New Mexico Register / Volume XXXV, Issue 5 / March 12, 2024
TITLE 17 PUBLIC UTILITIES AND UTILITY SERVICES
CHAPTER 11 TELECOMMUNICATIONS
PART 10 STATE
RURAL UNIVERSAL SERVICE FUND
17.11.10.1 ISSUING AGENCY: New Mexico Public Regulation Commission.
[17.11.10.1 NMAC -
Rp, 17.11.10.1 NMAC, 3/12/2024]
17.11.10.2 SCOPE: This rule applies to all entities that
provide intrastate retail public telecommunication services and comparable
retail alternative services in New Mexico.
[17.11.10.2 NMAC -
Rp, 17.11.10.2 NMAC, 3/12/2024]
17.11.10.3 STATUTORY AUTHORITY: Sections 62-19-9 and 63-9H-6, NMSA 1978.
[17.11.10.3 NMAC - Rp,
17.11.10.3 NMAC, 3/12/2024]
17.11.10.4 DURATION: Permanent.
[17.11.10.4 NMAC -
Rp, 17.11.10.4 NMAC, 3/12/2024]
17.11.10.5 EFFECTIVE DATE: March 12, 2024, unless a later date is cited
at the end of a section.
[17.11.10.5 NMAC -
Rp, 17.11.10.5 NMAC, 3/12/2024]
17.11.10.6 OBJECTIVE: The purpose of this rule is to provide
procedures for administering and implementing the New Mexico state rural
universal service fund to maintain and support universal service provided by
telecommunications carriers that have been designated as eligible
telecommunications carriers.
[17.11.10.6 NMAC -
Rp, 17.11.10.6 NMAC, 3/12/2024]
17.11.10.7 DEFINITIONS: In addition to the definitions contained in
Section 63-9H-3, NMSA 1978, as used in this rule:
A. Definitions beginning
with “A”:
(1) Access line means a dial tone line, or its functional equivalent, that provides
local exchange service from a carrier’s switching equipment to a point of
termination at the customer’s network interface, and is not limited to wireline
or any other technology; for the purposes of this rule, an access line does not
include official lines, unbundled network elements/platforms, retail resale,
wholesale resale, special access lines and private lines.
(2) Administrator means the person
designated by the commission to administer the fund.
(3) Area underserved by broadband means a
broadband program proposed project area
where fifty percent
or more of households and businesses, in the aggregate, have access to
broadband service offering speeds of at least 25/3 Mbps but lower than 100/20
Mbps (download/upload). A household has
access to broadband service if the household can subscribe within 10 business
days of a request.
(4) Area unserved by broadband means a broadband program proposed project area
where seventy-five
percent or more of the households lack access to broadband service offering
speeds of at least 25/3 Mbps (download/upload).
A household has access to broadband service if the household can subscribe
to that service within 10 business days of a request.
B. Definitions
beginning with “B”:
(1) Basic local exchange rate means an incumbent local exchange carrier’s
tariffed, monthly, flat single-line rate charged to its retail customers for
the provision of local exchange service; for the purposes of this rule, the
“residential” and “business” basic local exchange rates shall include any
commission-mandated subscriber line charges or extended area service charges.
(2) Broadband internet access service
means a mass-market retail service by wire, wireless or other technology that
provides the capability to transmit data to and receive data from all or
substantially all Internet endpoints including any capabilities that are
incidental to and enable the operation of the communications service, or a
functionally equivalent service, but excluding dial-up internet access
service. For purposes of this rule,
broadband internet access service means a service transmission speed of 25.0
Mbps download/3.0 Mbps upload.
(3) Broadband office means the office of
broadband access and expansion.
C. Definitions beginning with “C”:
(1) Carrier
means an entity that provides intrastate retail public telecommunications
services or comparable retail alternative services in New Mexico.
(2) Commercial mobile radio service
(CMRS) means a designation by the federal communications commission for any
carrier or licensee whose wireless network is connected to the public switched
telephone network or is operated for profit.
(3) Commission means the New Mexico public regulation commission.
(4) Communication connection means a
voice-enabled telephone access line, wireless voice connection, unique voice
over internet protocol service connection, or other uniquely identifiable
functional equivalent as determined by the commission.
(5) Contributing company means any
carrier that provides intrastate retail public telecommunications services or
comparable retail alternative services in New Mexico.
(6) Council means
the connect New Mexico council, as defined in Section 63-9K-3 NMSA 1978.
D. Definitions beginning with “D”: [RESERVED]
E. Definitions beginning with “E”:
(1) Eligible
telecommunications carrier (ETC) means a
carrier with New Mexico operations that has been designated as eligible to
receive disbursements from the fund or from the federal universal service fund,
or both, for a designated service area determined by the commission.
(2) Exempt customer means an end-user of telecommunications service
that is the state of New Mexico, a county, a municipality or other governmental
entity; a public school district; a public institution of higher education; an
Indian nation, tribe, or pueblo; a Native American customer who resides on
tribal or pueblo land; a private telecommunications network; or a person
eligible to receive reduced rates under a low-income telephone assistance plan
created by the federal government or the state of New Mexico.
F. Definitions
beginning with “F”:
(1) FCC means the federal communications commission.
(2) Fund means
the state of New Mexico universal service fund established pursuant to Section
63-9H-6, NMSA 1978 and this rule.
G. Definitions beginning with “G”: [RESERVED]
H. Definitions beginning with “H”: [RESERVED]
I. Definitions beginning with “I”:
(1) Imputed benchmark revenue means the difference between the affordability
benchmark rates established by the commission pursuant to this rule and the
carrier’s basic local exchange residential and business rates as of July 1,
2014, multiplied by the number of basic local exchange residential and business
access lines served by the carrier as of December 31 of the year that precedes
the year during which the revenue requirement is being determined pursuant to
Subparagraph E of 17.11.10.19 NMAC; imputed benchmark revenue shall not be less
than zero.
(2) Interexchange
carrier (IXC) means an entity that provides
intrastate toll services in New Mexico.
(3) Intrastate
retail public telecommunications services means
services including, but not limited to, all types of local exchange service;
non-basic, vertical or discretionary services, also known as advanced features,
or premium services, such as, but not limited to, call waiting, call
forwarding, and caller identification (ID); listing services; directory
assistance services; cellular telephone and paging services; commercial mobile
radio services; personal communications services (PCS); both optional and
non-optional operator services; wide area telecommunications services (WATS)
and WATS-like services; toll-free services; 900 services and other
informational services; message telephone services (MTS) or toll; CENTREX, centron and centron-like
services; video conferencing and teleconferencing services; the resale of
intrastate retail public telecommunications services; payphone services;
services that provide telecommunications through a New Mexico telephone number
using voice over internet protocol (VOIP) or comparable technologies; any
services regulated by the commission; and such other services as the commission
may by order designate from time to time as equivalent or similar to the
services listed above, without regard to the technology used to deliver such
services.
(4) Intrastate
retail public telecommunications services revenue
means the revenue collected from the sale of intrastate telecommunications
services to end users; for voice over internet protocol (VOIP) and similar
services, the portion of total retail revenues attributable to intrastate
retail telecommunications shall be equal to the proportion of calls originating
and terminating in New Mexico to all calls originating in New Mexico.
