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title-37•Title 37 — Public Utilities and Public Transportation
title-37Ala. Code tit. 37CodeJan 1, 1900
A commission to be known as the Public Service Commission is established with seven commissioners as provided under Section 37-1-3.
(Code 1886, §1120; Code 1896, §3481; Code 1907, §5632; Acts 1915, No. 746, p. 865; Code 1923, §9605; Code 1940, T. 48, §1; Act 2026-345, §2.)
The commission shall have a seal with the words “Alabama Public Service Commission” with such emblem as the commission may prescribe.
(Code 1886, §1121; Code 1896, §3482; Code 1907, §5637; Code 1923, §9610; Code 1940, T. 48, §6.)
(a)(1) The terms of office of the commissioners shall be for four years for all commissioners serving on or before June 1, 2026.
(2) At the general election held in November 1940, and every four years thereafter until the general election held in November 2028, a president of the commission shall be elected by the qualified electors of this state; and at the general election held in November 1942, and every four years thereafter until the general election held in November 2026, two associates, who, with the president, shall constitute the commission, shall be elected by the qualified electors of the state. The result of such election shall be ascertained and declared by the same authority and in the same manner as are the results of election for Chief Justice and associate justices of the Supreme Court.
(b)(1) Beginning after June 1, 2026, as further provided in this subsection, the membership of the commission shall be expanded so that each commissioner shall represent and serve, and be elected by the qualified voters of, a geographical district that shall be identical to a corresponding congressional district, as fixed and established for the 2024 congressional elections. Each commissioner must have been a resident of the state for a period of seven years immediately before taking office and reside in the state while in office. The Secretary of State and Governor shall ensure that commissioners are phased in so that each of the seven congressional districts are represented by the terms beginning in January 2033.
(2) No later than July 15, 2026, the Governor shall appoint four commissioners to serve initial terms beginning January 18, 2027, two of whom shall serve a two-year term and two of whom shall serve a four-year term. When making appointments, the Governor shall choose: (i) one individual for a two-year term and one individual for a four-year term from a list of three names submitted for each position. The lists shall be jointly submitted by the Lieutenant Governor, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate; and (ii) one individual for a two-year term and one individual for a four-year term from a list of three names submitted for each position. The lists shall be jointly submitted by the Minority Leader of the House of Representatives and the Minority Leader of the Senate. The lists shall be provided to the Governor not later than June 1, 2026.
(3) The elections of commissioners shall be phased in and staggered as follows:
a. At the general election held in November 2026, two commissioners shall be elected in the same manner as commissioners were elected before June 1, 2026, as provided in subdivision (a)(2).
b. At the general election held in November 2028, one commissioner shall be elected to replace the commissioner previously known as president of the commission and two commissioners shall be elected to replace the two commissioners who were appointed to serve a two-year term. The commissioners shall be elected by congressional districts, including one commissioner who must represent the Seventh Congressional District.
c. At the general election held in November 2030, two commissioners shall be elected to replace the two commissioners who were appointed to serve a four-year term. The commissioners shall be elected by congressional districts, including one commissioner who must represent the Second Congressional District.
d. At the general election held in November 2032, the commissioners shall be elected by the remaining unrepresented congressional districts.
(c)(1) All commissioners who are elected after June 1, 2026, shall serve terms of six years that begin on the first Monday after the second Tuesday in January following the general election.
(2) Any reference in this act to a congressional district shall refer to the congressional districts established for the 2024 congressional election. The Code Commissioner shall conform references to congressional districts as appropriate.
(d) If any vacancy occurs in any one of the offices, caused by death, resignation, or otherwise, the office shall be filled by appointment by the Governor to serve for the remainder of the unexpired term. If any individual elected to the office of public service commissioner fails or refuses for 30 days to qualify, the failure or refusal shall be deemed a vacancy in the office. When making an appointment to fill a vacancy in a congressional district held by the majority party of the Legislature, the Governor shall choose one individual from a list of three names jointly submitted by the Lieutenant Governor, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate. When making an appointment to fill a vacancy in a congressional district held by the minority party of the Legislature, the Governor shall choose one individual from a list of three names jointly submitted by the Minority Leader of the House of Representatives and the Minority Leader of the Senate.
(e) At the beginning of each term, starting with the term elected in November 2028, the commissioners shall elect a president and vice-president from among the membership of commissioners.
(f) The provisions of this section shall not diminish the current term of any member elected to the Public Service Commission.
(Code 1886, §§1120, 1122; Code 1896, §§3481, 3483; Code 1907, §§5633-5636; Code 1923, §§9606-9609; Code 1940, T. 48, §§2-5; Acts 1961, No. 669, p. 916; Acts 1979, No. 79-767, p. 1368; Act 2013-375, p. 1377, §1; Act 2026-345, §2.)
The members of the commission shall be state officers, and before entering upon the discharge of their duties they shall take the oath of office prescribed for other state officers.
(Code 1886, §1121; Code 1896, §3482; Code 1907, §5637; Code 1923, §9610; Code 1940, T. 48, §6.)
(a) Public service commissioners, the Secretary of Energy, the spouse and children of any commissioner or the secretary, and employees of the commission, personally or through any partner or agent, may not render any paid service for public utilities.
(b) A utility regulated by the Public Service Commission may not make a contribution to any candidate running for the office of a public service commissioner.
(c) The commissioners shall be subject to the ethics laws under Chapter 25 of Title 36.
(d) No commissioner, for a fee, reward, or other compensation, in addition to that received in his or her official capacity, shall represent any person before the Legislature or any executive department or agency.
(Code 1886, §1127; Code 1896, §3488; Code 1907, §5646; Code 1923, §9624; Code 1940, T. 48, §26; Act 2026-345, §2.)
No person owning any stock in any utility, or in the employment of any utility or pecuniarily interested in any utility, as defined in this title, shall be eligible to the office of public service commissioner.
(Code 1886, §1123; Code 1896, §3484; Code 1907, §5638; Code 1923, §9612; Acts 1932, Ex. Sess., No. 297, p. 302; Code 1940, T. 48, §7.)
The commissioners may be impeached and removed from office by the supreme court for the same causes and in the same manner as other state officers; and any commissioner who shall accept directly or indirectly any gift, gratuity, emolument or employment from any person, firm, corporation, company or association, owning or operating in whole or in part in this state a utility, as defined in this title, during his continuance in office, except a pass for himself or any employee of the commission on official business, shall forfeit his office and may be impeached and removed from office therefor, or for any other cause of impeachment.
(Code 1886, §1124; Code 1896, §3485; Code 1907, §5639; Code 1923, §9613; Acts 1932, Ex. Sess., No. 297, p. 302; Code 1940, T. 48, §8.)
The commissioners shall have an office at Montgomery, Alabama, and shall meet there a minimum of once a month, with the public information officer giving notice of the monthly meeting at least one week prior to the meeting, and shall remain in session until all business before them is disposed of; and they shall hold other meetings at such times and places as may be necessary for the proper discharge of their duty, or as the convenience of parties in the judgment of the commission may require. They shall keep a record of all their proceedings, which shall be open at all times to the inspection of the public.
(Code 1886, §1120; Code 1896, §3487; Code 1907, §5642; Code 1923, §9620; Code 1940, T. 48, §9; Acts 1996, No. 96-472, p. 586, §1; Act 2000-461, p. 859, §3.)
[Repealed]
THIS SECTION WAS REPEALED BY ACT 2026-345 EFFECTIVE JUNE 1, 2026.
Each member of the commission shall devote his or her full time to his or her official business and may reside anywhere within this state.
(Acts 1920, No. 42, p. 92; Code 1923, §9615; Code 1940, T. 48, §10; Act 2013-375, p. 1377, §1.)
The domicile of the Public Service Commission is fixed at the Capitol of the state in Montgomery, Montgomery County, and no court of the state other than those of Montgomery County shall have or take jurisdiction in any civil action or proceeding brought or instituted against said commission, unless otherwise expressly authorized by this Code.
(Acts 1907, Ex. Sess., No. 15, p. 29; Code 1923, §9876; Code 1940, T. 48, §11.)
Subject to the provisions of this section, the President of the Public Service Commission and each of the Associate Commissioners of the Public Service Commission shall continue to receive the annual salary and the monthly expense allowance in the amount set by law on April 25, 1994. Effective at the beginning of the next term of office of any member of the commission, the President of the Public Service Commission shall receive a salary of seventy-five thousand dollars ($75,000) per year and the Associate Commissioners of the Public Service Commission shall receive a salary of seventy thousand dollars ($70,000) per year, and shall not receive a monthly expense allowance. The president and associate commissioners shall not receive any cost-of-living salary increase granted to state officers and employees for the fiscal year beginning October 1, 1994.
(Code 1886, §1125; Code 1896, §3486; Code 1907, §5640; Acts 1919, No. 698, p. 1006; Code 1923, §9614; Acts 1933, Ex. Sess., No. 138, p. 124; Code 1940, T. 48, §12; Acts 1957, No. 572, p. 794; Acts 1966, Ex. Sess., No. 189, p. 220; Acts 1981, No. 81-773, p. 1334, §1; Acts 1983, No. 83-618, p. 958; Acts 1994, No. 94-610, p. 1125, §1.)
AMENDED BY ACT 2026-345, EFFECTIVE JUNE 1, 2026. SEE ACT FOR REVISED LANGUAGE.
The commission, under the provisions of the merit system, shall have the authority to appoint or employ attorneys, officers, and such accountants, engineers, experts, inspectors, clerks and other employees as are necessary or expedient to carry out the duties conferred by law upon the commission, and the salaries therefor shall be fixed according to the provisions of the merit system. The commission shall also, by and with the approval of the Governor, have authority to employ and discharge special counsel or attorneys as it may be deemed necessary for such purpose.
(Acts 1920, No. 37, p. 38; Acts 1920, No. 42, p. 92; Code 1923, §9617; Code 1940, T. 48, §13.)
The commission is hereby authorized and empowered to employ technically qualified personnel to serve as members of its staff and under its direction and supervision, including but not limited to an accountant, a utility rates analyst, an economist and such other experts as the commission may determine to be necessary in the proper discharge of the commission’s duties as prescribed by law.
(Acts 1977, 1st Ex. Sess., No. 44, p. 1458, §1.)
The commission shall employ such stenographic and other clerical assistants, and special investigators, as it may require for the performance of its duties. Such assistants and investigators shall be employed subject to the provisions of the state merit system law.
(Acts 1977, 1st Ex. Sess., No. 44, p. 1458, §2.)
Any regular or special employee of the Public Service Commission who divulges any fact or information coming to his knowledge respecting any inspection, examination or investigation of any account, record, memorandum, book or paper, or of the property and facilities of a utility, except insofar as he may be authorized by the commission or a court of competent jurisdiction, or a judge thereof, is guilty of a misdemeanor, and upon conviction shall be fined not more than $1,000.00.
(Acts 1907, Ex. Sess., No. 15, p. 29; Acts 1920, No. 42, p. 92; Code 1923, §5388; Code 1940, T. 48, §15.)
Before entering upon the duties of his office, the supervisor of accounts of the Public Service Commission shall execute to the State of Alabama a bond, to be approved by the Governor, in an amount to be fixed by the Public Service Commission, for the faithful performance of his duties.
(Acts 1943, No. 122, p. 123; Acts 1961, Ex. Sess., No. 208, p. 2190.)
The following persons may, at the discretion of such carrier, pass free of charge on all railroads and all other common carriers and may, at the discretion of such carrier, receive free tickets, passes and transportation from such carriers: employees of railroads and any and all other common carriers and their families; widows and dependent children of deceased employees; employees who have retired from active service, by reason of age or physical infirmities, and the wives and dependent children of the latter; officers or agents, surgeons, physicians and attorneys-at-law of any such railroads and other common carriers, and the immediate families of such persons; sheriffs; ministers of religion; traveling secretaries of the Young Men’s Christian Association and the Young Women’s Christian Association; inmates of hospitals and charitable and eleemosynary institutions and persons exclusively engaged in charitable and eleemosynary work; indigent, destitute and homeless persons; persons transported by charitable societies and hospitals and the necessary agents employed in such transportation; widows of soldiers who served during the War Between the States; inmates of a national home or state home for disabled volunteer soldiers and the sailors’ and soldiers’ homes, including those persons about to enter and those returning home after discharge and boards of managers of such homes; necessary caretakers of livestock, poultry and fruit; employees on sleeping cars, express cars and buses; linemen of telegraph and telephone companies; railway mail service employees; post-office inspectors; custom inspectors; immigration inspectors; newsboys on trains; baggage agents; witnesses attending any legal investigation or civil action in which such carrier is interested; persons injured in wrecks, when being transported from the place of injury to their homes or places of treatment and physicians and nurses attending such persons. Members of the Public Service Commission and its agents and employees, when traveling on official business, may pass free of charge on all the railroads and all other common carriers and may receive free tickets, passes and transportation from such carriers. Also, all such carriers may interchange passes, free tickets and transportation for the officers, agents and employees and their immediate families of all such carriers, and all such carriers may carry passengers free with the object of providing relief in cases of general epidemic, pestilence or other calamitous visitation. Editors and publishers of newspapers in Alabama may exchange with all railroads and all other common carriers in this state advertisements and space in the columns of their newspapers for mileage issued to such editors and publishers of newspapers.
(Code 1923, §§5373, 9638; Acts 1931, No. 273, p. 303; Code 1940, T. 48, §14.)
(a) In addition to such staff assistants and investigators as are provided for in Sections 37-1-12.1 and 37-1-12.2, the Attorney General shall assign an Assistant Attorney General and such staff attorneys as may be necessary to the handling of matters and proceedings before the commission, who shall be under the direction of the Attorney General. Such Assistant Attorney General shall be assigned the duty and responsibility, when the Attorney General deems it to be advisable in the public interest, of intervening in proceedings before the commission on behalf of the using and consuming public, including utility users generally and agencies of the state, such appearances including, but not being limited to, rate applications, rate changes and curtailments of service. Such Assistant Attorney General shall also have the authority to institute and originate proceedings before the commission in the name of the state, its agencies and citizens in all matters within the jurisdiction of the commission, and shall have authority to appear before such other state and federal agencies and courts as he deems advisable on behalf of the state and its agencies and citizens in all matters affecting public utility services. He shall have the assistance and cooperation of the commission’s staff, when available, and access to the commission’s books, records, studies and reports.
(b) In the performance of the duties set forth in this section, the Attorney General shall have the right to employ additional attorneys, expert witnesses and office and clerical help and to incur expenses in connection therewith, and the compensation and expenses therefor shall be paid from the consumer’s utility rate hearing fund as provided for in Section 37-1-18.
(c) The commission shall furnish the Attorney General with copies of all applications, petitions and pleadings filed with it by public utilities doing business in this state or by any other persons in matters affecting the duties under this section.
(Acts 1977, 1st Ex. Sess., No. 44, p. 1458, §3.)
It shall be the duty and responsibility of the commission’s staff to make economic and financial studies and surveys of the public utility services in the state and evaluations of future needs for such services and to compile financial and economic data, statistics and analysis on such services. Such information shall be kept on file for reference by the commission.
(Acts 1977, 1st Ex. Sess., No. 44, p. 1458, §4.)
Each fiscal year, including the fiscal year of the enactment of this section, there is hereby appropriated from the State General Fund the sum of $250,000.00, which funds shall be immediately deposited into a Consumer’s Utility Rate Hearing Fund in the State Treasury under the Office of the Attorney General, to be drawn upon by the Attorney General for purposes of hiring attorneys, staff personnel, and expert witnesses to present the case for the consumer in utility rate increase hearings and all appeals arising therefrom. At the end of each fiscal year, any surplus remaining in the Consumer’s Utility Rate Hearing Fund shall forthwith be transferred to the State General Fund.
(Acts 1977, 1st Ex. Sess., No. 44, p. 1458, §5; Acts 1994, No. 94-691, p. 1331, §1.)
Whenever the word “utility” or “utilities” is used in this chapter, the same shall include all utilities defined under Sections 37-2-1 and 37-4-1.
(Code 1940, T. 48, §16.)
The rights, powers, authority, jurisdiction and duties by this title conferred upon the commission shall be exclusive and, in respect of rates and service regulations and equipment, shall be exercised notwithstanding any rights heretofore acquired by the public under any franchise, contract or agreement between any utility and municipality, county or municipal subdivision of the state, and shall be exercised, so far as they may be exercised consistently with the Constitution of the state and of the United States, notwithstanding any right heretofore so acquired by any such utility.
(Acts 1920, No. 37, p. 38; Code 1923, §9813; Code 1940, T. 48, §17.)
The Public Service Commission shall have general supervision of all persons, firms and corporations operating utilities mentioned in this title, shall inquire into the management of the business and shall keep itself informed as to the manner and method in which the business is conducted. It shall examine such utilities as often as may be necessary to keep informed as to their general condition, their franchises, capitalization, rates and other charges, and the manner in which their plants, equipment and other property are owned, leased, controlled, managed, conducted and operated, not only with respect to adequacy, security and accommodation afforded by their service, but also with respect to their compliance with the provisions of this title, and any other law or laws, with the orders of the commission, and with the charter and franchise requirements. It shall assemble and keep on file, available for the use of the public, full statistics on the foregoing, as well as on all other matters or things connected with such utilities as is necessary to a full knowledge of their business and affairs.
(Acts 1915, No. 746, p. 865; Code 1923, §9633; Code 1940, T. 48, §18.)
None of the provisions of this title shall apply to the generation, transmission or distribution of electricity, to the manufacture or distribution of gas, to the furnishing or distribution of water, or to the production, delivery or furnishing of steam for heat or power by a producer who is not otherwise a utility, for the sole use of such producer, or for the use of tenants of such producer, nor shall they apply to any person not otherwise a utility who manufactures and supplies such products to a utility for its use or distribution without participation by such manufacturer in such use or distribution.
(Acts 1920, No. 37, p. 38; Code 1923, §9743; Code 1940, T. 48, §19.)
Nothing contained in this title shall be deemed to confer upon the commission the power and jurisdiction to regulate and supervise any utility owned and operated by any municipal corporation in the state.
(Acts 1915, No. 746, p. 865; Code 1923, §9633; Code 1940, T. 48, §18.)
