2023 New Mexico Statutes › Chapter 63 - Railroads and Communications › Article 9 - Telephone and Telegraph Companies › Section 63-9-9 - Nonduplication in certificated areas.

A. It is unlawful to construct, own, operate, manage, lease or control any plant or equipment for the furnishing of telephone or telegraph service in any certificated area granted to another telephone company unless public convenience and necessity require the second plant or equipment.
B. Any person, corporation, municipal corporation, partnership or association proposing to construct or operate the second plant or equipment shall first file an application with the commission, to which application the authority proposing to authorize the construction of the second plant or equipment and the owner, manager or operator of the plant or equipment then in operation shall be made parties. The applications shall set up the reasons why public convenience and necessity require the second plant or equipment. In determining whether the public convenience and necessity require the second plant or equipment, the commission shall consider and determine upon substantial evidence whether the following conditions existed at the time of the filing of the application:
(1) the existing telephone or telegraph service is inadequate to meet the reasonable needs and convenience of the public;
(2) the proposed second plant or equipment would eliminate such inadequacy;
(3) it is economically feasible to operate the proposed second plant or equipment successfully and continuously for the furnishing of telephone or telegraph service;
(4) the applicant for the second plant or equipment has sufficient financial resources to provide the proposed telephone or telegraph service properly and continuously;
(5) the applicant for the second plant or equipment has competent and experienced management and personnel to provide the proposed telephone or telegraph service;
(6) the applicant for the second plant or equipment is willing and able to conform to the constitution and law of New Mexico and the rules of the commission; and
(7) the applicant for the second plant or equipment is in every respect willing and able to provide the proposed telephone or telegraph service properly.
C. If the commission finds upon substantial evidence that each of the conditions enumerated in Subsection B of this section existed at the time of filing the application and after determining that the public convenience and necessity require that an additional plant or equipment is necessary, the commission shall issue an order in the alternative directing the owner, manager or operator of the plant or equipment then in operation to make such changes and additions in plant as may be reasonably necessary to meet the public convenience and necessity within not less than ninety days or such other additional time as the commission finds from the testimony would be reasonably required to expeditiously make the changes and additions specified and required by the commission. The order shall specifically direct what changes or additions in plant shall be made or what services shall be provided. If such changes or additions are not made within the time ordered by the commission or such additional time as may be ordered, then a certificate of public convenience and necessity for the second plant or equipment may issue.
History:
1953 Comp., § 69-10-9, enacted by Laws 1965, ch. 292, § 9; 1998, ch. 108, § 56.
ANNOTATIONS
The 1998 amendment,
effective January 1, 1999, substituted "is" for "shall hereafter be" at the beginning of Subsection A; deleted "contemplated by Article XI, Section 7 of the constitution of New Mexico and this act" preceding "telegraph service" substituted "require the" for "shall require such" near the end of Subsection A; substituted "the" for "such" throughout the section; deleted "the state of" preceding "law of" in Paragraph B(6); deleted "and regulations" following "of the commission" near the end of Paragraph B(6); inserted new Subsection C; deleted "foregoing" following "conditions" inserted "enumerated in Subsection B of this section" following "existed at" near the beginning of Subsection C; and made minor stylistic changes throughout the section.
This section is concerned with prevention of certain duplicate utility services
unless the court finds that public convenience and necessity require a second plant or equipment to furnish a similar service. 1963 Op. Att'y Gen. No. 63-66.
Operation without franchise.
— The fact that a telephone company has operated in a county without a franchise does not limit the power of the county commission to grant a franchise to that company. The obtaining of a franchise is not mandatory, and operating without one is legal. 1963 Op. Att'y Gen. No. 63-66.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 86 C.J.S. Telecommunications §§ 3, 4, 17.