New Mexico Register / Volume XXXVI, Issue 14 / July 29, 2025
This is an Amendment
to 17.11.10 NMAC, Sections 19 & 31 effective 7/29/2025.
17.11.10.19 ANNUAL DETERMINATION OF FUND:
A. The
administrator shall determine the amount of the fund for the next calendar year
and submit its findings to the commission on or before November 10 of each year
to enable commission approval on or before November 20 of each year in order to provide carriers with sufficient time to
implement any change in the surcharge rate.
B. In the event the
commission orders a change in fund support, pursuant to 17.11.10.14 or
17.11.10.25 NMAC of this rule or otherwise, that necessitates a fund amount greater
than that which the commission has previously established, the commission may
order an adjustment to the amount of the fund, subject to the annual fund cap
set forth in Subsection C of 17.11.10.19 NMAC.
C. The amount of
the fund shall be equal to the sum of each ETC’s revenue requirement,
calculated pursuant to this section, plus any other fund requirements
determined by the commission, including pursuant to 17.11.10.25, 17.11.10.31 or
17.11.11 NMAC, plus projected administrative expenses and a prudent fund
balance; provided however, the total amount of the fund shall not exceed a cap
of thirty million dollars ($30,000,000.00) per year.
D. Only carriers
holding state ETC status as of October 1 shall be included in the calculation
of funding requirements for the subsequent calendar year.
E. [Except where the
commission has established an alternative or additional amount pursuant to
17.11.10.25 or 17.11.10.31 NMAC,] In 2025 and 2026, the annual
revenue requirement for support pursuant to Subsection K of Section 63-9H-6
NMSA 1978, [2018 and each year thereafter] for each ETC that was an
ETC [eligible] as of July 1, 2005, and is a local exchange
carrier, shall be equal to the carrier’s revenue requirement for
2023. [2014 SRUSF revenue requirement adjusted by the annual percentage
change in the number of access lines served by the carrier as of December 31 of the prior calendar
year compared to the number
of access lines served by the carrier
as of December 31, 2014, and then reduced by the carrier’s imputed
benchmark revenue. For 2021, the
access lines used for the comparison to 2014 shall be as of December 31, 2019,
adjusted annually thereafter. The SRUSF revenue requirement formula
under this section
may be stated arithmetically as follows: revenue
requirement minus imputed benchmark revenue.] Support
pursuant to Subsection K of Section 63-9H-6 NMSA 1978, for each ETC that was an
ETC as of July 1, 2005, and is a local exchange carrier, shall terminate after
December 31, 2026.
F. The revenue
requirement for an ETC that became an ETC after July 1, 2005
or that became an ETC prior to July 1, 2005, but is not a local exchange
carrier, shall be determined annually by the administrator in conjunction with
the administrator’s determination of fund size, and shall be in accordance with
the support rate determined by the commission pursuant to 17.11.10.23 NMAC.
G. For an ETC that is
not eligible for funding pursuant to rate rebalancing per Subsection K of
Section 63-9H-6 NMSA 1978 that has been previously authorized for support pursuant
to [Subsection M] Subsection N of Section
63-9H-6 NMSA 1978, that ETC may petition for ongoing funding pursuant to [Subsection
K] Subsection M of Section 63-9H-6 NMSA 1978, subject to the
following:
(1) the
commission shall award an applicant ongoing fund support at no less than the
average access line amount of funding support for comparable carriers; provided
that an eligible telecommunications carrier receiving fund support pursuant to
the subsection shall not offer basic local exchange residential and business
services at rate levels lower than the rates for such services charged by any
of the comparable carriers used for the determination of the level of support;
(2) the
commission shall act upon a request for ongoing fund support within one hundred
twenty days of the filing of the request.
[17.11.10.19 NMAC -
Rp, 17.11.10.19 NMAC, 3/12/2024; A, 7/29/2025]
17.11.10.31 BROADBAND PROGRAM:
A. It
is the goal of the commission that New Mexico consumers have access to high-quality
broadband service from both wireline and mobile broadband providers. Pursuant
to [Subsection N] Subsection O of Section 63-9H-6, NMSA 1978, ETCs may separately apply to
the commission for grants to fund the construction and maintenance of
facilities that are capable of providing broadband
internet access service to areas unserved or underserved by broadband in the
state. Applications must be primarily
for coverage of the construction costs of new facilities, but such applications
may include a request for maintenance costs of those facilities as well. Each grant that is awarded will provide up to
seventy-five percent of the budgeted project cost, with the ETC applying the remainder
from its own funds. Projects receiving
any source of third-party funding other than potential loan funds, FCC high-cost
fund legacy support or connect America fund support (including mobility fund
support) will not be eligible. Each
applicant shall provide a detailed description in their application of the
origin and type of funding provided for the carrier match, and a certification
that those monies are not duplicative of other purposes or projects other than
SRUSF broadband program projects. In evaluating applications, the commission
shall seek to avoid duplication of service using the same technology. Awards of support under this section shall be
consistent with federal universal service support programs and be based on the
best use of the fund for rural areas of the state. For purposes of administering the broadband
program, the commission may find that a broadband program proposed project area
is a rural area, notwithstanding the definition of rural area in Subsection U
of 17.11.10.7 NMAC, if it determines that:
(1) the area otherwise has the characteristics
of a rural area;
(2) the area is unserved or underserved by
broadband; and
(3) the public interest requires that the
area be classified as rural.
