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First Substitute S.B. 73

Senator Lorin V. Jones proposes to substitute the following bill:


             1     
TELEPHONE CORPORATION DEFINITION AMENDMENTS

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Lorin V. Jones

             5      AN ACT RELATING TO PUBLIC UTILITIES; AMENDING THE DEFINITION OF
             6      TELEPHONE CORPORATION.
             7      This act affects sections of Utah Code Annotated 1953 as follows:
             8      AMENDS:
             9          54-2-1, as last amended by Chapter 170, Laws of Utah 1996
             10      Be it enacted by the Legislature of the state of Utah:
             11          Section 1. Section 54-2-1 is amended to read:
             12           54-2-1. Definitions.
             13          [When] As used in this title:
             14          (1) "Avoided costs" means the incremental costs to an electrical corporation of electric
             15      energy or capacity or both which, due to the purchase of electric energy or capacity or both from
             16      small power production or cogeneration facilities, the electrical corporation would not have to
             17      generate itself or purchase from another electrical corporation.
             18          (2) "Cogeneration facility":
             19          (a) means a facility which produces:
             20          (i) electric energy; and
             21          (ii) steam or forms of useful energy, including heat, which are used for industrial,
             22      commercial, heating, or cooling purposes; and
             23          (b) is a qualifying cogeneration facility under federal law.
             24          (3) "Commission" means the Public Service Commission of the state of Utah.
             25          (4) "Commissioner" means a member of the commission.


             26          (5) "Corporation" includes an association, and a joint stock company having any powers
             27      or privileges not possessed by individuals or partnerships. It does not include towns, cities,
             28      counties, conservancy districts, improvement districts, or other governmental units created or
             29      organized under any general or special law of this state.
             30          (6) "Electrical corporation" includes every corporation, cooperative association, and
             31      person, their lessees, trustees, and receivers, owning, controlling, operating, or managing any
             32      electric plant, or in any way furnishing electric power for public service or to its consumers or
             33      members for domestic, commercial, or industrial use, within this state, except independent energy
             34      producers, and except where electricity is generated on or distributed by the producer solely for
             35      his own use, or the use of his tenants, or for the use of members of an association of unit owners
             36      formed under Title 57, Chapter 8, Condominium Ownership Act, and not for sale to the public
             37      generally.
             38          (7) "Electric plant" includes all real estate, fixtures, and personal property owned,
             39      controlled, operated, or managed in connection with or to facilitate the production, generation,
             40      transmission, delivery, or furnishing of electricity for light, heat, or power, and all conduits, ducts,
             41      or other devices, materials, apparatus, or property for containing, holding, or carrying conductors
             42      used or to be used for the transmission of electricity for light, heat, or power.
             43          (8) "Gas corporation" includes every corporation and person, their lessees, trustees, and
             44      receivers, owning, controlling, operating, or managing any gas plant for public service within this
             45      state or for the selling or furnishing of natural gas to any consumer or consumers within the state
             46      for domestic, commercial, or industrial use, except in the situation that:
             47          (a) gas is made or produced on, and distributed by the maker or producer through, private
             48      property, solely for his own use or the use of his tenants and not for sale to others;
             49          (b) gas is compressed on private property solely for the owner's own use or the use of his
             50      employees as a motor vehicle fuel; or
             51          (c) gas is compressed by a retailer of motor vehicle fuel on his property solely for sale as
             52      a motor vehicle fuel.
             53          (9) "Gas plant" includes all real estate, fixtures, and personal property owned, controlled,
             54      operated, or managed in connection with or to facilitate the production, generation, transmission,
             55      delivery, or furnishing of gas, natural or manufactured, for light, heat, or power.
             56          (10) "Heat corporation" includes every corporation and person, their lessees, trustees, and


