SENATE BILL NO. 469
AS AMENDED BY
SENATE AMENDMENTS NOS. 2, 6, 7, 8, 10, 11, 14
HOUSE AMENDMENT NOS. 1 & 2
AN ACT TO AMEND TITLE 26 OF THE DELAWARE CODE RELATING TO THE PUBLIC SERVICE COMMISSION.
WHEREAS, the present laws of this State governing the regulation and control of public utilities have not been substantially revised and updated since their original enactment; and
WHEREAS, there is a substantial need for revised statutory authority and a streamlined administrative structure to provide the Public Service Commission with more modern tools to effectively regulate public utilities in order to balance the interests of the consuming public and of the regulated public utilities.
Be it enacted by the General Assembly of the State of Delaware:
Section 1. Amend Title 26 of the Delaware Code by striking Chapters 3, 5 and 7 in their entirety; by striking
§1304 of Chapter 13 in its entirety; by striking all sections in Chapter 1 except
§142; and substituting in lieu thereof a new Chapter 1 of Title 26, which shall read as follows:
TITLE 26. PUBLIC UTILITIES
CHAPTER I. PUBLIC SERVICE COMMISSION
SUBCHAPTER I. GENERAL PROVISIONS
§101. Short Title
This Act shall be known and referred to as the Public Utilities Act of 1974.
As used in this title, unless the context otherwise requires:
(1) "Commission" means the Public Service Commission;
(2) "Public utility" includes every individual, partnership, association, corporation, joint stock company, agency or department of the State, or any association of individuals engaged in the prosecution in common of a productive enterprise (commonly called a "cooperative"), their lessees, trustees, or receivers appointed by any court whatsoever, that now operates or hereafter may operate, within this State, any taxicab, steam, manufactured gas, natural gas, electric light, heat, power, water, telephone, including domestic public land mobile radio service, telegraph, or heating oil (for residential consumption directly to residences by means of a pipeline) service, system, plant or equipment, for public use.
(3) Rate base means:
(13) The original cost of all used and useful utility plant and intangible assets either to the first person who committed said plant or assets to public use or, at the option of the Commission, the first recorded book cost of said plant or assets; less:
(14) Related accumulated depreciation and amortization; less:
(15) The actual amount received and unrefunded as customer advances or contributions in aid of construction of utility plant; and less:
(16) Any accumulated deferred and unamortized income taxes and investment credits related to plant included in subsection
(1) above; plus:
(4) Accumulated depreciation of customer advances and contributions in and of construction related to plant included in subsection
(1) above; and plus:
(17) Materials and supplies necessary to the conduct of the business and investor supplied cash working capital; and plus:
(2) Any other element of property which, in the judgment of the Commission, is necessary to the effective operation of utility.
(d) "Cable Television System", "community antenna television", "cable system" or "system" shall mean a facility within this State which is constructed in whole or in part in, on, under or over any highway, road, street, alley, or other public place and which is operated to perform the service of receiving and amplifying the signals of one or more radio and or television broadcasting stations and distributing such signals by cable, wire or other means to members of the public who subscribe to such service; provided that nothing herein is intended to prohibit any system from engaging in any other activity not expressly prohibited by law; except that such definition shall not include;
(3) any system which serves fewer than fifty subscribers; or
(4) any system which serves only the residents of one or more apartment dwellings or mobile home or trailer parks under common ownership, control or management, and commercial establishments located on the premises of such dwellings; or (3) telephone, telegraph or electric utilities in those cases where the activity of such utility in connection with a cable system is limited to leasing or renting to cable systems, cables, wires, poles, towers or other electronic equipment or rights to use real property as part of, or for use in connection with, the operation of a cable system.
(14) The term "franchise" shall mean authorization lawfully adopted or agreed to by the Commission pursuant to the provisions of this Act to construct or operate a cable television system or systems in whole or in part within a county of this State.
(15) The term "franchisee" shall mean the person, persons or entity holding a franchise.
(16) The term "public notice" shall mean publication in a newspaper of general circulation within a county in which a franchise is to be granted.
(17) The term "written notice" shall mean notice in writing which is hand-delivered or mailed by certified mail, to the person who is to be given notice.
§103. Composition; appointment; term; qualifications; vacancies; chairman
(a) The Public Service Commission is continued except that it shall consist of only five (5) members, each of whom shall have been or shall be appointed by the Governor and confirmed by a majority of the members elected to the Senate. The terms of office of the members of the Commission serving as of the effective date of this chapter shall not be affected. Subject to the provisions of paragraph
(d) of this section, each member shall continue to serve out the term for which he was originally appointed, and until his successor shall have been appointed and qualified. Each member of the Commission appointed after the effective date of this chapter, except a member appointed pursuant to paragraph
(d) of this section to fill an unexpired term, shall be appointed for a term of five (5) years from the first day of May in the year of his appointment, and until his successor shall have been appointed and qualified.
(b) Not more than three (3) of the members of the Commission shall be a member of the same political party. One (1) of the members shall be a resident of the City of Wilmington, two (2) shall be residents of New Castle County outside of Wilmington, one (1) shall be a resident of Kent County and one (L) shall be a resident of Sussex County; provided, however, that beginning with the appointment of the member for a term of five (5) years beginning as of the first day of May, 1976, and continuously thereafter, one (1) of the members shall be a resident of the City of Wilmington, one (1) shall be a resident of New Castle County outside of Wilmington, one (1) shall be a resident of Kent County, one (1) shall be a resident of Sussex County and one (1) shall be a member at large who shall be a practicing member of the Bar of this State resident of this State.
(c) A commissioner shall continue to reside in the political subdivision of which he was a resident at the time of his appointment.
(d) In case of a vacancy on the Commission for any reason other than expiration of the term of office, the Governor shall fill such vacancy for the unexpired term by and with the consent of a majority of the members elected to the Senate.
(e) The Governor shall designate one 1) of the Commissioners as Chairman of the Commission who shall serve as Chairman at the pleasure of the Governor.
§104. Removal of Commissioner
The Governor, with the advice and consent of the Senate, may remove any member of the Commission for neglect of duty or misconduct in office, giving to the member a copy of the charges against such person and affording an opportunity of being publicly heard in person or by counsel, upon 10 days' notice.
§105. Compensation of Commissioners
The members of the Commission shall each receive a salary of $4,500 per year, to be paid in equal monthly payments by the Treasurer of the State.
§106. Office, seal, rules and meetings
The Commission shall have such office or offices as may be necessary and shall be provided with all necessary furniture, stationery and supplies, and office appliances. It shall provide itself with a seal for the authentication of its proceedings and orders. It may make all needful rules for its government and other proceedings not inconsistent with this title. It shall meet at such times and places within this State as it may provide by rule or by special order.
A majority of the members of the Commission shall constitute a quorum and shall be sufficient for any action by the Commission; provided, however, that a single Commissioner may sit for the purpose of hearing testimony in any matter provided
(a) the parties consent; and
(b) any final decision in the matter must be approved by a majority of the members of the Commission.
Subject to the provision of Delaware Code, Title 29, Chapters 25 (Department of Justice) and 59 (Merit System of Personnel Administration), the Commission may appoint, fix the compensation and terms of service, and prescribe the duties and powers of, an executive director, a secretary and such officers, accountants, attorneys, experts, engineers, inspectors, clerks and other persons, as it deems necessary for the proper conduct of the work of the Commission.
§109. Disqualification for Serving As Member or Employee of Commission
No person shall be eligible for appointment to or shall hold the office of Commissioner, or be appointed by the Commission to or hold any office or position under it, who is a director, officer or employee of any public utility or owns or directly or indirectly controls more than one per cent (1%) of the stock of any public utility entitled to vote for election of directors. No Commissioner, and no employee, appointee or official engaged in the service of, or in any manner connected with the Commission shall hold any office or position, or be engaged in any business, employment or vocation, the duties of which are incompatible with the duties of his office as Commissioner, or his employment in the service or in connection with the work of the Commission.
§110. Travel expense
The Commissioners, executive director, secretary and other persons engaged in the service of the Commission shall be entitled to receive from the State their necessary traveling expenses while traveling on the business of the Commission.
All expenditures of the Commission, within the limits of its appropriations, including the necessary traveling expenses of the Commissioners, Executive Director, Secretary and other persons engaged in the service of the Commission shall, prior to April 1, 1975, be paid by the State Treasurer out of the general funds of the State on proper voucher therefor approved by the Chairman of the Commission or, at the direction of the Chairman, by the Executive Director. On and after April 1, 1975, said expenditures of the Commission, within the limits of its appropriations, shall be paid by the State Treasurer out of the Delaware Public Service Commission Regulatory Revolving Fund on proper voucher therefor approved by the Chairman of the Commission or, at the direction of the Chairman, by the Executive Director.
