Colorado § 40-1-103 - Public utility defined.

§ 40-1-103. Public utility defined.

(1) (a) (I) The term "public utility", when used in articles 1 to 7 of this title, includes every common carrier, pipeline corporation, gas corporation, electrical corporation, telephone corporation, water corporation, person, or municipality operating for the purpose of supplying the public for domestic, mechanical, or public uses and every corporation, or person declared by law to be affected with a public interest, and each of the preceding is hereby declared to be a public utility and to be subject to the jurisdiction, control, and regulation of the commission and to the provisions of articles 1 to 7 of this title.

(II) As used in this paragraph (a), "water corporation" includes a combined water and sewer corporation, whether as a single entity or as different entities under common ownership.

(b) Nothing in articles 1 to 7 of this title 40 apply to:

(I) Irrigation systems, the chief or principal business of which is to supply water for the purpose of irrigation;

(II) Exemptions provided for in the constitution of the state of Colorado relating to municipal utilities;

(III) Hotels, motels, or other lodging-type entities that resell intrastate toll services to their lodging patrons and not to the general public;

(IV) Any consumer who owns pay telephone terminal equipment and who resells local exchange and toll service paid for by coin deposit, credit card, or otherwise by using the tariff services and facilities of regulated telephone utilities;

(V) The provision or resale to the general public of communications services over a cellular radio system. For purposes of this subparagraph (V), a "cellular radio" means a mobile communications system in which the radio frequency spectrum is divided into discrete channels which are assigned in groups to geographic cells within a service area and which are capable of being reused in different cells within that service area.

(VI) Repealed.

(2) (a) Every cooperative electric association, or nonprofit electric corporation or association, and every other supplier of electric energy, whether supplying electric energy for the use of the public or for the use of its own members, is hereby declared to be affected with a public interest and to be a public utility and to be subject to the jurisdiction, control, and regulation of the commission and to the provisions of articles 1 to 7 of this title.

(b) (I) Paragraph (a) of this subsection (2) requiring regulation by the commission shall not be applicable to a cooperative electric association which has voted to exempt itself from regulation pursuant to the provisions of section 40-9.5-103. Regulation of such cooperative electric associations shall be in the manner provided in part 1 of article 9.5 of this title.

(II) Repealed.

(c) The supply of electricity or heat to a consumer of the electricity or heat from renewable energy generation facilities owned or operated by an entity other than the consumer, including a master meter operator, as described in section 40-1-103.5, does not subject the owner or operator of the renewable energy generation facilities to regulation as a public utility by the commission if the renewable energy generation facilities are located on property owned or leased by either:

(I) The consumer; or

(II) A master meter operator or another consumer served by the master meter operator.

(3) For the purposes of articles 1 to 7 of this title 40, a motor carrier that provides transportation not subject to regulation pursuant to section 40-10.1-105 or that is subject to part 3, 4, 5, or 7 of article 10.1 of this title 40 is not a public utility.

(4) Repealed.

Source: L. 13: p. 465, § 3. C.L. § 2913. CSA: C. 137, § 3. CRS 53: § 115-1-3. L. 61: p. 627, § 1. C.R.S. 1963: § 115-1-3. L. 80: (3) added, p. 742, § 2, effective June 30. L. 83: (1) amended, p. 1547, § 1, effective May 25; (2) amended, p. 1572, § 2, effective July 1. L. 84: (1) amended, p. 1032, § 1, effective April 2; (3) amended, p. 1051, § 3, effective April 12. L. 85: (2)(b)(I) amended and (2)(b)(II) repealed, pp. 1301, 1303, §§ 1, 6, effective April 5; (1)(b)(IV) and (1)(b)(V) added, pp. 1293, 1294, §§ 1, 1, effective April 30; (3) amended, p. 1308, § 3, effective May 29. L. 86: (2)(b)(I) amended, p. 1161, § 2, effective May 27. L. 90: (4) added, p. 1811, § 2, effective June 7. L. 91: (3) amended, p. 1758, § 1, effective March 12. L. 95: (3) amended, p. 1209, § 22, effective May 31. L. 98: (1)(b)(III) amended, p. 845, § 4, effective May 26. L. 2003: (1)(b)(VI) added, p. 2592, § 3, effective June 5. L. 2008: (1)(a) amended, p. 1792, § 4, effective July 1. L. 2009: (2)(c) added, (SB 09-051), ch. 157, p. 678, § 10, effective September 1. L. 2011: (3) amended, (HB 11-1198), ch. 127, p. 418, § 12, effective August 10. L. 2012: (4) repealed, (HB 12-1258), ch. 147, p. 529, § 2, effective August 8. L. 2018: (3) amended, (HB 18-1320), ch. 363, p. 2164, § 2, effective August 8. L. 2021: (2)(c) amended, (SB 21-261), ch. 280, p. 1618, § 3, effective June 21; IP(1)(b) amended and (1)(b)(VI) repealed, (HB 21-1201), ch. 389, p. 2598, § 2, effective June 30.

