45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO TELECOMMUNICATIONS; ALLOWING PERSONS TO RECEIVE TELECOMMUNICATIONS SERVICES FROM PROVIDERS OUTSIDE A CERTIFICATED SERVICE AREA; AMENDING THE NEW MEXICO TELECOMMUNICATIONS ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 63-9A-6 NMSA 1978 (being Laws 1985, Chapter 242, Section 6, as amended) is amended to read:

"63-9A-6. CERTIFICATE REQUIRED.--

A. No public telecommunications service shall be offered in this state except in accordance with the provisions of the New Mexico Telecommunications Act.

B. No public telecommunications service shall be offered within this state without the telecommunications company first having obtained from the commission a certificate declaring that the operation is in the present or future public convenience and necessity, unless the operation is otherwise authorized by the New Mexico Telecommunications Act.

C. The commission shall have full power and authority to determine matters of public convenience and necessity relating to the issuance of a certificate of public convenience and necessity to a provider of public telecommunications service; provided, however, that in keeping with the purposes of the New Mexico Telecommunications Act, the commission shall not deny an applicant a certificate on the grounds of need if it is shown that the applicant possesses adequate financial resources and technical competency to provide the service. It shall be within the discretion of the commission to determine when and upon what conditions plant, equipment or services may be provided under certificates of public convenience and necessity, by more than one person, and the commission may attach to the exercise of rights granted by the certificate such terms and conditions as, in its judgment, the public convenience and necessity may require or as otherwise authorized.

D. Notwithstanding the provisions of Subsection C of this section, any telecommunications company with less than one hundred thousand access lines holding a certificate of public convenience and necessity to provide local exchange service to the public shall have the exclusive right to provide local exchange service within its certificated service territory and shall not be subject to competition in the provision of local exchange service in its certificated service territory unless the commission issues a variance pursuant to Section 63-9A-6.3 NMSA 1978 or determines that public convenience and necessity require additional plant or equipment for the provision of local exchange service within the certificated service territory of the existing telecommunications company and a certificate of public convenience and necessity is granted pursuant to Subsection E of this section.

E. In determining whether public convenience and necessity require an additional certificate to provide local exchange service in a certificated service territory, the commission shall, in a proceeding in which the telecommunications company certificated in the affected area is a party, consider and determine upon substantial evidence that the following conditions exist:

(1) the existing telecommunications company is inadequate to meet the reasonable needs and convenience of the public;

(2) the proposed second plant or equipment would eliminate such inadequacy;

(3) it is economically feasible to operate the proposed second plant or equipment successfully and continuously for the furnishing of local exchange service;

(4) the applicant for the second plant or equipment has sufficient financial resources to provide the proposed local exchange service properly and continuously;

(5) the applicant for the second plant or equipment has competent and experienced management and personnel to provide the proposed local exchange service;

(6) the applicant for the second plant or equipment is willing and able to conform to the constitution of New Mexico and laws of New Mexico and the rules and regulations of the commission;

(7) the applicant for the second plant or equipment is in every respect willing and able to provide the proposed local exchange service properly; and

(8) granting the additional certificate to the applicant shall not have a significant adverse impact on the existing telecommunications company.

F. All certificates of public convenience and necessity shall:

(1) continue in force, notwithstanding the provisions of this section [63-9A-2 NMSA 1978]; and

(2) remain subject to all terms and conditions imposed by statute or commission order at the time of issuance or in connection with any subsequent amendment, notwithstanding the provisions of [that] this section."

Section 2. A new section of the New Mexico Telecommunications Act, Section 63-9A-6.3 NMSA 1978, is enacted to read:

"63-9A-6.3. [NEW MATERIAL] EXCEPTION TO EXCLUSIVE CERTIFICATED SERVICE AREAS.--

A. A person in a certificated service area granted pursuant to Section 63-9A-6 NMSA 1978 who has requested but is not receiving service from the telecommunications company holding the certificate of convenience and necessity for that area may request and receive service from another telecommunications company willing to provide service to that customer.

B. If a telecommunications company agrees to provide service to a person requesting service outside its certificated service area in accordance with Subsection A of this section, the company shall notify the commission, which shall issue a variance to the company's certificate allowing the company to provide the service in another company's certificated territory."