§112. Copies of official documents and orders as evidence
Copies of all official documents and orders filed or deposited in the office of the Commission, certified by the chairman or the secretary to be true copies of the original and given under the official seal of the Commission, shall be evidence in like manner as the original in all courts of this State. Such charges may be taxed and collected for such copies as are taxed and collected for like services in the Superior Court of this State.
§113. Testimony by member, employee or investigator of Commission
No member, employee or investigator of the Commission shall be required to give testimony in any court suit to which the Commission is not a party with regard to information obtained by such member or employee in the discharge of official duty.
§114. Charges and fees, and cost and expenses of proceedings
(a) The Commission shall make and impose charges and fees for filing, copying, inspection and other services rendered by it in accordance with such rules and regulations as it may from time to time adopt pursuant to section 106 of this title.
(1) Whenever the Commission, in a proceeding upon its own initiative or upon complaint or upon written application to it, shall deem it necessary in order to carry out its statutory duties, to investigate the operations, services, practices, accounting records and/or procedures, rates, charges, rules and regulations, of any public utility, and/or to make valuations or revaluations of the property of any public utility, and/or to enter into and hold a hearing or hearings in connection therewith, such public utility shall be charged with and pay such portion of the expenses of the Commission, and the compensation and expenses of its agents, representatives, consultants and employees, including but not limited to those temporarily employed or retained, as is reasonably attributable to such investigation, valuation and revaluation, hearing or hearings, provided that notice of the Commission's intent so to charge such public utility shall be given to such public utility or to its counsel of record at such time as the Commission determines that such charge will be required. No charge shall be made for the compensation of Commissioners. No charge shall be made for the compensation of full time employees of the Commission except compensation thereof attributable to time spent with respect to proceedings whereby a public utility seeks to establish or change its rates.
(2) From time to time as the investigation, valuation, revaluation, hearing or hearings progresses, or upon completion thereof, the Commission shall ascertain its costs incurred in connection therewith, including but not limited to the expenses of the Commission and the compensation and expenses of its agents, representatives, consultants and employees, including those temporarily employed or retained, and shall determine the amount thereof to be paid by the public utility and shall render a bill therefor by certified mail to the public utility. The Commission shall furnish the public utility such itemization of said bill as may be requested by said public utility. The public utility shall have the right to audit said bill within a reasonable period after its rendition by the Commission and shall have the opportunity to be heard as to any or all of the items included in the bill. The amount of such bill as finally determined by the Commission following such hearing and any appeal there-from shall be paid by such public utility to the Commission with thirty (30) days from the date of its determination. If any amount so assessed against a public utility is not paid within thirty (30) days after the date of rendition of the bill with respect thereto, the utility shall pay a penalty to the Commission of one per cent (1 % ) of the amount due for each month or fraction thereof that such amount is unpaid.
(3) The expenses of the Commission and the compensation and expenses of its agents, representatives, consultants and employees, including but not limited to those temporarily employed or retained, reasonably attributable to any appellate court proceedings in either or both the Superior or Supreme Court of the State growing out of any order, opinion, decision or findings of the Commission shall also be ascertained, charged, billed to and paid for by the public utility in accordance with the foregoing conditions and procedures.
(4) Whenever the investigation, valuation, revaluation, hearing, hearings or appellate court proceedings involves the affairs and operations of two or more public utilities jointly, the charges made under this section for such investigation, valuation, revaluation, hearing, hearings, or appellate court proceedings shall be prorated among such public utilities upon the basis of their gross intrastate operating revenues for the last preceding calendar year.
(5) The total aggregate amount to be charged by the Commission to any public utility under authority of this subsection ( b) in any calendar year shall not exceed one per cent (1%) of such public utility's gross operating revenues derived from intrastate utility operatings in the last preceding calendar year.
§115. Public policy; regulatory assessment; definition of revenue; collection of assessment
(a) It is declared to be the public policy of this State that order to maintain and foster the effective regulation of public utilities under this title, in the interests of the people of this state and the public utilities as well, the public utilities subject to regulation of the Public Service Commission which enjoy the privilege of operating as public utilities in this State, shall bear the expense of regulation by means of an assessment on such privilege measured by the annual gross revenue of such public utilities in the manner hereinafter provided. This assessment shall be in addition to all other fees and charges imposed by the Public Service Commission pursuant to this title.
(b) As used in subsection
(c) of this section, the term "intrastate public utility business" includes all that portion of the business of the public utilities designated in section 102 of this title and over which the Commission has jurisdiction under the provisions of this title.
(c) As used in this section, the term "gross revenue" includes all revenue which
(1) is collected by a public utility subject to regulation by the Public Service Commission, and
(2) is derived from the intrastate public utility business of such a utility. Such term does not include revenue derived by such a public utility from the sale of public utility services, products:)t- commodities to another public utility or to an electric cooperative or municipality for resale by such public utility or electric cooperative or municipality.
(d) An assessment is imposed upon each public utility subject to regulation by the Public Service Commission in an amount equal to the product of .002 (2 mills) multiplied by its gross operating revenue for each calendar year, commencing with the calendar year beginning January 1, 1974. No assessment shall be imposed upon a public utility having a gross operating revenue of less than $10,000 in any calendar year.
(e) On or before March 31 of each year, each public utility subject to the provisions of this title shall file with the Commission an annual gross revenue return containing a statement of the amount of its gross revenue for the immediately preceding calendar year, and a statement of the amount of assessment due for such calendar year accompanied by a check in payment thereof. Forms for such returns and amended returns shall be devised and supplied by the Commission.
(f) All returns submitted to the Commission by a public utility, as provided in this section, shall be sworn to by an appropriate officer of the public utility. The Commission may audit each such return submitted and may take such measures as are necessary to ascertain the correctness of the returns submitted. The Commission has the power to direct the filing of an amended return by any utility which has filed an incorrect return and to direct the filing of a return by any utility which has failed to submit a return.
(g) Each payment of the assessment imposed by subsection
(d) of this section becomes delinquent at midnight of the date that is due. If upon filing a return or an amended return it shall appear that a public utility has failed to pay, or has underpaid, the proper amount, it shall pay a penalty to the Commission of one per cent (1%) of the amount due for each month or fraction thereof that such amount is unpaid. The Commission may enforce the collection of any delinquent installment or payment, or portion thereof, by legal action or in any other manner by which the collection of debts due the State of Delaware may be enforced under the laws of this State.
§116. Delaware Public Service Commission Regulatory Revolving Fund; monies to be deposited therein
(a) There is hereby created within the State Treasury a special fund to be designated as the Delaware Public Service Commission Regulatory Revolving Fund which shall be used in the operation of the Commission in the performance of the various functions and duties required of it by law.
(b) All fees, licenses, assessments and other charges, collected by the Commission pursuant to this title shall be deposited in the State Treasury to the credit of said Delaware Public Service Commission Regulatory Revolving Fund to be used in the operation of the Commission as authorized by the General Assembly in its annual operating budget; however, if the General Assembly is not in session any funds requested by the Department for the performance of the various functions and duties provided by this Act, and which exceed the Department's annual operating budget, shall be officially submitted for approval or disapproval to the Controller General of the State of Delaware and the Budget Director of the State of Delaware. All penalties or fines assessed and collected by the Commission shall not be deposited in said fund but shall be deposited in the General Fund of the State.
(c)All payments to the Commission under sections 114 and 115 of this title shall be deposited in the State Treasury to the credit of the Delaware Public Service Commission Regulatory Revolving Fund to be used in the operation of the Commission as authorized by the General Assembly. However, if the General Assembly is not in session any funds requested by the Department for the performance of the various functions and duties provided by this Act, and which exceed the Department's annual operating budget, shall be officially submitted for approval or disapproval to the Controller General of the State of Delaware and the Budget Director of the State of Delaware.
(d) Monies reposing in the Delaware Public Service Commission Regulatory Revolving Fund shall be used by the Commission in the performance of its various functions and duties as provided by law; subject always to annual appropriations by the General Assembly for salaries and other routine operating expenses of the Commission. If the General Assembly is not in session any funds requested by the Department for the performance of the various functions and duties provided by this Act and which exceed the Department's annual operating budget, shall be officially submitted for approval or disapproval to the Controller General of the State of Delaware and the Budget Director of the State of Delaware.
(e) Annual appropriations from the General Fund of the State for the operation of the Commission shall be credited to the Delaware Public Service Commission Regulatory Revolving Fund in appropriated monthly amounts and all expenditures authorized by the General Assembly for the operation of the Commission shall be made from said revolving fund. If the General Assembly is not in session any funds requested by the Department for the performance of the various functions and duties provided by this Act and which exceed the Department's annual 9perating budget, shall be officially submitted for approval or disapproval to the Controller General of the State of Delaware and the Budget Director of the State of Delaware.
