TITLE XXXIV
PUBLIC UTILITIES

Chapter 362
DEFINITION OF TERMS; UTILITIES EXEMPTED

Section 362:1

362:1 Commission. – The term "commission," as used in this title, means the public utilities commission.

Source. 1911, 164:1. 1913, 145:1. PL 236:1. RL 285:1. 1951, 203:9 par. 1, eff. Sept. 1, 1951.

Section 362:1-a

362:1-a Campground. – For purposes of this chapter, the term "campground" means a recreational camping park on which 10 or more tents, or recreational vehicles including trailers, tent trailers, vans, pickup campers, or motor homes are used as temporary living quarters for recreational use, and a fee is charged for such land use.

Source. 1987, 327:1, eff. May 25, 1987.

Section 362:2

362:2 Public Utility. –
I. The term "public utility" shall include every corporation, company, association, joint stock association, partnership and person, their lessees, trustees or receivers appointed by any court, except municipal corporations and county corporations operating within their corporate limits, owning, operating or managing any plant or equipment or any part of the same for the conveyance of telephone or telegraph messages or for the manufacture or furnishing of light, heat, sewage disposal, power or water for the public, or in the generation, transmission or sale of electricity ultimately sold to the public, or owning or operating any pipeline, including pumping stations, storage depots and other facilities, for the transportation, distribution or sale of gas, crude petroleum, refined petroleum products, or combinations of petroleum products, rural electric cooperatives organized pursuant to RSA 301 or RSA 301-A, and any other business, except as hereinafter exempted, over which on September 1, 1951, the public utilities commission exercised jurisdiction.
II. For the purposes of this title only, rural electric cooperatives for which a certificate of deregulation is on file with the public utilities commission pursuant to RSA 301:57 shall not be considered public utilities; provided, however, that the provisions of RSA 362-A:1, 362-A:2, 362-A:3, 362-A:4, 362-A:5, 362-A:6, 362-A:7, 362-A:8, 363-B, 371, 374:2-a, 374:26, 374:48-56, 374-A, 374-C, 374-F, and 378:37 shall, unless otherwise provided herein, be applicable to rural electric cooperatives, without regard to whether a certificate of regulation or deregulation is on file with the public utilities commission. The provisions of RSA 374-A and the provisions of RSA 374-F:3, V(b) and (f) and RSA 374-F:7 shall be applicable to rural electric cooperatives for which a certificate of deregulation is on file with the public utilities commission to the same extent as municipal utilities.

Source. 1911, 164:1. 1913, 145:1. 1917, 76:1. PL 236:4. 1935, 114:1. 1941, 197:1. RL 285:4. 1951, 203:9 par. 2. RSA 362:2. 1985, 402:15. 1986, 70:2. 1997, 229:6. 2001, 29:2. 2002, 268:2. 2007, 25:11, eff. May 11, 2007. 2014, 129:2, eff. Aug. 15, 2014. 2016, 31:2, eff. May 2, 2016.

Section 362:3

362:3 Common Carrier by Rail. – The term "common carrier by rail" shall include every corporation, company association, joint stock association, partnership and person, their lessees, trustees, or receivers appointed by any court, owning or operating any railroad for common carriage of passengers or freight or carrying on a public express business for compensation over the line of any railroad. It shall also include all bridges and other structures owned, leased or used.

Source. 1911, 164:1. 1913, 145:1. PL 236:3. RL 285:3. 1951, 203:9 par. 3. RSA 362:3. 1985, 402:15.

Section 362:3-a

362:3-a Sale; Submetering in Campgrounds. – The term "sale" shall not include electric submetering in campgrounds for the purpose of calculating reimbursable amounts among submeter users; provided, that reimbursable amounts shall be distributed pro-rata among submeter users and do not exceed the total amount charged by the utility to the campground master metered customer.

Source. 1987, 327:2, eff. May 25, 1987.

Section 362:3-b

362:3-b Shared Tenant Services. – Authorized providers of shared tenant services as defined in RSA 374:22-k shall not be deemed to be telecommunications carriers within the meaning of the Communications Act of 1934 or public utilities within the meaning of this title.

Source. 1997, 288:3, eff. Jan. 1, 1998.

