H.B. 167

1

PUBLIC SERVICE COMMISSION -
2 REGULATION OF CABLE COMPANIES
3 2004 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: David L. Hogue
6
7 LONG TITLE
8 General Description:
9 This bill modifies the definition of a public utility within the Public Utilities Code.
10 Highlighted Provisions:
11 This bill:
12 . defines a cable television provider as a public utility for purposes of the Public
13 Utilities Code; and
14 . makes technical changes.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 54-2-1, as last amended by Chapter 212, Laws of Utah 2001
22
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 54-2-1 is amended to read:
25 54-2-1. Definitions.
26 As used in this title:
27 (1) "Avoided costs" means the incremental costs to an electrical corporation of electric

28 energy or capacity or both which, due to the purchase of electric energy or capacity or both
29 from small power production or cogeneration facilities, the electrical corporation would not
30 have to generate itself or purchase from another electrical corporation.
31 (2) "Cable television provider" means a person who owns, controls, operates, manages,
32 or resells cable television service, as defined in Section 10-18-102 .
33 [(2)] (3) "Cogeneration facility":
34 (a) means a facility which produces:
35 (i) electric energy; and
36 (ii) steam or forms of useful energy, including heat, which are used for industrial,
37 commercial, heating, or cooling purposes; and
38 (b) is a qualifying cogeneration facility under federal law.
39 [(3)] (4) "Commission" means the Public Service Commission of Utah.
40 [(4)] (5) "Commissioner" means a member of the commission.
41 [(5)] (6) (a) "Corporation" includes an association, and a joint stock company having
42 any powers or privileges not possessed by individuals or partnerships.
43 (b) "Corporation" does not include towns, cities, counties, conservancy districts,
44 improvement districts, or other governmental units created or organized under any general or
45 special law of this state.
46 [(6)] (7) "Distribution electrical cooperative" includes an electrical corporation that:
47 (a) is a cooperative;
48 (b) conducts a business that includes the retail distribution of electricity the cooperative
49 purchases or generates for the cooperative's members; and
50 (c) is required to allocate or distribute savings in excess of additions to reserves and
51 surplus on the basis of patronage to the cooperative's:
52 (i) members; or
53 (ii) patrons.
54 [(7)] (8) "Electrical corporation" includes every corporation, cooperative association,
55 and person, their lessees, trustees, and receivers, owning, controlling, operating, or managing
56 any electric plant, or in any way furnishing electric power for public service or to its consumers
57 or members for domestic, commercial, or industrial use, within this state, except independent
58 energy producers, and except where electricity is generated on or distributed by the producer

59 solely for the producer's own use, or the use of the producer's tenants, or for the use of
60 members of an association of unit owners formed under Title 57, Chapter 8, Condominium
61 Ownership Act, and not for sale to the public generally.
62 [(8)] (9) "Electric plant" includes all real estate, fixtures, and personal property owned,
63 controlled, operated, or managed in connection with or to facilitate the production, generation,
64 transmission, delivery, or furnishing of electricity for light, heat, or power, and all conduits,
65 ducts, or other devices, materials, apparatus, or property for containing, holding, or carrying
66 conductors used or to be used for the transmission of electricity for light, heat, or power.
67 [(9)] (10) "Gas corporation" includes every corporation and person, their lessees,
68 trustees, and receivers, owning, controlling, operating, or managing any gas plant for public
69 service within this state or for the selling or furnishing of natural gas to any consumer or
70 consumers within the state for domestic, commercial, or industrial use, except in the situation
71 that:
72 (a) gas is made or produced on, and distributed by the maker or producer through,
73 private property:
74 (i) solely for the maker's or producer's own use or the use of the maker's or producer's
75 tenants; and
76 (ii) not for sale to others;
77 (b) gas is compressed on private property solely for the owner's own use or the use of
78 the owner's employees as a motor vehicle fuel; or
79 (c) gas is compressed by a retailer of motor vehicle fuel on the retailer's property solely
80 for sale as a motor vehicle fuel.
81 [(10)] (11) "Gas plant" includes all real estate, fixtures, and personal property owned,
82 controlled, operated, or managed in connection with or to facilitate the production, generation,
83 transmission, delivery, or furnishing of gas, natural or manufactured, for light, heat, or power.
84 [(11)] (12) "Heat corporation" includes every corporation and person, their lessees,
85 trustees, and receivers, owning, controlling, operating, or managing any heating plant for public
86 service within this state.
87 [(12)] (13) (a) "Heating plant" includes all real estate, fixtures, machinery, appliances,
88 and personal property controlled, operated, or managed in connection with or to facilitate the
89 production, generation, transmission, delivery, or furnishing of artificial heat.