(f) The maximum unencumbered balance which shall remain in the Delaware Public Service Commission Regulatory Revolving Fund at the end of any fiscal year shall be $500,000 and any amount in excess thereof shall be reverted to each public utility in an amount proportionate to the sum paid by that public utility in the previous calendar year pursuant to Section 115(d).
SUBCHAPTER II. JURISDICTION AND POWERS
§201. General jurisdiction and powers
The Commission shall have exclusive original supervision and regulation of all public utilities and also over their rates, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carrying out the provisions of this title. Further, the Commission shall have exclusive original jurisdiction and regulation of every Cable Television System outside the boundaries of incorporated municipalities which on the date of this Act have the power either express or implied under their charters to grant franchises for a cable system, and the Commission shall have supervision and review jurisdiction and regulation over any action taken by incorporated municipalities, which on the date of this Act have the power either express or implied under their charters to grant franchises for a cable system, with respect to the regulation of Cable Television Systems, including the grant of or failure to grant franchises for a cable system by such municipality or the terms of any franchise now or hereafter granted for a cable system by such a municipality or the conduct of any franchisee holding a franchise from such a municipality, provided that the Commission's original and review jurisdiction and regulation shall be conducted solely in accordance with the provisions of Subchapter VI of this Act.
§202. Jurisdiction over Municipally owned Public Utilities
The Commission shall have no supervision or regulation over any public utility or over the rates, property, property rights, equipment, facilities or franchises of any public utility that is municipally owned.
§203. Certificate of Public Convenience and Necessity; When Required
(a) Subject to the provisions of subsection
(b) of this section and of sections 162, 201, and 202 of this title, no individual, copartnership, association, corporation, joint stock company, agency or department of the State, cooperative, or the lessees, trustees or receivers thereof, shall begin the business of a public utility nor shall any public utility begin any extension of its business or operations without having first obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the operation of such business or extension. This section shall not be construed to require any public utility to secure such a certificate for any extension within the perimeter of any territory already served by it. The Commission, after hearing, on the complaint of any public utility claiming to be adversely affected by any proposed extension, may make such order and prescribe such terms and conditions with respect to the proposed extension as may be required by the public convenience and necessity.
(b) If any individual, copartnership, association, corporation, joint stock company, agency or department of the State, cooperative, or the lessees, trustees or receivers thereof (or the predecessor in interest of any such person, party or legal entity), was in bona fide operation within this State on the effective date of this chapter of any electronic communication in whole or in part by wire (other than telephone including domestic public land mobile radio or telegraph service, system, plant or equipment) including, (but not limited to) cable television service, system, plant or equipment, for public use, the Commission shall issue a Certificate of Public Convenience and Necessity authorizing such person, party or legal entity without further proceedings to continue operating the said service, system, plant or equipment, to the same extent as said operations were being operated on the effective date of this chapter, such Certificate to identify by number and date of issuance the Certificate under which the applicant is carrying on such operation, if the application for such Certificate of Public Convenience and Necessity is filed with the Commission on a form approved by the Commission within 120 days after the effective date of this chapter. Pending the determination of any such application the continuance of such operation without a Certificate of Public Convenience and Necessity shall be lawful. Interruptions of service in such operations over which such person, party or legal entity, or the predecessor in interest thereof, had no control, shall not be considered in determining whether or not there has been an abandonment of any such operations. In issuing any Certificate of Public Convenience and Necessity under this subsection, the Commission, in its discretion, may define or limit the territory or territories in this State within which the activities authorized by the Certificate may be conducted, but in no case shall such territory or territories be smaller than the territory or territories in this State in which the applicant was in actual bona fide operation on the effective date of this chapter. The application for a Certificate of Public Convenience and Necessity under this subsection shall be verified and shall contain such information as the Commission deems necessary to show that the applicant was not engaged merely in isolated, incidental, intermittent, sporadic and infrequent operations. The Commission may adopt and approve such forms as it deems necessary for this purpose.
§204. Extension of Utilities Facilities
(a) The Commission may, after hearing, upon notice, by order in writing, require every public utility to establish, construct, maintain and operate any reasonable extension of its existing facilities where, in the judgment of the Commission, such extension is reasonable and practicable and will furnish sufficient revenue to justify the construction and maintenance of the same, and when the financial condition of the public utility reasonably warrants the original expenditures required in order to make and operate such extension; provided, however, the Commission shall consider, among other things, the size and amount of additional and potential customers to be served, whether the new customers will contribute to any capital expenditures required by the extension and whether the public utility must borrow funds to provide the extension of service.
§205. Reports by Public Utilities
The Commission may require every public utility to file with the Commission such annual and other periodical or special reports, at such times, in such form and of such content, and covering such period or periods of time, as the Commission may by rules and regulations or by order prescribe. The Commission may require any public utility to file with it a copy of any report filed by such public utility with any State or Federal department or regulatory body, including, but not limited to, copies of its Delaware and Federal income tax returns. A public utility that is a subsidiary of a corporation that files consolidated State or Federal income tax returns shall file with the Commission, when so requested by the Commission, proforma Delaware and Federal income tax returns based solely upon said public utility's operations in Delaware. All reports shall be made under oath or affirmation unless the Commission otherwise specifies.
The Commission may investigate, upon its own initiative or upon complaint in writing, any matter concerning any public utility.
§207. Access to, Inspection and Examination of Utility's Property and Records
The Commission, by or through its members or duly authorized representatives, shall at all times have access to and the right to inspect and examine any and all books, accounts, records, memoranda, property, plant, facilities and equipment of public utilities. Every public utility shall furnish to the Commission, within such reasonable time as the Commission may order, any information with respect to its books, accounts, records, memoranda, property, plant, facilities, equipment, service, and operations, which the Commission may require in aid of any inspection, examination, inquiry, investigation, or hearing, or in aid of any determination of the value of its property, or any portion thereof, including copies of accounts, records, books, maps, inventories, appraisals, valuations, contracts, reports of engineers, and other data, records and papers; and shall grant to all authorized agents of the Commission access to its premises, property, plant, facilities and equipment and its books, accounts, records and memoranda when requested to.
§208. Books, Records, Accounts and Systems of Accounts of Utility
(a) The Commission may, after hearing, upon notice, by order in writing, require every public utility to make, keep, and preserve for such periods of time, such accounts, records of cost accounting procedures, correspondence, memoranda, papers, 'books and other records as the Commission may by rules and regulations or order prescribe as necessary or appropriate for purposes of the administration of this chapter. The Commission may prescribe systems of accounts and records to be kept by public utilities, or may classify public utilities and prescribe a system of accounts and records for each class, and the manner and form in which such accounts and records shall be kept. The accounting system of any public utility also subject to the jurisdiction of a Federal regulatory body shall correspond, as far as practicable, to the system prescribed by such Federal regulatory body. The Commission may require any such public utility to keep and maintain supplemental or additional accounts to those required by any such regulatory body. The Commission, after notice and opportunity for hearing, may determine by order the accounts in which particular expenditures and receipts shall be entered, charged or credited.
(b) Every public utility shall keep such books, accounts, papers, records and memoranda, as are required by the Commission, in an office within this State, and shall not remove the same, or any of them, from this State, except upon such terms and conditions as may be prescribed by the Commission. Such public utility, when required by the Commission, shall furnish to the Commission. within such reasonable time as it shall fix, certified copies of its books, accounts, papers, records and memoranda, relating to the business done by such public utility within this State.
§209. Standards, Classifications, Regulations, Practices, Measurements, Services, Property and Equipment of Public Utility
(a) The Commission may, after hearing, by order in writing,
(1) Fix just and reasonable standards, classifications, regulations, practices, measurements or services to be furnished, imposed, observed and followed thereafter by any public utility.
(2) Require every public utility to furnish safe and adequate and proper service and keep and maintain its property and equipment in such condition as to enable it to do so.
(b) Nothing contained in this section shall be construed to conflict with the power of the Commission to consider the efficiency, sufficiency, consistency and adequacy of the facilities provided and the services rendered by any public utility as a factor in rate determination.
§210. Standards for measurement of supply of products; tests
The Commission may, after hearing, by order in writing, ascertain and fix adequate and reasonable standards for the measurement of quantity, quality, pressure, initial voltage or other condition pertaining to the supply of the product or service rendered by any public utility, and may prescribe reasonable regulations for examinations and test of such product or service and for the measurement thereof.
§211. Meters and measuring appliances
(a) The Commission may, after hearing, by order in writing, establish reasonable rules, regulations, specifications and standards to secure the accuracy of all meters and appliances for measurements and may provide for the examination and test of all appliances used for the measuring of any products or service of a public utility.
(b) The Commission may enter, by and through its agents, experts or examiners, upon any premises occupied by any public utility for the purpose of making the examination and tests provided for in this section and may set up and use on such premises any apparatus and appliances necessary therefor.