Section 362:4

362:4 Water Companies, When Public Utilities. –
I. Every corporation, company, association, joint stock association, partnership, or person shall be deemed to be a public utility by reason of the ownership or operation of any water or sewage disposal system or part thereof. If the whole of such water or sewage disposal system shall supply a less number of consumers than 75, each family, tenement, store, or other establishment being considered a single consumer, the commission may exempt any such water or sewer company from any and all provisions of this title whenever the commission may find such exemption consistent with the public good.
II. A municipal corporation furnishing water or sewage disposal services outside its municipal boundaries shall not be considered a public utility under this title for the purpose of accounting, reporting, or auditing functions with respect to said service.
III. A municipal corporation furnishing sewage disposal services shall not be considered a public utility under this title:
(a) If it serves customers outside its municipal boundaries, charging such customers a rate no higher than that charged to its customers within the municipality, and serves those customers a level of sewage disposal service equal to that served to customers within the municipality. Nothing in this section shall exempt a municipal corporation from the franchise application requirements of RSA 374.
(b) If it supplies bulk sewage disposal services pursuant to a wholesale rate or contract to another municipality, village district, or water precinct.
III-a. (a) A municipal corporation furnishing water services shall not be considered a public utility under this title:
(1) If it serves new customers outside its municipal boundaries, charging such customers a rate no higher than 15 percent above that charged to its municipal customers, including current per-household debt service costs for water system improvements, within the municipality, and serves those customers a quantity and quality of water or a level of water service equal to that served to customers within the municipality. Nothing in this paragraph shall exempt a municipal corporation from the franchise application requirements of RSA 374.
(2) If it supplies bulk water pursuant to a wholesale rate or contract to another municipality, village district, or water precinct. This subparagraph shall not apply to bulk water contracts which were in effect before July 23, 1989, or to the renewal of said bulk water contracts.
(b) The commission may exempt a municipal corporation from any and all provisions of this title except the franchise application requirements of RSA 374, and may authorize a municipal corporation to charge new customers outside its municipal boundaries a rate higher than 15 percent above that charged to its municipal customers, if after notice and hearing, the commission finds such exemption and authorization to be consistent with the public good. The commission may not authorize a municipal corporation to charge existing customers outside its municipal boundaries a rate higher than 15 percent above that charged to its municipal customers until any rate agreements in effect for those customers on May 13, 2002 shall have expired.
(c) A municipal corporation's authority to charge higher rates for new customers outside of its municipal boundaries shall be applied prospectively to new customers taking water service provided by means of a main extension or an expansion of the municipal corporation's system after the effective date of this paragraph.
(d) A municipal corporation's authority to charge higher rates for existing customers outside of its municipal boundaries shall not become effective until any rate agreements in effect on May 13, 2002 have expired.
(e) A municipal corporation serving customers outside of its municipal boundaries and charging a rate no higher than 15 percent above that charged to its municipal customers prior to July 1, 2002, may also be exempted from regulation as a public utility, except for the franchise application requirements of RSA 374, if after notice and hearing, the commission finds such exemption and authorization to be consistent with the public good.
IV. (a) Any customer of a water utility shall have the right to terminate water service and secure water from an alternate source, if the customer can demonstrate the ability to comply with the requirements of RSA 485-A:29 and RSA 485-A:30-b, and the administrative rules adopted to implement these sections.
(b) Any covenant in a deed or contract that restricts the right to terminate water service from a water utility or in any way limits that right, shall be void as against public policy.
V. No property owner shall be required to connect to a municipal corporation furnishing water, provided such property owner can demonstrate the ability to comply with the requirements of RSA 485-A:29 and RSA 485-A:30-b.
VI. (a) For purposes of this chapter, a municipal corporation shall include a regional water district.
(b) During the initial 4 years of its operation, if a regional water district seeks to alter rates other than in a manner that uniformly impacts all customers within the district, any municipality that is a member of the regional water district may seek commission review of the proposed rate change. In order for the proposed rate change to take effect, the commission must determine that the proposed rates are cost-based and that they are not unduly discriminatory.
(c) A regional water district shall adopt and enforce quality of water service standards consistent with the commission's administrative rules.
(d) With respect to regional water districts, the 15 percent benchmark employed in this section shall be calculated in relation to an average of the regional water district's relevant rates as determined by the public utilities commission.
VII. (a) A homeowners association, including but not limited to a condominium unit owners association, shall not be considered a public utility under this title by virtue of providing water service if:
(1) The service is furnished only to members of the association or the occupants of their residential units; and
(2) The association is organized on a not-for-profit basis and is democratically controlled by the owners of the residential units and not the developer or subdivider thereof.
(b) Such a homeowners association is one consumer for purposes of paragraph I, and its individual members or their lessees shall not be treated as individual consumers.

