; or | 0018| (d) provides natural gas to consumers in this | 0019| state. | 0020| (15) "Rate" means and includes ever compensation, | 0021| tariff, charge, fare, toll, rental, and | 0022| classification, or any of them demanded, observed, | 0023| charged or collected whether directly or indirectly | 0024| by any public utility for any service, product, or | 0025| commodity described in the definition of "utility" | - 10 - 0001| in Section 2.0011 or 3.002 of this Act and any | 0002| rules, regulations, practices, or contracts | 0003| affecting any such compensation, tariff, charge, | 0004| fare, toll, rental, or classification. | 0005| (16) "Regulatory authority" means in accordance with the | 0006| context where it is found, the commission. | 0007| (17) "Service" is used in this Act in its broadest and | 0008| most inclusive sense and includes any and all acts | 0009| done, rendered, or performed, any and all things | 0010| furnished or supplied, and any and all facilities | 0011| used, furnished, or supplied by public utilities in | 0012| the performance of their duties under this Act to | 0013| their patrons, employees, other public utilities | 0014| and the public, as well as the interchange of | 0015| facilities between two or more of them. The term | 0016| does not include the printing, distribution, or | 0017| sale of advertising in telephone directories. | 0018| (18) "Test year" means the most recent 12 months for | 0019| which operating data for a public utility are | 0020| available and shall commence with a calendar | 0021| quarter or a fiscal year quarter. | 0022| (19) "Trade association" means a nonprofit, cooperative, | 0023| and voluntarily joined association of business or | 0024| professional persons who are employed by public | 0025| utilities or utility competitors to assist the | - 11 - 0001| public utility industry, a utility competitor, or | 0002| the industry's or competitor's employees in dealing | 0003| with mutual business or professional problems and | 0004| in promoting their common interest. | 0005| Sec. 1.004. APPLICABILITY OF RULES OF CIVIL PROCEDURE , The | 0006| RULES OF | 0007| EVIDENCE AND OPEN MEETINGS LAW. | 0008| (a) The Rules of Civil Procedure, and the Rules of | 0009| Evidence, as applied in non-jury trials by the | 0010| District Court shall apply to all proceedings under | 0011| this Act except to the extent inconsistent with | 0012| this Act. | 0013| | 0014| Sec. 1.005. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN | 0015| MANNER OTHER THAN BY SETTING OF RATES. In this Act, an | 0016| entity, utility competitor, or utility | 0017| supplier is considered to be affected in a | 0018| manner other than by the setting of rates for | 0019| that class of customer if during a relevant | 0020| calendar year the entity provides fuel, | 0021| utility-related goods, utility-related | 0022| products, or utility-related services to a | 0023| regulated or unregulated provider of | 0024| telecommunications or electric services or to | 0025| an affiliated interest in an amount equal to | - 12 - 0001| the greater of $10,000 or 10 percent of the | 0002| person's business. | 0003| [Sec. 1.006 - 1.0020 reserved] | 0004| SUBTITLE B. ORGANIZATION OF COMMISSION | 0005| Sec. 1.021. CREATION OF COMMISSION; APPOINTMENT AND TERMS; | 0006| CHAIRMAN | 0007| (a) The New Mexico Public Regulation Commission | 0008| consists of five commissioners, who shall be | 0009| elected from districts for staggered four-year | 0010| terms beginning on | 0011| January 1, 1999. | 0012| (b) Each commissioner shall hold office until his | 0013| successor is appointed and qualified. | 0014| (c) A majority of the five commissioners shall | 0015| designate a member of the commission as chairman of | 0016| the commission. | 0017| (d) Election to the commission shall be made without | 0018| regard to the race, color, disability, sex, | 0019| religion, age, or national origin of the | 0020| candidates. | 0021| Sec. 1.022. QUALIFICATIONS; OATH; PROHIBITED ACTIVITIES. | 0022| (a) To be eligible for election as a commissioner, a | 0023| person must be a qualified voter, a citizen of the | 0024| United States, a resident of the State of New | 0025| Mexico and a resident of the district in which he | - 13 - 0001| or she was elected. | 0002| (b) Each commissioner shall qualify for office by | 0003| taking the oath prescribed for other state | 0004| officers. | 0005| (c) A person is not eligible for election as a | 0006| commissioner if at any time during the two year | 0007| period immediately preceding his election he served | 0008| as a commissioner or executive director of either | 0009| the New Mexico Corporation Commission or the New | 0010| Mexico Public Utility Commission, or as an officer, | 0011| director, owner, employee, partner, lobbyist, or | 0012| legal representative of any public utility, other | 0013| entity regulated by this Act, affiliated interest, | 0014| or direct competitor of a public utility or he | 0015| owned or controlled, directly or indirectly, stocks | 0016| or bonds of any class with a value of $10,000 or | 0017| more in a public utility, other entity regulated by | 0018| this Act, affiliated interest, or direct competitor | 0019| of a public utility. | 0020| (d) A person who is required to register as a lobbyist | 0021| under other laws, because of the person's | 0022| activities for compensation on behalf of a business | 0023| or profession related to the operation of the | 0024| commission may not serve as a member of the | 0025| commission or employee of the commission. | - 14 - 0001| (e) A person is not eligible for election as a | 0002| commissioner or for employment as the general | 0003| counsel or executive director of the commission if: | 0004| (1) The person served or serves on the board of | 0005| directors of a company that supplies fuel, | 0006| utility-related services, or utility-related | 0007| products to regulated or unregulated electric, | 0008| telecommunications, gas or water utilities; or | 0009| other regulated entities; or | 0010| (2) The person or the person's spouse: | 0011| (A) is employed by or participates in the | 0012| management of a business entity or other | 0013| organization regulated by the commission | 0014| or receiving funds from the commission; | 0015| (B) owns or controls directly or indirectly | 0016| more than a 10 percent interest or a | 0017| pecuniary interest with a value | 0018| exceeding $10,000 in: | 0019| (i) a business entity or other | 0020| organization regulated by the | 0021| commission or receiving funds from | 0022| the commission; or | 0023| (ii) any utility competitor, utility | 0024| supplier, or other entity affected | 0025| by a commission decision in a | - 15 - 0001| manner other than by the setting of | 0002| rates for that class of customer; | 0003| (C) uses or receives a substantial amount of | 0004| tangible goods, services, or funds from | 0005| the commission, other than compensation | 0006| or | 0007| reimbursement authorized by law for | 0008| commission membership, attendance, or | 0009| expenses; or | 0010| (D) notwithstanding Paragraph (B) of this | 0011| subdivision, has an interest in a mutual | 0012| fund or retirement fund in which more | 0013| than 10 percent of the fund's holdings | 0014| at the time of appointment is in a | 0015| single utility, utility competitor, or | 0016| utility supplier in this state and the | 0017| person does not disclose this | 0018| information to the governor, senate, | 0019| commission, or other entity, as | 0020| appropriate. | 0021| (f) A person who is a spouse of an officer, | 0022| manager or paid consultant of a trade | 0023| association in the field of public utilities | 0024| may not be a commissioner and may not be a | 0025| commission employee. | - 16 - 0001| Sec. 1.023. PROHIBITED ACTIVITIES | 0002| (a) A commissioner or employee of the commission may | 0003| not do any of the following after his election or | 0004| during his period of service with the commission: | 0005| (1) have any pecuniary interest, either as an | 0006| officer, director, partner, owner, employee, | 0007| attorney, consultant, or otherwise, in any | 0008| public utility, other entity regulated by this | 0009| Act, or affiliated interest, or in any person | 0010| or corporation or other business entity a | 0011| significant portion of whose business consists | 0012| of furnishing goods or services to public | 0013| utilities or affiliated interests, but not | 0014| including a nonprofit group or association | 0015| solely | 0016| supported by gratuitous contributions of | 0017| money, property or services, other than a | 0018| trade association; | 0019| (2) own or control any securities in a public | 0020| utility, other entity regulated by this Act, | 0021| affiliated interest, or direct competitor of a | 0022| public utility, either directly or indirectly; | 0023| or | 0024| (3) accept any gift, gratuity, or entertainment | 0025| whatsoever from any public utility, other | - 17 - 0001| entity regulated by this Act, affiliated | 0002| interest, or direct competitor of a public | 0003| utility, or from any person, corporation, | 0004| agent, representative, employee, or other | 0005| business entity a significant portion of whose | 0006| business consists of furnishing goods or | 0007| services to public utilities, affiliated | 0008| interests, or direct competitors of public | 0009| utilities or from any agent, representative, | 0010| attorney, employee, officer, owner, director | 0011| or partner of any such business entity or of | 0012| any public utility, affiliated interest, or | 0013| direct competitor of a public utility; | 0014| provided, however, that the receipt and | 0015| acceptance of any gifts, gratuities, or | 0016| entertainment after termination of service | 0017| with the commission whose cumulative value in | 0018| any one-year period is less than $100 does not | 0019| constitute a violation of this Act. | 0020| (b) The prohibited activities of this section do not | 0021| include contracts for public utility products and | 0022| services or equipment for use of public utility | 0023| products when a member or employee of the | 0024| commission is acting as a consumer. | 0025| (c) A commissioner or employee of the commission may | - 18 - 0001| not directly or indirectly solicit or request from | 0002| or suggest or recommend to any public utility, | 0003| other entity regulated by this Act, or to any | 0004| affiliate, agent, representative, attorney, | 0005| employee, | 0006| officer, owner, director, or partner thereof the | 0007| appointment to any position or the employment in | 0008| any capacity of any person by such public utility | 0009| other entity regulated by this Act, or affiliated | 0010| interest. | 0011| (d) A public utility, other entity regulated by this | 0012| Act, affiliated interest, or direct competitor of a | 0013| public utility, or any person, corporation, firm, | 0014| association, or business that furnishes goods or | 0015| services to any public utility, other entity | 0016| regulated by this Act, affiliated interest, or | 0017| direct competitor of a public utility, or any | 0018| agent, representative, attorney, employee, officer, | 0019| owner, director, or partner of any public utility, | 0020| other entity regulated by this act, affiliated | 0021| interest or direct competitor of a public utility, | 0022| or any person, corporation, firm, association, or | 0023| business furnishing goods or services to any public | 0024| utility, other entity regulated by this Act, | 0025| affiliated interest, or direct competitor of a | - 19 - 0001| public utility may not give or offer to give any | 0002| gift, gratuity, employment, or entertainment | 0003| whatsoever to any commissioner, employee or counsel | 0004| of the commission except as allowed by Subdivision | 0005| (3) of Subsection (a) of this section, nor may any | 0006| such public utility, other entity regulated by this | 0007| Act, affiliated interest, or direct competitor of a | 0008| public utility or any such person, corporation, | 0009| firm, association, or business aid, abet, or | 0010| participate with any commissioner, employee, or | 0011| former employee of the commission in any activity | 0012| or conduct that would constitute a violation of | 0013| this subsection or Subdivision (3) of Subsection | 0014| (a) of this section. | 0015| (e) A commissioner may not seek nomination, election or | 0016| appointment to any other office of the State of New | 0017| Mexico or of the United States while he is a | 0018| commissioner. If any commissioner files for | 0019| nomination for or election to any | 0020| office of the State of New Mexico or of the United | 0021| States, his office as commissioner immediately | 0022| becomes vacant, and the governor shall appoint a | 0023| successor. | 0024| Sec. 1.024. PROHIBITION OF EMPLOYMENT OR REPRESENTATION | 0025| (a) A commissioner may not within two years, and an | - 20 - 0001| employee of the commission or its counsel may not, | 0002| within one year after his employment with the | 0003| commission has ceased, be employed by a public | 0004| utility or other entity regulated by this Act. | 0005| (b) During the time a commissioner or employee of the | 0006| commission is associated with the commission or at | 0007| any time after, the commissioner or employee may | 0008| not represent a person, corporation, or other | 0009| business entity before the commission or a court in | 0010| a matter which came before the Commission while | 0011| associated with the commission. | 0012| (c) The executive director or the executive director's | 0013| designee shall provide to members of the commission | 0014| and to agency employees as often as necessary | 0015| information regarding their qualifications for | 0016| office or employment under this Act and their | 0017| responsibilities under applicable laws relating to | 0018| standards of conduct for state officers and | 0019| employees. | 0020| Sec. 1.025. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS. | 0021| (a) It is a ground for removal from the commission if a | 0022| commissioner or employee: | 0023| (1) does not have at the time of election or | 0024| appointment the qualifications required by | 0025| Section 1.023 of this Act; | - 21 - 0001| (2) does not maintain during service on the | 0002| commission the qualifications required by | 0003| Section 1.023 of this Act; | 0004| (3) violates a prohibition established by Section | 0005| 1.023, 1.024, or 1.025 of this Act; | 0006| (4) cannot discharge the person's duties for a | 0007| substantial part of the term for which the | 0008| person is elected or appointed because of | 0009| illness or disability; or | 0010| (5) is absent from more than 20% of the regularly | 0011| scheduled commission meetings that the | 0012| commissioner is eligible to attend during a | 0013| calendar year unless the absence is excused by | 0014| majority vote of the commission. | 0015| (b) The validity of an action of the commission is not | 0016| affected by the fact that it is taken when a ground | 0017| for removal of a commissioner exists. | 0018| (c) If the executive director has or receives knowledge | 0019| that a potential ground for removal of a | 0020| commissioner exists, the executive director shall | 0021| notify the chairman of the commission of the | 0022| potential ground. The chairman shall then notify | 0023| the governor and the attorney general that a | 0024| potential ground for removal exists. If the | 0025| potential ground for removal involves the chairman | - 22 - 0001| of the commission, the executive director shall | 0002| notify two other commissioners who shall notify the | 0003| governor and the attorney general that a potential | 0004| ground for removal exists. | 0005| (d) Before a commissioner may assume his duties, | 0006| commissioner must complete at least one course of | 0007| the training program established under this | 0008| section. | 0009| (e) A training program established under this section | 0010| shall provide information to the member regarding: | 0011| (1) the enabling legislation that created the | 0012| commission and its policymaking body to which | 0013| the member is appointed to serve; | 0014| (2) the programs operated by the commission; | 0015| (3) the jurisdiction, role and functions of the | 0016| commission; | 0017| (4) the rules of the commission with an emphasis | 0018| on the rules that relate to disciplinary and | 0019| investigatory authority; | 0020| (5) the current budget for the commission; | 0021| (6) the results of the most recent formal audit of | 0022| the commission; | 0023| (7) the requirements of other applicable laws. | 0024| (8) the requirements of the conflict of interest | 0025| laws and other laws relating to public | - 23 - 0001| officials; and | 0002| (9) any applicable ethics policies adopted by the | 0003| commission or the New Mexico Ethics | 0004| Commission. | 0005| (10) the rules of procedure and evidence. | 0006| Sec. 1.026. VACANCIES. Whenever a vacancy in the office of a | 0007| commissioner occurs, it shall be filled by appointment by | 0008| the governor under the laws | 0009| applicable to other | 0010| appointments, except that the | 0011| governor may make interim | 0012| appointments to continue until | 0013| the vacancy can be filled in | 0014| the manner provided. Any | 0015| person appointed with the | 0016| advice and consent of the | 0017| senate to fill a vacancy shall | 0018| hold office during the | 0019| unexpired portion of the term. | 0020| Sec. 1.027. EMPLOYEES | 0021| (a) The commission shall employ an executive director, a | 0022| general counsel, and such officers and other employees as | 0023| it deems necessary to carry out the provisions of this | 0024| Act. All employees will receive such compensation as is | 0025| fixed by the legislature. The commission shall develop | - 24 - 0001| and implement policies that clearly define the respective | 0002| responsibilities of the commission and the staff of the | 0003| commission. | 0004| (b) The executive director is responsible for the day-to-day | 0005| operations of the commission and shall coordinate the | 0006| activities of division directors and other employees. | 0007| (c) The general counsel and his staff are responsible for the | 0008| gathering of information relating to all matters within | 0009| the authority of the commission in order to represent the | 0010| Commission. | 0011| (d) The duties of the general counsel include: | 0012| (1) accumulation of evidence and other information from | 0013| public utilities and from the accounting and | 0014| technical and other staffs of the commission and | 0015| from other sources for the purposes specified | 0016| herein; | 0017| (2) conduct of investigations of public utilities under | 0018| the jurisdiction of the commission; | 0019| (3) preparation of proposed changes in the rules of the | 0020| commission; | 0021| (4) preparation of recommendations that the commission | 0022| undertake investigation of any matter within its | 0023| authority; | 0024| (5) preparation of recommendations and report of such | 0025| staff for inclusion in the annual report of the | - 25 - 0001| commission; | 0002| (6) such other activities as are reasonably necessary | 0003| to enable him to perform his duties. | 0004| (7) the general counsel shall not represent the staff | 0005| or any party in any proceeding, but shall limit his | 0006| function to rendering legal advice to the | 0007| commission. | 0008| | 0009| | 0010| Sec. 1.028. DIVISIONS; DIVISION DIRECTORS. | 0011| (a) With the consent of the commission, the Executive | 0012| Director shall appoint division directors. | 0013| Appointments shall be made without reference to | 0014| party affiliation and solely on the ground of | 0015| fitness to perform the duties of their offices. | 0016| (b) Each director, with the consent of the chief of | 0017| staff, shall employ such professional, technical | 0018| and support staff as necessary to carry out the | 0019| duties of his division. Employees shall be hired | 0020| solely on the ground of their fitness to perform | 0021| the job for which they are hired. Division staff | 0022| are subject to the provisions of the Personnel Act. | 0023| (c) The commission shall include the following | 0024| organizational units, called divisions: | 0025| A. the administrative services division; | - 26 - 0001| B. the consumer relations division; | 0002| C. the insurance division; | 0003| D. the legal division; | 0004| E. the transportation division; and | 0005| F. the utility division | 0006| Sec. 1.029. [NEW MATERIAL] ADMINISTRATIVE SERVICES DIVISION | 0007| CHIEF CLERK | 0008| (a) The Executive Director shall appoint a "chief | 0009| clerk" who shall record the judgments, rules, | 0010| orders and other proceedings of the commission and | 0011| make a complete index to the judgments, rules, | 0012| orders and other proceedings; issue and attest all | 0013| processes issuing from the commission and affix the | 0014| seal of the commission to them; and preserve the | 0015| seal and other property belonging to the | 0016| commission. | 0017| (b) The chief clerk shall direct the administrative | 0018| services division, including the "corporations | 0019| bureau" and the following functions: | 0020| (1) case docketing; | 0021| (2) budget and accounting; | 0022| (3) personnel services; | 0023| (4) procurement; and | 0024| (5) information systems services. | 0025| (c) The corporations bureau shall perform the functions | - 27 - 0001| of the corporation department of the former state | 0002| corporation commission. | 0003| Sec. 1.030. CONSUMER RELATIONS DIVISION. | 0004| (a) The consumer relations division shall: | 0005| (1) receive and investigate nondocketed consumer | 0006| complaints and assist consumers in resolving, | 0007| in a fair and timely manner, complaints | 0008| against a person under the authority of the | 0009| commission, including mediation and other | 0010| methods of alternative dispute resolution | 0011| provided, however, that assistance pursuant to | 0012| this paragraph does not include legal | 0013| representation of a private complainant in an | 0014| adjudicatory proceeding; | 0015| (2) work with the consumer protection division of | 0016| the attorney general's office, the governor's | 0017| constituent services office and other state | 0018| agencies as needed to ensure fair and timely | 0019| resolution of complaints; | 0020| (3) advise the commission on how to maximize | 0021| public input into commission proceedings, | 0022| including ways to eliminate language, | 0023| disability and other barriers; | 0024| (4) identify, research and advise the commission | 0025| on consumer issues; | - 28 - 0001| (5) assist the commission in the development and | 0002| implementation of consumer policies and | 0003| programs; and | 0004| (6) perform such other duties as prescribed by the | 0005| commission. | 0006| (b) All complaints received by the division with regard | 0007| to quality or quantity of service provided by a | 0008| regulated entity or its competitors shall be | 0009| recorded by the division for the purpose of | 0010| determining general concerns of consumers. A | 0011| report of consumer complaints and their status | 0012| shall be included in the commission's annual | 0013| report. | 0014| Sec. 1.031. INSURANCE DIVISION. | 0015| (a) The director of the insurance division is the | 0016| "superintendent of insurance" and shall have all | 0017| the powers and duties prescribed to him in the New | 0018| Mexico Insurance Code. | 0019| (b) The insurance division shall consist of such | 0020| bureaus as the superintendent of insurance | 0021| determines for orderly conduct of business. | 0022| Sec. 1.032. LEGAL DIVISION. | 0023| (a) The commission shall set minimum requirements for | 0024| the director of the legal division, including | 0025| membership in the New Mexico bar and administrative | - 29 - 0001| and supervisory experience. | 0002| (b) The legal division shall: | 0003| (1) provide legal counsel for the commission in | 0004| matters not involving advice on contested | 0005| proceedings before the commission; and | 0006| (2) provide legal counsel to all divisions, | 0007| including the legal component of the staff | 0008| that represents the public interest in matters | 0009| before the commission. | 0010| | 0011| Sec. 1.033. TRANSPORTATION DIVISION. The transportation | 0012| division shall serve as staff to | 0013| the commission for the following functions, as provided | 0014| by law: | 0015| (a) motor carrier regulation and enforcement; | 0016| (b) railroad safety enforcement; | 0017| (c) pipeline safety; and | 0018| (d) ambulance standards | 0019| Sec. 1.034. UTILITY DIVISION. | 0020| (a) The utility division shall serve as staff to the | 0021| commission in the regulation of electric, natural | 0022| gas, telecommunications and water and wastewater | 0023| systems as provided by law. | 0024| (b) The commission shall set minimum educational and | 0025| experience requirements for the director of the | - 30 - 0001| utility division. | 0002| (c) The utility division shall represent the public | 0003| interest in utility matters before the commission | 0004| and may present testimony and cross-examine | 0005| witnesses. | 0006| (d) The utility division shall perform the functions of | 0007| the telecommunications department of the former | 0008| state corporation commission and staff functions, | 0009| not including advisory functions, of the former New | 0010| Mexico public utility commission. | 0011| (e) Utility division staff shall not have ex parte | 0012| communications with commissioners or a hearing | 0013| examiner assigned to a utility case. | 0014| Sec. 1.035. ADVISORY STAFF. | 0015| (a) The Executive Director may hire, with the consent | 0016| of the commission, advisory staff with expertise in | 0017| regulatory law, engineering, economics and other | 0018| professional or technical disciplines to advise the | 0019| commission on any matter before the commission. | 0020| The Executive Director may hire on a temporary, | 0021| term or contract basis such other experts or staff | 0022| as the commission requires for a particular case. | 0023| (b) Advisory staff shall: | 0024| (1) analyze case records; | 0025| (2) analyze recommended decision; | - 31 - 0001| (3) advise the commission on policy issues; | 0002| (4) assist the commission in the development of | 0003| rules; | 0004| (5) assist the commission in writing final orders; | 0005| and | 0006| (6) perform other duties as required by the chief | 0007| of staff. | 0008| Sec. 1.036. HEARING EXAMINERS. | 0009| (a) The commission may appoint a commissioner or a | 0010| hearing examiner to preside over any matter before | 0011| the commission, including rulemakings, adjudicatory | 0012| hearings and administrative matters. | 0013| (b) Except as provided in the New Mexico Insurance | 0014| Code, a hearing examiner shall provide the | 0015| commission with a recommended decision on the | 0016| matter assigned to him, including findings of fact | 0017| and conclusions of law. The recommended decision | 0018| shall be provided to the parties, and they may file | 0019| exceptions to the decision prior to the final | 0020| decision of the commission. | 0021| Sec. 1.037. PERSONNEL POLICIES | 0022| (a) The executive director or the executive director's | 0023| designee shall develop an intra-agency career ladder | 0024| program that addresses opportunities for mobility and | 0025| advancement for employees of the commission. The program | - 32 - 0001| shall require intra-agency posting of all positions | 0002| concurrently with any public posting. The executive | 0003| director or the executive director's designee shall | 0004| develop a system of annual performance evaluations that | 0005| are based on documented employee performance. All merit | 0006| pay for commission employees must be based on the system | 0007| established under this section. | 0008| (b) The executive director or the executive director's | 0009| designee shall prepare and maintain a written policy | 0010| statement to assure implementation of a program of equal | 0011| employment opportunity under which all personnel | 0012| transactions are made without regard to race, color, | 0013| disability, sex, religion, age, or national origin. The | 0014| policy statement must include: | 0015| (1) personnel policies that comply with the State | 0016| Personnel Office Act including policies relating to | 0017| recruitment, evaluation, selection, appointment, | 0018| training, and promotion of personnel; | 0019| (2) a comprehensive analysis of the commission | 0020| workforce that meets federal and state guidelines. | 0021| (3) procedures by which a determination can be made | 0022| about the extent of underuse in the commission | 0023| workforce of all persons for whom federal or state | 0024| guidelines encourage a more equitable balance; and | 0025| (4) reasonable methods to appropriately address the | - 33 - 0001| underuse. | 0002| (c) The policy statement required under Subsection (b) of | 0003| this section must cover an annual period, be updated at | 0004| least annually and reviewed by the State Personnel Office | 0005| for compliance with Subsection (b)(1) of this section, | 0006| and be filed with the governors office. | 0007| (d) The governor's office shall deliver a biennial report to | 0008| the legislature based on the information received under | 0009| Subsection (c) of this section. The report may be made | 0010| separately or as a part of other biennial reports made to | 0011| the legislature. | 0012| Sec. 1.038. SALARY. The annual salary of the commissioners | 0013| shall be determined by the legislature. | 0014| | 0015| Sec. 1.039. OFFICE; MEETINGS. | 0016| (a) The principal office of the commission shall be | 0017| located in the City of Santa Fe, New Mexico and | 0018| shall be open daily during the usual business | 0019| hours, Saturdays, Sundays, and legal holidays | 0020| excepted. The commission shall hold meetings at | 0021| its office and at such other convenient places in | 0022| the state as shall be expedient and necessary for | 0023| the proper performance of its duties. | 0024| (b) The commission shall develop and implement policies | 0025| that provide the public with a fair and reasonable | - 34 - 0001| opportunity to appear before the commission and to | 0002| speak on any issue under the jurisdiction of the | 0003| commission. | 0004| Sec. 1.040. SEAL. The commission shall have a seal bearing | 0005| the following inscription: "New Mexico Public Regulation | 0006| Commission." The seal | 0007| shall be affixed to all | 0008| records and | 0009| authentications of | 0010| copies of records and to | 0011| such other instruments | 0012| as the commission shall | 0013| direct. All courts of | 0014| the state shall take | 0015| judicial notice of said | 0016| seal. | 0017| Sec. 1.041. QUORUM. A majority of the commissioners shall | 0018| constitute a quorum for the transaction of any business, | 0019| for the performance of any | 0020| duty, or for the exercise of | 0021| any power of the commission. | 0022| A vacancy or disqualification | 0023| does not prevent the remaining | 0024| commissioner or commissioners | 0025| from exercising all the powers | - 35 - 0001| of the commission. | 0002| Sec. 1.042. ORDERS; TRANSCRIPT AND EXHIBITS; PUBLIC RECORDS. | 0003| All orders of the commission shall be in writing and shall | 0004| contain detailed findings of the facts upon | 0005| which they are based. The commission shall | 0006| retain a copy of the transcript and the | 0007| exhibits in any matter in which the commission | 0008| issues an order. All files pertaining to | 0009| matters which were at any time pending before | 0010| the commission and to records, reports, and | 0011| inspections required by Subtitle E of this title, Tile II | 0012| of this Act, and Title III of this Act shall be public | 0013| records, subject to the terms of the Public Records Act. | 0014| Sec. 1.043. ANNUAL REPORT. | 0015| (a) The commission shall prepare annually a complete | 0016| and detailed written report accounting for all | 0017| funds received and disbursed by the commission | 0018| during the preceding fiscal year. The annual | 0019| report must meet the reporting requirements | 0020| established by law. | 0021| (b) In the annual report issued in the year preceding | 0022| the convening of each regular session of the | 0023| legislature, the commission shall make such | 0024| suggestions regarding modification and improvement | 0025| of the commission's statutory authority and for the | - 36 - 0001| improvement of utility regulation in general as it | 0002| may deem appropriate for protecting and furthering | 0003| the interest of the public. | 0004| Sec. 1.044. INFORMATION; ACCESSIBILITY. | 0005| (a) The commission shall prepare information of public | 0006| interest describing the functions of the commission | 0007| and the commission's procedures by which complaints | 0008| are filed with an resolved by the commission. The | 0009| commission shall make the information available to | 0010| the public and appropriate state agencies. | 0011| (b) The commission by rule shall establish methods by | 0012| which consumers and service recipients are notified | 0013| of the name, mailing address, and telephone number | 0014| of the commission for the purpose of directing | 0015| complaints to the commission. | 0016| (c) The commission shall comply with federal and state | 0017| laws related to program and facility accessibility. | 0018| The commission shall also prepare and maintain a | 0019| written plan that describes how a person who does | 0020| not speak English can be provided reasonable access | 0021| to the commission's programs and services. | 0022| Sec. 1.045. ATTORNEY GENERAL TO REPRESENT COMMISSION. The | 0023| Attorney General of the State of New Mexico shall | 0024| represent the commission in all matters | 0025| before the state | - 37 - 0001| courts, any court of the United States, and any federal | 0002| public utility regulatory commission. | 0003| Sec. 1.046. COMPENSATION OF COMMISSIONERS. | 0004| (a) Section 8-1-1 NMSA 1978 (being Laws 1971, Chapter | 0005| 260, Section 1, as amended) is amended to read: | 0006| "8-1-1. COMPENSATION OF ELECTIVE STATE OFFICERS. | 0007| A. Annual compensation of elective state officers | 0008| shall be paid as follows: | 0009| governor. . . . . . . . . . . . . . .$90,000 | 0010| secretary of state. . . . . . . . . . 65,000 | 0011| state auditor . . . . . . . . . . . . 65,000 | 0012| state treasurer . . . . . . . . . . . 65,000 | 0013| attorney general. . . . . . . . . . . 72,500 | 0014| commissioner of public lands. . . . . 72,500 | 0015| [state corporation] public regulation | 0016| commissioner . . . . . . . . . . . . . . . [65,000] 72,500 | 0017| B. Any person succeeding to the office of | 0018| governor as provided in Article 5, Section 7 | 0019| of the constitution of New Mexico shall | 0020| receive the salary of the office. Every | 0021| person serving as acting governor during the | 0022| incapacity or absence of the governor from the | 0023| state, other than the secretary of state, | 0024| shall receive one hundred fifty dollars ($150) | 0025| as compensation for each day's service as | - 38 - 0001| acting governor. | 0002| C. All compensation under this section shall be | 0003| paid from the general fund, except that the | 0004| amount paid to the commissioner of public | 0005| lands shall be paid from the state [land | 0006| office] lands maintenance fund." | 0007| SUBTITLE C. OFFICE OF PUBLIC COUNSEL | 0008| Sec. 1.051. OFFICE OF PUBLIC COUNSEL | 0009| (a) The independent Office of Public Counsel represents | 0010| the interests of residential and small commercial | 0011| consumers of products or services provided by | 0012| public utilities' and other entities' regulated by | 0013| this Act. | 0014| (b) The chief executive of the office is the public | 0015| counsel, hereinafter referred to as counselor. The | 0016| counselor is appointed by the governor with the | 0017| advice and consent of the senate to a two-year term | 0018| that expires on February 1 of the final year of the | 0019| term. Appointment of the counselor shall be made | 0020| without regard to the race, color, disability, sex, | 0021| religion, age, or national origin of the appointee. | 0022| (c) The counselor shall be a resident of New Mexico and | 0023| admitted to the practice of law in this state who | 0024| has demonstrated a strong commitment and | 0025| involvement in efforts to safeguard the rights of | - 39 - 0001| the public and possesses the knowledge and | 0002| experience necessary to practice effectively in | 0003| commission proceedings. | 0004| (d) A person is not eligible for appointment as | 0005| counselor if the person or the person's spouse: | 0006| (1) is employed or participates in the management | 0007| of a public utility or other entity regulated | 0008| by the commission or receiving funds from the | 0009| commission; | 0010| (2) owns or controls, directly or indirectly more | 0011| than a 10 percent interest or a pecuniary | 0012| interest with a value exceeding $10,000 in: | 0013| (A) a business entity or other organization | 0014| regulated by the commission or receiving | 0015| funds from the commission or the office; | 0016| or | 0017| (B) any utility competitor, utility | 0018| supplier, or other entity affected by a | 0019| commission decision in a manner other | 0020| than by the setting of rates for that | 0021| class of customer; | 0022| (3) uses or receives a substantial amount of | 0023| tangible goods, services, or funds from the | 0024| commission or the office, other than | 0025| compensation or reimbursement authorized by | - 40 - 0001| law for counselor or commission membership, | 0002| attendance, or expenses; or | 0003| (e) An officer, employee, or paid consultant of a | 0004| trade association in the field of public | 0005| utilities or other entities regulated by this | 0006| Act may not serve as counselor or be an | 0007| employee of the office who is exempt from the | 0008| state's position classification plan or is | 0009| compensated at or above the amount prescribed | 0010| for the position. A person who is the spouse | 0011| of an officer, manager, or paid consultant of | 0012| a trade association in the field of public | 0013| utilities, or other entities regulated by this | 0014| Act, may not serve as counselor and may not be | 0015| an office employee who is exempt from the | 0016| state's position classification plan or is | 0017| compensated at or above the amount prescribed | 0018| for the position. | 0019| Sec. 1.0511. GROUNDS FOR REMOVAL | 0020| (a) It is a ground for removal from office if the | 0021| counselor: | 0022| (1) does not have at the time of appointment the | 0023| qualifications required by Section 1.051 of | 0024| this Act; | 0025| (2) does not maintain during service as counselor | - 41 - 0001| the qualifications required by Section 1.051 | 0002| of this Act; | 0003| (3) violates a prohibition established by Section | 0004| 1.051 or 1.0512 of this Act; or | 0005| (4) cannot discharge the counselor's duties for a | 0006| substantial part of the term for which the | 0007| counselor is appointed because of illness or | 0008| disability. | 0009| (b) The validity of an action of the office is not | 0010| affected by the fact that it is taken when a ground | 0011| for removal of the counselor exists. | 0012| Sec. 1.052. PROHIBITION OF EMPLOYMENT OR REPRESENTATION. | 0013| (a) The counselor may not within two years and an | 0014| employee of the office may not within one year | 0015| after his employment with the office has ceased, be | 0016| employed by a public utility which was in the scope | 0017| of the counselor's or employee's official | 0018| responsibility while the counselor or employee was | 0019| associated with the office. | 0020| (b) During the time the counselor or an employee of the | 0021| office is associated with the office or at any time | 0022| after, the counselor or employee may not represent | 0023| a person, corporation, or other business entity | 0024| before the commission or a court in a matter in | 0025| which the counselor or employee was personally | - 42 - 0001| involved while associated with the office or a | 0002| matter that was within the counselor's or | 0003| employee's official responsibility while the | 0004| counselor or employee was associated with the | 0005| office. | 0006| Sec. 1.053. INFORMATION; ACCESSIBILITY | 0007| (a) The office shall prepare annually a complete and | 0008| detailed written report accounting for all funds | 0009| received and disbursed by the office during the | 0010| preceding fiscal year. The annual report must meet | 0011| the reporting requirements applicable to financial | 0012| reporting provided in the General Appropriations | 0013| Act. | 0014| (b) The office shall prepare information of public | 0015| interest describing the functions of the office. | 0016| The office shall make the information available to | 0017| the public and appropriate state agencies. | 0018| (c) The office shall comply with federal and state laws | 0019| related to program and facility accessibility. The | 0020| office shall also prepare and maintain a written | 0021| plan that describes how a person who does not speak | 0022| English can be provided reasonable access to the | 0023| office's programs and services. | 0024| Sec. 1.054. INTEREST PROHIBITED. During the period of the | 0025| counselor's employment and for a period of two years | - 43 - 0001| following the termination of | 0002| employment, it shall be | 0003| unlawful for any person | 0004| employed as counselor to have | 0005| a direct or indirect interest | 0006| in any utility company | 0007| regulated under this Act, to | 0008| provide legal services | 0009| directly or indirectly to or | 0010| be employed in any capacity by | 0011| a utility company regulated | 0012| under this Act, its parent, or | 0013| its subsidiary companies, | 0014| corporations, or cooperatives | 0015| or a utility competitor, | 0016| utility supplier, or other | 0017| entity affected in a manner | 0018| other than by the setting of | 0019| rates for that class of | 0020| customer; but such person may | 0021| otherwise engage in the | 0022| private practice of law after | 0023| the termination of employment | 0024| as counselor. | 0025| Sec. 1.055. EMPLOYEES. | - 44 - 0001| (a) The counselor may employ such lawyers, economists, | 0002| engineers, consultants, statisticians, accountants, | 0003| clerical staff, and other employees as he or she | 0004| deems necessary to carry out the provisions of this | 0005| section. All employees shall receive such | 0006| compensation as is fixed by the legislature from | 0007| the assessment imposed by Section 1.351 of this | 0008| Act. [Sec. 15A(c)] | 0009| (b) The counselor or the counselor's designee shall | 0010| develop an intra-agency career ladder program that | 0011| addresses opportunities for mobility and | 0012| advancement for employees within the office. The | 0013| program shall require intra-agency postings of all | 0014| positions concurrently with any public posting. | 0015| The counselor or the counselor's designee shall | 0016| develop a system of annual performance evaluations | 0017| that are based on documented employee performance. | 0018| All merit pay for office employees must be based on | 0019| the system established under this subsection. | 0020| (c) The counselor or the counselor's designee shall | 0021| prepare and maintain a written policy statement to | 0022| assure implementation of a program of equal | 0023| employment opportunity under which all personnel | 0024| transactions are made without regard to race, | 0025| color, disability, sex, religion, age, or national | - 45 - 0001| origin. The policy statement must include: | 0002| (1) personnel policies that comply with Chapter | 0003| 21, Labor Code, including policies relating to | 0004| recruitment, evaluation, selection, | 0005| appointment, training, and promotion of | 0006| personnel; | 0007| (2) a comprehensive analysis of the office | 0008| workforce that meets federal and state | 0009| guidelines; | 0010| (3) procedures by which a determination can be | 0011| made about the extent of underuse in the | 0012| office workforce of all persons for whom | 0013| federal or state guidelines encourage a more | 0014| equitable balance; and | 0015| (4) reasonable methods to appropriately address | 0016| the underuse. | 0017| (d) The office shall provide to its employees, as often | 0018| as necessary, information regarding their | 0019| qualification for office or employment under this | 0020| Act and their | 0021| responsibilities under applicable laws relating to | 0022| standards of conduct for state officers or | 0023| employees. | 0024| Sec. 1.056. POWERS AND DUTIES. | 0025| (a) The Office of Public Counsel: | - 46 - 0001| (1) shall assess the impact of utility rate | 0002| changes and other regulatory actions of the | 0003| commission on residential consumers in the | 0004| State of New Mexico and shall be an advocate | 0005| in its own name of positions most advantageous | 0006| to a substantial number of such consumers as | 0007| determined by the counselor; | 0008| (2) may appear or intervene as a matter of right | 0009| as a party or otherwise on behalf of | 0010| residential consumers, as a class, in all | 0011| proceedings before the commission; | 0012| (3) may appear or intervene as a matter of right | 0013| as a party or otherwise on behalf of small | 0014| commercial consumers, as a class, in all | 0015| proceedings where it is deemed by the | 0016| counselor that small commercial consumers are | 0017| in need of representation; | 0018| (4) may initiate or intervene as a matter of right | 0019| or otherwise appear in any judicial | 0020| proceedings involving or arising out of any | 0021| action taken by an administrative agency in a | 0022| proceeding in which the counselor was | 0023| authorized to appear; | 0024| (5) may have access as any party to all records | 0025| gathered by the commission under the authority | - 47 - 0001| of Subsection (a) of Section 1.203 of this | 0002| Act; | 0003| (6) may obtain discovery of any non privileged | 0004| matter which is relevant to the subject matter | 0005| involved in any proceeding or petition before | 0006| the commission; | 0007| (7) may represent individual residential and small | 0008| commercial consumers with respect to their | 0009| disputed complaints concerning utility | 0010| services and other services or products of | 0011| other entities regulated by the commission | 0012| which are unresolved before the commission; | 0013| and | 0014| (8) may recommend legislation to the legislature | 0015| which in its judgment would positively affect | 0016| the interests of residential and small | 0017| commercial consumers. | 0018| (b) Nothing in this section shall be construed as in | 0019| any way limiting the authority of the commission to | 0020| represent residential or small commercial | 0021| consumers. | 0022| (c) The appearance of the counselor in any proceedings | 0023| in no way precludes the appearance of other parties | 0024| on behalf of residential ratepayers or small | 0025| commercial consumers. The counselor may not be | - 48 - 0001| grouped with any other parties. | 0002| | 0003| SUBTITLE D. COMMISSION JURISDICTION AND DUTIES | 0004| Sec. 1.101. GENERAL POWER; RULES; HEARINGS. | 0005| (a) The commission has the general power to regulate | 0006| and supervise the business of every public utility | 0007| and other entities regulated by the Commission | 0008| within its jurisdiction and to do all things, | 0009| whether specifically designated in this Act or | 0010| implied herein, necessary and convenient to the | 0011| exercise of this power and jurisdiction. | 0012| (b) The commission shall enforce the rules of procedure | 0013| and rules of evidence as applicable to the District | 0014| courts in a non-jury trial. | 0015| (c) The commission shall call and hold hearings, | 0016| enforce requests for documents, oral depositions, | 0017| and other pretrial discovery, administer oaths, | 0018| receive evidence at hearings, issue subpoenas to | 0019| compel the attendance of witnesses and the | 0020| production of papers and documents, and make | 0021| findings of fact and conclusions of law in | 0022| connection with all decisions in administering the | 0023| provisions of this Act or the rules, orders, or | 0024| other actions of the commission. | 0025| (d) Hearings in contested cases shall be conducted by | - 49 - 0001| the State Office of Administrative Hearings which | 0002| shall in all respects, function independently from | 0003| the commission. The commission may delegate to the | 0004| utility division of the State office of | 0005| Administrative Hearings, the authority to make a | 0006| final decision and to issue findings of fact, | 0007| conclusions of law, and other necessary orders in a | 0008| proceeding in which there is no contested issue of | 0009| fact or law. The commission by rule shall define | 0010| the procedures by which its delegates final | 0011| decision making authority authorized by this | 0012| section. For review purposes the final decision of | 0013| the administrative law judge has the same effect as | 0014| a final decision of the commission unless two | 0015| commissioners request a formal review of the | 0016| decision by the commission. | 0017| Sec. 1.102. PROCEDURES FOR ADOPTION OF RULES. | 0018| (a) The commission shall on or before January 1, 2000, | 0019| after notice and hearing, adopt procedural and | 0020| substantive rules as are lawful and necessary to | 0021| implement the duties and protect the rights of the | 0022| commission and those who are regulated by the | 0023| commission. Unless otherwise provided by law, no | 0024| rule affecting a person outside the commission | 0025| shall be adopted, amended or repealed except after | - 50 - 0001| public notice and public hearing before the | 0002| commission or a hearing examiner designated by the | 0003| commission. | 0004| (b) Notice of the subject matter of the rule, the | 0005| action proposed to be taken, the manner in which | 0006| interested persons may present their views and the | 0007| method by which copies of the proposed rule, | 0008| amendment or repealing provisions may be obtained | 0009| shall be published at least once at least thirty | 0010| days prior to the hearing date in a newspaper of | 0011| general circulation and mailed at least thirty days | 0012| prior to | 0013| the hearing date to all persons who have made a | 0014| written request for advance notice. Additional | 0015| notice may be made by posting on the Internet or by | 0016| using other alternative methods of informing | 0017| interested persons. | 0018| (c) If the commission finds that immediate adoption, | 0019| amendment or suspension of a rule is necessary for | 0020| the preservation of the public peace, health, | 0021| safety or general welfare, the commission may | 0022| dispense with notice and public hearing and adopt, | 0023| amend or suspend the rule as an emergency. The | 0024| commission's finding of why an emergency exists | 0025| shall be incorporated in the emergency rule, | - 51 - 0001| amendment or suspension filed with the state | 0002| records center. Upon adoption of an emergency rule | 0003| that is intended to remain in effect for longer | 0004| than sixty days, notice shall be given within seven | 0005| days of filing the rule as required in this section | 0006| for proposed rules. | 0007| (d) The commission shall issue a rule within eighteen | 0008| months following the publication of that proposed | 0009| rule or it shall be deemed to be withdrawn. The | 0010| commission may propose the same or revised rule in | 0011| a subsequent rulemaking. | 0012| (e) All rules shall be filed in accordance with the | 0013| State Rules Act and shall be effective fifteen days | 0014| after filing unless a longer time is provided by | 0015| the rule. | 0016| Sec. 1.103. RECORD OF PROCEEDINGS. Unless otherwise provided | 0017| by law, oral proceedings | 0018| before the commission shall be taken by any means that | 0019| provides a full and complete record, including tape | 0020| recording or stenography. The commission by rule shall | 0021| determine when tape recordings are transcribed. A party | 0022| to a proceeding may request a copy of a tape recording or | 0023| a written transcript when one is provided. The | 0024| commission may charge a reasonable fee for a copy of the | 0025| proceeding. Copy costs shall be determined by the | - 52 - 0001| commission by rule. | 0002| Sec. 1.104. EX PARTE COMMUNICATIONS. | 0003| (a) A commissioner shall not initiate, permit or | 0004| consider a communication directly or indirectly | 0005| with a party or his representative outside the | 0006| presence of the other parties concerning a pending | 0007| rulemaking been closed or a pending adjudication. | 0008| This shall not prohibit any interested persons from | 0009| filing written comments in rulemaking proceedings | 0010| as long as copies are provided to all parties. | 0011| (b) A hearing examiner shall not initiate, permit or | 0012| consider a communication directly or indirectly | 0013| with a party or his representative outside the | 0014| presence of the other parties concerning a pending | 0015| rulemaking or adjudication. | 0016| (c) Notwithstanding the provisions of Subsections (a) | 0017| and (b) of this section, the following ex parte | 0018| communications are permitted: | 0019| (1) where circumstances require, ex parte | 0020| communications for purely procedural or | 0021| administrative purposes or emergencies that do | 0022| not deal with substantive matters or issues on | 0023| the merits are allowed if the commissioner or | 0024| hearing examiner reasonably believes that no | 0025| party will gain an advantage as a result of | - 53 - 0001| the ex parte communication and the | 0002| commissioner or hearing examiner makes | 0003| provision to promptly notify all other parties | 0004| of the substance of the ex parte | 0005| communication. | 0006| (2) a commissioner may consult with another | 0007| commissioner or with advisory staff whose | 0008| function is to advise the commission in | 0009| carrying out the commissioner's rulemaking or | 0010| adjudicative responsibilities; | 0011| (d) A commissioner or hearing examiner who receives or | 0012| who makes or causes to be made a communication | 0013| prohibited by this section shall disclose it to all | 0014| parties and give other parties an opportunity to | 0015| respond. | 0016| (e) Upon receipt of a communication knowingly made or | 0017| caused to be made by a party to a commissioner or | 0018| hearing examiner in violation of this section, the | 0019| commissioner or hearing examiner may, to the extent | 0020| consistent with the interests of justice and the | 0021| policy of the underlying statutes, require the | 0022| party to show cause why his claim, defense or other | 0023| interest in the proceeding should not be dismissed, | 0024| denied or disregarded on account of the violation | 0025| of this section. | - 54 - 0001| Sec. 1.105. RECUSAL OF COMMISSIONER OR HEARING EXAMINER. | 0002| (a) A commissioner or hearing examiner shall recuse | 0003| himself in any adjudicatory proceeding in which he | 0004| is unable to make a fair and impartial decision or | 0005| in which there is doubt about whether he can make a | 0006| fair and impartial decision, including; | 0007| (1) when he has a personal bias or prejudice | 0008| concerning a party or its representative or | 0009| has prejudged a disputed evidentiary fact | 0010| involved in a proceeding prior to hearing. | 0011| For the purpose of this paragraph, "personal | 0012| bias or prejudice" means a predisposition | 0013| toward a person based on a previous or ongoing | 0014| relationship, including a professional, | 0015| personal, familial or other intimate | 0016| relationship, that sways judgment and renders | 0017| the commissioner or hearing examiner unable to | 0018| exercise his functions impartially; | 0019| (2) when he has a pecuniary interest in the | 0020| outcome of the proceeding other than as a | 0021| customer or a party; | 0022| (3) when in previous employment he served as an | 0023| attorney, adviser, consultant or witness in | 0024| the