No utility shall abandon all or any portion of its facilities subject to the jurisdiction of the commission, or any service rendered by means of such facilities, without first obtaining the permission and approval of the commission. The commission shall grant such permission and approval, after notice and hearing, upon finding that the continuation of service is unwarranted or that the present and future public convenience and necessity do not otherwise require the continuation of the service or use of the facility; provided, however, that ordinary discontinuance of service or use of facilities for nonpayment of charges, nonuser or other reasons in the usual course of business shall not be considered as abandonment. In considering the present and future public convenience and necessity, the commission shall specifically consider the impact of the proposed abandonment of service on all consumers served in this state, directly or indirectly, by the facilities sought to be abandoned.

History: Laws 1941, ch. 84, § 48; 1941 Comp., § 72-703; 1953 Comp., § 68-7-3; Laws 1983, ch. 250, § 3; 2005, ch. 276, § 1.

Compiler's notes. — Sections 62-9-1 to 62-9-7 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 6 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 Chapter 108, Section 82 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective.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 Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.

Cross references. — For definition of "commission," see 62-3-3 NMSA 1978.

For denial of service by public utility being petty misdemeanor, see 30-13-2 NMSA 1978.

The 2005 amendment, effective June 17, 2005, provided that in considering public necessity, the commission shall consider the impact the abandonment of service on all customers served, directly or indirectly, by the facilities sought to be abandoned.

The 1983 amendment deleted "regulated" at the end of the catchline and rewrote the text of the section.

Constitutionality of commission's actions. — Exclusion of an electric utility's interest in a generating facility from its rate base, coupled with the commission's refusal to decertify the facility, did not violate the due process provisions or the takings clauses of the New Mexico and United States constitutions. Public Serv. Co. v. Public. Serv. Comm'n, 1991-NMSC-083, 112 N.M. 379, 815 P.2d 1169.

Construction of section. — The first part of this section refers to "continuation of service", while the second part addresses "continuation of the service or use of the facility". Thus, the section is written in the disjunctive to provide not for alternative bases upon which decertification of facilities is authorized, but for distinct factual scenarios giving rise to abandonment. Public Serv. Co. v. Public. Serv. Comm'n, 1991-NMSC-083, 112 N.M. 379, 815 P.2d 1169.

Jurisdiction of municipal condemnation of public utility. — This section and Section 62-6-12A(4) NMSA 1978 (sale of assets) do not give the commission jurisdiction over municipal condemnations of regulated water and sewer utilities. United Water N.M., Inc. v. N.M. Pub. Util. Comm'n, 1996-NMSC-007, 121 N.M. 272, 910 P.2d 906.

Certificate is no longer necessary for abandonment of service; all that is required is the commission's permission and approval. Gonzales v. Public Serv. Comm'n, 1985-NMSC-038, 102 N.M. 529, 697 P.2d 948.

Application to sale of vacant land. — Sale of 41 vacant acres within 2,564-acre electric utility site was not an "abandonment" of a "facility," and did not require the permission and approval of the commission. Plains Elec. Generation & Transmission Coop. v. N.M. Pub. Util. Comm'n, 1998-NMSC-038, 126 N.M. 152, 967 P.2d 827.

Burden of proof. — Utility, as the movant for abandonment, bore the burden to establish the factual predicate upon which the commission could base its decision to grant or deny abandonment. Public Serv. Co. v. Public Serv. Comm'n, 1991-NMSC-083, 112 N.M. 379, 815 P.2d 1169.

Utility's assertion that "exclusion from rates of the 26.10% interest in that unit . . . represents a loss in terms of capital costs alone of $19.8 million a year" fell short of the required showing, where the utility failed to demonstrate with any degree of certainty the overall impact continued regulation had on its financial condition. Public Serv. Co. v. Public Serv. Comm'n, 1991-NMSC-083, 112 N.M. 379, 815 P.2d 1169.

Law reviews. — For note, "United Water New Mexico v. New Mexico Public Utility Commission: Why Rules Governing the Condemnation and Municipalization of Water Utilities May Not Apply to Electric Utilities," see 38 Nat. Res. J. 667 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 64 Am. Jur. 2d Public Utilities § 328.

Discontinuance of entire service, 11 A.L.R. 252.

Discontinuance of one of several different kinds of service, 21 A.L.R. 578.

Right to cut off water supply from one tenant on nonpayment by another, 28 A.L.R. 489.

Duty of public utility to notify patron in advance of temporary suspension of service, 52 A.L.R. 1078.

Damages for wrongfully shutting off gas, 108 A.L.R. 1188.

Right of user of public utility discontinuing use, 112 A.L.R. 230.

Right of utility on expiration of street franchise by limitation to discontinue service, 112 A.L.R. 631.

Right of public utility to discontinue line or branch on ground that it is unprofitable, 10 A.L.R.2d 1121.

Right to shut off one served by common service pipe for nonpayment by another, 19 A.L.R.3d 1227.

Right of public utility to discontinue or refuse service at one address because of refusal to pay for past service rendered at another, 73 A.L.R.3d 1292.

Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.

73B C.J.S. Public Utilities §§ 69, 73.