Nothing in this title is intended or shall be construed:
(1) To limit or restrict the police jurisdiction or power of municipalities over their streets and other highways and public places or the power to maintain or the power to require maintenance of the same;
(2) To limit or restrict any right or power, by contract or otherwise, of any municipality to require utilities to pave and maintain the portions of highways used and occupied by them;
(3) In respect of matters other than rates and service regulations and equipment, over which exclusive jurisdiction is conferred by this title upon the commission to affect existing rights and powers or rights and powers hereafter acquired by municipalities under valid contracts with utilities;
(4) In respect of matters other than rates and service regulations and equipment, to repeal any power of any municipality to adopt and enforce reasonable police regulations and ordinances in the interest of the public safety, morals and convenience, or to protect the public against fraud, imposition or oppression by utilities within their respective jurisdiction, or to require the discharge by utilities of their respective duties within such municipalities, whether arising out of contract with the municipality or by statute or regulation by the commission or otherwise.
(Acts 1920, No. 37, p. 38; Code 1923, §9814; Code 1940, T. 48, §20.)
When a person is engaged in business, a portion of which business is private business and a portion of which is the business of a utility, the authority, powers and jurisdiction of the commission conferred upon it by law shall not be deemed to apply to and shall not be exercised with respect to that portion of said business which is a private business.
(Acts 1920, No. 37, p. 38; Code 1923, §9743; Code 1940, T. 48, §19.)
This title shall not apply to logging or private railroads not doing business as common carriers.
(Code 1907, §5649; Code 1923, §9627; Code 1940, T. 48, §21.)
The commission may adopt and publish rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings before it, provided all hearings shall be open to the public.
(Code 1907, §5643; Code 1923, §9621; Code 1940, T. 48, §22.)
Every order of the commission shall be in writing, and in cases of importance may be accompanied by an opinion, setting forth, in brief, the facts on which the commission has based its order. The commission shall provide for the assembling and publication, from time to time, of its opinions and orders.
(Acts 1920, No. 37, p. 38; Code 1923, §9818; Code 1940, T. 48, §24.)
Every utility subject to the supervision of the Public Service Commission, and all officers, agents and employees of the same shall obey, observe and comply with every order made by the Public Service Commission under the authority of this title.
(Acts 1907, Ex. Sess., No. 15, p. 29; Code 1923, §9871; Code 1940, T. 48, §23.)
On or before January 10 of each year, the Public Service Commission, through the president thereof, shall make to the Governor, for transmission to the legislature, a report of its acts and doings for the year ending on September 30 next preceding, setting forth such facts as will disclose the actual workings of utilities of this state, and making such suggestions as to it may seem appropriate, and for the best interests of the state. Such reports may be made public immediately upon the filing with the Governor.
(Code 1886, §1142; Code 1896, §3503; Code 1907, §5645; Code 1923, §9623; Code 1940, T. 48, §25.)
The commission shall, on request of the Director of the Department of Revenue, furnish such information as will assist in the assessment of taxes against persons or corporations operating utilities.
(Code 1886, §1141; Code 1896, §3502; Code 1907, §5655; Code 1923, §9637; Code 1940, T. 48, §27.)
All the authority, powers and jurisdiction which have been given by law to the Alabama Public Service Commission over utilities engaged in intrastate commerce in this state are hereby given to said commission over utilities whose principal place of business is located outside the State of Alabama, but who are engaged in this state in interstate commerce not regulated under the acts of the Congress of the United States to the extent that the exercise by said commission of such authority, powers and jurisdiction over such utilities engaged in interstate commerce is permissible.
(Acts 1923, No. 516, p. 687; Code 1923, §9649; Code 1940, T. 48, §28.)
When the commission is of the opinion that the interstate rates, charges, practices, rules or regulations of any utility are unjust, unreasonable, excessive, discriminatory or otherwise in violation of the Interstate Commerce Act, or other federal acts relating to utilities, or any of the rules and orders or regulations promulgated by the Interstate Commerce Commission or by any such federal agency or commission having jurisdiction thereof, the commission may apply by proper proceeding to the proper agency or commission for relief.
(Acts 1920, No. 42, p. 92; Code 1923, §9718; Code 1940, T. 48, §29.)
The members of the commission may sit with and confer with other state utility commissions and public service commissions, either within or without the state, in general utility matters; but in no event shall the commission make any order without proceeding to carry out the other provisions of this title in respect to notice and hearings.
(Acts 1920, No. 42, p. 92; Code 1923, §9721; Code 1940, T. 48, §32.)
In any proceedings involving directly or indirectly any rate, charge, practice, rule, or regulation in force in the State of Alabama, the commission through any of its members may sit with and confer with the Interstate Commerce Commission, Federal Power Commission, Federal Communications Commission, the Securities and Exchange Commission or any other federal commission or agency.
(Acts 1920, No. 42, p. 92; Code 1923, §9719; Code 1940, T. 48, §30.)
When, in any proceeding before the Interstate Commerce Commission, Federal Communications Commission, Federal Power Commission, Securities and Exchange Commission or any other federal bureau or agency, any interstate rate or regulation or any interstate rate, charge, regulation, rule or practice in the State of Alabama is drawn in question or affected, the commission may through its members or agents intervene in such case, take part therein and make such contentions as it shall deem proper.
The commission additionally may, through its members or agents, initiate or participate in, as a real party in interest or as a permissive party with a recognized interest in the outcome, any litigation, administrative hearings or any other proceedings before the Interstate Commerce Commission, Federal Communications Commission, Federal Power Commission, Securities and Exchange Commission, Tennessee Valley Authority or any other federal bureau, agency or instrumentality whenever deemed in the best interest of the utility ratepayers in Alabama.
Nothing in this section shall be deemed to permit such intervention, initiation, or participation in any litigation, hearings, or proceedings involving municipal utilities, cooperatives, electric membership corporations, and other similar membership corporations, including specifically, but not by way of limitation, those such entities referred to in Chapters 50 and 50A of Title 11, Chapters 6 and 7 of Title 37, and Chapter 7 of Title 39, as amended.
(Acts 1920, No. 42, p. 92; Code 1923, §9720; Code 1940, T. 48, §31; Acts 1988, 1st Ex. Sess., No. 88-910, p. 487, §1.)
Any utility accepting under the provisions of this title any rate or service regulation more favorable to it than provided by any ordinance or contract under which it claims rights from any municipality shall be held to waive any and all terms and conditions in such ordinance or contracts as to rates and service regulations in its favor and to submit the same in all respects to reasonable regulations by the state or its lawful agencies.
(Acts 1920, No. 37, p. 38; Code 1923, §9815; Code 1940, T. 48, §33.)
Every utility shall maintain its plant, facilities and equipment in good operating condition and shall set up and maintain proper reserves for renewals, replacements and reasonable contingencies. Every utility shall render adequate service to the public and shall make such reasonable improvements, extensions and enlargements of its plants, facilities and equipment as may be necessary to meet the growth and demand of the territory which it is under the duty to serve.
(Acts 1920, No. 37, p. 38; Code 1923, §9769; Code 1940, T. 48, §34.)
No utility shall abandon all or any portion of its service to the public except ordinary discontinuance of service for nonpayment of charges, nonuser and similar reasons in the usual course of business, unless and until written application is first made to the commission for the issuance of a certificate that the present or future public convenience or necessity permits such abandonment and the issuance of such a certificate. Upon the filing of such application and after a hearing of all parties interested, the commission may or may not, in its discretion, issue such certificate.
(Acts 1920, No. 37, p. 38; Code 1923, §9798; Code 1940, T. 48, §35.)
The commission may provide for a comprehensive classification of service for each utility, and such classification may take into account the quantity used, the time when used, the purpose for which used or any other reasonable consideration. Each utility is required to conform its schedule of rates to such classification.
(Acts 1920, No. 37, p. 38; Code 1923, §9791; Code 1940, T. 48, §36.)
The commission may prescribe adequate standard of service rendered or to be rendered by any utility, and may prescribe regulations for the examination and testing of such service and for the measurement and regulations thereof.
(Acts 1920, No. 37, p. 38; Code 1923, §9782; Code 1940, T. 48, §37.)
Each telecommunications utility and/or company that provides operator service shall ensure that a caller may access a live operator through a method designed to be easily and clearly understandable and accessible to the caller. A telecommunications utility and/or company shall submit to the Public Service Commission the method by which the utility and/or company shall provide access to a live operator for review, except for a telecommunications utility and/or company that is under the jurisdiction, regulation, and rules of the Alabama Public Service Commission. This section applies regardless of the method by which the telecommunications utility and/or company provides the operator service. The requirements of this section shall not apply to telephones located in prison or jail facilities.
(Acts 1993, No. 93-756, p. 1511, §1.)
(a) The commission may prescribe reasonable rules, regulations and standards to secure the substantial accuracy of all meters, safety devices, regulators and mileage indicators and appliances for measurement which shall be complied with by the utility and consumer.
(b) The commission may provide for the inspection of the manner in which any utility complies with the rules, regulations and standards fixed by the commission to secure the accuracy of all meters, safety devices, regulators, mileage indicators and appliances for measurement, and the commission may examine and test the same under such rules and regulations as it may prescribe. At all inspections and tests made in pursuance of complaints, representatives of the utility complained of and of the complainant may be present.
(c) Any consumer or user may have any meter or appliance for measuring tested by the commission upon payment of fees fixed by the commission. The commission shall declare and establish reasonable fees to be paid for examining and testing such appliances on the request of consumers, the fee to be paid by the consumer or user at the time of his request, but to be paid by the utility and refunded to the consumer or user if the measuring appliances are found unreasonably defective or incorrect to the substantial disadvantage of the consumer or user.
(Acts 1920, No. 37, p. 38; Code 1923, §§9783-9785; Code 1940, T. 48, §§38-40.)
(a) The commission may, when it deems it advisable to do so, establish a uniform system of accounts for each utility, which system shall be uniform for all utilities of the same kind and class, and may make such regulations regarding the accounts and statistics of each utility for the purpose of insuring uniform and correct books of account and record as in the judgment of the commission may be necessary to carry out any of the provisions of this title.
(b) Every utility shall keep its books, papers and records accurately and faithfully according to the system of accounts and regulations prescribed by the commission, and shall comply with all reasonable directions of the commission relating thereto.
(Acts 1920, No. 37, p. 38; Code 1923, §§9786, 9788; Code 1940, T. 48, §§41, 42.)
Where railroads are required to keep their accounts and records and do keep them in accordance with the requirements of any law of the United States or uniform system of accounts prescribed by the Interstate Commerce Commission, the information therein reflected shall be sufficient, and they shall not be required to make any further or other separation of intrastate operations than is reflected and required by such federal law or uniform system of accounts prescribed by the Interstate Commerce Commission, unless additional or more detailed information from the records of the company is deemed necessary and is ordered by the commission relating to intrastate commerce in Alabama.
(Acts 1949, No. 89, p. 113; Acts 1971, 1st Ex. Sess., No. 97, p. 171, §1.)
The commission may prescribe such changes in the form in which the schedules and service regulations are issued by any utility as may be found to be expedient.
(Acts 1920, No. 37, p. 38; Code 1923, §9790; Code 1940, T. 48, §43.)
Every utility, when and as required by the commission, shall file with the commission such annual, or other reports, and such other information as the commission may desire.
(Acts 1920, No. 37, p. 38; Code 1923, §9789; Code 1940, T. 48, §44.)
Every utility doing business in this state must, within 90 days after the close of business for its preceding fiscal or calendar year, make to the commission in the manner prescribed, and upon the blanks to be furnished by said commission, annual returns of the business of such utility, and any such utility failing to make such reports unless granted an extension by the Alabama Public Service Commission, shall forfeit to the state $50.00 for each day of failure.
(Acts 1920, No. 42, p. 92; Code 1923, §9739; Code 1940, T. 48, §45; Acts 1982, No. 82-555, p. 916.)
The commission may also require utilities to file additional reports of earnings and operating expenses within a specified time, and may require specific answers to questions upon which it may desire information to be made in such reports.
(Acts 1907, Ex. Sess., No. 15, p. 29; Code 1923, §9861; Code 1940, T. 48, §47.)
The Public Service Commission shall prescribe the form of the annual or other reports and records required to be made by utilities. The form of such reports and records shall conform as near as may be to that required from time to time by the Interstate Commerce Commission or other federal agency where applicable, but the commission may from time to time make such changes therein and additions thereto as it may deem proper. The commission shall prepare and distribute to every utility blank forms for any reports required under this title.
(Acts 1907, Ex. Sess., No. 15, p. 29; Acts 1920, No. 37, p. 38; Code 1923, §§9789, 9858; Code 1940, T. 48, §§44, 46.)
The originals of the reports shall be subscribed and sworn to, and shall be preserved in the office of the commission.
(Acts 1907, Ex. Sess., No. 15, p. 29; Code 1923, §9860; Code 1940, T. 48, §48.)
All reports, records and accounts in the possession of the commission shall be open to inspection by the public at all times, except as otherwise provided for in this title, or as ordered by the commission, and under the rules prescribed by the commission.
(Acts 1920, No. 37, p. 38; Code 1923, §9812; Code 1940, T. 48, §49.)
Each of the commissioners, and any examiners appointed by the commission, for the purposes mentioned in this title, and in all hearings before the commission, may administer oaths, certify to official acts, issue subpoenas, compel the attendance of witnesses and the production of books and papers.
(Acts 1920, No. 37, p. 38; Code 1923, §9800; Code 1940, T. 48, §74.)
The Attorney General shall represent the Public Service Commission in any and all legal proceedings which it may have the power to institute and which, pursuant to such power, it has instituted, and in all legal proceedings against it, and shall institute such legal proceedings which the commission may request or deem necessary, provided it has the power to institute them, to enforce the provisions of this title or compel obedience to and observance of the same by any person, firm, company, or corporation, upon which such obedience or observance is imposed. The Attorney General, with the approval of the Governor, may employ any special counsel to institute or defend such legal proceedings or to assist the Attorney General therein, and to contract with the special counsel concerning a reasonable compensation for his or their services, which compensation shall be paid out of the treasury on a warrant drawn by the comptroller on the treasury upon approval by the Governor.
(Acts 1907, Ex. Sess., No. 21, p. 43; Code 1907, §5723; Code 1923, §9672; Code 1940, T. 48, §50.)
Unless otherwise in this title provided, all actions to enforce penalties or forfeitures under this title shall be brought in the name of the State of Alabama in a court of competent jurisdiction in Montgomery County, Alabama. Whenever any utility is subject to a penalty or forfeiture under this title, the commission shall certify the facts to the Attorney General, who shall institute and prosecute an action for recovery of such penalty; provided, the commission may compromise such action and dismiss the same on such terms as the court will approve. All penalties and forfeitures recovered by the state in such actions shall be paid into the treasury to the credit of the general fund.
(Acts 1920, No. 37, p. 38; Code 1923, §§9755, 9756, 9819; Code 1940, T. 48, §51.)
Members of the enforcement division of the Public Service Commission designated in writing by the Public Service Commission shall have the powers of peace officers and deputy sheriffs in this state, and may exercise such powers anywhere within the state as to the provisions of this title and as to the rules and regulations of the Public Service Commission only.
(Acts 1971, 3rd Ex. Sess., No. 257, p. 4522.)
(a) The rates and charges for the services rendered and required shall be reasonable and just to both the utility and the public. Every utility shall be entitled to such just and reasonable rates as will enable it at all times to fully perform its duties to the public and will, under honest, efficient and economical management, earn a fair net return on the reasonable value of its property devoted to the public service. For the purpose of fixing rates, such reasonable value of a public utility’s property shall be deemed to be the original cost thereof, less the accrued depreciation, as of the most recent date available. In any determination of the commission as to what constitutes such a fair return, the commission shall give due consideration among other things to the requirements of the business with respect to the utility under consideration, and the necessity, under honest, efficient and economical management of such utility, of enlarging plants, facilities and equipment of the utility under consideration, in order to provide that portion of the public served thereby with adequate service.
(b) Notwithstanding subsection (a) or any other provision to the contrary, the commission retains its authority to consider and adopt alternative methods of regulation of a utility as defined in Section 37-1-30 to establish rates and regulations for services furnished by the utility that are fair, just, and reasonable to the public and that provide fair, just, and reasonable compensation to the utility for the services.
(1) For the purposes of this subsection, the phrase “alternative methods of regulation” means the regulation of utility rates and service regulations by methods other than a determination of net return on a predetermined rate base.
(2) After June 20, 1995, any proceeding to adopt an alternative method of regulation as defined in subdivision (1) shall be initiated by application of the utility seeking such alternative regulation, by the commission on its own motion, or by the Attorney General as provided in Section 37-1-16.
(Acts 1920, No. 37, p. 38; Code 1923, §9770; Code 1940, T. 48, §52; Acts 1949, No. 89, p. 113; Acts 1971, 1st Ex. Sess., No. 97, p. 171, §1; Acts 1978, No. 850, p. 1273, §1; Acts 1995, No. 95-210, p. 340, §1.)
When South Central Bell Telephone Company receives an increase in its net return as the result of any order issued by the Alabama Public Service Commission or a contingent increase as the result of a supersedeas order issued by a court of proper jurisdiction, which results in an increase in settlement revenues paid by South Central Bell Telephone Company to any connecting telephone company through any interconnecting agreement or otherwise, the Alabama Public Service Commission will review the financial earnings of each affected connecting company, and if such earnings exceed that authorized by the Public Service Commission and the law, will direct such companies to reduce local exchange rates and charges in such amounts as to comply with authorized earnings; provided, that where the connecting telephone company receives a contingent increase in settlement revenues from South Central Bell Telephone Company as the result of a supersedeas order issued to South Central Bell Telephone Company by the court, such connecting telephone company shall have the right to file a new schedule of rates and charges with the commission recovering any repayment which may be required by it arising out of any judicial modification or vacation of said supersedeas order. This section shall apply to any increase in net return to South Central Bell Telephone Company or its successors or assigns.
(Acts 1978, No. 817, p. 1191.)
(a) The Alabama Public Service Commission shall impose a surcharge on each access line of each customer of the local exchange companies operating in Alabama to fund a dual party relay system whereby a deaf or hearing-impaired person may communicate with other such persons or with hearing persons via telephone. The fee may be imposed by order of the Alabama Public Service Commission on the access line.
(b) The Alabama Public Service Commission shall establish the amount to be imposed based on the amount of funding necessary to implement and maintain such system. However, no additional fees other than the surcharge may be imposed on any user of this deaf and hearing-impaired service.
