2012 -- S 2393 SUBSTITUTE B

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LC01452/SUB B

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO PUBLIC UTILITIES AND CARRIERS - TELEPHONE REGULATION

MODERNIZATION ACT

     Introduced By: Senator Roger Picard

     Date Introduced: February 15, 2012

     Referred To: Senate Corporations

It is enacted by the General Assembly as follows:

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     SECTION 1. Legislative findings. The General Assembly finds and declares that:

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     (1) Wireless communications and broadband technology are economic forces that

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contribute to the growth and stability of the Rhode Island economy; and

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     (2) Policies in Rhode Island have, for many years, established robust competition in the

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wireless communications market without unreasonable, industry-specific regulation as the best

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means of promoting universal service, economic efficiency, technological innovation, expanded

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consumer choice and empowerment, and investment in and deployment of advanced

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communications services in the state; and

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     (3) Stating such policies in statute will provide additional certainty and continuity of this

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policy and is necessary to attract new investment in wireless, broadband and other advanced

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networks, encourage technology deployment and promote the creation of new jobs in Rhode

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Island, while at the same time ensuring that consumers of wireless service continue to benefit

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from the consumer protection laws that apply to consumers generally; and

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     (4) The great majority of other states have already enshrined similar policies in statute;

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and

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     (5) Rhode Island’s wireless marketplace is one of the most open and competitive in the

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nation, with over 99% of residents having access to three or more wireless providers; and

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     (6) Countless other industries, trades, and businesses in Rhode Island benefit from this

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open and competitive wireless market; and

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     (7) A leading-edge wireless industry with investments in up-to-date technology is a

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competitive advantage for Rhode Island businesses and the state’s economy; and

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     (8) The interstate, and often international, nature of the wireless communication industry

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makes a state-by-state regulatory approach problematic and may limit access and increase costs

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for consumers.

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     SECTION 2. Section 39-1-2 of the General Laws in Chapter 39-1 entitled "Public

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Utilities Commission" is hereby amended to read as follows:

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     39-1-2. Definitions. -- Terms used in this title shall be construed as follows, unless

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another meaning is expressed or is clearly apparent from the language or context:

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      (1) "Administrator" means the administrator of the division of public utilities and

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carriers;

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      (2) "Airport" and "landing field" mean and include all airports and landing fields other

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than those owned by the state;

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      (3) "Chairperson" means the chairperson of the public utilities commission;

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      (4) "Charter carrier" means and includes all carriers for hire or compensation within this

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state not included in the definition of common carrier;

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      (5) "Commission" means the public utilities commission;

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      (6) "Commissioner" means a member of the public utilities commission;

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      (7) "Common carrier", except when used in chapters 12, 13, and 14 of this title, means

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and includes all carriers for hire or compensation including railroads, street railways, express,

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freight and freight line companies, dining car companies, steam boat, motor boat, power boat,

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hydrofoil, and ferry companies and all other companies operating any agency or facility for

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public use in this conveyance over fixed routes, or between fixed termini within this state or

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persons or property by or by a combination of land, air, or water;

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      (8) "Company" means and includes a person, firm, partnership, corporation, quasi-

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municipal corporation, association, joint stock association or company, and his, her, its, or their

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lessees, trustees, or receivers appointed by any court;

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      (9) "Customer" means a company taking service from an electric distribution company at

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a single point of delivery or meter location;

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      (10) "Distribution facility" means plant or equipment used for the distribution of

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electricity and which is not a transmission facility;

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      (11) "Division" means the division of public utilities and carriers;

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      (12) "Electric distribution company" means a company engaging in the distribution of

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electricity or owning, operating, or controlling distribution facilities and shall be a public utility

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pursuant to section 39-1-2(20);

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      (13) "Electric transmission company" means a company engaging in the transmission of

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electricity or owning, operating, or controlling transmission facilities. An electric transmission

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company shall not be subject to regulation as a public utility except as specifically provided in the

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general laws, but shall be regulated by the federal energy regulatory commission and shall

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provide transmission service to all nonregulated power producers and customers, whether

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affiliated or not, on comparable, nondiscriminatory prices and terms. Electric transmission

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companies shall have the power of eminent domain exercisable following a petition to the

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commission pursuant to section 39-1-31;

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      (14) "Liquefied natural gas" means a fluid in the liquid state composed predominantly of

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methane and which may contain minor quantities of ethane, propane, nitrogen, or other

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components normally found in natural gas;

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      (15) "Manufacturing customers" means all customers that have on file with an electric

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distribution company a valid certificate of exemption from the Rhode Island sales tax indicating

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the customer's status as a manufacturer pursuant to section44-18-30;

