"Noncompetitive service" defined.
"Emerging competitive service" defined.
"Fully competitive service" defined.
"Price regulation" defined--Determination of fair and reasonable price.
Unsolicited telephone call defined.
Established business relationship defined.
Applicability of statutes to telecommunications companies.
General supervision of telecommunications companies offering common carrier
services by commission where not preempted--Filing application with
commission--Demonstration of capabilities--Rules--Offering services without
certificate of authority as misdemeanor.
Approval required for discontinuance of noncompetitive telecommunications
Waiver, modification, etc., of rules and orders for fully competitive or emerging
competitive service--Application for classification--Factors in determining
classification--Time for approval or denial.
Investigation of telecommunications services--Ninety-day period--Reclassification--Burden of proof--Reclassification after 90 days.
Reclassification proceeding--Factors in determining reclassification--Burden of
proof--Stay of price change--Penalties and costs for spurious petition.
Determination and approval of rates and prices by commission--Attribution of
revenues, investments and expenses--Rules.
Hearings on price regulation--Petition--Adoption of price regulation for
Uniform prices for intrastate interexchange telecommunications services--Volume discounts--Taxes.
Accounts of other businesses--Consideration by commission--Disallowance of
unreasonable profits--Burden of proof.
Promulgation of rules for conduct of business.
Telecommunications cooperatives, municipal telephone systems and independent
telephone companies--Election to be regulated by commission.
Independent telecommunications companies--Petition by subscribers for election
to be regulated by commission.
Independent telecommunications companies--Procedure for election by
subscribers to be regulated by commission.
Independent telecommunications companies--"Subscribers" defined.
Valuation of company property.
Improvement of business and equipment--Notice to company from commission.
Powers and duties of commission.
Liability for damages unaffected.
Court order to testify or produce records--Violation as contempt.
Obstruction of commission--Civil fine.
49-31-8, 49-31-9. Repealed.
Delivery of messages to persons intended--Care required.
Discrimination prohibited--Civil fine.
Commission to make rate or price schedule--Different rates or prices for different
companies or services--Revision of rates--Notice to companies.
Tariff as prima facie evidence of reasonableness--Commission certified as true
Duties of regulated companies concerning publication and filing of rates or
Failure to file tariffs and agreements--Mandamus.
Filing of new or changed tariff--Procedures for commission.
Filing of new schedule affecting emerging competitive service--Notice and
hearing--Suspension or disapproval of price or practice.
Deposits into regulatory assessment fee fund.
Tariffs for telecommunications services other than emerging and noncompetitive
Availability of telecommunications services information--Notification of adverse
change in rates, terms, or conditions.
Access to telecommunications facilities--Application to commission--Order
requiring access--Apportionment of expenses.
Access provided to companies doing business in same vicinity--Discrimination
Tariff of access charges--Approval by commission.
Merger, consolidation, or transfer of stock or other ownership interests--Notification.
49-31-22 to 49-31-24. Transferred.
Disclosure of contents, refusal to send or forging receipt of message as
misdemeanor--Judicially ordered disclosure excepted.
Disclosure of message without written permission of sender or addressee as
misdemeanor--Judicial disclosure excepted.
Party line and emergency calls--Definitions.
Intentional refusal to relinquish party line in emergency as misdemeanor.
"Communication device" and "emergency" defined.
Interference with emergency communication--Violation a misdemeanor.
Securing line by claiming nonexistent emergency as misdemeanor.
Threatening or harassing contacts by telephone or other electronic
communication device as misdemeanor.
Electronic communication device defined.
Obscene telephone calls--Failure to replace receiver--Prima facie evidence of
Dial-a-porn communications prohibited--Violation as misdemeanor.
Liability of persons for illegal use of telephone or facility under their control--Violation as misdemeanor.
Each day of violation constitutes separate offense.
Place of commission of offense committed by telephone or other electronic
Severability and saving clause respecting unlawful telephone calls.
Manufacture, possession or transfer of instrument for fraudulently obtaining
telecommunications service as misdemeanor.
Obtaining telecommunications service without payment as theft.
Violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or
regulation concerning telecommunication company regulation--Civil fine.
Intentional violation of provision of chapters 49-1A, 49-13, and 49-31 and of
order, rule, or regulation of commission--Civil fine.
Additional penalty for violations--Forfeiture of franchise--Foreign corporations.
Action by attorney general to forfeit franchise or enjoin transaction of business.
, 49-31-40. Repealed.
Security on stay of order--Conditions.
Proceedings before circuit court on appeal--Priority.
Creation of telecommunications investigation fund--Purposes of fund--Deposit
by telecommunications company.
Payment of investigation and hearing expenses--Procedure for payment--Accounting of company's deposit--Notice and order as to amount to be returned.
Payment for participation in federal proceedings.
Communication devices and services provided to persons with disabilities.
Telecommunication or communication device for individuals with disabilities--Dual party relay system.
Telecommunication or communication device remains property of state for three
Telecommunication funds for persons with hearing and other disabilities--Continuous appropriation.
Use of funds appropriated pursuant to § 49-31-50.
Rules relating to cochlear implants.
Approval of vouchers--Warrants.
Access fee imposed on local exchange service lines, cellular telephones and radio
pager devices--Report of fee on monthly bills--Report on and remission of fees--Disposition of funds collected.
Promulgation of rules to administer access fee.
Liability for uncollected fees.
Annual review of access fee--Report to legislature.
Administrative cost for collection of fee.
Sources of funds in addition to access fees.
Method of payment of expenditures.
Promulgation of rules regarding telecommunications and communication services
Penalty for pleading filed for improper purpose--Sanction by commission.
Alternative methods of assigning costs for certain services.
Procedures for approving sale of telecommunications exchanges.
Legislative intent--Joint provisioning and revenue-pooling arrangements--Commission review and approval--Exemptions--Construction.
Telecommunications infrastructure--Legislative intent.
Public Communications Network Infrastructure--Composition.
to 49-31-68. Repealed.