Cross references: (1) For constitutional provisions relating to exemption of municipally owned utilities, see article XXV of the Colorado Constitution; for the regulation of rates and charges by municipal utilities, see article 3.5 of this title.

(2) For the legislative declaration in SB 21-261, see section 1 of chapter 280, Session Laws of Colorado 2021.

ANNOTATION

I. General Consideration.

II. Public Utility Defined.

III. Jurisdiction of Public Utilities Commission.

IV. Cooperative Electric Associations.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Coal Mining a Public Utility", see 12 Dicta 267 (1935). For article, "Extraterritorial Service of Municipally Owned Water Works in Colorado", see 21 Rocky Mt. L. Rev. 56 (1948). For article, "Oil and Gas Financing Under the Uniform Commercial Code as Enacted in Colorado", see 43 Den. L. J. 129 (1966). For article, "Generation and Transmission Loan Policy Under the Rural Electrification Act", see 43 Den. L. J. 269 (1966). For article, "May Regulated Utilities Monopolize the Sun?", see 56 Den. L.J. 31 (1979). For article, "Utility Use of Renewable Resources: Legal and Economic Implications", see 59 Den. L.J. 663 (1982). For article, "Retail Competition in the Electric Utility Industry", see 60 Den. L.J. 1 (1982). For comment, "Municipal Utilities in Colorado — Can They Charge Their Nonresident Customers More Than They Charge Their Resident Customers Just Because the Nonresident Lives on the Wrong Side of the Boundary?", see 60 U. Colo. L. Rev. 357 (1989).

Fact that telephone company is a regulated utility is not sufficient state action on which a former employee may base a claim for relief under 42 U.S.C. § 1983. Hughes v. Mtn. States Tel. & Tel. Co., 686 P.2d 814 (Colo. App. 1984).

Applied in City of Loveland v. Pub. Utils. Comm'n, 195 Colo. 298, 580 P.2d 381 (1978); Pub. Serv. Co. v. Pub. Utils. Comm'n, 644 P.2d 933 (Colo. 1982).

II. PUBLIC UTILITY DEFINED.

To fall into class of public utility, business or enterprise must be impressed with public interest and those engaged in the conduct thereof must hold themselves out as serving or ready to serve all members of the public, who may require it, to the extent of their capacity: The nature of the service must be such that all members of the public have an enforceable right to demand it. City of Englewood v. City & County of Denver, 123 Colo. 290, 229 P.2d 667 (1951); Parrish v. Pub. Utils. Comm'n, 134 Colo. 192, 301 P.2d 343 (1956); Pub. Utils. Comm'n v. Colo. Interstate Gas Co., 142 Colo. 361, 351 P.2d 241 (1960); Cady v. City of Arvada, 31 Colo. App. 85, 499 P.2d 1203 (1972).

If operation is not impressed with public interest, that fact is readily determined by the fact that the public has no right to demand the service. Pub. Utils. Comm'n v. Colo. Interstate Gas Co., 142 Colo. 361, 351 P.2d 241 (1960).

Service to public is controlling factor. Pub. Utils. Comm'n v. Colo. Interstate Gas Co., 142 Colo. 361, 351 P.2d 241 (1960).