             57      receivers, owning, controlling, operating, or managing any heating plant for public service within
             58      this state.
             59          (11) "Heating plant" includes all real estate, fixtures, machinery, appliances, and personal
             60      property controlled, operated, or managed in connection with or to facilitate the production,
             61      generation, transmission, delivery, or furnishing of artificial heat. Heating plant does not include
             62      either small power production facilities or cogeneration facilities.
             63          (12) "Independent energy producer" means every electrical corporation, person,
             64      corporation, or government entity, their lessees, trustees, or receivers, that own, operate, control,
             65      or manage a small power production or cogeneration facility.
             66          (13) "Private telecommunications system" includes all facilities for the transmission of
             67      signs, signals, writing, images, sounds, messages, data, or other information of any nature by wire,
             68      radio, lightwaves, or other electromagnetic means, excluding mobile radio facilities, that are
             69      owned, controlled, operated, or managed by a corporation or person, including their lessees,
             70      trustees, receivers, or trustees appointed by any court, for the use of that corporation or person and
             71      not for the shared use with or resale to any other corporation or person on a regular basis.
             72          (14) (a) "Public utility" includes every railroad corporation, gas corporation, electrical
             73      corporation, wholesale electrical cooperative, telephone corporation, telegraph corporation, water
             74      corporation, sewerage corporation, heat corporation, and independent energy producer not
             75      described in Subsection (d), where the service is performed for, or the commodity delivered to, the
             76      public generally, or in the case of a gas corporation or electrical corporation where the gas or
             77      electricity is sold or furnished to any member or consumers within the state for domestic,
             78      commercial, or industrial use.
             79          (b) (i) If any railroad corporation, gas corporation, electrical corporation, telephone
             80      corporation, telegraph corporation, water corporation, sewerage corporation, heat corporation, or
             81      independent energy producer not described in Subsection (d), performs a service for or delivers
             82      a commodity to the public, it is considered to be a public utility, subject to the jurisdiction and
             83      regulation of the commission and this title.
             84          (ii) If a gas corporation, independent energy producer not described in Subsection (d), or
             85      electrical corporation sells or furnishes gas or electricity to any member or consumers within the
             86      state, for domestic, commercial, or industrial use, for which any compensation or payment is
             87      received, it is considered to be a public utility, subject to the jurisdiction and regulation of the


             88      commission and this title.
             89          (c) Any corporation or person not engaged in business exclusively as a public utility as
             90      defined in this section is governed by this title in respect only to the public utility owned,
             91      controlled, operated, or managed by it or by him, and not in respect to any other business or
             92      pursuit.
             93          (d) An independent energy producer is exempt from the jurisdiction and regulations of the
             94      commission if it meets the requirements of (i), (ii), or (iii), or any combination of these:
             95          (i) the commodity or service is produced or delivered, or both, by an independent energy
             96      producer solely for the uses exempted in Subsection (6) or for the use of state-owned facilities;
             97          (ii) the commodity or service is sold by an independent energy producer to an electrical
             98      corporation; or
             99          (iii) (A) the commodity or service delivered by the independent energy producer is
             100      delivered to an entity which controls, is controlled by, or affiliated with the independent energy
             101      producer or to a user located on real property managed by the independent energy producer; and
             102          (B) the real property on which the service or commodity is used is contiguous to real
             103      property which is owned or controlled by the independent energy producer. Parcels of real
             104      property separated solely by public roads or easements for public roads shall be considered as
             105      contiguous for purposes of this subsection.
             106          (e) Any person or corporation defined as an electrical corporation or public utility under
             107      this section may continue to serve its existing customers subject to any order or future
             108      determination of the commission in reference to the right to serve those customers.
             109          (f) (i) "Public utility" does not include any person that is otherwise considered a public
             110      utility under the provisions of Subsection (16) solely because of its ownership of an interest in an
             111      electric plant, cogeneration facility, or small power production facility in this state if all of the
             112      following conditions are met:
             113          (A) the ownership interest in the electric plant, cogeneration facility, or small power
             114      production facility is leased to:
             115          (I) a public utility, and that lease has been approved by the commission;
             116          (II) a person or government entity that is exempt from commission regulation as a public
             117      utility; or
             118          (III) a combination of Subsections (16)(f)(i)(A)(I) and (II);