Certificate of authority for construction of telecommunications facility--Extension outside local exchange service area application--Amended certificate.
Application for certificate of authority--Notice.
Certificate of authority--Notice and hearing.
Certificate of authority--Time limit for decision.
Rural service areas--Services--Waiver.
Certificate of authority--Retroactive application--Alterations or additions.
Certificate of authority--Commission approval--Violations.
Commission to adopt rules addressing competitive provisions.
Commission may promulgate rules establishing service quality standards.
Commission shall designate eligible telecommunications carrier for service area--Right to relinquish designation.
Requirements of rural telephone company.
Suspension or modification to carrier with small service area.
Carrier to provide services to competitive telecommunications services provider.
Certain resale restrictions permitted.
Telecommunications companies may form associations--Policy restrictions.
Telecommunication companies may grant incentives to meet competition.
Commission to establish quality of service standards.
Restrictions on price changes for local exchange service--Exemption for
Limitation on promotions.
Exemption of § 49-31-86 to take effect December 31, 2000 for certain carriers.
Dialing parity to be implemented.
Companies not exempt from state or federal law.
Telecommunications company, services or product not to be changed without
subscriber authorization--Evidence of authorization--Commission authorized to
promulgate rules--Scope of rules.
Criteria to be met by third-party verification company.
Separate authorization required for each service.
Subscriber not liable for unauthorized change of carrier, products or services--Company to compensate subscriber.
Penalties for violation--Disposition of fines collected.
Commission authorized to investigate complaints.
Costs of commission proceedings may be assessed against company--Objection.
Agencies to establish cost recovery mechanism for certain mandated services--Exemption.
Requirements for telephone solicitors making unsolicited calls.
Operation of and subscription to register--Fees.
State "do-not-call" register.
Copy of register required for telephone solicitors making unsolicited calls.
Commission may use national "do-not-call" registry.
Telephone solicitation account established.
Annual fee for unsolicited calls by telephone solicitors.
Commission may use gross receipts tax fund for implementation--Funds to be
returned after register implemented.
Telecommunications companies to notify customers of certain provisions.
Violators subject to civil penalty imposed by commission.
Local telecommunications traffic signaling information required to be provided
by originating carrier to terminating carrier to assess charges.
Nonlocal telecommunications traffic signaling information required to be
provided by originating carrier to terminating carrier to assess charges.
Transiting carrier required to deliver signaling information with
telecommunications traffic--Liability for failure to deliver.
Transit traffic or billing records to be provided by transiting carrier.
Complaint procedure--Provisional remedies.
Promulgation of rules.
Required notice to subscribers of automatic renewal dates in certain
Commission disbursement of certain bond or other proceeds to affected
Wireless telephone number information in wireless directory assistance service
database--Authorization for inclusion or sale.
Charge for exclusion of number from wireless directory assistance service
Obtaining confidential communications records without authorization from
customer as misdemeanor.
Selling confidential communications records without authorization from
customer as felony.
Law enforcement permitted to obtain confidential communications records
pursuant to subpoena or court order.
Communications provider permitted to obtain confidential communications
records through agents.
Communications provider permitted to obtain confidential communications
records in connection with sale of business or migration of customer.
Civil action for violation--Double damages, costs, and attorney's fees.
Terms used in this chapter mean:
(1) "Addressable," enabling users to connect and communicate with a specific party easily and securely on a dial-up, addressable basis;
(2) "Available," ensuring that network services are available if the user requires them, even at times of peak usage; designed to be a nonblocking network, minimizing network contention;
(3) "Broadband network," the broadband network extends the range of fully switched, addressable, robust transport services over the fiber network which increase in multiples of OC-1 (51.84 Mbps), including OC-3 (155.52 Mbps) and OC-12 (622.08 Mbps);
(4) "Centron and centron-like services," services which provide custom switching features which include distributive dial tone, select number screening, toll restriction and screening, nonattendant busy out, nonattend and call transfer, and select trunk hunting and screening;
(5) "Commission," the Public Utilities Commission;
(6) "Common carrier," anyone who offers telecommunications services to the public;
(7) "Eligible telecommunications carrier," a local exchange carrier designated by the commission pursuant to 47 U.S.C. § 214(e) as of January 1, 1998, as eligible to receive universal service support funding;
(8) "Feature rich," providing the specific features and functionality required by users' voice, data, video, graphics, imaging, and multimedia applications; functionally beyond mere transport;
(8A) "Financial institution," any financial institution as defined in 15 U.S.C. § 6827 as of January 1, 2003, including any financial institution affiliate that controls, is controlled by, or is under common control with the financial institution;
(9) "Incumbent local exchange carrier," a local exchange carrier, including successors and assigns, which was providing local exchange service within a defined service area in this state on or before February 8, 1996;
(10) "Interexchange telecommunications service," telecommunications service between points in two or more exchanges;
(11) "LATA," a local access and transport area;
(12) "Local exchange area," any geographic area established by a local exchange carrier as filed with or approved by the commission for the administration of local telecommunications service which may consist of one or more central offices or wire centers together with associated facilities used in furnishing telecommunications service in that area;
(13) "Local exchange service," the access to and transmission of two-way switched telecommunications service within a local exchange area;
(13.5) "Mobile telecommunications service," any commercially available interconnected mobile phone service that provides access to the public switched telephone network through mobile communications devices employing radio wave technology to transmit calls;
(14) "Narrowband network," a fully switched digital network covering the transport range from 0 to 144,000 bits per second (144 Kbps), offering two 64 Kbps information B (Bearer) channels and a 16 Kbps signaling D (Delta) channel;
(15) "New products and services," any new product or service introduced after July 1, 1988, which is not functionally required to provide local exchange service. Repackaging of any product or service which is fully competitive with any service regulated as emerging competitive or noncompetitive is not considered a new product or service;
(16) "Optional service," any limited or discretionary service offered by a telecommunications company which is not functionally required for the provision of noncompetitive services and which the customer has the option to purchase;
