SENATE BILL
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
Michael Padilla
AN ACT
RELATING TO TELECOMMUNICATIONS; REQUIRING THE ADOPTION OF RULES TO REDUCE AND PROMOTE THE PARITY OF REGULATION FOR THE TELECOMMUNICATIONS INDUSTRY AND ENCOURAGE A BROADBAND-FOCUSED COMPETITIVE TELECOMMUNICATIONS MARKET; PROHIBITING INDIVIDUAL CONTRACTS FOR TELECOMMUNICATIONS SERVICES TO BE OFFERED ON MATERIALLY DIFFERENT TERMS TO SIMILARLY SITUATED CUSTOMERS WITHOUT CERTAIN PERMISSIONS; CHANGING A MEASURE FOR THE CALCULATION OF A PRESUMPTION OF EFFECTIVE COMPETITION FOR REGULATED TELECOMMUNICATION SERVICES; REPLACING THE APPLICATION PROCESS FOR INDIVIDUAL SERVICE CONTRACTING WITH A TWO-YEAR REQUIREMENT TO RETAIN SUCH CONTRACTS ON FILE; ADDING INFORMATION TO BE INCLUDED IN THE TRIENNIAL REPORTING BY THE PUBLIC REGULATION COMMISSION; REPEALING SECTION 63-9A-2 NMSA 1978 (BEING LAWS 1985, CHAPTER 242, SECTION 2, AS AMENDED BY LAWS 2000, CHAPTER 100, SECTION 3 AND BY LAWS 2000, CHAPTER 102, SECTION 3).
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 63-9A-5 NMSA 1978 (being Laws 1985, Chapter 242, Section 5, as amended) is amended to read:
"63-9A-5. REGULATION BY COMMISSION.--
A. Except as otherwise provided in the New Mexico Telecommunications Act, each public telecommunications service is declared to be affected with the public interest and, as such, subject to the provisions of that act, including the regulation thereof as provided in that act.
B. The commission has exclusive jurisdiction to regulate incumbent local exchange carriers that serve fifty thousand or more access lines within the state only in the manner and to the extent authorized by the New Mexico Telecommunications Act, and Subsection B of Section 63-7-1.1 NMSA 1978 does not apply; provided, however, that the commission's jurisdiction includes the regulation of wholesale rates, including access charges and interconnection agreements consistent with federal law and its enforcement and determinations of participation in low-income telephone service assistance programs pursuant to the Low Income Telephone Service Assistance Act. [The New Mexico Telecommunications Act expressly preserves and does]
C. On or before December 31, 2021, the commission shall adopt rules to accelerate a transition away from a regulated telecommunications industry and encourage a broadband-focused competitive market; provided that the adopted rules preserve and do not diminish or expand:
(1) the rights and obligations of any entity, including the commission, established pursuant to federal law, including 47 U.S.C. Sections 251 and 252, or established pursuant to any state law, rule, procedure, regulation or order related to interconnection, intercarrier compensation, intercarrier complaints, wholesale rights and obligations or any wholesale rate or schedule that is filed with and maintained by the commission;
(2) the rights and obligations of any competitive telecommunications service provider holding a certificate of public convenience and necessity, or the rights and obligations of any competitive local exchange carrier to obtain such a certificate;
(3) the authority of the commission to resolve consumer complaints regarding basic local exchange service; provided, however, that the commission's authority to resolve such complaints shall be limited to resolving issues of consumer protection and shall not include the authority to determine or fix rates, provider of last resort obligations or service quality standards except as expressly set forth in the New Mexico Telecommunications Act;
(4) the authority of the commission to establish reasonable and competitively neutral quality of service standards for local exchange service; provided, however, that the enforcement of such standards shall be limited to the commission's fining authority set forth in Section 63-7-23 NMSA 1978 and the authority to seek an injunction set forth in Section 63-9-19 NMSA 1978;
(5) the rights and obligations of any entity, including the commission, regarding the fund;
(6) the rights and obligations of any entity, including the commission, regarding access to emergency service to the extent consistent with the Enhanced 911 Act; or
(7) the rights and obligations of any entity, including the commission, regarding the administration of slamming and cramming rules, telecommunications relay service and numbering resources to the extent permitted by and consistent with federal law.
[C.] D. For incumbent local exchange carriers that serve fifty thousand or more access lines within the state, the commission shall adopt relaxed [regulations] rules that provide for:
(1) reduced regulation compared to the level of regulation that applied to that carrier as of January 1, 2017;
(2) reduced filing requirements for applicants in rate increase proceedings under the New Mexico Telecommunications Act; and
[(2)] (3) expedited consideration in all proceedings initiated pursuant to the New Mexico Telecommunications Act in order to reduce the cost and burden for incumbent local exchange carriers and other applicants.
