SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
SENATE BILL 41
56th legislature - STATE OF NEW MEXICO - first session, 2023
AN ACT
RELATING TO TELECOMMUNICATIONS; AMENDING SECTIONS OF THE NEW MEXICO TELECOMMUNICATIONS ACT; REQUIRING THAT INCUMBENT LOCAL EXCHANGE CARRIERS THAT SERVE FIFTY THOUSAND OR MORE ACCESS LINES BE REGULATED IN THE SAME MANNER AS INCUMBENT RURAL TELECOMMUNICATIONS CARRIERS IN MOST CASES; ESTABLISHING THAT EFFECTIVE COMPETITION EXISTS IN A WIRE CENTER SERVING AREA WHEN VOICE SERVICES ARE PROVIDED TO THE AREA BY TWO OR MORE ALTERNATE PROVIDERS; PROVIDING DEFINITIONS; REQUIRING THE PUBLIC REGULATION COMMISSION TO REPORT THE STEPS TAKEN TO ACHIEVE REGULATORY PARITY AMONG CARRIERS; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 63-9A-3 NMSA 1978 (being Laws 1985, Chapter 242, Section 3, as amended) is amended to read:
"63-9A-3. DEFINITIONS.--As used in the New Mexico Telecommunications Act:
A. "affordable rates" means local exchange service rates that promote universal service within a local exchange area, giving consideration to the economic conditions and costs to provide service in such area;
B. "alternate provider" means a person that provides voice services, regardless of the technology used. Such providers are not limited to telecommunications companies and include cellular service companies, satellite companies and companies that provide service using an interconnected voice- over-internet protocol;
[B.] C. "cable television service" means the one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, that is required for the selection of such video programming or other programming service;
[C.] D. "commission" means the public regulation commission;
[D.] E. "competitive telecommunications service" means a service that has been determined to be subject to effective competition pursuant to Section 63-9A-8 NMSA 1978;
[E.] F. "competitive telecommunications service provider" includes competitive carriers holding certificates of public convenience and necessity issued by the commission pursuant to laws and regulations, including, without limitation, Section 63-9A-6 NMSA 1978;
[F.] G. "effective competition" means the competition that results from the customers of the service having reasonably available and comparable alternatives to the service, consistent with the standards set forth in Section 63-9A-8 NMSA 1978;
[G.] H. "fund" means the state rural universal service fund;
[H.] I. "incumbent local exchange carrier" means a person that:
(1) was designated as an eligible telecommunications carrier by the state corporation commission in Docket #97-93-TC by order dated October 23, 1997 or that provided local exchange service in New Mexico on February 8, 1996; or
(2) became a successor or assignee of an incumbent local exchange carrier;
[I.] J. "incumbent rural telecommunications carrier" means an incumbent local exchange carrier that serves fewer than fifty thousand access lines within the state and has been designated as an eligible telecommunications company by the state corporation commission or the public regulation commission;
[J.] K. "local exchange area" means a geographic area encompassing one or more local communities, as described in maps, tariffs or rate schedules filed with the commission, where local exchange rates apply;
[K.] L. "local exchange service" means the transmission of two-way interactive switched voice communications furnished by a telecommunications company within a local exchange area;
[L.] M. "message telecommunications service" means telecommunications service between local exchange areas within the state for which charges are made on a per-unit basis, not including wide-area telecommunications service, or its equivalent, or individually negotiated contracts for telecommunications services;
[M.] N. "noncompetitive telecommunications service" means a service that has not been determined to be subject to effective competition pursuant to Section 63-9A-8 NMSA 1978;
O. "person" means a natural person, individual, corporation, association, partnership or any other legal entity;
[N.] P. "private telecommunications service" means a system, including the construction, maintenance or operation thereof, for the provision of telecommunications service, or any portion of that service, by a person for the sole and exclusive use of that person and not for resale, directly or indirectly. For purposes of this definition, the person that may use such service includes any affiliates of the person if at least eighty percent of the assets or voting stock of the affiliates is owned by the person. If any other person uses the telecommunications service, whether for hire or not, the private telecommunications service is a public telecommunications service;
[O.] Q. "public telecommunications service" means the transmission of signs, signals, writings, images, sounds, messages, data or other information of any nature by wire, radio, lightwaves or other electromagnetic means originating and terminating in this state regardless of actual call routing. "Public telecommunications service" does not include the provision of terminal equipment used to originate or terminate such service; private telecommunications service; broadcast transmissions by radio, television and satellite broadcast stations regulated by the federal communications commission; radio common carrier services, including mobile telephone service and radio paging; or one-way cable television service;
[P.] R. "telecommunications company" means a person that provides public telecommunications service;
S. "voice services" means the transmission of signs, signals, writings, images, sounds, messages, data or other information of any nature by wire, radio, light waves or other electromagnetic means, including those voice services provided by incumbent local exchange carriers, competitive telecommunications service providers, mobile wireless providers and interconnected voice-over-internet protocol service providers;
[Q.] T. "wire center" means a facility where local exchange access lines converge and are connected to a switching device that provides access to the public switched network and includes remote switching units and host switching units; and
[R.] U. "wire center serving area" means the geographic area of a local exchange area served by a single wire center."