(17) "Private," ensuring confidentiality and integrity of network transport of messages without dependency on specialized customer premise security devices;
(18) "Rate of return regulation," the procedure used by the commission to approve the charge for a service which gives due consideration to the public need for adequate, efficient, and reasonable service and to the need of the public utility for revenues sufficient to enable it to meet its total current cost of furnishing such service, including taxes and interest, and including adequate provision for depreciation of its utility property used and necessary in rendering service to the public, and to earn a fair and reasonable return upon the value of its property;
(19) "Register," a list of names and telephone numbers of residential telephone subscribers who have properly enrolled to prevent unsolicited telephone calls;
(20) "Residential telephone subscriber," any person residing in the state who has residential telephone service, including cellular service, personal communications service, and wireless local loop service, primarily used for personal use;
(21) "Robust," easily and economically sustaining the rigors of growth and extensive public use;
(22) "Rural telephone company," any local exchange company as defined in 47 U.S.C. § 153(37) as of January 1, 1998;
(23) "Secure," physically precluding unwanted access to network and information;
(24) "Service area," a geographic area established by the commission for the purpose of determining universal service obligations and support mechanisms. For a rural telephone company, the service area is the company's study area or any other area designated jointly by the commission and the Federal Communications Commission pursuant to 47 U.S.C. § 214(e)(5) as of January 1, 1998;
(25) "Standard," supporting universal interfaces and networking standards and protocols of generally accepted standards setting bodies;
(26) "Switched," providing circuit, packet, or channel type switching, each suited to specific application requirements;
(27) "Switched access," any exchange access service purchased for the origination and termination of interexchange telecommunications services which includes central office switching and signaling, local loop facility, or local transport;
(28) "Telecommunications company," any person or municipal corporation owning, operating, reselling, managing, or controlling in whole or in part, any telecommunications line, system, or exchange in this state, directly or indirectly, for public use. For purposes of this definition the term, for public use, means for the use of the public in general or for a specific segment of the public, or which connects to the public in general or for a specific segment of the public, or which connects to the public switched network for access to any telecommunications service;
(29) "Telecommunications service," the transmission of signs, signals, writings, images, sounds, messages, data, or other information of any nature by wire, radio, lightwaves, electromagnetic means, or other similar means. It does not include the provision of terminal equipment used to originate or terminate such service, broadcast transmissions by radio, television, and satellite stations regulated by the Federal Communications Commission and one-way cable television service;
(30) "Telephone solicitation call," any call made to a South Dakota consumer by a telephone solicitor, originating from South Dakota or elsewhere, for the purpose of soliciting a sale of any consumer goods or services to the person called, for the purpose of soliciting an extension of credit for consumer goods or services to the person called, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services to the person called or an extension of credit for such purposes;
(31) "Telephone solicitor," any person or organization who individually or through salespersons, makes or causes to be made a telephone solicitation call. This term does not include any not-for-profit or charitable organization exempt from federal income taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 as of January 1, 2003, which makes telephone calls solely to solicit a charitable donation;
(32) Repealed by SL 2007, ch 266, § 3.
(33) "Wideband network," the wideband network extends the range of fully switched, digital, addressable information transport from the 144 Kbps to the DS3 rate of 44.736 Mbps, including the DS1 and DS2 rates of 1.544 Mbps and 6.312 Mbps, respectively.
(34) "Wireless telephone number information," the telephone number, electronic address, and any other identifying information by which a calling party may reach a subscriber of mobile telecommunications service, and that is assigned by a mobile telecommunications service provider to a subscriber, and includes the subscriber's name and address.
Source: SDC 1939, §§ 52.0201, 52.1301; SDCL § 49-3-1; SL 1979, ch 307, § 17; SL 1982, ch 329, § 1; SL 1987, ch 345, § 41; SL 1988, ch 375, § 1; SL 1997, ch 266, § 2; SL 1998, ch 274, §§ 1, 2, 3, 4; SL 1999, ch 224, § 1; SL 2003, ch 238, § 1; SL 2005, ch 243, § 1; SL 2007, ch 266, § 3.
49-31-1.1. "Noncompetitive service" defined.
For the purposes of this chapter, "noncompetitive service" is a monopoly service for which no competition exists or the regulation of which is necessary to insure affordable local exchange service. Such services include:
(1) Residential local exchange service;
(2) Business local exchange service;
(3) Agribusiness local exchange service;
(4) Emergency services;
(5) Public and semipublic coin telephone service; and
(6) All services not otherwise listed in §§ 49-31-1.2 and 49-31-1.3.
Source: SL 1988, ch 375, § 2.
49-31-1.2. "Emerging competitive service" defined.
For the purposes of this chapter, "emerging competitive service" is a service that satisfies the criteria of § 49-31-3.2 and which has alternative services available to over twenty percent of the company's customers for that service. Such services include:
(1) Inter-LATA message toll service and intra-LATA message toll service;
(2) Inter-LATA wide area telephone service and intra-LATA wide area telephone service; and
(3) New products and services not functionally required to provide local exchange service.
Source: SL 1988, ch 375, § 3.
49-31-1.3. "Fully competitive service" defined.
For the purposes of this chapter, "fully competitive service" is a service that satisfies the criteria of § 49-31-3.2 and which has alternative services available to over fifty percent of the company's customers for that service or which is of limited scope or so discretionary in nature that regulation is not warranted. Such services include:
(1) Cellular radio services;
(2) Centron and centron-like services;
(3) Billing and collections;
(4) Optional services;
(5) Private line and special access; and
(6) Premise cable and inside wire.
Source: SL 1988, ch 375, § 4.
49-31-1.4. "Price regulation" defined--Determination of fair and reasonable price.
For the purposes of this chapter, "price regulation" is the procedure used by the commission to approve the charge for an emerging or noncompetitive telecommunications service which is not based on rate of return regulation. In determining whether the price is fair and reasonable, the commission shall determine and consider the price of alternative services, the overall market for the service, the affordability of the price for the service in the market it is offered, and the impact of the price of the service on the commitment to preserve affordable universal service. In determining the price for an emerging competitive service, the commission shall also consider the actual cost of providing the service. In determining the price for a noncompetitive service, the commission shall also consider the fully allocated cost of providing the service.
