86-128. Certificate or permit of convenience and necessity.

(1)(a) To preserve the integrity of a ubiquitous network, to preserve and advance universal service, and to ensure the delivery of essential and emergency telecommunications service, telecommunications common carriers and telecommunications contract carriers in Nebraska are subject to regulation by the commission. In addition to the requirements of section 86-129, a person shall file an application and receive either a certificate of convenience and necessity as a telecommunications common carrier or a permit as a telecommunications contract carrier before such person may (i) offer any telecommunications service or (ii) construct new telecommunications facilities in, or extend existing telecommunications facilities into, the territory of another telecommunications company to provide any telecommunications service.

(b) The commission may only issue a certificate of convenience and necessity as a telecommunications common carrier or a permit as a telecommunications contract carrier after due notice and hearing pursuant to commission rules and regulations. The commission shall not issue a certificate or a permit to an agency or political subdivision of the state.

(2) If a telecommunications company holds a certificate of convenience and necessity as a telecommunications common carrier, it shall not be required to obtain a permit as a telecommunications contract carrier.

(3) The commission may establish such just and reasonable classifications of groups of telecommunications common carriers and telecommunications contract carriers taking into consideration the special nature of the telecommunications service performed by such carriers. The commission may adopt and promulgate rules, regulations, and requirements to be observed by a carrier so classified or grouped as the commission deems necessary or desirable and in the public interest.

(4) The commission may waive applicability of subsection (1) of this section as to the provision of intra-LATA interexchange service under rules and regulations applicable to all telecommunications companies providing such interexchange service. After such waiver, the certificate or permit for and provision of intra-LATA interexchange service shall be governed by the statutes, rules, and regulations for a certificate or permit for and provision of inter-LATA interexchange service.

Source

Annotations

1. Certificate of convenience and necessity

2. Miscellaneous

1. Certificate of convenience and necessity

The appellant's application seeking authority to operate a mobile telephone service to subscribers was denied by the court. Before granting a certificate of convenience and necessity, the commission must find that the portion of the territory of another telephone company into which the applicant proposes to construct new lines or extend existing lines does not or will not, within a reasonable time, receive reasonably adequate telephone service from the telephone company already serving the territory. In re Application of Best, 209 Neb. 524, 308 N.W.2d 726 (1981).

Under the facts in this case, the Nebraska Public Service Commission had no jurisdiction to order a motel to cease and desist from offering or providing telephone service on its inhouse telephone system without first obtaining from it a certificate of public convenience and necessity. Sherdon v. Dann, 193 Neb. 768, 229 N.W.2d 531 (1975).

This section (formerly section 75-604) does not prevent State Railway Commission from authorizing service under 1969 act by telephone company to applicant residing in another telephone company's service area without an application by former company to extend its certificate of public convenience and necessity. Schoen v. American Communication Co., Inc., 189 Neb. 78, 199 N.W.2d 716 (1972).

The territory of a certificated telephone service company cannot be invaded by a mobile telephone service company unless it first applies for and receives a certificate of public convenience and necessity. Radio-Fone, Inc. v. A.T.S. Mobile Telephone, Inc., 187 Neb. 637, 193 N.W.2d 442 (1972).

The invasion of the territory of a telephone company rendering long distance service by another telephone company is prohibited unless the invading company applies for and receives a certificate of convenience and necessity. Northwestern Bell Tel. Co. v. Consolidated Tel. Co., 180 Neb. 268, 142 N.W.2d 324 (1966).

Before State Railway Commission can issue certificate of convenience and necessity allowing one telephone company to invade the territory of another, it must make specific findings required by this section (formerly section 75-604). Chambers Rural Tel. Co., Inc. v. K. & M. Tel. Co., Inc., 179 Neb. 735, 140 N.W.2d 400 (1966).

The grant of a certificate of convenience and necessity to invade the territory of another company must be on the application of the invading company. Sherdon v. American Communication Co., 178 Neb. 454, 134 N.W.2d 42 (1965).

2. Miscellaneous

Subsection (1)(b) of this section is preempted by federal law and is unconstitutional. In re Application of Lincoln Electric System, 265 Neb. 70, 655 N.W.2d 363 (2003).

Sections 75-604 to 75-616 apply only to common carriers. Nebraska Pub. Serv. Comm. v. Nebraska Pub. Power Dist., 256 Neb. 479, 590 N.W.2d 840 (1999).

Where evidence sustains a compliance with this section (formerly section 75-604), and a valid reason for denial is not shown, railway commission should grant application. Northwestern Bell Tel. Co. v. Pleasant Valley Tel. Co., 181 Neb. 799, 150 N.W.2d 922 (1967).