matter in controversy; or | 0025| (4) when, as a candidate for office, he announced | - 55 - 0001| how he would rule on the adjudicatory | 0002| proceeding or a factual issue in the | 0003| adjudicatory proceeding. | 0004| (b) If a commissioner or hearing examiner fails to | 0005| recuse himself when it appears that grounds exist, | 0006| a party shall promptly notify the commissioner or | 0007| hearing examiner of the apparent grounds for | 0008| recusal. If the commissioner or hearing examiner | 0009| declines to recuse himself upon request of a party, | 0010| he shall provide full disclosure on the record of | 0011| all facts in support of his refusal to recuse | 0012| himself. | 0013| Sec. 1.106. AUDITS. | 0014| (a) The commission shall inquire into the management of | 0015| the business of all entities under its | 0016| jurisdiction, shall keep itself informed as to the | 0017| manner and method in which the management and | 0018| business is conducted, and shall obtain from any | 0019| such entity all necessary information to enable the | 0020| commission to perform management audits. | 0021| (b) The commission may audit each entity under the | 0022| jurisdiction of the commission. Six months after | 0023| any audit, the entity shall report to the | 0024| commission on the status of the implementation of | 0025| the recommendations of the audit and shall file | - 56 - 0001| subsequent reports at such times as the commission | 0002| deems appropriate. | 0003| Sec. 1.107. FRANCHISES. Nothing in this Act shall be | 0004| construed as in any way limiting the rights and powers | 0005| of a municipality | 0006| to grant or refuse | 0007| franchises to use | 0008| the streets, alleys | 0009| or other public | 0010| properties within | 0011| its limits and to | 0012| make charges for | 0013| the use thereof, | 0014| but a provision of | 0015| any franchise | 0016| agreement may not | 0017| limit or interfere | 0018| with any regulatory | 0019| power conferred on | 0020| the commission by | 0021| this Act. | 0022| Sec. 1.108. SETTLEMENTS. | 0023| (a) The commission by rule shall adopt procedures | 0024| governing the use of settlements to resolve | 0025| contested cases, provided that all parties agree to | - 57 - 0001| a settlement. | 0002| (b) The rules shall ensure that: | 0003| (1) each party retains the right to: | 0004| (A) have a full hearing before the | 0005| commission on issues that remain in | 0006| dispute; and | 0007| (B) judicial review of issues that remain in | 0008| dispute; | 0009| (2) an issue of fact raised by a nonsettling party | 0010| cannot be waived by a settlement or | 0011| stipulation of the other parties; and | 0012| (3) the nonsettling party may use the issue of | 0013| fact raised by that party as the basis for | 0014| judicial review. | 0015| SUBTITLE E. RECORDS, REPORTS, INSPECTIONS, AND SERVICES | 0016| Sec. 1.201. RECORDS OF PUBLIC UTILITY. | 0017| (a) Every public utility shall keep and render to the | 0018| regulatory authority in the manner and form | 0019| prescribed by the commission uniform accounts of | 0020| all business transacted. | 0021| (b) The commission may also prescribe forms of books, | 0022| accounts, records, and memoranda to be kept by such | 0023| public utilities, including the books, accounts, | 0024| records, and memoranda of the rendition of and | 0025| capacity for service as well as the receipts and | - 58 - 0001| expenditures of money, and any other forms, records | 0002| and memoranda which in the judgment of the | 0003| commission may be necessary to carry out any of the | 0004| provisions of this Act. | 0005| (c) In the case of any public utility subject to | 0006| regulations by a federal regulatory agency, | 0007| compliance with the system of accounts prescribed | 0008| for the particular class of utilities by such | 0009| agency may be deemed a sufficient compliance with | 0010| the system prescribed by the commission; provided, | 0011| however, that the commission may prescribe forms of | 0012| books, accounts, records, and memoranda covering | 0013| information in addition to those required by the | 0014| federal agency. The system of accounts and the | 0015| forms of books, accounts, records, and memoranda | 0016| prescribed by the commission for a public utility | 0017| or class or utilities may not conflict or be | 0018| inconsistent with the systems and forms established | 0019| by a federal agency for that public utility or | 0020| class of utilities. | 0021| (d) Every public utility is required to keep and render | 0022| its books, accounts, records, and memoranda | 0023| accurately and faithfully in the manner and form | 0024| prescribed by the | 0025| commission and to comply with all directions of | - 59 - 0001| the regulatory authority relating to such books, | 0002| accounts, records and memoranda. The regulatory | 0003| authority may require the examination and audit of | 0004| all accounts. | 0005| (e) For the purposes of this section, "public utility" | 0006| includes "municipally owned utility." [Secs. | 0007| 27(a),(d),(f)] | 0008| Sec. 1.202. RECORDS OF OTHER REGULATED ENTITIES | 0009| (a) Every regulated entity shall maintain its records | 0010| of account and business activity in accordance with | 0011| regularly accepted accounting principles and in an | 0012| accurate and faithful manner which will truly and | 0013| fully describe such entity's actual business | 0014| activity. | 0015| (b) In any proceeding involving a regulated entity, it | 0016| shall, upon order of the administrative law judge | 0017| or commission, deliver to the commission its | 0018| records of account and business activity by year. | 0019| The judge or commission may enter such reasonable | 0020| protective orders as are necessary to protect the | 0021| privacy of the regulated entity from undue public | 0022| disclosure, which is or may probably be harmful to | 0023| the entity. | 0024| | 0025| Sec. 1.203. POWERS OF COMMISSION. | - 60 - 0001| (a) The commission shall have the power to: | 0002| (1) require that public utilities and other | 0003| regulated entities report to it such | 0004| information relating to themselves and to | 0005| transactions between themselves and affiliated | 0006| interests both within and without the State of | 0007| New Mexico to the extent that those | 0008| transactions are or may be subject to the | 0009| jurisdiction of the commission; | 0010| (2) establish forms for all reports; | 0011| (3) determine the time for reports and the | 0012| frequency with which any reports are to be | 0013| made; | 0014| (4) require that any reports be made under oath; | 0015| (5) require that a copy of any contract or | 0016| arrangement between any public utility, any | 0017| other regulated entity, and any affiliated | 0018| interest be filed with it. It may require any | 0019| such contract or arrangement not in writing to | 0020| be reduced to writing and filed with it; | 0021| (6) require that a copy of any report filed with | 0022| any federal agency or any governmental agency | 0023| or body of any other state be filed with it; | 0024| and | 0025| (7) require that a copy of annual reports showing | - 61 - 0001| all payments of compensation (other than | 0002| salary or wages subject to the withholding of | 0003| federal income tax) with respect to legal, | 0004| administrative, or legislative matters in New | 0005| Mexico or for representation before the New | 0006| Mexico Legislature or any governmental agency | 0007| or body be filed with it. | 0008| | 0009| | 0010| Sec. 1.204. INSPECTIONS; EXAMINATION UNDER OATH; COMPELLING | 0011| PRODUCTION OF RECORDS; INQUIRY INTO MANAGEMENT AND | 0012| AFFAIRS. | 0013| (a) The commission, and when authorized by it, its | 0014| counsel, agents, and employees, shall have the | 0015| right, at reasonable times and for reasonable | 0016| purposes, to inspect and obtain copies of the | 0017| papers, books, accounts, documents, and other | 0018| business records and to inspect eh plant, | 0019| equipment, and other property of any public utility | 0020| or other regulated entity within its jurisdiction. | 0021| The regulatory authority may examine under oath, or | 0022| it may authorize the person conducting such | 0023| investigation | 0024| to examine under oath, any officer, agent, or | 0025| employee of any public utility, or other regulated | - 62 - 0001| entity, in connection with such investigation. The | 0002| regulatory authority may require, by order or | 0003| subpoena served on any public utility, or other | 0004| regulated entity, the production within this state | 0005| at the time and lace it may designate of any books, | 0006| accounts, papers, or records kept by the public | 0007| utility or other regulated entity outside the state | 0008| or verified copies in lieu thereof if the | 0009| commission so orders. Any public utility or other | 0010| regulated entity failing or refusing to comply with | 0011| any such order or subpoena is in violation of this | 0012| Act. | 0013| (b) A member, agent, or employee of the commission may | 0014| enter the premises occupied by a public utility or | 0015| other regulated entity to make inspections, | 0016| examinations, and tests and to exercise any | 0017| authority provided by this Act. A member, agent, | 0018| or employee of the commission may act under this | 0019| section only during reasonable hours. | 0020| Sec. 1.205. OFFICE OF PUBLIC UTILITY; RECORDS; REMOVAL FROM | 0021| STATE. Every public utility shall have an office in a | 0022| county of this state in which its property or | 0023| some part thereof is located in which it shall | 0024| keep all books, accounts, records, and | 0025| memoranda required by the commission to be | - 63 - 0001| kept in the state. Books, accounts, records, | 0002| or memoranda required by the regulatory | 0003| authority to be kept in the state may not be | 0004| removed from the state, except on conditions | 0005| prescribed by the commission. | 0006| Sec. 1.206. COMMUNICATIONS BY PUBLIC UTILITIES WITH | 0007| COMMISSION | 0008| REGULATIONS AND RECORDS | 0009| (a) The commission shall prescribe regulations | 0010| governing all communications by public utilities, | 0011| other entities regulated by this Act, their | 0012| affiliates, and their representatives with the | 0013| commission. | 0014| (b) Such records shall contain the name of the person | 0015| contacting the commission, the name of the business | 0016| entities represented a description of the subject | 0017| matter of the communication, and the action, if | 0018| any, requested by the public utility, entity, | 0019| affiliate or representative. These records shall | 0020| be available to the public on a monthly basis. | 0021| (c) At no time may any employee, agent or attorney of a | 0022| public utility or other regulated entity contact or | 0023| discuss with any commissioner, commission employee | 0024| or administrative law judge any fact, law or other | 0025| matter which is directly or indirectly related to | - 64 - 0001| any issue expected to or coming before the | 0002| commission. Without limitation, public utilities | 0003| and other regulated entities shall not cause or | 0004| permit any officer, employee, agent or attorney to | 0005| engage in any discussion of any issue expected to | 0006| or coming before the commission in any contested or | 0007| rulemaking proceeding. | 0008| Sec. 1.207. INTERFERENCE WITH TERMS OR CONDITIONS OF | 0009| EMPLOYMENT. The commission may not interfere with | 0010| employee wages and benefits, working | 0011| conditions, or other terms or conditions | 0012| of employment that are the product of a | 0013| collective bargaining agreement | 0014| recognized under federal law. Employee | 0015| wage rates and benefit levels that are | 0016| the product of such bargaining shall be | 0017| presumed reasonable. [Sec. 41B] | 0018| | 0019| SUBTITLE F. SALE OF PROPERTY AND MERGERS | 0020| Sec. 1.251. REPORT OF SALE, MERGER, ETC; INVESTIGATION; | 0021| DISALLOWANCE OF TRANSACTION. | 0022| (a) A public utility may not sell, acquire, lease or | 0023| rent any plant as an operating unit or system in | 0024| this state for a total consideration in excess of | 0025| $100,000 or merge or consolidate with another | - 65 - 0001| public utility operating in this state unless the | 0002| public utility reports such transaction to the | 0003| commission within a reasonable time. | 0004| (b) All transactions involving the sale of 50 percent | 0005| or more of the stock of a public utility shall also | 0006| be reported to the commission within a reasonable | 0007| time. On the filing of a report with the | 0008| commission, the commission shall investigate the | 0009| same with or without public hearing to determine | 0010| whether the action is consistent with the public | 0011| interest. In reaching its determination, the | 0012| commission shall take into consideration the | 0013| reasonable value of the property, facilities, or | 0014| securities to be acquired, disposed of, merged, | 0015| transferred, or consolidated and whether such a | 0016| transaction will adversely affect the health or | 0017| safety of customers or employees, result in the | 0018| transfer of jobs of New Mexico citizens to workers | 0019| domiciled outside the State of New Mexico, or | 0020| result in the decline or service, that the public | 0021| utility will receive consideration equal to the | 0022| reasonable value of the assets when it sells, | 0023| leases, or transfers assets, and that the | 0024| transaction is consistent with the public interest. | 0025| (c) If the commission finds that such transactions are | - 66 - 0001| not in the public interest, the commission shall | 0002| take the effect of the transaction into | 0003| consideration in the | 0004| ratemaking proceedings and disallow the effect of | 0005| such transaction if it will unreasonably affect | 0006| rates or service. | 0007| (d) The provisions of this section may not be construed | 0008| as being applicable to the purchase of units of | 0009| property for replacement or to the addition to the | 0010| facilities of the public utility by construction. | 0011| Sec. 1.252. PURCHASE OF VOTING STOCK IN ANOTHER PUBLIC | 0012| UTILITY: REPORT. A public utility may not purchase voting | 0013| stock in another public utility doing | 0014| business in this state unless the | 0015| utility reports such purchase to the | 0016| commission. | 0017| Sec. 1.253. LOANS TO STOCKHOLDERS: REPORT. A public utility | 0018| may not loan money, stocks, bonds, notes, or other evidences | 0019| of indebtedness to any corporation or | 0020| person owning or holding directly or | 0021| indirectly any stock of the public | 0022| utility unless the public utility | 0023| reports the transaction to the | 0024| commission within a reasonable time. | 0025| | - 67 - 0001| SUBTITLE G. RELATIONS WITH AFFILIATED INTERESTS | 0002| Sec. 1.271. JURISDICTION OVER AFFILIATED INTEREST. The | 0003| commission shall have jurisdiction over affiliated | 0004| interests having transactions with | 0005| public utilities or other regulated | 0006| entities under the jurisdiction of | 0007| the commission to the extent of | 0008| access to all accounts and records | 0009| of such affiliated interests | 0010| relating to such transactions, | 0011| including but in no way limited to | 0012| accounts and records of joint or | 0013| general expenses, any portion of | 0014| which may be applicable to such | 0015| transactions. | 0016| Sec. 1.272. DISCLOSURE OF SUBSTANTIAL INTEREST IN VOTING | 0017| SECURITIES. The commission may require the disclosure of | 0018| the identity and respective interests of | 0019| every owner of any substantial interest | 0020| in the voting securities of any public | 0021| utility, other | 0022| regulated or its affiliated interest. One percent or | 0023| more in a substantial interest within the meaning of this | 0024| section. | 0025| | - 68 - 0001| SUBTITLE H. JUDICIAL REVIEW | 0002| Sec. 1.301. RIGHT TO JUDICIAL REVIEW; EVIDENCE; COMMISSION AS | 0003| PARTY DEFENDANT. Any part to a proceeding before the | 0004| commission is entitled to judicial review. The | 0005| court conducting such review shall upon motion | 0006| conduct such review de novo or under the | 0007| substantial evidence rule as the court may fairly | 0008| determine. The commission shall be a party | 0009| defendant in any such proceeding, represented by | 0010| the attorney general. | 0011| Sec. 1.302. COSTS AND ATTORNEYS' FEES. | 0012| (a) Any party represented by counsel who alleges that | 0013| existing rates are excessive or that those | 0014| prescribed by the commission are excessive and who | 0015| is a prevailing party in proceedings for review of | 0016| a commission order or decision may in the same | 0017| action recover against the defendant utility; or | 0018| that the conduct of a public utility or other | 0019| regulated entity justifies the awarding of fees or | 0020| costs and may order that such party shall receive | 0021| reasonable fees for attorneys and expert witnesses | 0022| and other costs for its efforts before the | 0023| commission and the court(s) the amount of such | 0024| attorneys' fees to be fixed by the court. | 0025| | - 69 - 0001| | 0002| SUBTITLE I. VIOLATIONS AND ENFORCEMENT | 0003| Sec. 1.321. ACTION TO ENJOIN OR REQUIRE COMPLIANCE. | 0004| Whenever it appears to the commission that any public | 0005| utility or any other regulated entity is engaged in or is | 0006| about to engage in any act in violation of this Act or of | 0007| any order, rule, or regulation of the commission entered | 0008| or adopted under the provisions of this Act or that any | 0009| public utility or regulated entity is failing to comply | 0010| with the provisions of this Act or with any such rule, | 0011| regulation, or order, the attorney general on request of | 0012| the commission, in addition to any other remedies | 0013| provided herein, shall bring an action in a court of | 0014| competent jurisdiction in the name of and on behalf of | 0015| the commission against such public utility or other | 0016| regulated entity to enjoin the commencement or | 0017| continuation of any such act or to require compliance | 0018| with such Act, rule, regulation, or order. | 0019| Sec. 1.3215. ADMINISTRATIVE PENALTY. | 0020| (a) The commission may impose an administrative penalty | 0021| against a person or entity regulated under this Act | 0022| who violates this Act or a rule or order adopted | 0023| under this Act. | 0024| (b) The penalty for a violation may be in amount not to | 0025| exceed $50,000. Each day a violation continues or | - 70 - 0001| occurs is a separate violation for purposes of | 0002| imposing a penalty. | 0003| (c) The amount of the penalty shall be based on: | 0004| (1) the seriousness of the violation, including | 0005| the nature, circumstances, extent, and gravity | 0006| of any prohibited acts, and the hazard or | 0007| potential hazard created to the health, | 0008| safety, or economic welfare of the public; | 0009| (2) the economic harm to property or the | 0010| environment caused by the violation; | 0011| (3) the history of previous violations; | 0012| (4) the amount necessary to deter future | 0013| violations; | 0014| (5) efforts to correct the violation; and | 0015| (6) any other matter that justice may require. | 0016| (d) If the executive director determines that a | 0017| violation has occurred, the executive director may | 0018| issue to the commission a report that states the | 0019| facts on which the determination is based and the | 0020| director's recommendation on the imposition of a | 0021| penalty, including a recommendations on the amount | 0022| of the penalty. | 0023| (e) Within 14 days after the date the report is issued, | 0024| the executive director shall give written notice of | 0025| the report to the person or entity. The notice may | - 71 - 0001| be given by certified mail. The notice must | 0002| include a brief summary of the alleged violation | 0003| and a statement of the amount of the recommended | 0004| penalty and must inform the person that the person | 0005| has a right to a hearing on the occurrence of the | 0006| violation, the amount of the penalty, or both the | 0007| occurrence of the violation and the amount of the | 0008| penalty. Before any penalty may be assessed under | 0009| this section, the person against whom the penalty | 0010| may be assessed shall be given 30 days after | 0011| receiving from the executive director the notice of | 0012| the report summarizing the alleged violation | 0013| pursuant to this subsection in which to cure the | 0014| violation and the person must fail to cure the | 0015| alleged violation within the 30-day period. The | 0016| person or entity against whom the penalty may be | 0017| assessed who claims to have cured the alleged | 0018| violation shall have the burden of proving to the | 0019| commission that the alleged violation was cured and | 0020| was accidental or inadvertent. | 0021| (f) Within 20 days after the date the person or entity | 0022| receives the notice, the person or entity in | 0023| writing may accept the determination and | 0024| recommended penalty of the executive director or | 0025| may make a written request for a hearing on the | - 72 - 0001| occurrence | 0002| of the violation, the amount of the penalty, or | 0003| both the occurrence of the violation and the amount | 0004| of the penalty. | 0005| (g) If the person or entity accepts the determination | 0006| and recommended penalty of the executive director, | 0007| the commission by order shall approve the | 0008| determination and impose the recommended penalty. | 0009| (h) If the person or entity requests a hearing or fails | 0010| to respond timely to the notice, the executive | 0011| director shall set a hearing and give notice of the | 0012| hearing to the person. The hearing shall be held | 0013| by an administrative law judge of the State Office | 0014| of Administrative Hearings. The administrative law | 0015| judge shall make findings of fact and conclusions | 0016| of law and promptly issue to the commission a | 0017| proposal for a decision about the occurrence of the | 0018| violation and the amount of a proposed penalty. | 0019| Based on the findings of fact, conclusions of law, | 0020| and proposal for a decision, the commission by | 0021| order may find that a violation has occurred and | 0022| impose a penalty or may find that no violation | 0023| occurred. | 0024| (i) The notice of the commission's order given to the | 0025| person or entity must include a statement of the | - 73 - 0001| right of the person to judicial review of the | 0002| order. | 0003| (j) Within 30 days after the date the commission's | 0004| order is final the person or entity shall: | 0005| (1) pay the amount of the penalty; | 0006| (2) pay the amount of the penalty and file a | 0007| petition for judicial review contesting the | 0008| occurrence of the violation, the amount of the | 0009| penalty, or both the occurrence of the | 0010| violation and the amount of the penalty; or | 0011| (3) without paying the amount of the penalty, file | 0012| a petition for judicial review contesting the | 0013| occurrence of the violation, the amount of the | 0014| penalty, or both the occurrence of the | 0015| violation and the amount of the penalty. | 0016| (k) Within the 30-day period, a person or entity who | 0017| acts under Subsection (j)(3) of this section may: | 0018| (1) stay enforcement of the penalty by: | 0019| (A) paying the amount of the penalty to the | 0020| court for placement in an escrow | 0021| account; or | 0022| (B) giving to the court a supersedeas bond | 0023| that is approved by the court for the | 0024| amount of the penalty and that is | 0025| effective until all judicial review of | - 74 - 0001| the commission's order is final; or | 0002| (2) request the court to stay enforcement of the | 0003| penalty by: | 0004| (A) filing with the court a sworn affidavit | 0005| of the person stating that the person is | 0006| financially unable to pay the amount of | 0007| the penalty and is financially unable to | 0008| give the supersedeas bond; and | 0009| (B) giving a copy of the affidavit to the | 0010| executive director by certified mail. | 0011| (l) The executive director, on receipt of a copy of an | 0012| affidavit under Subsection (k)(2) of this section, | 0013| may file with the court, within five days after the | 0014| date the copy is received, a contest to the | 0015| affidavit. The court shall hold a hearing on the | 0016| facts alleged in the affidavit as soon as | 0017| practicable and shall stay the enforcement of the | 0018| penalty on finding that the alleged facts are true. | 0019| The person or entity who files an | 0020| affidavit has the burden of proving that the | 0021| person or entity is financially unable to pay the | 0022| amount of the penalty and to give a supersedeas | 0023| bond. | 0024| (m) If the person or entity does not pay the amount of | 0025| the penalty and the enforcement of the penalty is | - 75 - 0001| not stayed, the executive director may refer the | 0002| matter to the attorney general for collection of | 0003| the amount of the penalty. | 0004| (n) Judicial review of the order of the commission: | 0005| (1) is instituted by filing a petition, and | 0006| (2) is under the substantial evidence rule. | 0007| (o) If the court sustains the occurrence of the | 0008| violation, the court may uphold or reduce the | 0009| amount of the penalty and order the person or | 0010| entity to pay the full or reduced amount of the | 0011| penalty. If the court does not sustain the | 0012| occurrence of the violation, the court shall order | 0013| that no penalty is owed. | 0014| (p) When the judgment of the court becomes final, the | 0015| court shall proceed under this subsection. If the | 0016| person or entity paid the amount of the penalty and | 0017| if that amount is reduced or is not upheld by the | 0018| court, the court shall order that the appropriate | 0019| amount plus accrued interest be remitted to the | 0020| person or entity. The rate of the interest is the | 0021| rate charged on loans to depository institutions by | 0022| the New York Federal Reserve Bank, and the interest | 0023| shall be paid for the period beginning on the date | 0024| the penalty was paid and ending on the date the | 0025| penalty is remitted. If the person or entity gave | - 76 - 0001| a supersedeas bond and if the amount of the penalty | 0002| is not upheld by the court, the court shall order | 0003| the release of the bond. If the person or entity | 0004| gave a supersedeas bond and if the amount of the | 0005| penalty is | 0006| reduced, the court shall order the release of the | 0007| bond after the person or entity pays the amount. | 0008| (q) A penalty collected under this section shall be | 0009| remitted to the comptroller for deposit in the | 0010| general revenue fund. | 0011| Sec. 1.322. PENALTY AGAINST PUBLIC UTILITY, REGULATED ENTITY | 0012| OR | 0013| AFFILIATED INTEREST. | 0014| (a) Any public utility, regulated entity or affiliated | 0015| interest that knowingly violates a provision of | 0016| this Act, fails to perform a duty imposed on it, or | 0017| fails, neglects, or refuses to obey an order, rule, | 0018| regulation, direction, or requirement of the | 0019| commission or decree or judgment of a court shall | 0020| be subject to a civil penalty of not less than | 0021| $1,000 nor more than $200,000 for each offense. | 0022| (b) A public utility, regulated entity or affiliated | 0023| interest commits a separate offense each day it | 0024| continues to violate the provisions of Subsection | 0025| (a) of this section. | - 77 - 0001| (c) The attorney general shall institute suit on his | 0002| own initiative or at the request of, in the name | 0003| of, and on behalf of the commission in a court of | 0004| competent jurisdiction to recover the penalty under | 0005| this section. | 0006| Sec. 1.323. PENALTY FOR VIOLATING SECTION 1.024 OF THIS ACT. | 0007| (a) Any commissioner or commission employee or any | 0008| officer or director of a public utility, other | 0009| regulated entity or affiliated interest shall be | 0010| subject to a civil penalty of $1,000 for each and | 0011| every knowing violation of Section 1.024 of this | 0012| Act, such penalty to be recovered in a suit filed | 0013| in a court of competent jurisdiction by the | 0014| attorney general on his own initiative or at the | 0015| request of, in the name of, and on behalf of the | 0016| commission. | 0017| (b) Any commissioner or employee of the commission | 0018| found in any action by a preponderance of the | 0019| evidence to have violated any provision of Section | 0020| 1.024 of this Act shall be removed from his office | 0021| or employment. | 0022| | 0023| | 0024| Sec. 1.324. PERSONAL PENALTY. | 0025| (a) Except as provided by Section 3.301 of this Act, | - 78 - 0001| any person or persons who willfully and knowingly | 0002| violates the provisions of this Act shall be guilty | 0003| of a third degree felony. | 0004| (b) All penalties accruing under this Act shall be | 0005| cumulative, and a suit for the recovery of any | 0006| penalty does not bar or affect the recovery of any | 0007| other penalty or bar any criminal prosecution | 0008| against any public utility or other regulated | 0009| entity or any officer, director, agent, or employee | 0010| thereof or any other corporation or person. | 0011| Section 1.325. CONTEMPT PROCEEDINGS. If any person or entity | 0012| fails to comply with any | 0013| lawful order of the commission or with any subpoena or | 0014| subpoena duces tecum or if any witness refuses to testify | 0015| about any matter on which he may be lawfully | 0016| interrogated, the commission may apply to any court of | 0017| competent jurisdiction to compel obedience by proceedings | 0018| for contempt. | 0019| Sec. 1.326. DISPOSITION OF FINES AND PENALTIES. Fines and | 0020| penalties collected under this Act in other than | 0021| criminal proceedings shall be | 0022| paid to the commission and | 0023| paid by the commission to the | 0024| state treasury to be placed in | 0025| the general revenue fund. | - 79 - 0001| [Sec. 76] | 0002| Sec. 1.327. VENUE. Suits for injunction or penalties under | 0003| the provisions of this Act may be brought in Santa Fe | 0004| County, in any county | 0005| where such violation is | 0006| alleged to have | 0007| occurred, or in the | 0008| county of residence of | 0009| any defendant. | 0010| | 0011| SUBTITLE J. COMMISSION FINANCING | 0012| Sec. 1.351. ASSESSMENTS UPON PUBLIC UTILITIES AND OTHER | 0013| REGULATED | 0014| ENTITIES. | 0015| (a) An assessment is imposed on each public utility and | 0016| other regulated entities within the commission's | 0017| jurisdiction, equal to one-sixth of one percent of | 0018| each one's gross receipts from rates or prices | 0019| charged the ultimate consumers in the state for the | 0020| purpose of defraying the costs and expenses | 0021| incurred in the administration of this Act. | 0022| (b) The legislature may adjust this assessment to | 0023| provide a level of income sufficient to fund the | 0024| commission and the office of public counsel. | 0025| Sec. 1.352. PAYMENT DATES; DELINQUENCY. | - 80 - 0001| (a) All assessments shall be due on August 15 of each | 0002| year. Any entity may instead make quarterly | 0003| payments due on August 15, November 15, February | 0004| 15, and May 15 of each year. | 0005| (b) There shall be assessed as a penalty an additional | 0006| fee of 10 percent of the amount due for any late | 0007| payment. Fees delinquent for more than 30 days | 0008| shall draw interest at the rate of 12 percent per | 0009| annum on the assessment and penalty due. | 0010| Sec. 1.353. COLLECTION AND PAYMENT INTO GENERAL REVENUE FUND. | 0011| (a) All fees, penalties, and interest paid under the | 0012| provisions of Sections 1.351 and 1.352 of this Act | 0013| shall be collected by the comptroller of public | 0014| accounts and paid into the general revenue fund. | 0015| Sec. 1.354. ACCOUNTING RECORDS; AUDIT. The commission shall | 0016| keep such accounting records as required by the | 0017| comptroller. The financial | 0018| transactions of the commission are | 0019| subject to audit by the state | 0020| auditor. | 0021| Sec. 1.355. APPROVAL OF BUDGET. The budget of the commission | 0022| shall be subject to legislative approval. | 0023| | 0024| SUBTITLE K. MISCELLANEOUS PROVISIONS | 0025| Sec. 1.401. COMPLAINT BY ANY AFFECTED PERSON. | - 81 - 0001| (a) Any affected person may complain to the regulatory | 0002| authority in writing setting forth any act or thing | 0003| done or omitted to be done by any public utility or | 0004| other regulated entity in violation or claimed | 0005| violation of any law which the commission has | 0006| jurisdiction to administer or of any order, | 0007| ordinance, rule, or regulation of the commission. | 0008| The commission shall keep information about each | 0009| complaint filed with the commission. The | 0010| commission shall retain the information for a | 0011| reasonable period. The information shall include: | 0012| (1) the date the complaint is received; | 0013| (2) the name of the complainant; | 0014| (3) the subject matter of the complaint; | 0015| (4) a record of all persons contacted in relation | 0016| to the complaint; | 0017| (5) a summary of the results of the review or | 0018| investigation of the complaint; and | 0019| (6) for complaints for which the commission took | 0020| no action, an explanation of the reason the | 0021| complaint was closed without action. | 0022| (b) The commission shall keep a file about each written | 0023| complaint filed with the commission that the | 0024| commission has authority to resolve. The | 0025| commission shall provide to the person filing the | - 82 - 0001| complaint and to the persons or entities complained | 0002| about the commission's policies and procedures | 0003| pertaining to complaint investigation and | 0004| resolution. The commission, at least quarterly and | 0005| until final disposition of the complaint shall | 0006| notify the person filing the complaint and each | 0007| person or entity complained about of the status of | 0008| the complaint unless the notice would jeopardize an | 0009| undercover investigation. | 0010| Sec. 1.402. RECORD OF PROCEEDINGS; RIGHT TO HEARING. A | 0011| record shall be kept of | 0012| all proceedings had before the commission in accordance | 0013| with the rules of procedure and evidence, and all the | 0014| parties shall be entitled to be hear in person or by | 0015| attorney and to present evidence. | 0016| Sec. 1.403. JUDICIAL STAY OR SUSPENSION OF ORDER, RULING, OR | 0017| DECISION. | 0018| During the pendency of an appeal, the district court, the | 0019| court of civil appeals, or the supreme court, as the case | 0020| may be, may stay or suspend in whole or in part the | 0021| operation of the regulatory authority order, ruling, or | 0022| decision and such courts in granting or refusing a stay | 0023| or suspension shall act in accordance with the practice | 0024| of courts exercising equity jurisdiction. | 0025| Sec. 1.404. LIBERAL CONSTRUCTION. This Act shall be | - 83 - 0001| construed liberally to promote the | 0002| effectiveness and efficiency of regulation of public | 0003| utilities and other regulated entities to the extent that | 0004| such construction preserves the validity of this act and | 0005| its provisions and each affected person's legal and | 0006| procedural rights. The provisions of this Act shall be | 0007| construed to apply so as not to conflict with any | 0008| authority of the United States. | 0009| Sec. 1.405. TERMINATING SERVICES TO ELDERLY AND DISABLED | 0010| CRITERIA AND | 0011| GUIDELINES; ESTABLISHMENT. The commission is authorized | 0012| to establish criteria and guidelines with the utility | 0013| industry relating to procedures employed by the industry | 0014| in terminating services to the elderly and disabled. | 0015| | 0016| | 0017| | 0018| Sec. 1.406. SEVERABILITY. If any provision of this Act or | 0019| the application thereof to any | 0020| person or circumstances is held invalid, such invalidity | 0021| does not affect other provisions or applications of this | 0022| Act which can be given effect without the invalid | 0023| provision or application, and to this end the provisions | 0024| of this Act are declared to be severable. | 0025| | - 84 - 0001| TITLE II. ELECTRIC PUBLIC UTILITIES | 0002| SUBTITLE A. GENERAL PROVISIONS | 0003| Sec. 2.001. LEGISLATIVE POLICY CONCERNING REGULATION OF and | 0004| competition in | 0005| The ELECTRIC UTILITY INDUSTRY. | 0006| (a) The title is enacted to protect the public interest | 0007| inherent in the rates and services of electric | 0008| public utilities. The legislature finds that | 0009| public utilities have functioned as monopolies in | 0010| the services they provide and in the areas they | 0011| serve, and that therefore the normal forces of | 0012| competition that operate to regulate prices in a | 0013| free enterprise society do not operate, and that, | 0014| therefore, except as otherwise provided for in this | 0015| Act, utility rates, operations, and services are | 0016| regulated by public agencies. The purpose of this | 0017| Title is to establish a comprehensive regulatory | 0018| system that is adequate to the task of regulating | 0019| electric public utilities, to assure rates, | 0020| operations, and services that are just and | 0021| reasonable to consumers and to the | 0022| utilities until the industry becomes truly | 0023| competitive and all or some of such regulation no | 0024| longer is needed. The legislature finds that the | 0025| wholesale electric industry, including the | - 85 - 0001| generation, sale and resale of electric power | 0002| through federal legislative, judicial, and | 0003| administrative actions is becoming a competitive | 0004| industry which does not lend itself to traditional | 0005| electric utility regulatory rules, policies, and | 0006| principles and that, therefore, the public interest | 0007| requires that new policies and principles be | 0008| formulated and applied to protect the public | 0009| interest in an increasingly competitive market | 0010| place. The development of a competitive wholesale | 0011| electric market that allows for increased | 0012| participation by both utilities and non utilities | 0013| is in the public interest. To the extent it is | 0014| compatible with federal law is feasible and will | 0015| benefit the public, another purpose of this title | 0016| is to encourage and protect the emergence and | 0017| development of competition in the retail electric | 0018| industry, including the transmission and | 0019| distribution of electric power to business and | 0020| residential consumers in this state. | 0021| (b) The commission shall encourage the economical | 0022| production of electric energy by making and | 0023| enforcing rules to encourage the production of | 0024| electric energy by qualifying cogenerators and | 0025| qualifying small power producers. | - 86 - 0001| (c) On application by a public utility, the regulatory | 0002| authority may approve wholesale tariffs or | 0003| contracts containing charges that are less than | 0004| rates approved by the regulatory authority but | 0005| equal to or greater than the utility's actual | 0006| costs. The charges must be in accordance with the | 0007| policies of this Act and may not be unreasonably | 0008| preferential, excessive, prejudicial, | 0009| discriminatory, predatory, or anticompetitive. | 0010| (d) The methodology for calculating the actual costs of | 0011| the electric utility shall consist of energy and | 0012| capacity components. The energy component shall | 0013| include variable operation and maintenance expense | 0014| and the energy component of purchased power. The | 0015| capacity component included shall be based on the | 0016| annual economic value of deferring, accelerating, | 0017| or avoiding the next increment of any needed | 0018| capacity, whether or not such capacity is purchased | 0019| or built. The commission shall ensure that the | 0020| methodology for determining actual cost is | 0021| consistently applied among utilities but, upon | 0022| receipt of adequate factual proof from the utility, | 0023| The Commission may recognize in any case the | 0024| individual load and resource requirements of the | 0025| utility. | - 87 - 0001| (d) Notwithstanding any other provisions of this Act, | 0002| the commission shall ensure that the utility's | 0003| costs of serving customers paying discounted rates | 0004| under this section or Section 2.052 of this Act are | 0005| not borne by the utility's other customers. The | 0006| mark-ups, if any, approved pursuant to Section | 0007| 2.102 of this Act are an exceptional form of rate | 0008| relief which may be recovered from ratepayers only | 0009| on entry of a finding by the commission that such | 0010| relief is essential necessary to maintain the | 0011| financial integrity of the utility. | 0012| Sec. 2.0011. DEFINITIONS. In this title: | 0013| (1) "Electric public utility" or "electric utility" | 0014| means any person, corporation, river authority, | 0015| cooperative corporation, or any combination | 0016| thereof, or their lessees, trustees, and receivers, | 0017| now or hereafter owning or operating for | 0018| compensation in this state equipment or facilities | 0019| for producing, generating, transmitting, | 0020| distributing, selling, or furnishing electricity in | 0021| this state (hereinafter "electric | 0022| utility"); provided, however, that this definition | 0023| may not be construed to apply to or include a | 0024| qualifying facility. The term does not include an | 0025| exempt wholesale generator, a power marketer, a | - 88 - 0001| qualifying cogenerator, qualifying small power | 0002| producer, a qualifying facility or a person or | 0003| corporation which: | 0004| (A) furnishes the services or commodity described | 0005| in this section only to itself, its employees, | 0006| or its tenants as an incident of such employee | 0007| service or tenancy, when such service or | 0008| commodity is not resold to or used by others; | 0009| (B) owns or operates in this state equipment or | 0010| facilities for producing, generating, | 0011| transmitting, distributing, selling, or | 0012| furnishing electric energy to an electric | 0013| utility, including generators. | 0014| (c) is otherwise exempt from state laws and | 0015| regulations under the Federal Power Act as | 0016| amended (PURPA). | 0017| (2) "Exempt wholesale generator" means a person that is | 0018| engaged directly, or indirectly through one or more | 0019| affiliates, exclusively in the business of owning, | 0020| operating, or both owning and operating all or part | 0021| of one or more facilities for the generation of | 0022| electric energy and selling electric energy at | 0023| wholesale and that: | 0024| (A) does not own facilities for the transmission | 0025| of electricity, other than essential | - 89 - 0001| interconnecting transmission facilities | 0002| necessary to effect a sale of electric energy | 0003| at wholesale; and | 0004| (B) has applied to the Federal Energy Regulatory | 0005| Commission for a determination under Section | 0006| 32, Public Utility Holding Company Act (15 | 0007| U.S.C. Section 79Z-5a), or has registered as | 0008| an exempt wholesale generator as required by | 0009| this Act. | 0010| (3) "Power marketer" means a person that: | 0011| (A) becomes owner of electric energy in this state | 0012| for the purpose of buying and selling the | 0013| electric energy at wholesale; | 0014| (B) does not own generation, transmission, or | 0015| distribution facilities in this state; | 0016| (c) does not have a certificated service area; and | 0017| (D) has been granted authority by the Federal | 0018| Energy Regulatory Commission to sell electric | 0019| energy at market-based rates or has registered | 0020| as a power marketer under this Act. | 0021| (4) "qualifying cogenerator" and "qualifying small | 0022| power producer" have the meanings assigned by | 0023| Sections 3(18)(C) and 3(17)(D), Federal Power Act | 0024| (16 U.S.C. Sections 796(18)(C) and 796(17)(D)). | 0025| (5) "Qualifying facility" means a qualifying | - 90 - 0001| cogenerator or qualifying small power producer. | 0002| (6) "Rate" means and includes every compensation, | 0003| tariff, charge, fare, toll, rental, and | 0004| classification, or any of them demanded, observed, | 0005| charged or collected whether directly or indirectly | 0006| by any public utility for any service, product, or | 0007| commodity Section 1.003 of this Act, and any | 0008| rules, regulations, practices, or contracts | 0009| affecting any such compensation, tariff, charge, | 0010| fare, toll, rental, or classification. | 0011| (7) "Transmission service" includes construction or | 0012| enlargement of facilities, transmission over | 0013| distribution facilities, control area services, | 0014| scheduling resources, regulation service, providing | 0015| operating reserves, reactive power support, voltage | 0016| control, and any other associated electrical | 0017| services deemed appropriate by the commission. | 0018| Sec. 2002. COMMISSION AS RESOURCE CENTER; DEVELOPMENT OF | 0019| ENERGY | 0020| EFFICIENT SCHOOL FACILITIES. The commission may serve as | 0021| a resource center to assist school districts in | 0022| developing energy efficient facilities. As such, the | 0023| commission may: | 0024| (1) present to school districts programs relating to | 0025| managing energy, training school-plant operators, | - 91 - 0001| and designing energy efficient buildings; | 0002| (2) provide school districts with technical assistance | 0003| in managing energy; | 0004| (3) collect and distribute information relating to | 0005| energy management in school facilities; and | 0006| (4) offer to educators energy resource workshops and | 0007| make available to educators a film library on | 0008| energy-related matters and energy education lesson | 0009| packages. | 0010| Sec. 2003. SCOPE OF COMPETITION. The commission shall | 0011| adopt such policies and take | 0012| all steps necessary to encourage a fully competitive | 0013| marketplace in the generation, transmission and | 0014| distribution of electric power in this state and to | 0015| cooperate with federal authorities as required by law. | 0016| Before January 15 of each odd-numbered year, the | 0017| commission shall report to the legislature on the scope | 0018| of competition in electric markets and the impact of | 0019| competition and industry restructuring on customers in | 0020| both competitive and noncompetitive markets. The report | 0021| shall include a summary of commission actions over the | 0022| preceding two years that reflect its actions to effect | 0023| increases in competition in any regulated electric | 0024| markets. The report shall also include recommendations | 0025| to the legislature for further legislation | - 92 - 0001| that the commission finds appropriate to promote the | 0002| public interest in the context of increasing competitive | 0003| electric markets. | 0004| | 0005| SUBTITLE B. ELECTRICAL PLANNING | 0006| Sec. 2.051. INTEGRATED RESOURCE PLANNING. | 0007| (a) The commission by rule shall develop an integrated | 0008| resource planning process to provide reliable | 0009| energy service at the lowest reasonable system | 0010| cost. Regarding a public utility's planned | 0011| purchases and for sales of electric power from/to | 0012| qualified facilities, qualifying cogenerators and | 0013| qualifying small power producers, The utility shall | 0014| utilize incremental costs [16 U.S.C. 824(a)]. In | 0015| determining the lowest reasonable system cost of an | 0016| electric utility's plan, the commission shall | 0017| consider in addition to direct costs the following: | 0018| (1) the effect on the rates and bills of various | 0019| types of customers; | 0020| (2) minimization of the risks of future fuel costs | 0021| and regulations; | 0022| (3) the appropriateness and reliability of the mix | 0023| of resources; an appropriate and reliable mix | 0024| of resources may include a portfolio of cost- | 0025| effective sources of power including but not | - 93 - 0001| limited to resources that are fueled and non- | 0002| fueled, such as renewable resources and | 0003| conservation measures and a mixture of long- | 0004| term and short-term contracts; and | 0005| (4) the costs of compliance with the environmental | 0006| protection requirements of all applicable | 0007| state and federal laws, rules, and orders. | 0008| (b) The commission by rule shall adopt and periodically | 0009| update a statewide integrated resource plan that | 0010| includes the commission's long-term resource | 0011| planning goals. The commission shall send a report | 0012| on the plan to the governor when it adopts or | 0013| revises the plan and notify each electric public | 0014| utility of the approval of the statewide plan. The | 0015| commission shall make the report available to the | 0016| public | 0017| (c) The report on the statewide plan shall include: | 0018| (1) historical data for electric consumption | 0019| statewide and by utility; | 0020| (2) historical data for electric generation by | 0021| utility and by type of capacity, including | 0022| alternative energy sources; | 0023| (3) an inventory of generation capacity statewide | 0024| and by utility; | 0025| (4) quantitative data on demand-side management | - 94 - 0001| programs to the extent the commission | 0002| determines necessary; | 0003| (5) each generating utility's forecast without | 0004| adjustment; | 0005| (6) The commission's long-term resource planning | 0006| goals included in the plan; | 0007| (7) a projection of the need for electric | 0008| services; | 0009| (8) a description of the approved individual | 0010| integrated resource plans of public utilities; | 0011| and | 0012| (9) an assessment of transmission planning being | 0013| performed by electric utilities within this | 0014| state. | 0015| (d) In prescribing the requirements under this section, | 0016| including reporting requirements, the commission | 0017| shall consider and recognize the differences in | 0018| capabilities of small and large utilities. | 0019| (e) Generating public utilities as well as | 0020| nongenerating public utilities planning to | 0021| construct generating resources shall submit to the | 0022| commission a preliminary integrated resource plan. | 0023| Preliminary integrated resource plans shall be | 0024| submitted every three years and cover a 10-year | 0025| period. The commission by rule: | - 95 - 0001| (1) shall: | 0002| (A) prescribe a staggered schedule for the | 0003| submission of plans by utilities; | 0004| (B) prescribe the form and manner in which a | 0005| plan must be submitted; | 0006| (C) adopt filing requirements and schedules; | 0007| and | 0008| (D) prescribe the methods by which a utility | 0009| may recover supply-side and demand-side | 0010| costs; and | 0011| (2) may: | 0012| (A) define the scope and nature of public | 0013| participation in the development of the | 0014| plan; and | 0015| (B) establish the general guidelines to be | 0016| used by utilities in evaluating and | 0017| selecting or rejecting resources, | 0018| including procedures governing the | 0019| solicitation process. | 0020| (f) A preliminary plan submitted under this section | 0021| must include: | 0022| (1) the utility's forecast of future demands; | 0023| (2) an estimate of the energy savings and demand | 0024| reduction the utility can achieve during the | 0025| 10-year period by use of demand-side | - 96 - 0001| management resources and the range of possible | 0002| costs for those resources; | 0003| (3) if additional supply-side resources are needed | 0004| to meet future demand, an estimate of: | 0005| (A) the amount and operational | 0006| characteristics of the additional | 0007| capacity needed; | 0008| (B) The types of viable supply-side | 0009| resources for meeting that need; and | 0010| (C) The range of probable costs of those | 0011| resources; | 0012| (4) if necessary, proposed requests for proposals | 0013| for demand-side or supply-side resources, or | 0014| both; | 0015| (5) The specific criteria the utility will use to | 0016| evaluate and select or reject those resources | 0017| which criteria may deviate from the general | 0018| guidelines on a showing of good cause; | 0019| (6) The methods by which the utility intends to | 0020| monitor those resources after selection; | 0021| (7) The method by which the utility intends to | 0022| allocate costs; | 0023| (8) a description of how each utility will achieve | 0024| equity among customer classes and provide | 0025| demand-side programs to each customer class | - 97 - 0001| including tenants and low-income ratepayers; | 0002| (9) any proposed incentive factors; and | 0003| (10) any other information the commission requires. | 0004| (g) Every three years, a municipally owned utility | 0005| shall submit to the commission a report containing | 0006| all of the information required in a preliminary | 0007| integrated resource plan under Subsection (f) of | 0008| this section, but shall not otherwise be subject to | 0009| the requirements of this section. | 0010| (h) If the utility's preliminary plan does not include | 0011| a proposed solicitation under Subsection (f)(4) of | 0012| this section, the plan shall be filed with the | 0013| commission so that the commission may compile the | 0014| report required in Subsection (c) of this section. | 0015| Only if the utility's preliminary plan includes a | 0016| proposed solicitation under Subsection (f)(4) of | 0017| this section may the commission, on its own motion | 0018| or | 0019| on the motion of the utility or of an affected | 0020| person, convene a public hearing on the adequacy | 0021| and merits of the preliminary plan. At the | 0022| hearing, any interested person may intervene, | 0023| present evidence, and cross-examine witnesses | 0024| regarding the contents and adequacy of the | 0025| preliminary plan. Discovery is limited to an issue | - 98 - 0001| relating to the development of the preliminary | 0002| plan, a fact issue included in the preliminary | 0003| plan, and other issues the commission is required | 0004| to decide relating to the preliminary plan. A | 0005| commission hearing is not required for a | 0006| preliminary plan filed by a river authority or | 0007| generating electric cooperative that does not | 0008| intend to build a new generating plant or for a | 0009| preliminary plan filed by a municipally-owned | 0010| public utility. | 0011| (i) After the hearing, the commission shall determine: | 0012| (1) whether the utility's preliminary plan is | 0013| based on substantially accurate data and an | 0014| adequate method of forecasting; | 0015| (2) whether the utility's preliminary plan | 0016| identifies and takes into account any present | 0017| and projected reductions in the demand for | 0018| energy that may result from cost-effective | 0019| measures to improve conservation and energy | 0020| efficiency in various customer classes of the | 0021| area being served; | 0022| (3) if additional supply-side resources are needed | 0023| to meet future demand, whether the utility's | 0024| preliminary plan adequately demonstrates: | 0025| (A) the amount and operational | - 99 - 0001| characteristics of the additional | 0002| capacity needed; | 0003| (B) The types of viable supply-side | 0004| resources for meeting that need; and | 0005| (C) The range of probable costs of those | 0006| resources; | 0007| (4) whether the utility's preliminary plan | 0008| demonstrates the opportunities for appropriate | 0009| persons to participate in the development of | 0010| the preliminary plan; | 0011| (5) whether the specific criteria the utility will | 0012| use to evaluate and select or reject resources | 0013| are reasonable and consistent with the | 0014| guidelines of the integrated resource planning | 0015| process; | 0016| (6) whether the cost allocation method proposed by | 0017| the utility is reasonable; | 0018| (7) how the utility will achieve equity among | 0019| customer classes and provide demand-side | 0020| programs to each customer class, including | 0021| tenants and low-income ratepayers; and | 0022| (8) whether any incentive factors are appropriate | 0023| and, if so, the levels of such