1. 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, determine if a wire center serving area is subject to effective competition. When the commission has made a determination that a wire center serving area is subject to effective competition, the commission shall, consistent with the purposes of the New Mexico Telecommunications Act, eliminate rules, regulations and other requirements applicable to the provision of telecommunications services within that wire center serving area. The commission's action shall include the detariffing of service and may include the establishment of minimum rates that will cover the costs for the service. Such action shall be consistent with the maintenance of the availability of access to local exchange service and message telecommunications service at affordable rates comparable in both urban and rural markets as established by the commission, except that volume discounts or other discounts based on reasonable business purposes shall be permitted. The commission 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, however, that this subsection shall not be construed to permit the adoption of any new regulatory requirements or standards for providers of comparable telecommunications services.

2. B. Effective competition pursuant to the New Mexico Telecommunications Act shall exist in a wire center serving area when voice services are available to business customers from two or more alternate providers not affiliated with the incumbent local exchange carrier in the wire center serving area and are available to residential customers from two or more alternate providers not affiliated with the incumbent local exchange carrier in the wire center serving area, regardless of:

   1. (1) the technology used to provide the voice services;
   2. (2) whether the voice services are regulated or unregulated; or
   3. (3) whether the voice services are provided by alternate providers that receive state or federal funding assistance.
3. C. In addition to establishment of effective competition pursuant to Subsection B of this section and upon notice to the commission, when an alternate provider other than the incumbent local exchange carrier has been awarded funding to provide broadband service within a wire center serving area pursuant to a state or federal broadband assistance or deployment program, effective competition for all regulated telecommunications services in that wire center serving area shall exist.
4. D. No provider of public telecommunications service may use current revenues earned or expenses incurred in conjunction with any noncompetitive service to subsidize competitive public telecommunications services. In order to avoid cross-subsidization of competitive services by noncompetitive telecommunications services, prices or rates charged for a competitive telecommunications service shall cover the cost for the provision of the service consistent with the provisions of Subsection G of Section 63-9A-8.1 NMSA 1978. In any proceeding held pursuant to this section, the party claiming that the price for a competitive telecommunications service does not cover the cost shall bear the burden of proving that the prices charged for competitive telecommunications services do not cover cost; provided, however, that the commission may require the telecommunications company against whom the complaint is filed to submit a cost study for the service that is the subject of the complaint as part of its examination and determination of the complaint.
5. E. The commission may, upon its own motion or on the petition of an interested party and after notice to all interested parties and customers and a hearing, reclassify any service previously determined to be a competitive telecommunications service if after a hearing the commission finds that a service is not subject to effective competition.
6. F. If a wire center serving area is deregulated pursuant to a determination of effective competition, for those wire center serving areas where that service is deregulated, the petitioning telecommunications company shall no longer be eligible to claim an exemption from the application of the Unfair Practices Act [Chapter 57, Article 12 NMSA 1978] or the Antitrust Act [57-1-1 to 57-1-15 NMSA 1978].

History: Laws 1985, ch. 242, § 8; 1987, ch. 21, § 6; 2017, ch. 71, § 3; 2023, ch. 92, § 3.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, established that effective competition shall exist in a wire center serving area when voice services are provided to the area by two or more alternate providers, and made technical changes; in Subsection A, after "interested party", deleted "hold hearings to", after "determine if", deleted "any public telecommunications service" and added "a wire center service area", after "effective competition", deleted "in the relevant market area", after "determination that a", deleted "service or part of a service" and added "wire center serving area", after "New Mexico Telecommunications Act", deleted "modify, reduce or", after "the provision of", deleted "such service, including the fixing and determining of specific rates, tariffs or fares for the service" and added "telecommunications services within that wire center serving area", after "detariffing of service", deleted "or" and added "and may include", after "local exchange service", added "and message telecommunications service", after "affordable rates", deleted "and comparable message telecommunications service rates" and added "comparable in both urban and rural markets", after "established by the commission", deleted "for comparable markets or market areas", after "shall be permitted", deleted "Upon petition or request of an affected telecommunications company", and after "The commission", deleted "upon a finding that the requirement of Subsection B of this section are met"; and deleted former Subsections B and C and added new Subsections B and C.

The 2017 amendment, effective June 16, 2017, clarified and provided additional considerations for determining whether a service is subject to effective competition, and provided a presumption of effective competition in certain circumstances; in the catchline, added "effective competition"; in Subsection A, after "requirements of Subsection", deleted "C" and added "B", after "same or similar", added "retail", after "parity of", added "retail", and after the semicolon, added the remainder of the subsection; in Subsection B, in the introductory clause, after "following", added the remainder of the introductory clause, in Paragraph B(1), after "providers", deleted "in the relevant market area"; in Paragraph B(3), after "economic", deleted "or" and added "technological", after "regulatory", added "or other", and after "barriers", added "to market entry and exit", and added Paragraphs B(4) through B(7); added a new Subsection C and redesignated former Subsections C and D as Subsections D and E, respectively; in Subsection D, after "provision of the service", added "consistent with the provisions of Subsection G of Section 63-9A-8.1 NMSA 1978", after "the party", deleted "providing the service" and added "claiming that the price for a competitive telecommunications service does not cover the cost", after "telecommunications services", added "do not", and after the semicolon, added the remainder of the subsection; and added Subsection F.

Constitutional authority not limited. — Although statutory authority specifically is granted to the state corporation commission (now public regulation commission) to regulate a public telecommunications service, such provisions do not limit its constitutional authority under N.M. Const., Art. XI, § 7. Mountain States Tel. & Tel. Co. v. N.M. State Corp. Comm'n, 1990-NMSC-017, 109 N.M. 504, 787 P.2d 423 (decided under prior law).

Under "filed rate doctrine" plaintiff's claims concerning the level of collect telephone call rates were properly dismissed, as the filed rate is the only legal rate. Valdez v. State, 2002-NMSC-028, 132 N.M. 667, 54 P.3d 71.

Commission may regulate rates for intrastate telecommunications services. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004).

Telephone company's third-party billing and collection services were subject to regulation by the state corporation commission (now public regulation commission), where such services involved timing calls through switching operations and transmitting recorded data to the company's billing department. Mountain States Tel. & Tel. Co. v. N.M. SCC, 1988-NMSC-088, 107 N.M. 745, 764 P.2d 876.

Pay telephone services. — State corporation commission (now public regulation commission), in its discretion, could consider any relevant factor in making its determination whether to detariff pay telephone services if effective competition was found to exist. The commission could examine the market-share factor in order to make a decision regarding the existence of effective competition. Mountain States Tel. & Tel. Co. v. N.M. State Corp. Comm'n, 1990-NMSC-017, 109 N.M. 504, 787 P.2d 423.