A. The term "public utility" or "utility", when used in the Public Utility Act, shall not include:

(1) any person not otherwise a public utility who furnishes the service or commodity only to that person or that person's employees or tenants, when such service or commodity is not resold to or used by others, or who engages in the retail distribution of natural gas or electricity for vehicular fuel; or

(2) a corporation engaged in the business of operating a railroad and that does not primarily engage in the business of selling the service or commodity but that only incidentally to its railroad business or occasionally furnishes the service or commodity to another under a separate limited or revocable agreement or sells to a utility or municipality for resale, or that sells the service or commodity to another railroad, the state or federal government or a governmental agency, or that sells or gives for a consideration under revocable agreements or permits quantities of water out of any surplus of water supply acquired and held by it primarily for railroad purposes; and such railroad corporation shall not be subject to any of the provisions of the Public Utility Act.

B. The business of any public utility other than of the character defined in Subsection G of Section 62-3-3 NMSA 1978 is not subject to provisions of the Public Utility Act.

History: 1953 Comp., § 68-3-3, enacted by Laws 1967, ch. 96, § 4; 1992, ch. 58, § 9; 1998, ch. 108, § 46; 2019, ch. 196, § 2.

Repeals and reenactments. — Laws 1967, ch. 96, § 4, repealed former 68-3-3, 1953 Comp., relating to limitations on and exceptions from definition of "public utility," and enacted the above section.

Compiler's notes. — Sections 62-3-1 to 62-3-5 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 3 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective. See Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.

The 2019 amendment, effective June 14, 2019, provided that a person who engages in the retail distribution of electricity for vehicular fuel is not a public utility; in Subsection A, Paragraph A(1), after "only to", deleted "himself, his" and added "that person or that person's", and after "natural gas", added "or electricity".

The 1998 amendment, effective January 1, 1999, added new Subsection A, redesignated former Subsection A as Paragraph A(1), and deleted "as amended" following "shall not include:" near the middle of the Subsection; redesignated former Subsection B as Paragraph A(2), and in that Paragraph, deleted "as amended. Nothing contained in that act shall be construed as giving to the commission any powers or jurisdiction over public utilities covered by Section 7 of Article 11 of the constitution of New Mexico" from the end; and added new Subsection B.

The 1992 amendment, effective May 20, 1992, added the subsection designations; added "or who engages in the retail distribution of natural gas for vehicular fuel" at the end of Subsection A; substituted "Subsection G of Section 62-3-3 NMSA 1978" for "Subdivision F of Section 68-3-2 New Mexico Statutes Annotated, 1953 Compilation hereof" in the first sentence of the second paragraph of Subsection B; and made minor stylistic changes throughout the section.

Supplier of water to public is public utility. — In order to preserve the public welfare, any person not engaged solely in interstate business, who operates a facility which supplies water to the public for domestic use, is a public utility unless he supplies water only to himself, his tenants or his employees. Griffith v. N.M.Pub. Serv. Comm'n, 1974-NMSC-024, 86 N.M. 113, 520 P.2d 269.

Railroad furnishing water to town is not regulated by commission. — Public service commission (now public regulation commission) lacks jurisdiction in case in which a railroad which has been furnishing water service to an unincorporated town for years proposes to discontinue the same. 1947 Op. Att'y Gen. No. 47-5054.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority, 85 A.L.R.4th 894.