Title 65 Public Utilities and Carriers
Chapter 1 Tennessee Public Utility Commission
§ 65-1-101. Creation — Commissioners — Diversity — Qualifications — Term of office — Vacancies.
- (a)
There is created the Tennessee public utility commission consisting of seven (7) part-time commissioners. The commission is composed as follows:
- (1)
Two (2) commissioners appointed by the governor;
- (2)
Two (2) commissioners appointed by the speaker of the senate;
- (3)
Two (2) commissioners appointed by the speaker of the house of representatives; and
- (4)
One (1) commissioner appointed by joint agreement among the governor, the speaker of the senate, and the speaker of the house of representatives.
- (b)
- (1)
In making appointments pursuant to subsection (a), the governor, the speaker of the senate, and the speaker of the house of representatives shall strive to ensure that the Tennessee public utility commission is composed of commissioners who are diverse in professional or educational background, ethnicity, geographic residency, perspective, and experience. Except as otherwise provided in subdivision (b)(2), each commissioner of the commission must have at a minimum a bachelor's degree and at least three (3) years' experience in a regulated utility industry, in executive level management, or in one (1) or more of the following fields:
- (A)
Economics;
- (B)
Law;
- (C)
Finance;
- (D)
Accounting; or
- (E)
Engineering.
- (2)
One (1) appointee of the speaker of the senate in subdivision (a)(2) and one (1) appointee of the speaker of the house of representatives in subdivision (a)(3) must be a public member with no experience in a regulated utility industry.
- (c)
- (1)
The term of office of each commissioner commences on July 1, following such commissioner's appointment.
- (2)
The commissioners of the commission are state officers, continue to serve until the commissioner's successor is appointed, and serve six-year terms as follows:
- (A)
The term of one (1) of the commissioners appointed pursuant to subdivision (a)(1) expires every six (6) years, beginning with the first term to end on June 30, 2017, and subsequent terms to end every six (6) years thereafter. The term of the commissioner reappointed by joint agreement among the governor, the speaker of the senate, and the speaker of the house of representatives that began on July 1, 2018, and is now an appointment of the governor expires every six (6) years, beginning with the term that ends June 30, 2024;
- (B)
The terms of the commissioners appointed pursuant to subdivisions (a)(2) and (3) expire every six (6) years, beginning with the first terms to end on June 30, 2014, and subsequent terms to end every six (6) years thereafter; provided, however, that the first term of the public members appointed under subdivisions (a)(2) and (3) shall begin July 1, 2021, and expire June 30, 2026; and
- (C)
The term of the commissioner appointed pursuant to subdivision (a)(4) expires every six (6) years, beginning with the first term to end on June 30, 2018, and subsequent terms to end every six (6) years thereafter.
- (d)
- (1)
All commissioner appointments must be confirmed by joint resolution adopted by each house of the general assembly within ninety (90) days after the appointment, if the general assembly is in session. If the general assembly is not in session, appointments must be confirmed within ninety (90) days after the general assembly next convenes following the appointment.
- (2)
Any vacancy on the commission must be filled by the original appointing authority for such position to serve the unexpired term, and each appointment must be confirmed in the same manner as the original appointment. If, however, the general assembly is not in session and a vacancy occurs, the appropriate appointing authority shall fill such vacancy by appointment and the appointee serves the unexpired term, unless the appointment is not confirmed within ninety (90) days after the general assembly convenes following the appointment to fill such vacancy.
§ 65-1-102. Commissioners — Prohibited activities.
- (a)
No commissioner shall hold any other public office, under either the government of the United States or the government of this or any other state, nor shall any commissioner, while acting as such, engage in any business or occupation inconsistent with such person's duties as a commissioner. No commissioner shall be eligible to qualify as a candidate for any elected office unless such commissioner resigns from the commission prior to qualifying as a candidate. For the purposes of this section, “qualify as a candidate” means filing a statement certifying the name and address of a political treasurer pursuant to § 2-10-105(e).
- (b)
No person who owns, in an individual capacity or jointly with another person, any bonds, stocks, equity interest or other property in any business or entity regulated by the Tennessee public utility commission, or who is an agent or employee in any way of any such business or entity, shall be eligible to serve as a commissioner of the Tennessee public utility commission.
- (c)
- (1)
No commissioner shall raise funds or solicit contributions for any political candidate or political party, or, except as provided in subdivision (c)(2), actively campaign for any candidate for public office.
- (2)
- (A)
A commissioner shall be permitted to actively campaign for an “immediate family member” as that phrase is defined in § 8-50-502(8).
- (B)
The mere attendance of a commissioner at a political event or politically oriented event shall not constitute a violation of subdivision (c)(1).
- (C)
A commissioner's alleged violation of this subsection (c) shall be treated in the same manner as if such commissioner were a judge covered by Rule 10 of the Rules of the Supreme Court.
- (d)
No commissioner shall enter into an employment relationship, a consulting or representation agreement, or other similar contract or agreement with either an entity regulated by the commission or a subcontractor of such an entity for a period of one (1) year after the commissioner ceases to serve as a commissioner of the commission.
§ 65-1-103. Meetings.
- (a)
The commissioners shall convene regular monthly meetings and shall remain in session until all business before them is disposed of, and shall hold other sessions at such times and places as may be necessary for the proper discharge of their duties. If the business of the commission does not require a monthly meeting, a majority of the commissioners may waive the requirement of a meeting.
- (b)
All decisions of the Tennessee public utility commission pertaining to dispositions to or from any deferred revenue account shall be made in a public meeting of the commission. The attorney general and reporter and any other interested party shall be given adequate notice of the meeting and shall be given the opportunity to present oral and written testimony. As used in this section, “deferred revenue account” means any account created for the excess earnings from utilities regulated by the Tennessee public utility commission.
§ 65-1-104. Quorum — Chair and vice chair — Panels.
- (a)
A majority of the commissioners of the Tennessee public utility commission shall constitute a quorum for the transaction of business. The commission shall elect one (1) of its commissioners to be the chair of the commission for a two-year term and shall elect one (1) of its commissioners to be the vice chair of the commission for a two-year term. The vice chair shall assume the role of chair at the expiration of the chair's two-year term.
- (b)
The chair and vice chair of the commission may be removed by a majority vote of the disinterested commissioners.
- (c)
The chair shall have the primary responsibility of formulating the broad strategies, goals, objectives, long-range plans and policies of the commission, in conjunction with the commissioners. The chair shall also have the power and duty to conduct ordinary and necessary business in the name of the commission. Such duties include, but are not limited to, the following:
- (1)
Giving notice of, and agendas for, all meetings of the commission to all commissioners in advance of the meeting;
- (2)
Assigning matters to be heard by panels in accordance with this section;
- (3)
Preparing and calling the docket items to be heard during each scheduled meeting of the commission;
- (4)
Keeping the official, full and correct record of all proceedings and transactions of the commission;
- (5)
Serving as the designated contact for all media inquiries to the commission;
- (6)
Ensuring that orders by the commission are issued in a timely manner and in accordance with the rules and procedures established by the executive director;
- (7)
Conducting a yearly performance evaluation of the executive director, which shall be submitted to the governor;
- (8)
Delegating duties of the chair to the vice chair; and
- (9)
Performing such other duties as the commission may assign or as may be required by statute, rule or regulation.
- (d)
The chair shall assign each matter before the commission to a panel of five (5) voting members from among the commissioners. The remaining two (2) voting members of the commission, who are not assigned to a particular panel, shall not vote or deliberate regarding such matters. The commission shall establish reasonable procedures for rotating the commissioners for assignments to panels in an efficient manner. Such procedures shall ensure that all voting members of the commission serve on a substantially equal number of panels in a random fashion, to the extent practicable.
§ 65-1-105. Compensation — Expenses.
- (a)
The compensation of each commissioner of the Tennessee public utility commission shall be thirty-six thousand dollars ($36,000) per year payable monthly out of the state treasury on the warrant of the commissioner of finance and administration. When commissioners are assigned to serve on a panel lasting more than one (1) day, the commissioner shall be compensated one hundred forty dollars ($140) for each day, or portion of a day, following the first day, for the duration of the matter. Such compensation shall be in addition to reimbursement for actual travel expenses on official business under subsection (b).
- (b)
The seven (7) commissioners shall be reimbursed for their actual travel expenses on official business in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 65-1-108. Office — Furniture and supplies.
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The Tennessee public utility commission shall be furnished a permanent office in Nashville, with all necessary furniture, stationery, and supplies, to be paid for by the state.
§ 65-1-109. Executive director.
- (a)
The executive director shall be appointed by joint agreement among the governor, the speaker of the senate and the speaker of the house of representatives for the initial term. Thereafter, the commissioners of the commission shall appoint the executive director. The term of the executive director shall be three (3) years. The executive director shall have at a minimum a bachelor's degree and either a minimum of five (5) years' experience in the regulated utility industry or a minimum of five (5) years' experience in executive-level management, with a preference toward experience in economics, law, finance, accounting or engineering. The executive director shall not be a commissioner of the commission.
- (b)
The commission may remove the executive director by a majority vote of the commissioners.
- (c)
The executive director shall have the principal responsibility of implementing the broad strategies, goals, objectives, long-range plans and policies of the commission. Among the executive director's duties, which are not limited to the following list, are:
- (1)
Serving as chief operating officer of the commission responsible for the day to day management of the commission and the supervision and hiring of all staff members within the limits of available funds authorized from time to time by the legislature;
- (2)
Administering, monitoring, and reviewing the operating procedures of each division of the commission, ensuring that each employee and division of the commission fully executes in an efficient and economical manner, the separate duties assigned to each;
- (3)
Submitting rules and policies for approval by the commission;
- (4)
Implementing and administering rules and policies for the efficient and economical internal management of the commission;
- (5)
Coordinating the preparation of the report to the general assembly as required by § 65-1-111;
- (6)
Supervising the expenditure of funds and being responsible for complying with all applicable state and federal law in the receipt and disbursement of funds; and
- (7)
Performing such other duties as the commission may require, from time to time, or as may be required by statute.
- (d)
The governor shall set the compensation of the executive director for the initial term of office of the executive director, which shall not exceed the compensation established for the commissioners of the claims commission. Thereafter, the commissioners of the commission shall set the compensation of the executive director.
- (e)
The executive director shall submit an annual report to the general assembly comparing telecommunications, electricity, natural gas, water and wastewater utility rates between Tennessee and the southeastern states. For the purpose of reporting rates in the report, the Tennessee public utility commission shall make comparisons on the basis of market choices made by consumers without regard to whether the services chosen are regulated or non-regulated services.
§ 65-1-110. Minutes and official documents.
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The minutes shall be signed by each member of the Tennessee public utility commission or by those present when any business is transacted. The minutes and all official documents of every kind shall be kept on file in the office of the commission.
§ 65-1-111. Report to general assembly.
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The Tennessee public utility commission shall, on the first Monday of February each year, make a report to the general assembly and to the governor of all matters relating to its office for the preceding year, and such as will disclose the practical workings of companies under its jurisdiction in this state, along with such suggestions as it may deem proper, together with an abstract of the minutes of all of its meetings.
§ 65-1-112. Copies of records.
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For a copy of any record on file in its office, the Tennessee public utility commission shall charge and receive the same fees that are charged by the secretary of state for similar services, and shall convey into the state treasury any amount so received.
§ 65-1-113. Enforcement — Duties of commission.
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It is the duty of the Tennessee public utility commission to ensure that chapter 305 of the Public Acts of 1995 and all laws of this state over which they have jurisdiction are enforced and obeyed, that violations thereof are promptly prosecuted, and all penalties due the state are collected.
§ 65-1-115. Members of former public service commission included in the executive service.
- (a)
In addition to the designations of preferred and executive service employees in § 8-30-202, the following members of the former public service commission shall be included in the executive service:
- (1)
Members of the Tennessee public utility commission;
- (2)
The executive director of the Tennessee public utility commission;
- (3)
The personal staff of the members of the Tennessee public utility commission;
- (4)
The division commissioners and assistant division commissioners of the Tennessee public utility commission; and
- (5)
Any attorneys employed by the Tennessee public utility commission.
- (b)
All actions of the department of human resources in regard to the Tennessee public utility commission personnel transactions may, upon request of a majority of the commission's commissioners, be reviewed and revised, modified or reversed by action of the house finance, ways and means committee and the senate finance, ways and means committee.
Chapter 2 Procedure Before the Tennessee Public Utility Commission
§ 65-2-101. Chapter definitions.
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As used in this chapter, unless the context otherwise requires:
- (1)
“Commission” means the Tennessee public utility commission;
- (2)
“Contested case” means all proceedings before the commission in which the legal rights, duties, or privileges of specific parties are determined after a hearing before the commission; provided, that the fixing of rates shall be deemed a contested case rather than a rule-making proceeding; and
- (3)
“Rule” means every regulation, or statement of policy, or interpretation of general application and future effect, including the amendment or repeal thereof, adopted by the commission, whether with or without a prior hearing, to implement or make specific the laws enforced or administered by it, or to govern its organization or procedures, but does not include regulations concerning only the internal management of the commission which do not directly affect the rights or procedures available to the public.
§ 65-2-102. Adoption, effective date and publication of rules.
- (a)
The commission is empowered and directed to adopt rules in the following circumstances and in the following manner:
- (1)
The commission shall adopt rules governing the procedure prescribed or authorized by this chapter or by any other statute applicable to the commission; these rules shall include, but shall not be limited to, rules of practice before the commission, together with forms and instructions;
- (2)
The commission is empowered to adopt rules implementing, interpreting, or making specific the various laws which it enforces or administers; provided, that the commission shall have no power to vary or deviate from those laws, nor to extend its power or jurisdiction to matters not provided for in those laws;
- (3)
The commission may adopt, amend, or repeal such rules on its own motion, or on the petition of any interested person. The commission shall prescribe by rule the form of such petitions and the procedure for their submission, consideration and disposition; provided, that the commission shall abide by any such rule adopted by it, until it shall have been changed in the manner provided for in this chapter; and
- (4)
Prior to the adoption of any rule, or to the amendment or repeal of any rule, the commission shall, so far as practicable and in such manner as it deems expedient, publish or otherwise circulate notice of its intended action, and afford interested persons opportunity to submit data or argument in such manner as the commission shall prescribe; provided, that no person shall be entitled to challenge the validity of such a rule, or the amendment or repeal of such a rule, on the grounds that such person failed to receive such notice or was not given an opportunity to be heard.
- (b)
Rules adopted by the commission shall take effect at such date as the commission shall direct. The commission shall compile and publish all rules adopted by it in such manner and in such form as it deems expedient. The commission shall also furnish copies of such compilations of its rules to all persons requesting same at a price fixed by the commission to cover publication and mailing costs.
§ 65-2-103. Petitions to be in writing — Filing fees.
- (a)
Every petition filed with the commission shall be in writing and shall be accompanied by a filing fee of twenty-five dollars ($25.00).
- (b)
Any petition filed on behalf of multiple parties shall be accompanied by a payment of twenty-five dollars ($25.00) for each party.
§ 65-2-104. Petition for declaratory ruling by the commission.
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On the petition of any interested person, the commission may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it or with respect to the meaning and scope of any order of the commission. A declaratory ruling, if issued after argument and stated to be binding, is binding between the commission and the petitioner on the state of facts alleged in the petition, unless it is altered or set aside by a court in a proper proceeding. Such rulings are subject to review in the chancery court of Davidson County in the manner provided in this chapter for the review of decisions in contested cases. The commission shall prescribe by rule the form for such petitions and the procedure for their submission, consideration, and disposition.
§ 65-2-105. Declaratory judgment on validity of rules.
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The validity of any rule of the commission may be determined upon petition for a declaratory judgment thereon addressed to the chancery court of Davidson County, when it appears that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the petitioner. The commission shall be made a party to all such proceedings. Such declaratory judgment may be rendered whether or not the petitioner has first requested the commission to pass upon the validity of the rule in question. In passing on such rules, the court shall declare the rule invalid only if it finds that it violates constitutional provisions or exceeds the statutory authority of the commission or was adopted without compliance with the rulemaking procedures provided for in this chapter.
§ 65-2-106. Show cause orders.
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The commission is empowered and authorized in the exercise of the powers and jurisdiction conferred upon it by law to issue orders on its own motion citing persons under its jurisdiction to appear before it and show cause why the commission should not take such action as the commission shall indicate in its show cause order appears justified by preliminary investigation made by the commission under the powers conferred upon it by law. All such show cause orders shall fully and specifically state the grounds and bases thereof, and the respondents named in the orders shall be given an opportunity to fully reply thereto. Show cause proceedings shall otherwise follow the provisions of this chapter with reference to contested cases, except where otherwise specifically provided.
§ 65-2-107. Parties to contested cases.
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All persons having a right under the provisions of the laws applicable to the commission to appear and be heard in contested cases as defined in this chapter shall be deemed parties to such proceedings for the purposes of this chapter. In addition, the commission may upon motion allow any interested person to intervene and become a party to any contested case.
§ 65-2-108. Notice and hearing in contested cases.
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All parties to contested cases shall be afforded an opportunity for hearing after reasonable notice. The notice shall state the time, place, and issues involved as specifically as may be practicable. At the hearing all parties shall be afforded an opportunity to present evidence and argument in accordance with the rules of the commission; provided, that informal disposition may also be made of any case by stipulation, agreed settlement, consent order, or default; and provided further, that this section shall not be applicable to proceedings otherwise provided for by law.
§ 65-2-109. Rules of evidence — Judicial notice — Burden of proof.
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In all contested cases:
- (1)
The commission shall not be bound by the rules of evidence applicable in a court, but it may admit and give probative effect to any evidence which possesses such probative value as would entitle it to be accepted by reasonably prudent persons in the conduct of their affairs; provided, that the commission shall give effect to the rules of privilege recognized by law; and provided further, that the commission may exclude incompetent, irrelevant, immaterial or unduly repetitious evidence;
- (2)
All evidence, including records and documents in the possession of the commission of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference;
- (3)
Every party shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence;
- (4)
The commission may take notice of judicially cognizable facts and, in addition, may take notice of general, technical, or scientific facts within its specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noted. The commission may utilize its experience, technical competence, and specialized knowledge in the evaluation of evidence presented to it; and
- (5)
The burden of proof shall be on the party or parties asserting the affirmative of an issue; provided, that when the commission has issued a show cause order pursuant to this chapter, the burden of proof shall be on the parties thus directed to show cause.
§ 65-2-110. Commission reporter — Preparation of official record.
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The commission is authorized and directed to employ a competent court reporter or stenographer, whose salary shall be paid out of the general appropriations for the commission, and whose duties shall be to attend all sessions of the commission, to take down and transcribe all testimony offered in contested cases, to prepare the official record of all contested cases, which record shall include all petitions, applications, testimony, exhibits and such other matters as required by law or as the commission may direct, and to perform such other duties as the commission may direct; provided, that the commission may, in its discretion, direct the reporter not to transcribe particular proceedings if it appears that no such transcript is necessary; and provided further, that any party to a contested case may obtain copies of the transcript of testimony made by the commission's reporter upon the payment to the commission of the cost of same at such rate as the commission may determine.
§ 65-2-111. Proceedings before hearing examiners.
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In any contested case, the commission may direct that the proceedings or any part thereof shall be heard by a hearing examiner to be appointed by the commission; provided, that only the members of the commission and the regular employees of the commission shall be eligible to serve as such examiners. Proceedings before hearing examiners shall be according to this chapter, other applicable laws and the rules of the commission. Whenever a contested case, or any part thereof, is heard by a hearing examiner, the hearing examiner shall make a proposal for decision in writing which shall include findings of fact and conclusions of law made by the hearing examiner. Such proposals for decisions shall be served on all parties of record, and each party who would be adversely affected by the proposed decision shall be given an opportunity to file exceptions and present argument in writing to the commission itself. Before the commission shall enter a final order in such cases, the members thereof shall personally consider the entire record, or such portion thereof as may be cited by the parties, and shall make its decision in the form and manner prescribed by this chapter for decisions in contested cases.
§ 65-2-112. Decisions and orders in contested cases.
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Every final decision or order rendered by the commission in a contested case shall be in writing, or stated in the record, and shall contain a statement of the findings of fact and conclusions of law upon which the decision of the commission is based. Copies of such decisions or orders shall be delivered or mailed to each party or to the party's attorney of record.
§ 65-2-113. Publication of decisions and orders in contested cases.
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The commission shall each year compile and publish in such manner as it deems expedient such of its decisions or orders as it deems to be of general interest, and shall charge for copies of such compilations a reasonable price to cover the cost of publication and mailing. The commission may also include within such compilations decisions or orders with reference to the rules of the commission.
§ 65-2-114. Petitions for rehearing in contested cases.
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Any party to a contested case who deems to be aggrieved by a final order of the commission and who desires to have the same modified or set aside may within fifteen (15) days after the entry of such order file with the commission a written petition for rehearing, which shall specify in detail the grounds for the relief sought in the petition and authorities in support.
§ 65-2-115. Effect of filing of petition for rehearing.
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The filing of a petition for rehearing shall not suspend or delay the effective date of the commission's order, and the order shall take effect on the date fixed by the commission and shall continue in effect unless and until the petition is granted or until the order is superseded, modified, or set aside in a manner provided by law.
§ 65-2-116. Grounds for rehearing.
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A petition for rehearing will lie only for the following grounds:
- (1)
Some material error of law committed by the commission;
- (2)
Some material error of fact committed by the commission; or
- (3)
The discovery of new evidence sufficiently strong to reverse or modify the commission's order, and which could not have been previously discovered by due diligence.
§ 65-2-118. Disposition of petitions for rehearing.
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The commission may, in its discretion, set the petition down for hearing or enter an order with reference to the petition without a hearing; provided, that in any event the commission shall dispose of the petition within thirty (30) days after filing thereof. If the commission enters no order disposing of the petition within the thirty-day period, the petition shall be deemed to have been denied as of the expiration of the thirty-day period.
§ 65-2-119. Proceedings upon granting of petition for rehearing.
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Upon the granting of a petition for rehearing by the commission, the commission shall set the matter for rehearing as soon as practicable. In disposing of matters on rehearing, the commission shall have all the powers and shall follow the procedures of the chancery courts with reference to the disposition of rehearings in such courts, except as otherwise provided in this chapter.
§ 65-2-120. Conflict of laws.
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If, in any case to which this chapter applies, this chapter conflicts with any other law in this state, this chapter shall control.
§ 65-2-121. Liberal construction of chapter.
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This chapter shall not be construed as in derogation of the common law, but shall be given a liberal construction, and any doubt as to the existence or the extent of a power conferred shall be resolved in favor of the existence of the power.
Chapter 3 Regulation of Railroads by Department of Transportation
Part 1 General Provisions
§ 65-3-101. All railways subject to chapter.
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All railways are declared subject to this chapter, and all individuals, companies, corporations, trustees, receivers, and lessees, owning, operating, and managing such railways for the transportation of freight and passengers, are declared common carriers.
§ 65-3-102. Interstate commerce excepted.
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This chapter and chapter 5 of this title shall be construed to apply to and affect only the transportation of passengers, freight cars and services to persons or between points within this state.
§ 65-3-103. Uniform laws.
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It is the duty of the department of transportation, by correspondence, conventions, or otherwise, to confer with such departments of other states and the interstate commerce commission, and such persons from states which have no railroad commission, as the governors of such states may appoint, for the purpose of agreeing, if practicable, upon a draft of statutes to be submitted to the legislature of each state, which shall secure uniform control of transportation in the several states, and from one (1) state into or through another state, as will best subserve the interest of trade and commerce of the whole country; and the department of transportation shall include in its annual report to the governor an abstract of the proceedings of any such conference or convention.
§ 65-3-104. Power to adopt rules and regulations.
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The department of transportation has the power to make all needed rules for its government and for its proceedings, and regulate the mode of all investigations and hearings of railroad companies and other parties before it, and to adopt and enforce such rules and regulations and modes of procedure as it may deem proper for the hearing and determination of all complaints made by any railroad company or other parties; provided, that no person desiring to be present at any such investigation by the department of transportation shall be denied admission.
§ 65-3-105. Enforcement of regulations and orders.
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The department of transportation is to perform all duties imposed upon it by this chapter and chapter 5 of this title, and see that such companies shall comply with all such regulations and orders as it may reasonably and lawfully make. If any such company fails or refuses to comply with such reasonable and lawful regulations and orders, it shall be the duty of the department of transportation to enforce the same. Power is given the department of transportation to enforce the same by mandamus or mandatory injunction, or by other summary proceedings provided by law. In all such proceedings, the orders, regulations, rates and tariffs made and fixed by the department of transportation pursuant to this chapter and chapter 5 of this title shall be taken and treated as prima facie reasonable and valid. It is made the duty of the courts having jurisdiction in such proceedings to hear and determine all such summary causes as speedily as practicable, giving preference or priority thereto as in revenue causes.
§ 65-3-106. Information concerning company affairs.
- (a)
The department of transportation shall inform itself fully and thoroughly in regard to the affairs of every company doing business in this state, and under its jurisdiction. It shall cause to be prepared suitable blanks with questions calculated to elicit all information concerning same, and, as often as may be necessary, furnish the blanks to each such company.
- (b)
Each company receiving from the department of transportation any such blanks shall cause the same to be properly filled out, so as to answer fully and correctly each question therein propounded, and in case such company is unable to answer any question, it shall give a satisfactory reason for its failure, and the answer, duly sworn to by the proper officer of the company, shall be returned to the department of transportation at its office in Nashville within thirty (30) days from the receipt of same.
§ 65-3-107. Company reports.
- (a)
It is the duty of each and every company, corporation, or individual, owning, operating, or managing such a company in this state, to send to the department of transportation at its office in Nashville, the monthly, quarterly, and annual statements of the operations of such company or individual, if such reports are issued; if not, then such company or individual shall send such reports as may be issued at any special or regular time. The president or chief officer of each and every such company shall, on or before February 1 of each year, make and transmit to the department of transportation at its office in Nashville, under oath of the president or chief officer of the company, a full and true statement of the affairs of the company as the same existed on the preceding January 1, in accordance with the direction and schedules prepared and furnished by the department of transportation.
- (b)
All common carriers shall send a copy of all safety inspection reports of such common carrier's tracks or track system which are prepared for or made by the federal railroad administration to the department of transportation. “Common carrier” is understood not to apply to private in-plant or intra-plant trackage owned or leased by private corporations which do not engage in serving the public as common carriers.
- (c)
Any officer, agent, or employee failing or refusing to make, under oath, any report required by the department of transportation, within the time required, or failing or refusing to answer fully under oath, if required, any inquiry propounded by the department of transportation, or who shall, in any way, hinder or obstruct the department of transportation, in the discharge of its duties, commits a Class C misdemeanor.
§ 65-3-108. Powers of department of transportation to examine.
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The department of transportation is given full power to examine the books and papers of the companies, and to examine, under oath, the officers, agents, and employees of the companies and any other persons, to procure the necessary information to intelligently and justly discharge its duties and carry out the provisions of this chapter and chapter 5 of this title.
§ 65-3-109. Confidential information.
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The department of transportation shall not give publicity to any contracts, leases, or engagements obtained by it in its official capacity, if the interests of any company would thereby be injuriously affected, unless, in the judgment of the department of transportation, the public interest requires it.
§ 65-3-110. Power of department of transportation to take evidence.
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The department of transportation has the power to examine, under oath, any person, or the directors, officers, agents, and employees of any such corporation doing business in this state, concerning the management of its affairs, and to obtain information pursuant to this chapter and chapter 5 of this title, and has the power to issue subpoenas for the attendance of witnesses, to compel the production of books and papers, and to administer oaths.
§ 65-3-111. Refusal to obey process or testify — Penalty.
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Any person who neglects or refuses to obey the process of subpoenas issued by the department of transportation or who, being in attendance, refuses to testify commits a Class C misdemeanor. Each refusal to obey the subpoena or to testify is a separate offense.
§ 65-3-112. Power to issue subpoenas.
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The department of transportation, in making any examination or investigation provided for, has the power to issue subpoenas for the attendance of witnesses by such rules as it may prescribe.
§ 65-3-113. Compensation of witnesses.
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Each witness who appears before the department of transportation, by order of the department of transportation, shall receive for attendance the compensation provided by law, which shall be paid by the state treasurer on warrant of the commissioner of finance and administration, upon the presentation of proper voucher sworn to by such witness, and approved by the commissioner of transportation; provided, that no witness shall be entitled to any witness fees or mileage who is directly or indirectly interested in any such company in this state or out of it, or who is in any way interested in any stock, bond, mortgage, security, or earnings of any such company, or who shall be the agent or employee of such company, or an officer thereof when summoned at the instance of such company. No witness furnished with free transportation shall receive compensation for the distance traveled on such free transportation.
§ 65-3-114. Witness failing to obey subpoena.
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In case any witness fails or refuses to obey a subpoena, the department of transportation may issue an attachment for such witness, directed to any sheriff or constable of the state, and compel the witness to attend before the department of transportation and give testimony upon such matters as shall be lawfully required by it.
§ 65-3-115. Witness failing to attend or answer questions.
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If a witness, after being duly summoned, fails or refuses to attend, or to answer any question propounded to such witness, which such witness would be required to answer if in court, the department of transportation shall have power to fine and imprison such witness for contempt in the same manner that the judge of any court of competent jurisdiction might do under similar circumstances.
§ 65-3-116. Officers or employees testifying exempt from indictment.
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No officer, agent, servant, or employee of any such company, who appears and testifies before the department of transportation under this chapter or chapter 5 of this title or in any civil or criminal proceedings instituted by the department of transportation under this chapter or chapter 5 of this title, shall be liable to indictment or presentment for any violation of this chapter or chapter 5 of this title about which such person so testifies.
§ 65-3-117. Depositions.
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The department of transportation shall, in all cases, have a right in its discretion to issue proper process and take depositions instead of compelling personal attendance of witnesses.
§ 65-3-118. Fees of sheriff or constable executing process.
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The sheriff or constable executing any process issued under this chapter and chapter 5 of this title shall receive such compensation as may be allowed by the department of transportation, not to exceed the fees prescribed by law for similar services.
§ 65-3-119. Penalties generally.
- (a)
It is the duty of the district attorneys general to bring suit in the name of the state on the relation of the department of transportation, in any court having jurisdiction thereof, to recover any penalty imposed by this chapter and chapter 5 of this title.
- (b)
If any company, corporation or lessee knowingly violates this chapter or chapter 5 of this title, or does any act prohibited therein, or fails or refuses to perform any duty required by the department of transportation pursuant to this chapter or chapter 5 of this title for which a penalty has not therein been provided, for each and every such act of violation it shall pay to the state of Tennessee a penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).
- (c)
All penalties provided for in this chapter or chapter 5 of this title shall be recovered, and suit thereon shall be brought, in the name of the state of Tennessee.
- (d)
All penalties and fines recovered shall be paid into the state treasury.
§ 65-3-120. Civil and criminal suits.
- (a)
The circuit, chancery courts and courts of general sessions have jurisdiction of all suits of a civil nature arising under this chapter and chapter 5 of this title, according to the nature of the suit and the amount involved, and the circuit and criminal courts have jurisdiction of all criminal proceedings so arising.
- (b)
The district attorney general of the judicial district in which the suit is to be instituted shall prosecute suits so brought in the name of the state.
- (c)
The department of transportation shall report all such violations with the facts in its possession to such district attorney general and request the district attorney general to institute the proper proceedings.
- (d)
All suits between the state and any such company shall have precedence in all courts over all other suits pending therein, and the judges of the courts are directed to advance such suits on their dockets.
§ 65-3-121. Indictments — Prosecutor.
- (a)
Indictments or presentments under this chapter and chapter 5 of this title shall be only upon recommendation or request of the department of transportation, filed in the court having jurisdiction of the offense.
- (b)
The department of transportation or any member thereof, or any person authorized by law to prosecute criminal cases, may be prosecutor.
§ 65-3-122. Limitation of actions.
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All prosecutions or actions under this chapter and chapter 5 of this title shall be commenced within one (1) year after the offense has been committed or the cause of action has accrued, or the same shall be barred.
§ 65-3-123. Abatement of dangerous or unhealthy conditions.
- (a)
The department of transportation has the power and authority relative to commercial railroads, interurban railroads, and street railroads to inspect the conditions existing on all trains operating in Tennessee, along the rail rights-of-way, in rail yards and terminals, and at rail loading and unloading facilities connected to property owned or operated by the railroads, except for those areas of loading and unloading facilities requiring no access for service by Class I railroads. This power and authority is in addition to those granted in § 65-11-107. Such inspection shall be conducted for the purpose of assuring the safety, health and comfort of rail customers, the general public and rail employees, and for the purpose of abating and removing any dangerous or unhealthy conditions found to exist in these locations.
- (b)
The department of transportation, on its own motion or on the petition of any citizen, shall have a hearing on the question embraced within this section, as to the presence of dangerous or unhealthy conditions of trains or along the rights-of-way, yards and terminals of all commercial railroads and street railroads.
- (c)
It is the duty of the department of transportation, after the hearing, to order the abatement and removal of any dangerous or unhealthy condition, if found to exist, and to order improvements to be made remedying same, when such conditions are shown to be dangerous to the health and safety of the general public or the employees.
§ 65-3-124. Report on blocked highway-rail grade crossings.
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On or before November 1, 2021, and on or before November 1 of each year between 2022 – 2026, the department of transportation shall report to the transportation committee of the house of representatives and the transportation and safety committee of the senate on the data collected on the following website, or any successor website, established by the federal railroad administration (FRA) for the public and law enforcement agencies to report blocked highway-rail grade crossings: www.fra.dot.gov/blockedcrossings. The department shall publish the link to the FRA website in a prominent location on its website. The department shall submit its final report on or before July 1, 2027. From the data available on the website, the department's report must identify the areas in this state impacted by the blocked crossings, such as areas where commerce is impeded or potential public safety risks are posed, and must include the location and length of the obstructions in those areas. The department shall send a copy of each report to the five (5) municipalities with the highest number of areas impacted by blocked crossings.
Part 2 Inspection, Control, and Supervision Fee
§ 65-3-201. General provisions.
- (a)
Every railroad which is doing business in this state and subject to the control and jurisdiction of the department of transportation and to which this chapter applies, shall pay to the state on or before July 1 of each year, a fee for the inspection, control and supervision of the business, service and rates of such railroads.
- (b)
The fee prescribed by this section shall be paid by railroads in addition to any and all property, franchise, license and other taxes, fees and charges fixed, assessed or charged by law against the railroads.
- (c)
The amount of the fee prescribed by this section shall be assessed against the actual ton miles operated annually by each railroad in this state, but no fee shall be assessed against any ton miles operated in excess of the maximum assessable ton miles for each railroad. The maximum assessable ton miles shall be the total ton miles reported to the former public service commission by each railroad in calendar year 1990, plus four percent (4%) of that base amount for each calendar year thereafter. The fee fixed and assessed against these ton miles to be paid by each railroad is four cents (4¢) per one thousand (1,000) ton miles. This fee is effective on payments made to the former public service commission on or before July 1, 1995, based upon ton miles for the calendar year 1995, and in each year thereafter.
- (d)
In no case shall the fee to be paid be less than one hundred dollars ($100) which will be the minimum inspection, control and supervision fee to be paid by any railroad subject to such fee.
§ 65-3-202. Collection and disposition of fee.
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The inspection, control and supervision fees provided for in this part shall be collected by the department of transportation. Such fees, when collected, shall be deposited in the state treasury but shall be kept in a separate account, to be known as the “railroad account,” and the funds so raised shall thus be segregated on a fiscal year basis. Effective June 30, 1996, the balance in the railroad account is to reflect all fees collected for the fiscal year and should reflect any payments authorized by this chapter for the fiscal year and each year thereafter. The same accounting procedures used by the department of finance and administration for the determination of other reserve fund balances for the department of transportation shall be applicable to the railroad account balance.
§ 65-3-203. Default.
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In case of default in the payment of any such fee, or part thereof, when the same shall become due, as provided in this part, any railroad in default shall be liable to a penalty of ten percent (10%) per month on the amount of the fee, which may be recovered by suit of the state for every month it remains in default, and any such penalty, when collected, is to be deposited in the state treasury as part of the railroad account.
§ 65-3-204. Lien for fees and penalties.
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A lien is declared and shall exist upon all the property of each railroad in default for the payment of the fee prescribed, together with all penalties accruing hereunder, which liens shall be superior to all other liens, except those for federal, state, county and municipal taxes.
§ 65-3-205. Employees.
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The commissioner of transportation is empowered to employ such rate experts, engineers, attorneys, accountants, auditors, inspectors, examiners, clerks, agents or other employees, and assign to them such duties as shall be necessary to enable the department of transportation to fully perform the duties, and to exercise the powers conferred by this chapter upon the department of transportation, subject to its review. This section shall not be construed to authorize or to permit such attorneys to file any action or to otherwise appear before any state or federal court without prior approval of the attorney general and reporter.
§ 65-3-206. Railroads to file statements.
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Every such railroad doing business in this state shall file with the department of transportation a statement under oath, in such form and substance as may be prescribed by the department of transportation, setting forth accurately the ton miles operated in the state, together with the total number of Tennessee main line miles for the preceding calendar year. Any such railroad failing to file such statement as required, or failing to give such other information as may be reasonably required of such railroad, commits a Class C misdemeanor for each day of such failure to comply.
§ 65-3-207. Use of fees.
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The inspection, control and supervision fees generated by this part shall be used only to support railroad-related programs administered by the department of transportation and assessment functions performed by the comptroller of the treasury under title 67, chapter 5, part 13.
Chapter 4 Regulation of Public Utilities by Commission
Part 1 General Provisions
§ 65-4-101. Chapter definitions.
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As used in this chapter, unless the context otherwise requires:
- (1)
“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;
- (2)
“Current authorized fair rate of return” means:
- (A)
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);
- (B)
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;
- (3)
“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;
- (4)
“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;
- (5)
“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;
- (6)
- (A)
“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:
- (i)
Any corporation owned by or any agency or instrumentality of the United States;
- (ii)
Any county, municipal corporation or other subdivision of this state;
- (iii)
Any corporation owned by or any agency or instrumentality of the state;
- (iv)
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, this state or by any nonutility referred to in subdivisions (a)(1), (2), and (3);
- (v)
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 of this title, or the Telephone Cooperative Act, compiled in chapter 29 of this title;
- (vi)
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;
- (vii)
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;
- (viii)
Any of the foregoing nonutilities acting jointly or in combination or through a joint agency or instrumentality; and
- (ix)
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;
- (B)
- (i)
“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;
- (ii)
“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;
- (C)
“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
- (7)
“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.
§ 65-4-102. Railroads excluded.
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None of the provisions of this chapter and none of the powers conferred upon the commission shall apply to any railroad, whether operated by an incorporated company or individual, which is operated in this state and which is regulated and governed by chapter 3 of this title.
§ 65-4-103. Interstate commerce excepted.
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This chapter shall be construed to apply to and affect only public utilities which furnish products or services within the state, and this chapter shall not be construed to extend to any public utility engaged in interstate commerce the government or regulation of which jurisdiction is vested in the interstate commerce commission or other federal board or commission.
§ 65-4-104. Commission's jurisdiction and control of public utilities.
- (a)
The commission has general supervisory and regulatory power, jurisdiction, and control over all public utilities, and also over their property, property rights, facilities, and franchises, so far as may be necessary for the purpose of carrying out the provisions of this chapter. However, such general supervisory and regulatory power and jurisdiction and control shall not apply to street railway companies.
- (b)
- (1)
Any investor-owned electric power company serving Tennessee customers on the western side of the Mississippi River shall provide those Tennessee customers with the same level of service and charge the same rates as the power company provides and charges similarly situated customers in Arkansas.
- (2)
Upon a finding that an investor-owned electric power provider has engaged in unjust or unreasonable discrimination in service or rates in violation of subdivision (b)(1), the commission may order changes in the provider's services or rates to those Tennessee customers as necessary to enforce subdivision (b)(1).
- (3)
The commission's jurisdiction over an investor-owned electric power company serving Tennessee customers on the western side of the Mississippi River is limited to hearing a complaint alleging a violation of subdivision (b)(1) and granting appropriate relief as provided in subdivision (b)(2).
- (4)
Nothing in this subsection (b) removes the duty of any investor-owned electric power company to pay any required inspection and supervision fee to the commission as required by part 3 of this chapter.
- (5)
Nothing in this subsection (b) removes the duty of any investor-owned electric power company to pay its otherwise appropriate Tennessee state or local taxes.
- (c)
Notwithstanding § 65-4-101(6)(A)(vi), the commission may upon petition designate a provider or reseller of domestic public cellular radio telephone service as an eligible telecommunications carrier pursuant to 47 C.F.R. § 54.201 for purposes of providing Lifeline service.
§ 65-4-105. Extent of regulatory power of commission.
- (a)
In addition to the power conferred by this chapter on the commission, it shall possess with reference to all public utilities within its jurisdiction all the other powers conferred with reference to railroads regulated by the department of transportation or transportation companies regulated by the department of safety as provided by chapters 3 and 5 of this title.
- (b)
Where any existing contract between any public utility and any municipality specifies that particular things, other than charging certain rates, tolls or fares, shall continue to be done by such public utility, or the nature, kind, and quality of any particular service to be rendered by the public utility to the municipality or its people, nothing in this section nor in this title shall be construed to authorize the commission to excuse such public utility from continuing to do such specified things or from continuing to render and perform the service of at least the nature, kind and quality specified in any such existing contract; but, all these things involving the cost of the service shall be taken into consideration by the commission in exercising its power to pass upon the reasonableness of any rate, fare, or charge hereafter to be made by such public utility.
- (c)
No provision of this section or of this title shall be construed to alter or impair any existing contract between any public utility and any municipality whereby it has been agreed that any payments of money, in addition to proper ad valorem taxes, shall be made by any such public utility to or for the benefit of any such municipality or its people, but all such things, involving the cost of the service, shall be taken into consideration by the commission in exercising its power to pass upon the reasonableness of any rate, fare or charge hereafter to be made by such public utility.
- (d)
When any public utility regulated by the commission supplies its services to consumers who use solar or wind-powered equipment as a source of energy, such public utility shall not discriminate against such consumers by its rates, fees or charges or by altering the availability or quality of energy. Any consumer who uses solar, wind power, or other auxiliary source of energy shall install and operate the equipment, property, or appliance for such energy source in compliance with any state or local code or regulation applicable to the safe operation of such equipment, property, or appliance.
- (e)
Any franchise payment or other payment for the use of public streets, alleys or other public places or any license, privilege, occupation or excise tax payment, which after February 24, 1961, may be made by a utility to a municipality or other political subdivision, except such taxes as are presently provided for under existing statutes and except such franchise payment or other payments as are presently exacted from the utility pursuant to the terms of any existing franchise or other agreement, shall, insofar as practicable, be billed pro rata to the utility customers receiving local service within the municipality or political subdivision receiving such payments, and shall not otherwise be considered by the commission in fixing the rates and charges of the utility.
- (f)
The commission shall further have jurisdiction over all utility districts created pursuant to Tennessee law, to the extent that the exercise of such jurisdiction is provided by title 7, chapter 82 and chapter 51 of the Public Acts of 1951 as provided in this chapter or as amended.
§ 65-4-106. Construction of chapter.
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This chapter shall not be construed as being in derogation of the common law, but shall be given a liberal construction, and any doubt as to the existence or extent of a power conferred on the commission by this chapter or chapters 1, 3 and 5 of this title shall be resolved in favor of the existence of the power, to the end that the commission may effectively govern and control the public utilities placed under its jurisdiction by this chapter.
§ 65-4-107. Approval of privilege or franchise.
- (a)
No privilege or franchise hereafter granted to any public utility by the state or by any political subdivision of the state shall be valid until approved by the commission, such approval to be given when, after hearing, the commission determines that such privilege or franchise is necessary and proper for the public convenience and properly conserves the public interest, and the commission shall have power, if it so approves, to impose such conditions as to construction, equipment, maintenance, service or operation as the public convenience and interest may reasonably require; provided, however, that nothing contained in this chapter shall be construed as applying to the laying of sidings, sidetracks, or switchouts, by any public utility, and it shall not be necessary for any such public utility to obtain a certificate of convenience from the commission for such purpose.
- (b)
All terms, conditions, obligations, and rights of a privilege or franchise approved by the commission for the provision of natural gas service shall remain in effect until approval of a subsequent privilege or franchise by the commission.
§ 65-4-108. Appeal to commission from local regulation.
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Any such public utility may appeal to the commission from any order or regulation made by any local, municipal, or county governing body, and the commission is given power and jurisdiction to hear such appeal and to determine the matter in question on the merits and make such order in the premises as may be just and reasonable.
§ 65-4-109. Issuance of stocks or other evidences of indebtedness.
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No public utility shall issue any stocks, stock certificates, bonds, debentures, or other evidences of indebtedness payable in more than one (1) year from the date thereof, until it shall have first obtained authority from the commission for such proposed issue. It shall be the duty of the commission after hearing to approve any such proposed issue maturing more than one (1) year from the date thereof upon being satisfied that the proposed issue, sale and delivery is to be made in accordance with law and the purpose of such be approved by the commission.
§ 65-4-110. Depreciation account for protection of holders of securities.
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The commission has the power, after hearing, upon notice, by order in writing, to require every public utility as defined in § 65-4-101 to carry for the protection of stockholders, bondholders or holders of securities a proper and adequate depreciation account in accordance with such rules, regulations, and forms of account, as the commission may prescribe. The commission shall have power to ascertain and determine, and by order in writing, after hearing, fix proper and adequate rates of depreciation of the property of each public utility, and each public utility shall conform its depreciation accounts to the rates so ascertained, determined, and fixed, and shall set aside the moneys so provided for out of earnings and carry the same in a depreciation fund. The income from investments of moneys in such fund shall likewise be carried in such fund. This depreciation fund shall not be expended otherwise than for depreciation, improvements, new constructions, extensions, or additions to the property of such public utility, unless the commission shall by order in writing give permission to the public utility to divert the fund to purposes other than those named in this section.
§ 65-4-111. Uniform system of accounting — Reports.
- (a)
The commission has the power, after hearing, upon notice, by order in writing, to require every public utility as defined in § 65-4-101 to keep its books, records, and accounts so as to afford an intelligent understanding of the conduct of its business, and to that end to require every such public utility of the same class to adopt a uniform system of accounting. The accounting system shall conform, where applicable, to any system adopted or approved by the interstate commerce commission.
- (b)
The commission also has the power to require each such utility to furnish annually, or at such other times as the commission may require, a detailed report of finances and operations as shown by such system of accounts.
§ 65-4-112. Utilities leasing, merging, or consolidating property.
- (a)
No lease of its property, rights, or franchises, by any such public utility, and no merger or consolidation of its property, rights and franchises by any such public utility with the property, rights and franchises of any other such public utility of like character shall be valid until approved by the commission, even though power to take such action has been conferred on such public utility by the state or by any political subdivision of the state.
- (b)
Any public utility as defined in § 65-4-101, may, without the approval or consent of the state or the commission, or any other agency of the state, sell, lease, or otherwise dispose of any of its property, including, but without limitation, franchises, rights, facilities, and other assets, and its capital stock, to any of the nonutilities defined in § 65-4-101.
§ 65-4-113. Transfer of authority to provide utility services.
- (a)
No public utility, as defined in § 65-4-101, shall transfer all or any part of its authority to provide utility services, derived from its certificate of public convenience and necessity issued by the commission, to any individual, partnership, corporation or other entity without first obtaining the approval of the commission.
- (b)
Upon petition for approval of the transfer of authority to provide utility services, the commission shall take into consideration all relevant factors, including, but not limited to, the suitability, the financial responsibility, and capability of the proposed transferee to perform efficiently the utility services to be transferred and the benefit to the consuming public to be gained from the transfer. The commission shall approve the transfer after consideration of all relevant factors and upon finding that such transfer furthers the public interest.
- (c)
Following approval of the transfer pursuant to this section, the transferee shall be granted full authority to provide the transferred services subject to the continuing regulation of the commission. The transferor shall no longer have any authority to provide the transferred services, but shall retain authority to provide other services, if any are retained, which were not included in such transfer.
- (d)
This section shall not apply to any transfers falling under § 65-4-112. This section shall apply to all other utility service transfers, including, but not limited to, the transfer of the authority to provide communications services held by a land line telephone company pursuant to § 65-30-105(h).
- (e)
To the extent transferees receiving authority under this section would be prohibited from performing the service by § 65-30-104, § 65-30-105(a), or § 65-30-105(f)(2), those sections are declared inapplicable.
§ 65-4-114. Service requirements.
-
The commission has the power, after hearing, upon notice, by order in writing, to require every public utility, as defined in § 65-4-101, to:
- (1)
Furnish safe, adequate, and proper service and to keep and maintain its property and equipment in such condition as to enable it to do so; and
- (2)
Establish, construct, maintain, and operate any reasonable extension of its existing facilities where, in the judgment of the commission, such extension is reasonable and practicable, and will furnish sufficient business to justify the construction, operation, and maintenance of the same, and when the financial condition of the public utility affected reasonably warrants the original expenditure required in making such extension, or to abandon any service when, in the judgment of the commission, the public welfare no longer requires the same.
§ 65-4-115. Unjust practices and unsafe services prohibited.
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No public utility shall adopt, maintain, or enforce any regulation, practice, or measurement which is unjust, unreasonable, unduly preferential or discriminatory, nor shall any public utility provide or maintain any service that is unsafe, improper, or inadequate, or withhold or refuse any service which can reasonably be demanded and furnished when ordered by the commission.
§ 65-4-116. Penalties.
- (a)
The penalties prescribed by chapter 3 of this title shall be and remain in full force and effect, and shall in every case apply to any public utility within this chapter in the same manner and to the same extent as they are made applicable to and imposed on railroad and transportation companies under chapter 3 of this title.
- (b)
In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the person, firm or corporation charged, the gravity of the violation and the good faith of the person, firm or corporation charged in attempting to achieve compliance, after notification of a violation, shall be considered. The amount of the penalty, when finally determined, may be deducted from any sums owing by the state to the person, firm or corporation charged or may be recovered in a civil action in the courts of this state.
§ 65-4-117. Regulatory powers of commission — The 2-1-1 collaborative — Statewide 2-1-1 advisory council.
- (a)
The commission has the power to:
- (1)
Investigate, upon its own initiative or upon complaint in writing, any matter concerning any public utility as defined in § 65-4-101;
- (2)
Request the comptroller of the treasury, from time to time, appraise and value the property of any public utility, as defined in § 65-4-101, whenever in the judgment of the commission such appraisal and valuation shall be necessary for the purpose of carrying out any of the provisions of this chapter. The comptroller of the treasury's office is hereby authorized to make such valuation and in that process may have access to and use any books, documents or records in the possession of any department or board of the state or any political subdivision of the state. For purposes of rate regulation the Tennessee public utility commission has the specific authority to have access to books, documents or records in possession of any department or board of the state or any political subdivision of the state;
- (3)
After hearing, by order in writing, fix just and reasonable standards, classifications, regulations, practices or services to be furnished, imposed, observed and followed thereafter by any public utility;
- (4)
After hearing, by order in writing, ascertain and fix adequate and serviceable standards for the measurement of quantity, quality, pressure, voltage, or other condition, pertaining to the supply of the product or service rendered by any public utility, and to prescribe reasonable regulations for examination, test and measurement of such product or service;
- (5)
After hearing, by order in writing, establish reasonable rules and regulations, specifications and standards, to secure accuracy of all meters and appliances for measurements;
- (6)
Provide for the examination and test of any appliance used for the measuring of any product or service of a public utility, and by its agents or examiners to enter upon any premises occupied by any public utility, for the purpose of making the examination and test provided for in this chapter; and
- (7)
Fix the fees to be paid by any consumer or user of any product or service of a public utility, who may apply to the commission for such examination or test to be made. Any consumer or user may have any such appliance tested upon the payment of the fees fixed by the commission, which fees shall be repaid to the consumer or user if the appliance be found defective or incorrect to the disadvantage of the consumer or user, and in that event such fees shall be paid by the public utility concerned.
- (b)
- (1)
Not later than December 31, 2004, the commission shall designate an entity to be the 2-1-1 collaborative for this state, such 2-1-1 collaborative being designated in order to be qualified to obtain federal grants relating to 2-1-1 service in this state. The commission may designate an entity to be the 2-1-1 collaborative based on either the petition of an entity seeking such designation, or based on the commission's own motion.
- (2)
- (A)
There is created a statewide 2-1-1 advisory council consisting of up to eighteen (18) members who shall be appointed by the commission. The Tennessee Alliance of Information and Referral Systems and the United Ways of Tennessee shall submit recommendations to the commission for potential appointees to the advisory council. The advisory council shall be representative of the various 2-1-1 service stakeholders, including, but not limited to, governmental entities, call centers, non-profit organizations, foundations and corporate entities. In making recommendations for appointment to the advisory council, the Tennessee Alliance of Information and Referral Systems and the United Ways of Tennessee shall do so with a conscious intent of selecting persons who reflect a diverse mixture with respect to race and gender.
- (B)
The 2-1-1 advisory council is charged with advising and assisting the commission in establishing statewide standards that will ensure that the citizens of this state are served by an efficient and effective 2-1-1 service. To that end, the commission is empowered to promulgate rules and regulations that further define the role of the advisory council, that adopt standards for 2-1-1 service and as may otherwise be necessary to implement this subdivision (b)(2).
§ 65-4-118. Consumer advocate division.
- (a)
There is created a consumer advocate division in the office of the attorney general and reporter which shall consist of various positions which may include attorneys, accountants/financial analysts, support personnel and other personnel as determined by the attorney general and reporter to be appropriate and necessary to accomplish the purposes of this section. As part of the annual appropriations process, the attorney general and reporter may request the general assembly to increase or eliminate positions within the division. The offices of the division shall be located wherever the attorney general and reporter, in the attorney general and reporter's discretion, shall so choose.
- (b)
- (1)
The consumer advocate division has the duty and authority to represent the interests of Tennessee consumers of public utilities services. The division may, with the approval of the attorney general and reporter, participate or intervene as a party in any matter or proceeding before the commission or any other administrative, legislative or judicial body and initiate such proceeding, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and the rules of the commission.
- (2)
If the consumer advocate division concludes that it is without sufficient information to initiate a proceeding, it may petition the commission, after notice to the affected utility, to obtain information from the utility. The petition shall state with particularity the information sought and the type of proceeding that may be initiated if the information is obtained. Additionally, the consumer advocate division may request information from the commission staff, and, if the commission staff is in possession of the requested information, such information shall be provided within ten (10) days of the request.
- (c)
If the consumer advocate division initiates an appeal of a commission decision, the defense of the appeal shall be the responsibility of the commission through its legal staff.
- (d)
The consumer advocate division may enter into agreements regarding the nondisclosure of trade secrets or other confidential commercial information obtained by the division.
- (e)
The attorney general and reporter shall hire, fire, supervise, direct and control the personnel and activities of the consumer advocate division, and the employees of the division shall be employees of the attorney general and reporter for the purposes of title 8, chapter 6.
- (f)
The attorney general and reporter shall prepare, each year, a budget for the consumer advocate division for the next fiscal year and submit the budget for inclusion in the attorney general and reporter's budget request for review and final approval by the general assembly. Reports on the operations and other matters relative to the consumer advocate division shall be filed by the attorney general and reporter with the general assembly and other governmental entities.
- (g)
The division shall be funded from the general fund as appropriated in the general appropriations act.
§ 65-4-119. Complaints referred to employees.
-
Any person employed by the commission in the consumer advocate division may be assigned by the commission to investigate, hear, and, wherever possible, adjust any individual or general complaint made by any person against any such public utility, wherein its investment, property, service charges, or claims preferred against it, may be involved, and may hear and take proof, and, in the event the commission employee is unable to effect a satisfactory adjustment of any such complaint, then the commission employee shall certify the same to the commission, with recommendations in the premises, whereupon the commission shall, after hearing, make its final order, which shall be binding upon the parties to any such controversy.
§ 65-4-120. Penalty for noncompliance with commission.
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Any public utility which violates or fails to comply with any lawful order, judgment, finding, rule, or requirement of the commission, shall in the discretion of the commission be subject to a penalty of fifty dollars ($50.00) for each day of any such violation or failure, which may be declared due and payable by the commission, upon complaint, and after hearing, and when paid, either voluntarily, or after suit, which may be brought by the commission, shall be placed to the credit of the public utility account.
§ 65-4-121. Appeals.
-
Any appeal, order, decision, ruling or action of the commission affecting any utility as defined in § 65-4-101, exclusive of railroads or common carriers, or any company engaged in the transmission of intelligence or communications, shall be filed in a court of record of competent jurisdiction in the county in which the dispute or matters in controversy arose; and no other nisi prius court of this state shall have jurisdiction to hear and determine such appeal. In the event of an appeal from the judgment or order of circuit or chancery court reviewing such order, or judgment, such appeal shall be prosecuted to the court of appeals in the grand division of the state in which the dispute or matters in controversy arose; and any appeal therefrom shall be perfected to the supreme court.
§ 65-4-122. Discriminatory charges — Reasonableness of rates — Unreasonable preferences — Penalties.
- (a)
If any common carrier or public service company, directly or indirectly, by any special rate, rebate, drawback, or other device, charges, demands, collects, or receives from any person a greater or less compensation for any service within this state than it charges, demands, collects, or receives from any other person for service of a like kind under substantially like circumstances and conditions, and if such common carrier or such other public service company makes any preference between the parties aforementioned, such common carrier or other public service company commits unjust discrimination, which is prohibited and declared unlawful.
- (b)
Any such corporation which charges, collects, or receives more than a just and reasonable rate of toll or compensation for service in this state commits extortion, which is prohibited and declared unlawful.
- (c)
It is unlawful for any such corporation to make or give an undue or unreasonable preference or advantage to any particular person or locality, or any particular description of traffic or service, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic or service to any undue or unreasonable prejudice or disadvantage.
- (d)
Any such corporation that shall be guilty of extortion or unjust discrimination, or of giving to any person or locality, or to any description of traffic an undue or unreasonable preference or advantage, shall be fined in any sum not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000).
- (e)
An action may be brought by any person against any person or corporation, owning or operating such public service company in Tennessee, for the violation of this section, before any court having jurisdiction to try the same.
§ 65-4-123. Declaration of telecommunications services policy.
-
The general assembly declares that the policy of this state is to foster the development of an efficient, technologically advanced, statewide system of telecommunications services by permitting competition in all telecommunications services markets, and by permitting alternative forms of regulation for telecommunications services and telecommunications services providers. To that end, the regulation of telecommunications services and telecommunications services providers shall protect the interests of consumers without unreasonable prejudice or disadvantage to any telecommunications services provider; universal service shall be maintained; and rates charged to residential customers for essential telecommunications services shall remain affordable.
§ 65-4-124. Administrative rules.
- (a)
All telecommunications services providers shall provide nondiscriminatory interconnection to their public networks under reasonable terms and conditions; and all telecommunications services providers shall, to the extent that it is technically and financially feasible, be provided desired features, functions and services promptly, and on an unbundled and non-discriminatory basis from all other telecommunications services providers.
- (b)
The Tennessee public utility commission shall, at a minimum, promulgate rules and issue such orders as necessary to implement the requirements of subsection (a) and to provide for unbundling of service elements and functions, terms for resale, interLATA presubscription, number portability, and packaging of a basic local exchange telephone service or unbundled features or functions with services of other providers.
- (c)
These rules shall also ensure that all telecommunications services providers who provide basic local exchange telephone service or its equivalent provide each customer a basic White Pages directory listing, provide access to 911 emergency services, provide free blocking service for 900/976 type services, provide access to telecommunications relay services, provide Lifeline and Link-Up Tennessee services to qualifying citizens of the state and provide educational discounts existing on June 6, 1995.
- (d)
The granting of applications for certificates of convenience and necessity to competing telecommunications service providers or the adoption of a price regulation plan for incumbent local exchange telephone companies is not dependent upon the promulgation of these rules.
§ 65-4-125. Changes in telecommunications service provider — Regulation — Enforcement — Surety bond or irrevocable letter of credit.
- (a)
No telecommunications service provider, and no person acting on behalf of any telecommunications service provider, shall designate or change the provider of telecommunications services to a subscriber if the provider or person acting on behalf of the provider knows or reasonably should know that such provider or person does not have the authorization of such subscriber.
- (b)
No telecommunications service provider, and no person acting on behalf of any telecommunications service provider, shall bill and collect from any subscriber to telecommunications services any charges for services to which the provider or person acting on behalf of the provider knows or reasonably should know such subscriber has not subscribed, or any amount in excess of that specified in the tariff or contract governing the charges for such services.
- (c)
The Tennessee public utility commission shall establish a consumer complaint form on the internet for reporting telecommunications service providers or persons acting on their behalf who charge the provider of telecommunications services in violation of this section. Any internet sites which are maintained by the commission, the general assembly or the governor's office shall contain a link to such form.
- (d)
The Tennessee public utility commission shall adopt rules implementing this section, including, without limitation, rules specifying the manner in which subscriber authorization may be obtained and confirmed.
- (e)
The Tennessee public utility commission may entertain and decide complaints and issue orders, including, without limitation, show cause orders, to enforce this section and its rules against any telecommunications service provider, or any person acting on behalf of any telecommunications service provider.
- (f)
A telecommunications provider or person acting on behalf of a telecommunications provider who violates any provision of this section, any regulation promulgated pursuant to this section or any order issued to enforce this section shall be subject to a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each day of any such violation. Such civil penalty shall be due and payable to the commission and shall be credited to the public utility account. The commission shall consider mitigating factors as raised by the telecommunications service provider in assessing the amount of the civil penalty. The commission shall allocate at least twenty-five percent (25%) of the revenue collected from such civil penalty for consumer education.
- (g)
Any telecommunications provider or person acting on behalf of a telecommunications provider who violates this section or regulations promulgated pursuant to this section shall pay damages to each subscriber affected by such conduct in an amount equal to all charges and fees for services for which the subscriber has not subscribed, including all amounts in excess of allowable charges for such services, and any cost incurred to reinstate the subscriber's original telecommunications service.
- (h)
This section shall not have the effect of amending or superseding any provisions of the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1.
- (i)
This section shall not have the effect of superseding any existing rules of the Tennessee public utility commission, or any order or proceeding to enforce such existing rules. Any such existing rules shall remain in effect until such time as the Tennessee public utility commission adopts new rules pursuant to this section.
- (j)
By September 1, 2000, all telecommunications service providers subject to the control and jurisdiction of the commission, except those owners or operators of public telephone service who pay annual inspection and supervision fees pursuant to § 65-4-301(b), or any telecommunications service provider that owns and operates equipment facilities in Tennessee with a value of more than five million dollars ($5,000,000), shall file with the commission a corporate surety bond or irrevocable letter of credit in the amount of twenty thousand dollars ($20,000) to secure the payment of any monetary sanction imposed in any enforcement proceeding, brought under this title or the Consumer Telemarketing Protection Act of 1990, compiled in title 47, chapter 18, part 15, by or on behalf of the commission.
§ 65-4-126. State policy on using energy more efficiently.
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The general assembly declares that the policy of this state is that the Tennessee public utility commission will seek to implement, in appropriate proceedings for each electric and gas utility, with respect to which the commission has rate making authority, a general policy that ensures that utility financial incentives are aligned with helping their customers use energy more efficiently and that provides timely cost recovery and a timely earnings opportunity for utilities associated with cost-effective measurable and verifiable efficiency savings, in a way that sustains or enhances utility customers' incentives to use energy more efficiently.
§ 65-4-127. Cyber security plan.
- (a)
As used in this section:
- (1)
“Commission” means the Tennessee public utilities commission; and
- (2)
“Utility” means a public utility that provides electric, water, wastewater, or natural gas services.
- (b)
- (1)
By July 1, 2023, or within one (1) year after a utility is formed, whichever is later, a utility shall prepare and implement a cyber security plan to provide for the protection of the utility's facilities from unauthorized use, alteration, ransom, or destruction of electronic data. The utility shall annually submit documentation of the utility's compliance with this section to the commission by July 1.
- (2)
The documentation required by this section must be made in writing and under oath by the chief executive officer, president, or other person with an equivalent role of the utility.
- (c)
A utility shall assess and update the cyber security plan implemented pursuant to this section no less frequently than once every two (2) years to address new threats.
- (d)
A utility that fails to comply with this section is subject to reasonable sanctions ordered by the commission as described in rule. The fees collected from civil penalties under this section must be remitted to the commission for enforcement of this section.
- (e)
The commission shall enforce this section and may promulgate rules necessary to effectuate this section. The rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (f)
The commission shall include with the annual report required under § 65-1-111, a separate report regarding compliance with this section to the chair of the commerce committee of the house of representatives, the chair of the commerce and labor committee of the senate, the department of safety, and the legislative librarian. The report must include, at a minimum, information on the utilities that have failed to comply with this section.
Part 2 Certificate of Public Convenience and Necessity
§ 65-4-201. Certificate required — Bond or other security required for projects proposed by public utilities providing wastewater service.
- (a)
No public utility shall establish or begin the construction of, or operate any line, plant, or system, or route in or into a municipality or other territory already receiving a like service from another public utility, or establish service therein, without first having obtained from the commission, after written application and hearing, a certificate that the present or future public convenience and necessity require or will require such construction, establishment, and operation, and no person or corporation not at the time a public utility shall commence the construction of any plant, line, system, or route to be operated as a public utility, or the operation of which would constitute the same, or the owner or operator thereof, a public utility as defined by law, without having first obtained, in like manner, a similar certificate; provided, however, that this section shall not be construed to require any public utility to obtain a certificate for an extension in or about a municipality or territory where it shall theretofore have lawfully commenced operations, or for an extension into territory, whether within or without a municipality, contiguous to its route, plant, line, or system, and not theretofore receiving service of a like character from another public utility, or for substitute or additional facilities in or to territory already served by it.