Intention and willingness to serve do not alone create utility status. One of the requirements for utility status is intention and willingness to serve: This qualification, standing alone, is not sufficient to endow a company with the protection of this title. Pub. Serv. Co. v. Pub. Utils. Comm'n, 142 Colo. 135, 350 P.2d 543 (1960).

Dedication of operation to public service can never be presumed, but must be supported by evidence of an unequivocal intention to make such dedication. Parrish v. Pub. Utils. Comm'n, 134 Colo. 192, 301 P.2d 343 (1956); Pub. Utils. Comm'n v. Colo. Interstate Gas Co., 142 Colo. 361, 351 P.2d 241 (1960).

Appropriate test for determining public utility status is no longer common law "Englewood" test, but rather this section and other Colorado statutes and constitutional provisions. Bd. of Cty. Comm'rs v. Denver Bd. of Water Comm'rs 718 P.2d 235 (Colo. 1986).

Municipally owned public utility subject to regulation. A municipally owned public utility, as to service furnished consumers beyond its territorial jurisdiction, should be subject to the same regulation to which a privately owned public utility must conform in similar circumstances. City & County of Denver v. Pub. Utils. Comm'n, 181 Colo. 38, 507 P.2d 871 (1973).

"Public utility" is not applicable to chattel or other property used for benefit of public, but applies to a system of works operated for public use. Searle v. Haxtun, 84 Colo. 494, 271 P. 629 (1928).

Question whether corporation is public utility depends upon acts not powers. While power possessed by a corporation under its charter or general statutes may be inquired into to determine whether it is authorized to perform a public service, the question of whether it is or is not a public utility depends not upon its powers, but upon its acts. Colo. Utils. Corp. v. Pub. Utils. Comm'n, 99 Colo. 189, 61 P.2d 849 (1936); Colorado-Ute Elec. Ass'n v. W. Colo. Power Co., 385 U.S. 22 (1966).

General assembly has declared that "common carrier" is "public utility". Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414, 525 P.2d 443 (1974).

Contract carriage has not been declared a "public utility". Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414, 525 P.2d 443 (1974).

Contract carrier and public utility distinguished. A party who installs a water distribution system and contracts with a city to furnish water to such line at the city limit upon certain conditions, and who has no contract with any water user on said system, and who does not hold himself out to serve the public indiscriminately, is a contract carrier and not a public utility and not subject to the jurisdiction of the public utilities commission (PUC). Parrish v. Pub. Utils. Comm'n, 134 Colo. 192, 301 P.2d 343 (1956); Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414, 525 P.2d 443 (1974); Denver Cleanup Serv. Inc. v. Pub. Utils. Comm'n, 195 Colo. 537, 561 P.2d 1252 (1977).

Smelting company may be public utility. A smelting company treating ores from various parts of the state is affected with a public interest. Ohio & Colo. Smelting & Ref. Co. v. Pub. Utils. Comm'n, 68 Colo. 137, 187 P. 1082 (1920).

Coal mining corporation held not public utility. A coal mining corporation not declared by law to be "affected with a public interest", which contracted with a municipality to sell to it surplus electrical energy generated by it for use in its mining operations, such being its only sale, is not to be a public utility within the meaning of the public utilities act. Colo. Utils. Corp. v. Pub. Utils. Comm'n, 99 Colo. 189, 61 P.2d 849 (1936).

Supplier of natural gas not public utility simply because it exercises eminent domain. An interstate supplier of natural gas, supplying a limited number of industrial customers with fuel gas under contract, which obtains, from the federal power commission, certificates of public convenience and necessity for the purpose of exercising the right of eminent domain does not thereby become a public utility as defined by this section. Pub. Utils. Comm'n v. Colo. Interstate Gas Co., 142 Colo. 361, 351 P.2d 241 (1960).

PUC properly determined gas-gathering operation is not a public utility for the purpose of supplying the public under subsection (1)(a)(I), therefore, it is not subject to the PUC's jurisdiction. Danks v. Colo. Public Utils. Comm'n, 2022 CO 26, 512 P.3d 692.