(5) Intrastate
switched access charge means a charge levied
by a carrier for the availability and use of its facilities for origination and
termination of intrastate interexchange calls as contained in tariffs approved
by the commission.
J. Definitions beginning with “J”: [RESERVED]
K. Definitions beginning with “K”: [RESERVED]
L. Definitions beginning with “L”: Local
exchange carrier (LEC) means an entity
certificated to provide local exchange service in New Mexico.
M. Definitions beginning with “M”: [RESERVED]
N. Definitions beginning with “N”: New
Mexico operations means intrastate retail
public telecommunications services and comparable retail alternative services
provided in New Mexico.
O. Definitions beginning with “O”: [RESERVED]
P. Definitions beginning with “P”: [RESERVED]
Q. Definitions beginning with
“Q.”: [RESERVED]
R. Definitions beginning with “R”: Rural area means:
(1) any unincorporated area or;
(2) any city, town
or incorporated area with a population of 20,000 or less as reflected in the
most recent decennial United States census together with any applicable Tribal
census.
S. Definitions beginning with “S”:
(1) Service area means a geographic area
established by the commission in accordance with Section 214(e)(5) of the
federal act (47 U.S.C. Section 214(e)(5).
(2) State rural universal service fund
(SRUSF) means the state of New Mexico universal service fund established
pursuant to Section 63-9H-6, NMSA 1978 and this rule.
(3) Statewide
broadband plan means a plan for the development and expansion of
broadband infrastructure and services throughout the state as developed by the
New Mexico office of broadband access and expansion.
T. Definitions beginning with “T”:
[RESERVED]
U. Definitions beginning with “U”: Universal service means basic local exchange service and comparable retail alternative
services at affordable rates, service pursuant to a low-income telephone
assistance plan, and broadband internet access service to unserved and
underserved areas of New Mexico as determined by the commission.
V. Definitions beginning with “V”: [RESERVED]
W. Definitions beginning with “W”: [RESERVED]
X. Definitions beginning with “X”: [RESERVED]
Y. Definitions beginning with “Y”: [RESERVED]
Z. Definitions beginning with “Z”: [RESERVED]
[17.11.10.7 NMAC -
Rp, 17.11.10.7 NMAC, 3/12/2024]
17.11.10.8 REDUCTION OF INTRASTATE SWITCHED ACCESS CHARGES: The
commission may, upon motion of a carrier or the administrator, or upon the
commission’s own motion, authorize further intrastate switched access charge
reductions for a carrier to correspond to any changes in that carrier’s
tariffed interstate switched access service charge rates, elements
or structure subsequent to January 1, 2006.
[17.11.10.8 NMAC -
Rp, 17.11.10.8 NMAC, 3/12/2024]
17.11.10.9 AFFORDABILITY BENCHMARK RATES:
A. Effective January 1, 2020, unless changed by the
commission in a proceeding pursuant to Subsection B of 17.11.10.09 NMAC, the
residential and business affordability benchmark rates to be utilized in
determining the level of support available from the fund are as follows:
(1) the
residential benchmark rate for basic local exchange service shall be $18.00;
except that the commission may on its own motion and at any time conduct a
review of the residential benchmark rate and change it accordingly, as per
Subsection B of 17.11.10.9 NMAC;
(2) the business benchmark rate for basic
local exchange service shall be carrier-specific and shall be equal to the
business basic exchange rate of each local exchange carrier as of January 1,
2020;
(3) each
local exchange carrier shall, on or before May 1 of each year, advise the
commission and the administrator in writing of its residential and business
basic local exchange rates to be in effect on July 1 of that year and how they
were determined;
(4) increases
in the residential basic local exchange rates of incumbent rural
telecommunications carriers toward the residential benchmark rate established
in this section shall be implemented by timely filing of tariff revisions with
the commission and shall be effective after 10 days’ notice to the carrier’s
customers and the commission;
B. The commission
may conduct a proceeding to establish new
affordability benchmark rates upon its own motion.
[17.11.10.9 NMAC -
Rp, 17.11.10.9 NMAC, 3/12/2024]
17.11.10.10 SELECTION OF ADMINISTRATOR:
The commission will designate a third-party administrator who will be
subject to the supervision and control of the commission for a four-year
term. The administrator shall perform services
under the terms of a written contract to be entered into between the commission
and the administrator. The commission
shall procure the services of a subsequent administrator before the expiration
of the term of each such contract, or in the event of early termination of such
contract, as soon as practicable before or after the early termination.
A. Criteria for selection:
the commission will issue a request for proposals to select the
administrator; the commission shall consider whether the bidder has
demonstrated the competence needed to administer the fund and the rate of
compensation proposed; the commission shall also consider at a minimum whether
the bidder:
(1) is able to be neutral and impartial;
(2) is
a member of a trade association that advocates positions before this commission
or other state commissions in administrative proceedings related to
telecommunications issues;
(3) is
an affiliate of any contributing company;
(4) has
a substantial financial interest in any entity or affiliate that provides
telecommunications services or comparable retail alternative services; and
(5) has
a board of directors that includes any member with direct financial interests
in entities that contribute to or receive support from the fund in this state
or any other state.
B. Termination of administrator’s contract: the commission may terminate the
administrator’s contract with the commission before the expiration of the term
of the contract upon such notice, and under such conditions, as are set forth
in the contract.
[17.11.10.10 NMAC -
Rp, 17.11.10.10 NMAC, 3/12/2024]
17.11.10.11 EXPENDITURE AUTHORIZATION: The commission shall approve an annual budget
for administration of the fund. The
reasonable expenses incurred in the administration of the fund, in accordance
with the terms of the contract between the commission and the administrator,
shall be a cost of the fund and shall be recovered from contributions to the
fund.
[17.11.10.11 NMAC -
Rp, 17.11.10.11 NMAC, 3/12/2024]
17.11.10.12 RESPONSIBILITIES OF ADMINISTRATOR: The administrator shall manage the day-to-day
operation of the fund in accordance with this rule, applicable law, and the
overall supervision and direction of the commission. The administrator shall:
A. Fairly, consistently, and efficiently administer fund
collections and disbursements in accordance with commission rules and subject
to commission oversight.
B. Establish an account or accounts in one or more
independent financial institutions and ensuring that the monies deposited in
the fund are insured to the maximum extent permitted by law and that they earn
a return commensurate with that of state funds held on deposit in banks or
other financial institutions.
C. Ensure that the fund complies with all necessary
requirements for exemption from federal, state and
local taxes.
D. Establish procedures, consistent with the commission's
procedural rules and law, and with the commission’s approval, for protecting
the confidentiality of information submitted pursuant to this rule.
E. Report to the commission on fund activities at least once
each year; the report shall include fund collections and disbursements,
administrative expenditure information, budget projections and such other
information as the commission may require.
F. Prepare an annual proposed budget for administration of
the fund and submit it to the commission for review, revision, rejection or approval at such time in advance of the need
for commission approval as the commission may direct, or absent such direction,
at a reasonable time.
G. Propose to the commission uniform procedures, and develop
forms, to identify exempt customers, in consultation with contributing
companies.
H. Create and maintain the databases necessary to administer
the program and account for the funds.
I. Develop appropriate forms for use in collecting
information from contributing companies and ETCs.
J. Pay administrative expenses out of the fund in
accordance with the budget approved by the commission.