- (b)
Except as exempted by state or federal law, no individual or entity shall offer or provide any individual or group of telecommunications services, or extend its territorial areas of operations without first obtaining from the Tennessee public utility commission a certificate of convenience and necessity for such service or territory; provided, however, that no telecommunications services provider offering and providing a telecommunications service under the authority of the commission on June 6, 1995, is required to obtain additional authority in order to continue to offer and provide such telecommunications services as it offers and provides as of June 6, 1995.
- (c)
- (1)
After notice to the incumbent local exchange telephone company and other interested parties and following a hearing, the commission shall grant a certificate of convenience and necessity to a competing telecommunications service provider if after examining the evidence presented, the commission finds:
- (A)
The applicant has demonstrated that it will adhere to all applicable commission policies, rules and orders; and
- (B)
The applicant possesses sufficient managerial, financial and technical abilities to provide the applied for services.
- (2)
A commission order, including appropriate findings of fact and conclusions of law, denying or approving, with or without modification, an application for certification of a competing telecommunications service provider shall be entered no more than sixty (60) days from the filing of the application.
- (d)
Subsection (c) is not applicable to areas served by an incumbent local exchange telephone company with fewer than one hundred thousand (100,000) total access lines in this state unless such company voluntarily enters into an interconnection agreement with a competing telecommunications service provider or unless such incumbent local exchange telephone company applies for a certificate to provide telecommunications services in an area outside its service area existing on June 6, 1995.
- (e)
- (1)
The commission shall direct the posting of a bond or other security by a public utility providing wastewater service or for a particular project proposed by a public utility providing wastewater service. The purpose of the bond or other security shall be to ensure the proper operation and maintenance of the public utility or project. The commission shall establish by rule the form of such bond or other security, the circumstances under which a bond or other security may be required, and the manner and circumstances under which the bond or other security may be forfeited.
- (2)
The requirement under this subsection (e) to post a bond or other security by a public utility providing wastewater service shall also satisfy the requirement on such a public utility to provide a bond or other financial security to the department of environment and conservation as required by § 69-3-122.
- (3)
The commission shall establish by rule the amount of such bond or other security for various sizes and types of facilities.
- (4)
Notwithstanding any other law, posting a bond or other security under this subsection (e) or § 69-3-122, shall not be required until January 1, 2006, or until the commission's rules become effective, whichever occurs first. Such rules may be promulgated as emergency rules.
- (f)
The commission shall not issue a certificate of public convenience and necessity for a wind energy facility that includes any wind turbine with a total height in excess of three hundred fifty feet (350′) as measured from the ground at its base to the maximum height of the blade tip located on a mountain ridge at an elevation above two thousand five hundred feet (2,500′) mean sea level or five hundred feet (500′) or more above mean sea level of the adjacent valley floor. This subsection (f) shall not apply to single wind turbines less than one hundred feet (100′) in height as measured from the ground at its base to the maximum height of the blade tip and used to generate electricity that is consumed on the same site where the wind turbine is located.
§ 65-4-202. Complaint of interference — Limited certificate.
-
If any public utility, in establishing, constructing, reconstructing, or extending its route, line, plant or system, shall interfere or be about to interfere with the existing route, line, plant, or system of any other public utility, the commission, on complaint of the public utility claiming to be injuriously affected, may, after hearing, make such order and prescribe such terms and conditions in harmony with this part as are just and reasonable. The commission shall have power, after a hearing involving the financial ability and good faith of the applicant, the necessity for additional service in the municipality or territory, and such other matters as it deems relevant, to issue a certificate of public necessity and convenience, or to refuse to issue the same or to issue it for the establishment or construction of a portion only of the contemplated plant, route, line, or system or extension thereof, or for the partial exercise only of such right or privilege, and may attach to the exercise of the rights granted by the certificate such terms and conditions as to time or otherwise as in its judgment the public convenience, necessity, and protection may require, and may forfeit such certificate after issuance, for noncompliance with its terms, or provide therein for an ipso facto forfeiture of the same for failure to exercise the rights granted within the time fixed by the commission; provided, that nothing in this part shall be construed as requiring such certificate for a municipally owned plant, project, or development.
§ 65-4-203. Basis for granting certificate — Notice of hearing.
- (a)
The commission shall not grant a certificate for a proposed route, plant, line, or system, or extension thereof, which will be in competition with any other route, plant, line, or system, unless it shall first determine that the facilities of the existing route, plant, line, or system are inadequate to meet the reasonable needs of the public, or the public utility operating the same refuses or neglects or is unable to or has refused or neglected, after reasonable opportunity after notice, to make such additions and extensions as may reasonably be required under this part.
- (b)
In all proceedings under this section, the commission shall give at least ten (10) days' notice to the authorities of, and the public utilities operating in, the municipality or territory affected.
- (c)
This section shall not apply to telecommunications service providers.
§ 65-4-204. Public hearing on certificate — Plans and information required of applicant.
-
The commission may, upon its own initiative, or shall upon written application of any party in interest, order a public hearing with due notice to all interested parties, at which hearing the person proposing to create the development of water power or other plant or equipment, or extension of the same, shall be required to file with the commission, under oath, engineering plans and other information fully descriptive of the proposed development or such thereof as in the opinion of the commission can reasonably be furnished by such applicant, together with such other reasonable information as may be called for at the hearing or any adjournment of the same; and the commission shall have full power to issue or refuse the certificate of public necessity and convenience, or to qualify or withdraw the same as provided in § 65-4-203.
§ 65-4-205. Evidence.
-
All evidence taken by the commission in any such hearing or hearings shall be taken under oath and may be treated as evidence in any court.
§ 65-4-206. Agreement to permit other entity to operate within same geographic boundaries.
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Notwithstanding an investor-owned water utility's exclusive right to furnish services in the geographic boundaries set forth in its certificate of convenience and necessity as issued by the Tennessee public utility commission, an investor-owned water utility may enter into an agreement with a municipal water system, a water utility district, a county water system, a county water authority, or a county water and wastewater system treatment authority to permit that other entity to operate within the same geographic boundaries. An investor-owned water utility shall establish a method by which the utility's ratepayers may petition the utility to consider entering into an agreement pursuant to this section.
§ 65-4-207. Law inapplicable at local option.
- (a)
This part does not apply where any municipality or county by resolution or ordinance declares that a public necessity requires a competing company in that municipality or county.
- (b)
This section shall not apply to telecommunications service providers; provided, that this section shall continue to apply with respect to any ordinance adopted, and any franchise granted pursuant to such an ordinance, prior to June 6, 1995.
§ 65-4-208. Interstate transmission of electric power.
- (a)
Notwithstanding any other law, no person, firm or corporation not engaged on March 22, 1955, in the business of generating, transmitting, distributing, or furnishing electric power shall extend or construct transmission or distribution lines or other works into or within the state, directly or indirectly enter the state, for the purpose of delivering within the state electric power generated at a point or points outside the state, unless such person, firm or corporation shall have first submitted its plans for such extension, construction or entry to the commission and shall have obtained from the commission a certificate of public convenience and necessity covering the same. The commission shall deny such certificate if, after a hearing, the commission cannot affirmatively establish that the granting of such certificate would serve the public interest.
- (b)
This section shall not apply to the federal government or any federal agency, to the state of Tennessee or any agency or political subdivision of the state, or to any cooperative association organized under the former Electric Cooperative Act or the former Electric Membership Corporation Act, but shall be fully applicable to any private corporation organized under the laws of this or any other state and to any public corporation of any other state, irrespective of the nature, identity or governmental or other public status of the purchaser, consumer, or other party to whom electric power is to be delivered within the state.
- (c)
The provisions of this section shall be cumulative and the requirements contained in this section shall be in addition to, and not in substitution for, the requirements contained in any other law.
Part 3 Inspection, Control, and Supervision Fee
§ 65-4-301. Fees required.
- (a)
- (1)
Every public utility doing business in this state and subject to the control and jurisdiction of the commission to which this chapter applies, shall pay to the state on or before April 1 of each year, a fee for the inspection, control and supervision of the business, service and rates of such public utility.
- (2)
Fees collected by the commission pursuant to this part shall be expended by the commission for the inspection, control and supervision of the business service and rates of such public utilities as established in subdivision (a)(1). In addition, the Tennessee public utility commission may grant, on a one-time basis, an amount not to exceed four hundred thousand dollars ($400,000) from the public utilities account, as defined in § 65-4-307, to the 2-1-1 collaborative for the purpose of defraying start-up costs associated with the establishment of 2-1-1 telephone service to cover all parts of the state. Such grant may be made only after public notice is provided by the Tennessee public utility commission, specifically giving all public utilities, which are currently doing business in this state and subject to the control and jurisdiction of the commission, the opportunity to raise objection to such grant. The commission shall consider any objection timely filed in response to the commission notice prior to making such grant.
- (b)
Every owner or operator of a public pay telephone service who is not a public utility paying a fee in accordance with subsection (a), and who is authorized to provide such service pursuant to commission regulation, shall pay an annual inspection and supervision fee of ten dollars ($10.00) for each service location. Such fee shall be paid on or before July 1 of each year.
§ 65-4-302. Fee in addition to other taxes and fees.
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The fee provided for in this part shall be paid by the public utility in addition to any and all property, franchise, license, and other taxes, fees, and charges fixed, assessed, or charged by law against such utility.
§ 65-4-303. Fee measured by gross receipts from intrastate operations — Rates.
- (a)
The amount of the fee provided for in this section shall be measured by the amount of the gross receipts from intrastate operations of each public utility in excess of five thousand dollars ($5,000).
- (b)
- (1)
Except as provided in subdivision (b)(2), “gross receipts from intrastate operations”:
- (A)
Means total revenues, before any deductions, which are recognized by the commission as utility revenue for the purpose of setting intrastate rates under chapter 5 of this title; and
- (B)
Does not include any revenues from directory operations; provided, that the exclusion of these revenues from directory operations shall not affect the power of the commission to include or exclude these revenues in setting intrastate rates.
- (2)
For companies that elect market regulation pursuant to § 65-5-109(m), “gross receipts from intrastate operations” means the total revenue derived from the provision of intrastate services to non-affiliated telecommunications carriers, including specifically revenue from interconnection, collocation, billing and collection, inter-carrier compensation, services sold for resale and carrier access; provided, that revenue derived from the provision of retail services and products to consumers that are not telecommunications carriers is excluded.
- (c)
- (1)
The fee fixed and assessed against and to be paid by each public utility shall be due and payable on or before April 1, 2014, and each April 1 thereafter, and shall be based on the previous calendar year's gross receipts from intrastate operations. The fee shall be four dollars and twenty-five cents ($4.25) per one thousand dollars ($1,000) of such gross receipts over five thousand dollars ($5,000), except as set forth in subdivision (c)(2) for companies that provide telecommunications services.
- (2)
- (A)
Notwithstanding the calculations in subdivision (c)(1), the minimum inspection fee for companies that elect market regulation pursuant to § 65-5-109(m) shall be forty-nine percent (49%) of the inspection fee that was due by such company on April 1, 2012. Such companies shall file with their fee payments a calculation of both the fee as calculated under subdivision (c)(1) and the alternative minimum calculation established in this subdivision (c)(2)(A).
- (B)
Notwithstanding the calculation in subdivision (c)(1), the maximum inspection fee for a company providing telecommunications services that does not elect to enter market regulation shall be the inspection fee that was due by such company on April 1, 2012.
- (C)
In no event, however, shall the minimum inspection fee for any telecommunications service company be less than one hundred dollars ($100).
- (d)
The fee shall be due and payable on or before April 1, 2014, and each April 1 thereafter.
- (e)
The fee provided for in this section may be recovered by a public utility operating under rate of return regulation through either a rate case proceeding pursuant to § 65-5-103 or a separate recovery mechanism to be determined by the commission. Nothing in this section shall alter the manner in which public utilities that operate under price regulation or market regulation, pursuant to § 65-5-109, may set rates. Nothing in this section shall alter the limitations on the jurisdiction of the commission over market-regulated companies in § 65-5-109. A public utility may recoup its inspection fees by including a line item on its subscribers' bills.
§ 65-4-304. Minimum fees.
-
In no case shall the fee to be paid be less than one hundred dollars ($100), which will be the minimum inspection, control and supervision fee to be paid by any public utility subject to such fee.
§ 65-4-305. Information required of utility.
-
Annually, every such public utility doing business in this state shall file with the commission a statement under oath, in such form and substance as may be prescribed by the commission, setting forth accurately the amount of its gross receipts from all sources for the preceding calendar year. Any such public utility failing to file such statement as required, or failing to give such other information as may be reasonably required of such public utility, commits a Class C misdemeanor for each day of such failure to comply.
§ 65-4-307. Collection and disposition of fees.
-
The inspection, control and supervision fees provided for in this part shall be collected by the commission. Such fees, when collected, shall be deposited in the state treasury but shall be kept in a separate account, to be known as the “public utilities account” and the funds so raised shall thus be segregated.
§ 65-4-308. Default.
-
In case of default in the payment of any fee, or part thereof, when the same shall become due, as provided in § 65-4-306, any such public utility in default shall be liable for a penalty of ten percent (10%) per month or fraction thereof, on the amount of the fee, which may be recovered by suit of the state for every month it remains in default, and any such penalty, when collected, shall be deposited into the state treasury as a part of the utilities account; provided, that out of any such penalty, the commission may employ and pay counsel, who shall have power to institute suit in any court of competent jurisdiction for the recovery of such penalty, but in no event shall anything more than the penalty be allowed to such counsel for making such collections.
§ 65-4-309. Lien for fees and penalties.
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A lien is declared, and shall exist, upon all the property of each public utility in default, for the payment of the fee prescribed, together with all penalties accruing under this part, which liens shall be superior to all other liens, except those for federal, state, county and municipal taxes.
Part 4 Telephone Solicitation and Number Portability
§ 65-4-401. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Caller identification service” means telephone service which notifies telephone subscribers of the telephone number of incoming telephone calls;
- (2)
“Commission” means the Tennessee public utility commission;
- (3)
“Local exchange company” includes telecommunications service providers as defined in § 65-4-101, competing telecommunications service providers as such term is defined in § 65-4-101, telephone cooperatives, and cellular or other wireless telecommunications providers;
- (4)
“Person” means a natural person, individual, partnership, corporation, trust, estate, incorporated or unincorporated association and any other legal or commercial entity however organized and wherever located that telemarkets to citizens located within this state;
- (5)
“Residential subscriber” means a person who has subscribed to residential telephone service from a local exchange company or the other persons living, residing or visiting with such person; and
- (6)
- (A)
“Telephone solicitation” means any voice communication over a telephone originating from Tennessee or elsewhere that:
- (i)
Promotes or encourages, directly or indirectly, the purchase of, rental of, or investment in property, goods, or services;
- (ii)
Refers a residential subscriber to another person for the purpose of promoting or encouraging the purchase of, rental of, or investment in property, goods, or services; or
- (iii)
Requests a charitable contribution except as provided for in subdivision (6)(B)(ii);
- (B)
“Telephone solicitation” does not include voice communications to any residential subscriber:
- (i)
With that subscriber's prior express permission;
- (ii)
If the communication is made by a bona fide member, volunteer or direct employee of a not-for-profit organization exempt from paying taxes under § 501(c) of the Internal Revenue Code (26 U.S.C. § 501(c)), provided the voice communication is made to request a charitable contribution to be used solely for such not-for-profit organization's exempt purpose;
- (iii)
Who is an existing customer. For the purposes of this part, an “existing customer” includes a residential subscriber with whom the person or entity making a telephone solicitation has had a prior relationship within the prior twelve (12) months; or
- (iv)
If the communication is made on behalf of a business and all of the following conditions are met:
- (a)
A direct employee of the business makes the voice communication;
- (b)
The communication is not made as part of a telecommunications marketing plan;
- (c)
The business has a reasonable belief that the specific person who is receiving the voice communication is considering purchasing the service or product sold or leased by the business and the call is specifically directed to such person;
- (d)
The business does not sell or engage in telemarketing services; and
- (e)
The business does not make more than a total of three (3) such voice communications in any one (1) calendar week.
- (7)
“Text message solicitation”:
- (A)
Means a text communication over a telephone originating from this state or elsewhere that:
- (i)
Promotes or encourages, directly or indirectly, the purchase or rental of, or investment in, property, goods, or services;
- (ii)
Refers a residential subscriber to another person for the purpose of promoting or encouraging the purchase of, rental of, or investment in, property, goods, or services; or
- (iii)
Requests a charitable contribution, except as provided for in subdivision (7)(B)(ii); and
- (B)
Does not include a text communication to a residential subscriber:
- (i)
With the subscriber's prior express permission;
- (ii)
If the communication is made by a bona fide member, volunteer, or direct employee of a not-for-profit organization exempt from paying taxes under § 501(c) of the Internal Revenue Code (26 U.S.C. § 501(c)) as long as the text communication is made to request a charitable contribution to be used solely for the not-for-profit organization's exempt purpose;
- (iii)
Who is an existing customer, including a residential subscriber with whom the person or entity making a text message solicitation has had a prior relationship within the prior twelve (12) months; or
- (iv)
If the communication is made on behalf of a business and the following conditions are met:
- (a)
A direct employee of the business makes the text communication;
- (b)
The communication is not made as part of a telecommunications marketing plan;
- (c)
The business has a reasonable belief that the specific person who is receiving the text communication is considering purchasing the service or product sold or leased by the business and the text communication is specifically directed to the person;
- (d)
The business does not sell or engage in telemarketing services; and
- (e)
The business does not make more than a total of three (3) such text communications in any one (1) calendar week.
§ 65-4-402. Identity of caller or texter — Authorized times for solicitation.
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A person or entity who makes a telephone or text message solicitation to a residential subscriber in this state shall, at the beginning of the call or text, state clearly the identity of the person initiating the call and the entity or organization the person represents. Without the permission of the residential subscriber, a person or entity who makes a telephone or text message solicitation shall not call or text the subscriber at any time other than between the hours of eight o'clock a.m. (8:00 a.m.) to nine o'clock p.m. (9:00 p.m.), prevailing time.
§ 65-4-404. Calls or text messaging to persons objecting to solicitation.
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A person or entity shall not knowingly make or cause to be made a telephone or text message solicitation to a residential subscriber in this state who has given notice to the commission, in accordance with rules promulgated pursuant to this part, of such subscriber's objection to receiving telephone or text message solicitations.
§ 65-4-405. Database of persons objecting to solicitation — Regulations — Enforcement actions.
- (a)
The commission shall establish and provide for the operation of a database to compile a list of telephone numbers of residential subscribers who object to receiving telephone or text message solicitations. It shall be the duty of the commission to have such database in operation no later than May 1, 2000. Such database may be operated by the commission or by another entity under contract with the commission.
- (b)
No later than January 1, 2000, the commission shall promulgate regulations which:
- (1)
Require each local exchange company to semi-annually inform its residential subscribers of the opportunity to provide notification to the commission or its contractor that such subscriber objects to receiving telephone or text message solicitations;
- (2)
Specify the methods by which each residential subscriber may give notice to the commission or its contractor of such subscriber's objection to receiving such solicitations or revocation of such notice;
- (3)
Specify the length of time for which a notice of objection shall be effective and the effect of a change of telephone number on such notice;
- (4)
Specify the methods by which such objections and revocations shall be collected and added to the database;
- (5)
Specify the methods by which any person or entity desiring to make telephone or text message solicitations will obtain access to the database as required to avoid calling or texting the telephone numbers of residential subscribers included in the database; and
- (6)
Specify such other matters that the commission deems necessary to implement this part.
- (c)
If, pursuant to 47 U.S.C. § 227(c)(3), the federal communications commission establishes a single national database of telephone numbers of subscribers who object to receiving telephone or text message solicitations, the commission shall include the part of such single national database that relates to this state in the database established under this part.
- (d)
- (1)
A person or entity desiring to make telephone or text message solicitations to any residential subscriber shall pay to the commission by certified check or money order, on or before March 15, 2000, an annual registration fee of five hundred dollars ($500) to defray regulatory and enforcement expenses. Such annual registration fee shall allow access to the Do Not Call Register compiled from the database established under this part; such registration and access shall be limited to the time period April 1, 2000 until June 30, 2001, or any part thereof. Thereafter, the registration deadline and annual time period shall be determined by rule duly promulgated by the commission.
- (2)
Unlimited electronic copies of the Do Not Call Register shall be available to persons or entities upon their payment of the annual registration fee. A fee shall be established by rule of the commission for paper copies of the Do Not Call Register.
- (3)
Fifteen (15) days after the registration deadline, the non-payment of any required fee is a violation of this part. The telephone or text message solicitation of any residential subscriber listed in the Do Not Call Register compiled from the database established under this part, by any person or entity who is not duly registered and who is not otherwise exempted by law, is a violation of this part.
- (4)
As used in this subsection (d), “entity” includes any parent, subsidiary, or affiliate of a person.
- (e)
Information contained in the database established under this part shall not be subject to public inspection or disclosure under title 10, chapter 7. Such information shall be used only for the purpose of compliance with this part or in a proceeding or action under this part.
- (f)
The commission is authorized to initiate proceedings relative to a violation of this part or any rules and regulations promulgated pursuant to this part. Such proceedings include without limitation proceedings to issue a cease and desist order, to issue an order imposing a civil penalty up to a maximum of two thousand dollars ($2,000) for each knowing violation, and to seek additional relief in any court of competent jurisdiction. Each violation shall be calculated in a liberal manner to deter violations and to protect consumers. Each violation may include each telephone or text message solicitation made to a residential subscriber that was on the list that the violator telephoned. The commission is authorized to issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in the course of investigating a violation of this part, in accordance with this title. All civil penalties assessed pursuant to this part shall be deposited in the public utilities account in the state treasury.
- (g)
No later than January 1, 2000, the commission shall hold a hearing to receive testimony from entities subject to this part who employ independent contractors to make telephone or text message solicitations to determine if the commission should authorize such independent contractors to access the database at a reduced fee. The commission is authorized to allow such access and develop a fee schedule for access to the database by independent contractors and the entity which employs such contractors.
- (h)
As supplementary to the authority granted in this part, the attorney general and reporter, at the request of the commission, may bring an action in any court of competent jurisdiction in the name of the state against any person or entity relative to a violation of this part or any rules and regulations promulgated pursuant to this part. The courts are authorized to issue orders and injunctions to restrain and prevent violations of this part, and such orders and injunctions shall be issued without bond. In any action commenced by the state, the courts are authorized to order reasonable attorneys' fees and investigative costs be paid by the violator to the state. An action brought by the attorney general and reporter may also include other causes of action such as but not limited to a claim under the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1.
- (i)
Upon request of any person, the commission shall initiate a rulemaking proceeding establishing the rules pursuant to which a registrant may share the Do Not Call Register with persons affiliated with the registrant as an independent contractor or member.
- (j)
On and after January 1, 2012, for purposes of this section, “residential subscriber” also means a state government telephone subscriber.
§ 65-4-406. Remedies not exclusive.
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The remedies, duties, prohibitions, and penalties of this part are not exclusive and are in addition to the Consumer Telemarketing Protection Act of 1990, compiled in title 47, chapter 18, part 15, and all other causes of action, remedies, and penalties provided by law.
§ 65-4-408. Defenses.
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It shall be a defense in any action or proceeding brought under this part that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone or text message solicitations in violation of this part.
§ 65-4-409. Portability of telephone number.
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The local exchange company shall provide notice to the customer at the time the customer signs up for new service of the availability of number portability of the customer's telephone number.
§ 65-4-410. Do Not Call Register.
- (a)
Residential telephone subscribers may enroll on the Tennessee Do Not Call Register in the manner prescribed by the commission. Enrollment shall take effect thirty (30) days following the first day of the succeeding month of enrollment by the subscriber.
- (b)
State government telephone subscribers may enroll on the Tennessee Do Not Call Register in a manner prescribed by the commission; provided, that only the administrative head, or such person's designee, for each state department, agency, board, commission and other entity of the state, including the legislative branch and the judicial branch, may designate telephone numbers for such department, agency, board, commission or other entity of the state to be enrolled on the register. Enrollment shall take effect thirty (30) days following the first succeeding month of enrollment.
Part 5 Unsolicited Facsimiles
§ 65-4-501. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Commission” means the Tennessee public utility commission;
- (2)
“Fax” or “facsimile” means:
- (A)
Every process in which electronic signals are transmitted by telephone lines for conversion into written text or other graphic images; but
- (B)
“Fax” or “facsimile” does not include:
- (i)
Electronic mail or “e-mail” as regulated pursuant to title 47, chapter 18, part 25; or
- (ii)
Any transmission of electronic signals by a local exchange company to the extent that the local exchange company merely carries that transmission over its network;
- (3)
“Local exchange company” includes telecommunications service providers as defined in § 65-4-101, competing telecommunications service providers as such term is defined in § 65-4-101, telephone cooperatives, and cellular or other wireless telecommunications providers, or interactive computer service provider as defined by 47 U.S.C. § 230(f);
- (4)
“Person” means a natural person, individual, partnership, trust, estate, incorporated or unincorporated association, any corporation, parent, subsidiary or affiliate thereof, or any other legal or commercial entity however organized and wherever located;
- (A)
“Affiliate” of a specific person means a person that directly or indirectly through one or more intermediaries, controls, or is controlled by, is under common control with, the person specified;
- (B)
“Parent” means a company owning more than fifty percent (50%) of the voting shares, or otherwise a controlling interest, of another company; and
- (C)
“Subsidiary” means a corporation with more than fifty percent (50%) of its outstanding voting shares being owned by its parent or the parent's other subsidiaries; and
- (5)
“Unsolicited facsimile advertisement” means any material advertising the commercial availability or quality of any property, goods, or services, that is transmitted by fax to any person located within this state without such person's prior express invitation or permission, and is transmitted from Tennessee or elsewhere for the purpose of offering the extension of credit or encouraging the purchase or rental of, or investment in, property, goods, or services.
§ 65-4-502. Unsolicited facsimile advertisements prohibited — Information required on transmissions.
- (a)
No person shall transmit or cause another person to transmit an unsolicited facsimile advertisement; provided, that a not-for-profit membership organization exempt from paying taxes under § 501(c) of the Internal Revenue Code (26 U.S.C. § 501(c)) is exempt from this subsection (a), if the facsimile is made by a bona fide member, volunteer, or direct employee of the organization to its current membership.
- (b)
Any transmission by facsimile machine shall include in a margin at the top or bottom of each transmitted page or on the first page of the transmission the date and time of the transmission; an identification of the business, other entity, or individual sending the message; and the telephone number of the sending machine or of such business, other entity or individual.
§ 65-4-503. Implementation.
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The commission is authorized to promulgate any rules and regulations necessary to implement and effectuate this part.
§ 65-4-504. Commission — Penalties — Investigations — Notice and hearing.
- (a)
The commission is authorized to initiate proceedings relative to a violation of this part or any rules and regulations promulgated pursuant to this part. Such proceedings include, without limitation, proceedings to: issue a cease and desist order; issue an order imposing a civil penalty up to a maximum of two thousand dollars ($2,000) for each violation; and to seek additional relief in any court of competent jurisdiction. Violations shall be calculated in a liberal manner to deter violators and to protect consumers. Each page of each unsolicited facsimile advertisement may constitute a separate violation.
- (b)
In the course of investigating an alleged violation of this part, the commission is authorized to issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in accordance with this title. After proper notice, any such hearing shall be conducted in conformance with commission rules and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. All civil penalties assessed pursuant to this part shall be deposited in the public utilities account in the state treasury.
§ 65-4-505. Remedies — Construction.
- (a)
This part shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.
- (b)
This part shall not be construed to restrict or apply to communications to and from citizens and their elected representatives.
§ 65-4-506. Violations.
- (a)
A violation of this part also constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1.
- (b)
For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in that act, in addition to the penalties and remedies set forth in this part as well as that of 47 U.S.C. § 227, or any other cause of action, civil remedy or penalty provided by law.
Chapter 5 Regulation of Rates
Part 1 Public Utilities
§ 65-5-101. Power to fix rates of public utilities.
- (a)
The Tennessee public utility commission has the power after hearing upon notice, by order in writing, to fix just and reasonable individual rates, joint rates, tolls, fares, charges or schedules thereof, as well as commutation, mileage, and other special rates which shall be imposed, observed, and followed thereafter by any public utility as defined in § 65-4-101, whenever the commission shall determine any existing individual rate, joint rate, toll, fare, charge, or schedule thereof or commutation, mileage, or other special rates to be unjust, unreasonable, excessive, insufficient, or unjustly discriminatory or preferential, howsoever the same may have heretofore been fixed or established. In fixing such rates, joint rates, tolls, fares, charges or schedules, or commutation, mileage or other special rates, the commission shall take into account the safety, adequacy and efficiency or lack thereof of the service or services furnished by the public utility.
- (b)
Notwithstanding any other state law, special rates and terms negotiated between public utilities that are telecommunications providers and business customers shall not constitute price discrimination. Such rates and terms shall be presumed valid. The presumption of validity of such special rates and terms shall not be set aside except by complaint or by action of the Tennessee public utility commission commissioners, which Tennessee public utility commission action or complaint is supported by substantial evidence showing that such rates and terms violate applicable legal requirements other than the prohibition against price discrimination. Records of such special rates and terms shall be retained by the telecommunications provider for the length of time that such rates and terms apply, but shall not be filed with the commission. Such rates shall be effective upon execution by the parties.
- (c)
Notwithstanding any other law, the tariffs of incumbent local exchange telephone companies establishing rates or terms, or both, for telecommunications services shall be filed with the commission and shall be effective twenty-one (21) days after filing, subject to the following requirements:
- (1)
Tariffs establishing rates or terms that are valid only for one hundred eighty (180) days or less shall be effective one (1) business day after filing;
- (2)
Tariffs may be revoked by the commission after notice and a hearing;
- (3)
- (A)
Tariffs may be suspended pending such hearing on a showing by a complaining party that:
- (i)
The complaining party has filed a complaint before the commission alleging with particularity that the tariff violates a specific law;
- (ii)
The complaining party would be injured as a result of the tariff and has specifically alleged how it would be so injured; and
- (iii)
The complaining party has a substantial likelihood of prevailing on the merits of its complaint;
- (B)
The commission may suspend a tariff pending a hearing, on its own motion, upon finding such suspension to be in the public interest. The standard established herein for suspension of tariffs shall apply at all times including the twenty-one-day or one-day period between filing and effectiveness;
- (C)
The standard established herein for suspension of tariffs shall not be applicable in any way to the determination by the commission of whether to convene a contested case to consider revocation of a tariff. The commission may choose to convene a contested case, or decline to convene a contested case, in its own discretion, to promote the public interest. The standard established in this subdivision (c)(3) for suspension of tariffs shall not be applicable in any way to any decision by the commission regarding revocation of a tariff;
- (4)
Nothing in this subsection (c) shall alter the existing power of the commission to review those rate increases that are governed by price regulation or rate of return; and
- (5)
Notwithstanding this subsection (c), the commission may, in its discretion, shorten the twenty-one-day period between filing and effectiveness for good cause shown.
- (d)
In fixing rates, joint rates, tolls, fares, charges, or schedules for service, no privately owned public utility that supplies water to municipal governments is allowed to charge rates, joint rates, tolls, fares, charges, or schedules of any kind whatsoever in connection with fire hydrant service to a municipal government providing fire protection services within the service area. The utility, however, may recover its costs of providing fire hydrant service by charging rates, joint rates, tolls, fares, charges or schedules to its non-municipal government customers within the service area as approved by the Tennessee public utility commission. New rates shall take effect as prescribed by the Tennessee public utility commission in a rate proceeding. Such rate proceeding shall be initiated by the utility or the Tennessee public utility commission itself. Such rate proceeding shall be commenced within one hundred twenty (120) days after May 18, 2004. The utility shall continue to collect its current authorized rates from a municipality until new rates are placed into effect by the Tennessee public utility commission. The municipal government will reimburse the state for any consequent increase in expenditures to the state, up to fifty thousand dollars ($50,000), which results directly from this subsection (d).
§ 65-5-102. Commission may require filing of schedules.
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The commission has the power to require every such public utility to file with it complete schedules of every classification employed and of every individual or joint rate, toll, fare, or charge made or exacted by it for any product supplied or service rendered within this state as specified in such requirement.
§ 65-5-103. Changes in utility rates, fares, schedules — Implementation of alternative regulatory methods to allow for public utility rate reviews and cost recovery in lieu of a general rate case proceeding.
- (a)
When any public utility shall increase any existing individual rates, joint rates, tolls, fares, charges, or schedules thereof, or change or alter any existing classification, the commission shall have power either upon written complaint, or upon its own initiative, to hear and determine whether the increase, change or alteration is just and reasonable. The burden of proof to show that the increase, change, or alteration is just and reasonable shall be upon the public utility making the same. In determining whether such increase, change or alteration is just and reasonable, the commission shall take into account the safety, adequacy and efficiency or lack thereof of the service or services furnished by the public utility. The commission shall have authority pending such hearing and determination to order the suspension, not exceeding three (3) months from the date of the increase, change, or alteration until the commission shall have approved the increase, change, or alteration; provided, that if the investigation cannot be completed within three (3) months, the commission shall have authority to extend the period of suspension for such further period as will reasonably enable it to complete its investigation of any such increase, change or alteration; and provided further, that the commission shall give the investigation preference over other matters pending before it and shall decide the matter as speedily as possible, and in any event not later than nine (9) months after the filing of the increase, change or alteration. It shall be the duty of the commission to approve any such increase, change or alteration upon being satisfied after full hearing that the same is just and reasonable.
- (b)
- (1)
If the investigation has not been concluded and a final order made at the expiration of six (6) months from the date filed of any such increase, change or alteration, the utility may place the proposed increase, change or alteration, or any portion thereof, in effect at any time thereafter prior to the final commission decision thereon upon notifying the commission, in writing, of its intention so to do; provided, that the commission may require the utility to file with the commission a bond in an amount equal to the proposed annual increase conditioned upon making any refund ordered by the commission as provided in subdivision (b)(2).
- (2)
Where increased rates or charges are thus made effective, the interested utility shall maintain its records in such a manner as will enable it, or the commission, to determine the amounts to be refunded and to whom due, in the event a refund is subsequently ordered by the commission as provided in this subdivision (b)(2). Upon completion of the hearing and decision, the commission may order the utility to refund, to the persons in whose behalf such amounts were paid, such portion of such increase, change or alteration as shall have been collected under bond and subsequently disallowed by the commission. If the commission, at any time during the initial three (3) months' suspension period, finds that an emergency exists or that the utility's credit or operations will be materially impaired or damaged by the failure to permit the rates to become effective during the three-month period, the commission may permit all or a portion of the increase, change or alteration to become effective under such terms and conditions as the commission may by order prescribe. Any increase, change or alteration placed in effect under this subsection (b) under bond may be continued in effect by the utility, pending final determination of the proceeding by final order of the commission or, if the matter be appealed, by final order of the appellate court. Should the final order of the commission be appealed while increased rates or charges are being collected under bond, the court shall have power to order an increase or decrease in the amount of the bond as the court may determine to be proper. In the event that all or any portion of such rates or charges have not been placed into effect under bond before the commission, the court considering an appeal from an order of the commission shall have the power to permit the utility to place all or any part of the rates or charges into effect under bond.
- (c)
In the event the commission, by order, directs any utility to make a refund, as provided in subsection (b), of all or any portion of such increase, change or alteration, the utility shall make the same within ninety (90) days after a final determination of the proceeding by final order of the commission or, if the matter be appealed, by final order of the appellate court, with lawful interest thereon.
- (d)(1)(A)
The commission is authorized to implement alternative regulatory methods to allow for public utility rate reviews and cost recovery in lieu of a general rate case proceeding before the commission.
-
- (B)
For all alternative regulatory methods, the commission is authorized to develop minimum filing requirements and procedural schedules; provided, however, that a final determination of the commission pursuant to any alternative regulatory method be made by the commission no later than one hundred twenty (120) days from the initial filing by the public utility.
- (C)
If the commission denies an alternative regulatory method filed by a public utility, the commission shall set forth with specificity the reasons for its denial and the public utility shall have the right to refile, without prejudice, an amended plan or amendment within sixty (60) days of the issuance of a final order. The commission shall thereafter have sixty (60) days to approve or deny the amended plan or amendment.
- (2)
- (A)
A public utility may request and the commission may authorize a mechanism to recover the operational expenses, capital costs or both, if such expenses or costs are found by the commission to be in the public interest, related to any one (1) of the following:
- (i)
Safety requirements imposed by the state or federal government;
- (ii)
Ensuring the reliability of the public utility plant in service;
- (iii)
Replacement of or upgrades to usage measurement devices; or
- (iv)
Weather-related natural disasters.
- (B)
The commission shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in such safety and reliability facilities, including the return on safety and reliability investments at the rate of return approved by the commission at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a), upon a finding that such mechanism or adjustment is in the public interest.
- (3)
- (A)
A public utility may request and the commission may authorize a mechanism to recover the operational expenses, capital costs or both related to the expansion of infrastructure for the purpose of economic development, if such expenses or costs are found by the commission to be in the public interest. Expansion of economic development infrastructure may include, but is not limited to, the following:
- (i)
Infrastructure and equipment associated with alternative motor vehicle transportation fuel;
- (ii)
Infrastructure and equipment associated with combined heat and power installations in industrial or commercial sites; and
- (iii)
Infrastructure that will provide opportunities for economic development benefits in the area to be directly served by the infrastructure.
- (B)
The commission shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in such economic development facilities, including the return on such economic development investments at the rate of return approved by the commission at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a), upon a finding that such mechanism or adjustment is in the public interest.
- (4)
- (A)(i)
A public utility may request and the commission may authorize a mechanism to recover expenses associated with efforts to promote economic development in its service territory, if such expenses are found by the commission to be in the public interest.
- (ii)
Efforts to promote economic development may include, but are not limited to, foregone revenues associated with economic development riders and rates.
- (iii)
Expenses described in subdivision (d)(4)(A)(ii) may be reflected in cost of service and be subject to recovery through the annual review process in subdivision (d)(6).
- (B)
Upon a finding that expenses to promote economic development have been incurred, the commission shall authorize a separate recovery mechanism or adjust rates to recover such expenses or grant recovery through the annual review process set forth in subdivision (d)(6), upon a finding that such mechanism or adjustment is in the public interest.
- (5)
- (A)
A public utility may request and the commission may authorize a mechanism to recover the operational expenses, capital costs or both related to other programs that are in the public interest.
- (B)
A utility may request and the commission may authorize a mechanism to allow for and permit a more timely adjustment of rates resulting from changes in essential, nondiscretionary expenses, such as fuel and power and chemical expenses.
- (C)
Upon a finding that such programs are in the public interest, the commission shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in other programs, including the rate of return approved by the commission at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a).
- (6)
- (A)
A public utility may opt to file for an annual review of its rates based upon the methodology adopted in its most recent rate case pursuant to § 65-5-101 and subsection (a), if applicable.
- (B)
In order for a public utility to be eligible to make an election to opt into an annual rate review, the public utility must have engaged in a general rate case pursuant to § 65-5-101 and subsection (a) within the last five (5) years; provided, however, that the commission may waive such requirement or increase the eligibility period upon a finding that doing such would be in the public interest.
- (C)
Pursuant to the procedures set forth in subdivision (d)(1), the commission shall review the annual filing by the public utility within one hundred twenty (120) days of receipt and order the public utility to make the adjustments to its tariff rates to provide that the public utility earns the authorized return on equity established in the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a).
- (D)
- (i)
A public utility may terminate an approved annual review plan only by filing a general rate case pursuant to § 65-5-101 and subsection (a).
- (ii)
The commission may terminate an approved annual review plan only after citing the public utility to appear and show cause why the commission should not take such action pursuant to the procedures in § 65-2-106.
- (iii)
The commission or the public utility may propose a modification to the approved annual review plan for consideration by the commission. The commission shall determine whether any proposed modification is in the public interest and should be approved within the time frame set forth in subdivision (d)(6)(C). If the commission denies a modification to the approved annual review plan, the commission shall set forth with specificity the reasons for its denial.
- (7)
In addition to the alternative regulatory methods described in this subsection (d), a public utility may opt to file for other alternative regulatory methods. Upon a filing by a public utility for an alternative method not prescribed, the commission is empowered to adopt policies or procedures, that would permit a more timely review and revisions of the rates, tolls, fares, charges, schedules, classifications or rate structures of public utilities, and that would further streamline the regulatory process and reduce the cost and time associated with the ratemaking processes in § 65-5-101 and subsection (a).
- (e)
For purposes of this section, “public utility” does not include a telecommunications carrier that elects market regulation pursuant to § 65-5-109.
§ 65-5-104. Unjust rate, fare, schedule or classification prohibited.
- (a)
No public utility shall:
- (1)
Make, impose, or exact any unreasonable, unjustly discriminatory or unduly preferential individual or joint rate, or special rate, toll, fare, charge, or schedule for any product, or service supplied or rendered by it within this state; or
- (2)
Adopt or impose any unjust or unreasonable classification in the making or as the basis of any rate, toll, charge, fare, or schedule for any product or service rendered by it within this state.
- (b)
Any measure taken by any public utility to avoid discrimination in rates, charges, fees and in the availability and quality of energy against consumers using solar- or wind-powered equipment as a source of energy shall not be considered unreasonable, unjust, or unduly preferential in violation of this section, unless such customers do not have sufficient safety equipment to protect the suppliers from damage.
§ 65-5-105. Intrastate rate reductions reflecting tax savings.
-
Any public utility, the maximum rates of which are fixed by the commission, shall reduce its intrastate rates to reflect any tax savings resulting from chapter 312 of the Public Acts of 1989. Such rate reduction shall be implemented contemporaneously with the effective date of the tax savings.
§ 65-5-106. Operator-assisted telephone services — Carriers whose rates exceed maximum approved rates.
- (a)
Any telephone carrier offering or providing operator-assisted services in Tennessee whose intrastate rates exceed the maximum rate approved by the Tennessee public utility commission or whose interstate rates exceed the maximum rates approved by the federal communications commission (FCC) shall before providing the service:
- (1)
Identify by name the carrier providing the service;
- (2)
State all costs for providing the service; and
- (3)
Offer to switch the customer to any other carrier offering operator-assisted services and inform the customer that the switch will be made without charge.
- (b)
As used in this section:
- (1)
“Maximum rate approved by the federal communications commission (FCC)” means the highest legal rate charged for handling an identical call by a carrier which has been classified by the FCC as a dominant, interstate carrier or, if no carrier has been so classified, means the highest rate approved by the FCC as just and reasonable for an identical call;
- (2)
“Maximum rate approved by the Tennessee public utility commission” means the highest legal rate charged for handling an identical call by a carrier whose rates have been fixed by the commission based on the carrier's cost of providing service; and
- (3)
“Operator-assisted services” means all telephone calls in which the customer is assisted by either a human or mechanical operator and includes, but is not limited to, calls billed to credit cards or third parties and all collect or person-to-person calls.
- (c)
The commission may exempt any carrier from some or all of the provisions of this section upon a finding that the requirements are no longer necessary to protect the public interest.
- (d)
Any telephone carrier violating this section is guilty of violating the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1, and shall be punished accordingly.
§ 65-5-107. Universal service — Funding.
- (a)
In order to ensure the availability of affordable residential basic local exchange telephone service, the commission shall formulate policies, promulgate rules and issue orders which require all telecommunications service providers to contribute to the support of universal service.
- (b)
The commission shall create an alternative universal service support mechanism that replaces current sources of universal service support only if it determines that the alternative will preserve universal service, protect consumer welfare, be fair to all telecommunications service providers, and prevent the unwarranted subsidization of any telecommunications service provider's rates by consumers or by another telecommunications service provider. To accomplish these objectives, the commission, if it creates or subsequently modifies an alternative universal service support mechanism, shall:
- (1)
Restrict recovery from the mechanism by any telecommunications service provider to an amount equal to the support necessary to provide universal service;
- (2)
Consider provision of universal service by incumbent local exchange telephone companies and by other telecommunications service providers;
- (3)
Order only such contributions to the universal service support mechanism as are necessary to support universal service and fund administration of the mechanism;
- (4)
Administer the universal service support mechanism in a competitively neutral manner, and in accordance with established commission rules and federal statutes;
- (5)
Determine the financial effect on each universal service provider caused by the creation or a modification of the universal service support mechanism, and rebalance the effect through a one-time adjustment of equal amount to the rates of that provider;
- (6)
When ordering a modification, include changes in the cost of providing universal service in the rebalancing required by subdivision (b)(5);
- (7)
When performing its duties under subdivisions (b)(5) and (6), order no increase in the rates for any interconnection services; and
- (8)
Consider, at a minimum:
- (A)
The amount by which the embedded cost of providing residential basic local exchange telephone service exceeds the revenue received from the service, including the cost of the carrier-of-last-resort obligation, for both high- and low-density service areas;
- (B)
The extent to which rates for residential basic local exchange telephone service should be required to meet the standards of § 65-5-108(c); and
- (C)
Intrastate access rates and the appropriateness of such rates as a significant source of universal service support.
- (c)
The commission shall monitor the continued functioning of universal service mechanisms and shall conduct investigations, issue show cause orders, entertain petitions or complaints, or adopt rules in order to assure that the universal service mechanism is modified and enforced in accordance with the criteria set forth in this section.
- (d)
Nothing in this section shall be construed to require the commission to raise residential basic local exchange telephone service rates.
- (e)
Any universal service support mechanism created pursuant to this part shall hereafter be known as the universal service program. To implement any such universal service program, there is established a special reserve account in the state's general fund to be funded and allocated in accordance with this section and rules promulgated by the commission. Such fund shall be known as the universal service program support mechanism fund. Moneys from the fund may be expended in accordance with such universal service program. Any moneys deposited in the fund shall remain in such account until expended for purposes consistent with such program and shall not revert to the general fund on any June 30. Any interest earned by deposits in such account shall not revert to the general fund on any June 30 but shall remain in such account until expended for purposes consistent with the universal service program.
§ 65-5-108. Classification of services — Exempt services — Price floor — Maximum rates for non-basic services.
- (a)
Services of incumbent local exchange telephone companies who apply for price regulation under § 65-5-109 are classified as follows:
- (1)
“Basic local exchange telephone services” are telecommunications services which are comprised of an access line, dial tone, touch-tone and usage provided to the premises for the provision of two-way switched voice or data transmission over voice grade facilities of residential customers or business customers within a local calling area, Lifeline, Link-Up Tennessee, 911 Emergency Services and educational discounts existing on June 6, 1995, or other services required by state or federal statute. These services shall, at a minimum, be provided at the same level of quality as is being provided on June 6, 1995. Rates for these services shall include both recurring and nonrecurring charges;
- (2)
“Nonbasic services” are telecommunications services which are not defined as basic local exchange telephone services and are not exempted under subsection (b). Rates for these services shall include both recurring and nonrecurring charges.
- (b)
The commission, after notice and opportunity for hearing, may find that the public interest and the policies set forth in this part are served by exempting a service or group of services from all or a portion of the requirements of this part. Upon making such a finding, the commission may exempt telecommunications service providers from such requirements as appropriate. The commission shall in any event exempt a telecommunications service for which existing and potential competition is an effective regulator of the price of those services.
- (c)
Effective January 1, 1996, an incumbent local exchange telephone company shall adhere to a price floor for its competitive services subject to such determination as the commission shall make pursuant to § 65-5-107. The price floor shall equal the incumbent local exchange telephone company's tariffed rates for essential elements utilized by competing telecommunications service providers plus the total long-run incremental cost of the competitive elements of the service. When shown to be in the public interest, the commission shall exempt a service or group of services provided by an incumbent local exchange telephone company from the requirement of the price floor. The commission shall, as appropriate, also adopt other rules or issue orders to prohibit cross-subsidization, preferences to competitive services or affiliated entities, predatory pricing, price squeezing, price discrimination, tying arrangements or other anticompetitive practices.
- (d)
The maximum rate for any new nonbasic service first offered after June 6, 1995, shall not exceed the stand-alone cost of the service.
§ 65-5-109. Price regulation plan.
- (a)
Rates for telecommunications services are just and reasonable when they are determined to be affordable as set forth in this section. Using the procedures established in this section, the commission shall ensure that rates for all basic local exchange telephone services and non-basic services are affordable on the effective date of price regulation for each incumbent local exchange telephone company.
- (b)
An incumbent local exchange telephone company shall, upon approval of its application under subsection (c), be empowered to, and shall charge and collect only such rates that are less than or equal to the maximum permitted by this section and subject to the safeguards in § 65-5-108(c) and (d) and the non-discrimination provisions of this title.
- (c)
The commission shall enter an order within ninety (90) days of the application of an incumbent local exchange telephone company implementing a price regulation plan for such company. With the implementation of a price regulation plan, the rates existing on January 1, 2009, for all basic local exchange telephone services and non-basic services, as defined in § 65-5-108, are deemed affordable if the incumbent local exchange telephone company's earned rate of return on its most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j) is equal to or less than the company's current authorized fair rate of return existing at the time of the company's application. If the incumbent local exchange telephone company's earned rate of return on its most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j) is greater than the company's current authorized fair rate of return, the commission shall initiate a contested, evidentiary proceeding to establish the initial rates on which the price regulation plan is based. The commission shall initiate such a rate-setting proceeding to determine a fair rate of return on the company's rate base using the actual intrastate operating revenues, expenses, rate base and capital structure from the company's most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j). If the incumbent local exchange telephone company's earned rate of return is less than its current authorized fair rate of return, the company may request the commission to initiate a contested, evidentiary proceeding to establish the initial rates upon which the price regulation plan is based. Upon request by the incumbent local exchange telephone company, the commission shall initiate such a contested, evidentiary proceeding using the same rate-setting procedures described above. Rates established pursuant to the above process shall be the initial rates on which a price regulation plan is based, subject to such further adjustment as may be made by the commission pursuant to § 65-5-107. Nothing in this section shall require a company that has elected price regulation prior to 2009 to reapply for price regulation or to reset its rates under its price regulation plan. Such a company is entitled, in its sole discretion, to the 1995 rates upon which its original election was based or may base its price regulation calculation upon rates in effect as of January 1, 2009.
- (d)
If not resolved by agreement, the commission shall, on petition of the competing telecommunications services provider, hold a contested case proceeding within thirty (30) days to establish initial rates for new interconnection services provided by an incumbent local exchange telephone company subsequent to June 6, 1995, which rates shall be set in accordance with chapter 408 of the Public Acts of 1995. The commission shall issue a final order within twenty (20) days of the proceeding.
- (e)
A price regulation plan shall maintain affordable basic and non-basic rates by permitting a maximum annual adjustment that is capped at the lesser of one-half (½) the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation, or the GDP-PI from the preceding year minus two (2) percentage points. An incumbent local exchange telephone company may adjust its rates for basic local exchange telephone services or non-basic services only so long as its aggregate revenues for basic local exchange telephone services or non-basic services generated by such changes do not exceed the aggregate revenues generated by the maximum rates permitted by the price regulation plan.
- (f)
Notwithstanding the annual adjustments permitted in subsection (e), the initial basic local exchange telephone service rates of an incumbent local exchange telephone company subject to price regulation shall not increase for a period of four (4) years from the date the incumbent local exchange telephone company becomes subject to such regulation. At the expiration of the four-year period, an incumbent local exchange telephone company is permitted to adjust annually its rates for basic local exchange telephone services in accordance with the method set forth in subsection (e); provided, that the rate for residential basic local exchange telephone service shall not be increased in any one (1) year by more than the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation. Nothing in this subsection (f) shall be construed to prohibit or limit residential basic local exchange rate increases or aggregate revenues permitted in subsection (e) caused by:
- (1)
Revenue neutral rate proposals that rebalance access revenue or touchtone revenue to residential basic local exchange service;
- (2)
Revenue neutral rate proposals that expand local calling areas; or
- (3)
Rate regrouping when it is based on population growth or expanded local calling such that there is an increase in the number of lines that end-users within the rate group can reach by local calling and the rate group no longer corresponds to the rate group definitions in a carrier's approved tariffs.
- (g)
Notwithstanding any other provision of this section, a price regulation plan shall permit a maximum annual adjustment in the rates for interconnection services that is capped at the lesser of one-half (½) the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation, or the GDP-PI from the preceding year minus two (2) percentage points. An incumbent local exchange telephone company may adjust its rates for interconnection services only so long as its aggregate revenues generated by such changes do not exceed the aggregate revenues generated by the maximum rates permitted by this subsection (g); provided, that each new rate must comply with the requirements of § 65-5-108 and the non-discrimination provisions of this title. Upon filing by a competing telecommunications service provider of a complaint, such rate adjustment shall become subject to commission review of the adjustment's compliance with this section and rules promulgated under this section. The commission shall stay the adjustment of rates and enter a final order approving, modifying or rejecting such adjustment within thirty (30) days of the complaint.
- (h)
Incumbent local exchange telephone companies subject to price regulation may set rates for non-basic services as the company deems appropriate, subject to the limitations set forth in subsections (e) and (g), the non-discrimination provisions of this title, any rules or orders issued by the commission pursuant to § 65-5-108(c) and upon prior notice to affected customers. Rates for call waiting service provided by an incumbent local exchange telephone company subject to price regulation shall not exceed, for a period of four (4) years from the date the company becomes subject to such regulation, the maximum rate in effect in the state for such service on January 1, 2009; provided, however, that the maximum rate shall not apply to companies becoming subject to that regulation after June 1, 2009.
- (i)
Incumbent local exchange telephone companies subject to price regulation are not required to seek regulatory approval of their depreciation rates or schedules.
- (j)
For any incumbent local exchange telephone company electing price regulation under subsection (c), the commission shall conduct an audit to assure that the Tennessee public utility commission 3.01 report accurately reflects, in all material respects, the incumbent local exchange telephone company's achieved results in accordance with generally accepted accounting principles as adopted in Part 32 of the uniform system of accounts, and the ratemaking adjustments to operating revenues, expenses and rate base used in the commission's most recent order applicable to the incumbent local exchange telephone company. Nothing herein is to be construed to diminish the audit powers of the commission; provided, however, that such an audit shall not be conducted for a local exchange telephone company electing price regulation after June 1, 2009.
- (k)
Incumbent local exchange telephone companies subject to price regulation shall maintain their commitment to the FYI Tennessee master plan to the completion of the funded requirements with any alterations to the plan to be approved by the commission.
- (l)
- (1)
Any nonincumbent certificated provider of local exchange telephone or intrastate long distance telephone service or any incumbent certificated provider of local exchange or intrastate long distance telephone service that has elected price regulation pursuant to subsections (a)–(k) may, in its sole discretion, elect to operate pursuant to market regulation, by filing notice of its intent to do so with the commission, which shall be effective immediately upon filing.
- (2)
For purposes of the rural exemption under 47 U.S.C. § 251 only, the election to operate pursuant to market regulation by a rural incumbent certificated provider of local exchange or intrastate long distance telephone service, as provided in this section, shall constitute an acknowledgement that a bona fide request for interconnection or services is not unduly economically burdensome, is technically feasible, will not present a risk of a significant adverse economic impact on users of telecommunications services generally, is consistent with 47 U.S.C. § 254 and is consistent with the public interest, convenience and necessity. This subdivision (l)(2) shall not apply to any telephone cooperative organized pursuant to § 65-29-102.
- (m)
Upon election of market regulation by a certificated provider, the provider shall be exempt from all commission jurisdiction, including, but not limited to, state-based regulation of retail pricing or retail operations, except as defined in subsection (n). Notwithstanding the limitations on commission jurisdiction over market-regulated companies under state law as set forth in this section, it is the express intent of the general assembly that the Tennessee public utility commission is authorized as a matter of state law to receive any jurisdiction delegated to it by the federal 1996 Telecommunications Act, in 47 U.S.C. § 214(e), or federal communications commission (FCC) orders or rules, including, without limitation, jurisdiction granted to hear complaints regarding anti-competitive practices, to set rates, terms and conditions for access to unbundled network elements and to arbitrate and enforce interconnection agreements. In addition, the commission shall continue to exercise its jurisdiction in its role as a dispute resolution forum to hear complaints between certificated carriers, including complaints to prohibit anti-competitive practices and to issue orders to resolve such complaints. The commission shall interpret and apply federal, not state, substantive law, which is hereby adopted so that such law is applicable to intrastate services for the purpose of adjudicating such state complaints. The commission shall adjudicate and enforce such claims in accordance with state procedural law and rules, including the enforcement and penalty provisions of § 65-4-120. No claim shall be brought to the Tennessee public utility commission as to which the FCC has exclusive jurisdiction. All complaints brought between carriers pursuant to this section shall be resolved by final order of the commission within one hundred eighty (180) days of the filing of the complaint.
- (n)
A certificated provider electing market regulation shall be subject to the jurisdiction of the commission only when:
- (1)
The commission is exercising its jurisdiction as described in subsection (m);
- (2)
The commission is acting with respect to enforcement or modification of any wholesale self effectuating enforcement mechanism plan in place as of January 1, 2009; provided, that such actions are consistent with federal telecommunications law;
- (3)
The commission is assessing and collecting inspection fees calculated in accordance with chapter 4, part 3 of this title and election of market regulation shall not alter the character of any intrastate revenue or remove any source of intrastate revenue formerly included within gross receipts and used for purposes of assessment of the fees;
- (4)
The commission is exercising jurisdiction over video service franchises pursuant to the Competitive Cable and Video Services Act, compiled in title 7, chapter 59, part 3;
- (5)
The commission is exercising jurisdiction respecting underground facilities damage prevention;
- (6)
The commission is exercising jurisdiction respecting the Tennessee relay center services or the Tennessee devices access program pursuant to § 65-21-115;
- (7)
The commission is exercising jurisdiction respecting the small and minority-owned business participation plan pursuant to § 65-5-112;
- (8)
The commission is exercising jurisdiction respecting universal service funding pursuant to § 65-5-107;
- (9)
The commission is exercising jurisdiction respecting intrastate switched access service;
- (10)
The commission is exercising jurisdiction respecting extensions of facilities pursuant to § 65-4-114(2), except that no market-regulated carrier shall be subject to the regulatory commission jurisdiction in this subdivision (n)(10) in any wire center or geographic area the carrier designates by filing notice of such designation with the regulatory commission. Such notice shall be effective immediately upon filing and not subject to regulatory commission review;
- (11)
The commission is exercising jurisdiction pursuant to § 65-4-125; provided, however, that the commission shall exercise its jurisdiction under subsections (a) or (b) only in connection with a complaint.
- (o)
Incumbent local exchange providers that have elected market regulation shall not be entitled to the limitation on commission jurisdiction in subsection (n) with respect to those residential local exchange telecommunications services that are offered in exchanges with less than three thousand (3,000) access lines or, for carriers who serve more than one million (1,000,000) access lines in this state, those exchanges with access line counts and calling areas that would result in classification as rate group 1 or 2 under any such carrier's tariff in effect on January 1, 2009, and that are offered as single, individually priced services at a rate-group specific price rather than a state-wide or territory-wide price, except as follows:
- (1)
Upon petition by a market-regulated provider, the commission may order that such services shall be subject to the limitations on jurisdiction in subsection (n) by showing that each exchange has at least two (2) nonaffiliated telecommunications providers that offer service to customers in each zone rate area of each exchange;
- (2)
When counting the number of providers for the purpose of evaluating the competition standard in subdivision (o)(1), cable television providers that offer telephone and broadband services to residential customers may be included. Nonaffiliated providers of wireless service may be included in the count of providers but shall only count as one (1) provider regardless of the number of wireless providers. Nonaffiliated providers of voice over internet protocol service shall not be counted for the purpose of evaluating the competitive exemption for residential service, unless the carrier seeking exemption offers a data service capable of supporting voice over internet protocol service and does not require the purchase of voice telephony products to buy the data service. At least one (1) provider must be facilities-based and currently serving residential customers;
- (3)
When the petitioning party shows facts satisfying the competition standard set forth in subdivision (o)(1), the petitioner shall be entitled to a rebuttable presumption that the competition standard is satisfied;
- (4)
The petition shall be subject to an accelerated schedule. The commission must issue its decision on the petition, including its reasons, within ninety (90) days of the filing of the petition;
- (5)
Unregulated providers of service shall not be required to participate in the commission's docket considering the petition, but, to the extent such competitors intervene, they shall be required to provide discovery responses regarding the activities of the unregulated provider in such rate groups or exchanges. To the extent the petitioner seeks, but is unable to obtain discovery response from intermodal or unregulated providers regarding the competition present in such rate groups or exchanges, the petitioner shall be entitled to a rebuttable presumption that the unregulated provider is offering service in the area that is the subject of the petition;
- (6)
Whether or not such a petition is filed or granted, the limitations on commission jurisdiction set forth in subsection (n) shall automatically become applicable to all services of a market-regulated provider as of January 1, 2015; and
- (7)
The petition provided for in this subsection (o) shall be filed no earlier than one (1) year following May 21, 2009.
- (p)
Notwithstanding this section, providers that elect market regulation shall remain subject to the Tennessee Consumer Protection Act, compiled in title 47, chapter 18.
- (q)
- (1)
Each year the commission shall prepare and submit to the general assembly a report describing the competitive nature of the communications market in Tennessee.
- (2)
The report shall, at a minimum, contain the following information:
- (A)
The number of telecommunications providers, including the technology used to provide service;
- (B)
The number of providers by county serving residential subscribers;
- (C)
The number of providers by county serving business subscribers; and
- (D)
The number of customers by customer type.
- (3)
In preparing the report, the commission shall rely on information filed with the commission or available as public information. The commission shall invite all providers of telecommunications services, including companies operating under market regulation, price cap regulation pursuant to this section, rate of return regulation, competitive carriers, wireless carriers, carriers offering voice over internet protocol service, cable operators or other carriers known to provide such service in this state, to provide voluntary reports supplying information relating to the items in subdivision (q)(2) and relating to the services and products offered in this state and any other information the provider volunteers concerning future plans for deployment, new services, new technology or the scope of competition.
- (r)
In the event that a carrier has elected market regulation and later chooses to exit the business of providing local exchange telephone service in an exchange by selling all of its network in that exchange to another entity, then the following shall apply:
- (1)
If the purchasing entity is a certificated carrier of local exchange telephone service in this state, then no regulatory requirements shall apply, except that nothing in this section shall preclude the exercise of commission jurisdiction as set forth in subsection (m); and
- (2)
Any purchasing entity that applies for a certificate in connection with a sale of the type described in this section shall be subject to no greater standards than those applied by the commission for other entities seeking certification pursuant to § 65-4-201; and a commission order granting or denying the certificate, including appropriate findings of fact and conclusions of law, shall be entered no later than thirty (30) days from the filing of the application.
- (s)
Notwithstanding any other laws to the contrary, including, but not limited to, subsections (c) and (j), the earnings of an incumbent local exchange company operating under rate of return regulation shall not be considered in setting initial rates under this section for an incumbent local exchange company implementing a price regulation plan after January 1, 2009.
- (t)
Notwithstanding any law to the contrary, any certificated provider of local exchange telephone service subject to market regulation may, at its election, file a tariff with the commission governing the rates, terms and conditions of any of its services. Such filed tariff shall become effective upon filing and be deemed approved, unless rejected by the commission upon finding that the tariff violates applicable law within twenty-one (21) days of filing. The approval of a tariff under this subsection (t) shall constitute publication and notice to consumers of the provisions of the tariff, specifically those provisions governing carrier and consumer liability, for purposes of the filed rate doctrine. Unless rejected as provided herein, such tariffs shall constitute binding tariffs to the same extent as tariffs of other providers not subject to market regulation, including application of the filed rate doctrine, and shall be subject to the rules and regulations of the commission governing customer notices to the same extent as such rules apply to providers not subject to market regulation.
- (u)
The regulatory commission is prohibited from creating any new programs mandating discounts on retail telecommunications services or equipment without providing reimbursement to carriers. Any such unfunded discount program mandated by rules or orders of the regulatory commission or public service commission that was in place as of March 26, 2013, shall terminate sixty (60) days following March 26, 2013. Nothing in this subsection (u) shall apply to existing regulatory commission programs providing services for individuals who are deaf or hard of hearing.
- (v)
The regulatory commission shall not impose any requirements relating to issuance or maintenance of a certificate pursuant to § 65-4-201 on any market-regulated entity or on any affiliate of a market-regulated entity.
§ 65-5-110. Commission jurisdiction.
- (a)
In addition to any other jurisdiction conferred, the commission shall have the original jurisdiction to investigate, hear and enter appropriate orders to resolve all contested issues of fact or law arising as a result of the application of chapter 408 of the Public Acts of 1995.
- (b)
The consumer advocate shall retain all powers with respect to chapter 408 of the Public Acts of 1995 as is provided in § 65-4-118, or any future legislation.
- (c)
Nothing in chapter 408 of the Public Acts of 1995 shall be construed as removing the powers of the former commission pursuant to § 65-5-102.
- (d)
Nothing in chapter 408 of the Public Acts of 1995 shall affect the authority and duty of the former commission to complete any investigation pending as of June 6, 1995.
