HOUSE BUSINESS AND INDUSTRY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 281

47th legislature - STATE OF NEW MEXICO - first session, 2005

AN ACT

RELATING TO TELECOMMUNICATIONS; PROVIDING CONDITIONS FOR ACCESS BY A TELECOMMUNICATIONS PROVIDER ON COMMERCIAL PRIVATE PROPERTY FOR USE BY A TENANT.

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] PURPOSES--DISCRIMINATION PROHIBITED--CONDITIONS--ENFORCEMENT.--

          A. The purposes of this section are to:

                (1) provide for the nondiscriminatory treatment of public telecommunications service providers by owners of commercial private properties upon tenants' requests;

                (2) promote the rights of consumers of public telecommunications services;

                (3) encourage competition for public telecommunications services; and

                (4) encourage investment in telecommunications infrastructure.

          B. When carrying out the purposes of this section, this section shall be liberally interpreted.

          C. A commercial private property owner shall not:

                (1) prevent or otherwise interfere with the installation of a telecommunications service facility by a public telecommunications service provider for use by a tenant on the owner's commercial private property;

                (2) discriminate in the terms, conditions or compensation imposed for the installation of a telecommunications service facility by a public telecommunications service provider or use of such facility by a tenant on the owner's commercial private property;

                (3) demand or accept an unreasonable payment from a tenant or a public telecommunications service provider for allowing the provider access to the owner's commercial private property; or

                (4) discriminate in favor of or against a tenant, including rental charge discrimination, because of the tenant's choice of public telecommunications service provider from which the tenant receives a public telecommunications service.

          D. A commercial private property owner may:

                (1) impose a condition on the public telecommunications service provider that is reasonably necessary to protect:

                     (a) the safety, security, appearance or condition of the commercial private property; or

                     (b) the safety or convenience of other persons;

                (2) impose a reasonable limitation on the time at which the public telecommunications service provider may have access to the commercial private property to install and perform routine maintenance on a telecommunications service facility; provided, however, that the public telecommunications service provider shall have continual, uninterrupted, twenty-four-hour-per-day access to perform repairs to a telecommunications service facility in the event of a service interruption;

                (3) impose a reasonable limitation on the number of public telecommunications service providers that have access to the owner's commercial private property, if the owner can demonstrate a space constraint that requires the limitation;

                (4) require the tenant or the public telecommunications service provider to agree to indemnify the owner for damage to the owner's commercial private property caused by the installation, operation or removal of a telecommunications service facility;

                (5) require the tenant or the public telecommunications service provider to bear the cost of the installation, operation or removal of a telecommunications service facility; and

                (6) require the public telecommunications service provider to pay compensation for access to and use of the owner's commercial private property that is reasonable and does not discriminate among providers.

          E. Notwithstanding any other law, the commission has the power and authority to enforce this section.

          F. In considering whether compensation demanded by a commercial private property owner is reasonable, the commission shall consider the costs to the property owner of permitting installation of a telecommunications service facility on the owner's property.

          G. For purposes of this section:

                (1) "commercial private property" is real property and improvements or any portion thereof, but "commercial private property" does not include property owned by a governmental agency or property used as a permanent residence;

                (2) "private property owner" means

                     (a) a person other than a governmental agency holding fee simple title to real property and improvements to commercial private property; or

                     (b) an agent, representative, employee or assignee of the fee simple title holder in matters related to the use of such commercial private property;

                (3) "public telecommunications service provider" means a person that provides public telecommunications service and the agents, subcontractors and representatives of that provider; and

                (4) "telecommunications service facility" means all property used in connection with the provision of telecommunications service.

          H. Appeals from any order made by the commission pursuant to this section shall be subject to review by appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978. Any person or entity whose rights may be directly affected by the appeal may appear and become a party, or the district court may, upon proper notice, order any person or entity to be joined as a party."

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