K. Petition the commission to institute an enforcement or
other action when the administrator finds that it is otherwise unable to
collect amounts properly due from a contributing company under these rules, or
when it appears to the administrator that any contributing company or ETC
carrier is otherwise out of compliance with these rules or applicable law.
L. Conduct, not less than once every year, such reviews as
are necessary to ensure that each contributing company is making its required
contributions to the fund and that support from the fund is used for the
purpose of the fund.
M. Advise the
commission of any anticipated material changes to, or fluctuations in, the
collection of fund revenues in a timely manner and make recommendations to the
commission on ways to address or correct such changes or fluctuations.
[17.11.10.12 NMAC -
Rp, 17.11.10.12 NMAC, 3/12/2024]
17.11.10.13 DISPUTE RESOLUTION:
The commission may refer any disputed case between the administrator and
a contributing company or between contributing companies to alternative dispute
resolution if it finds that doing so would encourage the settlement of the
dispute.
A. Mediation:
(1) if
any of the parties or staff makes a request for mediation, the commission may,
in its discretion, designate a mediator consistent with Subsection B of
17.1.2.20 NMAC;
(2) the
mediator may be a permanent or temporary employee of the commission or another
state agency or any other individual who is acceptable to the parties and
staff; if the parties request a mediator who is not an employee of the
commission, the commission shall not approve the request unless the parties
agree in writing to bear as their own the costs of obtaining the mediator's
services; the mediator shall not be the hearing examiner who is assigned to the
case; the mediator shall have no official, financial, or personal conflict of
interest with respect to the issues in controversy, unless such interest is
fully disclosed in writing to all parties and staff at the time the mediator is
assigned by the commission and unless all parties agree that the mediator may
serve; the mediator shall not subsequent to serving as a mediator participate
in the proceeding as a hearing examiner, advisory staff, staff counsel or
expert witness, or as an attorney, expert witness, or representative of any
party to the proceeding;
(3) the
mediator may be assigned by the commission at the same time as the commission
assigns the case to a hearing examiner; the mediator shall not discuss the
mediation conference with any commissioner or hearing examiner hearing the
case;
(4) the
mediator shall notify the parties and staff by telephone or mail of the time
and place of the mediation conference, which will be held at commission offices
unless otherwise directed by the mediator; the notice may direct the parties
and staff to send the mediator, but not other parties or staff, their
settlement positions and other necessary information that could facilitate the
mediation conference, including the results of staff's investigation of the
complaint;
(5) if
the parties are able to reach a settlement of their
dispute, in appropriate cases the mediator shall assist the parties in
preparing a written agreement to reflect that resolution; if the parties are
unable to reach a complete settlement of their dispute, the mediator shall advise
the parties that they may request arbitration or file a formal complaint with
the commission;
(6) nothing
shall preclude the commission from using different mediation procedures.
B. Arbitration:
(1) a
party may request arbitration of any dispute; the party's request shall be in
writing to the commission and shall include a concise statement of the grounds
for the complaint, the remedy sought, and an acknowledgment that the party has
read 17.1.2.22 NMAC and agrees to be bound by its terms;
(2) the
commission or its authorized representative shall forward the request for
arbitration to the other party together with a copy of Subsection A of
17.1.2.16 NMAC and 1.2.18 NMAC and require that the other party submit a
written response within 10 days of the date of the commission's letter
forwarding the request;
(3) if
the responding party agrees to arbitration of the dispute, he shall include in
his response to the complainant's request a concise statement of his position with regard to the merits of the complaint and an
acknowledgment that he has read 17.1.2.22 NMAC and agrees to be bound by its
terms; if the responding party will not agree to arbitration, he shall so state
in the response;
(4) if
the responding party either fails to respond to a request for arbitration or
does not agree to arbitration, the initiating party retains the right to
proceed with a formal complaint;
(5) if
both the initiating party and the responding party agree to arbitration, the
commission shall designate an arbitrator; the arbitrator may be a permanent or
temporary employee of the commission or another state agency or any other
individual who is acceptable to the parties to the complaint; the designated
arbitrator shall have no official, financial or personal conflict of interest
with respect to the issues in controversy, unless such interest is fully
disclosed in writing to all parties at the time of the commission's designation
and all parties agree that the arbitrator may serve; the parties shall be
required to indicate their consent in writing to the designated arbitrator
within 10 days of the date of the commission's letter of designation; if the
parties request an arbitrator who is not an employee of the commission, the
commission shall not approve the request unless the parties agree in writing to
bear the costs as their own pursuant to Sections 8-8-4 and 62-13-3 NMSA 1978;
(6) any
employee of the commission designated to arbitrate the matter under these
provisions shall not participate in a subsequent proceeding on the complaint as
a hearing examiner, advisory staff, staff counsel, or expert witness or as an
attorney, expert witness, or representative of any party to the proceeding;
(7) the
commission may assign docket numbers to arbitration proceedings for purposes of
record management but the proceeding remains an
informal proceeding;
(8) nothing
shall preclude the commission from using different arbitration procedures.
C. Arbitration
Procedures:
(1) once
designated and approved by the parties, the arbitrator shall proceed to render
a decision in the arbitration proceeding within 60 days of the date the
responding party agreed to arbitration except for good cause; if the arbitrator
at any time determines that it is unlikely that the dispute can be resolved
without substantially affecting the interests of other ratepayers or the
public, he may so inform the parties and staff and terminate the proceeding
without prejudice to the initiating party’s right to file a formal complaint;
(2) the
arbitrator shall fix a time and place for an informal hearing and shall serve
notice of the hearing on both parties and on staff at least 10 days in advance
of the hearing; he may issue subpoenas for the attendance of witnesses and for
the production of books, records, documents, and other evidence and shall have
the power to administer oaths; the parties and staff may offer such evidence
and produce such additional evidence as the arbitrator may deem necessary to an
understanding and determination of the dispute; the arbitrator shall decide the
relevancy and materiality of the evidence offered, and conformity to the New
Mexico rules of evidence or to rules of evidence contained in the commission’s
rules, is not necessary; no stenographic or electronic record will be made of
the testimony at hearing unless requested by a party, who shall bear the cost
of the record, or by staff;
(3) discovery
will be permitted but only with leave of the arbitrator who shall not allow
discovery which unduly complicates, burdens, or impedes the expeditious and
informal nature of the proceeding;
(4) whenever
the arbitrator deems it necessary to make an inspection
or investigation in connection with the arbitration, he shall so advise the
parties and staff, who may be present at the inspection or investigation; in
the event that one or both of the parties or the staff are not present, the
arbitrator shall make an oral or written report to the parties and staff and
afford them an opportunity to comment;
(5) at
the close of or soon after the hearing, the arbitrator will issue a brief
written decision; findings of fact and conclusions of law are not necessary;
the arbitrator's decision will be binding on the parties and can be implemented
by the commission to the extent such implementation is necessary; however, the
decision will not be a decision of the commission and shall have no
precedential effect;
(6) unless
agreed to by all the parties and staff, no statements, admissions, or offers of
settlement made during the course of arbitration
proceedings shall be admissible as evidence in any formal proceeding nor shall
the arbitrator disclose the same voluntarily or through discovery or compulsory
process; nothing in this section, however, shall preclude the arbitrator from
issuing a brief written decision describing his conclusions and the bases for
them;
(7) nothing
in this rule shall be construed to mean that the commission has waived its
review of any decision or that the commission consents to be bound by
arbitration.
