§ 23-1-101 - Definitions.
23-1-101. Definitions.
As used in this act, unless the context otherwise requires:
(1) "Affiliated interest with a public utility" includes the following:
(A) Every corporation and person owning or holding directly or indirectly twenty-five percent (25%) or more of the voting securities of the public utility;
(B) Every corporation or person in any chain of successive ownership, or holding, of twenty-five percent (25%) or more of the voting securities of that public utility;
(C) Every corporation, twenty-five percent (25%) or more of whose voting securities is owned by any person or corporation owning twenty-five percent (25%) or more of the voting securities of the public utility or is owned by any person or corporation in any chain of successive ownership of twenty-five percent (25%) or more of the voting securities; and
(D) Every person who is an officer or director of that public utility or of any corporation in any chain of successive ownership or holding of twenty-five percent (25%) or more of the voting securities of the public utility;
(2) "Commission" means the Arkansas Public Service Commission or the Transportation Safety Agency [abolished] with respect to the particular public utilities and matters over which each commission has jurisdiction;
(3) "Commissioner" means:
(A) One (1) of the commissioners of the Arkansas Public Service Commission with respect to the particular public utilities and matters over which that commission has jurisdiction; or
(B) One (1) of the commissioners of the Transportation Safety Agency [abolished] with respect to the particular public utilities and matters over which that agency has jurisdiction;
(4) "Corporation" includes, but is not limited to, a private corporation, an association, a joint-stock association, a business trust, and an electric cooperative corporation providing service for charge or compensation in any area or from any facility for which the commission has granted a certificate of convenience and necessity;
(5) "Exempt wholesale generator" means a person, including an affiliate of a public utility, engaged directly or indirectly through one (1) or more affiliates and exclusively in the business of owning or operating all or part of a facility for generating electric energy and selling electric energy at wholesale and who:
(A) Does not own or operate a facility for the transmission of electricity other than interconnecting transmission facilities used to effect a sale of electric energy at wholesale; and
(B) Has applied to the Federal Energy Regulatory Commission for a determination under 15 U.S.C. 79z-5a;
(6) "Gross earnings" includes all amounts received, charged, or chargeable for or on account of any public service furnished or supplied in this state by any public utility and includes all gross income from all incidental, subordinate, or subsidiary operations of the utility in this state. However, revenues from the manufacture and sale of ice shall not be included;
(7) "Municipality" includes a city, a town, an improvement district, other than a county, and any other public or quasi-public corporation which is created or organized under the Constitution or laws of the State of Arkansas;
(8) "Person" includes a natural person, a trustee, lessee, receiver, holder of beneficial or equitable interest, a partnership, or two (2) or more persons having a joint or common interest, and a corporation as defined in subdivision (4) of this section;
(9) (A) "Public utility" includes persons and corporations, or their lessees, trustees, and receivers, owning or operating in this state equipment or facilities for:
(i) Producing, generating, transmitting, delivering, or furnishing gas, electricity, steam, or another agent for the production of light, heat, or power to or for the public for compensation;
(ii) Diverting, developing, pumping, impounding, distributing, or furnishing water to or for the public for compensation. However, nothing in this subdivision shall be construed to include water facilities and equipment of cities and towns in the definition of public utility. Further, the term "public utility" shall not include any entity described by this subdivision which meets any of the following criteria:
(a) All property owners' associations whose facilities are enjoyed only by members of that association or residents of the community governed by that association;
(b) All entities whose annual operating revenues would cause them to be classified as Class C or lower water companies pursuant to the uniform system of accounts adopted by the Arkansas Public Service Commission. However, the term "public utility" shall include any water company which petitions, or a majority of whose metered customers petition, the Arkansas Public Service Commission to come under the commission's jurisdiction, provided that the water company must have had combined annual operating revenues in excess of four hundred thousand dollars ($400,000) for the three (3) fiscal years immediately preceding the date of filing the petition; or
(c) All improvement districts;
(iii) Conveying or transmitting messages or communications by telephone or telegraph where such service is offered to the public for compensation;
(iv) Transporting persons by street, suburban, or interurban railway for the public for compensation;
(v) Transporting persons by motor vehicles if the vehicles are operated under a franchise granted by a municipality and in conjunction with, or as a part of, a street, suburban, or interurban railway, or in lieu of either thereof, for the public for compensation; and
(vi) Maintaining a sewage collection system or a sewage treatment plant, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations, and other appurtenances necessary or useful for the collection or treatment, purification, and disposal of the liquid and solid waste, sewage, night soil, and industrial waste. However, nothing in this subdivision (9) shall be construed to include sewerage facilities and equipment of cities and towns in the definition of public utility. The term "public utility" shall not include any entity described by this subdivision (9) which meets any of the following criteria:
(a) All property owners' associations whose facilities are enjoyed only by members of that association or residents of the community governed by that association;
(b) All entities whose annual operating revenues would cause them to be classified as Class C or lower sewer companies pursuant to the uniform system of accounts adopted by the Arkansas Public Service Commission; or
(c) All improvement districts.
(B) The term "public utility", as used for rate-making purposes only:
(i) Shall include persons and corporations or their lessees, trustees, and receivers producing, generating, transmitting, delivering, or furnishing any of the services set forth in subdivisions (9)(A)(i) and (ii) of this section to any other person or corporation for resale or distribution to or for the public for compensation; and
(ii) Shall not include persons or corporations providing cellular telecommunications service and not providing any other public utility service in this state, unless the commission finds by order, after notice and hearing and upon substantial evidence, and which shall not take effect pending appeal therefrom, that the public interest requires the application of some or all of the provisions of this subdivision (9) to such persons or corporations.