(c) The local exchange companies shall collect the surcharge from their customers and transfer the moneys collected to the Alabama Public Service Commission to be deposited into a special fund established by the State Treasurer to be held separate from all other funds and used for the administration of this system and other purposes. The fund shall be known as the State Dual Party Relay Fund and shall be administered as provided in subsections (e), (f), and (g). In addition to using funds collected from this surcharge for the administration of this system, the Dual Party Relay Fund Board of Trustees, through the Alabama Public Service Commission, shall transfer from the Dual Party Relay Fund established in this section to the State Dual Party Relay Fund established by the State Treasurer the amount of thirty million dollars ($30,000,000). These funds shall be transferred in the amount of seven million five hundred thousand dollars ($7,500,000) before each of the following four dates: October 15, 2011January 15, 2012April 15, 2012July 15, 2012
After July 15, 2012, thirty million dollars ($30,000,000) shall be transferred from the State Dual Party Relay Fund established by the State Treasurer to the Education Trust Fund.
All funds collected pursuant to this section are hereby appropriated for the purposes provided for in this section.
The surcharge collected by the local exchange companies from their customers shall not be subject to the utility gross receipts tax levied under Sections 40-21-80 through 40-21-87 or the utility use tax levied under Sections 40-21-100 through 40-21-107, nor shall such collections be included in the gross receipts subject to tax under Section 40-21-58 or the supervision and inspection fees under Sections 37-4-23 and 37-4-24.
(d) The Alabama Public Service Commission shall be charged with implementation of the dual party relay system within the state and shall establish the procedures for its continuation.
(e) The Dual Party Relay Fund shall be governed by the Dual Party Relay Fund Board of Trustees, appointed by the Alabama Public Service Commission. On behalf of the Dual Party Relay Fund, the trustees may select an administrator, service provider, and auditing firm, and may obtain other services and execute such other contracts as may be necessary to carry out their duties. All costs associated with the implementation of the system and the functions of the Dual Party Relay Fund and its board of trustees, including, without limitation, any insurance costs, shall be paid out of the Dual Party Relay Fund. The trustees shall not be paid for their service, but shall be reimbursed for their actual and reasonable expenses in carrying out their duties. The trustees shall submit an annual report to the Alabama Public Service Commission regarding the condition of the fund, which shall include a copy of an annual audit.
(f) As part of its administration of the dual party relay system, the trustees may authorize the funding of other telephone services to people who are deaf, hard of hearing, deaf/blind and speech impaired, including the provision of informational services to the blind; provided, however, that no existing service provided to the deaf or hearing impaired shall be terminated or curtailed as a result of any such additional program.
(g) Absent negligence, wantonness, recklessness, or deliberate misconduct, a trustee shall not be subject to civil liability for any act or omission in carrying out his or her duties as a trustee. In addition, those trustees who are officials or employees of the Alabama Public Service Commission shall receive the benefit of any immunities that would normally apply to such official or employee in carrying out his or her official duties.
(h) Nothing in this section shall invalidate contracts entered into prior to July 1, 2006, which contracts are hereby ratified and confirmed.
(Acts 1988, No. 88-259, p. 400; Act 2006-384, p. 982, §§1, 2; Act 2011-567, p. 1144, §1.)
(a) Whenever a utility desires to put in operation a new rate or service regulation or to change any existing rate or service regulation, it shall file with the commission a new schedule embodying the same, not less than 30 days prior to the time it desires to make the same effective; but the commission may, upon application of the utility, prescribe a less time within which the same may be made effective. In the absence of suspension or disapproval by the commission, as herein provided, the new rate or service regulation embodied in any such new schedule shall become effective at the time specified in such schedule, subject however to the power of the commission at any time thereafter to take any action respecting the same authorized by this title.
(b) To enable it to make such investigation as, in its opinion, the public interest requires, the commission, in its discretion, for a period not exceeding six months may suspend the operation of any new schedule of rates or service regulations filed with the commission. Unless as a result of its investigation the commission otherwise orders before the termination of such period of six months, such rate or service regulation shall thereupon become effective. The commission may make any order in the premises which it is authorized by any of the provisions of this title to make in any investigation or complaint or on its own motion without complaint.
(Acts 1920, No. 37, p. 38; Code 1923, §§9771, 9772; Code 1940, T. 48, §§53, 54; Acts 1971, 1st Ex. Sess., No. 89, p. 144, §1.)
(a) The retail base rates established and in place on October 1, 2026 for each utility that is regulated by the commission and that provides retail electric service may not be increased before January 1, 2029.
(b) On and after January 1, 2029, a utility that provides retail electric service may not factor the following costs into the calculation or determination of a new rate or service regulation or a change to an existing rate or service regulation charged to customers of the utility:
(1) Costs incurred due to the utility providing funding or grants that impact rates to other persons or organizations.
(2) Costs incurred due to the hiring of persons for the purpose of lobbying the Legislature or any other political office or subdivision of the state.
(3) Costs incurred due to advertisement of the utility other than public safety advertising approved by the commission.
(c)(1) When an electric utility files a new schedule to put in operation a new rate or service regulation or to change an existing rate or service regulation, the utility shall affirm that the utility has not included the prohibited costs under subsection (b) in the calculation or determination of the rate or service regulation.
(2) If the electric utility fails to make the affirmation, the rate or service regulation shall be void.
(d) If the commission discovers that a utility has included the prohibited cost under subsection (b) in the calculation or determination of rates or service regulations, the commission shall investigate the determination pursuant to Section 37-1-83 and other powers of investigation granted to the commission pursuant to this division.
(Act 2026-345, §3.)
The commissioners and staff of the commission shall convene at least one public meeting per calendar year with utility representatives to provide information to the public on cost trends, reliability, resilience, general infrastructure investment plans, economic development impacts, security of the power grid, national trends in energy production, and other regulatory issues the Secretary of Energy deems relevant. The public meetings shall be conducted in a manner that gives residents the opportunity to participate, addresses concerns voiced by the public, and provides a review of key issues that the secretary believes will be helpful to the public in understanding issues that impact services under its jurisdiction.
(Act 2026-345, §3.)
(a) After the mandated prohibition on increasing retail base rates that runs until January 1, 2029, as provided in Section 37-1-81.1, a formal hearing to examine specific issues relative to the rate making process and to provide greater transparency and direction to the establishment of base retail rates, with testimony provided under oath, shall be triggered upon the occurrence of:
(1) An affirmative vote of at least five commissioners designating the issues to be examined and the timing and scope of the formal hearing; or
(2) The direction of the Secretary of Energy specifying the issues to be examined and the timing and scope of the formal hearing.
(b) In determining whether to conduct a formal hearing, the secretary and the commissioners shall consider all relevant factors, including:
(1) The base retail rate customers pay relative to the national average;
(2) The base retail rate customers pay relative to the regional average;
(3) Customer satisfaction reports;
(4) Reliability of the power grid;
(5) Operational efficiency of generating facilities;
(6) Capacity to accommodate economic development priorities; and
(7) The relevant utility’s credit rating and ability to raise necessary capital.
(c) The secretary and commissioners, when implementing the provisions of this section, shall have the power to administer oaths under penalty of perjury and issue subpoenas pursuant to Section 37-1-63.
(Act 2026-345, §3.)
(a) The commission, by order, may require any utility or any officer or agent thereof to produce within the state, at such reasonable time and place as it may designate, any books, records, accounts or documents kept in any office or place without or within the state, or certified copies thereof, whenever the production thereof is reasonably required and pertinent to any matter under investigation before the commission, in order that an examination thereof may be made by the commission, or by any person employed by the commission.
(b) The commission shall examine and inspect, or cause to be examined and inspected, at reasonable times and in a reasonable manner, under its authority, the books, records, accounts, documents, plant, property and facilities of any utility, whether there is any proceeding by or against the utility then pending before the commission or not. Every utility, its officers and agents shall make all its books, records, accounts and documents available at its principal office or place of business in this state, for examination and inspection by the commission or its authorized representatives or employees, whenever the commission may deem it in the public interest that such examination or inspection should be made. Every utility, its officers and agents shall make available all and every part of its plant, property and facilities for examination and inspection by the commission or its authorized representatives or employees, whenever the commission may deem it in the public interest that such examination or inspection should be made; and any person shall produce, when so required, his authority from the commission to make such examination or inspection under the seal of the commission.
(Acts 1920, No. 37, p. 38; Acts 1923, No. 82, p. 62; Code 1923, §§9780, 9781; Code 1940, T. 48, §§55, 56.)
Upon a complaint in writing made against any utility by any mercantile, agricultural or manufacturing society, or by any body politic or municipal organization, or by any affected person, that any rate, service regulation, classification, practice or service in effect or proposed to be made effective is in any respect unfair, unreasonable, unjust or inadequate, or unjustly discriminatory, or unduly preferential, or constitutes unfair competition, or that the service is inadequate or cannot be obtained, the commission shall proceed, and without such complaint, the commission, whenever it deems that the public interest so requires, may proceed, after notice as provided in this division, to make such investigation as it may deem necessary or appropriate; but no order affecting such rates, service regulation, classification, practice, or service complained of shall be entered by the commission without notice and a hearing. Any utility may make complaint as to any matter within the provisions of this title with like effect as though made by any mercantile, agricultural or manufacturing society, body politic or municipal organization, or other person. However, when any such complaint in writing is filed, the same shall be set down for hearing within 90 days from the date of the filing thereof, which said hearing may be continued for an additional period not to exceed 90 days, unless the parties to said proceeding agree upon further continuance.
(Acts 1920, No. 37, p. 38; Code 1923, §9773; Code 1940, T. 48, §57.)
Such action or complaint shall be commenced by filing a complaint with the Public Service Commission alleging wherein the rate or rates, or order or orders complained of are invalid or unfair or unreasonable.
(Code 1907, §5685; Code 1923, §9676; Code 1940, T. 48, §58.)
Whenever the commission shall determine to conduct an investigation either with or without complaint, as in this title provided, it shall fix a time and place for public hearings of the matters under investigation.
(Acts 1920, No. 37, p. 38; Code 1923, §9774; Code 1940, T. 48, §59.)
(a) Before proceeding to make such investigation, the commission shall give the utility and the complainant at least 10 days’ notice of the time and place when and where such matters will be considered and determined, and all parties shall be entitled to be heard, through themselves or their counsel, and shall have process to enforce the attendance of witnesses.
(b) Whenever the commission shall make any order or determination, or issue any subpoena, notice or writ, notice thereof may be served on the person affected thereby by delivering a copy of such order, subpoena, notice or writ, signed by or in the name of the chairman of the commission, to any such person or an officer or agent of such person, if a corporation, as in the case of civil process, which service may be executed by any member of the commission, the secretary or any employee thereof, or by any sheriff of the state, and a copy of such order, subpoena, notice or writ, with the service endorsed thereon, must be returned to the commission and entered of record as a part of the proceedings, and such endorsement and return shall be prima facie evidence that such order, subpoena, notice or writ has been duly served.
(Acts 1920, No. 37, p. 38; Code 1923, §§9775, 9799; Code 1940, T. 48, §§60, 61.)
Every person, firm, corporation, copartnership, association, or organization affected thereby may by petition intervene and become a party to any proceeding before the commission.
(Acts 1935, No. 228, p. 624; Code 1940, T. 48, §65.)
In any hearing, proceeding or investigation conducted by the commission, any party may be heard in person or by attorney.
(Acts 1920, No. 37, p. 38; Code 1923, §9776; Code 1940, T. 48, §62.)
(a) At the hearing held pursuant to such notice, the commission may take such testimony as may be offered, or as it may desire, and may make such other further investigation as in its opinion is desirable.
(b) The commission, by appropriate order in any case, may appoint or designate a special examiner or one of the commission to take evidence at such time and place as designated by the commission in the order. The laws which now provide for the attendance of witnesses, the giving of testimony, the punishing for contempt, the production of evidence and the payment of witnesses at hearings before the commission shall apply to and govern hearings and examinations conducted by such special examiner or commissioner when acting under an order of the commission. A transcript of the evidence, together with all the exhibits received at such hearings or examinations shall be promptly conveyed to and filed with the secretary of the commission for the consideration of the commission in reaching its decision.
(Acts 1920, No. 37, p. 38; Acts 1920, No. 42, p. 92; Code 1923, §§9727, 9775; Code 1940, T. 48, §§61, 66.)
When complaint is made of more than one rate or service, the commission may, when justice or convenience so requires, order separate hearings thereon and may thereupon hear and determine the several matters complained of separately and at such times as it may prescribe.
(Acts 1920, No. 37, p. 38; Code 1923, §9776; Code 1940, T. 48, §62.)
No person shall be excused from attending and testifying, or from producing books and papers before the commission, or in obedience to the subpoena of the commission, whether such subpoena is issued or signed by one or more of the members of the commission, in any investigation held by or before the commission, or in any civil action or proceeding in any court by or against the commission, provided for in this title, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may be required to testify or produce evidence, documentary or otherwise before said commission, or in obedience to its subpoena, or in any such action or proceeding. No person testifying shall be exempted from prosecution and punishment for perjury committed in so testifying.
(Acts 1920, No. 37, p. 38; Code 1923, §9803; Code 1940, T. 48, §67.)
The commission or, with the consent of the commission, any party to any proceeding before the commission, may, in any investigation, cause depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for depositions in civil actions in circuit courts, such depositions to be taken on a commission to be issued by the secretary of the commission, made returnable to the commission.
(Acts 1920, No. 37, p. 38; Code 1923, §9804; Code 1940, T. 48, §68.)
Each witness who shall appear before the commission by its order shall receive for his attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of proper vouchers, sworn to by such witness and approved by the president of the commission; but no witness subpoenaed at the instance of parties other than commissioners shall be entitled to compensation from the state for attendance or travel, unless the commission shall certify that his testimony was material to the matter investigated, and witnesses summoned on behalf of the utility shall be paid by said utility.
(Code 1886, §1140; Code 1896, §3501; Code 1907, §5675; Code 1923, §9658; Code 1940, T. 48, §70.)
The commission shall, within 90 days after the completion of the hearings and arguments, if any, and the filing of briefs, if any, in any case submitted to it, or upon a rehearing thereof, decide said case, or if for any good and valid reason it shall be unable to decide the same within said period, then at the expiration of said 90-day period, the commission shall make and file and serve upon all the interested parties a written order stating its reason for its inability to decide said case within said time, and may extend the time for decision for a period not to exceed 90 days.
(Code 1940, T. 48, §77.)
Whenever, after investigation in accordance with the provisions of this title the commission shall be of the opinion that any provision or requirement of this title or any order of the commission is being, has been, or is about to be violated, it may make and enter of record an order in the premises, specifying the actual or proposed acts or omission to act which constitute such real or proposed violation and requiring that such violation be discontinued or rectified, or both, or that it be prevented.
(Acts 1920, No. 37, p. 38; Code 1923, §9778; Code 1940, T. 48, §63.)
No order shall be made by the commission affecting any rate or service, except as otherwise specifically provided, unless or until a public hearing has been held in accordance with the provisions of this title.
(Acts 1920, No. 37, p. 38; Code 1923, §9778; Code 1940, T. 48, §63.)
Whenever, upon an investigation made under the provisions of this title, the commission shall find any existing rate or rates or any regulation or practice whatsoever or any service, unreasonable or unjustly discriminatory, or any service inadequate, it shall so determine and by order fix, to the extent that it is within its power to do so, a reasonable rate, fare, charge, classification or joint rate as between like carriers, to be imposed, observed and followed in the future in lieu of that found to be unreasonable or unjustly discriminatory, or inadequate, as the case may be. All utilities to which the order applies shall make such changes in their schedule of rates, fares, charges or classifications as may be necessary to make the same conform to said order, where such order relates to rates, fares, charges or classification, and no change shall thereafter be made by any utility in such rates, fares, charges or classification, or joint rate or rates, or in the service or practice so ordered, without the approval of the commission.
(Code 1907, §5678; Code 1923, §9661; Code 1940, T. 48, §64.)
Certified copies of orders of the commission shall be delivered to any officer, superintendent, or agent of the utility affected thereby.
(Code 1907, §5678; Code 1923, §9661; Code 1940, T. 48, §64.)
All rates, fares, charges, classifications and joint rates and orders establishing rules, regulations, practices or services fixed by the commission shall be in force and shall be deemed prima facie reasonable and valid in any court wherein the reasonableness or validity thereof is properly drawn in question, and the burden shall be upon the party attacking said rates or orders to show that same are invalid or unfair and unreasonable.
(Acts 1907, Ex. Sess., No. 21, p. 43; Code 1907, §5683; Code 1923, §9666; Code 1940, T. 48, §71.)
Unless a different time is prescribed by the commission, every order of the commission shall be effective 20 days after the service thereof, and shall be served immediately after its entry of record upon every party required to obey the same.
(Acts 1920, No. 37, p. 38; Code 1923, §9806; Code 1940, T. 48, §73.)
At any time after the entry thereof, the commission, in the manner provided for in the making thereof, may alter, amend, annul or otherwise modify any order, but no such modification shall in any way affect the validity of any act done or omitted by any utility on the faith of such order, or in pursuance of its terms, prior to notice of the modification thereof.
(Acts 1920, No. 37, p. 38; Code 1923, §9807; Code 1940, T. 48, §75.)
A full and complete record of all proceedings before the commission on any investigation had and all testimony therein shall be taken down by the stenographer selected by the commission. A copy of such transcript shall be furnished on demand to any party to such investigation, or other person, upon the payment of the cost of transcribing the testimony, not exceeding $1.00 per folio.
(Acts 1907, Ex. Sess., No. 21, p. 43; Code 1907, §5677; Code 1923, §9660; Code 1940, T. 48, §69.)
A substantial compliance by the commission with the requirements of this title shall be sufficient to give effect to all rules, orders, acts, and regulations of the commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature, in respect thereto.
(Acts 1920, No. 37, p. 38; Code 1923, §9802; Code 1940, T. 48, §72.)
In case of failure or refusal on the part of any person to comply with any valid order of the commission or of any commissioner, or any subpoena, or on the refusal of any witness to testify or answer as to any matter regarding which he may be lawfully interrogated, any circuit court in this state, or any judge thereof, on application of a commissioner, may issue an attachment for such person and compel him to comply with such order, or to attend before the commission and produce such documents and give his testimony upon such matters as may be lawfully required, and the court or judge shall have power to punish for contempt as in cases of disobedience of a like order or subpoena issued by or from such court, or a refusal to testify therein.
(Acts 1920, No. 37, p. 38; Code 1923, §9801; Code 1940, T. 48, §78.)