incentive | 0024| factors. | 0025| (j) Not later than the 180th day after the date of the | - 100 - 0001| utility files the preliminary plan, the commission | 0002| shall issue an interim order on the preliminary | 0003| plan. The commission shall approve the preliminary | 0004| plan, modify the preliminary plan, or, if | 0005| necessary, remand the preliminary plan for | 0006| additional proceedings. The 180-day period may be | 0007| extended for a period not to exceed 30 days for | 0008| extenuating circumstances encountered in the | 0009| development and processing of an initial plan, if | 0010| the extenuating circumstances are fully explained | 0011| and agreed on by a majority of the commissioners. | 0012| (k) On approval of the preliminary plan, the utility | 0013| shall conduct solicitations for demand-side and | 0014| supply-side resources, as prescribed in the | 0015| preliminary plan. In addition to soliciting | 0016| resources from unaffiliated third parties, The | 0017| utility may: | 0018| (1) prepare and submit a bid of a new utility | 0019| demand-side management program as prescribed | 0020| by Subsection (m) of this section; | 0021| (2) receive bids from one or more affiliates; and | 0022| (3) request a certificate of convenience and | 0023| necessity for a new rate-based generating | 0024| plant. | 0025| (l) Each bidder, including the utility and its | - 101 - 0001| affiliates, shall submit two copies of its bid to | 0002| the commission. The commission shall ensure that | 0003| the utility has access to all bids at the same | 0004| time. The commission shall keep a copy of each bid | 0005| submitted by the utility or an affiliate to | 0006| determine whether the utility complied with the | 0007| criteria established for conduct of the | 0008| solicitation. A bid submitted under this | 0009| subsection or retained under this subsection is | 0010| confidential and is not subject to disclosure under | 0011| Public Records Act. | 0012| (m) If a utility wants to use a proposed demand-side | 0013| management program to meet a need identified in the | 0014| preliminary plan, the utility must prepare a bid | 0015| reflecting that resource. A bid prepared by the | 0016| utility under this subsection must comply with the | 0017| solicitation, evaluation, selection, and rejection | 0018| criteria specified in the preliminary plan. The | 0019| utility may not give preferential treatment or | 0020| consideration to a bid prepared under this | 0021| subsection. | 0022| (n) The utility shall evaluate each bid submitted | 0023| including an affiliate bid, in accordance with the | 0024| criteria specified in the preliminary plan and | 0025| shall negotiate necessary contracts. The utility | - 102 - 0001| is not required to accept a bid and may reject any | 0002| or all bids in accordance with the selection and | 0003| rejection criteria specified in the preliminary | 0004| plan. If the results of the solicitations and | 0005| contract negotiations do | 0006| not meet the supply-side needs identified in the | 0007| preliminary plan, the utility may apply for a | 0008| certificate of convenience and necessity for a | 0009| utility-owned resource addition notwithstanding the | 0010| fact a solicitation was conducted and the addition | 0011| was not included in the approved preliminary plan. | 0012| (o) After conducting the solicitations and negotiating | 0013| the contracts, the utility shall submit to the | 0014| commission a proposed final integrated resource | 0015| plan. The proposed final plan must include: | 0016| (1) The results of the solicitations; | 0017| (2) The contracts for resources; | 0018| (3) The terms and conditions under which the | 0019| utility will provide resources to meet a need | 0020| identified in the preliminary plan, if the | 0021| utility accepts a bid submitted under | 0022| Subsection (m) of this section; and | 0023| (4) an application for a certificate of | 0024| convenience and necessity, if necessary. | 0025| (p) The commission shall, on request by an affected | - 103 - 0001| person and within 90 days after the date a utility | 0002| files its final integrated resource plan under this | 0003| section, convene a public hearing on the | 0004| reasonableness and cost-effectiveness of the | 0005| proposed final plan. At the hearing, any | 0006| interested person may intervene, present evidence, | 0007| and cross-examine witnesses regarding the | 0008| reasonableness and cost-effectiveness of the | 0009| proposed final plan. Parties will not be allowed | 0010| to litigate or conduct discovery on issues that | 0011| were litigated or could have been litigated in | 0012| connection with the filing of the utility's | 0013| preliminary plan. To the extent permitted by | 0014| federal law, the commission may issue a written | 0015| order for access to the books, accounts, memoranda, | 0016| contracts, or records of an exempt wholesale | 0017| generator or | 0018| power marketer selling energy at wholesale to a | 0019| utility, if the examination is required for the | 0020| effective discharge of the commission's regulatory | 0021| responsibilities under this Act, except that if the | 0022| commission issues such an order, the books, | 0023| accounts, memoranda, contracts, and records | 0024| obtained by the Commission are confidential and not | 0025| subject to disclosure under Public Records Act. | - 104 - 0001| (q) After the hearing, the commission shall determine | 0002| whether: | 0003| (1) the utility's proposed final plan was | 0004| developed in accordance with the preliminary | 0005| plan and commission rules; | 0006| (2) the resource solicitations, evaluations, | 0007| selections and rejections were conducted in | 0008| accordance with the criteria included in the | 0009| preliminary plan; | 0010| (3) the utility's proposed final plan is cost- | 0011| effective; | 0012| (4) the final plan is equitable among customer | 0013| classes and provides demand-side programs to | 0014| each customer class, including tenants and | 0015| low-income ratepayers; | 0016| (5) the commission should certify the contracts | 0017| and any utility bid submitted under subsection | 0018| (m) of this section that resulted from the | 0019| solicitations; and | 0020| (6) the commission should grant a requested | 0021| certificate of convenience and necessity for a | 0022| utility-owned resource addition. | 0023| (r) (1) In determining whether to certify a supply- | 0024| side or demand-side contract that results from | 0025| the solicitations, the commission shall | - 105 - 0001| consider the reliability, financial condition, | 0002| and safety of that resource contract and | 0003| whether the solicitation, evaluation, and | 0004| selection of that resource contract was | 0005| conducted in accordance with the criteria | 0006| included in the preliminary plan. The | 0007| commission shall not certify contracts for new | 0008| purchases of power by a utility unless the | 0009| utility has determined, after giving | 0010| consideration to consistently applied regional | 0011| or national reliability standards, guidelines, | 0012| or criteria that the contract would not | 0013| unreasonably impair the continued reliability | 0014| of electric systems affected by the purchase, | 0015| and the purchase can reasonably be expected to | 0016| produce benefits to customers of the | 0017| purchasing utility. Commission certification | 0018| of a resource contract does not negate the | 0019| necessity of the resource to comply with all | 0020| applicable environmental and siting | 0021| regulations. In addition, if the contract is | 0022| with a utility affiliate, the commission shall | 0023| determine whether the utility treated and | 0024| considered the affiliate's bid in the same | 0025| manner it treated and considered other bids | - 106 - 0001| intended to meet the same resource needs and | 0002| shall further determine, in connection with | 0003| such purchase, whether: | 0004| (A) the transaction will benefit consumers; | 0005| (B) the transaction violates any state law, | 0006| including least-cost planning; | 0007| (C) the transaction provides the utility | 0008| affiliate any unfair competitive | 0009| advantage by virtue of its affiliation | 0010| or association with the utility; | 0011| (D) the transaction is in the public | 0012| interest; and | 0013| (E) the commission has sufficient regulatory | 0014| authority, resources, and access to the | 0015| books and records of the utility and its | 0016| affiliate to make these determinations. | 0017| (2) In setting a public utility's rate for a | 0018| period during which a certified contract is | 0019| effective, the regulatory authority shall | 0020| consider payments made under the contract to | 0021| be reasonable and necessary operating expenses | 0022| of the public utility. The regulatory | 0023| authority may provide for monthly recover of | 0024| the approved costs of the contract as those | 0025| costs are incurred, including the allowed | - 107 - 0001| mark-up determined by the commission. | 0002| (s) In determining whether to grant a requested | 0003| certificate of convenience and necessity, the | 0004| commission shall consider the effect of the | 0005| granting of a certificate on the recipient of the | 0006| certificate and on any public utility of the same | 0007| kind already serving the proximate area. The | 0008| commission shall also consider other factors such | 0009| as community values, recreational and park areas, | 0010| historical and aesthetic values, environmental | 0011| integrity, and the probable improvement of service | 0012| or lowering of cost to consumers in that area if | 0013| the certificate is granted. The commission shall | 0014| grant the certificate as part of the approval of | 0015| the final plan if it finds that: | 0016| (1) the proposed addition is necessary under the | 0017| final plan; | 0018| (2) the proposed addition is the best and most | 0019| economical choice of technology for that | 0020| service area; and | 0021| (3) cost-effective conservation and other cost- | 0022| effective alternative energy sources cannot | 0023| reasonably meet the need. | 0024| (t) Not later than the 180th day after the date the | 0025| utility files the proposed final plan, the | - 108 - 0001| commission shall issue a final order on the plan. | 0002| The commission shall | 0003| approve the proposed final plan, modify the | 0004| proposed final plan, or if necessary, remand the | 0005| proposed final plan for additional proceedings. | 0006| (u) The commission shall adopt rules allowing a utility | 0007| to add, consistent with the utility's last approved | 0008| integrated resource planning goals, new or | 0009| incremental resources outside the solicitation | 0010| process, including resources listed in Subsection | 0011| (x) of this section. | 0012| (v) In addition to its other authority and | 0013| responsibility under this section, the commission | 0014| shall establish rules and guidelines that will | 0015| promote the development of renewable energy | 0016| technologies consistent with the guidelines of the | 0017| integrated resource planning process. | 0018| (w) In carrying out its duties related to the | 0019| integrated resource planning process and in setting | 0020| rates for utilities which are not required to file | 0021| an integrated resource plan, the commission may: | 0022| (1) allow timely recovery of reasonable costs of | 0023| conservation, load management, and purchased | 0024| power, notwithstanding Section 2.212(g)(1) of | 0025| this Act; | - 109 - 0001| (2) authorize additional incentives for | 0002| conservation, load management, purchased | 0003| power, and renewable resources; and | 0004| (3) review the state's transmission system to | 0005| determine and make recommendations to public | 0006| utilities on the need to build new power | 0007| lines, upgrade power lines, and make other | 0008| improvements and additions as necessary. | 0009| (x) Consistent with the utility's last approved | 0010| integrated resource planning goals, if any, the | 0011| utility, including a nongenerating utility, may add | 0012| new or incremental resources outside the | 0013| solicitation process such as: | 0014| (1) contract renegotiation for existing capacity | 0015| from an electric cooperative or nonaffiliated | 0016| power generating facilities; | 0017| (2) electric cooperative or nonaffiliated demand- | 0018| side management programs or renewable | 0019| resources; | 0020| (3) capacity purchase with terms of two years or | 0021| less from an electric cooperative or | 0022| nonaffiliated power suppliers or capacity | 0023| purchases necessary to satisfy unanticipated | 0024| emergency conditions; | 0025| (4) The exercise of an option in a purchased power | - 110 - 0001| contract with an electric cooperative or | 0002| nonaffiliated supplier; and | 0003| (5) renewable distributed resources, located at or | 0004| near the point of consumption, if they are | 0005| less costly than transmission extensions or | 0006| upgrades. | 0007| (y) The addition of a new or incremental resources by a | 0008| utility under Subsection (x) of this section does | 0009| not require an amendment to the utility's | 0010| integrated resource plan. | 0011| (1) for the purpose of determining a utility's | 0012| avoided capacity costs under 18 CFR Chapter I, | 0013| Subchapter K, Part 292, Subpart C, on | 0014| submitting a preliminary integrated resource | 0015| plan to the commission under this section, the | 0016| utility's avoided capacity costs shall be | 0017| deemed to be $0 and shall remain $0, with | 0018| respect to any capacity needs shown in such | 0019| preliminary | 0020| integrated resource plan or final integrated | 0021| resource plan that are to be satisfied by | 0022| resources approved in the utility's final | 0023| integrated resource plan. | 0024| (2) Nothing in this subsection shall affect the | 0025| validity of any contract entered into between | - 111 - 0001| a qualifying facility and an electric utility | 0002| for any purchase. | 0003| (aa) nongenerating utilities not planning to construct | 0004| generating resources are not required to submit an | 0005| integrated resource plan to the commission. If | 0006| such a utility seeks to purchase more than 25 | 0007| percent of its peak demand or more than 70 | 0008| megawatts from a wholesale power supplier other | 0009| than its existing power supplier, the utility shall | 0010| conduct a solicitation for resources. However, no | 0011| solicitation is required for purchases from an | 0012| existing power supplier, and new or incremental | 0013| resources may be added outside the solicitation | 0014| process as provided in subsection (x) of this | 0015| section. If requested by such a utility, the | 0016| commission may review the reasonableness of any | 0017| contract for resources resulting from the | 0018| solicitation. On a finding by the commission that | 0019| such a contract is reasonable, the commission shall | 0020| certify the contract. The commission shall make | 0021| its determination within 90 days after the date the | 0022| proposed contract is submitted. Nothing in this | 0023| subsection is intended to alter or amend existing | 0024| wholesale power supply contracts. | 0025| (bb) to the extent that the commission authorizes | - 112 - 0001| utilities to recover costs of demand-side | 0002| management programs, conservation, load management, | 0003| or purchased power through various cost recovery | 0004| factors, the commission shall make a final | 0005| reconciliation of the costs recovered through those | 0006| cost recovery factors. The commission shall adopt | 0007| rules regarding when the reconciliations will occur | 0008| for | 0009| each of the cost recovery factors, what type of | 0010| information utilities need to file in support of | 0011| the reconciliation, and other matters necessary to | 0012| perform the reconciliation. The reconciliation | 0013| shall (1) review the reasonableness of the | 0014| utility's administration of the contracts and | 0015| programs whose costs are being reconciled and (2) | 0016| reconcile the revenue collected under each cost | 0017| recovery factor and the costs that the utility | 0018| incurred on purchased power, demand-side | 0019| management, conservation, or load management during | 0020| the reconciliation period. | 0021| (cc) to provide for the orderly transition to an | 0022| integrated resource planning process and to avoid | 0023| delays in the construction of resources necessary | 0024| to provide electric service, an integrated resource | 0025| plan shall not be required prior to the issuance of | - 113 - 0001| a certificate of convenience and necessity for the | 0002| construction of generating facilities if: | 0003| (1) the commission has approved the utility's | 0004| notice of intent prior to the effective date | 0005| of this section; | 0006| (2) the utility has conducted a solicitation for | 0007| resources to meet the need identified in the | 0008| utility's notice of intent in accordance with | 0009| commission rules then in effect; and | 0010| (3) the utility has submitted to the commission | 0011| the results of the solicitation and an | 0012| application for certification of facilities to | 0013| meet the need identified in the utility's | 0014| notice of intent. A certificate of | 0015| convenience and necessity shall be granted by | 0016| the commission if the facilities are needed to | 0017| meet future demand, the facilities are the | 0018| best and most economical choice of | 0019| technology for the service area, and cost- | 0020| effective conservation and cost-effective | 0021| alternative energy sources cannot reasonably | 0022| meet the need. | 0023| (dd) to the extent that the public utility is required | 0024| by the commission to reimburse a municipality for | 0025| expenses the municipality incurred for its | - 114 - 0001| participating in a proceeding under this section, | 0002| the commission shall, as part of its determination | 0003| approving the public utility's integrated resource | 0004| plan, authorize a surcharge to be included in the | 0005| public utility's rates to recover the | 0006| municipality's expenses for participating in the | 0007| integrated resource plan proceeding before the | 0008| public utility's next preliminary integrated | 0009| resource plan is filed. The reasonable expenses of | 0010| the public utility for planning, preparation, and | 0011| participating in such a proceeding may only be | 0012| recovered after commission review conducted in | 0013| accordance with the provisions of either section | 0014| 2.211 or 2.212 of this act. | 0015| Sec. 2.052. EXEMPT WHOLESALE GENERATORS AND POWER MARKETERS. | 0016| (a) An exempt wholesale generator or power marketer may | 0017| sell electric energy only at wholesale. | 0018| (b) The commission has the following jurisdiction over | 0019| exempt wholesale generators and power marketers | 0020| that sell electric energy in this state: | 0021| (1) to require registration as provided by | 0022| Subsection (c) of this section; and | 0023| (2) to require filing of reports the commission | 0024| prescribes by rule. | 0025| (c) Each exempt wholesale generator and power marketer | - 115 - 0001| shall within 30 days after the date it becomes | 0002| subject to this section, register with the | 0003| commission or provide proof that it has registered | 0004| with the Federal Energy Regulatory Commission or | 0005| has been authorized by the Federal Energy | 0006| Regulatory Commission to sell electric | 0007| energy at market-based rates. Registration may be | 0008| accomplished by filing with the commission a | 0009| description of the location of any facility used to | 0010| provide service, the type of service provided, a | 0011| copy of any information filed with the Federal | 0012| Energy Regulatory Commission in connection with | 0013| registration with that commission, and other | 0014| information the commission prescribes by rule. | 0015| Sec. 2053. EXEMPT WHOLE SALE GENERATOR AND POWER MARKETER | 0016| AFFILIATES. | 0017| (a) An affiliate of a public utility may be an exempt | 0018| wholesale generator or power marketer and may sell | 0019| electric energy to its affiliated public utility in | 0020| accordance with Section 2.051 of this Act and other | 0021| provisions of law governing wholesale sales of | 0022| electric energy. | 0023| (b) If a rate or charge for or in connection with the | 0024| construction of a facility, or for electric energy | 0025| produced by the construction of a facility, or for | - 116 - 0001| electric energy produced by a facility other than | 0002| any portion of a rate or charge which represents | 0003| recovery of the cost of a wholesale rate or charge | 0004| was in effect as of the date of enactment of this | 0005| section, the facility shall not be sold or | 0006| transferred to an affiliate or otherwise considered | 0007| an eligible facility as defined by federal law, | 0008| provided that the commission may, after notice and | 0009| hearing, allow such facility to be sold or | 0010| transferred to an affiliate, or become an eligible | 0011| facility only if such sale or transfer will benefit | 0012| ratepayers of the utility making the sale or | 0013| transfer, is in the public interest and otherwise | 0014| complies with state law. | 0015| (c) Any transfer of assets from a utility to an | 0016| affiliated exempt wholesale generator or power | 0017| marketer shall be valued at the greater of net book | 0018| cost or fair market | 0019| value. Any transfer of assets from an exempt | 0020| wholesale generator or power marketer to an | 0021| affiliated public utility shall be valued at the | 0022| lesser of net book cost or fair market value. At | 0023| the time the transfer is approved, the commission | 0024| shall order the utility to adjust its rates so that | 0025| its tariffs reflect benefits from the proceeds of | - 117 - 0001| the sale and exclude any costs associated with the | 0002| transferred facility. | 0003| Sec. 2.054. TRANSMISSION SERVICE. | 0004| (a) The commission may require a utility, including a | 0005| municipally owned utility, to provide transmission | 0006| service at wholesale to another utility, a | 0007| qualifying facility, an exempt wholesale generator, | 0008| or a power marketer and may determine whether the | 0009| terms and conditions for the transmission service | 0010| are reasonable. The commission may require | 0011| transmission service at wholesale, including | 0012| construction or enlargement of facilities in a | 0013| proceeding not related to approval of an integrated | 0014| resource plan. The commission may not issue a | 0015| decision or rule relating to transmission service | 0016| that is contrary to an applicable decision, rule, | 0017| or policy statement of a federal regulatory agency | 0018| having jurisdiction. | 0019| (b) The commission, with the advice and consent of the | 0020| governor, shall appoint a five-person interstate | 0021| connection committee to investigate the most | 0022| economical, reliable, and efficient means to | 0023| synchronously interconnect the alternating current | 0024| electric facilities of the electric facilities of | 0025| electric utilities with the New Mexico reliability | - 118 - 0001| area to the alternating current electric facilities | 0002| of the electric facilities of electric utilities | 0003| within the Southwest Power Pool reliability area. | 0004| The committee shall report an estimate of the cost | 0005| and benefit to effect the interconnection, an | 0006| estimate of the time to construct the | 0007| interconnecting facilities, and the service | 0008| territory of the utilities in which those | 0009| facilities will be located. The committee shall | 0010| submit its reports to the legislature by September | 0011| 1, 1999 at which time the committee shall be | 0012| dissolved. | 0013| | 0014| Sec. 2.055. WHOLESALE COMPETITION. | 0015| (a) A public utility that owns or operates transmission | 0016| facilities shall provide wholesale transmission | 0017| service at rates, terms of access, and conditions | 0018| that are comparable to the rates, terms of access, | 0019| and conditions of the utility's use of its system. | 0020| The commission shall ensure that utilities provide | 0021| nondiscriminatory access to transmission service | 0022| for qualifying facilities, exempt wholesale | 0023| generators, power marketers, and public utilities . | 0024| | 0025| The commission shall adopt rules within 180 days of | - 119 - 0001| the effective date of this section relating to | 0002| wholesale transmission service, rates, and access. | 0003| The rules shall be consistent with the standards in | 0004| the section, shall not be contrary to federal law, | 0005| including any applicable policy statement, | 0006| decision, or rule of a federal regulatory agency, | 0007| having jurisdiction and shall require transmission | 0008| services that are not less than the transmission | 0009| services the Federal Energy Regulatory Commission | 0010| may require in similar circumstances. The rules | 0011| shall also provide that all ancillary services | 0012| associated with a utility's discounted wholesale | 0013| sales shall be provided by the utility at the same | 0014| prices and under the same terms and conditions as | 0015| such services are provided to third persons, and | 0016| all ancillary services provided by the utility and | 0017| associated with its discounted wholesale sales | 0018| shall also be provided to third persons upon | 0019| request. All public utilities that own or operate | 0020| transmission facilities shall file tariffs | 0021| implementing such rules within 60 days after the | 0022| commission has adopted transmission pricing and | 0023| access rules pursuant to this section unless the | 0024| terms and conditions for access and pricing are | 0025| included in the tariff of another utility. Such | - 120 - 0001| tariffs shall be filed with the appropriate state | 0002| or federal regulatory agency having jurisdiction | 0003| over the transmission service of the entity filing | 0004| the tariff. | 0005| (b) The commission shall adopt rules relating to the | 0006| registration and reporting requirements of exempt | 0007| qualifying facilities, exempt wholesale generators, | 0008| and power marketers, provided that such rules do | 0009| not impose significant economic burden on the | 0010| registrants and such rules do not permit the | 0011| disclosure of information which would be | 0012| economically harmful or subject the reporting | 0013| entity to a competitive disadvantage prior to the | 0014| deregulation of the industry. | 0015| (c) To the extent a utility provides transmission of | 0016| electric energy at the request of a third party, | 0017| the commission shall ensure that the costs of the | 0018| transmission are not borne by the utility's other | 0019| customers by requiring the utility to recover from | 0020| the entity for which the transmission is provided | 0021| actual costs incurred by the utility in providing | 0022| transmission services necessary for the | 0023| transaction. | 0024| (d) For the purposes of administering these rules, the | 0025| commission may require that parties to a dispute | - 121 - 0001| over the prices, terms and conditions of wholesale | 0002| transmission service engage in a nonbinding | 0003| alternative dispute resolution process before | 0004| seeking a resolution of a dispute from the | 0005| commission. | 0006| (e) The commission shall submit a report to the 45th | 0007| Legislature, First Session on methods or procedures | 0008| for quantifying the magnitude of any claimed | 0009| stranded | 0010| investment, but the commission shall not allocate | 0011| or permit the recovery of such claimed costs | 0012| without the express authority of the legislature. | 0013| (f) Affiliates of public utilities, exempt wholesale | 0014| generators, qualifying facilities, and all other | 0015| providers of generation shall be permitted to | 0016| compete for the business of selling electric power. | 0017| In accordance with the applicable provisions of | 0018| this Act, a public utility may purchase power from | 0019| an affiliate. A public utility may not grant undue | 0020| preference to any person in connection with the | 0021| utility's purchase or sale of electric energy at | 0022| wholesale or other utility services. | 0023| (g) For the purposes of this section, the term "public | 0024| utility" shall include municipally owned utilities. | 0025| Further, all municipally-owned electric utilities | - 122 - 0001| shall comply with the provisions of this Title II | 0002| and the enforcement provision of this Act; any | 0003| failure is subject, after complaint and hearing, to | 0004| remedial orders issued by the commission. | 0005| Sec. 2.058. APPEAL FROM MUNICIPALITIES. | 0006| (a) Any party to a rate proceeding of a municipally | 0007| owned electric utility before the governing body of | 0008| a municipality may appeal the decision of the | 0009| governing body to the commission. | 0010| (b) Citizens of a municipality may appeal the decision | 0011| of the governing body in any rate proceeding to the | 0012| commission through the filing of a petition for | 0013| review signed by the lesser of 20,000 or 10 percent | 0014| of the number of qualified voters of such | 0015| municipality. | 0016| (c) (1) Ratepayers of a municipally owned electric | 0017| utility outside the municipal limits may | 0018| appeal any action of the governing body | 0019| affecting the rates of | 0020| the municipally owned electric utility | 0021| through filing with the commission a petition | 0022| for review signed by the lesser of 10,000 or | 0023| five percent of the ratepayers served by such | 0024| utility outside the municipal limits. | 0025| | - 123 - 0001| For purposes of this subsection each person | 0002| receiving a separate bill shall be considered | 0003| as a ratepayer. But a person is not | 0004| considered as being more | 0005| than one ratepayer notwithstanding the number | 0006| of bills received. Such petition for review | 0007| shall be considered properly signed if signed | 0008| by any person, or spouse of any such person, | 0009| in whose names residential utility service is | 0010| carried. | 0011| (2) The municipality that owns the electric | 0012| utility shall on request disclose to any | 0013| person the number of ratepayers who reside | 0014| outside the municipal limits. The | 0015| municipality shall provide the information by | 0016| telephone or in a written form, as preferred | 0017| by the person making the request. The | 0018| municipality may not charge a fee for | 0019| providing the information. The municipality | 0020| shall on request provide to any person a list | 0021| of the names and addresses of the ratepayers | 0022| who reside outside the municipal limits. The | 0023| municipality may charge a reasonable fee to | 0024| cover the cost of providing the list. | 0025| (3) Not later than the 14th day after the date on | - 124 - 0001| which the governing body makes a final | 0002| decision, the municipality shall issue a | 0003| written report stating the effect of the | 0004| decision on each class of ratepayers. The | 0005| appeal process shall be instituted by filing a | 0006| petition for review with the commission and | 0007| serving copies on all parties to the original | 0008| rate proceeding. The petition must be filed | 0009| not later than the 45th day after the date on | 0010| which the municipality issues the written | 0011| report prescribed by this subsection. | 0012| (4) Not later than the 90th day after the date on | 0013| which a petition for review that meets the | 0014| requirements of this subsection is filed, the | 0015| municipality shall file with the commission a | 0016| rate application that complies in all material | 0017| respects with the rules and forms prescribed | 0018| by the commission. | 0019| The commission may, for good cause shown, | 0020| extend the period for filing the rate | 0021| application. | 0022| (d) Any municipally owned electric utility whose rates | 0023| have been or are appealed under Subsection (c) of | 0024| this section, and for which the commission has | 0025| ordered or orders a decrease in annual nonfuel base | - 125 - 0001| revenues which exceeds 10 percent of the utility's | 0002| nonfuel base revenues, as calculated on a total | 0003| system basis (without regard to the municipal | 0004| utility's corporate boundaries) and established in | 0005| the rate ordinance or ordinances appealed from, and | 0006| for which the commission has found or finds that | 0007| the rates paid by the combined residential or any | 0008| other major customer class (other than any class or | 0009| classes where the city is itself the customer of | 0010| the municipally owned utility) are removed from | 0011| cost-of-service levels to the extent that, under | 0012| the nonfuel base revenue requirement adopted by the | 0013| commission (as computed on a total system basis | 0014| without regard to the municipality's corporate | 0015| boundaries), a change in nonfuel base rate revenues | 0016| in excess of 50 percent from adjusted test year | 0017| levels would be required to move that class to a | 0018| relative rate of return of unity (1.00 or 100 | 0019| percent) under the cost-of-service methodologies | 0020| adopted by the commission in an appeal under | 0021| Subsection (c) of this section, shall thereafter be | 0022| subject to the following: | 0023| (1) For a period of 10 years beginning on the | 0024| effective date of the rate ordinance which was | 0025| the subject of the commission's final order | - 126 - 0001| invoking the application of this subjection, | 0002| the commission shall have appellate | 0003| jurisdiction over the rates charged by the | 0004| municipally owned utility, both inside and | 0005| outside such municipality's corporate limits, | 0006| in the same manner and subject to the same | 0007| commission powers and authority as set forth | 0008| in this Act for public utilities, but | 0009| specifically limited as follows: | 0010| (A) The commission shall have the | 0011| jurisdiction to review the cost | 0012| allocation and rate design methodologies | 0013| adopted by the city council or other | 0014| governing body of the municipally owned | 0015| utility subject to this subsection. | 0016| (i) If the commission finds that such | 0017| cost-of-service methodologies | 0018| result in rates which are unjust, | 0019| unreasonable, or unreasonably | 0020| discriminatory or unduly | 0021| preferential to any customer class, | 0022| then the commission may order the | 0023| implementation of ratesetting | 0024| methodologies which the commission | 0025| finds reasonable. | - 127 - 0001| (ii) The commission shall ensure that a | 0002| customer class, other than any | 0003| class or classes where the city is | 0004| itself the customer of the | 0005| municipally owned utility, does not | 0006| pay rates which result in a | 0007| relative rate of return exceeding | 0008| 115 percent under the cost-of- | 0009| service methodology found | 0010| reasonable by the commission, | 0011| provided that a customer class may | 0012| not experience a percentage base | 0013| rate increase that is greater than | 0014| 1-1/2 times the system average base | 0015| increase. In moving above-cost | 0016| classes toward cost-of-service | 0017| levels, those classes farthest | 0018| above cost shall be moved | 0019| sequentially toward cost, such that | 0020| no above-cost class moves toward | 0021| cost until no other class or | 0022| classes are further removed from | 0023| cost. | 0024| (iii) The municipality may, as a | 0025| matter of intra-class rate | - 128 - 0001| design, design residential | 0002| rates to accomplish reasonable | 0003| energy conservation goals, | 0004| notwithstanding any other | 0005| provision of this Act. | 0006| (B) The commissioner's jurisdiction under | 0007| this subsection may be invoked by any | 0008| party to the local rate proceedings | 0009| required by this subsection, in the same | 0010| manner as appeals of the rates of public | 0011| utilities under Subsection (a) of this | 0012| section. Provided, however that the | 0013| commission's jurisdiction under this | 0014| subsection does not extend to the | 0015| municipally owned utility's revenue | 0016| requirements, | 0017| whether base rate or fuel revenues, its | 0018| invested capital, its return on invested | 0019| capital, its debt service coverage | 0020| ratio, or the level of any transfer of | 0021| revenues from the utility to the | 0022| municipality's general fund. | 0023| (2) The city council or other governing board of a | 0024| municipally owned utility subject to this | 0025| subsection shall establish procedures to | - 129 - 0001| protect the rights of ratepayers and | 0002| competitors as established in this Act. Such | 0003| procedures shall include a public hearing | 0004| process in which affected ratepayers and | 0005| competitors of the municipality owned utility | 0006| are granted party status on request and are | 0007| grouped for purposes of participation in | 0008| accordance with their common or divergent | 0009| interests, including but not limited to the | 0010| particular interests of all-electric and out- | 0011| of-city residential ratepayers. Such | 0012| procedures shall require the city council or | 0013| governing board of the municipally owned | 0014| utility to which this subsection applies to | 0015| employ the use of the New Mexico Rules of | 0016| Evidence, the New Mexico Rules of Civil | 0017| Procedure, and the presentation of sworn | 0018| testimony and other forms of sworn evidence. | 0019| The city council or other governing board | 0020| shall appoint a consumer advocate to represent | 0021| the interests of residential and small | 0022| commercial ratepayers in the municipality's | 0023| local rate proceedings. The consumer | 0024| advocate's reasonable costs of participation | 0025| in said proceedings, including the reasonable | - 130 - 0001| costs of ratemaking consultants and expert | 0002| witnesses, shall be funded by and recovered | 0003| from such residential and small commercial | 0004| ratepayers. | 0005| (3) The commission shall establish rules | 0006| applicable to any party to an appeal under | 0007| Subsection (c) of this section that provides | 0008| for the public disclosure of financial and in- | 0009| kind contributions and expenditures related to | 0010| the preparation and filing of a petition for | 0011| appeal and in preparation of expert testimony | 0012| or legal representation for an appeal. Any | 0013| party or customer who is a member of a party | 0014| who makes a financial contribution or in-kind | 0015| contribution to assist in an appeal of another | 0016| party or customer class under Subsection (c) | 0017| of this section shall, upon a finding of the | 0018| commission to that effect, be required to pay | 0019| the municipally owned utility a penalty | 0020| equivalent in amount to two times the | 0021| contribution. Nothing in this subsection | 0022| shall be construed to limit the right of any | 0023| party or customer to expend funds to represent | 0024| its own interests following the filing of a | 0025| petition with the commission under Subsection | - 131 - 0001| c of this section. | 0002| (e) Any municipally owned electric utility whose rates | 0003| have been or are appealed under Subsection c of | 0004| this section, and for which the commission has | 0005| ordered or orders AA decrease in annual nonfuel | 0006| base revenues which exceeds 10 percent of the | 0007| utility's nonfuel base revenues, as calculated on a | 0008| total system basis (without regard to the municipal | 0009| utility's corporate boundaries) and established in | 0010| the rate ordinance or ordinances appealed from, and | 0011| for which the commission has found or finds that | 0012| the rates paid by the combined residential or any | 0013| other major customer class (other than any class or | 0014| classes where the city is itself the customer of | 0015| the municipally owned utility) are removed from | 0016| cost-of-service levels to the | 0017| extent that, under the nonfuel base revenue | 0018| requirement adopted by the commission (as computed | 0019| on a total system basis without regard to the | 0020| municipality's corporate boundaries), a change in | 0021| nonfuel base rate revenues in excess of 50 percent | 0022| from adjusted test year levels would be required to | 0023| move that class to a relative rate of return of | 0024| unity (1.00 or 100 percent) under the cost-of- | 0025| service methodology adopted by the commission in an | - 132 - 0001| appeal under Subsection (c) of this section shall | 0002| thereafter be subject to the following: | 0003| (1) For a period of 10 years beginning the | 0004| effective date of the rate ordinance which was | 0005| the subject of the commission's final order | 0006| invoking the application of this subsection, | 0007| the commission shall have appellate | 0008| jurisdiction over the rates charged by the | 0009| municipally owned utility, outside the | 0010| municipality's corporate limits, in the manner | 0011| and to the extent provided in this subsection. | 0012| (2) Ratepayers of a municipally owned utility | 0013| subject to this subsection who reside outside | 0014| the municipality's corporate limits may appeal | 0015| any action of the governing body affecting the | 0016| rates charged by the municipally owned | 0017| electric utility outside the corporate limits | 0018| through filing with the commission a petition | 0019| for review in accordance with the same | 0020| procedures, requirements, and standards | 0021| applicable to appeals brought under Subsection | 0022| (c) of this section, except as otherwise | 0023| specifically provided in this subsection. The | 0024| petition for review must plainly disclose that | 0025| the cost of bringing and pursuing the appeal | - 133 - 0001| will be funded by a surcharge on the monthly | 0002| electric bills of outside=city ratepayers in a | 0003| manner prescribed by | 0004| the commission. | 0005| (A) Upon commission approval of the | 0006| sufficiency of a petition, the | 0007| appellants shall submit for the approval | 0008| of the Office of Public Utility Counsel | 0009| a budget itemizing the scope and | 0010| expected cost of consultant services to | 0011| be purchased by the appellants in | 0012| connection with the appeal. | 0013| (B) After a final order has been entered by | 0014| the commission in the appeal, the | 0015| consultant and legal costs approved by | 0016| public counsel as reasonable shall be | 0017| assessed by the municipality on a per | 0018| capita basis among residential | 0019| ratepayers who reside outside the | 0020| municipality. Surcharges shall be | 0021| assessed in a one-time charge not later | 0022| than 120 days following entry of the | 0023| commission's final order. Costs | 0024| incurred by the appellants shall be | 0025| reimbursed by the municipality within | - 134 - 0001| not later than 90 days following the | 0002| date the commission enters its final | 0003| order. | 0004| (C) The municipality may not include the | 0005| costs associated with its defense of an | 0006| appeal under this subsection in the | 0007| rates of outside-city ratepayers. Nor | 0008| shall the municipality, if it appeals | 0009| from an order entered by the commission | 0010| under this subsection, include the costs | 0011| associated with its appeal in the rates | 0012| of ratepayers who reside outside the | 0013| city. | 0014| (D) Ratepayers who appeal under this | 0015| subsection may not receive funding for | 0016| rate case expenses except from | 0017| residential ratepayers | 0018| who reside outside the municipality's | 0019| boundaries or from other municipalities | 0020| inside whose corporate limits the | 0021| municipally owned utility provides | 0022| service. The commission shall adopt | 0023| rules for the reporting of financial and | 0024| in-kind contributions in support of | 0025| appeals brought under this subsection. | - 135 - 0001| Upon a finding by the commission that an | 0002| appellant has received contributions | 0003| from any source other than outside-city | 0004| ratepayers or such other municipalities, | 0005| the appeal and orders of the commission | 0006| entered therein shall be null and void. | 0007| | 0008| (3) In appeals under this subsection, the | 0009| commission shall have jurisdiction and | 0010| authority to review and ensure that the | 0011| revenue requirements of any municipally owned | 0012| utility subject to this subsection are | 0013| reasonable, but such jurisdiction and | 0014| authority does not extend to regulation of the | 0015| use and level of any transfer of the utility's | 0016| revenues to the municipality's general fund. | 0017| The commission shall also have jurisdiction | 0018| and authority to review the cost allocation | 0019| and rate design methodologies adopted by the | 0020| governing body of the municipally owned | 0021| utility. If the commission finds that such | 0022| cost-of-service methodologies result in rates | 0023| which are unjust, unreasonable, or | 0024| unreasonably discriminatory or unduly | 0025| preferential to any customer class, then the | - 136 - 0001| commission may order the implementation of | 0002| ratesetting methodologies which the commission | 0003| finds reasonable, provided, however, that the | 0004| commission's jurisdiction under this | 0005| subsection does not encompass matters of | 0006| intra-class residential rate design. | 0007| (4) An intervenor in an appeal brought under this | 0008| subsection shall be limited to presenting | 0009| testimony and evidence on cost allocation and | 0010| rate design methodologies, except that | 0011| intervenors may present evidence and testimony | 0012| in support of the municipality on issues | 0013| related to utility revenues. | 0014| (5) An appellant ratepayer residing outside the | 0015| corporate limits of a municipally owned | 0016| utility subject to this subsection shall, in | 0017| appealing from a rate ordinance or other | 0018| ratesetting action of the municipality's | 0019| governing board, elect to petition for review | 0020| under either Subsection (c) of this section or | 0021| this subsection. | 0022| (f) The appeal process shall be instituted within 30 | 0023| days of the final decision by the governing body | 0024| with the filing of a petition for review with the | 0025| commission and copies served on all parties to the | - 137 - 0001| original rate proceeding. | 0002| (g) The commission shall hear such appeal de novo based | 0003| on the test year presented to the municipality and | 0004| by its final order shall fix such rates as the | 0005| municipality should have fixed in the ordinance | 0006| from which the appeal was taken. In the event that | 0007| the commission fails to enter its final order: (1) | 0008| for proceedings involving the rates of a | 0009| municipally owned utility, within 185 days from the | 0010| date on which the appeal is perfected or on which | 0011| the utility files a rate application as prescribed | 0012| by Subsection (c) of this section; or (2) for | 0013| proceedings in which similar relief has also been | 0014| concurrently sought from the commission under its | 0015| original jurisdiction, within 120 days from the | 0016| date such appeal is perfected or the date upon | 0017| which final action must be taken in the similar | 0018| proceedings so filed with the commission whichever | 0019| shall last occur, or (3) in all other proceedings, | 0020| within 185 days from the date such | 0021| appeal is perfected, the schedule of rates | 0022| proposed by the utility shall be deemed to have | 0023| been approved by the commission and effective upon | 0024| the expiration of said applicable period. Any | 0025| rates, whether temporary or permanent, set by the | - 138 - 0001| commission shall be prospective and observed from | 0002| and after the applicable order of the commission, | 0003| except interim rate orders necessary to effect | 0004| uniform system-wide rates or to provide the utility | 0005| the opportunity to avoid confiscation during the | 0006| period beginning on the date of filing of a | 0007| petition for review with the commission and ending | 0008| on the date of a final order setting rates. The | 0009| commission shall order interim rates on a prima | 0010| facie showing by the utility that it has | 0011| experienced confiscation during that period. For | 0012| purposes of this subsection, confiscation includes | 0013| negative cash flow experienced by the utility at | 0014| any time during the pendency of a rate case | 0015| proceeding. The utility concerned shall refund or | 0016| credit against future bills all sums collected | 0017| during the period of interim rates in excess of the | 0018| rate finally ordered plus interest at the current | 0019| rate as finally determined by the commission. | 0020| SUBTITLE C. RATES AND SERVICES | 0021| [All references to "commission" shall also apply to municipal | 0022| governments, as applicable] | 0023| Sec. 2.101. RATES; METHODS AND ACCOUNTS. | 0024| (a) The commission shall fix proper and adequate rates | 0025| and methods of depreciation, amortization, or | - 139 - 0001| depletion of the several classes of property of | 0002| each public utility and shall require every public | 0003| utility to carry a proper and adequate depreciation | 0004| account in accordance with such rates and methods | 0005| and with such other rules and regulations as the | 0006| commission prescribes. Such rates, methods, and | 0007| accounts shall | 0008| be utilized uniformly and consistently throughout | 0009| the ratesetting and appeal proceedings. | 0010| (b) Every public utility shall keep separate accounts | 0011| to show all profits or losses resulting from the | 0012| sale or lease of appliances, fixtures, equipment or | 0013| other merchandise. This profit or loss may not be | 0014| taken into consideration by the regulatory | 0015| authority in arriving at any rate to be charged for | 0016| service by any such public utility, to the extent | 0017| that such merchandise is not integral to the | 0018| provision of utility service. | 0019| | 0020| (c) In determining the allocation of tax savings | 0021| derived from application of such methods as | 0022| liberalized depreciation and amortization and the | 0023| investment tax credit, the use "commission" instead | 0024| of "regulatory authority" throughout shall | 0025| equitably balance the interests of present and | - 140 - 0001| future customers and shall apportion such benefits | 0002| between consumers and the public utilities | 0003| accordingly. Where any portion of the investment | 0004| tax credit has been retained by a public utility, | 0005| that same amount shall be deducted from the | 0006| original cost of the facilities or other addition | 0007| to the rate base to which the credit applied, to | 0008| the extent allowed by the Internal Revenue Code. | 0009| (d) For the purposes of this section, "public utility" | 0010| includes "municipally owned utility." | 0011| Sec. 2.102. MARK-UP. Any cost recovery factor established | 0012| for recovery of purchased power | 0013| costs may include the costs incurred by the utility for | 0014| the purchase of capacity and energy, together with a | 0015| mark-up added to the costs or other mechanism, as | 0016| determined by the commission, to reasonably compensate | 0017| the utility for financial risks, if any, to the utility | 0018| associated with purchased power obligations and the | 0019| value added by the utility in making the purchased power | 0020| available to its customers. The mark-ups and cost | 0021| recovery factors, if allowed, may be those that are | 0022| necessary to encourage the utility to include economical | 0023| purchased power as part of its energy and capacity | 0024| resource supply plan. | 0025| Sec. 2.103. REPORTING OF ADVERTISING OR PUBLIC RELATIONS | - 141 - 0001| EXPENSES. | 0002| (a) The commission may require an annual reporting from | 0003| each utility company of all its expenditures for | 0004| business gifts and entertainment and for | 0005| institutional, consumption-inducing, and other | 0006| advertising or public relations expenses. | 0007| (b) The commission may not allow as costs or expenses | 0008| for ratemaking purposes any of these expenditures | 0009| which the regulatory authority determines not to be | 0010| in the public interest. | 0011| (c) The cost of legislative advocacy expenses may not | 0012| in any case be allowed as costs or expenses for | 0013| ratemaking purposes. | 0014| (d) Reasonable charitable or civic contributions may be | 0015| allowed not to exceed the amount approved by the | 0016| commission. | 0017| (e) Reasonable costs of participating in a proceeding | 0018| under this Act may be allowed, not to exceed the | 0019| amount approved by the regulatory authority. | 0020| Sec. 2.104. COSTS. In connection with the setting of rates, | 0021| the commission shall require that | 0022| each electric utility shall keep separate accounts of the | 0023| actual costs, including incremental costs, utilizing a | 0024| cost methodology which is consistent with the costs | 0025| methodology federal law under the Federal Power Act as | - 142 - 0001| amended (PURPA), and regulations promulgated by the | 0002| Federal Energy Regulatory Commission. | 0003| Sec. 2.105. UNLAWFUL RATES, RULES, AND REGULATIONS. It shall | 0004| be unlawful for | 0005| any utility to charge, collect, or receive any rate for | 0006| public utility service or to impose any rule or | 0007| regulation other than as herein provided. | 0008| Sec. 2.106. FILING SCHEDULE OF RATES, RULES AND REGULATIONS. | 0009| (a) Every public utility shall file with the commission | 0010| schedules showing all rates which are subject to | 0011| the original or appellate jurisdiction of the | 0012| regulatory authority and which are in force at the | 0013| time for any public utility service, product, or | 0014| commodity offered by the utility. | 0015| | 0016| (b) Every public utility shall file with, and as a part | 0017| of such schedules, all rules and regulating | 0018| relating to or affecting the rates, public utility | 0019| service, product, or commodity furnished by such | 0020| utility. The commission shall treat customer names | 0021| and addresses, prices, individual customer | 0022| contracts, and expected load and usage data as | 0023| trade secrets, but such information may be subject | 0024| to disclosure under the open records law, Public | 0025| Records Act. | - 143 - 0001| Sec. 2.107. STANDARD OF SERVICE. | 0002| (a) Every public utility shall furnish such service, | 0003| instrumentalities, and facilities as shall be safe, | 0004| adequate, efficient and reasonable in order to | 0005| provide safe and reliable electric services all | 0006| ratepayers. | 0007| (b) The commission after reasonable notice and hearing | 0008| had on its own motion or on complaint may: | 0009| (1) ascertain and fix just and reasonable | 0010| standards, classifications, regulations, or | 0011| practices to be observed and followed by any | 0012| or all public utilities with respect to the | 0013| service to be furnished; | 0014| (2) ascertain and fix adequate and reasonable | 0015| standards for the measurement of the quantity, | 0016| quality, pressure, initial voltage, or other | 0017| condition pertaining to the supply of the | 0018| service. | 0019| (3) prescribe reasonable regulations for the | 0020| examination and testing of the service and for | 0021| the measurement thereof; and | 0022| (4) establish or approve reasonable rules, | 0023| regulations, specifications, and standards to | 0024| secure the accuracy of all meters, | 0025| instruments, and equipment used for the | - 144 - 0001| measurement of any service of any public | 0002| utility. | 0003| (c) Any standards, classifications, regulations, or | 0004| practices now or hereafter observed or followed by | 0005| any public utility shall be filed by it with | 0006| commission and the same shall continue in force | 0007| until amended by the public utility or until | 0008| changed by the commission as herein provided. | 0009| (d) Notwithstanding any other provision of law all | 0010| lines owned by a