90 (b) "Heating plant" does not include either small power production facilities or
91 cogeneration facilities.
92 [(13)] (14) "Independent energy producer" means every electrical corporation, person,
93 corporation, or government entity, their lessees, trustees, or receivers, that own, operate,
94 control, or manage a small power production or cogeneration facility.
95 [(14)] (15) "Private telecommunications system" includes all facilities for the
96 transmission of signs, signals, writing, images, sounds, messages, data, or other information of
97 any nature by wire, radio, lightwaves, or other electromagnetic means, excluding mobile radio
98 facilities, that are owned, controlled, operated, or managed by a corporation or person,
99 including their lessees, trustees, receivers, or trustees appointed by any court, for the use of that
100 corporation or person and not for the shared use with or resale to any other corporation or
101 person on a regular basis.
102 [(15)] (16) (a) "Public utility" includes every railroad corporation, gas corporation,
103 electrical corporation, distribution electrical cooperative, wholesale electrical cooperative,
104 telephone corporation, telegraph corporation, water corporation, sewerage corporation, heat
105 corporation, cable television provider, and independent energy producer not described in
106 Subsection [(15)] (16)(d), where the service is performed for, or the commodity delivered to,
107 the public generally, or in the case of a gas corporation or electrical corporation where the gas
108 or electricity is sold or furnished to any member or consumers within the state for domestic,
109 commercial, or industrial use.
110 (b) (i) If any railroad corporation, gas corporation, electrical corporation, telephone
111 corporation, telegraph corporation, water corporation, sewerage corporation, heat corporation,
112 cable television provider, or independent energy producer not described in Subsection [(15)]
113 (16)(d), performs a service for or delivers a commodity to the public, it is considered to be a
114 public utility, subject to the jurisdiction and regulation of the commission and this title.
115 (ii) If a gas corporation, independent energy producer not described in Subsection
116 [(15)] (16)(d), or electrical corporation sells or furnishes gas or electricity to any member or
117 consumers within the state, for domestic, commercial, or industrial use, for which any
118 compensation or payment is received, it is considered to be a public utility, subject to the
119 jurisdiction and regulation of the commission and this title.
120 (c) Any corporation or person not engaged in business exclusively as a public utility as

121 defined in this section is governed by this title in respect only to the public utility owned,
122 controlled, operated, or managed by the corporation or person, and not in respect to any other
123 business or pursuit.
124 (d) An independent energy producer is exempt from the jurisdiction and regulations of
125 the commission if it meets the requirements of Subsection [(15)] (16)(d)(i), (ii), or (iii), or any
126 combination of these:
127 (i) the commodity or service is produced or delivered, or both, by an independent
128 energy producer solely for the uses exempted in Subsection [(7)] (8) or for the use of
129 state-owned facilities;
130 (ii) the commodity or service is sold by an independent energy producer to an electrical
131 corporation; or
132 (iii) (A) the commodity or service delivered by the independent energy producer is
133 delivered to an entity which controls, is controlled by, or affiliated with the independent energy
134 producer or to a user located on real property managed by the independent energy producer;
135 and
136 (B) the real property on which the service or commodity is used is contiguous to real
137 property which is owned or controlled by the independent energy producer. Parcels of real
138 property separated solely by public roads or easements for public roads shall be considered as
139 contiguous for purposes of this Subsection [(15)] (16).
140 (e) Any person or corporation defined as an electrical corporation or public utility
141 under this section may continue to serve its existing customers subject to any order or future
142 determination of the commission in reference to the right to serve those customers.
143 (f) (i) "Public utility" does not include any person that is otherwise considered a public
144 utility under this Subsection [(15)] (16) solely because of that person's ownership of an interest
145 in an electric plant, cogeneration facility, or small power production facility in this state if all of
146 the following conditions are met:
147 (A) the ownership interest in the electric plant, cogeneration facility, or small power
148 production facility is leased to:
149 (I) a public utility, and that lease has been approved by the commission;
150 (II) a person or government entity that is exempt from commission regulation as a
151 public utility; or

