This
rule was filed as SCC Rule 85-9.
TITLE 17 PUBLIC
UTILITIES AND UTILITY SERVICES
CHAPTER 11 TELECOMMUNICATIONS
PART 13 RULES
AND REGULATIONS FOR COMPETITIVE TELECOMMUNICATIONS
SERVICES
17.11.13.1 ISSUING
AGENCY: New Mexico State Corporation Commission [New
Mexico Public Regulation Commission].
[Recompiled
12/30/01]
17.11.13.2 SCOPE:
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17.11.13.3 STATUTORY
AUTHORITY:
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17.11.13.4 DURATION:
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17.11.13.5 EFFECTIVE
DATE:
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17.11.13.6 OBJECTIVE:
It is the purpose of these regulations together with the Commission's
Rules of Procedure, other rules and regulations of the Commission relating to
telecommunications heretofore or hereafter promulgated by the Commission and orders
of the Commission heretofore or hereafter issued by the Commission to
administer the Act pursuant to Section 13 thereof.
[Recompiled
12/30/01]
17.11.13.7 DEFINITIONS:
As used in the Telecommunications Act Regulations:
A. "Commission" means the New Mexico State
Corporation Commission [New Mexico Public Regulation Commission];
B. "Act" means the New Mexico Telecommunications
Act, Laws 1985, Chapter 242;
C. "Public Telecommunications Service" refers to
that definition of the term as set forth in Section 3.B of the Act;
D. "certificate" means a certificate of public
convenience and necessity issued by the Commission for the provision of public
telecommunications service within the State of New Mexico.
[Recompiled
12/30/01]
17.11.13.8 RULES AND REGULATIONS FOR COMPETITIVE TELECOMMUNICATIONS SERVICES:
A. On January 24, 1985, the New Mexico State Corporation
Commission [New Mexico Public Regulation Commission] ("Commission")
issued an Order establishing the above-entitled Docket for purposes of adopting
regulations for competitive telecommunications services. The Order directed any person or entity to
submit comments or alternatives to the Commission regarding the proposal for
regulation filed by the Commission by Mountain States Telephone and Telegraph
Company (Mountain Bell) proposal for regulations on or before February 20,
1985. After review of the proposals for
regulation, the Commission prepared, issued and delivered its proposed set of
rules concerning the subject of this docket to all parties listed on Exhibit A
attached to the January 24, 1985 Order.
Publication of this proceeding was made in the Albuquerque Journal on
January 28, 1985. A public hearing was
held before the Commission on March 8, 1985 at which time comments were
received addressing the proposed regulations issued by the Commission.
B. On April 11, 1985 Staff for the Commission submitted a
Motion for Leave to File Further Proposed Regulations. Staff's motion cited the April 5, 1985
signing into law by the Governor of New Mexico of the New Mexico
Telecommunications Act (House Bills 271 and 559), as the rationale for the
filing of further proposed regulations.
The Commission, finding good cause in Staff's Motion ordered that
further proposed regulations be submitted by May 20, 1985.
C. The Commission, having reviewed all proposals submitted
for regulations for competitive services, and having reviewed and considered
the testimony during the March 8, 1985 hearing hereby adopts the following
regulations for competitive telecommunications services in New Mexico.
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17.11.13.9 TITLE:
These regulations may be cited as the Telecommunications Act
Regulations.
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17.11.13.10 CERTIFICATE REQUIRED:
A. No public telecommunications service shall be offered in
this state except in accordance with the provisions of the Act and these
regulations.
B. No public telecommunications service shall be offered in
this state without the provider thereof first having obtained a certificate to
provide such service from the Commission.
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17.11.13.11 EXISTING CERTIFICATES:
A. All certificates heretofore issued by the Commission
shall continue in full force provided the holder thereof has fully complied
with the applicable provisions relating to continuous and adequate service to
the public imposed by statute or the Commission at the time of issuance of the
certificate or subsequent amendment.
B. The holder of any existing certificate shall continue to
render continuous and adequate service to the public as required by statute or
the Commission at the time of issuance thereof or by any subsequent
amendment. Such holder shall not
discontinue, reduce or impair service to a certificated area as established by
the certificate, or part of a certificated area, except for ordinary
discontinuance or service for nonpayment of charges, nonuse, or similar reasons
in the ordinary course of business, unless and until there shall first have
been obtained from the Commission a certificate that neither the present nor
future public convenience and necessity will be adversely affected thereby;
except that the Commission may, upon appropriate request being made, authorize
temporary or emergency discontinuance, reduction or impairment of service,
without regard to the provision of this section.