At any time after an order has been made by the commission, any person interested therein may apply for a rehearing in respect to any matter determined therein, and the commission shall grant and hold such rehearing within 60 days after the said application therefor has been filed, and such rehearing shall be subject to such rules as the commission may prescribe. Application for such a rehearing shall not excuse any utility or person from complying with or obeying an order of the commission, or operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct. Any order of the commission made after such rehearing shall have the same force and effect as an original order, but shall not affect any right, or the enforcement of any right, arising from or by virtue of compliance with the original order prior to the order made after rehearing.
(Acts 1920, No. 37, p. 38; Code 1923, §9808; Code 1940, T. 48, §76.)
From any final action or order of the commission in the exercise of the jurisdiction, power and authority conferred upon it by this title, an appeal therefrom shall lie to the Circuit Court of Montgomery County.
(Code 1907, §9832; Acts 1909, No. 42, p. 96; Code 1923, §9831; Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §79.)
Any intervenor or interested party may appeal from any final order of the commission within the time, in the manner and upon the conditions provided by this title for appeals from orders of the commission.
(Acts 1932, Ex. Sess., No. 232, p. 233; Acts 1935, No. 228, p. 624; Code 1940, T. 48, §80.)
All appeals shall be taken within 30 days from the date of such action or order and shall be granted as a matter of right and be deemed perfected by filing with the Public Service Commission a bond for security of cost of said appeal, when the appellant is a utility or person, and by filing notice of an appeal when the appellant is the State of Alabama.
(Code 1907, §9832; Acts 1909, No. 42, p. 96; Code 1923, §9831; Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §79.)
Within 30 days after the perfecting of the appeal and sooner if practicable, the Public Service Commission, through its president or any member thereof, or its secretary, shall certify to the appellate court under the seal of the commission a complete record or transcript of all the proceedings had before it, including all orders and pleadings together with a transcript of all oral testimony, and the original or a transcript of all documentary evidence taken in the proceeding in which the order appealed from was made. The time for certifying said transcript to said appellate court may be extended by an order of the judge thereof, for good cause shown.
(Acts 1909, No. 42, p. 96; Code 1923, §9833; Code 1940, T. 48, §83.)
The commission’s order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court, except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from, but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that:
(1) The commission erred to the prejudice of appellant’s substantial rights in its application of the law; or
(2) The order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence.
However, the court may, instead of setting aside the order, remand the case to the commission for further proceedings in conformity with the direction of the court. The court may, in advance of judgment and upon a sufficient showing, remand the case to the commission for the purpose of taking additional testimony or other proceedings.
(Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §82.)
On any such appeal any utility, interested party or intervenor may supersede any order or judgment entered by giving such supersedeas bond or bonds as may be appropriate to the proceedings as provided for in this subdivision.
(Acts 1932, Ex. Sess., No. 232, p. 233; Acts 1935, No. 228, p. 624; Code 1940, T. 48, §81.)
An appeal to the Circuit Court of Montgomery County shall not stay or supersede the order or action of the commission appealed from. Subject to the provisions of this subdivision, the circuit court may, upon hearing and notice, and after consideration of the testimony taken before the commission, stay or supersede the order or action of the commission.
(1) If the appeal to the circuit court is from an order of the commission reducing or refusing to increase rates, fares or charges, or any of them, or any schedule or part or parts of any schedule, of such rates, fares or charges, the circuit court shall not direct or order a supersedeas or stay of the action or order appealed from without requiring, as a condition precedent to the granting of such supersedeas, that the utility applying for the same shall execute and file with the clerk of said court a bond which shall be as provided in this subdivision.
(2) If the circuit court shall fail or refuse to grant such supersedeas, a utility may petition the supreme court to order a supersedeas and stay of the action or order of the commission appealed from, and any such order, if entered by the supreme court, shall likewise only be entered conditioned upon the execution and filing of the supersedeas bond as provided in this subdivision.
(Acts 1909, No. 42, p. 96; Code 1923, §9838; Code 1940, T. 48, §84.)
In the application for supersedeas, the utility shall, under oath, state the estimated approximate amount by which its revenues will be increased or reduced as the case may be, in six months, by reason of the increased rate sought by it or the reduced rate complained of.
(Acts 1909, No. 42, p. 96; Code 1923, §9839; Code 1940, T. 48, §85.)
The bond required to be filed as provided in this subdivision in order to supersede an order of the commission shall be double the sum estimated under Section 37-1-127, with two or more sureties, to be approved by the judge, one of which may be a surety company, payable to the State of Alabama and conditioned to pay all such loss or damage as any person, firm or corporation may sustain, including all such excess rates, fares or charges as such person, firm or corporation may have paid pending the appeal to the circuit court, or any subsequent appeal to the supreme court, in the event the order or action of the commission shall be sustained.
(Acts 1909, No. 42, p. 96; Code 1923, §9840; Code 1940, T. 48, §86.)
An additional bond of like amount and with the same conditions shall be given at the end of each six months pending the appeal to the Circuit Court of Montgomery County and pending any subsequent appeal by any party to the supreme court.
(Acts 1909, No. 42, p. 96; Code 1923, §9841; Code 1940, T. 48, §87.)
After the required bond shall have been given, the order appealed from shall be stayed and superseded, and it shall be lawful for the utility to charge the rates, fares or charges which had been reduced by said order, or the rates, fares or charges sought to be established by its petition, until the final disposition of said case. If said utility shall fail after 30 days’ written notice to give such additional bond at the end of each six months, pending any appeal, the stay or supersedeas shall terminate, and the rates, fares or charges established by statute or by the Public Service Commission or by the order or action appealed from shall be revived and shall be the lawful rates pending all further proceedings in the case.
(Acts 1909, No. 42, p. 96; Code 1923, §9842; Code 1940, T. 48, §88.)
If any rate or rates or order or orders shall, under the provisions of this chapter be suspended by the giving of any of the bonds provided for in this subdivision, the suspension shall be operative as to and shall affect only the utilities complaining and giving such bond.
(Code 1907, §5698; Code 1923, §9690; Code 1940, T. 48, §89.)
Any party may appeal to the Supreme Court of Alabama from the judgment of the Circuit Court of Montgomery County. In connection with any such appeal by a utility, if no supersedeas bond has been previously given to supersede the action or order of the commission, the utility appealing the judgment of the circuit court may supersede such judgment by filing a bond upon application, in such amount, and upon such condition, all as is provided in this subdivision. Except as otherwise provided in this subdivision, the appeal to the supreme court shall be taken in accordance with the Alabama Rules of Appellate Procedure.
(Code 1907, §5687; Code 1923, §9679; Code 1940, T. 48, §90.)
If the Public Service Commission or the State of Alabama shall appeal from a judgment annulling or suspending any rates or orders, it shall not be required to give any security for the costs of said appeal or any bond or undertaking to supersede the judgment. The appeal of the Public Service Commission or the State of Alabama without such bond shall have the effect of superseding the judgment and the rate or rates, or order or orders, complained of or annulled or suspended by the judgment, shall be and remain the established rates or orders and shall be so regarded and observed until the judgment shall be affirmed and the said rates or orders annulled or suspended by the supreme court unless a supersedeas bond is continued in effect.
(Code 1907, §5688; Code 1923, §9680; Code 1940, T. 48, §91.)
If said appeal is taken by the utility, security for the costs of the appeal shall be given as in cases of other appeals from the circuit court; except, that if a supersedeas bond had been given on appeal to the circuit court as provided for in this subdivision, then pending said appeal to the supreme court by the utility, or pending an appeal thereto by the Public Service Commission, if it should appeal, such bond shall continue in force and effect and all the conditions thereof shall be complied with, and no other supersedeas bond need be given by the utility.
(Acts 1909, No. 42, p. 96; Code 1923, §9844; Code 1940, T. 48, §92.)
Any person, firm, company, or corporation who shall sustain any loss, injury or damage by reason of the suspension of the rates or orders, or any of them, as aforesaid, may bring a civil action on the bonds in the name of the State of Alabama, for his use, and recover such damages as he may have so sustained, including any overcharge or excess rate or charge paid by him, on account of the suspension of the rates, charges, or orders. A copy of the bond, duly certified by the secretary or chief clerk or any member of the Public Service Commission under the seal of the commission, shall be received in evidence without further proof.
(Code 1907, §5697; Code 1923, §9689; Code 1940, T. 48, §93.)
In all cases involving controversies respecting rates and charges of telephone companies or public utilities, an appeal from any action or order of the Alabama Public Service Commission in the exercise of the jurisdiction, power and authority conferred upon it by this title, as amended and supplemented, shall lie directly to the Supreme Court of Alabama. All such appeals shall be given a preferred setting in the supreme court and shall be heard and determined by said court en banc. Nothing in this subdivision 2 shall be deemed to apply to any such cases other than those in which rates and charges are involved. All such appeals shall be taken within 30 days from the date of such action or order of the Alabama Public Service Commission and shall be granted as a matter of right and be deemed perfected by filing with the Public Service Commission a bond for the security of the cost of said appeal when the appellant is a utility or person, and by filing notice of an appeal when the appellant is the State of Alabama.
(Acts 1978, No. 851, p. 1274, §1.)
Either party or any intervenor may appeal to the supreme court from the action or order of the commission under the same rules and regulations and in the same manner and under the same conditions as are or may be provided by law for appeals from circuit courts in other public utility cases. Application for supersedeas may be made to the supreme court or a justice thereof. All supersedeas bonds required shall be in the same amount, subject to the same penalties and conditions and have the same effect as is now provided or may hereafter be provided by law in such cases.
If the appeal is by a telephone company or a public utility and supersedeas is granted, the appellant shall be entitled to collect, subject to refund with interest, any portion of the requested increase denied on any rate decrease directed by such supersedeas order from the time of taking such appeal until final disposition of the case.
(Acts 1978, No. 851, p. 1274, §2.)
Within 30 days after the perfection of the appeal as provided in this subdivision 2, and sooner if practicable, the Public Service Commission, through its president or any member thereof or its secretary, shall certify to the supreme court under the commission’s seal a complete record or transcript of all proceedings had before it, including all orders and pleadings together with a transcript of all oral testimony, and the original of or a transcript of all documentary evidence taken in any proceedings in which the order appealed from was made. The time for certifying said transcript to the supreme court may be extended by an order of the court, for good cause shown.
(Acts 1978, No. 851, p. 1274, §3.)
The court shall review the case upon the certified record or transcript of the commission, and no new or additional evidence shall be introduced or oral testimony heard, but the court may, in advance of its judgment, remand the case to the commission for the purpose of taking additional testimony or other proceedings. In the event the court, in advance of its judgment, does not remand the case to the commission for the purpose of taking additional testimony or other proceedings, then the court shall have up to 180 days from the date the case is submitted to the court to render its judgment.
For the purpose of carrying out the provisions of this subdivision 2, the chief justice of the supreme court, with the advice and consent of the supreme court, is hereby authorized to appoint such special masters, accountants, utility rate-making consultants and such other personnel as he deems necessary to aid and assist the court in these appellate procedures. Such personnel may be appointed and employed on a part-time or full-time basis without regard to the merit system.
(Acts 1978, No. 851, p. 1274, §4.)
The provisions of this subdivision 2 are cumulative and supplemental and shall be construed in pari materia with other laws regulating appeals from actions or orders of the Public Service Commission; provided, that those laws or parts of laws in direct conflict or inconsistent with this subdivision 2 are hereby repealed and superseded to the extent of such conflict or inconsistency.
(Acts 1978, No. 851, p. 1274, §6.)
No judge or court shall grant any preliminary injunction or interlocutory order or process suspending or restraining any rate or order of the Public Service Commission entered pursuant to the provisions of this title without requiring as a condition precedent to the issue of such injunction, order or process, that the company, corporation or person seeking the same shall, if the injunction or restraining order applied for is for the purpose of restraining the enforcement of any such rate or order, execute and file with the clerk or register of said court a good and sufficient bond with sureties, payable to the State of Alabama, in like amount and payable as provided in respect to supersedeas bonds. The failure to give the injunction bond or subsequent bonds as provided for in this division shall immediately vacate and render null and void such injunction or restraining order.
(Code 1907, §5700; Code 1923, §9692; Code 1940, T. 48, §94.)
No preliminary injunction or interlocutory order or process suspending or restraining or affecting the enforcement of any action, order or determination of the commission shall be granted by any judge or court, except upon hearing, after at least five days’ notice to the commission.
(Acts 1920, No. 37, p. 38; Code 1923, §9810; Code 1940, T. 48, §95.)
The bonds required to be given as a condition precedent to the issue of restraining orders or injunctions shall be filed with the clerk of said court and be payable to the State of Alabama and conditioned to pay all damages that any person, firm, company, or corporation shall sustain by reason of the enjoining or restraining of the enforcement of such order or orders, in the event the injunction shall be dissolved or vacated, or for any reason cease to be operative.
(Code 1907, §5703; Code 1923, §9695; Code 1940, T. 48, §96.)
Either party may appeal to the supreme court from the judgment of the trial court in such proceedings, such appeal to be taken within 30 days from the entry of such judgment.
(Code 1907, §5709; Acts 1909, No. 26, p. 35; Code 1923, §9701; Code 1940, T. 48, §97.)
If the utility desires to take an appeal from the judgment of the trial court and to supersede the same, it shall give, in addition to security for costs, a bond with two or more individual sureties or one surety company, to be approved by the clerk or register of the court, which bond shall be in an amount and with the conditions to be prescribed by the judge, and the same shall be payable as prescribed by law.
(Code 1907, §5710; Acts 1909, No. 26, p. 35; Code 1923, §9702; Code 1940, T. 48, §98.)
Any person, firm, company or corporation, who shall sustain any loss, injury or damage by reason of such injunction or restraining order, may bring a civil action on the bond in the name of the State of Alabama for its use and recover such damages as it may have sustained, including any overcharge or excess rate or charge paid by it on account of the suspension of said rates, charges or orders.
(Code 1907, §5704; Code 1923, §9696; Code 1940, T. 48, §99.)
Immediately after the dissolution or vacating of the injunction or restraining order, or upon the same ceasing for any reason to be operative and in force, the bond shall be delivered to the Public Service Commission, and a copy of the bond, duly certified by the clerk of the court while it is in his custody, or by the secretary or the chief clerk of the Public Service Commission of Alabama, or any member of the commission when in its custody, under the seal of the commission, shall be received in evidence without further proof.
(Code 1907, §5705; Code 1923, §9697; Code 1940, T. 48, §100.)
If, upon the appeal of any action originating under this title, it shall be determined by the court that the order of the commission was invalid or unreasonable or unjust and should not be performed, the costs of said action may, in the discretion of the court be taxed against the state or the utility or utilities involved in the action. If on the hearing the court should find in favor of the Public Service Commission, then the costs of the action shall be paid by the utilities by or against which the proceedings were instituted. If costs are ordered taxed against or paid by the state, the same shall be paid upon the approval of the trial judge, by a warrant drawn by the comptroller upon the treasurer. The costs of the transcript certified by the Public Service Commission to the circuit court shall be taxed as a part of the costs of the action at the same rate as transcripts from the circuit court to the supreme court are taxed.
(Code 1907, §5714; Code 1923, §9678; Code 1940, T. 48, §101.)
The term “transportation company” shall mean and include every person not engaged solely in interstate commerce or business that now or may hereafter own, operate, lease, manage or control, as common carriers or for hire: Any railroad or part of a railroad in this state or any cars or other equipment used thereon, or bridges, terminals or sidetracks used in connection therewith, whether owned by such railroad or otherwise; any express companies; any car companies; any sleeping car companies; any steamboat or steam packet company or common carrier for hire by water regardless of the propelling power used; any railroad depot or terminal station; any telegraph line; any telephone line; any pipeline for the transportation of oil or other commodity, whether the transportation is by pipeline or partly by pipeline and partly by rail, truck or water. This term shall also mean and include two or more transportation companies rendering joint service. Such term shall also mean and include every person not engaged solely in interstate commerce or business that now or may hereafter own, operate, lease, manage or control as a means of common carrier transportation by himself, or by others; any canal or other artificial watercourse, or part thereof, in this state, or any public wharf, dock, or terminal used in connection therewith, whether owned by the person who owns such canal or other artificial watercourse, or otherwise, provided nothing in this chapter shall apply to the regulation of commerce on navigable streams or rivers, whether the streams or rivers contain locks and dams or not.
(Acts 1920, No. 42, p. 92; Acts 1935, No. 499, p. 1077; Acts 1936, Ex. Sess., No. 200, p. 237; Code 1940, T. 48, §102; Acts 1945, No. 510, p. 732; Acts 1982, No. 82-549, p. 908, §1.)
The provisions of this chapter shall not apply to any transportation company owned by a municipality or by the federal government but shall apply to a state owned transportation company.
(Acts 1920, No. 42, p. 92; Acts 1931, No. 177, p. 252; Code 1940, T. 48, §103.)
The Public Service Commission is charged with the duty of supervising, regulating and controlling all transportation companies doing business in this state, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses therein by such companies, and the commission shall, from time to time, prescribe and enforce against said transportation companies, in the manner authorized in this title, such rates, charges, classifications of freight, storage, demurrage and car service charges, rules and regulations, and shall require them to establish and maintain all such public service facilities and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations and requirements the commission may, from time to time, alter or amend. All rates, charges, classifications, rules and regulations adopted or acted upon by any transportation company inconsistent with those prescribed by the commission acting within the scope of its authority, or inconsistent with those prescribed by any statute, shall be unlawful and void. And the commission shall enforce and require compliance with all the provisions of all laws now in force or hereafter enacted regulating railroads and other transportation companies or prescribing the duties thereof.
(Code 1886, §1129; Code 1896, §3490; Code 1907, §5651; Acts 1915, No. 746, p. 865; Acts 1920, No. 42, p. 92; Code 1923, §§9629, 9823; Code 1940, T. 48, §104.)
No transportation company shall undertake the extension of its service or the construction of a new plant, property or facility, except ordinary extensions in the usual course of business, or shall acquire or operate any line, plant or property of another transportation company, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require, or will require, or the public interest will be best served by, such extension, construction, acquirement, operation or acquirement and operation.
(Acts 1920, No. 42, p. 92; Code 1923, §9713; Code 1940, T. 48, §105.)