152 (III) a combination of Subsections [(15)] (16)(f)(i)(A)(I) and (II);
153 (B) the lessor of the ownership interest identified in Subsection [(15)] (16)(f)(i)(A) is:
154 (I) primarily engaged in a business other than the business of a public utility; or
155 (II) a person whose total equity or beneficial ownership is held directly or indirectly by
156 another person engaged in a business other than the business of a public utility; and
157 (C) the rent reserved under the lease does not include any amount based on or
158 determined by revenues or income of the lessee.
159 (ii) Any person that is exempt from classification as a public utility under Subsection
160 [(15)] (16)(f)(i) shall continue to be so exempt from classification following termination of the
161 lessee's right to possession or use of the electric plant for so long as the former lessor does not
162 operate the electric plant or sell electricity from the electric plant. If the former lessor operates
163 the electric plant or sells electricity, the former lessor shall continue to be so exempt for a
164 period of 90 days following termination, or for a longer period that is ordered by the
165 commission. This period may not exceed one year. A change in rates that would otherwise
166 require commission approval may not be effective during the 90-day or extended period
167 without commission approval.
168 (g) "Public utility" does not include any person that provides financing for, but has no
169 ownership interest in an electric plant, small power production facility, or cogeneration facility.
170 In the event of a foreclosure in which an ownership interest in an electric plant, small power
171 production facility, or cogeneration facility is transferred to a third-party financer of an electric
172 plant, small power production facility, or cogeneration facility, then that third-party financer is
173 exempt from classification as a public utility for 90 days following the foreclosure, or for a
174 longer period that is ordered by the commission. This period may not exceed one year.
175 (h) (i) The distribution or transportation of natural gas for use as a motor vehicle fuel
176 does not cause the distributor or transporter to be a "public utility," unless the commission,
177 after notice and a public hearing, determines by rule that it is in the public interest to regulate
178 the distributers or transporters, but the retail sale alone of compressed natural gas as a motor
179 vehicle fuel may not cause the seller to be a "public utility."
180 (ii) In determining whether it is in the public interest to regulate the distributors or
181 transporters, the commission shall consider, among other things, the impact of the regulation
182 on the availability and price of natural gas for use as a motor fuel.

183 [(16)] (17) "Purchasing utility" means any electrical corporation that is required to
184 purchase electricity from small power production or cogeneration facilities pursuant to the
185 Public Utility Regulatory Policies Act, 16 U.S.C. Section 824a-3.
186 [(17)] (18) "Railroad" includes every commercial, interurban, and other railway, other
187 than a street railway, and each branch or extension of a railway, by any power operated,
188 together with all tracks, bridges, trestles, rights-of-way, subways, tunnels, stations, depots,
189 union depots, yards, grounds, terminals, terminal facilities, structures, and equipment, and all
190 other real estate, fixtures, and personal property of every kind used in connection with a
191 railway owned, controlled, operated, or managed for public service in the transportation of
192 persons or property.
193 [(18)] (19) "Railroad corporation" includes every corporation and person, their lessees,
194 trustees, and receivers, owning, controlling, operating, or managing any railroad for public
195 service within this state.
196 [(19)] (20) (a) "Sewerage corporation" includes every corporation and person, their
197 lessees, trustees, and receivers, owning, controlling, operating, or managing any sewerage
198 system for public service within this state.
199 (b) "Sewerage corporation" does not include private sewerage companies engaged in
200 disposing of sewage only for their stockholders, or towns, cities, counties, conservancy
201 districts, improvement districts, or other governmental units created or organized under any
202 general or special law of this state.
203 [(20)] (21) "Small power production facility" means a facility which:
204 (a) produces electric energy solely by the use, as a primary energy source, of biomass,
205 waste, renewable resources, geothermal resources, or any combination of them;
206 (b) has a power production capacity that, together with any other facilities located at
207 the same site, is not greater than 80 megawatts; and
208 (c) is a qualifying small power production facility under federal law.
209 [(21)] (22) "Telegraph corporation" includes every corporation and person, their
210 lessees, trustees, and receivers, owning, controlling, operating, or managing any telegraph line
211 for public service within this state.
212 [(22)] (23) "Telegraph line" includes all conduits, ducts, poles, wires, cables,
213 instruments, and appliances, and all other real estate, fixtures, and personal property owned,