[17.11.10.13 NMAC -
Rp, 17.11.10.13 NMAC, 3/12/2024]
17.11.10.14 VARIANCES AND WAIVERS:
Any person may petition the commission for variance or waiver of any
provision of this rule for good cause shown.
A. General
requirements:
(1) a
contributing company or ETC may petition for an exemption or a variance from
any of the requirements of this rule;
(2) such
petition may include a motion that the commission stay the affected portion of
this rule for the transaction specified in the motion;
(3) petitions
for an exemption or a variance and motions for a stay must be supported by an
affidavit signed by an officer of the contributing company or ETC or someone
with authority to sign for the contributing company or ETC;
(4) the
commission may, at its discretion, require an informal conference or formal
evidentiary hearing prior to making its determination.
B. Contents of the petition.
A petition for an exemption or variance shall:
(1) identify
the section of this rule for which the exemption or variance is requested;
(2) describe
the situation which necessitates the exemption or variance;
(3) describe
the effect of complying with this rule on the contributing company or ETC and
its customers, or on its competitive affiliates and their customers, if the
exemption or variance is not granted;
(4) describe
the result the request will have if granted;
(5) state
how the exemption or variance will achieve the purposes of this rule and the
Rural Telecommunications Act of New Mexico;
(6) state
why the proposed alternative is in the public interest and is a better
alternative than that provided by this rule;
(7) state
why the exemption or variance would have no anticompetitive effect; and
(8) state
why the requested exemption or variance would not place an undue burden on the
fund.
[17.11.10.14 NMAC -
Rp, 17.11.10.14 NMAC, 3/12/2024]
17.11.10.15 GENERAL REPORTING REQUIREMENTS:
A. Reports require declaration: all reports filed with the commission
or the administrator must be filed with a declaration from the chief financial
officer of the entity or the person who prepared the reports on behalf of the
entity that the information is correct and the filing is made subject to the
penalty of perjury provided for in Section 30-25-1 NMSA 1978.
B. Time for reporting:
where no date is specified for a report, or when a request is made by
the administrator for information necessary for the administration of the fund,
the administrator shall specify when the report must be filed.
C. Reporting forms:
contributing companies and ETCs shall report information in the manner
prescribed by the administrator. The
administrator shall not require reporting that will be unduly burdensome.
D. Electronic filing:
the administrator shall accept electronic reporting when practicable.
E. Confidentiality: the
commission shall have access to all information reported to the
administrator. Contributing companies
may request that company-specific information required by the reporting
requirements of this rule be treated as confidential by so indicating at the
time the information is submitted. The
commission shall make all decisions regarding disclosure of company-specific
information and may request further information or justification from the
contributing company to ensure uniformity of confidential treatment of all
information submitted by contributing companies. Nothing in this rule shall preclude
commission issuance of an umbrella protective order identifying what reported
data shall be, or shall not be, deemed confidential. The administrator shall keep confidential all
company-specific information obtained from contributing companies for which
confidential treatment is requested, shall not use such information except for
purposes of administering the fund, and shall not disclose such information in
company-specific form unless directed to do so by the commission.
F. The commission may require the administrator to modify
any of its report formats to solicit additional information necessary for the
administration of the state universal service program, including possible
addition of a revenue report or to delete information that is not necessary.
[17.11.10.15 NMAC -
Rp, 17.11.10.15 NMAC, 3/12/2024]
17.11.10.16 [RESERVED]
[17.11.10.16 NMAC -
Rp, 17.11.10.16 NMAC, 3/12/2024]
17.11.10.17 REPORTS: ETCs shall comply
with the reporting requirements established by the commission as set forth in
17.11.27 NMAC. In addition, carriers
shall report the following information to the administrator in a form
prescribed by the administrator, regarding facilities and activities during the
preceding calendar year:
A. On or before May 1 of each year, contributing companies,
including ETCs, shall report the number and type of New Mexico access lines and
New Mexico communication connections subscribed to in total and the number of
such access lines and communication connections that are exempt from paying the
SRUSF surcharge.
B. On or before
July 1 of each year, ETCs receiving support from the fund (except those
receiving only support pursuant to 17.11.11 or 17.11.10.31 NMAC) shall file
with the commission a report, in a form approved by the commission,
demonstrating that the ETC’s payments from the fund were used for the purpose
stated in Subsection A of 17.11.10.27 NMAC.
If any ETC required to file information with the commission under
Subsection B of 17.11.10.17 NMAC fails to comply on or before the applicable
reporting deadline, the administrator shall withhold any disbursements
otherwise due to the non-compliant ETC until the ETC has complied.
[17.11.10.17 NMAC - Rp, 17.11.10.17 NMAC,
3/12/2024]
17.11.10.18 CONTACT PERSONS:
All contributing companies and ETCs shall file with the administrator
the name, address, phone number and e-mail address of a contact person and
shall keep the information current.
[17.11.10.18 NMAC -
Rp, 17.11.10.18 NMAC, 3/12/2024]
17.11.10.19 ANNUAL DETERMINATION OF FUND:
A. The administrator shall determine the amount of the fund
for the next calendar year and submit its findings to the commission on or
before November 10 of each year to enable commission approval on or before
November 20 of each year in order to provide carriers
with sufficient time to implement any change in the surcharge rate.
B. In the event the commission orders a change in fund
support, pursuant to 17.11.10.14 or 17.11.10.25 NMAC of this rule or otherwise,
that necessitates a fund amount greater than that which the commission has
previously established, the commission may order an adjustment to the amount of
the fund, subject to the annual fund cap set forth in Subsection C of
17.11.10.19 NMAC.
C. The amount of the fund shall be equal to the sum of each
ETC’s revenue requirement, calculated pursuant to this section, plus any other
fund requirements determined by the commission, including pursuant to
17.11.10.25, 17.11.10.31 or 17.11.11 NMAC, plus projected administrative
expenses and a prudent fund balance; provided however, the total amount of the
fund shall not exceed a cap of thirty million dollars ($30,000,000.00) per
year.
D. Only carriers holding state ETC status as of October 1
shall be included in the calculation of funding requirements for the subsequent
calendar year.
E. Except where the commission has established an
alternative or additional amount pursuant to 17.11.10.25 or 17.11.10.31 NMAC,
the revenue requirement for 2018 and each year thereafter for each ETC that was
eligible as of July 1, 2005 and is a local exchange carrier shall be equal to
the carrier’s 2014 SRUSF revenue requirement adjusted by the annual percentage
change in the number of access lines served by the carrier as of December 31 of
the prior calendar year compared to the number of access lines served by the
carrier as of December 31, 2014, and then reduced by the carrier’s imputed
benchmark revenue. For 2021, the access
lines used for the comparison to 2014 shall be as of December 31, 2019,
adjusted annually thereafter. The SRUSF revenue requirement formula under this
section may be stated arithmetically as follows: revenue requirement minus imputed benchmark
revenue.
F. The revenue requirement for an ETC that became an ETC
after July 1, 2005 or that became an ETC prior to July
1, 2005, but is not a local exchange carrier, shall be determined annually by
the administrator in conjunction with the administrator’s determination of fund
size, and shall be in accordance with the support rate determined by the
commission pursuant to 17.11.10.23 NMAC.