C. Nothing in this section shall be construed as requiring
the authorization of the Commission for any installation, replacement or other
changes in plant, operation or equipment which will not impair the adequacy or
quality of service provided.
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17.11.13.12 ADDITIONAL CERTIFICATES:
A. Any person, corporation, municipal corporation,
partnership or association proposing to construct or operate any plant or
equipment for the provision of public telecommunications service shall first
make application to the Commission for a certificate to construct or operate
such plant or equipment. Such application shall conform to the
Commission's Rules of Procedure relating to pleadings then in effect and shall
contain a verified statement reflecting how the public convenience and
necessity requires the plant, equipment and service or services applied for.
B. The application for a certificate shall contain
sufficient information to demonstrate that,
(1) it is economically feasible to operate
the proposed plant or equipment successfully and continuously for the
furnishing of public telecommunications service;
(2) the applicant has sufficient financial
resources to provide the proposed public telecommunications service properly
and continuously;
(3) the applicant has competent and
experienced management and personnel to provide the proposed public
telecommunications service;
(4) the applicant is willing and able to
conform to the constitution and laws of the State of New Mexico and to the
rules and regulations of the Commission; and
(5) the applicant is in every respect willing
and able to provide public telecommunications service properly and
continuously.
C. The application for a certificate shall include:
(1) a precise description of the exact and
particular public telecommunications service or services the applicant proposes
to provide;
(2) a precise description of the
geographical area that the applicant proposes to service and obtain a
certificate for together with an accurate map thereof;
(3) the names of all entities certificated by
the Commission to provide public telecommunications service of a similar nature
or functional equivalent of that applied for
within the geographical area
that the applicant proposes to serve; and
(4) if applicable, the manner in which the
issuance of the certificate applied for will promote competition in the
provision of public telecommunications service within the geographical area for
which the proposed service or services are to be provided;
(5) proposed tariffs containing the rates and
ratemaking methodology to be used in providing the proposed service.
[Recompiled
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17.11.13.13 NOTICE OF APPLICATIONS FOR CERTIFICATES:
A. The Commission, upon filing of an application for a
certificate, shall set the time and place for a hearing thereon and such other
and further procedural dates and requirements as the Commission shall deem
proper.
B. The Commission will require the applicant to serve notice
of the application together with all procedural and hearing dates on all known
interested parties and shall require the applicant to cause similar notice of
the application and the procedural and hearing dates to be published in a
newspaper of general circulation in the geographical area where the proposed
service is to be offered at least ten days prior to the hearing on the
application.
C. The Commission may entertain intervention in a proceeding
involving an application for a certificate by any interested person and may
require the filing of written testimony concerning the application at any time
the Commission sees fit.
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17.11.13.14 HEARINGS-CERTIFICATES:
A. All hearings conducted pursuant to an application for a
certificate shall be conducted pursuant to the Commission's Rules of Procedure
unless otherwise provided herein or by order of the Commission.
B. The burden of establishing that the issuance of a
certificate is in the public interest and that all requirements for the
issuance of a certificate have been met shall rest with the applicant for such
certificate.
C. The Commission shall determine when and upon what
conditions plant, equipment or services may be provided and shall determine
such terms and conditions that will attach to the exercise of the rights
afforded by certificates. Unless
otherwise provided by the Commission, all certificates issued by the Commission
shall carry the requirements set forth in Section 5.B [Subsection B of
17.11.13.11 NMAC] of these regulations for the holders of existing certificates.
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17.11.13.15 ASSIGNABILITY-CERTIFICATES:
Any certificate or rights obtained under any such certificate held,
owned or obtained by any entity, may be sold, assigned or leased only after a
determination by the Commission that the purchaser, assignee or lessee is
capable of rendering adequate and continuous public telecommunications service.
[Recompiled
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17.11.13.16 MANNER OF REGULATION-COMPETITIVE SERVICES:
A. Commission regulation of a public telecommunications
service that is subject to competition shall be obtained through the filing of
a "Petition for Determination" by any interested party or entity
including the Commission's staff.