B. Funding of the broadband program. [At least eight
million dollars ($8,000,000.00) of the fund shall be dedicated annually
to the broadband program.]
Each year, the commission will dedicate an amount equal to thirty million
dollars ($30,000,000), less the amounts expended pursuant to Subsections K, L,
M and N of Section 63-9H-6 NMSA 1978, to the broadband program. The amount of funding allocated to the broadband
program shall not be subject to proration
under Subsection E of 17.11.10.20 NMAC. [To the extent a year’s broadband
program funding is not exhausted by grants awarded during that year, the funds
will rollover to the following year.]
C. Applicants for broadband program
grants may request that company-specific information contained within an
application be treated as confidential. The
commission shall make all decisions regarding disclosure of company-specific
information and may request further information or justification from the
contributing company to ensure uniformity of confidential treatment of all
information submitted by contributing companies. Nothing in this rule shall preclude
commission issuance of an umbrella protective order identifying what reported
data shall be, or shall not be, deemed confidential. The commission staff or a third-party
contractor, shall keep confidential all company-specific information obtained
from applicants for broadband program grants for which confidential treatment
is requested, shall not use such information except for purposes of analyzing
the applications, and shall not disclose such information in company-specific
form unless directed to do so by the commission.
D. Minimum
requirements for eligible projects. The
commission will consider projects on a technology-neutral
basis. Projects that apply technologies
including, without limitation, wireline, mobile wireless, and fixed wireless
technologies are all eligible for broadband fund grants. A project must meet the following requirements
to be eligible for a grant award:
(1) support broadband internet access
service at speeds of at least 25.0 Mbps download/3.0 Mbps upload to all
households and businesses in the proposed project area;
(2) support voice grade telephony service
to all households and businesses in the proposed project area. For this purpose, a voice over internet
protocol (VOIP) based service is acceptable, as well as traditional voice telephony
services and mobile voice services;
(3) support access to emergency 911 services; and
(4) offer
a latency that is sufficiently low to support real-time, interactive
applications.
E. Contents
of grant applications. An application
for support from the broadband program shall include, at a minimum:
(1) a proposal to build telecommunications
network facilities to service an area where the applicant is designated as a
state ETC;
(2) a detailed build plan setting forth a
description of the facilities to be deployed, including all costs of
constructing facilities; and
(3) a map showing where service and
coverage will be provided. This
requirement can be met by providing;
(a) for a wireline network, a map showing
all homes, businesses, and other end user locations passed; or
(b) for a wireless network, a coverage map
generated using a radio frequency propagation tool generally used in the
wireless industry;
(4) an estimate of the number of road
miles and square miles to be covered and population and population density of
the area covered;
(5) the amount of support requested from
the broadband program and the amount of the applicant’s financial match, and a
description of any type, amount, and purpose of subsidy or financial support
the applicant is currently receiving or is scheduled to receive in the area
designated in the application;
(6) a description of the technology to be
deployed, including data throughput speeds and latency characteristics of the
service to be delivered to customers;
(7) a demonstration that the area to be
served is an area unserved by broadband or an area underserved by broadband as
defined in 17.11.10.7 NMAC. If the area
to be served contains served, unserved and underserved areas, the application and
map shall identify which portions of the area are served, unserved and which
are underserved. Each served, unserved,
and underserved area shall be clearly identified through color coding on the
map submitted with the application. Each served, unserved, and underserved
area shall be clearly identified through individual color coding indicators on
all city street grid maps submitted with the applications. Satellite views are not acceptable for the
application's requirement for mapping;
(8) a demonstration of the estimated customer
subscription rates and revenues from the services to be offered as a result of the proposed construction sufficient to
justify support from the broadband program;
(9) a commitment to provide a minimum
twenty-five percent match of funds;
(10) if the project is a wireless network
deployment, a commitment to allow collocation on reasonable terms by other providers of commercial mobile wireless service
or any public safety network and to abide by the FCC's collocation
requirements for awardees under the federal universal service program;
(11) sample terms and conditions for the
service and proposed prices;
(12) explain
how the proposed deployment will contribute to the enhancement of digital
equity and digital inclusion in the proposed service territory;
(13) explain
how the awards of support are consistent with federal universal service support
programs;
(14) a certification by an authorized
representative affirming that all information set forth in the application is
true and correct;
(15) any other requirements to ensure
accountability as the commission may develop and approve in a proceeding to
determine the form and contents of grant applications; and
(16) applications and mapping information
must also be submitted contemporaneously with the New Mexico department of
information technology broadband division.
