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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.


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