- (e)
Nothing in chapter 408 of the Public Acts of 1995 shall be construed to affect the assessment for ad valorem taxation of property used to provide telecommunications services, and to that end it is declared that the fifty-five percent (55%) level of assessments shall remain applicable to property used in whole or in part to provide telecommunications services other than cellular telephone services, radio common carrier services, or long distance telephone services.
§ 65-5-111. Evaluation — Reports by commission.
-
The general assembly shall evaluate the implementation of chapter 408 of the Public Acts of 1995, every two (2) years for not less than the next six (6) years by requiring the submission of a report prepared by the commission consisting of the following information:
- (1)
The compliance of market participants with chapter 408 of the Public Acts of 1995;
- (2)
The status of universal service in Tennessee;
- (3)
The availability of service capabilities and service offerings, subdivided by facilities-based and non-facilities-based, for each telecommunications services provider;
- (4)
The number of customers, access lines served, and revenues, subdivided by residential and business, for each telecommunications services provider;
- (5)
The impact of federal telecommunications initiatives;
- (6)
The degree of technological change in the marketplace;
- (7)
The technical compatibility between providers;
- (8)
The service performance of providers; and
- (9)
Any other information the commission considers necessary for proper oversight and evaluation.
§ 65-5-112. Small and minority-owned telecommunications business participation plan.
-
Each telecommunications service provider shall file with the commission a small and minority-owned telecommunications business participation plan within sixty (60) days of June 6, 1995. Competing telecommunications service providers shall file such plan with the commission with their application for a certificate. Such plan shall contain such entity's plan for purchasing goods and services from small and minority telecommunications businesses and information on programs, if any, to provide technical assistance to such businesses. All providers shall update plans filed with the commission annually. For purposes of chapter 408 of the Public Acts of 1995, “minority business” means a business which is solely owned, or at least fifty-one percent (51%) of the assets or outstanding stock of which is owned, by an individual who personally manages and controls the daily operations of such business, and who is impeded from normal entry into the economic mainstream because of race, religion, sex or national origin and such business has annual gross receipts of less than four million dollars ($4,000,000). For purposes of chapter 408 of the Public Acts of 1995, “small business” means a business with annual gross receipts of less than four million dollars ($4,000,000).
§ 65-5-113. Assistance program for small and minority-owned businesses.
- (a)
The department of the treasury shall develop by rule an assistance program for small and minority-owned businesses, as defined in § 65-5-112, which may include loans and loan guarantees, technical assistance and services, and consulting and educational services to be funded solely from the fund established in subsection (b). The department shall administer the small and minority-owned business assistance program. It is the legislative intent that such program be designed with consideration of fair distribution of program assistance among the geographic areas of the state, the grand divisions, and small and minority-owned businesses. It is the legislative intent that the department use the assistance provided by this program to support the department's outreach to new, expanding, and existing businesses in Tennessee that do not have reasonable access to capital markets and traditional commercial lending facilities.
- (b)
There is established a general fund reserve to be allocated in accordance with the small and minority-owned business assistance program by this section which shall be known as the small and minority-owned business assistance program fund. Moneys from the fund may be expended in accordance with such program. Any moneys deposited in the fund shall remain in the reserve until expended for purposes consistent with such program and shall not revert to the general fund on any June 30. Any interest earned by deposits in the reserve shall not revert to the general fund on any June 30 but shall remain available for expenditure in subsequent fiscal years.
- (c)
It is within the state treasurer's discretion to accept new applications to participate in the small and minority-owned business assistance program after July 1, 2013. After July 1, 2013, the program shall administer all loans that are outstanding as of July 1, 2013, until the loans are matured or written-off. After July 1, 2013, and notwithstanding subsection (b), a portion of the small and minority-owned business program funds shall be transferred to the board of trustees of the college savings trust fund program to be utilized in an incentive plan or plans authorized in § 49-7-805(4), reserving such amounts that the state treasurer deems necessary for the administration of the small and minority-owned business program, as well as the administration and marketing of the incentive plan or plans. At least annually, the state treasurer shall evaluate the loan payments received by the small and minority-owned business assistance program and shall have the authority to transfer the funds from loan payments to the college savings trust fund program while reserving amounts for continued administration of the small and minority-owned business assistance program.
§ 65-5-114. Tennessee Natural Gas Innovation Act.
- (a)
This section is known and may be cited as the “Tennessee Natural Gas Innovation Act.”
- (b)
As used in this section:
- (1)
“Biogas” means gas produced by the anaerobic digestion of biomass, gasification of biomass, or other effective conversion processes;
- (2)
“Commission” means the Tennessee public utilities commission;
- (3)
“Farm gas” means a gas derived from agricultural waste;
- (4)
“Hydrogen” means hydrogen gas produced through:
- (A)
Carbon capture and storage;
- (B)
The use of renewable energy to break down water into hydrogen and oxygen through electrolysis;
- (C)
The breakdown of methane into hydrogen and solid carbon through pyrolysis; or
- (D)
Other means determined by the commission to be lower carbon;
- (5)
“Incremental innovative natural gas cost” means costs that are above the published price index for natural gas, applicable to the geographic location closest in proximity to the innovative natural gas resource;
- (6)
“Innovative natural gas resource” includes, but is not limited to, farm gas, biogas, renewable natural gas, hydrogen, carbon capture, qualified offsets, renewable natural gas attributes, RSG, and energy efficiency resources;
- (7)
“Qualified offsets” means a reduction in greenhouse gas emission or an increase in carbon storage;
- (8)
“Renewable natural gas” means a pipeline-compatible gaseous fuel derived from a biogenic substance, or other renewable sources that has lower lifecycle carbon dioxide emissions than geological natural gas;
- (9)
“Renewable natural gas attributes” means the environmental attributes associated with renewable natural gas; and
- (10)
“Responsibly sourced gas” or “RSG” means conventional natural gas that has been produced by companies whose operations have been independently verified as meeting certain environmental, social, and governance (ESG) standards set by the Sustainability Accounting Standards Board, including primarily air emission reductions.
- (c)
A public utility may request, and the commission may authorize, a mechanism to recover the costs related to the use or development of infrastructure to facilitate use of innovative natural gas resources for natural gas utility customers, if the commission finds that the costs are in the public interest. Such a mechanism may include:
- (1)
Capital investments for the production, processing, pipeline interconnection, storage, and distribution of innovative natural gas resources;
- (2)
Incremental operating costs associated with capital investments in infrastructure for the production, processing, pipeline interconnection, storage, and distribution of innovative natural gas resources; or
- (3)
Incremental innovative natural gas costs to procure innovative natural gas resources from third parties.
- (d)
- (1)
The commission shall grant recovery and authorize a separate recovery mechanism, or adjust rates through a utility's existing annual review process described under § 65-5-103(d)(6), to recover operational expenses or capital costs, or both, associated with the investment in natural gas innovation resources, including a return on the innovative natural gas resource capital investments, utilizing, at a minimum, the authorized return on equity approved by the commission at the public utility's most recent general rate case pursuant to §§ 65-5-101 and 65-5-103(a), upon a finding that the mechanism or adjustment is in the public interest.
- (2)
An incremental rate adjustment due to the investment in innovative natural gas resources must not exceed two percent (2%) of a utility's latest approved annual revenue requirement.
- (e)
Expenses described in subdivision (c)(3) may be reflected in a utility's purchased gas adjustment; provided, the total incremental natural gas cost cannot exceed three percent (3%) of the annual cost of gas. For purposes of establishing a recovery cap, three percent (3%) of total annual gas costs must be computed from the most current audited and approved gas costs for the public utility in a Tennessee public utility commission docket as of the first day of the month, twelve (12) months prior to the first day of the period under audit.
Part 2 Broadband Business Certainty Act of 2006
§ 65-5-202. Part definitions — Treatment of telecommunications services to avoid federal law prohibited — Jurisdiction of regulatory commission maintained — Regulation of cable television not affected.
- (a)
- (1)
As used in this part, “broadband services” means any service that consists of or includes a high-speed access capability to transmit at a rate that is not less than two hundred kilobits per second (200 Kbps), either in the upstream or downstream direction and either:
- (A)
Is used to provide access to the internet; or
- (B)
Provides computer processing, information storage, information content or protocol conversion, including any service applications or information service provided over the high-speed access service.
- (2)
“Broadband services” does not include intrastate service that was tariffed with the Tennessee public utility commission and in effect as of May 15, 2006; furthermore, the intrastate service shall not be reclassified, bundled, detariffed, declared obsolete or otherwise recharacterized to avoid the imposition of inspection fees by the Tennessee public utility commission.
- (b)
Nothing in this part shall permit any carrier to treat services that constitute telecommunications services under federal law as nontelecommunications services for any purpose under state law.
- (c)
Nothing in this part shall alter or affect the jurisdiction of the Tennessee public utility commission to arbitrate or hear complaints related to anticompetitive pricing of regulated services or interconnection agreements between carriers pursuant to §§ 251 and 252 of the federal Telecommunications Act (47 U.S.C. §§ 251 and 252).
- (d)
Nothing in this part shall alter or affect any jurisdiction or authority of the Tennessee public utility commission to act in accordance with federal laws or regulations of the federal communications commission, including, but not limited to, jurisdiction granted to set rates, terms, and conditions for access to unbundled network elements and to arbitrate and enforce interconnection agreements.
- (e)
Nothing in this part shall alter or affect in any manner the regulation of cable television as established elsewhere in state law.
§ 65-5-203. Federal preemption.
-
In order to ensure that this state provides an attractive environment for investment in broadband technology by establishing certainty regarding the regulatory treatment of that technology, consistent with the decisions of the federal communications commission to preempt certain state actions that are not in accordance with the policies developed by the federal communications commission, the Tennessee public utility commission shall not exercise jurisdiction of any type over or relating to broadband services, regardless of the entity providing the service, except as provided in § 65-5-202(a).
Part 4 Connection Costs
§ 65-5-401. Part definitions.
-
As used in this part:
- (1)
“Connection cost”:
- (A)
Means a rate, fee, or charge, or an estimate of a rate, fee, or charge, for a connection of utility service that is necessary for the customer or a potential customer to pay to the utility system to receive a utility service from the utility system to an unserved location or to upgrade a service to a location on or after the effective date of this act; and
- (B)
Does not include the cost for the construction of utility system improvements when the utility's rules, regulations, or policies require the customer to hire a qualified contractor at the customer's expense to construct the necessary utility system improvements and to dedicate the utility system improvements constructed to the utility system upon their completion by the customer; and
- (2)
“Utility” means:
- (A)
An entity subject to the jurisdiction of the Tennessee board of utility regulation in accordance with § 7-82-701;
- (B)
A county-owned or municipal-owned utility that provides electric, broadband, or propane services to the public;
- (C)
A public utility, as defined in § 65-4-101; and
- (D)
A cooperative, as defined in § 65-25-102.
§ 65-5-402. Description of costs relative to rates, fees, charges, or estimates.
- (a)
Upon request or application for a connection of utility service by a customer, a utility system shall promptly provide the customer the connection cost.
- (b)
A customer may request the utility system provide the customer connection cost in writing along with a written itemized and detailed description of the costs that comprise the connection cost. Upon receipt of a request, the utility system shall promptly provide the customer the connection cost in writing along with a written itemized and detailed description of the costs that comprise the connection cost.
- (c)
If a utility cannot promptly provide to the customer the connection cost, the connection cost in writing, or a written itemized and detailed description of the costs that comprise the connection cost, then the utility shall within fourteen (14) days from completion of the approved design:
- (1)
Provide to the customer in writing the connection cost and a written itemized and detailed description of the costs that comprise the connection cost;
- (2)
Provide to the customer in writing the time reasonably necessary to calculate or determine the connection cost or to provide a written itemized and detailed description of the connection cost; or
- (3)
Request from the customer information necessary to calculate or determine the connection cost and to provide a written itemized and detailed description to the customer as soon as practicable.
- (d)
To aid a customer, a utility may provide the customer a verbal or unofficial initial approximation of the connection cost. However, an approximation is not considered an attempt to comply with subsections (a)-(c).
§ 65-5-403. Violations.
- (a)
If a utility:
- (1)
As defined in § 65-5-401(2)(A), fails to comply with § 65-5-402, then the Tennessee board of utility regulation shall order reasonable sanctions against the utility;
- (2)
As described in § 65-5-401(2)(B) or (2)(D), fails to comply with § 65-5-402, then the comptroller of the treasury, or the comptroller's designee, shall order reasonable sanctions against the utility; and
- (3)
As described in § 65-5-401(C), fails to comply with § 65-5-402, then the Tennessee public utility commission shall order reasonable sanctions against the utility.
- (b)
A utility may receive sanctions from only one (1) of the entities listed in subsection (a) that is authorized to order sanctions.
Chapter 6 Railroads — Powers — Construction and Maintenance
Part 1 General Provisions
§ 65-6-101. Acquisition or construction of railroads — Acquisition and disposition of stocks or bonds.
-
All railroad companies of this state, and any other state or states, are empowered to build, lease or let, acquire by purchase, lease, or otherwise, and operate, hold, or dispose of any railroad or railroads in any state or states, or any parts or portions of any such railroad or railroads, and the distribution thereof, as may be determined by their stockholders, and to acquire by purchase or otherwise, and hold or dispose of any bonds or shares of the capital stock of any railroad company or companies in any state or states, and to endorse and guarantee the bonds of any railroad company or companies in any state or states, whose original charter of incorporation was granted by the state; provided, that the same should be approved by a vote of the holders of a majority of all of the outstanding shares entitled to vote thereon or upon receiving two-thirds (⅔) of the votes which members present or represented at such meeting are entitled to cast, at a regular or called meeting of the stockholders of the company; and provided further, that ten (10) days' notice be given in a Memphis, Knoxville, Chattanooga and Nashville daily newspaper, of the time, place, and purpose of the meeting.
§ 65-6-102. Issuance of bonds and stock.
-
Railroad companies existing under the laws of this state, or of this state and any other state or states, are empowered to issue bonds, and secure the payment thereof by mortgage upon their franchises and property in any state or states, or upon any part of such franchises and property, or to issue income or debenture bonds, and such guaranteed, preferred, and common stock as may be determined upon by the stockholders; provided, the same be approved by the votes of the holders of three-fourths (¾) in amount of the entire stock of the company, at a regular or called meeting of the stockholders of the company, and that ten (10) days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper, of the time, place, and purpose of the meeting.
§ 65-6-103. Subscription for or purchase of stocks and bonds of other companies — Contracts for construction or lease.
-
It is lawful for any railroad company created by and existing under the laws of this state, and for any lessees of a railroad of such company, from time to time, to subscribe for or purchase the stock and bonds, or either, of any other railroad company or companies chartered by or of which the road or roads are authorized to extend into this state, when their roads shall be directly, or by means of intervening railroads, connected with each other; and to make contract with such company or companies for the construction, maintenance, repairs, or equipments, as well as lease of such other railroad or railroads, upon such terms as may be agreed upon by the companies owning the same, or by the companies and such lessees.
§ 65-6-104. Limitation of time removed from original franchise.
-
Any railroad corporation or other body heretofore granted the right or power to build and maintain a railroad in this state, for a limited number of years, and which now owns a railroad in this state, built and maintained pursuant to such grant or power, has all the rights and privileges as are conferred by any general statutes of this state upon railroad corporations, and may exercise the same without regard to and despite any limitations of years contained in any such original franchise or grant.
§ 65-6-107. Preference in location of line.
-
No railroad company shall have the right, by surveying or locating its line of railroad, to defer building its line of railroad to the exclusion of other companies that may sooner and more certainly build upon such line of route, but the company which, in good faith, first actually constructs its road over such route, shall have preference in the location of the route.
§ 65-6-108. Location of first of two lines.
-
If, in determining any controversy over routes, it shall appear to the court that the second company, in good faith, intends to and probably will construct its road, the first line constructed shall be located, if practicable, so as not to make it unreasonably expensive to construct the other one.
§ 65-6-109. Right-of-way authorized.
-
The corporation shall have the right, in pursuance of the general law authorizing the condemnation of private property for works of internal improvement, to appropriate as an easement a right-of-way, not exceeding two hundred feet (200′), over the land of any person through which the line of the track may be located.
§ 65-6-110. Monopolizing right-of-way prohibited — Condemnation as in other cases.
-
No railroad company, whose railroad may be built in this state, has the right to hold, to the exclusion of other railroads to be built, by purchase or condemnation for its right-of-way, a wider strip of land than shall be necessary for its reasonable use in the transaction of its business; and any land owned, or right-of-way held, or acquired, by any such railroad company, which a jury of inquiry in condemnation proceedings shall find necessary for such reasonable use and business of the company, may be condemned for the use of other railroads thereafter to be built, in like manner as other private property.
§ 65-6-111. Joint right-of-way or joint use of track.
- (a)
In case any railroad company has acquired or owns a right-of-way over which its road is not already built, through or along any narrow pass, cliff, or gorge, where it may be unreasonably expensive or impracticable to put down more than one (1) track or line of railroad, any other railroad company, in good faith, desiring to build its line of road through or along the same narrow pass, cliff, or gorge, shall have the right to condemn a joint use of the right-of-way through or along the same, and, if after any railroad to be constructed through or along the same shall already have been constructed, any other railroad so desiring to build through or along such narrow pass, gorge, or cliff shall have the right to condemn a joint use of so much of the track as may be necessary, in like manner as railroads have the right to cross each other.
- (b)
Reasonable compensation shall be paid to the railroad company owning such right-of-way, or to the one whose right-of-way, or right-of-way and track, may be so condemned for such joint use with the other road, for its property and improvements and injury to its business, if any, which compensation, together with such reasonable restrictions as the jury of inquiry may prescribe at the expense of the second road for safely using such joint track, shall be fixed by the jury as in other cases of assessment of damages in the condemnation of private property.
§ 65-6-112. Existing rights-of-way unaffected.
-
Nothing contained in § 65-6-107, § 65-6-108, § 65-6-110, or § 65-6-111, shall be construed to affect any rights railroad companies, whose roads are already constructed and being operated, may have in respect to rights-of-way over which railroads are already being operated, it being the intention of such sections not, in any manner, to add to or take from such rights as they may have in those rights-of-way, but to apply only to roads or extensions or branch roads to be built.
§ 65-6-113. Right-of-way at state line.
-
When any railroad of another state shall intersect the line of the state of Tennessee, at a point within five (5) miles of any railroad in this state, such road of other states is granted the right-of-way from such point of intersection to any point on the line of road in this state; provided, that such point of connection between the roads shall not be more than five (5) miles distant from the state line, and the same shall be subject to all laws of the state in reference to the right-of-way.
§ 65-6-114. Rights of foreign companies.
- (a)
Any railroad corporation created by the laws of any other state shall be empowered to extend its railroad into this state a distance not exceeding five (5) miles from the point of its entrance into this state, for the purpose of reaching a terminal point, or a general or a union depot in, or in the vicinity of, any city, town, or village in this state.
- (b)
Such corporations may acquire the right-of-way for their railroads from the line of this state to their terminal points or depots in this state by purchase or by gift or by condemnation.
- (c)
Such corporations shall have the power to purchase, hold, use, and enjoy all real estate necessary for the erection and maintenance of their depots, shops, yards, sidetracks, turnouts, and switches, both along the route and at their terminal points in this state; provided, that they shall first apply for and receive a charter in this state.
§ 65-6-115. Gauge of road.
-
Any railroad corporation, whose line is located wholly or partly in the state, may adopt such gauge or gauges as its authorities may choose, and may alter the same at pleasure.
§ 65-6-116. Change of terminus before final location.
-
Any railroad company may, by resolution of its board of directors, change either terminus of its line of railroad at any time before the final location of the same. This resolution shall be certified by the president and secretary of the company, under its corporate seal, and filed and registered as an amendment of its charter.
§ 65-6-117. Power to relocate lines.
-
Any railroad company owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to relocate or change its lines or tracks, to build second main or double tracks, relocate any part or parts of its lines for the purpose of reducing or taking out curves or reducing grades, and to build embankments for the purpose of avoiding trestles upon which the railroad may be constructed, or to widen cuts when necessary for proper construction; provided, that where there is a relocation of any part of a road and any industry located upon the original road, the railroad shall keep and maintain a spur or sidetrack to such industry; and where any landowner or the heir or devisee or successor in title by conveyance or otherwise of any landowner who donated the original right of way, or who parted with the easement upon or title to the same in any other manner than by voluntary sale for a full cash consideration, shall be injured by such relocation, the railroad company shall be liable therefor; provided, that under this section and §§ 65-6-118, 65-6-123, 65-6-129 and 65-6-131, no railroad shall be authorized to change the location of its line or lines within any incorporated towns, or cities, except by consent of the governing authorities of such incorporated towns or cities.
§ 65-6-119. Construction and maintenance of roadbeds.
-
Any railroad company owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to fill its trestles and to make all creek changes necessary for the same; to construct channels and canals contiguous to its rights of way so as to prevent the unnecessary crossing of creeks and to make such other changes in the beds of creeks as may be necessary for the proper construction and maintenance of its roadbeds; provided, that where any property owner is damaged by such change in a creek, such landowners shall be entitled to just compensation for the same.
§ 65-6-120. Construction of railroad on county highways.
-
It is unlawful for any corporation or person to construct or use an ordinary railroad for the transportation of freight and passengers upon any county road or county highway of this state, without the consent of the county legislative body of the county in which the road lies. Before it is lawful for the county legislative body to give such consent, the corporation desiring to construct such railroad shall procure and file with the county legislative body the written consent of the owners of the lands abutting upon such road or highway, aggregating in such abutting length at least one-half (½) of all the lands in value, such value to be the value of the abutting lands running back from such road two hundred feet (200′) upon both sides of the road to be occupied by the railroad. Any ordinary railroad constructed upon such county road or highway, without the consent of the county legislative body first lawfully obtained, shall be considered a nuisance, and liable to be treated as such, both by the public authorities and by private persons. But when the consent of the county legislative body has been first lawfully obtained, such railroad may be lawfully constructed and operated upon such road or highway under such restrictions as to the manner of construction and mode of use as the county legislative body may see fit to impose in granting the license; provided, that railroads already constructed upon any road or highway of this state under a license of the county legislative body are declared to be lawfully constructed, and this section shall not be construed as requiring a new license from the county legislative body for such construction or operation under its provisions.
§ 65-6-121. Compensation for damages from construction on county highway.
-
Section 65-6-120 shall not be construed so as to prevent the owners of land abutting upon such road from obtaining due compensation for damages arising from the construction of such railroad, such damages to be just compensation for all property taken, injured, or damaged by the building or operations of the railroad, such damages to be ascertained and paid before the right to appropriate the property to be occupied shall accrue, as provided by law.
§ 65-6-122. Tracks not to obstruct travel on highways, streets, and alleys.
-
The line or track of the road shall be so constructed as not to interfere with the convenient travel of the public along the highways, county roads, streets, and alleys of cities, towns, and villages, and so as to allow vehicles conveniently and safely to pass over or under the line or track, and so as not to interrupt travel on foot or horseback, or in vehicles of any kind, in the proper use of the public road, street, or alley in the usual and proper mode for their convenience.
§ 65-6-123. Condemnation of property to provide water for trains.
-
Any railroad corporation owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to condemn property for a site for a reservoir or tank; also, the use of the water from any running stream, and also a way along which to lay pipeline or lines to convey water to its reservoir or tanks, whenever the same or any of them may be needed for the purpose of such railroad. The powers conferred in this section shall be exercised only for the erecting and maintaining of tanks and reservoirs for the purpose of operating trains. This section does not apply to springs or private ponds.
§ 65-6-125. Right to build branch roads.
-
Any railway corporation chartered under the general laws of the state, which may desire to build a branch road or branch roads from its main stem, shall have the right to do so by amendment of its charter.
§ 65-6-126. Branch lines for industrial purposes.
-
Any railroad company operating a railroad, or any part of same, in this state, shall have power to build or acquire lateral or branch lines of railroad, not to exceed fifteen (15) miles in length, for any one (1) of such lateral or branch roads, extending from its main stem in the state to any mine or quarry, or into any mineral section of country tributary to such main stem, or to any mill, factory, or to the bank of any navigable stream, for the purpose of developing the resources of the country without any amendment to the charter of the railroad. Such railroads shall have power to condemn private property for use in the construction and operation of such lateral or branch roads; provided, that private property shall not be taken therefor, against the owner's will, without condemnation thereof, as provided by law in other cases, and such roads shall be, as common carriers, subject to the same duties and restrictions as the main lines with which they connect.
§ 65-6-127. Power to build or extend lines and facilities.
-
Any railroad company owning or operating any railroad or any part thereof in the state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to build cut-off lines, branch lines, and other lines for the purpose of the better and more expeditious handling of the public business in the transportation of freight and passengers, and to construct, build, or extend any main line, branch line, or other line into, and to serve, other and different territory, and to build second main or double tracks, turnouts, switches, spur tracks, side-tracks, stations, depots, and terminal facilities.
§ 65-6-130. Acquisition of branches and extensions.
-
All railroad companies existing under the laws of this state, or of this state and any other state or states, whose charter of incorporation is granted by this state, are empowered to acquire the line or lines of any other railroad company, either in this state or any other state or states, which may connect with and form parts or branches or extensions of the line of such company chartered by this state, or by this state and any other state or states; and are empowered to so acquire such branches or extensions by purchase, lease, or otherwise, and pay for the same by the issue of their own capital and bonds, or by guaranteeing those issued by the company whose line may be so acquired, purchased, or leased; but nothing in this section shall be construed to authorize the acquisition in any way by any corporation or company of parallel or competing lines.
§ 65-6-132. Trees to be cut down.
- (a)
Every company or person operating a railroad in this state shall cut down all trees standing on its lands which are six (6) or more inches in a diameter two feet (2′) above the ground and of sufficient height to reach the roadbed if they should fall.
- (b)
A failure to comply with subsection (a) will render the company liable for all damages to person or property resulting therefrom; also to a penalty of one hundred dollars ($100), to be recovered on suit brought in the name of any citizen before any tribunal having jurisdiction, half of which shall go to the treasury of the county in which such provisions may have been disregarded, and the other half to the plaintiff.
§ 65-6-133. Railroad police officers.
- (a)
Any company or corporation owning or operating a railroad in this state may apply to the governor to commission such number of its agents, servants or employees as the company shall designate to act as police officers for the company.
- (b)
The governor, upon such application, shall appoint such persons as the company designates, or as many thereof as the governor deems proper to be such police officers, and shall give commissions to those appointed.
- (c)
Before entering into the performance of police duties, every police officer so appointed shall take and subscribe an oath of office, and enter into a surety bond in the sum of one thousand dollars ($1,000), payable to the state, conditioned for the faithful performance of such duties. Such oath of office and such bond, with a copy of the commission, shall be filed with the secretary of state.
- (d)
Each police officer shall have and exercise throughout every county in which the company for which such officer was appointed shall do business, operate, or own property, the power to make arrests for violation of law on the property of such company, and to arrest persons, whether on or off such company's property, violating any law on such company's property, under the same conditions under which deputy sheriffs or other peace officers may by law make arrests, and shall have authority to carry weapons for the reasonable purpose of their offices. The keepers of jails in any county or municipality wherein the violation occurs for which any such arrest is made shall receive all persons arrested by such police officer to be dealt with according to law, and persons so arrested shall be received by keepers of jails on the same basis and shall have the same status as prisoners arrested by any other police officer.
- (e)
Every police officer so appointed shall, when on duty, carry a badge or identification card identifying the officer as a member of the police department of such railroad company for or which such officer is appointed, and the officer shall exhibit such badge or identification card, on demand, and before making an arrest.
- (f)
The compensation for such police officers shall be paid by the company for which they are respectively appointed.
- (g)
When a company no longer requires the services of a police officer so appointed, it shall file a notice to that effect with the secretary of state. Thereupon, the powers of such police officer shall cease and terminate.
- (h)
Any person commissioned as a police officer pursuant to this section shall, prior to such commission, receive peace officer standards and training certification.
§ 65-6-134. Locomotive engineer's operator permit.
-
Every company, association, person or other entity which employs or permits any person to operate a railroad locomotive shall issue to such person an engineer's operator permit. Such permit shall include the engineer's name, address, description, date of birth and a certification that such person is qualified as a locomotive engineer.
Part 2 Clearance Requirements
§ 65-6-201. Minimum clearance requirements.
- (a)
The minimum clearance requirements for all railroads operating in this state, in the construction or relocation subsequent to April 13, 1949, of tracks, tunnels, bridges, or structures adjacent to tracks, shall be as described in this part, except as otherwise provided.
- (b)
No railroad corporation shall operate any cars, trains, motors, engines, or other rolling equipment on its tracks, or tracks of others, except as provided in this part, on which overhead or side clearances, or clearances between tracks, are less than the minimum prescribed in this part, if such tracks, bridges, tunnels or structures adjacent to such track are constructed or relocated subsequent to April 13, 1949.
§ 65-6-202. Part definitions.
-
For the purpose of this part, the following definitions will govern:
- (1)
“Height” of a freight car is the distance between the top of the rail and the top of the running board;
- (2)
“Overhead clearance” is the vertical distance between the two (2) rails from the level of the top of the highest rail to a structure or obstruction above on tangent track and from the mean level of the two (2) rails on curved track;
- (3)
“Side” of a freight car is that part or appurtenance of the car at the maximum distance measured at right angles from the center line of the car;
- (4)
“Side clearance” is the shortest distance from the center line of track to a structure or obstruction at the side of track up to a distance of fifteen feet (15′) and six inches (6″) from the top of the rail; and
- (5)
“Width” of a freight car is twice the distance from the center line to the side of a car as defined in this section.
§ 65-6-203. Overhead clearance.
- (a)
The minimum overhead clearance above railroad tracks which are used or purported to be used for transporting freight cars shall be twenty-two feet (22′). Structures constructed prior to April 13, 1949, may be maintained at such clearance as was lawful at the time of construction.
- (b)
The overhead clearance above the top of the rail of such tracks located inside of buildings may be reduced to seventeen feet (17′); provided, that this clearance shall apply only to tracks operating within the buildings; and provided further, that when an overhead clearance of less than twenty-two feet (22′) exists on tracks inside such buildings, all cars, trains, motors, engines or equipment shall be brought to a stop before entering such buildings.
§ 65-6-204. Side clearance.
-
The minimum side clearance from center line of standard gauge railroad tracks which are used or purported to be used for transporting freight cars, except as prescribed in this section, shall be as follows:
- (1)
All structures and obstructions, except as specifically mentioned in this section, eight feet (8′);
- (2)
All posts, pipes, crossing signals, and similar obstructions, eight feet (8′);
- (3)
Platforms eight inches (8″) or less above top of rail, four feet (4′) and eight inches (8″);
- (4)
Platforms four feet (4′) or less above top of rail, seven feet (7′) and six inches (6″), except platforms of railroad freight warehouse stations and freight transfer points, which shall have a clearance of not less than five feet (5′) and nine inches (9″);
- (5)
Platforms more than four feet (4′) above top of rail used principally for loading and unloading refrigerator cars, eight feet (8′);
- (6)
Switch boxes, switch operating mechanisms, and accessories necessary for the control and operation of signals and interlockers, projecting four inches (4″) or less above top of rail, three feet (3′);
- (7)
Low switch stands, dwarf signal stands and derail stands at center line of stand, six and one-half feet (6 ½′);
- (8)
All structural parts of railroad bridges shall have clearances which conform to the recommendation of the A.R.E.A. in effect when construction is begun;
- (9)
The side clearances specified in this section shall not apply to mail cranes during such times as the arms of such cranes are supporting mail sacks for delivery; provided, that the top arm is not lower than ten feet (10′) and eight inches (8″) above top of rail and neither arm extends within six feet (6′) and five inches (5″) from the center line of track;
- (10)
Icing platforms, seven feet (7′); and
- (11)
All minimum side clearances prescribed in this section are for tangent tracks. All structures adjacent to curve tracks shall have an additional minimum side clearance compensated for the curvature. Structures constructed prior to April 13, 1949, may be maintained at such clearance as was lawful at the time of construction.
§ 65-6-205. Minimum distance between track.
- (a)
The minimum distance between the center lines of parallel standard gauge tracks shall be fourteen feet (14′) except as provided in this section.
- (b)
The center line of any standard gauge ladder track, constructed parallel to any other adjacent track, shall have a clearance of not less than eighteen feet (18′) from the center line of such other track.
- (c)
The minimum distance between the center lines of parallel team, house and industry tracks shall be thirteen feet (13′).
- (d)
Tracks constructed prior to April 13, 1949, may be maintained at such clearance as was lawful at the time of construction.
§ 65-6-206. Clearance of articles stored near tracks.
-
No merchandise, material or other articles shall be placed or permitted to remain either on the ground or on the platforms adjacent to any track at a distance less than eight feet (8′) from the center line of track; provided, that this provision does not apply to materials to be used in the repair, replacement or maintenance of the tracks.
§ 65-6-207. Enforcement.
-
The department of transportation is directed to enforce compliance with this part; provided, that the commissioner of transportation or the commissioner's designee shall have the power and the duty to prescribe and authorize a vertical or side clearance less than the minimum required in this part in particular cases when, on application therefor, after notice posted at the railroad station nearest the place affected, and after hearing if requested, the department of transportation may find a reasonable necessity or justification for such action; and provided further, that this part shall not apply to temporary forms, supports, falsework, bracing, etc., used only during and in the construction or repair of any underpass or overpass for a street, road or highway.
§ 65-6-208. Penalty for noncompliance.
-
Any railroad failing or refusing to comply with this part is subject to a penalty of one hundred dollars ($100) for each violation. This penalty shall be enforced and collected as provided by this part. Any judgment rendered for such penalty may also contain an order by the court directing compliance.
Part 3 Cattle Guards
§ 65-6-301. Cattle guards on unfenced track.
-
Each railroad company whose unfenced track passes through a field or enclosure is required to place a good and sufficient cattle guard or stops at the points of entering such field or enclosure, and keep the same in good repair.
§ 65-6-302. Enlargement of unfenced area.
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In case a field or enclosure through which unfenced railroad track passes shall be enlarged or extended, or the owner of the land over which such unfenced track passes shall open a field so as to embrace the track of such railroad, such railroad company is required to place good and sufficient cattle guards or stops at the margin of such enclosure or fields, and keep the same in repair; provided, that such owner shall give the nearest or most accessible agent of such company thirty (30) days' notice of such change.
§ 65-6-303. Penalty for noncompliance.
-
Any railroad company neglecting or refusing to comply with this part shall be liable for all damages sustained by anyone by reason of such neglect or refusal; and, in order for the injured party to recover all damages such person sustained, it shall be only necessary for such person to prove such neglect or refusal, and the amount of such damages; provided, that such company shall not be liable if it shall be shown that the opening of such field was made capriciously and with intent to annoy and molest such company.
Chapter 7 Subscription to Railroad Stock by Counties and Municipalities
§ 65-7-101. Power of locality to become stockholder.
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Any county, incorporated city, or town may become a stockholder in any railroad company incorporated under the general laws of this state, to an amount not exceeding, in the aggregate, one-tenth (⁄) of its taxable property, by complying with the requirements of this chapter.
§ 65-7-102. Right to subscribe to stock.
-
No county, incorporated city, or town shall subscribe to the capital stock of any railroad company under this chapter unless its railroad runs through the county or within one (1) mile of the incorporated city or town making the subscription; provided, that any county within which the railroad or any of its branches terminates may subscribe under this chapter.
§ 65-7-103. Conditions precedent to subscription.
- (a)
Before any county makes any subscription under this chapter, the president, or other authorized officer or agent of the railroad company, shall submit to the county mayor an application in the name of the company, setting forth the proposed termini of its railroad, the amount of the subscription asked for, the time within which its road will be constructed through the county, and that the application is made under this chapter, and the same shall be accompanied by a plan or map, certified by the chief engineer of the company, showing the general direction and line of its railroad in the county.
- (b)
Before an incorporated city or town shall make any subscription under this chapter, such application must be submitted to its mayor or chief executive officer, showing the proposed termini of its railroad, accompanied with the declaration, on the part of the company, that it will locate and construct its railroad within one (1) mile of such incorporated city or town, within such time as shall be fixed in the application.
§ 65-7-104. Record of application, plan, and amount — Ordering of election.
-
The county legislative body, or board of mayor and aldermen, or other governing body, as the case may be, shall spread upon its records the application and accompanying plan or map or declaration, and the amount to be voted upon by the people, and shall have full power to order such elections according to the laws regulating elections in this state.
§ 65-7-105. County election on question — Order by legislative body.
-
Upon the presentation of the application, with the accompanying plan or map, as provided in § 65-7-103, it is made the duty of the county mayor to give ten (10) days' notice to each and every member of the county legislative body of the county mayor's county to assemble at the courthouse of the county, in order to take action on such application. If at such special meeting of the county legislative body a majority of the members in commission shall be of the opinion that an election should be held in the county to determine whether or not the county should make the subscription applied for, the legislative body shall so order.
§ 65-7-106. City or town election on question — Order by governing body.
-
In like manner, upon the presentation of the application to the mayor or other chief executive officer of any incorporated city or town, accompanied by a declaration on the part of the company that its line of railroad shall be located and constructed within one (1) mile of such city or town, as provided in §§ 65-7-101 — 65-7-105, then it is made the duty of such mayor or chief executive officer to convene the board of mayor and aldermen, or other governing or representative body of such city or town, and submit such application for its consideration. Should a majority of the board of mayor and aldermen, or other governing or representative body of such city or town, be of the opinion that an election should be held in the same to determine whether or not such city or town should make the subscription, it shall so order.
§ 65-7-107. Notice of election.
-
The election shall be advertised at least thirty (30) days beforehand, by notice published in a newspaper of the county, if there is one, or if not, posted at the different places of voting, specifying the time it is to be held, for what railroad, and the amount of stock proposed to be taken.
§ 65-7-108. Conduct of election — Certificate of result — Validity.
-
The county election commission shall open and hold an election at every voting place established by law in such county, city, or town, and its certificate of the result of the election to the county legislative body, or to the proper authorities of such city or town, shall name, in writing, every established voting place at which an election was opened and held, and every one at which an election was not held. If it shall appear that the election was not opened and held in every voting place, then the election shall be declared null and void, and of no effect, unless it shall be made to appear, to the satisfaction of the county legislative body or city or town authorities, that the officer of elections was present at such voting place on the day and hour required by law, and did endeavor to procure judges and clerks to hold the election, and that the officer of elections was positively unable to do so, and the election at the precinct could not be held for the want of judges and clerks to hold it.
§ 65-7-109. Election — Style of ballot.
-
At the election thus held, those voters who are in favor of the subscription shall put upon their tickets the words, “For subscription,” and those opposed, “No subscription”; provided, that in cities and towns where the Australian or Dortch ballot law applies, the ticket or ballot used in such election shall conform as near as may be to the style of the ballot prescribed by law. Such ballot shall be deemed legally sufficient if it has plainly printed thereon substantially the following: “Shall (name of county, city, or town) subscribe $ to the capital stock of the (name of railroad company) in accordance with the terms and conditions of the application of (name of railroad company) submitted to the (name of county, city, or town), on day of 20,” followed by the words “Yes” and “No” so that voters can intelligently vote their choices by making a cross mark (X) after the word “Yes” or “No.”
§ 65-7-110. Action on return of commission.
-
It is the duty of the county legislative body, or governing body of such city or town, as the case may be, to convene on the call of its presiding officer, for the purpose of acting on the return of the county election commission, within ten (10) days after such election; and if it appears that the same was, in all respects, fair, and that three-fourths (¾) of the legal votes cast at such election were in favor of subscription, then it shall have full power, and shall proceed, to make and execute all necessary orders, and take such action as may be required to make the subscription effective according to the terms thereof and these provisions.
§ 65-7-111. Second election.
-
Should any county, town, or city fail to vote the subscription to any railroad at any election held for the purpose, the county, city, or town may, in its discretion, at any time after thirty (30) days, order another election, if desired by the railroad company.
§ 65-7-112. Subscriptions — Time of payment.
-
Such subscription of any county or incorporated city or town shall not become due and payable unless the railroad company shall have constructed and put in operation within the time fixed in the application, and substantially in the direction and on the line as shown in the plan or map, that portion of its railroad located within the county making the subscription, or that portion of its railroad located within the county in which is situated the incorporated city or town making the subscription, as the case may be; provided, that any county, incorporated city, or town making a subscription under these provisions, may, in addition to the restrictions imposed by this section, stipulate with the railroad company that its subscription shall not become due and payable until the company shall construct its road to such points, or for such distances, as may be agreed upon.
§ 65-7-113. Bond issue for payment.
-
When such subscription shall become due and payable, as provided in § 65-7-112, the county or city or town making the subscription shall make and execute its coupon bonds for the amount of such subscription, payable not more than twenty (20) years after date, and bearing interest at such rate as may be agreed upon, payable semiannually, and deliver the same to the railroad company; provided, that such county, city, or town may pay such subscription in cash at maturity, if it shall so elect.
§ 65-7-114. Tax levy to meet bond payments.
-
When the subscription so made becomes due, as provided, it is made the duty of the county legislative body, or municipal authorities, as the case may be, on the receipt of the certificates of stock, as provided in § 65-7-116, to levy, from time to time, such taxes upon the taxable property, privileges, and persons liable by law to taxation within the county or corporate limits, as the case may be, as will be sufficient and necessary to meet the maturing interest on the bonds of such county, town, or city, and to provide for the payment of the principal; provided, that no tax to pay such subscription exceeding twenty-five percent (25%) of the amount subscribed shall be levied in any one (1) year.
§ 65-7-115. Collection of tax.
-
The taxes prescribed in § 65-7-114 shall be levied and collected as other county, town, or corporation taxes, and paid into the treasury of the county, city or town as other taxes.
§ 65-7-116. Issuance of stock.
-
The railroad company shall, when the subscription becomes due and payable, as prescribed, make out and deliver to the county, city, or town, as the case may be, certificates of its capital stock amounting to the subscription, and the certificates shall be held, owned, and voted by such county, city, or town as by other stockholders, and the certificates of stock, and dividends and profits thereon, and the public benefits derived from the construction and operation of the railroad, shall be in full consideration of such subscription and the benefits derived therefrom by the railroad company.
Chapter 8 Purchase and Sale of Railroads
§ 65-8-101. Power to acquire and operate other railroads.
-
Every railroad corporation in this state, and railroad companies existing under the joint legislation of this and another state or states, and railroad companies incorporated by this, or another or other state or states, whose roads connect with, or intersect each other in this or any other state, and all railroad corporations created in this state, or by virtue of statutes of any other state, ratified and confirmed by the authority of this state, has the power to acquire, by purchase or other lawful contract, and have, hold, use, and operate, any railroad, with its franchises, belonging to any other railroad corporation; and likewise to have, hold, use, and operate any such railroad, with its franchises, which it may have purchased or acquired.
§ 65-8-102. Borrowing money for payment — Issuance of bonds.
-
Any railroad company described in § 65-8-101 shall have the power to borrow money and to issue its bonds therefor, or for any other indebtedness or liability which it may incur, or may have incurred, in the exercise of its lawful purposes, and to secure the payment of such bonds, with the interest thereon, by a mortgage of the whole or any part of its railroad and equipment and other property and franchises, containing such provisions as its directors shall approve.
§ 65-8-103. Continuation of business by seller to wind up business.
-
In case the railroad company, whose corporate powers have been transferred by a sale as aforementioned, has brought suits in law or equity, or holds any claims or rights of action, excepted and reserved by the terms of the sale, the corporation may have a continuance sufficiently long for the purpose of collecting the claims and paying to or dividing the same among the stockholders or the persons entitled to such claims.
§ 65-8-104. Authority to purchase under judicial sale.
-
Any railroad corporation which has been created, or whose corporate existence has been recognized, by any act of the general assembly, is empowered to become a purchaser of any railroad sold in this or any adjoining state under any judicial proceeding in such state, or sold by any person who may have purchased or derived title under or from any such judicial sale.
§ 65-8-105. Rights of purchase under judicial sale.
-
All the rights, privileges, and immunities appertaining to the franchises sold under judicial proceedings instituted against delinquent railroads by the state, under the act of incorporation and the amendments thereto, and the general internal improvement law of the state, and acts amendatory thereof, shall be transferred to, and vest in, the purchaser.
§ 65-8-106. Sale under mortgage.
- (a)
The purchasers of any railroad chartered by this state, and lying in whole or in part in this state, sold under any mortgage executed by it, when put in possession of the railroad by any court of competent jurisdiction, shall have the same right to operate the same in this state as the incorporated company which executed the mortgage.
- (b)
When a mortgage executed, as provided or allowed by law, upon the franchises and property, of every description of an incorporated railroad lying within the state, either in whole or in part, shall be foreclosed in any court of this state or of the United States having jurisdiction thereof, by sale under the mortgage, the purchasers at the sale shall, by virtue thereof, be entitled to and be invested with the franchises and property, and with all the rights, privileges, and immunities appertaining thereto by the laws of this state, in the act of incorporation of the company, and the amendments thereto, and the general internal improvement law, or other laws of this state, in as full a manner as the company or companies are or were.
§ 65-8-107. Sale under judgment.
-
Whenever the property and franchises of any railroad are sold, under any judgment, decree, or process from any of the courts of record of this state, for the payment of any debt due from the incorporated company, the purchasers at the sale, or their assignees, may organize into a corporate body, with the right to have, hold, and operate the property and franchises so purchased, with all powers, rights, privileges, and immunities, and subject to all the restrictions, imposed by the original charter, and amendments thereto, of the corporation whose property and franchises have been sold.
§ 65-8-108. Right of purchaser to tax exemption waived.
-
Nothing in § 65-8-106, § 65-8-107 or § 65-10-112 shall be construed to exempt the railroad and its property from liability to state, county, and municipal taxation; and the purchasers shall waive any right of exemption from taxation, if any existed in the original charter, or other law of this state, in favor of such railroad property or stock therein.
§ 65-8-109. Organization of new company by purchasers.
- (a)
The purchasers at the sale mentioned in §§ 65-8-107 and 65-8-108 may, after being put in possession of the property, meet, adopt a name for the corporation to operate the railroad, and elect a board of directors, of their numbers, of not less than three (3), at least one (1) of whom shall reside in this state.
- (b)
At such meeting, every person interested in the purchase shall be entitled to one (1) vote for every one hundred dollars ($100) of such interest, unless the number of votes to which each party shall be entitled, and the mode of representing the interest of the purchasers, shall have been previously agreed upon among the parties interested in the purchase.
- (c)
The board of directors shall proceed to elect a president and such other officers as may be expedient for the proper management of the property, fix their compensation and duties, and adopt bylaws for the government of the company, not inconsistent with the laws of this state; and shall fix the amount of the capital stock of the company, and the amount of stock or bonds, or both, which shall represent the interest of the purchasers, dividing such stock into shares of one hundred dollars ($100) each.
- (d)
The board of directors shall make a certificate showing the name of the corporation, the amount of its capital stock, the shares into which the same is divided, the number and residence of the board of directors, where the road lies, and the name or names by which it had theretofore been chartered and known, and shall cause the same to be signed by the president and the members of such board, and to be filed with the secretary of state; and thereupon the purchasers shall be a body corporate, under the name so adopted, with all the rights, powers, privileges, immunities, and franchises possessed under the laws of this state by the company or companies whose road and franchises were sold as aforementioned under the acts of incorporation thereof, or any amendments thereto, and any subsequent act or acts of this state; and with all the rights, powers, privileges, and franchises possessed by the corporation formed and organized for the building of railroads under this Code.
- (e)
The board of directors shall issue, to the parties interested in the purchase of the railroads, shares of the capital stock thereof of one hundred dollars ($100) each, to such amount as the board of directors shall determine, in proportion to such interested parties' rights and interests in the property, which shares shall be fully paid, and not liable to calls; and also such bonds and obligations as the board of directors may determine.
Chapter 9 Consolidation of Railroads
§ 65-9-101. Power to consolidate.
-
Every railroad corporation existing in this state, and having authority to operate and maintain a railroad in this state, has the power to consolidate with any other railroad corporation whose road connects with or intersects the road of such existing corporation, or any branch of such road.
§ 65-9-102. Consolidation agreement.
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The agreement of consolidation shall be in writing, and shall set forth the corporate name agreed upon, and the terms and conditions of the consolidation.
§ 65-9-103. Approval of stockholders.
-
The consolidation shall not have effect until the terms and conditions of the agreement shall have been approved by a majority of the stockholders of each of the consolidating companies, at a regular annual meeting.
§ 65-9-106. Rights and liabilities of consolidated corporation.
-
The corporation, formed by the consolidation of two (2) or more railroad corporations, shall have, possess, and exercise all the rights, powers, privileges, immunities, and franchises, and be subject to all the duties and obligations, not inconsistent with this chapter, conferred and imposed by the laws of this state upon such companies so consolidating, or either of them.
§ 65-9-107. Powers of consolidated corporation.
-
The corporation shall have power to:
- (1)
Fix the number of its directors and the time of their election;
- (2)
Fix the number, names, and duties of its officers;
- (3)
Pass bylaws for the government of the company, and the management of its affairs;
- (4)
Create and divide its capital stock into two (2) or more classes, including common and preferred stock, any of which may be stock without par value and to issue the same, all as provided by title 48, chapter 16, pertaining to ordinary domestic corporations, which sections are declared to extend to corporations formed by the consolidation of two (2) or more railroad corporations; and any such corporation, heretofore so formed under the laws of this state, may avail itself of the powers and privileges hereby conferred by amendment or amendments to the charter of incorporation of such corporation, in the manner and by the means as now provided by law, or to the agreement of consolidation, setting forth the maximum number of shares of stock with nominal or par value and the maximum number of shares without nominal or par value that the corporation is authorized to have outstanding at any time, the classes, with the distinguishing characteristics of each, if any, into which the same are divided, and the nominal or par value of shares of stock other than shares which it is stated are to have no nominal or par value;
- (5)
Issue bonds and dispose of same in such form, and denomination, and bearing such interest, as the board of directors may determine, and to secure the payment thereof by mortgage of every and all the property and franchises of the consolidated company, and of the companies from which it was formed; and
- (6)
Do all other acts and things which the companies so consolidating, or either of them, might have done previous to such consolidation.
§ 65-9-108. Privileges and exemption from taxation not transferred.
-
No franchise, right, power, immunity, or exemption not granted at the time of consolidation by the laws of this state to the railway companies which may form part of such consolidated company shall be given to, transferred to, or conferred upon any such consolidated company, or company or person operating such consolidation of railroads as provided for in this chapter or in any other law of this state; and no exemption from taxation of railroad property and franchises, and capital stock therein, contained in railway charters or other railway laws of this state, shall be transferred to, or conferred upon, such consolidated company, or the property and franchises and capital stock therein, of such consolidation of railroads, or of the property appertaining to and used in the operation of such railroads.
§ 65-9-109. Consolidation of proposed roads.
- (a)
It is lawful for any railroad corporation, existing in this state under a general law, that now has under construction, or proposes to construct and operate and maintain, a railroad for the transportation as common carrier of persons and freights, to consolidate with any other railroad corporation that has under construction, or proposes to construct and operate and maintain, another such railroad for the transportation of persons and freights.
- (b)
The consolidation provided for in subsection (a) shall not have effect until the terms and conditions of the agreement shall have been approved by a majority of the stockholders of each of the consolidating companies at a regular annual meeting, or at a called meeting called for that purpose.
- (c)
This section shall not apply to corporations whose proposed railroad line or lines shall run parallel to each other, or in any way compete with each other for the transportation of persons and freights from or to the same points, it being the intention to apply this section, and extend the privileges granted, to such corporations as have, or may have, under construction, or propose to construct, such railroad lines as, when consolidated, will form one (1) continuous line, or one will be but an extension of another or others.
- (d)
This section shall apply to railroads under construction, or proposed to be constructed, which, when completed, are to be connected, and form one (1) continuous line in this or other states; provided, that the part of the road so consolidated lying in this state shall be subject to the jurisdiction of the state in its legislative and judicial departments to the same extent as if no such consolidation had been made.
Chapter 10 Liens on Railroad Property
Part 1 General Provisions
§ 65-10-101. Lien of contractors.
-
Where any railroad company contracts with any person for the grading of its roadway, the construction or repair of its culverts, bridges, and masonry, the furnishing of cross-ties, the laying of its track, the erection of its depots, platforms, wood or water stations, section houses, machine shops, or other buildings, or for the delivery of material for any of these purposes, or for engineering or superintendence, there shall be a lien upon such railroad, its franchise and property, in favor of the person with whom the railroad company contracts for the performance of the work or the delivery of the materials, to the amount of the debt contracted for such performance or delivery.
§ 65-10-102. Duration of contractors' lien.
-
The lien shall continue in force for six (6) months after the performance of the work or the delivery of the material, and until the termination of any suit commenced within the time for its enforcement.
§ 65-10-103. Enforcement of contractors' lien.
-
This lien may be enforced by a suit against the railroad company in the circuit or chancery court of the county where the work, or some part thereof, was done, or the material, or some part thereof, was delivered.
§ 65-10-104. Pleadings.
-
The pleading of the plaintiff or complainant shall set out, with reasonable certainty, the work done or the materials furnished, the amount of indebtedness claimed therefor, and the nature and the substance of the contract, and such suit shall be docketed and conducted as other suits in the court.
§ 65-10-105. Lien of subcontractors against contractor.
-
When any principal contractor, by which is meant one who contracts directly with the railroad companies, shall refuse to pay any subcontractor, mechanic, laborer, or other person employed by the principal contractor for the performance of any of such work or the delivery of materials for the purposes provided for in § 65-10-101, such subcontractor, mechanic, laborer, or other person so employed by the principal contractor may elect to give notice, in writing, to the railroad company, setting out the work done or material furnished, and the amount claimed therefor, and, thereupon, the amount that may be due or owing from the railroad company to the principal contractor, not exceeding the sum claimed, shall be bound and liable, in the hands of the railroad company, for the payment of the amount so claimed, and shall constitute a first lien in favor of the claimant, superior to all other liens upon the company's railroad, and shall continue in force for a period of ninety (90) days from the date of service of such notice, and until the termination of any suit commenced within that time to enforce it.
§ 65-10-106. Payment into court by railroad.
-
If, after notice provided for in § 65-10-105, the principal contractor shall bring suit against the railroad company, the latter may relieve itself by paying into court the amount so claimed, and the person giving such notice shall be summoned to contest the matter with the principal contractor, and such judgment be rendered thereon as the right may appear.
§ 65-10-107. Enforcement of lien against contractor.
-
The claim provided for in § 65-10-105 may be enforced against the railroad company, as garnishee, and the principal contractor, as debtor, in such court or before any judge of the court of general sessions of the county having jurisdiction of the amount claimed.
§ 65-10-108. Lien of laborer or materialman against subcontractor.
-
If any subcontractor refuses to pay any mechanic, laborer, or other person employed by such contractor, for the performance of any of the work, or the delivery of material for the purposes provided for in § 65-10-101, such mechanic, laborer, or other person so employed by the subcontractor may elect to give notice, in writing, to the principal contractor, setting out the work done or the material furnished, and the amount claimed therefor; and thereupon the amount that may be due or owing from the principal contractor to the subcontractor, not exceeding the amount of the claim, shall be bound and liable in the hands of the principal contractor, for the amount so claimed, for a period of ninety (90) days from the date of the service of notice upon the principal contractor, or the principal contractor's agent or attorney, and until the termination of any suit commenced within that time for the collection of such claim.
§ 65-10-109. Enforcement of lien against subcontractor.
-
The notice provided for in § 65-10-105 shall operate as a first lien in favor of the claimant upon the amount that may be due from the principal contractor to the subcontractor, and may be enforced against the principal contractor as garnishee and the subcontractor as debtor.
§ 65-10-110. Payment into court by principal contractor.
-
The principal contractor may, upon receiving the notice provided for in § 65-10-105, be relieved, if sued, by paying the sum claimed into court, which payment into court shall discharge the principal contractor from liability to the subcontractor for the amount so paid into court; and thereupon the subcontractor shall be summoned to answer the demand of the claimant, and such judgment shall be rendered thereon as the right may appear.
§ 65-10-111. Equipment and rolling stock.
- (a)
In any written contract of or for the sale of the railroad equipment or rolling stock, deliverable immediately or subsequently at stipulated periods, by the terms of which the purchase money, in whole or in part, is to be paid in the future, it may be agreed that the title to the property so sold or contracted to be sold shall not pass to or vest in the vendee until the purchase money shall have been fully paid, or that the vendor shall have and retain a lien thereon for the unpaid purchase money, notwithstanding delivery thereof to and possession by the vendee; provided, that the terms of credit for the payment of the purchase money shall not exceed fifteen (15) years from the execution of the contract.
- (b)
In any written contract for the leasing or renting of railroad equipment or rolling stock, it is lawful to stipulate for a conditional sale thereof at the termination of such lease, and to stipulate that the rentals received may, as paid or when paid in full, be applied and treated as purchase money, and that the title of such property shall not vest in such lessee or vendee until the purchase money shall have been paid in full, notwithstanding delivery to and possession by such lessee or vendee, subject, however, to the proviso contained in subsection (a).
- (c)
Every such contract specified in this section shall be good, valid, and effectual, both in law and equity, against all purchasers and creditors; provided, first, the same shall be acknowledged by the vendee or lessee before some officer authorized by law to take acknowledgments of deeds in the form required as to conveyance of real estate; second, such instrument shall be registered in the office of the register of the county in which, at the time of the execution thereof, is situated the principal office of the vendee or lessee in this state; and third, each locomotive engine or car so sold or contracted to be sold or leased as aforementioned shall have the name of the vendor or lessor, or the assignee of such vendor or lessor, plainly placed or marked on each side thereof, or be otherwise marked so as to indicate the ownership thereof.
§ 65-10-112. Priority of judgments for timbers, work, or damages.
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No railroad company shall have power to give or create any mortgage or other kind of lien on its railway property in this state, which shall be valid and binding against judgments and decrees, and executions therefrom, for timbers furnished and work and labor done on, or for damages done to persons and property in the operation of its railroad in this state.
Part 2 Subcontractor's Lien Against Railroad
§ 65-10-201. Direct lien against railroad authorized.
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Every subcontractor, laborer, materialman, or other person who performs any part of the work in grading any railroad company's roadway, or who constructs or aids in the construction or repairs of its culverts and bridges, or furnishes cross-ties or masonry or bridge timbers for the same, which is used in the building and construction of such railroad, its bridges and culverts, or who lays or aids in the laying of its track, building of its bridges, the erection of its depots, platforms, wood or water stations, section houses, machine shops, or other buildings, or for the delivery of material for any of these purposes, or for any engineering or superintendence, or who performs any valuable service, manual or professional, by which any such railroad company receives a benefit, all and every such person or persons at election shall have a direct lien on such railroad, its franchises and property, for the value of such work and labor done or material furnished or services rendered as set out and specified, in as full and ample a manner as is provided by § 65-10-101, for persons contracting directly with such railroad company for any such work and labor done or for materials furnished.
§ 65-10-202. Notice to secure lien.
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To secure this direct lien, such subcontractor, laborer, materialman, or other person rendering the labor or service, shall, within ninety (90) days after such work and labor is done or completed, or such materials are furnished, or such services are rendered, notify, in writing, any such railroad company, or the owners of such railroad, should it or they reside in the state, or its or their agents or attorneys, should it or they be beyond the limit of the state, that the lien is claimed, specifying in the face of the notice the character of the work and labor done or services rendered, or materials furnished, and the value of such labor, services or materials.
§ 65-10-203. Duration of lien.
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Such lien shall continue for the space of one (1) year from the service of the notice, and until the termination of any suit, commenced for the enforcement within one (1) year; and the lien shall have priority over all other liens on such railroad, its property and franchises.
§ 65-10-204. Jurisdiction to enforce lien.
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The liens provided for in § 65-10-201 may be enforced by suit brought against such railroad company in the circuit or chancery court of the county where the work or material, or any part thereof, was done or furnished, or any part of the services was rendered.
§ 65-10-205. Pleadings.
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The declaration or bill, as the case may be, of a plaintiff or complainant shall set out with reasonable certainty, the work done, services rendered, or materials furnished, the amount claimed therefor, the nature and substance of any contract made with such railroad company, or any contractor or construction company, or subcontractor, as the case may be, accompanying such declaration or bill with a copy of the notice, executed as required in § 65-10-202.
§ 65-10-206. Priority of lien.
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No railroad company shall have power to give or create any mortgage or other kind of lien on its railroad, its property or franchises, in this state, which shall be valid and binding against any judgments or decrees, or execution issued thereon, rendered in any of the courts in this state, for the enforcement of any liens provided for in this chapter; nor shall the liens created by § 65-10-201 be hindered, postponed, delayed or defeated by any contract, real or pretended, made by any railroad company with any principal or construction company, real or pretended.
§ 65-10-207. Indemnity bond — Judgment by motion.
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Any such railroad company shall have the right to demand from any principal contractor or construction company an indemnity or refunding bond to protect it in case of the enforcement of the liens created by § 65-10-201; and in case any original contractor or construction company is paid for work done or material furnished, or any part of it, covered by this part, and such original contractor or construction company should fail to pay any subcontractor, laborer, or materialman, for work done or material furnished, as specified in § 65-10-201, then, upon the payment of such subcontractor, laborer, or materialman of the amount due, such railroad company shall have judgment, by motion, for such amount so paid on such bond in court; but any contractor or construction company shall have the right to intervene and contest the claim of such subcontractor, laborer, or materialman claiming to be employed by such contractor or construction company.
Chapter 11 Highway Crossings
§ 65-11-101. Construction and repair.
- (a)
All persons, or corporations, owning or operating a railroad in this state, are required to make and furnish good and sufficient crossings on the public highways crossed by them, and keep such crossings in lawful repair at their own expense.
- (b)
- (1)
Subsection (a) shall not preclude construction, reconstruction, improvement or repair of crossings, through financial participation of the state or local government with a railroad authority established by law, when accomplished by contract with an independent contractor, or when such work will be performed by employees of a local government acting under direct supervision and total control of a railroad authority or its agent.
- (2)
For liability purposes, when employees of a local government are working under the control of a railroad authority, such employees shall not be treated as employees of the local government, but instead shall be treated as employees of the railroad authority exercising control of the employees.
- (c)
- (1)
Notwithstanding subsections (a) or (b) to the contrary, after July 1, 2001, no public railroad grade crossing shall be constructed and no private crossing shall be converted to a public crossing without the entity desiring the crossing or the conversion having first:
- (A)
Submitted the plans for the construction or conversion of the proposed crossing to the department of transportation; and
- (B)
Obtained the department of transportation's approval of those plans. Prior to rendering its final decision, the department of transportation shall submit the plans it proposes to approve to the federal highway administration, the affected local government, and the involved railroad for review and comment. Any entity desiring the construction or conversion of a crossing shall be responsible for all costs associated with constructing or converting such crossing in compliance with the plans approved by the department of transportation. No public railroad grade crossing constructed after July 1, 2001, and no private crossing converted to a public crossing after July 1, 2001, shall be opened to vehicular traffic until such crossing is inspected by the department of transportation to assure that the crossing was constructed or converted in accordance with the approved plans.
- (2)
The department of transportation shall promulgate standards pertaining to the construction or conversion of grade crossings pursuant to this subsection (c) including, but not limited to, appropriate warning devices. The department of transportation shall not approve any plans for construction or conversion of a railroad grade crossing that do not comply with the promulgated standards.
- (3)
The department of transportation shall charge a fee for the review and approval of plans for construction or conversion of railroad crossings and the inspection of the completed crossings. Such fee shall be sufficient to offset the cost to the department of transportation of performing these services. Such fee shall be paid by the party seeking approval of the plans for the crossing.
- (4)
The department of transportation shall promulgate rules and regulations pertaining to the approval of plans for construction or conversion of railroad grade crossings and the inspection of those crossings pursuant to this subsection (c).
- (5)
Upon receipt of an application for approval of plans pursuant to this subsection (c), the department of transportation shall notify the affected railroad and the governmental body having jurisdiction over the proposed location.
- (6)
If a crossing is constructed or converted in violation of this subsection (c), the affected railroad may remove the crossing and recover the cost of such removal from the party that constructed or converted the crossing.
- (7)
- (A)
It is the intent of the general assembly that the standards, rules and regulations promulgated pursuant to this subsection (c) shall not be applied for any reason whatsoever to any railroad crossings established prior to July 1, 2001, except for the sole purpose of evaluating such railroad grade crossings for possible closure.
- (B)
It is the intent of the general assembly that the standards, rules and regulations promulgated by the department of transportation pursuant to this subsection (c) shall take effect on or before March 1, 2002.
§ 65-11-103. Construction, maintenance and repair.
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Every corporation or person operating a line of railroad within the state is required to maintain or construct to a plane with the rails of the railroad and to keep in repair every public road crossing of such railroad for a distance of ten feet (10′) on each side of such railroad track and between the rails thereof. Where superelevated track or tracks or other physical conditions make strict compliance with this section impractical, the plane shall be constructed so as to provide the best vertical alignment under the circumstances with due regard to surface regularity. Nothing in this section is intended to change judicial interpretations of predecessor sections with respect to a railroad's obligation to keep in repair necessary crossing approaches beyond ten feet (10′) on each side of such railroad tracks.
§ 65-11-105. Form of railroad crossing sign.
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The commissioner of transportation or the commissioner's designee, after conducting such hearing as is deemed appropriate, is empowered and directed to determine a standard railroad crossing sign for the state.
§ 65-11-106. Liability for blocking street crossing.