Any utility or telephone company that is required to obtain a certificate of convenience and necessity under Section 37-2-4 or Section 37-4-28 from the Alabama Public Service Commission for the construction or operation of any facility must give notice of the filing of such application with said commission to the reasonably identifiable owners of all lands which are proposed to be acquired for such construction or operation for which the certificate of convenience and necessity is sought; except, that such notice requirement shall not apply to the acquisition of lands or interest in lands for utility or telephone transmission or distribution lines or to the purchase, lease or other acquisition of an existing utility or telephone system. Such notice must be given in writing, and proof of service thereof must be filed with and become a part of the record of such certificate proceedings before the commission. All such landowners shall be entitled to be heard and to participate in such certificate proceedings.
(Acts 1978, No. 847, p. 1266.)
No transportation company subject to this chapter shall abandon all or any portion of its service to the public or the operation of any of its lines, properties or plant which would affect the service it is rendering the public, except ordinary discontinuances of service for nonpayment of charges, nonuser, violations of rules and regulations or similar reasons in the usual course of business, unless and until there shall first have been filed an application for a permit to abandon service and obtained from the commission a permit allowing such abandonment.
(Acts 1920, No. 42, p. 92; Code 1923, §9713; Code 1940, T. 48, §106.)
The application for and issuance of any such certificate of convenience and necessity or application for a permit to abandon its service, provided for in Sections 37-2-4 and 37-2-5, shall be under such rules and regulations as to hearing and other matters as the commission may, from time to time, prescribe. Upon the receipt of any such application for such certificate or permit, the commission may cause notice thereof to be given the chief executive officers of the municipality or municipalities affected, and such notice may be published once a week for three consecutive weeks in some newspaper of general circulation in each section affected.
(Acts 1920, No. 42, p. 92; Code 1923, §9714; Code 1940, T. 48, §107.)
The commission, as it deems to the best interest of the public, may grant in part or in whole, or may refuse such applications, and in the event such applications are granted, the commission may impose such conditions as it deems expedient for the protection of the public interest. The commission must require the transportation company, when such applications are granted, to avail themselves promptly of the authority or right granted, and in the event the transportation company fails to promptly avail itself of the rights granted, such certificate of convenience or permit must be revoked. The provisions of this section and Sections 37-2-4, 37-2-5 and 37-2-6 shall not apply to transportation companies which are required under Title IV of the Transportation Act of Congress, approved February 28, 1920, and amendments thereto, to obtain from the Interstate Commerce Commission a certificate of convenience and necessity.
(Acts 1920, No. 42, p. 92; Code 1923, §9713; Code 1940, T. 48, §108.)
Every transportation company shall, on or before September 1 in each year, and oftener if required by the Public Service Commission, file with the commission a verified list of all railroad tickets, passes and mileage books, issued free or for other than actual bona fide money consideration at full established rates during the preceding year, ending June 30, together with the names of recipients thereof, the amounts received therefor, and the reason for issuing the same. This provision shall not apply to the sale of tickets at reduced rates authorized by the law, or rates open to the public.
(Code 1907, §5530; Code 1923, §10027; Code 1940, T. 48, §109.)
If, in the judgment of the Public Service Commission, repairs or improvements to or changes in any trains, switches, terminals or terminal facilities, motive power, or any other property or device used by any transportation company, subject to the supervision of the Public Service Commission, in or in connection with the transportation of passengers, freight or property, ought reasonably to be made, or any additions should reasonably be made thereto, in order to promote the security or convenience of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers, freight or property, the commission shall, after a hearing had either on its own motion or after complaint filed, make and enter an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every transportation company subject to the supervision of said commission shall make all such repairs, improvements, changes and additions required of it by any order of the commission served on it, and any transportation company that shall fail, refuse, omit or neglect to obey any lawful order or requirement of the Public Service Commission, for which a penalty has not been provided, shall forfeit to the State of Alabama a sum not exceeding $2,000.00 for each offense, to be fixed by the court or judge trying the case, and every such violation, failure, refusal, neglect or omission shall constitute a separate and distinct offense, and, in case of a continuing violation, each and every day’s continuance thereof shall be a separate and distinct offense.
(Acts 1907, Ex. Sess., No. 15, p. 29; Code 1923, §§9846, 9872; Code 1940, T. 48, §110.)
Every transportation company shall print and cause to be filed with the commission, and keep open to public inspection, tariffs or schedules of rates showing all rates, fares, charges, classifications, rules, regulations and practices for transportation subject to this chapter between points on its own route and between points on its own route and points on the route of any other such transportation company, when a through route and joint rate shall have been established, and all services in connection therewith, all privileges and facilities granted or allowed and all rules, regulations, or practices affecting such rate, fare, charge or classification or the value of the service thereunder. If no joint rate over the through route has been established, the several transportation companies in such through route shall print and cause to be filed with the commission, and keep open to public inspection, tariffs or schedules of rates showing the separately established rates, fares and charge applied to the through transportation. The tariffs or schedules of rates printed as aforesaid by any such transportation company shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges and all other charges which the commission may require, all privileges or facilities granted or allowed, any rules or regulations which in any wise change, affect or determine any part or the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee. The provisions of this section shall apply to all traffic, transportation and facilities defined in this article. Such rates, fares and charges shall be stated in terms of lawful money of the United States. The tariffs or schedules of rates required by this section shall be published, filed and posted in such form and manner, and in such places, and shall contain such information as the commission, by regulation, shall prescribe; and the commission is authorized to reject, prior to the effective date thereof, any tariff or schedule of rates filed with it which is not in consonance with this section and such regulation. Any tariff or schedule of rates so rejected by the commission shall be void and its use shall be unlawful.
(Code 1867, §5526; Code 1876, §5524; Code 1886, §5523; Code 1896, §5522; Code 1907, §5521; Code 1923, §§10017, 10018, 10019, 10020, 10022; Code 1940, T. 48, §111.)
Whenever any transportation company shall refuse or neglect to establish a joint rate or rates for the transportation of persons or property, the commission may, upon notice to such transportation company or companies, and after an opportunity to be heard, as provided in this title, fix and establish such joint rate or rates, and if the transportation companies, parties thereto, shall fail to agree upon apportionment thereof within 20 days after the service of such orders, the commission may, upon like hearing, issue a supplemental order declaring the apportionment of such joint rate or rates, and the same shall take effect of its own force as part of the original order. In cases relating to the fixing, regulating or prescribing of joint rates of two or more transportation companies, such transportation companies may be joined in one proceeding before the commission.
(Code 1876, §5682; Code 1886, §1132; Code 1896, §3493; Code 1907, §5681; Code 1923, §§9664, 9665; Code 1940, T. 48, §112.)
No change shall be made in any rate, fare, charge or classification, or any rule, regulation or practice affecting such rate, fare, charge or classification, or the value of the service thereunder, specified in any effective tariff or schedule of rates of a transportation company, except after 30 days’ notice of the proposed change, filed and posted in accordance with Section 37-2-10 and the rules and regulations of the commission adopted thereunder. Such notice shall plainly state the change proposed to be made and the time when such change will take effect. The commission may, in its discretion and for good cause shown, allow such change upon notice less than that herein specified.
(Code 1907, §5525; Code 1923, §10021; Code 1940, T. 48, §113.)
No transportation company shall charge or demand, or collect or receive, a greater or less or different compensation for the transportation of passengers or property, or for any service in connection therewith, than the rates, fares or charges specified in the tariffs or schedules of rates in effect at the time, except as provided by law or the Public Service Commission, and the rates, fares and charges duly filed and posted in accordance with the provisions of this chapter shall be the legally applicable rates, fares and charges, but the commission may prescribe such changes in the form in which such tariffs or schedules of rates shall be issued by transportation companies as may be found expedient.
(Code 1896, §5528; Code 1907, §5527; Acts 1909, No. 201, p. 210; Code 1923, §§10023, 10025; Code 1940, T. 48, §114.)
(a) The commission, when deemed by it necessary to prevent injury to business, or in the interest of the people of this state, in consequence of any interstate rate wars, or inequality of interstate rates, or in case of any other emergency, to be judged by the commission, may temporarily alter, amend, or suspend, except as otherwise provided by law, any existing passenger rates, freight rates, schedules, and orders, on any railroad or part of railroad in this state, and such rates made by the commission shall apply on one or more of the railroads of this state, or any portion thereof, as may be directed by the commission, and shall take effect at such time and remain in force for such length of time as may be prescribed by the commission.
(b) When circumstances require a reduction in any rate or rates on less than statutory notice in order to permit an emergency to be met, the Public Service Commission, or, if the commission is not in session, the secretary of the commission, may, upon the written application of a transportation company, and for good reason shown, authorize such transportation company to make such rate or rates effective on less than statutory notice, provided a copy of the publication containing such rate or rates is filed with the commission. When such authority is granted by the secretary, the rate or rates so authorized shall be temporary and shall continue effective only until the next regular meeting of the commission, which may approve, revoke or modify the same.
(Code 1907, §5721; Acts 1920, No. 42, p. 92; Code 1923, §§9670, 9717; Code 1940, T. 48, §§115, 116.)
(a) The Public Service Commission, upon its own motion or upon the written application of any transportation company, and under any rules which it may prescribe, may permit, from time to time, such transportation company to establish any special rate or rates for the transportation of specific commodities in carloads from specified points or within specified zones or distances to the plants or points of destination where are located the plants of any person, firm or corporation who is now, or may hereafter be, engaged in any industrial or agricultural enterprise in this state, for the purpose of encouraging the establishment or aiding in the development or continued and successful operation of such industrial or agricultural enterprise; and any special rate or rates so established for any particular industrial or agricultural enterprise shall apply and be given all persons, firms and corporations engaged in the same enterprise within said zone or distance.
(b) Said special rates shall first be approved by the commission and be published as it may direct, and a full, true and correct statement in writing of such special rate or rates shall, in each instance, be first filed with said commission, together with a sworn copy of any special contract made with the shipper with respect to such special rates, before the same shall go into effect; and the said commission may at any time revoke such permission and any special rate or rates established thereunder. Any rate or rates so established after compliance with the provisions hereinabove prescribed shall be the lawful rates for the service performed and shall not be construed to be an unjust or unlawful discrimination.
(Acts 1920, No. 42, p. 92; Code 1923, §§9715, 9716; Code 1940, T. 48, §§117, 118.)
(a) If any transportation company subject to the provisions of this chapter, or any agent or officer thereof, shall, directly or indirectly, or by special rate, rebate, drawback or other consideration, or by means of false billing, false classification, false weighing, false report of weights or by any device whatsoever, charge, demand, collect or receive from any person, firm, company or corporation a greater or less compensation for any service rendered or to be rendered by it for the transportation of persons or property, or for any service in connection therewith, than that prescribed in the published tariffs, or than it charges, demands, collects or receives from any other person, firm, company or corporation for a like service, such transportation company so doing shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared unlawful, and shall forfeit to the State of Alabama and pay into the state treasury not less than $100.00 nor more than $10,000.00 for each offense.
(b) If any transportation company shall directly or indirectly make or give any undue or unreasonable preference or advantage to any particular person, firm, corporation or locality, or subject any particular person, firm, or corporation or locality to any undue or unreasonable prejudice or disadvantage in any respect whatsoever, such transportation company shall be guilty of unjust discrimination, which is hereby prohibited and declared unlawful, and shall be liable to the state in a penalty of not less than $500.00 nor more than $5,000.00 for each offense.
(Code 1907, §§5531, 5540; Acts 1909, No. 201, p. 210; Code 1923, §§10028, 10037; Code 1940, T. 48, §§119, 120.)
(a) If any transportation company doing business in this state or its agents or employees are guilty of making or demanding or receiving any charge for the transportation of persons or property, or for any service pertaining to or connected therewith, in excess of that prescribed by the Public Service Commission as by this chapter authorized, and after due notice of such violation given to the president or managing officer or any superintendent thereof in this state, and if ample and full recompense for the wrong or injury thereby to any person, firm, company, or corporation shall not be made within 60 days from the time of such notice, such transportation company shall forfeit for each offense the sum of not less than $50.00 nor more than $1,000.00, to be fixed by the court.
(b) An action for the recovery of the penalty shall be in any circuit court in any county in this state where such violation has occurred or wrong has been perpetrated, and it shall be in the name of the State of Alabama. The commission may order the institution of such action by the Attorney General or the district attorney in the circuit in which the wrong is perpetrated, or such other attorney-at-law as may be appointed, on the complaint or request of the person aggrieved.
(Code 1907, §§5715, 5716; Code 1923, §§9704, 9705; Code 1940, T. 48, §§121, 122.)
In addition to the penalties and forfeitures provided in this division to the state, railroads or other common carriers shall, for each violation of the provisions of this division, be liable to the person, firm, or corporation injured thereby in three times the amount of damages incurred and suffered.
(Code 1907, §5559; Code 1923, §10058; Code 1940, T. 48, §123.)
(a) Where complaint has been made to the commission concerning any rate or other charge of any transportation company and the commission has found, after a hearing, that the transportation company has received an excessive or unjustly discriminatory amount on account of such rate or charge, the commission may order that the transportation company make due reparation to the complainant therefor, within a time to be designated in said order, together with interest at the legal rate from the date of receipt of such excessive or unjustly discriminatory amount. The commission shall also make and file in every case in which reparation is ordered to be paid a full finding of the material facts upon which the order is based. Reparation shall not be awarded in case of any rate which has been adjudged to be just and reasonable and otherwise lawful by the commission after investigation had upon due notice and hearing.
(b) If the transportation company does not comply with an order of the commission referred to in subsection (a) of this section, for the payment of money within the time fixed in such order, the complainant, or any person for whose benefit such order was made, may file in any court of competent jurisdiction a complaint setting forth briefly the causes for which he claims damages, and the findings and the order of the commission in the premises. Such action shall proceed in all respects like other civil actions for damages, except that on the trial of such suit in the findings and order of the commission shall be prima facie evidence of the facts therein stated. If the plaintiff shall finally prevail, he shall be allowed by the court a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the action.
(c) All complaints for the recovery of reparation because of a rate that is unjust or unreasonable or otherwise unlawful shall be filed with the commission within six months from the time of the payment of the full lawful charges.
(d) All complaints for the enforcement of an order of the commission for the payment of money under the provisions of subsections (a), (b) and (c) of this section shall be filed in the proper court within one year from the date of the order. The remedy provided in this section shall be cumulative, and in addition to any other remedy or remedies in this division provided in case of a failure of a transportation company to obey a rule, regulation, order or decision of the commission.
(Acts 1920, No. 42, p. 92; Code 1923, §§9722-9725; Code 1940, T. 48, §§124-127.)
Concentration and transit privileges and rates may be permitted or, upon complaint or upon its own motion after due notice and hearing, may be fixed or prescribed by the Alabama Public Service Commission upon traffic that is wholly intrastate upon such basis as is just and reasonable and as will remove any unjust discrimination or undue prejudice against intrastate commerce in favor of interstate commerce, but all such privileges and rates shall be open to all shippers and consignees for a like kind of traffic under similar circumstances and conditions, and such privileges and rates shall at all times be under the supervision, regulation and control of the Alabama Public Service Commission.
(Code 1907, §5534; Acts 1923, No. 253, p. 259; Code 1923, §10031; Code 1940, T. 48, §128.)
(a) Every transportation company receiving property for transportation, originating and terminating in this state, shall issue to the shipper a receipt or bill of lading therefor in which shall be stated the class or classes of freight shipped and the rate to the point of destination and aggregate charge made for the transportation and shall be liable to the lawful holder thereof for any loss, damage or injury to such property negligently caused by it or by any transportation company to which said property may be delivered, or over whose lines such property may pass; and no contract, stipulation, receipt, rule or regulation contained in said receipt or bill of lading, or otherwise, shall exempt such transportation company from the liability hereby imposed; but nothing in this subsection shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing laws.
(b) A transportation company receiving things or property of any kind for carriage, hire or reward must, on delivery to said company of such thing or property, give the person from whom received a receipt or bill of lading, stating the order or condition in which such things or property may be, and if cotton in bales is received, stating expressly the condition of the bagging, ropes, or ties, and of the cotton, whether dry, damp, wet, or very wet; and such transportation company is bound to deliver in like order and condition as when received; and if such receipt or bill of lading be not given, such things or property must be deemed and taken to have been in good order or condition at the time of delivery to such carrier, and he is bound to deliver in like good order and condition; and the carrier, neglecting or failing to give such receipt or bill of lading, is liable for all loss or damage the owner of such things or property may sustain in consequence of such neglect or failure, but nothing in this subsection contained must be construed as affecting the common-law liability of a common carrier for an injury to or for the loss of such things or property.
(Code 1867, §1883; Code 1876, §2139; Code 1886, §1174; Code 1896, §§4218, 5547; Code 1907, §§5546, 6131; Code 1923, §§10043, 10044, 10491; Code 1940, T. 48, §§129, 133.)
A transportation company engaged in the business of carriage, or of keeping for shipment, or of forwarding things or property, must not give a receipt or bill of lading for the things or property for carriage, or for keeping for shipment, or for forwarding unless such things or property have been actually delivered to said company, or placed in its control; and a second receipt or bill of lading must not be issued or given, the original being outstanding, without writing across the face thereof the word “duplicate.”
(Code 1886, §1175; Code 1896, §4219; Code 1907, §6132; Code 1923, §10492; Code 1940, T. 48, §134.)
If any transportation company, not having received things or property for carriage, shall issue or give a bill of lading, or receipt, as if such things or property had been received, the transportation company engaged in the business of keeping for shipment, or forwarding, shall issue a receipt for things or property, not having received them; or if any of such parties shall give or issue a second bill of lading, or receipt, the original being outstanding, not expressing in such second bill of lading or receipt that it is a duplicate, or shall surrender such things or property without receiving and cancelling the bill of lading or receipt issued therefor, or make partial delivery, without endorsing such partial delivery on such bill of lading or receipt, except as provided in Section 37-2-25, such transportation company is liable to any person injured thereby for all damages, immediate or consequential, therefrom resulting.
(Code 1886, §1179; Code 1896, §4223; Code 1907, §6136; Code 1923, §10495; Code 1940, T. 48, §137.)
A delivery of cotton at or to a compress for the purpose of being compressed, at the instance or in the usual course of business of a transportation company, or other person engaged in the business of carriage, or of keeping for shipment, or of forwarding, may be taken and deemed as an actual delivery to such transportation company or other person, and a receipt or bill of lading may be issued or given therefor.
(Code 1886, §1176; Code 1896, §4220; Code 1907, §6133; Code 1923, §10493; Code 1940, T. 48, §135.)