(c) The Commission may fix the fees to be paid by any consumer or user of any products or services of a public utility, who may apply to the Commission for an examination or test to be made of the meters or other measuring appliances of the utility. If the meter or other measuring appliance so tested shall be found to be accurate within such commercially reasonable limits as the Commission may by general or special order fix for such meters or class of meters or other measuring appliances, the fee shall be paid by the consumer requiring such test, but if not so found then the cost thereof shall be borne by the public utility furnishing the meter or other measuring appliance.
(d) All measuring devices installed subsequent to the effective date of this Act for the purpose of ascertaining bills presented by and on behalf of public utilities providing steam, manufactured gas, natural gas, electric light, heat, power and water shall be installed in a manner permitting readings from the exterior of the customer's premises. All such public utilities having measuring devices that, as of the effective date of this Act, permit only readings from the interior of the customer's premises shall, when so requested in writing by the owner of said premises, substitute measuring devices permitting exterior readings, said substitution to be effected at cost payable by the owner.
§212. Compliance with Laws, ordinances and charter
The Commission may, after hearing, upon notice, by order in writing, require every public utilities comply with the laws of this State and any ordinance of any political subdivision thereof relating thereto, and to conform to the duties imposed upon it thereby or by the provisions of its own charter, whether obtained under any general or special law of any State.
§213. Notice and report of accidents; admissibility as evidence
(a) The Commission may require every public utility to give immediate notice to the Commission of the happening of any accident in or about, or in connection with, the operation of its service and facilities, wherein any person has been killed or apparently injured, or where complaint of injuries has been made, and to furnish such full and detailed report of such accident within such time and in such manner as the Commission shall prescribe.
(b) The report required by subsection
(a) of this section shall not be open for public inspection, except by order of the Commission, and shall not be admitted in evidence for any purpose in any suit or action for damages growing out of any matter or thing mentioned in such report.
2214. Joint investigations, hearings and orders; cooperation with agencies of other States or of the United States
The Commission may make joint investigations, hold joint hearings within or without this State, and issue joint or concurrent orders in conjunction with any official, board, commission or agency of any State or of the United States. Whether in the holding of such investigations or hearings, or in the making of such orders, the Commission shall function under agreements or compacts between states or under the concurrent powers of states to regulate the interstate commerce, or as an agency of the Federal Government, or otherwise.
§215. Merger, mortgage or transfer of property: issuance of securities; assumption of obligation of another; exceptions
(a) No public utility, without having first obtained the approval of the Commission, shall
(1) directly or indirectly merge or consolidate with any other person or company, or sell, lease, assign, or mortgage except by supplemental indenture in accordance with the terms of a mortgage outstanding September 1, 1949, or otherwise dispose of or encumber any essential part of its franchises, plant, equipment or other property, necessary or useful in the performance of its duty to the public; or
(2) issue any stocks, stock certificates, or notes, bonds or other evidences of indebtedness payable in more than one year from the date thereof; or (3) assume any obligation or liability as guarantor, endorser, surety or otherwise in respect of any security of any other person or corporation, payable or maturing more than one year after the date of such issue or assumption of liability.
(b) Application for any such approval or authorization shall be made to the Commission in writing, verified by oath or affirmation, and be in such form and contain such information as the Commission requires.
(c) The Commission shall approve of any such proposed merger, mortgage, transfer, issue or assumption when it finds that the same is to be made in accordance with law, for a proper purpose and is consistent with the public interest. The Commission may make such investigation and hold such hearings in the matter as it deems necessary, and thereafter may grant any application under this section in whole or in part and with such modification and upon such terms and conditions as it deems necessary or appropriate. The Commission shall grant, modify, refuse or prescribe appropriate terms and conditions with respect to every such application or proposed merger, mortgage, transfer, issue or assumption, within 30 days after the filing of the application therefor, and in the absence of any such action within such period of time, any such proposed merger, mortgage, transfer, issue or assumption shall be deemed to be approved.
(d) Nothing contained in this section shall be construed in any wise to prevent the sale or lease or other disposition by any public utility of any of its property in the ordinary course of its business.
§216. Free passes and franks; transportation without fare
This chapter shall in no wise be construed to prevent the issuance by any public utility of free passes or franks, products or services to its employees, officers, agents, and their families, subject to such conditions as the Commission may prescribe by rule or regulation.
§217. Compliance with commission's orders; penalty
In default of compliance with any order of the Commission when the same becomes effective, the public utility affected thereby shall be subject to a penalty of up to $1,000 per day for every day during which such default continues, to be recovered in an action in the name of the State and observance of the orders of the Commission may be compelled by mandamus or injunction in appropriate cases, or by an action to compel the specific performance of the orders so made or of the duties imposed by law upon such public utility.
§218. Violations and penalties
(a) Whoever knowingly performs, commits, or does, or participates in performing, committing or doing, or knowingly causes, participates or joins with others in causing any public utility to do, perform or commit, or advises, solicits, persuades, or knowingly instructs, directs or orders any officer, agent or employee of any public utility to perform, commit or do any act or thing forbidden or prohibited by this chapter, shall be fined not more than $1,000 or imprisoned not more than 6 months or both.
(b) This section shall not apply to violations for which another specific penalty is provided in this chapter.
§219. Powers of Commission over Public Water Supplies
(a) Notwithstanding any provision of this chapter to the contrary, the Commission may upon its own motion, in an emergency situation, or after hearing upon notice, by written order require any public water supplier to comply with the regulations adopted by the State Board of Health in conformance with Title 16, Delaware Code, Section 122(3) (c).
(1) The term "public water supplier" as used in this section means any person that furnishes water for potable or domestic purposes for consumption in more than three dwelling units, or furnishes water for potable or domestic purposes to employees, tenants, members, guests or the public at large in commercial offices, industrial areas, multiple dwellings or semipublic buildings, including, but not limited to, rooming and boarding houses, hotels, motels, tourist cabins, mobile home parks, restaurants, camps of all types, day and boarding schools, club-houses, hospitals and other institutions or for use in connection with the manufacture or handling of ice, dairy products, food or drink, or offers any water for sale for potable or domestic purposes.
(2) "Person" shall include corporations, companies, associations, firms, municipally owned water utilities, partnerships, societies and joint stock companies, as well as individuals.
(3) "Dwelling Unit" means one or more rooms arranged for the use of one or more individual as a single housekeeping unit, with cooking, living, sanitary and sleeping facilities.
(c) In default of compliance with any order of the Commission issued pursuant to subsection (a) of this section, the public water supplier affected thereby shall be subject to a penalty of up to $1,000 per day for every day from and after the effective date of said order during which such default continues, to be recovered in an action in the name of the State, and observance of the orders of the Commission may be compelled by mandamus or injunction in appropriate cases, or by an action to compel the specific performance of the orders so made or of the duties imposed by law upon such public water supplier.
SUBCHAPTER III. RATES
§301. Rate schedule and rate classifications
The Commission may require every public utility to file with the Commission complete schedules of every classification employed and of every individual or joint rate, fare, or charge made, charged or executed by the public utility for any product supplied or service rendered within this State or specified in such requirement. Every application for a certificate of public convenience and necessity shall include a proposed tariff requiring approval by the Commission. A copy of all tariffs then in effect shall be available for inspection by customers at each public office of the utility where applications for service are received.
§302. Valuation of rate base
The Commission may, from time to time, ascertain and determine the rate base of any public utility whenever, in the judgment of the Commission, it is necessary so to do for the purpose of carrying out any of the provisions of this chapter, and in making such determination the Commission may have access to and use any books, documents, or records in the possession of any department, board, commission or agency of this State or any political subdivision thereof. In ascertaining and determining the rate base, the Commission may determine every fact, matter, or thing which, in its judgment, does or may have any bearing thereon.
§303. Unjust or unreasonable rates and preferences
§No public utility shall make, impose or exact any unjust or unreasonable or unduly preferential or unjustly discriminatory individual or joint rate for any product or service supplied or rendered by it within the State, or adopt, maintain or enforce any regulation, practice or measurement which is unjust, unreasonable unduly preferential or unjustly discriminatory or otherwise in violation of law, or make, or give, directly or indirectly, any undue or unreasonable preference or advantage to any person or corporation or to any particular description of traffic, in any respect whatsoever.
§304. Rate changes; notice
§Unless the Commission otherwise orders, no public utility shall make any change in any existing rate except after 60 days' notice to the Commission, which notice shall plainly state the changes proposed to be made in the rates then in force and the time when the changes will go into effect. All proposed changes shall be shown by filing new schedules or shall be plainly indicated upon schedules filed and in force at the time and kept open to public inspection. All proposed changes shall be published in a newspaper of county-wide circulation serving the area in which the proposed changes will take effect in a form approved by the Commission. The Commission, for good cause shown, may allow changes in rates without requiring the 60 days' notice and or publication under such conditions as it may prescribe. All such changes shall be immediately indicated upon its schedules by such public utility.