Source. 1913, 145:1. 1917, 76:1. PL 236:5. RL 285:5. 1951, 203:9 par. 4. RSA 362:4. 1957, 33:1. 1971, 333:1. 1973, 546:1. 1988, 134:1. 1989, 240:1. 1992, 170:1. 1993, 248:1. 2001, 237:2. 2002, 141:4, 52; 174:3. 2003, 178:15; 281:12. 2007, 25:2, eff. May 11, 2007.

Section 362:4-a

362:4-a Electric Companies, When Public Utilities. –
I. A municipal corporation furnishing electric utility services outside its municipal boundaries shall not be considered a public utility under this title for the purpose of accounting, reporting, or auditing functions with respect to said service.
II. A municipal corporation furnishing electric utility services shall not be considered a public utility under this title if it serves customers outside of its municipal boundaries and charges such customers a rate no higher than that charged to its customers within the municipality, and provides those customers a quantity and quality of electricity equal to that served customers within the municipality. Nothing in this section shall exempt a municipal corporation from the franchise application requirements of RSA 374.

Source. 1991, 86:1, eff. Jan. 1, 1992.

Section 362:4-b

362:4-b Gas Companies, When Public Utilities. –
I. The term "public utility" shall not include any corporation, company, association, joint stock association, partnership and person, their lessee, trustee or receiver appointed by any court, or assignee, which provides, sells, delivers, or stores liquefied petroleum gas in cylinders or tanks, or who distributes liquefied petroleum gas through underground distribution systems, except for those systems regulated by the commission as of May 1, 1997.
II. Nothing in this section prevents the commission from regulating the rates and charges of the distributed propane operations of a regulated natural gas utility when those activities are provided as a temporary alternative to the provision of natural gas, and when the rates and charges are based on the cost of service of the regulated public utility.
III. Nothing in this section prevents the department of energy from monitoring or enforcing the provisions of federal pipeline safety standards relative to liquefied petroleum gas systems pursuant to the Natural Gas Pipeline Safety Act.

Source. 1997, 298:1, eff. June 20, 1997. 2021, 91:231, eff. July 1, 2021.

Section 362:4-c

362:4-c Electric Generation Companies, When Public Utilities. –
I. The term "public utility" shall not include any entity determined by the Federal Energy Regulatory Commission to be an exempt wholesale generator, nor shall it include any corporation, company, association, limited liability company, joint stock association, partnership, or person, their lessees, trustees, or receivers appointed by any court, solely by virtue of owning, operating, or managing any plant or equipment or any part of the same which has received a certificate of site and facility as an energy facility or as a bulk power supply facility pursuant to RSA 162-H after July 1, 1998, or are sold after July 1, 1998, for the generation or sale of electricity or for transmission of electricity from such a plant to an interconnection with the transmission grid.
II. Any entity exempted by this section may seek public utility status from the commission if it so chooses.

Source. 1998, 191:2; 253:4. 2004, 148:2, eff. Jan. 1, 2005.

Section 362:4-d

362:4-d Hot Water Companies; When Public Utilities. – The term "public utility" shall not include any corporation, company, association, joint stock association, partnership, or person, their lessee, trustee, or receiver appointed by any court, or assignee, by virtue of its being engaged in the manufacture, furnishing, or sale of hot water through a district energy system. In this section, "hot water" means water that has a temperature of no more than 200 degrees Fahrenheit that circulates in a district heating system under pressure of no more than 232 pounds per square inch.

Source. 2013, 8:1, eff. July 6, 2013.

Section 362:5

362:5 Exemption of Manufacturing Establishments Selling Surplus Electricity. – The commission may exempt any person or corporation engaged in manufacturing and carrying on in this state a manufacturing establishment the product of which is something besides power, and producing electricity primarily for the operation of such establishment or incidental thereto, from any or all provisions of this title, except those directly relating to rates and service, whenever the commission may find such exemption consistent with the public good.

Source. 1913, 145:1. 1917, 76:1. PL 236:6. RL 285:6. 1951, 203:9 par. 5, eff. Sept. 1, 1951.

Section 362:6

362:6 Cellular Mobile Radio Communications Exempt. – The term "public utility" shall not include any individual, partnership, corporation, company, association, or joint stock association, including any trustee, administrator, executor, receiver, assignee, or other personal representative who provides, purchases or sells cellular mobile radio communication services. Such services shall not be subject to the jurisdiction of the public utilities commission pursuant to this title.

