S.B. 73

1

TELECOMMUNICATION DEFINITION
2 TECHNICAL AMENDMENTS
3 2000 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Lorin V. Jones
6 AN ACT RELATING TO PUBLIC UTILITIES; MAKING CONSISTENT THE DEFINITIONS
7 FOR TELEPHONE CORPORATION AND TELECOMMUNICATIONS CORPORATION.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 54-2-1, as last amended by Chapter 170, Laws of Utah 1996
11 Be it enacted by the Legislature of the state of Utah:
12 Section 1. Section 54-2-1 is amended to read:
13 54-2-1. Definitions.
14 [When] As used in this title:
15 (1) "Avoided costs" means the incremental costs to an electrical corporation of electric
16 energy or capacity or both which, due to the purchase of electric energy or capacity or both from
17 small power production or cogeneration facilities, the electrical corporation would not have to
18 generate itself or purchase from another electrical corporation.
19 (2) "Cogeneration facility":
20 (a) means a facility which produces:
21 (i) electric energy; and
22 (ii) steam or forms of useful energy, including heat, which are used for industrial,
23 commercial, heating, or cooling purposes; and
24 (b) is a qualifying cogeneration facility under federal law.
25 (3) "Commission" means the Public Service Commission of the state of Utah.
26 (4) "Commissioner" means a member of the commission.
27 (5) "Corporation" includes an association, and a joint stock company having any powers

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

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

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

121 (I) primarily engaged in a business other than the business of a public utility; or
122 (II) a person whose total equity or beneficial ownership is held directly or indirectly by
123 another person engaged in a business other than the business of a public utility; and
124 (C) the rent reserved under the lease does not include any amount based on or determined
125 by revenues or income of the lessee.
126 (ii) Any person that is exempt from classification as a public utility under Subsection
127 (16)(f)(i) shall continue to be so exempt from classification following termination of the lessee's
128 right to possession or use of the electric plant for so long as the former lessor does not operate the
129 electric plant or sell electricity from the electric plant. If the former lessor operates the electric
130 plant or sells electricity, the former lessor shall continue to be so exempt for a period of 90 days
131 following termination, or for a longer period that is ordered by the commission. This period may
132 not exceed one year. No change in rates that would otherwise require commission approval may
133 be effective during the 90-day or extended period without commission approval.
134 (g) "Public utility" does not include any person that provides financing for, but has no
135 ownership interest in an electric plant, small power production facility, or cogeneration facility.
136 In the event of a foreclosure in which an ownership interest in an electric plant, small power
137 production facility, or cogeneration facility is transferred to a third-party financer of an electric
138 plant, small power production facility, or cogeneration facility, then that third-party financer is
139 exempt from classification as a public utility for 90 days following the foreclosure, or for a longer
140 period that is ordered by the commission. This period may not exceed one year.
141 (h) (i) The distribution or transportation of natural gas for use as a motor vehicle fuel does
142 not cause the distributor or transporter to be a "public utility," unless the commission, after notice
143 and a public hearing, determines by rule that it is in the public interest to regulate the distributers
144 or transporters, but the retail sale alone of compressed natural gas as a motor vehicle fuel may not
145 cause the seller to be a "public utility."
146 (ii) In determining whether it is in the public interest to regulate the distributors or
147 transporters, the commission shall consider, among other things, the impact of the regulation on
148 the availability and price of natural gas for use as a motor fuel.
149 (15) "Purchasing utility" means any electrical corporation that is required to purchase
150 electricity from small power production or cogeneration facilities pursuant to the Public Utility
151 Regulatory Policies Act, 16 U.S.C. Section 824a-3.

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

183 both the wire-line and the nonwire-line cellular service providers have been issued covering
184 licenses by the Federal Communications Commission. It does not include any person which
185 provides, on a resale basis, any telephone or telecommunication service which is purchased from
186 a telephone corporation] means the same as provided for "telecommunications corporation" in
187 Section 54-8b-2 .
188 (23) "Telephone line" includes all conduits, ducts, poles, wires, cables, instruments, and
189 appliances, and all other real estate, fixtures, and personal property owned, controlled, operated,
190 or managed in connection with or to facilitate communication by telephone whether that
191 communication is had with or without the use of transmission wires.
192 (24) "Transportation of persons" includes every service in connection with or incidental
193 to the safety, comfort, or convenience of the person transported, and the receipt, carriage, and
194 delivery of that person and his baggage.
195 (25) "Transportation of property" includes every service in connection with or incidental
196 to the transportation of property, including in particular its receipt, delivery, elevation, transfer,
197 switching, carriage, ventilation, refrigeration, icing, dunnage, storage, and hauling, and the
198 transmission of credit by express companies.
199 (26) "Water corporation" includes every corporation and person, their lessees, trustees, and
200 receivers, owning, controlling, operating, or managing any water system for public service within
201 this state. It does not include private irrigation companies engaged in distributing water only to
202 their stockholders, or towns, cities, counties, water conservancy districts, improvement districts,
203 or other governmental units created or organized under any general or special law of this state.
204 (27) "Water system" includes all reservoirs, tunnels, shafts, dams, dikes, headgates, pipes,
205 flumes, canals, structures, and appliances, and all other real estate, fixtures, and personal property
206 owned, controlled, operated, or managed in connection with or to facilitate the diversion,
207 development, storage, supply, distribution, sale, furnishing, carriage, appointment, apportionment,
208 or measurement of water for power, fire protection, irrigation, reclamation, or manufacturing, or
209 for municipal, domestic, or other beneficial use. It does not include private irrigation companies
210 engaged in distributing water only to their stockholders.
211 (28) "Wholesale electrical cooperative" includes every electrical corporation:
212 (a) which is in the business of the wholesale distribution of electricity it has purchased or
213 generated to its members and the public; and

214 (b) which is required to distribute or allocate savings in excess of additions to reserves and
215 surplus to members or patrons on the basis of patronage.




Legislative Review Note
as of 10-20-99 3:32 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

Committee Note

The Public Utilities and Technology Interim Committee recommended this bill.