Source: SL 1988, ch 375, § 6; SL 1992, ch 328, § 1.
49-31-1.5. Unsolicited telephone call defined.
For the purposes of this chapter, the term, unsolicited telephone call, means any telephone solicitation call other than a call made:
(1) In response to an express request of the person called;
(2) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such call; or
(3) To any person with whom the telephone solicitor, or any business or financial institution on whose behalf the telephone call is being made has an established business relationship.
Source: SL 2007, ch 266, § 1.
49-31-1.6. Established business relationship defined.
For purposes of § 49-31-1.5, an established business relationship means a prior or existing relationship:
(1) Formed by the person's purchase or transaction with the telephone solicitor, or any business or financial institution on whose behalf the call is made, within the eighteen months immediately preceding the date of the telephone call; or
(2) Formed on the basis of the person's inquiry or application regarding products or services offered by the telephone solicitor, or any business or financial institution on whose behalf the call is made, within the three months immediately preceding the date of the call.
The relationship must not have been previously terminated by either party.
Source: SL 2007, ch 266, § 2.
49-31-2. Applicability of statutes to telecommunications companies.
The provisions of chapters 49-7 to 49-13, inclusive, and this chapter apply to all telecommunications companies and to all telecommunications lines and facilities of any kind, character or description in use by any corporation, receiver, trustee, or other person operating a telecommunications company, whether owned or operated under contract, agreement, lease or otherwise.
Source: SDC 1939, §§ 52.0201, 52.1301; SDCL, § 49-3-3; SL 1979, ch 307, § 19; SL 1987, ch 345, § 42; SL 1992, ch 328, § 2.
49-31-3. General supervision of telecommunications companies offering common carrier services by commission where not preempted--Filing application with commission--Demonstration of capabilities--Rules--Offering services without certificate of authority as misdemeanor.
The commission has general supervision and control of all telecommunications companies offering common carrier services within the state to the extent such business is not otherwise regulated by federal law or regulation. The commission shall inquire into any complaints, unjust discrimination, neglect, or violation of the laws of the state governing such companies. The commission may exercise powers necessary to properly supervise and control such companies.
Each telecommunications company that plans to offer or provide interexchange telecommunications service shall file an application for a certificate of authority with the commission pursuant to this section. Telecommunications companies seeking to provide any local exchange service shall submit an application for certification by the commission pursuant to §§ 49-31-1 through 49-31-89. The commission shall have the exclusive authority to grant a certificate of authority. Each telecommunications company shall submit a two hundred fifty dollar application fee with its application which shall be deposited into the gross receipts tax fund established pursuant to § 49-1A-2. Unless an evidentiary hearing is required by the commission, the commission shall act on an application for a certificate of authority to provide interexchange telecommunications service within sixty days of receiving a complete application. If an evidentiary hearing is required, the commission shall act on the application within one hundred twenty days of receipt of a complete application. A telecommunications company has the burden to prove in its application that it has sufficient technical, financial and managerial capabilities to offer the telecommunications services described in its application before the commission may grant a certificate of authority. The commission may rule upon a telecommunications company's application for a certificate of authority with or without hearing.
Any certificate of authority granted by the commission may be suspended or revoked pursuant to chapter 1-26 for a willful violation of the laws of this state, a willful failure to comply with a rule or order of the commission, or other good cause. The commission shall, by rules promulgated pursuant to chapter 1-26, prescribe the necessary procedures to implement this section. A telecommunications company that had lawful authority immediately prior to July 1, 1998, to provide interexchange telecommunications services shall continue to have such authority. Any certificate of authority to provide such telecommunications service may not be sold, assigned, leased, or transferred without commission approval. The offering of such telecommunications services by a telecommunications company without a certificate of authority or inconsistent with this section is a Class 1 misdemeanor.
Source: SDC 1939, §§ 52.0202, 52.1302; SDCL, § 49-3-4; SL 1979, ch 307, § 20; SL 1987, ch 345, § 43; SL 1988, ch 375, § 7; SL 1992, ch 328, § 3; SL 1994, ch 352, § 9; SL 1998, ch 274, § 5; SL 1998, ch 275, § 1; SL 2005, ch 244, § 1.
49-31-3.1. Approval required for discontinuance of noncompetitive telecommunications service.
A telecommunications company may not discontinue any noncompetitive telecommunications service without the express approval of the commission. A telecommunications company need only notify the commission of the discontinuance of any emerging competitive telecommunications service.
Source: SL 1988, ch 375, § 8; SL 1992, ch 328, § 4.
49-31-3.2. Waiver, modification, etc., of rules and orders for fully competitive or emerging competitive service--Application for classification--Factors in determining classification--Time for approval or denial.
The commission, after notice and hearing, shall waive, eliminate or modify any of its rules or orders affecting telecommunications services if it finds that a telecommunications service is a fully competitive service or an emerging competitive service. A person, or the commission on its own motion, may apply to have an emerging competitive service of a telecommunications company classified as a fully competitive service or a noncompetitive service classified as an emerging competitive service or a fully competitive service. The application shall be filed with the commission and served on any other person designated by the commission. The application shall be in a form prescribed by the commission. The commission, in determining how a telecommunications service is to be classified, shall consider:
(1) The number and size of alternative providers of the service and the affiliation to other providers;
(2) The extent to which services are available from alternative providers in the relevant market;
(3) The ability of alternative providers to make functionally equivalent or substitute services readily available at competitive rates, terms, and conditions of service;
(4) The market share, the ability of the market to hold prices close to cost, and other economic measures of market power; and
(5) The impact on universal service.
The commission shall approve or deny any such application within ninety days after the filing of the application. However, the commission may, by order, defer the period within which it must act for one additional period of ninety days, upon a finding that the proceeding cannot be completed within ninety days and that the additional time period is necessary for the commission to adequately and completely fulfill its duty under this title. If the commission has not acted on any such application within the appropriate time period permitted, the application shall be deemed granted.
