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 -
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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 -
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17.11.10.3 STATUTORY AUTHORITY: Sections 62-19-9 and 63-9H-6, NMSA 1978.
[17.11.10.3 NMAC -
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17.11.10.4 DURATION: Permanent.
[17.11.10.4 NMAC -
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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 -
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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 -
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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 -
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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 -
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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.