[D. The regulatory requirements and the commission's regulation of competitive]
E. Except for the regulation of rates pursuant to rules adopted in accordance with Section 63-9A-8.1 NMSA 1978 and rules adopted pursuant to the Rural Telecommunications Act of New Mexico, no local exchange [carriers, competitive access providers and interexchange carriers shall be no greater than, and no more extensive than, that of incumbent] carrier shall be placed under greater or more extensive regulatory requirements than any other local exchange [carriers that serve fifty thousand or more access lines] carrier.
[E.] F. The provisions of the New Mexico Telecommunications Act do not apply to incumbent rural telecommunications carriers."
SECTION 2. Section 63-9A-8 NMSA 1978 (being Laws 1985, Chapter 242, Section 8, as amended) is amended to read:
"63-9A-8. REGULATION OF RATES AND CHARGES--EFFECTIVE COMPETITION.--
A. In accordance with the policy established in the New Mexico Telecommunications Act, the commission shall, by its own motion or upon petition by any interested party, hold hearings to determine if any public telecommunications service is subject to effective competition in the relevant market area. When the commission has made a determination that a service or part of a service is subject to effective competition, the commission shall, consistent with the purposes of the New Mexico Telecommunications Act [modify], reduce or eliminate rules, regulations and other requirements applicable to the provision of each such service, including the fixing and determining of specific rates, tariffs or fares for the service. The commission's action may include the detariffing of service or the establishment of minimum rates that will cover the costs for the service. Such modification shall be consistent with the maintenance of the availability of access to local exchange service at affordable rates and comparable message telecommunications service rates, as established by the commission, for comparable markets or market areas, except that volume discounts or other discounts based on reasonable business purposes shall be permitted. [Upon petition or request of an affected telecommunications company] The commission [upon a finding that the requirements of Subsection B of this section are met] shall also modify the same or similar retail regulatory requirements for [those] all providers of comparable public telecommunications services in the same relevant markets so that there shall be parity of retail regulatory standards and requirements for all such providers; provided, however, that this subsection shall not be construed to permit the adoption of any new regulatory requirements or standards for providers of comparable telecommunications services.
B. In determining whether a service is subject to effective competition, the commission shall consider the following on a wire center serving area basis for each wire center serving area and service for which such a determination [of effective competition] is requested [and separate determinations shall be made for residential and business services in each wire center serving area]:
(1) the extent to which services are reasonably available from alternate providers;
(2) the ability of alternate providers to make functionally equivalent or substitute services readily available at competitive rates, terms and conditions;
(3) existing economic, technological, regulatory or other barriers to market entry and exit;
(4) the number of other providers offering the same or reasonably comparable services;
(5) the presence of at least two facilities- based competitors, including without limitation facilities-based providers of wireless or voice over internet protocol services, operating in all or part of the wire center serving area for which a determination of effective competition is requested that are unaffiliated with the petitioning carrier and provide the same or reasonably comparable service of the type for which the finding of effective competition is sought;
(6) the ability of the petitioning provider to affect prices or deter competition; and
(7) such other factors as the commission deems appropriate.
C. [If, in the] In a proceeding pursuant to Subsection B of this section for a wire center serving area for which a determination of effective competition is requested and where the incumbent local exchange carrier provides basic local exchange service either separately or bundled to less than one-half of the [customer locations where such service is available at the time the petition is filed] housing units and business firms as determined by the latest federal decennial census, using a centroid method where a given census block is allocated to the wire center serving area in which the geographic center of the census block is located, the public interest requires that effective competition be presumed for all regulated telecommunications services provided by the incumbent provider in that wire center serving area; provided, however, that findings and presumptions applied pursuant to this section shall be made [separately] in the aggregate for residential and business services and customer locations combined.
D. No provider of public telecommunications service may use current revenues earned or expenses incurred in conjunction with any noncompetitive service to subsidize competitive public telecommunications services. In order to avoid cross-subsidization of competitive services by noncompetitive telecommunications services, prices or rates charged for a competitive telecommunications service shall cover the cost for the provision of the service consistent with the provisions of Subsection G of Section 63-9A-8.1 NMSA 1978. In any proceeding held pursuant to this section, the party claiming that the price for a competitive telecommunications service does not cover the cost shall bear the burden of proving that the prices charged for competitive telecommunications services do not cover cost; provided, however, that the commission may require the telecommunications company against whom the complaint is filed to submit a cost study for the service that is the subject of the complaint as part of its examination and determination of the complaint.