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No member of a railroad train crew shall be held personally guilty of violating a municipal ordinance regulating the blocking of street crossings by trains or cars, on proof that such action was necessary to comply with the orders or instructions of the crew member's employer or its officers; provided, that nothing in this section shall relieve the employer or railway from any responsibility placed upon it by the ordinance.
§ 65-11-107. Elimination of grade crossings over public highways.
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The department of transportation through its commissioner or the commissioner's designee has the power to eliminate grade crossings of any railroad or interurban railway track on any of the main traveled roads designated by the commissioner or the commissioner's designee as included in the general highway plan of the state, whenever, in the discretion of the commissioner or the commissioner's designee, the elimination of any such grade crossing is necessary for the protection of persons traveling on any such highway or any such railroad.
§ 65-11-108. Location and character of substituted crossing.
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When any such grade crossing is ordered to be eliminated, the commissioner of transportation or the commissioner's designee shall determine the location of the crossing to be substituted and the grade thereof, and whether it shall pass over or under the railroad tracks; provided, that on appeal from any such order by the railroad company affected to the chancery court in the judicial district in which the new grade crossing would be located, such chancery court shall have the power to make any change in the order appealed from with regard to the location and grade of the crossing to be constructed which may appear to the court to be necessary to adequately protect the safety of passenger and freight traffic on the railroad; and provided, further, that the appeal must be made within thirty (30) days of the date the order appealed from is certified to the railroad company affected.
§ 65-11-109. Compliance with order to eliminate grade crossing.
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When any such grade crossing shall be ordered to be eliminated as provided, it shall be the duty of the railroad company owning or operating the track at such crossing to comply with the order of the commissioner of transportation or the commissioner's designee within the time specified in such order by preparing and submitting to the commissioner or the commissioner's designee for approval detailed plans and specifications and estimates of cost for the construction of such underpass or overpass and by the construction of the underpass or overpass in accordance with the plans and specifications so approved, including the necessary approaches thereto; provided, that:
- (1)
Any such railroad company may request the commissioner of transportation or the commissioner's designee for an extension of time within which to begin and complete the actual construction of the underpass or overpass required by such order of the commissioner or the commissioner's designee. If the railroad company is dissatisfied with the commissioner's or the commissioner's designee's response to the request for an extension of time, such railroad company may file an appeal to the chancery court in the judicial district in which the grade crossing in question is located; provided that the appeal must be made within thirty (30) days of the date of the adverse response;
- (2)
The detailed plans and specifications and estimates of cost for any such underpass or overpass ordered by the commissioner or the commissioner's designee may be prepared in the discretion of the commissioner or the commissioner's designee by the department of transportation's own engineers, or by engineers employed for the purpose, in which event such plans and specifications and estimates of cost shall be subject to the approval of the railroad company affected;
- (3)
If any such railroad company shall, in obedience to the direction of the commissioner or the commissioner's designee make surveys and prepare estimates and plans, then the commissioner or the commissioner's designee shall within a reasonable time, not exceeding six (6) months, reimburse such railroad or railway for one-half (½) of the expense and cost of such work; and if, after the making and preparation of any such surveys, plans, and estimates of cost by any railroad company under the orders of the commissioner or the commissioner's designee, or any part thereof, the order for the elimination of the grade crossing be revoked by the commissioner or the commissioner's designee, and the elimination of such crossing abandoned, the commissioner or the commissioner's designee shall, within a reasonable time, not exceeding six (6) months from the date of the revocation, reimburse the railroad or railway company for all the actual expense and cost of such work incurred by the company, upon a presentation of an itemized and sworn statement of the expense and cost, the amount thereof to be included as a part of the cost of the highway of which such crossing is a part;
- (4)
Before any railroad company shall be obligated or required to commence and prosecute the actual and physical work of separating any such grade crossing, the commissioner or the commissioner's designee shall have available sufficient funds with which to reimburse the railroad company for that part of the expenses of the separation which is to be paid out of the public funds under this chapter; and the commissioner or the commissioner's designee shall make to the railroad company, prosecuting such work, monthly payments in an amount which shall equal the proportion of the cost and expense which the public is required to pay under this chapter of all that part of the work, including both labor and materials, completed at the date of any monthly payment; and
- (5)
When any grade crossing covered by §§ 65-11-107 and 65-11-108 shall have been ordered to be eliminated, as provided, it shall be the duty of the railroad company upon which such order of the state department of transportation may have been served, in accordance with this chapter, at once to comply with such order, or avail itself of the right of an appeal, as set forth in subdivision (1), within sixty (60) days from the date of the service of the order, and in the event any such railroad company should fail to comply with such order directing the elimination of such grade crossing, or to appeal within sixty (60) days, the commissioner or the commissioner's designee shall have the authority to proceed immediately with the construction of such grade crossing separation, and upon the completion of same to assess one-half (½) of the cost of preparation of plans and estimates and one-half (½) of the cost of the work of construction against the railroad company affected thereby, and all such costs as are assessed in this manner against such railroad company shall be a lien upon the physical properties of such railroad company, which lien shall be prior to any lien then existing against such physical properties, and the amount of such cost may be recovered against such railroad company by a suit brought on behalf of the state by the attorney general and reporter, and the enforcement, in the name of the state, of the lien.
§ 65-11-110. Apportionment of work in constructing underpass or overpass.
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The commissioner of transportation or the commissioner's designee may, by agreement or contract with any railroad company, apportion the work to be done in the construction of any such underpass or overpass between the railroad company and contractors acting under the control and supervision of the commissioner or the commissioner's designee, and contracts for the construction of the portion of such underpass or overpass assumed under such contract or agreement by the commissioner or the commissioner's designee shall be made in the manner and under the same conditions as contracts are made by the commissioner or the commissioner's designee for the construction of other portions of the state highway system as provided by law; provided, that when the commissioner or any of the department of transportation's employees or contractors, or any person acting under the orders of the commissioner or the commissioner's contractors, shall go or be upon the right-of-way of any railroad company, they shall be subject to any reasonable rules and regulations of such railroad company made for the protection of its traffic employees and passengers.
§ 65-11-111. Apportionment of cost of eliminating grade crossing.
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Each railroad company owning or operating the track or tracks at any grade crossing ordered or agreed to be eliminated under this chapter shall bear fifty percent (50%) of the total cost of the elimination of any such grade crossing, the total cost to include the cost of the construction of the underpass or overpass substituted for the grade crossing, of the approaches thereto, of the surveys and preparations of the plans and estimates of cost for such underpass or overpass crossing ordered by the commissioner of transportation or the commissioner's designee, and of any revision of the grade and layout of the railroad tracks directly made necessary by such grade separation, but shall not include the cost of metal surfacing or road pavement required in accomplishing the elimination of any grade crossing; provided, that any disagreement between the commissioner or the commissioner's designee and the railroad company affected with regard to the extent or cost of any such revision of the grade and layout of the railroad tracks directly made necessary by any grade separation, shall be resolved by the commissioner, and the commissioner's decision shall be final. The remaining fifty percent (50%) of the total cost shall be borne out of the public funds as a part of the cost of the highway of which the crossing is a part; provided, that a detailed statement of the expense of all that part of the construction of such underpass or overpass crossing, including the preparation of the detailed plans and specifications, etc., which is conducted by the railroad company, shall be submitted to the commissioner or the commissioner's designee, duly sworn to by some official of the railroad company, having knowledge of the facts; and provided, further, that this provision for the division of cost between the public and the railroad company shall apply only to crossings already in existence or hereafter made, or proposed over railroad tracks in existence at the date of the order for elimination thereof, and shall not apply to any crossing of any highway by any railroad track not in existence at the date of the designation of such highway as a part of the state highway system by the department of transportation.
§ 65-11-112. Maintenance of underpass or overpass.
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When any underpass or overpass crossing is constructed on any state highway, under this chapter, it shall be maintained as follows:
- (1)
The railroad company owning or operating the track at any such crossing shall maintain in good and safe repair at its sole expense all that part of any underpass or overpass and the approaches thereto on its rights-of-way, and also that part of any overpass structure or the approach thereto not supported by a fill, whether on its right-of-way or not, except the surface of the highway; provided, that the flooring of any overpass which supports the surface of the highway or which may constitute the surface of the highway shall be considered as a part of the structure to be maintained by and at the expense of the railroad company; and
- (2)
The commissioner of transportation or the commissioner's designee shall maintain in good and safe repair out of the public funds, any fill, approach to any such crossing not on the right-of-way of the railroad company, and also the entire surface of the highway at all points.
§ 65-11-113. Automatic warning or protective devices.
- (a)
- (1)
Within six (6) months after the occurrence of a fatality resulting from a collision between any railroad engine or train and a vehicle or pedestrian at any unmarked railroad grade crossing, where there are regularly scheduled trains, one hundred (100) or more vehicles cross daily and it is also a regular school bus crossing, and/or upon the order of the commissioner of transportation or the commissioner's designee, the railroad company responsible for maintaining the track and right-of-way at such grade crossing shall install or cause to be installed a railroad crossing marker with automatic flashing signal lights and a bell on either side of the tracks along such street, road or highway crossing such tracks, in such a manner that approaching motorists, riders or pedestrians may be warned of the hazard and alerted to watch for an oncoming train or engine.
- (2)
A railroad company shall have six (6) months from the time of an order of the commissioner or the commissioner's designee in which to install or cause to be installed the automatic warning or protective devices required. If such devices are not installed and operative at the end of this period of time, and the commissioner has not granted an extension based on hardship or act of God, the speed of trains operating within one (1) mile in each direction of such crossing shall be restricted to not more than twenty-five (25) miles per hour. This restriction shall continue until the devices are fully operational.
- (b)
- (1)
The cost of installing such signal devices shall be borne equally by the railroad company, the state of Tennessee, and the county, or the municipality, if such signal devices are installed within the corporate limits or the metropolitan government, where applicable.
- (2)
Payment of the state's share shall be made as reimbursement of the railroad company of one-third (⅓) of the cost of such installation, by warrant of the commissioner of finance and administration upon the state treasury, after inspection of the site and certification by the commissioner of transportation or the commissioner's designee that such signal devices have been installed in compliance with this section; provided, that the railroad company has first submitted to the commissioner of finance and administration a sworn statement of the total costs incurred by the railroad company in installing such signal devices.
- (3)
Payment of the municipality's or county's or metropolitan government's share of the costs shall similarly be made in accordance with the fiscal procedures of such municipality, county, or metropolitan government after receipt of a sworn statement from the railroad company of the total cost of the installations and verification of such installation by the appropriate municipal, county or metropolitan government official.
- (c)
If any county, municipal or metropolitan government fails or refuses to reimburse the railroad company as provided in this section, the commissioner of finance and administration shall cause the necessary amount of money to be withheld from such county, municipal or metropolitan government any amount due such county, municipal or metropolitan government from the proceeds of the state gasoline tax and reimburse the railroad company using such funds otherwise due the county, municipal or metropolitan government. The Tennessee department of transportation shall be prohibited from adopting any rules or regulations which will circumvent the purposes of this section by setting incompatible criteria for determining priorities for the installation of railroad crossing signals.
- (d)
In the event federal funds are available to defray the cost of such installation in whole or in part, the federal rules then applicable shall determine the allocation of the costs of such installation.
- (e)
Any railroad company failing to comply with the requirements of subsections (a)-(d) is subject to a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) for each day of continued violation.
- (f)
The department of transportation is authorized to construct protective or warning devices at or in the vicinity of any railroad crossing of a public highway owned by a county or incorporated city or town, based upon the showing of need resulting from a multidisciplinary study, whenever federal funds are available for such construction. The department of transportation is further authorized to supply a maximum of one percent (1%) of the funds required for such construction provided the county or incorporated city or town in which the construction will be performed complies with the necessary conditions for receipt of the balance of federal matching funds for such construction.
- (g)
Notwithstanding any other law to the contrary, the department of transportation shall construct automatic warning devices at the railroad crossing at Tipton Station Road in southern Knox County.
§ 65-11-115. Installation of warning strips authorized.
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The department of transportation may install warning strips on both approaches of any highway crossing on the system of state highways not protected by automatic warning or protective devices, unless the surface of such approaches is gravel or chip and seal paving.
§ 65-11-116. Competitive bidding — Negotiating labor costs.
- (a)
Notwithstanding any law to the contrary, all contracts to perform maintenance or improvements on railroads which are funded, in whole or in part, with funds administered by the Tennessee department of transportation shall be awarded pursuant to competitive bidding requirements as approved by the department of transportation. This section shall not apply to rail crossings to be signalized following a fatality pursuant to § 65-11-113.
- (b)
In the alternative to subsection (a), all contracts to perform maintenance or improvements on railroads with collective bargaining labor agreements shall allow negotiated labor costs for the labor portion of the contracts. It is the intent of the general assembly that only labor and associated costs shall be reimbursable pursuant to this provision. All other costs associated with the contract, including, but not limited to, materials and equipment, shall be subject to competitive bidding requirements as approved by the department of transportation. All costs associated with such contracts shall be subject to audit by the comptroller of the treasury to ensure that the contracts are performed on a break-even basis and that the state does not reimburse profits to the railroad company involved.
Chapter 12 Operation of Railroads
§ 65-12-101. Payment of fare required.
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If any passenger refuses to pay the required fare, the conductor may put such passenger off the cars at any station or convenient point where the passenger can step on land.
§ 65-12-102. Precautions required for prevention of accidents.
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In order to prevent accidents upon railroads, the following precautions shall be observed:
- (1)
The officials having jurisdiction over every public road crossed by a railroad shall place at each crossing a sign, marked as provided by § 65-11-105. The county legislative body shall appropriate money to defray the expenses of the signs. The failure of any engine driver to blow the whistle or ring the bell at any public crossing so designated by either the railroad company or the public official shall constitute negligence with the effect and all as set forth in § 65-12-103;
- (2)
On approaching every crossing so distinguished, the whistle or bell of the locomotive shall be sounded at the distance of one-fourth (¼) of a mile from the crossing, and at short intervals until the train has passed the crossing;
- (3)
Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident; and
- (4)
It is unlawful for any person operating a railroad to use road engines without having them equipped with an electric light placed on the rear of the engine, tank, or tender, which light shall be a bull's eye lens of not less than four inches (4″) in diameter with a bulb of not less than sixty (60) watts power, so that such road engine can be operated with safety when backing and the light so placed shall be burning while any such engine may be used in any backing movement. Such lights shall be operated at night; and any person violating any of these provisions shall be fined the sum of not less than twenty-five dollars ($25.00), and not more than one hundred dollars ($100), for each offense.
§ 65-12-103. Violation of § 65-12-102 is negligence per se.
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A violation of § 65-12-102 by any railroad company constitutes negligence per se and in the trial of any causes involving § 65-12-102, the burden of proof, the issue of proximate cause, and the issue of contributory negligence shall be tried and be applied in the same manner and with the same effect as in the trial of other negligence actions under the common law in this state.
§ 65-12-104. Full stop at crossings.
- (a)
Every engine or train shall be brought to a full stop before crossing a railroad which intersects at grade the road upon which it runs.
- (b)
When the intersecting roads are under the management of the same company, this section shall not apply to engines and trains run upon the longer road.
- (c)
A violation of this section is a Class C misdemeanor.
- (d)
This section shall not apply where such other railroad is disconnected by interlocking switches placed on both roads, and at a safe distance from, and on each side of, the railroad crossing, such interlocking switches to be according to the present state of the art, and kept in good order and repair.
§ 65-12-105. Track motor cars.
- (a)
Every person, firm or corporation operating or controlling any railroad running through or within this state shall:
- (1)
Provide each of its track motor cars when used during the period from thirty (30) minutes before sunset to thirty (30) minutes after sunrise with a permanently installed or portable electric light of such construction and with such candle power as to render visible at a distance of three hundred feet (300′) in advance of such track motor car any track obstruction, landmark, warning sign or grade crossing and shall also provide each such track motor car when so used with a red light for use on the rear thereof with sufficient candle power as to be visible at a distance of three hundred feet (300′); and
- (2)
Equip each of its track motor cars with a windshield and a device for cleaning rain and snow therefrom so constructed as to be controlled or operated by the operator of such track motor car.
- (b)
It is unlawful for any person, firm or corporation, operating or controlling any railroad running through or within this state, to operate or use any track motor car from thirty (30) minutes before sunset to thirty (30) minutes after sunrise, which is not equipped with lights of candle power and other equipment as provided in this section.
- (c)
Any person, firm or corporation operating or controlling any railroad running through or within this state using or permitting to be used on its line in this state a track motor car in violation of this section commits a Class C misdemeanor. Each day's violation is a separate offense.
§ 65-12-106. Wires strung over railroad tracks.
- (a)
Any person engaged in any business whereby wires are used for the transmission of intelligence or other purposes shall not string any wire or wires across railroad tracks without first having complied with the regulations of the department of transportation, prescribed to prevent accidents from such wires.
- (b)
The department of transportation shall, after hearing all interested persons, prescribe and promulgate regulations for the construction and maintenance of wires across the tracks of railroads for the protection of trains, engines, cars, and the operatives thereof; provided, that the department of transportation's power is limited to regulation and the right to cross railroad tracks must be obtained by such wire-using companies according to law.
- (c)
A violation of this section is a Class C misdemeanor.
- (d)
Any person failing to construct or reconstruct and maintain its wire or wires as provided in this section shall be liable for all damages both to railroad companies and their employees resulting therefrom.
§ 65-12-107. Standard of care required when livestock on tracks.
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Whenever livestock appears on the tracks as an obstruction ahead of a railroad train, it shall be the duty of the engineer, or the person in charge of the operation of the train, to blow the alarm whistle and apply the brakes, in order to prevent, if reasonably possible, the striking of the livestock.
Chapter 14 Terminal Companies
§ 65-14-101. Special powers.
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In addition to the general powers, railroad terminal corporations have the power to acquire, in this or any other state or states, and at such place or places as shall be found expedient, such real estate as may be necessary on which to construct, operate, and maintain passenger stations, comprising passenger depots, office buildings, sheds, and storage yards; and freight stations, comprising freight depots, warehouses, offices, and freight yards, roundhouses, and machine shops; also main and side tracks, switches, crossovers, turnouts, and other terminal railroad facilities, appurtenances, and accommodations suitable, in size, location, and manner of construction, to perform promptly and efficiently the work of receiving, delivering, and transferring all passengers and freight traffic of railroad companies with which it may enter into contracts for the use of its terminal facilities at such place or places. Such corporation has the power, by purchase, lease, or assignment of lease, to acquire and hold, and to lease to others, such real estate as may be necessary for the above mentioned purpose of its incorporation; and it may also acquire such real estate by condemnation, in pursuance of the general law authorizing the condemnation of private property for works of internal improvement.
§ 65-14-102. Right to construct facilities across or along streets and alleys.
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When it may be necessary, in order to enable the corporation to acquire and construct proper railroad terminal facilities in any town or city, or to connect such facilities with the tracks of any railroad company with whom the corporation may have contracted to furnish such facilities, the corporation, with the consent of the proper authorities of such town or city, shall have the right to lay and operate a track or tracks across or along or over or under such of the streets or alleys of such town or city as may be necessary for that purpose; and the corporation may also, with such consent, construct such passenger or freight depots or stations across or along, over or under, any such street or alley when it shall be necessary in order to furnish proper railroad terminal facilities in the town or city. But no street or alley of any town or city shall be obstructed or interfered with until the consent of the proper authorities of the town or city shall have been first obtained.
§ 65-14-103. Authority to acquire, hold and dispose of stock or bonds.
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Such railroad terminal corporation may acquire, hold, and dispose of the capital stock or bonds of railroad companies or of other terminal companies, for the purpose alone of raising money for the acquisition, construction, maintenance, and repair of such passenger and freight depots and stations, and other terminal facilities mentioned in §§ 65-14-101 and 65-14-102, and not for the purpose of speculating in stocks or bonds, or managing or controlling railroads.
§ 65-14-105. Leasing of terminal facilities to railroad companies.
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The corporation may lease to any railroad company or railroad companies its freight or passenger depots or stations, and its other terminal facilities located at any place where the line or lines of the railroad company or companies may terminate, or through which they may pass, and such lease may be upon such terms and for such time as may be agreed upon by the parties.
Chapter 15 Motor Carriers
Part 1 General Provisions
§ 65-15-101. Purpose — Participation in the unified carrier registration system.
- (a)
It is declared that the legislation contained in this part is enacted for the sole purpose of promoting and conserving the interest and convenience of the public by conferring upon the department of revenue and the department of safety the power and authority, and making it the duty of the department of revenue and the department of safety to supervise and regulate the transportation of persons and property by motor vehicle over or upon the public highways of this state, and to supervise and regulate certain businesses closely allied with such motor transportation, so as to:
- (1)
Regulate, foster, promote and preserve proper and economically sound transportation and authorize and permit proper coordination of all transportation facilities;
- (2)
Relieve existing and future undue burdens upon the highways arising by reason of their use by motor vehicles;
- (3)
Protect the welfare and safety of the traveling and shipping public in their use of the highways, and in their contact with the agencies of motor transportation and allied occupations; and
- (4)
Protect the property of the state and its highways from unreasonable, improper or excessive use.
- (b)
It is the intent of the general assembly that this state participate in the unified carrier registration system beginning with the date that it is established by the secretary of the United States department of transportation, in accordance with 49 U.S.C. § 13908. Pursuant to this intent, the commissioner of revenue is authorized to participate in the unified carrier registration plan and agreement established in accordance with 49 U.S.C. § 14504a, and to file on behalf of this state the plan required by 49 U.S.C. § 14504a(e).
- (c)
Notwithstanding any other law to the contrary, on and after the date on which the secretary of the United States department of transportation establishes the unified carrier registration system in accordance with 49 U.S.C. § 13908, no foreign or domestic motor carrier, motor private carrier, leasing company, broker or freight forwarder, as defined in title 49 of the United States Code, shall operate any motor vehicles on the highways of this state without first registering with a base state under the unified carrier registration system and paying all fees required under the federal Unified Carrier Registration Act of 2005, compiled generally throughout title 49 of the United States Code.
- (d)
Notwithstanding any other law to the contrary, on and after the date on which the secretary of the United States department of transportation establishes the unified carrier registration system in accordance with 49 U.S.C. § 13908, the commissioner of revenue shall follow rules governing the unified carrier registration agreement issued under the unified carrier registration plan by its board of directors. The commissioner shall follow rules and collect fee assessments set by the federal secretary of transportation from foreign and domestic motor carriers, motor private carriers, leasing companies, brokers, and freight forwarders, and do all things necessary to enable this state to participate in the federal unified carrier registration agreement pursuant to the federal Unified Carrier Registration Act of 2005.
§ 65-15-102. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Airport limousine” means every vehicle designed and/or constructed to accommodate and transport passengers, not more than twelve (12) in number, exclusive of the driver, having an operating agreement with an airport providing for a fixed passenger fare and a fixed schedule, the principal operations of which airport limousine is confined to areas between the airport and fixed points in municipalities, counties and the suburbs of the same within a forty (40) mile radius of such airport;
- (2)
“Commissioner” means the commissioner of revenue unless otherwise indicated;
- (3)
“Commuter van” means a motor vehicle, except taxicabs or airport limousines, used primarily for hauling not more than fifteen (15) passengers to and from their regular places of employment;
- (4)
“Contract hauler” means any person, firm or corporation engaged in the transportation for compensation or hire of persons and/or property for a particular person or corporation to or from a particular place or places under special or individual agreement or agreements, and not operating as a common carrier and not operating exclusively within the corporate limits of an incorporated city or town, or exclusively within the corporate limits of such city or town and the suburban territory adjacent thereto, except “contract hauler” does not exclude those engaged in the transportation of mobile homes for hire or compensation within an incorporated city or town;
- (5)
“Department” means the department of revenue unless otherwise indicated;
- (6)
“Farm vehicle” means a motor vehicle that is:
- (A)
Controlled and operated by a farmer as a private motor carrier of property;
- (B)
Being used to transport either:
- (i)
Agricultural products, or
- (ii)
Farm machinery, farm supplies, or both, to or from a farm;
- (C)
Not being used in the operation of a for-hire motor carrier;
- (D)
Not carrying hazardous materials of a type or quantity that requires the commercial motor vehicle to be placarded in accordance with 49 CFR 177.823; and
- (E)
Used within one hundred fifty (150) miles of the farmer's farm;
- (7)
“For-hire motor carrier” means a person engaged in the transportation of goods or passengers for compensation;
- (8)
“Household goods” means personal belongings transported from one residence to another by motor carrier;
- (9)
“Limousine” means any motor vehicle except a taxicab or sedan designed or constructed to accommodate and transport passengers for hire, with an extended wheel base and expanded seating capacity designed for the transportation of persons. The vehicle shall have additional rear seating capacity, area, and comforts; and shall be designed to transport not more than fourteen (14) persons, exclusive of the chauffeur/driver, and the principal operation of such vehicle is confined to the area within the corporate limits of cities and suburban territory adjacent thereto;
- (10)
“Mobile home” means any factory assembled structure equipped with the necessary service connections and made so as to be readily movable as a unit on its “own running gear and designed to be used as a dwelling unit” without a permanent foundation which can consist of one (1) or more components that can be retracted for towing purposes and subsequently expanded for additional capacity; or of two (2) or more units separately towable but designed to be joined into one (1) integral unit;
- (11)
“Motor carrier” means any person, firm, partnership, association, joint stock company, corporation, lessee, trustee, or receiver appointed by any court whatsoever, operating any motor vehicle with or without semitrailers attached, upon any public highway for the transportation of persons or property, or both, or for providing or furnishing such transportation service, for hire as a common carrier;
- (12)
“Motor freight broker” means any person, firm, partnership, association or corporation engaged in contracting for the transportation of property through the agency of any motor carrier, contract hauler, or other carrier by motor vehicle, where the person so contracting with the shipper or consignor, for such transportation, is not the owner or operator of the agency of motor vehicle transportation used in the actual transportation, but who arranges for such actual transportation by others, pursuant to regular or special contract had with such actual transporting agent;
- (13)
- (A)
“Motor transportation agent” means any person, firm, partnership, association or corporation engaged, as principal or agent, in the selling, offering for sale, negotiation for, soliciting by advertisement or otherwise, arranging as an intermediary or otherwise, or that holds such person or firm out as one who sells, provides, furnishes or arranges for, transportation for any person or persons over the highways of this state upon a share-expense plan or for fixed compensation, either in the private motor vehicles of persons not motor carriers or contract haulers not holding certificates of convenience and necessity, interstate permit, or contract hauler's permit permitting the transportation of passengers over such highways between the points for which such transportation is sold or provided;
- (B)
“Motor transportation agent” does not apply to the transportation of children to and from school;
- (14)
“Motor vehicle” means any automobile, automobile truck, motor bus, truck bus or any other self-propelled vehicle not operated or driven upon fixed rails or tracks;
- (15)
“Private carrier” means a person who provides transportation of property or passengers by a commercial motor vehicle and who is not a for-hire motor carrier;
- (16)
“Public highway” means every public street, alley, road, highway, or thoroughfare of every kind in this state used by the public, whether actually dedicated to the public and accepted by the proper authorities or otherwise;
- (17)
“Sedan” means any motor vehicle except a limousine or taxicab designed or constructed to accommodate and transport passengers for hire that does not have an extended wheel base or an expanded seating capacity designed for the transportation of persons. The vehicle has no additional rear seating capacity, area or comforts; is designed to transport not more than five (5) passengers, exclusive of the chauffeur/driver, the principal operation of which is confined to the area within the corporate limits of cities and suburban territory adjacent thereto, and is not operated on a fixed route or schedule;
- (18)
“Shuttle” means any motor vehicle designed or constructed to accommodate and transport not more than fifteen (15) passengers for hire, exclusive of the driver, the principal operation of which is confined to the area within the corporate limits of cities and suburban territory adjacent thereto, and is operated on a fixed route or schedule; and
- (19)
“Taxicab” means any motor vehicle except a limousine or sedan designed or constructed to accommodate and transport not more than nine (9) passengers for hire, exclusive of the driver, the principal operation of which is confined to the area within the corporate limits of cities and suburban territory adjacent thereto, and is not operated on a fixed route or schedule.
§ 65-15-103. Exempt vehicles — Applicability.
- (a)
The provisions of this part, except those providing for safety inspection and safety rules and regulations for motor vehicles provided for in § 65-15-111, do not apply to any motor vehicles, while used exclusively:
- (1)
Airport limousines — for carrying persons and/or property between airport terminals and hotels, motels, and other designated points in any municipality, county or the suburb of the same served by such airport;
- (2)
Ambulances and hearses — in funerals or as ambulances;
- (3)
Charter vehicles — to any motor vehicle making casual trips on call or under contract, solicited by the party served, for the carrying of passengers; provided, that on such casual trips no operator shall be allowed to pick up any passengers along the route, nor be permitted on the return trip to carry any passengers other than those included in the original or outbound trip;
- (4)
Commuter vans — to any motor vehicle, except taxicabs or airport limousines, used primarily for hauling fifteen (15) or fewer passengers to and from their regular places of employment, or to the organizers, sponsors or promoters of such vehicles under [former] § 65-15-115 [repealed];
- (5)
Intracity transfer service — in-city transfer service by way of transporting property for-hire between points in any one (1) town, city or suburbs thereof, not over or along any definite, fixed, announced, or advertised routes between any points in such one (1) city, town or suburbs thereof; provided, that this exemption does not apply to motor vehicles transporting petroleum products and other hazardous materials, in bulk, in tank trucks or trailers, for-hire, other than those owned or operated by any person, firm or corporation engaged on May 17, 1971, in providing such transport services, unless they are exempt under subdivision (a)(7). No funds received by the department under this section may be used for purposes of funding any retirement benefit for any person, to secure actuarial soundness, nor to improve any retirement plan or benefit; and provided further, that this exemption shall not apply to contract haulers engaged in the transportation of mobile homes; provided, that the contract haulers performing these services as prescribed by this chapter be given thirty (30) days to apply to the department for the authority to continue operation;
- (6)
Limousines — in the limousine service;
- (7)
Milk and other perishable farm products and livestock vehicles — for transporting or delivering milk or milk products from the producer thereof to the purchaser from the producer, or to any motor vehicle used casually, by the owner, to convey perishable farm products or livestock to market;
- (8)
Newspaper delivery vehicles — to any motor vehicle used primarily in the transportation of newspapers, or to any motor vehicle used casually, by the owner, to deliver newspapers while going to or from work, or to any commercial motor vehicle whose commercial use is not now subject to regulation by the department and whose use to deliver newspapers is incidental to its primary use;
- (9)
Passenger hauling demonstration projects — to any motor vehicle operated pursuant to department approved demonstration projects conducted by state, local municipalities, counties, or metropolitan governments when such demonstration projects are of limited duration and will meet transportation needs in the hauling of passengers; provided, that the department of safety may inspect such vehicles for purposes of safety, and such vehicles shall be subject to § 65-15-111; provided, that the department of safety may establish a minimum level of insurance coverage to be required of all vehicles operating pursuant to this subdivision (a)(9). Vehicles operating pursuant to this subdivision (a)(9) are subject to the inspection, control, and supervision fee as provided in § 65-15-112. This subdivision (a)(9) does not apply in any county having a metropolitan form of government;
- (10)
Railroad limousines and dray vehicles — for carrying persons and/or property between railroad depots and any points in any city, town or suburb thereof, in or adjacent to which such depot is located;
- (11)
School and church vehicles — for transporting persons to or from school, Sunday school, church or religious services of any kind, upon special prearranged trips or excursions under the auspices of any religious or charitable organization;
- (12)
Seasonal transportation of fertilizer for farm or dairy purposes — to any motor vehicle used on a seasonal basis to transport fertilizer to local dealers, farms, gins, or dairies for farm or dairy purposes; provided, that the department may inspect such vehicles for purposes of safety, and such vehicles shall be subject to § 65-15-111;
- (13)
Sedans — in the sedan service;
- (14)
Shuttles — in the shuttle service;
- (15)
Taxicabs — in taxicab service;
- (16)
Transportation of hot mix asphalt — to any motor vehicle while used in the transportation of hot mix asphalt when the owner, lessee or bailee of the vehicle is legally and regularly engaged in the business of selling or distributing such hot mix asphalt transported on such vehicle; provided, that the department of safety may inspect such motor vehicles for purpose of safety and such vehicles shall be subject to § 65-15-111; and provided further, that the department of safety is empowered to enforce this subdivision (a)(16) with respect to safety as if such vehicle were a common carrier;
- (17)
Vehicles hauling ore, sand, gravel and other unprocessed products of the soil — to any motor vehicles used in the transportation of coal produced from mines located within this state, or products of the soil in unprocessed state, including, but not limited to, sand, gravel, chert or phosphate muck;
- (18)
Vehicles hauling recovered materials — to any motor vehicle while used in the transportation of recovered materials from the point of generation to a processing facility or to the end-user of these materials or from the processing facility to the end-user of these materials; provided, that such vehicles shall be subject to the provisions of § 65-15-111 pertaining to safety regulation for motor vehicles. “Recovered materials” means those materials which have been diverted or removed from the solid waste stream for sale, use, reuse or recycling. “Recovered materials” does not include any materials being transported to a landfill; or
- (19)
Vehicles used in selling or distribution of petroleum products — to any motor vehicle while used in the transportation of petroleum products when the owner, lessee or bailee of the vehicle is legally and regularly engaged in the business of selling or distributing such petroleum products transported on such vehicle; provided, that the department of safety may inspect such motor vehicles for purposes of safety and such vehicles shall be subject to § 65-15-111; and provided further, that the rate charged by any person hauling petroleum products as excluded by this subdivision (a)(19) shall be no less than the rates set by the department for hauling petroleum products by common carriers; and provided further, that the department of safety is empowered to enforce the provisions of this subdivision (a)(19) with respect to safety and rates as if such vehicle was a common carrier including its powers under former § 65-15-121 [repealed].
- (b)
In addition to the provisions of subsection (a), the provisions of this part, except those providing for safety inspection and safety rules and regulations for motor vehicles transporting hazardous materials, do not apply to contract haulers or motor vehicles of contract haulers, while used exclusively for transporting liquid asphalt or any product containing liquid asphalt as one (1) of its ingredients; provided, that the department of safety may inspect such motor vehicles for purposes of safety rules and regulations under § 65-15-111.
§ 65-15-104. Sight-seeing buses not exempt.
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Motor vehicles, for which passengers are solicited, and which are operated to and from points of interest in or near any city, and which, therefore, perform the same service as a sight-seeing bus, are not excepted from this part, and this part shall apply to such motor vehicles, whether the same be called “buses” or “for hire cars” or by any other name.
§ 65-15-105. Interstate commerce and government business excepted.
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Neither this part nor any provision thereof shall be construed to regulate or apply to commerce with foreign nations, or commerce among the several states of the United States, or to business conducted for the government of the United States, except insofar as the same may be permitted under the Constitution of the United States and the acts of congress.
§ 65-15-106. Powers of department.
- (a)
The department of safety is vested with the power and authority, and it is its duty, to license, supervise and regulate every motor carrier in the state and promulgate rules and regulations pertaining thereto.
- (b)
- (1)
The department of safety shall designate enforcement officers charged with the duty of policing and enforcing this part, and such enforcement officers have authority to make arrests for violation of this part, orders, decisions, rules and regulations of the department of safety, or any part or portion thereof, and to serve any notice, order or subpoena issued by any court, the department of safety, its commissioner or any employee authorized to issue same, and to this end shall have full authority throughout the state.
- (2)
Such enforcement officers while enforcing and policing this part also have authority to make arrests for any violations of the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4, and for violations of title 55, chapter 10, part 4, and § 55-50-408, when such violations are committed by a driver or an occupant of a vehicle regulated under this part.
- (3)
Such enforcement officers, upon reasonable belief that any motor vehicle is being operated in violation of this part, shall be authorized to require the driver thereof to:
- (A)
Stop and exhibit the registration certificate issued for such vehicle;
- (B)
Submit to such enforcement officer for inspection any and all bills of lading, waybills, invoices or other evidences of the character of the lading being transported in such vehicle; and
- (C)
Permit such officer to inspect the contents of such vehicle for the purpose of comparing same with bills of lading, waybills, invoices or other evidence of ownership or of transportation for compensation.
- (4)
It is the further duty of such enforcement officers to impound any books, papers, bills of lading, waybills and invoices which would indicate the transportation service being performed is in violation of this part, subject to the further orders of the court having jurisdiction over the alleged violation.
- (5)
Such enforcement officers shall also have the above authority with respect to anyone who procures, aids or abets any motor carrier in violation of this part or in such carrier's failure to obey, observe or comply with this part, or any such order, decision, rule, regulation, direction or requirement of the department of safety, or any part or portion thereof.
- (6)
In a case in which a penalty is not otherwise provided for in this part, such person commits a Class B misdemeanor and, upon conviction, shall be punished as provided for in § 65-15-113.
- (c)
- (1)
It is lawful for enforcement officers of the department of safety, regularly employed by the department of safety, acting through its director, to wear or carry pistols or other firearms at such times as they are in uniform or on active duty, in like manner as city or metropolitan police officers, wildlife resources agency officers and Tennessee highway patrol officers.
- (2)
Department of safety enforcement officers may charge any person who is a driver, operator or occupant of a vehicle subject to department of safety jurisdiction pursuant to this chapter, and who has been charged with an offense involving the consumption or possession of alcoholic beverages, controlled substances or controlled substance analogues with a violation of § 39-17-1307, for the unlawful carrying or possession of a weapon. Any weapon possessed in violation of § 39-17-1307, may be confiscated by the arresting officer in accordance with § 39-17-1317. Weapons confiscated pursuant to this subsection (c), and declared contraband by the court of record exercising criminal jurisdiction, may be disposed of upon petition of the department of safety by the same procedure provided for weapon confiscations of the department of safety in § 39-17-1317.
- (3)
Those enforcement officers authorized to carry firearms while on duty may retain after twenty-five (25) years of honorable service and upon retirement from the department of safety their service weapon in recognition of their many years of good and faithful service.
- (d)
Except as inconsistent with the express terms and provisions of this part, the Tennessee public utility commission has the same power as to and over rates, practices, regulation, control and operation of motor vehicles, to which this part is applicable, as the department of safety now has under present law, with reference to railroads and utilities; provided, that nothing in this subsection (d) is intended to impose regulations upon contract carriers except insofar as the nature and character of their business so justify under the constitutions of Tennessee and the United States and the valid laws made pursuant thereto.
- (e)
The department is authorized to apply for federal funds that may be available and to conduct any new entrant audits and review and compliance inspections that may be required by regulations promulgated by the United States department of transportation.
§ 65-15-107. Interstate permits.
- (a)
It is unlawful for any motor carrier, contract hauler, or exempt for-hire motor carrier to use any of the public highways of this state for the transportation of persons or property, or both, in interstate or intrastate commerce, without first having received a permit from the department or from any state designated as the base jurisdiction state for that carrier pursuant to 49 U.S.C. § 11506 [omitted] as amended by § 4005 of the Intermodal Surface Transportation Efficiency Act of 1991. Violators are subject to penalty pursuant to § 65-15-113.
- (b)
Such interstate permits, when issued, shall be subject to such rules and regulations as the department may thereafter legally prescribe.
§ 65-15-108. Void and unenforceable covenants, promises, agreements or understandings concerning motor carrier transportation contracts.
- (a)
A covenant, promise, agreement or understanding in or in connection with or collateral to a motor carrier transportation contract purporting to indemnify the promisee against liability for damages resulting from the negligence of the promisee, the promisee's agents or employees, or indemnitee, is against public policy and is void and unenforceable.
- (b)
Subsection (a) shall not apply to the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Association of North America or other agreements providing for the interchange, use or possession of intermodal chassis, containers or other intermodal equipment.
§ 65-15-109. Applications for permits.
- (a)
The department shall adopt rules prescribing the manner and form in which motor carriers and/or contract haulers shall apply for intrastate or interstate permits required by this part. Every application shall be in writing and accompanied by the payment of fifty dollars ($50.00).
- (b)
Applications filed for the registration of interstate authority by motor carriers engaged in interstate commerce shall be made in writing and be on such forms as required by the rules and regulations of the department. The application shall contain, among other things:
- (1)
A copy of the interstate commerce commission certificate or permit for which application is made;
- (2)
An equipment list registering and identifying vehicles used in the operation under such interstate commerce commission certificate or permit;
- (3)
Evidence of currently effective insurance or qualifications as a self-insurer under the rules and regulations of the department; and
- (4)
A filing of designation of a local agent for service of process;
-
provided, that the fee for additional authority shall not be refundable, except after a request by the carrier within six (6) months of the payment of such fee.
- (c)
- (1)
The department shall by rule promulgate the requirements for motor carriers, contract haulers, and exempt for-hire motor carriers operating on an interstate or intrastate basis, permanently or temporarily, to register their vehicles pursuant to 49 U.S.C. § 11506 [omitted] as amended by § 4005 of the Intermodal Surface Transportation Efficiency Act of 1991. Under this single state registration plan, carriers registering with Tennessee shall file a written application annually on forms provided by the department. The application shall be accompanied by a fee of eight dollars ($8.00) for every motor vehicle to be operated by the above-mentioned carriers or contract haulers over the public highways of Tennessee in the calendar year for which the permit is issued. The application shall also be accompanied by the fees charged for every vehicle to be operated in those states participating in the single state registration plan for the same time period. The department shall remit those fees collected on behalf of the other states as provided under relevant interstate commerce commission rules. The application for single state registration shall contain among other things:
- (A)
Evidence of the interstate commerce commission authority or permit under which the motor carrier operates in interstate commerce, where applicable;
- (B)
Equipment list identifying vehicles to be operated in Tennessee and other participating states as permitted by interstate commerce commission rule;
- (C)
Satisfactory proof of currently effective insurance as determined by the department;
- (D)
Designation of a local agent for service of process; and
- (E)
The accompanying fees and all information required on vehicles to be operated in other participating states.
- (2)
All rules to implement single state registration of motor vehicles shall be in conformity with the rules of the interstate commerce commission, 49 C.F.R. Part 1023.
§ 65-15-110. Liability insurance requirements. [For contingent operation, see the Compiler's Notes.]
- (a)
No interstate or intrastate permit shall be issued by the department until such carrier shall have filed with the department, and the department shall have approved, a policy of liability insurance or bond and also, in the case of intrastate common carriers, a policy of cargo or passenger insurance in some reliable insurance company or association or other insurer satisfactory to the department and authorized to transact insurance business in this state, in such amount and such forms and upon such conditions as the department may deem necessary to adequately protect the interests of the public in the use of the public highway and with due regard to the number of persons and the amount of property to be transported, which liability or cargo insurance shall bind the obligors thereunder to make compensation for injury to persons, and loss of or damage to property resulting from the negligent operation by such motor carrier or contract hauler. No other or additional policies of insurance, bonds, or licenses than those prescribed herein shall be required of any motor carrier or contract hauler to which this chapter applies by any city, town or other subdivision of this state; provided, that this section shall not be so construed as to interfere with the right of any county, city or other civil subdivision of this state, to levy and collect any lawful tax to which such motor carrier or contract hauler is liable under the general revenue laws of this state within such county, state or other civil subdivision.
- (b) [For contingent operation, see the Compiler's notes.]
Any operator of a whitewater rafting outfitting company or other paddle and floating water activity operator who provides services to consumers on intrastate waterways and who transports customers distances not to exceed twenty-five (25) miles by motor carrier shall have filed with the department, and the department shall have approved, a policy of liability insurance in the amount of not less than one million dollars ($1,000,000). Such policy of insurance shall meet the requirements of subsection (a) and shall bind the obligors thereunder to make compensation for injury to persons and for loss of or damage to property resulting from the negligent operation by such operator.
§ 65-15-111. Safety rules and regulations — Inspection of vehicles, etc.
- (a)
The department of safety, by the authority vested in it by this part to license, supervise and regulate certain motor vehicles operating on the highways of Tennessee, shall periodically promulgate such safety rules and regulations as the department of safety deems necessary to govern and control the safety operations and safe use of equipment by the following:
- (1)
Each holder of an interstate or intrastate permit;
- (2)
Any individual, corporation or partnership operating a motor vehicle in commerce which has a gross vehicle weight rating or gross combination weight rating of ten thousand and one (10,001) or more pounds, or the motor vehicle is designed to transport more than fifteen (15) passengers, including the driver; and
- (3)
Any individual, corporation or partnership operating a motor vehicle of any gross vehicle weight transporting hazardous material. The safety rules and regulations described in this chapter do not apply to any motor vehicle transporting nonhazardous materials for farm purposes which does not travel outside the boundaries of this state.
- (b)
The department of safety may inspect these motor vehicles for the purpose of safety.
- (c)
This section applies only to the safety inspection of such vehicles, and does not require the department to issue certificates of convenience and necessity, contract hauler's permits or interstate permits to motor vehicles operating under this section.
- (d)
Vehicles, trailers, semi-trailers and pole trailers subject to this section are placed under the jurisdiction of the department of safety's statutes, rules and regulations pertaining to safety, and every officer, agent or employee of any corporation or any other person who violates or fails to comply with this section or who procures, aids or abets in the violation of this section shall be subject to the penalties provided in § 65-15-113.
- (e)
- (1)
The department of safety shall inspect and certify all homemade or materially reconstructed trailers, semi-trailers, and pole trailers which are required to be titled or registered in accordance with title 55, chapters 1-6, for compliance with all applicable safety rules and regulations promulgated by the department of safety.
- (2)
The fee for such inspection to be collected by the department of safety is twenty-five dollars ($25.00) per trailer inspected. The department of safety may promulgate rules and regulations to implement this subsection (e).
- (f)
Notwithstanding the provisions of this chapter to the contrary, 49 CFR parts 390-397, shall not apply to commercial motor vehicles operated in intrastate commerce to transport property that have a gross vehicle weight rating or gross combination weight rating of twenty-six thousand pounds (26,000 lbs.) or less; provided, that a Tennessee highway patrol officer with Level I training, having probable cause to believe such a commercial motor vehicle is being operated with unsafe loading or mechanical conditions, may stop such motor vehicle for inspection. If such motor vehicle is determined to be operated with unsafe loading or mechanical conditions, no citation may be issued, however, the officer shall implement out-of-service requirements as set forth in the commercial vehicle safety alliance out-of-service criteria. The exception provided by this subsection (f) shall not apply to vehicles transporting hazardous materials required to be placarded, or to vehicles designed to transport sixteen (16) or more passengers, including the driver, as defined in title 49 of the CFR.
§ 65-15-112. Inspection, control, and supervision fee — Motor vehicle account.
- (a)
- (1)
Beginning January 1, 1994, for that calendar year and each calendar year thereafter, every freight motor vehicle required to register with the state pursuant to § 55-4-113, with the exception of those vehicles described in § 55-4-113(a)(3), shall pay a safety inspection fee. This safety inspection fee shall provide a means for the state to exercise its police powers in order to protect the highways, and to promote the safety of the traveling public by the regulation of the use of and safe operation of such vehicles over the highways. This safety inspection fee shall be an amount equal to two and one-half percent (2.5%) of the vehicle registration fees prescribed in § 55-4-113, for those freight motor vehicles subject to the fee. This fee to the department of safety shall be paid in addition to all property, franchise, license, or other taxes, fees and charges assessed or charged by law against the vehicle.
- (2)
This safety inspection fee shall be paid annually as a part of the registration taxes due to the state for such freight motor vehicles. This fee shall be remitted to the department of revenue and shall be paid over to the department of safety for use in accordance with this section.
- (b)
It is the duty of the department of safety to keep separate account of the safety inspection fees paid over to it by the department of revenue and to segregate them in an account to be known as the “motor vehicle account.” Any funds remaining in the motor vehicle account at the end of the year shall be carried over from year to year and expended only for the purposes specified in this part.
- (c)
The department of revenue shall not issue or renew a certificate of registration or permit for any freight motor vehicle that fails to pay the annual safety inspection fee.
- (d)
A lien is declared, and shall exist, upon all the property of each such certificate or permit holder, which shall be used upon the highways of this state, and upon which such fees shall be properly payable, for the payment of the fees prescribed by this part, together with all penalties accruing hereunder, which lien shall be superior to all other liens, except federal, state, county and municipal taxes.
- (e)
All fines levied by the department of safety as well as all fees and penalties collected by the department of safety under this part shall be paid into the state treasury to the credit of the motor vehicle account, and used to defray the expenses incurred by the department in the enforcement of this part.
§ 65-15-113. Penalties for violations.
- (a)
Notwithstanding chapter 591, § 113 of the Public Acts of 1989, every officer, agent or employee of any corporation, or any other person who knowingly violates or fails to comply with or who procures, aids or abets in the violation of this part, commits a Class B misdemeanor, and upon conviction thereof for the first offense shall be punished by a fine of not less than twenty-five dollars ($25.00), for the second offense shall be punished by a fine of not less than fifty dollars ($50.00), and for the third offense be punished by a fine not less than one hundred dollars ($100). Each day any such provision is violated is a separate offense.
- (b)
Every officer, agent or employee of any corporation and every other person who knowingly fails to obey, observe or comply with any order, decision, rule, regulation, direction, demand or requirement of the department made in pursuance of the power and authority conferred by this part, commits a Class B misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars ($500) or by imprisonment not to exceed six (6) months, or both, in the discretion of the court. Each day any such order, decision, rule or regulation, etc., of the department of safety is violated, is a separate offense. The fact that there may have been a prosecution for the violation of any such order, decision, rule or regulation, etc., of the department of safety under this section does not operate to prevent or limit the commissioner of safety from requesting that the commissioner of revenue suspend or revoke the interstate permit or intrastate permit, or both, as provided in this part and, upon receipt of such a request from the commissioner of safety, the commissioner of revenue shall immediately make the suspension or revocation requested.
§ 65-15-114. Transporting nuclear fuel.
- (a)
“Spent nuclear fuel” means as defined in 42 U.S.C. § 10101(12) and (23) and the following:
- (1)
The highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations;
- (2)
Other highly radioactive material that is designated by the nuclear regulatory commission by rule for permanent isolation; and
- (3)
Fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.
- (b)
No person, firm, or corporation shall cause to be shipped or shall arrange for transportation upon the highways or railways of this state any spent nuclear fuel unless such person, firm or corporation notifies the emergency management agency which shall notify the department of safety (hereinafter referred to as the “department”) in advance of any transportation of spent nuclear fuel through or within the state. In the case of spent nuclear fuel for which by law the United States nuclear regulatory commission notifies the governor, the governor or the governor's designee shall within twenty-four (24) hours after receipt of such notification, notify the department of the transportation of such materials. The notification of such shipments and all facts and circumstances relevant thereto shall be kept confidential and shall not be disclosed to the public in the interest of national security.
- (c)
- (1)
A fee shall be assessed for all nuclear spent fuel shipments at the rate of one thousand dollars ($1,000) per cask for truck shipments, and two thousand dollars ($2,000) per cask for rail shipments received at or departing from any nuclear power station or away from a reactor spent fuel storage facility located in Tennessee. The owner of such facility shall pay this fee. The same fees prescribed by this subsection (c) shall apply to all spent nuclear fuel shipments traversing this state and the shipper of such shipments shall pay these fees.
- (2)
Any person, firm, or corporation shipping or arranging transportation of nuclear spent fuel within or through this state shall in advance of such shipments maintain a bond or surety with a bonding or insurance company, satisfactory to the department of safety and authorized to do business in this state, in such form and for such amount as the department of safety may prescribe, to guarantee payment of the fees prescribed by this section. Failure to pay any fees due and owing under this section within the sixty (60) days following shipments of nuclear spent fuel shall authorize the department of safety to proceed against the shipper's bond.
- (3)
The fees collected pursuant to this section shall be deposited into the general fund in a special account entitled the nuclear safety fund. The moneys in this fund shall only be used to fund activities related to the state's nuclear safety enforcement program and shall only be allocated to the department of safety, the department of environment and conservation, and the Tennessee emergency management agency to cover reasonable expenses incurred by each respective agency in implementing and enforcing this section.
- (d)
Any person, firm, or corporation shipping or arranging transportation for the shipment of nuclear spent fuel and subject to this section shall provide an appropriate escort for all such shipments within or through this state. The acceptable training, manpower, and equipment requirements for the provision of this escort service shall be established by department rule.
- (e)
This section applies to all shipments of nuclear spent fuel originating in, destined to or traversing this state.
- (f)
- (1)
The department of safety is authorized to adopt, promulgate, amend and repeal rules and regulations necessary to implement this section.
- (2)
No rule or regulation, safety or otherwise, adopted, promulgated, amended or repealed by the department of safety under the authority of this section concerning transportation of nuclear materials shall impose a requirement which is more restrictive or inconsistent with that of any existing rule or regulation promulgated or adopted by the United States nuclear regulatory commission or the United States department of transportation.
§ 65-15-115. Powers and duties — Citizen transportation area.
- (a)
Upon petition by a county mayor or the legislative body of any county, the department of safety is authorized to designate that county a “citizen transportation area” authorizing the use of church buses, privately owned school buses, and private citizens to carry passengers for compensation within the boundaries of the county.
- (b)
The department of safety in designating the county a “citizen transportation area” shall consider the availability of regular fixed route bus service to the area, the charter service actually provided to the citizens of the area by the existing franchised carriers, the potential service available to the community if regulatory requirements were relaxed, and whether the transportation needs of the citizens of that area are best met by the existing regulatory statutes.
- (c)
The designation shall continue until revoked by the department of safety upon due notice and an opportunity to be heard.
- (d)
However, the department of safety may inspect vehicles for purpose of safety and vehicles shall be subject to § 65-15-111.
§ 65-15-116. Passenger transportation services.
- (a)
Notwithstanding this title or title 7, chapter 51, to the contrary, each for-hire motor carrier providing passenger transportation service in a motor vehicle or motor vehicles designed or constructed to accommodate and transport passengers, eight (8) or more in number, services exclusive of the driver, or any motor vehicle transporting passengers who are TennCare enrollees eligible for such transportation services under TennCare, excluding those vehicles licensed and permitted pursuant to title 68, chapter 140, part 3, shall at a minimum:
- (1)
Maintain a policy of liability insurance in the amount of not less than one million dollars ($1,000,000) in value, which shall bind the obligors under the policy to make compensation for injury to persons and for loss of or damage to property resulting from the negligent operation by the driver, unless the transportation provider is a self insured local government or public transportation provider;
- (2)
Conduct a program of mandatory random drug testing for the operators of its motor vehicles in accordance with regulations promulgated by the United States department of transportation;
- (3)
Require the operators of its motor vehicles to submit to physical examination every two (2) years, in accordance with regulations promulgated by the United States department of transportation;
- (4)
Subject each transportation provider operating in the capacity as a passenger transportation service to an annual safety examination compliance review to be conducted by the department of safety. For purposes of this section, “compliance review” means reviewing:
- (A)
Proof of insurance or self insured status;
- (B)
Employee random drug testing documents;
- (C)
Employee physical examination documents; and
- (D)
Vehicle maintenance records; and
- (5)
Comply with all other requirements deemed necessary to protect the public safety and welfare as specified by the department of safety in its promulgation of rules and regulations to effectuate such purpose.
- (b)
The commissioner of safety is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 65-15-117. Motor carrier safety improvement.
- (a)
The deployment, implementation, or use of a motor carrier safety improvement by or as required by a motor carrier or its related entity, including by contract, shall not be considered when evaluating an individual's status as an employee or independent contractor, or as a jointly employed employee, under any state law.
- (b)
For purposes of this section, “motor carrier safety improvement” means any device, equipment, software, technology, procedure, training, policy, program, or operational practice intended and primarily used to improve or facilitate any of the following:
- (1)
Compliance with traffic safety or motor carrier safety laws;
- (2)
Safety of a motor vehicle;
- (3)
Safety of the operator of a motor vehicle; or
- (4)
Safety of third-party users of public roadways.
Part 2 Voluntary Safety Inspection
§ 65-15-201. Request for inspection — Fee — Citing for violations.
-
Any corporation, partnership, person or other entity that owns or operates a motor vehicle domiciled in Tennessee and under the jurisdiction of the department and not subject to the inspection fee prescribed in § 65-15-112, may request an on-site inspection by department enforcement officers for the purpose of conducting a safety management audit and for the purpose of inspecting all vehicles subject to the department's jurisdiction. This request shall be in writing and sent certified mail, return receipt requested. The cost of such inspection shall be four dollars ($4.00) per vehicle. All vehicles which pass inspection shall be issued a safety sticker which shall be valid for that quarter of the year in which the sticker was issued. During the on-site inspection, no criminal citation shall be issued except for flagrant safety management violations about which the violator has previously been warned by the department. If the department fails to send an enforcement officer for the purposes of conducting this inspection within thirty (30) days from the receipt of the letter requesting same, the entity requesting the inspection shall be exempt from penalties for mechanical defects, and no citations may be issued for mechanical defects until the on-site inspection has been performed.
§ 65-15-202. Effect of valid safety sticker.
-
In enforcing its jurisdiction under this part, the department shall give appropriate consideration to vehicles marked with a valid safety sticker in accordance with the guidelines set forth by the Commercial Vehicle Safety Alliance in its Memorandum of Understanding dated July 10, 1985, and subsequent amendments to such Memorandum of Understanding.
§ 65-15-203. Penalty for violation of hours-of-service standards.
-
In fixing a civil or criminal penalty for violators of the hours of service standards set forth in the department's rules against any person operating a motor vehicle marked with a valid safety sticker, the department or court shall take into account whether the violation occurred as a result of an emergency condition beyond the control of the violator.
Part 3 Transportation Network Companies
§ 65-15-301. Part definitions.
-
As used in this part:
- (1)
“Digital network” means any online-enabled application, software, website, or system offered or utilized by a transportation network company that enables the prearrangement of rides with transportation network company drivers;
- (2)
“Personal vehicle” means a vehicle that is used by a transportation network company driver and is:
- (A)
Owned, leased, or otherwise authorized for use by the transportation network company driver; and
- (B)
Not a taxicab, limousine, or for-hire vehicle;
- (3)
“Prearranged ride” means the provision of transportation by a driver to a rider, beginning when a driver accepts a ride requested by a rider through a digital network controlled by a transportation network company, continuing while the driver transports a requesting rider, and ending when the last requesting rider departs from the personal vehicle. A prearranged ride does not include:
- (A)
Shared expense carpool or vanpool arrangements provided by businesses engaged in the rental of motor vehicles; or
- (B)
Transportation provided using a taxi, limousine, or other for-hire vehicle regulated pursuant to § 7-51-1003;
- (4)
“Transportation network company” means a corporation, partnership, sole proprietorship, or other entity operating in this state that uses a digital network to connect transportation network company riders to transportation network company drivers who provide prearranged rides. A transportation network company shall not be deemed to control, direct, or manage the personal vehicles or transportation network company drivers that connect to its digital network, except where agreed to by written contract;
- (5)
“Transportation network company driver” or “driver” means an individual who:
- (A)
Receives connections to potential passengers and related services from a transportation network company in exchange for payment of a fee to the transportation network company; and
- (B)
Uses a personal vehicle to offer or provide a prearranged ride to riders upon connection through a digital network controlled by a transportation network company in return for compensation or payment of a fee; and
- (6)
“Transportation network company rider” or “rider” means a person or persons who use a transportation network company's digital network to connect with a transportation network driver who provides prearranged rides to the rider in the driver's personal vehicle between points chosen by the rider.
§ 65-15-302. Laws and regulations applicable to transportation network companies.
- (a)
Except as otherwise provided in this part, transportation network companies are governed exclusively by this part.
- (b)
A transportation network company shall not be deemed to own, control, operate, or manage the personal vehicles used by transportation network company drivers and is not deemed to control or manage transportation network company drivers.
- (c)
A transportation network company is not subject to any regulations passed by a municipality or other governmental entity governing private passenger for-hire vehicles pursuant to § 7-51-1003 and is not subject to the authority of the department of safety to regulate passenger operations pursuant to part 1 or 2 of this chapter. A transportation network company driver is not a chauffeur as defined in § 55-50-102 and is not subject to the requirements relating to commercial driver licenses or commercial vehicles covered under title 55, chapter 50.
- (d)
Commercial service airports shall have authority to adopt reasonable standards, regulations, procedures, and fees for conducting transportation network services on airport property to promote the safe and efficient use of limited airport resources.
§ 65-15-304. Duties of transportation network company operating in state.
-
A transportation network company operating in this state shall:
- (1)
Provide riders with any applicable rates charged for a prearranged ride and the option to receive an estimated fare before the rider enters the driver's motor vehicle;
- (2)
Use a software application or website to display a picture of the driver and the license plate number of the motor vehicle utilized for providing the prearranged ride before the rider enters the driver's motor vehicle;
- (3)
Transmit an electronic receipt to the rider within a reasonable time after the completion of a prearranged ride that lists:
- (A)
The origin and destination of the trip;
- (B)
The total time and distance of the trip; and
- (C)
An itemization of the total fare paid, if any;
- (4)
Implement a zero-tolerance policy on the use of drugs or alcohol by a driver while a driver provides a prearranged ride or is logged into the transportation network company's digital network but is not providing a prearranged ride, and provide notice of this policy on its website;
- (5)
Maintain:
- (A)
Individual trip records for each driver for at least two (2) years from the date each trip was provided by the driver; and
- (B)
Driver records for no less than two (2) years from the date on which a driver's activation on the transportation network company's digital network has ended;
- (6)
Conduct, or have a third party conduct, a local and national criminal background check on any potential driver that includes a multistate criminal records locator or other similar commercial nationwide database with validation;
- (7)
Conduct a national sex offender registry search for any potential driver;
- (8)
Obtain motor vehicle records for any potential driver;
- (9)
Comply with § 55-12-141; and
- (10)
Comply with § 56-7-1119(f).
§ 65-15-305. Complaint handling procedures — Recordkeeping requirements.
- (a)
A transportation network company operating in this state shall establish procedures to report any complaint about a driver with whom a rider was matched and whom the rider reasonably suspects was under the influence of drugs or alcohol during the course of the trip.
- (b)
Upon receipt of a rider complaint alleging a violation of the zero-tolerance policy set out in § 65-15-304(4), the transportation network company shall immediately suspend the driver's access to the transportation network company's digital network, and shall conduct an investigation into the reported complaint. The suspension shall last the duration of the investigation.
- (c)
The transportation network company shall maintain records relevant to a rider complaint made pursuant to this section for a period of at least two (2) years from the date that a complaint is received by the transportation network company.
§ 65-15-306. Individuals prohibited from acting as drivers.
-
A transportation network company operating in this state shall not permit any individual to act as a driver on its digital network who:
- (1)
Has been convicted of more than three (3) moving violations in the prior three-year period, or one (1) major violation in the past three-year period, including, but not limited to, attempting to evade the police, reckless driving, or driving on a suspended or revoked license;
- (2)
Has been convicted, within the past seven (7) years, of driving under the influence of drugs or alcohol, fraud, any sexual offense, use of a motor vehicle to commit a felony, a crime involving property damage, theft, any crime involving acts of violence, or acts of terror;
- (3)
Is a match in the national sex offender registry;
- (4)
Does not possess a valid driver license;
- (5)
Does not possess proof of registration for any motor vehicle used to provide a prearranged ride;
- (6)
Does not possess proof of personal automobile liability insurance that satisfies the requirements of title 55, chapter 12, for any motor vehicle used to provide a prearranged ride; or
- (7)
Is not at least nineteen (19) years of age.
§ 65-15-308. Cash payments prohibited.
- (a)
The transportation network company shall adopt a policy prohibiting a driver, while providing transportation network company services, from the solicitation or acceptance of cash payments from riders and notify drivers of the policy.
- (b)
While providing transportation network services, drivers shall not solicit or accept cash payments from riders.
- (c)
Any payment for a prearranged ride shall be made only electronically using the transportation network center's digital network or software application.
§ 65-15-309. Nondiscrimination policy — Accomodation of service animals — Wheelchair-accessible service.
- (a)
The transportation network company shall adopt a policy of nondiscrimination with respect to passengers and potential passengers and notify transportation network company drivers of the policy.
- (b)
Drivers shall comply with all applicable laws regarding nondiscrimination against passengers or potential passengers.
- (c)
Drivers shall comply with all applicable laws relating to accommodation of service animals.
- (d)
A transportation network company shall not impose additional charges for providing a prearranged ride to persons with physical disabilities because of those disabilities.
- (e)
A transportation network company shall provide riders an opportunity to indicate whether they require a wheelchair-accessible vehicle. If a transportation network company cannot arrange wheelchair-accessible service in any instance, it shall direct the rider to an alternate provider of wheelchair-accessible service, if available.
§ 65-15-310. Information to be provided in event of accident.
- (a)
If a motor vehicle accident occurs involving a motor vehicle that is being used to provide a prearranged ride, including when the driver is logged into or otherwise using the transportation network company's digital network, the transportation network company shall provide documentation, upon request by a law enforcement officer, that the driver was logged into the transportation network company's digital network at the time of the accident.
- (b)
A transportation network company shall comply with any law enforcement investigation in which transportation network company trip data may be pertinent.
§ 65-15-311. Suspected drug or alcohol use during course of trip.
-
If the transportation network company is informed through the complaint procedure as described in § 65-15-305(a) that a rider reasonably suspects that a driver was under the influence of drugs or alcohol during the course of a trip, the transportation network company shall instruct the rider who filed the complaint to also report the driver's suspected drug or alcohol use to a local law enforcement agency having jurisdiction over any criminal offense that may have occurred as a result of a driver being under the influence of drugs or alcohol. A transportation network company shall comply with any investigation by the local law enforcement agency.