G. For an ETC that is not eligible for funding pursuant to
rate rebalancing per Subsection K of Section 63-9H-6 NMSA 1978 that has been
previously authorized for support pursuant to Subsection M of Section 63-9H-6
NMSA 1978, that ETC may petition for ongoing funding pursuant to Subsection K
of Section 63-9H-6 NMSA 1978, subject to the following:
(1) the
commission shall award an applicant ongoing fund support at no less than the
average access line amount of funding support for comparable carriers; provided
that an eligible telecommunications carrier receiving fund support pursuant to
the subsection shall not offer basic local exchange residential and business
services at rate levels lower than the rates for such services charged by any
of the comparable carriers used for the determination of the level of support;
(2) the commission shall act upon a
request for ongoing fund support within one hundred twenty days of the filing
of the request.
[17.11.10.19 NMAC -
Rp, 17.11.10.19 NMAC, 3/12/2024]
17.11.10.20 DETERMINATION OF SRUSF SURCHARGE RATE
AND CONTRIBUTION:
A. The administrator shall recommend the amount of the SRUSF
surcharge rate for the next calendar year, on or before September 1 to enable
commission approval on or before October 1, based upon monthly and annual
reports filed by ETCs and contributing companies, broadband program grants
awarded by the commission, and any other pertinent and reliable information
available to the administrator or the commission, and applying the annual fund
cap set forth in Subsection C of 17.11.10.19 NMAC.
B. The commission
shall either set a percentage surcharge rate equal to the annual fund
requirement determined by the commission divided by the sum of intrastate
retail public telecommunications service revenue, or in the alternative, set a
fixed charge applicable to each non-exempt communication connection equal to
the annual fund requirement determined by the commission divided by the number
of non-exempt communication connections for all contributing carriers in New
Mexico. The surcharge rate or fixed charge
may be adjusted to account for any material deficit or surplus projected to
exist at the start of the fund year, subject to the annual fund cap.
C. Each
contributing company’s monthly contribution shall equal the state rural
universal service fund surcharge rate multiplied by its intrastate retail
telecommunications revenues or non-exempt communication connections, as
determined by the commission, in New Mexico for the month.
D. If, for any month the administrator finds that the fund
balance is insufficient to meet the total obligations of the fund, (including
support pursuant to 17.11.10.19, 17.11.10.25, 17.11.10.31, and 17.11.11 NMAC)
plus administrative expenses and maintenance of a prudent fund balance, the
administrator shall prorate all payments to each ETC, with
the exception of payments pursuant to 17.11.10.31 NMAC and 17.11.11
NMAC. In the event the administrator
determines that such a prorated reduction in payments is reasonably likely to
occur, the administrator shall immediately notify the commission and the
commission will take prompt action to increase contribution requirements,
subject to the annual fund cap set forth in Subsection C of 17.11.10.19
NMAC, or otherwise account for the
shortfall and will provide for true-up payments for any underpayments occurring
if prorated reduced payments are required before the contribution requirements
can be increased. If the fund
accumulates a surplus beyond what the administrator and the commission believes is prudent under the circumstances, the
administrator may, with the commission’s approval, decrease contribution
requirements so as to lower the fund balance to an appropriate level.
E. Each contributing company shall remit its monthly
contribution to the administrator on a schedule to be determined by the
administrator.
[17.11.10.20 NMAC -
Rp, 17.11.10.20 NMAC, 3/12/2024]
17.11.10.21 RECOVERY OF CONTRIBUTIONS:
A. A contributing company shall recover the amount of its
contributions to the fund from its end-user customers in a manner that is not,
either by act or omission, deceptive or misleading. Such recovery shall be made in a fair,
equitable and nondiscriminatory manner, and no over-recovery of contributions
shall be permitted.
B. A contributing company required to provide service in
accordance with commission approved tariffs shall not recover contributions
from its end-user customers except as permitted under commission approved
modifications to those tariffs.
C. The commission may, after notice and hearing, order
modifications to a contributor's method of recovering contributions from its
end-user customers.
[17.11.10.21 NMAC -
Rp, 17.11.10.21 NMAC, 3/12/2024]
17.11.10.22 FUND DISBURSEMENTS:
A. The administrator shall make a monthly disbursement to
each ETC eligible to receive such a payment from collected revenues in the
fund, on a schedule to be determined by the administrator.
B. The amount of each ETC’s monthly disbursement shall be
one-twelfth of its revenue requirements computed in accordance with 17.11.10.19
NMAC, subject to proration as provided in Subsection E of 17.11.10.20 NMAC.
C. Only carriers holding ETC status as of October 1 shall be
eligible to receive disbursements from the fund during the year that begins the
following January 1.
D. The administrator shall not pay, and shall hold in
escrow, any disbursements otherwise due to an ETC that is also a contributing
company, if that company shall not be in compliance with
its contribution requirements.
[17.11.10.22 NMAC -
Rp, 17.11.10.22 NMAC, 3/12/2024]
17.11.10.23 DESIGNATION OF ETCS:
A. Any carrier operating in New Mexico and designated as a
state ETC as of July 1, 2005 and which has not lost
that designation is automatically designated as an ETC for the purposes of this
rule. If at any subsequent time a
carrier loses ETC designation status, it shall no longer be eligible to receive
support from the fund.
B. Other carriers may file a petition for designation as an
ETC in accordance with 17.11.10.24 NMAC.
C. On its own motion or in response to a petition, the
commission may, after notice and hearing and for good cause shown, modify,
suspend, or revoke an ETC designation.
D. The commission may, upon request, establish the ETC’s
amount of amount of an ETC’s support from the fund, if any in accordance with
the requirements of 17.11.10.25 NMAC.
[17.11.10.23 NMAC -
Rp, 17.11.10.23 NMAC, 3/12/2024]
17.11.10.24 PETITIONS FOR ETC DESIGNATION AND
AMOUNT OF SUPPORT:
A. Any entity seeking designation as a state or federal ETC
must file a petition with the commission.
In the case of a petition for ETC designation, for state or federal
universal service fund the petition shall:
(1) include
a description of the proposed service area for which it seeks designation that is
consistent with the federal requirements relating to service areas set forth in
47 CFR 54.207;
(2) demonstrate
that the entity meets the requirements in Section 214(e) of the federal act (47
U.S.C. Section 214(e)) to be designated as a federal ETC;
(3) for
federal USF support, demonstrate how the applicant meets the requirements of 47
CFR 54.101 through 54.203;
(4) demonstrate
that the proposed designation is in the public interest;
(5) demonstrate
that the proposed ETC is financially and technically competent to provide the
supported services for federal or state support;
(6) demonstrate
the petitioner’s ability to remain functional in emergency situations;
(7) demonstrate
that the petitioner will satisfy applicable consumer protection and service
quality standards;
(8) demonstrate
that granting ETC status to the petitioner in the designated area is likely to
result in more customer choice;
(9) address
the impact of designation of the petitioner on the size of the state fund or
federal USF;
(10) address
the unique advantages and disadvantages of the petitioner’s service offering;
(11) demonstrate
the petitioner’s willingness and ability to offer service throughout the
designated service area within a reasonable time frame, or time frame required
by state or federal law; and
(12) provide
such other information as the commission or the administrator may find
appropriate.