Source: SL 1988, ch 375, § 9; SL 1992, ch 328, § 5.
49-31-3.3. Investigation of telecommunications services--Ninety-day period--Reclassification--Burden of proof--Reclassification after 90 days.
The commission may, within ninety days after July 1, 1988, conclude an investigation into any or all of the telecommunications services listed in §§ 49-31-1.1, 49-31-1.2, and 49-31-1.3 to determine if any service is properly classified pursuant to the standards found in subdivisions 49-31-3.2(1) to (5), inclusive. The commission may, after notice and hearing, reclassify any service to conform the classification of the service to the evidence and the standards in § 49-31-3.2. The telecommunications company providing the service has the burden of proving the classification is appropriate. During this ninety-day period, any service subject to the investigation will remain under rate of return regulation. Upon expiration of the ninety-day period, reclassification of any service, even if hearings had commenced within the ninety days, will be pursuant to the provisions of § 49-31-3.4.
Source: SL 1988, ch 375, § 5.
49-31-3.4. Reclassification proceeding--Factors in determining reclassification--Burden of proof--Stay of price change--Penalties and costs for spurious petition.
The commission, on its own motion or upon petition, shall commence regulation or reclassify a telecommunications service previously classified by the Legislature or the commission as a fully competitive service or an emerging competitive service if, after hearing or investigation, the commission finds:
(1) That the market for that emerging competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over twenty percent of the telecommunications company's customers for that service; or
(2) That the market for that fully competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over fifty percent of the telecommunications company's customers for that service.
In any proceeding to reclassify a telecommunications service, the person initiating the petition has the burden of proving that the existing classification is inappropriate, except the telecommunications company providing the service has the burden of proving that the classification is appropriate if the proceeding is commenced by the commission on its own motion. Upon the filing of a petition under this section and upon application, the commission may enter an order staying a price change, for not more than thirty days, for the disputed service pending a hearing on the merits of the petition, for reasonable cause shown. If a petition under this section is found to be spurious or vexatious, the commission may assess reasonable penalties and costs against the petitioning party, which may include reasonable attorney fees. However, the penalties and costs may not be assessed against the commission.
Source: SL 1988, ch 375, § 10; SL 1992, ch 328, § 6.
49-31-4. Determination and approval of rates and prices by commission--Attribution of revenues, investments and expenses--Rules.
Any charge established for the provision of telecommunications services shall be fair and reasonable. The commission shall determine and approve individual rates to be charged by any telecommunications company for a noncompetitive service pursuant to § 49-31-1.4, if applicable, and pursuant to §§ 49-31-12, 49-31-12.2 and 49-31-12.4. Except as provided in § 49-31-4.1, the commission shall utilize rate of return regulation when determining the charge for a noncompetitive service.
The commission shall determine and approve individual prices to be charged by a telecommunications company for any emerging competitive service pursuant to §§ 49-31-1.4, 49-31-12, 49-31-12.2 and 49-31-12.5. However, there is no rate of return regulation of emerging competitive services and no rate of return or price regulation of fully competitive services.
The commission shall separate, assign and distribute a telecommunications company's revenues, investments, and expenses among all services offered. The commission shall, by rules promulgated pursuant to chapter 1-26, prescribe the methodologies by which a telecommunications company shall segregate its revenues, investments and expenses. The methodologies prescribed by the rules shall be in accord with federal and state law. No telecommunications company may use the revenues from emerging competitive services to subsidize fully competitive services or revenues from noncompetitive services to subsidize emerging competitive services or fully competitive services. Expenses and investment of fully competitive services may not be attributed to emerging competitive services or noncompetitive services and the expenses and investment of emerging competitive services may not be attributed to noncompetitive services.
Rates being charged by a telecommunications company on July 1, 1988, shall be deemed to be the fair, reasonable, and effective rates until changed or altered pursuant to this chapter.
Source: SDC 1939, § 52.1302; SL 1987, ch 345, § 44; SL 1988, ch 375, § 11; SL 1992, ch 328, § 7.
49-31-4.1. Hearings on price regulation--Petition--Adoption of price regulation for noncompetitive service.
The commission shall, on its own motion or upon petition, hold public hearings investigating methods of price regulation consistent with § 49-31-1.4 and chapter 1-26. Within thirty days of its receipt of a petition filed pursuant to this section, the commission shall issue a procedural schedule setting forth dates by which written direct testimony or data shall be filed and ordering the date for commencement of a hearing.
If the investigation indicates that pricing regulation is appropriate for any noncompetitive service because such regulation has a positive impact on universal service and is more reasonable and fair than rate of return regulation, the commission may adopt pricing regulation for any such noncompetitive service.
Source: SL 1988, ch 375, § 12; SL 1992, ch 328, § 8.
49-31-4.2. Uniform prices for intrastate interexchange telecommunications services--Volume discounts--Taxes.
A telecommunications company providing intrastate interexchange telecommunications services shall charge uniform prices on all routes where it offers the services. However, notwithstanding this section and § 49-31-11, a telecommunications company may offer or provide volume discounts and may pass through any state, municipal or local taxes in the specific geographic areas from which the taxes originate.
Source: SL 1988, ch 375, § 13; SL 1992, ch 328, § 9.
49-31-4.3. Accounts of other businesses--Consideration by commission--Disallowance of unreasonable profits--Burden of proof.
Each telecommunications company engaged directly or indirectly in any business other than that of providing telecommunications service shall keep and, if requested by the commission, render separately to the commission, in like manner and form the relevant accounts of all such other businesses. The provisions of this chapter apply to the books, accounts, papers and records of relevant transactions with such other businesses. All profits and losses of such other business may be considered by the commission as are relevant to the general fiscal condition of the telecommunications company. The commission, in determining the allowance for materials or services to be included in costs of operations for rate of return or price regulation for noncompetitive services, may disallow any unreasonable profit made in the sale of materials to or service supplied for any telecommunications company by any firm or corporation owned or controlled directly or indirectly by such company or any affiliate, subsidiary, parent company, associate or any corporation whose controlling stockholders are also controlling stockholders of such telecommunications company. The burden of proof shall be on the telecommunications company to prove that no unreasonable profit is involved.