Sanitation district not public utility. A sanitation district organized pursuant to statute does not fall within the definition of a public utility. Schlarb v. N. Sub. San. Dist., 144 Colo. 590, 357 P.2d 647 (1960).

Water conservancy districts are not public utilities subject to the regulation of the PUC. Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202, 613 P.2d 889 (1980).

Motor carriers for hire, of whatever commodity, are public utilities. Consol. Freightways Corps. v. Pub. Utils. Comm'n, 158 Colo. 239, 406 P.2d 83 (1965).

That common carriers do or do not compete with railroads is immaterial. Greeley Transp. Co. v. People, 79 Colo. 307, 245 P. 720 (1926).

The department of corrections is not a telephone corporation pursuant to this section and therefore not subject to review or regulation by the PUC with respect to inmate telephone system. Powell v. Colo. Pub. Utils. Comm'n, 956 P.2d 608 (Colo. 1998).

III. JURISDICTION OF PUBLIC UTILITIES COMMISSION.

This section vests jurisdiction exclusively in PUC over the adequacy, installation, and extension of the power services and the facilities necessary to supply, extend, and connect the same; and the district court only has jurisdiction to review the decisions of the PUC in appropriate proceedings. Intermountain Rural Elec. Ass'n v. District Court, 160 Colo. 128, 414 P.2d 911 (1966).

Theory upon which structure of public utility commission powers is based is that of regulated monopoly. Denver & R. G. W. R. R. v. Pub. Utils. Comm'n, 142 Colo. 400, 351 P.2d 278 (1960); Pub. Utils. Comm'n v. Verl Harvey, Inc., 150 Colo. 158, 371 P.2d 452 (1962); Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 151 Colo. 596, 380 P.2d 228 (1963); Colo. Transp. Co. v. Pub. Utils. Comm'n, 158 Colo. 136, 405 P.2d 682 (1965).

General assembly has granted to PUC very extensive and broad regulatory powers including the power to designate location of facilities and also relocation or removal thereof; in exercising any power, the interest of the public should always be given first and paramount consideration. Pub. Serv. Co. v. Pub. Utils. Comm'n, 142 Colo. 135, 350 P.2d 543 (1960).

As function of police power of state. The power to regulate entities affected with a public interest is a function of the police power of the state, and any business or activity which is affected with a public interest may be so classified and so regulated. W. Colo. Power Co. v. Pub. Utils. Comm'n, 159 Colo. 262, 411 P.2d 785 (1966).

IV. COOPERATIVE ELECTRIC ASSOCIATIONS.

Subsection (2) constitutional. Subsection (2), which generally confers jurisdiction over cooperatives in the PUC, does not violate the constitution of Colorado or of the United States. W. Colo. Power Co. v. Pub. Utils. Comm'n, 159 Colo. 262, 411 P.2d 785 (1966).

Subsection (2) makes no exceptions: "Every cooperative electric association" is public utility, as well as all other electric suppliers. W. Colo. Power Co. v. Pub. Utils. Comm'n, 159 Colo. 262, 411 P.2d 785 (1966); Pub. Serv. Co. v. Pub. Utils. Comm'n, 174 Colo. 470, 485 P.2d 123 (1971).

Service may affect so considerable a fraction of the public that it is public in the same sense in which any other may be called so. The public does not mean everybody all the time. W. Colo. Power Co. v. Pub. Utils. Comm'n, 159 Colo. 262, 411 P.2d 785 (1966).

Legislative act did not purport to affect the contractual rights between cooperatives and their members which were created at a time when the cooperatives did not enjoy the status of public utilities, and thus a rural electric association may continue to serve all members who were receiving service prior to the effective date of its becoming a public utility, regardless of any extensive certificates granted to others. W. Colo. Power Co. v. Pub. Utils. Comm'n, 163 Colo. 61, 428 P.2d 922 (1967).

Effect of subsection (2) is prospectively to establish electrical cooperatives as public utilities and to give them a regulated monopoly status as of that date in those areas in which they were rendering service on an exclusive basis. W. Colo. Power Co. v. Pub. Utils. Comm'n, 163 Colo. 61, 428 P.2d 922 (1967).