§305. Hearing on rate change
§Whenever there is filed with the Commission by any public utility any schedule stating a new rate, the Commission may, either upon complaint or upon its own initiative, upon reasonable notice, enter upon a hearing concerning the lawfulness of such rate.
§306. Effective date of rate change; refund bond
(§a) The Commission, upon the filing of a petition for a proposed change to any rate, may within sixty days after said filing:
(1) suspend the operation of such rate change for a period not to exceed five (5) months beyond the proposed effective date of such change or
(2) determine that a portion of such change shall become effective not later than sixty (60) days after the filing of the petition on a temporary basis pending the final decision of the Commission.
(b) Notwithstanding the entry of an order as authorized by subsection
(a) of this section the public utility may put all or a portion of such proposed rate into effect, on the date when it would have become effective, by filing with the Commission a bond in a reasonable amount approved by the Commission with sureties approved by the Commission, conditioned upon the refund, in a manner to be prescribed by order of the Commission, to the persons entitled thereto of the amount of the excess, if the rate so put into effect is finally determined to be excessive; or there may be substituted for such bond, other arrangements satisfactory to the Commission for the protection of the parties interested. In no event shall a public utility put a rate into effect under bond as authorized in this subsection
(b) that would constitute an increase in excess of fifteen percent (15%) of the public utility's gross intrastate operating revenues.
§307. Burden of proof; speedy determination
(a) In any proceeding upon the motion of the Commission, or upon complaint, or upon application of a public utility, involving any proposed or existing rate of any public utility, or any proposed change in rates, the burden of proof to show that the rate involved is just and reasonable is upon the public utility.
(b) The public utility shall have the burden of proof in justifying every accounting entry of record questioned by the Commission which may suspend any charge or credit pending submission of satisfactory and sufficient proof in support thereof by the public utility.
(c) The Commission shall give preference to the hearing and decision of any rate proceeding over all other proceedings and decide the same as speedily as possible.
§308. Service as a factor in the Commission's Regulation of a Public Utility
(a) In exercising the jurisdiction and power conferred upon the Commission by
§201 of this Act, the Commission, upon its own motion at any time it deems such action to be in the public interest or upon complaint duly filed with it, may take into consideration, among other things, the efficiency, sufficiency, and adequacy of the facilities and products provided and services rendered by the public utility, the value of such services, products and facilities to the public, and the ability of the public utility to improve such services, products and facilities. During such proceeding, the Commission may consider any service complaints by subscribers and the public. If the Commission finds that the public utility's facilities, products or services are inefficient, insufficient or inadequate, it may impose such penalty upon the public utility as may be necessary to restore such facilities, products or services to a state of efficiency, sufficiency or adequacy. Upon significant improvement in such services, products or facilities, the Commission may, after hearing, remove or reduce the penalty imposed.
(b) The power and authority herein conferred upon the Commission shall not be construed in any way to limit the general jurisdiction and power conferred upon the Commission by
§201 of this Act, it being the legislative intent that efficient, sufficient and adequate services, products, and facilities shall be provided by public utilities.
§309. Rate change by Commission initiative
(a) The Commission may, after hearing, upon notice, by order in writing, fix just and reasonable individual rates, joint rates, charges or schedules thereof, as well as commutation, mileage and other special rates, which shall be imposed, observed and followed thereafter by any public utility whenever the Commission determines any existing individual rate, joint rate, toll, charge or schedule thereof, or commutation, mileage, or other special rate to be unjust, unreasonable, insufficient, or unjustly discriminatory or preferential.
(b) No order of the Commission requiring a change in rates shall become operative until at least 30 days after service thereof except upon the written consent of the public utility affected.
§310. Temporary rate reduction on order of commission
Whenever the Commission, after due consideration of pertinent facts and information, is of the opinion that any rates of any public utility are producing a return in excess of a reasonable rate of return upon its rate base, or when appropriate, its operating ratio, and that a proceeding to determine all of the issues involved in a final determination of such rates will require more than 90 days, the Commission may, after reasonable notice to the public utility and opportunity to be heard thereon, if the public interest so requires, immediately enter a temporary order fixing a temporary schedule of rates to be charged by such public utility pending the final determination of such rate proceeding, which order shall become operative and binding upon such public utility at the time prescribed by the Commission. The power of the Commission to order reductions in rates and charges of any public utility by means of such temporary order shall be limited to reductions which will absorb not more than the amount found to be in excess of the amount of operating income, as determined by the Commission, necessary to provide a reasonable rate of return on the rate base of the public utility or when appropriate, its operating ratio. The temporary rate so prescribed shall be effective until the final determination of the rate proceeding, unless sooner terminated or changed by the Commission. If, upon final disposition of the issues involved in such proceeding, the rates as finally determined are in excess of the rates prescribed in such temporary order, then such public utility may amortize and recover by means of a temporary increase over and above the rates finally determined, such sum as represents the difference between the operating revenues obtained from the rates prescribed in such temporary order and the operating revenues which would have been obtained under the rates finally determined if applied during the period such temporary order was in effect
§311. Determination of rate by Commission
If, after hearing, the Commission finds any existing or proposed rate unjust, unreasonable or unjustly discriminatory, or in any wise in violation of law, the Commission shall determine the just and reasonable rate to be charged or applied by the utility for the service in question, and shall fix the same by order to be served upon the utility; and such rate shall thereafter be observed until changed, as provided in this chapter. In determining the just and reasonable rate to be charged, the Commission shall consider the revenue needs of the utility, its past and projected rates of return on its rate_ base, or, when appropriate, its operating ratio.
§312. Action for refund of unauthorized rate increase
If the public utility fails to make refund within 90 days after final determination by the Commission or by the Court on appeal from the Commission's order that the rate is excessive, any person entitled to such refund may sue therefor in any court of this State of competent jurisdiction and shall be entitled to recover, in addition to the amount of the refund due, all court costs and reasonable attorney's fees, but no action may be maintained for that purpose unless instituted within two years after such final determination. Any number of persons entitled to such refund may join as plaintiffs and recover their several claims in a single action, and in such action the court shall render a judgment severally for each plaintiff as his interest may appear.
§313. Depreciation account
The Commission may, after hearing, by order in writing, require every public utility to carry a reasonable and adequate depreciation account in accordance with such rules, regulations, order and forms of account as the Commission may prescribe. The Commission may, from time to time, ascertain and determine, and by order fix, the proper and adequate rates of depreciation of the several classes or property of each public utility or class of public utilities. Each public utility shall conform its depreciation accounts to the rates so ascertained, determined and fixed.
SUBCHAPTER IV. REGULATORY PROVISIONS
§401. Resident Agent
Every public utility shall file with the Commission a designation in writing of the name and post office address of a person resident within this State upon whom service of any notice, order or process may be made under this chapter. Such designation may, from time to time, be changed by like writing similarly filed.
§402. Previous and Current Meter Readings
All bills presented by and on behalf of all public utilities providing steam, manufactured gas, natural gas, electric light, heat, power or water based on meter readings shall, before being honored, show the previous and current meter readings.
§403. Expansion of facilities and services of water companies in New Castle County
(a) No water company doing business in New Castle County shall expand its facilities within New Castle County in order to service new customers or subscribers in New Castle County, or shall any such company supply water to any new or additional customers or subscribers in New Castle County until the company is furnishing water to its present customers or subscribers in New Castle County in such fashion that water pressure at every house supplied is at least 25 pounds at all times at the service connection.
(b) No water company doing business in New Castle County shall expand its facilities in order to service new customers or subscribers unless it shall furnish water to the house of each new customer or subscriber in New Castle County at the pressure of at least 25 pound at each house at all times at the service connection while continuing also to supply each old customer or subscriber at the pressure of at least 25 pounds at each house at all times at the service connection.
SUBCHAPTER V. HEARINGS AND APPEALS
§501. Persons conducting investigations, inquiries or hearings
Any investigation, inquiry or hearing which the Commission has power to undertake or hold, may be undertaken or held by or before the Commission, or any member or representative of the Commission designated by it. All investigations, inquiries or hearings before a commissioner, shall be and be deemed to be the investigations, inquiries and hearing of the Commission. Any determination or order of a commissioner upon any such investigation, inquiry or hearing undertaken or held by him shall not become and be effective until approved and confirmed by at least a quorum of the Commission; and upon such confirmation, such determination or order shall be the determination or order of the Commission.
