AGO 97045.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97045. DATE: September 4, 1997SUBJECT: Authority of Nebraska Public Power District to Provide Intrastate Telecommunications Services on a For-Hire Basis as a Contract Carrier.REQUESTED BY: Lowell Johnson, Vice ChairmanNebraska Public Service CommissionWRITTEN BY: Don Stenberg, Attorney General L. Jay Bartel, Assistant Attorney General On behalf of the Nebraska Public Service Commission ["Commission"], you have requested our opinion concerning the authority of the Nebraska Public Power District ["NPPD"] to provide certain telecommunications services on a for-hire basis as a contract carrier. Previously, in Op. Att'y Gen. No. 96076 (November 25, 1996), the Commission requested our opinion concerning the authority of NPPD to enter into an agreement to provide access to its fiber optic telecommunications system to Northeast Community College to allow Northeast to conduct video conferencing with high schools in Sioux City and Wayne, Nebraska. At that time, we concluded that, while Neb. Rev. Stat. § 70-625 (Supp. 1995) prohibited public power districts from "operat[ing] as contract or common carriers engaged in furnishing communication services for hire in Nebraska intrastate commerce", we had insufficient factual information to enable us to conclude if NPPD was, in fact, engaging in providing communication services for hire under this arrangement. We further concluded that we did not have sufficient factual information to determine whether NPPD was offering "telecommunications service" necessitating the issuance of a certificate of convenience and necessity under Neb. Rev. Stat. § 75-604(1) (Cum. Supp. 1995). After receiving our opinion, the Commission initiated, on its own motion, Application No. C-141/PI-18 to investigate whether NPPD was offering intrastate telecommunications services subject to Commission jurisdiction. Following a public hearing, the Commission, on May 28, 1997. entered an Interim Order determining that NPPD is providing telecommunications services on a for-hire basis as a contract carrier. In that Order, the Commission determined as follows: 1. The services which NPPD offers by interconnection to its dark fiber for distance learning between Norfolk, Nebraska, and South Sioux City, Nebraska, are telecommunications services; 2. The services which NPPD offers the City of Norfolk for intranet and internet access are also telecommunications services; 3. The telecommunications services offered to Northeast Community College and the City of Norfolk are both offered by NPPD on a for-hire basis as a contract carrier; 4. Service offerings such as those offered by NPPD fall within the Commission's jurisdiction under Neb. Rev. Stat. § 75-109 (1996); and 5. The services offered by NPPD are being offered in the absence of any certificate of public convenience and necessity. In light of these findings, the Commission requests our opinion as to whether NPPD has statutory authority to provide these telecommunications services, and whether NPPD, if granted a certificate of convenience and necessity, can continue to provide these services under existing state law. & I. Statutory Authority of NPPD to Provide Telecommunications Services. & NPPD is a utility "created and operate[d] by virtue of chapter 70, article 6, of the Nebraska Revised Statutes,. . . ." Omaha Public Power Dist. v. Nebraska Dept. of Revenue, 248 Neb. 518, 520, 537 N.W.2d 312, 314 (1995). "NPPD operates an electric utility system and generates, transmits, distributes, and sells electricity within its chartered territory, which comprises 86 of Nebraska's 93 counties and portions of 5 other counties." Id. Pursuant to Neb. Rev. Stat. § 70-602 (1996), NPPD is "a public corporation and political subdivision" of the state. Public power districts created pursuant to Chapter 70, article 6, are required to submit a petition seeking approval of the Nebraska Power Review Board. Neb. Rev. Stat. § 70-603(1) (1996). Neb. Rev. Stat. § 75-604 (1996), which sets forth the required contents of the petition, provides, in subsection (1): "A district may be organized to engage only in the electric light and power business and the production and distribution of ethanol, only in the business of owning and operating irrigation works, or in all of such businesses." Prior to its recent amendment by 1997 Neb. Laws, LB 660, § 1, certain restrictions on the powers of public power districts were contained in Neb. Rev. Stat. § 70-625 (1996). Specifically, § 70- 625 provided, in pertinent part: In addition to the powers authorized by Chapter 70 and specified in its petition for creation as amended, a public power district may sell, lease, and service satellite television descrambling or decoding devices, satellite television programming, and equipment and services associated with such devices and programming, except that nothing in this section shall authorize public power districts (1) to operate as contract or common carriers engaged in furnishing communication services for hire in Nebraska intrastate commerce, . . . . (emphasis added). The portion of LB 660 providing that public power districts were not authorized "to operate as contract or common carriers engaged in furnishing communication services for hire in Nebraska intrastate commerce" was deleted from § 70-625 by...