Generic Investigation into Cable Television Services in State of N.M., In re

• Decision Date: 08 October 1985
• Docket Number: No. 15620,15620
• Citation: 103 N.M. 345,707 P.2d 1155,1985 NMSC 87
• Parties: In re GENERIC INVESTIGATION INTO CABLE TELEVISION SERVICES IN the STATE OF NEW MEXICO. LAS CRUCES TV CABLE, Albuquerque Cable Television, Inc., Wentronics, Inc., d/b/a United Cable TV of Gallup, Santa Fe Cablevision Company, d/b/a United Cable of Santa Fe, Appellants, v. NEW MEXICO STATE CORPORATION COMMISSION, Appellee, and Mountain States Telephone and Telegraph Co., General Telephone Company of the Southwest, Leaco Rural Telephone Cooperative, Inc., and Dell Telephone Cooperative, Inc., Intervenors-Appellees.
• Court: New Mexico Supreme Court

Page 1155

707 P.2d 1155

103 N.M. 345

In re GENERIC INVESTIGATION INTO CABLE TELEVISION SERVICES IN the STATE OF NEW MEXICO LAS CRUCES TV CABLE, Albuquerque Cable Television, Inc. Wentronics, Inc., d/b/a United Cable TV of Gallup Santa Fe Cablevision Company, d/b/a United Cable of Santa Fe Appellants, v. NEW MEXICO STATE CORPORATION COMMISSION, Appellee, and Mountain States Telephone and Telegraph Co., General Telephone Company of the Southwest, Leaco Rural Telephone Cooperative, Inc., and Dell Telephone Cooperative, Inc., Intervenors-Appellees.

No. 15620.

Supreme Court of New Mexico.

Oct. 8, 1985.

[103 NM 346] Campbell & Black, Bruce D. Black, Peter N. Ives, Santa Fe, Fletcher, Heald & Hildreth, David G. Rozzelle, Dan J. Alpert, Washington, D.C., for Las Cruces TV Cable.

Poole, Tinnin & Martin, Robert C. Poole, James R. Scarantino, Albuquerque, Hogan & Hartson, Gardner F. Gillespie, Susan Wing, Richard S. DiSalvo, Washington, D.C., for Albuquerque Cable Television Inc., Wentronics, Inc., and Santa Fe Cable Television Co.

Paul Bardacke, Atty. Gen., R. Michael Barlow, Alex Valdez, Asst. Attys. Gen., Santa Fe, for Corporation Comm.

Sutin, Thayer & Browne, Mary E. McDonald, Daniel A. Najjar, Richard L.C. Virtue, Santa Fe, Cameron R. Graham, NM General Atty. for Mountain States Telephone & Telegraph Co., Albuquerque, for Mountain Bell.

Ward W. Wueste, Jr., General Counsel for Southwest, San Angelo, for General Telephone Co. of the Southwest.

Jones, Gallegos, Snead & Wertheim, James E. Snead, Steven L. Tucker, Santa Fe, for American Petroleum Institute.

Campbell & Black, Bruce D. Black, Peter N. Ives, Santa Fe, Hogan & Hartson, Gardner F. Gillespie, Washington, D.C., for New Mexico Cable Television Assn.

Brenda L. Fox, Carol A. Melton, Michael S. Schooler, David L. Nicoll, Robert St. John Roper, Washington, D.C., Campbell & Black, Bruce D. Black, Peter N. Ives, Santa Fe, for Nat. Cable Television Assn., Inc.

OPINION

FEDERICI, Chief Justice.

This case is before us on removal from the New Mexico State Corporation Commission (Commission) pursuant to N.M. Const. Article XI, Section 7 (Cum.Supp.1985). The proceeding before the Commission was initiated by Mountain States Telephone and Telegraph Company (Mountain Bell) to determine whether cable television systems within the State of New Mexico were providing public utility telephone service, or anticipating providing such service, without the requisite authority from the Commission. After discovery and a full evidentiary hearing, the Commission determined that Albuquerque Cable Television, Inc. and Los Alamos Cable TV Co. were offering public telephone services that fell within the Commission's jurisdiction. In its Decision and Order of August 6, 1984, in Docket No. 1060, the Commission ordered them to "cease and desist in the offering of and providing of public utility telephone service through data transmission until further order of this Commission" and required that any New Mexico cable television company apply for and "be granted a Certificate of Public Convenience and Necessity before performing any construction for furnishing public telephone service and before furnishing any public telephone service to any customer."

Upon the petitions of Los Alamos Cable Television Co., Las Cruces TV Cable, Inc., Albuquerque Cable Television, Inc., Wentronics, Inc., d/b/a United Cable TV of Gallup, and Santa Fe Cable Television Co., d/b/a United Cable of Santa Fe (cable companies), all intervenors before the Commission proceeding, the cause was removed to this Court. Appellees Mountain Bell, General Telephone Co. of the Southwest, Leaco Rural Telephone Cooperative, Inc. and Dell Telephone (telephone companies) were intervenors below. National Cable Television Association, New Mexico Cable Television Association, and the American Petroleum Institute filed briefs with this Court as amici curiae.