§502. Investigation, inquiry or hearing conducted by examiner
In any investigation, inquiry or hearing, the Commission may designate any qualified officer or employee of the Commission as an examiner who may administer oaths, examine witnesses and receive evidence in any locality which the Commission, having regard to the public convenience and the proper discharge of its functions and duties, may designate. The testimony or evidence so taken or received shall have the same force and effect as if taken or received by the Commission, or by any one of the members thereof. Upon completion of such hearing or the taking of such testimony and evidence, the Examiner shall submit to the Commission his finding and recommendations thereon, which findings and recommendations shall be considered by the Commission and such action taken with respect thereto by the Commission as it decides to be proper.
§503. Rules Governing Conduct of Hearings; Finding and Order
(a) All hearings before the Commission, or its designated representative, shall be public, and shall be conducted in accordance with the rules of 'practice and procedure prescribed by the Commission. In the conduct of such hearings, the Commission shall not be bound by the technical rules of evidence. A full and complete record shall be kept of all proceedings had before the Commission, or its representative, in any formal hearing, and all testimony shall be either recorded or taken down by a reporter designated by the Commission, and a verbatim transcript prepared and the parties shall be entitled to be heard in person or by attorney, and to introduce evidence.
(b) After the conclusion of the hearing, the Commission shall make and file its findings with its opinion, if any, and its order thereon. Its findings shall be in sufficient detail to enable the Court on appeal to determine the controverted question presented by the proceeding, and whether proper weight was given to the evidence.
§504. Compelling Attendance of Witnesses and Production of Documents; Oaths; Subpoenas
(a) The Commission may compel the attendance of witnesses and the production of tariffs, contracts, papers, books, accounts, and all other documents.
(b) Any member of the Commission, or any examiner or employee designated by it, may administer oaths to all witnesses who may be called before the Commission, any member thereof, or any examiner, as the case may be.
(c) Subpoenas issued by the Commission shall be signed by a member thereof or an examiner designated by it and attested by the secretary, and may be served by any sheriff, deputy sheriff, constable, or any employee of the Commission and return thereof made to the Commission.
§505. Witness Fees and Mileage
The fees and mileage of witnesses required to attend before the Commission shall be computed at the rate allowed to witnesses in the Superior Court, such fees to be paid when the witness is excused from further attendance. The disbursements made in payment of such fees shall be audited and paid in the same manner provided for the payment of expenses of the Commission. No witness subpoenaed at the instance of parties other than the Commission shall be entitled to compensation from the State for attendance or travel unless the Commission certifies that the testimony was material to the matter investigated.
§506. Refusal to Obey Subpoena, Answer Question or Produce Documents; Contempt
If a person subpoenaed to attend before the Commission, any member or examiner thereof, fails to obey the command of such subpoena without reasonable cause, or if a person in attendance before the Commission, any member or examiner thereof, refuses without lawful cause to be examined or to answer a legal or pertinent question, or to produce a book or paper when ordered to do so by the Commission, any member or examiner thereof, the Commission or any member thereof may apply to the Superior Court in and for the county where such hearing or investigation is being held or any Judge thereof in vacation, who shall have the power of the Court for such purpose, for an order returnable in not less than 2 or more than 10 days, directing such person to show cause before the Court, or any Judge thereof in vacation, why he should not comply with the subpoena or order of the Commission. Upon the return of such order the Court or Judge, before whom the matter comes on for hearing, shall examine under oath the persons whose testimony may be relevant, and such person shall be given an opportunity to be heard, and if the Court or Judge determines that the person refused without legal excuse to obey the command of such subpoena or to be examined, or to answer a legal or pertinent question, or to produce a book or paper which he was ordered to produce, the Court or Judge may order such person to comply forthwith with the subpoena or order of the Commission, and any failure to obey such order of the Court or Judge may be punished by the Court or Judge as a contempt of the Superior Court.
§507. Privilege Against Self-Incrimination
No person shall be excused from testifying or producing any book, document or paper in any investigation or inquiry by or upon hearing before the Commission, or any member or examiner thereof, upon the ground that the testimony, evidence, book, document or paper required of such person may tend to incriminate such person or subject such person to penalty, or forfeiture, but no person shall be prosecuted, punished, or subjected to any penalty or forfeiture for or on account of any act, transaction, matter or thing concerning which he shall under oath, have testified or produced incriminating evidence. No person so testifying shall be exempt from prosecution or punishment for any perjury committed by such person in his testimony. Nothing contained in this section is intended to give, or shall be construed in any manner to give any corporation immunity of any kind.
§508. Depositions of Witnesses
The Commission, or any party to proceedings before the Commission, may cause the deposition of witnesses residing within or without this State to be taken in the same manner as prescribed by law or by rules of the Superior Court for taking depositions in civil actions.
§509. Effective Date and Service of Orders
(a) Every order made by the Commission shall be served upon the person or public utility affected thereby, within 10 days from the time the order is filed, by personally delivering or sending by certified mail a certified copy thereof to the person to be affected thereby, or in case of a public utility to any officer or agent thereof upon whom a summons may be served in accordance with the provisions of the law of this State, or to the person designated by such public utility to accept service as provided in this chapter. In any proceeding in which such person or public utility shall be represented by an attorney, service may be made upon such attorney of record.
(b) All orders of the Commission shall become effective within such reasonable time as it prescribes.
§510. Appeal from Commission's Order
(a) Any public utility affected by any final order made by the Commission, or any other original party to or any intervenor in the proceedings before the Commission in which such order was entered and affected thereby, may appeal from such order to the Superior Court within 30 days from the date upon which such order is served. The appeal shall be filed with the Prothonotary of the Court and summons in the appeal shall be served upon the secretary of the Commission either personally or sent by certified mail to the office at Dover, Delaware, and shall be served upon all other parties to the proceeding below, other than the appellant.
(b) The appeal shall not be a trial de novo but shall be based upon the record before the Commission.
(c) The scope of review before the Court shall be that the Commission's findings shall be upheld if they are supported by sufficient evidence, free of error of law and not arbitrary or capricious. When factual issues are reviewed the Court shall take due account of the presumption of official regularity and the quasi-legislative function and specialized competence of the Commission.
§511. Stay Pending Appeal
The filing of an appeal from any order of the Commission shall in no case supersede or stay the order of the Commission, unless the Superior Court so directs, and the appellant may be required by the Court to give bond in such form and of such amount as the Court, allowing the stay, requires.
SUBCHAPTER VI. REGULATION OF CABLE TELEVISION SYSTEMS
§601. Cable television franchise; requirement therefor; authority to issue; application, notice and hearing requirements
(a) No person or entity shall hereafter commence the construction of, or operate a cable television system, in whole or in part within this State outside the boundaries of incorporated municipalities which on the date of this Act have the power either express or implied under their charters to grant franchises for a system, without first obtaining a franchise under this Act for such construction and operation.
(b) The Commission is hereby authorized to grant franchises for cable television systems to be constructed or operated in whole or in part within the State outside the boundaries of incorporated municipalities which on the date of this Act have the power either express or implied under their charters to grant franchises for a system. The procedure prescribed by this subchapter for granting franchises shall be followed by the Commission and all franchises shall comply with the requirements hereof.
(c) The Commission may not grant a franchise to a system without first giving at least ninety days' public notice of its intention to receive and consider applications for a franchise, and written notice to any person constructing or operating a system in any county in which the franchise is to be granted. The public and written notice shall specify the date and procedures for filing applications, and in general terms the geographic area and conditions of the proposed franchise.
(d) The Commission may not grant a franchise except upon written application therefor filed on or before the date specified in the public notice. All applications shall be accompanied by a certified check in the amount of the filing fee, if any, specified in the public notice. All applications shall be made available by the Commission for public inspection promptly following the filing thereof and no application once filed may be amended to make substantive changes in the proposals or qualifications of the applicant if more than one application has been filed for the same franchise territory.
§602. Contents of application
All franchise applications shall consist only of the following:
(a) A description of the territory proposed to be served by the applicant.
(b) A description of station signals as required to be carried by the Federal Communications Commission.
(c) A description of locally originated program service required by the Federal Communications Commission and of the applicant's plans, time schedule and facilities for providing such service.
(d) A schedule of presently proposed maximum rates and charges for each subscriber classification, and each classification of service.
(e) A description of facilities and service not described in subsections
(c) above which at the time of the application the applicant desires to offer to the community, its governmental, educational or service agencies, including complete information concerning any applicable charges for such facilities and services.
(f) A copy of the proposed standard subscriber contract, if any.
(g) A statement demonstrating the applicant's financial qualifications include: (1) balance sheet and profit and loss statements of the applicant current within 90 days of the filing of the application; (2) estimated total cost of construction of the proposed cable system when completed to serve the entire proposed franchised area; (3) a complete financial plan for construction and operation of the proposed cable system demonstrating the applicant's financial ability to construct the system within the time specified by the applicant and in accordance with any Federal Communications Commission schedule of construction and to operate at the rates and charges proposed in the application during the first five franchise years commencing on the date service is first furnished to any subscriber. If the applicant relies on others for loans credit, advances or other means of financial assistance, the applicant must demonstrate the actual availability of such sources of financial assistance.