A transportation company or other person engaged in the business of carriage or of keeping for shipment, or of forwarding things or property, must not, otherwise than is authorized by law or by the contract of delivery to him, make sale of things or property entrusted to him; nor, without the assent in writing of the person to whom he may have given a receipt or bill of lading, or of the legal holder of such receipt or bill of lading, encumber or transfer the same; nor must he, otherwise than as may be authorized by the contract of delivery to him, part with the control or possession of such things or property without the assent in writing of the person to whom he may have given a receipt or bill of lading, or of the legal holder of such receipt or bill of lading.
(Code 1886, §1177; Code 1896, §4221; Code 1907, §6134; Code 1923, §10494; Code 1940, T. 48, §136.)
All transportation companies doing business in this state shall settle their freight charges according to the rate stipulated in the bill of lading, provided the rate stipulated therein is in conformity with the classifications and rates made and filed with the Interstate Commerce Commission, in case of shipment from without the state, and with those filed with or established or approved by the Public Service Commission of the state, or those established by statute, in case of shipments wholly within the state, by which classification and rates all consignees shall in all cases be entitled to settle freight charges with such companies, and it shall be the duty of such transportation companies to inform any consignee or consignees of the correct amount due for freight, according to such classification and rates, and upon payment or tender of the amount due, according to such classification and rates, on any shipment which has arrived at its destination, such company shall deliver the freight in question to the consignee.
(Code 1907, §5550; Code 1923, §10047; Code 1940, T. 48, §130.)
A transportation company, if the place of destination of freight is a city or town having a daily mail, is not relieved from liability as a transportation company by reason of a deposit or storage of freight in a depot or warehouse, unless, within 24 hours after the arrival of such freight, notice thereof is given the consignee, personally or through the mail; and if notice is given through the mail, the postage must, by the consignee, be refunded to the carrier.
(Code 1886, §1180; Code 1896, §4224; Code 1907, §6137; Code 1923, §10496; Code 1940, T. 48, §138.)
(a) The transportation company may insure the freight, at the expense of the owner, from the date of its arrival to the sale above authorized.
(b) A record shall be kept of the articles sold and of the price obtained therefor, transportation charges, cost of insurance and all charges incident to storage, advertisement and sale.
(c) The proceeds of any sale made under Section 37-2-28 or Section 37-2-29 shall be applied to the payment of the charges enumerated in subsection (b) of this section, and the residue, if any, shall be paid over to the party entitled thereto, if known, at the time of such sale; otherwise, such surplus shall be paid to the party entitled thereto, if demanded, at any time within two years from the date of such sale.
(Code 1867, §1886, Code 1876, §2142; Code 1886, §1183; Code 1896, §4227; Code 1907, §6140; Acts 1911, No. 320, p. 387; Code 1923, §§10501, 10502; Code 1940, T. 48, §§143, 144.)
(a) Any transportation company having an office or place of business in this state, and having any unclaimed articles, not perishable, in its possession for a period of 40 days, may, at the expiration of that time, sell the same at public auction.
(b) Out of the proceeds thereof, the transportation company may retain the transportation charges, storage, advertisement and sale, and said sale may be held at any point where, in the opinion of the officers of such transportation company, the best prices can be obtained.
(c) Notice of such sale shall be mailed to the consignor and consignee in writing not less than 15 days before such sale shall be made, or notice of such sale shall be published for two weeks in some newspaper of general circulation published at the point of destination; but if there is no such paper published at such point of destination, then the publication may be made in any paper having a general circulation in this state.
(Code 1867, §§1884, 1885; Code 1876, §§2140, 2141; Code 1886, §1181; Code 1896, §4225; Code 1907, §6138; Acts 1911, No. 320, p. 387; Code 1923, §§10497-10499; Code 1940, T. 48, §§139-141.)
Where such unclaimed freight is perishable or live, such transportation company may sell the same as soon as it is deemed necessary and proper for the protection of the transportation company, the consignor or consignee. When it is practicable, the consignor and consignee shall be notified of the proposed sale of such perishable or live freight.
(Acts 1911, No. 320, p. 387; Acts 1931, No. 649, p. 781; Code 1940, T. 48, §142.)
Every transportation company subject to the provisions of this chapter, its agents or officers, whose duty it is to receive freights, shall receive all articles of the nature and kind received by said companies for transportation whenever tendered at a regular station at proper hours and in good shipping condition, according to reasonable rules prescribed by the transportation company or the Public Service Commission, and every loaded car tendered at a sidetrack or any warehouse connected with the railroad by a siding, and shall forward the same without delay and within a reasonable time to the point of destination, under and in compliance with such reasonable rules, regulations and requirements as may be prescribed by the Public Service Commission or by law, and, upon the failure of any such railroad company or other transportation company doing business in this state to so receive and so transport goods, merchandise, or property of any description delivered to it for shipment to and from any points within the state in such reasonable time as the public service commission or the law may prescribe, unless otherwise agreed upon between the company and the shipper, or unless such property is burned, stolen or otherwise destroyed, such railroad company or other transportation company shall forfeit to the party aggrieved such sum as may now or hereafter be prescribed by law for such delay, and, in addition, shall be liable to the party aggrieved for such damages as he may sustain by reason of said delay, failure to receive or transport.
(Code 1907, §5549; Code 1923, §10046; Code 1940, T. 48, §145.)
Whenever any freight shall be received by any transportation company in this state to be delivered to any consignee within this state, and a portion of the same shall not have been received at the place of destination, it shall be unlawful for the company to demand any part of the charges for freight or transportation due for such portion of the shipment as shall not have arrived at the place of destination. The company shall be required to deliver to consignee such portion of the consignment as shall be required to deliver to consignee such portion of the consignment as shall have been received upon the payment or tender of the freight charges due upon such portion, unless otherwise agreed upon between the consignee and company, but nothing in this article shall be construed as interfering with or depriving a consignor, or other person having authority, of his rights of stoppage in transitu.
(Code 1907, §5551; Code 1923, §10048; Code 1940, T. 48, §146.)
(a) In case of any overcharge on published or lawful rates, the person aggrieved may file with the agent of the company collecting or receiving greater compensation than the lawful rate a written demand, supported by a paid freight bill or duplicate thereof, for refund of overcharge, and a maximum period of 60 days from the date of filing shall be allowed each company to pay claims filed under this section.
(b) Any transportation company failing to refund such overcharges within the time allowed in subsection (a) shall forfeit to the party aggrieved the sum of $1.00 for each day’s delay in paying or satisfying said claim beyond the time allowed until such claim is paid, but the total forfeiture shall not exceed $100.00.
(c) Actions for the recovery of the overcharge and the penalties provided may be embraced in the same complaint.
(Code 1907, §§5553-5555; Code 1923, §§10050-10052; Code 1940, T. 48, §§147-149.)
When goods, wares, merchandise or other personal property are shipped to some point of delivery in this state over two or more connecting lines of transportation companies, both or all of which are engaged in the business of a transportation company in the State of Alabama, and such goods, wares and merchandise or other personal property are lost, destroyed, or damaged because of unreasonable delay in the delivery thereof or by the neglect of duty of any such transportation company or connecting transportation companies, and the owner or consignee of such freight sustains injury or loss thereby, and payment for such injury or loss or destruction is not made after notice to and demand therefor of such connecting and delivering companies within 30 days thereafter, the owner or consignee thereof may bring a civil action against such delivering and connecting companies jointly; the action to be instituted in the county of delivery, and if the connecting company or companies have no place of business in such county, a summons may issue to any county where the connecting companies are to be found, and executed as provided in the Alabama Rules of Civil Procedure. If the proof shows on the trial that there was no joint liability of all the defendants, but the evidence shows that plaintiff is entitled to recover against one or more of such defendants, judgment shall be entered accordingly against such defendant or defendants as the jury or court trying the case may ascertain to be liable, and such defendant as was not liable shall be discharged with recovery of his court costs. Nothing contained in this section shall in any manner modify or abridge the rights of any plaintiff to pursue any remedy now in force if he prefers to do so.
(Code 1907, §5548; Code 1923, §10045; Code 1940, T. 48, §150.)
Every transportation company in this state, which shall engage in the carrying of passengers, shall receive and transport, without compensation or other transportation charges, with each passenger, the personal baggage of such person or passenger, not exceeding 150 pounds, upon the presentation of a whole ticket, or other contract or agreement of transportation, and not exceeding 75 pounds upon the presentation of a half ticket or other contract or agreement of transportation.
(Acts 1915, No. 644, p. 710; Code 1923, §9989; Code 1940, T. 48, §151.)
Every transportation company in this state shall charge passengers, on all baggage weighing over 150 pounds, sixteen and two-thirds percent of the regular fare to destination per 100 pounds in excess of the said 150 pounds, but no charge for any fraction of the first 100 pounds excess shall be less than $.10, which shall be the minimum amount said company shall charge for excess baggage as provided in this section.
(Acts 1915, No. 644, p. 710; Code 1923, §9990; Code 1940, T. 48, §152.)
The baggage, samples, goods, wares, appliances, and catalogues of commercial travelers or their employers, and used by them for the exclusive purpose of transacting their business and carried with them solely for that purpose and which in no instance shall be sold or offered for sale or for free distribution, when securely packed and fastened in trunks and sample cases, are declared to be baggage within the meaning of this chapter, and such transportation companies are required to transport same with passengers from point to point within this state as provided in this division.
(Acts 1915, No. 644, p. 710; Code 1923, §9991; Code 1940, T. 48, §153.)
No transportation company shall be required to transport any piece of baggage exceeding in greatest dimensions 72 inches, or 250 pounds maximum weight, excepting immigrant baggage checked at port of landing, whips in flexible cases, and public entertainment paraphernalia.
(Acts 1915, No. 644, p. 710; Code 1923, §9991; Code 1940, T. 48, §153.)
All passengers of whatever character having baggage transported by companies under the provisions of this division shall have 24 hours, not including legal holidays or Sundays, for the removal of such baggage from the baggage room or station house of such company before storage shall be charged; except such baggage that may be received on Friday of each week, which baggage shall be held by the company 48 hours, not including Sundays, before storage shall be charged by the company.
(Acts 1915, No. 644, p. 710; Code 1923, §9992; Code 1940, T. 48, §154.)
Nothing in this chapter shall be construed to prevent the carrying, storage or handling by any transportation company, subject to the provisions of this title, of property free or at reduced rates for the United States, or for the State of Alabama, or for any municipality, or for charitable purposes, or to or from fairs and expositions, for exhibition thereat, or property shipped by or to its officers or employees for their own exclusive use or consumption, or that of their immediate families; or prevent such companies from issuing excursion, mileage or commutation tickets, provided such excursion, mileage or commutation tickets shall be obtainable by all persons applying therefor under like circumstances and conditions. Nor shall anything in this title be construed to prevent such transportation companies from giving free transportation or reduced rates therefor to any person authorized by law to receive such free transportation or reduced rates therefor. Any express company may carry free or at reduced rates the personal packages or property of its officers and employees and of the officers and employees of railroad companies. Any transportation company may furnish free transportation for the body of any deceased officer, agent or employee, and to the members of the family of the deceased to and from the place of decease, and to and from the place of burial. Upon the shipment of livestock or other property, requiring the care of an attendant, the transportation company may furnish free transportation, including return passage, to the shipper or to some person or persons designated by him as attendant.
(Code 1907, §5556; Acts 1909, No. 28, p. 26; Acts 1909, No. 201, p. 210; Acts 1915, No. 644, p. 710; Code 1923, §10053; Code 1940, T. 48, §155.)
(a) Each transportation company doing business in this state and subject to the control and jurisdiction of the commission with respect to its rates and service regulations shall pay quarterly to the commission, beginning November 1, 1985 and on each quarter thereafter, February 1, May 1, August 1, and November 1 of each year, a fee for the inspection and supervision of such business during the next preceding fiscal year. Such inspection and supervision fees shall be paid by such transportation companies in addition to any and all property, franchise, license, intangible and other taxes, fees and charges now or hereafter provided by law. No similar inspection and supervision fees shall be levied or assessed by any county or municipality of the state, and no part of such inspection and supervision fees shall be allowed to any county or municipality of this state. Such inspection and supervision fees shall be measured by the amount of gross receipts of each such transportation company for the fiscal year next preceding the dates herein fixed for the payment of the same, except that in case of such transportation companies engaged in interstate business, the fees shall be measured by the gross receipts of such transportation companies from intrastate business only, for such preceding fiscal year, and not in any respect upon receipts derived wholly or in part from interstate business. Such fees shall be ascertained as follows: A fee of $2.85 per $1,000.00 for the first $100,000.00 or less of such gross receipts; a fee of $2.35 per $1,000.00 for each additional $1,000.00 of such gross receipts up to and including $1,000,000.00 thereof; a fee of $1.85 per $1,000.00 for each additional $1,000.00 of such gross receipts over $1,000,000.00 thereof, but in no case shall said fee be less than $25.00, which shall be the minimum inspection and supervision fee to be paid by any transportation company. However, all transportation companies with gross intrastate receipts in excess of $60,000,000.00 per calendar quarter will continue to submit the quarterly payment of fees, as due on the intrastate gross receipts of the fiscal year ended September 30, 1984, through August 1, 1985. On September 1, 1985 such companies shall pay fees due for the calendar quarter ended December 31, 1984. Beginning November 1, 1985 such companies shall pay over on a quarterly basis beginning with the calendar quarter ended March 31, 1985 and henceforth for the calendar quarters ending June 30, September 30, December 31 and March 31 of each year on the following February 1, May 1, August 1 and November 1 of each year respectively; provided, however, that the maximum amount so to be paid for any one year by any such transportation company operating any railroad, or part of a railroad in this state, shall be $5,000.00. The commission shall keep a true record of all such amounts so paid to it, under this subsection and subsection (b), but said amounts, when received by the commission, shall be promptly paid over to the treasurer, and shall be held in the commission’s operating fund by, and shall be paid out by the treasurer in payment of expenses incurred by the commission under this title upon warrants drawn as provided by law upon the treasurer and approved as required by law. Payment of the supervision and inspection fees provided for hereunder shall in all respects be governed by the provisions of subsections (c) and (d).
(b) In lieu of the inspection and supervision fees provided for in subsection (a), each provider of pay telephone service over instruments owned and/or operated by local exchange companies, interexchange companies, and customer-owned, coin-operated telephone service providers doing business in the state and subject to the control and jurisdiction of the commission, may elect to pay a fee for the inspection and supervision of such pay telephone or coin-operated telephone service business during the next preceding fiscal year. Such inspection and supervision paid in lieu of the fees provided for in subsection (a), shall be in addition to any and all property, franchise, license, intangible and other taxes, fees, and charges now or hereafter provided by law, and shall be measured by the number of instruments in operation during such fiscal year within the State of Alabama. Such fee shall be $10.00 per instrument and no other inspection and supervision fee shall be due upon any such instrument.
(c) Supervision and inspection fees provided for in this article shall be in default after February 1, May 1, August 1 and November 1 of each year, if not paid prior to or on that date. In the event that the amount payable by any transportation company for any quarter cannot be ascertained on or before the dates herein prescribed for payment each year, such transportation company shall, in any event, pay the minimum supervision and inspection fee herein provided and in addition such part of any additional supervision and inspection fee as may be ascertainable on or before the date of default; and when any further or additional amount payable for such quarter can be ascertained, the same shall be paid within 30 days after it becomes possible to ascertain the same. Any transportation company failing in whole or in part to pay any supervision or inspection fee, or part thereof, due by it within any of the times herein prescribed for payment of the same, shall be in default and shall be liable to a penalty of not exceeding $50.00 per day, to be recovered by suit of the state, for every day it thereafter remains in default, and such penalty may be recovered together with the supervision and inspection fee in default, in a single action.
(d) Any transportation company may, at their own election, pay over the total fees due for the preceding fiscal year on November 1 of each year. Such payment is to be governed by the provisions of subsections (c) and (e).
(e) The state shall have a lien upon all the property in this state of any transportation company for the payment of the supervision and inspection fees provided for in this chapter to be paid and the penalties in this chapter provided for, which lien shall be superior to all other liens, except the lien for state, county and municipal taxes.
(Code 1907, §9733; Acts 1902, No. 42, p. 92; Code 1923, §§9732, 9736, 9737; Code 1940, T. 48, §§156-158; Acts 1981, No. 81-718, p. 1210, §1; Acts 1985, No. 85-756, p. 1256, §1; Acts 1986, No. 86-375, p. 560, §1; Acts 1989, No. 89-943, p. 1852, §1; Acts 1991, No. 91-586, p. 1075, §1.)
Any person, firm or corporation may submit to the commission, by mail or in person, any transportation company expense bill or receipt, showing charges paid for transportation of any property by freight or express for the purpose of having the same examined with respect to the correctness of weights, rates, and charges indicated thereon. Upon receipt of any such expense bill or receipt, the commission shall make such examination as is necessary, and if it shall be found that any such weights, rates or charges are incorrect, the commission shall order the transportation company in error to refund to the person, firm or corporation which submitted such expense bills or receipts any over or excessive charges paid by such person, firm or corporation. The commission shall impose and collect a reasonable charge for the performance of the service required under this section. All funds received from such charges shall be accounted for by the secretary of the commission and certified monthly by him into the treasury of the state.
(Acts 1920, No. 42, p. 92; Code 1923, §9729; Code 1940, T. 48, §159.)
No agent, officer or attorney of any traffic association or freight bureau shall ask for, bid for or solicit any claim from any shipper or consignee against any transportation company, and no portion of any money paid by any company on any such reparation claim shall ever be paid to any such agent, officer or attorney of such traffic association or freight bureau who asks for, bids for or solicits any such claim from such shipper or consignee.
(Acts 1920, No. 42, p. 92; Code 1923, §9725; Code 1940, T. 48, §160.)
This chapter shall not release or waive any right of action by the state, the commission or by any body politic, municipal corporation, person or corporation for any right or penalty which may have arisen or accrued or may hereafter arise or accrue under any law of this state. All penalties accruing under this chapter shall be cumulative of each other, and an action for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution against any transportation company, or any officer, director, agent, or employee thereof, or any other corporation or person.
(Acts 1920, No. 42, p. 92; Code 1923, §9728; Code 1940, T. 48, §161.)
A civil action to recover the forfeitures provided for in this chapter may be brought at any time within two years from the date the offense was committed or forfeiture was incurred in the name of the State of Alabama, in any court of competent jurisdiction in any county in which the transportation company is engaged in business. In such action any number of forfeitures incurred up to the time of commencing the same and not previously recovered may be sued for and recovered, or separate actions may be brought for each penalty or forfeiture, and the commencement of an action to recover a forfeiture shall not be, or be deemed to be, a waiver of the right to recover any other forfeitures.