Chapter 17 Wind Energy Facility Siting
§ 65-17-101. Chapter definitions.
-
As used in this chapter:
- (1)
“Construct” or “construction”:
- (A)
Means the process of bringing a wind energy facility to completion; and
- (B)
Includes the following:
- (i)
Planning;
- (ii)
Research, but does not include wind and environmental analysis;
- (iii)
Feasibility analysis, but does not include wind and environmental analysis;
- (iv)
Environmental evaluation, but does not include wind and environmental analysis;
- (v)
Preliminary engineering;
- (vi)
Designing;
- (vii)
Relocation of utilities;
- (viii)
Permitting;
- (ix)
Environmental mitigation;
- (x)
Contracting; and
- (xi)
Financing;
- (2)
“Department” means the department of environment and conservation;
- (3)
“Local government” means any county, municipality, city, or other political subdivision of this state;
- (4)
“Local legislation” means any ordinance, resolution, motion, amendment, regulation, or rule adopted by a local government;
- (5)
“Local legislative body” means the governing body of a local government;
- (6)
“Nonparticipating landowner” means a landowner not under a lease or other property agreement with the owner or operator of a wind turbine facility;
- (7)
“Operate” or “operation”:
- (A)
Means any activity associated with the management, operation, and maintenance of a completed wind energy facility; and
- (B)
Includes the installation or improvement of the wind energy facility;
- (8)
“Person” means any natural person, corporation, limited liability company, partnership, joint venture, or other private business entity except for corporations transacting business in this state pursuant to chapter 25 of this title;
- (9)
“Proprietary” in regard to information means commercial or financial information that is used either directly or indirectly in the business of any applicant submitting information to a local government under this chapter, and that gives the applicant an advantage or an opportunity to obtain an advantage over competitors who do not know or use the information, which information includes trade secrets;
- (10)
“Redevelop” or “redevelopment” means the process of replanning, reconstructing, or redesigning a wind energy facility, including the acquisition, clearance, development, or disposal, or any combination of these activities, of a wind energy facility;
- (11)
“Transmission facility” means a power cable, distribution line, or other equipment that delivers electricity from a wind turbine located in this state to the point of interconnection with a power distribution grid, long-distance power transmission grid, or other facility by and through which the electricity is distributed or transmitted to one (1) or more customers; provided, that nothing in this chapter shall apply to any distribution, transmission, or other facilities that are located beyond the point of interconnection with the power distribution grid or transmission grid;
- (12)
“Wind energy facility”:
- (A)
Means the equipment necessary for the operation of a facility that uses wind to generate electricity or that uses wind energy to heat or cool, or provide hot water for use in, a building or structure, including parts solely related to the functioning of that equipment, that cumulatively, with any other wind energy facility, has a rated capacity of one megawatt (1 MW) or more of energy and has a total height in excess of two hundred feet (200′);
- (B)
Includes turbines, towers, buildings, transmission facilities, and other associated facilities; and
- (C)
Does not include equipment that, when installed in connection with a dwelling, transmits or uses wind energy to produce energy in a useful form for residential purposes; and
- (13)
“Wind energy facility expansion” means any activity that:
- (A)
Adds or substantially modifies a wind energy facility, including increasing the height or the number of the turbines, transmission facilities, or other equipment; or
- (B)
Increases the footprint of the wind energy facility.
§ 65-17-102. Applicability.
- (a)
This chapter shall not apply in any local government that has adopted regulations related to the siting of wind energy facilities in its jurisdiction on or before January 1, 2019.
- (b)
This chapter shall not apply to any wind energy facility located in this state that was constructed prior to April 24, 2018.
§ 65-17-104. Permit required.
-
No person shall undertake the construction, operation, or redevelopment of a wind energy facility or a wind energy facility expansion in this state unless a certificate of public convenience and necessity is first obtained from the public utility commission pursuant to chapter 4, part 2 of this title, and a permit is obtained from the local legislative body of the local government in which the facility or expansion will be located pursuant to §§ 65-17-105 — 65-17-113. The person shall submit a copy of the certificate of public convenience and necessity with its application for a permit to the local legislative body.
§ 65-17-105. Local government regulation.
- (a)
A local government may adopt, by action of its local legislative body, local legislation that regulates and establishes the conditions and criteria for the construction, operation, or redevelopment of wind energy facilities and for wind energy facility expansions within the jurisdiction of the local government. No such local legislation shall take effect unless it is adopted by a two-thirds (⅔) vote of the local legislative body; except, that if an industrial development board for the local government proposes such local legislation or considers a request for a permit or permit procedures prior to any local legislation being considered by the local legislative body, then the local legislation shall only be subject to a majority vote of the local legislative body. The local legislation adopted pursuant to this subsection (a) shall establish the minimum setback as provided in subdivision (e)(2)(A) for the wind energy facility or wind energy facility expansion; and shall require that environmental impact and wildlife impact assessments be conducted, if applicable, as provided in subdivisions (e)(2)(B) and (C), respectively, that the facility comply with maximum noise levels as provided in subdivision (e)(2)(D), that an applicant submit financial security as provided in subdivision (e)(2)(E), and that a permit holder decommission or remove a wind energy facility upon the occurrence of certain events as provided in subdivisions (e)(2)(F) and (G).
- (b)
Any local legislation adopted by a municipal legislative body pursuant to subsection (a) shall apply only in the corporate limits of the municipality. A municipal legislative body shall not be authorized to adopt such local legislation unless the county legislative body of the county in which the municipality is located has previously adopted such local legislation within the county.
- (c)
A local government that regulates the construction, operation, or redevelopment of wind energy facilities and wind energy facility expansions adopted by a local legislative body pursuant to subsection (a) shall furnish a certified copy of the adopted local legislation to the department.
- (d)
- (1)
The local legislation adopted pursuant to subsection (a) may provide for the issuance of permits for the construction, operation, or redevelopment of wind energy facilities and wind energy facility expansions within the jurisdiction of the local government. The local legislation shall specify procedures governing the application for and issuance, renewal, modification, suspension, revocation, or denial of the permits.
- (2)
A local legislative body may deny the issuance or renewal of a permit, or revoke, suspend, or modify any existing permit for cause, including the violation of any conditions of the permit or of local legislation adopted pursuant to this chapter, obtaining the permit by misrepresentation, or failing to fully disclose all relevant facts. The local legislation or permit conditions shall include a six-month cure period during which time the local legislative body may establish financial penalties for noncompliance.
- (3)
- (A)
The local legislative body shall review the permit application for compliance with the local legislation adopted pursuant to this chapter, and shall conduct a public hearing after public notice has been given in accordance with subdivision (d)(3)(B) prior to making a determination on the permit application. The local legislative body shall conduct the public hearing within sixty (60) days after receiving a complete permit application.
- (B)
Public notice of the permit application and the time and location of the public hearing shall be published for at least two (2) consecutive weeks in a newspaper of general circulation in the local government in which the construction, operation, or redevelopment of the wind energy facility or wind energy facility expansion is to be located. The notice shall be published beginning at least thirty (30) days prior to the scheduled date of the hearing.
- (C)
The notice shall provide that any comments on the construction, operation, or redevelopment of the wind energy facility, or wind energy facility expansion, must be submitted to the local legislative body by a specified date, not less than thirty (30) days from the date of the newspaper publication of the notice.
- (4)
The local legislative body may appoint itself as the agency to process permit applications or conduct the public hearing, or may create or designate another agency to take such action.
- (5)
The local legislative body may provide, by local legislation, that a reasonable fee be charged to cover the costs of:
- (A)
Processing and reviewing permit applications;
- (B)
Conducting public hearings; and
- (C)
The performance of the local legislative body's duties under this chapter.
- (e)
- (1)
The local legislative body may adopt local legislation with any condition, criteria, or other provision it deems necessary for establishing regulations or granting a permit for the construction, operation, or redevelopment of a wind energy facility or wind energy facility expansion under this chapter. The local legislative body may issue a permit for a general boundary, and the wind energy facility may elect to move the planned locations of a wind turbine or other wind energy facility component after permit approval; provided, that the locations shall not be moved outside of the permitted boundary and shall comply with all other requirements pursuant to this chapter. The local legislative body may also institute wind energy facility design conditions for granting a permit in order to comply with any conditional approval from the wildlife resources agency and to mitigate potential impacts, as identified by the local legislative body or local agency.
- (2)
Any local legislation adopted pursuant to this chapter shall require that:
- (A)
The minimum setback for any wind turbine of a wind energy facility from any non-participating landowner's property line be equal to three and one-half (3.5) times the total height of the turbine structure as measured from the ground at its base to the maximum height of the blade tip; except, that a non-participating landowner may elect to sign a waiver to allow any wind turbine or group of turbines of a wind energy facility to be placed up to one and one-tenth (1.1) times the total height of the turbine structure as measured from the ground at its base to the maximum height of the blade tip from the landowner's property line;
- (B)
An environmental impact assessment be conducted by qualified, third party experts, paid for by the applicant, of the potential adverse impacts within a maximum of four (4) miles of the perimeter of the facility or expansion; except, that no such assessment shall be conducted if an environmental review of the wind energy facility or any portion of the facility is required pursuant to the National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.), which includes public input, a public hearing, an environmental impact statement, and a viewshed analysis. Any environmental impact assessment conducted pursuant to this subdivision (e)(2)(B) shall include, but not be limited to, a study of the following:
- (i)
Economic impacts to individuals, property values, tourism, and agriculture;
- (ii)
Potential adverse impacts on ecosystems, including domestic animals, and habitat and migratory patterns for wildlife;
- (iii)
Viewshed analysis for national or state parks or forests, historic or cultural sites, public parks or recreation areas, or private conservation lands;
- (iv)
Hydrogeological assessment, including water bodies, flowing water sources, stormwater runoff, wetlands, groundwater, aquifers, and private wells within a minimum of two (2) miles of the perimeter of the facility or expansion;
- (v)
Risk assessment and mitigation recommendations for shadow flicker and incidents, such as wind turbine fires, structural damage or failure, ice and blade throw, and hazardous material spills; and
- (vi)
Risk assessment for civil air navigation, military or law enforcement routes or training exercises, emergency medical flights, radar operations, and cell phone services;
- (C)
A wildlife impact assessment be conducted through a comprehensive social, economic, and environmental study; except, that no such assessment shall be conducted if an environmental review of the wind energy facility or any portion of the facility is required pursuant to the National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.), which includes public input, a public hearing, an environmental impact statement, and a viewshed analysis. Such local legislation shall also include as a condition of a permit a requirement that the wildlife resources agency review any such wildlife impact assessment and approve, grant conditional approval of, or deny the permit. Any such wildlife impact assessment shall include, but not be limited to, a study of the potential adverse impacts to wildlife refuges, preserves and management areas, areas that provide habitat for threatened or endangered species, primary nursery areas designated by the fish and wildlife commission and the wildlife resources agency, and critical fisheries habitats identified pursuant to applicable state or federal law. No permit shall become effective until the local government has received notification of approval or conditional approval within one hundred twenty (120) days of the permit from the wildlife resources agency;
- (D)
- (i)
Except during the event of inclement weather that prevents the operator of a wind energy facility from controlling the noise level of one (1) or more wind turbines that are part of the wind energy facility, any wind turbine or group of wind turbines of a wind energy facility does not exceed an immission limit at a non-participating landowner's dwelling of thirty-five A-weighted decibels (35 dBA) and forty-five A-weighted decibels (45 dBA) at a non-participating landowner's property line as determined by a qualified, third-party acoustics expert according to American National Standard Institute (ANSI) Standard 12.9 and other applicable ANSI standards; and
- (ii)
Prior to construction of a facility or expansion, a qualified, third-party acoustics expert, selected and paid for by the applicant, makes a baseline determination of preconstruction noise levels, including modeling and enforcement;
- (E)
- (i)
Prior to the start of construction of a wind energy facility, the applicant for a permit for the construction, operation, or expansion of the wind energy facility, or wind energy facility expansion, establish financial security in the amount of one hundred percent (100%) of the estimate of the total cost to decommission and remove the wind energy facility, as determined by an independent consultant selected and paid for by the applicant; and
- (ii)
To establish financial security pursuant to subdivision (e)(2)(E)(i), the applicant file with the local legislative body a surety bond, collateral bond, irrevocable letter of credit, parent guaranty, cash, cashier's check, certificate of deposit, bank joint custody receipt, or other approved negotiated instrument, or any combination of the foregoing, in the amount required by subdivision (e)(2)(E)(i). The local legislative body shall take custody and hold the bond or other form of financial security;
- (F)
The facility is decommissioned or removed if:
- (i)
Any wind turbine of a wind energy facility ceases to generate electricity for one hundred eighty (180) continuous days, unless the termination of electricity was mandated by state or federal law; provided, that one (1) or more extensions may be allowed for one-hundred-eighty-day periods at a time; or
- (ii)
Any wind turbine or group of wind turbines of a wind energy facility violates the noise level restrictions provided in subdivision (e)(2)(D), unless the turbine or group of turbines is brought into compliance within one hundred eighty (180) days of the violation; provided, that a single one-hundred-eighty-day extension may be allowed; and
- (G)
Within twelve (12) months following the decommissioning of a facility or expansion, the property is restored to its original condition prior to commencement of activities on the site.
§ 65-17-106. Local government report on permitting activities.
-
On or before January 1, 2019, and on or before January 1 of each subsequent year, any local government that has adopted local legislation pursuant to this chapter shall submit a written report on its permitting activities to the agriculture and natural resources committee of the house of representatives and the energy, agriculture and natural resources committee of the senate. The report shall include, but not be limited to, data on the number of approved and denied permits, data summarizing the findings of the environmental impact assessment and wildlife impact assessments conducted during the permit process, data on the activities of any wind energy facilities currently in operation, and data on any decommissioned facilities.
§ 65-17-108. Information subject to disclosure.
-
All permit applications and other documents received by a local legislative body pursuant to this chapter, and any documents used by the local legislative body to evaluate the permit application, shall be subject to disclosure under § 10-7-503; except, that at all times under this chapter, proprietary information contained in a permit application or in other documents received by the local government pursuant to this chapter, or in any other documents used by the local government to evaluate and approve or deny the permit applications, shall remain confidential and not subject to disclosure to the public pursuant to this section, § 10-7-503, or any other law.
§ 65-17-109. Local government right to injunctive relief.
- (a)
The local legislative body may seek injunctive relief or institute other appropriate actions or proceedings in the chancery court of:
- (1)
The local government in which any violation of § 65-17-104 or of the local legislation occurred; or
- (2)
The local government in which the person responsible for the violation resides or has the person's principal place of business to ensure compliance with this chapter.
- (b)
The chancery court may grant a temporary or permanent injunction restraining the violation of § 65-17-104 or of the local legislation. The institution of an injunctive action and of the proceedings under this section is in addition to, and not in lieu of, all civil penalties and other remedies prescribed in titles 5 and 6 for permit violations and violations of local legislation.
§ 65-17-110. Dissemination of model local legislation.
-
The municipal technical advisory service (MTAS) and the county technical assistance service (CTAS) shall disseminate model local legislation for use by local governments in establishing conditions and other regulations consistent with this chapter for the issuance of permits for wind energy facilities and wind energy facility expansions.
§ 65-17-111. Chapter supplemental to other law.
-
This chapter supplements any other provision of this title or other law to provide additional authority to regulate the siting and permitting of wind energy facilities and wind energy facility expansions. Nothing in this chapter prescribes an exclusive procedure or grants exclusive powers relating to the siting or permitting of wind energy facilities and wind energy facility expansions.
§ 65-17-112. Chapter applicability.
-
This chapter shall apply in the geographical boundaries of local governments whose local legislative bodies adopt local legislation pursuant to § 65-17-105. Once adopted, local legislation may only be revoked by the same method used to adopt it.
§ 65-17-113. Federal preculsion.
-
In the event that the requirements of this chapter conflict with applicable federal law or regulations, the federal requirements shall take precedence over the conflicting requirements of this chapter.
Chapter 18 Incline Railroad Companies
§ 65-18-102. Gauge.
-
Incline railroad corporations are authorized to adopt such gauge as they may prefer.
§ 65-18-103. Construction of track across highways, streets and alleys.
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The line of track of the road shall be so constructed as not to interfere with the convenient travel of the public along the highways, county roads, streets, and alleys of cities, towns, and villages, and so as to allow carts, wagons, carriages, and other vehicles conveniently and safely to pass over or under the line of track, and so as not to interrupt travel on foot or horseback, or in vehicles of any kind, in the necessary and proper use of the public road, street, or alley in the usual and proper mode.
§ 65-18-104. Crossing signs.
-
Boards, well supported by posts or otherwise, shall be placed, and constantly kept, across each public road, when the same is crossed on the same level by the track of the railway, the boards to be elevated so as not to obstruct travel, and, on each side of such board, there shall be printed in large letters, easily to be seen by the traveler, the words, “Railroad Crossing — Look Out for the Cars.”
§ 65-18-105. Municipal regulations.
-
Such boards need not be put up at the crossing of streets and alleys in cities, towns, or villages, but such inclined cable railroad company shall be subject to such proper regulations made by the municipal authorities, in pursuance of general municipal powers, regulating speed, passage, and flaggers in such municipalities; and at crossings, and where there are sidings and switches, the whistle shall always be blown at a distance of not less than two hundred fifty (250) yards from every crossing of a public road.
§ 65-18-106. Private crossings and cow gaps.
-
Where land on both sides of a track is owned by the same proprietor, convenient crossings shall be made and kept up at the expense of the corporation for the use of the proprietor, and all necessary cow gaps made.
§ 65-18-107. Regulations for running trains — Freight and passengers.
-
The board of directors shall fix regulations for the running of trains, for the transportation of passengers and property, and shall furnish sufficient accommodation for their safe, comfortable, and convenient transportation, and shall take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of freight tolls, and fare legally authorized to be charged therefor; and, in case of the refusal of the corporation, its officers or agents, to take and transport any passenger, if not by law excused, or property, or to deliver the same, or either of them, at the regular and appointed time, such corporation shall pay to the party aggrieved all damages thereby suffered, with cost of suit. If any passenger refuses to pay the required fare, the conductor may put such passenger off the cars at any station or convenient point where such passenger can step on land. The corporation shall make no contract giving any person a preference in the speedy shipment of freight.
§ 65-18-108. Charge for transportation.
-
The charge for transportation shall be not exceeding eight cents (8¢) per one hundred pounds (100 lbs.) on heavy articles, and three cents (3¢) per cubic foot on articles of measurement, per mile, and at the same rate for each fraction of a mile, and not exceeding fifty cents (50¢) per mile for each passenger, and at the same rate for each fraction of a mile, with power to make special contracts with shippers and passengers on their roads in regard to rates of freight, and so as not to exceed the amounts herein designated.
Chapter 19 Ridesharing
Part 1 Jitney Service
§ 65-19-101. Common carrier — Business declared a privilege.
-
Any person operating for hire any public conveyance propelled by steam, gasoline, electricity, or other motive power, for the purpose of affording a means of street transportation similar to that ordinarily afforded by street railways (but not operated upon fixed tracks) by indiscriminately accepting and discharging such persons as may offer themselves for transportation along the course of operation, is declared to be a common carrier, and the business of all such common carriers is declared to be a privilege.
§ 65-19-102. Permit from city or town required.
-
It is unlawful for any such common carrier to use or occupy any street, alley or other public place in any incorporated city or town, without first obtaining from such city or town a permit or license by ordinance giving the right to so use or occupy such public place, such permit or license to embody such routes, terms and conditions as such city or town may elect to impose; provided, that no such permit or license shall be granted which does not require the execution and filing of a bond as provided for in § 65-19-103.
§ 65-19-103. Bond required.
-
Any such common carrier, before operating any public conveyance as aforementioned, in addition to obtaining such a permit or license, shall execute to the state and file with the county clerk of the county in which the business is to be carried on, and renew or increase from time to time as may be required by such city or town, a bond with good and sufficient surety or sureties, to be approved by the mayor of such incorporated city or town, in such sum as such city or town may reasonably demand, in no case, however, in a sum less than five thousand dollars ($5,000) for each car operated, conditioned that such common carrier will pay any damage that may be adjudged finally against such carrier as compensation for loss of life or injury to person or property inflicted by such carrier or caused by the negligence of the carrier.
§ 65-19-104. Use of streets without permit — Operation without bond — Penalty.
-
Any such common carrier, which shall use or occupy any such public place in any incorporated city or town without first obtaining such a permit or license, or shall operate any such conveyance, without first executing and filing such bond, commits a Class C misdemeanor for each offense. Each day upon which such common carrier so unlawfully uses or occupies any such public place in any incorporated city or town of this state is a separate offense.
§ 65-19-105. Authority to grant permits — Restriction.
-
All incorporated cities and towns are empowered to grant such permits or licenses to such common carriers, and to fix in such licenses and permits the routes, terms, and conditions upon which such common carriers may operate, subject to the above limitations; provided, that no license or permit shall be granted to any such common carrier, without the execution and filing of the above recited bond being required.
§ 65-19-106. Privilege tax.
-
All such incorporated cities and towns are empowered to impose upon all such common carriers a tax for the exercise of the privilege allowed to be granted by this part.
Part 2 Tennessee Ridesharing Act
§ 65-19-202. Part definitions.
-
“Ridesharing” means the prearranged transportation of persons in a motor vehicle where such transportation is incidental to another purpose of a volunteer driver, and includes ridesharing arrangements known as carpools, vanpools, and buspools.
§ 65-19-203. Workers' compensation.
-
The Workers' Compensation Law, compiled in title 50, chapter 6, concerning compensation for workers injured during the course of their employment, shall not apply to a person injured while participating in a ridesharing arrangement between such person's place of residence and place of employment or termini near such places; however, if the employer owns, leases, or contracts for the motor vehicle used in such an arrangement, the Workers' Compensation Law shall apply.
§ 65-19-204. Employer liability for injuries.
- (a)
An employer shall not be liable for injuries to passengers and other persons resulting from the operation or use of a motor vehicle, not owned, leased, or contracted for by the employer, in a ridesharing arrangement unless the employee operating the motor vehicle is also on an errand or performing some task or function for the employer.
- (b)
An employer shall not be liable for the injuries to passengers and other persons because it provides information, incentives or otherwise encourages its employees to participate in ridesharing arrangements. If the employer provides information, incentives, or otherwise encourages its employees to participate in ridesharing arrangements, the employer shall inform its employees that they will not be covered by the workers' compensation laws while participating in such arrangement unless while participating they perform some task or errand for the employer.
§ 65-19-205. Local taxes and licenses.
-
No county, city, town, or other municipal corporation may impose a tax on or require a license for a motor vehicle used in a ridesharing arrangement other than that required for a private passenger automobile.
§ 65-19-206. Additional registration fees.
-
The additional registration fees imposed by § 55-4-112 do not apply to any passenger motor vehicle used in a ridesharing arrangement, regardless of any compensation paid to the owner or driver of such a vehicle, unless the vehicle is also used to transport passengers for hire for other purposes.
Chapter 20 Miscellaneous Provisions Relating to Carriers
§ 65-20-101. Compressed cotton.
- (a)
It is unlawful for any common carrier, doing business in this state, to become a party to any combination or monopoly, for the purpose of controlling the compression of cotton, in bales, in the interest of special individuals, firms, or companies.
- (b)
All such common carriers shall be required to receive all compressed cotton, and transport the same as such at regular schedule rates of freight, without discrimination as to individuals, firms, or compresses offering the same for shipment.
- (c)
A violation of this section is a Class C misdemeanor.
§ 65-20-102. Refusal of or failure to receive goods.
- (a)
All common carriers, including express companies, doing business within this state, shall, after the receipt of freight or merchandise for delivery at their warehouse, depot, or station, notify the consignee, by written or printed notice, to be delivered to the consignee in person, at such consignee's place of business, if in the city or town where received; or, if not residing or doing business in the city or town, then through the post office, within three (3) days after the arrival of the goods.
- (b)
Where nonperishable property which has been transported to destination is refused by the consignee or the party entitled to receive it or the consignee or party entitled to receive it fails to receive it within thirty (30) days after notice of arrival shall have been duly sent or given, the carrier may sell the same at public auction to the highest bidder at such place as may be designated by the carrier.
- (c)
The carrier shall have first mailed, sent, or given to the consignor notice that the property has been refused or remains unclaimed, as the case may be, and that it will be subject to sale if disposition be not arranged for, and shall have published notice containing a description of the property, the name of the party to whom consigned, or, if shipper's order notify, the name of the party to be notified, and the time and place of sale, once a week for two (2) successive weeks in a newspaper of general circulation at the place of sale or nearest place where such newspaper is published; provided, that thirty (30) days shall have elapsed before publication of notice of sale after the notice that the property was refused or remains unclaimed was mailed, sent, or given.
- (d)
The proceeds of any sale made under subsection (b) shall be applied by the carrier to the payment of freight, demurrage, storage, and any other lawful charges and the expense of notice, advertisement, sale and other necessary expense and of caring for and maintaining the property, if proper care of the same requires special expense, and should there be a balance, it shall be paid to the owner of the property sold under this section.
§ 65-20-103. Claims for lost or damaged freight and overcharges.
- (a)
All common carriers operating in this state are required to settle all claims for lost or damaged freight and overcharges on freight for which they are liable within a reasonable time, to wit:
- (1)
Freight lost or damaged and overcharges on freight between two (2) given points on same line or system shall be paid within sixty (60) days from the filing of written notice with the agent of the company at the point of destination of the freight of the loss or damage thereof; and
- (2)
Where freight is handled by two (2) or more carriers, roads or systems of roads, and the same is lost or damaged or an overcharge made, such claim shall be paid within ninety (90) days from the filing of written notice with the agent of the railroad company at the point of shipment or destination of the freight, by the consignor or consignee, of the loss or damage thereof or overcharge thereon;
-
provided, that this section shall only apply to claims against such common carriers where the amount claimed is fifty dollars ($50.00) or less.
- (b)
Persons engaged as common carriers, in all cases where they fail to pay the claim mentioned in subsection (a) within sixty (60) or ninety (90) days, as the case may be, after notice filed as specified in subsection (a), shall be required to pay the owner of the freight, in addition to the loss and interest thereon, twenty-five percent (25%) of the amount recovered for the loss; provided, that the penalty shall not apply when it shall appear to the court trying the case that the common carrier has tendered within the time specified to the claimant an amount of money sufficient to cover the loss for which the common carrier is held to be liable.
§ 65-20-104. Nontransferable passenger tickets — Redemption of passenger tickets.
- (a)
It is unlawful for any person, other than the authorized agent of the common carrier issuing the same, to sell or otherwise deal in or offer to sell any railroad, railway, steamship, or steamboat passenger ticket which shows that it was issued and sold below the standard schedule rate under contract with the original purchaser entered upon such ticket and signed by the original purchaser, to the effect that such ticket is nontransferable and void in the hands of any person other than the original purchaser thereof; provided, that nothing in this section nor in § 65-20-103 shall be construed as depriving the original purchaser of a transferable ticket of the right to sell same to a person who will in good faith personally use it in the prosecution of a journey.
- (b)
It is the duty of every common carrier that shall have sold any ticket or other evidence of the purchaser's right to travel on its line, or any line of which it forms a part, to, if the whole of such ticket be unused, redeem the same, paying the original purchaser thereof, the actual amount for which the ticket was sold; or, if any part of such ticket be unused, to redeem such unused part, paying the original purchaser thereof at a rate which shall be equal to the difference between the price paid for the whole ticket and the price of a ticket between the points for which the ticket was actually used; provided, that such purchaser shall present such unused or partly used ticket for redemption within six (6) months after the date of its issuance, to the officer or agent who shall be authorized or designated by such common carrier to redeem unused or partly used tickets, and the officer shall within fifteen (15) days after the receipt of such ticket redeem the same as hereinbefore provided. Such redemption shall be made without cost of exchange or other expense to the purchaser of the ticket.
- (c)
A violation of this section is a Class C misdemeanor.
§ 65-20-105. Passenger rights forfeited for intoxication.
-
Any person who publicly drinks any intoxicating liquor, including wine, ale or beer, or is intoxicated on any railway passenger train, street car, omnibus or other public vehicle of passenger transportation in violation of § 39-17-310 thereby forfeits all rights as a passenger, and it is the duty of the conductor or person in charge of the vehicle of transportation to eject such passenger forthwith.
Chapter 21 Telegraphs and Telephones
Part 1 General Provisions
§ 65-21-101. Special powers of corporations.
-
Telegraph and telephone corporations may construct a telegraph or telephone line and erect the necessary fixtures along, or over, or under the line of any public highway, the streets of any village, town, or city, across, or over, or under rivers, or any land belonging to the state, or along, across, or under county roads, and also over the lands of private individuals in pursuance of the general law authorizing the condemnation of the easement of right of way for works of internal improvement as set forth in title 29, chapter 16; provided, that the ordinary use of such public highway, streets, or county road be not thereby obstructed or the navigation of such waters impeded.
§ 65-21-102. Railroad enabled to operate telegraph and telephone.
-
Any railroad company incorporated by or under the laws of or operating lines of railroad within this state, and operating telegraph and telephone lines in connection therewith, upon filing its assent to this chapter in the office of the secretary of state, shall thereby become clothed with the rights, powers, and duties provided by this chapter for telegraph and telephone companies, so as to enable telegraph or telephone companies to be operated by it.
§ 65-21-103. Local regulation.
-
Any village or city within which such line may be constructed shall have all reasonable police powers to regulate the construction, maintenance, or operation of the line within its limits, including the right to exact rentals for the use of its streets and to limit the rates to be charged; provided, that such rentals and limitations as to rates are reasonable and imposed upon all telephone and telegraph companies without discrimination. No village, town, or city shall have the right to prevent the company from constructing, maintaining, and operating the line within the village, town, or city, so long as the line is being constructed, maintained, or operated within the village, town, or city, in accordance with the reasonable police regulations.
§ 65-21-104. Consolidation of telephone and electric light companies.
-
It is lawful for telephone and electric light companies to consolidate into one (1) corporation, or partially consolidate or cooperate in such manner as the respective corporations may determine, with the concurrence of the stockholders of each; but the rights and privileges conferred by this section shall be subject to revocation and repeal.
§ 65-21-105. Use of poles of other companies.
-
No telegraph or telephone company, or other such company, shall be permitted to attach its lines to, or otherwise use, the poles of any other telegraph or telephone company without the consent of such company being first had and obtained.
§ 65-21-106. Discrimination in telephone connections prohibited.
-
Every telephone company doing business within this state, and engaged in a general telephone business, shall supply all applicants for telephone connection and facilities, without discrimination or partiality; provided, that such applicants comply or offer to comply with the reasonable regulations of the company. No such company shall impose any condition or restriction upon any such applicant that is not imposed impartially upon all persons or companies in like situations, nor shall such company discriminate against any individual or company engaged in lawful business by requiring, as condition for furnishing such facilities, that they shall not be used in the business of the applicant or otherwise, under penalty of one hundred dollars ($100) for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with the reasonable regulations, and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.
§ 65-21-107. Government messages.
- (a)
In consideration of the right-of-way over public property pursuant to §§ 65-21-101 and 65-21-201, every telegraph or telephone corporation shall, in the case of war, insurrection, or civil commotion of any kind, and for the arrest of criminals, give immediate dispatch, at the usual rates of charge, to any message connected therewith of any officer of the state or of the United States.
- (b)
Any officer or agent of a telegraph or telephone company who fails or refuses to carry out the provisions of subsection (a) commits a Class A misdemeanor.
§ 65-21-108. Priority of messages — Privacy.
- (a)
All other messages, including those received from other telegraph or telephone companies, shall be transmitted in order of their delivery, correctly, and without unreasonable delay, and at the usual rates, and shall be kept strictly confidential, subject, however, to disclosure in any legal proceedings; provided, that arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest.
- (b)
Any officer or agent of a telegraph or telephone company who willfully violates subsection (a) commits a Class A misdemeanor, and the telegraph or telephone company so violating is liable in damages to the party aggrieved.
§ 65-21-109. Discrimination in messages prohibited.
- (a)
Every telegraph or telephone company doing business in this state must, under a penalty of five hundred dollars ($500) for each and every refusal so to do, transmit over its wires to localities on its lines, for any individual or corporation or other telegraph or telephone company, such messages, dispatches, or correspondence, as may be tendered to it by, or to be transmitted to, any individual or corporation, or other telegraph or telephone companies, at the price customarily asked and obtained for the transmission of similar messages, dispatches, or correspondence, without discrimination as to charges or promptness.
- (b)
The penalty herein prescribed shall be recoverable in any court through proper form of law, one-half (½) of which shall go to the prosecutor and one-half (½) to the state.
§ 65-21-110. Damage to equipment — Impairment of service — Unauthorized connections.
- (a)
It is unlawful for any person to damage or obstruct any telegraph or telephone poles, wires, fixtures, or other apparatus or appliances, or to impede or impair the service of any telegraph or telephone line; or to connect by wire, or other means, with any such line, so as to hear, or be in a position to hear, messages going over such line or lines, or for the purpose of getting any service over the line or lines, without first procuring the consent of the owner or owners of the line, or the duly authorized agent of same.
- (b)
A violation of this section is a Class C misdemeanor.
§ 65-21-111. Warrants against offenders.
-
It is the duty of any judge of the court of general sessions who knows of any offenses under this chapter to forthwith issue a warrant for the arrest of such person, and have such offender brought before the judge for trial.
§ 65-21-112. Failure to relinquish telephone line for emergency call.
- (a)
Any person who fails to relinquish a telephone party line or a public pay telephone after having been requested to do so to permit another to place an emergency call to a fire department or police department, or for medical aid or ambulance service, commits a Class C misdemeanor.
- (b)
It is a defense to a prosecution under this section that the accused did not know or did not have reason to know of the emergency in question, or that the accused was also using the telephone party line or public pay telephone for such an emergency call.
- (c)
Any person who requests another to relinquish a telephone party line or a public pay telephone on the pretext that such person must place an emergency call, knowing such pretext to be false, commits a Class C misdemeanor.
- (d)
Every telephone company doing business in this state shall print a statement of the substance of this section in a permanent place in each telephone directory published by it.
§ 65-21-113. Officer's right to cut, reroute or divert telephone lines in any emergency involving a barricaded person.
- (a)
Notwithstanding any law to the contrary, the chief law enforcement officer of any county, city or town, or such law enforcement officer's designee, may by written request require a telephone company employee designated by the company to cut, reroute or divert telephone lines in any emergency where a person or persons barricade themselves, or where a hostage or hostages are being held to prevent telephone communication by the holder of such hostage or hostages with any person other than a law enforcement officer or person authorized by such officer. Good faith reliance on an order issued by the chief law enforcement officer of any county, city or town, or such officer's designee, constitutes a defense to any action brought against a telephone company arising out of attempts by the telephone company to comply with such order.
- (b)
For the purpose of this section, a barricaded person is one who, by obstruction, barrier or otherwise, makes that person inaccessible and who constitutes a threat to the life, safety or property of that person or others.
§ 65-21-114. Toll-free telephone service within counties.
- (a)
Any telephone call made between two (2) points in the same county in Tennessee shall be classified as toll-free and shall not be billed to any customer.
- (b)
This section shall apply to all companies or entities providing telephone service in this state as public utilities, including, but not limited to, telephone companies regulated by the Tennessee public utility commission. However, this section does not apply to any telephone company which is prohibited by federal law from providing countywide service in a particular county.
- (c)
Nothing in this section is intended to modify or repeal the rate-making and telephone regulatory authority of the commission or the right of telephone companies to earn a fair rate of return.
§ 65-21-115. Funding for the Tennessee relay services/telecommunications devices access program — Legislative intent — Operation.
- (a)
Funding for the Tennessee relay services/telecommunications devices access program (TRS/TDAP) programs shall be provided by the state emergency communications board. Such funding shall not exceed the total cost of the TRS/TDAP program in 2012 unless approved by the fiscal review committee.
- (b)
The Tennessee public utility commission may create a reserve for the TRS/TDAP program which shall not exceed one million dollars ($1,000,000) in any given year.
- (c)
It is the legislative intent that the TRS/TDAP program be designed with consideration of fair distribution of equipment that is technologically available and economically feasible to be provided to assist individuals with any disability using the basic telephone network.
- (d)
The administrative cost of the Tennessee public utility commission to implement this section shall come from the funding described in subsection (a).
- (e)
The Tennessee public utility commission is authorized to promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this section.
§ 65-21-116. Construction of wireless communications tower.
-
A cellular or other wireless telecommunications service provider or other person who proceeds to construct a new tower shall submit the following information to the comptroller of the treasury:
- (1)
The location of the tower site which shall include the county and the municipality, if appropriate, and the parcel identification number used by the local assessor for property tax purposes, and the street address;
- (2)
Directions to the tower site;
- (3)
A copy of a document evidencing the interest in the property on which the tower has been approved; and
- (4)
The name, mailing address and telephone number of the person responsible for the ad valorem property tax on the tower.
§ 65-21-117. Interference with emergency calls.
- (a)
An individual commits an offense if the individual knowingly prevents another individual from placing a telephone call to 911 or from requesting assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.
- (b)
An individual commits an offense if the individual intentionally renders unusable a telephone that would otherwise be used by another individual to place a telephone call to 911 or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity, the primary purpose of which is to provide for the safety of individuals.
- (c)
An offense under this section is a Class A misdemeanor.
- (d)
In this section, “emergency” means a condition or circumstance in which any individual is or is reasonably believed by the individual making a telephone call to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the telephone call to be in imminent danger of damage or destruction.
Part 2 Rights-of-Way
§ 65-21-201. Rights-of-way authorized.
-
Any person or corporation organized for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence the equivalent thereof, which may be invented or discovered, may construct, operate, and maintain such telegraph, telephone, or other lines necessary for the speedy transmission of intelligence, along and over the public highways and streets of cities and towns, or across and under the waters, and over any lands or public works belonging to this state, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads, and on and over the bridges, trestles, or structures of such railroads.
§ 65-21-202. Obstruction of public ways prohibited.
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The ordinary use of such public highways, streets, works, railroads, bridges, trestles, or structures shall not be thereby obstructed, nor the navigation of such waters impeded, and just damages shall be paid to the owners of such lands, railroads, and turnpikes, by reason of the occupation of the lands, railroads, and turnpikes by the telegraph or telephone corporations.
§ 65-21-203. No exclusive rights permitted.
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No telegraph or telephone corporation has the power to contract with the owners of lands or the rights in lands, or with any other person or corporation, for the right to erect, operate, or maintain telegraph, telephone, or other lines or works for the speedy transmission of intelligence, over the lands, privileges, rights, or easements of such owner or other person or corporation, to the exclusion of other persons or corporations authorized to erect and operate lines and works for the speedy transmission of intelligence.
§ 65-21-204. Condemnation.
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In the event such telegraph or telephone companies should fail, upon application to such individuals, railroads, companies, to secure such right-of-way, by consent, contract, or agreement, then such telegraph or telephone corporations shall have the right to proceed to procure the condemnation of such property, lands, rights, privileges, and easements, in the manner prescribed by law for taking private property for works of internal improvement.
§ 65-21-205. Construction of lines — Liability for damages.
-
When any such telegraph or telephone company shall desire to construct lines on or along the lands of individuals, or on the right-of-way and structures of any railroad, the telegraph or telephone company may, by its agents, have the right peacefully to enter upon such lands, structures, or right-of-way, and survey, locate, and lay out its lines thereon, being liable, however, for any damage that may result by reason of such act.
Chapter 22 Light, Heat and Power Companies
§ 65-22-101. Acquisition of land.
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Every corporation organized under the laws of any state of the United States and authorized to construct, own, and operate gas or electric plants or both for the purpose of furnishing gas or electricity or both to persons in this state or in this state and elsewhere, or authorized to engage in the business of reducing, generating, and furnishing light, heat, electricity and electrical and mechanical power generated or produced from steam power or water power obtained by a dam or dams across any stream or streams of water, or authorized to store, transport or distribute natural or artificial gas or oil to be used in producing light, heat or mechanical power, for sale to the public generally or to utility corporations for resale to the public generally, and, for any or all of such purposes, authorized to construct and maintain pipelines, is empowered to condemn and take upon paying or securing payment thereof, to purchase or otherwise acquire, such lands and interests in and by whomsoever owned as may be necessary or advisable in the construction, maintenance, and operation of either its gas or electric plants or both, and likewise to acquire the right to use, employ, and divert such water flowing in and running into any stream or watercourse as may be necessary or advisable in the exercise of its charter powers, such lands and interests in lands as may be necessary or advisable for establishing and maintaining its power houses, canals, flumes, conduits, pipelines, reservoirs, ponds, dams, transmission lines and other works, the rights-of-way for lines of poles, towers, wires, and transmission lines through any and all lands between its reservoirs, ponds, dams, power houses and other works and the cities and towns and other points at which its light, heat, water, electricity and electrical and mechanical or gas power may be transmitted, consumed or disposed of, such lands and interests in lands as may be necessary or advisable to place its electric wire, conductors, conduits, ditches, canals, flumes, pipelines, and transmission lines either above or underground; and every such corporation may at any time enter thereon and repair same or when deemed necessary or advisable may place additional equipment, appliances or appurtenances; provided, that such electric wires, conductors, conduits, ditches, canals, flumes, pipelines and transmission lines shall be placed in such manner as to do as little injury to the property of private persons as possible; and provided further, that every such corporation shall make compensation to the owners of the real estate condemned or taken through which its electric wires, conductors, conduits, ditches, canals, flumes, pipelines and transmission lines may be placed. If the owner and the corporation cannot agree upon the amount of compensation which should be paid, the taking shall proceed and the damages or compensation to be paid shall be assessed in the manner provided by title 29, chapter 16.
§ 65-22-102. Dams in navigable streams.
- (a)
There shall be placed and maintained, in connection with the corporation's dam or dams and other works in navigable rivers and streams of this state, within the limits of navigation in such streams and rivers, a sluiceway, lock, or other fixture sufficient and so arranged as to permit logs, timber, lumber, and boats to pass around, through, or over the dam or dams or other works without unreasonable delay or hindrance, and without toll or charges.
- (b)
Before the work is commenced in such navigable rivers and streams within the limits of navigation in such rivers and streams, the plans and details thereof shall be submitted to the secretary of the army of the United States for the secretary's approval. The secretary may at any time require such changes and alterations to be made in such works, at the expense of the corporation, as are deemed advisable and necessary in the interest of navigation.
- (c)
The work permitted in this section to be done in navigable waters shall be subject to the supervision and approval of the engineer officer of the United States army in charge of the locality.
§ 65-22-103. Wires, conduits, conductors, pipes, and pipelines.
-
Such corporation, after having first obtained permission from the governing authorities thereof, is invested with the privilege of extending and placing its electric wires, conduits, conductors, pipes, and pipelines along, through, or upon all or any of the streets, lanes, and alleys of the cities, towns, and villages in which it may operate; and in, through, and along any and all of the roads and public highways of the counties, for the purpose of supplying electricity, or electric or mechanical power to the inhabitants thereof for heat, light, manufacturing, domestic, or sanitary or other purposes; and for such purposes it may make any and all necessary excavations in and along the same after first obtaining permission from the governing authorities of the incorporated cities, towns, and villages, and when outside of any incorporated towns, of the governing authority of the county in which same is located; but all excavation shall be made in such manner as to give the least inconvenience to the public, and shall be replaced with all possible speed by and at the expense of the corporation in as substantial manner as found before being excavated.
§ 65-22-104. Contracts for services.
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Such corporation may also contract with cities, towns, and villages, and with persons, for supplying them with water, light, heat, electricity, electrical and mechanical powers, and any other article or thing which it may produce or handle.
§ 65-22-105. Manufacture and sale of ice or other products.
- (a)
Corporations for the purpose of engaging in the business of generating and furnishing electric light or power, may engage in the business of manufacturing and selling, at wholesale or retail, ice, or other products.
- (b)
Such electric light and power corporations, as exercise the power given by subsection (a), shall pay the same privilege taxes therefor on such manufacturing and retail or wholesale trade of manufactured products as other corporations incorporated for such manufacturing purposes are required to pay, in addition to the privilege taxes required by law for engaging in the electric light and power business.
§ 65-22-106. Consolidation.
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A corporation organized to engage in the business of a water company, may combine in its charter the powers, duties and liabilities of a lighting and power company, and engage in the latter business; and vice versa.
Chapter 25 Rural Electric and Community Services Cooperatives
§ 65-25-101. Short title — Legislative findings.
- (a)
This chapter shall be known and may be cited as the “Rural Electric and Community Services Cooperative Act.”
- (b)
- (1)
The general assembly finds that rural electric cooperatives, since their inception fifty (50) years ago, have proved to be ideal business organizations in providing adequate and reliable electric services at reasonable rates throughout the rural communities of Tennessee. There are growing needs and demands for other comparable utility services in Tennessee's rural communities, including the need for television reception and programming services which are already available, for the most part, in the state's urban areas. As proved to be the case in providing electric service in rural communities, it is vital that the area coverage principle be applied in providing other utility services in the more sparsely settled areas of the state. It is, therefore, in the public's best interest that rural electric cooperatives be empowered to provide such services and that new cooperatives may be organized for such purposes.
- (2)
The general assembly finds that unfair and unwelcomed efforts may be made in Tennessee, as they recently have in other states, whereby absentee-owned profit power companies will attempt the acquisition of properties and the take-over of the businesses of rural electric cooperatives, and thereby disrupt Tennessee's long-standing and successful policy of providing rural electric services through nonprofit, cooperative organizations. It is, therefore, in the public's best interest that laws affecting such efforts will provide fair and equitable due process procedures and standards so as to ensure that such acquisitions will not be accomplished if inimical to the best interests of the rural citizens who will be affected.
- (3)
The general assembly further finds that Tennessee statutes currently governing electric cooperatives have not been comprehensively revised since their initial enactment. It is, therefore, in the public interest that cooperative business organizations, their respective members and the rural communities of the state would be better served by updating such statutes to make them more compatible with changed conditions and to appropriately reconcile such statutes with the new Tennessee Nonprofit Corporation Act, compiled in title 48, chapters 51-68.
§ 65-25-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Area coverage” means that a service will be available to patrons in accordance with a financially feasible plan without regard to how thickly or sparsely patrons' premises may be located in a cooperative's areas of service;
- (2)
“Board” means a cooperative's board of directors or the necessary number thereof to take action;
- (3)
“Community utility services” includes broadband internet access and related services and telecommunications services, including, but not limited to, television communication services of any kind and by any means, television programming and decryption services, selling, leasing, both as lessor and lessee, servicing and repairing related equipment, including TV antenna dishes, and the furnishing for any purpose to itself or to others, including other cooperatives, information and data relative to its or their other purposes, including, if such is the case, the primary purpose. Nothing in this subdivision (3) permits a cooperative to provide cable service, as defined in § 7-59-303, or video service, as defined in § 7-59-303, without complying with the requirement to obtain a franchise as set forth in the Competitive Cable and Video Services Act, compiled in title 7, chapter 59, part 3;
- (4)
“Cooperative” or “cooperatives” means one (1) or more nonprofit cooperative membership corporations heretofore or hereafter organized under or otherwise subject to this chapter, including corporations transacting business in this state pursuant to § 65-25-121 under this chapter or under its predecessor, the Electric Cooperative Law, hereinafter called “foreign corporations”;
- (5)
“Lease-sale” means an agreement whereby the possession and use of assets and properties would be transferred to a lessee-purchaser for a stated or determinable term in time, during or at the end of which such lessee-purchaser would have the right and be obligated, or would have the option, to purchase and acquire, or would without further act acquire, fee simple title to such assets and properties for a price expressly stated in the agreement or for a price determinable by a formula contained in the agreement, whether or not any portion of any lease-hold or rental payments would be creditable as a part of such price;
- (6)
“Member” means a person having the right to vote for the directors of a cooperative and upon other matters as provided in this chapter, a cooperative's articles of incorporation or bylaws, and includes each incorporator of a cooperative thereof, and also a husband and wife admitted to joint membership;
- (7)
“Net worth” means the difference between a cooperative's assets and liabilities, which liabilities shall not include any amounts of patronage capital assigned or assignable to patrons on the cooperative's books or carried on such books even though not so assigned or assignable, determined in accordance with generally accepted accounting principles and methods and the accounting system applicable to such cooperative, as most recently, but not more than sixty (60) days, reflected in its books of account and balance sheet prior to the date of a member meeting at which a vote will be taken on whether to sell or to lease-sell all or a substantial portion of the assets and properties which are devoted to and are used or useful in pursuing a primary purpose;
- (8)
“Patron” means a person agreeing to receive or already receiving or who in the past has received one (1) or more of the services rendered by a cooperative, whether such person is a member thereof or not, and “nonmember patron” means such a person who or which is not or was not a member;
- (9)
“Person” includes any natural person, firm, association, corporation, cooperative, business trust, partnership and federal, state or local governments, or departments, agencies or any other political subdivision thereof;
- (10)
“Primary purpose” means one (1) of the purposes provided for in § 65-25-104(a)(1), and a “secondary purpose” means one (1) of the purposes provided for in § 65-25-104(a)(2);
- (11)
“Service” or “services” includes sales, exchanges, rentals, repairs and maintenance of land, facilities, equipment, machinery, appliances, accessories and goods and the financing of their acquisition by patrons;
- (12)
“Substantial portion” means ten percent (10%) or more of the value in dollars of a cooperative's assets and properties as appropriately stated in its books of account; and
- (13)
“Telecommunications” does not include the furnishing of telephone service, either local or long distance, leased lines or equipment for the vocal or written transmission of messages, or any related services for which a charge is made.
§ 65-25-103. Nonprofit organization and operation.
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Electric cooperatives heretofore incorporated under the former “Electric Cooperative Law” or hereafter incorporated under this chapter shall be organized and operated on a nonprofit basis and without pecuniary gain, and shall furnish their services on an area coverage basis at the lowest cost consistent with sound business principles.
§ 65-25-104. Purposes — Nonprofit cooperatives.
- (a)
A cooperative shall have one (1) or more of the:
- (1)
Primary purposes of:
- (A)
Supplying or furnishing at wholesale or retail, electric power and energy services to, and promoting the efficient use and conservation thereof by, one (1) or more patrons; or
- (B)
Supplying, furnishing or exchanging wholesale power and energy to or with any other entity; and/or
- (2)
Secondary purposes of:
- (A)
Supplying or furnishing other community utility services as provided in §§ 65-25-102(3) and 65-25-131;
- (B)
Providing management or operating services by contract with any cooperative, utility district, municipality, or other entity engaged in the provision of community services or of services including, but not limited to, water, sewer, and natural gas; and
- (C)
Promoting economic and industrial development through participation, including either as a borrower or as a lender, in any economic or industrial development program established by any agency of the United States or of the state of Tennessee.
- (b)
A cooperative existing prior to, or coming into existence on or after, April 7, 1988, may, without further action other than the adoption by its board of a resolution to that effect, have, and may engage in business for, one (1) or more of the secondary purposes, and may, subject to any approvals by its members that may otherwise be required by this chapter, after engaging in such business abandon the same by the adoption by its board of a resolution to that effect.
- (c)
A cooperative having the primary purpose may be the only incorporator and member or one (1) of the incorporators and members of another cooperative having a primary purpose and/or a secondary purpose; and a cooperative not having a primary purpose may be the only incorporator and member or one (1) of the incorporators and members of another cooperative having a secondary purpose only.
- (d)
Notwithstanding any other provision of this chapter, a cooperative having a primary purpose shall not, in pursuance of one (1) or more secondary purposes, burden, obstruct, prevent, interfere with, jeopardize, impair, delay, or lower the quality, reliability or adequacy, or increase the cost of, the pursuance and achievement of a primary purpose. Without limiting the generality of the foregoing sentence, in the business and affairs of the cooperative, including its ownership of and titles to, or its interests as mortgagor or mortgagee or as lessor or lessee in, any property of any kind or estate whatever, real or personal:
- (1)
Its conduct of business in pursuance of a primary purpose and of each of its secondary purposes shall be separately accounted for, so that the costs, expenses, expenditures, assets, properties, liabilities, obligations, revenues, receipts, capital indebtedness, equity, book value, net worth and other information necessary to reveal the operations and financial and other conditions of its business for each may be accurately ascertained; and its books and records shall be so set up and kept that, at any reasonable time after normal periods of business accounting and reporting and after a reasonable time following the end of each fiscal year, such ascertainment, including the determination of the pro rata amounts of patronage or the amounts of equity, if any, of the patrons in respect of its business for each such purpose, may be made; and
- (2)
It will not so operate as to permit its income from business transacted for one (1) or more secondary purposes to be such, in amount or as a percentage of its total income, as to prevent it from being able to obtain or to cause it to lose exemption from federal income taxation relative to a primary purpose.
§ 65-25-105. Powers of cooperative — Effect of chapter on third-party contractors.
- (a)
Not inconsistent with or in lieu of, but in addition to, the powers set forth in title 48, chapter 53, a cooperative has the power to:
- (1)
Have a corporate seal and alter the same at will; provided, that it need not have, nor shall it for any purpose be necessary for it to use, such a seal;
- (2)
Become a member in or stockholder of one (1) or more other nonprofit cooperatives, corporations or other legal entities and to own the same, wholly or in part;
- (3)
Solely on its own, or jointly, as tenant in common or as a partner with one (1) or more other entities, construct, purchase, take, receive, lease as lessee or lessor, or otherwise acquire, and own, hold, use, equip, maintain, and operate and sell, assign, transfer, convey, exchange, lease back, mortgage, pledge, or otherwise dispose of or encumber any and all property, of whatever kind or nature and of whatever estate, real and personal, tangible and intangible, including choses in action;
- (4)
Purchase or otherwise acquire, and own, lease as lessor or lessee, lease back, hold, use, and exercise, and sell, assign, transfer, convey, mortgage, pledge, hypothecate, or otherwise dispose of or encumber, franchises, rights, privileges, licenses, rights-of-way, and easements;
- (5)
Secure any of its liabilities or obligations by mortgage, pledge, deed of trust, or any other encumbrance upon any or all of its then-owned or after-acquired real or personal property, assets, franchises, revenues, or income;
- (6)
Make any and all contracts necessary or convenient for the full exercise of the powers in this chapter granted, including, but not limited to, contracts with any person, federal agency, or municipality, for the purchase or sale of electric power and energy and, in connection with any such electric power and energy contract, stipulate and agree to such covenants, terms, and conditions as the board may deem appropriate, including covenants, terms, and conditions with respect to resale rates, financial and accounting methods, services, operation and maintenance practices, and, consistent with § 65-25-112, the manner of disposing of the revenues of the properties operated and maintained by the cooperative;
- (7)
Conduct its business and exercise any or all of its powers within or without this state;
- (8)
Adopt, amend, and repeal bylaws;
- (9)
Organize and promote and otherwise foster and participate in, through membership or ownership, including stock ownership, community, regional, or statewide or national organizations whose purposes are or include the promotion and assistance of economic, industrial or commercial development which the board of the cooperative determines will, or likely will, result in economic benefits to the cooperative or its members;
- (10)
Do and perform any and all other acts and things and have and exercise any and all other powers which may be necessary, convenient, or appropriate to accomplish the cooperative's purpose or purposes;
- (11)
With respect to a primary purpose and the secondary purpose of supplying telecommunications and broadband internet access and related services, but without limiting the generality or particularity of subdivisions (a)(1)-(10), construct, maintain, and operate, and allow others, so long as such others are permitted by law to operate such systems within the cooperative's service area, to operate, electric, or other telecommunications or broadband internet access and related services transmission and distribution lines or other conducting or communications facilities along, upon, under, and across all of the following:
- (A)
Real property, personal property, rights of way and easements owned, held, or otherwise used by the cooperative. Any easement owned, held, or otherwise used by the cooperative in pursuit of a primary purpose may be used for any secondary purpose; and
- (B)
Public thoroughfares, including, but not limited to, all roads, highways, streets, alleys, bridges, and causeways and publicly owned lands if the applicable authorities having jurisdiction over the public thoroughfares and lands consent, but consent shall not be unreasonably withheld or conditioned for the purpose of enabling the authority to gain competitive advantage with respect to the rendition by the authority or any other entity of a service that the cooperative also has a right to render; and
- (12)
With respect to a primary purpose, but without limiting the generality or particularity of subdivisions (a)(1)-(11):
- (A)
Generate, manufacture, purchase, acquire, and transmit, and transform, supply, distribute, furnish, deliver, sell, and dispose of, electric power and energy;
- (B)
Make loans to persons to whom electric power or energy is or will be supplied by the cooperative for the purpose of, and otherwise to assist such persons in, wiring their premises and installing therein electric and plumbing fixtures, appliances, apparatus, and equipment of any and all kinds and character, and, in connection therewith, purchase, acquire, lease, sell, distribute, install, and repair such electric and plumbing fixtures, appliances, apparatus, and equipment, and accept, or otherwise acquire, and sell, assign, transfer, endorse, pledge, hypothecate and otherwise dispose of, notes, bonds and other evidences of indebtedness and any and all types of security therefor; and
- (C)
Condemn either the fee or such other right, title, interest or easement in and to property as the board may deem necessary, and such property or interest in such property may be so acquired, whether or not the same is owned or held for public use by corporations, associations, cooperatives or persons having the power of eminent domain, or otherwise held or used for public purposes, and such power of condemnation may be exercised in the mode of procedure prescribed by title 29, chapter 16, or in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain; provided, that no property which is owned or held for public use, nor any interest therein, shall be condemned if, in the judgment of the court the condemnation of such property or interest therein will obstruct, prevent, burden, interfere with, or unduly inconvenience the continued use of such property for the public use to which it is devoted at the time the same is sought to be condemned; provided further, that where title to any property sought to be condemned is defective, it shall be passed by decree of court; provided further, that where condemnation proceedings become necessary, the court in which such proceedings are filed shall, upon application by the cooperative and upon the posting of a bond with the clerk of the court in such amount as the court may deem commensurate with the value of the property, order that the right of possession shall issue immediately or as soon and upon such terms as the court, in its discretion, may deem proper and just; but provided further, that in cases where condemnation of property already devoted to a public use is sought, no order as to right of possession shall issue until it is finally determined that the condemnor is entitled to condemn such property. The power of eminent domain provided by this subdivision (a)(12)(C) shall be supplemental to, not in lieu of or in conflict with, § 48-51-103 of the Tennessee Nonprofit Corporation Act.
- (b)
All of the powers conferred by this section are to be exercised by a cooperative for rendering one (1) or more services to persons who or which are its members and to other persons, not to exceed fifteen percent (15%) of the number of persons who or which are its members; provided, that whenever in the sole judgment of its board such is necessary to acquire or to protect and preserve a cooperative's exemption from federal income taxation relative to a primary or secondary purpose, a cooperative may require new nonmember patron applicants or existing nonmember patrons to become members as a condition of initially receiving or of continuing to receive such service.
- (c)
This chapter does not affect, abrogate, or eliminate any obligation of a cooperative's third-party contractors that are permitted by law to operate within the cooperative's service area to comply with applicable permitting requirements that the cooperative is subject to with respect to property that is held or controlled by a railroad company.
- (d)
- (1)
In addition to all other powers set forth in this chapter, a cooperative may make contributions for bona fide charitable purposes and accept excess receipts pursuant to programs approved by the board of directors, which programs may include, but are not limited to, programs in which bills for electric power are rounded up to the next dollar when the amount of any excess receipt due to rounding is shown as a separate line on the electric bill.
- (2)
Excess receipts accepted by a cooperative pursuant to programs authorized by subdivision (d)(1) are not considered revenue to the cooperative and the cooperative may only use the excess receipts for charitable purposes.
- (3)
This subsection (d) prohibits discrimination by a cooperative in the distribution of excess receipts for bona fide charitable purposes to organizations whose mission is to assist persons regardless of their race, color, creed, religion, national origin, gender, disability, or age.
- (4)
- (A)
A cooperative that establishes a program authorized by subdivision (d)(1) on or after January 1, 2021, shall not enroll any customer into the program without the express consent of the customer.
- (B)
A customer who is enrolled in a program authorized by subdivision (d)(1) may opt out of the program by providing notice to the cooperative of the customer's desire to cease participation in the program.
- (C)
Upon receiving an opt-out notice from a customer, the cooperative shall remove the customer from enrollment in the program no later than the first day of the customer's next regular billing cycle that begins no fewer than thirty (30) days after the date of the customer's opt-out notice.
- (5)
- (A)
Any cooperative that on June 3, 2019, utilizes a program authorized by subdivision (d)(1) and operates the program on an opt-out basis shall send a written notice to each cooperative customer no later than November 1, 2020, that contains, but is not limited to, the following information:
- (i)
A statement that the cooperative utilizes a program authorized by subdivision (d)(1), the program is operated on an opt-out basis, and a description of the program;
- (ii)
Notification that a customer whose bill is currently rounded up by the cooperative has the right to opt out of participation in the program; and
- (iii)
Contact information for the cooperative and instructions on how the customer may contact the cooperative to opt out of participation in the program.
- (B)
The written notice required by this subdivision (d)(5) may be provided to the customer by electronic means and may accompany a regular billing statement, at the discretion of the cooperative.
- (C)
A cooperative that on June 3, 2019, utilizes a program authorized by subdivision (d)(1) and operates the program on an opt-out basis that fails to send the notice required by this subdivision (d)(5) shall, on and after January 1, 2021, cease operating the program on an opt-out basis and shall not operate a program unless operated in compliance with subdivision (d)(4).
- (6)
Any cooperative that utilizes a program authorized by subdivision (d)(1) and that maintains a website that is accessible by the general public shall publish in a conspicuous location on the website by November 1, 2020, and throughout the duration of the cooperative's utilization of the program, the following information:
- (A)
A statement that the cooperative utilizes a program authorized by subdivision (d)(1) and a description of the program;
- (B)
Notification that a customer whose bill is currently rounded up by the cooperative has the right to opt out of participation in the program; and
- (C)
Contact information for the cooperative and instructions on how the customer may contact the cooperative to opt into or out of participation in the program.
§ 65-25-106. Bylaws.
- (a)
The original bylaws of a cooperative shall be adopted by its board. Thereafter, bylaws shall be changed by adoption, amendment, or repeal by its members, except that:
- (1)
The members may, by bylaw provision, delegate to the board the power to change all or any specified provision of the bylaws, but such delegation shall not forfeit or restrict the right of the members thereafter to change such provision, whether or not the board has theretofore exercised such delegated power; and
- (2)
Either the board or the members of a cooperative may change any bylaw when, as established by law, such bylaw is illegal or has become a legal nullity.
- (b)
A bylaw may not be changed unless a copy or an accurate summary explanation thereof is contained in or with the notice of the member or board meeting at which it is to be acted upon; a proposed change so noticed may be amended from the floor of a board meeting if the floor amendment is germane thereto, but it may not be so amended from the floor of a member meeting unless such floor amendment is germane thereto and the bylaws provide that such floor amendment is allowable. Except as may otherwise be determined by the board, a change of the bylaws proposed by individual members shall not be so noticed to or acted upon by the members at a member meeting unless a petition setting forth with particularity the wording of the proposed change shall be filed with the cooperative over the signatures of as many as, but no less than, fifty (50) members at least forty-five (45) days prior to the date of such member meeting; provided, that the board need not notice any bylaw change proposed by such a petition if it determined that, if adopted, the change would be illegal or a legal nullity. The time of the effectiveness of any change shall be as determined by its own wording or as fixed in the wording of the resolution by which it is adopted.
§ 65-25-107. Board of directors.
- (a)
The business and affairs of a cooperative shall be managed under the direction of a board of not less than five (5) directors, each of whom shall be a member of the cooperative or, if the cooperative's membership consists wholly of one (1) or more other cooperatives, a member, a director or an executive or administrative officer or employee of such one (1) or more member cooperatives. The bylaws shall prescribe the number of directors, their qualifications, other than those provided for in this chapter, the manner of holding meetings of the board and of the election of successors to directors who shall resign, die, or otherwise be incapable of or disqualified from acting, and any other rule, manner, procedure or matter relating to the board and its exercise of the powers conferred upon it by this chapter or by other law, the articles of incorporation or the bylaws.
- (b)
Directors may, but only if so provided in a cooperative's bylaws, be removed and their successors thereupon elected by the members; provided, that no director shall be so removable except upon the basis of a written charge, and the presentation of some evidence in support thereof, that such director has been guilty of an act or omission adversely affecting the business and affairs of the cooperative and amounting to actionable negligence, malfeasance, misfeasance or nonfeasance, or fraud or criminal conduct; further, that no director shall be removable from office, either by the members or by judicial decree, or be otherwise civilly liable, for the reason that such director, in good faith and believing such to be in the best interests of the cooperative and of its present and future members, failed or declined to support, or that such director opposed:
- (1)
A proposal to sell or lease-sell all or a substantial portion of the cooperative's assets and properties or to dissolve the cooperative;
- (2)
A motion to notify the cooperative's members of a proposal received by the cooperative for such a sale, lease-sale or dissolution; or
- (3)
A motion or any other effort to call a meeting of the cooperative's members to consider and act upon a proposal for such a sale, lease-sale or dissolution.