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      (16) "Motor carriers" means any carrier regulated by the administrator pursuant to

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Chapters 3, 11, 12, 13 and 14 of this title;

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      (17) "Natural gas" means the combustible gaseous mixture of low-molecular-weight,

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paraffin hydrocarbons, generated below the surface of the earth containing mostly methane and

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ethane with small amounts of propane, butane, and hydrocarbons, and sometimes nitrogen,

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carbon dioxide, hydrogen sulfide, and helium;

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      (18) "Nonprofit housing development corporation" means a nonprofit corporation, which

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has been approved as a section501(c)(3), 26 U.S.C. section501(c)(3), corporation by the internal

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revenue service, and which is organized and operated primarily for the purpose of providing

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housing for low and moderate income persons;

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      (19) "Nonregulated power producer" means a company engaging in the business of

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producing, manufacturing, generating, buying, aggregating, marketing or brokering electricity for

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sale at wholesale or for retail sale to the public; provided however, that companies which

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negotiate the purchase of electric generation services on behalf of customers and do not engage in

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the purchase and resale of electric generation services shall be excluded from this definition. A

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nonregulated power producer shall not be subject to regulation as a public utility except as

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specifically provided in the general laws;

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      (20) "Public utility" means and includes every company that is an electric distribution

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company and every company operating or doing business in intrastate commerce and in this state

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as a railroad, street railway, common carrier, gas, liquefied natural gas, water, telephone,

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telegraph, and pipeline company, and every company owning, leasing, maintaining, managing, or

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controlling any plant or equipment or any part of any plant or equipment within this state for

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manufacturing, producing, transmitting, distributing, delivering, or furnishing natural or

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manufactured gas, directly or indirectly to or for the public, or any cars or equipment employed

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on or in connection with any railroad or street railway for public or general use within this state,

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or any pipes, mains, poles, wires, conduits, fixtures, through, over, across, under, or along any

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public highways, parkways or streets, public lands, waters, or parks for the transmission,

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transportation, or distribution of gas for sale to the public for light, heat, cooling, or power for

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providing audio or visual telephonic or telegraphic communication service within this state or any

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pond, lake, reservoir, stream, well, or distributing plant or system employed for the distribution of

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water to the consuming public within this state including the water supply board of the city of

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Providence; provided, that, except as provided in section39-16-9 and in chapter 2072 of the

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public laws, 1933, as amended, this definition shall not be construed to apply to any public

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waterworks or water service owned and furnished by any city, town, water district, fire district, or

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any other municipal or quasi-municipal corporation, excepting the water supply board of the city

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of Providence, unless any city, town, water district, fire district, municipal, or quasi-municipal

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corporation obtains water from a source owned or leased by the water resources board, either

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directly or indirectly, or obtains a loan from the board pursuant to the provisions of chapter 15 of

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title 46, or sells water, on a wholesale or retail basis, inside and outside the territorial limits of the

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city or town, water district, fire district, municipal or quasi-municipal corporation, except,

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however, that a public waterworks or water service owned and furnished by any city, town, water

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district, fire district, or any other municipal or quasi-municipal corporation which sells water, on

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a wholesale or retail basis, inside and outside its territorial limits shall not be construed as a

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public utility if it has fewer than one-thousand five hundred (1500) total customer service

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connections and provided outside sales do not exceed ten percent (10%) of the total water service

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connections or volumetric sales and provided the price charged to outside customers, per unit of

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water, is not greater than the price charged to inside customers for the same unit of water, nor to

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the Rhode Island public transit authority, or to the production and/or distribution of steam, heat,

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or water by Rhode Island port authority and economic development corporation in the town of

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North Kingstown; and the term "public utility" shall also mean and include the Narragansett Bay

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water quality management district commission; and provided that the ownership or operation of a

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facility by a company which dispenses alternative fuel or energy sources at retail for use as a

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motor vehicle fuel or energy source, and the dispensing of alternative fuel or energy sources at

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retail from such a facility, does not make the company a public utility within the meaning of this

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title solely because of that ownership, operation, or sale; and provided further that this exemption

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shall not apply to presently regulated public utilities which sell natural gas or are dispensers of

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other energy sources; and provided further, that the term "public utility" shall not include any

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company;:

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      (i) Producing or distributing steam or heat from a fossil fuel fired cogeneration plant

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located at the university of Rhode Island South Kingstown, Rhode Island and; or

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      (ii) Producing and/or distributing thermal energy and/or electricity to a state owned

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facility from a plant located on an adjacent site regardless of whether steam lines cross a public

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highway.; or

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     (iii) Providing wireless service; provided, however, that wireless technology used to

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provide heretofore regulated local residential exchange service (colloquially known as "plan old