B. A petition for determination (hereafter sometimes
referred to as "petition") shall contain at least the following
information:
(1) relevant facts regarding the nature of
the public telecommunications service or services for which a determination is
sought including the names of competitor(s) by location providing or ready and
willing to provide the same or similar service or services or a functionally
equivalent alternative or substitute service within the same market area which
meets the same general customer needs within that area;
(2) the minimum rate or charge proposed to be
charged for the service that is the subject of the petition or the proposed
range of charges for such service or services;
(3) a cost study demonstrating that the
minimum rate proposed to be charged for the service that is the subject of the
petition is not less than the true cost of providing such service;
(4) a full and adequate description of the
market area for which the proposed minimum rate or range of rates is to apply;
(5) the type of customer affected by the
competitive service together with an estimate of the number of customers so
affected;
(6) if an applicant provides regulated
telecommunications services in New Mexico, the applicant shall specify the
loss, if any, in net contribution expected, due to competition in the
competitive service and how the applicant proposes to adjust rates in their
non-competitive services, to compensate for the loss of contribution.
C. Notice by publication of the filing of a petition shall
be given to concerned parties in the form directed by the Commission and such
notice shall be further served on such persons and entities by the petitioner
as directed by the Commission.
D. Unless otherwise ordered by the Commission, a petition
will be treated as a rate filing request pursuant to Article XI of the New
Mexico Constitution.
E. Except as provided in the regulations or the Commission,
the Commission's Rules of Procedure shall apply to all proceedings instituted
pursuant to a petition.
F. The burden of establishing that a service is subject to
competition and that it is in the best public interest for the Commission to
establish a minimum rate or range or rates shall rest with the petitioner.
G. In ruling on a petition, the Commission will determine,
based on the evidence presented, if it is in the public interest to establish a
minimum rate or range of rates for a particular service. The Commission may attach such terms and
conditions on the provision of a service by a minimum rate or range of rates as
the Commission determines to be in the public interest.
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17.11.13.17 MINIMUM PRICING POLICY:
A. Unless otherwise ordered by the Commission upon specific
request by the applicant containing ample justification for the request and why
none of the pricing methodologies discussed below are applicable to the
petition, the information provided with or contained in a petition shall be
such that it will provide the Commission with the minimum price or the range of
prices for a competitive public telecommunications service developed through
one of the following pricing methodologies:
(1) Direct Cost Pricing:
(a) This methodology shall start with the
total current cost of the investments involved with the competitive service and
develop the broad categories of service, including interstate if applicable,
that are using that investment.
(b) It
shall further develop for the categories of service, current maintenance
expenses using maintenance to investment ratios, current overhead
administrative expenses using overhead administrative expenses to investment
ratios and current ad valorum taxes using ad valorum taxes to investment
ratios.
(c) Where investment is shared with
non-competitive service or services, it shall in the calculation of spearate
[separate] competitive service costs develop the dollar amount of usage
sensitive investment to be used by the competitive service through allocations
based on usage by the board categories of service, and apply the factors from
subparagraph A.2 [1 (b)] of this section to obtain a reasonable allocation of
shared costs and allocated costs of the competitive service.
(2) Fully Allocated Cost Pricing: This methodology shall utilize a "Stand
Alone Cost Study" which uses a basic building block approach to develop
the investments for competitive services.
It shall develop, for the competitive service, expenses for maintenance
activities, installation activities and other support activities as
applicable. It shall reflect current
labor rates, all expenses common to the investment shared between competitive
and non-competitive services fairly prorated between such services, apply an
expected return to investments, and utilize an appropriate tax factor applied
to return.
(3) Incremental Cost Pricing: This methodology identifies the incremental
forward-looking cost caused by placing one or more additional units in
service. The general categories or
direct costs included in an incremental cost study include annual capital costs
and operating expenses. The capital
costs are the annual costs of depreciation, cost of money, and income
taxes. The operating expenses are the
annual costs of maintenance, administration, ad valorem and other taxes.
(4) Avoidable Cost Pricing: This methodology is applicable to services
associated with items of equipment that are restricted. The avoidable cost study identifies the
costs which can be avoided if the equipment is eliminated or removed from
service.
B. After filing of a petition, the Commission may order that
the applicant file another cost study utilizing a pricing methodology of the
Commission's choice if the Commission decides that the cost study originally
filed does not meet the circumstances of the petition. The applicant shall continue to have the
burden of establishing that a service is subject to competition and that it is
in the public interest for the Commission to establish a minimum rate or range
of rates.
C. Upon request by the Commission, prior to or during
hearing upon the petition, applicant shall submit such additional data,
information, or exhibits, as may be specified by the Commission.
D. If an applicant files with the Commission in its petition
a cost methodology which differs from the cost methodology employed to allocate
costs for the same or similar service in a prior proceeding, the applicant
shall file with the petition a summary description of how the costing
methodology differs and why it differs from the cost methodology employed to
allocate costs for the same or similar service in the prior proceeding.