- (c)
Directors named in articles of incorporation, consolidation or merger, as the case may be, shall hold office until the next following annual meeting of the members or until their successors shall have been elected and qualified. At each annual meeting of the members or, in case such a meeting shall not be held or shall not for any reason elect directors otherwise scheduled to be elected, at an adjournment of such meeting or at the next annual meeting of the members or at any earlier special member meeting called for that purpose, the members shall elect directors to hold office until the next following annual member meeting, except as otherwise provided in subsection (d), and each director so elected shall hold office for the term for which such director is elected or until a successor shall have been elected and qualified. If the bylaws so provide, directors may be elected solely by mail ballot, delivered to the cooperative either by mail or any other reasonable means of delivery at least three (3) business days prior to the date on which the annual meeting of the members is scheduled to be held. The secretary shall announce the winner or winners at such meeting, or by timely written communication mailed to all members if for any reason the meeting is not duly held, and the persons so elected shall take office at the board meeting first held on or after the date on which the member meeting was scheduled to be held.
- (d)
If the bylaws so provide, directors shall be divided:
- (1)
Into two (2) classes so that one-half (½) of them or as near thereto as may be are elected each year for two-year terms;
- (2)
Into three (3) classes so that one-third (⅓) of them or as near thereto as may be are elected each year for three-year terms; or
- (3)
Into four (4) classes so that one-fourth (¼) of them or as near thereto as may be are elected each year for four-year terms.
- (e)
A majority of the directors in office shall constitute a quorum; provided, that if a matter to be considered for action by the board is one with respect to which a director has a conflict of interest, that director shall not be counted as a director in office for the purpose of determining whether a quorum is present.
- (f)
If, pursuant to the bylaws, a husband and wife hold a joint membership in a cooperative, either, but not both at the same time, may serve as a director.
- (g)
All of a cooperative's powers shall be vested in and exercised by the board, except such as are conferred upon or reserved to the members by this chapter and any other applicable law or the cooperative's articles of incorporation or bylaws.
- (h)
The board of directors of the cooperative shall, within ninety (90) days following July 1, 2008, adopt a written policy and make it available to the members of the cooperative concerning the manner in which a member of the cooperative may appear before the board.
§ 65-25-108. Election of directors by districts.
- (a)
- (1)
Notwithstanding any other provision of this chapter, the bylaws may provide that the territory in which a cooperative furnishes service shall be divided into two (2) or more directorate districts for the purpose of:
- (A)
Having nominated therefrom, at and by district meetings of the members thereof or by any other manner provided for in the bylaws, candidates for directors to be voted upon by the cooperative's members at-large; or
- (B)
Both nominating and electing directors therefrom at and by district meetings of the members.
- (2)
The composition of such districts shall have an equitable regard for the number of members served therein, other communities of interest and boundaries that are readily ascertainable. District descriptions need not be contained in the bylaws proper but may be incorporated therein by reference to maps, drawings or other descriptions which, at a cooperative's offices, are accessible to the members for inspection at all reasonable times. To be eligible for election and to serve as a district director, a person must be a member of the cooperative, must reside therein, must receive service from the cooperative, and, in the case of a cooperative having the primary purpose, must receive from the cooperative electric service therein at such person's primary residential abode. In addition to district directors, the bylaws may provide for one (1) or more directors at-large to be nominated in such manner as provided in the bylaws and to be voted upon by the members at-large.
- (b)
- (1)
Except as to the minimum and maximum periods prior to a member meeting within which a district meeting shall be held and the notice and quorum requirements therefor, all of which shall be provided for in the bylaws, the board shall fix the date, time and place within a district for holding, and shall adopt the plans, procedures and manner for conducting, directorate district meetings.
- (2)
- (A)
Except as provided in subdivision (b)(2)(B), the bylaws may provide that members may vote for the election of district directors by mail ballot at a directorate district meeting; provided, that the bylaws shall contain a description of the voting procedure, which procedure shall be designed to ensure the integrity of such district director election.
- (B)
In any electric cooperative organized pursuant to this chapter, that, as reported in the June 30, 1998, TVA 4171 report, served between forty thousand eight hundred (40,800) and forty thousand nine hundred (40,900) customers, and had in service between four thousand fifteen (4,015) and four thousand twenty-five (4,025) miles of power line, no member may vote by mail ballot at a directorate district meeting.
§ 65-25-109. Election of directors by member cooperatives.
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The bylaws of a cooperative whose membership consists wholly of one (1) or more other cooperatives shall provide for the manner of nominating and electing its directors, and the bylaws may provide that directors shall be elected from among the members, directors, officers or executive or administrative employees of member cooperatives and/or that its directors shall be either nominated or elected or appointed solely by such member cooperatives' boards.
§ 65-25-110. Officers of cooperative.
- (a)
The principal officers of a cooperative shall consist of a president and/or chair, vice president and/or vice chair, secretary, and treasurer, who shall be elected annually by and from the board. No person shall continue to hold any of the above offices after having ceased to be a director. The offices of secretary and of treasurer may be held by the same person.
- (b)
The board may also elect or appoint such other officers, agents or employees as it shall deem necessary or advisable and shall prescribe their powers and duties.
- (c)
Subject to the removal of directors as may be provided for in the bylaws, any officer elected or appointed by the board may by the board be removed from such office and a successor elected or appointed whenever the board determines that such action is in the cooperative's best interests.
§ 65-25-111. Members — Qualifications — Meetings — Voting rights — Terms and conditions.
- (a)
- (1)
No person who is not an incorporator of a cooperative shall become a member or a nonmember patron thereof and eligible to receive any service therefrom unless such person shall agree to pay for such service and is otherwise both willing and able to abide by the cooperative's terms and conditions for rendering service.
- (2)
The terms and conditions of a cooperative, as set forth in its articles of incorporation, bylaws or otherwise, for the admission of members and for the rendering of service to patrons:
- (A)
Shall be just and reasonable;
- (B)
Shall not unreasonably discriminate as to its services, or its rates, charges or service rules and regulations, between or among consumers of the same class, or two (2) or more different consumer classes, or two (2) or more localities;
- (C)
Shall not afford any unreasonable preference or advantage in favor of, or any unreasonable prejudice or disadvantage against, any consumers, consumer classes or localities;
- (D)
Nor shall membership in or services from a cooperative be denied, conditioned, restricted or terminated arbitrarily, capriciously or without good cause.
- (3)
No person shall be eligible to be a member of a cooperative whose purposes include the primary purpose unless such person agrees to receive electric service from the cooperative.
- (4)
Membership in a cooperative shall not be transferable except as may be provided in the bylaws.
- (5)
The bylaws may prescribe additional qualifications, limitations, rights and obligations in respect of membership, and shall prescribe such in respect of membership admission, resignation, withdrawal, suspension, expulsion and termination.
- (b)
Special meetings of the members may be called by the board, by that number of directors that is one (1) less than a majority of the directors in office, or by a petition therefor signed by as many as but no fewer than ten percent (10%) of the members. Such meetings shall be held on such date and at such time and place as are fixed by those calling the same or as may otherwise be provided for in the bylaws.
- (c)
- (1)
Written or printed notice stating the date, time and place of each meeting of the members and, in the case of a special meeting or of a regular meeting so requiring, the purpose or purposes of the meeting shall be delivered to each member, either personally or by mail:
- (A)
Except as provided in § 65-25-113(a)(2)(D), not less than ninety (90) days prior to the date of a meeting of the members of a cooperative having a primary purpose and at which the cooperative's dissolution or the sale or lease-sale of all or any substantial portion of its assets and properties devoted to and used or useful in pursuance of such purpose is scheduled to be considered and acted upon;
- (B)
Not less than sixty (60) days prior to the date of a meeting of the members of a cooperative:
- (i)
Having a primary purpose and at which the sale or lease-sale of all or any substantial portion of its assets and properties devoted to and used or useful in pursuance of one (1) or more secondary purposes is, solely because its bylaws so require, scheduled to be acted upon by the members; or
- (ii)
Having one (1) or more secondary purposes only and at which the sale or lease-sale of all or any substantial portion of its assets and properties devoted to and used or useful in pursuance of one (1) or more such purposes is scheduled to be considered and acted upon;
- (C)
Except as provided in § 65-25-113(a)(2)(D), not less than forty-five (45) days prior to the date of a meeting of the members of a cooperative at which a merger or consolidation with one (1) or more other cooperatives is scheduled to be considered and acted upon; or
- (D)
If subdivision (c)(1)(A), (B) or (C) is not applicable, not less than five (5) nor more than twenty-five (25) days prior to the date of the meeting, unless the bylaws require longer periods.
- (2)
If mailed, notice shall be deemed to have been delivered if addressed to the member as shown on the cooperative's records and, with postage thereon prepaid, deposited in the United States mail on or prior to the date next following which the minimum period for such notice would begin.
- (d)
A quorum for the transaction of business at meetings of the members shall, except as otherwise provided in this subsection (d), be the lesser of two percent (2%) of all members or one hundred (100) members; and, once such a quorum is established, the meeting may proceed to transact all business that may lawfully come before it so long as at least the lesser of one percent (1%) of all members or fifty-one (51) members remain present. In the case of a meeting of the members of a cooperative having a primary purpose and at which the dissolution thereof or the sale or lease-sale of all or any substantial portion of the cooperative's assets and property devoted to and used or useful in achieving the primary purpose is scheduled to be considered and acted upon pursuant, respectively, to § 65-25-113 or § 65-25-120, such quorum requirement shall be and shall remain throughout the meeting ten percent (10%) of all members. If, at any member meeting, less than the required quorum is present to enable the meeting to begin transacting business, or if the quorum requirement for it to continue ceases to exist, a majority of those present may adjourn the meeting from time to time without further notice.
- (e)
Each member shall be entitled to one (1) vote on each matter submitted to a vote at member meetings and, if such be the case, at directorate district meetings. A member may not cumulate votes. Voting may be in person, by mail, by proxy, or by any combination thereof, as provided in the bylaws; however, if the bylaws are silent on the manner of voting, voting shall be only in person. If the bylaws provide for voting by proxy or by mail balloting, they may restrict the matters with respect to which they may be voted and in any case they shall prescribe the conditions applying to such voting, including limitations on the number of proxies that may be voted by one (1) member or other person; provided that:
- (1)
If the bylaws allow for voting by proxy, by mail balloting, or by both, to sell or lease-sell all or any substantial portion of the cooperative's assets and properties or to dissolve the cooperative as an incident of such sale or lease-sale, they shall also allow for voting by proxy or by mail balloting on a proposal to merge or consolidate with one (1) or more other cooperatives;
- (2)
No one (1) member or other person may vote as proxy for more than three (3) members except in voting on a proposal to:
- (A)
Sell, lease, lease-sell or otherwise dispose of or encumber all or a substantial portion of a cooperative's assets and properties that are devoted to and used or useful in achieving one (1) or more of its purposes; or
- (B)
Dissolve a cooperative;
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in either of which case the bylaws may provide that one (1) member or other person may vote for up to but no more than ten (10) members;
- (3)
Provisions for mail voting and return of written ballots shall be such that, although voting by an identifiable member may be reasonably verified, such voting shall be secret and such ballots may, instead of being delivered to the cooperative by mail, be delivered to the cooperative in any other proper manner; and
- (4)
Printed mail ballots shall be only in such form and content as prescribed by the board and, except as provided in § 65-25-113(a)(3), shall be delivered by the cooperative to the members via the United States mail with, or in any event at the same time as, the mailing of the notice of the member meeting at or with respect to which they will be voted.
- (f)
Notwithstanding a bylaw provision to the contrary, and subject to guidelines and procedures as the cooperative may adopt, a cooperative may permit a director, and any or all cooperative members, to participate in a regular or special meeting by, and the cooperative may conduct the meeting through the use of, any means of virtual or remote communication if the cooperative:
- (1)
Implements reasonable measures to verify that each person deemed present and permitted to attend or vote at the meeting by means of virtual or remote communication is a director or cooperative member;
- (2)
Implements reasonable measures to provide directors or cooperative members a reasonable opportunity to participate in the meeting and to vote on matters submitted to the board or cooperative members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with the proceedings; and
- (3)
Maintains a record of any vote or other action taken by a director or cooperative member that is taken by means of virtual or remote communication.
- (g)
A director or cooperative member who participates in a meeting by the means described in subsection (f), whether the meeting is to be held at a designated place or solely by means of virtual or remote communication, is deemed to be present in person at the meeting.
§ 65-25-112. Refunds to patrons.
- (a)
With respect to the supplying or furnishing of service by a cooperative in pursuance of the primary purpose, the revenues therefrom for any fiscal year, in excess of the amount thereof necessary, to:
- (1)
Defray expenses of the cooperative, including the operation and maintenance of its facilities during such fiscal year;
- (2)
Pay interest and principal obligations of the cooperative coming due in such fiscal year;
- (3)
Finance, or to provide a reserve to finance, the construction or acquisition by the cooperative of additional facilities to the extent determined by the board;
- (4)
Provide a reasonable reserve for working capital;
- (5)
Provide a reserve for the payment of indebtedness of the cooperative maturing more than one (1) year after the date of the incurrence of such indebtedness in an amount not less than the total of the interest and principal payments in respect thereof required to be made during the next following fiscal year; and
- (6)
Provide a fund for education in cooperation and for the dissemination of information concerning the effective use and conservation of electric power and energy and concerning any other services made available by the cooperative;
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shall be distributed by the cooperative to patrons in the manner provided for in the bylaws, either:
- (A)
As patronage refunds prorated in accordance with the patronage of the cooperative by the respective patrons paid for during or with respect to such fiscal year;
- (B)
By way of general reductions of rates or other charges; or
- (C)
By any combination of methods in (b)(1)-(3).
- (b)
With respect to the supplying or furnishing of services in pursuance of one (1) or more secondary purposes, the revenues of a cooperative shall, as separately accounted for and determined for each such service, be first applied as provided in subdivisions (a)(1)-(6) and then distributed to the patrons of each such service in the manner provided for in the bylaws, either:
- (1)
As patronage refunds prorated in accordance with the patronage of the cooperative by the respective patrons paid for during or with respect to such fiscal year;
- (2)
By way of general reductions of rates or other charges;
- (3)
By crediting patrons with having furnished the cooperative capital in amounts equal to the amounts of their patronage not refunded pursuant to subdivision (b)(1) and not used for general reduction of rates or other changes pursuant to subdivision (b)(2), all or any portion of such capital to be redeemable and be retired at such later time as the board in its sole discretion determines that such will not impair the cooperative's financial condition and will be in the cooperative's best interests; or
- (4)
By any combination of methods in subdivisions (b)(1)-(3).
- (c)
Nothing contained in subsection (a) or (b) shall be construed to prohibit the payment by a cooperative of all or any part of its indebtedness prior to the date when the same shall become due.
§ 65-25-113. Sale or lease-sale of assets and property.
- (a)
Except as provided in subdivision (a)(4), a cooperative having a primary purpose may sell or lease-sell all or any substantial portion of its assets and properties that are devoted to and used or useful in pursuance of such a purpose only if it does so in accordance with subdivisions (a)(1), (2) and (3):
- (1)
- (A)
Such sale or lease-sale shall be authorized at a meeting of its members by the affirmative votes of as many as but not fewer than:
- (i)
A majority of its total members, if the purchase price or other consideration shall be sufficient to discharge or provide for the discharge of all of the cooperative's liabilities and, additionally, be equal to or greater than four hundred percent (400%) of the cooperative's net worth;
- (ii)
Fifty-five percent (55%) of its total members, if the purchase price or other consideration shall be sufficient to discharge or provide for the discharge of all of the cooperative's liabilities and, additionally, be equal to or greater than three hundred fifty percent (350%) of the cooperative's net worth;
- (iii)
Sixty percent (60%) of its total members, if the purchase price or other consideration shall be sufficient to discharge or provide for the discharge of all of the cooperative's liabilities and, additionally, be equal to or greater than three hundred percent (300%) of the cooperative's net worth;
- (iv)
Sixty-five percent (65%) of its total members, if the purchase price or other consideration shall be sufficient to discharge or provide for the discharge of all of the cooperative's liabilities and, additionally, be equal to or greater than two hundred fifty percent (250%) of the cooperative's net worth;
- (v)
Seventy percent (70%) of its total members, if the purchase price or other consideration shall be sufficient to discharge or provide for the discharge of all of the cooperative's liabilities and, additionally, be equal to or greater than two hundred percent (200%) of the cooperative's net worth;
- (vi)
Seventy-five percent (75%) of its total members, if the purchase price or other consideration shall be sufficient to discharge or provide for the discharge of all of the cooperative's liabilities and, additionally, be equal to or greater than one hundred fifty percent (150%) of the cooperative's net worth; or
- (vii)
Eighty percent (80%) of its total members, if the purchase price or other consideration shall be less than sufficient to discharge or provide for the discharge of all of the cooperative's liabilities and, additionally, an amount equal to one hundred fifty percent (150%) of the cooperative's net worth;
- (B)
If a sale or lease-sale is of a substantial portion but less than all of the cooperative's such assets and properties, then the net worth shall be that amount that is determined by the ratio of the book value of such assets and properties to the book value of all of the cooperative's such assets and properties; and liabilities to be discharged or to be provided for discharge shall be that amount determined in the same manner, plus such additional amount, if any, required for such discharge or provision for such discharge by any holder of a lien on such assets and properties; provided, that if the cooperative is also engaged in business in pursuance of one (1) or more secondary purposes, the net worth and liabilities referred to in this subsection (a) shall be those related to the cooperative's assets and properties devoted to and used or useful in pursuance of a primary purpose, as separately accounted for in accordance with § 65-25-104(d)(1);
- (2)
A proposal for such a sale or lease-sale shall, except as provided in subdivision (a)(2)(D), first be recommended and submitted to the members by the board, but only after the board's compliance with the following requirements:
- (A)
It shall first appoint three (3) persons, each of whom is independent of the cooperative and of the other two (2) and each being expert in electric utility property evaluations, and commission them, separately, to study, appraise and evaluate such assets and properties, including their going concern value and the values associated with the right of the members to participate in the ownership and control of the cooperative. Such appraisers shall be instructed to and shall take into account any other factors they may deem relevant in determining the present market value of such assets and properties. Within not more than sixty (60) days after their appointment and commission, each appraiser shall render their highest determination of such present value. The board shall not recommend and submit any proposal that, within one (1) year theretofore or within one (1) year thereafter, it shall have received to purchase or lease-purchase such assets and properties, or, within one (1) year thereafter, make any offer to sell or lease-sell such assets and properties, for a consideration that is less than the highest such determination rendered by the appraisers; nor shall it, following the expiration of one (1) year thereafter, make such a recommendation or offer without, again, first complying with the foregoing requirements;
- (B)
If, after receiving such appraisals, the board resolves to pursue the matter further, it shall, within not more than sixty (60) days next following such resolution, transmit the appraisals, together with any underlying data and information that may have accompanied them, to every other cooperative that is engaged in business for the primary purpose and invite them to submit competing or alternative proposals, including proposals to merge or consolidate with the cooperative. Such appraisals shall also be accompanied by any proposal for such a sale or lease-sale received by the cooperative within one (1) year prior to the receipt of the last appraisal or received subsequent thereto but prior to the adoption of such resolution; provided, that only the most recent proposal from a person that has made two (2) or more proposals need be so transmitted. Such other cooperatives shall be given at least sixty (60) days within which to submit competing or alternative proposals, and they shall be notified in such transmittal of the actual final date for such submissions;
- (C)
If, after such date, the board so resolves, it shall recommend and submit to the members a proposal for such a sale or lease-sale or a proposal to merge or consolidate the cooperative with one (1) or more other cooperatives having the primary purpose, accompanying the proposal with verbatim copies of all competing or alternative proposals it has received, together with all of the appraisals and any underlying data and information that may have accompanied such appraisals. Such transmittals shall also be accompanied by a notice of a meeting of the members to consider and act upon the recommended proposal, which meeting may be a special or the regular annual meeting of the members; and
- (D)
Any three hundred (300) or more members of the cooperative may, over their respective signatures and within not less than forty-five (45) days prior to the date of such member meeting, petition the cooperative to mail to all of the cooperative's members any statement of opposition to the board's recommendation and/or their own recommendation that a competing or alternative proposal, including a proposition to merge or consolidate the cooperative with one (1) or more other cooperatives, or to dissolve it as an incident of their proposal for a sale or lease-sale, be accepted and approved by the members at such meeting, in which event the board shall cause a printed copy of the petition, including the printing of the names of the member signatories thereof, together with a printed copy of the statement, to be transmitted to all of the cooperative's members via the United States mail not less than thirty (30) days prior to such member meeting, with the cost of such printing and mailing to be borne by the cooperative. If so mailed, such petition and statement shall constitute sufficient notice of any such recommended competing or alternative proposal for the same to be considered and acted upon at such meeting, but not until if and after the proposal recommended by the board shall have first been considered and rejected by vote of the members;
- (3)
If the bylaws provide for voting on such proposals by proxy or by mail balloting, neither proxy forms nor printed ballots with respect to such member meeting shall be mailed or otherwise be made available to, or be capable of being validly executed or voted by, the members sooner than twenty (20) days prior to the date of such meeting, and the bylaws shall contain appropriate provisions assuring that:
- (A)
If the same is not executed sooner than twenty (20) days prior to the date of such meeting, any otherwise legally sufficient proxy shall be honored by the cooperative, notwithstanding that the board may have prescribed and mailed or otherwise made available the form and content for proxies; and
- (B)
Only official mail ballots which as to form and content shall have been prescribed by the board shall be allowed, but such ballots shall, clearly and fairly, identify the proposal being recommended by the board and separately, if such be the case, any competing or alternative proposal being recommended by any member-filed petition, and will contain on the front or back thereof clear and accurate instructions as to how the ballots may validly be voted.
- (b)
Compliance with the requirements of subdivisions (a)(1) and (2) shall not be required if the sale or lease-sale is to be to or with one (1) or more other cooperatives which have the primary purpose and the effect thereof will be essentially the same as if a merger or consolidation were being consummated with such one (1) or more other cooperatives. In such case, the proposal and plan therefor shall be first approved by the cooperative's board and recommended and submitted by the board to the members for their consideration and action at a special member meeting called by the board for that purpose or at the next annual member meeting, the notice of which shall contain or be accompanied by a copy of such proposal and plan; and such a sale or lease-sale shall be approved and authorized if it receives the affirmative votes of a majority of the members of the cooperative; provided, that a proposal and plan for such a sale or lease-sale need not be first approved and recommended by the board if so recommended by three hundred (300) or more members and noticed to all of the members, all as provided for in subdivision (a)(2)(D), in which event the provisions of subdivision (a)(3) shall also be applicable.
- (c)
A proposal for the sale or lease-sale by a cooperative having the primary purpose and one (1) or more secondary purposes of all or a substantial portion of its assets and properties devoted to and used or useful in the pursuance of one (1) or more such secondary purposes may be approved, authorized and consummated by action of its board only, unless the bylaws require the approval by the members. If the cooperative has secondary purposes only, such proposal shall be first approved by the cooperative's board and recommended and submitted to the members for their consideration and action at a special member meeting called for that purpose or at the next annual member meeting, the notice of which shall contain or be accompanied by a copy of the proposal. Such proposal shall be approved and authorized if it receives the affirmative votes of as many as but not fewer than two-thirds (⅔) of the members of the cooperative voting thereon.
- (d)
Notwithstanding any other provision of this section:
- (1)
A substantial portion of a cooperative's assets and properties may be sold solely upon approval and authorization of the board if such sale is in the nature of a forced sale for the reason that the purchaser possesses and otherwise would exercise the legal right to acquire, damage, relocate or destroy the same by condemnation or otherwise without the cooperative's consent;
- (2)
The board may sell or otherwise dispose of property no longer used or useful in conducting the business of the cooperative; and
- (3)
No offer to purchase or lease-purchase and no offer to sell or lease-sell all or a substantial portion of a cooperative's assets and properties shall be valid or, if made and accepted, enforceable unless the total consideration to be paid or otherwise furnished therefor, to the extent that the same is in excess of the amounts necessary to discharge or to provide for the discharge of the cooperative's liabilities, or is in excess of that portion of such discharge or provision for discharge that may be a necessary precedent to or incident of a sale or lease-sale of a substantial portion but less than all of such assets and properties, shall be distributed to, or if such be the case allocated and assigned to, the patrons or former patrons of the cooperative in the manner provided for in its articles or bylaws or applicable law.
§ 65-25-114. Other disposition, lease or encumbrance of assets and properties.
- (a)
A cooperative having the primary purpose only or one (1) or more secondary purposes only may otherwise dispose of, lease, mortgage or otherwise encumber all or a substantial portion of its assets and properties that are devoted to and used or useful in pursuance of the primary purpose only or of one (1) or more of its secondary purposes only upon the proposal therefor being first approved and recommended by its board and submitted to the members for their consideration and action at a special member meeting called by the board for that purpose or at a regular annual member meeting, the notice of which shall contain or be accompanied by a copy of the proposed disposition, lease, mortgage or other encumbrance or by an accurate summary explanation thereof. Such proposal shall be approved and authorized if it receives the affirmative votes of as many as, but not fewer than, two-thirds (⅔) of the members voting thereon.
- (b)
A cooperative having both the primary and one (1) or more secondary purposes may otherwise dispose of, lease, mortgage or otherwise encumber all or a substantial portion of its assets and properties devoted to and used or useful in pursuance of one (1) or more secondary purposes upon the proposal therefor being approved and authorized by its board only, unless its bylaws require the approval of the members.
- (c)
Notwithstanding subsections (a) and (b), or in any other law, or a cooperative's articles of incorporation or bylaws, the board of a cooperative, without authorization or approval of the members thereof, shall have full power and authority to authorize the execution and delivery of a mortgage or mortgages or deed or deeds of trust upon, or the pledging or encumbrancing of, any or all of the assets and properties of the cooperative, whether acquired or to be acquired, and wherever situated, as well as the revenues and income therefrom, all upon such terms and conditions as the board shall determine, to secure any indebtedness of the cooperative to the United States or any instrumentality or agency thereof, or to any corporation or financial institution authorized to assist in the credit and financial needs of cooperatives, or to any other source of finance.
§ 65-25-115. Directors, officers or members may take acknowledgments.
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No person who is authorized to take acknowledgments under the laws of this state shall be disqualified from taking acknowledgments of instruments executed in favor of a cooperative or to which it is a party by reason of being a director, officer or member of such cooperative.
§ 65-25-116. Recordation of mortgages — Priority.
- (a)
Any mortgage, deed of trust, or other instrument executed by a cooperative which, by its terms, creates a lien upon real and personal property, then owned or after-acquired, and which is recorded as a mortgage of real property in any county in which such property is located or is to be located, shall have the same force and effect as if the mortgage, deed of trust, or other instrument were also recorded or filed in the proper office in such county as a mortgage of personal property.
- (b)
Recordation of any such mortgage, deed of trust, or other instrument shall cause the lien thereof to attach to all after-acquired property of the mortgagor of the nature therein described as being mortgaged or pledged thereby immediately upon the acquisition of such property by the mortgagor, and such lien shall be superior to all claims of creditors of the mortgagor and purchasers of such property and to all other liens, except liens of prior record and tax liens, affecting such property.
§ 65-25-117. Consolidation.
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Any two (2) or more cooperatives, each of which is hereinafter designated a “consolidating cooperative,” may consolidate into a new cooperative, hereinafter designated the “new cooperative,” by complying with the following requirements:
- (1)
The proposition for the consolidation and proposed articles of consolidation to give effect thereto shall be first approved by the board of each consolidating cooperative or by the board or boards of one (1) or more other cooperatives when proposed by at least three hundred (300) members of a cooperative in the manner provided by § 65-25-113(a)(2)(D). The proposed articles of consolidation shall recite in the caption that they are executed pursuant to this chapter, and shall state:
- (A)
The name of each consolidating cooperative, the address of its principal office, and the date of the filing of its articles of incorporation in the office of the secretary of state;
- (B)
The name of the new cooperative and the address of its principal office;
- (C)
The names and addresses of the persons who shall constitute the first board of the new cooperative;
- (D)
The terms and conditions of the consolidation and the mode of carrying the same into effect, including the manner and basis of converting memberships in each consolidating cooperative into memberships in the new cooperative; and
- (E)
Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the new cooperative;
- (2)
The proposition for the consolidation and the proposed articles of consolidation shall then be submitted to a vote of the members of each consolidating cooperative at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed consolidation. The proposed consolidation and proposed articles of consolidation shall be approved upon receiving the affirmative votes of as many as, but not fewer than, two-thirds (⅔) of those members of each consolidating cooperative voting thereon at each such meeting; and
- (3)
Upon such approvals, articles of consolidation in the form approved shall be executed and acknowledged on behalf of each consolidating cooperative by its president or vice president and attested by its secretary, who shall affix the cooperative seal thereto if it has and employs such a seal. The presidents or vice presidents shall also make and annex thereto affidavits stating that this section was duly complied with by their respective cooperatives. Such articles of consolidation and affidavits shall be submitted to the secretary of state for filing as provided in this chapter.
§ 65-25-118. Merger.
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One (1) or more cooperatives, each of which is hereinafter designated a “merging cooperative,” may merge into another cooperative, hereinafter designated the “surviving cooperative,” by complying with the following requirements:
- (1)
The proposition for the merger and proposed articles of merger to give effect thereto shall be first approved by the board of each merging cooperative, or by the board or boards of one (1) or more other cooperatives when proposed by at least three hundred (300) members of a cooperative in the manner provided by § 65-25-113(a)(2)(D) and by the board of the surviving cooperative. The proposed articles of merger shall recite in the caption that they are executed pursuant to this chapter and shall state:
- (A)
The name of each merging cooperative, the address of its principal office, and the date of the filing of its articles of incorporation in the office of the secretary of state;
- (B)
The name of the surviving cooperative and the address of its principal office;
- (C)
A statement that the merging cooperatives elect to be merged into the surviving cooperative;
- (D)
The terms and conditions of the merger and the mode of carrying the same into effect, including the manner and basis of converting the memberships in the merging cooperative or cooperatives into memberships in the surviving cooperative; and
- (E)
Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the surviving cooperative;
- (2)
The proposition for the merger and the proposed articles of merger shall then be submitted to a vote of the members of each merging cooperative and of the surviving cooperative at any annual or special meeting of the members thereof, the notice of which shall set forth full particulars concerning the proposed merger. The proposed merger and the proposed articles of merger shall be approved upon receiving the affirmative votes of as many as, but not fewer than, two-thirds (⅔) of those members of each cooperative voting thereon at each such meeting; and
- (3)
Upon such approvals, articles of merger in the form approved shall be executed and acknowledged on behalf of each such cooperative by its president or vice president and attested by its secretary, who shall affix the cooperative's seal thereto if it has and employs such a seal. The president or vice president shall also make and annex thereto affidavits stating that this section was duly complied with by such person's respective cooperative. Such articles of merger and affidavits shall be submitted to the secretary of state for filing as provided in this chapter.
§ 65-25-119. Effect of consolidation or merger.
-
The effect of consolidation or merger shall be as follows:
- (1)
The several cooperatives which are parties to the consolidation or merger shall be a single cooperative, which, in the case of a consolidation, shall be the new cooperative provided for in the articles of consolidation, and, in the case of a merger, shall be that cooperative designated in the articles of merger as the surviving cooperative, and the separate existence of all such cooperatives, except the new or surviving cooperative, shall cease;
- (2)
Such new or surviving cooperatives shall have all the rights, privileges, immunities, and powers and shall be subject to all the duties and liabilities of a cooperative organized under this chapter, and shall possess all the rights, privileges, immunities and franchises, as well of a public as of a private nature, and all property, real and personal, applications for membership, all debts due on whatever account, and all other choses in action, of each of the consolidating or merging cooperatives. Furthermore, all and every interest of, or belonging or due to, each of the cooperatives so consolidated or merged shall be taken and deemed to be transferred to and vested in such new or surviving cooperative without further act or deed; and the title to any real estate, or any interest therein, under the laws of this state, vested in any such cooperatives shall not revert or be in any way impaired by such consolidation or merger;
- (3)
Such new or surviving cooperative shall thenceforth be responsible and liable for all of the liabilities and obligations of each of the cooperatives so consolidated or merged, and any claim existing, or action or proceeding pending, by or against any of such cooperatives, may be prosecuted as if such consolidation or merger had not taken place, but such new or surviving cooperative may be substituted in its place;
- (4)
Neither the rights of creditors nor any liens upon the property of any such cooperatives shall be impaired by such consolidation or merger; and
- (5)
In the case of a consolidation, the articles of consolidation shall be deemed to be the articles of incorporation of the new cooperatives; and in the case of a merger, the articles of incorporation of the surviving cooperative shall be deemed to be amended to the extent, if any, that changes in the articles of incorporation of the surviving cooperative are provided for in the articles of merger.
§ 65-25-120. Dissolution.
- (a)
- (1)
A cooperative which has not commenced business may dissolve voluntarily by delivering to the secretary of state articles of dissolution, executed and acknowledged on behalf of the cooperative by a majority of the incorporators, which shall state:
- (A)
The name of the cooperative;
- (B)
The address of its principal office;
- (C)
That the cooperative has not commenced business;
- (D)
That the amount, if any, actually paid in on account of membership fees, less any part thereof disbursed for necessary expenses, has been returned to those entitled thereto and that all easements shall have been released to the grantors;
- (E)
That no debt of the cooperative remains unpaid; and
- (F)
That a majority of the incorporators elect that the cooperative be dissolved.
- (2)
Such articles of dissolution shall be submitted to the secretary of state for filing as provided in this chapter.
- (b)
- (1)
A cooperative which has commenced business may dissolve voluntarily and wind up its affairs in the following manner: Except as provided in § 65-25-113(a)(2)(D), the board shall first recommend that the cooperative be dissolved, which recommendation shall be submitted to the members of the cooperative at any annual or special meeting, the notice of which shall set forth such proposition. The proposed voluntary dissolution shall be deemed to be approved upon the affirmative votes of:
- (A)
If dissolution is or will be an incident of the sale, lease-sale or other disposition of the assets and properties of the cooperative, as many as but not fewer than the percentage of the cooperative's members required to authorize such sale, lease-sale or other disposition as provided in § 65-25-113(a)(1)(A)(i), (ii), (iii), (iv), (v) or (vi), or § 65-25-113(b) or (c), or § 65-25-114(a), (b) or (c), whichever is applicable; or
- (B)
If dissolution is or will be from any other cause, the number or percentage of its members, or of those voting, whichever may be the case, as provided in the cooperative's articles of incorporation or bylaws.
- (2)
Any assets remaining after the discharge or provision for the discharge of all of the cooperative's liabilities and the distribution of any patronage capital still outstanding on its books shall be distributed on a pro rata basis and without priority to all present and former members of the cooperative to the extent practicable, as determined by the board; provided, that if the board determines that the amount of such surplus is so small in relation to the administrative cost of distributing it as to be prohibited, such surplus may be donated by the board to one (1) or more charitable or educational organizations which are exempt from federal income taxation.
§ 65-25-121. Foreign corporations.
- (a)
Any corporation organized on a nonprofit or a cooperative basis for the primary purpose and/or for one (1) or more secondary purposes and operating in a state adjacent to this state shall be permitted to transact business in this state without complying with any statute of this state pertaining to the qualification of foreign corporations for the transaction of business in this state.
- (b)
Any such foreign corporation, as a prerequisite to its transaction of business in this state, shall, by an instrument executed and acknowledged in its behalf by its president or vice president and attested to by its secretary, designate the secretary of state its agent to accept service of process in its behalf. In the event any such process shall be served upon the secretary of state, the secretary of state shall forthwith forward the same by registered mail to such corporation at the address thereof specified in such instrument.
- (c)
Any such corporation may sue and be sued in the courts of this state to the same extent that a cooperative under this chapter may sue or be sued in such courts.
- (d)
Any such foreign corporation may secure its notes, bonds, or other evidences of indebtedness by mortgage, pledge, deed of trust, or other encumbrance of any or all of its then-owned or after-acquired real or personal property, assets, or franchise, located or to be located in this state, and also upon its revenues and income.
§ 65-25-122. Taxes.
- (a)
Nothing in this chapter shall exempt cooperatives and foreign corporations transacting business in this state pursuant to this chapter from ad valorem property taxes. Assessment schedules for such property that is devoted to and used or useful in pursuance of the primary purpose shall be filed with the comptroller of the treasury, and the payment of such taxes shall be in lieu of all other taxes of every kind or nature whatever, unless it is otherwise specifically provided by law that such other tax or taxes shall be applicable to cooperatives formed or foreign corporations transacting business pursuant to this chapter.
- (b)
Assessment schedules for such property that is devoted and used or useful in pursuance of one (1) or more secondary purposes shall be filed in the same manner and in the same places, and taxes on such properties shall be paid to the same authorities and to the same extent, as would be the case were such cooperative or foreign corporation organized and operating as a corporation under the Tennessee Business Corporation Act, compiled in title 48, chapters 11-27.
§ 65-25-124. Securities act exemption.
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Title 48, chapter 16 shall not apply to any note, bond, or other evidence of indebtedness issued by any cooperative or foreign corporation transacting business in this state pursuant to this chapter, to the United States or any agency or instrumentality thereof, or to any mortgage or deed of trust executed to secure the same. These sections, as amended, shall not apply to the issuance of membership certificates by any cooperative or any such foreign corporation.
§ 65-25-125. Nonapplicability or qualified applicability of certain provisions of the Tennessee Nonprofit Corporation Act.
- (a)
The following sections of the Tennessee Nonprofit Corporation Act, all contained in title 48, shall not be applicable to cooperatives incorporated under or otherwise subject to this chapter: §§ 48-56-103, 48-56-204, title 48, chapter 56, part 3 and § 48-56-501; §§ 48-57-102 — 48-57-105, 48-57-108, 48-57-201, 48-57-203 — 48-57-209 and 48-57-301; §§ 48-58-103 — 48-58-106, 48-58-108, and 48-58-109 and 48-58-304 [repealed]; §§ 48-60-103, 48-60-202 — 48-60-204 and 48-60-302; title 48, chapter 61; §§ 48-62-101 and 48-62-103; §§ 48-63-101 and 48-63-102; and § 48-64-102.
- (b)
The following provisions of the Tennessee Nonprofit Corporation Act, all contained in title 48, shall, but only as qualified in this subsection (b), be applicable to cooperatives incorporated under or otherwise subject to this chapter:
- (1)
Section 48-51-201 except as provided in subdivisions (13) and (31) and in the second sentence of subdivision (15) thereof; § 48-51-202 except that subsection (c) thereof shall apply also to notice to directors of board meetings; § 48-51-601 except that the words “impractical or” in subsection (a) thereof shall not be in effect;
- (2)
Section 48-52-101 except that incorporators under this chapter may be one (1) or more cooperatives;
- (3)
Title 48, chapter 55 shall apply to cooperatives, except that, with respect to cooperatives already in existence prior to January 1, 1988:
- (A)
Unless and until thereafter changed, their registered offices and addresses shall be their principal offices and addresses and their registered agents shall be their general or acting managers, by whatever title known, and such agents' addresses shall be that of the registered offices; and
- (B)
Such cooperatives need not file any statement of their registered offices or agents or of the addresses of such offices or agents until they otherwise are required to file an amendment of their respective charters pursuant to § 48-68-101(b); provided, if such registered offices or agents or their addresses are changed after January 1, 1988, such cooperatives shall file a statement thereof with the secretary of state pursuant to § 48-68-102;
- (4)
Section 48-58-303 except that a cooperative may make loans to guarantee the obligations of a director, or of an officer who is also a member of the cooperative, in the ordinary course of business for the same purposes, on the same basis, and the same manner and to the same extent as such loans may be made to, or obligation may be guaranteed on behalf of, other members of the cooperative;
- (5)
Subsection (a), but not subsection (b), of § 48-60-101 shall be applicable; and
- (6)
Section 48-66-108 except that the entitlement in the section shall not be greater than the entitlement provided in § 48-66-102.
- (c)
The provisions of nonapplicability and of qualified applicability set forth in subsections (a) and (b) shall not be exclusive. Other provisions of the Tennessee Nonprofit Corporation Act, compiled in title 48, chapters 51-68, shall or shall not be applicable, wholly or on a qualified or partial basis, to cooperatives incorporated under or otherwise subject to this chapter, depending upon whether such provisions are or are not consistent with or different from the provisions of this chapter, as provided for in § 48-51-104.
§ 65-25-126. Construction of chapter.
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This chapter shall be construed liberally. The enumeration of any object, purpose, power, manner, method, or thing shall not be deemed to exclude like or similar objects, purposes, powers, manner, methods, or things. Notwithstanding the foregoing or any other provisions in this chapter to the contrary, this chapter shall not be construed to affect the powers conferred or the limitations imposed upon annexing municipalities and electric cooperatives in § 6-51-112; nor shall this chapter be construed to affect or restrict the services or activities provided or performed by a microwave system authorized and licensed by the federal communications commission on April 7, 1988.
§ 65-25-129. Exemption for utility districts.
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Notwithstanding any provision contained in this chapter to the contrary, it is the specific intent of this chapter that all utility districts heretofore or hereafter created under the “Utility District Law of 1937,” compiled in title 7, chapter 82, or any similar legislation, shall be specifically exempt from this chapter.
§ 65-25-130. Subsidies by electric cooperatives to cable joint ventures — Antitrust provisions — Remedies.
- (a)
An electric cooperative may not provide subsidies to a cable joint venture. Notwithstanding that limitation, an electric cooperative participating in a cable joint venture may:
- (1)
Dedicate a reasonable portion of the electric plant to the provision of such service, the costs of which shall be allocated to such services by agreement of the parties to the joint venture; and
- (2)
Lend funds, at a rate of interest not less than the highest rate then earned by the electric cooperative on invested electric plant funds, to acquire, construct, and provide working capital for the system, plant, and equipment necessary to provide any such services; provided, that such interest costs shall be allocated to the cost of such service for regulatory purposes, and further provided that no financing for a cable joint venture shall come from loans from the rural utility service of the United States department of agriculture unless and until such loans are specifically authorized by federal statute.
- (b)
To the extent that an electric cooperative offers services through a cable joint venture, such cooperative shall have all the powers, obligations, and authority granted other entities providing such services under the applicable laws of the United States, the state of Tennessee, or local governments; provided, that the franchise under which the joint venture shall operate shall in no way be considered an overlapping franchise nor in any way modify or amend § 7-59-203.
- (c)
Nothing in this chapter shall be construed to alter or amend the process or procedure for renewal of franchises.
- (d)
It is unlawful during the negotiation of the joint venture or thereafter for any party to a cable joint venture or the local franchising authority, as defined in title 7, chapter 59, to use unfair or anti-competitive practices under any applicable state or federal law. Such practices shall include, but are not limited to, predatory pricing, collusion, and price tying.
- (e)
The parties to a cable joint venture or the local franchising authority, as defined in title 7, chapter 59, may bring a civil action for injunctive or declaratory relief in chancery court to enforce subsection (d). Venue for such action may be in any county where the unfair or anti-competitive practice is alleged to have occurred or to be threatened.
- (f)
If the cable joint venture or any member of the cable joint venture providing such service is exempt from paying federal, state, or local taxes, then, for regulatory purposes, the cable joint venture shall allocate to the costs of such services an amount equal to a reasonable determination of the state, local and federal taxes which would be required to be paid if the cable joint venture were not exempt and each of its members were not exempt from paying such taxes.
§ 65-25-131. Joint ventures for provision of telephone, telegraph or telecommunications services — Subsidies — Antitrust provisions — Remedies — Joint ventures for provision of natural gas.
- (a)
- (1)
Each cooperative may, within its service area and with the authorization of its board, contract to establish a telecommunications joint venture with any entity for the provision of telephone, telegraph, or telecommunications services in compliance with chapters 4 and 5 of this title, and all other applicable state and federal laws, rules and regulations. Notwithstanding § 65-4-101(6)(B) or any other provision of this code or of any private act, a telecommunication joint venture and every member of a telecommunication joint venture shall be subject to regulation by the Tennessee public utility commission in the same manner and to the same extent as other certified providers of telecommunications services, including, without limitation, rules or orders governing anti-competitive practices, and shall be considered as and have the duties of a public utility, as defined in § 65-4-101, but only to the extent necessary to effect such regulation and only with respect to the provision of telephone, telegraph and telecommunication services.
- (2)
Neither an electric cooperative nor any other entity participating in a telecommunications joint venture that provides such services may provide subsidies for such services. Notwithstanding the limitations set forth in the preceding sentence, an electric cooperative participating in a telecommunications joint venture may:
- (A)
Dedicate a reasonable portion of the electric plant to the provision of such services, the costs of which shall be allocated to such services for regulatory purposes; and
- (B)
Lend funds, at a rate of interest not less than the highest rate then earned by the electric cooperative on invested electric plant funds, to acquire, construct, and provide working capital for the system, plant, and equipment necessary to provide any such services; provided, that such interest costs shall be allocated to the cost of such services for regulatory purposes.
- (3)
To the extent that it provides such services, a telecommunications joint venture has all the powers, obligations and authority granted entities providing telecommunications services under applicable laws of the United States or this state. To the extent that such authority and powers do not conflict with chapter 4 or 5 of this title, and any rules, regulations, or orders issued thereunder, a telecommunications joint venture providing any such services shall have all the authority and powers with respect to such services as are enumerated in this chapter.
- (4)
If the telecommunications joint venture or any member of the telecommunications joint venture providing such service is exempt from paying federal, state, or local taxes, then for regulatory purposes, the telecommunications joint venture shall allocate to the costs of such services an amount equal to a reasonable determination of the state, local and federal taxes which would be required to be paid if the telecommunications joint venture and each of its members were not exempt from paying such taxes.
- (5)
This subsection (a) is not applicable to areas served by an incumbent local exchange telephone company or telephone cooperative with fewer than one hundred thousand (100,000) total access lines in this state unless such company voluntarily enters into an interconnection agreement with a competing telecommunications service provider or unless such incumbent local exchange telephone company applies for a certificate to provide telecommunications services in an area outside its service area existing on June 6, 1995, or § 65-4-201(d), is declared unconstitutional or unlawful by a court of competent jurisdiction in a final non-appealable order.
- (b)
Each cooperative may, within its service area and with the authorization of its board, contract to establish a joint venture with any entity to provide the transmission, transportation, distribution, delivery, or sale of natural gas, or similar products; provided, that the entity with which the joint venture is established shall be engaged in such business at the time the contract to establish the joint venture is effective.
§ 65-25-134. Telecommunications services.
- (a)
- (1)
Notwithstanding § 7-59-316, every cooperative has the power and is authorized, acting through its board of directors, to acquire, construct, own, improve, operate, lease, maintain, sell, mortgage, pledge, or otherwise dispose of any system, plant or equipment for the provision of telephone, telegraph, voice over internet protocol, telecommunications services, or any other like system, plant, or equipment within or without the service area of the cooperative in compliance with chapters 4 and 5 of this title and all other applicable state and federal laws, rules, and regulations. Notwithstanding § 65-4-101(6)(A)(vi) or any other provision of this code or of any private act to the contrary, to the extent that any cooperative provides any of the services authorized by this subdivision (a)(1), the cooperative shall be subject to regulation by the Tennessee public utility commission in the same manner and to the same extent as other certificated providers of the services authorized by this subsection (a), including, without limitation, rules or orders governing anti-competitive practices, and shall be considered as and have the duties of a public utility, as defined in § 65-4-101, but only to the extent necessary to effect such regulation and only with respect to the cooperative's provision of the services authorized by this subdivision (a)(1).
- (2)
Every cooperative has the power and is authorized, acting through its board of directors, to acquire, construct, own, improve, operate, lease, maintain, sell, mortgage, pledge, or otherwise dispose of any system, plant or equipment for the provision of broadband internet access, internet protocol-based video, video programming, or related or similar services, or any other like system, plant, or equipment within the service area of the cooperative in compliance with chapters 4 and 5 of this title and all other applicable state and federal laws, rules, and regulations, including, but not limited to, the requirement to obtain a franchise as set forth in § 7-59-304. Notwithstanding § 65-4-101(6)(A)(vi) or any other provision of this code or of any private act to the contrary, to the extent that any cooperative provides any of the services authorized by this subdivision (a)(2), the cooperative shall furnish the services on an area coverage basis, as defined in § 65-25-102, and shall be subject to regulation by the Tennessee public utility commission in the same manner and to the same extent as other providers of broadband internet access, internet protocol-based video, video programming, or related or similar services, including, without limitation, rules or orders governing anti-competitive practices, and shall be considered as and have the duties of a public utility, as defined in § 65-4-101, but only to the extent necessary to effect such regulation and only with respect to the cooperative's provision of the services authorized by this subdivision (a)(2). In the event that a cooperative acquires, merges with, or consolidates with another entity that provides any one (1) of the services authorized by this subdivision (a)(2) in a geographic location concurrent with or adjacent to the electric service area of the cooperative, then, subsequent to such transaction, nothing in this section prohibits the electric cooperative from providing the services authorized by this subdivision (a)(2) in the geographic service territory in which the acquired or merged entity was authorized to provide such services prior to the merger, acquisition, or consolidation.
- (3)
A cooperative that elects to provide services authorized by subdivision (a)(2) shall provide other providers of such services non-discriminatory access to locate their equipment for the provision of such services on infrastructure or poles owned or controlled by the cooperative, subject to the terms of any pole attachment agreements between the cooperative and the other provider, the American National Standard Electric Safety Code described in § 68-101-104, and the structural integrity of the infrastructure or pole.
- (b)
- (1)
A cooperative providing any of the services authorized by subsection (a) shall not provide subsidies for such services and shall administer, operate, and maintain the electric system separately in all respects, including establishing and maintaining a separate fund for the revenues from electric operations, and shall not directly or indirectly mingle electric system funds or accounts, or otherwise consolidate or combine the financing of the electric system, with those of any other of its operations.
- (2)
A cooperative providing any of the services authorized by subdivision (a)(2) shall administer and operate such services as a separate subsidiary.
- (3)
Notwithstanding the limitations set out in this subsection (b), a cooperative providing the services authorized by subsection (a) is authorized to:
- (A)
Dedicate a reasonable portion of the electric plant to the provision of such services, the costs of which shall be allocated to such services in the separate accounting required under this subsection (b); and
- (B)
Lend funds, at a rate of interest not less than the highest rate then earned by the cooperative on invested electric plant funds, to acquire, construct, and provide working capital for the system, plant, and equipment necessary to provide any of the services authorized under subsection (a); provided, that such interest costs shall be allocated to the cost of such services in the separate accounting required under this subsection (b).
- (c)
- (1)
To the extent that it provides any of the services authorized by subsection (a), a cooperative has all the powers, obligations and authority granted entities providing telecommunications services under applicable laws of the United States or this state. To the extent that such authority and powers do not conflict with title 65, chapter 4 or 5, and any rules, regulations, or orders issued thereunder, a cooperative providing any of the services authorized by subsection (a) has all the authority and powers with respect to such services as are enumerated in this chapter.
- (2)
Notwithstanding the authorization granted in subsection (a), a cooperative shall not provide any of the services authorized by subsection (a) unrelated to its electric services within the service area of an entity in existence and operating as a telephone cooperative on April 24, 2017, with fewer than one hundred thousand (100,000) total lines organized and operating under chapter 29 of this title, and therefore shall adhere to those regulations of the 1995 Tennessee Telecommunications Act and rules of the Tennessee public utility commission, which are applicable to the telephone cooperatives, and specifically §§ 65-4-101 and 65-29-130.
- (d)
For regulatory purposes, a cooperative shall allocate to the costs of providing any of the services authorized by subsection (a):
- (1)
An amount for attachments to poles owned by the cooperative equal to the highest rate charged by the cooperative to any other person or entity for comparable pole attachments; and
- (2)
Any applicable rights-of-way fees, rentals, charges, or payments required by state or local law of a non-governmental corporation that provides the identical services.
- (e)
- (1)
Nothing in this chapter shall be construed to allow a cooperative to provide any service for which a license, certification, or registration is required under title 62, chapter 32, part 3.
- (2)
Nothing in this chapter shall allow a cooperative to provide any service for which a license, certification, or registration is required under title 62, chapter 32, part 3, or to provide pager service.
- (f)
This chapter supersedes any conflicting law.
- (g)
It is unlawful for a cooperative to use unfair or anticompetitive practices prohibited by applicable state or federal law. Such practices shall include, but are not limited to, predatory pricing, collusion, and tying.
- (h)
Any person who has been damaged as a result of a violation of this section may bring a civil action in chancery court for injunctive or declaratory relief against the violation.
§ 65-25-135. Retail sales and distribution of liquefied petroleum gas.
- (a)
Notwithstanding any other law to the contrary, an electric cooperative may enter into or remain in the retail sales and distribution of liquefied petroleum gas (propane) and the services related to such business, including, but not limited to, the design, sale, distribution, lease, rental, installation, construction, modernization, retrofit, maintenance or repair of propane gas-related systems, propane gas products or propane gas equipment; provided, however, that such sales, distribution and services must be provided by a for-profit entity which, for purposes of this section shall mean a corporation, a limited liability company, a limited partnership, or a limited liability partnership.
- (b)
The for-profit entity must maintain separate financial records. The cost of all equipment, assets, and services utilized by the for-profit entity in the sale and distribution of propane shall be fairly allocated to the for-profit entity; provided, however, that any equipment or assets utilized solely by the for-profit entity for the sale and distribution of propane shall be leased or purchased by the for-profit entity. There shall be no loans or grants to the for-profit entity from an electric cooperative unless such loans and grants shall be repaid together with fair market rate interest charges by the for-profit entity. The for-profit entity shall be liable for taxes, both state and federal, if applicable. All costs of doing business shall be borne by the for-profit entity.
- (c)
Any person who has been damaged as a result of a violation of this section may bring an action to enjoin and restrain any violation of subsections (a) and (b) and may in the same action seek damages in a court of competent jurisdiction against the for-profit entity. Available relief shall include, but not be limited to, monetary damages and injunctive relief.
- (d)
This section shall not apply to the sale and distribution of propane in relation to or for use in fuel cell or other power generation devices.
Chapter 26 Gas Companies
§ 65-26-101. Power to lay pipes and conductors.
-
To enable gas companies to establish such works, they are empowered to lay pipes and extend conductors through the streets, lanes, and alleys of any town, city, or village, in such manner, however, as to produce the least possible inconvenience to the town, city, or village, or its inhabitants, or to travelers, and to take up pavements and sidewalks; provided, that they shall repair the same with the least possible delay; and provided further, that no one of the streets or alleys shall be entered upon or used by any corporation for laying pipes and conductors, or otherwise, until the consent of the municipal authorities shall have been obtained, and an ordinance shall have been passed prescribing the terms on which the same may be done.
§ 65-26-102. Sale of gas.
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The corporation is authorized to charge a reasonable price for gas, not higher than the price allowed by existing charters to gas companies heretofore chartered in this state; provided, that the corporation shall never charge more than one cent (1¢) per every cubic foot of gas used, as may be indicated by the gas meter or computed by the ordinary rules in such cases; nor shall it at any time charge the authorities of the town, city, or village more per cubic foot than it is charging the inhabitants of such town, city or village at that time.
§ 65-26-103. Restrictions against nuisances.
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The works and operations of the company shall be so constructed and managed that no annoyance shall accrue therefrom to the health and comfort of the inhabitants of the town; and nothing in this chapter shall be so construed as to absolve the company, its officers or agents, from any legal proceedings to restrain or abate any nuisance arising from such works or operations.
§ 65-26-104. Damage or tampering with company property.
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If any person shall injure or destroy any portion of the gas fixtures, or other property belonging to the company, or shall willfully open a communication into the street or other gas pipes, or let on gas after it has been stopped by the company, such person shall be liable for all damages sustained by such proceeding, and also to a penalty not exceeding five hundred dollars ($500), upon conviction before any court having jurisdiction of the offense.
Chapter 27 Water and Waterworks Companies
§ 65-27-101. Power of condemnation.
- (a)
Any water company is empowered to acquire, by purchase, condemnation, or other proper method, the right to use and divert the water flowing and running into any stream or watercourse which may be necessary to the exercise of any of the powers of a public or quasi public character granted to the corporation; and whenever it shall be necessary so to divert the water from any such stream or watercourse, the corporation shall have the right to have the water to be so diverted and the land so to be used, over which it shall be conducted, condemned, and the value thereof assessed in the manner provided in title 29, chapter 16; and it may in like manner take such land, water, and riparian rights, and such rights-of-way as may be necessary for establishing and maintaining its power houses, canals, flumes, conduits, pipelines, ponds, dams, reservoirs, and other works, and the rights-of-way to any and all lands between its ponds, dams, and reservoirs and power houses, and the cities, towns, and villages and other points at which its water may be transmitted, consumed, or disposed of as may be necessary to place its conductors, canals, flumes, pipelines, either above or underground, and may at any time enter thereon and repair same, or when deemed advisable, to place additional equipment, appliances, or appurtenances; but, in all cases, such act shall be done in such manner and with such haste as to do as little injury to private property as possible.
- (b)
Any exercise of the powers granted under this section is subject to and shall not conflict with the Water Quality Control Act, compiled in [former] title 69, chapter 3, part 2 [repealed], or the Inter-basin Water Transfer Act, compiled in title 69, ch. 7, part 2 and the regulations thereunder.
§ 65-27-102. Companies contracting to supply water to charitable institutions.
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Water companies incorporated under the laws of this state which have or may have contracts to supply with waters, state or national homes for disabled soldiers, insane asylums, state or national schools for the correction and reformation of juvenile criminals, or any like institution of public charity, are empowered to condemn springs, creeks, and waters, and the riparian rights of lower owners for the purpose of furnishing such water supply. Such uses of waters for the objects here enumerated are each declared a public use.
§ 65-27-104. Bond by water company pending assessment of damages.
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Pending the assessment of damages and any litigation in regard thereto, the water company may give bond with good and solvent securities, payable to the owner or owners of the water or rights, to promptly pay to the owner any amount of damages which may be assessed by the jury as provided for in § 65-27-101, and upon executing and filing such bond may thereupon take the water or waters.
§ 65-27-105. Authority to lay pipes.
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To enable the corporation to establish its works, it is empowered to:
- (1)
Lay down pipes through the streets, lanes, and alleys of the town, city, or village in such manner as to produce the least possible inconvenience to the town, city, or village, or to its inhabitants, or to travelers; and
- (2)
Take up pavements and sidewalks;
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provided, that it shall repair the same with the least possible delay.
§ 65-27-106. Extension and placement of conductors, pipelines, hydrants and fire plugs.
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Such corporation, after having first obtained permission from the governing authorities thereof, is invested with the privilege of extending and placing its conductors, pipes, and pipelines along, through, or upon all or any of the streets, lanes, and alleys of the cities, towns, and villages in which it may operate, and in, through, and along any and all of the roads, and public highways of the counties, and of erecting hydrants and fire plugs at suitable places along the streets, lanes, alleys, roads, and public highways for the purpose of supplying water to the inhabitants thereof for manufacturing, domestic, or sanitary or other purposes, and for such purposes it may make any and all necessary excavations in and along the same after first obtaining permission from the governing authorities of the incorporated cities, towns, and villages, and when outside of any incorporated towns, of the governing authority of the county in which same is located; but all excavations shall be made in such manner as to give the least inconvenience to the public, and shall be replaced with all possible speed by and at the expense of the corporation in as substantial manner as found before being excavated.
§ 65-27-109. Pollution of water or reservoir.
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It is also unlawful for any person to willfully corrupt or permit anything to run or fall into any stream or reservoir from which the corporation takes water for the purpose of supplying any city, town, or village, or the inhabitants thereof, which will corrupt the same or render it unpalatable, unwholesome, or unfit for use for any purpose for which it may be supplied, or to bathe in or lead any animal into the same.
Chapter 28 Pipeline Corporations
Part 1 General Provisions
§ 65-28-101. Right of condemnation.
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A pipeline corporation has the right, in pursuance of the general laws authorizing condemnation of private property for works of internal improvement, to appropriate as an easement or right-of-way of lands necessary for its pipelines; and also land, and rights in land for the development, construction and operation of underground storage reservoirs for natural gas; and also land for pump stations and terminal facilities over any land of any person or corporation through which a pipeline may be located; provided, that no one of the streets, alleys, squares or highways within the corporate limits of any municipality in the state shall be entered upon or used by any corporation for laying pipelines and conductors, or otherwise, until the consent of the municipal authorities shall have been obtained, and an ordinance shall have been passed prescribing the terms on which the same may be done.
§ 65-28-102. Tolls or freight rates.
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A pipeline corporation has the right to exact and receive the same tolls or charges for the transportation of products as other common carriers.
§ 65-28-103. Discrimination prohibited — Rights and liabilities — Jurisdiction of Tennessee public utility commission — Pilot program to allow intrastate pipeline corporations to transport natural gas to end users.
- (a)
All such corporations shall furnish equal facilities to all persons and shall not discriminate in services, in charges, or otherwise, either for or against any person, and shall be charged with all duties, responsibilities, and liabilities imposed upon public utility corporations by the laws of this state, and be subject to the Tennessee public utility commission.
- (b)
- (1)
As a pilot project through the end of the year 2003, and notwithstanding any state or local law to the contrary, any intrastate natural gas pipeline corporation, subject to regulation by the Tennessee public utility commission as a public utility, may transport natural gas to end users in Tennessee only if such natural gas is produced from Tennessee wells located in any county contained within the second, fourth, fifth, sixth, seventh or twelfth senatorial districts, and/or in the smallest county by population located in the fifteenth senatorial district, as these districts exist on June 17, 1999, and only if the end users of such natural gas are located in these counties; provided that no such pilot project shall be permitted within the chartered service area of a utility district created by private act. Such intrastate natural gas pipeline corporations shall not transport intrastate natural gas to end users that are served by a municipal utility or by a utility district or within a utility district's chartered service area on June 17, 1999, unless:
- (A)
The end user has been served by an interstate pipeline; or
- (B)
At the option of the utility district or municipal utility, such intrastate natural gas pipeline or end user assumes any contractual obligation of the utility district or municipal utility to an interstate natural gas pipeline incurred on behalf of such end user which remains after termination of service by such end user prior to the end of the term of the contract, tariff or other arrangement pursuant to which the end user receives service.
- (2)
At the option of the utility district or municipal utility, such intrastate natural gas pipeline may serve end users not now being served by a municipal utility or by a utility district or within a utility district's chartered service area. This subdivision (b)(2) shall not prohibit service to end users specifically authorized to be served in accordance with subdivision (b)(1)(A).
- (3)
Any contractual arrangements made by an intrastate natural gas pipeline corporation for transportation of natural gas pursuant to subdivision (b)(1) shall remain in effect according to their terms if such agreements are entered into, or permits are granted, during the pilot project, even though the term of such transportation agreement shall be for a longer term than the pilot project and without regard to whether the pilot project is extended or is not extended.
§ 65-28-104. Gas pipeline systems — Definitions.
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As used in §§ 65-28-104 — 65-28-111, unless the context otherwise requires:
- (1)
“Commission” means the Tennessee public utility commission;
- (2)
“Federal safety standards” means the minimum federal safety standards adopted by the United States department of transportation pursuant to the Natural Gas Pipeline Safety Act (49 U.S.C. § 60101 et seq.) or any amendments thereto which may be adopted in the future;
- (3)
“Gas” means natural gas, petroleum gas, flammable gas, or gas which is toxic or corrosive;
- (4)
“Gas public utilities” means any person, firm, corporation or other legal entity of any kind engaged in the transportation of gas, and includes the state of Tennessee, every county in the state of Tennessee, every municipality in the state of Tennessee and every utility district created under title 7, chapter 82, which has not been certified with the department of transportation under the Natural Gas Pipeline Safety Act, every public body or corporation of whatever kind in the state of Tennessee, and every private or nonpublic entity, when engaged in the transportation of gas;
- (5)
“Pipeline systems” means new and existing pipeline rights-of-way and any pipeline, equipment facility, and building, used by a public utility in the transportation and distribution of gas or the treatment of gas during the course of transportation and distribution, but “rights-of-way” as used in §§ 65-28-104 — 65-28-111 does not authorize the commission to prescribe the location or routing of any pipeline facility; and
- (6)
“Transportation of gas” means the gathering, transmission, and distribution of natural gas by pipeline, or its storage, and the transmission and distribution of all kinds of gas other than natural gas.
§ 65-28-105. Safety standards.
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All pipeline systems used in this state shall be constructed, operated and maintained in such a manner as to at all times be in compliance with the defined minimum safety standards and amendments thereto, as well as such additions and amendments as may be ordered by the commission from time to time.
§ 65-28-106. Powers and duties of commission.
- (a)
The commission has the right, power and authority to provide and make certifications, reports and information to the secretary of the United States department of transportation; to enter into agreements with the secretary to carry out the purposes of §§ 65-28-104 — 65-28-111; to enforce safety standards in the state including enforcement of federal safety standards as permitted in the Natural Gas Pipeline Safety Act (49 U.S.C. § 60101 et seq.); and to exercise regulatory jurisdiction over the safety of pipeline systems and transportation of gas in accordance with permission granted by the Natural Gas Pipeline Safety Act.
- (b)
The commission has the right, power and authority to promulgate reasonable rules and regulations to ensure that each pipeline system is operating in compliance with the required safety standards and to enforce such compliance. It has the right, power and authority to require each public utility to make, maintain and file such books, papers, records and documents as the commission may deem necessary and to require that these books, papers, records and documents be made available to members of the commission and their employees upon request. Authorized representatives of the commission shall be authorized to inspect all pipeline systems, facilities and equipment and shall have the right of access and entry to all buildings and property owned, leased or operated by such systems.
- (c)
The commission shall be authorized to employ such inspectors or other qualified employees as may be necessary to carry out §§ 65-28-104 — 65-28-111.