Source. 1988, 49:2, eff. May 30, 1988.

Section 362:7

362:7 Telephone Utilities. –
I. In this title:
(a) "End user" means any telecommunications services customer that is not a telecommunications carrier or telecommunications public utility except that a telecommunications carrier or public utility shall be deemed to be an "end user" when such carrier uses a telecommunications service for administrative purposes.
(b) "Incumbent local exchange carrier" shall have the meaning as defined in 47 U.S.C. section 251(h).
(c) "Excepted local exchange carrier" means:
(1) An incumbent local exchange carrier providing telephone services to 25,000 or more lines; or
(2) An incumbent local exchange carrier providing service to less than 25,000 lines that elects to be excepted, upon the filing with the commission of a written notice advising of said election; or
(3) Any provider of telecommunications services that is not an incumbent local exchange carrier.
(d) "Voice over Internet Protocol ("VoIP") service" means any service that:
(1) Enables real-time, 2-way voice communications that originate from or terminate in the user's location in Internet Protocol or any successor protocol;
(2) Requires a broadband connection from the user's location; and
(3) Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.
(e) "IP-enabled service" means any service, capability, functionality, or application provided using Internet Protocol, or any successor protocol, that enables a user to send or receive a communication in Internet Protocol format or any successor format, regardless of technology; provided, however, that no service included within the definition of "Voice over Internet Protocol service" shall be included within this definition.
II. Except as set forth in paragraph III, notwithstanding any other provision of law to the contrary, no department, agency, commission, or political subdivision of the state, shall enact, adopt, or enforce, either directly or indirectly, any law, rule, regulation, ordinance, standard, order, or other provision having the force or effect of law that regulates or has the effect of regulating the market entry, market exit, transfer of control, rates, terms, or conditions of any VoIP service or IP enabled service or any provider of VoIP service or IP-enabled service. VoIP services and IP-enabled services are not public utility services and a provider of VoIP service or IP-enabled service is not a public utility under RSA 362:2, or an excepted local exchange carrier under RSA 362:7, I(c) and shall not be regulated as a public utility in any manner other than as set forth in paragraph III.
III. The prohibitions of paragraph II shall not be construed to:
(a) Affect or limit the application or enforcement of criminal or other laws that apply generally to the conduct of business in the state, including, without limitation, consumer protection, or unfair or deceptive trade practice protections;
(b) Affect, mandate, or prohibit the assessment of taxes or nondiscriminatory 911 fees, telecommunications relay service fees, or other fees of general applicability;
(c) Modify or affect the rights or obligations of any telecommunications carrier, or any duties or powers of the public utilities commission, under 47 U.S.C. section 251 or 47 U.S.C. section 252, as applicable;
(d) Affect the authority of the state or its political subdivisions, as applicable, to manage the use of public rights-of-way, including, but not limited to, any requirement for the joint use of poles or other structures in such rights-of-way;
(e) Affect or limit the application or enforcement of RSA 371:17 through RSA 371:24, RSA 374:2-a, RSA 374:28-a, RSA 374:34-a, RSA 374:48 through RSA 374:56, RSA 374:59, RSA 378:44 through RSA 378:48, or RSA 374:30, II;
(f) Affect or modify any obligations for the provision of video service by any party under applicable law.
IV. Nothing in this chapter shall be construed to give the commission any additional authority over wireless carriers.

Source. 2012, 177:1, eff. Aug. 10, 2012. 2013, 279:3, 4, eff. July 27, 2013.

Section 362:8

362:8 Obligations on Excepted Local Exchange Carriers. –
Notwithstanding any other law, rule, or order, the commission shall have no authority to impose or enforce any obligation on any excepted local exchange carrier that is not also applicable to all other excepted local exchange carriers, excluding providers of commercial mobile radio service, except:
I. Such obligations that arise pursuant to the commission's authority under the Communications Act of 1934, as amended; or
II. Such obligations that arose prior to February 1, 2011 that relate to the availability of broadband services, soft disconnect processes and capital expenditure commitments within the state; or
III. Such obligations that relate to the provision of services to competitive local exchange carriers, interexchange carriers, and wireless carriers, regardless of technology; or
IV. Such obligations that arise under RSA 374:22-p and RSA 374:30, II.

Source. 2012, 177:1, eff. Aug. 10, 2012.