Source: SL 1988, ch 375, § 14.
49-31-5. Promulgation of rules for conduct of business.
The commission may regulate the business of providing telecommunication service and may promulgate rules pursuant to chapter 1-26 concerning:
(1) Requirements for telecommunications companies to maintain and make available to the public and the commission records and utility tariffs;
(2) Requirements for telecommunications companies to provide information to customers regarding credit, deposits, services, refunds and billing rights;
(3) Requirements that telecommunications companies must follow regarding procedures for billing customers;
(4) Procedures and requirements for handling billing disputes, service interruptions, payment plans and refunds;
(5) Standards and procedures for telecommunications companies to follow to ensure nondiscriminatory credit policies;
(6) Procedures, requirements and record-keeping guidelines regarding deposit policies;
(7) Procedures, requirements and record-keeping guidelines regarding customer refunds;
(8) Policies for telecommunications companies to follow regarding refusal of telephone service to the public;
(9) Policies for telecommunications companies to follow regarding disconnection of customer service;
(10) Registration procedures, service requirements, billing practices and maximum service charges for alternative operator services in South Dakota;
(11) Procedures and requirements for classification and reclassification proceedings;
(12) Standards, procedures and requirements regarding the telecommunications utility investigation fund;
(13) Application and notice procedures for the construction of telecommunications facilities; and
(14) Requirements for filing and noticing tariff changes.
Source: SDC 1939, § 52.0260; SL 1986, ch 22, § 22; SL 1987, ch 345, § 45; SL 1990, ch 371, § 2; SL 1992, ch 328, § 10.
49-31-5.1. Telecommunications cooperatives, municipal telephone systems and independent telephone companies--Election to be regulated by commission.
Telecommunications cooperatives organized pursuant to chapters 47-15 to 47-20, inclusive, municipal telephone systems operated pursuant to chapter 9-41, and independent telephone companies serving less than fifty thousand local exchange subscribers are not subject to chapter 49-11, §§ 49-31-1.1 to 49-31-1.4, inclusive, 49-31-3.1 to 49-31-4.1, inclusive, 49-31-4.3, 49-31-5, and 49-31-6, 49-31-12 to 49-31-12.5, inclusive, and 49-31-44 to 49-31-46, inclusive.
However, any cooperative, municipality, or independent telecommunications company may elect to have its rates regulated by the commission and be subject to commission regulation for its emerging and noncompetitive telecommunications services. The election to be regulated shall be made by filing with the commission a certified copy of the resolution of the board of directors or the municipal governing body. Commission regulation shall become effective thirty days after receipt of the resolution by the commission.
Source: SL 1979, ch 314; SL 1980, ch 70, § 2; SL 1982, ch 329, § 2; SL 1987, ch 345, § 46; SL 1988, ch 375, § 27; SL 1992, ch 328, § 11; SL 1998, ch 274, § 19.
49-31-5.2. Independent telecommunications companies--Petition by subscribers for election to be regulated by commission.
An independent telecommunications company may be brought under commission regulation if no fewer than five percent of the subscribers, or twenty-five subscribers, whichever is the greater, petition the commission to hold an election of all subscribers of the company to return the company to commission regulation.
Source: SL 1982, ch 329, § 3; SL 1992, ch 328, § 12.
49-31-5.3. Independent telecommunications companies--Procedure for election by subscribers to be regulated by commission.
The ballot to be used in the election shall be approved by the independent telecommunications company and the commission. The commission shall mail ballots, at company cost, to the company's subscribers who shall return the ballots to the commission. The commission shall keep the ballots sealed until the date agreed upon by the commission and board of directors. On the date set, a commission representative and a representative of the company shall count the ballots. If a majority of the company's subscribers elect to become subject to regulation by the commission, the election shall be effective thirty days after the date the ballots are counted.
Source: SL 1982, ch 329, § 4; SL 1992, ch 328, § 13.
49-31-5.4. Independent telecommunications companies--"Subscribers" defined.
The term "subscribers" as used in §§ 49-31-5.2 and 49-31-5.3 means either the person in whose name the telecommunications service is registered or the spouse of the person unless the independent telecommunications company has been notified in writing to the contrary.
Source: SL 1982, ch 329, § 5; SL 1992, ch 328, § 14.
49-31-6. Valuation of company property.
The commission may make a physical valuation of all the property of any telecommunications company, to be taken when such valuation is necessary for the purpose of arriving at any determination in connection with the regulation of its business or the adjustment of its rates.
Source: SDC 1939, § 52.0269; SL 1987, ch 345, § 47.
49-31-7. Improvement of business and equipment--Notice to company from commission.
In addition to the regulatory powers and duties provided by chapters 49-1 to 49-13, inclusive, and this chapter, the commission may conduct any investigations that are necessary to protect the public interest. The commission may order such changes or improvements in telecommunications facilities, exchanges or networks as necessary for the improvement of telecommunications service and the convenience of the public. If, in the judgment of the commission, any repair upon telecommunications facilities, a change in its rates, a change in the mode of operating telecommunications facilities or conducting telecommunications company business is necessary, reasonable and expedient in order to promote the safety, convenience and accommodation of the public, the commission shall notify the telecommunications company immediately, and such telecommunications company shall change the mode of operating its facilities or conducting its business, or repair, renew or replace such facilities in such manner, of such material and within such time as the commission may order.
Source: SDC 1939, §§ 52.0202, 52.1318; SDCL, §§ 49-3-7, 49-3-8; SL 1979, ch 307, §§ 21, 22; SL 1987, ch 345, § 48; SL 1992, ch 328, § 15.
49-31-7.1. Powers and duties of commission.