E. The commission may, upon its own motion or on the petition of an interested party and after notice to all interested parties and customers and a hearing, reclassify any service previously determined to be a competitive telecommunications service if after a hearing the commission finds that a service is not subject to effective competition.
F. If a wire center [service] serving area is deregulated pursuant to a determination of effective competition, for those wire center [service] serving areas where that service is deregulated, the petitioning telecommunications company shall no longer be eligible to claim an exemption from the application of the Unfair Practices Act or the Antitrust Act."
SECTION 3. Section 63-9A-9 NMSA 1978 (being Laws 1985, Chapter 242, Section 9, as amended) is amended to read:
"63-9A-9. REGULATION OF INDIVIDUAL CONTRACTS TO FACILITATE COMPETITION.--
A. In accordance with the provisions of this section, the commission shall regulate the rates, charges and service conditions for individual contracts for public telecommunications services in a manner that facilitates effective competition and shall authorize the provision of all or any portion of a public telecommunications service under stated or negotiated terms to any person or entity that has acquired or is preparing to acquire, through construction, lease or any other form of acquisition, similar public telecommunications services from an alternate source.
B. [At any time, the] A provider of public telecommunications services [may file a verified application with the commission for authorization] shall retain a copy of any contract or agreement permitted pursuant to this section to provide a public telecommunications service on an individual contract basis [The application shall describe the telecommunications services to be offered, the party to be served and the parties offering the service, together with such other information and in such form as the commission may prescribe. Such additional information shall be reasonably related to the determination of the existence of a competitive offer. A determination of effective competition pursuant to Section 63-9A-8 NMSA 1978 shall not be necessary to file an application or to have an application granted by the commission pursuant to this section.
C. The commission shall approve or deny any such application within ten days or such other period as shall be established by the commission, not to exceed sixty days, giving consideration to the requirements of any contract negotiations. If the commission has not acted on any application within the time period established, the application shall be deemed granted] for a minimum of two years after the contract or agreement is expired or terminated.
C. The commission shall deny [the application] an individual contract only upon a finding that [the application fails to set forth prescribed information or that] the subject or comparable services are not being offered to the customer by other parties [other than the applicant] or that the contract fails to cover the costs of the service, as provided in Subsection G of Section 63-9A-8.1 NMSA 1978.
D. No provider of telecommunications services shall use individual contracts permitted pursuant to this section to offer services on materially different terms and conditions than the provider would make available to other similarly situated customers, unless otherwise permitted by law or the commission.
[D. The] E. Upon a request by the commission, a telecommunications company shall file with the commission the final contract or other evidence of the service to be provided, together with the charges and other conditions of service [upon request by the commission]. If such contract or evidence is requested, it shall be maintained by the commission on a confidential basis subject to an appropriate protective order. Any interested party may receive copies of filings made pursuant to this section upon request to the commission and execution of an appropriate confidentiality agreement, if applicable."
SECTION 4. Section 63-9A-21 NMSA 1978 (being Laws 2017, Chapter 71, Section 7) is amended to read:
"63-9A-21. COMMISSION REVIEW OF IMPACTS.--
A. The commission shall review the impact of provisions of the New Mexico Telecommunications Act on residential and business consumers in urban and rural areas of the state every three years, the first review to be completed by July 31, 2019, and shall report its findings to the legislature. The review shall investigate the impact on rates, service quality, incumbent local exchange carrier employment, investment in telecommunications infrastructure and the availability and deployment of high speed data services. The review shall also include a report on:
(1) the steps the commission has taken to implement parity of regulation among local exchange carriers consistent with the purposes of the New Mexico Telecommunications Act;
(2) those wire center serving areas that have been deemed to have effective competition; and
(3) any wire centers no longer subject to carrier of last resort obligations.
B. For any wire center serving an area deregulated pursuant to the provisions of Section 63-9A-8 NMSA 1978, if the commission finds that reregulation of basic local exchange service is necessary to protect the public interest following a hearing and findings of fact and conclusions of law, after July 31, 2021, the commission shall regulate basic local exchange service pursuant to the New Mexico Telecommunications Act."
SECTION 5. REPEAL.--Section 63-9A-2 NMSA 1978 (being Laws 1985, Chapter 242, Section 2, as amended by Laws 2000, Chapter 100, Section 3 and by Laws 2000, Chapter 102, Section 3) is repealed.