(Acts 1909, No. 31, p. 39; Code 1923, §10070; Code 1940, T. 48, §162.)
Every violation of the provisions of this chapter, or of any order, decision, rule, regulation, direction or requirement of the commission, or any part or portion thereof, by any transportation company, is a separate and distinct offense, and in case of a continuing violation, each day’s continuance thereof shall be a separate and distinct offense. In construing and enforcing the provisions of this chapter relating to penalties, the act, omission or failure of any officer, agent or employee of any transportation company acting within the scope of his official duties or employment shall in every case be deemed to be the act, omission or failure of such transportation company.
(Acts 1920, No. 42, p. 92; Code 1923, §9731; Code 1940, T. 48, §163.)
In all cases of loss, destruction, injury to, delay in delivering or failure to deliver property, chattels or goods of any character to the person entitled thereto by a transportation company, having received the same for shipment in accordance with the contract of shipment, such transportation company shall be liable to the person having the title to such property, chattels, or goods, when lost or destroyed, for the market value of such chattels, property, or goods at the place of destination, at the time and in the condition they should have been delivered, with interest from the time they should have been delivered; and where injured, for the damages caused thereto, less the amount of freight charges due for their transportation, with interest from the time they should have been delivered uninjured; and in case of delay beyond a reasonable time, the difference in the value of the goods when they should have been delivered and their value when delivered, with interest, if said goods have declined in value.
(Code 1907, §5514; Code 1923, §10010; Code 1940, T. 48, §164.)
(a) When any property, chattels, or goods have been received by any transportation company for transportation, and such goods, chattels, or property shall be lost, destroyed or injured, or shall not be delivered according to the contract of shipment, the shipper, consignor, consignee, or other person entitled to demand and receive them shall make out an itemized statement of the goods, property or chattels so lost, destroyed or injured, or not delivered, setting forth the kind of articles, and the number thereof, and the value and the extent or amount of damages, and shall, after making, subscribing and swearing to the same before an officer authorized to administer an oath, deliver the same to the said transportation company, agent, or officer of said transportation company so receiving said shipment within 60 days after said loss, destruction, injury, or failure to deliver such goods, property or chattels.
(b) When such verified statement of such loss, destruction, injury, or failure to deliver shall be delivered to such transportation company, or officer, or agent of such transportation company, it shall be the duty of such transportation company, if such property, goods or chattels were lost, destroyed, not delivered or injured by said transportation company, or the agent or officer of such transportation company, to pay or tender to such person so presenting such claim, if he is the one entitled thereto, the value of said property, goods or chattels so lost or destroyed, or not delivered, or the amount of the damages or injury to such property, goods or chattels within 60 days from the date of such delivery of such verified claim therefor.
(c) A failure to make such verified claim for such loss, destruction or injury shall not forfeit the right of the person entitled thereto to bring a civil action for and recover such loss, destruction or injury, but unless claim is duly made as required by this division, only the value of such property or the injury suffered shall be recovered.
(Code 1907, §§5515-5518; Code 1923, §§10011, 10012, 10014; Code 1940, T. 48, §§165, 166, 168.)
(a) If the value of such goods, property or chattels so lost, destroyed or not delivered, or the amount of damages or injury, where injured, shall not be paid or tendered to such person entitled thereto so presenting such verified claim therefor within the time prescribed in subsection (b) of Section 37-2-61, such person may, on bringing an action therefor and on making proof of such shipment and loss, or destruction, failure to deliver or injury to such goods, chattels or property, and the due presentation of such verified claim, or demand for the value of, or damage to such goods, property or chattels, and that such claim was not for more than such value or injury, and the failure of such transportation company to pay for the same within 60 days from the making of such demand, recover from the said transportation company fourfold damages, suffered by reason of such loss, destruction or injury, unless such loss, destruction or injury is the result of the act of public enemies or the act of God, where the amount of such damages does not exceed $25.00, and twofold damages with interest where the amount of such damages exceeds $25.00 and does not exceed $100.00, and where the damages exceed $100.00 and do not exceed $250.00, one and one-half times the amount of such damages, with interest, and where the damages exceed $250.00, and do not exceed $500.00, one and one-fourth times the amount of such damages, with interest, and where the damages exceed $500.00, one and fifteen one-hundredths times the amount of such damages, with interest.
(b) All actions brought under this division shall be brought within one year after the making of said written demand.
(Code 1907, §§5517, 5519; Code 1923, §§10013, 10015; Code 1940, T. 48, §§167, 169.)
Every railroad company must erect, at all points where its road crosses any public road, at a sufficient elevation to admit of the free passage of vehicles of every kind, a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad and warn persons of the necessity of looking out for the cars.
(Code 1876, §1722; Code 1886, §1146; Code 1896, §3442; Code 1907, §5475; Code 1923, §9954; Code 1940, T. 48, §172.)
The engineer or other person operating a locomotive on any railroad must blow the horn or whistle or ring the bell:
(1) At least one fourth of a mile before reaching any public road crossing or any regular station or stopping place on such railroad and continue with such signal at short intervals, until such crossing or such station or stopping place has been passed;
(2) Immediately before and at the time of leaving a station or stopping place and also immediately before entering any curve crossed by a public road, not marked in accordance with Section 37-2-80, where he cannot see at least one quarter of a mile ahead, and must approach and pass such unmarked crossing at such speed as to prevent an accident in the event of an obstruction at the crossing; and
(3) At short intervals, on entering into, or while moving within or passing through any village, town or city.
He must also, on perceiving any obstruction on the track, use all means within power, known to skillful engineers, such as applying brakes, in order to stop the train.
(Code 1867, §1399; Code 1876, §1699; Code 1886, §1144; Code 1896, §3440; Code 1907, §5473; Code 1923, §9952; Code 1940, T. 48, §170; Acts 1979, No. 79-552, p. 1001.)
When the tracks of two railroads cross each other at grade, engineers and conductors must cause the trains of which they are in charge to come to a full stop within 100 feet of such crossing and not to proceed until they know the way to be clear, the train on the railroad having the older right-of-way being entitled to cross first; but the provisions of this section shall not be applicable where crossings of such roads are regulated by interlocking crossing or derailing switches, or other safety appliances of like kind to prevent collisions at crossings, nor where a flagman or watchman is stationed at such crossings and such flagman or watchman signals that the trains may cross in safety.
(Code 1867, §1403; Code 1876, §1702; Code 1886, §1145; Code 1896, §3441; Code 1907, §5474; Code 1923, §9953; Code 1940, T. 48, §171.)
A railroad company is liable for all damages done to persons, or to stock or other property, resulting from a failure to comply with the requirements of Sections 37-2-80 through 37-2-82, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of proof, in any action brought therefor, is on the railroad company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents.
(Code 1867, §1401; Code 1876, §1722; Code 1886, §1147; Code 1896, §3443; Code 1907, §5476; Code 1923, §9955; Code 1940, T. 48, §173.)
(a) The Department of Transportation is given authority and power to abandon and discontinue any portion of a state highway, or street on a state highway route with the approval of the city council or governing body of any municipality, crossing the tracks or right-of-way of any railroad or street railway within the state, and to close the grade crossing, whenever in the judgment of the department the grade crossing has ceased to be necessary for the public as a part of any state highway, because of relocation of the highway, or because of the construction of an underpass or overpass, or other provision made for the elimination of the grade crossing. Whenever the department orders the abandonment of a portion of the highway or street and the closing of a grade crossing, it shall enter its order providing therefor in the department minutes. Notice in writing of the abandonment and discontinuance of the portion of the highway or street and the closing of the grade crossing shall be given by the department by posting a notice on each side of the railroad or street railway at the grade crossing for a period of 30 days. Thereafter, the railroad or street railway shall not be required to maintain the grade crossing for use as a public highway or street.
(b) Notwithstanding any other provision of law, the Department of Transportation may abandon, close, and discontinue a portion of a municipal or county highway, street, or right-of-way crossing the tracks or right-of-way of any railroad within the state whenever in the judgment of the department the grade crossing is dangerous or redundant or the enhancement of public safety resulting from the closing outweighs any inconvenience caused by rerouting the vehicular traffic. In the event the closing is deemed by the department to cause substantial inconvenience to vehicular traffic or materially impair the provision of police, fire, or ambulance service, the department may also order a relocation of the crossing or the building of an alternate crossing at another location. If the department orders the relocation of the crossing or the building of an alternate crossing, the crossing shall be built at no costs to the municipality or county unless the municipality or county enters into an agreement to share in the costs of the relocation of the crossing or the building of an alternate crossing.
(c) Prior to issuing the order to close a crossing, the Department of Transportation shall give written notice of intention to close the crossing to the municipality or county in the event it is a municipal or county road or street. In addition, the department shall publish legal notice of intention to close the crossing in a newspaper of general circulation in the county once a week for three consecutive weeks prior to issuance of the order of closure. The notice shall state the procedure to request a hearing prior to the closure. Any citizen who uses a crossing or who owns property abutting a crossing or the county or municipality may give a notice in writing to the Department of Transportation requesting a hearing prior to the closing. Upon request for a hearing, the department shall conduct a public hearing in the municipality or county in which the crossing is located by giving at least 10 days’ notice to the person or persons requesting the hearing and to the municipality or county in which the crossing is located. At the public hearing, a department official designated by the Director of Transportation shall hear all persons interested and shall receive any written statements from interested persons. The official conducting the hearings shall file a written report with the director together with all written statements filed by persons attending the hearing and shall make a written recommendation to the director concerning the proposed closing. After consideration of the report, the recommendation and the statements submitted therewith, the director shall enter an order closing the crossing or requiring the crossing to remain open or requiring the crossing to be relocated within the judgment of the director. The order of the director shall be final.
(d) Upon the issuance of the order by the Director of Transportation, it is the responsibility of the railroad or railroads involved to physically remove the crossing from the tracks and it is the responsibility of the municipality or county where the crossing is located to install any signs or barricades which might be appropriate. The costs of any signs or barricades shall be shared equally by the Department of Transportation and the city or county where the crossing is located.
(e) Whenever a railroad crossing or any highway, street, or right-of-way crossing the tracks or right-of-way of any railroad is closed, abandoned, or discontinued pursuant to this section, that action shall not affect any right-of-way for the lines, structures, equipment, and facilities of any utility as defined in Title 37, which cross the tracks or right-of-way of the railroad at the crossing or along, over, or through the highway, street, or right-of-way abandoned.
(f) The provisions of subsections (a) through (d) of this section shall be the exclusive method of closing railroad grade crossings located on any public drive, street, road, or highway in this state.
(Acts 1935, No. 281, p. 679; Code 1940, T. 48, §174; Acts 1994, No. 94-582, p. 1067, §1.)
(a) It shall be the duty of every person or corporation operating a railroad in this state, before employing any person as train dispatcher, engineer, conductor, fireman, flagman, brakeman, trackman, or switchman to subject the applicant for employment to a thorough examination respecting his capacity to fill the position applied for, his moral character and reputation, his sobriety and previous record, his knowledge of the rules and regulations governing the employees of the railroad, the knowledge which may be necessary or proper for the skillful performance of his duties, and shall subject the applicant for employment to a thorough examination respecting his ability and capacity to see and distinguish objects and color, commonly called colorblind examination, and respecting his sense of hearing.
(b) The examination required in subsection (a) must be made by the superintendent of the road or by the master of trains, or master mechanic of the railroad, and shall be reduced to writing on blanks provided for that purpose. If the applicant shall be found qualified in all respects for the position, the approved application papers shall be filed in the office of the superintendent in this state, or if there be no such superintendent, then in the principal office of such railroad in this state. Such examination papers, when certified by the officer having custody of them, shall be evidence of their contents and of the fact of such examination without further proof.
(c) If the applicant, upon examination, shall be found competent and his examination papers are approved by the general manager or other chief executive officer, the superintendent, or other person selected by him to conduct such examination, shall issue without charge a license to the applicant to engage in the occupation about which he has been examined.
(Code 1896, §§3448-3450; Code 1907, §§5481-5483; Code 1923, §§9960-9962; Code 1940, T. 48, §§179-181.)
Any person or corporation operating a railroad in this state who employs any person as engineer, fireman, train dispatcher, conductor, flagman, brakeman or switchman, who has not been examined and licensed as provided by Section 37-2-85, shall, on conviction, be fined not less than $100.00 nor more than $500.00.
(Code 1896, §5359; Code 1907, §7655; Code 1923, §5323; Code 1940, T. 48, §427.)
Every railroad conductor and engineer in this state shall carry on his person while on duty in train service a conductor/engineer’s qualification permit. Every company, association, person or other entity which employs or permits railroad conductors and engineers to engage in train service shall issue to such person a qualification permit. Such permit shall include the conductor or engineer’s name, address, physical description, date of birth and a certification that such person is qualified as a conductor or engineer. Notwithstanding any provision of the law to the contrary, whenever a conductor or engineer of a train is requested to show proof of his identity under the provisions of this title, in connection with operations of such train, to any law enforcement officer, such conductor or engineer shall not be required to display his Alabama motor vehicle driver’s license but shall display his conductor/engineer’s qualification permit instead.
(Acts 1982, No. 82-272, p. 340.)
The chief superintendent of every railroad shall instruct the engineers and conductors thereof, as to the provisions of Sections 37-2-81 and 37-2-82, and order them to comply therewith.
(Code 1867, §1405; Code 1876, §1703; Code 1886, §1148; Code 1896, §3444; Code 1907, §5477; Code 1923, §9956; Code 1940, T. 48, §175.)
(a) All steamboats approaching, with the intention of passing through, any railroad drawbridge, when about three miles, and again when about two miles, and again when about one mile, and again when about half a mile therefrom, must give, as signals, three loud and distinct sounds of the whistle; and any steamboat attempting to go through such draw without giving such signals shall forfeit $500.00, one half to the informer, and the other half to the county or counties in which the bridge is situated.
(b) Any railroad company owning, or agent having supervision over, or management or control of, any such drawbridge, shall upon signal being given, as provided in subsection (a) of this section, proceed at once to open, or cause to be opened, the draw of such bridge for the passage of such steamboat; and on failing to open such draw immediately upon signal being given, without lawful excuse therefor, such company and agent shall forfeit to the use of the owner of such steamboat the sum of $250.00, to be recovered in any court of competent jurisdiction; but suit for such forfeiture must be brought within 90 days after the date of the failure to open such draw.
(c) Immediately upon the draw being opened sufficiently wide for the passage of such steamboat, the person in charge of the bridge shall ring loudly and continuously a large bell until the boat has passed through the draw; and in foggy weather, and also between sunset and sunrise, the person in charge shall, as soon as the draw is opened sufficiently wide for the passage of the boat, hoist above the draw a blue light, of not less than eight inches in diameter, to an elevation sufficient to prevent the framework of the bridge from obstructing the sight of the light up and down the river, and shall keep one white light on each end of the draw; such lights to remain stationary until the boat has passed through the draw, and to be exhibited only when the draw is open for the passage of a boat; and in foggy weather, and also between sunset and sunrise when the draw is not open, there shall be exhibited on the draw, as a signal thereof, a red light so situated as to be visible up and down the river.
(Code 1876, §§1718-1720; Code 1886, §§1151-1153; Code 1896, §§3445-3447; Code 1907, §§5478-5480; Code 1923, §§9957-9959; Code 1940, T. 48, §§176-178.)
(a) Whenever the Public Service Commission deems it necessary that any railroad in this state, or any portion thereof, shall be fenced, it shall notify the person or corporation operating such railroad of their conclusion.
(b) Upon failure, after a reasonable notice, to fence such railroad or the portion thereof designated, the person or corporation operating such railroad shall be liable in damages for the value of any stock killed or injured upon the portion of the line so designated to be fenced, whether with or without negligence; but if the fence is erected in conformity to the notice, no liability shall attach for stock killed or injured upon the portion of the line so fenced, unless the killing or injury was committed willfully.
(Code 1886, §1134; Code 1896, §3495; Code 1907, §§5653, 5654; Code 1923, §§9635, 9636; Code 1940, T. 48, §§183, 184.)
All companies, corporations, lessees, owners, operators, or receivers of any railroad or railway company operating a railroad or railway in whole or in part in this state shall equip, maintain and use upon every locomotive being operated in road service in this state in the nighttime a power headlight of not less than 1,500 candle power brilliancy, measured with the aid of a suitable reflector. Nothing in this division shall be so construed as to prevent a locomotive engine, whose headlight has become defective while on the road, from proceeding to the most convenient terminal or division point where the necessary facilities exist for remedying such defect. This section shall not apply to industrial roads, such as tram roads, mill roads, and roads engaged principally in lumber or logging transportation in connection with mills, and the provisions of this section shall not apply during the first 90 days of a strike of the particular employees, whose duties are to repair and maintain headlights.
(Acts 1915, No. 181, p. 257; Code 1923, §9963; Code 1940, T. 48, §182.)
Every person, corporation, company or association operating a railroad shall give notice to the commission of every accident happening on any portion of its line in this state, which is attended with death or maiming or other serious injury to the person of anyone, within five days thereafter, giving facts and circumstances of such accident, which any one or more of the commissioners may investigate, and the result of such injury, with such details as they may deem necessary, shall be entered upon the record of the proceedings of the commission.
(Code 1886, §1133; Code 1896, §3499; Code 1907, §5666; Code 1923, §9648; Code 1940, T. 48, §185.)
Every railroad company in this state, on the order of the Public Service Commission, shall provide, construct and maintain adequate depots and depot buildings for the accommodation of passengers, where public necessity demands it and the revenue received at such point will be sufficient to justify it. Said railroad company, for the comfort and accommodation of its passengers, must have, when required by the Public Service Commission, at each of the passenger stations along the line of railroad operated by such company, sufficient sitting or waiting rooms, to be determined by the commission, for passengers waiting for trains, having regard to sex, which shall be suitably heated in cold weather, and supplied with sufficient fresh drinking water, when passengers waiting for trains are present, and with sufficient and comfortable chairs or seats; and connected therewith a sufficient number of comfortable privies, or water closets, to be at all times kept clean; and, in a conspicuous place at such station, a bulletin board showing the schedule time of the arrival and departure of all passenger trains. Any said railroad company must maintain a ticket office at each of said stations for the sale of tickets, together with a sufficient force of employees to transact efficiently the business and traffic thereat.