B. A petition by an ETC for an amount of support shall
demonstrate that granting the proposed support is in the public interest and,
where required, shall include the information required by 17.11.10.25 NMAC.
C. Consideration of the public interest will apply in all
ETC designation proceedings. The
commission is not required to designate additional ETCs in any service area, if
not in the public interest.
D. The commission shall, after such notice and hearing as
the commission shall prescribe, enter its written order approving or denying a
company’s petition. An order approving a
petition for ETC designation shall specify the service area for which
designation is made and an order approving a petition for an amount of support
shall state the amount and type of approved state or federal fund support.
E. The commission may approve a petition for designation as
a federal ETC in conjunction with a petition for designation as a state ETC.
F. The commission shall require annual verification from
each ETC that it continues to meet the requirements herein for designation as
an ETC and for provision of support from the state fund or federal USF.
[17.11.10.24 NMAC -
Rp, 17.11.10.24 NMAC, 3/12/2024]
17.11.10.25 PETITION FOR SUPPORT BASED ON NEED:
A. An ETC serving in a rural area of the state may petition
the commission for support from the fund when such payments are needed to
ensure the widespread availability and affordability of universal service in
the rural area(s) of the state served by the ETC.
B. In addition to establishing need as described in
Subsection A of this section, a petition for support based on need shall
identify the geographic area for which support is requested,
and shall demonstrate with particularity how the proposed payments from
the fund will be used in a manner consistent with the use of fund support
requirements set forth in 17.11.10.27 NMAC.
C. In support of the petition, the ETC must make available
to the commission such information from the ETC that the commission deems
necessary, including but not limited to information relating to the ETC’s
regulated revenues, expenses, and investments, to determine whether support is
needed to ensure the widespread availability and affordability of universal
service in the area identified in the petition.
D. The commission
shall resolve each petition for support based on need with or without a hearing
no later than six months following the filing date of the petition, unless the
commission finds that a longer time will be required, in which case the
commission may extend the period for an additional three months.
E. Companies
reporting the use of funds granted by the commission under this section shall
provide, on a semi-annual basis, the following:
(1) Specific
details of projects for which fund support is used; itemized by the categories
of capital expenditures (CapEx) and the related
operations expenditures (OpEx).
(a) Project
descriptions will explain the objectives or intended goal of the project. Such as increased capacity or efficiency,
redundancy, expansion of network or services.
(b) Project
prioritizations of buildout plans in technical terms that include locations,
maps as applicable, milestones and benchmarks to measure performance and assure
compliance. The description shall also
provide project status, spending plans and metrics.
(c) Narratives
of the projects that explain the current and ongoing status of completion or
ready for service dates (RFS), and other pertinent facts (i.e., project delays,
permit status, surveys, right of ways issues) for reporting purposes. The term ready for service (“RFS”) means a
description of projects where construction is complete
and the project is operational.
(2) The
period for the reporting of project details shall be semi-annual, at a minimum,
to continue for the period that funds are awarded.
(3) Semi-annual
financial reporting on a project specific or company-wide basis, depending if the award is specific to network improvements
and projects, or for the financial stability of the ETC receiving the award.
[17.11.10.25 NMAC -
Rp, 17.11.10.25 NMAC, 3/12/2024]
17.11.10.26 COMPLIANCE WITH CONTRIBUTION
REQUIREMENTS:
A. If the administrator finds that a contributing company
has not contributed the amount required by this rule, the administrator shall
notify the contributing company in writing.
The administrator shall request the company to pay
the deficiency in its contribution.
B. The contributing company shall pay the requested amount
within 21 days of the date of the notice or seek dispute resolution as provided
in this rule.
C. If attempts by the administrator to collect the total
requested amount from a contributing company or to resolve a dispute are
unsuccessful, the administrator shall notify the commission in writing.
D. Upon request by the administrator, a complaint filed by
an interested party, or on its own motion, the commission, after providing
notice and an opportunity for a hearing in accordance with 17.1.2 NMAC, may
issue an order requiring a contributing company to pay any arrearage in
contributions that the commission finds to exist and may also impose interest,
a fine or other appropriate administrative penalties or requirements or bonding
to assure future compliance with contribution requirements. In the event that a
contributing company fails or refuses to comply with a commission order issued
pursuant to this provision, the commission may petition the appropriate
district court for appropriate injunctive relief and for enforcement of the
commission's order.
E. The commission may take the same types of action set
forth in Subsection D of 17.11.10.26 NMAC in the event that
it finds, after a proceeding of the type specified in Subsection D of
17.11.10.26 NMAC, that a contributing company or an ETC has, in any other way,
violated any provision of this rule or of the rural telecommunications act of
New Mexico, Sections 63-9H-1 NMSA 1978 et
seq.
[17.11.10.26 NMAC -
Rp, 17.11.10.26 NMAC, 3/12/2024]
17.11.10.27 USE OF FUND SUPPORT:
A. An ETC shall use fund support in a manner consistent with
the rural telecommunications act, Sections 63-9H-1 NMSA 1978 et seq, Section 254 of the federal
telecommunications act (47 U.S.C. 254), and commission rules and orders. Fund support must be used to maintain and
support universal service; provided, however, that each ETC receiving support
pursuant to 17.11.10.19 or 17.11.10.25 NMAC must expend no less than sixty
percent of the support it receives to deploy and maintain broadband internet
access services in rural areas of the state, Subsection F of Section 63-9H-6
NMSA 1978.
B. If the commission finds, in a proceeding on its own
motion or on the motion of the administrator or an interested party, that an
ETC has used fund support for purposes other than to preserve and advance
universal service or that the ETC has failed to satisfy the sixty percent
minimum expenditure requirement referenced in Subsection A of 17.11.10.27 NMAC,
the commission may impose an appropriate administrative remedy, which may
include, but need not be limited to, ordering the ETC to refund amounts paid to
it from the fund and withholding future payments.
[17.11.10.27 NMAC -
Rp, 17.11.10.27 NMAC, 3/12/2024]
17.11.10.28 ACCESS TO BOOKS, RECORDS AND PROPERTY:
A. The administrator or the commission shall have access to
the books of account, records and property of all
contributing companies and ETCs to the extent necessary to verify information
reported or required to be reported pursuant to this rule. The administrator or commission may direct a
contributing company or ETC to send copies of records to the administrator or
commission or may inspect records at the offices of the contributing company or
ETC, at the administrator's or commission’s discretion.
B. In the normal course of business,
the administrator will give at least three days’ notice of its plans to inspect
records in the offices of a contributing company or ETC. The administrator may apply to the commission
to procure a subpoena in order to inspect records
without notice.
[17.11.10.28 NMAC -
Rp, 17.11.10.28 NMAC, 3/12/2024]
17.11.10.29 REVIEW AND AUDIT OF ADMINISTRATOR AND
FUND: The administrator shall provide the commission with a
financial statement of the fund and the administration of the fund on an annual
basis by May 1. The commission shall
engage a qualified independent auditor to audit each such financial statement
and to submit a written opinion to the commission.
