Tennessee § 65-4-101 - Chapter definitions.

§ 65-4-101. Chapter definitions.

As used in this chapter, unless the context otherwise requires: “Competing telecommunications service provider” means any individual or entity that offers or provides any two-way communications service, telephone service, telegraph service, paging service, or communications service similar to such services and is certificated as a provider of such services after June 6, 1995, unless otherwise exempted from this definition by state or federal law; “Current authorized fair rate of return” means: For an incumbent local exchange telephone company operating pursuant to a regulatory reform plan ordered by the former public service commission under TPSC rule 1220-4-2-.55, any return within the range contemplated by TPSC rule 1220-4-2-.55(1)(c)(1) or TPSC rule 1220-4-2-.55(d); For any other incumbent local exchange telephone company, the rate of return on rate base most recently used by the former public service commission in an order evaluating its rates; “Gross domestic product-price index (GDP-PI)” used to determine limits on rate changes means the final estimate of the chain-weighted gross domestic product-price index as prepared by the United States department of commerce and published in the Survey of Current Business, or its successor; “Incumbent local exchange telephone company” means a public utility offering and providing basic local exchange telephone service as defined by § 65-5-108(a) pursuant to tariffs approved by the former public service commission prior to June 6, 1995; “Interconnection services” means telecommunications services, including intrastate switched access service, that allow a telecommunications service provider to interconnect with the networks of all other telecommunications service providers; “Public utility” means every individual, copartnership, association, corporation, or joint stock company, its lessees, trustees, or receivers, appointed by any court whatsoever, that own, operate, manage or control, within the state, any interurban electric railway, traction company, all other common carriers, express, gas, electric light, heat, power, water, telephone, telegraph, telecommunications services, or any other like system, plant or equipment, affected by and dedicated to the public use, under privileges, franchises, licenses, or agreements, granted by the state or by any political subdivision thereof. “Public utility” as defined in this section shall not be construed to include the following nonutilities: Any corporation owned by or any agency or instrumentality of the United States; Any county, municipal corporation or other subdivision of the state of Tennessee; Any corporation owned by or any agency or instrumentality of the state; Any corporation or joint stock company more than fifty percent (50%) of the voting stock or shares of which is owned by the United States, the state of Tennessee or by any nonutility referred to in subdivisions (a)(1), (2), and (3); Any cooperative organization not organized or doing business for profit, cooperative association not organized or doing business for profit, or cooperative corporation not organized or doing business for profit. For purposes of this subdivision (6)(A)(v), “cooperative” shall mean only those nonprofit cooperative entities organized under or otherwise subject to the Rural Electric and Community Services Cooperative Act, compiled in chapter 25, part 2 of this title, or the Telephone Cooperative Act, compiled in chapter 29 of this title. Any individual, partnership, copartnership, association, corporation or joint stock company offering domestic public cellular radio telephone service authorized by the federal communications commission; provided, that the real and personal property of such domestic public cellular radio telephone entities shall be assessed by the comptroller of the treasury pursuant to §§ 67-5-801(a)(1), 67-5-901(a)(1), and § 67-5-1301(a)(2); provided, however, that until at least two (2) entities, each independent of the other, are authorized by the federal communications commission to offer domestic public cellular radio telephone service in the same cellular geographical area within the state, the customer rates only of a company offering domestic public cellular radio telephone service shall be subject to review by the Tennessee public utility commission pursuant to §§ 65-5-101 — 65-5-104. Upon existence in a cellular geographical area of the conditions set forth in the preceding sentence, domestic public cellular radio telephone service in such area, for all purposes, shall automatically cease to be treated as a public utility under this title. The Tennessee public utility commission's authority over domestic public cellular radio telephone service is expressly limited to the above extent and the commission shall have no authority over resellers of domestic public cellular radio telephone service. For the purpose of this subdivision (6)(A)(vi), “authorized” means six (6) months after granting of the construction permit by the federal communications commission to the second entity or when the second entity begins offering service in the same cellular geographical area, whichever should first occur. This subdivision (6)(A)(vi) does not affect, modify or lessen the utility commission's authority over public utilities that are subject to regulation pursuant to chapter 5 of this title; Any county, municipal corporation or other subdivision of a state bordering Tennessee, but only to the extent that such county, municipal corporation or other subdivision distributes natural gas to retail customers within the municipal boundaries and/or urban growth boundaries of a Tennessee city or town adjoining such bordering state; Any of the foregoing nonutilities acting jointly or in combination or through a joint agency or instrumentality; and For purposes of §§ 65-5-101 and 65-5-103, “public utility” shall not include interexchange carriers. “Interexchange carriers” means companies, other