SECTION 2. Section 63-9A-5 NMSA 1978 (being Laws 1985, Chapter 242, Section 5, as amended) is amended to read:
"63-9A-5. REGULATION BY COMMISSION.--
A. Except as otherwise provided in the New Mexico Telecommunications Act, each public telecommunications service is declared to be affected with the public interest and, as such, subject to the provisions of that act, including the regulation thereof as provided in that act.
B. Except in cases regarding the fixing of rates pursuant to Section 63-7-1.1 NMSA 1978, the commission has exclusive jurisdiction to regulate incumbent local exchange carriers that serve fifty thousand or more access lines within the state [only in the manner and] to the extent authorized by the New Mexico Telecommunications Act [and Subsection B of Section 63-7-1.1 NMSA 1978 does not apply]; provided [however] that:
(1) the commission's jurisdiction includes the regulation of wholesale rates, including access charges and interconnection agreements consistent with federal law and its enforcement and determinations of participation in low-income telephone service assistance programs pursuant to the Low Income Telephone Service Assistance Act [The New Mexico Telecommunications Act expressly preserves and does not diminish or expand]; and
(2) incumbent local exchange carriers regulated pursuant to this section shall be regulated in the same manner as incumbent rural telecommunications carriers are regulated pursuant to the Rural Telecommunications Act of New Mexico.
C. Any rules adopted by the commission for the regulation of incumbent local exchange carriers pursuant to the New Mexico Telecommunications Act shall preserve and not alter:
(1) the rights and obligations of any entity, including the commission, established pursuant to federal law, including 47 U.S.C. Sections 251 and 252, or established pursuant to any state law, rule, procedure, regulation or order related to interconnection, intercarrier compensation, intercarrier complaints, wholesale rights and obligations or any wholesale rate or schedule that is filed with and maintained by the commission;
(2) the rights and obligations of any competitive telecommunications service provider holding a certificate of public convenience and necessity, or the rights and obligations of any competitive [local exchange] carrier to obtain such a certificate;
(3) the authority of the commission to resolve consumer complaints regarding basic local exchange service; provided, however, that the commission's authority to resolve such complaints shall be limited to resolving issues of consumer protection and shall not include the authority to determine or fix rates, provider of last resort obligations or service quality standards except as expressly set forth in the New Mexico Telecommunications Act;
(4) the authority of the commission to establish reasonable quality of service standards; provided, however, that the enforcement of such standards shall be limited to the commission's fining authority set forth in Section 63-7-23 NMSA 1978 and the authority to seek an injunction set forth in Section 63-9-19 NMSA 1978;
(5) the rights and obligations of any entity, including the commission, regarding the fund;
(6) the rights and obligations of any entity, including the commission, regarding access to emergency service to the extent consistent with the Enhanced 911 Act; or
(7) the rights and obligations of any entity, including the commission, regarding the administration of slamming and cramming rules, telecommunications relay service and numbering resources to the extent permitted by and consistent with federal law.
[C. For incumbent local exchange carriers that serve fifty thousand or more access lines within the state, the commission shall adopt relaxed regulations that provide for:
(1) reduced filing requirements for applicants in rate increase proceedings under the New Mexico Telecommunications Act; and
(2) expedited consideration in all proceedings initiated pursuant to the New Mexico Telecommunications Act in order to reduce the cost and burden for incumbent local exchange carriers and other applicants.
D. The regulatory requirements and the commission's regulation of competitive local exchange carriers, competitive access providers and interexchange carriers shall be no greater than, and no more extensive than, that of incumbent local exchange carriers that serve fifty thousand or more access lines.
E.] D. The provisions of the New Mexico Telecommunications Act do not apply to incumbent rural telecommunications carriers."
SECTION 3. Section 63-9A-8 NMSA 1978 (being Laws 1985, Chapter 242, Section 8, as amended) is amended to read:
"63-9A-8. REGULATION OF RATES AND CHARGES--EFFECTIVE COMPETITION.--
A. In accordance with the policy established in the New Mexico Telecommunications Act, the commission shall, by its own motion or upon petition by any interested party, [hold hearings to] determine if [any public telecommunications service] a wire center serving area is subject to effective competition [in the relevant market area]. When the commission has made a determination that a [service or part of a service] wire center serving area is subject to effective competition, the commission shall, consistent with the purposes of the New Mexico Telecommunications Act, [modify, reduce or] eliminate rules, regulations and other requirements applicable to the provision of [such service, including the fixing and determining of specific rates, tariffs or fares for the service] telecommunications services within that wire center serving area. The commission's action [may] shall include the detariffing of service [or] and may include the establishment of minimum rates that will cover the costs for the service. Such [modification] action shall be consistent with the maintenance of the availability of access to local exchange service and message telecommunications service at affordable rates [and comparable message telecommunications service rates] comparable in both urban and rural markets as established by the commission, [for comparable markets or market areas] except that volume discounts or other discounts based on reasonable business purposes shall be permitted. [Upon petition or request of an affected telecommunications company] The commission [upon a finding that the requirements of Subsection B of this section are met] shall also modify the same or similar retail regulatory requirements for those providers of comparable public telecommunications services in the same relevant markets so that there shall be parity of retail regulatory standards and requirements for all such providers; provided, howev