The commission may:
(1) Examine and inspect the condition of each telecommunications company in this state and of its equipment, and the manner of its conduct and management with reference to the safety, accommodation and convenience of the public;
(2) Require any telecommunications company doing business in this state to install any facility necessary for the safety, convenience and accommodation of the public;
(3) Inquire into the management of the business of all telecommunications companies subject to the provisions of this chapter, and the commission shall keep informed as to the manner and method in which the same is conducted, and may obtain from such telecommunications companies full and complete information necessary to enable it to perform the duties and carry out the objects for which it was created;
(4) Require annual reports and such special reports which, in the opinion of the commission, are necessary or proper for its information;
(5) Prescribe the forms of any and all accounts, records and memoranda to be kept by telecommunications companies;
(6) Inspect all accounts, records and memoranda kept by telecommunications companies and may employ special agents or examiners who have authority, under the order of the commission, to examine any and all accounts, records and memoranda kept by any telecommunications company engaged in interstate commerce;
(7) Examine any of the books, papers or documents of any such telecommunications company and to examine under oath or otherwise any officer, director, agent or employee of any such telecommunications company; and
(8) Issue subpoenas to compel the attendance and testimony of witnesses and the production of all books, papers, tariffs, schedules, contracts, agreements and documents relating to any matter under investigation, and to that end may invoke the aid of any court of this state in requiring the attendance and testimony of witnesses and the production of books, papers and documents under the provisions of this section. The attendance of witnesses and the production of documents, books and papers may be required from any place in the state at any designated place of hearing.
Source: SDC 1939, §§ 52.0202 to 52.0205, 52.0256, 52.0259; SDCL, §§ 49-3-6, 49-3-10, 49-3-11, 49-3-12, 49-3-13, 49-3-16, 49-3-17, 49-3-19, 49-3-20; SL 1987, ch 345, § 49.
49-31-7.2. Liability for damages unaffected.
Nothing in § 49-31-7.1 may be construed to relieve any telecommunications company from its present responsibility or liability for damages to any person or property.
Source: SDC 1939, § 52.0202; SDCL, § 49-3-9; SL 1987, ch 345, § 50.
49-31-7.3. Court order to testify or produce records--Violation as contempt.
Upon certificate by any member of the commission stating that a telecommunications company or person subject to the provisions of this chapter has refused to obey a subpoena, rule, order or regulation of the commission, any court of this state, pursuant to chapter 21-34, shall issue an order requiring such telecommunications company or other person to appear before the commission and produce all books and papers, give evidence in relation to the matter in question or otherwise comply with the rule or order of the commission. A failure to obey the order of the court shall be punished by the court as contempt.
Source: SDC 1939, § 52.0203; SDCL, § 49-3-14; SL 1987, ch 345, § 51; SL 1992, ch 328, § 16.
49-31-7.4. Obstruction of commission--Civil fine.
No person may obstruct the commission or any member thereof in the performance of any of its duties or functions or refuse to give any information within its possession or to produce any record or evidence that may be required by the commission or member within the purview of its or his duties as such commission or member. Any person who violates this section may be punished by a civil fine not exceeding one thousand dollars.
Source: SDC 1939, §§ 52.0203, 52.9901; SDCL, § 49-3-15; SL 1983, ch 15, § 96; SL 1983, ch 331, § 7; SL 1987, ch 345, § 52.
Repealed by SL 1987, ch 345, § 93.
49-31-10. Delivery of messages to persons intended--Care required.
Any telecommunications provider in this state shall use great care and diligence in the transmission and delivery of telecommunications services and shall deliver telecommunications messages to the persons for whom they are intended.
Source: SDC 1939, §§ 8.0701, 8.0702, 8.1102, 52.1314; SDCL, §§ 49-6-1, 49-6-2; SL 1983, ch 15, § 112; SL 1987, ch 345, § 53.
49-31-11. Discrimination prohibited--Civil fine.
No person or telecommunications company may unjustly or unreasonably discriminate between persons in providing telecommunications services or in the rate or price charged for those services. No telecommunications company may offer a rate or charge, demand, collect or receive from any person a greater or lesser compensation for any telecommunications service offered than it charges, demands, collects or receives from any other person for providing a like telecommunications service. No telecommunications company may make or give any unjust or unreasonable preference or advantage to any person, nor unjustly or unreasonably prejudice or disadvantage any person, in the provision of any telecommunications service. Notwithstanding any prohibitions in this section, upon application to the commission, any telecommunications company may after investigation by the commission, be authorized by the commission to charge special rates or to give certain preferences which are determined by the commission to be fair and reasonable.
Nothing in this section applies to volume discounts or to the provision of telecommunications services at reduced rates for the United States, this state, local governments or governmental subdivisions.
Whoever violates any of the provisions of this section is guilty of unjust discrimination and shall be punished by a civil fine not less than one thousand nor more than five thousand dollars for each violation. Nothing in this section may alter or eliminate any remedy otherwise available to an injured party, including an injured party's right to initiate a suit against the company guilty of discrimination pursuant to § 49-13-14.1.
Source: SDC 1939, §§ 52.1317, 52.9925; SL 1983, ch 15, § 113; SL 1983, ch 331, § 10; SL 1987, ch 345, § 54; SL 1988, ch 375, § 15; SL 1992, ch 328, § 36.
49-31-12. Commission to make rate or price schedule--Different rates or prices for different companies or services--Revision of rates--Notice to companies.
The commission shall make for each of the telecommunications companies doing business in this state a schedule of reasonable fares and rates or prices except for those telecommunications services which are fully competitive. The commission may determine and approve different rates or prices for different companies and for different services of any company. The commission shall:
(1) Change and revise such rates or prices as circumstances require;
(2) Serve upon each company at least ten days' notice of the time and place rates or prices will be determined, and provide an opportunity for any person, partnership, limited liability company, corporation, or company to be heard; and
(3) Give notice to the company of the rates or prices decided upon and the effective date of such rates or prices, and provide a printed copy of such rates or prices to the general public upon request.
Source: SDC 1939, §§ 52.0216, 52.1315; SDCL, §§ 49-10-1 to 49-10-3; SL 1979, ch 307, §§ 55, 56; SL 1987, ch 345, § 55; SL 1988, ch 375, § 16; SL 1994, ch 351, § 135.