(h) A plat or plats showing proposed location or existing location of the receiving antennas, head-end equipment, studio, office, maintenance and construction facilities and proposed trunk routes for cable.
(i) A statement by the applicant that the cable system described in its application is and will be in full compliance with all technical rules, regulations, standards and operating policies for facilities and service of the Federal Communications Commission for community antenna television systems or cable television systems in effect at the time the proposed system is placed in operation.
(j) Full ownership identification of the applicant including:
(1) name and business address and, if other than a natural person, a description of the legal nature of the applicant stating the jurisdiction and laws under which it was formed;
(2) the name, address and position held in the applicant of all officers, directors, trustees, general or limited partners, or persons having an ownership or beneficial interest of five percent (5%) or more in the applicant or in the application; (3) identification of all other cable television interests including franchises, and the extent thereof, held by the applicant or any officer, director, trustee, or general partner of the applicant, and by any person having a five percent (5%) or greater ownership or beneficial interest in the applicant or in the application; and (4) copies of the most recent Report of Cable Television Systems and Cable Television Annual Financial Statement filed with the Federal Communications Commission by the applicant and/or any parent, subsidiary, officer, director, trustee or other person having an ownership or beneficial interest of five percent (5%) or greater in the Applicant.
(k) If the system is not fully constructed, a schedule, in phases, for construction of the system in the franchise area and for extending service throughout the franchise area.
(l) A statement by the applicant that he has read and is familiar with the provisions of this Act.
(m) At the option of the applicant, a precise statement of each term of the franchise as specified in Section 604 hereof as proposed by the applicant.
§603. Hearing and franchising procedures
(a) Upon the filing of an application or applications as provided in this subchapter, the Commission shall fix the time and place for a public hearing thereon, and give at least fourteen days' public notice of such hearing and written notice thereof to each applicant and to any person constructing or operating a system in any county in which a franchise is to be granted. At such hearing, any applicant or any member of the public desiring to be heard, shall be heard.
(b) After such hearing the Commission may grant a franchise which shall state in writing its terms as specified in Section 604; provided that, if such terms differ from those set forth in the successful applicant's application for a franchise, then that application must consent in writing to such terms before the franchise is effective. In determining whether and to whom to issue a franchise, the Commission may base its decision only on the application filed; the presentations made at public hearings by the applicant, by members of the public or by the staff of the Commission; the public need for the proposed franchise; and the likelihood that the applicant will fulfill the terms of the franchise giving consideration to the financial qualifications of the applicant, and the character of the applicant.
(c) The Commission simultaneously with the grant or denial of a franchise pursuant to this subchapter shall issue a written report setting forth the criteria upon which it based its selection or denial of the applicants for a franchise. The votes on the grant or denial of a franchise of each member of the Commission shall be recorded and made public.
§604. Franchise terms
The terms of any franchise issued under this subchapter shall be only the following:
(a) A requirement that station signals carried, local origination, services and facilities will comply with all lawful rules, regulations and laws of the Federal government then applicable to the franchisee's construction and operation of a system.
(b) Designation of the area franchised.
(c) Except where construction has commenced, dates for the commencement of initial construction, and initial service to subscribers, and, except where construction is complete, fixing the dates for the several reasonable phases whereby construction and service will be extended when and to the extent required by the Federal Communications Commission to the entire franchise area.
(d) The duration of the franchise which shall be fifteen years or such other maximum term as the Federal Communications Commission will allow with rights of renewal in the franchise for the maximum term allowed by the Federal Communications Commission upon application to the Commission not later than 6 months prior to the expiration of the current term of the franchise and upon a public hearing for the sole purpose of reviewing the franchisees performance and current qualifications.
(e) A requirement for the maintenance by the franchisee of adequate liability insurance in such amount as the Commission deems adequate, insuring the franchisee with regard to all liability for bodily injury, death and property damage. Copies of such insurance policies shall be filed and maintained with the Commission during the term of the franchise, together with written evidence of payment of required premiums.
(f) A requirement that the franchisee interrupt service only for a good cause and make repairs promptly.
(g) A requirement that the franchisee shall maintain an office open during all regular business hours, and which shall have a listed telephone toil free in the franchise area, and operated so that complaints and requests for repairs may be received at any time that television or other communications services are being furnished.
(h) A requirement that the franchisee promptly attempt to resolve service complaints and to maintain records with respect thereto for a period of one year Such records should include the original complaint if in writing or a brief description if made orally the date filed, the corrective action taken and the date thereof.
(i) A requirement that the franchisee furnish one standard cable television reception service outlet to each public school within reasonably proximity of existing cable lines for educational purposes upon request by but without cost to the public school system, to designated public buildings such as police and fire stations, and to a reasonable number of designated locations for the monitoring of performance of the system; provided, however, that nothing in this Act shall prevent the franchise from voluntarily providing service without cost to other educational, public or charitable institutions, and for reasonable promotional undertakings.
(j) A requirement that, in the case of any emergency or disaster, the franchisee shall, upon request of the Commission, make available its facilities to the Federal, State, County or local governmental units for emergency use.
(k) A requirement that the franchisee install and maintain all cables, wires, fixtures and other equipment or facilities in accordance with the National Electrical Safety Code promulgated by the National Bureau of Standards and the National Electrical Code of the National Board of Fire Underwriters, and that all structures, lines, equipment and connections in, on, under or over the highways, roads, streets, alleys or other public or private rights-of-way at all times be kept and maintained in a safe condition and in good order and repair.
(1) Designation of the site or sites for head-end, studio, office, maintenance, and construction facilities which designation shall supersede any requirements of laws or ordinances pertaining to land use.
(m) A schedule of present maximum rates and charges for all services and facilities provided by the franchisee and a requirement that the franchisee shall not discriminate or give any undue preferences or advantage to similarly situated persons in respect to such rates and charges.
(n) A requirement that the franchisee obtain approval from the Commission, after a public hearing of which public notice shall be given at least fourteen days in advance, for any increase, other than one resulting from an increase in taxes or license charges imposed on cable television- facilities, operations or income, in the maximum rates and charges in excess of five percent (5r; ) in any one twelve-month period;
(o) A requirement that the franchisee file with the Commission maps or plats showing all existing streets or subdivisions served by the system within a reasonable time after construction, and that such be kept current.
(p) At the option of the Commission, any additional terms expressly proposed by the franchisee in its application.
(q) A provision that each term of the franchise is separate and severable and in the event that any term of the franchise is held to be unconstitutional or invalid, the franchise and its remaining terms shall remain in full force and effect.
§605. Additional powers of the Commission
In addition to its powers to issue franchises, the Commission shall have the power and jurisdiction to:
(a) Conduct such investigations as may be necessary to determine compliance by a franchise with this subchapter and the terms of any franchise granted.
(b) Prescribe a nonrefundable application fee in sufficient amount, but no more, to meet the costs necessary for processing the franchise applications.
(c) Examine, upon reasonable written notice and during regular business hours, subscriber lists, repair records, service complaints, rates charged, and facilities and interview management personnel of all franchisees or applicants for franchises for the purpose of verifying applications or compliance with the terms of a franchise and of this subchapter.
(d) Intervene as a party in any action, in any court of competent jurisdiction, relating to the grant or performance of any franchise.
(e) Modify the terms of any franchise upon good cause shown by the franchisee.
§606. Termination of a franchise for failing to comply with its terms
A franchise granted pursuant to the terms of this subchapter may be revoked or terminated in whole or in part but only for failure of the franchisee to comply with the terms of the franchise, and only if the following procedure is observed:
(a) The Commission shall hold a public hearing upon fifteen days' public notice and written notice to the franchisee, which notice shall specify precisely the manner or way in which the franchisee is failing to comply with the terms of the franchise.
(b) Following the public hearing, the Commission by a majority vote of its members, by order, a copy of which shall be mailed by certified mail to the franchisee, may direct the franchisee to perform specific acts to bring itself into compliance with the terms of its franchise and may fix a reasonable time in which the franchisee may perform such acts. The franchisee either may comply with the foregoing compliance order or, within thirty days from the date of mailing of the order to it, may institute proceedings to review the compliance order by the filing of a complaint in the Court of Chancery for any county in which the franchise is located. Such proceedings shall be in accordance with the rules of procedure of the Court of Chancery. The Commission shall be the defendant in such proceedings. The filing of the complaint shall not act as a stay of the compliance order, but the Court of Chancery may, on application with notice to the Commission, and on due cause shown, grant such a stay. If, upon a hearing, it shall appear to the Court of Chancery that testimony is necessary for the proper disposition of the proceedings, it may take evidence or appoint a master to take such evidence as it may direct and report the same to the Court of Chancery, together with findings of fact and conclusions of law which shall constitute a part of the proceedings upon which the determination of the Court of Chancery shall be made. The Court of Chancery may reverse or affirm, wholly or in part, or may modify the order brought up for review.
