The boards of county commissioners of the several counties are authorized to permit corporations organized pursuant to Section 62-1-1 NMSA 1978, public utilities under the Public Utility Act [Chapter 62, Articles 1 to 6 and 8 to 13 NMSA 1978] and companies that provide public telecommunications service pursuant to the New Mexico Telecommunications Act [Chapter 63, Article 9A NMSA 1978] to use the public highways and the streets and alleys of unincorporated towns for their pipes, poles, wires, cables, conduits, towers, transformer stations and other fixtures, appliances and structures; provided that such use shall not unnecessarily obstruct public travel and provided further that the boards of county commissioners and municipal authorities of incorporated cities and towns are authorized to grant franchises not exceeding twenty-five years' duration to corporations for such purposes within their respective jurisdictions. A board of commissioners is authorized to impose charges for reasonable actual expenses incurred in the granting of any franchise pursuant to this section.
History: Laws 1909, ch. 141, § 3; Code 1915, § 1023; C.S. 1929, § 32-403; 1941 Comp., § 72-103; Laws 1949, ch. 8, § 1; 1953 Comp., § 68-1-3; Laws 1987, ch. 155, § 1.
ANNOTATIONSCompiler's notes. — Sections 62-1-1 to 62-1-7 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 1 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective. See Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.
Cross references. — For regulation of use of state highways by public utilities, see 67-3-12C, 67-3-41 NMSA 1978.
The 1987 amendment, effective June 19, 1987, substituted "corporations organized pursuant to Section 62-1-1 NMSA 1978 . . . Telecommunications Act" for "such corporation" near the beginning of the first sentence, added the second sentence and made minor changes in language throughout the section.
This section and Section 62-1-2 NMSA 1978 must be construed together. City of Roswell v. Mountain States Tel. & Tel. Co., 78 F.2d 379 (10th Cir. 1935).
Telecommunications companies. — The authority of home rule municipalities to enter into contracts and create franchises with telecommunications companies is well established in New Mexico. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004) (decided prior to the 1996 amendment to N.M. Const., art. XI, §2).
Franchise fees are not rates. — Franchise fees charged by counties pursuant to Section 62-1-3 NMSA 1978 are not rates as defined in Section 62-3-3 NMSA 1978 and do not fall within the jurisdiction of the public regulation commission. El Paso Elec. Co. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-048, 149 N.M. 174, 246 P.3d 443.
Franchise fees are not taxes. — Franchise fees charged by counties pursuant to Section 62-1-3 NMSA 1978 are not taxes that the public regulation commission may consider when setting rates. El Paso Elec. Co. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-048, 149 N.M. 174, 246 P.3d 443.
Franchise fees are not items included in adjustment clauses. — Franchise fees charged by counties pursuant to Section 62-1-3 NMSA 1978 are not within the jurisdiction of the public regulation commission by analogy to fuel and purchased power adjustment clauses, over which the commission has jurisdiction under Section 62-8-7 NMSA 1978. El Paso Elec. Co. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-048, 149 N.M. 174, 246 P.3d 443.
Line item charges for franchise fees. — The public regulation commission did not have jurisdiction to enter an order requiring a public utility to stop including on customer's bills the franchise fee charges paid by the utility to a county for the right to use county right-of-way to deliver utility service to county residents and businesses. El Paso Elec. Co. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-048, 149 N.M. 174, 246 P.3d 443.
Meaning of "franchise". — The term "franchise" was used in generally accepted sense of grant of right to use highways, streets and alleys, rather than exercise of police power respecting their use. The consent of the state becomes effective when the franchise is obtained. City of Roswell v. Mountain States Tel. & Tel. Co., 78 F.2d 379 (10th Cir. 1935).
Highway acquired by prescription may be used for normal communication methods. — A public highway acquired and established by prescription, and which was recognized and maintained by the corporate authorities of a county as a public highway, was in no way less than a public highway acquired by dedication, by condemnation or by authority of any other law of New Mexico. In any case, what was ordinarily acquired was an easement, by which the state or its political subdivisions were authorized by law to use the lands, lying within the boundaries of the streets and highways, for all lawful purposes consistent with every reasonable method of travel, transportation and communication for which public streets and highways are normally used. Hall v. Lea Cnty. Elec. Coop., 1968-NMSC-040, 78 N.M. 792, 438 P.2d 632.