F. The ETC must make the following commitments and include
them in its application:
(1) the broadband service must be offered
at reasonably comparable rates for comparable
services in urban areas;
(2) the broadband service must be provided
for at least seven years following project completion;
(3) the ETC must abide by commission
reporting requirements sufficient to monitor the progress of the project deployment and to ensure
that all grant funds are being used efficiently and for the purpose intended;
and
(4) the ETC must commit to respond to
commission inquiries regarding service-related complaints and commit to attempt
to resolve service-related complaints in a reasonable manner.
G. Procedure for awarding support from the fund:
(1) On or before May 1 of each year, the
commission shall open a non-adjudicative, administrative docket and establish a
deadline for filing applications for broadband program support for the
following calendar year. The telecom bureau, or a third-party contractor, shall
review and summarize all timely applications.
Only carriers holding ETC status as of October 1 shall be eligible to
receive disbursements from the fund during the year that begins the following
January 1.
(2) Interested persons may seek intervention in these
proceedings, pursuant to 1.2.2.23 NMAC.
(3) On or before September 1, the telecom bureau
shall make a presentation to the
commission, with analysis of the applications for awards. The telecom bureau,
or a third-party contractor, may communicate with applicants to request
additional information or clarify information presented in the applications in order to prepare its presentation. Such presentations shall be considered by the
commission but shall not bind the commission.
(4) At the September 1 presentation, the telecom
bureau shall present a summary of projects.
The telecom bureau shall provide the following information for each
project on a single spreadsheet.
(a) cost per customer served or passed;
(b) type of technology;
(c) whether area is unserved or
underserved (or, if area includes both, in what proportions);
(d) download and upload speed of service;
(e) monthly rates that the grantee intends
to charge for the service; and
(f) telecom bureau comments on the
project.
(5) On or before October 15, the
commission, in coordination with the broadband office and the council, for
prioritization and alignment with the statewide broadband plan, shall issue a
decision approving or denying in whole or in part, each application. Among the
factors that the commission will consider when selecting proposed projects for
funding are the download and upload speeds that a project will provide and
whether the project will serve an area unserved by broadband or an area
underserved by broadband.
(6) On or before November 1, any interested
person may file with the commission a request for reconsideration, in whole or in part, of any award of funds. Requests for reconsideration will not be valid
after November 1.
(7) On or before December 1, the commission shall dispose of
any motions for reconsideration.
H. Conditions
for disbursement of awarded funds:
(1) The awardee commits to complete construction of its project within three years from
the date of the commission’s final order approving an award pursuant to 17.11.10.31
NMAC.
(2) For each awarded project, project
reports shall be submitted to staff, consultant(s), and administrator(s) semiannually,
during June and December and at the mid-point and completion of the project that
provide information regarding the status of the project in a form accepted by staff. Semi-annual reports shall be submitted June
30, and December 31 of the calendar year. The midpoint disbursement report shall describe
ETC progress on project milestones at the mid-point of the completion of the
project pursuant to Paragraph (1) of Subsection E of 17.11.10.25 NMAC, prior to
the release of a mid-point disbursement. The mid-point and final reports may be filed concurrently
with the submission of the semi-annual reports, but
may not be combined into one report. Within
30 days after project completion, the awardee shall submit a final report in a
form accepted by staff demonstrating
that the project as completed meets the coverage requirements set forth in the
application, including a certification from an officer or director that all
program requirements have been met.
(3) Prior to the initial disbursement, the
ETC must notify the commission in writing that it is prepared to commence the
project with regard to project engineering, ordering
or delivery of required equipment, labor requirements, and that all permits
have been granted to begin construction.
The administrator shall disburse one third of the award promptly
following receipt of the ETC’s written notice that it is prepared to commence
the project, one third at the midpoint of the project, and the remaining third
upon project completion. The second and
third payments may be requested as a single disbursement upon completion and
are contingent upon the submission of acceptable project status reports pursuant
to Paragraph (2) of Subsection H of 17.11.10.31 NMAC. The commission may, within 30 days after
submission of a report, order additional information to be provided, suspend
payment by the administrator, or take other action as necessary after notice
and hearing.
(4) Any applicant found to have willfully
misrepresented information in an application, is found to have used support
unlawfully, or fails to meet the commitments set forth in the application, may
be subject to refund of award funds or other actions of the commission.
[17.11.10.31 NMAC -
Rp, 17.11.10.31 NMAC, 3/12/2024; A, 7/29/2025]