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

RELATING TO TELECOMMUNICATIONS; CREATING A TELECOMMUNICATIONS INFRASTRUCTURE FUND; MAKING AN APPROPRIATION.

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

Section 1. SHORT TITLE.--This act may be cited as the "Telecommunications Infrastructure Fund Act".

Section 2. LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE.--

A. The development of the telecommunications infrastructure needs of local communities, school districts, educational institutions and health care institutions, including the need for facilities and equipment necessary for high-speed data transmission, is a prerequisite to economic development, distance learning and telemedicine in all areas of the state. Local communities cannot finance these infrastructure needs alone because of inadequate bonding capacity, lag time between development and the generation of revenue and the dependency of economic development on adequate infrastructure. Private telecommunications providers have often been unwilling to provide such infrastructure because the projected return on investment in the infrastructure does not justify the cost over the short term.

B. The legislature finds that, to aid local communities in providing telecommunications infrastructure, an assistance program is needed. The commission should review proposals submitted by state political subdivisions to allocate funding from several sources, including severance tax bonds as approved and issued by the state board of finance, community development block grants from the federal government, proceeds from the private use of state and local telecommunications facilities and such other sources of funding as the legislature may specify from time to time, for financing needed projects for local community telecommunications infrastructure development.

Section 3. DEFINITIONS.--As used in the Telecommunications Infrastructure Fund Act:

A. "commission" means the public regulation commission;

B. "community assistance program" means a program to assist political subdivisions with telecommunications infrastructure development, including:

(1) a grant or loan of funds to political subdivisions;

(2) gathering data about political subdivisions that may include but is not limited to information concerning telecommunications usage and projected demand;

(3) providing technical assistance to analyze the needs and seek solutions to problems related to telecommunications infrastructure development in political subdivisions; and

(4) providing technical assistance in seeking funds from sources other than the commission;

C. "fund" means the telecommunications infrastructure fund;

D. "political subdivision" means any county; incorporated city, town or village; school district; educational institution; or county hospital; and

E. "project" means, except as limited by the constitution of New Mexico, the purchase, construction, installation, lease, gift, grant, reconstruction, improvement, option to purchase or other acquisition of telecommunications equipment and facilities by a political subdivision, including publicly owned poles, towers, wire, cable, conduit, switches, antennae, generators, computer hardware and software and all necessary real and personal property therefor.

Section 4. FUND CREATED--ADMINISTRATION.--

A. There is created in the state treasury the "telecommunications infrastructure fund", which shall be administered by the commission and operated as a separate account. The commission is authorized to establish procedures and adopt rules as required to administer the fund. The commission shall, whenever possible, coordinate application procedures and funding cycles in accordance with the New Mexico Community Assistance Act.

B. The following shall be deposited directly in the fund:

(1) grants from the federal government or its agencies allotted to the state for capitalization of the fund; (2) money appropriated by the legislature to implement the provisions of the Telecommunications Infrastructure Fund Act;

(3) that portion of the net proceeds from the disposition or private use of facilities or equipment funded by a grant under the Telecommunications Infrastructure Fund Act required to be deposited in the fund;

(4) the net proceeds, after the payment or provision for the allocable share of operating expenses, of private use of any telecommunications facilities or equipment owned by the state; and

(5) any other public or private money dedicated to the fund.

C. Money in the fund is appropriated for expenditure by the commission as grants made pursuant to the terms and conditions of the Telecommunications Infrastructure Fund Act.

D. Pursuant to rules adopted by the commission, the commission may impose and collect a fee from each political subdivision that receives a grant from the fund, which fee shall be used solely for the costs of administering the fund.

E. Money not currently needed for the operation of the fund or otherwise dedicated may be invested according to the provisions of Chapter 6, Article 10 NMSA 1978, and all interest earned on such investments shall be credited to the fund. Money remaining in the fund at the end of any fiscal year shall not revert to the general fund but shall accrue to the credit of the fund.

F. The commission shall establish fiscal controls and accounting procedures that are sufficient to ensure proper accounting for fund payments, disbursements and balances and shall provide an annual report and an annual independent audit on the fund to the governor and the legislature.

Section 5. RULES.--

A. The commission, after public hearing, shall adopt rules to provide for:

(1) procedures and forms for making grants under the Telecommunications Infrastructure Fund Act;

(2) documentation to be provided by the proposed grantee to justify the need for the community assistance program;

(3) procedures for review, evaluation and approval of grants;

(4) procedures for reporting by the grantee of programmatic, organizational and financial information necessary for the review, evaluation and approval of a proposed or existing grant;

(5) a guide for the evaluation of the ability and competence of a proposed or existing grantee or its agent to efficiently and adequately provide for the completion and management of the project;

(6) procedures to control the number of applications from each political subdivision; and

(7) such other requirements deemed necessary by the commission to ensure that the state receives the services for which the legislature appropriates money.