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telephone service" (POTS)) shall remain subject to the regulatory authority of the commission

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and division;

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     (21) "Purchasing cooperatives" shall mean any association of electricity consumers which

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join for the purpose of negotiating the purchase of power from a nonregulated power producer,

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provided however, that purchasing cooperatives shall not be required to be legal entities and are

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prohibited from being engaged in the re-sale of electric power;

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      (22) "Railroad" means and includes every railroad other than a street railway, by

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whatsoever power operated for public use in the conveyance in this state of persons or property

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for compensation, with all bridges, ferries, tunnels, switches, spurs, tracks, stations, wharves, and

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terminal facilities of every kind, used, operated, controlled, leased, or owned by or in connection

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with any railroad;

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      (23) "Retail access" means the use of transmission and distribution facilities owned by

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an electric transmission company or an electric distribution company to transport electricity sold

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by a nonregulated power producer to retail customers pursuant to section39-1-27.3;

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      (24) "Street railway" means and includes every railway by whatsoever power operated or

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any extension or extensions, branch, or branches thereof, for public use in the conveyance in this

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state of persons or property for compensation, being mainly upon, along, above, or below any

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street, avenue, road, highway, bridge, or public place in any city or town, and including all

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switches, spurs, tracks, rights of trackage, subways, tunnels, stations, terminals and terminal

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facilities of every kind, used, operated, controlled, or owned by or in connection with any street

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railway;

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      (25) "Transmission facility" means plant or equipment used for the transmission of

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electricity as determined by the federal energy regulatory commission pursuant to federal law as

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of the date of the property transfers pursuant to section39-1-27(c);

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      (26) Notwithstanding any provision of this section or any provision of the act entitled,

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"An Act Relating to the Utility Restructuring Act of 1996" (hereinafter "Utility Restructuring

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Act"), upon request by the affected electric utility, the commission may exempt from the Utility

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Restructuring Act or any provision(s) thereof, an electric utility which meets the following

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requirements: (i) the utility is not selling or distributing electricity outside of the service territory

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in effect for that utility on the date of passage of the Utility Restructuring Act; and (ii) the number

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of kilowatt hours sold or distributed annually by the utility to the public is less than five percent

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(5%) of the total kilowatt hours consumed annually by the state. Provided however that nothing

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contained in this section shall prevent the commission from allowing competition in the

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generation of electricity in service territories of utilities exempted in whole or in part from the

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Utility Restructuring Act pursuant to this section, as long as such allowance of competition is

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conditioned upon payment to the exempted electric utility of a nonbypassable transition charge

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calculated to recover the elements comparable in nature to the elements in section39-1-27.4(b)

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and (c) taking into consideration any unique circumstances applicable to the exempted electric

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utility.

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     (27) “Wireless service” means communication services provided over spectrum licensed

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by or subject to the jurisdiction of the federal communications commission.

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     SECTION 3. Title 39 of the General Laws entitled "PUBLIC UTILITIES AND

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CARRIERS" is hereby amended by adding thereto the following chapter:

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     CHAPTER 29

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TELEPHONE REGULATION MODERNIZATION ACT

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     39-29-1. Jurisdiction over wireless service. -- Notwithstanding any general or public

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law to the contrary, the commission and the division shall have no jurisdiction or authority over

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wireless service.

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     39-29-2. Authority unaffected. – Nothing in this chapter shall be construed to modify or

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affect the jurisdiction or authority of the commission or the division over exchange access rates or

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the rights or obligations of any carrier pursuant to 47 U.S.C. section 251 or 47 U.S.C. section 252.

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Nor shall this chapter be construed to modify or affect the authority of the commission to

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designate eligible telecommunications carriers pursuant to federal law.

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     39-29-3. Consumer Protection. – Nothing in this chapter shall derogate from or be

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construed as a limitation on the common law or statutory authority of the attorney general to

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enforce consumer protection or unfair or deceptive trade practice statutes and regulations.

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     39-29-4. Unaffected fees. – Nothing in this chapter shall be construed to affect, mandate

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or prohibit the assessment of nondiscriminatory enhanced 911 fees, telecommunications

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education access fund fees, or telecommunications relay service fees.

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      39-29-5. No effect on tax obligations. – Nothing in this chapter shall be construed to

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modify or affect any tax obligations imposed by section 44-13-4.

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     SECTION 4. This act shall take effect upon passage.

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LC01452/SUB B

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PUBLIC UTILITIES AND CARRIERS - TELEPHONE REGULATION

MODERNIZATION ACT

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     This act would provide that the public utilities commission not the division of public

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utilities and carriers would have jurisdiction and authority over wireless providers.

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     This act would take effect upon passage.

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LC01452/SUB B

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