[17.11.10.29 NMAC -
Rp, 17.11.10.29 NMAC, 3/12/2024]
17.11.10.30 ADVISORY BOARD:
A. The commission shall establish and appoint an advisory
board composed of representatives from participating contributing companies and
ETCs, the attorney general, the commission staff, and any representative(s) of
one or more consumer groups or organizations that the commission may choose to
appoint. The members shall include no
more than one representative from each of the following types of
telecommunications carriers and entities providing comparable intrastate retail
services: incumbent rural telecommunications
carriers; incumbent local exchange carriers other than incumbent rural
telecommunications carriers; competitive local exchange carriers not
ETC-designated; ETC-designated competitive local exchange carriers; commercial
mobile radio service providers not-ETC-designated; and ETC-designated
commercial mobile radio service providers.
Any other type of telecommunications carriers or providers of comparable
intrastate retail service may petition the commission for representation by no
more than one member of that type of carrier or service provider on the
advisory board, which the commission may grant by order. The commission shall resolve any dispute
among the carriers or service providers of each type as to who shall be the
member of the advisory board. The
members representing participating contributors shall each be appointed for a
term of three years. Members of the
board may be reappointed to subsequent terms with the approval of the
commission. Expenses incurred by a
member in connection with participation on the advisory board shall not be
reimbursed from the fund.
B. The advisory board shall meet periodically with the
administrator and shall provide advice and consultation to the administrator as
provided under this rule. Where deemed
necessary by the advisory board, it shall make recommendations to the
commission or the administrator, or both, relating to potential matters related
to administration of the fund. Should
the members of the advisory board not agree on a recommendation to the commission
or administrator on any particular matter, the
advisory board may provide a majority recommendation as well as a minority
recommendation as to the resolution of any such identified issue. In addition, any member of the advisory board
may, with advance written notice to the other members of the advisory board,
provide individual recommendations or other information to the commission and
the administrator that it deems appropriate.
The advisory board is intended to be a forum within which to build
consensus on matters relating to the administration of the fund, while not
deterring any interested party from communicating its concerns relating to the
administration of the fund to the advisory board, or, subject to advance
written notice to the other members of the advisory board, directly to the
commission.
C. The advisory
board members shall elect a chair, vice-chair, and secretary to serve on the
board for two years, subject to additional terms as elected from within the
board. For the purpose
of conducting business, a majority of the board members present at any
meeting shall constitute a quorum.
[17.11.10.30 NMAC -
Rp, 17.11.10.30 NMAC, 3/12/2024]
17.11.10.31 BROADBAND PROGRAM:
A. It is
the goal of the commission that New Mexico consumers have access to
high-quality broadband service from both wireline and mobile broadband
providers. Pursuant to Subsection N of
Section 63-9H-6, NMSA 1978, ETCs may separately apply to the commission for
grants to fund the construction and maintenance of facilities that are capable of providing broadband internet access service
to areas unserved or underserved by broadband in the state. Applications must be primarily for coverage
of the construction costs of new facilities, but such applications may include
a request for maintenance costs of those facilities as well. Each grant that is awarded will provide up to
seventy five percent of the budgeted project cost, with the ETC applying the
remainder from its own funds. Projects
receiving any source of third-party funding other than potential loan funds,
FCC high-cost fund legacy support or connect America fund support (including
mobility fund support) will not be eligible.
Each applicant shall provide a detailed description in their application
of the origin and type of funding provided for the carrier match, and a
certification that those monies are not duplicative of other purposes or
projects other than SRUSF broadband program projects. In evaluating
applications, the commission shall seek to avoid duplication of service using
the same technology. Awards of support
under this section shall be consistent with federal universal service support
programs and be based on the best use of the fund for rural areas of the
state. For purposes of administering the
broadband program, the commission may find that a broadband program proposed
project area is a rural area, notwithstanding the definition of rural area in
Subsection U of 17.11.10.7 NMAC, if it determines that:
(1) the
area otherwise has the characteristics of a rural area;
(2) the
area is unserved or underserved by broadband; and
(3) the
public interest requires that the area be classified as rural.
B. Funding of the broadband program. At least eight million
dollars ($8,000,000.00) of the fund shall be dedicated annually to the
broadband program. The amount of funding
allocated to the broadband program shall not be subject to proration under
Subsection E of 17.11.10.20 NMAC. To the
extent a year’s broadband program funding is not exhausted by grants awarded
during that year, the funds will rollover to the following year.
C. Applicants
for broadband program grants may request that company-specific information
contained within an application be treated as confidential. The commission shall make all decisions
regarding disclosure of company-specific information and may request further
information or justification from the contributing company to ensure uniformity
of confidential treatment of all information submitted by contributing
companies. Nothing in this rule shall
preclude commission issuance of an umbrella protective order identifying what
reported data shall be, or shall not be, deemed confidential. The commission staff or a third-party
contractor, shall keep confidential all company-specific information obtained
from applicants for broadband program grants for which confidential treatment
is requested, shall not use such information except for purposes of analyzing
the applications, and shall not disclose such information in company-specific
form unless directed to do so by the commission.
D. Minimum
requirements for eligible projects. The
commission will consider projects on a technology-neutral basis. Projects that apply technologies including,
without limitation, wireline, mobile wireless, and fixed wireless technologies
are all eligible for broadband fund grants.
A project must meet the following requirements to be eligible for a
grant award:
(1) support
broadband internet access service at speeds of at least 25.0 Mbps download/3.0
Mbps upload to all households and businesses in the proposed project area;
(2) support
voice grade telephony service to all households and businesses in the proposed
project area. For this purpose, a voice
over internet protocol (VOIP) based service is acceptable, as well as
traditional voice telephony services and mobile voice services;
(3) support access to emergency 911
services; and
(4) offer a latency that is sufficiently
low to support real-time, interactive applications.
E. Contents
of grant applications. An application
for support from the broadband program shall include, at a minimum:
(1) a
proposal to build telecommunications network facilities to service an area
where the applicant is designated as a state ETC;
(2) a
detailed build plan setting forth a description of the facilities to be
deployed, including all costs of constructing facilities; and
(3) a
map showing where service and coverage will be provided. This requirement can be met by providing;
(a) for
a wireline network, a map showing all homes, businesses, and other end user
locations passed; or
(b) for
a wireless network, a coverage map generated using a radio frequency
propagation tool generally used in the wireless industry;
(4) an
estimate of the number of road miles and square miles to be covered and
population and population density of the area covered;
(5) the
amount of support requested from the broadband program and the amount of the
applicant’s financial match, and a description of any type, amount, and purpose
of subsidy or financial support the applicant is currently receiving or is
scheduled to receive in the area designated in the application;
(6) a
description of the technology to be deployed, including data throughput speeds
and latency characteristics of the service to be delivered to customers;
(7) a
demonstration that the area to be served is an area unserved by broadband or an
area underserved by broadband as defined in 17.11.10.7 NMAC. If the area to be served contains served,
unserved and underserved areas, the application and map shall identify which
portions of the area are served, unserved and which are underserved. Each served, unserved, and underserved area
shall be clearly identified through color coding on the map submitted with the
application. Each served, unserved, and underserved area shall be clearly
identified through individual color coding indicators on all city street grid
maps submitted with the applications.