[Recompiled
12/30/01]
17.11.13.18 EFFECT
OF DETERMINATION: In granting a petition for determination,
the Commission will:
A. Make a finding that multiple persons or entities are
providing or ready to provide the same or similar service or services or a
functionally equivalent alternative or substitute service and that such persons
or entities are making such service or services reasonably available in the
same market area which generally meets the same customer needs;
B. Identify the market area wherein the particular service
is subject to competition;
C. Establish a minimum rate or range of rates to be charged
for such competitive service within the particular market area which shall not
be less than the cost of providing such service unless the Commission finds
that the service should be priced above cost for a specific reason;
D. Give its approval to and authorize the petitioner to
change from time to time the rates and charges for such service; provided that
the Commission shall be notified within ten days prior to any such change in
rates and charges and that such change in rates and charges shall not be set
below the approved minimum rate;
E. Authorize the removal of the price of any such
competitive service from any public tariff which is on file with the
Commission;
F. Authorize, if the Commission deems it necessary, an open
docket solely for the filing and disposition of further matters pertaining to a
competitive service; and
G. Provide for filing of the minimum price or range prices
with the Commission as proprietary information.
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17.11.13.19 GENERAL POLICIES:
A. A finding that a particular service is subject to
competition within a particular market area of the state does not mean that the
Commission has found that the service is competitive in other market areas or
statewide.
B. After making a determination that a service is
competitive, the Commission may reverse such finding if it is subsequently
established that the Commission cannot then make the affirmative findings for a
competitive service of Section 12.A [Subsection A of 17.11.13.18 NMAC] hereof.
[Recompiled
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17.11.13.20 CONFIDENTIALITY
OF INFORMATION: A petitioner may request that the Commission
designate information contained in its Petition for Determination and any
proceedings in connection therewith as confidential, including but not limited
to cost analysis for such services. In
ruling on any such request for confidentiality, the Commission will take into
account the interests of the petitioner, the competitors, and the public
interest.
[Recompiled
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17.11.13.21 REGULATION OF INDIVIDUAL CONTRACTS:
A. In accordance with the provisions of this section, the
Commission may regulate the rates, charges, and service conditions for
individual contracts for public telecommunications services in a manner which
facilitates competition.
B. At any time, the provider of public telecommunications
service may file a verified application with the Commission to provide a public
telecommunications service or a combination of services on an individual
contract basis. The application shall:
(1) Describe the telecommunications services
to be offered.
(2) Describe the party to be served by the service(s)
and the parties offering the service(s).
(3) If the individual contract would be for
the provision of a combination of services, the application shall identify such
services as have been determined to be competitive by the Commission pursuant
to a Petition for Determination and which services the applicant offers as
non-competitive and the price therefore which has been set by the Commission.
(4) Contain such additional information as
shall be reasonably related to the determination of the existence of
competition for the service or services that are the subject of the individual
contract.
(5) Contain such additional information as
shall reasonably reflect that the applicant's proposal to provide the services
meets the minimum price authorized by the Commission for the competitive
services and the price set forth in tariffs approved by the Commission for the
non-competitive services.
(6) Contain any additional information which
demonstrates that the individual contract will meet or exceed the cost of the
applicant in providing the services thereunder.
C. The Commission shall approve or deny the application
within ten days of the filing or such longer period as the Commission shall
order. The Commission may deny the
application upon a finding that the application fails to set forth prescribed
information, that the subject matter or comparable services are not being
offered to customers by parties other than the applicant, or that applicant's
proposal to provide service does not meet the applicant's cost of providing the
service.
D. After Commission approval of the application, the
provider shall file with the Commission the final contract or other evidence of
the service to be provided within ten days after the conclusion of negotiations
therefore, together with the charges and other conditions of the service which
shall be maintained by the Commission as confidential subject to an appropriate
protective order.
[Recompiled
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17.11.13.22 SEVERABILITY:
If any part or application of these regulations is held invalid the
remainder or its application to other situations or persons shall not be
affected.
[Recompiled
12/30/01]
HISTORY
OF 17.11.13 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed the Commission of Public Records-State
Records Center and Archives.
SCC
Rule 85-4, In The Matter Of Proposed Rule-Making To Adopt Regulations For
Competitive Telecommunications Services, 7/1/85.
SCC
Rule 85-9, Rules And Regulations For Competitive Telecommunications Services,
9/19/85.
History
of Repealed Material: [RESERVED]