(c) If the franchisee fails to comply with the compliance order as entered by the Commission, or in the event of a review proceedings, as affirmed or modified by the Court of Chancery, then the Commission by a majority vote of its members, by order, a copy of which shall be mailed by certified mail to the franchisee, may direct that the franchise is terminated in whole or in part and shall specify a reasonable time by which the franchisee shall remove its facilities from any public property. There shall be no review by any court in any proceedings of such a termination order, except that by the filing of a complaint, within thirty days of the date of the mailing of the termination order, in the Court of Chancery for any county in which the franchise is located, the franchisee may obtain a review of such order limited to the issue of whether or not the franchisee, at the date of the resolution terminating the franchise, had complied with the terms of the compliance order.
§607. Franchising of existing unfranchised Cable Television Systems
Notwithstanding any other provisions of this Act, the Commission shall issue a franchise to any person or entity operating or constructing prior to the effective date of this Act a system within this State outside of the boundaries of incorporated municipalities which on the date of this Act have the power either express or implied under their charters to grant franchises for a system. An application for such a franchise shall be filed within ninety days of the effective date of this Act. The application shall be in the form prescribed in Section 602 of this subchapter. A franchise granted hereunder may be conditioned upon compliance by the franchisee with such requirements of the Federal Communications Commission as may be applicable to such an existing cable system within the time specified by the Federal Communications Commission for compliance by such an existing system. The terms of a franchise under this section shall be only the designation of the area franchised which shall be at least co-extensive with any portion of the State in which the system is operating or under construction and the terms specified in Section 604
(c) through 604 (q) provided that such terms do not require the franchisee to perform any act which would conflict in any way with any contract it may have on the effective date hereof or to charge rates for services different than any rates now being charged for services or to diminish or increase any services provided or any areas served on the effective date hereof. Construction and operation of such systems may lawfully be continued pending the filing of such application, the issuance of a franchise, and the acceptance thereof by the applicant. If the franchise issued under this section is not accepted by the applicant within sixty days from the date of issuance, all construction and operating authority shall terminate, unless the Commission shall otherwise order.
§608. Municipal franchises
The Commission may review any franchise now or hereafter granted by incorporated municipalities of this State which, on the effective date of this Act, have the power either express or implied under their charters to grant franchises for a system for the construction or operation of cable television systems within their boundaries, and whenever the public interest requires, change or modify such franchise or the conduct of the franchisee thereunder so that such franchise or such conduct complies with the provisions of this subchapter governing franchises granted by the Commission if such a municipality refuses to grant a franchise and the Commission finds that such refusal is not in the public interest, the Commission may award a franchise under this subchapter.
§609. Transfer of franchise or control of franchise
(a) No franchise shall be transferred, otherwise than by operation of law, or assigned to a person or entity without prior approval of the Commission.
(b) No transfer of legal control of a franchise to a person or entity not a party to the original franchise application shall be made without prior approval of the Commission.
(c) Applications for approval of transfer or assignments must be made in writing and shall contain such information about the transferee or assignee as would be required about an applicant in an application for a franchise under Section 602 of this chapter.
(d) Approval of applications for transfers and assignments shall be granted, unless after hearing, which shall not otherwise be required, the Commission shall find that service to subscribers of the franchise would be affected adversely. Any denials under this section shall be accompanied by a report of the Commission in writing setting forth in detail the facts upon which the denial is based.
(e) This section shall not apply to or restrict transfers or assignments between parent and subsidiary corporations or between entities of which at least fifty percent (50%) of the beneficial ownership is held by the same persons or entities.
§610. Payments to Commission
(a) Subject to any restrictions imposed by the Federal Communications Commission, the Commission is authorized to prescribe an annual payment by every franchisee to the Commission in such sum as will equal the necessary costs incurred by the Commission in performing its duties hereunder, but in no event shall such sum exceed two percent (2%) of the gross subscription receipts of any franchisee or shall any franchisee pay a greater percent of its gross subscription receipts than any other franchisee pays. Gross subscription receipts shall include the basic monthly service charges for cable television reception service outside the boundaries of incorporated municipalities which on the date of this Act have the power either express or implied to grant franchises for a system but shall not include monies received as installation charges, charges for reconnection, inspection, repairs, or modifications of any installation, or local, State or Federal taxes, relating thereto, or monies received from:
(1) sale of advertising time on cable channels;
(2) rental or deposits on equipment or facilities; (3) the furnishing of special programming not covered by the basic monthly service charge; (4) the furnishing of other communications services either by private contract or as a carrier, including by way of example but not limited to leasing of channels, burglar alarm, AM or FM radio broadcast, data transmission information storage and retrieval, and facsimile reproduction services; and (5) any source other than directly from the carriage of television signals.
(b) No fees or payments other than those specifically provided in this subchapter may be levied by or collected on behalf of the Commission.
§611. Certificate of Compliance
(a) Upon substantial completion of construction and when service is available in a substantial portion of the franchised territory, the franchisee shall certify to the Commission that
(1) the Cable Television System has been constructed and is operating in full compliance with technical performance standards as prescribed by the Federal Communications Commission; (ii) that all services required to be furnished under the rules and regulations of that Commission are being furnished, or, if not, the date upon which such services will be available, and that all services comply with all applicable rules and regulations of the Commission; and (iii) that the system and services comply in all respects with the provisions of the franchise and this subchapter.
(b) In the event such certification cannot be made, temporary waiver of the requirements of any provision of the franchise or of this subchapter shall be granted by the Commission to a date specified on a showing of good cause.
§612. Occupancy of public ways
All cable systems holding a franchise granted under this Act or by a municipality having the power either express or implied under its charter to grant a franchise to a system shall have the right to occupy the public highways, streets, roads, alleys, turnpikes and waterways within this State, provided that within incorporated municipalities, they shall have received permission to do so from the municipality, and without incorporated municipalities, they shall have complied with such written regulations established by the State Highway Department for the occupancy and use of such public ways by telephone corporations and such occupancy and use will not unduly interfere with preexisting use of such public ways by any public utility.
§613. Acquisition of franchisees of easements
Any franchisee may acquire an easement across, in or on public or private lands or waterways in this State which already have thereon or therein poles, wires, conduits, pipes, cables or other such facilities owned or maintained by a public utility, for the purpose of erecting, constructing, maintaining or operating any facilities to provide cable television or communications service to the public, including poles, wires, cables, guides, conduits and apparatus, which can be installed in the same manner, above or below ground, as the public utility facilities already on or in the property, by a taking in accordance with Chapter 61 of Title 10 which provides a method of fixing fair compensation if the easement should impose any additional burden on the property interest of the utilities or any other concern or person.
§614. Criminal penalties
(a) Any applicant for a cable television franchise, or any franchisee who knowingly makes any false statement in any application, or in support thereof, or who knowingly falsifies any records required by this subchapter to be kept, shall be deemed to have committed a misdemeanor.
(b) Any person who knowingly attaches or causes to be attached to any cable system, television receiving devices without the consent in writing of the cable system, shall be deemed to have committed a misdemeanor.
(c) The Superior Court may impose or fine not to exceed two thousand dollars ($2,000.00) for each act which constitutes a misdemeanor under this section.
§615. Judicial review and enforcement of acts by a Commission
(a) Except where judicial review is otherwise expressly provided for herein, in the event that the Commission by action or inaction, shall fail to comply with the terms of this subchapter, the exclusive remedy for any aggrieved person shall be to file, within thirty days of the act or failure to act complained of, a complaint in the Court of Chancery. In such proceedings, the jurisdiction of the Court of Chancery shall be limited to determining whether or not the Commission has complied with the terms of this subchapter, and, upon a finding that the Commission has not complied with the terms of the subchapter, to entering such order, including one for the payment of damages, as it deems appropriate.
(b) Except where a franchise is to be terminated, where the procedures of Section 606 apply, whenever any person shall fail to comply with the terms of this subchapter, or with the terms of any order or directive of the Commission made in compliance with the terms of this subchapter, the Commission may file a complaint in the Court of Chancery seeking such relief as is appropriate to compel compliance.
Any provision of this Act, or of any franchise issued pursuant thereto, or any rule, regulation or practice, adopted or imposed by the Commission, which is inconsistent with any provision of the Communications Act of 1934, as amended, or any final rule or regulation now or hereafter adopted by the Federal Communications Commission shall be null and void. This Act is intended to preempt any County franchising or regulation of cable television or communication systems.
Section 2. Within one hundred eighty (180) days from the effective date of this Act, the Commission shall make rules and regulations governing the filing of applications and complaints.
Section 3. This Act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before its effective date.
Section 4. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.
Approved June 28, 1974.