public utility for the | 0011| transmission and/or distribution of electric energy | 0012| shall be constructed, operated, and maintained in | 0013| accordance with the National Electrical Safety Code | 0014| Standard ANSI (c) (2), as adopted by the American | 0015| National Safety Institute and in effect at the time | 0016| of construction. | 0017| Sec. 2.108. EXAMINATION AND TEST OF EQUIPMENT. | 0018| (a) The commission may examine and test any meter, | 0019| instrument, or equipment used for the measurement | 0020| of any service of any public utility and may enter | 0021| any premises occupied by any public utility for the | 0022| purpose of making such examinations and tests and | 0023| exercising any power provided for in this Act and | 0024| may set up and use on such premises any apparatus | 0025| and appliances necessary therefor. The public | - 145 - 0001| utility | 0002| shall have the right to be represented at the | 0003| making of the examinations, tests, and inspections. | 0004| The public utility and its officers and employees | 0005| shall facilitate the examinations, tests, and | 0006| inspections by giving every reasonable aid to the | 0007| commission and any person or persons designated by | 0008| the commission for the duties aforesaid. | 0009| (b) Any consumer or user may have any meter or | 0010| measuring device tested by the utility once without | 0011| charge, after a reasonable period to be fixed by | 0012| commission by rule, and at shorter intervals on | 0013| payment of reasonable fees fixed by the commission. | 0014| The commission shall declare and establish | 0015| reasonable fees to be paid for other examining and | 0016| testing of such meters and other measuring devices | 0017| on the request of the consumer. If the test is | 0018| requested to be made within the of presumed | 0019| accuracy as fixed by the commission since the last | 0020| such test of the same meter or other measuring | 0021| device, the fee to be paid by the consumer or user | 0022| at the time of his request shall be refunded to the | 0023| consumer or user if the meter or measuring device | 0024| is found unreasonably defective or incorrect to the | 0025| substantial disadvantage of the consumer or user. | - 146 - 0001| If the consumer's request is made at a time beyond | 0002| the period of presumed accuracy fixed by the | 0003| commission since the last such test of the same | 0004| meter or measuring device, the utility shall make | 0005| the test without charge to the consumer or user. | 0006| | 0007| SUBTITLE D. PROCEEDINGS BEFORE THE COMMISSION | 0008| [All references to "commission" shall also apply to municipal | 0009| governments, as applicable] | 0010| Sec. 2.201. POWER TO INSURE COMPLIANCE; RATE REGULATION. | 0011| Subject to the provision of this Act, the commission is hereby | 0012| vested with all authority and power of the State of New Mexico | 0013| to insure compliance with the obligations of public utilities | 0014| in this Act. For this purpose the commission is empowered to | 0015| fix and regulate rates of public utilities, including rules | 0016| and regulations for determining the classification of | 0017| customers and services and for determining the applicability | 0018| of rates. A rule or order of the commission may not conflict | 0019| with the rulings of any federal regulatory body. The | 0020| commission's rules and orders pertaining to the development of | 0021| competition shall be consistent with the rules and orders of | 0022| any federal regulatory body. | 0023| Sec. 2.2011. COOPERATIVE CORPORATIONS. | 0024| (a) An electric cooperative corporation that provides | 0025| retail electric utility service at distribution | - 147 - 0001| voltage is exempt from rate regulation if a | 0002| majority of the members voting in an election on | 0003| the deregulation of the electric cooperative vote | 0004| to approve the exemption and the electric | 0005| cooperative sends notice of the action to each | 0006| applicable regulatory authority. An electric | 0007| cooperative that wants to hold an election under | 0008| this section shall send a ballot by mail to each | 0009| electric cooperative member. The electric | 0010| cooperative may include the ballot in a monthly | 0011| billing. The ballot shall provide for voting for | 0012| or against rate deregulation of the electric | 0013| cooperative. If the proposition is approved, the | 0014| electric cooperative shall send each ballot to the | 0015| commission not later than the 10th day after the | 0016| date the electric cooperative counts the ballots. | 0017| Based on the ballots received, the commission shall | 0018| administratively certify that the electric | 0019| cooperative is or is not deregulated for ratemaking | 0020| purposes. An electric cooperative may not hold | 0021| another election on the issue of being exempt from | 0022| rate regulation before the first anniversary of the | 0023| most recent election on the issue. Subsections (b) | 0024| through (n) of this section apply to an electric | 0025| cooperative that has elected to be exempt from rate | - 148 - 0001| regulation. | 0002| (b) No regulatory authority shall fix and regulate the | 0003| rates of an electric cooperative that has made an | 0004| election under this section to be exempt from rate | 0005| regulation except as provided for the commission in | 0006| Subsections (g) and (I) of this section. The | 0007| commission has exclusive original jurisdiction in | 0008| all of the electric cooperative's service area in a | 0009| proceeding initiated under Subsection (g) or (I) of | 0010| this section. | 0011| (c) An electric cooperative may change its rates by: | 0012| (1) adopting a resolution approving the proposed | 0013| change; | 0014| (2) mailing notice of the proposed change to: | 0015| (A) the commission; | 0016| (B) each affected municipality; | 0017| (C) each affected customer, which notice may | 0018| be included in a monthly billing; and | 0019| (D) each affected competitor; and | 0020| (E) each electric utility providing retail | 0021| service in the electric cooperative's | 0022| service area or in the adjoining service | 0023| area; and | 0024| (3) making available at each of the electric | 0025| cooperative's business offices for review by | - 149 - 0001| all interested persons a cost-of-service study | 0002| that: | 0003| (A) is not more than five years old at the | 0004| time the electric cooperative adopts | 0005| rates under this subsection; and | 0006| (B) is based upon a cost methodology as | 0007| prescribed in Sec. 2.104 of this Act; | 0008| and | 0009| (C) bears the certification of a | 0010| professional engineer or certified | 0011| public accountant. | 0012| (d) (1) The notice required by Subsection (c) of this | 0013| section must contain the following | 0014| information: | 0015| (A) the increase or decrease in total | 0016| operating revenues over actual test year | 0017| revenues or over test year revenues | 0018| adjusted to annualize the | 0019| | 0020| recovery of changes in the cost of | 0021| purchased electricity, stated both as a | 0022| dollar amount and as a percentage; | 0023| (B) the classes of utility customers | 0024| affected and the creation and | 0025| application of any new rate classes; | - 150 - 0001| (C) the increase or decrease for each class | 0002| stated as a percentage of actual test | 0003| year revenues for the class or test year | 0004| revenues for the class adjusted to | 0005| annualize the recovery of changes in the | 0006| cost of purchased electricity; | 0007| (D) a statement that the commission may | 0008| review the rate change if the commission | 0009| receives a petition within 60 days in | 0010| accordance with Subsection (g) of this | 0011| section; | 0012| (E) the address and telephone number of the | 0013| commission; | 0014| (F) a statement that a customer opposed to | 0015| the rate change should | 0016| notify the electric cooperative in | 0017| writing of the person's opposition and | 0018| should provide a return address; and | 0019| (G) a statement that members may review a | 0020| copy of any written opposition the | 0021| electric cooperative receives. | 0022| (2) The electric cooperative may not be required | 0023| to include additional information in the | 0024| notice. | 0025| (e) The electric cooperative shall make available for | - 151 - 0001| review by a member of the cooperative at each of | 0002| the electric cooperative's business offices a copy | 0003| of any written opposition to the rate change the | 0004| electric cooperative receives. | 0005| | 0006| (f) The electric cooperative shall file tariffs with | 0007| the commission. If the electric cooperative | 0008| complies with Subsection (c) of this section, the | 0009| commission shall approve the tariffs not later than | 0010| the 10th day after the 60-day period prescribed by | 0011| Subsection (g) of this section expires unless a | 0012| review is required under Subsection (g) or (I) of | 0013| this section. If the tariffs are approved or if a | 0014| review is not required and the commission fails to | 0015| act during the period prescribed by this | 0016| subsection, the change in rates takes effect on the | 0017| 70th day after the date on which the electric | 0018| cooperative first complies with all requirements of | 0019| Subsection (c) of this section or on a later date | 0020| determined by the electric cooperative. Except as | 0021| provided by Subsection (g) and (I) of this section, | 0022| the rates of the electric cooperative are not | 0023| subject to review. | 0024| (g) The commission shall review a change in rates under | 0025| this section if, not later than the 60th day after | - 152 - 0001| the date the electric cooperative first complies | 0002| with all requirements of Subsection (c) of this | 0003| section, the commission receives a petition | 0004| requesting review signed by: | 0005| (1) at least 10 percent of the members of the | 0006| electric cooperative. | 0007| (2) members of the electric cooperative who | 0008| purchased more than 50 percent of the electric | 0009| cooperative's annual energy sales to a | 0010| customer class in the test year, provided that | 0011| the petition included a certification of the | 0012| purchases; | 0013| (3) a competitor of the electric cooperative; or | 0014| (4) an executive officer of an affected electric | 0015| utility, provided that the petition prescribes | 0016| the particular class or classes for which a | 0017| review is requested. | 0018| (h) When a person files a petition under Subsection (g) | 0019| of this section, the person shall notify the | 0020| electric cooperative in writing of the action. | 0021| (i) The commission may on its own motion review the | 0022| rates of an electric cooperative if the commission | 0023| first finds that there is good cause to believe | 0024| that the electric cooperative is earning more than | 0025| a reasonable return on overall system revenues or | - 153 - 0001| on revenue from a rate class. | 0002| (j) The commission shall conduct a review under | 0003| Subsection (g)(1) or (2) of this section or under | 0004| Subsection (I) of this section in accordance with | 0005| the other applicable rate-setting principles of | 0006| this subtitle, except that: | 0007| (1) The period for review does not begin until the | 0008| electric cooperative files a rate-filing | 0009| package as required by commission rules; | 0010| (2) the proposed change may not be suspended | 0011| during the pendency of the review; however, | 0012| the electric cooperative shall refund or | 0013| credit against future bills all sums collected | 0014| in excess of the rate finally set by the | 0015| commission, if the commission so orders; and | 0016| (3) the electric cooperative shall observe the | 0017| rates set by the commission until the rates | 0018| are changed as provided by this section or by | 0019| other sections of this Act. | 0020| (k) For a review conducted under Subsection (g)(3) of | 0021| this section, the electric cooperative shall file | 0022| with the commission a copy of the cost-of-service | 0023| study required under Subsection (c)(3) of this | 0024| section not later than the 10th day after the date | 0025| the electric cooperative receives from the affected | - 154 - 0001| electric utility notice that a petition has been | 0002| filed. The commission shall determine for each | 0003| class for which review has been requested the | 0004| annual cost of providing service to the class, as | 0005| stated in the electric cooperative's cost-of- | 0006| service study, and the revenues for the class that | 0007| would be produced by multiplying the rate set by | 0008| the electric cooperative by the annual billing | 0009| units for the class, as stated in the cost-of- | 0010| service study. If the electric cooperative | 0011| proposes a rate class solely for a new customer, | 0012| the electric cooperative shall estimate the | 0013| reasonable annual cost of providing service to the | 0014| class, and the electric cooperative shall base | 0015| class revenues on reasonable estimates of billing | 0016| units. | 0017| (l) The rate for each class for which review has been | 0018| requested under Subsection (g)(3) of this section | 0019| is suspended during the pendency of the review. | 0020| The commission shall dismiss the petition and | 0021| approve the rates if the revenues for the class are | 0022| equal to or greater than the cost of providing | 0023| service to the class. The commission shall | 0024| disapprove the rate if the revenues for the class | 0025| are less than the cost of providing service to the | - 155 - 0001| class; however, this action does not affect | 0002| reconsideration of the rate as a part of any | 0003| subsequent ratemaking proceeding. The rate adopted | 0004| by the electric cooperative is deemed approved and | 0005| may be placed into effect if the commission fails | 0006| to make its final determination administratively | 0007| not later than the 45th day after the date the | 0008| electric cooperative files its cost-of-service | 0009| study. | 0010| (m) Except as provided by Subsection (a) of this | 0011| section, the members of an electric cooperative may | 0012| at any time revoke the electric cooperative's | 0013| election to be exempt from rate regulation or elect | 0014| to again be exempt from rate regulation by majority | 0015| vote of the members voting. | 0016| (n) This section does not affect the application of | 0017| other provisions of this Act not directly related | 0018| to rates or to the authority of the commission to | 0019| require an electric cooperative to file reports | 0020| required under this Act or rules adopted by the | 0021| commission. A service fee or a service rule or | 0022| regulation set by the electric cooperative under | 0023| this section must comply with commission rules | 0024| applicable to all electric utilities. The | 0025| commission may determine whether an electric | - 156 - 0001| cooperative has unlawfully charged, collected, or | 0002| received a rate for electric utility service. | 0003| (o) A single customer may seek a review of the rates of | 0004| an electric cooperative pursuant to Section 2.211 | 0005| of this Act if the customer consumes more than | 0006| 250,000,000 kwh and purchases more than 10 percent | 0007| of the total energy sales or more than 1-1/2 | 0008| percent of the total revenues of the electric | 0009| cooperative in any period of 12 consecutive months | 0010| within the 36 months preceding the date on which | 0011| that customer initiates a proceeding under Section | 0012| 2.211 of this Act. The rights under this | 0013| subsection shall be in addition to rights that a | 0014| customer has under | 0015| Subsection (g) of this section, and not in | 0016| limitation or in lieu of rights under Subsection | 0017| (g) of this section. | 0018| (p) An electric cooperative that has elected to be | 0019| exempt from rate regulation may by resolution adopt | 0020| retail tariffs or contracts containing charges that | 0021| are less than average embedded cost retail rates | 0022| but equal to or greater than the cooperative's | 0023| marginal cost. The standards of Section 2.052 of | 0024| this Act, rather than other standards in this | 0025| section, shall be applied in reviewing rates | - 157 - 0001| adopted pursuant to this subsection, however, the | 0002| cooperative's marginal cost shall be the lowest | 0003| marginal cost of any of the cooperative's wholesale | 0004| power suppliers. | 0005| Sec. 2.202. JUST AND REASONABLE RATES. It shall be the duty | 0006| of the regulatory authority | 0007| to insure that every rate made, demanded, or received by | 0008| an public utility or by any two or more public utilities | 0009| jointly shall be just and reasonable. Rates may not be | 0010| unreasonably preferential, prejudicial, or | 0011| discriminatory, but shall be sufficient, equitable, and | 0012| consistent in application to each class of consumers. | 0013| For ratemaking purposes, the commission may treat two or | 0014| more municipalities served by a public utility as a | 0015| single class wherever it deems such treatment to be | 0016| appropriate. | 0017| Sec. 2.203. FIXING OVERALL REVENUES. | 0018| (a) In fixing the rates of a public utility, the | 0019| regulatory authority shall fix its overall revenues | 0020| at a level which will permit such utility a | 0021| reasonable opportunity to earn a reasonable return | 0022| on its invested capital used and useful in | 0023| rendering service to the public over and above its | 0024| reasonable and necessary operating expenses. | 0025| (b) In fixing a reasonable return on invested capital, | - 158 - 0001| the commission shall consider, in addition to other | 0002| applicable factors, efforts to comply with the | 0003| utility's most | 0004| recently approved individual integrated resource | 0005| plan, the efforts and achievements of such utility | 0006| in the conservation of resources, the efforts and | 0007| achievements of such utility in purchasing electric | 0008| power from alternative sources, the quality of the | 0009| utility's services, the efficiency of the utility | 0010| operations, and the quality of the utility's | 0011| management. | 0012| Sec. 2.204. BURDEN OF PROOF. Except as hereafter provided, | 0013| in any proceeding involving | 0014| any proposed change of rates, the burden of proof to show | 0015| that the proposed change, if proposed by the utility, or | 0016| that the existing rate, if it is proposed to reduce the | 0017| rate, is just and reasonable shall be on the public | 0018| utility. | 0019| Sec. 2.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME. | 0020| The | 0021| components of invested capital and net income shall be | 0022| determined according to Sections 2.206, 2.207, and 2.208. | 0023| Sec. 2.206. INVESTED CAPITAL. | 0024| (a) Utility rates shall be based on the original cost | 0025| of property used by and useful to the public | - 159 - 0001| utility in providing service, including | 0002| construction work in progress at cost as recorded | 0003| on the books of the utility. | 0004| (b) The inclusion of construction work in progress is | 0005| an exceptional form of rate relief to be granted | 0006| only upon the demonstration by the utility that | 0007| such inclusion is necessary to the financial | 0008| integrity of the utility. Construction work in | 0009| progress may not be included in the rate base for | 0010| major projects under construction to the extent | 0011| that such projects have been inefficiently or | 0012| imprudently planned or managed. | 0013| (c) Original cost shall be the actual money cost, or | 0014| the actual money value of any | 0015| consideration paid other than money, of the | 0016| property at the time it shall have been dedicated | 0017| to public use, whether by the utility which is the | 0018| present owner or by a predecessor, less | 0019| depreciation. | 0020| (d) Costs shall be determined by the methodology | 0021| prescribed in Sec. 2.104 of this Act. | 0022| Sec. 2.207. SEPARATIONS AND ALLOCATIONS. Costs of | 0023| facilities, revenues, expenses, | 0024| taxes and reserves shall be separated or allocated as | 0025| prescribed by the commission. | - 160 - 0001| Sec. 2.208. NET INCOME. | 0002| (a) Net Income. "Net income" means the total revenues | 0003| of the public utility less all reasonable and | 0004| necessary expenses as determined by the commission. | 0005| The commission shall determine expenses and | 0006| revenues in a manner consistent with this section. | 0007| (b) Transactions with Affiliated Interests. Payment to | 0008| affiliated interests for costs of any services or | 0009| any property, right, or thing or for interest | 0010| expense may not be allowed either as capital cost | 0011| or as expense except to the extent that the | 0012| commission shall find such payment to be reasonable | 0013| and necessary for each item or class of items as | 0014| determined by the commission. Any such finding | 0015| shall include specific findings of the | 0016| reasonableness and necessity of each item or class | 0017| of items allowed and a finding that the price to | 0018| the utility is no higher than prices charged by the | 0019| supplying affiliate to its other affiliates or | 0020| divisions for the same item or class of items or to | 0021| unaffiliated persons or corporations. In making | 0022| such findings regarding affiliate transactions, | 0023| including affiliate transactions subject to Section | 0024| 2.051 of this Act, the commission shall make a | 0025| determination regarding the extent to which the | - 161 - 0001| conditions and circumstances of such transactions | 0002| are reasonably | 0003| comparable relative to quantity, terms and | 0004| conditions, date of contract, and place of delivery | 0005| and allow for appropriate differences based on that | 0006| determination. Nothing herein requires such | 0007| findings to be made prior to the inclusion of such | 0008| payments in the utility's charges to consumers so | 0009| long as there is a mechanism for making such | 0010| charges subject to refund pending the making of | 0011| such findings. | 0012| (c) Income Taxes. If the public utility is a member of | 0013| an affiliated group that is eligible to file a | 0014| consolidated income tax return and if it is | 0015| advantageous to the public utility to do so, income | 0016| taxes shall be computed as though a consolidated | 0017| return had been so filed and the utility had | 0018| realized its fair share of the savings resulting | 0019| from the consolidated return, unless it is shown to | 0020| the satisfaction of the commission that it was | 0021| reasonable to choose not to consolidate returns. | 0022| The amounts of income taxes saved by a consolidated | 0023| group of which a public utility is a member by | 0024| reason of the elimination in the consolidated | 0025| return of the intercompany profit on purchases by | - 162 - 0001| the public utility from an affiliate shall be | 0002| applied to reduce the cost of the property or | 0003| services so purchased. The investment tax credit | 0004| allowed against federal income taxes, to the extent | 0005| retained by the utility, shall be applied as a | 0006| reduction in the rate-based contribution of the | 0007| assets to which such credit applies, to the extent | 0008| and at such rate as allowed by the Internal Revenue | 0009| Code. | 0010| (d) Expenses Disallowed. The commission may not | 0011| consider for ratemaking purposes the following | 0012| expenses. | 0013| (1) legislative advocacy expenses, whether made | 0014| directly or indirectly, including but not | 0015| limited to legislative advocacy expenses | 0016| included in trade | 0017| association dues; | 0018| (2) payments, except those made under an insurance | 0019| or risk-sharing arrangement executed before | 0020| the date of loss, made to cover costs of an | 0021| accident, equipment failure, or negligence at | 0022| utility facility owned by a person or | 0023| governmental body not selling power inside the | 0024| State of New Mexico; | 0025| (3) costs of processing a refund or credit under | - 163 - 0001| Subsection (e) of Section 2.212 of this Act; | 0002| or | 0003| | 0004| (4) any expenditure found by the commission to be | 0005| unreasonable, unnecessary, or not in the | 0006| public interest, including but not limited to | 0007| executive salaries, advertising expenses, | 0008| legal expenses, and civil penalties or fines. | 0009| (e) Rules. The commission may promulgate reasonable | 0010| rules and regulations with respect to the allowance | 0011| or disallowance of any expenses for ratemaking | 0012| purposes. | 0013| Sec. 2.209. AGREEMENTS WITH QUALIFYING FACILITIES FOR | 0014| PURCHASES OF | 0015| CAPACITY. | 0016| (a) To further the legislature's policy of encouraging | 0017| efficient sources of electric energy and | 0018| competition, each electric utility shall negotiate, | 0019| execute and perform in good faith agreements to | 0020| purchase capacity from qualified facilities, a | 0021| qualifying cogenerator or a qualifying small power | 0022| producer as defined in the Federal owner Act as | 0023| amended, PUPA. | 0024| Sec. 2.210. SELF-INSURANCE. | 0025| (a) A public utility may self-insure all or a portion | - 164 - 0001| of its potential liability or catastrophic property | 0002| loss, including windstorm, fire, and explosion | 0003| losses which | 0004| could not have been reasonably anticipated and | 0005| included under operating and maintenance expenses. | 0006| The commission shall approve a self-insurance plan | 0007| under this section if it finds that the coverage is | 0008| in the public interest and the plan is a lower cost | 0009| alternative to purchasing commercial insurance, | 0010| considering all costs, and that ratepayers will | 0011| receive the benefits of that saving. | 0012| (b) In computing a utility's reasonable and necessary | 0013| expenses under Section 2.208 of this Act, the | 0014| commission shall allow as a necessary expense the | 0015| funds credited to reserve accounts for the self- | 0016| insurance, to the extent the regulatory authority | 0017| finds it in the public interest. After the reserve | 0018| account is established, the commission shall | 0019| consider if the reserve account has a surplus or | 0020| shortage in determining the utility's rate base. A | 0021| surplus in the reserve account will exist if the | 0022| charges against the reserve account are less than | 0023| the funds credited to the reserve. A shortage in | 0024| the reserve account will exist if the charges | 0025| against the account are greater than the funds | - 165 - 0001| credited to the reserve. The commission shall | 0002| subtract any surplus from and add any shortage to | 0003| the rate base. | 0004| (c) The commission shall determine reasonableness under | 0005| Subsection (b) of this section from information | 0006| provided at the time the self-insurance plan and | 0007| reserve account are established and upon the filing | 0008| of each rate case by a utility that has such a | 0009| fund. | 0010| (d) The commission shall adopt rules governing self- | 0011| insurance under this section. | 0012| (e) The allowance for self-insurance under this Act for | 0013| ratemaking purposes will not be applicable to | 0014| nuclear plant investment. | 0015| Sec. 2.210. UNREASONABLE OR VIOLATIVE EXISTING RATES; | 0016| INVESTIGATING | 0017| COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE. | 0018| (a) Whenever the commission, after reasonable notice | 0019| and hearing, on its own motion or on complaint by | 0020| any affected person, finds that the existing rates | 0021| of any public utility for any service are | 0022| unreasonable or in any way in violation of any | 0023| provision of law, the commission shall determine | 0024| the just and reasonable rates, including maximum or | 0025| minimum rates, to be thereafter observed and in | - 166 - 0001| force and shall fix the same by order to be served | 0002| on the public utility, and such rates shall | 0003| constitute the legal rates of the public utility | 0004| until changed as provided in this Act. | 0005| (b) Whenever a public utility does not itself produce | 0006| or generate that which it distributes, transmits, | 0007| or furnishes to the public for compensation but | 0008| obtains the same from another source, the | 0009| commission shall have the power and authority to | 0010| investigate the cost of such production or | 0011| generation in any investigation of the | 0012| reasonableness of the rates of such public utility, | 0013| provided such investigation does not interfere with | 0014| federal jurisdiction of qualified utilities. | 0015| (c) Not later than the 120th day after the date the | 0016| commission notifies the utility that the commission | 0017| has decided to proceed with an inquiry under this | 0018| section relating to the rates of the utility, the | 0019| utility shall file a rate-filing package with the | 0020| commission. The commission may grant an extension | 0021| of the 120-day period or waive the rate-filing | 0022| package requirement on agreement of the parties. | 0023| The commission shall make a final determination | 0024| concerning the matter not later than the 185th day | 0025| after the date the utility files the rate-filing | - 167 - 0001| package. However, the 185-day period is extended | 0002| two days for each one day of actual hearing on the | 0003| merits of the case that exceeds 15 days. | 0004| (d) At any time after an initial complaint is filed | 0005| under this section, the commission may issue an | 0006| interim order fixing temporary rates for the | 0007| utility that will continue until a final | 0008| determination on the matter is made. On issuance | 0009| of a final order, the commission may require the | 0010| utility to refund to customers or to credit against | 0011| future bills all sums collected during the period | 0012| in which those temporary rates were in effect that | 0013| are in excess of the rate finally ordered, plus | 0014| interest at the current rate as finally determined | 0015| by the commission or, if the amounts collected | 0016| during the period in which the temporary rates were | 0017| in effect are less than the amounts that would have | 0018| been collected under the rate finally ordered, the | 0019| commission shall authorize the utility to surcharge | 0020| bills to recover the difference between those | 0021| amounts, plus interest on the amount of the | 0022| difference at the current rate as finally | 0023| determined by the commission. | 0024| (e) If the 185-day period has been extended as provided | 0025| by Subsection (c) of this section and the | - 168 - 0001| commission has not issued a final order or fixed | 0002| temporary rates on or before the 185th day, the | 0003| rates charged by the utility on that 185th day | 0004| automatically become temporary rates. On issuance | 0005| of a final order, the commission shall require the | 0006| utility to refund to customers or to credit against | 0007| future bills all sums collected during the period | 0008| in which those temporary rates were in effect that | 0009| are in excess of the rate finally ordered, plus | 0010| interest at the current rate as finally determined | 0011| by the commission or, if the amounts collected | 0012| during the period in which the temporary rates were | 0013| in effect are less than the amounts that would have | 0014| been collected under the rate finally ordered, the | 0015| commission shall authorize the utility to | 0016| surcharge bills to recover the difference between | 0017| those amounts, plus interest on the amount of the | 0018| difference at the current rate as finally | 0019| determined by the commission. | 0020| Sec. 2.211. STATEMENT OF INTENT TO CHANGE RATES; MAJOR | 0021| CHANGES; | 0022| HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF | 0023| RATE LEVEL | 0024| (a) A utility may not make changes in rates except by | 0025| filing a statement of intent with the commission | - 169 - 0001| having original jurisdiction at least 35 days prior | 0002| to the effective date of the proposed change. The | 0003| statement of intent shall include proposed | 0004| revisions of tariffs and schedules and a statement | 0005| specifying in detail each proposed change, the | 0006| effect the proposed change is expected to have on | 0007| the revenues of the company, the classes and | 0008| numbers of utility consumers affected, and such | 0009| other information as may be required by the | 0010| commission's rules and regulations. A copy of the | 0011| statement of intent shall be mailed or delivered to | 0012| the appropriate officer of each affected | 0013| municipality, and notice shall be given by | 0014| publication in conspicuous form and place of a | 0015| notice to the public of such proposed change once | 0016| in each week for four successive weeks prior to the | 0017| effective date of the proposed change in a | 0018| newspaper having general circulation in each county | 0019| containing territory affected by the proposed | 0020| change and by mail to such other affected persons | 0021| as may be required by the commission's rules and | 0022| regulations. The commission may waive the | 0023| publication of notice requirement prescribed by | 0024| this subsection in a proceeding that involves a | 0025| rate reduction for all affected ratepayers only. | - 170 - 0001| The applicant shall give notice of the proposed | 0002| rate change by mail to all affected utility | 0003| customers. The commission by rule shall also | 0004| define other proceedings for which the publication | 0005| of notice requirement prescribed by this subsection | 0006| may be waived on a showing of good cause, provided | 0007| that a waiver may not be granted in any proceeding | 0008| involving a rate increase to any class or category | 0009| of ratepayer. | 0010| (b) The commission, for good cause shown, may, except | 0011| in the case of major changes, allow changes in rate | 0012| to take effect prior to the end of such 35-day | 0013| period under such conditions as it may prescribe, | 0014| subject to suspension as provided herein. All such | 0015| changes shall be indicated immediately upon its | 0016| schedules by such utility. "Major changes" shall | 0017| mean an increase in rates which would increase the | 0018| aggregate revenues of the applicant more than the | 0019| greater of $100,000 or 2-1/2 percent, but does not | 0020| include changes in rates allowed to go into effect | 0021| by the commission or made by the utility pursuant | 0022| to an order of the commission after hearings held | 0023| upon notice to the public. | 0024| (c) Whenever there is filed with the commission any | 0025| schedule modifying or resulting in a change in any | - 171 - 0001| rates then in force, the commission shall on | 0002| complaint by any affected person or may on its own | 0003| motion, at any time within 30 days from the date | 0004| when such change would or has become effective, | 0005| and, if it so orders, without answer or other | 0006| formal pleading by the utility, but on reasonable | 0007| notice, including notice to the governing bodies of | 0008| all affected municipalities and counties, enter on | 0009| a hearing to determine the propriety of such | 0010| change. The commission shall hold such a hearing | 0011| in every case in which the change constitutes a | 0012| major change in rates, provided that an informal | 0013| proceeding may satisfy this requirement if a | 0014| complaint has not been received before the | 0015| expiration of 45 days after notice of the | 0016| change shall have been filed. In each case where | 0017| the commission determines it is in the public | 0018| interest to collect testimony at a regional hearing | 0019| for inclusion in the record, the commission shall | 0020| hold a regional hearing at an appropriate location. | 0021| A regional hearing is not required in a case | 0022| involving a member-owned utility, unless the | 0023| commission determines otherwise. | 0024| (d) Pending the hearings and decision, the local | 0025| commission, after delivery to the affected utility | - 172 - 0001| of a statement in writing of its reasons therefore, | 0002| may suspend the operation of the schedule for a | 0003| period not to exceed 90 days beyond the date on | 0004| which the schedule of rates would otherwise go into | 0005| effect, and the commission may suspend the | 0006| operation of the schedule for a period not to | 0007| exceed 150 days beyond the date on which the | 0008| schedule would otherwise go into effect. If the | 0009| commission does not make a final determination | 0010| concerning any schedule of rates prior to | 0011| expiration of period or periods of suspension, the | 0012| schedule shall be deemed to have been approved by | 0013| the commission. However, the 150-day period shall | 0014| be extended two days for each one day of actual | 0015| hearing on the merits of the case that exceeds 15 | 0016| days. This approval is subject to the authority of | 0017| the commission thereafter to continue a hearing in | 0018| progress. The commission may in its discretion fix | 0019| temporary rates for any period of suspension under | 0020| this section. During the suspension by the | 0021| commission as above provided, the rates in force | 0022| when the suspended schedule was filed shall | 0023| continue in force unless the commission shall | 0024| establish a temporary rate. The commission shall | 0025| give preference to the hearing and decision of | - 173 - 0001| questions arising under this section over all other | 0002| questions pending before it and decide the same as | 0003| speedily as possible. | 0004| (e) If the 150-day period has been extended, as | 0005| provided for in Subsection 9d) of this section, and | 0006| the commission fails to make its final | 0007| determination of rates within 150 days from the | 0008| date that the proposed change otherwise would have | 0009| gone into effect, the utility concerned may put a | 0010| changed rate, not to exceed the proposed rate, into | 0011| effect throughout all areas in which the utility | 0012| sought to change its rates, including the areas | 0013| over which the commission is exercising its | 0014| appellate and its original jurisdiction, on the | 0015| filing with the commission of a bond payable to the | 0016| commission in an amount and with sureties approved | 0017| by the commission conditioned upon refund and in a | 0018| form approved by the commission. The utility | 0019| concerned shall refund or credit against future | 0020| bills all sums collected during the period of | 0021| suspension in excess of the rate finally ordered | 0022| plus interest at the current rate as finally | 0023| determined by the commission. | 0024| (f) If, after hearing, the commission finds the rates | 0025| to be unreasonable or in any way in violation of | - 174 - 0001| any provision of law, the commission shall | 0002| determine the level of rates to be charged or | 0003| applied by the utility for the service in question | 0004| and shall fix the same by order to be served upon | 0005| the utility; these rates are thereafter to be | 0006| observed until changed as provided by this Act. | 0007| (g) (1) Except as permitted by Section 2.051 of this | 0008| Act, a rate or tariff set by the commission | 0009| may not authorize a utility to automatically | 0010| adjust and pass through to its customers | 0011| changes in fuel or other costs of the utility. | 0012| (2) (A) Subdivision (1) of this subsection does | 0013| not prohibit the commission from | 0014| reviewing and providing for adjustments | 0015| of a utility's fuel factor. The | 0016| commission by rule shall implement | 0017| procedures that | 0018| provide for the timely adjustment of a | 0019| utility's fuel factor, with or without a | 0020| hearing. The procedures shall provide | 0021| that the findings required by Section | 0022| 2.208(b) of this regarding fuel | 0023| transactions with affiliated interests | 0024| are made in a fuel reconciliation | 0025| proceeding or in a rate case filed under | - 175 - 0001| Subsection (a) of this section or under | 0002| Section 2.210 of this Act. The | 0003| procedures shall provide an affected | 0004| party notice and the opportunity to | 0005| request a hearing before the commission. | 0006| However, the commission may adjust a | 0007| utility's fuel factor without a hearing | 0008| if the commission determines that a | 0009| hearing is not necessary. If the | 0010| commission holds a hearing, the | 0011| commission may consider any evidence | 0012| that is appropriate in the public | 0013| interest at such hearing. The | 0014| commission shall render a timely | 0015| decision approving, disapproving, or | 0016| modifying the adjustment to the | 0017| utility's fuel factor. | 0018| (B) The commission by rule shall provide for | 0019| the reconciliation of a utility's fuel | 0020| costs on a timely basis. | 0021| (C) A proceeding under this subsection may | 0022| not be considered a rate case under this | 0023| section. | 0024| (3) (A) This subsection applies only to | 0025| increases or decreases in the cost of | - 176 - 0001| purchased electricity which have been: | 0002| (i) accepted by a federal regulatory | 0003| authority; or | 0004| (ii) approved after a hearing by the | 0005| commission. | 0006| (B) The commission may, consistent with | 0007| federal law and regulations | 0008| utilize any appropriate method to | 0009| provide for the adjustment of the cost | 0010| of purchased electricity upon such terms | 0011| and conditions as the commission may | 0012| determine. Such purchased electricity | 0013| costs may be recovered concurrently with | 0014| the effective date of the changed costs | 0015| to the purchasing utility or as soon | 0016| thereafter as is reasonably practical. | 0017| (c) The commission may also provide for a | 0018| mechanism to allow any public utility | 0019| that has a noncontiguous geographical | 0020| service area, and that purchases power | 0021| for resale that noncontiguous service | 0022| area from public utilities that are not | 0023| members of the Electric Reliability | 0024| Council of New Mexico, to recover | 0025| purchased power cost for that area in a | - 177 - 0001| manner that reflects the purchased power | 0002| cost for that specific geographical | 0003| noncontiguous area. The commission may | 0004| not, however, require such a mechanism | 0005| for any electric cooperative corporation | 0006| unless requested by the electric | 0007| cooperative corporation. | 0008| (h) The commission on its own motion or on the petition | 0009| of a utility shall provide for the adjustment of a | 0010| utility's billing to reflect any increase or | 0011| decrease of tax liability of the utility to the | 0012| state. That is attributable to activities that are | 0013| subject to the jurisdiction of the commission. Any | 0014| adjustment to billings under this section must be | 0015| apportioned pro-rata to all types and classes of | 0016| service provided by the utility and is effective | 0017| only until the commission alters the adjustment as | 0018| provided by this subsection or enters an order for | 0019| the utility under this Section or Section 2.210 of | 0020| this Act. The adjustment of billings must be made | 0021| effective at the same time as the increase or | 0022| decrease of tax liability, or as soon after as is | 0023| reasonably practical. Each year after any original | 0024| adjustment, the commission shall review the | 0025| utility's increase or decrease of tax liability, | - 178 - 0001| and alter the adjustment to reflect the increase or | 0002| decrease. A proceeding under this subsection is | 0003| not a rate case under this section. | 0004| Sec. 2.212. RATES FOR AREAS NOT WITHIN MUNICIPALITY. Public | 0005| utility rates for | 0006| areas not within any municipality may not exceed without | 0007| commission approval 115 | 0008| | 0009| percent of the average of all rates for similar services | 0010| of all municipalities served by the same utility within | 0011| the same county. | 0012| Sec. 2.213. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES | 0013| OR | 0014| SERVICES. A public utility may not, as to rates or | 0015| services, make or grant any unreasonable preference or | 0016| advantage to any corporation or person within any | 0017| classification or subject any corporation or person | 0018| within any classification to any unreasonable prejudice | 0019| or disadvantage. A public utility may not establish and | 0020| maintain any unreasonable differences as to rates of | 0021| service either as between localities or as between | 0022| classes of service. Charges to individual customers for | 0023| retail or wholesale electric service that are less than | 0024| the rate approved by the commission shall not constitute | 0025| an impermissible difference, preference, or advantage. | - 179 - 0001| Sec. 2.2131. DISCOUNTED RATES FOR CERTAIN STATE INSTITUTIONS | 0002| OF HIGHER | 0003| EDUCATION. Notwithstanding any other provisions of this | 0004| Act, each public utility and municipally owned utility | 0005| shall discount charges for electric service provided to | 0006| any facility any four-year state university, upper-level | 0007| institution, community college, or college. The | 0008| discount shall be a 20 percent reduction of the | 0009| utility's base rates that otherwise would be rendered | 0010| under the applicable tariffed rate. However if a 20 | 0011| percent discount results in a reduction greater than one | 0012| percent of the public or municipally owned utility's | 0013| total annual revenues or if the municipally owned | 0014| utility, as of January 1, 1999, discounts base commercial | 0015| rates for electric service provided to all four-year | 0016| state universities or colleges in its service area by 20 | 0017| percent or more, the utility shall be exempt from the | 0018| provisions of this section. Each public utility shall | 0019| file tariffs with the commission reflecting the discount | 0020| within 30 days of the effective date of this section. | 0021| Such initial tariff filing shall not be considered a rate | 0022| change for purposes of Section 2.211 of this Act. This | 0023| section does not apply to rates charged to a state | 0024| institution of higher education by a municipally owned | 0025| utility which provides a discounted rate to the state for | - 180 - 0001| electric services below rates in effect on January 1, | 0002| 1999, and which discounted rates provide a greater | 0003| financial discount to the state than is provided to the | 0004| state institution of higher education through the | 0005| discount provided by this section. An investor-owned | 0006| public utility may not recover the assigned and allocated | 0007| costs of serving a state university or college which | 0008| receives a discount under this section from residential | 0009| customers or any other customer class. | 0010| Sec. 2.214. EQUALITY OF RATES AND SERVICES. | 0011| (a) A public utility may not, directly or indirectly, | 0012| by an device whatsoever or in any manner, charge, | 0013| demand, collect, or receive from any person a | 0014| greater or less compensation for any service | 0015| rendered or to be rendered by the utility than that | 0016| prescribed in the schedule of rates of the public | 0017| utility applicable thereto when filed in the manner | 0018| provided in this Act, nor may any person knowingly | 0019| receive or accept any service from a public utility | 0020| for a compensation greater or less than that | 0021| prescribed in the schedules except as to changes | 0022| approved by the commission in Sec. 2.001 (c) of | 0023| this Act. | 0024| (b) Nothing in this Act shall prevent a cooperative | 0025| corporation from returning to its members the whole | - 181 - 0001| or any part of the net earnings resulting from its | 0002| operations in proportion to their purchases from or | 0003| through the corporation. | 0004| (c) Notwithstanding any other provision of this Act, if | 0005| the commission has approved as of January 1, 1999, | 0006| the establishment of a separate rate class for | 0007| electric service for a university or college and | 0008| has grouped public schools in a separate rate | 0009| class, the commission shall include community | 0010| colleges in the rate class with public school | 0011| customers. | 0012| Sec. 2.215. DISCRIMINATION; RESTRICTION ON COMPETITION. A | 0013| public utility may | 0014| not discriminate against any person or corporation that | 0015| sells or leases equipment or performs services in | 0016| competition with the public utility, nor may any public | 0017| utility engage in any other practice that tends to | 0018| restrict or impair such competition. | 0019| Sec. 2.216. PAYMENTS IN LIEU OF TAXES. Payments made in lieu | 0020| of taxes by a public | 0021| utility to the municipality by which it is owned may not | 0022| be considered an expense of operation for the purpose of | 0023| determining, fixing, or regulating the rates to be | 0024| charged for the provision of utility service to a school | 0025| district or hospital district. Rates received by a | - 182 - 0001| public utility from a school district or hospital | 0002| district may not be used to make or to cover the cost of | 0003| making payments in lieu of taxes to the municipality by | 0004| which the public utility is owned. | 0005| | 0006| SUBTITLE E. CERTIFICATES OF CONVENIENCE AND NECESSITY | 0007| Sec. 2.251. DEFINITION. For the purposes of this subtitle | 0008| only, "retail public utility" means | 0009| any person, corporation, municipality, political | 0010| subdivision or agency, or cooperative corporation, now or | 0011| hereafter operating, maintaining, or controlling in this | 0012| state facilities for providing retail public utility | 0013| service except that a qualifying cogenerator selling | 0014| electric energy at retail to the sole purchaser of the | 0015| cogenerator's thermal output pursuant to Section 2.052 of | 0016| this Act shall not for that reason be considered a retail | 0017| public utility. The term also does not include those | 0018| exempt under Sec. 2.001 of this Act. | 0019| | 0020| Sec. 2.252. CERTIFICATE REQUIRED. | 0021| (a) A public utility may not in any way render service | 0022| directly or indirectly to the public under any | 0023| franchise or permit without first having obtained | 0024| from the commission a certificate that the present | 0025| or future public convenience and necessity require | - 183 - 0001| or will require such installation, operation, or | 0002| extension. | 0003| (b) Except as otherwise provided in this subtitle, a | 0004| retail public utility may not furnish, make | 0005| available, render, or extend retail public utility | 0006| service to any area to which retail utility service | 0007| is being lawfully furnished by another retail | 0008| public utility without first having obtained a | 0009| certificate of public convenience and necessity | 0010| that includes the area in which the consuming | 0011| facility is located. | 0012| Sec. 2.253. EXCEPTIONS FOR EXTENSION OF SERVICE. | 0013| (a) A public utility is not required to secure a | 0014| certificate of public convenience and necessity | 0015| for: | 0016| (1) an extension into territory contiguous to that | 0017| already served by it and not receiving similar | 0018| service from another public utility and not | 0019| within the area | 0020| of public convenience and necessity of | 0021| another utility of the same kind; | 0022| (2) an extension within or to territory already | 0023| served by it or to be served by it under a | 0024| certificate of public convenience and | 0025| necessity; or | - 184 - 0001| (3) operation, extension, or service in progress | 0002| on January 1, 1999. | 0003| (b) Any extensions allowed by Subsection (a) of this | 0004| section shall be limited to devices for | 0005| interconnection of existing facilities or devices | 0006| used solely for transmitting public utility | 0007| services from existing facilities to customers of | 0008| retail utility service. | 0009| | 0010| Sec. 2.254. APPLICATIONS; MAPS; EVIDENCE OF CONSENT. | 0011| (a) A public utility shall submit to the commission an | 0012| application to obtain a certificate of public | 0013| convenience and necessity or an amendment thereof. | 0014| (b) On or before 90 days after January 1, 1999, or at a | 0015| later date on request in writing by a public | 0016| utility when good cause is shown, or at such later | 0017| dates as the commission may order, each public | 0018| utility shall file with the commission a map or | 0019| maps showing all its facilities and illustrating | 0020| separately facilities for generation, transmission, | 0021| and distribution of its services. | 0022| (c) Each applicant for a certificate shall file with | 0023| the commission such evidence as is required by the | 0024| commission to show that the applicant has received | 0025| the required consent, franchise, or permit of the | - 185 - 0001| proper municipality or other public authority. | 0002| Sec. 2.255. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS | 0003| CONSIDERED; FILING OF NOTICE OF INTENT BY ELECTRIC | 0004| UTILITIES; TIME FOR APPROVAL OR DENIAL OF NEW | 0005| TRANSMISSION FACILITIES. | 0006| (a) When an application for a certificate of public | 0007| convenience and necessity is filed, the commission | 0008| shall give notice of such application to interested | 0009| parties, and, if | 0010| requested, shall fix a time and place for a | 0011| hearing and give notice of the hearing. Any person | 0012| interested in the application may intervene at the | 0013| hearing. | 0014| (b) The commission may grant applications and issue | 0015| certificates only if the commission finds that the | 0016| certificate is necessary for the service, | 0017| accommodation, convenience, or safety of the | 0018| public. The commission may issue the certificate | 0019| as prayed for, refuse to issue it, or issue it for | 0020| the construction of a portion only of | 0021| | 0022| the contemplated system or facility or extension | 0023| thereof or for the partial exercise only of the | 0024| right or privilege. | 0025| (c) Certificates of convenience and necessity shall be | - 186 - 0001| granted on a nondiscriminatory basis after | 0002| consideration by the commission of the adequacy of | 0003| existing service, the need for additional service, | 0004| the effect of the granting of a certificate on the | 0005| recipient of the certificate, on any public utility | 0006| of the same kind already serving the proximate | 0007| area, and on such factors as community values, | 0008| recreational and park areas, historical and | 0009| aesthetic values, environmental integrity, and the | 0010| probable improvement of service or lowering of cost | 0011| to consumers in such area resulting from the | 0012| granting of such certificate. | 0013| (d) This section does not apply to a certificate of | 0014| convenience and necessity for an electric | 0015| generating plant that is requested under Section | 0016| 2.051 of this Act. The commission may grant a | 0017| certificate of convenience and necessity for an | 0018| electric generating plant only in accordance with | 0019| Section 2.051 of this Act. | 0020| (e) If the application for a certificate of convenience | 0021| and necessity involves new transmission facilities, | 0022| the commission shall approve or deny the | 0023| application within one year after the date the | 0024| application is filed. If the commission does not | 0025| approve | - 187 - 0001| or deny the application within one year after the | 0002| application is filed. If the commission does not | 0003| approve or deny the application before this | 0004| deadline, any party may seek a writ of mandamus in | 0005| a district court of Santa County to compel the | 0006| commission to make a decision on the application. | 0007| | 0008| | 0009| Sec. 2.256. AREA INCLUDED WITHIN CITY, TOWN, OR VILLAGE. | 0010| (a) If an area has been or shall be included within the | 0011| boundaries of a city, town, or village as the | 0012| result of annexation, incorporation, or otherwise, | 0013| all public utilities certified or entitled to | 0014| certification under this Act to provide service or | 0015| operate facilities in such area prior to the | 0016| inclusion shall have the right to continue and | 0017| extend service in its area of public convenience | 0018| and necessity within the annexed or incorporated | 0019| area, pursuant to the rights granted by its | 0020| certificate and this Act. | 0021| (b) Except as provided in this Act or by federal law, a | 0022| public utility shall have the right to continue and | 0023| extend service within its area of public | 0024| convenience and necessity and to utilize the roads, | 0025| streets, highways, alleys, and public property for | - 188 - 0001| the purpose of furnishing such retail utility | 0002| service, subject to the authority of the governing | 0003| body of a municipality to require any public | 0004| utility, at its own expense, to relocate its | 0005| facilities to permit the widening or straightening | 0006| of streets by giving to the public utility 30 days' | 0007| notice and specifying the new location for the | 0008| facilities along the right-of-way of the street or | 0009| streets. | 0010| (c) This section may not be construed as limiting the | 0011| power of cities, towns, and villages to incorporate | 0012| or extend their boundaries by annexation, nor may | 0013| this section be construed as prohibiting any city | 0014| or town from levying taxes and other special | 0015| charges for the use of the streets and alleys. | 0016| Sec. 2.257. CONTRACTS VALID AND ENFORCEABLE. Contracts | 0017| between retail public | 0018| utilities designating areas to be served and customers to | 0019| be served by those utilities, when approved by the | 0020| commission, shall be valid and enforceable and shall be | 0021| incorporated into the appropriate areas of public | 0022| convenience and necessity. | 0023| Sec. 2.258. PRELIMINARY ORDER FOR CERTIFICATE. If a public | 0024| utility desires to | 0025| exercise a right or privilege under a franchise or permit | - 189 - 0001| which it contemplates securing but which has not as yet | 0002| been granted to it, such public utility may apply to the | 0003| commission for an order preliminary to the issuance of | 0004| the certificate. The commission may thereupon make an | 0005| order declaring that it will, on application, under such | 0006| rules as it prescribes, issue the desired certificate on | 0007| such terms and conditions as it designates, after the | 0008| public utility has obtained the contemplated franchise or | 0009| permit. On presentation to the commission of evidence | 0010| satisfactory to it that the franchise or permit has been | 0011| secured by the public utility, the commission shall issue | 0012| the certificate. | 0013| Sec. 2.259. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE, | 0014| REDUCTION, OR IMPAIRMENT OF SERVICE. | 0015| (a) Except as provided by this section, the holder of | 0016| any certificate of public convenience and necessity | 0017| shall serve every consumer within its certified | 0018| area and shall render continuous and adequate | 0019| service within the area or areas. | 0020| (b) Unless the commission issues a certificate that | 0021| neither the present or future convenience and | 0022| necessity will be adversely affected, the holder of | 0023| a certificate may not discontinue, reduce, or | 0024| impair service to a certified service area or part | 0025| thereof except for: | - 190 - 0001| (1) nonpayment of charges; | 0002| (2) nonuse; or | 0003| (3) other similar reasons in the usual course of | 0004| business. | 0005| | 0006| | 0007| (c) Any discontinuance, reduction, or impairment of | 0008| service, whether with or without approval of the | 0009| commission, shall be in conformity with and subject | 0010| to such conditions, restrictions, and limitations | 0011| as the commission shall prescribe. | 0012| Sec. 2.260. SALE, ASSIGNMENT, OR LEASE OF CERTIFICATE. If | 0013| the commission | 0014| determines that a purchaser, assignee, or lessee is | 0015| capable of rendering adequate service, a public utility | 0016| may sell, assign, or lease a certificate of public | 0017| convenience and necessity or any rights obtained under | 0018| the certificate. The sale, assignment, or lease shall be | 0019| on the conditions prescribed by the commission. | 0020| Sec. 2.261. INTERFERENCE WITH OTHER UTILITY. If a public | 0021| utility in constructing or | 0022| extending its lines, plant, or system interferes or | 0023| attempts to interfere with the operation of a line, | 0024| plant, or system of any other utility or qualifying | 0025| facility, the commission may issue an order prohibiting | - 191 - 0001| the construction or extension or prescribing terms and | 0002| conditions for locating the subject lines, plants, or | 0003| systems. | 0004| Sec. 2.262. IMPROVEMENTS IN SERVICE; INTERCONNECTING SERVICE. | 0005| After notice | 0006| and hearing, the commission may: | 0007| (1) order a public utility to provide specified | 0008| improvements in its service in a defined area, if | 0009| service in such area is inadequate or is | 0010| substantially inferior to service in a comparable | 0011| area and it is reasonable to require the company to | 0012| provide such improved service; and | 0013| (2) order two or more public utilities to establish | 0014| specified facilities for the interconnecting | 0015| service. | 0016| Sec. 2.263. REVOCATION OR AMENDMENT OF CERTIFICATE. | 0017| (a) The commission at any time after notice and hearing | 0018| may revoke or amend any certificate of convenience | 0019| and necessity if it finds that the certificate | 0020| holder has never provided or is no longer providing | 0021| service in the area, or part of the area, covered | 0022| by the certificate. | 0023| (b) When the certificate of any public utility is | 0024| revoked or amended, the commission may require one | 0025| or more public utilities to provide service in the | - 192 - 0001| area in question. | 0002| | 0003| TITLE III. TELECOMMUNICATIONS UTILITIES | 0004| SUBTITLE A. GENERAL PROVISIONS | 0005| Sec. 3.001. LEGISLATIVE POLICY CONCERNING REGULATION OF AND | 0006| COMPETITION IN THE TELECOMMUNICATIONS INDUSTRY. The | 0007| legislature finds that significant changes have occurred | 0008| in the telecommunications and telephone industry over the | 0009| past thirty years, including regulatory and court | 0010| decisions and the passage of the Federal | 0011| Telecommunications Act of 1996. The legislature hereby | 0012| declares that it is the policy of this state to promote | 0013| diversity of telecommunications providers and | 0014| interconnectivity and to encourage a fully competitive | 0015| telecommunications marketplace while protecting and | 0016| maintaining The wide availability of high quality, | 0017| interoperable, standards-based telecommunications | 0018| services at affordable rates. These goals are best | 0019| achieved by legislation that brings telecommunications | 0020| regulation into The modern era by guaranteeing The | 0021| affordability of basic telephone service in a | 0022| competitively neutral manner, while fostering free market | 0023| competition within The telecommunications industry. The | 0024| legislature further finds that The technological | 0025| advancements, advanced telecommunications infrastructure, | - 193 - 0001| and increased customer choices for telecommunications | 0002| services generated by a truly competitive market will | 0003| raise The living standards of New Mexicans by enhancing | 0004| economic development and improving The delivery of | 0005| education, health, and other public and private services | 0006| and therefore play a critical role in New Mexico's | 0007| economic future. It is The policy of this state to | 0008| require The commission to do those things necessary to | 0009| enhance The development of competition by adjusting | 0010| regulation to match The degree of competition in The | 0011| marketplace, thereby reducing The cost and burden of | 0012| regulation and maintaining protection of markets that are | 0013| not competitive. It is further The policy of this state | 0014| to ensure that high quality telecommunications services | 0015| are available, accessible, and usable by individuals with | 0016| disabilities, unless making The services available, | 0017| accessible, or usable would result in an undue burden, | 0018| including unreasonable cost or technical feasibility, or | 0019| would have an adverse competitive effect. However, the | 0020| legislature recognizes that the strength of competitive | 0021| forces vary widely between markets, products and | 0022| services. Therefore, to foster, encourage and accelerate | 0023| The continuing development and emergence of a competitive | 0024| telecommunications environment and infrastructure, The | 0025| legislature declares that new rules, policies, and | - 194 - 0001| principles be formulated and applied to protect The | 0002| public interest and to permit a deregulatory framework | 0003| that will cause an orderly and expeditious transition | 0004| from a regulated telecommunications industry to a | 0005| competitive industry.. | 0006| Sec. 3.002 DEFINITIONS. In this title: | 0007| (1) "Basic local telephone service" means: | 0008| (A) flat rate residential and business local | 0009| exchange telephone service, including primary | 0010| directory listings; | 0011| (B) tone dialing service; | 0012| (c) access to operator services; | 0013| (D) access to directory assistance services; | 0014| (E) access to 911 service; | 0015| (F) the ability to report service problems seven | 0016| days a week; | 0017| (G) lifeline and tel-assistance services; and | 0018| (H) any other service the commission, after a | 0019| hearing, determines should be included in | 0020| basic local telephone service. | 0021| (2) "Costs" shall mean the costs of a | 0022| telecommunications provider as determined by that | 0023| cost methodology approved by federal agencies or | 0024| courts, pursuant to the Telecommunications Act of | 0025| 1996. | - 195 - 0001| (3) "Dominant carrier" means: | 0002| (A) a provider of any particular communication | 0003| service which is provided in whole or in part | 0004| over a telephone system who as to such service | 0005| has sufficient market power in a | 0006| telecommunications market as determined by the | 0007| commission to enable such provider to control | 0008| prices in a manner adverse to the public | 0009| interest, including consumers and actual or | 0010| potential competitors, for such service in | 0011| such market; | 0012| (B) any provider who provided local exchange | 0013| telephone service within a certificated | 0014| exchange area on January 1, 1996, as to such | 0015| service and as to any other service for which | 0016| a competitive alternative is not available in | 0017| a particular geographic market; and | 0018| (C) any provider of local exchange telephone | 0019| service within a certificated exchange area as | 0020| to intraLATA long distance message | 0021| telecommunications service and similar inter- | 0022| city services, WATS, private line, etc., which | 0023| is originated by dialing the access code "1+" | 0024| so long as the use of that code for the | 0025| origination of "1+" intraLATA calls within its | - 196 - 0001| certificated exchange area is exclusive to | 0002| that provider. A telecommunications market | 0003| shall be statewide until January 1, 1999. | 0004| After this date the commission may, if it | 0005| determines that the public interest will be | 0006| served, establish separate markets within the | 0007| state. The commission shall hold such | 0008| hearings and require such | 0009| evidence as is necessary to carry out the | 0010| public purpose of this Act and to determine | 0011| the need and effect of establishing separate | 0012| markets. Any such provider determined to be a | 0013| dominant carrier as to a particular | 0014| telecommunications service in a market may not | 0015| be presumed to be a dominant carrier of a | 0016| different telecommunications service in that | 0017| market. | 0018| (4) "Incumbent local exchange company" means a local | 0019| exchange company that has a certificate of | 0020| convenience and necessity on January 1, 1996. | 0021| (5) "Least cost technology" means the technology, or | 0022| mix of technologies, that would be chosen in the | 0023| long run as the most economically efficient choice, | 0024| provided that the choice of least cost technologies | 0025| is: | - 197 - 0001| (A) restricted to technologies that are currently | 0002| available on the market and for which vendor | 0003| prices can be obtained; | 0004| (B) consistent with the level of output necessary | 0005| to satisfy current demand levels for all | 0006| services using the basic network function in | 0007| question; and | 0008| (C) consistent with overall network design and | 0009| topology requirements. | 0010| (6) "Local exchange company" means a telecommunications | 0011| utility that has been granted either a certificate | 0012| of convenience and necessity or a certificate of | 0013| operating authority to provide local exchange | 0014| telephone service, basic local telephone service, | 0015| or switched access service within the state or | 0016| other telecommunications provider which, pursuant | 0017| to federal law, has obtained the agreements for | 0018| interconnections to provide services within the | 0019| exchange or Local Access and Transport Area (LATA). | 0020| (7) "Local exchange telephone service" means | 0021| telecommunications service provided | 0022| within an exchange to establish connections | 0023| between customer premises within the exchange, | 0024| including connections between a customer premises | 0025| and a long distance provider serving the exchange. | - 198 - 0001| The term includes tone dialing, service connection | 0002| charges, and directory assistance services when | 0003| offered in connection with basic local telephone | 0004| service and interconnection with other service | 0005| providers. The term includes, but is not limited | 0006| to, basic local telephone service. The term does | 0007| also include the provision of any other services | 0008| within an exchange, including the following | 0009| services, whether offered on an intraexchange or | 0010| interexchange basis: | 0011| (A) central office based PBX-type services; | 0012| (B) billing and collection services; | 0013| (C) high-speed private line services of 1.544 | 0014| megabits or greater; | 0015| (D) customized services; | 0016| (E) private line and virtual private line | 0017| services; | 0018| (F) resold or shared local exchange telephone | 0019| services; | 0020| (G) dark fiber services; | 0021| (H) non-voice data transmission service when | 0022| offered as a separate service and not as a | 0023| component of basic local telecommunications | 0024| service; | 0025| (I) dedicated or virtually dedicated access | - 199 - 0001| services; and | 0002| (J) any other service authorized or permitted by | 0003| federal law. | 0004| (8) "Pricing flexibility" includes customer specific | 0005| contracts, volume, term, and discount pricing, zone | 0006| density pricing, packaging of services, and other | 0007| promotional pricing flexibility. Discounts and | 0008| other forms of pricing flexibility may not be | 0009| preferential, prejudicial, discriminatory, or | 0010| anticompetitive. | 0011| (9) "Telecommunications utility" or "utility" means any | 0012| person, corporation, river authority, cooperative | 0013| corporation, or any combination thereof, other than | 0014| a municipal corporation, or their lessees, | 0015| trustees, and receivers, now or hereafter owning or | 0016| operating for compensation in this state equipment | 0017| or facilities for the conveyance, transmission, or | 0018| reception of communications over a telephone system | 0019| as a dominant carrier (hereinafter | 0020| "telecommunications utility"). A person or | 0021| corporation not otherwise a public utility within | 0022| the meaning of this Act may not be deemed such | 0023| solely because of the furnishing or furnishing and | 0024| maintenance of a private system or the manufacture, | 0025| distribution, installation, or maintenance of | - 200 - 0001| customer premise communications equipment and | 0002| accessories. Except as provided by Sections 3.606 | 0003| and 3.608 of this Act, nothing in this Act shall be | 0004| construed to apply to companies whose only form of | 0005| business is being telecommunications managers, | 0006| companies that administer central office based or | 0007| customer based PBX-type sharing/resale arrangements | 0008| as their only form of business, telegraph services, | 0009| television stations, radio stations, community | 0010| antenna television services, radio-telephone | 0011| services that may be authorized under the Public | 0012| Mobile Radio Services rules of the Federal | 0013| Communications Commission, or commercial mobile | 0014| service providers, under Sections 153(n) and | 0015| 332(d), Communications Act of 1934 (47 U.S.C. | 0016| Section 151 et seq.), Federal Communications | 0017| Commission rules, and the Omnibus Budget | 0018| Reconciliation Act of 1993, other than such radio- | 0019| telephone services provided by wire line telephone | 0020| companies under the Domestic Public Land Mobile | 0021| Radio Service and Rural Radio Service rules of the | 0022| Federal Communications Commission. Interexchange | 0023| telecommunications carriers | 0024| (including resellers of interexchange | 0025| telecommunications services), specialized | - 201 - 0001| communications common carriers, competitive, non- | 0002| incumbent, local exchange and access providers, | 0003| other resellers of communications, other | 0004| communications carriers who convey, transmit, or | 0005| receive communications in whole or in part over a | 0006| telephone system, providers of operator services as | 0007| defined in Section 3.052 (a) of this Act (except | 0008| that subscribers to customer-owned pay telephone | 0009| service may not be deemed to be telecommunications | 0010| utilities), and separated affiliate and electronic | 0011| publishing joint ventures as defined by Subtitle L | 0012| of this title are also telecommunications | 0013| utilities, but the commission's regulatory | 0014| authority as to them is only as hereinafter | 0015| defined. The term "public utility" or "utility" | 0016| does not include any person or corporation not | 0017| otherwise a public utility that furnishes the | 0018| services or commodities described in this section | 0019| only to itself, its employees, or its tenants as an | 0020| incident of such employee service or tenancy, when | 0021| such service or commodity is not resold to or used | 0022| by others. | 0023| (10) "Telecommunications provider" means a certificated | 0024| telecommunications utility, a shared tenant service | 0025| provider, a nondominant carrier of | - 202 - 0001| telecommunications services, provider of radio- | 0002| telephone service authorized under the Commercial | 0003| Mobile Service under Sections 153(n) and 332(d), | 0004| Communications Act of 1934 (47 U.S.C. Section 151 | 0005| et seq.), Federal Communications Commission rules, | 0006| and the Omnibus Budget Reconciliation Act of 1993, | 0007| a telecommunications entity that provides central | 0008| office based PBX-type sharing or resale | 0009| arrangements, an interexchange telecommunications | 0010| carrier, a specialized common carrier, competitive, | 0011| non-incumbent local exchange and access providers, | 0012| a reseller of | 0013| communications, a provider of operator services, a | 0014| provider of customer-owned pay telephone service, | 0015| and other persons or entities that the commission | 0016| may from time to time find provide | 0017| telecommunications services to customers in this | 0018| state. The term does not include a provider of | 0019| enhanced or information services, or another use of | 0020| telecommunications services, who does not also | 0021| provide telecommunications services or any state | 0022| agency, or state institution of higher education, | 0023| or any service provided by any state agency or | 0024| state institution of higher education. | 0025| (11) "Tier 1 local exchange company" means a Tier 1 | - 203 - 0001| local exchange company as defined by the Federal | 0002| Communications Commission. | 0003| (12) This Act also adopts those definitions contained in | 0004| the federal Telecommunications Act of 1996 as may | 0005| be applicable to the telecommunications industry in | 0006| New Mexico or the implementation of the purposes or | 0007| provisions of this Act. | 0008| | 0009| SUBTITLE B. JURISDICTION OF COMMISSION | 0010| Sec. 3.051. TELECOMMUNICATIONS UTILITIES; FOSTERING | 0011| COMPETITION. | 0012| (a) Subject to the limitations imposed in this Act, and | 0013| for the purpose of carrying out the Legislature's | 0014| public policy of fostering competition, in Sec. | 0015| 3.001 of this Act and of regulating rates, | 0016| operations, and services of dominant | 0017| telecommunications, utilities, so that such rates | 0018| may be just, fair, and reasonable, and the services | 0019| adequate and efficient, the commission shall have | 0020| exclusive original jurisdiction over the business | 0021| and property of all telecommunications utilities in | 0022| this state until a competitive market environment | 0023| exists as to one or more services which then | 0024| shall be deregulated. In the exercise of its | 0025| jurisdiction to regulate the rates, operations, and | - 204 - 0001| services of a telecommunications utility providing | 0002| service in a municipality on the state line | 0003| adjacent to a municipality in an adjoining state, | 0004| the commission may cooperate with the utility | 0005| regulatory commission of the adjoining state or the | 0006| federal government and may hold joint hearings and | 0007| make joint investigations with any of those | 0008| commissions. | 0009| (b) The commission shall carry out its duties | 0010| compatible with and otherwise cooperate with | 0011| federal bodies as required by law, including the | 0012| Telecommunications Act of 1996. | 0013| (c) Except as provided by Subsections (m) and (n) of | 0014| this section and Section 3.052 of this Act, the | 0015| commission shall only have the following | 0016| jurisdiction overall telecommunications utilities | 0017| who are not dominant carriers: | 0018| (1) to require registration as provided in | 0019| Subsection (e) of this section; | 0020| | 0021| (2) to conduct such investigations as are | 0022| necessary to determine the existence, impact, | 0023| and scope of competition in the | 0024| telecommunications industry, including | 0025| identifying dominant carriers in the local | - 205 - 0001| telecommunications and intraLATA interexchange | 0002| telecommunications industry and defining the | 0003| telecommunications market or markets, and in | 0004| connection therewith may call and hold | 0005| hearings, issue subpoenas to compel the | 0006| attendance of witnesses and the production of | 0007| papers and documents and make findings of fact | 0008| and decisions with respect to administering | 0009| the provisions of this Act or the rules, | 0010| orders, and other actions of the commission; | 0011| (3) to require the filing of such reports as the | 0012| commission may direct from time | 0013| to time, provided such reports do not pose a | 0014| burden on, cause commercial harm to or place | 0015| the non-dominant carriers in a competitive | 0016| disadvantage. | 0017| (4) to require that every local exchange area have | 0018| local, exchange access and interexchange | 0019| telecommunications services, except that a | 0020| telecommunications utility must be allowed to | 0021| discontinue service to a local exchange area | 0022| if comparable service is available in the area | 0023| and the discontinuance is not contrary to the | 0024| public interest, this section does not | 0025| authorize the commission to require a | - 206 - 0001| telecommunications utility that has not | 0002| provided services to a local exchange area | 0003| during the previous 12 months and that has | 0004| never provided services to that same local | 0005| exchange area for a cumulative period of one | 0006| year at any time in the past to initiate | 0007| services to that local exchange area; and | 0008| | 0009| (5) to require the quality of telecommunications | 0010| service provided in each exchange to be | 0011| adequate to protect the interests of customers | 0012| of that 0exchange if the commission determines | 0013| that service to a local exchange has | 0014| deteriorated to the point that service is not | 0015| reliable. | 0016| (d) All providers of communications service described | 0017| in Subsection (c) of this section who commence such | 0018| service to the public shall register with the | 0019| commission within 30 days of commencing service. | 0020| Such registration shall be accomplished by filing | 0021| with the commission a description of the location | 0022| and type of service provided, the price to the | 0023| public of such service, and such other registration | 0024| information as the commission may direct. | 0025| Notwithstanding any other provision of this Act, an | - 207 - 0001| interexchange telecommunications utility doing | 0002| business in this state shall continue | 0003| to maintain on file with the commission tariffs or | 0004| lists governing the terms of providing its | 0005| services. | 0006| (e) (1) For the purpose of carrying out the public | 0007| policy stated in Sec. 3.001 of this Act and | 0008| any other section of this Act notwithstanding, | 0009| the commission is granted authority under this | 0010| Act, after a public evidentiary hearing, to | 0011| promulgate rules and establish procedures | 0012| applicable to incumbent local exchange | 0013| carriers for establish and foster competition | 0014| in telecommunications markets and submarkets | 0015| and to allow incumbent local exchange carriers | 0016| to respond to significant competitive | 0017| challenges. Nothing in this section is | 0018| intended to change the burden or proof of the | 0019| incumbent local exchange company under | 0020| Sections 3.202, 3.203, 3.204, 3.205, 3.206, | 0021| 3.207, and 3.208 of this Act. Nothing in this | 0022| section is to be construed in conflict with | 0023| the Telecommunications Act of 1996 and | 0024| decisions of federal bodies thereunder. | 0025| (2) The regulatory treatments which the commission | - 208 - 0001| may implement shall be compatible with the | 0002| Telecommunications Act of 1996 and, subject | 0003| thereto, may include but are not limited to: | 0004| (A) approval of price or rate ceilings or a | 0005| range of rates for one or more services; | 0006| (B) approval of customer-specific contracts | 0007| for a specific service; provided, | 0008| however, that the commission shall | 0009| approve a contract to provide central | 0010| office based PBX-type services for | 0011| systems of 200 stations or more, billing | 0012| and collection services, high-speed | 0013| private | 0014| line services of 1.544 megabits or | 0015| greater, and customized services, | 0016| provided that the contract is filed at | 0017| least 30 days before initiation of the | 0018| service contracted for; that the | 0019| contract is accompanied with an | 0020| affidavit from the person or entity | 0021| contracting for the telecommunications | 0022| service stating that he considered the | 0023| acquisition of the same, equivalent, or | 0024| substitutable services by bid or | 0025| quotation from a source other than the | - 209 - 0001| incumbent local exchange carrier that | 0002| the incumbent local exchange carrier is | 0003| recovering the costs of providing the | 0004| services; and that approval of the | 0005| contract is in the public interest; the | 0006| contract shall be approved or denied | 0007| within 30 days after filing, unless the | 0008| commission for good cause extends the | 0009| effective date for an additional 35 | 0010| days; and | 0011| (C) the detariffing of rates. | 0012| (D) Physical or virtual interconnection | 0013| consistent with the Telecommunications | 0014| Act of 1996; | 0015| (E) approval of the resale of local exchange | 0016| facilities and service and the | 0017| unbundling of same, consistent with the | 0018| Telecommunications Act of 1996. | 0019| (f) In order to encourage the rapid introduction of new | 0020| or experimental services or promotional rates, the | 0021| commission shall promulgate rules and establish | 0022| procedures which allow the expedited introduction | 0023| of, the establishment and adjustment of rates for, | 0024| and the withdrawal of such services, including | 0025| requests for such services made to the commission | - 210 - 0001| by the governing body of a municipality served by | 0002| an | 0003| incumbent local exchange company having more than | 0004| 200,000 access lines throughout the state. | 0005| (g) In promulgating new rules and establishing the | 0006| procedures contemplated in Subsections (e) and (f) | 0007| of this section, the commission shall seek to | 0008| balance the public interest in a technologically | 0009| advanced telecommunications system providing a wide | 0010| range of new and innovative services with | 0011| preserving universal service prohibiting | 0012| anticompetitive practices, and preventing the | 0013| subsidization of competitive services with revenues | 0014| from regulated monopoly services and not in | 0015| conflict with Sections 3, 102, 251-261 and 271-276 | 0016| of the Telecommunications Act of 1996 and federal | 0017| agency and court decisions thereon. The commission | 0018| shall promulgate these rules and establish these | 0019| procedures so as to incorporate an appropriate mix | 0020| of regulatory and market mechanisms reflecting the | 0021| level and nature of competition in the marketplace. | 0022| Rates established under Subsections (d) and (e) of | 0023| this section may not be: | 0024| (1) unreasonably preferential, prejudicial, or | 0025| discriminatory; | - 211 - 0001| (2) subsidized either directly or indirectly by | 0002| regulated monopoly services; or | 0003| (3) predatory or anticompetitive. | 0004| (h) The commission promptly shall initiate a rulemaking | 0005| proceeding and take public comment and promulgate | 0006| rules which prescribe the standards necessary to | 0007| ensure that all rates set under the provisions of | 0008| this section cover their appropriate costs, | 0009| compatible with Sec. 3.002 (2). | 0010| (i) The commission is granted all necessary power and | 0011| authority to prescribe and collect fees and | 0012| assessments from local exchange companies necessary | 0013| to recover the commission's and the office's costs | 0014| of activities carried out and services provided | 0015| under this subsection and subsections (e) (f) (g) | 0016| (I) and (j) of this section. | 0017| (j) Subsections (e) and (f) of this section are not | 0018| applicable to basic local telecommunications | 0019| service, including local measured service. | 0020| Paragraph (B) of Subdivision (3) of Subsection (e) | 0021| of this section is not applicable to message | 0022| telecommunications services, switched access | 0023| services for interexchange carriers, or wide area | 0024| telecommunications service. An incumbent local | 0025| exchange company may not price similar services | - 212 - 0001| provided pursuant to contracts under Paragraph (B) | 0002| of Subdivision (3) of Subsection (e)of this section | 0003| in a discriminatory manner, For purposes of this | 0004| section, similar services shall be defined as those | 0005| services which are provided at or near the same | 0006| point in time, which have the same characteristics, | 0007| and which are provided under the same or similar | 0008| circumstances. | 0009| (k) Before January 15 of each odd-numbered year, the | 0010| commission shall report to the legislature on the | 0011| scope of competition in regulated | 0012| telecommunications markets | 0013| and the impact of competition on customers in both | 0014| competitive and noncompetitive markets, with a | 0015| specific focus on rural markets. The report shall | 0016| include an assessment of the impact of competition | 0017| on the rates and availability of telecommunications | 0018| services for residential and business customers and | 0019| shall specifically address any effects on universal | 0020| service. The report shall provide a summary of | 0021| commission actions over the preceding two years | 0022| which reflect the commission's efforts to enlarge | 0023| the scope of competition in regulated | 0024| telecommunications markets. The report shall also | 0025| include recommendations to the legislature for | - 213 - 0001| further legislation which the commission finds | 0002| appropriate to promote the public interest in the | 0003| context of a partially competitive | 0004| telecommunications market. | 0005| (l) The commission may enter such orders as may be | 0006| necessary to protect the public interest and the | 0007| competitive marketplace, if the commission upon | 0008| complaint from another telecommunications utility | 0009| finds by a preponderance of the evidence upon | 0010| notice and evidentiary hearing that a | 0011| telecommunications utility attempted to engage or | 0012| has engaged in predatory pricing or other | 0013| anticompetitive conduct. | 0014| (m) In any proceeding before the commission alleging | 0015| conduct or activities by a telecommunications | 0016| utility against another telecommunications utility | 0017| in contravention of Subsections (l) and (n) of this | 0018| section, the burden of proof shall be upon the | 0019| complaining telecommunications utility; however, in | 0020| such proceedings brought by customers or their | 0021| representatives who are not themselves | 0022| interexchange telecommunications utilities or in | 0023| such proceedings initiated by the commission, the | 0024| burden of proof shall be upon the respondent | 0025| telecommunications | - 214 - 0001| utility. However, if the commission finds it to | 0002| be in the public interest, the commission may | 0003| impose the burden of proof in such proceedings on | 0004| the complaining party. | 0005| (n) The commission shall have the authority to require | 0006| that a service provided by an interexchange | 0007| telecommunications utility be made available in an | 0008| exchange served by the utility within a reasonable | 0009| time after receipt of a bona fide request for such | 0010| service in that exchange, subject to the ability of | 0011| the local exchange company to provide the required | 0012| access or other service. A utility may not be | 0013| required to extend a service to an area if | 0014| provisions of that service would impose, after | 0015| consideration of the public interest to be served, | 0016| unreasonable costs upon or require unreasonable | 0017| investments by the interexchange telecommunications | 0018| utility. The commission may require such | 0019| information from interexchange utilities and local | 0020| exchange companies as may be necessary to enforce | 0021| this provision. | 0022| (o) The commission may exempt from any requirement of | 0023| this section an interexchange telecommunications | 0024| utility that the commission determines does not | 0025| have a significant effect on the public interest, | - 215 - 0001| and it may exempt any interexchange | 0002| telecommunications utility which solely relies on | 0003| the facilities of others to complete long distance | 0004| calls if the commission deems this action to be in | 0005| the public interest. Information which may be | 0006| provided to the commission by these non-dominant | 0007| telecommunications facilities shall be treated in a | 0008| confidential manner. | 0009| (p) Requirements imposed by Subsections (b), (c) and | 0010| (j) of this section on an interexchange | 0011| telecommunications utility shall apply to | 0012| nondominant carriers and | 0013| shall constitute the minimum requirements to be | 0014| imposed by the commission for any dominant carrier. | 0015| (q) The commission may, only as necessary to enforce | 0016| its limited jurisdiction, prescribe forms of books, | 0017| accounts, records, and memoranda to be kept by a | 0018| company that has a certificate of operating | 0019| authority or service provider certificate of | 0020| operating authority under Subtitle F of this title | 0021| that in the judgment of the commission may be | 0022| necessary to carry out the limited jurisdiction | 0023| over those companies that this Act provides to the | 0024| commission. | 0025| | - 216 - 0001| (r) (1) Except as otherwise specifically provided by | 0002| this Act, the commission shall have only the | 0003| following authority over a holder of a | 0004| certificate of operating authority or service | 0005| provider certificate of operating authority: | 0006| (A) to enforce the applicable provisions of | 0007| this Act under the policies stated in | 0008| Subtitle A, Title I, of this Act; and | 0009| Sec. 3.001 of Title II of this Act. | 0010| (B) to assert jurisdiction over a specific | 0011| service in accordance with Section | 0012| 3.2572 of this Act; | 0013| (C) to require co-carriage reciprocity; and | 0014| (D) to regulate condemnation and building | 0015| access. | 0016| (2) The commission may not impose on a | 0017| telecommunications utility that has a | 0018| certificate of operating authority or service | 0019| provider that has a certificate of operating | 0020| authority a rule or regulatory practice under | 0021| this section that imposes a greater regulatory | 0022| burden on that telecommunications utility than | 0023| is imposed on a certificate of convenience and | 0024| necessity holder serving the | 0025| same area or that imposes a greater burden on | - 217 - 0001| that telecommunications utility than required | 0002| by the Telecommunications Act of 1996. | 0003| Sec. 3.052. OPERATOR SERVICE; REGULATION AND DISCLOSURE OF | 0004| INFORMATION. | 0005| (a) In this section "operator service" means any | 0006| service using live operator or automated operator | 0007| functions for the handling of telephone service | 0008| such as toll calling via collect, third-number | 0009| billing, and calling card services. Calls for | 0010| which | 0011| | 0012| the called party has arranged to be billed (800 | 0013| service) are not considered operator services. | 0014| (b) Prior to the connection of each call the operator | 0015| service provider shall: | 0016| (1) announce the provider's name; and | 0017| (2) quote, at the caller's request, the rate and | 0018| any other fees or surcharges applicable to the | 0019| call and charged by the provider. | 0020| (c) An operator service provider shall furnish each | 0021| entity with which it contracts to provide operator | 0022| service a sticker, card, or other form of | 0023| information approved by the commission for each | 0024| telephone that has access to the service and is | 0025| intended to be utilized by the public, unless the | - 218 - 0001| owner of the telephone has received approval from | 0002| the commission for an alternative form of | 0003| information. The information must state the | 0004| provider's name that the operator service provider | 0005| will provide rate information on the caller's | 0006| request, that the caller will be informed how to | 0007| access the local exchange company operator on | 0008| request, and that any complaint about the service | 0009| may be made to the provider or the commission at | 0010| the designated telephone number. The operator | 0011| service provider shall require by contract that the | 0012| entity | 0013| receiving the information display it on or near | 0014| each of the telephones that has access to the | 0015| service and is intended for use by the public. | 0016| (d) An operator service provider must, on request, | 0017| inform the caller how to access the operator for | 0018| the local exchange company serving the exchange | 0019| from which the call is made. A charge may not be | 0020| made for this information. | 0021| (e) The commission shall adopt rules requiring an | 0022| operator service provider to include in its | 0023| contract with each entity through which it provides | 0024| operator service a requirement that the telephones | 0025| subscribed to its services shall allow access to | - 219 - 0001| the local exchange carrier operator serving the | 0002| exchange from which the call is made and to other | 0003| telecommunications utilities; but in order to | 0004| prevent fraudulent use of its services, an operator | 0005| service provider and individual entities through | 0006| which it provides operator services may block | 0007| access if either obtains a waiver for this purpose | 0008| from the commission or the Federal Communications | 0009| Commission. The procedure and criteria for | 0010| obtaining a waiver from the commission shall be set | 0011| forth in the commission's rules. | 0012| (f) The commission shall promulgate rules consistent | 0013| with the requirements of this section and any | 0014| additional requirements deemed necessary to protect | 0015| the public interest by September 1, 1999. All | 0016| rules promulgated under this section shall be | 0017| nondiscriminatory and designed to promote | 0018| competition that facilitates consumer choice. | 0019| (g) The commission may investigate a complaint that it | 0020| receives concerning operator services. If the | 0021| commission determines that an operator service | 0022| provider has violated or is about to violate this | 0023| section, the commission may, upon proper | 0024| notice and evidentiary hearing, take action to | 0025| stop, correct, or prevent the violation. | - 220 - 0001| (h) Except as provided by Subsection (I) of this | 0002| section, this section applies only to a | 0003| telecommunications utility that is not a dominant | 0004| carrier. The commission is granted all necessary | 0005| power and authority under this Act to promulgate | 0006| rules and establish procedures for the purposes of | 0007| enforcing and implementing this section. | 0008| | 0009| (i) Each dominant or nondominant telecommunications | 0010| utility that provides operator service shall ensure | 0011| that a caller may access a live operator at the | 0012| beginning of all live or mechanized operator | 0013| assisted calls through a method designed to be | 0014| easily and clearly understandable and accessible to | 0015| the caller. A telecommunications utility shall | 0016| submit to the commission the method by which the | 0017| utility will provide access to a live operator for | 0018| review. This subsection applies regardless of the | 0019| method by which the telecommunications utility | 0020| provides the operator service. The requirements of | 0021| this subsection do not apply to telephones located | 0022| in prison or jail facilities. | 0023| Sec. 3.053. SALE OF PROPERTY. | 0024| (a) The commission shall complete an investigation | 0025| under Section 1.251 of this Act that relates to a | - 221 - 0001| public utility and enter a final order within 180 | 0002| days after the date of notification by the utility. | 0003| If an order is not entered, the utility's action is | 0004| considered consistent with the public interest. | 0005| (b) Section 1.251 of this Act does not apply to an | 0006| incumbent local exchange company electing under | 0007| Subtitle H of this title or to a company that | 0008| receives a certificate of | 0009| operating authority or a service provider | 0010| certificate of operating authority under Subtitle F | 0011| of this title. | 0012| | 0013| SUBTITLE C. RATES AND SERVICES | 0014| Sec. 3.151. RATES; METHODS AND ACCOUNTS. | 0015| (a) To the extent rates and costs of telecommunications | 0016| utilities are not determined by the | 0017| Telecommunications Act of 1996, and compatible with | 0018| that Act, the commission shall fix proper and | 0019| adequate rates and methods of depreciation, | 0020| amortization, or depletion of the several classes | 0021| of property of each public utility and shall | 0022| require every public utility to carry a proper and | 0023| adequate depreciation account in accordance with | 0024| such rates and methods and which such other rules | 0025| and regulations as the commission prescribes. On | - 222 - 0001| application of a utility, the commission shall fix | 0002| depreciation rates that promote deployment of new | 0003| technology and infrastructure. In setting those | 0004| rates, the commission shall consider depreciation | 0005| practices of nonregulated telecommunications | 0006| providers. Such rates, methods, and accounts shall | 0007| be utilized uniformly and consistently throughout | 0008| the ratesetting and appeal proceedings. A company | 0009| electing under Subtitle H of this title may | 0010| determine its own depreciation rates and | 0011| amortizations, but shall notify the commission of | 0012| any changes. | 0013| (b) Every public utility shall keep separate accounts | 0014| to show all profits or losses resulting from the | 0015| sale or lease of appliances, fixtures, equipment, | 0016| or other merchandise. This profit or loss may not | 0017| be taken into consideration by the commission in | 0018| arriving at any rate to be charged for service by | 0019| any such public | 0020| utility, to the extent that such merchandise is not | 0021| integral to the provision of utility service. | 0022| (c) Copy from parallel electric Title II provision | 0023| (d) In determining the allocation of tax savings | 0024| derived from application of such methods as | 0025| liberalized depreciation and amortization and the | - 223 - 0001| investment tax credit, the commission shall | 0002| equitably balance the interests of present and | 0003| future customers and shall apportion such benefits | 0004| between consumers and the utilities accordingly. | 0005| Where any portion of the investment tax credit has | 0006| been retained by a public utility, that same amount | 0007| shall be deducted from the original cost of the | 0008| facilities or other addition to the rate base to | 0009| which the credit applied, to the extent allowed by | 0010| the Internal Revenue Code. | 0011| Sec. 3.152. REPORTING OF ADVERTISING OR PUBLIC RELATIONS | 0012| EXPENSES. | 0013| (a) The commission may require an annual reporting from | 0014| each utility company of all its expenditures for | 0015| business gifts and entertainment and for | 0016| institutional, consumption-inducing, and other | 0017| advertising or public relations expenses. | 0018| (b) The commission may not allow as costs or expenses | 0019| for ratemaking purposes any of these expenditures | 0020| which the commission determines not to be in the | 0021| public interest. | 0022| (c) The cost of legislative advocacy expenses may not | 0023| in any case be allowed as costs or expenses for | 0024| ratemaking purposes. | 0025| (d) Reasonable charitable or civic contributions may be | - 224 - 0001| allowed not to exceed the amount approved by the | 0002| commission. | 0003| Sec. 3.153. UNLAWFUL RATES, RULES, AND REGULATIONS. It shall | 0004| be unlawful for any utility to charge, collect, or receive | 0005| any rate for utility service or to | 0006| impose any rule or regulation other than | 0007| as herein provided. | 0008| Sec. 3.154. FILING SCHEDULE OF RATES, RULES, AND REGULATIONS. | 0009| (a) Every public utility shall file with the commission | 0010| schedules showing all rates which are subject to | 0011| the jurisdiction of the commission and which are in | 0012| force at the time for any utility service, product, | 0013| or commodity offered by the utility. | 0014| (b) Every public utility shall file with and as a part | 0015| of such schedules all rules and regulations | 0016| relating to or affecting the rates, utility | 0017| service, product, or commodity furnished by such | 0018| utility. | 0019| Sec. 3.1545. RECORDS. Notwithstanding Section 1.204 of this | 0020| Act, books, accounts, records, or memoranda of a public | 0021| utility may be removed from | 0022| the state so long as those | 0023| books, accounts, records, or | 0024| memoranda are returned to the | 0025| state for any inspection by | - 225 - 0001| the commission that is | 0002| authorized by this Act. | 0003| Sec. 3.155. STANDARDS OF SERVICE. | 0004| (a) Every public utility shall furnish such service, | 0005| instrumentalities, and facilities as shall be safe, | 0006| adequate, efficient, and reasonable. | 0007| (b) The commission after reasonable notice and hearing | 0008| had on its own motion or on complaint may: | 0009| (1) ascertain and fix just and reasonable | 0010| standards, classifications, regulations, or | 0011| practices to be observed and followed by any | 0012| or all utilities with respect to the service | 0013| to be furnished; | 0014| (2) ascertain and fix adequate and reasonable | 0015| standards for the measurement of the quantity, | 0016| quality, or other condition pertaining to the | 0017| supply of the service; | 0018| (3) prescribe reasonable regulations for the | 0019| examination and testing of the service and for | 0020| the measurement thereof; and | 0021| (4) establish or approve reasonable rules, | 0022| regulations, specifications, and standards to | 0023| secure the accuracy of all meters, | 0024| instruments, and equipment used for the | 0025| measurement of any service of any public | - 226 - 0001| utility. | 0002| | 0003| (c) Any standards, classifications, regulations, or | 0004| practices now or hereafter observed or followed by | 0005| any public utility may be filed by it with the | 0006| commission, and the same shall continue in force | 0007| until amended by the public utility or until | 0008| changed by the commission as herein provided. | 0009| Sec. 3.1555. MINIMUM SERVICES. | 0010| (a) Except as provided by Subsection (d) of this | 0011| section, the commission shall require each holder | 0012| of a certificate of convenience and necessity or | 0013| certificate of operating authority in this state to | 0014| provide at the applicable tariff rate, if any, to | 0015| all customers, irrespective of race, national | 0016| origin, income, or residence in an urban or rural | 0017| area, not later than December 31, 2000: | 0018| (1) single party service; | 0019| (2) tone-dialing service; | 0020| (3) basic custom calling features; | 0021| (4) equal access for interLATA interexchange | 0022| carriers on a bona fide request; and | 0023| (5) digital switching capability in all exchanges | 0024| on customer request, provided by a digital | 0025| switch in the exchange or by connection to a | - 227 - 0001| digital switch in another exchange. | 0002| (b) Notwithstanding Subsection (a) of this section an | 0003| electing incumbent local exchange company serving | 0004| as of January 1, 1998, more than 175,000 but fewer | 0005| than 1,500,000 access lines shall install digital | 0006| switches in its central offices serving exchanges | 0007| of less than 20,000 access lines before December | 0008| 31, 2000. | 0009| | 0010| (c) The commission may temporarily waive these | 0011| requirements on a showing of good cause. The | 0012| commission may not consider the cost of | 0013| implementing this section in determining whether an | 0014| electing company is entitled to a rate increase | 0015| under Subtitle H or I of this title or increased | 0016| universal service funds under Section 3.608 of this | 0017| Act. | 0018| (d) Not later than July 1, 2000 each local exchange | 0019| carrier shall make ISDN available to all customers | 0020| in exchange areas of the company that have at least | 0021| 20,000 access lines. | 0022| Sec. 3.1556. RECONNECTION FEE. The commission shall | 0023| establish a reasonable limit on the amount that a local | 0024| exchange carrier may | 0025| charge a customer for | - 228 - 0001| changing the location at | 0002| which the customer | 0003| receives service. | 0004| | 0005| SUBTITLE D. PROCEEDINGS BEFORE THE COMMISSION | 0006| Sec. 3.201. POWER TO INSURE COMPLIANCE; RATE REGULATION. | 0007| Subject to the provisions of this Act, the commission is | 0008| hereby vested with all authority and power of | 0009| the State to insure compliance with the | 0010| obligations of public utilities in this Act. | 0011| Except as otherwise provided by this Act, the | 0012| commission is empowered to fix and regulate | 0013| rates of | 0014| public utilities, including rules and regulations for | 0015| determining the classification of customers and services | 0016| and for determining the applicability of rates. A rule | 0017| or order of the commission may not conflict with the | 0018| rulings of any federal regulatory body. | 0019| Sec. 3.202. JUST AND REASONABLE RATES. It shall be the duty | 0020| of the commission to insure that every rate made, | 0021| demanded, or received by any public | 0022| utility or by any two or more | 0023| utilities jointly shall be just and | 0024| reasonable. Rates may not be | 0025| preferential, prejudicial, or | - 229 - 0001| discriminatory, but shall be | 0002| sufficient, equitable and | 0003| consistent in application to each | 0004| class of consumers. For ratemaking | 0005| purposes, the commission may treat | 0006| two or more municipalities served | 0007| by a public utility as a single | 0008| class wherever it deems such | 0009| treatment to be appropriate. | 0010| Approval by the commission of a | 0011| reduced rate for service for a | 0012| class of consumers eligible under | 0013| Section 3.602 of this Act for tel- | 0014| assistance service does not | 0015| constitute a violation of this | 0016| section. | 0017| Sec. 3.203. FIXING OVERALL REVENUES. | 0018| (a) In fixing the rates of a public utility the | 0019| commission shall, in a manner not inconsistent with | 0020| the Telecommunications Act of 1996, fix its overall | 0021| revenues at a level which will permit such utility | 0022| a reasonable opportunity to earn a reasonable | 0023| return on its invested capital used and useful in | 0024| rendering service to the public over and above its | 0025| reasonable and necessary operating expenses. | - 230 - 0001| (b) In fixing a reasonable return on invested capital, | 0002| the commission shall consider, in addition to other | 0003| applicable factors, the quality of the utility's | 0004| services, the efficiency of the utility's | 0005| operations, and the quality of the utility's | 0006| management. | 0007| Sec. 3.204. BURDEN OF PROOF. Except as hereafter provided, | 0008| in any proceeding involving | 0009| any proposed change of rates, the burden of proof to show | 0010| that the proposed change, if proposed by the utility, or | 0011| that the existing rate, if it is proposed to reduce the | 0012| rate, is just and reasonable shall be on the public | 0013| utility. In any proceeding involving an incumbent local | 0014| exchange company in which the incumbent local exchange | 0015| company's rate or rates are in issue, the burden of proof | 0016| that such rate or rates are just and reasonable shall be | 0017| on the incumbent local exchange company. | 0018| | 0019| Sec. 3.205. COMPONENTS OF INVESTED CAPITAL AND NET INCOME. | 0020| The | 0021| components of invested capital and net income shall be | 0022| determined according to Section 3.206, 3.207, and 3.208. | 0023| Sec. 3.206. INVESTED CAPITAL. | 0024| (a) Utility rates shall be based upon the original cost | 0025| of property used by and useful to the public | - 231 - 0001| utility in providing service including construction | 0002| work in progress at cost as recorded on the books | 0003| of the utility. | 0004| (b) The inclusion of construction work in progress is | 0005| an exceptional form of rate relief to be granted | 0006| only upon the demonstration by the utility that | 0007| such inclusion is necessary to the financial | 0008| integrity of the utility. Construction work in | 0009| progress may not be included in the rate base for | 0010| major projects under construction to the extent | 0011| that such projects have been inefficiently or | 0012| imprudently planned or managed. | 0013| (c) Original cost shall be the actual money cost or the | 0014| actual money value of any consideration paid other | 0015| than money of the property at the time it shall | 0016| have been dedicated to public