§ 65-28-107. Injunctions.
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Upon petition of the commission, the chancery court, sitting in equity, in any county in which a violation of §§ 65-28-104 — 65-28-111 exists shall have jurisdiction to restrain such violation and to enforce compliance with the safety standards required by such sections.
§ 65-28-108. Penalty provisions.
- (a)
Any person who violates §§ 65-28-104 — 65-28-111, or of any regulation issued under such sections, is subject to a civil penalty not to exceed one hundred thousand dollars ($100,000) for each such violation for each day that such violation persists, except that the maximum civil penalty shall not exceed one million dollars ($1,000,000) for any continuing series of violations.
- (b)
Any civil penalty may be compromised by the commission. In determining the amount of such penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the person charged, the gravity of the violation, and the good faith of the person charged in attempting to achieve compliance, after notification of a violation, shall be considered. The amount of such penalty, when finally determined, or the amount agreed upon in compromise, shall be paid within thirty (30) days after the determination to the commission, to be used for the purposes of §§ 65-28-104 — 65-28-111; and, if not paid within such time, may be recovered in a civil action brought by the commission in the chancery court of any county in which a violation exists.
§ 65-28-109. Limit of commission's jurisdiction.
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Nothing in §§ 65-28-104 — 65-28-111 shall be deemed to confer upon the commission any additional power and jurisdiction to supervise or regulate the rates, services, franchises or other matters pertaining to pipeline systems or transportation of gas except with respect to the enforcement of federal safety standards prescribed by the secretary of the United States department of transportation and such additions and amendments as ordered by the commission; nor shall anything in §§ 65-28-104 — 65-28-111 be deemed to confer upon the commission any power to adopt or continue in force any standards for pipeline systems or transportation of gas, including carbon dioxide transported via interstate pipeline, subject to the jurisdiction of the federal power commission as prohibited in the Natural Gas Pipeline Safety Act (49 U.S.C. § 60101 et seq.).
§ 65-28-110. Inspection, control, and supervision fees.
- (a)
Every public utility engaged in the operation of gas pipeline systems in this state to which this chapter applies, with the exception of those utilities presently paying a fee as provided by chapter 4, part 3 of this title, shall pay to the state, on or before April 1 of each year, a fee for the inspection and supervision of the standards of safety as prescribed by this chapter. The fees collected pursuant to this section shall be used to fund the commission's gas safety inspection program and shall be segregated in an account so designated.
- (b)
Such fee shall be paid by such public utility engaged in the operation of gas pipeline systems in addition to any and all property, franchise, license and other taxes, fees and charges fixed, assessed or charged by law against such utility, but shall not be levied against those utilities paying a fee under chapter 4, part 3 of this title.
- (c)
The amount of such fee is to be measured by the number of active gas meters in service within the service area of each public utility, municipal gas system and gas utility district. Where there are no meters, the fee is to be measured by the number of active services. The fee fixed and assessed against and to be paid by each public utility, municipal gas system, and gas utility district is as follows:
- (1)
- (A)
A flat rate of one hundred dollars ($100) for all meters in service of up to one hundred fifty-four (154) meters;
- (B)
Sixty-five cents (65¢) for each meter in service from one hundred fifty-five (155) to two thousand (2,000) meters;
- (C)
Fifty cents (50¢) for each meter in service from two thousand one (2,001) to ten thousand (10,000) meters; and
- (D)
Thirty-five cents (35¢) for each meter in service exceeding ten thousand (10,000) in number; or
- (2)
In the case of interstate pipeline companies or systems, or companies or systems having no gross receipts, or no active meters in service, or other service in this state, but traversing the state in its transmission of gas service, the fee is to be assessed at the rate of four dollars seventy-five cents ($4.75) per mile of twenty-four inch (24″) equivalent pipeline.
- (d)
In no case shall the fee to be paid be less than one hundred dollars ($100), which will be the minimum inspection fee to be paid by the public utility engaged in the operation of gas pipeline systems subject to such fee and not presently paying a fee as provided in chapter 4, part 3 of this title, nor more than seventy-eight thousand dollars ($78,000), which shall be the maximum paid by such companies; provided, that for a petroleum gas system subject to the Natural Gas Pipeline Safety Act (49 U.S.C. § 60101 et seq.), except a system serving ten (10) or more customers from a common tank, the fee shall be twenty dollars ($20.00).
- (e)
The inspection, control and supervision fees provided for in this section shall become due and payable on April 1 of each year.
- (f)
The inspection fees and penalties provided for in this section shall be collected by the commission.
Part 2 Landfill Methane Development Act
§ 65-28-201. Short title — Legislative intent — Construction.
- (a)
This part shall be known and may be cited as the “Landfill Methane Development Act.”
- (b)
It is recognized by the general assembly that the provision of dependable and economical sources of energy is vital to the health, welfare and economic well-being of the citizens and residents of the state and that one of the primary sources of energy in this state is natural gas. The general assembly further recognizes world supplies of natural gas are limited and that the market for natural gas has undergone major changes in recent years due to increasing demand. It is recognized by the general assembly that the primary constituent of natural gas is methane, and that methane is generated by the natural decomposition of materials deposited in solid waste landfills. Landfill methane is produced in landfills together with other gaseous materials, but the methane may be extracted, treated, and sold as a substitute for natural gas. It is also recognized by the general assembly that, if not utilized for a natural gas substitute or other energy or commercial use, the landfill methane may constitute a pollutant if released into the atmosphere; and, in certain instances under state and federal environmental laws, the landfill methane must be collected and destroyed and the commercial value of the landfill methane would then be wasted. In order to ensure that all persons have the flexibility and power to compete for and obtain methane from landfill gas and treat landfill gas for substitution for natural gas on terms that will result in continuing availability of both natural gas and landfill methane at reasonable rates to the citizens and residents of the state, and to encourage the reduction or elimination of atmospheric pollution that may occur if the landfill methane were allowed to be introduced into the atmosphere, it is the intent of the general assembly by this part to:
- (1)
Authorize any person to finance, acquire, own, operate, lease and dispose of rights, titles and interest of every kind and nature in facilities to produce and treat methane produced from landfill properties located within the state as a substitute for natural gas;
- (2)
Allow any pipeline corporation subject to the jurisdiction of the Tennessee public utility commission to transport landfill methane gas, either alone or mixed with natural gas; and
- (3)
Authorize any person to contract for the purchase of supplies of landfill methane useable in lieu of natural gas, and transport landfill methane by pipeline from any supplier located inside or outside the state, either alone or mixed with natural gas.
- (c)
This part shall be liberally construed in conformity with such intent, it being hereby determined and declared that the means provided by this part are needed to provide for the continued availability to state citizens and residents of natural gas or substitutes for natural gas at reasonable rates.
§ 65-28-202. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Landfill methane” means the methane gas constituent of naturally-occurring emissions in gaseous form emanating from any landfill, whether such landfill is in current operation accepting additional fill material or is closed and not accepting any additional fill material, and whether or not any such landfill has or is required to have any collection system for the collection of landfill gas, including the landfill methane component of landfill gas. “Landfill methane” means the methane component of landfill gas, both before and after such component may be extracted from the landfill gas, as the context may require; and
- (2)
“Person” means any person, firm, corporation or other legal entity of any kind, including this state, every county in this state, and every municipality in this state.
§ 65-28-203. Construction and operation of landfill methane facility.
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Any person, with the consent of the owner of any landfill where landfill methane may be produced, and in compliance with all applicable laws, may construct and operate a facility for extracting, purifying, dehydrating, or otherwise treating landfill methane, for the purpose of preparing such landfill methane for transportation and sale to any person for use as a substitute for natural gas. No person constructing or operating any such facility or transporting or selling any landfill methane produced or treated in any such facility to any other person shall be considered to be engaged in the retail distribution of natural gas to the maximum extent of operations, transportation, or sale of all landfill methane volumes produced, transported, and sold, wherever such volumes may be sold and delivered, and whether or not such landfill methane is combined or intermixed after production with natural gas for transportation or sale.
§ 65-28-204. Certificate of public convenience and necessity not required — Economic regulation.
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No person desiring to construct or operate a facility for gathering, extracting, purifying, dehydrating, or otherwise treating landfill methane shall be required to obtain any certificate of public convenience and necessity for such construction or operation of such facility from the Tennessee public utility commission. Neither the rates and charges between the parties for construction and operation of any such facility, nor the sales price of any landfill methane produced or treated, shall be subject to economic regulation by the Tennessee public utility commission or any other agency of the state; provided, that the construction and operation of any facility for such operations shall be subject to all other applicable laws.
§ 65-28-205. Rates and charges — Regulation.
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The rates and charges for transportation by pipeline of landfill methane, either alone or in combination with natural gas, and the construction of facilities for the transportation by pipeline of landfill methane, whether alone or in combination with natural gas, shall be subject to the jurisdiction of the Tennessee public utility commission to the same extent as the rates and charges, and the construction of facilities for, pipeline transportation of natural gas. No person that is exempt from regulation by the Tennessee public utility commission in the transportation of natural gas shall become subject to such regulation by operation of this section or the transportation by such person of landfill methane, either alone or in combination with natural gas. No person shall be required to transport landfill methane by pipeline in combination with natural gas, if the landfill methane tendered for transportation does not meet quality specifications reasonably required by such person for pipeline transportation of natural gas. The Tennessee public utility commission shall expedite the disposition of any proceeding brought concerning any rate, charge, or construction of facilities for transportation by pipeline of landfill methane.
§ 65-28-206. Transportation of landfill methane.
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Notwithstanding any other law, landfill methane may be transported by any pipeline corporation located wholly in this state or otherwise subject to the regulatory jurisdiction of the Tennessee public utility commission, without regard to where the landfill methane may have been produced or extracted or is to be delivered within the state, and without regard to the size or classification or nature of any customer purchasing or receiving any landfill methane. Such transportation may be provided by an intrastate pipeline corporation by transporting landfill methane either alone or in combination with natural gas.
§ 65-28-208. Addition of refined landfill methane into natural gas stream.
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The addition of refined landfill methane described in this part into any natural gas stream and the resulting use of the gas stream consisting in part of the refined landfill methane and in part of natural gas by any person purchasing or receiving the gas shall be considered for all purposes to be the use of natural gas within the meaning of any permit previously granted or granted in the future to the person by any agency of this state. It is expressly provided that this section does not authorize the use of raw, unprocessed or unrefined gas generated by decomposition at solid waste landfills to be sold or used as natural gas whether alone or in combination with natural gas. Any prohibition in any existing or future permit issued by this state applicable by its terms to the use of landfill gas shall be deemed to refer only to the use of the raw, unprocessed or unrefined gas generated by decomposition at solid waste landfills without treatment, refinement or purification as contemplated by this part; and any such prohibition applicable to landfill gas is expressly deemed to neither refer to nor prohibit the use of refined landfill methane as described in this part.
Chapter 29 Telephone Cooperatives
§ 65-29-102. Purpose of cooperatives — Nonprofit corporations.
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Cooperative, nonprofit, membership corporations may be organized under this chapter for the purpose of furnishing telephone service in rural areas to the widest practical number of users of such service; provided, that there shall be no duplication of service where reasonably adequate telephone service is available. Corporations organized under this chapter and corporations which become subject to this chapter in the manner provided in this chapter are referred to in this chapter as “cooperatives,” and shall be deemed to be not-for-profit corporations.
§ 65-29-103. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“De novo” means anew, afresh and from the beginning;
- (2)
“Member” means each incorporator of a cooperative and each person admitted to and retaining membership in the cooperative, and includes a husband and wife admitted to joint membership;
- (3)
“Person” includes any natural person, firm, association, corporation, business trust, partnership, federal agency, state or political subdivision or agency thereof, or any body politic; and
- (4)
“Telephone service” means any communication service whereby communication through the electric or electronic transmission of impulses by or through any media such as wireless technology, wires, cables, microwaves, radio waves, light waves or any combination of such media or any other future transmission technology which may become available to improve communication services, is the principal intended use thereof, and includes all telephone lines, facilities or systems used in the rendition of such service.
§ 65-29-104. Powers.
-
A cooperative has the power to:
- (1)
Sue and to be sued, in its corporate name;
- (2)
Have perpetual existence;
- (3)
Adopt a corporate seal and alter the same at pleasure;
- (4)
Furnish, improve and extend telephone service, provide extended area service and telephone toll service to its members, to governmental agencies and political subdivisions, and to other persons not in excess of ten percent (10%) of the number of its members; provided, that without regard to the ten percent (10%) limitation, telephone service may be made available by a cooperative through interconnection of facilities to any number of subscribers of other telephone systems, and through pay stations to any number of users; and provided further, that a cooperative which, prior to its becoming subject to this chapter, has acquired all or part of a telephone system or systems may continue service to persons served from such systems or facilities without requiring such persons to become members, but only if the number of persons so served does not exceed twenty-five percent (25%) of the total number of persons served by the cooperative and the twenty-five percent (25%) exception shall be reduced to ten percent (10%) within twelve (12) months from date of acquisition; and provided further, that such nonmembers shall have the right to become members upon such terms as may be prescribed in the bylaws;
- (5)
Connect and interconnect its telephone lines, facilities or system with other telephone lines or systems, and make its facilities available to persons furnishing telephone service within or without this state;
- (6)
Become a member in one (1) or more other cooperatives or corporations or own stock in one (1) or more other cooperatives or corporations;
- (7)
Construct, maintain, operate, purchase, take, receive, lease as lessee or otherwise acquire, and own, hold, use, equip, maintain, and operate, and sell, assign, transfer, convey, exchange, lease as lessor, mortgage, pledge, or otherwise dispose of or encumber, telephone communication lines or systems, lands, buildings, structures, exchanges, plants and equipment, and any and all kinds and classes of real or personal property whatsoever, which shall be deemed necessary, convenient, or appropriate to accomplish the purpose for which the cooperative is organized;
- (8)
Purchase or otherwise acquire, and own, hold, use, and exercise and sell, assign, transfer, convey, mortgage, pledge, hypothecate, or otherwise dispose of or encumber, franchises, rights, privileges, licenses, rights-of-way, or easements;
- (9)
Borrow money and otherwise contract indebtedness, and issue or guarantee notes, bonds, and other evidences of indebtedness therefor, and secure the payment thereof by mortgage, pledge, deed of trust, or any other encumbrance upon any or all of its then-owned or after-acquired real or personal property, assets, franchises, revenues or income;
- (10)
Make any and all contracts necessary or convenient for the full exercise of the powers in this chapter granted, including, but not limited to, contracts with any person for the purchase or sale of telephone service and in connection with any such contract to stipulate and agree to such covenants, terms, and conditions as the board of directors may deem appropriate, including covenants, terms and conditions with respect to resale rates, financial and accounting methods, services, operation and maintenance practices, and, consistent with § 65-29-122, the manner of disposing of the revenues of the properties operated and maintained by the cooperative;
- (11)
Construct, maintain, and operate telephone and communication lines, along, upon, under and across all public thoroughfares, including, without limitation, all roads, highways, streets, alleys, bridges, and causeways, and upon, under, and across all publicly owned lands; provided, that the respective authorities having jurisdiction thereof shall have the authority to designate or specify where poles shall be located;
- (12)
Condemn, subject to § 65-29-125, either the fee or such right, title, interest, or easement in property as the board of directors may deem necessary for its corporate purpose, and such property or interest in such property may be so acquired whether or not the same is owned or held for public use by corporations, associations, or persons having the power of eminent domain, or otherwise held or used for public purposes, and such power of condemnation may be exercised in the mode of procedure prescribed by §§ 29-16-101 — 29-16-122, 29-16-202 and 29-16-203 or in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain;
- (13)
Conduct its business and exercise any or all of its powers within or without this state;
- (14)
Adopt, amend, and repeal bylaws; and
- (15)
Do and perform any and all other acts and things and have and exercise any and all other powers which may be necessary, convenient, or appropriate to accomplish the purpose for which the cooperative is organized.
§ 65-29-105. Name — Conversion of existing corporations.
- (a)
The name of each cooperative shall include the words “telephone” and “cooperative,” and the abbreviation “Inc.”; provided, that such limitation shall not apply if, in an affidavit made by the president or vice president of a cooperative and filed with the secretary of state, or in an affidavit made by a person signing articles of incorporation, consolidation, merger or conversion and filed, together with such articles, with the secretary of state, it shall appear that the cooperative desires to transact business in another state and is precluded therefrom by reason of its name; and provided further, that any corporation heretofore organized under § 4146 et seq. of the 1932 Tennessee Code, or such sections as from time to time amended, or § 48-1101, et seq., or amendments thereto, as such provisions existed prior to July 1, 1969, which may be converted into a cooperative and become subject to this chapter, as provided in § 65-29-117, or any foreign corporation transacting business in this state pursuant to § 65-29-128, may at its election retain the same corporate name which it has prior to such conversion or transaction of business.
- (b)
The name of a cooperative shall distinguish it from the name of any other corporation organized under the laws of, or authorized to transact business in, this state. The words “telephone” and “cooperative” shall not both be used in the name of any corporation organized under the laws of, or authorized to transact business in, this state, except a cooperative or corporation transacting business in this state pursuant to this chapter.
§ 65-29-106. Incorporators.
-
Five (5) or more natural persons, or two (2) or more cooperatives, may organize a cooperative in the manner provided for in this chapter.
§ 65-29-107. Articles of incorporation.
- (a)
The articles of incorporation of a cooperative shall recite in the caption that they are executed pursuant to this chapter, shall be signed and acknowledged by each of the incorporators, and shall state:
- (1)
The name of the cooperative;
- (2)
The address of its principal office;
- (3)
The names and addresses of the incorporators;
- (4)
The names and addresses of the persons who shall constitute its first board of directors; and
- (5)
Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of its business and affairs.
- (b)
Such articles of incorporation shall be submitted to the secretary of state for filing as provided in this chapter.
- (c)
It shall not be necessary to set forth in the articles of incorporation of a cooperative the purpose for which it is organized or any of the corporate powers vested in a cooperative under this chapter.
§ 65-29-108. Bylaws.
-
The board of directors shall adopt the first bylaws to be adopted following an incorporation, conversion, merger or consolidation. Thereafter, bylaws shall be adopted, amended, or repealed by its members, by the affirmative vote of a majority of those members voting thereon at a meeting of the members. The bylaws shall set forth the rights and duties of members and directors and may contain other provisions for the regulation and management of the affairs of the cooperative not inconsistent with this chapter or with its articles of incorporation.
§ 65-29-109. Members of cooperative — Meetings — Notice — Quorum — Votes.
- (a)
No person who is not an incorporator shall become a member of a cooperative unless such person shall agree to use telephone service furnished by the cooperative when such telephone service shall be available through its facilities. The bylaws of a cooperative may provide that any person, including an incorporator, shall cease to be a member thereof if such person shall fail or refuse to use telephone service made available by the cooperative within a specified time after having become a member. Membership in the cooperative shall not be transferable, except as may be provided in the bylaws. The bylaws may prescribe additional qualifications and limitations in respect of membership.
- (b)
An annual meeting of the members shall be held at such time as shall be provided in the bylaws.
- (c)
Special meetings of the members may be called by the board of directors, by any three (3) directors, by not less than ten percent (10%) of all the members, or by the president.
- (d)
Meetings of members shall be held at such place as may be provided in the bylaws. In the absence of any such provision, all meetings shall be held in the city or town in which the principal office of the cooperative is located.
- (e)
Except as hereinafter otherwise provided, written or printed notice stating the time and place of each meeting of members, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each member, either personally or by mail, not less than five (5) nor more than twenty-five (25) days before the date of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail with postage prepaid to the member at such member's address as it appears on the records of the cooperative.
- (f)
A quorum shall consist of the presence in person of two percent (2%) of all members of the cooperative or fifty (50) members, whichever is the lesser, for the transaction of business at all meetings of the members, unless the bylaws prescribe the presence of a greater percentage or number of the members for a quorum, or unless the business to be transacted requires by this chapter a larger percentage to transact the particular business before the meeting. If less than a quorum is present at any meeting, a majority of those present in person may adjourn the meeting from time to time without further notice. The directors are authorized to amend the bylaws of the cooperative to conform with the minimum requirements for a quorum set forth in this subsection (f).
- (g)
Each member shall be entitled to one (1) vote on each matter submitted to a vote at a meeting. Voting shall be in person, but, if the bylaws so provide, may also be by proxy or by mail, or both. If the bylaws provide for voting by proxy or by mail, they shall also prescribe the conditions under which proxy or mail voting shall be exercised. No person shall vote as proxy for more than one (1) member at any meeting of the members, and/or election.
§ 65-29-110. Initiative by members.
- (a)
Notwithstanding any other provision of this chapter, any proposition embodied in a petition signed by not less than ten percent (10%) of all members of the cooperative, together with any document submitted with such petition to give effect to the proposition, shall be submitted to the members of a cooperative either at a special meeting of the members held within forty-five (45) days after the presentation of such petition to the board of directors, or, if the date of the next annual meeting of members falls within ninety (90) days after such presentation or if the petition so requests, at such annual meeting.
- (b)
The approval of the board of directors shall not be required in respect of any proposition or document submitted to the members pursuant to this section and approved by them, but such proposition or document shall be subject to all other applicable provisions of this chapter.
- (c)
Any affidavit or affidavits required to be filed with any such document pursuant to applicable provisions of this chapter shall, in such case, be modified to show compliance with this section.
§ 65-29-111. Board of directors.
- (a)
The business and affairs of a cooperative shall be managed by a board of not less than five (5) directors, each of whom shall be a member of the cooperative or of another cooperative which is a member. The bylaws shall prescribe the number of directors, their qualifications and area of representation, other than those provided for in this chapter, the manner of holding meetings of the board of directors, and of the election of successors to directors who shall resign, die or otherwise be incapable of acting. The bylaws may also provide for the removal of directors from office and for the election of their successors. Without approval of the members, directors shall not receive any salaries for their services as directors and, except in emergencies, shall not be employed by the cooperative in any capacity involving compensation, without approval of the members. The bylaws may, however, provide that a fixed fee and expenses of attendance, if any, be allowed to each director for attendance at each meeting of the board of directors.
- (b)
The directors of a cooperative named in any articles of incorporation, consolidation, merger, or conversion, as the case may be, shall hold office until the next following annual meeting of the members or until their successors shall have been elected and qualified; provided, that in the case of a corporation being converted under § 65-29-117, the directors can be named in the articles of conversion for staggered terms of from one (1) to three (3) years if same is allowed by the converting corporation's current bylaws. At each annual meeting or special meeting, or annual election if so provided by the bylaws, called for the election of directors, or, in case of failure to hold the annual meeting, or annual election, as specified in the bylaws, at a special meeting called for that purpose, the members shall elect directors to hold office until the next following annual meeting of the members, except as hereinafter otherwise provided. Each director shall hold office for the term for which such director is elected or until a successor shall have been elected and qualified.
- (c)
The bylaws may provide that, in lieu of electing the whole number of directors annually, the directors shall be divided into two (2) classes at the first or any subsequent annual meeting, each class to be as nearly equal in number as possible, with the term of office of the directors of the first class to expire at the next succeeding annual meeting and the term of the second class to expire at the second succeeding annual meeting. At each annual meeting, or annual election if so provided by the bylaws, after such classification a number of directors equal to the number of the class whose term expires at the time of such meeting shall be elected to hold office until the second succeeding annual meeting. Or the bylaws may provide that in lieu of electing the whole number of directors annually, the directors shall be divided into three (3) classes at the first or any subsequent annual meeting, each class to be as nearly equal in number as possible, with the term of office of the directors of the first class to expire at the next succeeding annual meeting, the term of the second class to expire at the second succeeding annual meeting, and the term of the third class to expire at the third succeeding annual meeting. At each annual meeting, or annual election if so provided by the bylaws, after such classification a number of directors equal to the number of the class whose term expires at the time of such meeting shall be elected to hold office for three (3) years or until the third succeeding annual meeting.
- (d)
A majority of the board of directors shall constitute a quorum.
- (e)
If a husband and wife hold joint membership in a cooperative, pursuant to appropriate bylaws provision, either one, but not both, may be elected as director.
- (f)
The board of directors may exercise all of the powers of a cooperative except such as are conferred upon the members by this chapter, or its articles of incorporation or bylaws.
- (g)
In any cooperative organized under this section for such election to be held, which provides service in five (5) or more counties, including a county containing and physically divided by a United States government corps of engineers dam and reservoir project of thirty-four thousand (34,000) acres or more, and which serves less than twenty thousand (20,000) subscribers as of April 15, 1986, all contested elections for members of the board of directors shall be held on voting machines and under the supervision of the election commission. Any election contest pursuant to this subsection (g) shall be filed and tried by the criminal court of the county where the election occurs. The board of directors is hereby authorized to contract with any county election commission, or the employees thereof, affected by the terms of this subsection (g) for the purpose of holding an election pursuant to this subsection (g).
§ 65-29-112. Officers.
-
The officers of a cooperative shall consist of a president, vice president, secretary, and treasurer, who shall be elected annually by and from the board of directors. No person shall continue to hold any of the above offices after having ceased to be a director. The offices of secretary and of treasurer may be held by the same person. The board of directors may also elect or appoint such other officers, agents, or employees as it shall deem necessary or advisable and shall prescribe the powers and duties of such officers, agents, or employees. Any officer may be removed from office and a successor elected in the manner prescribed in the bylaws.
§ 65-29-113. Amendment of articles of incorporation — Certificate of change of principal office.
- (a)
A cooperative may amend its articles of incorporation by complying with the following requirements:
- (1)
The proposed amendment shall be first approved by the board of directors and shall then be submitted to a vote of the members at any annual or special meeting thereof, the notice of which shall set forth the proposed amendment. The proposed amendment, with such changes as the members shall choose to make therein, shall be deemed to be approved on the affirmative vote of not less than two-thirds (⅔) of those members voting thereon at such meeting; and
- (2)
- (A)
Upon such approval by the members, articles of amendment shall be executed and acknowledged on behalf of the cooperative by its president or vice president, and its corporate seal shall be affixed thereto and attested by its secretary. The articles of amendment shall recite in the caption that they are executed pursuant to this chapter and shall state:
- (i)
The name of the cooperative;
- (ii)
The address of its principal office;
- (iii)
The date of the filing of its articles of incorporation in the office of the secretary of state; and
- (iv)
The amendment to its articles of incorporation;
- (B)
The president or vice president executing such articles of amendment shall also make and annex thereto an affidavit stating that there was compliance with this section.
- (b)
A cooperative may, without amending its articles of incorporation, upon authorization of its board of directors, change the location of its principal office by filing a certificate of change of principal office executed and acknowledged by its president or vice president under its seal attested by its secretary, in the office of the secretary of state and also in each county office in which its articles of incorporation or any prior certificate of change of principal office of such cooperative has been filed. Such cooperative shall also, within thirty (30) days after the filing of such certificate of change of principal office in any county office, file therein certified copies of its articles of incorporation and all amendments thereto, if the same are not already on file in the county office.
§ 65-29-114. Consolidation.
-
Any two (2) or more cooperatives, each of which is hereinafter designated a “consolidating cooperative,” may consolidate into a new cooperative, hereinafter designated the “new cooperative,” by complying with the following requirements:
- (1)
The proposition for the consolidation of the consolidating cooperatives into the new cooperative and proposed articles of consolidation to give effect thereto shall be first approved by the board of directors of each consolidating cooperative. The proposed articles of consolidation shall recite in the caption that they are executed pursuant to this chapter, and shall state:
- (A)
The name of each consolidating cooperative, the address of its principal office, and the date of the filing of its articles of incorporation in the office of the secretary of state;
- (B)
The name of the new cooperative and the address of its principal office;
- (C)
The names and addresses of the persons who shall constitute the first board of directors of the new cooperative;
- (D)
The terms and conditions of the consolidation and the mode of carrying the same into effect, including the manner and basis of converting memberships in each consolidating cooperative into memberships in the new cooperative and the issuance of certificates of membership in respect of such converted memberships; and
- (E)
Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the new cooperative;
- (2)
The proposition for the consolidation of the consolidating cooperatives into the new cooperative and the proposed articles of consolidation approved by the board of directors of each consolidating cooperative shall then be submitted to a vote of the members thereof at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed consolidation. The proposed consolidation and the proposed articles of consolidation shall be deemed to be approved upon the affirmative vote of not less than two-thirds (⅔) of those members of each consolidating cooperative voting thereon at such meeting;
- (3)
Upon such approval by the members of the respective consolidating cooperatives, articles of consolidation in the form approved shall be executed and acknowledged on behalf of each consolidating cooperative by its president or vice president and its seal shall be affixed thereto and attested by its secretary. The president or vice president of each consolidating cooperative executing such articles of consolidation shall also make and annex thereto an affidavit stating that this section was duly complied with by such cooperative.
§ 65-29-115. Merger.
-
Any one (1) or more cooperatives, each of which is hereinafter designated a “merging cooperative,” may merge into another cooperative, hereinafter designated the “surviving cooperative,” by complying with the following requirements:
- (1)
The proposition for the merger of the merging cooperatives into the surviving cooperative and proposed articles of merger to give effect thereto shall be first approved by the board of directors of each merging cooperative and the board of directors of the surviving cooperative. The proposed articles of merger shall recite in the caption that they are executed pursuant to this chapter and shall state:
- (A)
The name of each merging cooperative, the address of its principal office, and the date of the filing of its articles of incorporation in the office of the secretary of state;
- (B)
The name of the surviving cooperative and the address of its principal office;
- (C)
A statement that the merging cooperatives elect to be merged into the surviving cooperative;
- (D)
The terms and conditions of the merger and the mode of carrying the same into effect, including the manner and basis of converting the memberships in the merging cooperative or cooperatives into memberships in the surviving cooperative and the issuance of certificates of membership in respect of such converted memberships; and
- (E)
Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the surviving cooperative;
- (2)
The proposition for the merger of the merging cooperatives into the surviving cooperative and the proposed articles of merger approved by the board of directors of the respective cooperatives, parties to the proposed merger, shall then be submitted to a vote of the members of each such cooperative at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed merger. The proposed merger and the proposed articles of merger shall be deemed to be approved upon the affirmative vote of not less than two-thirds (⅔) of those members of each cooperative voting thereon at such meeting;
- (3)
Upon such approval by the members of the respective cooperatives, parties to the proposed merger, articles of merger in the form approved shall be executed and acknowledged on behalf of each such cooperative by its president or vice president and its seal shall be affixed thereto and attested by its secretary. The president or vice president of each cooperative executing such articles of merger shall also make and annex thereto an affidavit stating that this section was duly complied with by such cooperative. Such articles of merger and affidavits shall be submitted to the secretary of state for filing as provided in this chapter.
§ 65-29-116. Effect of consolidation or merger.
-
The effect of consolidation or merger shall be as follows:
- (1)
The several cooperatives, parties to the consolidation or merger, shall be a single cooperative, which, in the case of a consolidation, shall be the new cooperative provided for in the articles of consolidation, and, in the case of a merger, shall be that cooperative designated in the articles of merger as the surviving cooperative, and the separate existence of all cooperatives, parties to the consolidation or merger, except the new or surviving cooperative, shall cease;
- (2)
Such new or surviving cooperative shall have all the rights, privileges, immunities, and powers and shall be subject to all the duties and liabilities of a cooperative organized under this chapter, and shall possess all the rights, privileges, immunities and franchises as well of a public as of a private nature, and all property, real and personal, applications for membership, all debts due on whatever account, and all other choses in action, of each of the consolidating or merging cooperatives, and furthermore all and every interest of, or belonging or due to, each of the cooperatives so consolidated or merged, shall be taken and deemed to be transferred to and vested in such new or surviving cooperative without further act or deed; and the title to any real estate, or any interest therein, under the laws of this state vested in any such cooperatives shall not revert or be in any way impaired by reason of such consolidation or merger;
- (3)
Such new or surviving cooperative shall thenceforth be responsible and liable for all of the liabilities and obligations of each of the cooperatives so consolidated or merged, and any claim existing, or action or proceeding pending, by or against any of such cooperatives may be prosecuted as if such consolidation or merger had not taken place, but such new or surviving cooperatives may be substituted in its place;
- (4)
Neither the rights of creditors nor any liens upon the property of any such cooperatives shall be impaired by such consolidation or merger; and
- (5)
In the case of a consolidation, the articles of consolidation shall be deemed to be the articles of incorporation of the new cooperative; and in the case of a merger, the articles of incorporation of the surviving cooperative shall be deemed to be amended to the extent, if any, that changes in the articles of incorporation of the surviving cooperative are provided for in the articles of merger.
§ 65-29-117. Conversion of existing corporations.
- (a)
Any corporation, private or not-for-profit organized under the laws of this state for the purpose, among others, of supplying telephone service to its subscribers may be converted into a cooperative and become subject to this chapter with the same effect as if originally organized under this chapter by complying with the following requirements:
- (1)
The proposition for the conversion of such corporation into a cooperative and proposed articles of conversion to give effect thereto shall be first approved by the board of trustees or the board of directors, as the case may be, of such corporation. The proposed articles of conversion shall recite in the caption that they are executed pursuant to this chapter and shall state:
- (A)
The name of the corporation prior to its conversion into a cooperative;
- (B)
The address of the principal office of such corporation;
- (C)
The date of the filing of articles of incorporation of such corporation in the office of the secretary of state;
- (D)
The statute or statutes under which such corporation was organized;
- (E)
The name assumed by such corporation;
- (F)
A statement that such corporation elects to become a cooperative, nonprofit, membership corporation subject to this chapter;
- (G)
The manner and basis of converting either memberships in or shares of stock of such corporation into membership in the converted corporation; and
- (H)
Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs;
- (2)
The proposition for the conversion of such corporation into a cooperative and the proposed articles of conversion approved by the board of trustees or board of directors, as the case may be, of such corporation shall then be submitted to a vote of the members or stockholders, as the case may be, of such corporation at any duly held annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed conversion. The proposition for the conversion of such corporation into a cooperative and the proposed articles of conversion, with such amendments thereto as the members or stockholders of such corporation shall choose to make, shall be deemed to be approved upon the affirmative vote of not less than two-thirds (⅔) of those members of such corporation voting thereon at such meeting, or if such corporation is a stock corporation, upon the affirmative vote of the holders of not less than two-thirds (⅔) of the capital stock of such corporation represented at such meeting; provided, that for the purposes of this section, a quorum under the provisions contained in § 65-29-109(f), shall constitute a quorum of any converting general welfare corporation or corporation not-for-profit whether or not such would be the quorum under any other existing law; and
- (3)
Upon such approval by the members or stockholders of such corporation, articles of conversion in the form approved by such members or stockholders shall be executed and acknowledged on behalf of such corporation by its president or vice president, and its corporate seal shall be affixed thereto and attested by its secretary. The president or vice president executing such articles of conversion on behalf of such corporation shall also make and annex thereto an affidavit stating that there has been compliance with this section with respect to the approval of its trustees or directors and its members or stockholders, of the proposition for the conversion of such corporation into a cooperative and such articles of conversion. Such articles of conversion and affidavit shall be submitted to the secretary of state for filing as provided in this chapter.
- (b)
“Articles of incorporation,” as used in this chapter, includes the articles of conversion of a converted corporation.
§ 65-29-118. Dissolution.
- (a)
A cooperative which has not commenced business may dissolve voluntarily by delivering to the secretary of state articles of dissolution, executed and acknowledged on behalf of the cooperative by a majority of the incorporators, which shall state:
- (1)
The name of the cooperative;
- (2)
The address of its principal office;
- (3)
The date of its incorporation;
- (4)
That the cooperative has not commenced business;
- (5)
That the amount, if any, actually paid in, less any part thereof disbursed for necessary expenses of the cooperative, has been returned to those entitled thereto and that all easements shall have been released to the grantors;
- (6)
That no debt of the cooperative remains unpaid; and
- (7)
That a majority of the incorporators elect that the cooperative be dissolved. Such articles of dissolution shall be submitted to the secretary of state for filing as provided in this chapter.
- (b)
A cooperative which has commenced business may dissolve voluntarily and wind up its affairs in the following manner:
- (1)
- (A)
The board of directors shall first recommend that the cooperative be dissolved voluntarily and thereafter the proposition that the cooperative be dissolved shall be submitted to the members of the cooperative at any annual or special meeting, the notice of which shall set forth such proposition. The proposed voluntary dissolution shall be deemed to be approved upon the affirmative vote of not less than a majority of all the members of the cooperative;
- (B)
Notwithstanding this section to the contrary, in any cooperative organized under this chapter which provides service in five (5) or more counties, including a county containing and physically divided by a United States government corps of engineers dam and reservoir project of thirty-four thousand (34,000) acres or more, and which serves less than twenty thousand (20,000) subscribers as of April 15, 1986, any election to voluntarily dissolve such cooperative shall be held on voting machines and under the supervision of the election commission. The voting machines for any such election shall remain open for nine (9) full hours from eight o'clock a.m. (8:00 a.m.) until five o'clock p.m. (5:00 p.m.) Any election contest pursuant to this subdivision (b)(1)(B) shall be filed and tried by the criminal court of the county where the election occurs. The board of directors is hereby authorized to contract with any county election commission, or the employees thereof, affected by the terms of this subdivision (b)(1)(B) for the purpose of holding an election pursuant to this subdivision (b)(1)(B). Any election as to whether to voluntarily dissolve any such cooperative shall also be conducted at an annual or special meeting that is held on a Saturday. For any such election to be held on or after September 1, 2000, notice of such meeting shall be published once a week for two (2) successive weeks in a newspaper of general circulation in each county served by the cooperative at least three (3) weeks prior to the meeting at which the election will be conducted. The results of any such election shall be announced as immediately as possible after the voting machines close at five o'clock p.m. (5:00 p.m.);
- (2)
- (A)
Upon such approval, a certificate of election to dissolve, hereinafter designated the “certificate,” shall be executed and acknowledged on behalf of the cooperative by its president or vice president, and its corporate seal shall be fixed thereto and attested by its secretary. The certificate shall state:
- (i)
The name of the cooperative;
- (ii)
The address of its principal office;
- (iii)
The names and addresses of its directors; and
- (iv)
The total number of members of the cooperative and the number of members who voted for and against the voluntary dissolution of the cooperative;
- (B)
The president or vice president executing the certificate shall also make and annex thereto an affidavit stating that there was compliance with this subsection (b). Such certificate and affidavit shall be submitted to the secretary of state for filing as provided in this chapter;
- (3)
Upon the filing of the certificate and affidavit by the secretary of state, the cooperative shall cease to carry on its business except insofar as may be necessary for the winding up thereof, but its corporate existence shall continue until articles of dissolution have been filed by the secretary of state;
- (4)
After the filing of the certificate and affidavit by the secretary of state, the board of directors shall immediately cause notice of the winding up proceedings to be mailed to each known creditor and claimant and to be published once a week for two (2) successive weeks in a newspaper of general circulation in the county in which the principal office of the cooperative is located;
- (5)
The board of directors shall wind up and settle the affairs of the cooperative, collect sums owing to it, liquidate its property and assets, pay and discharge its debts, obligations and liabilities, other than those to patrons arising by reason of their patronage, and do all other things required to wind up its business, and after paying or discharging or adequately providing for the payment or discharge of all its debts, obligations and liabilities, other than those to patrons arising by reason of their patronage, shall distribute any remaining sums, first, to patrons holding unpaid equity certificates, second, to patrons for the pro rata return of all amounts standing to their credit by reason of their patronage, and third, to members for the pro rata repayment of membership fees. Any sums then remaining shall be distributed among its members and former members in proportion to their patronage;
- (6)
- (A)
When all debts, liabilities and obligations of the cooperative have been paid and discharged or adequate provision shall have been made therefor, and all of the remaining property and assets of the cooperative shall have been distributed to the members pursuant to this section, the board of directors shall authorize the execution of articles of dissolution which shall thereupon be executed and acknowledged on behalf of the cooperative by its president or vice president, and its corporate seal shall be affixed thereto and attested by its secretary. Such articles of dissolution shall recite in the caption that they are executed pursuant to this chapter and shall state:
- (i)
The name of the cooperative;
- (ii)
The address of the principal office of the cooperative;
- (iii)
That the cooperative has heretofore delivered to the secretary of state a certificate of election to dissolve and the date on which the certificate was filed by the secretary of state in the records of the office of the secretary of state;
- (iv)
That all debts, obligations and liabilities of the cooperative have been paid and discharged or that adequate provision has been made for such payment or discharge;
- (v)
That all the remaining property and assets of the cooperative have been distributed among the members in accordance with this section; and
- (vi)
That there are no actions or suits pending against the cooperative;
- (B)
The president or vice president executing the articles of dissolution shall also make and annex thereto an affidavit stating that there has been compliance with this subsection (b). Such articles of dissolution and affidavit, accompanied by proof of the publication required in this subsection (b), shall be submitted to the secretary of state for filing as provided in this chapter.
§ 65-29-119. Filing of articles of incorporation, etc.
-
Articles of incorporation, amendment, consolidation, merger, conversion, or dissolution, as the case may be, when executed and acknowledged and accompanied by such affidavits as may be required by applicable provisions of this chapter, shall be presented to the secretary of state for filing in the records of the office of the secretary of state. If the secretary of state shall find that the articles presented conform to the requirements of this chapter, the secretary of state shall, upon the payment of the fees as in this chapter provided, file the articles so presented in the records of the office of the secretary of state and, upon such filing, the incorporation, amendment, consolidation, merger, conversion or dissolution provided for therein shall be in effect. The secretary of state immediately upon the filing in the office of the secretary of state of any articles pursuant to this chapter shall transmit a certified copy thereof to the county clerk of the county in which the principal office of each cooperative or corporation affected by such incorporation, amendment, consolidation, merger, conversion, or dissolution shall be located. The clerk of any county, upon receipt of any such certified copy, shall file and index the same in the records of the clerk's office, but the failure of the secretary of state or of a clerk of a county to comply with this section shall not invalidate such articles. This section shall also apply to certificates of election to dissolve and affidavits of compliance executed pursuant to § 65-29-118(b)(2).
§ 65-29-120. Filing fees.
-
The secretary of state shall charge and collect for the filing of:
- (1)
Articles of incorporation, twenty-five dollars ($25.00);
- (2)
Articles of amendment, fifteen dollars ($15.00);
- (3)
Articles of consolidation or merger, fifteen dollars ($15.00);
- (4)
Articles of conversion, fifteen dollars ($15.00);
- (5)
Certificate of election to dissolve, fifteen dollars ($15.00);
- (6)
Articles of dissolution, fifteen dollars ($15.00); and
- (7)
Certificate of change of principal office, five dollars ($5.00).
§ 65-29-121. Use of revenue.
- (a)
Revenues of a corporation for any fiscal year may be used to:
- (1)
Defray expenses of the cooperative and of the operation and maintenance of its facilities during such fiscal year;
- (2)
Pay the interest and principal obligations of the cooperative coming due in such fiscal year;
- (3)
Finance, or to provide a reserve for the financing of, the construction or acquisition by, the cooperative of additional facilities to the extent determined by the board of directors;
- (4)
Provide a reasonable reserve for working capital;
- (5)
Provide a reserve for the payment of indebtedness of the cooperative maturing more than one (1) year after the date of issuance of such indebtedness in an amount not less than the total of the interest and principal payments in respect thereof required to be made during the next following fiscal year;
- (6)
Provide a fund for education and the dissemination of information concerning the effective use of telephone service and other services made available by the cooperative; and
- (7)
Provide reserves against the contingencies of catastrophe or calamity, including, but not limited to, ice breaks, cyclone, tornado, high winds, snows, etc.; reserves for bad debt losses, major service losses, such as discontinuance of service by large plants or government installations with a large number of telephones.
- (b)
All operating revenues in excess of the amounts necessary to pay expenses of operating and maintenance of its facilities and interest during the fiscal year shall be distributed by the cooperative to its patrons as either:
- (1)
A refund to the patrons, which refund may in the discretion of the governing body be:
- (A)
A credit on the books of the cooperative as a capital credit;
- (B)
In cash; or
- (C)
A combination of subdivisions (b)(1)(A) and (B); or
- (2)
A general rate reduction.
- (c)
The amount of each individual patron's credit as in subdivision (b)(1) shall be the same percentage of the total funds available for credit to patrons as such patron contributed to the total patronage of the cooperative for the period involved.
§ 65-29-122. Disposition of property — Authorized sources of indebtedness.
- (a)
A cooperative may not sell, mortgage, lease, or otherwise dispose of or encumber all or any major portion of its property unless such sale, mortgage, lease, or other disposition or encumbrance is authorized at a duly held meeting of the members thereof by the affirmative vote of not less than two-thirds (⅔) of all of the members of the cooperative, and unless the notice of such proposed sale, mortgage, lease, or other disposition or encumbrance shall have been contained in the notice of the meeting; provided, that notwithstanding anything herein contained, or any other law, the board of directors of a cooperative, without authorization by the members thereof, shall have full power and authority to authorize the execution and delivery of a mortgage or mortgages or deed or deeds of trust upon, or the pledging or encumbrancing of, any or all of the property, or assets of the cooperative, tangible or intangible, whether acquired or to be acquired, and wherever situated, as well as the revenues and income therefrom, all upon such terms and conditions as the board of directors shall determine, to secure any indebtedness of the cooperative to the United States or any instrumentality or agency thereof, which shall include but shall not be limited to the rural electrification administration and/or the rural telephone bank.
- (b)
A cooperative may secure any of its indebtedness through:
- (1)
The Rural Telephone Finance Corporation;
- (2)
Any savings and loan association or savings bank, collectively referred to as savings institutions, or any bank chartered by this state;
- (3)
Any national bank or federal savings institution that has its main office located in this state; or
- (4)
Any national or state bank, or any federal or state savings institution that has its main office located outside this state and that maintains one (1) or more branches in this state which are authorized to accept federally insured deposits. For the purposes of this section, an automated teller machine or such other similar type receptacle or device shall not be considered a branch.
- (c)
Notwithstanding subsections (a) and (b), only a cooperative having territorial boundaries solely within the northwestern counties of this state having a population of not less than thirty-two thousand four hundred (32,400) nor more than thirty-two thousand five hundred (32,500), not less than thirty-seven thousand two hundred (37,200) nor more than thirty-seven thousand three hundred (37,300), and not less than forty-eight thousand one hundred twenty-five (48,125) nor more than forty-eight thousand two hundred (48,200), all according to the 2000 federal census or any subsequent federal census, and having seven thousand (7,000) or fewer members subscribing to telephone services, may sell, merge, mortgage, lease, or otherwise dispose of or encumber all or any major portion of its property, so long as such sale, mortgage, lease, or other disposition or encumbrance is authorized at a duly held meeting of the members of the cooperative by the affirmative vote of not less than two-thirds (⅔) of the members voting on the disposition or encumbrance at such meeting, and so long as the notice of such proposed sale, merger, mortgage, lease, or other disposition or encumbrance is contained in the notice of the meeting. The provisions established by this subsection (c) may only be utilized by a Tennessee cooperative described within this subsection (c) and are not applicable to any other Tennessee cooperative.
§ 65-29-124. Mortgages.
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Any mortgage, deed of trust, or other instrument executed by a cooperative or foreign corporation transacting business in this state pursuant to this chapter, which, by its terms, creates a lien upon real and personal property then owned or after-acquired, and which is recorded as a mortgage of real property in any county in which such property is located or is to be located, shall have the same force and effect as if the mortgage, deed of trust, or other instrument were also recorded or filed in the proper office in such county as a mortgage of personal property. Recordation of any such mortgage, deed of trust, or other instrument shall cause the lien thereof to attach to all after-acquired property of the mortgagor of the nature therein described as being mortgaged or pledged thereby immediately upon the acquisition of such property by the mortgagor, and such lien shall be superior to all claims of creditors of the mortgagor and purchasers of such property and to all other liens, except liens of prior record and tax liens, affecting such property.
§ 65-29-125. Exercise of eminent domain.
- (a)
No property which is owned or held for public use, nor any interest therein, shall be condemned pursuant to the authority granted in § 65-29-104 if in the judgment of the court the condemnation of such property or interest therein will obstruct, prevent, burden, interfere with, or unduly inconvenience the continued use of such property for the public use of which it is devoted at the time the same is sought to be condemned. Where title to any property sought to be condemned is defective, it shall be passed by decree of court. Where condemnation proceedings become necessary, the court in which such proceedings are filed shall, upon application by the cooperative and upon the posting of a bond with the clerk of the court in such amount as the court may deem commensurate with the value of the property, order that the right of possession shall issue immediately or as soon and upon such terms as the court, in its discretion, may deem proper and just. In cases where condemnation of property already devoted to a public use is sought, no order as to right of possession shall issue until it is finally determined that the condemnor is entitled to condemn such property.
- (b)
- (1)
If such cooperative or company has actually taken possession of land, occupying it for the purpose of internal improvement, without condemnation or without the consent of the owner, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as set out in title 29, chapter 16, or amendments thereto; or the owner may sue for damages in the ordinary way, in which case the jury shall lay off the land in metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest.
- (2)
The owner of land shall, in such cases, commence proceedings within twelve (12) months after the land has been actually taken possession of, and the work of the proposed internal improvement begun; saving, however, to unknown owners and nonresidents, twelve (12) months after actual knowledge of such occupation, not exceeding three (3) years, and saving to persons under the disabilities of infancy and unsoundness of mind, twelve (12) months after such disability is removed, but not exceeding ten (10) years.
§ 65-29-126. Waiver of notice.
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Whenever any notice is required to be given under this chapter or under the articles of incorporation or bylaws of a cooperative, waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time fixed for the giving of such notice, shall be deemed equivalent to such notice. If a person entitled to notice of a meeting shall attend such meeting, such attendance shall constitute a waiver of notice of the meeting, except in case the attendance is for the express purpose of objecting to the transaction of any business because the meeting shall not have been lawfully called or convened.
§ 65-29-127. Acknowledgments by officers, directors or members.
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No person who is authorized to take acknowledgments under the laws of this state shall be disqualified from taking acknowledgments of instruments executed in favor of a cooperative or to which it is a party, by reason of being an officer, director, or member of such cooperative.
§ 65-29-128. Foreign corporations.
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Any corporation organized on a nonprofit or a cooperative basis for the purpose of supplying telephone service and owning or operating telephone service lines in a state adjacent to this state shall be permitted to construct or acquire extensions of such lines and to transact business in this state without complying with any statute of this state pertaining to the qualification of foreign corporations for the transaction of business in this state. Any such foreign corporation, as a prerequisite to the construction or operation of such extension of its lines into and the transaction of business in this state, shall, by an instrument executed and acknowledged in its behalf by its president or vice president under its corporate seal attested by its secretary, designate the secretary of state its agent to accept service of process in its behalf. In the event any process shall be served upon the secretary of state, the secretary of state shall forthwith forward the same by registered mail to such corporation at the address thereof specified in such instrument. After such designation, such corporation may sue and be sued in the courts of this state and shall have all the rights, powers, privileges and immunities of a cooperative.
§ 65-29-129. No exemption from ad valorem taxes.
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Nothing in this chapter shall be construed to exempt cooperatives and foreign corporations furnishing telephone service in this state pursuant to this chapter from ad valorem property taxes. Assessment schedules for such property shall be filed with the comptroller of the treasury. Cooperatives and foreign corporations shall also be subject to the sales and use tax under title 67, chapter 6. The payment of the above taxes shall be in lieu of all other taxes unless it is otherwise specifically provided by law.
§ 65-29-130. Jurisdiction of Tennessee public utility commission.
- (a)
Cooperatives and foreign corporations engaged in rendering telephone service in this state pursuant to this chapter fall within the jurisdiction of the Tennessee public utility commission for the sole and specific purposes as set out below:
- (1)
The establishment of territorial boundaries;
- (2)
The hearing and determining of disputes arising between one (1) telephone cooperative and other telephone cooperatives, and between telephone cooperatives and any other type of person, corporation, association, or partnership rendering telephone service, relative to and concerning territorial disputes; and
- (3)
The approval of sales and purchases of operating telephone properties.
- (b)
Cooperatives and foreign corporations engaged in rendering telephone service in this state pursuant to this chapter fall within the jurisdiction of the comptroller of the treasury for the sole and specific purpose of assessing the cooperative property for ad valorem taxes as provided in § 65-29-129.
- (c)
Either party shall have the right of appeal from any ruling, order or action by the commission or the comptroller of the treasury under the procedures established by §§ 4-5-322 and 4-5-323.
§ 65-29-131. Securities act exemption.
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Title 48, chapter 16 shall not apply to any note, bond, or other evidence of indebtedness issued by any cooperative or foreign corporation transacting business in this state pursuant to this chapter to the United States or any agency or instrumentality thereof, or to any mortgage or deed of trust executed to secure the same. Title 48, chapter 16, as amended, shall not apply to the issuance of membership certificates or equity certificates by any cooperative or any such foreign corporation.
§ 65-29-132. Construction of chapter.
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This chapter shall be construed liberally. The enumeration of any object, purpose, power, manner, method, or thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.
§ 65-29-133. Cooperative elections — Criminal penalties.
- (a)
It is a Class C misdemeanor in such cooperative elections to:
- (1)
Commit any act prohibited in title 2, chapter 19, part 1;
- (2)
Prepare more ballots than the number of accounts or eligible members of the cooperative holding the election;
- (3)
Violate the rules or bylaws of the cooperative relative to voting; or
- (4)
Otherwise engage in any fraudulent conduct in conducting such elections.
- (b)
Any action under this section shall be brought in the criminal court of the county in which the election is conducted, as, notwithstanding title 2, chapter 17, shall any action challenging an action under § 65-29-109, relative to the filling of an office specified in § 65-29-111.
§ 65-29-134. Notice to cooperative members of merger.
- (a)
- (1)
Notwithstanding any law to the contrary, in any cooperative organized under this chapter which provides service in five (5) or more counties, including a county containing and physically divided by a United States government corps of engineers dam and reservoir project of thirty-four thousand (34,000) acres or more, and which serves less than twenty thousand (20,000) subscribers as of April 15, 1986, the board of directors of such cooperative must give notice to members of the cooperative that at the next annual or special meeting such board of directors is filing a stock merger registration statement with the securities and exchange commission or is taking other lawful measures to convert to or merge with a for-profit entity. Such notice to the members shall be published once a week for four (4) consecutive weeks in a newspaper of general circulation in each county served by the cooperative with the last notice being at least three (3) weeks prior to the meeting. Such notice of meeting shall be at least one-fourth (¼) of a page in size and include an estimate of the moneys the board would expend to effectuate the merger.
- (2)
The members shall then vote as to whether such stock merger registration statement may be filed or whether the board may take other appropriate measures to convert to or merge with a for-profit entity. In order for a membership approval to be valid, at least ten percent (10%) of the membership of the cooperative must vote and a majority of the voting members must vote in favor of submitting a registration statement or other valid measure to convert to or merge with a for-profit entity.
- (3)
If the majority approves such filing or approves taking further appropriate action toward converting to or merging with a for-profit entity, then the board may make the appropriate registration statement filing with the securities and exchange commission or, in cases where a filing is unnecessary, may take further appropriate action.
- (4)
Once such filing is made effective by the securities and exchange commission or such further appropriate action was taken, then the proposition for the conversion with or merger of a cooperative with a private corporation or other for-profit entity, and the proposed articles of conversion or merger approved by the board of directors of the parties to the proposed conversion or merger, shall then be submitted to a vote of the members of such cooperative at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed conversion or merger including an estimate of the moneys expended to effectuate the conversion or merger. The notice of such meeting shall also be published once a week for four (4) consecutive weeks in a newspaper of general circulation in each county served by the cooperative with the last notice being at least three (3) weeks prior to the meeting. Such notice of meeting shall be at least one-fourth (¼) of a page in size. The notice of the scheduled vote shall also be mailed in the members' monthly telephone bill one (1) month prior to the election.
- (5)
Any election to convert or merge such cooperative shall be held at least ninety (90) days after the date the election at which the membership approved the filing of a registration statement or other appropriate measure for conversion or merger is held and shall be held on voting machines and under the supervision of the election commission in the county where the principal office of the cooperative is located. The voting machines for any such election shall remain open for nine (9) full hours from eight o'clock a.m. (8:00 a.m.) until five o'clock p.m. (5:00 p.m.). Any election contest pursuant to this subsection (a) shall be filed and tried by the criminal court of the county where the election occurs. The board of directors is hereby authorized to contract with any county election commission, or the employees thereof, affected by the terms of this subsection (a) for the purpose of holding an election pursuant to this subsection (a). Any election as to whether to convert to or merge with a private corporation or other for-profit entity shall also be conducted at an annual or special meeting that is held on a Saturday. The proposed conversion or merger and the proposed articles of conversion or merger shall be deemed to be approved upon the affirmative vote of not less than two-thirds (⅔) of those members of the cooperative voting thereon at such meeting.
- (b)
This section shall not be construed as prohibiting the membership of a cooperative from amending the cooperative's bylaws to have more restrictive voting requirements to convert or merge into a for-profit entity than provided for under this section.
Chapter 30 Radio Common Carriers
§ 65-30-102. Declaration of public policy.
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Upon investigation, the general assembly has determined that the rates, services and operations of radio common carriers are affected with a public interest, and it is hereby declared to be the policy of this state to provide fair regulation of such carriers in the interest of the public, to promote adequate, economical and efficient radio common carrier service to citizens and residents of this state; to provide just and reasonable rates and charges for radio common carrier services without unjust discrimination, undue preferences or advantages, or unfair or destructive competitive practices; to encourage and promote harmony between radio common carriers and their subscribers; to cooperate with other states and with the federal government in promoting and coordinating efforts to effectively regulate radio common carriers in the public interest; and to these ends, to vest authority in the Tennessee public utility commission to regulate radio common carriers generally and their rates, services and operations, in the manner and in accordance with the policies set forth in this chapter. This chapter shall not apply to operations of radio or television broadcast stations licensed and regulated by the federal communications commission.
§ 65-30-103. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Commission” means the Tennessee public utility commission;
- (2)
“Radio common carrier” and “carrier” includes any person, firm, corporation, company, association or partnership owning, operating or managing a business of providing radio services to the public on a for-hire basis and under such circumstances as would require a license by the federal communications commission as a miscellaneous common carrier in the domestic public land mobile radio service; provided, that such definition does not include land line telephone or telegraph utilities regulated by the commission or to community antenna television systems; and
- (3)
“Radio common carrier system” means any facility within this state which is operated to perform for hire the service of radio communications to members of the public who subscribe to such service; and “facility,” as used in this subsection (3), includes all real property, stations, antennae, radios, receivers, transmitters, instruments, appliances, fixtures and other personal property used by a radio common carrier in providing service to its subscribers.
§ 65-30-104. Applicability of chapter.
- (a)
This chapter relates only to “radio common carriers” as defined in § 65-30-103 and shall not apply to mobile radio telephone service offered by land line telephone or telegraph utilities regulated by the commission.
- (b)
This chapter shall not apply to operations of radio or television broadcast stations licensed and regulated by the federal communications commission.
§ 65-30-105. Certificate of public convenience and necessity.
- (a)
No person or organization shall hereafter begin the construction, extension or operation of a radio common carrier system or acquire ownership or control thereof, without first obtaining from the commission a certificate that the present or future public convenience and necessity require or will require such construction, extension, operation or acquisition.
- (b)
- (1)
The application for such a certificate of public convenience and necessity shall be in writing, shall include a description of the territory in which the radio common carrier system is proposed to be constructed, extended, operated or acquired, and shall contain such other information as the commission may prescribe from time to time by rules and regulations or orders, including any and all information as to who will own an interest of any kind in the radio common carrier system, and shall be accompanied by a fee of fifty dollars ($50.00).
- (2)
Such applicant shall disclose and file with the commission any and all information relating to ownership and control required to be filed with the federal communications commission.
- (c)
Upon the filing of such an application and the payment of the fee prescribed, the commission shall fix the time and place for a hearing thereon and shall cause notice thereof to be given to the holder of an existing certificate in the affected territory, and to the chief executive officer of any government entity within the affected territory, and to such other parties in interest as the commission may deem necessary. In the event the applicant proposes to interconnect its radio common carrier system with the communications system of an existing land line telephone or telegraph company, then notice of such hearing and a copy of the application shall be served upon the telephone or telegraph utility. If the application is to extend a certificated carrier's operations into a territory contiguous to that of the territory then being actively served by such carrier, and which territory is not then being served by an existing carrier, upon the showing of the need for such service in the contiguous area, such certificated carrier shall be given the preference to serve such contiguous area.
- (d)
After such hearing, the commission may issue to the applicant a certificate of public convenience and necessity in a form to be prescribed by it or may refuse to issue the same or may issue it for only partial exercise of the privilege sought, or may attach to the exercise of the right granted by the certificate such terms, limitations and conditions which it deems the public interest may require. The certificate shall include a description of the territory in which the radio common carrier system is to be constructed, extended, operated or acquired.
- (e)
In determining whether a certificate shall be issued, the commission shall take into consideration, among other things, the public need for the proposed service or acquisition, the suitability of the applicant, the financial responsibility of the applicant, the ability of the applicant to perform efficiently the service for which authority is requested.
- (f)
- (1)
The commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof into the established service area which will be in competition with or duplication of any other certificated radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person, firm or corporation operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonably adequate service.
- (2)
It is a legislative finding that to provide adequate service, including meaningful competition in any service area where qualified applicants have applied for a certificate of public convenience and necessity, the commission shall grant certificates of public convenience and necessity to a total of two (2) radio common carriers in each such service area, and that such number of service providers will provide the highest level of overall service to the public.
- (g)
- (1)
An applicant who is granted a certificate of public convenience and necessity by the commission shall apply for and seek appropriate authority from the federal communications commission, and in the event the applicant fails to do so within six (6) months from the date of grant of authority by the commission, the applicant shall be deemed to have abandoned its application to operate as a radio common carrier.
- (2)
If an applicant, after obtaining a certificate of convenience and necessity from the commission, and after obtaining appropriate authority also from the federal communications commission, fails to commence operations as a radio common carrier within twelve (12) months from the date it has obtained the appropriate federal authority, the applicant shall be deemed to have abandoned its intention to operate as a radio common carrier. For good cause shown, this twelve-month period may be extended for another like period.
- (h)
The granting of any certificate of convenience and necessity to a radio common carrier shall not alter or diminish the right of any land line telephone company rendering communications services in the same area to provide the same or similar radio services within the area specified in the certificate.
- (i)
The commission may, after affording the holder an opportunity to be heard, revoke, suspend or alter any such certificate of public convenience and necessity for the willful violation of any provision of this chapter or the rules and regulations or orders of the commission made under the authority of this chapter.
§ 65-30-106. General jurisdiction of commission.
- (a)
The commission has the power and jurisdiction to supervise and regulate every radio common carrier operating within this state and its property, property rights, equipment, facilities, contracts, certificates and franchises so far as may be necessary to carry out the purposes of this chapter, and to do all things, whether specifically designated in this chapter or in addition thereto, which are necessary or convenient in the exercise of such power and jurisdiction. Without limiting the generality of the foregoing, the commission is authorized to adopt and enforce such reasonable rules and regulations and orders as it may deem necessary with respect to rates, charges and classifications, issuance of certificates, territory of operation, abandonment, suspension, or failure to offer service, adequacy of service prevention or elimination of unjust discrimination between subscribers, financial responsibility, insurance covering personal injury and property damage, uniform system of accounts, records, reports, safety of operation and equipment, and to otherwise accomplish the purposes of this chapter and to implement its provisions.
- (b)
The commission may, after affording an opportunity for hearing, order a radio common carrier to:
- (1)
Construct and operate any reasonable extension of its existing system within the certificated territory; or
- (2)
Make any reasonable repair or improvement of or addition to such system.
- (c)
The commission may from time to time visit the places of business and other premises and examine the records, and facilities of all radio common carriers to ascertain if there has been compliance with all rules and regulations and orders of the commission, and shall have the power to examine all officers, agents and employees of such radio common carriers, and all other persons, under oath, and to compel the production of papers and the attendance of witnesses to obtain the information necessary for administering this chapter.
- (d)
The commission has the power and authority to institute all proceedings and investigations, hear all complaints, issue all process and orders, and render all decisions necessary to enforce this chapter or of the rules, regulations and orders adopted thereunder, or to otherwise accomplish the purposes of this chapter.
- (e)
With respect to borderline jurisdiction between this state and adjacent state jurisdictions, the 37 dBu contour of any base station located in this state and operated from the base station in the state is construed to mean that area within thirty-five (35) miles of the state base station. The commission shall have full power and authority to negotiate with other state commissions in an effort to determine and work out the conflict, if any, between base stations in this state and the base stations certificated and located in other adjoining states.
- (f)
The commission has the right to institute, or to intervene as a party in, any action in any court of competent jurisdiction seeking mandamus, injunctive or other relief to compel compliance with this chapter or of any rule, regulation or order adopted thereunder, or to restrain or otherwise prevent or prohibit any illegal or unauthorized conduct in connection with this chapter.
§ 65-30-107. Rates.
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The commission shall prescribe just and reasonable rates, charges and classifications for the services rendered by a radio common carrier to subscribers. Tariffs shall be in such form and filed and published in such manner and on such notice as the commission may prescribe.
§ 65-30-108. Duties of radio common carriers.
- (a)
Each radio common carrier shall provide safe and adequate service, equipment and facilities for the operation of its system.
- (b)
No radio common carrier shall demand or receive a greater or less or different compensation for providing service than the rates and charges specified in the tariff filed and approved by the commission.
- (c)
Every radio common carrier shall obey and comply with every rule and regulation and order adopted by the commission under this chapter.