214 controlled, operated, or managed in connection with or to facilitate communication by
215 telegraph, whether that communication be had with or without the use of transmission wires.
216 [(23)] (24) (a) "Telephone corporation" means any corporation or person, and their
217 lessees, trustee, receivers, or trustees appointed by any court, who owns, controls, operates,
218 manages, or resells a public telecommunications service as defined in Section 54-8b-2 .
219 (b) "Telephone corporation" does not mean a corporation, partnership, or firm
220 providing:
221 (i) intrastate telephone service offered by a provider of cellular, personal
222 communication systems (PCS), or other commercial mobile radio service as defined in 47
223 U.S.C. Sec. 332 that has been issued a covering license by the Federal Communications
224 Commission;
225 (ii) Internet service; or
226 (iii) resold intrastate toll service.
227 [(24)] (25) "Telephone line" includes all conduits, ducts, poles, wires, cables,
228 instruments, and appliances, and all other real estate, fixtures, and personal property owned,
229 controlled, operated, or managed in connection with or to facilitate communication by
230 telephone whether that communication is had with or without the use of transmission wires.
231 [(25)] (26) "Transportation of persons" includes every service in connection with or
232 incidental to the safety, comfort, or convenience of the person transported, and the receipt,
233 carriage, and delivery of that person and that person's baggage.
234 [(26)] (27) "Transportation of property" includes every service in connection with or
235 incidental to the transportation of property, including in particular its receipt, delivery,
236 elevation, transfer, switching, carriage, ventilation, refrigeration, icing, dunnage, storage, and
237 hauling, and the transmission of credit by express companies.
238 [(27)] (28) "Water corporation" includes every corporation and person, their lessees,
239 trustees, and receivers, owning, controlling, operating, or managing any water system for
240 public service within this state. It does not include private irrigation companies engaged in
241 distributing water only to their stockholders, or towns, cities, counties, water conservancy
242 districts, improvement districts, or other governmental units created or organized under any
243 general or special law of this state.
244 [(28)] (29) (a) "Water system" includes all reservoirs, tunnels, shafts, dams, dikes,

245 headgates, pipes, flumes, canals, structures, and appliances, and all other real estate, fixtures,
246 and personal property owned, controlled, operated, or managed in connection with or to
247 facilitate the diversion, development, storage, supply, distribution, sale, furnishing, carriage,
248 appointment, apportionment, or measurement of water for power, fire protection, irrigation,
249 reclamation, or manufacturing, or for municipal, domestic, or other beneficial use.
250 (b) "Water system" does not include private irrigation companies engaged in
251 distributing water only to their stockholders.
252 [(29)] (30) "Wholesale electrical cooperative" includes every electrical corporation that
253 is:
254 (a) in the business of the wholesale distribution of electricity it has purchased or
255 generated to its members and the public; and
256 (b) required to distribute or allocate savings in excess of additions to reserves and
257 surplus to members or patrons on the basis of patronage.




Legislative Review Note
as of 1-29-04 7:59 AM

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

Office of Legislative Research and General Counsel