use, whether by the | 0017| utility which is the present owner or by a | 0018| predecessor, less depreciation. The determination | 0019| of cost shall be made on a cost | 0020| methodology which is consistent with the cost | 0021| methodology adopted under the federal | 0022| Telecommunications Act of 1996 and Sec. 3.208 of | 0023| this Act. | 0024| Sec. 3.207. SEPARATIONS AND ALLOCATIONS. Costs of | 0025| facilities, revenues, expenses, | - 232 - 0001| taxes and reserves shall be separated or allocated as | 0002| prescribed by the commission, consistent with federal | 0003| law. No separations or allocations shall result in | 0004| artificial subsidies by jurisdiction or by costs, | 0005| revenues, expenses, taxes or reserves. | 0006| Sec. 3.208. NET INCOME. | 0007| (a) "Net income" means the total revenues of the public | 0008| utility less all reasonable and necessary expenses | 0009| as determined by the commission under the Act. The | 0010| commission shall determine expenses and revenues in | 0011| a manner consistent with this Act and this section. | 0012| (b) Transactions with Affiliated Interests. Payment to | 0013| affiliated interests or any existing or former unit | 0014| of the Bell System (e.g., Bellcore) for costs of | 0015| any services or any property, right, or thing or | 0016| for interest expense may not be allowed either as | 0017| capital cost or as expense except to the extent | 0018| that the commission shall find such payment to be | 0019| reasonable and necessary for each item or class of | 0020| items as determined by the commission. Any such | 0021| finding shall include specific findings of the | 0022| reasonableness and necessity of each item or class | 0023| of items allowed and a finding that the price to | 0024| the utility is no higher than prices charged by the | 0025| supplying affiliate to its other affiliates or | - 233 - 0001| divisions for the same item or class of items, or | 0002| to unaffiliated persons or corporations within the | 0003| same market areas or having the same market | 0004| conditions. If the supplying affiliate has | 0005| calculated its charges to the utility in a manner | 0006| consistent with the rules of the Federal | 0007| Communications | 0008| Commission, no finding shall be required as to the | 0009| price charged by the supplying affiliate to its | 0010| other affiliates or divisions. In any case in | 0011| which the commission finds that the test period | 0012| affiliate expense is unreasonable, the commission | 0013| shall determine the reasonable level of the expense | 0014| and shall include such expense in determining the | 0015| utility's cost of service. | 0016| | 0017| (c) Income Taxes. If the public utility is a member of | 0018| an affiliated group that is eligible to file a | 0019| consolidated income tax return and if it is | 0020| advantageous to the public utility to do so, income | 0021| taxes shall be computed as though a consolidated | 0022| return had been so filed and the utility had | 0023| realized its fair share of the savings resulting | 0024| from the consolidated return, unless it is shown to | 0025| the satisfaction of the commission that it was | - 234 - 0001| reasonable to choose not to consolidate returns. | 0002| The amounts of income taxes saves by a consolidated | 0003| group of which a public utility is a member by | 0004| reason of the elimination the consolidated return | 0005| of the intercompany profit on purchases by the | 0006| public utility from an affiliate and shall be | 0007| applied to reduce the cost of the property or | 0008| services so purchased. The investment tax credit | 0009| allowed against federal income taxes, to the extent | 0010| retained by the utility, shall be applied as a | 0011| reduction in the rate-based contribution of the | 0012| assets to which such credit applies, to the extent | 0013| and at such rate as allowed by the Internal Revenue | 0014| Code. | 0015| (d) Expenses Disallowed. The commission may not | 0016| consider for ratemaking purposes the following | 0017| expenses: | 0018| (1) legislative or regulatory lobbying expenses, | 0019| whether made directly or indirectly, including | 0020| but not limited to lobbying expenses included | 0021| in trade association dues; | 0022| (2) costs of processing a refund or credit under | 0023| Subsection (e) of Section 3.211 of this Act; | 0024| or | 0025| (3) any expenditure found by the commission to be | - 235 - 0001| unreasonable, unnecessary, or not in the | 0002| public interest, including but not limited to | 0003| executive salaries, advertising expenses, | 0004| legal expenses, and court or agency - ordered | 0005| damages, penalties or fines. | 0006| (e) Rules. The commission may promulgate reasonable | 0007| rules and regulations with respect to the allowance | 0008| or disallowance of any expenses for ratemaking | 0009| purposes. | 0010| (f) Costs for the purposes of setting rates under this | 0011| Title shall not be utilized in the calculation of | 0012| costs and prices required for the development of | 0013| competitive markets through resale, number | 0014| portability, dialing parity, access to rights-of- | 0015| way, interconnection; unbundled access, resale, | 0016| collocation or other steps required by this Act or | 0017| the Telecommunications Act of 1996. | 0018| Sec. 3.209. SELF-INSURANCE | 0019| (a) A public utility may self-insure all or a portion | 0020| of its potential liability or catastrophic property | 0021| loss, including windstorm, fire, and explosion | 0022| losses, which could not have been reasonably | 0023| anticipated and included under operating and | 0024| maintenance expenses. The commission shall approve | 0025| a self-insurance plan under this section if it | - 236 - 0001| finds that the coverage is in the public interest | 0002| and the plan is a | 0003| lower cost alternative to purchasing commercial | 0004| insurance, considering all costs, and that | 0005| ratepayers will receive the benefits of that | 0006| saving. | 0007| (b) In computing a utility's reasonable and necessary | 0008| expenses under Section 3.208 of this Act, the | 0009| commission shall allow as a necessary expense the | 0010| funds credited to reserve accounts for the self- | 0011| insurance, to the extent the commission finds it in | 0012| the public interest. After the reserve account is | 0013| established, the commission shall consider if the | 0014| reserve account has a surplus or shortage in | 0015| determining the utility's rate base. | 0016| A surplus in the reserve account will exist if the | 0017| charges against the reserve account are less than | 0018| the funds credited to the reserve. A shortage in | 0019| the reserve account will exist if the charges | 0020| against the account are greater than the funds | 0021| credited to the reserve. The commission shall | 0022| subtract any surplus from and add any shortage to | 0023| the rate base. | 0024| (c) The commission shall determine reasonableness under | 0025| Subsection (b) of this section from information | - 237 - 0001| provided at the time the self-insurance plan and | 0002| reserve account are established and upon the filing | 0003| of each rate case by a utility that has such a | 0004| fund. | 0005| (d) The commission shall adopt rules governing self- | 0006| insurance under this section. | 0007| Sec. 3.210. UNREASONABLE OR VIOLATIVE EXISTING RATES; | 0008| INVESTIGATING | 0009| COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE. | 0010| (a) Whenever the commission, after reasonable notice | 0011| and hearing, on its own motion or on complaint by | 0012| any affected person, finds that the existing rates | 0013| of any public utility for any service are | 0014| unreasonable, anticompetitive or in any way in | 0015| violation | 0016| of any provision of federal or state law, the | 0017| commission shall determine the just and reasonable | 0018| rates, including maximum or minimum rates, to be | 0019| thereafter observed and in force and shall fix the | 0020| same by order to be served on the public utility; | 0021| and such rates shall constitute the legal rates of | 0022| the public utility until changed as provided in | 0023| this Act. | 0024| (b) Whenever a public utility does not itself produce | 0025| or generate that which it distributes, transmits, | - 238 - 0001| or furnishes to the public for compensation but | 0002| obtains the same from another source, the | 0003| commission shall have the power and authority to | 0004| investigate the cost of such production or | 0005| generation in any investigation of the | 0006| reasonableness of the rates of such public utility. | 0007| (c) Except as provided in Subtitles H and I of this | 0008| title, this section does not apply to a company | 0009| electing into Subtitle H or I of this title. | 0010| However, the commission shall retain jurisdiction | 0011| to hear and resolve complaints regarding an | 0012| electing company's compliance with obligations | 0013| imposed by this Act. | 0014| Sec. 3.211. STATEMENT OF INTENT TO CHANGE RATES; MAJOR | 0015| CHANGES; | 0016| HEARING; SUSPENSION OF RATE SCHEDULE; DETERMINATION OF | 0017| RATE LEVEL. | 0018| (a) A utility may not make changes in its rates except | 0019| by filing a statement of intent with the commission | 0020| at least 35 days prior to the effective date of the | 0021| proposed change. | 0022| The statement of intent shall include proposed | 0023| revisions of tariffs and schedules and a statement | 0024| specifying in detail each proposed change, the | 0025| effect the proposed change is expected to have on | - 239 - 0001| the revenues of the company, the classes and | 0002| numbers of utility consumers affected, and such | 0003| other information as may be required by the | 0004| commission's rules and regulations. The statement | 0005| of intent shall expressly represent that it does | 0006| not conflict with provisions of this Act or federal | 0007| law, including the Telecommunications Act of 1996. | 0008| A copy of the statement of intent shall be mailed | 0009| or delivered to the appropriate officer of each | 0010| affected municipality, and notice shall be given by | 0011| publication in conspicuous form, and place of a | 0012| notice to the public of such proposed change once | 0013| in each week for four successive weeks prior to the | 0014| effective date of the proposed change in a | 0015| newspaper having general circulation in each county | 0016| containing territory affected by the proposed | 0017| change, and by mail to such other affected persons | 0018| as may be required by the commission's rules and | 0019| regulations. The commission may waive the | 0020| publication of notice requirement prescribed by | 0021| this subsection in a proceeding that involves a | 0022| rate reduction for all affected ratepayers only. | 0023| The applicant shall give notice of the proposed | 0024| rate change by mail to all affected utility | 0025| customers. The commission by rule shall also | - 240 - 0001| define other proceedings for which the publication | 0002| of notice requirement prescribed by this subsection | 0003| may be waived on a showing of good cause, provided | 0004| that a waiver may not be granted in any proceeding | 0005| involving a rate increase to any class or category | 0006| of ratepayer. | 0007| (b) The commission, for good cause shown, may, except | 0008| in the case of major changes, allow changes in rate | 0009| to take effect prior to the end of such 35-day | 0010| period under such conditions as it may prescribe, | 0011| subject to suspension as provided herein. All such | 0012| changes shall be indicated immediately upon its | 0013| schedules by such utility. "Major changes" shall | 0014| mean an increase in rates which would increase the | 0015| aggregate revenues of the applicant more than the | 0016| greater of $100,000 or 2-1/2 percent, but does not | 0017| include changes in rates allowed to go into effect | 0018| by the commission or made by the utility pursuant | 0019| to an order of the commission after hearings held | 0020| upon notice to the public. | 0021| (c) Whenever there is filed with the commission any | 0022| schedule modifying or resulting in a change in any | 0023| rates then in force, the commission shall on | 0024| complaint by any affected person or may on its own | 0025| motion, at any time within 30 days from the date | - 241 - 0001| when such change would or has become effective, | 0002| and, if it so orders, without answer or other | 0003| formal pleading by the utility, but on reasonable | 0004| notice, including notice to the governing bodies of | 0005| all affected municipalities and counties, enter on | 0006| a hearing to determine the propriety of such | 0007| change. | 0008| The commission shall hold such a hearing in every | 0009| case in which the change constitutes a major change | 0010| in rates, provided that an informal proceeding may | 0011| satisfy this requirement if a complaint has not | 0012| been received before the expiration of 45 days | 0013| after notice of the change shall have been filed. | 0014| In each case where the commission determines it is | 0015| in the public interest to collect testimony at a | 0016| regional hearing for the inclusion in the record, | 0017| the commission shall hold a regional hearing at an | 0018| appropriate location. A regional hearing is not | 0019| required in a case involving a member-owned | 0020| utility, unless the commission determines | 0021| otherwise. | 0022| (d) Pending the hearing and decision, the commission, | 0023| after delivery to the affected utility of a | 0024| statement in writing of its reasons therefore, may | 0025| suspend the operation of the schedule for a period | - 242 - 0001| not to exceed 150 days beyond the date on which the | 0002| schedule would otherwise go into effect. If the | 0003| commission does not make a final | 0004| determination concerning any schedule of rates | 0005| prior to expiration of the period or periods of | 0006| suspension, the schedule shall be deemed to have | 0007| been approved by the commission. However, the 150- | 0008| day period shall be extended two days for each one | 0009| day of actual hearing on the merits of the case | 0010| that exceeds 15 days. This approval is subject to | 0011| the authority of the commission thereafter to | 0012| continue a hearing in progress. The commission may | 0013| in its discretion fix temporary rates for any | 0014| period of suspension under this section. During | 0015| the suspension by the commission as above provided, | 0016| the rates in force when the suspended schedule was | 0017| filed shall continue in force unless the commission | 0018| shall establish a temporary rate. | 0019| The commission shall give preference to the hearing | 0020| and decision of questions arising under this | 0021| section over all other questions pending before it | 0022| and decide the same as speedily as possible. | 0023| (e) If the 150-day period has been extended, as | 0024| provided by Subsection (d) of this section, and the | 0025| commission fails to make its final determination of | - 243 - 0001| rates within 150 days from the date that the | 0002| proposed change otherwise would have gone into | 0003| effect, the utility concerned may put a changed | 0004| rate, not to exceed the proposed rate, into effect | 0005| upon the filing with the commission of a bond | 0006| payable to the commission in an amount and with | 0007| sureties approved by the commission conditioned | 0008| upon refund and in a form approved by the | 0009| commission. The utility concerned shall refund or | 0010| credit against future bills all sums collected | 0011| during the period of suspension in excess of the | 0012| rate finally ordered plus interest at the current | 0013| rate as finally determined by the commission. | 0014| (f) If, after hearing, the commission finds the rates | 0015| to be unreasonable or in any way in violation of | 0016| any provision of law, the commission shall | 0017| determine the level of rates to be charged or | 0018| applied by the utility for the service in question | 0019| and shall fix the same by order to be served upon | 0020| the utility; these rates are thereafter to be | 0021| observed until changed, as provided by this Act. | 0022| Except as provided by Subtitles H, I, and J of this | 0023| title, this subsection does not apply to a company | 0024| electing into Subtitle H or I of this title. Rates | 0025| established under this section after a company's | - 244 - 0001| election must comply with Subtitle H or I of this | 0002| title. | 0003| (g) A rate or tariff set by the commission may not | 0004| authorize a utility to automatically adjust and | 0005| pass through to its customers changes in costs of | 0006| the utility. This subsection does not limit the | 0007| right of a public utility to pass through municipal | 0008| fees, including any increase in municipal fees. A | 0009| public utility that traditionally passes through | 0010| municipal fees shall promptly pass through any | 0011| reductions. | 0012| (h) If the commission does not make a final | 0013| determination concerning an incumbent local | 0014| exchange company's schedule of rates prior to the | 0015| expiration of the 150-day suspension period, the | 0016| schedule of rates finally approved by the | 0017| commission shall become effective and the incumbent | 0018| local exchange company shall be entitled to collect | 0019| such rates from the date the 150-day suspension | 0020| period expired. Any surcharges or other charges | 0021| necessary to effectuate this subsection may not be | 0022| recovered over a period of less than 90 days from | 0023| the date of the commission's final order. | 0024| (i) An incumbent local exchange company may file with | 0025| the commission tariffs for services that have been | - 245 - 0001| approved by the Federal Communications Commission, | 0002| provided that the tariffs include all rate | 0003| elements in the company's interstate tariffs. If | 0004| on review the filed tariffs contain the same rates, | 0005| terms, and conditions, as approved by the Federal | 0006| Communications Commission, the commission shall | 0007| order the rates to be the intrastate rates, terms | 0008| and conditions for the incumbent local exchange | 0009| company within 60 days of filing. | 0010| Sec. 3.212. CHANGES BY INCUMBENT LOCAL EXCHANGE CARRIERS; | 0011| HEARINGS; | 0012| SUSPENSION OF PROPOSED CHANGES. | 0013| (a) An incumbent local exchange carrier may make | 0014| changes in its tariffed rules, regulations, or | 0015| practices that do not affect its charges or rates, | 0016| provided such changes to not impair competition or | 0017| violate other provisions of this Act, by filing the | 0018| proposed changes with the commission at least 35 | 0019| days prior to the effective date of the changes. | 0020| The commission may require such notice to | 0021| ratepayers as it considers appropriate. | 0022| (b) The commission may on complaint by any affected | 0023| person or on its own motion hold a hearing, after | 0024| reasonable notice, to determine the propriety, | 0025| fairness or lawfulness of the change. Pending the | - 246 - 0001| hearing and decision, the commission may suspend | 0002| the operation of the proposed changes for a period | 0003| not to exceed 120 days after the date on which the | 0004| changes would otherwise go into effect. | 0005| (c) The commission shall approve, deny, or modify the | 0006| proposed changes before expiration of the | 0007| suspension period. In any proceeding under this | 0008| section, the burden of proving that the requested | 0009| relief is in the public interest and complies with | 0010| this Act shall be borne by the incumbent local | 0011| exchange company. | 0012| Sec. 3.213. SMALL INCUMBENT LOCAL EXCHANGE CARRIERS. | 0013| (a) The legislature finds that regulatory policy should | 0014| recognize differences between the small and large | 0015| incumbent local exchange carriers, that there are a | 0016| number of customer-owned telephone cooperatives and | 0017| small locally-owned investor companies, and that it | 0018| is appropriate to provide incentives and | 0019| flexibility to allow incumbent local exchange | 0020| carriers that serve the rural areas to provide | 0021| existing services and to introduce new technology | 0022| and new services in a prompt, efficient, and | 0023| economical manner. | 0024| | 0025| (b) Except as otherwise provided by this section, an | - 247 - 0001| incumbent local exchange carrier that is a | 0002| cooperative corporation, or that, together with all | 0003| affiliated incumbent local exchange companies, has | 0004| fewer than 15,000 access lines in service in this | 0005| state may offer extended local calling services or | 0006| new services on an optional basis or make minor | 0007| changes in its rates or tariffs if the carrier: | 0008| (1) files with the commission and the office a | 0009| statement of intent, as prescribed by | 0010| Subsection (c) of this section, not later than | 0011| the 91st day before the date on which the | 0012| proposed change will take effect; | 0013| (2) provides notice as prescribed by Subsection | 0014| (d) of this section; and | 0015| (3) files with the commission affidavits verifying | 0016| the provision of notice as prescribed by | 0017| Subsection (d) of this section and verifying | 0018| that the statement of intent is not | 0019| inconsistent with this Act or federal law, | 0020| including the Telecommunications Act of 1996. | 0021| (c) The statement of intent required by Subsection | 0022| (b)(1) of this section must include: | 0023| (1) a copy of a resolution approving the proposed | 0024| change by the incumbent local exchange | 0025| telephone carrier's board of directors; | - 248 - 0001| (2) a description of the services affected by the | 0002| proposed change; | 0003| (3) a copy of the proposed tariff for the affected | 0004| service; | 0005| (4) a copy of the customer notice required by | 0006| Subsection (b)(2) of this section; | 0007| (5) the number of access lines the company and | 0008| each affiliate has in service in this state; | 0009| and | 0010| (6) the amount by which the company's total | 0011| regulated intrastate gross annual revenues | 0012| will increase or decrease as a result of the | 0013| proposed change. | 0014| (d) The incumbent local exchange company shall provide | 0015| notice to affected customers in the manner | 0016| prescribed by the commission not later than the | 0017| 61st day before the date on which the proposed | 0018| change will take effect. Each notice prescribed by | 0019| the commission must include: | 0020| (1) a description of the services affected by the | 0021| proposed change; | 0022| (2) the effective date of the proposed change; | 0023| (3) an explanation of the customer's right to | 0024| petition the commission for a review under | 0025| Subsection (e) of this section, including the | - 249 - 0001| number of persons required to petition before | 0002| a commission review will occur. | 0003| (4) an explanation of the customer's right to | 0004| obtain information concerning how to obtain a | 0005| copy of the proposed tariff from the company; | 0006| (5) the amount by which the company's total | 0007| regulated intrastate gross annual revenues | 0008| will increase or decrease as a result of the | 0009| proposed change; and | 0010| (e) The commission shall review a proposed change filed under | 0011| this section if: | 0012| (1) the commission receives complaints relating to | 0013| the proposed change signed by the lesser of | 0014| five percent or 1,500 of the affected local | 0015| service customers; | 0016| (2) the commission receives a complaint relating | 0017| to the proposed change from an affected | 0018| intrastate access customer, or a group of | 0019| affected intrastate access customers, that in | 0020| the preceding 12 months accounted for more | 0021| than 10 percent of the company's total | 0022| intrastate gross access revenues; | 0023| (3) the proposed change is not a minor change; | 0024| | 0025| (4) the company does not comply with the | - 250 - 0001| procedural and legal requirements of this | 0002| section; | 0003| (5) the proposed change is inconsistent with the | 0004| commission's substantive policies as expressed | 0005| in its rules or with federal law. | 0006| (f) On review, the commission may suspend the proposed | 0007| tariff during the pendency of review. | 0008| (g) This section does not prohibit an incumbent local | 0009| exchange carrier from filing for a new service or | 0010| rate change under another applicable section of | 0011| this Act or the commission from conducting a review | 0012| in accordance with Section 3.210 of this Act. | 0013| (h) In this section, "minor change" means a change, | 0014| including the restructuring of rates of existing | 0015| services, that decreases the rates or revenues of | 0016| the incumbent local exchange carrier or that, | 0017| together with any other rate or proposed or | 0018| approved tariff changes in the 12 months preceding | 0019| the date on which the proposed change will take | 0020| effect, results in an increase of the company's | 0021| total regulated intrastate | 0022| gross annual revenues by not more than five | 0023| percent. Further, with regard to a change to a | 0024| basic local access line rate, a minor change may | 0025| not, together with any other change to that rate | - 251 - 0001| that went into effect during the 12 months | 0002| preceding the proposed effective date of the | 0003| requested change, result in an increase of more | 0004| than 10 percent. | 0005| (i) Rates established under this section must be in | 0006| accordance with the rate-setting principles of this | 0007| subtitle. However, carriers may provide to their | 0008| employees free or reduced rates for services. | 0009| (j) The commission shall, within 120 days of the | 0010| effective date of this section, examine its | 0011| policies, its reporting requirements, and its | 0012| procedural and substantive rules as they relate to | 0013| rural and small incumbent local exchange carriers | 0014| and cooperatives to eliminate or revise those that | 0015| place unnecessary burdens and expenses on those | 0016| carriers. Notwithstanding any other provisions of | 0017| this Act, the commission shall consider and may | 0018| adopt policies that include the following: | 0019| (A) policies to allow those companies to provide | 0020| required information by report or otherwise as | 0021| necessary, including a rate filing package | 0022| when required, in substantially less | 0023| burdensome and complex form than required of | 0024| larger incumbent local exchange companies; | 0025| (B) policies that permit consideration of the | - 252 - 0001| company's future construction plans and | 0002| operational changes in evaluating the | 0003| reasonableness of current rates; | 0004| (C) policies that provide for evaluation of the | 0005| overall reasonableness of current rates no | 0006| more frequently than once every three years; | 0007| (D) policies that permit companies to change | 0008| depreciation and amortization rates when | 0009| customer rates are not affected by notice to | 0010| the commission, subject to review by the | 0011| commission in a proceeding under Section 3.210 | 0012| or 3.211 of this Act; | 0013| (E) policies to allow the incumbent local exchange | 0014| companies to adopt for new services the rates | 0015| for the same or substantially similar services | 0016| offered by a larger incumbent local exchange | 0017| company, without commission requirement of | 0018| additional cost justification; and | 0019| (F) policies that allow an incumbent local | 0020| exchange carrier, instead of any management | 0021| audit that would otherwise be required by law, | 0022| policy, or rule, to submit to the commission | 0023| financial audits of the company regularly | 0024| performed by independent auditors or required | 0025| and performed as a result of the company's | - 253 - 0001| participation in federal or state financing or | 0002| revenue-sharing programs. | 0003| (k) The commission is granted all necessary power and | 0004| authority to prescribe and collect fees and | 0005| assessments from incumbent local exchange companies | 0006| necessary to recover the commission's and the | 0007| office's costs of activities carried out and | 0008| services provided under this section, Subsection | 0009| (h) of Section 3.211, and Section 3.212 and 3.2135 | 0010| of this Act. [Sec. 43B] | 0011| (l) Except as provided in Subsection (j) this section | 0012| may not apply to any incumbent local exchange | 0013| company that is a cooperative corporation partially | 0014| deregulated under the provisions of Section 3.2135 | 0015| of this Act. | 0016| Sec. 3.2135. COOPERATIVE CORPORATIONS. | 0017| (a) An incumbent local exchange carrier that is a | 0018| cooperative corporation may vote to partially | 0019| deregulate the cooperative by sending a ballot to | 0020| each cooperative member. The ballot may be | 0021| included in a bill or sent separately. The ballot | 0022| shall provide for voting for or against the | 0023| proposition: "Authorizing the partial deregulation | 0024| of the (name of the cooperative)." | 0025| (b) The cooperative is deemed to be partially | - 254 - 0001| deregulated if a majority of the ballots returned | 0002| to the cooperative not later than the 45th day | 0003| after the date on which ballots are mailed factor | 0004| deregulation. | 0005| (c) After the initial balloting, the cooperative may | 0006| offer extended local calling services, offer new | 0007| services on an optional basis, or make changes in | 0008| its rates or tariffs if the cooperative: | 0009| (1) provides notice of the proposed action under | 0010| this section to all customers and | 0011| municipalities as prescribed by Subsection (e) | 0012| of this section; | 0013| (2) files with the commission affidavits verifying | 0014| the provision of notice as prescribed by | 0015| Subsection (f) of this section; and | 0016| (3) files a statement of intent under Subsection | 0017| (d) of this section. | 0018| (d) A statement of intent to use this section must be | 0019| filed with the commission and the office not later | 0020| than the 61st day before the date on which a | 0021| proposed change will take effect and must include: | 0022| (1) a copy of a resolution approving the proposed | 0023| action and authorizing the filing of the | 0024| statement of intent signed by a majority of | 0025| the members of the cooperative's board of | - 255 - 0001| directors; | 0002| (2) a description of the services affected by the | 0003| proposed action; | 0004| (3) a copy of the proposed tariff for the affected | 0005| service; and | 0006| (4) a copy of the customer notice required by this | 0007| section. | 0008| (e) The cooperative shall provide to all affected | 0009| customers and parties, including municipalities, at | 0010| least two notices of the proposed action by bill | 0011| insert or by individual notice. The cooperative | 0012| shall provide the first notice not later than the | 0013| 61st day before the date on which the proposed | 0014| action will take effect. The cooperative shall | 0015| provide the last notice not later than the 31st day | 0016| before the date | 0017| | 0018| on which the proposed action will take effect. | 0019| Each notice prescribed by this subsection must | 0020| include: | 0021| (1) a description of the services affected by the | 0022| proposed action; | 0023| (2) the effective date of the proposed action; | 0024| (3) an explanation of the customer's right to | 0025| petition the commission for a review under | - 256 - 0001| Subsection (g) of this section; | 0002| (4) an explanation of the customer's right to | 0003| obtain a copy of the proposed tariff from the | 0004| cooperative; | 0005| (5) the amount by which the cooperative's total | 0006| gross annual revenues will increase or | 0007| decrease and a statement explaining the effect | 0008| on the cooperative revenues as a result of the | 0009| proposed action; and | 0010| (6) a list of rates that are affected by the | 0011| proposed rate action, showing the effect of | 0012| the proposed action on such rate. | 0013| (f) Not later than the 15th day before the date on | 0014| which the proposed action will take effect, the | 0015| cooperative shall file with the commission | 0016| affidavits that verify that the cooperative | 0017| provided each notice prescribed under Subsection | 0018| (e) of this section. | 0019| (g) (1) The commission shall review a proposed action | 0020| filed under this section if: | 0021| (A) the commission receives, not later than | 0022| the 45th day after the first notice is | 0023| provided under Subsection (e) of this | 0024| section, complaints relating to the | 0025| proposed action: | - 257 - 0001| (i) signed by at least five percent of | 0002| the affected local service | 0003| customers; or | 0004| | 0005| (ii) from an affected intrastate access | 0006| customer, or group of affected | 0007| intrastate access customers, that | 0008| in the preceding 12 months | 0009| accounted for more than 10 percent | 0010| of the cooperative's total | 0011| intrastate access revenues; | 0012| (B) the cooperative does not comply with the | 0013| procedural requirements of this section; | 0014| or | 0015| (C) the proposed action is inconsistent with | 0016| the commission's substantive policies as | 0017| expressed in its rules. | 0018| (2) If the commission conducts a review of the | 0019| proposed action under this subsection before | 0020| the effective date, the commission may suspend | 0021| the proposed actions of the cooperative during | 0022| the pendency of the review. | 0023| (h) A cooperative that is partially deregulated under | 0024| this section may vote to reverse the deregulation | 0025| by sending a ballot to each cooperative member. | - 258 - 0001| Upon its own motion or within 60 days upon receipt | 0002| of a written request of 10 percent of its members, | 0003| the cooperative's board of directors shall | 0004| reballot. The ballot may be included in a bill or | 0005| sent separately. The ballot shall provide for | 0006| voting for or against the proposition: "Reversing | 0007| the partial deregulation of the (name of the | 0008| cooperative)." The partial deregulation is | 0009| reversed if a majority of the ballots returned to | 0010| the cooperative not later than the 45th day after | 0011| the date on which the ballots are mailed favor | 0012| reversal. | 0013| (i) The commission by rule shall prescribe the voting | 0014| procedures a cooperative is required to use under | 0015| this section. | 0016| | 0017| (j) This section does not: | 0018| (1) prohibit a cooperative from filing for a new | 0019| service or rate change under another | 0020| applicable section of this Act; or | 0021| (2) affect the application of other provisions of | 0022| this Act not directly related to ratemaking or | 0023| the authority of the commission to require the | 0024| cooperative to file reports as required under | 0025| this Act, Section 3.213(j) of this Act, or | - 259 - 0001| under the rules adopted by the commission. | 0002| (k) Notwithstanding any other provision of this | 0003| section, the commission may conduct a review in | 0004| accordance with Section 3.210 of this Act. | 0005| Sec. 3.214. RATES FOR AREAS NOT WITHIN MUNICIPALITY. | 0006| Public utility rates for areas not within any | 0007| municipality may not exceed without commission approval | 0008| 115 percent of the average of all rates for similar | 0009| services of all municipalities served by the same utility | 0010| within the same county. | 0011| Sec. 3.215. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES | 0012| OR | 0013| SERVICES. A public utility may not, as to rates or | 0014| services, make or grant any unreasonable preference or | 0015| advantage to any corporation or person within any | 0016| classification or subject any corporation or person | 0017| within any classification to any unreasonable prejudice | 0018| or disadvantage. A public utility may not establish and | 0019| maintain | 0020| any unreasonable differences as to rates of service | 0021| either as between localities or as between classes of | 0022| service. | 0023| Sec. 3.216. EQUALITY OF RATES AND SERVICES | 0024| (a) A public utility may not, directly or indirectly, | 0025| by any device whatsoever or in any manner, charge, | - 260 - 0001| demand, collect, or receive from any person a | 0002| greater or less compensation for any service | 0003| rendered or to be rendered by the utility than that | 0004| prescribed in the schedule of rates of the public | 0005| utility applicable thereto when filed in the manner | 0006| provided in this Act, nor may any person knowingly | 0007| receive or accept any service from a public utility | 0008| for a compensation greater or less than that | 0009| prescribed in the schedules. | 0010| (b) Nothing in this Act shall prevent a cooperative | 0011| corporation from returning to its members the whole | 0012| or any part of the net earnings resulting from its | 0013| operations in proportion to their purchases from or | 0014| through the corporation. | 0015| Sec. 3.217. DISCRIMINATION; RESTRICTION ON COMPETITION. A | 0016| public utility may | 0017| not discriminate against any person or corporation that | 0018| sells or leases equipment or performs services in | 0019| competition with the public utility, nor may any public | 0020| utility engage in any other practice that tends to | 0021| restrict or impair such competition. | 0022| Sec. 3.218. TELECOMMUNICATIONS UTILITY PROVIDING SERVICE TO | 0023| THE STATE; | 0024| DELINQUENT PAYMENT CHARGES. A telecommunications utility | 0025| providing any service to the state, including service to | - 261 - 0001| an agency in any branch of state government, may not | 0002| charge a fee, penalty, interest, or other charge for | 0003| delinquent payment of a bill for that service. | 0004| | 0005| SUBTITLE E. CERTIFICATES OF CONVENIENCE AND NECESSITY | 0006| Sec. 3.251. CERTIFICATE REQUIRED. | 0007| (a) A public utility may not in any way render service | 0008| directly or indirectly to the public under any | 0009| franchise or permit without first having obtained | 0010| from the | 0011| | 0012| commission a certificate that the present or future | 0013| public convenience and necessity require or will | 0014| require such installation, operation, or extension. | 0015| (b) Except as otherwise provided in this subtitle, a | 0016| public utility may not furnish, make available, | 0017| render or extend retail public utility service to | 0018| any area to which retail utility service is being | 0019| lawfully furnished by another public utility, | 0020| without first having obtained a certificate of | 0021| public convenience and necessity that includes the | 0022| area in which the consuming facility is located. | 0023| (c) A person may not provide local exchange telephone | 0024| service, basic local telecommunications service or | 0025| switched access service without a certificate of | - 262 - 0001| convenience and necessity, a certificate of | 0002| operating authority, or a service provider | 0003| certificate of operating authority. | 0004| (d) A municipality may not receive a certificate of | 0005| convenience and necessity, certificate of operating | 0006| authority, or service provider certificate of | 0007| operating authority under this Act. In addition, a | 0008| municipality or municipal electric system may not | 0009| offer for sale to the public, either directly or | 0010| indirectly through a telecommunications provider, a | 0011| service for which a certificate is required or any | 0012| non-switched telecommunications service to be used | 0013| to provide connections between customers' premises | 0014| within the exchange or between a customer's | 0015| premises and a long distance provider serving the | 0016| exchange. | 0017| Sec. 3.252. EXCEPTIONS. | 0018| (a) A telecommunications utility is not required to | 0019| secure a certificate of public convenience and | 0020| necessity, for: | 0021| | 0022| (1) services offered by non-dominant | 0023| telecommunications utilities within an | 0024| incumbent local exchange carrier's certified | 0025| area, by virtue of the development of | - 263 - 0001| competitive markets through resale, number | 0002| portability, dialing parity, access to rights- | 0003| of-way, interconnection, unbundled access, | 0004| resale, collocation or other steps required or | 0005| authorized by this Act of the | 0006| Telecommunications Act of 1996. | 0007| (2) an extension into territory contiguous to that | 0008| already served by it and not receiving similar | 0009| service from another telecommunications | 0010| utility and not within the certificated area | 0011| of another telecommunications utility; | 0012| (3) an extension within or to territory already | 0013| served by it or to be served by it under a | 0014| certificate of public convenience and | 0015| necessity, certificate of operating authority, | 0016| or service provider certificate of operating | 0017| authority; | 0018| (4) operation, extension, or service in progress | 0019| on January 1, 1998; or | 0020| (5) interexchange telecommunications service, | 0021| private line service, shared tenant service, | 0022| specialized communications common carrier | 0023| service, commercial mobile service, or | 0024| operator service as defined by Section | 0025| 3.052(a) of this Act. | - 264 - 0001| (b) Any extensions allowed by Subsection (a) of this | 0002| section shall be limited to devices for | 0003| interconnection of existing facilities or devices | 0004| used solely for transmitting | 0005| telecommunications utility services from existing | 0006| facilities to customers of retail utility service. | 0007| | 0008| | 0009| Sec. 3.253. MAPS; EVIDENCE OF CONSENT. | 0010| (a) On or before 90 days after January 1, 1999, or at a | 0011| later date on request in writing by a public | 0012| utility when good cause is shown, or at such later | 0013| dates as the commission may order, each public | 0014| utility shall file with the commission a map or | 0015| maps showing all its facilities and illustrating | 0016| separately facilities for transmission and | 0017| distribution of its services. | 0018| (b) Each applicant for a certificate shall file with | 0019| the commission such evidence as is required by the | 0020| commission to show that the applicant has received | 0021| the required consent, franchise, or permit of the | 0022| proper municipality or other public authority. | 0023| Sec. 3.254. PRICE DEREGULATION BY INCUMBENT LOCAL EXCHANGE | 0024| CARRIER | 0025| UNDER THE MARKET POWER TEST. | - 265 - 0001| (a) Notwithstanding any other provisions of this Act, | 0002| but consistent with federal law, on notice and | 0003| hearing, the commission may grant price | 0004| deregulation of one or more services in one or more | 0005| geographic markets if the commission determines | 0006| that the incumbent local exchange carrier is no | 0007| longer dominant as to that service or services in | 0008| that particular geographic market. For purposes of | 0009| this section only, in determining a particular | 0010| geographic market, the commission shall consider | 0011| economic and technical conditions of the market. | 0012| Once a service in a particular market is price- | 0013| deregulated under this section, the incumbent local | 0014| exchange carrier may set the rate for the | 0015| deregulated services at any level above the | 0016| service's costs. | 0017| (b) To determine that an incumbent local exchange | 0018| carrier is no longer dominant as to one or more | 0019| services in a particular geographic market, the | 0020| commission must find that effective competitive | 0021| alternatives exist and that the incumbent local | 0022| exchange carrier does not have sufficient market | 0023| power to control the price of the service(s) within | 0024| a specified geographic area in a manner that is | 0025| adverse to consumers or competitors. | - 266 - 0001| (c) The commission shall consider the following factors | 0002| in determining whether the incumbent local exchange | 0003| carrier is dominant as to a specific service in a | 0004| particular geographic area: | 0005| (1) number and size of telecommunications | 0006| utilities or other persons providing the same, | 0007| equivalent, or substitutable service in the | 0008| relevant market and the extent to which the | 0009| service is available in the relevant market; | 0010| (2) ability of customers in the relevant market to | 0011| obtain the same, equivalent or substitutable | 0012| service at comparable rates, terms, and | 0013| conditions; | 0014| (3) ability of telecommunications utilities or | 0015| other persons to make the same, equivalent, or | 0016| substitutable service readily available in the | 0017| relevant market at comparable rates, terms and | 0018| conditions; | 0019| (4) proportion of the relevant market that is | 0020| currently being provided the service by a | 0021| telecommunications utility other than the | 0022| incumbent local exchange company or | 0023| certificate of operating authority holder that | 0024| is a dominant carrier; and | 0025| (5) other relevant information deemed necessary by | - 267 - 0001| the commission. | 0002| (d) The commission, on its own motion, or on a | 0003| complaint that the commission deems has merit, is | 0004| granted all necessary power and authority to assert | 0005| or reassert regulation over a specific service in a | 0006| particular geographic market if the incumbent local | 0007| exchange carrier is found to again be dominant as | 0008| to that services in that geographic market(s). | 0009| (e) On request of an incumbent local exchange carrier | 0010| in conjunction with an application under this | 0011| section, the commission shall conduct | 0012| investigations to determine the existence, impact, | 0013| and scope of competition in the particular | 0014| geographic and service markets at issue and in | 0015| connection therewith shall call and hold hearings, | 0016| may issue subpoenas to compel the attendance of | 0017| witnesses and the production of papers and | 0018| documents, has any other powers, whether | 0019| specifically designated or implied, necessary and | 0020| convenient to the investigation, and may make | 0021| findings of fact and decisions with respect to | 0022| those markets. | 0023| (f) The parties to the proceedings shall be entitled to | 0024| use the results of the investigation required to be | 0025| conducted under Subsection (e) of this section in | - 268 - 0001| an application for pricing flexibility. | 0002| (g) In conjunction with its authority to collect and | 0003| compile information, the commission may collect | 0004| reports from telecommunications utilities. Any | 0005| information contained in the reports claimed to be | 0006| confidential for competitive purposes shall be | 0007| maintained as confidential by the commission, and | 0008| the information is exempt from disclosure. The | 0009| commission shall aggregate the information to the | 0010| maximum extent possible considering the purpose of | 0011| the proceeding to protect the confidential nature | 0012| of the information. | 0013| Sec. 3.254. CONTINUOUS AND ADEQUATE SERVICE; DISCONTINUANCE, | 0014| REDUCTION, OR IMPAIRMENT OF SERVICE. | 0015| (a) A public utility that is granted a certificate of | 0016| convenience and necessity in an area shall be | 0017| required to offer to any customer in its area all | 0018| basic local telecommunications services and | 0019| exchange access and shall render continuous and | 0020| adequate service within the area or areas. | 0021| (b) Unless the commission issues a certificate that | 0022| neither the present or future convenience and | 0023| necessity will be adversely affected, the holder of | 0024| a certificate may not discontinue, reduce, or | 0025| impair service to a certified service area or part | - 269 - 0001| thereof except for: | 0002| (1) nonpayment of charges; | 0003| (2) nonuse; or | 0004| (3) other similar reasons in the usual course of | 0005| business. | 0006| (c) Any discontinuance, reduction, or impairment of | 0007| service, whether with or without approval of the | 0008| commission, shall be in conformity with and subject | 0009| to such conditions, restrictions and limitations as | 0010| the commission shall prescribe. [Sec. 58] | 0011| Sec. 3.255. DISCONTINUATION OF SERVICE BY NON-DOMINANT | 0012| TELECOMMUNICATIONS CARRIER. | 0013| (a) Notwithstanding Section 3.254 of this Act, a | 0014| telecommunications utility may: | 0015| (1) discontinue an optional service that is not | 0016| essential to the provision of basic local | 0017| telecommunications service; or | 0018| (2) cease operations within a local exchange area. | 0019| | 0020| (b) Before such telecommunications utility discontinues | 0021| an optional service or ceases operations, the | 0022| utility must provide notice of the intended action | 0023| to the commission and each affected customer in the | 0024| manner required by the commission. | 0025| (c) Such telecommunications utility is entitled to | - 270 - 0001| discontinue an optional service on or after the | 0002| 61st day after the date on which the utility | 0003| provides the notice required by Subsection (b) of | 0004| this section. | 0005| (d) Such telecommunications utility may not cease | 0006| operations within a local exchange unless: | 0007| (1) another provider of basic local | 0008| telecommunications services has adequate | 0009| facilities and capacity to serve the customers | 0010| in the area; and | 0011| (2) the commission authorizes telecommunications' | 0012| utility to cease operations. | 0013| (e) The commission may not authorize such | 0014| telecommunications utility to cease operations | 0015| under subsection (d) of this section before the | 0016| 61st day after the date on which the utility | 0017| provides the notice required by subsection (b) of | 0018| this section. The commission may enter an order | 0019| under this subsection administratively unless the | 0020| commission receives a complaint from an affected | 0021| person. | 0022| Sec. 3.256. SALE, ASSIGNMENT, OR LEASE OF CERTIFICATE. If | 0023| the commission | 0024| determines that a purchaser, assignee, or lessee is | 0025| capable of rendering adequate service, a public utility | - 271 - 0001| may sell, assign, or lease a certificate of public | 0002| convenience and necessity any rights obtained under the | 0003| certificate. The sale, assignment, or lease shall be on | 0004| conditions prescribed by the commission. | 0005| Sec. 3.257. DIRECTORY LISTINGS AND ASSISTANCE | 0006| (a) Companies providing local exchange telephone | 0007| service shall negotiate the terms and conditions of | 0008| printed directory listings and directory assistance | 0009| within overlapping certificated areas. | 0010| (b) On complaint by an incumbent local exchange | 0011| carrier, the commission may resolve disputes | 0012| between the parties and, if necessary issue an | 0013| order setting the terms and conditions of the | 0014| directory listings or directory assistance. | 0015| (c) This section does not affect the authority of an | 0016| incumbent local exchange carrier to voluntarily | 0017| conduct negotiations with another | 0018| telecommunications utility. | 0019| Sec. 3.262. IMPROVEMENTS IN SERVICE; INTERCONNECTING SERVICE; | 0020| EXTENDED | 0021| AREA TOLL-FREE TELEPHONE SERVICE. | 0022| (a) After notice and hearing, the commission may: | 0023| (1) order a telecommunications utility to provide | 0024| specified improvements in its service in a | 0025| defined area, if service in such area is | - 272 - 0001| inadequate or is substantially inferior to | 0002| service in a comparable area and it is | 0003| reasonable to require the company to provide | 0004| such improved service; | 0005| (2) order two or more telecommunications utilities | 0006| to establish specified facilities for the | 0007| interconnecting service; | 0008| (3) order a telephone company or telephone | 0009| companies to provide extended area toll-free | 0010| service within a specified metropolitan area | 0011| where there is a sufficient community of | 0012| interest within the area and such service can | 0013| reasonably be provided; and | 0014| | 0015| (4) order one or more telephone companies to | 0016| provide optional extended area service within | 0017| a specified calling area if provision of the | 0018| service is jointly | 0019| agreed to by the representatives of each | 0020| affected telephone company and the | 0021| representatives of a political subdivision or | 0022| subdivisions within the proposed common | 0023| calling area, provided that the proposed | 0024| common calling area has a single continuous | 0025| boundary. | - 273 - 0001| (b) If more than one political subdivision is affected | 0002| by a proposed optional calling plan under | 0003| Subsection (a)(4) of this section, the agreement of | 0004| each political subdivision is not required. The | 0005| commission may not adopt rules that diminish in any | 0006| manner the ability of a political subdivision or | 0007| affected telephone company to enter into joint | 0008| agreements for optional extended area calling | 0009| service. In this subsection and in Subsection | 0010| (a)(4) of this section, "political subdivision" | 0011| means a county or municipality or an unincorporated | 0012| town or village that has 275 or more access lines. | 0013| Sec. 3.258. PAY TELEPHONES. | 0014| (a) The right of a provider of pay telephone service to | 0015| set the provider's rates and charges and the | 0016| commission's authority over the pay telephone | 0017| service rates of incumbent local exchange companies | 0018| is expressly limited by this section. | 0019| (b) A provider of pay telephone service may not impose | 0020| on pay phone end users any charge for local | 0021| directory assistance or calls made under emergency | 0022| conditions. | 0023| (c) The commission shall establish a limit on the | 0024| charge that may be imposed for a pay telephone coin | 0025| sent-paid call within the local exchange company's | - 274 - 0001| toll-free calling area. The commission may also | 0002| establish a statewide ceiling on the charge that | 0003| may be imposed by a provider of pay telephone | 0004| service for local calls which are collect or | 0005| operator-assisted or paid by credit card or calling | 0006| card, provided that the | 0007| commission shall not establish the ceiling at less | 0008| than the applicable local rates for such calls of | 0009| any of the four largest interexchange carriers | 0010| operating in the State. | 0011| (d) A provider of pay telephone service may impose a | 0012| set use fee not exceeding 25 cents at the point at | 0013| which the call is initiated for each "1-800" type | 0014| call made from a pay telephone, provided that: | 0015| (1) except for pay telephones of local exchange | 0016| companies, the pay telephone is registered | 0017| with the commission and the provider certifies | 0018| that the pay telephone is in compliance with | 0019| commission rules regarding the provision of | 0020| pay telephone service; | 0021| (2) the imposition of the set use fee is not | 0022| inconsistent with federal law; | 0023| (3) the fee is not imposed for any local call, 9- | 0024| 1-1 call, or local directory assistance call; | 0025| (4) the fee is not imposed for a call that is | - 275 - 0001| covered by the Telephone Operator Consumer | 0002| Services Improvement Act of 1990 (47 U.S.C. | 0003| Section 226); | 0004| (5) the pay telephone service provider causes to | 0005| be posted on each pay telephone instrument, in | 0006| plain sight of the user and in a manner | 0007| consistent with existing commission | 0008| requirements for posting information, the fact | 0009| that the surcharge will apply to those calls; | 0010| and | 0011| (6) the commission may not impose on a local | 0012| exchange company the duty or obligation to | 0013| record the use of pay telephone service, bill | 0014| or collect for the | 0015| | 0016| use, or remit the fee provided by this | 0017| subsection to the provider of the service. | 0018| (e) A provider of pay telephone service, other than an | 0019| incumbent local exchange company, may not charge | 0020| for