49-31-12.1. Tariff as prima facie evidence of reasonableness--Commission certified as true copy.
Any tariff, or a certified copy, approved pursuant to § 49-31-1.4, 49-31-12, 49-31-12.2, 49-31-12.4, or 49-31-12.5, shall be received in evidence as an official tariff on file with the commission, without further proof. The commission shall certify that the tariff in question is a true copy of the original on file with the commission and that it is currently in effect. The tariff shall, in any suit brought against a company, constitute prima facie evidence that the rates or prices approved thereby are fair and reasonable.
Source: SDC 1939, § 52.0216; SDCL, §§ 49-10-4, 49-10-5; SL 1979, ch 307, § 57; SL 1987, ch 345, § 56; SL 1988, ch 375, § 17; SL 1992, ch 328, § 17.
49-31-12.2. Duties of regulated companies concerning publication and filing of rates or prices.
Any telecommunications company subject to this chapter for noncompetitive and emerging competitive telecommunications services shall:
(1) Print and keep for public inspection in a convenient and publicly accessible place, its tariff showing the rates or prices for telecommunications services offered by the company which are in force at the time;
(2) Not increase published rates or prices for noncompetitive telecommunications services except after thirty days' notice to the commission and to the public. The notice shall state the proposed increase and the proposed effective date of the increase. After thirty days' notice the increase may go into effect subject to suspension, refund or both, pursuant to § 49-31-12.4 or 49-31-12.5, whichever is applicable. A company need only notify the commission of any reduction in rates or prices for telecommunications services before the effective date of the reduction and publish the appropriately amended tariff and notice required in subdivision (1) of this section;
(3) Except as provided for in subdivision (2) of this section, not deviate from any of its current published rates; and
(4) Upon request of the commission, file with the commission copies of any contracts, agreements or arrangements with other companies that are affected by the provisions of this chapter.
Source: SDC 1939, § 52.0212; SDCL, §§ 49-10-10, 49-10-17; SL 1979, ch 307, §§ 61, 64; SL 1987, ch 345, § 57; SL 1988, ch 375, § 18; SL 1992, ch 328, § 18.
49-31-12.3. Failure to file tariffs and agreements--Mandamus.
If any telecommunications company subject to the provisions of this chapter neglects or refuses to file or publish its tariffs of rates or prices, and contracts and agreements relating thereto, the telecommunications company, pursuant to chapter 21-34, is subject to a writ of mandamus to be issued by any circuit court of the state in the judicial circuit where the principal office of the telecommunications company is situated or where the offense may be committed.
Source: SDC 1939, § 52.0212; SDCL, § 49-10-18; SL 1987, ch 345, § 58; SL 1988, ch 375, § 19; SL 1992, ch 328, § 19.
49-31-12.4. Filing of new or changed tariff--Procedures for commission.
If a telecommunications company files with the commission any tariff stating a new rate or price or any new practice affecting any noncompetitive telecommunications service, the commission:
(1) May upon a petition to intervene or on its own initiative, with or without answer or other formal pleading by the interested company or companies but upon reasonable notice, enter upon a hearing concerning the propriety or reasonableness of the rate, price or practice;
(2) Pending any hearing pursuant to subdivision (1) of this section, the commission may suspend the operation of the tariff and the use of the rate or practice upon order with notice to the company of the reasons therefor. The suspension may not last longer than one hundred twenty days beyond the proposed effective date of the rate or practice. However, the commission may extend the period an additional sixty days;
(3) During any hearing conducted pursuant to subdivision (1) of this section, receive whatever evidence, statements or arguments the parties may offer pertinent to the investigation. The burden is on the company to prove that the tariff is fair and reasonable;
(4) After any hearing pursuant to subdivision (1) of this section, determine a fair and reasonable rate or price, render a written decision specifically setting out the rate or price and prepare a record of its proceeding and findings; and
(5) If a rate has been suspended pursuant to subdivision (2) of this section and the commission has not issued an order at the expiration of one hundred eighty days after the proposed effective date of the rate or practice, the proposed change may go into effect at the end of such period. In the case of a proposed increased rate or price, the telecommunications company shall keep an accurate account of all amounts received by reason of the increase. The company shall specify by whom and on whose behalf the amounts are paid. Upon completion of the hearings and entry of a commission decision, the commission may require the telecommunications company to refund, with interest, to the persons in whose behalf such amounts were paid, the portion of the increased rates or prices found to be unfair or unreasonable.
Source: SDC 1939, §§ 52.0217 to 52.0219; SDCL, §§ 49-10-26, 49-10-27, 49-10-33 to 49-10-35; SL 1979, ch 307, §§ 67 to 69; SL 1980, ch 322, § 120; SL 1982, ch 326; SL 1987, ch 345, § 59; SL 1988, ch 375, § 20; SL 1992, ch 328, § 20.
49-31-12.5. Filing of new schedule affecting emerging competitive service--Notice and hearing--Suspension or disapproval of price or practice.
If a telecommunications company files with the commission any tariff stating a new price or a change in price or practice affecting any emerging competitive telecommunications service, the commission:
(1) Shall permit any proposed change in price or practice to be effective upon twenty days' notice to the commission and the customers affected by the change;
(2) May, upon receiving a petition to intervene or upon its own motion, conduct a hearing to determine whether any new price or change in price or practice is fair and reasonable. Any petition to intervene or motion shall be filed or made within twenty days after the filing of the price or practice. The burden of proof is on the company to show that any new price or change in price or practice is fair and reasonable. Any hearing shall be completed and any order of the commission shall be issued within one hundred twenty days after the effective date of the tariff filed;
(3) May, if the petition to intervene or motion alleges improper cross subsidization in violation of § 49-31-4 or unjust or unreasonable discrimination pursuant to § 49-31-11, suspend the effective date of any new price or a change in price or practice, if the commission determines that any remedial order of the commission pursuant to chapter