             119          (B) the lessor of the ownership interest identified in Subsection (16)(f)(i)(A) is:
             120          (I) primarily engaged in a business other than the business of a public utility; or
             121          (II) a person whose total equity or beneficial ownership is held directly or indirectly by
             122      another person engaged in a business other than the business of a public utility; and
             123          (C) the rent reserved under the lease does not include any amount based on or determined
             124      by revenues or income of the lessee.
             125          (ii) Any person that is exempt from classification as a public utility under Subsection
             126      (16)(f)(i) shall continue to be so exempt from classification following termination of the lessee's
             127      right to possession or use of the electric plant for so long as the former lessor does not operate the
             128      electric plant or sell electricity from the electric plant. If the former lessor operates the electric
             129      plant or sells electricity, the former lessor shall continue to be so exempt for a period of 90 days
             130      following termination, or for a longer period that is ordered by the commission. This period may
             131      not exceed one year. No change in rates that would otherwise require commission approval may
             132      be effective during the 90-day or extended period without commission approval.
             133          (g) "Public utility" does not include any person that provides financing for, but has no
             134      ownership interest in an electric plant, small power production facility, or cogeneration facility.
             135      In the event of a foreclosure in which an ownership interest in an electric plant, small power
             136      production facility, or cogeneration facility is transferred to a third-party financer of an electric
             137      plant, small power production facility, or cogeneration facility, then that third-party financer is
             138      exempt from classification as a public utility for 90 days following the foreclosure, or for a longer
             139      period that is ordered by the commission. This period may not exceed one year.
             140          (h) (i) The distribution or transportation of natural gas for use as a motor vehicle fuel does
             141      not cause the distributor or transporter to be a "public utility," unless the commission, after notice
             142      and a public hearing, determines by rule that it is in the public interest to regulate the distributers
             143      or transporters, but the retail sale alone of compressed natural gas as a motor vehicle fuel may not
             144      cause the seller to be a "public utility."
             145          (ii) In determining whether it is in the public interest to regulate the distributors or
             146      transporters, the commission shall consider, among other things, the impact of the regulation on
             147      the availability and price of natural gas for use as a motor fuel.
             148          (15) "Purchasing utility" means any electrical corporation that is required to purchase
             149      electricity from small power production or cogeneration facilities pursuant to the Public Utility


             150      Regulatory Policies Act, 16 U.S.C. Section 824a-3.
             151          (16) "Railroad" includes every commercial, interurban, and other railway, other than a
             152      street railway, and each branch or extension of a railway, by any power operated, together with all
             153      tracks, bridges, trestles, rights-of-way, subways, tunnels, stations, depots, union depots, yards,
             154      grounds, terminals, terminal facilities, structures, and equipment, and all other real estate, fixtures,
             155      and personal property of every kind used in connection with a railway owned, controlled, operated,
             156      or managed for public service in the transportation of persons or property.
             157          (17) "Railroad corporation" includes every corporation and person, their lessees, trustees,
             158      and receivers, owning, controlling, operating, or managing any railroad for public service within
             159      this state.
             160          (18) "Sewerage corporation" includes every corporation and person, their lessees, trustees,
             161      and receivers, owning, controlling, operating, or managing any sewerage system for public service
             162      within this state. It does not include private sewerage companies engaged in disposing of sewage
             163      only for their stockholders, or towns, cities, counties, conservancy districts, improvement districts,
             164      or other governmental units created or organized under any general or special law of this state.
             165          (19) "Small power production facility" means a facility which:
             166          (a) produces electric energy solely by the use, as a primary energy source, of biomass,
             167      waste, renewable resources, geothermal resources, or any combination of them;
             168          (b) has a power production capacity which, together with any other facilities located at the
             169      same site, is not greater than 80 megawatts; and
             170          (c) is a qualifying small power production facility under federal law.
             171          (20) "Telegraph corporation" includes every corporation and person, their lessees, trustees,
             172      and receivers, owning, controlling, operating, or managing any telegraph line for public service
             173      within this state.
             174          (21) "Telegraph line" includes all conduits, ducts, poles, wires, cables, instruments, and
             175      appliances, and all other real estate, fixtures, and personal property owned, controlled, operated,
             176      or managed in connection with or to facilitate communication by telegraph, whether that
             177      communication be had with or without the use of transmission wires.
             178          (22) (a) "Telephone corporation" [includes every corporation and person, their lessees,
             179      trustees, and receivers, owning, controlling, operating, or managing any telephone line for public
             180      service within this state, provided, however, that all corporations, partnerships, or firms providing