(C) The term "public utility", as to any public utility defined in subdivisions (9)(A)(i), (ii), and (vi) of this section, shall not include any person or corporation who or which furnishes the service or commodity exclusively to himself or herself or itself, or to his or her or its employees or tenants, when the service or commodity is not resold to or used by others.
(D) Any other provision of law to the contrary notwithstanding, the term "public utility" shall not include an exempt wholesale generator as defined in 23-1-101(5).
(E) The term "public utility", as to any public utility defined in subdivision (9)(A)(iii) of this section, shall not include any person or corporation who or which:
(i) Furnishes the services exclusively to himself or herself or itself, or to employees; or
(ii) Furnishes the services:
(a) To persons who are temporary residents or guests in a hotel or motel owned by him or her or it;
(b) Patients in a hospital owned by him or her or it; or
(c) Students of a public or private institution of higher learning who reside in housing provided by that institution.
(F) (i) Notwithstanding the foregoing provisions of this subsection, the term "public utility" shall not include any person or corporation owning any interest in equipment or facilities used for any of the purposes specified in subdivision (9)(A)(i) or (9)(B) of this section, provided that:
(a) The interest in the equipment or facilities is leased under a net lease directly to a public utility or to a person or corporation that is exempt from regulation as a public utility, either as a sole lessee or joint lessee with one (1) or more other public utilities or persons or corporations so exempt;
(b) The person or corporation is otherwise primarily engaged in one (1) or more businesses other than the business of a public utility or is a person or corporation all of whose equity or beneficial ownership is held by one (1) or more persons or corporation so engaged, either directly or indirectly;
(c) If the lessee is a public utility, the lease to it has been authorized or approved by the Arkansas Public Service Commission;
(d) The lease of the interest in the equipment or facilities extends for an initial term of not less than ten (10) years, except for termination of the lease upon events set forth in the lease, unless any shorter term specified in the lease is not less than two-thirds (2/3) of the then-expected remaining useful life of the equipment or facilities or the lease is entered into following termination of a prior lease upon the liquidation, reorganization, bankruptcy, or insolvency of the prior lessee; and
(e) The rent reserved under the lease shall not include any amount based, directly or indirectly, on revenues or income of the lessee.
(ii) For purposes of this subdivision (9)(F), a public utility shall not cease to be such by reason of a lease, directly or indirectly, of a part or all of its interest in such equipment or facilities to any affiliate.
(iii) For purposes of this subdivision (9)(F), the term "person or corporation" shall include any receiver, trustee, or liquidating agent of the person or corporation.
(iv) The exception of the definition of "public utility" described in subdivision (9)(F)(i) of this section shall continue to apply, following termination of the lessee's right to possession or use of the interest in the equipment or facilities during the lease term or following termination of the lease by the lessee or its trustee pursuant to the provisions of section 365 of the Federal Bankruptcy Code or of any similar Arkansas or federal statute, for so long as the person or corporation referred to in subdivision (9)(F)(i) of this section does not supply electricity directly to the public. In any case, the exception to the definition of "public utility" described in subdivision (9)(F)(i) of this section shall continue to apply for a period of ninety (90) days following the termination, except that no change in rates that would otherwise be subject to the jurisdiction of the Arkansas Public Service Commission shall be effected during the ninety-day period without the approval of the Arkansas Public Service Commission.
(G) (i) (a) Within any county not subject to subdivision (9)(G)(i)(b) of this section, any Class C or lower water company or Class C or lower sewer company that would otherwise be exempt from the definition of "public utility" under subdivision (9)(A)(ii)(b) or (9)(A)(vi)(b) of this section shall be included within the term "public utility" if the Class C or lower water company or Class C or lower sewer company petitions the Arkansas Public Service Commission to have the company included. The provisions of this section do not apply to water or sewer companies formed under the nonprofit corporation laws of this state or any improvement district or water distribution district law of this state.
(b) All Class C or lower water companies or Class C or lower sewer companies that would otherwise be exempt from the definition of "public utility" under subdivision (9)(A)(ii)(b) or (9)(A)(vi)(b) of this section shall be included within the term "public utility" if a majority of the customers of the company petition the Arkansas Public Service Commission to have the company included. The Arkansas Public Service Commission shall determine the sufficiency of the petition at a public hearing. The water or sewer company or any customer of the company may appear and present evidence on the sufficiency of the petition. The provisions of this section do not apply to water or sewer companies formed under the nonprofit corporation laws of this state or any improvement district or water distribution district law of this state.
(ii) The Arkansas Public Service Commission shall adopt regulations governing the petition process.
(iii) A Class C or lower water company or sewer company shall provide the Arkansas Public Service Commission a list of metered customers upon request;
(10) "Rate" means and includes every compensation, charge, fare, toll, rental, and classification, or any of them, demanded, observed, charged, or collected by any public utility for any service, products, or commodity offered by it as a public utility to the public and means and includes any rules, regulations, practices, or contracts affecting any compensation, charge, fare, toll, rental, or classification;
(11) "Securities" means capital stock of all classes and all evidences of indebtedness secured or unsecured by lien upon capital assets or revenues, not including, however, any obligation falling due on or before a fixed date that is not more than one (1) year after the date of its issuance and not secured by a lien upon capital assets or revenues; and
(12) "Service" includes any product or commodity furnished and the plant, equipment, apparatus, appliances, property, and facilities employed by any public utility in performing any service or in furnishing any product or commodity devoted to the public purposes of the utility and to the use and accommodation of customers or patrons.