§ 65-30-109. Abandonment.
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No radio common carrier shall abandon all or any part of its system or other property necessary or useful in the performance of its duties to the public, or discontinue or temporarily suspend all or any part of the service which it is rendering to the public by the use of same, without first obtaining the approval of the commission. In granting such approval, the commission may impose such terms, conditions or requirements as in its judgment are necessary to protect the public interest.
§ 65-30-110. Interconnection with land line telephone utility.
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Whenever the commission finds that public convenience and necessity require the interconnection of the radio communications facilities of a certificated radio common carrier with the telephone facilities of a land line telephone utility serving all or part of the certificated territory of the radio common carrier, and that such common carrier and land line telephone utility have failed to agree upon such interconnection or the terms and conditions or compensation for the same, the commission may, upon petition of either party, order that such interconnection be permitted, and prescribe a reasonable compensation and reasonable terms and conditions for such interconnection.
§ 65-30-111. Supervision and regulation.
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The supervision, control and regulation of public utilities are provided for under chapter 4 of this title and these provisions, and specifically, chapter 4, part 3 of this title, shall apply to radio common carriers.
§ 65-30-112. Penalty.
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Any person or the officer, agent or employee of any organization who willfully violates any provisions of this chapter or of any rule, regulation or order adopted thereunder, or who willfully procures, aids or abets any violation of such a provision, commits a Class C misdemeanor. Each day's violation is a separate offense.
Chapter 31 Underground Utility Damage Prevention Act
§ 65-31-102. Chapter definitions.
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As used in this chapter, unless the context otherwise requires:
- (1)
“Agricultural purposes,” for purposes of this chapter only, includes surface activities, such as plowing, planting, and combining, but does not include blasting, setting drainage tiles, subsoiling, or other subsurface activities;
- (2)
“Blasting” means the use of an explosive device for the excavation of earth, rock, or other material or the demolition of a structure;
- (3)
“Board” means the underground utility damage enforcement board, created by § 65-31-114;
- (4)
“Calendar day” means a twenty-four (24) hour period beginning with the date and time that a notification to excavate or demolish is to begin, including Monday through Sunday and all holidays;
- (5)
“Contract locator” means any person contracted with an operator, or operating on behalf of an operator, specifically to determine and mark the approximate location of the operator's utility lines that exist within the area specified by a notice served on the one-call service;
- (6)
“Damage” includes the substantial weakening of structural or lateral support of an underground utility, penetration or destruction of any protective coating, housing or other protective device of an underground utility, the partial or complete severance of an underground utility and rendering any underground utility inaccessible;
- (7)
“Damage notice” means a notification made to the one-call service by a person who has caused damage to an underground facility;
- (8)
“Demolish” or “demolition” means any operation by which a structure or mass of material is wrecked, razed, rendered, moved or removed by means of any tools, equipment, or discharge of explosives;
- (9)
“Design locate request” means a communication to the one-call service in which a request for locating existing utility facilities for predesign or advance planning purposes is made;
- (10)
“Electronic white lining” means the application of a visual indicator to a digital or virtual map marking the boundaries of the area of proposed excavation or the area of ongoing excavation;
- (11)
“Excavate” or “excavation”:
- (A)
Means an operation for the purpose of the movement, placement, or removal of earth, rock, or other materials in or on the ground by use of mechanized equipment, discharge of explosives, or by hand digging, and includes augering, backfilling, blasting, boring, digging, ditching, drilling, grading, pile-driving, plowing-in, pulling-in, ripping, scraping, sub-soiling, trenching, or tunneling; and
- (B)
Does not include:
- (i)
Pavement milling or pavement repair that does not exceed the depth of the existing base stone and pavement;
- (ii)
Routine railroad maintenance activities, including removal and replacement of base material up to twenty-four inches (24″) below the flow line of the ditch or ground surface of the railroad right-of-way adjacent to the existing track structure if the work is conducted by railroad employees or railroad contractors and is carried out with reasonable care so as to protect any installed underground facilities placed in the railroad right-of-way by agreement with the railroad;
- (iii)
Routine road maintenance activities; and
- (iv)
The tilling of soil for agricultural purposes or the digging of holes for fence posts on private property in any area that is not located within a recorded easement of an operator or that is not located within one hundred feet (100′) of the edge of the pavement of a street or highway;
- (12)
“Excavator” means any person who engages in activities described in subdivisions (A) and (B) in the definition of “excavate” contained in this section;
- (13)
“Executive committee” means the executive committee created by § 65-31-114(f);
- (14)
“Hand dig” or “hand digging”:
- (A)
Means any movement, placement, or removal of earth, rock, or other materials in or on the ground by use of non-mechanized tools or equipment, including, but not limited to, shovels, picks, post hole diggers, vacuum excavation, or soft digging; and
- (B)
Does not include the following:
- (i)
A property owner utilizing non-mechanized tools or equipment on their own property; or
- (ii)
The use of non-mechanized tools or equipment by or on behalf of a member operator to a depth not greater than twelve (12) inches for locating, repairing, connecting, protecting, or routine maintenance of the member operator's underground facilities;
- (15)
“Impending emergency” means circumstances potentially dangerous to life, health, property, the environment or the repair or restoration of service, which would likely develop into an emergency, as defined in § 65-31-109, if excavation is not initiated within seventy-two (72) hours;
- (16)
“Location” means the proposed area for which digging or excavating is scheduled within three (3) to ten (10) working days, such area not to exceed two thousand feet (2,000′) in length unless an excavator and an operator or an operator's designated representative, such as a one-call service, agree to a larger area;
- (17)
“Mechanized equipment” means equipment operated by means of mechanical power including trenchers, bulldozers, power shovels, augers, backhoes, scrapers, drills, cable and pipe plows and other equipment used for plowing-in or pulling-in cable or pipe;
- (18)
“One-Call Service” means a telephone notification service described in § 65-31-107 that provides services to its members for the purposes of receiving and distributing notification regarding planned excavations or demolitions that are required under this chapter;
- (19)
“Operator” means any person who owns or operates a utility;
- (20)
“Person” means any individual; any corporation, partnership, association, or any other entity organized under the laws of any state; any state; any subdivision or instrumentality of a state; and any employee, agent, or legal representative thereof;
- (21)
“Proposed area of excavation” means a general surface location which excavators are to furnish to operators of underground utilities or to a one-call service as defined in § 65-31-106. The proposed area of excavation does not constitute a specified depth for the purpose of complying with this chapter;
- (22)
“Routine road maintenance activities”:
- (A)
Means activities carried out by or for those responsible for publicly-maintained roadways if the activities:
- (i)
Occur entirely within the right-of-way of a public road, street, or highway;
- (ii)
Are carried out with reasonable care so as to protect any utility-owned facilities and laterals placed in the right-of-way;
- (iii)
Are carried out within the limits of any original excavation on the traveled way, shoulders, or drainage ditches of a public road, street, or highway, and do not exceed eighteen inches (18″) in depth below the flow line of the ditch or the grade existing prior to the activities; and
- (iv)
If involving the replacement of existing structures at a depth greater than eighteen inches (18″), replace those existing structures in their previous locations and at their previous depths; and
- (B)
Does not include work on a roadway done pursuant to a contract awarded by a state or local government through a bid process for which plan drawings have been developed in advance;
- (23)
“Utility”:
- (A)
Means any line, system, or facility used for producing, storing, conveying, transmitting, or distributing communications, electricity, gas, petroleum, petroleum products, hazardous liquids, water, steam, sewerage, and other underground facilities; and
- (B)
Does not include any railroad, the Tennessee department of transportation, or any natural flowing runoff systems;
- (24)
“Willful noncompliance” means the intentional refusal or failure to perform, or comply with, a duty created or imposed by this chapter or by rules promulgated pursuant to this chapter; and
- (25)
“Working day” means every day, except Saturday, Sunday, and national and legal state holidays. For purposes of measuring any period of time that requires notice under this chapter, a working day shall commence at the time the written notice or telephone call is received and shall expire at the same time on the next working day.
§ 65-31-104. Excavations without ascertainment of underground utilities prohibited.
- (a)
Except as provided in § 65-31-109, no person may excavate in a street, highway, public space, a private easement of an operator or within one hundred feet (100′) of the edge of the pavement of a street or highway, or demolish a building, without giving the notice required by § 65-31-106 in the manner prescribed by such section.
- (b)
A general DIG certificate shall be issued for agricultural land as defined in § 67-5-1004 that lies outside a street, highway, public space or a private easement of an operator but within one hundred feet (100′) of the edge of the pavement of a street or highway when no utilities are located within that area. The general certificate shall be valid until title to the land is transferred or until a utility line is located within the area.
§ 65-31-105. Filing requirements for utility operators.
- (a)
Each operator, except operators participating in a one-call service, having underground facilities in a county, including those facilities that have been abandoned in place by the operator but not yet physically removed, shall file a notice with the register of deeds of the county that states that the operator has underground utilities located in that county, the name of the operator and the name, title, address, telephone number and electronic mail (e-mail address), if the representative has an e-mail address, of its representative designated to receive the written, telephonic or e-mail notice of intent required by § 65-31-106. It is only necessary that such notice shall consist of the fact that the operator possesses underground facilities in the listed counties. It is not necessary that the operator list the exact physical location of each and every item of its underground facilities in such counties.
- (b)
Changes in any of the information contained in the list filed under subsection (a) shall be filed by the operator with the register of deeds of the county, or the register of deeds of each county in which these utilities are located, within thirty (30) working days of the change.
- (c)
A filing fee as determined by the register of deeds may accompany the filing. These filings shall be filed and an index shall be maintained and kept up to date by the register's office.
- (d)
The register of deeds shall, within one (1) working day, furnish to the party requesting such information, in writing when requested, a list of all operators having filed notices pursuant to subsection (a) and all other information regarding each such operator that has been filed with the register of deeds in accordance with subsection (a). When submitted in writing by the register of deeds, the information shall also include the name of the requesting party, and the date and time the register of deeds received the request from the requesting party.
- (e)
After March 27, 1978, operators shall maintain records and drawings of all changes and additions to its underground facilities.
- (f)
All underground utilities owned by an operator that are installed on or after January 1, 2017, shall be installed in a manner that will make those underground utilities locatable using a generally accepted electronic locating method.
§ 65-31-106. Notice of intent to excavate or demolish.
- (a)
- (1)
Except as provided in § 65-31-109, before beginning any excavation or demolition operation described in § 65-31-104, other than an impending emergency as defined in § 65-31-102, each person responsible for such excavation or demolition shall serve written, telephonic or e-mail notice of intent to excavate or demolish at least three (3) working days prior to the actual date of excavation or demolition, but not more than ten (10) full working days prior to such time, unless a different period has been agreed to in writing by the person responsible for the excavation or demolition and the operator or designated representative. Should a period of time of fifteen (15) calendar days from the actual date specified to start excavation or demolition expire without the excavation or demolition being completed, then the person responsible for such excavation or demolition shall serve an additional written, telephonic or e-mail notice of intent to excavate or demolish at least three (3) working days prior to the expiration of time on the fifteenth calendar day.
- (2)
If the proposed area of excavation or demolition is not served by the one-call service as provided in § 65-31-107, then the notice required by this subsection (a) shall be served on each operator which has filed a list required by § 65-31-105 indicating that it has underground utilities located in the county where the excavation or demolition is to occur.
- (3)
If the proposed area of excavation or demolition is served by the one-call service, as provided for in § 65-31-107, the notice required by this subsection (a) shall be served on such one-call service; provided, that where demolition of a building is proposed, each affected operator shall be given reasonable time to remove or protect its utilities before demolition of the building begins.
- (b)
The written, telephonic or e-mail notice required by subsection (a) shall contain the name, address, telephone number and e-mail address of the person filing the notice of intent and, if different, the person responsible for the excavation or demolition, the starting date, the anticipated duration of the excavation or demolition, the type of excavation or demolition operation to be conducted, the specific location of the proposed excavation or demolition, and whether or not explosives are anticipated to be used. The person responsible for the excavation or demolition shall designate the location of the proposed area of excavation or demolition by marking the area, consistent with the marking standards established by the rules adopted pursuant to § 65-31-108(a), with “safety white” color-coded stakes, with white paint, or by electronic white lining, unless:
- (1)
The operator or its agent can determine the precise location of the proposed area of excavation based solely on the street address from a one-call service locate ticket because of the size of the property;
- (2)
The operator or its agent can determine the precise location of the proposed area of excavation from a one-call service locate ticket that references a driveway or other easily identifiable point on the property and that identifies the property by street address or block and lot number;
- (3)
The operator or its agent can determine the precise location of the proposed area of excavation from a one-call service locate ticket that identifies the property as being located on a street or road between two (2) designed intersections of the street or road and two (2) cross streets or roads when a street address or block and lot number is unavailable or does not apply; or
- (4)
The person responsible for the excavation or demolition and all operators with underground facilities in the proposed area of excavation have had a meeting prior to the beginning of the excavation or demolition for the exchange of information on the location of the proposed excavation or demolition.
- (c)
If the notification required by this section is made by telephone or e-mail, an adequate record of such notification shall be maintained by each notified operator or one-call service to document compliance with the requirements of this chapter, and a copy of this record shall be furnished by any operator or one-call service to the person giving notice of intent to excavate or demolish, when so requested by that person.
- (d)
Except as provided in § 65-31-109, before beginning any excavation or demolition within one hundred feet (100′) of the edge of the pavement of a street or highway when that area lies outside a street, highway, public space or a private easement of an operator, an excavator shall serve notice of the excavation or demolition at least three (3) working days before the actual date of excavation or demolition as set forth in this section. If after receiving proper notification as required in this section, an operator fails to locate its facilities within three (3) working days in the manner required by § 65-31-108, the excavator shall be authorized to proceed with the excavation. If an operator fails to locate its facilities within three (3) working days in the manner required by § 65-31-108 after receiving proper notification as required by this section and an underground facility of the operator is damaged by an excavator as a result of the operator's failure to discharge such duty, then the excavator shall not be liable for the damage; provided, that, if the excavator observes clear evidence of the presence of an unmarked utility in the area of the proposed excavation, the excavator shall exercise reasonable care to avoid damage to the utility that may be caused by the excavation, and the excavator shall be liable for damages arising from its failure to use reasonable care in such circumstances.
- (e)
The notice requirements of this section do not apply to:
- (1)
A property owner utilizing non-mechanized tools or equipment on their own property; or
- (2)
The use of non-mechanized tools or equipment by or on behalf of a member operator to a depth not greater than twelve inches (12″) for locating, repairing, connecting, protecting, or routine maintenance of the member operator's underground facilities.
§ 65-31-107. Operator associations for mutual receipt of notifications.
- (a)
Subject to the requirements of subsection (b), operators may form and operate a one-call service providing for mutual receipt of notifications of excavation or demolition operations, pursuant to § 65-31-106, in a defined geographical area. Any operator that suffers damage as a result of not participating in a one-call service providing for receipt of the notification of excavation or demolition operations in a defined geographic area, pursuant to § 65-31-106, waives the right to recover damages to the operator's underground utilities from the excavator; provided, that the provisions of this chapter were met by the excavator.
- (b)
- (1)
All operators are required to join the one-call service and utilize the services of the notification center as follows:
- (A)
Operators that are members of the existing one-call service on May 20, 2015, shall remain members;
- (B)
Operators with more than fifty thousand (50,000) customers served underground or one thousand (1,000) miles of facilities underground, who are not members, shall join the one-call service no later than January 1, 2016;
- (C)
Operators with more than twenty-five thousand (25,000) customers served underground or five hundred (500) miles of facilities underground, who are not members, shall join the one-call service no later than January 1, 2017;
- (D)
All operators that do not meet the thresholds described in subdivision (b)(1)(A), (b)(1)(B), or (b)(1)(C) shall join the one-call service no later than January 1, 2018; and
- (E)
Failure of an operator as described in this subdivision (b)(1) to join the one-call service and utilize the services of the notification center in accordance with this section is a violation of this chapter and subjects the operator to the penalties described in § 65-31-112.
- (2)
This subsection (b) shall not apply to operators whose total amount of underground facilities constitutes less than twenty percent (20%) of their total utility plant in service.
- (c)
There shall be only one (1) one-call service for this state.
- (d)
The one-call service shall provide for a proportional method of apportioning the cost of operating the notification center among its members.
- (e)
The one-call service shall provide training for those who have violated this chapter, unless otherwise determined by the board.
- (f)
The one-call service may collect data concerning notice issues related to excavation projects encompassing more than two thousand feet (2,000′) within a contiguous geographical area, or that will take more than ninety (90) days to complete. The one-call service may utilize such data to recommend alternatives to the board that would alleviate the number of repeated additional notices required on such excavation projects by § 65-31-106.
§ 65-31-108. Response to notice of intent to excavate or demolish.
- (a)
- (1)
- (A)
Each operator notified in accordance with § 65-31-106 shall stake or otherwise mark, prior to the noticed time of the proposed excavation or demolition, the surface of the tract or parcel of land affected by the excavation or demolition to indicate the approximate location of all its underground utilities that may be damaged as a result of the excavation or demolition. The operator shall not charge the person giving notice to the one-call service, the excavator, or property owner for the marking of its facilities. However, an operator may recover the costs of the marking of its facilities from customers in an appropriate ratemaking procedure. The operator shall not be required to indicate the depth of any such utility, but only the approximate ground location under which the utility is located. Such staking or other marking shall utilize the following color code:
- (i)
SAFETY RED shall be used to mark electric power distribution and transmission facilities;
- (ii)
HIGH VISIBILITY SAFETY YELLOW shall be used to mark gas and oil distribution and transmission facilities;
- (iii)
SAFETY ALERT ORANGE shall be used to mark telephone, telegraph, cable television, video, and other telecommunications facilities;
- (iv)
SAFETY PRECAUTION BLUE shall be used to mark water systems facilities;
- (v)
SAFETY GREEN shall be used to mark sewer systems facilities; and
- (vi)
SAFETY PURPLE shall be used to mark reclaimed water.
- (B)
In the event more than one (1) operator uses the same color code under subdivision (a)(1)(A), each operator using the same color shall include a distinctive marking, such as the initials of the operator's name or other marking, that appropriately identifies each operator and sufficiently distinguishes each operator's marking from any other operator authorized to use the same color under subdivision (a)(1)(A).
- (2)
Notwithstanding subdivision (a)(1), the underground utility damage enforcement board may establish, by rule, best practices for uniform color code and marking consistent with this part. The rules may include stakes, flags, non-permanent paint, or other low impact marking practices. Rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (3)
Notwithstanding any law to the contrary, marking methods established by subdivisions (a)(1) and (2) shall be the methods of marking underground facilities in this state.
- (b)
Each operator participating in a one-call service that has been notified in accordance with § 65-31-106 shall notify the one-call service that the operator has marked the approximate location of all of its underground utilities as required by this section or that the operator has no underground utilities in the proposed area of excavation. The operator shall provide this notice to the one-call service in accordance with procedures adopted by the one-call service for this notification. This notice shall fulfill the operator's obligation set forth in subsection (e). When each operator notified in accordance with § 65-31-106 has notified the one-call service that its underground utilities in the proposed area of excavation have been marked or that the operator has no underground utilities in the proposed area of excavation, the person responsible for the excavation or demolition may immediately proceed with the excavation or demolition, notwithstanding the minimum three-working-day notice requirement before excavation or demolition can begin set forth in § 65-31-106(a).
- (c)
An excavator shall exercise reasonable care to avoid damage caused by an excavation or demolition within the safety zone around the marked location of the underground utilities by hand digging when practical, utilizing pneumatic hand tools, or utilizing mechanical or technical methods approved by the facility owner or operator. Hand digging and noninvasive methods are not required for removal of pavement or concrete. As used in this subsection (c), “safety zone” means a strip of land at least four feet (4′) wide, but not wider than the width of the utility plus two feet (2′) on either side of the utility.
- (d)
If, upon arrival at the site of a proposed excavation, the excavator observes clear evidence of the presence of an unmarked utility in the area of the proposed excavation, the excavator shall not begin excavating until an additional notice is made to the one-call. The excavator may then proceed, exercising reasonable care to avoid damage to the utility which may be caused by such excavation or demolition.
- (e)
If no facilities exist in the tract or parcel of land, the operators shall make a reasonable effort to so advise the individual who initiated the request, provided the request is received in accordance with § 65-31-106.
- (f)
The approximate location of underground utilities does not include a designation of location as to depth below the surface of the ground. Excavators must use reasonable care to ascertain for themselves the exact depth of the underground utilities below the surface of the ground. If, after so ascertaining, the excavator learns that its excavation or demolition is likely to interfere with the operation of the underground utility facilities, it must again notify the affected operator of such underground utility facilities and reasonably cooperate with the operator of the underground utility facilities to conduct its excavation or demolition in such a way that the operations of the underground utility facilities are not disturbed or the affected underground utility facilities are placed out of the way of the proposed excavation or demolition.
- (g)
Each operator notified in accordance with § 65-31-109, shall within two (2) hours stake or otherwise mark, utilizing the color code set forth in subsection (a), the surface of the tract or parcel of land affected by the excavation or demolition to indicate the approximate location of all its underground utilities that may be damaged as a result of the excavation or demolition.
- (h)
Each operator notified of an impending emergency, as defined in § 65-31-102, shall stake or otherwise mark, prior to the noticed time of the proposed excavation or demolition, utilizing the color code set forth in subsection (a), the surface of the tract or parcel of land affected by the excavation or demolition to indicate the approximate location of all its underground utilities that may be damaged as a result of the excavation or demolition.
- (i)
Any contract locator acting on behalf of an operator is subject to this section.
§ 65-31-109. Emergency excavation or demolition.
- (a)
Compliance with the notice requirements of § 65-31-106 is not required of any person responsible for emergency excavation or demolition, for repair or restoration of service or to ameliorate an imminent danger to life, health, or property; provided, that such person gives, as soon as practicable, oral notice of the emergency excavation or demolition to each operator having underground utilities located in the area or to a one-call service provided for in § 65-31-107, that serves an operator, where such excavation or demolition is to be performed and requests emergency assistance from each operator so identified in locating and providing immediate protection to the operator's underground utilities. “Emergency” means an imminent danger to life, health, or property, whenever there is a substantial likelihood that loss of life, health or property will result before the procedures under §§ 65-31-106 and 65-31-108 can be fully complied with.
- (b)
Any excavator providing a misrepresentation of an emergency excavation as stated in subsection (a), or an “impending emergency,” as defined in § 65-31-102, shall be subject to the penalties stated in § 65-31-112.
- (c)
For the purposes of this section, repair or replacement of an existing traffic control device at its existing location and existing depth shall be considered an emergency, and compliance with the notice requirements of this section and § 65-31-106 shall not be required of any local or state government responding to the emergency repair or replacement of a traffic control device.
§ 65-31-110. Precautions to avoid damage.
-
In addition to the notification requirements of § 65-31-106, each person responsible for any excavation or demolition operation designated in § 65-31-104 shall:
- (1)
Plan the excavation or demolition to avoid damage to and minimize interference with underground utilities in and near the construction area;
- (2)
Maintain a clearance between an underground utility and the cutting edge or point of any mechanized equipment in accordance with § 65-31-108(b) and (d), taking into account the known limit of control of such cutting edge or point, as may be reasonably necessary to avoid damage to such utility;
- (3)
Provide such support and protection for underground utilities in and near the construction area, including during backfill operations, as may be reasonably necessary for the protection of such utilities; and
- (4)
Each utility, regardless of the use or material, shall be installed with sufficient clearance to permit the maintenance of existing utilities, and to protect against damage to existing utilities.
§ 65-31-111. Notice of excavation or demolition damage.
- (a)
Except as provided by subsection (b), each person responsible for any excavation or demolition operation described in § 65-31-104 that results in any damage to an underground utility shall, immediately upon discovery of the damage, submit a damage notice to the one-call service, notify the operator of the utility of the location and nature of the damage, and allow the operator reasonable time to accomplish necessary repairs before completing the excavation or demolition in the immediate area of the utility.
- (b)
If an excavation or demolition results in damage to an underground utility that permits the escape of any flammable, toxic, or corrosive gas or liquid, then the person damaging the underground utility shall, immediately upon discovery of the damage, notify the operator, notify police and fire departments through the 911 service or other emergency communications system, submit a damage notice to the one-call service, and take any other action as may be reasonably necessary to protect persons and property and to minimize the hazards until arrival of the operator or police and fire departments.
- (c)
The reporting requirements established in subsections (a) and (b) apply equally to all types of excavation or demolition activities. However, persons engaged in activities described in § 65-31-102(9)(B)(i)-(iv) are not required to submit a damage notice to the one-call service.
- (d)
During initial excavation, if an underground utility is found to be unsound due to deterioration, then the person responsible for excavation shall immediately notify the utility company involved and allow the operator reasonable time to accomplish necessary repairs before completing the excavation or demolition in the immediate area of the utility.
- (e)
The financial impact of all damages to underground utilities must be calculated using generally accepted accounting principles (GAAP).
- (f)
Each operator whose utility facilities have been damaged as described in this section shall report the incident using the Damage Information Reporting Tool (DIRT) utilized by Common Ground Alliance or by filing a damage notice with the one-call system. If a report is made by filing a damage notice with the one-call service, then the one-call service may submit a report of the incident report to DIRT.
§ 65-31-112. Civil penalties and remedies — Liability — Indemnification — Offense of Vandalism.
- (a)
Any person who violates this chapter, or the rules promulgated under this chapter, shall be subject to a civil penalty as follows:
- (1)
For a first violation, the violator shall complete a course of training concerning compliance with this chapter as determined by the executive committee;
- (2)
For a second or subsequent violation, the violator shall complete a course of training concerning compliance with this chapter as determined by the executive committee or pay a civil penalty in an amount set by the executive committee, not to exceed ten thousand dollars ($10,000) per incident, or both;
- (3)
Notwithstanding subdivisions (e)(1) and (2), if any violation was the result of gross negligence or willful or wanton misconduct as determined by the executive committee, the executive committee shall require the violator to complete a course of training concerning compliance with this chapter as determined by the executive committee and pay a civil penalty in an amount set by the executive committee, not to exceed fifteen thousand dollars ($15,000) per incident; and
- (4)
Operators who fail to join the one-call service and utilize the services of the notification center as required by § 65-31-107 are only subject to the civil penalties described in subdivisions (a)(2) and (3).
- (b)
- (1)
For the purposes of this chapter, monetary civil penalties shall not be levied against any department of this state. In the event that a state department is found by the executive committee to be noncompliant, the executive committee may submit a notice of noncompliance to the department head along with a request for an action plan for future compliance.
- (2)
For the purposes of this chapter, monetary civil penalties shall not be levied against a county, city, town, utility district, or other political subdivision of this state unless the executive committee finds that the county, city, town, utility district, or other political subdivision of this state has engaged in a pattern of willful noncompliance with the requirements of this chapter.
- (c)
Except as provided in subsection (e), this section shall not limit any person's right to pursue any additional civil remedy otherwise allowed by law.
- (d)
Any person who is required to complete a course of training under subsection (a) shall be responsible for paying for the cost of the training.
- (e)
- (1)
Any excavator who violates this chapter may be issued a notice of violation by the inspector, and the inspector may require any excavator to cease work on any excavation, or not start a proposed excavation, until the excavator complies with this chapter.
- (2)
An excavator who complies with this chapter shall not be liable for damage that the excavator causes to an operator's underground facility, if:
- (A)
The operator received the notification required by § 65-31-106;
- (B)
The operator fails to locate its underground facilities as required by § 65-31-108; and
- (C)
The damage is a proximate result of the operator's failure to locate its underground facilities as required by § 65-31-108.
- (3)
- (A)
Any person who violates § 65-31-106 and whose subsequent excavation or blasting damages utility facilities or sewer laterals shall also indemnify the affected facility owner or operator and the one-call service against all claims or costs incurred, if any, for personal injury, property damage, or service interruptions resulting from damaging the utility facilities or sewer laterals.
- (B)
The requirements of subdivision (e)(3)(A) shall not apply to any state agency, county, city, town, utility district, or other political subdivision of this state.
- (f)
Any person who knowingly and willfully removes or otherwise destroys the stakes or other physical markings used to mark the horizontal route of an underground facility commits the offense of vandalism under § 39-14-408, and shall be subject to the punishment for vandalism under § 39-14-105.
§ 65-31-113. Severability.
-
If any provisions of this chapter or the applicability thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby.
§ 65-31-114. Underground utility damage enforcement board — Executive committee.
- (a)
There is created within the Tennessee public utility commission, created by § 65-1-101, an underground utility damage enforcement board for the purpose of enforcing this chapter.
- (b)
The Tennessee public utility commission will provide administrative and investigative support for the board, both subject to concurrence by the board. Pursuant to § 65-2-122, the Tennessee public utility commission shall charge the expenses associated with the administration and investigative duties of the board back to the board, subject to concurrence by the board.
- (c)
The board shall be composed of seventeen (17) members. Except for initial appointments, members who are not ex officio members shall be appointed to four-year terms. Appointments to the board shall be made as follows:
- (1)
The president of Tennessee One-Call, Inc., or the president's designee, who shall be a voting, ex officio member;
- (2)
One (1) member shall be a person representing the interests of Tennessee natural gas distribution systems, to be appointed by the governor, whose initial term shall be four (4) years. In considering appointees, the governor shall review a list of qualified persons submitted by the Tennessee Gas Association;
- (3)
One (1) member shall be a person representing the interests of Tennessee utility districts, to be appointed by the speaker of the senate, whose initial term shall be four (4) years. In considering appointees, the speaker shall review a list of qualified persons submitted by the Tennessee Association of Utility Districts;
- (4)
One (1) member shall be a person representing the interests of the Tennessee cable industry, to be appointed by the speaker of the house of representatives, whose initial term shall be four (4) years. In considering appointees, the speaker shall review a list of qualified persons submitted by the Tennessee Cable and Telecommunications Association;
- (5)
One (1) member shall be a person representing the interests of large Tennessee incumbent local exchange carriers with more than one hundred thousand (100,000) customers, to be appointed by the speaker of the house of representatives, whose initial term shall be four (4) years;
- (6)
One (1) member shall be a person who represents the interests of public utilities, as defined in § 65-4-101, and who provides water or wastewater services, to be appointed by the speaker of the senate, whose initial term shall be four (4) years;
- (7)
One (1) member shall be a person representing the interests of Tennessee towns and cities, to be appointed by the governor whose initial term shall be three (3) years. In considering appointees, the governor shall review a list of qualified persons submitted by the Tennessee Municipal League;
- (8)
One (1) member shall be a person representing the interests of small Tennessee incumbent local exchange carriers, to be appointed by the speaker of the senate, whose initial term shall be three (3) years. In considering appointees, the speaker shall review a list of qualified persons submitted by the Tennessee Telecommunications Association;
- (9)
One (1) member shall be a person representing the interests of Tennessee counties, to be appointed by the speaker of the house of representatives, whose initial term shall be three (3) years. In considering appointees, the speaker shall review a list of qualified persons submitted by the Tennessee County Services Association;
- (10)
One (1) member shall be a person representing the interests of Tennessee road builders, to be appointed by the governor, whose initial term shall be three (3) years. In considering appointees, the governor shall review a list of qualified persons submitted by the Tennessee Road Builders Association;
- (11)
One (1) member shall be a person representing the interests of the excavation industry, to be appointed by the speaker of the senate, whose initial term shall be two (2) years. In considering appointees, the speaker shall review a list of qualified persons submitted by the Associated Builders and Contractors of Tennessee;
- (12)
One (1) member shall be a person representing the interests of interstate pipelines, to be appointed by the speaker of the house of representatives, whose initial term shall be two (2) years;
- (13)
One (1) member shall be a private property owner representing agricultural or homeowners' interests, to be appointed by the governor, whose initial term shall be two (2) years;
- (14)
One (1) member shall be a person representing the interests of municipal electric utilities with underground facilities, to be appointed by the speaker of the senate, whose initial term shall be two (2) years. In considering appointees, the speaker shall review a list of qualified persons submitted by the Tennessee Municipal Electric Power Association;
- (15)
One (1) member shall be a person representing the interests of cooperative electric systems with underground facilities, to be appointed by the speaker of the house of representatives, whose initial term shall be two (2) years. In considering appointees, the speaker shall review a list of qualified persons submitted by the Tennessee Electric Cooperative Association;
- (16)
One (1) member shall be a person who represents the interests of public utilities, as defined in § 65-4-101, and who provides electric power services, to be appointed by the governor, whose initial term shall be four (4) years; and
- (17)
One (1) member shall be a person representing the interests of contract locators, to be appointed by the speaker of the senate, whose initial term shall be four (4) years.
- (d)
Every two (2) years, the board shall elect a chair from among its members and other officers as the board deems necessary.
- (e)
The members of the board shall serve without compensation.
- (f)
- (1)
The board shall elect an executive committee, which shall be responsible for levying civil penalties and taking action as described in § 65-31-116.
- (2)
The executive committee is composed of five (5) members of the board as follows:
- (A)
One (1) member from subdivision (c)(10), (c)(11), or (c)(13);
- (B)
One (1) member from a local government;
- (C)
One (1) member from a utility; and
- (D)
Two (2) members from the remaining members of the board.
- (3)
- (A)
Except as provided in subdivision (f)(3)(B), a member serving on the executive committee shall be limited to two (2) consecutive three-year terms.
- (B)
In order to stagger the terms of the members serving on the executive committee, the members serving on the executive committee as of April 12, 2018, shall be appointed as follows:
- (i)
The person appointed under subdivision (f)(2)(A) shall serve a term of one (1) year, which shall expire on June 30, 2019;
- (ii)
The person appointed under subdivision (f)(2)(B) shall serve a term of two (2) years, which shall expire on June 30, 2020; and
- (iii)
The person appointed under subdivision (f)(2)(C) shall serve a term of three (3) years, which shall expire on June 30, 2021.
- (C)
Following the expiration of members' terms as prescribed in subdivision (f)(3)(B), a member serving on the executive committee shall be limited to two (2) consecutive three-year terms.
- (g)
The board and the executive committee may hold meetings and vote by telephone, television, or other electronic means.
§ 65-31-115. Powers and duties of board.
- (a)
The board has the power and authority to:
- (1)
Promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the conduct of the affairs of the board;
- (2)
Adopt a seal for the board, prescribe the style of the seal, and alter the seal at the board's pleasure; and
- (3)
Make and enter into contracts.
- (b)
The board shall:
- (1)
Through its executive committee, initiate investigations and conduct hearings as required by § 65-31-116;
- (2)
Meet a minimum of two (2) times per calendar year;
- (3)
Examine data regarding underground utility damage and make recommendations to the general assembly for further updates to this chapter;
- (4)
Manage the underground damage prevention fund created by § 65-31-117;
- (5)
Assess its annual operating cost to operators in an amount equal to the amount necessary to offset the cost of investigative and administrative services performed by the Tennessee public utility commission at the direction of the board. The annual operating costs shall be apportioned in a proportional manner and collected by the one-call service from the operators; and
- (6)
Subject to the availability of funding in the underground damage prevention fund created by § 65-31-117, contract with appropriate entities or agencies to conduct training and public awareness for damage prevention.
- (c)
- (1)
Any member who misses more than fifty percent (50%) of the scheduled meetings in a calendar year shall be removed as a member of the board.
- (2)
The board's chair shall promptly notify, or cause to be notified, the appointing authority of any member who fails to satisfy the attendance requirement as prescribed in subdivision (c)(1).
- (d)
The executive committee shall review the reasonableness of fees and any subsequent changes to the fees charged to violators by the board's designated provider of compliance training ordered pursuant to § 65-31-112.
§ 65-31-116. Investigation of complaint of violation of chapter — Issuance of citations — Hearing — Appeal — Petition for review.
- (a)
Upon receipt of a complaint of a violation of this chapter, the executive committee shall initiate an investigation of the complaint by requesting that the Tennessee public utility commission designate an employee of the commission who will investigate the complaint at the executive committee's direction.
- (b)
Any investigator acting at the direction of the executive committee may issue citations for violations of this chapter. Any citation may include a recommendation for the penalty to be assessed under § 65-31-112.
- (c)
If the person to whom the citation is issued under subsection (b) does not pay the citation or submit to ordered training, or both, within thirty (30) days, then the executive committee shall appoint a hearing officer to conduct a hearing and issue an initial order pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The hearing shall be held in the Nashville, Davidson County, offices of the Tennessee public utility commission at the time set forth in the citation notice of hearing.
- (d)
An appeal of the initial order pursuant to § 4-5-315 shall be heard by the executive committee.
- (e)
A person aggrieved by the final order may, within sixty (60) days, file a petition for judicial review pursuant to § 4-5-322. In the case of a decision involving an excavation in proximity to underground facilities of a municipally-owned utility located in a county having a population of greater than three hundred thousand (300,000), according to the 2010 federal census or any subsequent federal census, the petition for review shall be filed in the chancery court located in that county. In all other cases, the petition for review shall be filed in the chancery court of Davidson County.
- (f)
Nothing in this chapter shall grant the executive committee or the board jurisdiction over damage to utilities located above ground.
§ 65-31-117. Underground damage prevention fund.
- (a)
There is created an underground damage prevention fund within the Tennessee public utility commission. All civil penalties collected pursuant to this chapter shall be deposited into the underground damage prevention fund. Any moneys remaining in the underground damage prevention fund at the end of the fiscal year shall not revert to the general fund, but shall remain in the underground damage prevention fund for the exclusive use of the board.
- (b)
The expenditure of moneys in the underground damage prevention fund shall be at the discretion of the board for the following purposes:
- (1)
Providing grants to operators with fewer than five thousand (5,000) customers to assist the recipient in complying with the mandatory notification center requirements of this chapter. However, grants shall not be used for operating expenses; and
- (2)
Providing public awareness, educational programs or materials, and compliance training in a manner and by vendors determined and selected by the board.
§ 65-31-118. Design locate request.
- (a)
Any person may submit a design locate request to the one-call service. The design locate request shall:
- (1)
Describe the tract or parcel of land for which the design locate request has been submitted with sufficient particularity, as defined by policies developed by the one-call service, to enable the facility owner or operator to ascertain the precise tract or parcel of land involved; and
- (2)
State the name, address, and telephone number of the person who has submitted the design locate request, as well as the name, address, and telephone number of any other person authorized to review any records subject to inspection under subdivision (b)(1)(C).
- (b)
- (1)
Within fifteen (15) working days after a design locate request has been submitted to the one-call service for a proposed project, the facility owner or operator shall respond by one (1) of the following methods:
- (A)
Designate or cause to be designated by a locator under § 65-31-108, the location of all utility facilities and sewer laterals within the area of the proposed excavation;
- (B)
Provide to the person submitting the design locate request the best available description of all utility facilities and sewer laterals in the area of proposed excavation, which might include drawings of utility facilities and sewer laterals already built in the area, or other facility records that are maintained by the facility owner or operator; or
- (C)
Allow the person submitting the design locate request or any other authorized person to inspect or copy the drawings or other records for all utility facilities and sewer laterals within the proposed area of excavation.
- (2)
In the event that the one-call service charges a fee to a member operator for design location notification, the utility operator may recover that fee from the requestor.
- (c)
Upon responding pursuant to subsection (b), the facility owner or operator shall provide the response to the one-call service in accordance with one-call service procedures.
- (d)
An operator may reject a design locate request based upon homeland security considerations pending the operator obtaining additional information confirming the legitimacy of the request. The operator shall notify the person making the request of the denial and may request additional information through the positive response system provided by the one-call service.
- (e)
Nothing in this section shall supersede any federal, state, or local laws governing the confidentiality of the location of utility facilities.
- (f)
Any utility operator responding to a design locate request under this section shall not be liable for any damages associated with the response to the request.
- (g)
Nothing in this chapter shall amend, alter, or affect title 54, chapter 5, part 8.
- (h)
A design locate request shall not be used for excavation purposes.
Chapter 33 Installment Payment of Fuel Bills
§ 65-33-101. Monthly average payment plans required.
-
Each utility company or service, serving over fifteen thousand (15,000) residential customers, providing electricity, natural gas, or other fuel to consumers in this state shall provide a method by which its customers may pay fuel bills monthly on an average basis.
§ 65-33-102. Participation optional.
-
Participation in any payment-averaging program shall be optional, but shall be offered to each residential customer of a utility who has been a customer for at least twelve (12) months unless otherwise mutually agreed by the company and the customer.
§ 65-33-104. Withdrawal from plan by customer.
-
A participating customer may withdraw from the payment-averaging program at any time by giving notice to the utility. When a customer leaves the program, the actual use by that customer up to that point shall be determined and, at the next billing date, the customer shall receive either a credit to the account or, upon written request, a payment in case of overestimated payment or shall pay the utility any amount not covered by that customer's averaged monthly payments.
§ 65-33-106. Adjustment of payment to reflect rate changes.
-
If the cost of power or fuel supplies to a utility increases or decreases significantly at any time and appears likely to remain at this new level so that the adjustment in the twelfth month would exceed the averaged monthly payment, the utility may adjust the averaged monthly payments.
Chapter 34 Geographic Territories of Electric Utility Systems
§ 65-34-101. Legislative intent — Findings.
-
The general assembly hereby finds that:
- (1)
Duplication of electric system facilities leads to excessive consumer costs and adverse environmental and aesthetic impacts;
- (2)
The public health, safety, and welfare require that electric service to a particular geographic area be provided by a single electric system;
- (3)
The general assembly has heretofore established the geographic territories of electric systems as those geographic areas in which a particular electric system maintained facilities to provide electric service on March 6, 1968, except as those geographic areas have been modified by statutorily authorized agreements among adjacent electric systems, all as provided by § 6-51-112;
- (4)
Maintenance of the previously established geographic territories, as modified by statutorily authorized agreements, continues to be in the public interest and promotes the public health, safety and welfare;
- (5)
The consumer owners of municipal and cooperative electric systems have invested large sums in facilities and equipment necessary to provide electric service within areas served by those electric systems; and
- (6)
It would be contrary to the public interest to permit utilities that are not consumer owned to expand service into areas already served by consumer owned municipal and cooperative electric systems, as such expansion would result in a duplication of service facilities and the loss of consumer investment in displaced facilities.
§ 65-34-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Current geographic territory” means the parcels of land, as such parcels are defined or designated by the assessor of property of the county in which the parcels are located, to which a public electric system was providing electric service on February 16, 1989. In any case in which more than one (1) public electric system was providing electric service to a parcel of land on such date, the parcel shall be included within the current geographic territory of the public electric system that first provided electric service to such parcel. Should a public electric system enter into an agreement authorized by § 65-34-108, the current geographic territory of that public electric system shall be modified as provided in that agreement;
- (2)
“Electric and community service cooperative” has the meaning set forth in § 65-25-102(4);
- (3)
“Municipal electric system” means any electric system owned by any county, municipality, power district, or other subdivision of Tennessee;
- (4)
“Non-consumer owned electric system” means any public electric system other than electric and community service cooperatives and municipal electric systems; and
- (5)
“Public electric system” includes electric and community service cooperatives, municipal electric systems, and every individual, co-partnership, association, corporation or joint stock company, their lessees, trustees or receivers, appointed by any court whatsoever, that own, operate, manage, or control any electric power system, plant, or equipment within Tennessee affected by and dedicated to public use.
§ 65-34-103. Non-consumer owned electric systems — Expansion limits.
-
No non-consumer owned electric system may construct, acquire, or maintain facilities, lines, poles, or other equipment used or useful for the distribution or sale of electricity outside its current geographic territory, nor may any non-consumer owned electric system provide, by sale or otherwise, electricity to any parcel of land located outside its current geographic territory. Should a non-consumer owned electric system enter into an agreement authorized by § 65-34-108, the current geographic territory of that non-consumer owned electric system and the current geographic territory of the municipal electric system or electric and community service cooperative system, which is a party to the agreement, shall be modified as provided in that agreement; provided, that nothing in this chapter shall restrict the construction, acquisition, or maintenance of facilities, lines, poles, or other equipment used exclusively in this state for the transmission or sale at wholesale of electricity to electric and community service cooperatives or municipal electric systems.
§ 65-34-104. Non-consumer owned electric systems — Removal of equipment, facilities.
- (a)
Any non-consumer owned electric system owning any lines, poles, facilities, or other equipment used or useful for the distribution or sale of electricity located outside the non-consumer owned electric system's current geographic territory on any property or right-of-way owned by the state or by any county or municipality or other subdivision of the state must remove such equipment or facilities at the non-consumer owned electric system's expense within six (6) months of May 2, 1989.
- (b)
If the non-consumer owned electric system owning or otherwise exercising control over such equipment or facilities neglects to remove the equipment or facilities within six (6) months of May 2, 1989, the governmental entity owning the property or right-of-way on which such equipment or facilities are located may, after notice to the non-consumer owned electric system and opportunity for hearing, remove and dispose of such equipment or facilities in whatever manner it deems appropriate, if it determines that such equipment or facilities are located outside the non-consumer owned electric system's current geographic territory. The manner of disposal may include, without limitation, selling such equipment or facilities for other utility use or for scrap and applying the proceeds of such disposal to offset the costs the governmental entity incurred in removing such equipment or facilities. The requirement for removal shall not apply to equipment or facilities otherwise lawfully located on public rights-of-way used solely for the transmission of electricity for parcels of land within the non-consumer owned electric system's current geographic territory.
§ 65-34-106. Eminent domain.
-
Electric and community service cooperatives and municipal electric systems may in the exercise of their powers of eminent domain acquire facilities, equipment, and service areas of non-consumer owned electric systems, notwithstanding the fact that such facilities and equipment shall be dedicated to utility use following their acquisition.
§ 65-34-107. Municipalities — Powers — Limitations.
- (a)
Nothing in this chapter shall impair the right and power of municipalities to operate or authorize the operation of municipal electric systems or electric and community service cooperatives within their municipal boundaries consistent with § 6-51-112.
- (b)
The provisions of § 6-51-111 to the contrary notwithstanding, municipalities may not through the grant of franchises or other operating authority expand the current geographic territories of non-consumer owned electric systems.
§ 65-34-108. Agreements among public electric systems — Legislative intent.
-
Two (2) or more public electric systems serving adjacent current geographic territories may enter into an agreement by which their current geographic territories are modified and by which equipment, facilities, and the right to serve specified parcels of land are transferred from one (1) public electric system to another. In negotiating and executing such an agreement, the general assembly hereby expresses its intent that public electric systems replace competition with the monopoly public service.
Chapter 35 Fraud, Theft or Destruction of Property
§ 65-35-101. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Owner” means the owner of any property, any part owner, joint owner, tenant in common, joint tenant or tenant by the entirety of the whole or a part of any structure which is capable of receiving service by a utility;
- (2)
“Person” means an individual, corporation, firm, company, partnership, association or organization of any kind, public or private;
- (3)
“Tenant or occupant” means any person who occupies the whole or a part of any building, whether alone or with others, and includes the owner;
- (4)
“Utility” means any person, municipality, county, cooperative, board, commission, district or any entity created or authorized by public act, private act or general law to provide electricity, natural gas, water, sanitary sewer service, telephone service, or any combination thereof, for sale to consumers in any particular service area, whether or not regulated by the Tennessee public utility commission; and
- (5)
“Utility customer” means:
- (A)
The person or persons listed on the records of the utility as the customer liable for charges or payment for the utility service;
- (B)
The person or persons residing in the structure where utility services have been connected without permission or authorization of the utility; or
- (C)
The manager, superintendent, officer or other responsible official of a corporation, partnership, proprietorship, association or other business organization that is listed on the records of the utility as the customer liable for charges for utility service or acting in behalf of a corporation, partnership, proprietorship, association or other business organization where utility services have been connected without permission or authorization of the utility.
§ 65-35-102. Prohibited acts.
-
It is unlawful for a person to:
- (1)
- (A)
Knowingly tap, cut, burn, break down, injure, destroy or otherwise interrupt or interfere with the current, lines, cables, poles, towers, fixtures or appliances utilized to furnish service to the general public by any telephone or telegraph company, or electric light or power company engaged in furnishing communication, light, heat or power by electricity; or
- (B)
In any way injure, remove, destroy or interfere with any gas, sanitary sewer, or water fixtures or appliances;
- (2)
Obtain or attempt to obtain, by the use of any fraudulent scheme, device, means or method, telephone or telegraph service or the transmission of a message, signal or other communication by telephone or telegraph, or over telephone or telegraph facilities with intent to avoid payment of the lawful price, charge or toll therefor, or for any person to cause another to avoid such payment for such service, or for any person for the purpose of avoiding payment, to conceal or to assist another to conceal from any supplier of telecommunication service or from any lawful authority the existence or place of origin or of destination of any telecommunication, or for any person to assist another in avoiding payment for such service, either through the making of multiple applications for service at one (1) address, or otherwise;
- (3)
Obtain or attempt to obtain by use of any fraudulent scheme, device, means or method, electric, sanitary sewer, water, or gas service, with intent to avoid payment of the lawful price, charge or toll therefor, or for any person to cause another to avoid such payment for such service, or for any person to assist another in avoiding payment for electric, sanitary sewer, water, or gas service, either through the making of multiple applications for service at one (1) address, or otherwise;
- (4)
Divert or use electrical power with the intent to defraud or deprive any public or private electric power supplier from receiving proper charges or payment for such electrical power; or
- (5)
Commit any of the following acts which would make gas, electricity, telephone, sanitary sewer service, or water available to tenant or occupant by committing any of the acts:
- (A)
Connect any tube, pipe, wire or other instrument with any meter, device or other instrument used for conducting telephone, gas, electricity, sanitary sewer service, or water in such a manner as to permit the use of the telephone, gas, electricity, sanitary sewer service, or water without same passing through a meter or other instrument recording the usage for billing;
- (B)
Alter, injure or prevent the action of a meter, valve, stopcock, or other instrument used for measuring quantities of telephone, gas, electricity, sanitary sewer service, or water;
- (C)
Break, deface or cause to be broken or defaced any seal, locking device or other parts that make up a metering device for recording usage of telephone, gas, electricity, sanitary sewer service, or water or a security system for such recording device;
- (D)
Remove a metering device for measuring quantities of telephone, gas, electricity, sanitary sewer service, or water;
- (E)
Transfer from one (1) location to another a metering device for measuring utilities of telephone, gas, electricity, sanitary sewer service, or water;
- (F)
Use a metering device belonging to the utility that has not been assigned to the location and installed by the utility;
- (G)
Adjust the indicated consumption, jam the measuring device, bypass the meter or measuring device with a jumper so that it does not indicate use or registers incorrectly or otherwise obtain quantities of telephone, gas, electricity, sanitary sewer service, or water from the utility without same passing through a metering device for measuring quantities of consumption for billing; or
- (H)
Fabricate or use a device to pick or otherwise tamper with the locks used to deter electric current diversion, telephone diversion, gas diversion, water diversion, sanitary sewer service diversion, meter tampering and meter thefts.
§ 65-35-103. Evidence of violation.
- (a)
Any property on which it is found to have telephone, electric, gas, sanitary sewer, or water utilities tampered with in violation of § 65-35-102, and capable of receiving telephone, electricity, gas, sanitary sewer, or water service as a result of the use of any method of diversion prohibited in that section, is prima facie evidence and creates against the tenant or occupant a presumption of intent to tamper or divert in violation of § 65-35-102.
- (b)
The presence upon property served by a utility of a metering device altered to improperly monitor the amount of utility service used on or by such property is presumptive evidence that the utility customer has diverted or used utility service with the intent to deprive or defraud the utility from receiving proper charges or payment for such utility service in violation of this chapter.
§ 65-35-104. Civil liability — Damages — Liens — Perfection of liens.
- (a)
Any person violating § 65-35-102 is liable civilly for damages resulting from such violation, including actual, compensatory, incidental and punitive damages.
- (b)
The damages shall be three (3) times the utility's estimated loss of revenue, plus reasonable attorneys' fees and costs associated with such loss.
- (c)
A finding of guilt in violation of § 65-35-102, as part of an action brought to impose the penalties under § 39-14-104, is conclusive evidence of liability for civil damages recoverable under this chapter in any court of appropriate jurisdiction in a proceeding to assess civil damages against the guilty party.
- (d)
Regardless of any criminal charge or lack thereof, any utility may nevertheless bring a civil action in any court of appropriate jurisdiction against the owner, occupant or tenant and allege the violation of any of the acts prohibited by § 65-35-102; and upon a finding that the person has violated § 65-35-102, the court shall likewise determine the estimated loss of revenues and award judgment for sums specified in subsections (a) and (b).
- (e)
- (1)
Any utility that can properly establish the amount of utility service fraudulently taken on or by any premises occupied by the owner thereof shall have the right to declare a lien for the value of such utility service against the property on which the utility service was taken.
- (2)
The lien shall be filed within one (1) year of the date of the utility's first actual knowledge of the fraudulently diverted utility service.
- (3)
- (A)
The lien shall be perfected upon the filing of a notice with the office of the register of deeds of the county in which the property upon which the lien is claimed is located, and such lien shall be second only to liens of the state, county, or municipality for taxes and special assessments, and any valid lien, right, or interest in such property duly recorded or duly perfected by filing, prior to the filing of such notice. Such notice shall contain the name of the titleholder or titleholders of the property upon which the lien is claimed, the property address, a description of the property sufficient to identify it, the signature and address of the entity claiming the lien, and the amount claimed by such entity.
- (B)
The priority of liens established by this subdivision (e)(3) shall apply to all liens filed pursuant to this subsection (e) on or after April 10, 1990.
- (4)
If a utility has not registered the notice as provided in subdivision (e)(3), such lien shall not be effective against a bona fide purchaser for value without actual or constructive knowledge of the fraudulently diverted utility service.
- (f)
Civil actions pursuant to this section shall be commenced within the time required by law in an action to recover damages for the loss of property.
§ 65-35-105. Criminal proceedings.
- (a)
A violation of § 65-35-102 is also a violation of § 39-14-104 and § 65-35-103 applies to any proceeding brought to impose the penalties for a violation of § 39-14-104.
- (b)
In all criminal proceedings brought to impose penalties under § 39-14-104 for violation of this chapter, the provisions of § 65-35-103 pertaining to “prima facie evidence,” “presumption of intent” and “presumptive evidence” shall be deemed to be an inference of such evidence or intent.
Chapter 36 Equal Powers and Authority Act
§ 65-36-101. Short title.
-
The title of this chapter is, and may be cited as the “Electric Utility Comprehensive Equal Power and Authority Act of 1997.”
§ 65-36-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Electric cooperative” means an electric cooperative or electric membership corporation, whether organized or operating under chapter 25 of this title or similar statutes of any other state, which, as of June 19, 1997, distributes electric power purchased from the Tennessee Valley authority; and
- (2)
“Municipal utility” and “municipal electric utility” means any governmental entity as defined in § 29-20-102, having a system for the distribution of electricity, whether operated under the authority of a board of the governmental entity, a department of the governmental entity or under the authority of a board created pursuant to the Tennessee Municipal Electric Plant Law, compiled in title 7, chapter 52, or by the authority of any other public or private act of the general assembly or pursuant to the charter of a municipality, and that operates an electric generation or distribution system which, as of June 19, 1997, distributes electricity purchased from the Tennessee Valley authority and also includes any municipality, county or other political subdivision of another state, whether operated under a board or as a county or municipal department, which, as of June 19, 1997, distributes electricity purchased from the Tennessee Valley authority.
§ 65-36-103. Legislative findings.
-
The general assembly hereby finds and determines that participating in interlocal agreements by electric cooperatives and municipal utilities, as authorized by this chapter, provides a mutual benefit by reducing the expense of operations of municipal utilities and electric cooperatives and, as a result, reduces the cost of electricity for the citizens of this state. Accordingly, the general assembly hereby finds that all contributions of financial and administrative resources and associated costs and expenses that are made by a municipal utility pursuant to an interlocal agreement as authorized by this chapter, are made for a public and governmental purpose, and that all such contributions benefit the contributing municipal utilities.
§ 65-36-104. Interlocal cooperation agreements authorized.
-
Every municipal electric utility and every electric cooperative are hereby authorized to enter into and to fulfill the terms of interlocal cooperation agreements under the authority of title 12, chapter 9, whether or not the parties of such agreements share equal powers with respect to the subject matter of such agreements. For the purpose of entering into agreements authorized under this chapter or entering into an interlocal agreement under title 12, chapter 9, municipal utilities and electric cooperatives are authorized to enter into interlocal agreements, as if each electric cooperative were a “public agency” for the purposes of title 12, chapter 9.
§ 65-36-105. Use of surplus funds.
-
Every municipal electric utility and every electric cooperative are hereby authorized to use surplus revenues in connection with the exercise of any power or authority they may exercise under any law; provided, that the exercise of that power or authority is not a violation of the terms and conditions of a wholesale power contract between the Tennessee Valley authority and the respective municipal electric utility or electric cooperative and is not a violation of or otherwise prohibited by the terms and conditions of any covenants in any outstanding revenue bonds of the municipal electric utility or loan covenant of the electric cooperative, as may be applicable.
§ 65-36-106. Telephone, telegraph and telecommunications services.
-
Notwithstanding any other provisions of this chapter or other law to the contrary, if the exercise of power or authority granted by this chapter involves any system, plant, or equipment for the provision of telephone, telegraph, telecommunications services or any other like system, plant, or equipment, such exercise, whether by a municipal electric system, an electric cooperative or jointly, shall not be subject to this chapter but instead shall be subject to title 7, chapter 52, as amended. With respect to telephone, telegraph, or telecommunications services, electric cooperatives shall be subject to regulation by the Tennessee public utility commission to the same extent as municipal electric utilities under title 7, chapter 52.
§ 65-36-107. Competitive consequences of agreement.
-
In the exercise of their respective powers and authority, jointly and severally, under interlocal cooperation agreements entered into under the authority of this chapter and title 12, chapter 9, electric cooperatives and municipal utilities and any separate entity or body created under § 12-9-104(c), may exercise such powers and authority regardless of the competitive consequences thereof.
§ 65-36-108. Construction with other regulatory statutes.
- (a)
Nothing in this chapter shall be deemed to be an implied repeal of the service area limitations established in § 6-51-112 or chapter 34 of this title.
- (b)
Nothing in this chapter shall be construed to change the requirements of title 7, chapter 82, with respect to the merger or acquisition of any water, sewer, or gas system of a utility district with or by a municipal electric utility or electric cooperative. Nothing in this chapter shall be construed to authorize any municipal electric utility or electric cooperative to provide a service for which a license, certification or registration is required pursuant to title 62, chapter 32, part 3, or operate a cable system as defined by § 7-59-201 for the provision of cable service, to provide pager services, or to operate as an internet service provider.
Chapter 37 Pricing & Bundling of Telecommunications Services
§ 65-37-101. Promotional incentives for telecommunications services — Policy — Implementation.
- (a)
It is the policy of the general assembly to encourage and not prohibit or delay attractive discount pricing and special promotional offers for telecommunications services.
- (b)
To implement the policy articulated in this section and to encourage low prices, notwithstanding any other law, all telecommunications providers shall be permitted to offer promotional incentives for telecommunications services, including rebates and limited free service offerings, with such promotions not extending more than six (6) months. Any such free service promotions shall not provide more than one (1) month of free local exchange service in any twelve-month period. Any such free service promotion available for the full six-month period may not be reinstituted for thirty (30) days after expiration of such period.
§ 65-37-102. Price discrimination.
- (a)
Price differences among retail telecommunications customers shall be strictly prohibited, to the extent that such differences are attributable to race, creed, color, religion, sex or national origin. All other differences in pricing among retail telecommunications customers, as of May 28, 2005, shall be presumed to be a function of the competitive market. This presumption may be rebutted by evidence of price discrimination as prohibited by state law.
- (b)
Nothing in this section shall alter or expand the jurisdiction of the Tennessee public utility commission to hear complaints alleging price discrimination as prohibited by state law in retail telecommunications services within its jurisdiction, as its jurisdiction existed immediately prior to May 28, 2005, except to the extent that such jurisdiction is reduced pursuant to exemption by the commission subsequent to May 28, 2005. This chapter does not confer jurisdiction on the commission relating to services outside its jurisdiction as of May 28, 2005. In determining whether differences in pricing among retail telecommunications customers constitute price discrimination as prohibited by state law, the commission shall consider all relevant factors, including, but not limited to, whether:
- (1)
Customers have been or will be injured as a result of the alleged price differences;
- (2)
There is a legitimate business reason to distinguish between the customers who are being treated differently;
- (3)
Customers who are being treated differently are similarly situated;
- (4)
Customers may choose a functionally equivalent service from an alternative service provider at substantially the same price and terms; and
- (5)
The commission has determined previously that existing and potential competition is an effective regulator of the price of the service that is the subject of the complaint.
§ 65-37-103. Retail offering of combinations or bundles of products or services.
- (a)
- (1)
The Tennessee public utility commission shall retain regulatory jurisdiction established in this title for specific, individual telecommunications services. Except as provided in this section, the commission shall not assert regulatory jurisdiction over the retail offering of combinations or bundles of products or services, whether or not such combinations or bundles of products or services are subject to a tariff or other regulatory filing with the commission as of May 28, 2005, and whether or not comprised of products or services provided by a local exchange carrier alone or with another company. Nothing in this section shall require any company to engage in joint marketing with another company when it does not choose to do so.
- (2)
In order to transition to the changes in regulatory jurisdiction established by this part, telecommunications carriers shall provide customers with the following notice, as part of the terms and conditions for bundles or combinations: “This offer contains telecommunications services that are also available separately. Should you desire to purchase only the telecommunications services included in this offer, without additional products or services, you may purchase those telecommunications services individually at prices posted on [company website] or filed with the Tennessee public utility commission.”
- (3)
The commission shall issue a statewide public service announcement, no less than once per year, to inform Tennesseans that telecommunications services they purchase may be available at different prices, depending upon whether they are bought individually or bought bundled, and to inform Tennesseans that functionally equivalent services may be available from providers who do not offer service using wire line technology. Scripts for these announcements shall be posted for comments from industry and consumers or their representatives before being used and shall not favor any one provider or technology over others.
- (b)
Unless otherwise agreed by the end-user, the terms and conditions established by tariffs or other filings at the commission for combinations or bundles of products or services shall remain effective as to end-users who have selected such combinations or bundles prior to May 28, 2005, for the duration of a term selected by the end-user. If no term was selected by the end-user for a combination or bundle of products or services, or if no term limit applied to such combination or bundle, then the terms and conditions governing that combination or bundle of products or services, at the time the end-user subscribed, shall remain in effect until the end-user agrees or elects otherwise or until the end-user is noticed of a change in terms by the service provider. Terms and conditions originally established by approved tariffs, which are changed and noticed to customers subsequent to May 28, 2005, shall bind end-users. End-users who terminate service within thirty (30) days of issuance of the notice of a change in such terms and conditions shall not be affected by such changed terms and conditions for the period between issuance of the notice and termination of service.
- (c)
Nothing in this section shall affect, alter or be construed to affect or alter the applicability of state or federal antitrust law or federal telecommunications law or the commission's authority under federal telecommunications laws.
- (d)
Any provider of local exchange service shall permit any end-user of basic local exchange telephone service to terminate that service upon request and shall take all administrative steps necessary, including “number portability,” as that term is used in 47 U.S.C. § 153, of the end-user's existing telephone number, to permit such end-user to begin receiving replacement service from another certificated provider in a timely manner.
- (e)
Nothing in this section shall alter or expand the commission's jurisdiction to hear complaints alleging price discrimination, as prohibited by state law, or anti-competitive practices regarding the provision of retail telecommunications services within its jurisdiction as its jurisdiction existed immediately prior to May 28, 2005, except to the extent that such jurisdiction is reduced pursuant to exemption by the commission subsequent to May 28, 2005. This chapter does not confer jurisdiction on the commission relating to services outside its jurisdiction as of May 28, 2005. In evaluating claims of anti-competitive practices in any retail telecommunications services market, the commission shall apply applicable federal or state law and shall consider all relevant factors, including, but not limited to, the following:
- (1)
The geographical and economic extent of commercial demand for functionally-equivalent services;
- (2)
The number and relative longevity of companies providing functionally-equivalent services;
- (3)
The relative gain or loss of revenues attributable to functionally-equivalent services and customers who purchase functionally-equivalent services;
- (4)
The relative increase or decrease in facilities-based investment attributable to providing functionally-equivalent services;
- (5)
The degree to which marketing, pricing and business strategies are utilized to acquire or maintain revenues attributable to functionally-equivalent services and customers who purchase functionally-equivalent services; and
- (6)
The relationship between pricing policies and costs of functionally-equivalent services.
- (f)
Nothing in this section shall alter the commission's jurisdiction to review price regulation filings or conduct rate of return ratemaking analysis, as applicable, for incumbent local exchange carrier (ILEC) telecommunications providers. Revenue for telecommunications services provided in combinations or bundles shall be considered regulated revenue for purposes of price regulation or rate of return rate analysis.
§ 65-37-104. Financial information or reporting — System of accounts.
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The Tennessee public utility commission shall not establish or impose upon price-regulated carriers subject to this title state-specific financial information or financial reporting requirements or a uniform system of accounts. Price-regulated carriers subject to this title may be required to file with the commission only that financial information or financial reports that are required to be filed with the federal communications commission. Such commission filing requirements may be satisfied by the carrier by the submission to the commission of a letter explicitly identifying a publicly-available government website on which the information is posted. The inspection, control and supervision fee established in § 65-4-301 shall be based on the financial information contained in such federal reports.
2024 Tennessee Code Unannotated