             181      intrastate cellular telephone service shall cease to be "telephone corporations" nine months after
             182      both the wire-line and the nonwire-line cellular service providers have been issued covering
             183      licenses by the Federal Communications Commission. It does not include any person which
             184      provides, on a resale basis, any telephone or telecommunication service which is purchased from
             185      a telephone corporation.] means any corporation or person, and their lessees, trustee, receivers, or
             186      trustees appointed by any court, who owns, controls, operates, manages, or resells a public
             187      telecommunications service as defined in Section 54-86-2 .
             188          (b) "Telephone corporation" does not mean a corporation, partnership, or firm providing:
             189          (i) intrastate h [ cellular ] h telephone service h OFFERED BY A PROVIDER OF CELLULAR,
             189a      PERSONAL COMMUNICATION SYSTEMS (PCS), OR OTHER COMMERCIAL MOBILE RADIO SERVICE
             189b      AS DEFINED IN 47 U.S.C. SEC. 332(d)(i) h that has been issued a covering license by the
             190      Federal Communications Commission; S [ or ] s
             191          (ii) Internet S [ access ] SERVICE; OR s .
             191a      S (iii) RESOLD INTRASTATE TOLL SERVICE. s
             192          (23) "Telephone line" includes all conduits, ducts, poles, wires, cables, instruments, and
             193      appliances, and all other real estate, fixtures, and personal property owned, controlled, operated,
             194      or managed in connection with or to facilitate communication by telephone whether that
             195      communication is had with or without the use of transmission wires.
             196          (24) "Transportation of persons" includes every service in connection with or incidental
             197      to the safety, comfort, or convenience of the person transported, and the receipt, carriage, and
             198      delivery of that person and his baggage.
             199          (25) "Transportation of property" includes every service in connection with or incidental
             200      to the transportation of property, including in particular its receipt, delivery, elevation, transfer,
             201      switching, carriage, ventilation, refrigeration, icing, dunnage, storage, and hauling, and the
             202      transmission of credit by express companies.
             203          (26) "Water corporation" includes every corporation and person, their lessees, trustees, and
             204      receivers, owning, controlling, operating, or managing any water system for public service within
             205      this state. It does not include private irrigation companies engaged in distributing water only to
             206      their stockholders, or towns, cities, counties, water conservancy districts, improvement districts,
             207      or other governmental units created or organized under any general or special law of this state.
             208          (27) "Water system" includes all reservoirs, tunnels, shafts, dams, dikes, headgates, pipes,
             209      flumes, canals, structures, and appliances, and all other real estate, fixtures, and personal property
             210      owned, controlled, operated, or managed in connection with or to facilitate the diversion,
             211      development, storage, supply, distribution, sale, furnishing, carriage, appointment, apportionment,


             212      or measurement of water for power, fire protection, irrigation, reclamation, or manufacturing, or
             213      for municipal, domestic, or other beneficial use. It does not include private irrigation companies
             214      engaged in distributing water only to their stockholders.
             215          (28) "Wholesale electrical cooperative" includes every electrical corporation:
             216          (a) which is in the business of the wholesale distribution of electricity it has purchased or
             217      generated to its members and the public; and
             218          (b) which is required to distribute or allocate savings in excess of additions to reserves and
             219      surplus to members or patrons on the basis of patronage.


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