B. Rules adopted by the commission shall become effective when filed according to the provisions of the State Rules Act.

Section 6. POWERS OF THE COMMISSION.--In addition to its other powers, the commission shall have all the powers necessary to carry out the purposes and provisions of the Telecommunications Infrastructure Fund Act, including the power to:

A. develop and oversee the administration of community assistance programs;

B. adopt, amend and repeal, in accordance with the provisions of the State Rules Act, all rules necessary to administer and enforce the provisions of the Telecommunications Infrastructure Fund Act;

C. apply to any appropriate agency of the United States for participation in and for receipt of aid from any program designed to assist local community telecommunications infrastructure development;

D. oversee the administration of federal and other funds that are received, controlled or disbursed to carry out the purposes of a community assistance program;

E. coordinate and mobilize assistance and funding resources for the construction, extension or repair of projects;

F. coordinate with, assist and seek input from political subdivisions, community organizations and civic groups;

G. make and enter into all contracts and agreements necessary or incidental to its duties and the execution of its powers under the Telecommunications Infrastructure Fund Act;

H. do any and all things necessary or convenient to carry out its purposes and exercise the powers granted the commission in the Telecommunications Infrastructure Fund Act; and

I. disburse and oversee the administration of any other funds appropriated to the commission in connection with community assistance programs or as directed by the legislature.

Section 7. COMMUNITY ASSISTANCE APPLICATION REQUIREMENTS.--

A. A political subdivision desiring a grant of funds from the commission shall file an application for a grant of funds with the commission that shall contain at least the following:

(1) a general description of the proposed project, the telecommunications needs to be served by the proposed project and of related existing facilities, if any;

(2) a general description of all real estate, if any, necessary for the proposed project;

(3) preliminary plans and other documents necessary to show the type, structure and general character of the proposed project;

(4) an estimate of costs of the proposed project;

(5) a general description of the efforts made by the political subdivision to cause the facilities or equipment involved in the proposed project or their functional equivalent to be provided by private parties;

(6) a general description of the terms of any proposed lease of the facilities or equipment involved in a proposed project or of the management of the facilities or equipment by a private party and a projection of any expected associated costs or revenues;

(7) a general description and statement of value of any property, real or personal, of the political subdivision applied or to be applied to the proposed project;

(8) a statement of cash funds previously applied, or currently held by or on behalf of the political subdivision, that are available for and are to be applied to the proposed project;

(9) evidence of the arrangement made by the political subdivision for the financing of all costs of the proposed project in excess of the requested assistance from the commission;

(10) evidence that the political subdivision or its agent has the organizational and technical competence to utilize the requested funds efficiently; and

(11) evidence that the political subdivision or its agent can properly operate and maintain the proposed project.

B. In deciding whether or not to approve assistance funds, the commission shall consider:

(1) the health, safety and convenience of those to be served by the proposed project;

(2) the availability of other means of providing for the proposed project or its functional equivalent or of otherwise meeting the needs the proposed project is expected to address;

(3) the needs of other political subdivisions for telecommunications infrastructure development funding;

(4) the extent to which the proposed project involves innovative use of telecommunications technology;

(5) the extent to which the proposed project would provide improved connectivity among telecommunications carriers;

(6) the extent to which the proposed project would provide improved connectivity among communities;

(7) the extent to which the proposed project would stimulate demand for advanced telecommunications services;

(8) the extent to which the proposed project is likely to generate significant gains in economic development, health care, education or public services; and

(9) other sources of funds available to the political subdivision to fund the proposed project.

C. All approved action shall be by vote of a majority of the members of the commission.

D. The commission shall, upon a decision to grant assistance funds to a political subdivision, notify all appropriate state agencies of the project and request that they monitor it to ensure that all statutes, rules and regulations are complied with and that appropriate standards are maintained.

Section 8. OWNERSHIP.--Upon completion of the project, ownership of the related facilities, equipment and other real and personal property, if acquired, constructed or installed with proceeds of a grant under the Telecommunications Infrastructure Fund Act, shall reside with the political subdivision that undertook the project.

Section 9. FACILITIES' PROCEEDS.--One-half of the net proceeds of any disposition, by lease, sale or otherwise, or private use of any facilities or equipment funded by a grant under the Telecommunications Infrastructure Fund Act shall be paid to the commission by the political subdivision that owns the facilities or equipment for deposit in the fund within thirty days after receipt by the political subdivision. Net proceeds of a lease or sale are the gross proceeds less any expenses incurred by the political subdivision in connection with such sale or lease. Net proceeds of private use are the gross proceeds less any operating expenses incurred by the political subdivision. The remaining proceeds of any disposition or private use may be used by the political subdivision for any lawful purpose.

Section 10. ASSISTANCE BY STATE AGENCIES.--

A. Upon request of the commission, a state agency is authorized and empowered to temporarily assign to the commission such officers and employees as it may deem necessary from time to time to assist the commission in carrying out its functions and duties under the Telecommunications Infrastructure Fund Act. The officers and employees so assigned shall not lose their status or rights as public employees.

B. Upon request of the commission, any state agency, or officer or employee thereof, is authorized and empowered to lend technical assistance, render advice and attend meetings with members and employees of the commission as the commission may require in carrying out its functions and duties under the Telecommunications Infrastructure Fund Act.

Section 11. APPROPRIATION.--Ten million dollars ($10,000,000) is appropriated from the general fund to the telecommunications infrastructure fund for expenditure in fiscal year 2001 and subsequent fiscal years to implement the provisions of the Telecommunications Infrastructure Fund Act. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.