Electric power line is permissible use of highway. — The construction and maintenance of an electric power or transmission line, within the boundaries of a public highway, were consistent with the permissible uses to be made of a public highway easement and do not constitute an additional burden or servitude. Hall v. Lea Cnty. Elec. Coop., 1968-NMSC-040, 78 N.M. 792, 438 P.2d 632.
Local ordinance not preempted by state law. — The City of Santa Fe ordinance which established procedures for telecommunications providers seeking access to city-owned rights-of-way is not preempted by state law. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004).
County franchise authorizes occupying streets of later village. — Telephone companies are included in the language of Section 3-42-2 NMSA 1978, and a franchise granted by a county board before incorporation of a village is adequate authority for occupying streets of the village and doing business until such time as the village itself offers a fair and equitable franchise for a maximum number of years and until a reasonable time has passed in which it may be considered by the company involved. Village of Ruidoso v. Ruidoso Tel. Co., 1948-NMSC-067, 52 N.M. 415, 200 P.2d 713.
Town need accept only works actually constructed or started under county franchise. — In order to compel a town, incorporated after the granting of a franchise by the county commissioners, to accept such franchise, it was necessary that the holder of the franchise had erected or constructed, or in good faith commenced, the erection or construction of the works. Village of Hobbs v. Mann, 1935-NMSC-002, 39 N.M. 76, 39 P.2d 1025.
Authority to charge franchise fee. — A county board of commissioners may enter into franchise agreements with utility companies and impose a franchise fee in exchange for the county's reasonable expenses incurred in granting the franchise and for the utilities' use of public highways, streets and alleys under the franchise agreements. 2014 Op. Att'y Gen. No. 14-01.
County regulations must be reasonable and related to health and safety. — The statutory grant of regulatory powers to county commissions contained in this section is very general, but such regulations would have to be reasonable and related to public health and safety - in other words, to the design, construction, operation and maintenance of the facility. 1973 Op. Att'y Gen. No. 73-26.
County may not impose fees or rental charges. — There is no statutory authority for a county to impose fees or rental charges on a utility holding a certificate of public convenience and necessity from the public service commission (now public regulation commission) for use of rights-of-way of county roads. 1973 Op. Att'y Gen. No. 73-26.
City need not recognize franchise without construction in annexed territory. — A city is not bound by law to recognize the county franchise issued to a private company to operate in territories which have subsequently been annexed by the city, in which territories no construction of utility facilities has been commenced. 1964 Op. Att'y Gen. No. 64-129.
Application of provisions to telephone companies. — Sections 62-1-1 to 62-1-3 NMSA 1978 are applicable to telephone utilities. 1963 Op. Att'y Gen. No. 63-66.
County may not impose franchise tax. — A county, in the process of granting a franchise to a public utility for operation in the county, may not exact from the utility a franchise tax. 1957 Op. Att'y Gen. No. 57-51.
Application of provisions to pipeline companies. 1973 Op. Att'y Gen. No. 73-26 and 1957 Op. Att'y Gen. No. 57-124.
Cost of moving lines need not be reimbursed. — Southwestern public service company is not entitled under its franchise and under applicable statutes to be reimbursed for the cost of moving its transmission lines. 1955 Op. Att'y Gen. No. 55-6270.
County may not regulate use of state highway. — County commissioners have no right to grant any easement to a public utility over a state highway, the right-of-way of which came under the control of the state highway commission (now state transportation commission) after 1917. 1933 Op. Att'y Gen. 33-681 and 1973 Op. Att'y Gen. No. 73-26.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Highways, Streets and Bridges §§ 245, 247, 249-265, 278.
Placement, maintenance, or design of standing utility pole as affecting private utility's liability for personal injury resulting from vehicle's collision with pole within or beside highway, 51 A.L.R.4th 602.