than incumbent local exchange telephone companies, owning facilities in the state which consist of network elements and switches, or other communication transmission equipment used to carry voice, data, image, and video traffic across the local access and transport area (LATA) boundaries within Tennessee; “Public utility” does not mean nonprofit homeowners associations or organizations whose membership is limited to owners of lots in residential subdivisions, which associations or organizations own, construct, operate or maintain water, street light or park maintenance service systems for the exclusive use of that subdivision; provided, however, that the subdivisions are unable to obtain such services from the local utility district. None of the property, property rights or facilities owned or used by the association or organization for the rendering of such services shall be under the jurisdiction, supervision or control of the Tennessee public utility commission; “Public utility” does not mean any nonprofit corporation, as defined in § 501(c)(4) of the Internal Revenue Code (26 U.S.C. § 501(c)(4)), which owns and operates a wastewater system primarily for the use of the members of the corporation and which has received a written statement of exemption from regulation as a public utility from the Tennessee public utility commission prior to January 1, 2009; “Public utility” includes a wind energy facility, as defined in § 65-17-101, and does not include a wind energy facility subject to § 65-17-102; and “Telecommunications service provider” means any incumbent local exchange telephone company or certificated individual or entity, or individual or entity operating pursuant to the approval by the former public service commission of a franchise within § 65-4-207(b), authorized by law to provide, and offering or providing for hire, any telecommunications service, telephone service, telegraph service, paging service, or communications service similar to such services unless otherwise exempted from this definition by state or federal law. Acts 1919, ch. 49, § 3; Shan. Supp., § 3059a86; Code 1932, § 5448; Acts 1935, ch. 42, § 1; 1943, ch. 51, § 1; C. Supp. 1950, § 5448; Acts 1979, ch. 195, § 1; T.C.A. (orig. ed.), § 65-401; Acts 1984, ch. 869, § 1; 1995, ch. 305, §§ 14, 20; 1995, ch. 408, §§ 2, 3; 1999, ch. 317, § 1; 2001, ch. 27, § 1; 2011, ch. 430, §§ 1, 2; 2017, ch. 94, § 51; 2018, ch. 825, § 2. Code Commission Notes. Subdivision designations for the definitions of “public utility” and “telecommunications service provider” in § 65-4-101 were amended by the code commission in 2011. Subdivision (6) was redesignated as subdivision (6)(A); former subdivisions (6)(A)-(I), as present subdivisions (6)(A)(i)-(ix), respectively; former subdivision (7), as (6)(B); and the definition of “telecommunications service provider” as subdivision (7). Amendments. The 2017 amendment, in the definition of “public utility”, substituted “Tennessee public utility commission” for “Tennessee regulatory authority” throughout (A)(vi) and in (B)(i); and, in (A)(vi), substituted “The Tennessee public utility commission's authority” for “The Tennessee regulatory authority's authority” at the beginning and substituted “the commission” for “the authority” near the end of the next to last sentence, and substituted “the utility commission's authority” for “the regulatory authority's authority” in the last sentence. The 2018 amendment added (C) in the definition of “public utility”. Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017. Acts 2018, ch. 825, § 20. April 24, 2018. Cross-References. Municipal gas companies exempt from regulation, § 7-39-311 . Municipal utilities exempt from regulation, §§ 7-34-106 , 7-34-117 . Regulation of rates by regulatory authority, title 65, ch. 5. Utilities district, exemption, § 7-82-104 . Utility location, title 13, ch. 24, part 3. Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Electricity, § 2; 13 Tenn. Juris., Gas Companies, §§ 3, 4; 21 Tenn. Juris., Public Service Commissions, §§ 2, 3; 25 Tenn. Juris., Water Companies and Waterworks, § 2. Law Reviews. Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011). The Indeterminate Permit for Public Utilities in Tennessee (Henry B. Witham), 6 Tenn. L. Rev. 1 (1927). Attorney General Opinions. Authority's power to regulate debt issuance by public utilities engaged in interstate commerce, OAG 99-119, 1999 Tenn. AG LEXIS 119 (5/14/99). Any proposed classification of political promotional speech as telemarketing or telephone solicitation through redefinition of those terms, within the current consumer protection regulatory scheme, would be constitutionally suspect, OAG 03-011, 2003 Tenn. AG LEXIS 12 (1/24/03). A telecommunications provider that has been granted a certificate of public convenience and necessity by the Tennessee Regulatory Authority to provide competing access services and transport telecommunications services in Tennessee is entitled to exercise right-of-way and eminent domain powers under Tennessee law. OAG 15-16, 2015 Tenn. AG LEXIS 15 (3/3/2015). A solar electricity generating facility that comes within the statutory definition of “public electric system” is prohibited from selling power in certain geographical territories. Whether its property is “affected by and dedicated to public use” will depend on a variety of factors, specific to each case. The fact that it provides power “directly and exclusively to owners and/or tenants located on the same or adjacent premises” is just one of many factors to be considered but is not alone determinative of whether or not its property is affected by and dedicated to public use. If the owner of a solar electricity generating facility is a public electric system as defined in T.C.A. § 65-34-102(5) , it would likewise be a public utility as defined in T.C.A. § 65-4-101(6)(A) unless it were to come within one of the many statutory exceptions detailed in T.C.A. § 65-4-101(6)(A) (i) through (B)(ii). OAG 17-25, 2017 Tenn. AG LEXIS 24 (4/10/2017).