credit card, calling card, or live or automated | 0021| operator-handled calls a rate or charge that is an | 0022| amount greater than the authorized rates and | 0023| charges published, in the eight newspapers having | 0024| the largest circulation in this state, on March 18, | 0025| 1995, provided that the pay phone rates of an | - 276 - 0001| incumbent local exchange company subject to | 0002| Subtitle G of this title are governed by that | 0003| subtitle. The published rates remain in effect | 0004| until changed by the legislature. | 0005| (f) The commission shall adopt rules within 180 days | 0006| from the effective date of this section that | 0007| require every provider of pay telephone service not | 0008| holding a certificate of convenience and necessity | 0009| to register with the commission. A provider of pay | 0010| telephone service must be registered with the | 0011| commission in order to do business in this state. | 0012| (g) The commission may order disconnection of service | 0013| for up to one year for repeat violations of | 0014| commission rules. | 0015| (h) The commission may adopt rules regarding | 0016| information to be posted on pay telephone | 0017| instruments, but those rules may not require a | 0018| provider of pay telephone service or an affiliate | 0019| of a provider to police the compliance with those | 0020| rules by another provider of pay telephone service. | 0021| (i) In this section, "provider of pay telephone | 0022| service" means a subscriber to customer-owned pay | 0023| telephone service, an incumbent local exchange | 0024| company providing pay telephone service, and any | 0025| other entity providing pay telephone service. | - 277 - 0001| Sec. 3.259. REVOCATION OR AMENDMENT OF CERTIFICATE. | 0002| (a) The commission at any time after notice and hearing | 0003| may revoke or amend any existing certificate of | 0004| convenience and necessity if it finds that the | 0005| certificate holder has never provided or is no | 0006| longer providing service in the area or part of the | 0007| area covered by the certificate. | 0008| (b) When the certificate of any public utility is | 0009| revoked or amended, the commission may require one | 0010| or more telecommunications utilities to provide | 0011| service in the area in question. | 0012| | 0013| SUBTITLE F. INCENTIVE REGULATION OF TELECOMMUNICATIONS | 0014| UTILITIES | 0015| Sec. 3.301. POLICY. Given the rapid expansion of competition | 0016| in the telecommunications | 0017| industry and the requirements of the federal | 0018| Telecommunications Act of 1996, it is the Legislature's | 0019| policy to effect an orderly and expeditious transition | 0020| from traditional return on invested capital rate | 0021| regulation to a fully competitive telecommunications | 0022| marketplace where all telecommunications providers | 0023| compete on fair terms. | 0024| Sec. 3.302. OPTION TO CANCEL RATE TARIFFS AND CHARGE COST- | 0025| BASED PRICES | - 278 - 0001| FOR SERVICES. Upon establishing in a full evidentiary | 0002| hearing, with prior notice to all affected persons, that | 0003| true competitive market conditions prevail in the state | 0004| or in a local exchange area(s) for one or more services | 0005| of a dominant telecommunications utility or an incumbent | 0006| local exchange carrier, an applicant dominant | 0007| telecommunications utility or incumbent local exchange | 0008| carrier may, by commission order, cancel its rate tariffs | 0009| as to such competitive service or services in such | 0010| geographical area(s) and adopt cost-based prices for such | 0011| service or services. This section shall not conflict | 0012| with this Act or with | 0013| federal law or authorize below-cost or other predatory | 0014| pricing to the detriment of any competitor. | 0015| Sec. 3.303. NOTICE. Each carrier under this subtitle shall | 0016| give written notice | 0017| to all customers and all competitors of its application | 0018| and, if it is granted by the commission's order, written | 0019| notice of the order and the new prices. | 0020| | 0021| SUBTITLE G. INFRASTRUCTURE | 0022| Sec. 3.325. INFRASTRUCTURE POLICY AND GOALS. | 0023| (a) It is the goal of this State to facilitate and | 0024| promote the deployment of an advanced | 0025| telecommunications infrastructure in order to spur | - 279 - 0001| economic development throughout New Mexico. The | 0002| primary means of achieving this goal shall be | 0003| through encouraging private investment in the | 0004| state's telecommunications infrastructure by | 0005| creating incentives for such investment and | 0006| promoting the development of competition. The best | 0007| way to bring the benefits of an advanced | 0008| telecommunications network infrastructure to New | 0009| Mexico communities is through innovation and | 0010| competition among all the state's communications | 0011| provider. Competition will provide New Mexico a | 0012| choice of telecommunications providers and will | 0013| drive technology deployment, innovation, service | 0014| quality, and cost-based prices as competing firms | 0015| seek to satisfy customer needs. | 0016| | 0017| (b) In implementing this section, the commission shall | 0018| consider the following policy goals of this State: | 0019| (1) ensure the availability of the widest possible | 0020| range of competitive choices in the provision | 0021| of telecommunications services and facilities; | 0022| (2) foster competition and rely on market forces | 0023| where competition exists to determine the | 0024| price, terms, availability, and conditions of | 0025| service in markets in which competition | - 280 - 0001| exists; | 0002| (3) ensure the universal availability of basic | 0003| local telecommunications services at | 0004| reasonable rates; | 0005| (4) encourage the continued development and | 0006| deployment of advanced, reliable capabilities | 0007| and services in telecommunications networks; | 0008| (5) assure interconnection and interoperability, | 0009| based on uniform technical standards, among | 0010| telecommunications carriers; | 0011| (6) eliminate existing unnecessary administrative | 0012| procedures which impose regulatory barriers to | 0013| competition and assure that competitive entry | 0014| is fostered on an economically rational basis; | 0015| (7) assure consumer protection and protection | 0016| against anticompetitive conduct; | 0017| (8) regulate providers of services only to the | 0018| extent they have market power to control the | 0019| price of services to customers or exclude | 0020| competitors from the market; | 0021| (9) encourage cost-based pricing of | 0022| telecommunications services so that consumers | 0023| pay a fair price for services that they use; | 0024| and | 0025| (10) develop quality of service standards for local | - 281 - 0001| exchange companies as it deems appropriate to | 0002| place New Mexico among the leaders in | 0003| deployment of an advanced telecommunications | 0004| infrastructure. | 0005| (c) The Commission shall, upon notice conduct rule- | 0006| making proceedings to establish the terms and | 0007| deadlines for dominant utilities and incumbent | 0008| local exchange companies who elect or do not elect | 0009| the incentive regulation in Subtitle F, to ensure | 0010| that the following infrastructure goals are | 0011| achieved by all such companies: | 0012| (1) incumbent local exchange companies shall make | 0013| access to end-to-end digital connectivity | 0014| available to all customers in their | 0015| territories by December 31, 1999. | 0016| (2) Fifty percent of the local exchange access | 0017| lines in each local exchange company's | 0018| territory must be served by a digital central | 0019| office switch by January 1, 2001. | 0020| (3) All company new central office switches | 0021| installed in New Mexico must be digital, or | 0022| technologically equal to or superior to | 0023| digital, after September 1, 1999. At a | 0024| minimum, each new central office switch | 0025| installed after September 1, 2000, must be | - 282 - 0001| capable of providing Integrated Services | 0002| Digital network (ISDN) services in a manner | 0003| consistent with generally accepted national | 0004| standards. | 0005| (4) incumbent local exchange companies' public | 0006| switched network backbone inter-office | 0007| facilities must employ broadband facilities | 0008| capable of at least 45 megabits per second, or | 0009| at lower bandwidths if evolving technology | 0010| permits the delivery of video signal at | 0011| quality levels comparable to a television | 0012| broadcast signal, by January 1, 2000. This | 0013| requirement shall not extend to local loop | 0014| facilities. | 0015| (d) (1) A company of greater than fortythousand access | 0016| lines shall also install Common Channel | 0017| Signaling 7 capability in all central offices | 0018| by January 1, 2000. | 0019| (2) A company of greater than fortythousand access | 0020| lines shall connect all of its serving central | 0021| offices to their respective LATA tandem | 0022| central offices with optical fiber or | 0023| equivalent facilities by January 1, 2001. | 0024| (3) A company serving more than ten thousand | 0025| access lines and fewer than forty thousand | - 283 - 0001| access lines shall provide digital switching | 0002| central offices in all exchanges by January 1, | 0003| 2000. | 0004| (e) The commission may consider waivers of Subsections | 0005| (c)(1)-(4) of this section for local exchange | 0006| companies serving fewer than ten thousand lines, if | 0007| the incumbent local exchange company demonstrates | 0008| that such investment is not viable economically, | 0009| after due consideration is given to the public | 0010| benefits which would result from compliance with | 0011| such requirements; and, in addition, may consider a | 0012| temporary extension of any period with respect to | 0013| Subsections (c)(1)-(4) of this section for electing | 0014| local exchange companies serving fewer than two | 0015| million but more than one million lines, if the | 0016| local exchange company demonstrates that such | 0017| extension is in the public interest. | 0018| (f) The commission may not consider the cost of | 0019| implementing Subsection (c)or (d) of this section | 0020| in determining whether a company is entitled to a | 0021| rate increase under | 0022| | 0023| this subtitle or an increase in universal service | 0024| funds under Section 3.352 of this Act. | 0025| Sec. 3.26. INFRASTRUCTURE COMMITMENT TO CERTAIN ENTITIES. | - 284 - 0001| (a) (1) It is the intent of this section to establish | 0002| a telecommunications infrastructure that | 0003| interconnects public entities described in | 0004| this section. The interconnection of these | 0005| entities requires ubiquitous, broadband, | 0006| digital services for voice, video, and data | 0007| within the local serving area. The ubiquitous | 0008| nature of these connections must also allow | 0009| individual networks of these entities to | 0010| interconnect and interoperate across the | 0011| broadband digital service infrastructure. The | 0012| delivery of these advanced telecommunications | 0013| services also will require collaborations and | 0014| partnerships of public, private, and | 0015| commercial telecommunications service network | 0016| providers. | 0017| (2) The goal of this section is to interconnect | 0018| and aggregate the connections to every entity | 0019| described in this section, within the local | 0020| serving area. It is further intended that the | 0021| implementation of the infrastructure as | 0022| defined within this section connect all the | 0023| entities requesting the services offered under | 0024| this section. | 0025| (b) (1) (A) On customer request, a company shall | - 285 - 0001| provide broadband digital service that | 0002| is capable of providing transmission | 0003| speeds of up to 45 megabits per second | 0004| or better for customer applications and | 0005| other customized or packaged network | 0006| services (private network services) to | 0007| an entity described in this section for | 0008| their private and sole use except as | 0009| provided in Subsection (d) of this | 0010| section: | 0011| (i) educational institutions, as that | 0012| term is defined in Section ____ of | 0013| this Act. | 0014| (ii) libraries, as that term is defined | 0015| in Section _____ of this Act; | 0016| (iii) nonprofit telemedicine centers | 0017| of academic health centers, | 0018| public or not-for-profit | 0019| hospitals, or state-licensed | 0020| health care practitioners; | 0021| (iv) public not-for-profit hospitals; | 0022| (v) projects funded by the | 0023| Telecommunications Infrastructure | 0024| Fund described in this Act; or | 0025| (vi) any legally constituted consortium | - 286 - 0001| or group of entities listed in | 0002| Subparagraphs (I)-(v) of this | 0003| paragraph. | 0004| (B) Such private network services shall be | 0005| provided pursuant to customer specific | 0006| contracts at a rate that is 105 percent | 0007| of the long run incremental cost | 0008| including installation, of the services. | 0009| (C) Each such contract shall be filed with | 0010| the commission but not require the | 0011| approval of the commission. | 0012| (D) A company shall file a flat monthly | 0013| tariff rate for point-to-point intraLATA | 0014| 1.544 megabits per second service for | 0015| the entities specified in Subsection | 0016| (b)(1)(A) of this section which shall be | 0017| distance insensitive and be no higher | 0018| that 105 percent of the | 0019| | 0020| statewide average long run incremental | 0021| costs, including installation, of the | 0022| service. | 0023| (E) A company shall provide point-to-point | 0024| 45 megabits per second intraLATA | 0025| services when requested by an entity | - 287 - 0001| specified in Subsection (b)(1)(A) of | 0002| this section pursuant to customer | 0003| specific contracts except that the | 0004| interoffice portion of the service, if | 0005| any, will be recovered on a statewide | 0006| average distance insensitive basis. The | 0007| rate for this service shall be no higher | 0008| than 105 percent of long run incremental | 0009| cost, including installation, of the | 0010| service. | 0011| (F) A local exchange company shall provide | 0012| an entity described in this section with | 0013| broadband digital special access service | 0014| to interexchange carriers at no higher | 0015| than 105 percent of the long run | 0016| incremental cost, including | 0017| installation, of such service. | 0018| (G) On customer request, a company shall | 0019| provide expanded interconnection | 0020| (virtual collocation) consistent with | 0021| the rules adopted by the commission | 0022| pursuant to Section ______ of this Act | 0023| to an entity specified in Subsection | 0024| (b)(1)(A) of this section at 105 percent | 0025| of long run incremental cost, including | - 288 - 0001| installation. Such entities shall not | 0002| have to qualify for such expanded | 0003| interconnection if it is ordered by the | 0004| commission. | 0005| (H) The legislature finds that an entity | 0006| described in this section warrants | 0007| preferred rate treatment provided that | 0008| any such rates cover the long run | 0009| incremental cost of the services | 0010| provided. | 0011| (I) Notwithstanding any other provision of | 0012| this Act, a local exchange company shall | 0013| not be subject to a complaint under this | 0014| section | 0015| except by an entity specified in this | 0016| section complaining that the provision | 0017| of private network services under this | 0018| section was provided preferentially to a | 0019| similarly situated customer. | 0020| (2) An entity receiving the services provided | 0021| under this section may not be assessed special | 0022| construction or installation charges. | 0023| (3) An educational institution or a library may | 0024| elect the rate treatment provided in this | 0025| section or the discount provided by Section | - 289 - 0001| _____ of this Act. | 0002| (4) Notwithstanding the pricing flexibility | 0003| authorized by this Act, a company's rates for | 0004| the services provided under this section may | 0005| not be increased for six years from the date | 0006| of election except as otherwise provided in | 0007| customer specific contracts. | 0008| (5) On customer request by an educational | 0009| institution or library in exchanges of a | 0010| company serving more than 40,000 access lines | 0011| in which toll-free access to the Internet is | 0012| not available, the local exchange company | 0013| shall make available a toll-free connection or | 0014| toll-free dialing arrangement for use by | 0015| educational institutions or libraries in | 0016| accessing the Internet in an exchange in which | 0017| Internet access is available on a toll-free | 0018| basis. The connection or dialing arrangement | 0019| shall be provided at no charge to the | 0020| educational institution or library until | 0021| Internet access becomes available in the | 0022| exchange of the requesting educational | 0023| institution or library. The local exchange | 0024| company is not required to arrange for | 0025| Internet access or to pay Internet charges for | - 290 - 0001| the requesting educational institution or | 0002| library. | 0003| (6) A company shall give priority to serving rural | 0004| areas, designated as critically underserved, | 0005| medically or educationally, and educational | 0006| institutions with high percentages of | 0007| economically disadvantaged students. | 0008| (c) The private network services provided pursuant to | 0009| this section may be interconnected with other | 0010| similar networks for distance learning, | 0011| telemedicine, and information sharing purposes. | 0012| (d) The private network services provided pursuant to | 0013| this section may not be shared or resold to other | 0014| customers except that such services may be used by | 0015| and shared among the entities described in | 0016| Subsection (b)(1)9A) of this section. The services | 0017| provided pursuant to this section may not be | 0018| required to be resold to other customers at the | 0019| rates provided in this section; however, the | 0020| prohibition contained in this subsection is not | 0021| intended to preclude the otherwise permitted resale | 0022| of other services which may be offered by an | 0023| electing company using the same facilities or a | 0024| portion therof, which are used to provide the | 0025| private network services offered under this | - 291 - 0001| section. | 0002| (e) For purposes of this section, the term | 0003| "telemedicine center" means a facility equipped to | 0004| transmit by video, data, or voice service medical | 0005| information for the purpose of diagnosis or | 0006| treatment of illness or disease, owned or operated | 0007| by a public or not-for-profit hospital including an | 0008| academic health center or such a facility owned by | 0009| any state-licensed health care practitioner or | 0010| group of practitioners and operated on a nonprofit | 0011| basis. | 0012| | 0013| (f) The State Purchasing and General Services Act | 0014| (_________New Mexico Civil Statutes) does not apply | 0015| to contracts entered into under this section. | 0016| (g) The commission may not consider the cost of | 0017| implementing Subsection (b)(c), or (d) of this | 0018| section in determining whether an electing company | 0019| is entitled to a rate increase under this subtitle | 0020| or increased universal service funds under Section | 0021| ____ of this Act. | 0022| | 0023| SUBTITLE H. COMPETITIVE SAFEGUARDS AND | 0024| JOINT FEDERAL-STATE UNIVERSAL SERVICE BOARD | 0025| Sec. 3.350. COMPETITIVE SAFEGUARDS. | - 292 - 0001| To the extent necessary to ensure that competition in | 0002| telecommunications is fair to all participants and to | 0003| accelerate the improvement of telecommunications in the | 0004| state, the commission shall ensure that rates and | 0005| regulations are not preferential or discriminatory and | 0006| that the transition to a fully competitive | 0007| telecommunications industry is pursued in an expeditious | 0008| manner. | 0009| Sec. 3.351. DEVELOPMENT OF COMPETITIVE MARKETS AND PROVISIONS | 0010| CONCERNING BELL OPERATING COMPANIES. | 0011| To accomplish the policies of the Legislature stated in | 0012| this Act, the commission shall, for this State, | 0013| implement the provisions of Section 251 et seq., (and | 0014| other applicable sections) of the Telecommunications Act | 0015| of 1996 and shall use that Act's provisions as standards | 0016| for achieving the policies and purposes of the | 0017| Legislature, including but not limited to Sec. 3.350 | 0018| above. The commission shall, on or prior to September 1, | 0019| 1999 complete rule-making proceedings to implement the | 0020| development of competitive markets in a manner which | 0021| mirrors the provisions of the Telecommunications Act of | 0022| 1996 in Sec. 251, et seq. Of that Act, including resale, | 0023| dialing parity, access to rights-of way, reciprocal | 0024| compensation, interconnection, unbundled access and | 0025| collocation; and to coordinate with | - 293 - 0001| federal law and the Federal Communications Commission to | 0002| timely implement both the local exchange area provisions | 0003| above and the special provisions concerning Bell | 0004| Operating Companies prior to this provision of interLATA | 0005| services, in Sec. 271, et seq. of that Act. | 0006| Sec. 3.352. UNIVERSAL SERVICE. | 0007| The commission shall establish procedures and principles | 0008| for the implementation and funding of universal service | 0009| obligations, including the infrastructure provisions of | 0010| Subtitle G. | 0011| Sec. 3.353. RULEMAKING TO IMPLEMENT THIS ACT, INCLUDING | 0012| SUBTITLES F, G | 0013| AND H. The legislature recognizes that the | 0014| implementation of the Telecommunications Act of 1996 will | 0015| take time and will result in changes and revisions in | 0016| past, current and future rules and orders of federal | 0017| bodies. To provide the commission with necessary | 0018| authority and flexibility to mirror that Act and its | 0019| implementation in New Mexico, the commission is | 0020| authorized and directed to adopt procedural and | 0021| substantive rules to implement the policies and | 0022| principles of this Act, including Subtitles F, G, and H | 0023| and to accurately mirror the federal Act and the rules | 0024| and orders of federal bodies, so that one consistent and | 0025| coordinated body of policies, implementations, pricing, | - 294 - 0001| costs and requirements will be utilized by all | 0002| telecommunication utilities operating in both the federal | 0003| jurisdiction and the New Mexico jurisdiction. Further, | 0004| the commission is directed to coordinate and cooperate | 0005| with the Federal Communications Commission, the Federal- | 0006| State Joint Board On Universal Service and other federal- | 0007| state bodies in order to accomplish the policies and | 0008| principles of the federal Act and this Act in a | 0009| consistent, timely and coordinated manner. | 0010| Sec. 3.354. PRIVATE RIGHT OF ACTION. | 0011| (a) A person claiming that an act or practice of an | 0012| incumbent local exchange carrier, or any affiliate, | 0013| constitutes a violation of this Act, including | 0014| Subtitles F, G and H, may file a complaint with the | 0015| commission or bring suit for the recovery of | 0016| damages in the state district court, and the | 0017| incumbent local exchange carrier or any affiliate, | 0018| shall be liable if the incumbent local exchange | 0019| carrier or any affiliate does, or causes to be | 0020| done, any act, matter, or thing in violation of | 0021| this Act. The incumbent local exchange carrier | 0022| shall be liable to the person or persons injured | 0023| thereby for the full amount of damages sustained in | 0024| consequence of any violation of the provisions of | 0025| this subtitle, together with a reasonable counsel | - 295 - 0001| or attorney's fees to be fixed by the court in | 0002| every case of recovery, which attorney's fees shall | 0003| be taxed and collected as part of the costs of the | 0004| case. | 0005| (b) In addition to the provisions of Subsection (a) of | 0006| this section, a person claiming that any act or | 0007| practice of an incumbent local exchange carrier or | 0008| any affiliate constitutes a violation of Subtitles | 0009| F, G or H may make application to the commission | 0010| for an order to cease and desist that violation or | 0011| may make application in any state district court | 0012| for an order enjoining those acts or practices or | 0013| for an order compelling compliance with that | 0014| requirement. | 0015| Sec. 3.355. ANTITRUST LAWS. Nothing in this subtitle may be | 0016| construed to modify, impair, | 0017| or supersede the applicability of any of the antitrust | 0018| laws. | 0019| SUBTITLE I. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM; | 0020| TELECOMMUNICATIONS INFRASTRUCTURE FUND; | 0021| UNIVERSAL SERVICE FUND | 0022| Sec. 3.601. TEL-ASSISTANCE SERVICE. The commission shall | 0023| adopt and enforce rules | 0024| requiring each local exchange company to establish a | 0025| telecommunications service assistance program to be | - 296 - 0001| called "tel-assistance service." This service is | 0002| established to provide eligible consumer with a reduction | 0003| in costs of telecommunications services. | 0004| Sec. 3.602. ELIGIBILITY FOR TEL-ASSISTANCE SERVICE; BURDEN OF | 0005| PROOF; | 0006| BILLING | 0007| (a) To be eligible for tel-assistance service, an | 0008| applicant must be a head of household and disabled | 0009| as determined by the State Human Services | 0010| Department and must have a household income at or | 0011| below the poverty level as determined by the United | 0012| State Office of Management and Budget and reported | 0013| annually in the Federal Register. The department, | 0014| in accordance with this subtitle and rules adopted | 0015| by the department for the program, shall develop | 0016| procedures for taking applications for | 0017| certification of eligibility and for determining | 0018| program eligibility. The burden of proving | 0019| eligibility for tel-assistance service is on the | 0020| consumer applying for the service. | 0021| (b) Each six months the department shall provide a list | 0022| or lists of the names, addresses, and, if | 0023| applicable, telephone numbers of all persons | 0024| eligible for tel-assistance service to each local | 0025| exchange company. The local exchange company shall | - 297 - 0001| determine from the list those consumers to whom the | 0002| company provides service and within 60 days after | 0003| receiving the list shall begin tel-assistance | 0004| billing for | 0005| eligible consumers. This billing shall continue | 0006| until the local exchange is notified by the | 0007| department that a consumer is no longer eligible to | 0008| receive tel-assistance service. | 0009| Sec. 3.603. TEL-ASSISTANCE SERVICES; BILLING; RATES. | 0010| (a) The local exchange company shall provide tel- | 0011| assistance service to all eligible consumers within | 0012| its certificated area in the form of a reduction on | 0013| each eligible consumer's telephone bill. The | 0014| reduction shall apply only to the following types | 0015| of service: | 0016| (1) residential flat rate basic local exchange | 0017| service; | 0018| (2) residential local exchange access service; and | 0019| (3) residential local area calling usage, except | 0020| that the reduction for local area calling | 0021| usage shall be limited to an amount such that | 0022| together with the reduction for local exchange | 0023| access service the rate does not exceed the | 0024| comparable reduced flat rate for the service. | 0025| (b) No other local voice service may be provided to the | - 298 - 0001| dwelling place of a tel-assistance consumer, nor | 0002| may single or party line optional extended area | 0003| service, optional extended area calling service, | 0004| foreign zone, or foreign exchange service be | 0005| provided to a tel-assistance consumer. Nothing in | 0006| this section shall prohibit a person otherwise | 0007| eligible to receive tel-assistance service from | 0008| obtaining and using telecommunications equipment | 0009| designed to aid such person in utilizing | 0010| telecommunications services. | 0011| (c) The reduction allowed by the telecommunications | 0012| service assistance program shall be 65 percent of | 0013| the applicable tariff rate for the service | 0014| provided. | 0015| Sec. 3.604. STATEWIDE TELECOMMUNICATIONS RELAY ACCESS SERVICE | 0016| FOR | 0017| HEARING-IMPAIRED AND SPEECH-IMPAIRED. | 0018| (a) The commission shall adopt and enforce rules | 0019| establishing a statewide telecommunications relay | 0020| access service for the hearing-impaired and speech- | 0021| impaired using specialized communications equipment | 0022| such as telecommunications devices for the deaf | 0023| (TDD) and operator translations. The purpose of | 0024| this section is to provide for the uniform and | 0025| coordinated provision of the service on a statewide | - 299 - 0001| basis by one telecommunications carrier. | 0002| (b) Commission rules relating to a statewide | 0003| telecommunications relay access service for the | 0004| hearing-impaired and speech-impaired shall provide | 0005| that: | 0006| (1) the service shall provide the hearing-impaired | 0007| and speech impaired with access to the | 0008| telecommunications network in New Mexico equal | 0009| to that provided other customers; | 0010| (2) the service shall consist of the following: | 0011| (A) switching and transmission of the call; | 0012| (B) verbal and print translations by either | 0013| live or automated means between hearing- | 0014| impaired and speech-impaired individuals | 0015| who use TDD equipment or similar | 0016| automated devices and others who do not | 0017| have such equipment; and | 0018| (C) other service enhancements proposed by | 0019| the carrier and approved by the | 0020| commission; | 0021| (3) the calling or called party shall bear no | 0022| charge for calls originating and terminating | 0023| within the same local calling area; | 0024| (4) the calling or called party shall bear one- | 0025| half of the total charges established by | - 300 - 0001| contract with the commission for intrastate | 0002| interexchange calls; | 0003| (5) as specified in its contract with the | 0004| commission, charges related to providing the | 0005| service which are not borne by a calling or | 0006| called party pursuant to Subdivisions (3) and | 0007| (4) of this subsection shall be funded from | 0008| the universal service fund; | 0009| (6) local exchange companies may not impose | 0010| interexchange carrier access charges on calls | 0011| which make use of this service and which | 0012| originate and terminate in the same local | 0013| calling area; | 0014| (7) local exchange companies shall provide billing | 0015| and collection services in support of this | 0016| service at just and reasonable rates; and | 0017| (8) if the commission orders a local exchange | 0018| company to provide for a trial | 0019| telecommunications relay access service for | 0020| the hearing-impaired or speech-impaired, all | 0021| pertinent costs and design information from | 0022| this trial shall be available to the general | 0023| public. | 0024| (c) The commission shall allow telecommunications | 0025| utilities to recover their universal service fund | - 301 - 0001| assessment related to this service through a | 0002| surcharge which the utility may add to its | 0003| customers' bills. The commission shall specify how | 0004| the amount of the surcharge is to be determined by | 0005| each utility. | 0006| If a utility chooses to impose the surcharge, the | 0007| bill shall list the surcharge as the "universal | 0008| service fund surcharge." | 0009| | 0010| (d) The commission shall set the appropriate | 0011| assessments for the funding of the service by all | 0012| telecommunications utilities. In setting the | 0013| appropriate assessment, the commission shall | 0014| consider the aggregate calling patterns of the | 0015| users of the service and all other factors found | 0016| appropriate and in the public interest by the | 0017| commission. The commission shall review the | 0018| assessments annually and adjust the assessments as | 0019| found appropriate hereunder. | 0020| (e) The commission shall select the telecommunications | 0021| carrier which will provide the statewide | 0022| telecommunications relay access service for the | 0023| hearing-impaired and speech-impaired. In awarding | 0024| the contract for this service, the commission shall | 0025| make a written award of the contract to the offer | - 302 - 0001| whose proposal is the most advantageous to the | 0002| state, considering price, the interests of the | 0003| hearing-impaired and speech-impaired community in | 0004| having access to a high quality and technologically | 0005| advanced telecommunications system, and all other | 0006| factor listed in the commission's request for | 0007| proposals. The commission shall consider each | 0008| proposal in a manner that does not disclose the | 0009| contents of the proposal to competing offers. The | 0010| commission's evaluation of the proposals shall | 0011| include: | 0012| (1) charges for the service; | 0013| (2) service enhancements proposed by the offerers; | 0014| (3) technological sophistication of the network | 0015| proposed by the offerers; and | 0016| (4) the proposed commencement date for the | 0017| service. | 0018| (f) The telecommunications carrier providing the | 0019| service shall be compensated for providing such | 0020| service at rates, terms, and conditions established | 0021| in its contract with the commission. The | 0022| compensation may include a return on the investment | 0023| required to provide the service and compensation | 0024| for unbillable and uncollectible calls placed | 0025| through the service, provided that compensation for | - 303 - 0001| unbillable and uncollectible calls shall be subject | 0002| to a reasonable limitation as determined by the | 0003| commission. | 0004| (g) The commission shall appoint an advisory committee | 0005| to assist the commission in administering this | 0006| section, composed of the following persons: | 0007| (1) two deaf persons recommended by the Commission | 0008| for the Deaf and Hard of Hearing | 0009| (2) one hearing-impaired person recommended by | 0010| Self-Help for the Hard of Hearing; | 0011| (3) one hearing-impaired person recommended by the | 0012| American Association of Retired Persons; | 0013| (4) one speech-impaired person and one speech- | 0014| impaired and hearing-impaired person. | 0015| (6) two representatives of telecommunications | 0016| utilities, one representing a nonlocal | 0017| exchange utility and one representing a local | 0018| exchange company, chosen from a list of | 0019| candidates provided by the Executive Director. | 0020| (7) two persons, at least one of whom is deaf, | 0021| with experience in providing relay services | 0022| (8) two public members recommended by | 0023| organizations representing consumers of | 0024| telecommunications services. | 0025| (h) The advisory committee shall monitor the | - 304 - 0001| establishment, administration, and promotion of the | 0002| statewide telecommunications relay access service | 0003| and advise the commission in pursuing a service | 0004| which meets the needs of the hearing-impaired and | 0005| speech-impaired in communicating with other users | 0006| of telecommunications services. The terms of | 0007| office of each member of the advisory committee | 0008| shall be two years. A member whose term has | 0009| expired shall continue to serve until a qualified | 0010| replacement is appointed. The members of the | 0011| advisory shall serve without compensation but shall | 0012| be entitled to reimbursement at rates established | 0013| for state employees for travel and per diem | 0014| incurred in the performance of their official | 0015| duties. The commission shall reimburse members of | 0016| the advisory committee in accordance with this | 0017| subsection and shall provide clerical and staff | 0018| support to the advisory committee, including a | 0019| secretary to record the committee meetings. The | 0020| commission's costs associated with the advisory | 0021| committee shall be reimbursed from the universal | 0022| service fund. | 0023| Sec. 3.605. DISTANCE LEARNING ACTIVITIES BY EDUCATIONAL | 0024| INSTITUTIONS | 0025| AND INFORMATION SHARING PROGRAMS BY LIBRARIES; REDUCED | - 305 - 0001| RATES. | 0002| (a) The commission by rule shall require a dominant | 0003| carrier to file a tariff containing a reduced rate | 0004| for a telecommunications service the commission | 0005| finds is directly related to a distance learning | 0006| activity that is our could be conducted by an | 0007| educational institution in this state or an | 0008| information sharing program that is or could be | 0009| conducted by a library in this state. | 0010| (b) The commission rules shall specify: | 0011| (1) the telecommunications services that qualify | 0012| under this section; | 0013| (2) the process by which an educational | 0014| institution or library qualifies for a reduced | 0015| rate; | 0016| (3) the date by which a dominant carrier shall | 0017| file a tariff; | 0018| (4) guidelines and criteria by which the services | 0019| and reduced rates shall further the goals | 0020| stated in Subsection (d) of this section; and | 0021| (5) any other requirements, terms, and conditions | 0022| that the commission determines to be in the | 0023| public interest. | 0024| (c) A tariff filing by a dominant carrier under this | 0025| section: | - 306 - 0001| (1) shall concern only the implementation of this | 0002| section; | 0003| (2) is not a rate change under Section 3.211 of | 0004| this Act; and | 0005| (3) does not affect any of the carriers other | 0006| rates or services. | 0007| (d) The services and reduced rates shall be designed | 0008| to: | 0009| (1) encourage the development and offering of | 0010| distance learning activities by educational | 0011| institutions or information sharing programs | 0012| of libraries; | 0013| (2) meet the distance learning needs identified by | 0014| the educational community and the information | 0015| sharing needs identified by libraries; and | 0016| (3) recover the long-run incremental costs of | 0017| providing the services, to the extent those | 0018| costs can be identified, so as to avoid | 0019| subsidizing educational institutions or | 0020| libraries. | 0021| (e) The commission is not required to determine the | 0022| long-run incremental costs of providing a service | 0023| before approving a reduced rate for the service. | 0024| Until cost determination rules are developed and | 0025| the rates established under this section are | - 307 - 0001| changed as necessary to ensure proper cost | 0002| recovery, the reduced rates established | 0003| by the commission shall be equal to 75 percent of | 0004| the otherwise applicable rate. After the | 0005| commission develops cost determination rules for | 0006| telecommunications services generally, it shall | 0007| ensure that a reduced rate approved under this | 0008| section recovers service-specific long-run | 0009| incremental costs and avoids subsidization. | 0010| (f) An educational institution, library, or dominant | 0011| carrier may at any time request the commission to: | 0012| (1) provide for a reduced rate for a service | 0013| directly related to a distance learning | 0014| activity or an information sharing program | 0015| that is not covered by commission rules; | 0016| (2) change a rate; | 0017| (3) amend a tariff; or | 0018| (4) amend a commission rule. | 0019| (g) If the commission determines that a change | 0020| requested under Subsection (f) is appropriate, it | 0021| shall make the requested change. | 0022| (h) In this section: | 0023| (1) "Distance learning" means instruction, | 0024| learning, and training that is transmitted | 0025| from one site to one or more sites by | - 308 - 0001| telecommunications services that are used by | 0002| an educational institution predominantly for | 0003| such instruction, learning, or training, | 0004| including video, data, voice, and electronic | 0005| information. | 0006| (2) "Educational institution" means and includes: | 0007| (A) accredited primary or secondary schools | 0008| owned or operated by state and local | 0009| government entities or private entities; | 0010| (B) institutions of higher education as | 0011| defined by law; | 0012| | 0013| (C) private institutions of higher education | 0014| accredited by a recognized accrediting | 0015| agency as defined by law;. | 0016| (3) "Library" means a public library or regional | 0017| library system, or a library operated by an | 0018| institution of higher education or a school | 0019| district. | 0020| Sec. 3.606. TELECOMMUNICATIONS INFRASTRUCTURE FUND. | 0021| (a) In this section: | 0022| (1) "Board" means the Telecommunications | 0023| Infrastructure Fund Board. | 0024| (2) "Fund" means the telecommunications | 0025| infrastructure fund. | - 309 - 0001| (3) "Library means a public library, or regional | 0002| library system, or a library operated by an | 0003| institution of higher education or a school | 0004| district. | 0005| (5) "School district" has the meaning assigned by | 0006| the Education Department. | 0007| (6) "Public, not-for-profit hospital" or "public | 0008| not-for-profit health care facility" means a | 0009| rural or regional hospital or entity such as a | 0010| rural health clinic which is supported by | 0011| local or regional tax levies or is, under | 0012| federal definition, a certified not-for-profit | 0013| health corporation. | 0014| (7) "Telemedicine" means consultive, diagnostic, | 0015| or other medical services delivered via | 0016| telecommunications technologies to rural or | 0017| underserved public, not-for-profit hospitals | 0018| and primary health care facilities in | 0019| collaboration with an academic health center | 0020| and associated teaching hospitals or tertiary | 0021| centers. Telemedicine includes, but is not | 0022| limited to, interactive vide consultation, | 0023| teleradiology, telepathology, and distance | 0024| education for working health care | 0025| professionals. | - 310 - 0001| | 0002| (8) "Commercial mobile service provider" means a | 0003| provider of commercial mobile service under | 0004| Sections 153(n) and 332(d), Communications Act | 0005| of 1934 (47 U.S.C. Section 151 et seq.), | 0006| Federal Communications Commission rules, and | 0007| the Omnibus Budget Reconciliation Act of 1993. | 0008| (b) The legislature finds that commercial mobile | 0009| service providers benefit from the public | 0010| telecommunications network by the ability to | 0011| originate and terminate calls that transverse | 0012| mobile and cellular network and that they will | 0013| benefit by virtue of the advancement of the public | 0014| telecommunications network through projects funded | 0015| under this section. Therefore, it is the policy of | 0016| this state that commercial | 0017| mobile service providers contribute an appropriate | 0018| amount to the telecommunications infrastructure | 0019| fund. | 0020| (c) The board shall administer the fund, including the | 0021| two accounts in the fund. The board consists of | 0022| nine members. Three members are appointed by the | 0023| governor, three members are appointed by the | 0024| lieutenant governor, and three members are | 0025| appointed by the speaker of the house of | - 311 - 0001| representatives. Members of the board serve for | 0002| staggered, six-year terms, with three members' | 0003| terms expiring on August 31 of each odd-numbered | 0004| year. The governor shall designate the presiding | 0005| officer of the board. | 0006| (d) The governor, the lieutenant governor, and the | 0007| speaker of the house of representatives, in making | 0008| their appointments to the board, shall attempt to | 0009| select members who are representative of, but not | 0010| limited to, urban and rural school districts, | 0011| institutions of higher education, libraries, and | 0012| the public. A person may not serve on the board if | 0013| the person is required to register as a lobbyist | 0014| under the law because of the person's activities | 0015| for compensation on behalf of a profession related | 0016| to the operation of the board. | 0017| (e) Members of the board serve without pay but are | 0018| entitled to reimbursement for their actual expenses | 0019| incurred in attending meetings of the board or in | 0020| attending to other work of the board if approved by | 0021| the chairman of the board. | 0022| (f) Unless continued in existence by the legislature, | 0023| the advisory board shall expire on September 1, | 0024| 2006. | 0025| (g) The board is authorized to employ any personnel as | - 312 - 0001| reasonably necessary to perform duties delegated by | 0002| the board and the board may also enter into | 0003| contracts as are necessary with state agencies or | 0004| private entities to perform its duties. | 0005| (h) The board may appoint any committees as it | 0006| determines may assist in performing its duties | 0007| under this section. | 0008| (i) The board shall prepare an annual report detailing | 0009| the revenues deposited to the credit of the fund, | 0010| including each account, and summarizing the grants | 0011| and loans made from each account. Not later than | 0012| December 15 of each year, the board shall submit | 0013| the report for the preceding year to the governor | 0014| and to each standing committee in the senate and | 0015| house of representatives that has jurisdiction over | 0016| public or higher education. | 0017| (j) The fund is composed of the telecommunications | 0018| utilities account and the commercial mobile service | 0019| providers account. The telecommunications | 0020| utilities account is financed by an annual | 0021| assessment on all telecommunications utilities | 0022| doing business in this state. Each | 0023| telecommunications utility shall pay the annual | 0024| assessment in accordance with the ratio that the | 0025| annual taxable telecommunications receipts reported | - 313 - 0001| by that telecommunications utility to the State | 0002| Taxation and Revenue Department ("TRD") bears to | 0003| the total annual taxable telecommunications | 0004| receipts reported by all telecommunications | 0005| utilities to TRD. | 0006| (k) The commercial mobile service providers account is | 0007| financed by an annual assessment on all commercial | 0008| mobile service providers doing business in this | 0009| state. Each commercial mobile service provider | 0010| shall pay the annual assessment in accordance with | 0011| the ratio that the annual taxable | 0012| telecommunications receipts | 0013| reported by that provider to TRD bears to the | 0014| total annual taxable telecommunications receipts | 0015| reported by all commercial mobile service providers | 0016| to TRD. | 0017| (l) For the fiscal year beginning in the calendary year | 0018| 1999, and for the nine fiscal years immediately | 0019| following that year, for a total of 10 years, the | 0020| State Taxation and Revenue Department shall assess | 0021| and collect a total annual amount of $75 million | 0022| from telecommunications utilities and a total | 0023| annual amount of $75 million from commercial mobile | 0024| service providers. The amounts assessed against | 0025| both the telecommunications utilities and the | - 314 - 0001| commercial mobile service providers shall be | 0002| assessed and collected in each year without respect | 0003| to whether all of the funds previously collected | 0004| and deposited in either or both accounts have been | 0005| disbursed or spent due to lack of demand or | 0006| otherwise. | 0007| (m) The TRD may require telecommunications utilities | 0008| and commercial mobile service providers to provide | 0009| any reports and information as are needed to | 0010| fulfill the duties of the TRD provided by this | 0011| section. Any information provided to the TRD by a | 0012| telecommunications utility or commercial service | 0013| provider under this section is confidential and | 0014| exempt from disclosure under the Public Records | 0015| Act. | 0016| (n) All amounts collected by the TRD from | 0017| telecommunications utilities under Subsection (l) | 0018| of this section shall be deposited to the credit of | 0019| the telecommunications utilities account in the | 0020| telecommunications infrastructure fund in the state | 0021| treasury. All amounts collected by the TRD from | 0022| commercial mobile service providers under | 0023| Subsection (l) of this section shall be deposited | 0024| to | 0025| the credit of the commercial mobile service | - 315 - 0001| providers account in the telecommunications | 0002| infrastructure fund in the state treasury. Money | 0003| in the fund may be appropriated only for a use | 0004| consistent with the purposes of this section. | 0005| Sections 403.094 and 403.095, Government Code, do | 0006| not apply to the fund or either account. | 0007| (o) From funds appropriated to the board, the TRD shall | 0008| issue warrants as requested by the board in | 0009| accordance with the purpose of this section, | 0010| including warrants to grantees of the board in | 0011| amounts certified by the board to the TRD. | 0012| (p) In addition to any appropriated funds, the board | 0013| may accept gifts, grants, and donations and use | 0014| them for the purposes of this section. | 0015| (q) The board shall use money in the telecommunications | 0016| utilities account to award grants and loans in | 0017| accordance with this section to fund equipment | 0018| purchases, including computers, printers, computer | 0019| labs, and video equipment, for public schools and | 0020| for intracampus and intercampus wiring to enable | 0021| those public schools to use the equipment. The | 0022| board shall use money in the commercial mobile | 0023| service providers account for any purpose | 0024| authorized by this section, including equipment | 0025| | - 316 - 0001| purchases, wiring, material, program development, | 0002| training, installation costs, or any statewide | 0003| telecommunications network. | 0004| (r) Subject to the limitations prescribed by Subsection | 0005| (q) of this section, the board may award grants to | 0006| projects and proposals that: | 0007| (1) provide equipment and infrastructure needed | 0008| for distance learning, information sharing | 0009| programs of libraries, and telemedicine | 0010| services; | 0011| (2) develop and implement the initial or | 0012| prototypical delivery of courses and other | 0013| distance learning material; | 0014| (3) train teachers, faculty, librarians, or | 0015| technicians in the use of distance learning or | 0016| information sharing materials and equipment; | 0017| (4) develop curricula and instructional material | 0018| especially suited for delivery by | 0019| telecommunications; | 0020| (5) provide electronic information; or | 0021| (6) establish or carry out information sharing | 0022| programs. | 0023| (s) Subject to the limitations prescribed by Subsection | 0024| (q) of this section, the board may award loans to | 0025| projects and proposals to acquire equipment needed | - 317 - 0001| for distance learning and telemedicine projects. | 0002| (t) In awarding grants and loans in accordance with | 0003| this section, the board shall give priority to | 0004| projects and proposals that: | 0005| (1) represent collaborative efforts involving | 0006| multiple schools, universities, or libraries; | 0007| (2) contribute matching funds from other sources; | 0008| (3) show promise of becoming self-sustaining; | 0009| (4) help users of information learn new ways to | 0010| acquire and use information through | 0011| telecommunications; | 0012| (5) extend specific educational information and | 0013| knowledge services to groups not previously | 0014| served, especially those in rural and remote | 0015| areas; | 0016| (6) result in more efficient of effective learning | 0017| than through conventional teaching; | 0018| (7) improve the effectiveness and efficiency of | 0019| health care delivery; or | 0020| (8) take advantage of distance learning | 0021| opportunities in rural and urban school | 0022| districts with disproportionate numbers of at- | 0023| risk youths or with high dropout rates. | 0024| (u) In distributing funds to public schools, the board | 0025| shall take into account the relative property | - 318 - 0001| wealth per student of the recipient school | 0002| districts and recognize the unique needs of rural | 0003| communities. | 0004| Sec. 3.607. RECOVERY OF LOST REVENUES. A local exchange | 0005| company is entitled to | 0006| recover the lost revenue, if any, resulting solely from | 0007| the provision of tel-assistance service from the | 0008| universal service fund, the establishment of which is | 0009| provided for by this Act. | 0010| Sec. 3.608. UNIVERSAL SERVICE FUND. | 0011| (a) The commission shall adopt and enforce rules | 0012| requiring local exchange companies to establish a | 0013| universal service fund to assist local exchange | 0014| companies in providing basic local | 0015| telecommunications service at reasonable rates in | 0016| high cost rural areas to reimburse local exchange | 0017| companies for revenues lost as a result of | 0018| providing tel-assistance service under this Act, to | 0019| reimburse the telecommunications carrier providing | 0020| the statewide telecommunications relay access | 0021| service for the hearing-impaired and speech- | 0022| impaired as authorized in Section 3.604 of this | 0023| Act, and to reimburse the Human Services Department | 0024| and the commission for costs incurred in | 0025| implementing the provisions of this subtitle. | - 319 - 0001| (b) (1) For local exchange companies serving fewer | 0002| than 40,000 access lines, in addition to the | 0003| authority described by Subsection (a) of this | 0004| section, the commission may adopt any | 0005| mechanisms necessary to maintain reasonable | 0006| rates for local exchange telephone service and | 0007| shall establish rules that would expand the | 0008| universal service fund in the circumstances | 0009| prescribed by this subsection. | 0010| (2) In the event of a commission order, rule, or | 0011| policy, the effect of which is to reduce the | 0012| amount of the high cost assistance fund, | 0013| except an order entered in an individual | 0014| company revenue requirements proceeding, the | 0015| commission shall implement a mechanism through | 0016| the universal service fund to replace the | 0017| reasonably projected reduction in revenues | 0018| caused by that regulatory action. | 0019| (3) In the event of a Federal Communications | 0020| Commission order, rule, or policy, the effect | 0021| of which is to change the federal universal | 0022| service fund revenues of a local exchange | 0023| company or change costs or revenues assigned | 0024| to the intrastate jurisdiction, the commission | 0025| shall implement a mechanism, through either | - 320 - 0001| the universal service fund or an increase to | 0002| rates if that increase would not adversely | 0003| impact universal service, to replace the | 0004| reasonably projected change in revenues caused | 0005| by the regulatory action. | 0006| | 0007| (4) In the event of any other governmental agency | 0008| issuing an order, rule, or policy, the effect | 0009| of which is to increase costs or decrease | 0010| revenues of the intrastate jurisdiction, the | 0011| commission shall implement a mechanism through | 0012| either the universal service fund or an | 0013| increase to rates if that | 0014| increase would not adversely impact universal | 0015| service, to replace the reasonably projected | 0016| increase in costs or decrease in revenues | 0017| caused by that regulatory action. | 0018| (5) A revenue requirement showing is not required | 0019| with respect to disbursements from the | 0020| universal service fund under Subsection (a) or | 0021| 9b) of this section. Those disbursements | 0022| shall be implemented promptly and efficiently | 0023| so that telecommunications providers and local | 0024| exchange companies do not experience | 0025| unnecessary cash flow changes as a result of | - 321 - 0001| these changes in governmental policy. | 0002| (c) The universal service fund shall be funded by a | 0003| statewide uniform charge, at rates and on services | 0004| determined by the commission, payable by all | 0005| telecommunications providers that have access to | 0006| the customer base. In establishing the uniform | 0007| level of the charge and the services to which it | 0008| will apply, the commission may not make or grant an | 0009| unreasonable preference or advantage to a | 0010| telecommunications provider or subject a | 0011| telecommunications provider to unreasonable | 0012| prejudice or disadvantage. The charge shall be | 0013| paid in accordance with procedures approved by the | 0014| commission. | 0015| | 0016| | 0017| (d) The commission shall: | 0018| (1) establish, in a manner that assures reasonable | 0019| rates for basic local telecommunications | 0020| service, eligibility criteria and review | 0021| procedures, including a method for | 0022| administrative review, it finds necessary for | 0023| funding of and distribution from the universal | 0024| service fund; | 0025| (2) determine which local exchange companies meet | - 322 - 0001| the eligibility criteria, which, at a minimum, | 0002| includes the requirement to offer service to | 0003| every consumer within it certificated area and | 0004| render continuous and adequate service within | 0005| the area or areas, in compliance with the | 0006| commission's quality of service requirements. | 0007| (3) determine the amount of and approve a | 0008| procedure for reimbursement to local exchange | 0009| companies of revenue lost in providing tel- | 0010| assistance service under this Act; | 0011| (4) prescribe and collect fees from the universal | 0012| service fund necessary to recover the costs | 0013| the Human Services Department and the | 0014| commission incurred in implementing and | 0015| administrating the provisions of this | 0016| subtitle; and | 0017| (5) approve procedures for the collection and | 0018| disbursal of the revenues of the universal | 0019| service fund. | 0020| (e) The commission shall adopt rules for the | 0021| implementation and administration of the universal | 0022| service fund. | 0023| (f) The commission may do all things necessary and | 0024| convenient to implement and administer the | 0025| universal service fund, including require local | - 323 - 0001| exchange companies and other telecommunications | 0002| providers to provide any reports and information | 0003| needed to assess contributions to the fund. | 0004| Competitively-sensitive information shall not be | 0005| disclosed by the commission. | 0006| TITLE IV. NATURAL GAS, WATER AND WASTE WATER UTILITIES | 0007| | 0008| [Note: This material presumably will be provided, in one or | 0009| more separate bills | 0010| by the interim committee on | 0011| Water, Utilities & Natural Resources (Rep. Michael Sanchez, | 0012| Chairman) | 0013| in one or more separate bills]. | 0014| | 0015| | 0016| TITLE V. OTHER REGULATED ENTITIES | 0017| | 0018| SUBTITLE A. STATUTORY ORGANIZATION | 0019| | 0020| Sec. 5.001. PURPOSE. Unlike the public utility industries in | 0021| Titles II, III and IV of this Act, the | 0022| industries in this Title V generally do not need the | 0023| degree or extent of regulation necessary for Title II-IV | 0024| public utilities and, further, have not been subject to | 0025| major changes in the nature and developments of their | - 324 - 0001| respective industries. Accordingly, it is the | 0002| legislature's purpose in this Title V to provide by | 0003| amendments for the organization and clarification of | 0004| existing legislation, so that it may properlly but with | 0005| this Act, while re-adopting that existing substantive | 0006| legislation applicable to each industry and entity | 0007| covered by this Title. Only additions or deletions in | 0008| existing legislation will be shown. At the end of the | 0009| material with additions and deletions, the remainder of | 0010| the existing legislation shall be the same as it now is | 0011| contained in the New Mexico Statutes Annotated, 1978 | 0012| [NMSA 1978]. | 0013| | 0014| SUBTITLE B. STATE FIRE MARSHAL AND FIREFIGHTERS TRAINING | 0015| ACADEMY. | 0016| Sec. 5.002. DEPARTMENT ESTABLISHED. There is created in the | 0017| executive branch the | 0018| "Department of Public Safety". The department shall be | 0019| a cabinet department and shall include the following | 0020| divisions: | 0021| A. The New Mexico State Police Division; | 0022| B. The Special Investigations Division; | 0023| C. The Training and Recruiting Division; | 0024| D. The Technical and Emergency Support Division; | 0025| [and] | - 325 - 0001| E. The Administrative Services Division; and | 0002| F. The State Fire Marshal Division, including | 0003| the firefighters training academy, which shall | 0004| be a bureau of the state fire marshal | 0005| division." | 0006| Section 59A-52-1 NMSA 1978 (being Laws 1984, Chapter 127, | 0007| Section 947) is amended to read: | 0008| "59A-52-1. [STATE FIRE BOARD AND POSITION OF] STATE FIRE | 0009| MARSHAL ~~[CONTINUED]~~ CREATED.