The issue presented on appeal is whether the Commission has the authority under the New Mexico Constitution or New Mexico statutes to regulate the cable companies' digital data transmission services. We conclude that intrastate digital data transmission services, provided to consumers by New Mexico cable companies on a contract basis for compensation, may properly be subject to regulation by the Commission.

The service provided by the cable companies is known as digital high speed data transmission. Such service is utilized, for example, in computer-aided design, computer-aided manufacturing, high speed remote printing, video teleconferencing and facsimile transmission. Cable television systems have extremely wide bandwidths, giving them the ability to carry a large number of program channels and the capability to use excess capacity for high speed data transmission. The ordinary, "switched voice" telephone system is essentially "narrowband" and not well suited for high speed data transmission. Mountain Bell has constructed several facilities in New Mexico, distinct from the ordinary telephone network, to provide high speed data transmission to individual customers. At the time of the Commission's order, Albuquerque Cable Television was also providing such services, on an experimental basis, between Digital Equipment Corporation and the University of New Mexico, and Los Alamos Cable Television was extending a line to link Los Alamos National Laboratories with the Mesa School. If the line is completed, the Laboratory is to pay monthly line lease charges to Los Alamos Cable, as well as installation and construction charges.

The Commission determined that its jurisdiction over the cable companies' high speed data transmission services was derived from the New Mexico State Constitution, N.M. Const. Article XI, Section 7 (Cum.Supp.1985), and from the Telephone and Telegraph Company Certification Act, NMSA 1978, Sections 63-9-1 to -19 (Certification Act).

Since the date of the Order and the time the initial briefs were filed in this appeal, the Certification Act was amended to apply only to mobile telephone and radio paging services. NMSA 1978, Sec. 63-9-2 (Cum.Supp.1985). The Certification Act, therefore, no longer applies to the type of services in question in this case, and those issues raised by the cable companies on appeal relating to the Certification Act are now moot.

The cable companies are currently affected, however, by the recently passed New Mexico Telecommunications Act, NMSA 1978, Sections 63-9A-1 to -20 (Cum.Supp.1985) (Telecommunications Act), which became effective June 14, 1985. The Telecommunications Act gives the Commission jurisdiction over all "public telecommunications services" except for "such service[s], by a person or entity for the sole and exclusive use of that person or entity and not for resale, directly or indirectly." Secs. 63-9A-3(C) to -5. The Telecommunications Act defines "public telecommunications service" as "the transmission of signs, signals, writings, images, sounds, messages, data or other information of any nature by wire, radio, lightwaves, or other electromagnetic means originating and terminating in this state regardless of actual call routing." Sec. 63-9A-3(B). High speed data transmission services of cable companies fall within the scope of this definition.

After passage of the Telecommunications Act, Mountain Bell filed with this Court a motion to dismiss, and in support of its motion argued that judicial review should be denied until the cable companies exhaust their administrative remedies and until such time as the Commission determines the effect of the Telecommunications Act on the operations of cable companies. Las Cruces TV Cable responded that the passage of the Telecommunications Act has not changed the basic jurisdictional question. We agree. Although the mechanics for regulation have been changed by statute, the question still remains whether N.M. Const. Article XI, Section 7 (Cum.Supp.1985) grants the Commission jurisdiction over providers of digital high speed data transmission services. Mountain Bell's motion to dismiss is denied.

I. The Constitutional Jurisdiction of the Commission.

The New Mexico Constitution grants the Commission the following powers:

The commission shall have power and be charged with the duty of fixing, determining, supervising, regulating and controlling all charges and rates of railway, express, telegraph, telephone, sleeping car and other transportation and transmission companies and common carriers within the state and of determining any matters of public convenience and necessity relating to such facilities as expressed herein in the manner which has been or shall be provided by law * * *. (Emphasis added.)

N.M. Const. art. XI, Sec. 7 (Cum.Supp.1985). It is the cable companies' position that this constitutional provision conveys jurisdiction only over enterprises that have traditionally held themselves out for hire to the public as common carriers. We disagree.

In construing the New Mexico Constitution, this Court must ascertain the intent and objectives of the framers. Board of County Commissioners v. McCulloh, 52 N.M. 210, 195 P.2d 1005 (1948). Although a court may not broaden the scope of constitutional provisions beyond their intent, Board of Education v. Robinson, 57 N.M. 445, 259 P.2d 1028 (1953), the Constitution, by its very nature, has some flexibility. Words employed are not necessarily fixed in meaning, but over the years may change and grow to reflect changes in the conditions and knowledge of modern society. Humana of New Mexico, Inc. v. Board of County Commissioners, 92 N.M. 34, 582 P.2d 806 (1978).

Various interpretations of the phrase "telephone, sleeping-car and other transportation and transmission companies and common carriers" have been urged upon us. Although the Constitution does not define "telephone companies" or "transmission companies," this Court has previously determined that transmission companies refers to companies, like telephone...