Satellite views are not acceptable for the application's requirement for
mapping;
(8) a
demonstration of the estimated customer subscription rates and revenues from
the services to be offered as a result of the proposed
construction sufficient to justify support from the broadband program;
(9) a
commitment to provide a minimum twenty-five percent match of funds;
(10) if
the project is a wireless network deployment, a commitment to allow collocation
on reasonable terms by other providers
of commercial mobile wireless service or any public safety network and to abide
by the FCC's collocation requirements for awardees under the federal universal
service program;
(11) sample
terms and conditions for the service and proposed prices;
(12) explain how the proposed deployment
will contribute to the enhancement of digital equity and digital inclusion in
the proposed service territory;
(13) explain how the awards of support are
consistent with federal universal service support programs;
(14) a
certification by an authorized representative affirming that all information
set forth in the application is true and correct;
(15) any
other requirements to ensure accountability as the commission may develop and
approve in a proceeding to determine the form and contents of grant
applications; and
(16) applications
and mapping information must also be submitted contemporaneously with the New
Mexico department of information technology broadband division.
F. The ETC must
make the following commitments and include them in its application:
(1) the
broadband service must be offered at reasonably comparable rates for comparable services in urban areas;
(2) the
broadband service must be provided for at least seven years following project completion;
(3) the ETC must abide by
commission reporting requirements sufficient to monitor the progress of the project deployment and to ensure that all
grant funds are being used efficiently and for the purpose intended; and
(4) the ETC must commit to
respond to commission inquiries regarding service-related complaints and commit
to attempt to resolve service-related complaints in a reasonable manner.
G. Procedure for awarding support from the fund:
(1) On
or before May 1 of each year, the commission shall open a non-adjudicative,
administrative docket and establish a deadline for filing applications for
broadband program support for the following calendar year. The telecom bureau,
or a third-party contractor, shall review and summarize all timely
applications. Only carriers holding ETC
status as of October 1 shall be eligible to receive disbursements from the fund
during the year that begins the following January 1.
(2) Interested persons may seek intervention in these
proceedings, pursuant to 1.2.2.23 NMAC.
(3) On
or before September 1, the telecom bureau shall make a presentation to the commission, with analysis of the
applications for awards. The telecom bureau, or a third-party contractor, may
communicate with applicants to request additional information or clarify
information presented in the applications in order to
prepare its presentation. Such
presentations shall be considered by the commission but shall not bind the
commission.
(4) At the September 1
presentation, the telecom bureau shall present a summary of projects. The telecom bureau shall provide the
following information for each project on a single spreadsheet.
(a) cost per customer served
or passed;
(b) type of technology;
(c) whether area is unserved
or underserved (or, if area includes both, in what proportions);
(d) download and upload speed
of service;
(e) monthly rates that the
grantee intends to charge for the service; and
(f) telecom bureau comments
on the project.
(5) On or before October 15,
the commission, in coordination with the broadband office and the council, for
prioritization and alignment with the statewide broadband plan, shall issue a
decision approving or denying in whole or in part, each application. Among the
factors that the commission will consider when selecting proposed projects for
funding are the download and upload speeds that a project will provide and
whether the project will serve an area unserved by broadband or an area
underserved by broadband.
(6) On
or before November 1, any interested person may file with the commission a
request for reconsideration, in whole
or in part, of any award of funds.
Requests for reconsideration will not be valid after November 1.
(7) On or before December 1, the commission shall
dispose of any motions for reconsideration.
H. Conditions
for disbursement of awarded funds:
(1) The awardee commits to
complete construction of its project within three years from the date of the
commission’s final order approving an award pursuant to 17.11.10.31 NMAC.
(2) For
each awarded project, project reports shall be submitted to staff,
consultant(s), and administrator(s) semiannually, during June and December and
at the mid-point and completion of the project that provide information
regarding the status of the project in a form accepted by staff. Semi-annual reports shall be submitted June
30, and December 31 of the calendar year.
The midpoint disbursement report shall describe ETC progress on project
milestones at the mid-point of the completion of the project pursuant to
Paragraph (1) of Subsection E of 17.11.10.25 NMAC, prior to the release of a
mid-point disbursement. The mid-point
and final reports may be filed concurrently with the submission of the
semi-annual reports, but may not be combined into one
report. Within 30 days after project
completion, the awardee shall submit a final report in a form accepted by staff
demonstrating that the project as
completed meets the coverage requirements set forth in the application,
including a certification from an officer or director that all program
requirements have been met.
(3) Prior
to the initial disbursement, the ETC must notify the commission in writing that
it is prepared to commence the project with regard to
project engineering, ordering or delivery of required equipment, labor
requirements, and that all permits have been granted to begin
construction. The administrator shall
disburse one third of the award promptly following receipt of the ETC’s written
notice that it is prepared to commence the project, one third at the midpoint
of the project, and the remaining third upon project completion. The second and third payments may be
requested as a single disbursement upon completion and are contingent upon the
submission of acceptable project status reports pursuant to Paragraph (2) of
Subsection H of 17.11.10.31 NMAC. The
commission may, within 30 days after submission of a report, order additional
information to be provided, suspend payment by the administrator, or take other
action as necessary after notice and hearing.
(4) Any
applicant found to have willfully misrepresented information in an application,
is found to have used support unlawfully, or fails to meet the commitments set
forth in the application, may be subject to refund of award funds or other
actions of the commission.
[17.11.10.31 NMAC -
Rp, 17.11.10.31 NMAC, 3/12/2024]
HISTORY OF 17.11.10 NMAC:
Pre-NMAC
History: None.
History of
Repealed Material:
17 NMAC 13.10, State Rural Universal Service Fund (filed 11/15/2005)
repealed effective 1/1/2015.
17 11.10 NMAC, State Rural Universal Service Fund (filed 1/1/2015)
repealed effective 1/29/2016.
17 11.10 NMAC, State Rural Universal Service Fund (filed 1/1/2015)
repealed effective 1/1/2017.
17 11.10 NMAC, State Rural Universal Service Fund (filed 12/16/2016) repealed effective 1/1/2018.
17 11.10 NMAC, State Rural Universal Service Fund (filed 12/14/2017)
repealed effective 2/9/2021.
17 11.10 NMAC, State Rural Universal Service Fund (filed 1/28/2021)
repealed effective 3/12/2024.
Other
History:
17 NMAC 13.10, State
Rural Universal Service Fund (filed 12/15/1999) was replaced by 17.11.10 NMAC,
State Rural Universal Service Fund, effective 1/1/2015.
17.11.10 NMAC, State
Rural Universal Service Fund (filed 1/1/2015) was replaced by 17.11.10 NMAC
State Rural Universal Service Fund, effective 1/29/2016.
17.11.10 NMAC State
Rural Universal Service Fund (filed 1/19/2016) was replaced by 17.11.10 NMAC
State Rural Universal Service Fund, effective 1/1/2017.
17.11.10 NMAC State
Rural Universal Service Fund (filed 12/16/2016) was replaced by 17.11.10 NMAC
State Rural Universal Service Fund, effective 1/1/2018.
17.11.10 NMAC State
Rural Universal Service Fund (filed 12/14/2017) was replaced by 17.11.10 NMAC
State Rural Universal Service Fund, effective 2/9/2021.
17.11.10 NMAC State
Rural Universal Service Fund (filed 1/28/2021) was replaced by 17.11.10 NMAC
State Rural Universal Service Fund, effective 3/12/2024.