--~~[For purposes of fire~~ | 0010| ~~prevention and investigation, and reduction of fire insurance~~ | 0011| ~~premium rates, the state "fire board" is hereby continued.~~ | 0012| ~~The membership thereof shall be the members of the state~~ | 0013| ~~insurance board, but they shall receive no extra or additional~~ | 0014| ~~compensation for acting in that capacity.] The position of~~ | 0015| ~~"state fire marshal" is [hereby continued. The state fire~~ | 0016| ~~board shall appoint, fix the compensation of, and have power~~ | 0017| ~~to remove, the state fire marshal. [The marshal shall serve as~~ | 0018| ~~the executive secretary for the board]~~ created in the | 0019| department of public safety." | 0020| Section 59A-52-2 NMSA 1978 (being Laws 1984, Chapter 127, | 0021| Section 948) is amended to read: | 0022| "59A-52-2. FIRE MARSHAL TO ADMINISTER ARTICLE.--The | 0023| state fire marshal shall administer the provisions of ~~[this~~ | 0024| ~~article under the supervision of the state fire board]~~ | 0025| Chapter 59A, Article 52 NMSA 1978." | - 326 - 0001| Section 59A-52-3 NMSA 1978 (being Laws 1984, Chapter 127, | 0002| Section 949) is amended to read: | 0003| "59A-52-3. DEPUTY STATE FIRE MARSHAL AND OTHER | 0004| EMPLOYEES--QUALIFICATIONS OF DEPUTY.--The state fire marshal | 0005| ~~[shall have the power to]~~ may, with the approval of the | 0006| secretary of public safety, appoint or remove a deputy state | 0007| fire marshal and other employees to assist in the execution of | 0008| the marshal's duties ~~[and to set their compensation, subject~~ | 0009| ~~to state laws and regulations concerning classification and~~ | 0010| ~~compensation of state employees]~~; provided, however, that the | 0011| state fire marshal and any deputy state fire marshal appointed | 0012| by the state fire marshal ~~[as herein provided]~~ shall be | 0013| ~~[persons]~~ experienced in fire prevention and fire fighting | 0014| and ~~[who] have completed a course of training by actual~~ | 0015| ~~attendance at a fire-training school."~~ | 0016| ~~Section 59A-52-21 NMSA 1978 (being Laws 1984, Chapter~~ | 0017| ~~127, Section 967) is amended to read:~~ | 0018| ~~"59A-52-21. ADMINISTRATIVE APPEAL OF ORDERS AND~~ | 0019| ~~MODIFICATIONS.--Any person aggrieved by any order of the state~~ | 0020| ~~fire marshal, his deputy or authorized officer or his~~ | 0021| ~~designated agent may appeal to the [state fire board]~~ | 0022| secretary of public safety within ten ~~[(10)]~~ days from the | 0023| date of the service of such order. The ~~[state fire board]~~ | 0024| secretary of public safety shall hear such party ~~[or~~ | 0025| ~~parties]~~ within twenty ~~[(20)]~~ days after receipt of an | - 327 - 0001| appeal request and shall give not less than ten ~~[(10)]~~ days' | 0002| written notice of the hearing. Within fifteen ~~[(15)] days~~ | 0003| ~~after such hearing, the [state fire board]~~ secretary shall | 0004| file ~~[its]~~ his decision ~~[thereon]~~ and, unless | 0005| | 0006| by ~~[its]~~ his authority the order is revoked or modified, | 0007| it shall be complied with within the time fixed in the | 0008| decision, with such time to be not less than thirty ~~[(30)]~~ | 0009| days. | 0010| Section 59A-52-23 NMSA 1978 (being Laws 1984, Chapter | 0011| 127, Section 969) is amended to read: | 0012| "59A-52-23. ENFORCEMENT OF CEASE AND DESIST ORDERS.-- | 0013| After expiration of time for an administrative appeal, and if | 0014| no such appeal has been taken, the state fire marshal may | 0015| commence an action in the district court for Santa Fe county | 0016| to enforce the cease and desist order by injunction or other | 0017| appropriate remedy as the district court may adjudge. The | 0018| ~~[state fire board]~~ secretary of public safety may likewise | 0019| commence an action in the district court for Santa Fe county | 0020| to enforce ~~[its]~~ his decision rendered on appeal from the | 0021| cease and desist order of the state fire marshal." | 0022| Section 59A-53-6 NMSA 1978 (being Laws 1984, Chapter 127, | 0023| Section 977, as amended) is amended to read: | 0024| "59A-53-6. APPEAL AND REVIEW OF DETERMINATION.--The | 0025| state fire marshal shall promptly notify each incorporated | - 328 - 0001| city, town, village and county fire district affected of his | 0002| determination of needs, and ~~[any]~~ an incorporated city, | 0003| town, village or county fire district may appeal from the | 0004| determination of the marshal to the ~~[state fire board]~~ | 0005| secretary of public safety within ten days after the | 0006| determination of needs. The ~~[state insurance board]~~ | 0007| secretary shall review the determination of the state fire | 0008| marshal in such informal and summary proceedings as [it may | 0009| deem] he deems proper and shall certify to the state | 0010| treasurer annually, on or before the last day of June, the | 0011| results of all appeals from the determinations of the state | 0012| fire marshal. The | 0013| | 0014| certification by the ~~[state fire board]~~ secretary, or by | 0015| the marshal if no appeal is taken, shall be final and binding | 0016| on all concerned and not subject to any further review." | 0017| Section 59A-53-7 NMSA 1978 (being Laws 1984, Chapter 127, | 0018| Section 978, as amended) is amended to read: | 0019| "59A-53-7. DISTRIBUTION OF FIRE PROTECTION FUND.-- | 0020| A. Annually on or before the last day of July, the | 0021| state treasurer shall distribute from the money in the fire | 0022| protection fund, to each incorporated municipality and to each | 0023| county fire district, the amount ~~[as] the state fire~~ | 0024| ~~marshal or the [state fire board]~~ secretary of public | 0025| safety, as the case may be ~~[shall have]~~ has certified to | - 329 - 0001| him. Payment shall be made to the treasurer of any | 0002| incorporated municipality and to the county treasurer of the | 0003| county in which any county fire district is located for credit | 0004| to the county fire district. | 0005| B. The state treasurer is authorized to redirect a | 0006| distribution to the New Mexico finance authority in the amount | 0007| ~~[as]~~ the state fire marshall or the ~~[state fire board]~~ | 0008| secretary, as the case may be, ~~[shall have]~~ has | 0009| certified to him pursuant to an ordinance or a resolution | 0010| passed by the municipality or county and a written agreement | 0011| of the municipality or county in which any county fire | 0012| district is located and the New Mexico finance authority." | 0013| Sec. 5.003. CORPORATE REPORTS ACT; BUSINESS DEVELOPMENT | 0014| CORPORATION | 0015| ACT; NONPROFIT CORPORATION ACT; BUSINESS CORPORATION ACT; | 0016| LIMITED LIABILITY COMPANY ACT. Section 53-5-1 NMSA 1978 | 0017| (being laws 1959, Chapter 181, Section 1) is amended to | 0018| read: | 0019| "53-5-1. SHORT TITLE --~~[This act]~~ Chapter 53, Article | 0020| 5 NMSA 1978 may be cited as the "Corporate Reports Act." | 0021| Section 25. Section 53-7-18 NMSA 1978 (being Laws 1983, | 0022| Chapter 312, Section 1) is amended to read: | 0023| "53-7-18. SHORT TITLE. -- ~~[This act] Sections 53-7-18~~ | 0024| ~~through 53-7-46 NMSA 1978~~ ~~may be cited as the 'Business~~ | 0025| ~~Development Corporation Act"."~~ | - 330 - 0001| ~~Section 53-8-1 NMSA 1978 being Laws 1975, Chapter 217,~~ | 0002| ~~Section 1, as amended) is amended to read:~~ | 0003| ~~"53-8-1. SHORT TITLE. -- [Article 14 of Chapter 51, NMSA~~ | 0004| ~~1953]~~ Chapter 53, Article 8 NMSA 1978 may be cited as the | 0005| "Nonprofit Corporation Act"." | 0006| Section 53-8-2 NMSA 1978 (being Laws 1975, Chapter 217, | 0007| Section 2, as amended) is amended to read: | 0008| "53-8-2. DEFINITIONS. -- As used in the Nonprofit | 0009| Corporation Act, unless the context otherwise requires ~~[the~~ | 0010| ~~term]~~: | 0011| A. "corporation" or "domestic corporation" means | 0012| a nonprofit corporation subject to the provisions of the | 0013| Nonprofit Corporation Act, except a foreign corporation; | 0014| B. "foreign corporation" means a nonprofit | 0015| corporation organized under laws other than the laws of New | 0016| Mexico for a purpose ~~[or purposes]~~ for which a corporation | 0017| may be organized under the Nonprofit Corporation Act; | 0018| C. "nonprofit corporation" means a corporation no part | 0019| of the income or profit of which is distributable to its | 0020| members, directors or officers; | 0021| D. "articles of incorporation" means the original or | 0022| restated articles of incorporation or articles of | 0023| consolidation and all amendments thereto, including articles | 0024| of merger; | 0025| | - 331 - 0001| E. "bylaws" means the code ~~[or code]~~ of rules | 0002| adopted for the regulation or management of the affairs of the | 0003| corporation, irrespective of the name ~~[or names]~~ by which | 0004| such rules are designated; | 0005| F. "member" means one having membership rights in a | 0006| corporation in accordance with the provision of its articles | 0007| of incorporation or bylaws; | 0008| G. "Board of directors" means the group of persons | 0009| vested with the management of the affairs of the corporation, | 0010| irrespective of the name by which such group is designated; | 0011| H. "insolvent" means inability of a corporation to pay | 0012| its debts as they become due in the usual course of its | 0013| affairs; | 0014| I. "commission" or "corporation commission" means the | 0015| ~~[state corporation]~~ public regulation commission or its | 0016| delegate; | 0017| J. "address" means: | 0018| (1) the mailing address and the street address, if | 0019| within a municipality; or | 0020| (2) the mailing address and a rural route number | 0021| and box number, if any, or the geographical location, using | 0022| well-known landmarks, if outside a municipality; | 0023| K. "duplicate original" means a document ~~[which]~~ | 0024| that is signed or executed in duplicate; | 0025| L. "delivery" means: | - 332 - 0001| (1) if a personally served, the date documentation | 0002| is received by the ~~[commission's corporation department]~~ | 0003| corporations bureau of the commission and | 0004| (2) if mailed to the commission, the date of the | 0005| postmark plus three days, upon proof thereof by the party | 0006| delivering the documentation; and | 0007| M. "person" includes individuals, partnerships, | 0008| corporations and other associations." | 0009| Section 53-11-1 NMSA 1978 (being Laws 1967, Chapter 81, | 0010| Section 1, as amended) is amended to read: | 0011| "53-11-1. SHORT TITLE.--Sections ~~[51-24-1 through 51-~~ | 0012| ~~31-11 NMSA 1953]~~ 53-11-1 through 53-18-12 NMSA 1978 is the | 0013| general corporation law of New Mexico and may be cited as the | 0014| 'Business Corporation Act"." | 0015| Section 53-11-2 NMSA 1978 (being Laws 1967, Chapter 81, | 0016| Section 2, as amended) is amended to read: | 0017| "53-11-2. DEFINITIONS.--As used in the Business | 0018| Corporation Act, unless the text otherwise requires: | 0019| A. "corporation" or "domestic corporation" means | 0020| a corporation for profit subject to the provisions of the | 0021| Business Corporation Act, except a foreign corporation; | 0022| B. "foreign corporation" means a corporation for | 0023| profit organized under laws other than the laws of this state | 0024| for a purpose or purposes for which a corporation may be | 0025| organized under the Business Corporation Act; | - 333 - 0001| C. "articles of incorporation" means the original | 0002| or restated articles of incorporation or articles of | 0003| consolidation and all amendments thereto, including articles | 0004| of merger; | 0005| D. "shares" means the units into which the | 0006| proprietary interests in a corporation are divided: | 0007| E. "subscriber" means one who subscribes for | 0008| shares in a corporation, whether before or after | 0009| incorporation; | 0010| | 0011| F. "shareholder" means one who is a holder of | 0012| record of shares in a corporation; | 0013| G. "authorized shares" means the shares of all | 0014| classes which the corporation is authorized to issue; | 0015| H. "annual report" means the corporate report | 0016| required by the Corporate Reports Act; | 0017| I. "distribution" means a direct or indirect | 0018| transfer of money or other property except its own shares) or | 0019| incurrence of indebtedness, by a corporation to or for the | 0020| benefit of any of its shareholders in respect of any of its | 0021| shares, whether by dividend or by purchase redemption or other | 0022| acquisition of its shares, or otherwise; | 0023| J. "franchise tax" means the franchise tax | 0024| imposed by the Corporate Income and Franchise Tax Act; | 0025| K. "fees" means the fees imposed by Section 53-2- | - 334 - 0001| 1 NMSA 1978; | 0002| L. "commission" means the ~~[state corporation]~~ | 0003| public regulation commission or its delegates; | 0004| M. "address" means: | 0005| (1) the mailing address and the street | 0006| address, if within a municipality; or | 0007| (2) the mailing address and a rural route | 0008| number and box number, if any, or the geographical location, | 0009| using well-known landmarks, if outside a municipality; | 0010| N. "duplicate original" means a document | 0011| ~~[which]~~ that is signed or executed in duplicate; | 0012| O. "delivery" means: | 0013| (1) if personally served, the date on which | 0014| the documentation is received by the ~~[commissions corporation~~ | 0015| ~~department]~~ corporations bureau of the commission; and | 0016| (2) if mailed, the date of the postmark plus | 0017| three days, upon proof thereof by the party delivering the | 0018| documentation; and | 0019| P. "person" includes individuals, partnerships, | 0020| corporations and other associations." | 0021| Section 53-19-1 NMSA 1978 (being Laws 1993, Chapter 280, | 0022| Section 1) is amended to read: | 0023| "53-19-1. SHORT TITLE.--~~[Sections 1 through 74 of this~~ | 0024| ~~act]~~ Chapter 53, Article 19 NMSA 1978 may be cited as the | 0025| "Limited Liability Company Act"." | - 335 - 0001| Section 53-19-2 NMSA 1978 (being Laws 1993, Chapter 280, | 0002| Section 2) is amended to read: | 0003| "53-19-2. DEFINITIONS.--As used in the Limited Liability | 0004| Company Act: | 0005| A. "articles of organization" means the original | 0006| or restated articles filed pursuant to the Limited Liability | 0007| Company Act and any amendments to those articles, including | 0008| articles of merger or consolidations; | 0009| B. "corporation" means an organization | 0010| incorporated under the laws of New Mexico or a foreign | 0011| corporation; | 0012| C. "commission means the ~~[state corporation]~~ | 0013| public regulation commission or its designee; | 0014| D. "court" means a court having jurisdiction in | 0015| the case; | 0016| E. "event of disassociation" means an event that | 0017| causes a person to cease to be a member of a limited liability | 0018| company; | 0019| F. "foreign corporation" means a corporation that | 0020| is organized under the laws of another state or a foreign | 0021| country; | 0022| G. "foreign limited liability company" means ~~[an~~ | 0023| ~~entity]~~ a person that is: | 0024| (1) an unincorporated association; | 0025| (2) organized under the laws of another | - 336 - 0001| state or foreign country; | 0002| (3) organized under a statute pursuant to | 0003| which an association may be formed that affords to each of its | 0004| members limited liability with respect to the liabilities of | 0005| the ~~[entity]~~ person; and | 0006| (4) is not required to be registered or | 0007| organized under the laws of New Mexico other than the Limited | 0008| Liability Company Act; | 0009| H. "foreign limited partnership" means a limited | 0010| partnership formed under the laws of another state or a | 0011| foreign country; | 0012| I. "limited liability company" or "domestic | 0013| limited liability company" means an organization formed | 0014| pursuant to the provisions of the Limited Liability Company | 0015| Act; | 0016| J. "limited liability company interest" means a | 0017| member's or assignee's right to receive distributions and a | 0018| return of capital from the limited liability company. A | 0019| member's or assignee's limited liability company interest does | 0020| not include rights the member or assignee has on account of | 0021| other matters, such as a right to receive accrued salary for | 0022| services the member or | 0023| | 0024| assignee rendered to, repayment of a loan the member or | 0025| assignee made to or indemnification by the limited liability | - 337 - 0001| company; | 0002| K. "limited partnership" means a limited | 0003| partnership under the laws of New Mexico or a foreign limited | 0004| partnership; | 0005| L. "manager" means with respect to a limited | 0006| liability company that has included a statement in its | 0007| articles of organization that it is to be managed by a manager | 0008| ~~[or managers]~~, the person ~~[or persons]~~ designated as | 0009| ~~[managers]~~ manager in accordance with the articles of | 0010| organization or an operating agreement; | 0011| M. "member" means a person who has been admitted | 0012| to membership in a limited liability company and who has not | 0013| dissociated from that company; | 0014| N. "membership interest" or "interest" means a | 0015| member's limited liability company interest and his rights to | 0016| participate in management and control of the limited liability | 0017| company; | 0018| O. "operating agreement" means a written | 0019| agreement providing for the conduct of the business and | 0020| affairs of a limited liability company and that agreement as | 0021| amended in writing; | 0022| P. "person" means an individual, a general | 0023| partnership, a limited partnership, a domestic or foreign | 0024| limited liability company, a trust, an estate, an association, | 0025| a corporation or any other legal entity; and | - 338 - 0001| Q. "state" means a state, territory or possession | 0002| of the United States, the District of Columbia or the | 0003| commonwealth of Puerto Rico." | 0004| | 0005| SUBTITLE C. CHANGE OF NAME OF CORPORATION COMMISSION. | 0006| Sec. 5.004. | 0007| Section 59A-1-4 NMSA 1978 (being Laws 1984, Chapter 127, | 0008| Section 4, is amended to read: | 0009| "59A-1-4. ~~[CORPORATION]~~ COMMISSION.--"Corporation | 0010| commission" or "commission" means the ~~[state corporation]~~ | 0011| public regulation commission ~~[of New Mexico]~~." | 0012| | 0013| SUBTITLE D. INSURANCE DIVISION | 0014| Sec. 5.005 | 0015| Sec. 59A-1-7 NMSA 1978 (being Laws 1984, Chapter 127, | 0016| Section 7 is amended to read: | 0017| "59A-1-7. INSURANCE DEPARTMENT.--"Insurance department", | 0018| "insurance division" or "division" means the ~~[department~~ | 0019| ~~of] insurance division of the [corporation]~~ commission." | 0020| Section 59A-112 NMSA 1978 (being Laws 1984, Chapter 127, | 0021| Section 12) is amended to read: | 0022| "59A-1-12. SUPERINTENDENT.--"superintendent" means the | 0023| superintendent of ~~[the]~~ insurance ~~[department, as~~ | 0024| ~~designated as such by the corporation commission]~~ or the | 0025| superintendent's duly authorized representative acting in | - 339 - 0001| official capacity." | 0002| Section 59A-2-1 NMSA 1978 (being Laws 1984, Chapter 127, | 0003| Section 19) is amended to read: | 0004| "59A-2-1. INSURANCE ~~[DEPARTMENT CONTINUED--DIVISION OF~~ | 0005| ~~POWERS]~~ DIVISION CREATED.-- | 0006| A. The ~~[department of]~~ insurance ~~[is~~ | 0007| ~~continued]~~ division is created within the ~~[corporation]~~ | 0008| ~~commission.~~ | 0009| ~~B. All powers relating to state supervision of~~ | 0010| ~~insurance, insurance rates and rate practices, together with~~ | 0011| ~~collection of insurance licenses, taxes or fees, and all~~ | 0012| ~~records pertaining to such supervision [shall continue to be~~ | 0013| ~~and remain]~~ are under control of the ~~[corporation]~~ | 0014| commission through ~~[its insurance department; except that all~~ | 0015| ~~powers relating to state control and supervision of insurance~~ | 0016| ~~rates and rate practices, as provided for in Article 17 of the~~ | 0017| ~~Insurance Code and all records pertaining thereto shall~~ | 0018| ~~continue to be and remain under exclusive control of the state~~ | 0019| ~~insurance board]~~ the division." | 0020| Section 59A-2-2 NMSA 1978 (being Laws 1984, Chapter 127, | 0021| Section 20) is amended to read: | 0022| "59A-2-2. SUPERINTENDENT ~~[DEPARTMENT CHIEF]~~-- | 0023| APPOINTMENT--REMOVAL.-- The superintendent of insurance shall | 0024| be chief officer of the insurance ~~[department]~~ division. | 0025| The superintendent shall be appointed and may be removed for | - 340 - 0001| cause at any time by the ~~[corporation]~~ commission." | 0002| Section 59A-2-4 NMSA 1978 (being Laws 1984, Chapter 127, | 0003| Section 22, as amended) is amended to read: | 0004| "59A-2-4. STAFF.--~~[A.] With the [corporation~~ | 0005| ~~commission's]~~ chief of staff's approval, the superintendent | 0006| may designate an employee of the insurance ~~[department]~~ | 0007| ~~division as chief deputy superintendent who shall be acting~~ | 0008| ~~superintendent when the office of superintendent is vacant or~~ | 0009| ~~the superintendent is unable to perform the duties of that~~ | 0010| ~~office because of mental or physical disability.~~ | 0011| ~~[B. With the corporation commission's approval,~~ | 0012| ~~the superintendent may employ such other administrative and~~ | 0013| ~~clerical assistants and such examiners and other personnel as~~ | 0014| ~~may be required for insurance department operations.~~ | 0015| ~~C. Subject to applicable state personnel laws,~~ | 0016| ~~the corporation commission may with or without the~~ | 0017| ~~superintendent's recommendation, remove any deputy, assistant~~ | 0018| ~~or other insurance department personnel.~~ | 0019| ~~D. With the corporation commission's approval and~~ | 0020| ~~subject to applicable state personnel laws, the superintendent~~ | 0021| ~~may make reasonable rules and regulations regarding staff~~ | 0022| ~~development through job-related college courses, professional~~ | 0023| ~~programs or other training programs that are commensurate with~~ | 0024| ~~the duties and responsibilities of all professional and other~~ | 0025| ~~personnel whose positions require specialized knowledge of~~ | - 341 - 0001| ~~insurance.]}~~ | 0002| ~~Section 59A-4-20 NMSA 1978 (being Laws 1984, Chapter 127,~~ | 0003| ~~Section 67, as amended) is amended to read:~~ | 0004| ~~"59A-4-20. APPEAL TO COMMISSION--APPEAL TO COURT--~~ | 0005| ~~A. A party may appeal from a final order of the~~ | 0006| ~~superintendent. [made after an informal hearing or an~~ | 0007| ~~administrative hearing, and the court shall try the matter de~~ | 0008| ~~novo; provided that if an administrative hearing was held, the~~ | 0009| ~~court may, in its discretion, limit its review to that~~ | 0010| ~~provided in Section 12-8-22 NMSA 1978, in which case Sections~~ | 0011| ~~12-8-17 through 12-8-22 NMSA 1978 shall apply.~~ | 0012| ~~B. The appeal shall be taken within sixty days~~ | 0013| ~~after receipt; by the party appealing, of a copy of the~~ | 0014| ~~decision from the review of the superintendent's order by the~~ | 0015| ~~corporation commission or insurance board, if such review is~~ | 0016| ~~sought. If no such review is sought, the appeal shall be~~ | 0017| ~~taken within sixty days after receipt of a copy of the~~ | 0018| ~~superintendent's order by the party appealing.~~ | 0019| ~~C. The appeal shall be taken to the district court~~ | 0020| ~~for Santa Fe county in the same manner and under the same~~ | 0021| ~~rules of pleading, practice and procedure in civil actions as~~ | 0022| ~~apply to appeals to court from actions of state administrative~~ | 0023| ~~officers or agencies in general.~~ | 0024| ~~D. Filing of an appeal pursuant to this section~~ | 0025| ~~shall not stay the effectiveness of the order on hearing~~ | - 342 - 0001| ~~appealed from unless, after notice and opportunity given the~~ | 0002| ~~parties to be heard and for good cause shown, the court~~ | 0003| ~~determines that a stay should be granted and would not be~~ | 0004| ~~policyholders, stockholders, creditors or to the public.~~ | 0005| ~~E. The district court may affirm, reinstate,~~ | 0006| ~~modify or vacate the order appealed from or remand for~~ | 0007| ~~rehearing by the superintendent as to designated matters~~ | 0008| ~~involved in the hearing. The judgement of the district court~~ | 0009| ~~may be appealed to the court of appeals or to the supreme~~ | 0010| ~~court of New Mexico.~~ | 0011| ~~F. This section shall not apply as to matters~~ | 0012| ~~arising under Chapter 59A, Article 17 NMSA 1978]~~ to the | 0013| commission. | 0014| B. A party in interest being aggrieved by a final | 0015| order or determination of the commission pursuant to the | 0016| provisions of the Insurance Code may appeal to the supreme | 0017| court. | 0018| C. The appeal shall be on the record of the | 0019| hearing before the commission and shall be governed by the | 0020| appellate rules applicable to administrative appeals. The | 0021| supreme court shall affirm the commission's order unless it | 0022| is: | 0023| (1) arbitrary, capricious or an abuse of | 0024| discretion; | 0025| (2) not supported by substantial evidence in | - 343 - 0001| the record; or | 0002| (3) otherwise not in accordance with law." | 0003| Section 59A-29-6 NMSA 1978 (being Laws 1985, Chapter 61, | 0004| Section 6, as amended) is amended to read: | 0005| "59A-29-6. APPEALS--JUDICIAL REVIEW ~~[DE NOVO]~~.--Any | 0006| person aggrieved by any action or decision of the | 0007| administrators of the FAIR plan or the underwriting | 0008| association or of any insurer as a result of its participation | 0009| therein may appeal to the superintendent ~~[of insurance]~~ | 0010| within thirty days from the date of the action or the | 0011| decision. The superintendent ~~[of insurance]~~ shall, after | 0012| hearing held upon thirty days' written notice, issue an order | 0013| approving the action or decision or disapproving the action or | 0014| decision with respect to the matter which is the subject of an | 0015| appeal. All final orders and decisions of the superintendent | 0016| ~~[of insurance]~~ shall be subject to judicial review ~~[de~~ | 0017| ~~novo]~~." | 0018| | 0019| SUBTITLE E. RAILWAYS AND TRANSPORTATION | 0020| Sec. 5.006. COMMISSION'S POWERS AND DUTIES. A new section of | 0021| Chapter 63, Article 7 | 0022| NMSA 1978 is enacted to read: | 0023| "[NEW MATERIAL] COMMISSION POWERS AND DUTIES--RAILWAY | 0024| TRANSPORATION AND MOTOR CARRIERS. | 0025| (a) With respect to railway transportation companies | - 344 - 0001| and motor carriers, the commission shall: | 0002| (1) fix, determine, supervise, regulate and | 0003| control all charges and rates of railways, express, sleeping | 0004| car, motor carrier and other transportation companies and | 0005| motor carriers within the state; | 0006| (2) determine any matters of public convenience | 0007| and necessity with respect to matters subject to its | 0008| regulatory authority as provided by law; | 0009| (3) require railway companies and motor carriers | 0010| to provide and maintain clean, safe and adequate equipment, | 0011| depots, stockpens, station buildings, agents and facilities | 0012| for the accommodation of shippers and passengers and for | 0013| receiving and delivering passengers, freight and express and | 0014| to provide and maintain necessary crossings, culverts, sidings | 0015| and other facilities for convenience and safety whenever in | 0016| the commission's judgment the public interest demand; | 0017| (4) require railway companies, and motor carriers | 0018| to provide such reasonable safety appliances and use such | 0019| reasonable safety practices as may be necessary and proper for | 0020| the safety of employees and the public as required by federal | 0021| or state law and rules; | 0022| (5) change, amend and rescind rates; | 0023| (6) enforce its rules through administrative | 0024| sanctions and in the courts; and | 0025| (7) carry out all other duties and have all other | - 345 - 0001| powers provided by law. | 0002| Sec. 5.007. AMENDMENTS TO MOTOR CARRIER ACT. | 0003| (a) Section 65-2-82 NMSA 1978 (being Laws 1981, Chapter | 0004| 358, Section 3, as amended by Laws 1989, Chapter 250, Section | 0005| 1 and also by Laws 1989, Chapter 375, Section 1) is amended to | 0006| read: | 0007| "65-2-82. DEFINITIONS.--As used in the Motor | 0008| Carrier Act: | 0009| (a) "antitrust laws" means the laws of this state | 0010| relating to combinations in restraint of trade; | 0011| | 0012| (b) "broker means ~~[any]~~ a person not included | 0013| in the term "motor carrier" and not a bona fide employee or | 0014| agent of any motor carrier who, as principal or agent, sells | 0015| or offers for sale any transportation subject to the Motor | 0016| Carrier Act or negotiates for or holds himself ~~[of itself]~~ | 0017| out by solicitation, advertisement or otherwise as one who | 0018| sells, provides, furnishes, contracts or arranges for ~~[such]~~ | 0019| that transportation; | 0020| (c) "certificate" means a certificate of public | 0021| convenience and necessity issued under authority of the laws | 0022| of the state to common motor carriers; | 0023| (d) "clerk" or "chief clerk" means the chief | 0024| clerk of the ~~[state corporation]~~ public regulation | 0025| commission; | - 346 - 0001| (e) "commission means the ~~[state corporation]~~ | 0002| public regulation commission; | 0003| (f) "common motor carrier" means ~~[any]~~ a | 0004| person who undertakes, whether directly or indirectly or by | 0005| lease of equipment or operating rights or any other | 0006| arrangement, to transport persons or property or any class of | 0007| property for the general public by motor vehicle for | 0008| compensation, whether over regular or irregular routes and | 0009| under scheduled or nonscheduled service, but does not include | 0010| farm carriers; | 0011| (g) "contract motor carrier" means ~~[any]~~ a | 0012| person not a common motor carrier who, under individual | 0013| contracts or agreements and whether directly or indirectly or | 0014| by lease of equipment or operating rights or any other | 0015| arrangements, | 0016| (h) "farm carrier" means ~~[any]~~ a motor vehicle | 0017| registered in this state being used in the transportation for | 0018| hire of a cargo consisting of ~~[only]~~ one or several of the | 0019| following: farm produce, including ~~[but not limited to]~~ | 0020| grains, cotton, cottonseed, vegetables, hay and other | 0021| | 0022| farm products; livestock feed; livestock; stock salt; manure, | 0023| wire; posts; dairy products; and farm or ranch machinery | 0024| except tractors weighing more than forty-five thousand | 0025| pounds;- | - 347 - 0001| (i) "highway" means the public roads, highways, | 0002| streets and ways in this state; | 0003| (j) "household goods" means: | 0004| (1) personal effects and property used or to | 0005| be used in a dwelling when a part of the equipment or supply | 0006| of the dwelling and other similar property as the commission | 0007| may provide by ~~[regulation]~~ rule; except that this | 0008| paragraph shall not be construed to include property moving | 0009| from a factory or store, except property as the householder | 0010| has purchased with intent to use in his dwelling and ~~[which]~~ | 0011| ~~that is transported at the request of, and the~~ | 0012| ~~transportation charges paid to the carrier by, the~~ | 0013| ~~householder;~~ | 0014| ~~(2) furniture, fixtures, equipment and the property of~~ | 0015| ~~stores, offices, museums, institutions, hospitals or other~~ | 0016| ~~establishments when a part of the stock, equipment or supply~~ | 0017| ~~of stores, offices, museums, institutions, hospitals or other~~ | 0018| ~~establishments and other similar property as the commission~~ | 0019| ~~may provide by [regulation]~~ rule; except that this | 0020| paragraph shall not be construed to include the stock-in-trade | 0021| of any establishment; whether consignor or consignee, other | 0022| than used furniture and used fixtures, except when transported | 0023| as incidental to the moving of the establishment, or a portion | 0024| ~~[thereof]~~ of it, from one location to another; and | 0025| (3) articles, including objects of art, displays | - 348 - 0001| and exhibits, ~~[which]~~ that, because of their unusual | 0002| nature or value require the specialized handling and equipment | 0003| usually employed in moving household goods and other similar | 0004| articles as the commission may provide by ~~[regulation]~~ | 0005| rule; except that this paragraph shall not be construed to | 0006| include any article, whether | 0007| | 0008| crated or uncrated, ~~[which]~~ that does not, because of its | 0009| unusual nature or value, require the specialized handling and | 0010| equipment usually employed in moving household goods; | 0011| (k) "interested parties" shall in all cases include all | 0012| carriers operating over the routes or any part thereof or in | 0013| the territory involved in ~~[any]~~ an application for a | 0014| certificate or permit or ~~[any]~~ an application to file or | 0015| change ~~[any]~~ a schedule of rates, charges, fares or | 0016| ~~[any]~~ a rule ~~[regulation]~~ or practice, and other parties | 0017| as the commission may deem interested in the particular | 0018| matter; | 0019| (l) "irregular route" means that the route to be used | 0020| by a motor carrier is not restricted to any specific highway | 0021| within the area the motor carrier is authorized to serve; | 0022| (m) "lease" means ~~[any]~~ an arrangement whereby a | 0023| motor carrier augments his equipment by use of equipment owned | 0024| by others; | 0025| (n) "license" means a license issued ~~[under]~~ | - 349 - 0001| pursuant to the Motor Carrier Act to a broker; | 0002| (o) "motor carrier" includes common motor carriers, | 0003| contract motor carriers and any person performing for-hire | 0004| transportation services without authority from the commission | 0005| and farm carriers; | 0006| (p) "motor vehicle" means ~~[any]~~ a vehicle, machine, | 0007| tractor, trailer or semi-trailer propelled or drawn by | 0008| mechanical power and used upon the highways in the | 0009| transportation of property or persons, but does not include | 0010| any vehicle, locomotive or car operated exclusively on rail or | 0011| rails; | 0012| (q) "permit" means a permit issued under authority of | 0013| the laws of this state to contract motor carriers; | 0014| (r) "person" means ~~[any]~~ an individual, firm, | 0015| partnership, corporation, company, association or organization | 0016| and includes any trustee, receiver, assignee or personal | 0017| representative thereof; | 0018| (s) "regular route" means a fixed, specific and | 0019| determined course to be traveled by a motor carrier's vehicles | 0020| rendering service to, from or between various points, | 0021| localities or municipalities in this state; | 0022| (t) the "services" and "transportation" to which the | 0023| Motor Carrier Act applies includes all vehicles operated by, | 0024| for or in the interest of any motor carrier irrespective of | 0025| ownership or of contract, express or implied, together with | - 350 - 0001| all facilities and property controlled by any motor carrier | 0002| and used in the transportation of persons or property or in | 0003| the performance of any service in connection therewith; | 0004| (u) "shipper" means a person who consigns or receives | 0005| goods for transportation; | 0006| (v) "single-line rate" means a rate, charge or | 0007| allowance proposed by a single common motor carrier of | 0008| property that is applicable only over its line and for which | 0009| the transportation can be provided by that common motor | 0010| carrier; | 0011| (w) "state" means ~~[the state of]~~ New Mexico; | 0012| (x) "towing company" means ~~[any]~~ a common motor | 0013| carrier engaged in transporting for hire disabled or abandoned | 0014| motor vehicles by means of a tow truck or flatbed vehicle | 0015| carrier; and | 0016| (y) "weight-bumping" means the knowing and willful | 0017| making or securing of a fraudulent weight on a shipment of | 0018| household goods ~~[which]~~ that is subject to the | 0019| jurisdiction of the commission under the Motor Carrier Act." | 0020| Sec. 5.008. AMENDMENTS REGARDING APPEAL. | 0021| (a) Section 65-2-120 NMSA 1978 (being Laws 1981, | 0022| Chapter 358, Section 41, as amended) is repealed and a new | 0023| Section 65-2-120 NMSA 1978 is enacted to read: | 0024| "65-2-120. [NEW MATERIAL] APPEAL TO SUPREME COURT.-- | 0025| (b) A railway company, a motor carrier or other party | - 351 - 0001| in interest being aggrieved by a final order or determination | 0002| of the commission pursuant to Chapter 65, Article 2 NMSA 1978 | 0003| may appeal to the supreme court within thirty days. | 0004| (c) The appeal shall be on the record of the hearing | 0005| before the commission and shall be governed by the appellate | 0006| rules applicable to administrative appeals. The supreme court | 0007| shall affirm the commission's order unless it is: | 0008| (1) arbitrary, capricious or an abuse of | 0009| discretion; | 0010| (2) not supported by substantial evidence in the | 0011| record; or | 0012| (3) otherwise not in accordance with law." | 0013| Sec. 5.009. AMENDMENTS REGARDING COMMISSION'S POWERS AND | 0014| DUTIES. Section 65-4-4 NMSA 1978 (being Laws 1993, Chapter | 0015| 120, Section 4) is amended to read: | 0016| (a) "65-4-4. ADMINISTRATION OF ACT.--The ~~[State~~ | 0017| ~~Corporation]~~ [of the State of New Mexico is hereby vested | 0018| with authority to] shall administer ~~[this act]~~ Sections | 0019| 65-4-1 through 65-4-18 NMSA 1978 with full power to regulate | 0020| and control the issuance and revocation of licenses to be | 0021| issued under the provisions of ~~[this act]~~ those sections | 0022| and to perform all other acts and duties provided in ~~[this~~ | 0023| ~~act and]~~ those sections necessary for its enforcement." | 0024| (b) Section 65-4-18 NMSA 1978 (being Laws 1993, Chapter | 0025| 120, Section 19) is amended to read: | - 352 - 0001| "65-4-18. COMMISSION DEFINED.--The term "commission", | 0002| when used in ~~[this act]~~ Sections 65-4-1 through 65-4-18 | 0003| NMSA 1978, means the ~~[state corporation]~~ public | 0004| regulation commission ~~[of the State of New Mexico]~~. | 0005| | 0006| SUBTITLE F. AMBULANCE STANDARDS ACT. | 0007| Sec. 5.008. Section 65-6-2 NMSA 1978 (being Laws 1974, | 0008| Chapter 82, Section 2, as amended) is amended to read: | 0009| "65-6-2. DEFINITIONS.--As used in the Ambulance | 0010| Standards Act: | 0011| (a) "ambulance" means ~~[any]~~ a vehicle, including | 0012| motor vehicles or watercraft, designed and used or intended to | 0013| be used for the transportation of sick or injured persons; | 0014| (b) "driver" means a person who, on a regular or | 0015| irregular basis, either paid or voluntary, serves as the | 0016| operator of an ambulance; | 0017| (c) "attendant" means a person who, on a regular or | 0018| irregular basis, either paid or voluntary, serves as an | 0019| assistant to the [ambulance] driver in the operation of the | 0020| ambulance; and | 0021| (d) "commission" means the ~~[state corporation]~~ | 0022| public regulation commission." | 0023| | 0024| SUBTITLE G. PIPELINE SAFETY ACT | 0025| Sec. 5.009. Section 70-3-12 NMSA 1978 (being Laws 1969, | - 353 - 0001| Chapter 71, Section 2, as amended) is amended to read: | 0002| "70-3-12. DEFINITIONS.--As used in the Pipeline Safety | 0003| Act: | 0004| (a) "person" means ~~[any]~~ an individual, firm, joint | 0005| venture, partnership, corporation, association, state, | 0006| municipality, political subdivision, cooperative association, | 0007| joint stock association or any combination thereof and | 0008| includes any receiver, trustee, assignee or personal | 0009| representative thereof; | 0010| (b) "commission" means the ~~[state corporation]~~ | 0011| public regulation commission; | 0012| (c) "gas" means natural gas, flammable gas or gas that | 0013| is toxic or corrosive; | 0014| (d) "oil" means crude oil and liquid hydrocarbons and | 0015| manufactured products derived from either; | 0016| (e) "transportation of gas" means the gathering, | 0017| transmission or distribution of gas by pipeline or its | 0018| storage, except that it shall not include the gathering of gas | 0019| in those rural locations ~~[which]~~ that lie outside the | 0020| limits of any municipality or unincorporated city, town or | 0021| village or any residential or commercial area such as a | 0022| subdivision, a business or shopping center, a community | 0023| development or any similar populated area ~~[which]~~ that the | 0024| commission may define by order as a nonrural area; | 0025| (f) "transportation of oil" means the transmission of | - 354 - 0001| oil by pipeline, except pipelines operated exclusively for the | 0002| gathering of oil in any field or area or pipelines | 0003| constituting a part of any tank farm, plant facilities of any | 0004| processing plant, gasoline plant, refinery, carbon-black | 0005| plant, recycling system or similar operations; | 0006| (g) "gas pipeline facilities" means new and existing | 0007| pipeline rights of way and any equipment, facility or | 0008| structure used in the transportation of gas or the treatment | 0009| of gas during the course of transportation; | 0010| (h) "oil pipeline facilities" means new and existing | 0011| pipeline rights of way and any equipment, facility or | 0012| structure used in the transportation of oil; and | 0013| (I) "intrastate pipeline facilities" means oil pipeline | 0014| facilities or gas pipeline facilities within the state that | 0015| are not gas pipeline facilities subject to the jurisdiction of | 0016| the federal energy regulatory commission pursuant to the | 0017| federal Natural Gas Act or oil pipeline facilities used in the | 0018| transportation of oil in interstate or foreign commerce, | 0019| except that it shall include pipeline | 0020| facilities within the state that transport gas from an | 0021| interstate gas pipeline to a direct sales customer within the | 0022| state purchasing gas for its own consumption." | 0023| | 0024| SUBTITLE H. TEMPORARY PROVISIONS; TRANSFERS; REPEALS; | 0025| DELAYED REPEALS | - 355 - 0001| Sec. 5.010. Except as otherwise provided in this section, on | 0002| January 1, 1999, the commission shall commence operations and | 0003| all personnel and all money, appropriations, records, | 0004| furniture, equipment, supplies and other property belonging to | 0005| the state corporation commission, the insurance board and the | 0006| New Mexico public utility commission shall be transferred to | 0007| the public regulation commission. On January 1, 1999, all | 0008| personnel and all money, appropriations, records, furniture, | 0009| equipment, supplies and other property belonging to the | 0010| attorney general for the provision of legal services to the | 0011| State corporation commission shall be transferred to the | 0012| public regulation commission. | 0013| Sec. 5.011. Except as otherwise provided in this section, on | 0014| January 1, 1999, all existing contracts, agreements and other | 0015| obligations in effect for the state corporation commission, | 0016| the insurance board or the New Mexico public utility | 0017| commission shall be binding on the public regulation | 0018| commission. | 0019| Sec. 5.012. Except as otherwise provided in this section, on | 0020| January 1, 1999, all pending cases, legal actions, appeals and | 0021| other legal proceedings of every description and all pending | 0022| administrative proceedings that involve the state corporation | 0023| commission, the insurance board or the New Mexico public | 0024| utility commission shall be unaffected; the files shall be | 0025| transferred to and shall continue in the name of the public | - 356 - 0001| regulation commission. | 0002| Sec. 5.013. All rules, tariffs, orders and other official | 0003| acts of the state corporation commission, the insurance board | 0004| or the New Mexico public utility commission shall continue in | 0005| effect until amended, replaced or repealed by the public | 0006| regulation commission as required by this Act; provided, | 0007| however, that the public regulation commission shall review | 0008| all rules, tariffs and other official acts of the state | 0009| corporation commission and the public utility commission by | 0010| March 30, 2000 and readopt, amend, replace or repeal them. | 0011| Sec. 5.014. All references in law and any surviving rules, | 0012| tariffs, orders and other official acts of the state | 0013| corporation commission, the insurance board or the New Mexico | 0014| public utility commission shall be construed to be references | 0015| to the public regulation commission. | 0016| Sec. 5.015. On January 1, 1999, all personnel and all money, | 0017| appropriations, records, furniture, equipment, supplies and | 0018| other property belonging to the state fire marshal's office, | 0019| the fire board or the firefighter's training academy of the | 0020| state corporation commission shall be transferred to the | 0021| department of public safety. All existing contracts, | 0022| agreements and other obligations; all appeals and other | 0023| proceedings; all rules and orders; and all references in law | 0024| to the state fire marshal's office, the fire board or the | 0025| firefighter's training academy shall be deemed to be | - 357 - 0001| obligations of or references to the department of public | 0002| safety. | 0003| Sec. 5.016. REPEAL.--Sections 53-1-2 through 53-1-6, 53-3-34, | 0004| 59A-1-6, 59A-2-5 and 59A-2-6, 59A-3-1 through 59A-3-9, 62-5-3 | 0005| et seq., the Public Utility Act insofar as said Act deals with | 0006| the gneration, transmission, distribution, sale, purchase or | 0007| resale of electric power, 62-6-1 through 62-6-3, 62-10-7, 62- | 0008| 10-15, 62-15-29, 63-2-11, 63-2-17, 63-3-3 through 63-3-5, 63- | 0009| 3-9 through 63-3-22, 63-3-24, 63-3-29 through 63-3-32, 63-4-1 | 0010| through 63-4-8, 63-6-1 through 63-6-7, 63-7-2 through 63-7-9, | 0011| 63-7-11 through 63-7-19, 63-8-1 through 63-8-7, 63-9, 9A, 9B, | 0012| 9C, 9D, 9E, 10 and 11, 65-2-118 and 65-2-119 (being Laws 1913, | 0013| Chapter 68, Sections 2 and 3, Laws 1912, Chapter 83, Section | 0014| 18, Laws 1913, Chapter 83, Section 11, Laws 1951, Chapter 93, | 0015| Section 1, Laws 1965, Chapter 292, Secs. 1-19; and Chapter 21, | 0016| Sec. 1-7, Laws 1967, Chapter 96, Sec. 2. under and said Laws | 0017| deal with the generation, transmission, distribution, sale, | 0018| purchase or resale of electric power, Laws of 1985, Chapter | 0019| 242, Laws of 1987, Chapter 21, Laws 1987, Chapter 296, Laws | 0020| 1979, Chapter 390, Section 11, Laws 1984, Chapter 127, | 0021| Sections 6, 23, 24, 35, 36 and 38 through 44, Laws 1941, | 0022| Chapter 84, Section 3, Laws 1977, Chapter 255, Section 121, | 0023| laws 1941, Chapter 84, Sections 4 through 8, 10 through 16, 56 | 0024| and 64, Laws 1939, Chapter 47, Section 29, Laws 1878, Chapter | 0025| 1, Section, 8-23, Laws 1882, Chapter 59, Section 1, Laws 1947, | - 358 - 0001| Chapter 49, Sections 2 and 2, laws 1878, Chapter 1, Section 8- | 0002| 14, Laws 1882, Chapter 60, Sections 1 and 2, Laws 1878, | 0003| Chapter 1, Sections 9-3 and 8-18, Laws 1882, Chapter 59, | 0004| Sections 2 through 7 and 9, Laws 1878, Chapter 1, Section 8- | 0005| 12, Laws 1912, Chapter 62, Sections 1 and 2, Laws 1878, | 0006| Chapter 1, Section 8-13, Laws 1915, Chapter 37, Sections 1 | 0007| through 4, Laws 1921, Chapter 200, Sections 1 through 8, Laws | 0008| 1878, Chapter 1, Sections 9-4 through 9-10, Laws 1912, Chapter | 0009| 78, Sections 2 through 5, Laws 1925, Chapter 19, Section 1, | 0010| Laws 1912, Chapter 78, Sections 6 through 8 and 10 through 18, | 0011| Laws 1955, Chapter 43, Sections 1 through 7, Laws 1965, | 0012| Chapter 292, Sections 12 through 14 and 17, Laws 1985, Chapter | 0013| 242, Sections 13, 15, 17 and 18, Laws 1987, Chapter 296, | 0014| Sections 7, 11 and 12, and Laws 1981, Chapter 358, Sections 39 | 0015| and 40, as amended) are repealed. | 0016| Sec. 5.017. EFFECTIVE DATE.--The effective date of the | 0017| provisions of this act is January 1, | 0018| 1999. | 0019| TABLE OF CONTENTS | 0020| | 0021| TITLE I. GENERAL PROVISIONS APPLICABLE TO ALL ELECTRIC | 0022| PUBLIC UTILITIES, TELECOMMUNICATIONS UTILITIES AND | 0023| TO OTHER REGULATED ENTITIES. . . . . . . . . . . . . . . .2 | 0024| | 0025| SUBTITLE A GENERAL PROVISIONS. . . . . . . .2 | - 359 - 0001| SUBTITLE B ORGANIZATION AND COMMISSION . . .9 | 0002| SUBTITLE C OFFICE OF PUBLIC COUNSEL. . . . 27 | 0003| SUBTITLE D COMMISSION JURISDICTION AND DUTIES33 | 0004| SUBTITLE E RECORDS, REPORTS, INSPECTIONS AND | 0005| SERVICES . . . . . . . . . . . . . . . . . . . . . . . . 39 | 0006| SUBTITLE F SALE OF PROPERTY AND MERGERS. . 44 | 0007| SUBTITLE G RELATIONS WITH AFFILIATED INTEREST45 | 0008| SUBTITLE H JUDICIAL REVIEW . . . . . . . . 46 | 0009| SUBTITLE I VIOLATIONS AND ENFORCEMENT. . . 47 | 0010| SUBTITLE J COMMISSION FINANCING. . . . . . 53 | 0011| SUBTITLE K MISCELLANEOUS PROVISIONS. . . . 55 | 0012| | 0013| TITLE II. ELECTRIC PUBLIC UTILITIES 58 | 0014| | 0015| SUBTITLE A GENERAL PROVISIONS. . . . . . . 58 | 0016| SUBTITLE B ELECTRICAL PLANNING . . . . . . 63 | 0017| SUBTITLE C RATES AND SERVICES. . . . . . . 94 | 0018| SUBTITLE D PROCEEDINGS BEFORE THE COMMISSION100 | 0019| SUBTITLE E CERTIFICATES OF CONVENIENCE AND | 0020| NECESSITY. . . . . . . . . . . . . . . . . . . . . . . .124 | 0021| | 0022| TITLE III TELECOMMUNICATIONS UTILITIES . . . . . . . . .131 | 0023| | 0024| SUBTITLE A GENERAL PROVISIONS. . . . . . .131 | 0025| SUBTITLE B JURISDICTION OF COMMISSION. . .138 | - 360 - 0001| SUBTITLE C RATES AND SERVICES. . . . . . .150 | 0002| SUBTITLE D PROCEEDINGS BEFORE THE COMMISSION155 | 0003| SUBTITLE E CERTIFICATES OF CONVENIENCE AND | 0004| NECESSITY. . . . . . . . . . . . . . . . . . . . . . . .178 | 0005| SUBTITLE F INCENTIVE REGULATION OF | 0006| TELECOMMUNICATIONS | 0007| UTILITIES. . . . . . . . . . . . . .189 | 0008| SUBTITLE G INFRASTRUCTURE. . . . . . . . .190 | 0009| SUBTITLE H COMPETITIVE SAFEGUARDS AND JOINT FEDERAL | 0010| STATE UNIVERSAL SERVICE BOARD. . . .199 | 0011| SUBTITLE I TELECOMMUNICATIONS SERVICE | 0012| ASSISTANCE PROGRAM: TELECOMMUNICATIONS | 0013| INFRASTRUCTURE FUND; UNIVERSAL SERVICE FUND202 | 0014| | 0015| TITLE IV. NATURAL GAS, WATER AND WASTE WATER UTILITIES .222 | 0016| | 0017| | 0018| TITLE V OTHER REGULATED ENTITIES . . . . . . . . . . .222 | 0019| SUBTITLE A STATUTORY ORGANIZATION. . . . .222 | 0020| SUBTITLE B STATE FIRE MARSHAL AND FIREFIGHTERS | 0021| TRAINING ACADEMY . . . . . . . . . .222 | 0022| SUBTITLE C CHANGE OF NAME OF CORPORATION | 0023| COMMISSION . . . . . . . . . . . . . . . . . . . . . . .233 | 0024| SUBTITLE D INSURANCE DIVISION. . . . . . .234 | 0025| SUBTITLE E RAILWAYS AND TRANSPORTATION . .238 | - 361 - 0001| SUBTITLE F AMBULANCE STANDARDS ACT . . . .244 | 0002| SUBTITLE G PIPELINE SAFETY ACT . . . . . .245 | 0003| SUBTITLE H TEMPORARY PROVISIONS; TRANSFERS; | 0004| REPEALS; | 0005| DELAYED REPEALS. . . . . . . . . . .247 |