44th legislature - STATE OF NEW MEXICO - second session, 2000

RELATING TO TELECOMMUNICATIONS; PROVIDING FOR INTERCONNECTION AMONG PROVIDERS OF TELECOMMUNICATIONS SERVICES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of the New Mexico Telecommunications Act is enacted to read:

"[NEW MATERIAL] INTERCONNECTION AMONG PROVIDERS--DEFINITIONS--AUTHORITY OF COMMISSION--COMPLAINTS--PROCEDURE--PENALTIES.--

A. As used in this section:

(1) "controlling carrier" means a provider of telecommunications service that owns or controls facilities, including required facilities;

(2) "facility" means private property, whether real or personal, tangible or intangible, that is or could be used to provide basic local exchange service and includes proprietary software and any feature, function or element of a controlling carrier's telecommunications network; and

(3) "required facility" means a facility without which, or without access to which, the ability of a telecommunications services provider to provide basic local exchange service would be impaired.

B. Consistent with the federal Telecommunications Act of 1996, the commission shall establish minimum service quality standards governing the provision of wholesale, interconnection, transport and termination services by a controlling carrier.

C. A controlling carrier shall not:

(1) discriminate against another provider of telecommunications services by unreasonably refusing or delaying access to or interconnection with the controlling carrier's facilities;

(2) discriminate against another provider of telecommunications services by providing access to required facilities on terms or conditions less favorable than those the controlling carrier provides to itself and its affiliates;

(3) unreasonably degrade or impair the speed, quality or efficiency of access or any other service, product or facility provided to another provider of telecommunications services;

(4) fail to disclose in a timely and uniform manner, upon reasonable request and pursuant to a protective agreement concerning proprietary information, all information reasonably necessary for the design of network interface equipment, services or software that will meet the specifications of the controlling carrier's local exchange network;

(5) use basic exchange rates directly or indirectly to subsidize or offset the cost of other products or services offered by the controlling carrier;

(6) discriminate in favor of itself or an affiliate in the provision and pricing of, or extension of credit for, any telecommunications service;

(7) fail to provide a service, product or facility in accordance with applicable contracts and with applicable tariffs and rules of the commission;

(8) impose unreasonable discriminatory restrictions on network elements or the resale of its services; or

(9) provide telecommunications service to a person acting as a telecommunications provider if the commission has ordered the controlling carrier to discontinue telecommunications service to such person.

D. To the extent a service of a controlling carrier is used by another carrier to provide services to customers of the other carrier, prices for wholesale services and unbundled networks elements, including access, shall be set by the commission and shall be based upon the long-run incremental or marginal cost of each service. For services that are or were regulated by the commission according to the traditional rate-of-return regulation, the commission shall conduct a proceeding in which, after determining and establishing the appropriate and relevant costs of providing each service, the commission shall explicitly set the wholesale price for each service at or above cost.

E. Prices for retail service shall be subject to a price test by the commission to ensure that individual services or packages of services do not fall below wholesale prices or prices charged for unbundled network elements included in the services. The commission shall not allow the minimum prices for retail services for end users to be set lower than the wholesale rate that competitive local exchange providers pay for the unbundled network elements that make up those retail services.

F. Geographic deaveraging of tariffed retail prices for telecommunications services shall be permitted so long as it is accompanied by simultaneous and proportionate deaveraging of the prices of the unbundled network elements that make up those services. The commission shall not allow deaveraging of prices for retail services until the commission allows the deaveraging of the wholesale rates that competitive local exchange providers pay for the unbundled network elements that make up the retail services.

G. A complaint alleging a violation of this section or of standards adopted by the commission pursuant to this section shall be filed with the commission and heard by the commission or, at the commission's discretion, by a hearing officer designated by the commission.

H. Before taking action upon an alleged violation of service quality standards, the commission shall give the respondent an opportunity to demonstrate that the violation resulted from the failure of a person providing telecommunications interconnection service to meet that person's interconnection obligations.

I. A hearing on a complaint under this section shall be conducted in an expedited manner consistent with the following:

(1) the complaint shall be served upon the respondent and filed with the commission;

(2) an answer or other responsive pleading to the complaint shall be filed with the commission not more than ten days after receipt of the complaint, and copies of the answer or responsive pleading shall be served upon the complainant and upon the commission;

(3) a prehearing conference shall be held not later than fifteen days after the complaint is filed. Hearing on the complaint shall commence not later than thirty days after the complaint is filed. Within forty-five days after the complaint is filed, the commission shall either prepare a final decision or approve as final the decision of the hearing officer. The final decision shall be issued as an order of the commission;

(4) if the commission or hearing officer finds that a violation of this section has occurred, the commission shall, within five business days, order the violator to remedy the violation within a specified period of time. The commission may prescribe specific action to be taken by the violator, including submitting a plan for preventing future violations. The commission shall review and approve or disapprove the plan;

(5) if the violation continues beyond the time period specified in the commission's order, the commission on its own motion or upon the motion of an interested party may impose penalties on the violator. The commission may order penalties to be in the form of bill credits to the telecommunications provider whose service and customers were affected;

(6) if the violator does not meet the goals of its improvement plan within six months or if the plan is disapproved by the commission, additional penalties may be assessed against the violator;

(7) except as provided in Paragraph (8) of this subsection, a telecommunications provider shall be liable for a sum of not less than five hundred dollars ($500) nor more than fifty thousand dollars ($50,000) for each time that the carrier:

(a) violates any provision of this section;

(b) commits any act prohibited by the commission or fails to perform any duty enjoined upon the carrier by the commission pursuant to this section;

(c) fails to obey any lawful requirement or order made by the commission pursuant to this section; or

(d) fails to obey a judgment or decree made by a court upon the application of the commission pursuant to this section; and

(8) the total annual penalties imposed on a telecommunications provider under this section shall not exceed two percent of the provider's gross intrastate revenue from the sale of telecommunications services for the calendar year preceding the year in which the penalties are assessed."

Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2000.