(Code 1923, §9964; Code 1940, T. 48, §186.)
Any two or more railroads which enter any city or town may be required, when practicable, or when the necessities of the case in the judgment of the Public Service Commission demand it, to have and maintain one common or union passenger station for the security, accommodation, and convenience of the traveling public, and to unite in the joint undertaking and expense of erecting, constructing, and maintaining such union passenger station commensurate with the business and revenue of such railroad companies or corporations, on such terms, regulations, provisions, and conditions as the Public Service Commission may prescribe. Any company failing to comply with the orders of the Public Service Commission shall be liable to a penalty of not less than $1,000.00 nor more than $10,000.00, for every six months in default, to be recovered by the state.
(Code 1907, §5545; Code 1923, §10042; Code 1940, T. 48, §189.)
Whenever the Public Service Commission shall make an order requiring the performance of any of the duties enumerated in Sections 37-2-110 and 37-2-111, notice thereof may be served on the person or corporation operating the railroad, by delivering a copy of such order, signed by the president of the Public Service Commission, to the president or other head thereof, secretary, cashier, station agent or any other agent thereof, which service may be executed by any member of the Public Service Commission, or the clerk thereof, or by any sheriff of the state; and a copy of such notice, with the service endorsed thereon, must be returned to the Public Service Commission and entered of record as a part of its proceedings. If such order be for the erection of sitting or waiting rooms, or privies or closets, the person or corporation operating the railroad is allowed 90 days after such service, or such further time as may be allowed by the Public Service Commission, in which to comply with such order; if for the erection of bulletin boards, a period of 30 days after such service shall be allowed.
(Code 1896, §3452; Code 1907, §5485; Code 1923, §9965; Code 1940, T. 48, §190.)
The Public Service Commission must notify the district attorney of the proper circuit and the Attorney General of the failure of any railroad company or person operating a railroad to comply with any order made by such commission for the erection of sitting or waiting rooms, within 60 days after the expiration of the period within which such sitting or waiting rooms are to be erected; and thereupon, it shall be the duty of the district attorney, under the direction of the Attorney General, to bring a civil action in the name of the State of Alabama, or take other appropriate steps in the circuit court, or before the judge of the circuit court to compel the erection of such sitting or waiting rooms. For the purpose of entertaining, hearing, and deciding such cases, the circuit court shall be always open, and the circuit judge may make all needful orders and issue all writs and process. If the person or corporation refusing or failing to obey such order claims that the same is unreasonable or unjust, such person or corporation may, on demand, have the facts tried by a jury, in accordance with the Alabama Rules of Civil Procedure. From any judgment made under this section, an appeal lies to the supreme court within 42 days from the entry thereof, and such appeal shall be heard as a preferred case.
(Code 1896, §3453; Code 1907, §5486; Code 1923, §9966; Code 1940, T. 48, §191.)
Railroad trains for the carriage of passengers must stop at all stations advertised by the railroad company as stops for such trains at least half a minute for receiving passengers thereon; and every railroad company and employee of such company, violating, or causing or permitting any violation of the provisions of this section, forfeits to the state, for the use of the public schools, not less than $25.00, nor more than $100.00, which may be recovered in the district court of the county in which such violation occurs. The conductor of the train shall be held prima facie to have caused any such violation occurring on the train in his charge. The company whose agent shall cause or permit such violation shall also incur and be liable for such forfeiture.
(Code 1886, §1157; Code 1896, §3453; Code 1907, §5493; Code 1923, §9974; Code 1940, T. 48, §192.)
Nothing in this division shall be so construed as to prevent any person from recovering damages against the railroad company or companies for failure on the part of their employees to comply with the provisions of this division.
(Code 1907, §5496; Code 1923, §9977; Code 1940, T. 48, §199.)
All railroads shall on the order of the Public Service Commission keep and maintain adequate and suitable depots, buildings, switches and sidetracks for the receiving, handling and delivering of freight transported or to be transported by such railroads, where public necessity demands it and the revenue received at such point will be sufficient to justify it, together with a sufficient force of employees at each of said depots to transact efficiently the business and traffic thereat.
(Code 1907, §§5542, 5543; Code 1923, §§10039, 10040; Code 1940, T. 48, §200.)
Railroads may be constructed so as to cross or connect with each other, by the main or branch tracks; and any person or corporation operating a railroad, when required, must transport or draw over such railroad, main line or branches, the passengers, freight or cars of any intersecting railroad, or any railroad connecting therewith, directly or indirectly, on reasonable terms, and for a reasonable compensation; but such person or corporation is not required to receive or transport the cars of any other railroad, unless such cars are adapted to the gauge of its track, are sufficiently strong, and are otherwise in proper condition for safe transportation.
(Code 1867, §1435; Code 1876, §1695; Code 1886, §1165; Code 1896, §3466; Code 1907, §5499; Code 1923, §9980; Code 1940, T. 48, §207.)
When two or more railroad companies have roads running to or through the same town or city, or near enough thereto to receive freight traffic from said town or city, they shall, when required by an order of the Public Service Commission, make and maintain a physical connection between their respective tracks, where the tracks are of the same gauge, at such point in or near said town or city as the commission shall require, so that cars may be transferred from the one road to the other, and there may be an interchange of traffic between them, where such connection, in the judgment of the Public Service Commission, is reasonably practicable and can be put in with safety, and will furnish sufficient business to justify the construction and maintenance of the same where rights-of-way can be obtained by condemnation or otherwise, on terms deemed reasonable by the Public Service Commission. All railroads shall afford reasonable and proper facilities for such interchange of traffic the one with the other when so required by the Public Service Commission.
(Code 1907, §5535; Code 1923, §10032; Code 1940, T. 48, §201.)
Every railroad subject to the provisions of this division shall construct, maintain, and operate upon reasonable terms, a switch connection with such other railroad or with any private sidetrack which may be constructed to connect with its railroad, where such connection, in the judgment of the Public Service Commission, is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and to furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any shipper. The Public Service Commission, upon the application of any other railroad, or of any shipper tendering freight traffic for transportation, made either to the commission or to said railroad company, may require them to comply with the provisions of this section.
(Code 1907, §5536; Code 1923, §10033, Code 1940, T. 48, §202.)
All railroad companies subject to the provisions of this division shall provide at all points of connection, crossing or intersection at grade, where it is practicable and necessary for the interchange of traffic, ample facilities by track connections for transferring any cars used in the regular business of their respective lines of road from their lines or tracks to those of any other railroad company whose lines or tracks may connect with, cross or intersect their own, and shall provide equal and reasonable facilities for the interchange of cars and traffic between their respective lines and for the receiving, forwarding and delivering of passengers, property and cars to and from their several lines or on freight coming over such lines; but this shall not be construed as requiring any railroad company to furnish for another railroad company its track equipment or terminal facilities without reasonable compensation. Each of said connecting lines shall be liable for and shall pay its proportionate share, to be determined by the Public Service Commission, for the building and maintenance of such tracks and switches as may be necessary to furnish the transfer facilities required in this section.
(Code 1907, §5537; Code 1923, §10034; Code 1940, T. 48, §203.)
All railroads shall afford all reasonable and proper facilities for the interchange of traffic between their respective lines for forwarding and delivering passengers and property, and shall transfer and switch for reasonable compensation, and deliver without unreasonable delay or discrimination any freight or cars, loaded or empty, destined to any points on its tracks or any connecting lines; and precedence over other freight shall be given to livestock and perishable freight.
(Code 1907, §5538; Code 1923, §10035; Code 1940, T. 48, §204.)
Every railroad is required to construct and maintain spur tracks and sidetracks to industries already established under such reasonable rules and orders as may be made by the commission.
(Code 1907, §5544; Code 1923, §10041; Code 1940, T. 48, §205.)
Every person or corporation operating a railroad must put cattle guards and crossings for plantation roads upon such railroad, and keep the same in good repair, whenever the owner or person in possession of the land through which the road passes shall make demand upon them or their agents, and show that such guards are necessary to prevent the depredation of stock upon his land, and the crossings are necessary for the proper use of the land. The owner or person in possession of the land through which the railroad passes may recover, of the person or corporation operating the railroad, the sum of $25.00 for every 30 days of default on the part of the person or corporation operating the railroad after written demand, served on an officer, road master or section foreman, designating the place for the erection of the cattle guard or road crossing, and a like penalty for failing to keep the cattle guard or road crossing in good repair after written demand.
(Code 1896, §3480; Code 1907, §5513; Code 1923, §10009; Code 1940, T. 48, §213.)
(a) Any company or corporation operating a railway may apply through one of its executive officers to the Governor to commission such number of its agents, servants or employees as said corporation shall designate to act as policemen for said corporation.
(b) The Governor, upon such application, may appoint such person, if he sees proper in his discretion to make any appointment, or so many of them as he may deem proper to be such policemen and shall issue to such person or persons so appointed a commission to act as such policemen.
(c) In addition, the Governor of this state may enter into agreement with the Governor of any other state empowering railroad police officers appointed and commissioned in either state to exercise their powers and authority, as defined in this title, in the other state.
(Acts 1911, No. 77, p. 36; Code 1923, §§9993, 9994; Code 1940, T. 48, §§214, 215; Acts 1975, No. 517, §1.)
Every policeman so appointed shall, before entering upon the duties of his office, take and subscribe the usual oath and enter into bond in the sum of $500.00, payable to the State of Alabama, conditioned for the faithful performance of the duties of his office, with good and sufficient surety to be approved by the Public Service Commission. Such oath of office and such bond, with a copy of the commission, shall be filed with the Public Service Commission, and a certificate by the secretary of such commission of such appointment and compliance with the foregoing provisions of this section shall be filed with the Secretary of State.
(Acts 1911, No. 77, p. 36; Code 1923, §9996; Code 1940, T. 48, §216; Acts 1975, No. 517, §2.)
Such railway policemen shall, when on duty, severally wear a metallic shield with the words “railway policeman” and the name of the corporation for which appointed inscribed thereon, and said shield shall always be worn in plain view, except when acting as detective.
(Acts 1911, No. 77, p. 36; Code 1923, §9999; Code 1940, T. 48, §220.)
(a) A railroad policeman may exercise the same powers of arrest and the right to bear firearms that may be exercised by any state, municipal or other police officer in this state, but only with respect to offenses committed against property owned or in the possession of the railroad by which he is employed or for any offense committed on such property.
(b) The authority of any person appointed under the provisions of this division to act as such policeman shall immediately cease whenever such person ceases to be an agent, servant or employee of the corporation applying for the appointment under this division.
(Acts 1911, No. 77, p. 36; Code 1923, §§9995, 9996, 10000; Code 1940, T. 48, §§217, 219; Acts 1975, No. 517, §3.)
The compensation of such policemen shall be paid by the companies for which the policemen were respectively appointed as may be agreed upon between them.
(Acts 1911, No. 77, p. 36; Code 1923, §10001; Code 1940, T. 48, §221.)
The corporation or company which applied for the appointment of such policeman, as provided in this division, shall be liable in damages for all of the torts, acts of negligence or misconduct of said policeman or policemen to the same extent as for torts, acts of negligence or misconduct committed by any of its other agents, servants or employees.
(Acts 1911, No. 77, p. 36; Code 1923, §9998; Code 1940, T. 48, §218.)
Whenever any such corporation or company shall no longer require the services in Alabama of any policeman so appointed, it shall file a written notice to that effect in the offices of the Governor, the Secretary of State and the Public Service Commission.
(Acts 1911, No. 77, p. 36; Code 1923, §10002; Code 1940, T. 48, §222; Acts 1975, No. 517, §4.)
The Governor may, at any time, remove any such policeman so appointed by him. Written notice of such removal shall be filed with the employing company or corporation and in the offices of the Secretary of State and the Public Service Commission.
(Acts 1911, No. 77, p. 36; Code 1923, §10003; Code 1940, T. 48, §223; Acts 1975, No. 517, §5.)
This chapter shall be known as the Communications Reform Act of 2005.
(Act 2005-110, p. 163, §1.)
When used in this chapter, the following words have the following meanings:
(1) BASIC TELEPHONE SERVICE. Refers to a service that, as provided by an incumbent local exchange carrier, may be through any technology and through any affiliate or service arrangement and includes the functionalities described in 47 C.F.R. 54.101(a).
(2) BROADBAND SERVICE or BROADBAND ENABLED SERVICE. Any service that consists of or includes a high-speed access capability to transmit at a rate that is not less than 200 kilobits per second either in the upstream or downstream direction, and either of the following:
a. Provides computer processing, information storage, information content or protocol conversion, including any service applications or information service provided over such high-speed access service.
b. Is used to provide access to the Internet.
(3) BUNDLED OFFERING. A combination of retail services offered as a package, whether at a single price or with the availability of the price for one service contingent on the purchase of other services. A bundled offering must be advertised and sold as a bundled offering at rates, terms, or conditions that are different than if the services are purchased separately and may be comprised of any telecommunications services offered by a local exchange carrier in combination with any other telecommunications services or with any nontelecommunications services, including services offered by an affiliate of the local exchange carrier or a nonaffiliated third party provider.
(4) COMMISSION. The Public Service Commission of the State of Alabama.
(5) COMMUNICATIONS SERVICE. Any service that is either a telecommunications service or an information service.
(6) CONTRACT OFFERING. Any retail contractual agreement, whether or not memorialized in writing, by which a local exchange or inter-exchange carrier offers any communications service to any existing customer or potential customer.
(7) ELIGIBLE TELECOMMUNICATIONS CARRIER. A telecommunications carrier which qualifies for universal service support under 47 U.S.C. §214(e) as a common carrier and provides the services supported by the federal universal support mechanisms under 47 U.S.C. §254(c) throughout the service area for which eligible telecommunications carrier designation is received.
(8) EXCHANGE ACCESS. The offering of access to telephone exchange services or facilities for the purpose of origination or termination of telephone toll services.
(9) EXISTING BUNDLED OFFERING. A bundled offering subscribed to by the customer before September 1, 2006.
(10) EXISTING CONTRACT OFFERING. Any contract offering executed by the customer before September 1, 2006.
(11) INCUMBENT LOCAL EXCHANGE CARRIER. With respect to an area, the local exchange carrier that, on the date of enactment of the Federal Telecommunications Act of 1996, provided telephone exchange service in the area and was deemed to be a member of the Exchange Carrier Association pursuant to Section 69.601(b) of the Federal Communications Commission’s regulations (47 CFR §69.601(b)) or, on or after that date of enactment, became a successor or assignee of a member of the Exchange Carrier Association.
(12) INFORMATION SERVICE. The offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
(13) INTER-EXCHANGE CARRIER. Any company certified by the commission to provide intrastate inter-exchange telecommunications service in this state.
(14) LIFELINE. A program designed to increase the availability of communications services to low income subscribers by providing a credit to monthly recurring local service to qualifying residential subscribers. The terms and conditions of the program shall be in compliance with the Federal Communications Commission’s rules and with the Telecommunications Act of 1996.
(15) LINK-UP. A program designed to increase the availability of communications services to low income subscribers by providing a credit to the non-recurring installation and service charges to qualifying residential subscribers. The terms and conditions of the program shall be in compliance with the Federal Communications Commission’s rules and with the Telecommunications Act of 1996.
(16) LOCAL EXCHANGE CARRIER. Any provider of telecommunications service that is engaged in the provision of telephone exchange service or exchange access.
(17) NEW BUNDLED OFFERING. A bundled offering subscribed to by the customer on or after September 1, 2006.
(18) NEW CONTRACT OFFERING. Any contract offering executed by the customer on or after September 1, 2006.
(19) OPTIONAL TELEPHONE FEATURES. Those central office-based features that were tariffed by a local exchange carrier on or before February 1, 2005, that, where available:
a. Are available to a line-side connection in a telephone switch;
b. Are available on a stand-alone basis separate from a bundled offering; and
c. Enhance the utility of basic telephone service. The term includes, but is not limited to, call forwarding, call waiting, and caller ID.
(20) TELECOMMUNICATIONS. As defined in the Telecommunications Act of 1996, 47 U.S.C. §153(43).
(21) TELECOMMUNICATIONS CARRIER. Any provider of telecommunications services. A telecommunications carrier shall be treated as subject to this chapter only to the extent that it is engaged in providing telecommunications service.
(22) TELECOMMUNICATIONS SERVICE. The offering of telecommunications for a fee directly to the public, or to any classes of users as to be effectively available directly to the public, regardless of the facilities used. The term does not include the provision of commercial mobile service under Section 332(c) of the Federal Communications Act of 1934.
(23) TELEPHONE EXCHANGE SERVICE. Either of the following:
a. Service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge.
b. Comparable service provided through a system of switches, transmission equipment, or other facilities, or combination thereof, by which a subscriber can originate and terminate telecommunications service.
(24) VOICE OVER INTERNET PROTOCOL (VoIP) SERVICE. An interconnected voice over Internet (VoIP) service, as defined in 47 C.F.R. §9.3, as amended, that does all of the following:
a. Enables real-time, two-way voice communications.
b. Requires a broadband connection from the user’s location.
c. Requires Internet protocol-compatible customer premises equipment (CPE).
d. Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.
(Act 2005-110, p. 163, §1; Act 2009-461, p. 810, §1; Act 2012-181, p. 285, §1.)
The Legislature finds that advancements in communications technology and innovation have significantly changed the way people communicate. In particular, wireless and Internet technologies delivered by multiple competitors are providing consumers and businesses with advanced communications services, enhancing the quality of life and economic productivity. The Legislature has determined that additional consumer and economic benefits can be achieved through the adoption of new policies promoting market-based competitive forces for today’s advanced wireline communications services market, while maintaining commission oversight of basic local wireline telephone service and of issues associated with wholesale transactions that incumbent local exchange carriers have with other telecommunications carriers for the transmission and routing of telephone exchange service and exchange access.
(Act 2005-110, p. 163, §1.)
(a) Notwithstanding any provision of law to the contrary, the commission shall not have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, the rates, charges, classifications, provision, or any aspect of broadband service, broadband enabled services, VoIP services, or information services.
(b)(1) The commission may require incumbent local exchange carriers to unbundle their networks, but the commission shall not require the carriers to unbundle in a manner that exceeds in degree or differs in kind from the unbundling requirements of the Federal Communications Commission.
(2) Nothing in this section shall be construed to:
a. Affect any entity’s obligations under 47 U.S.C. Sections 251 and 252 or a right granted to an entity by these sections.
b. Affect any applicable wholesale tariff.
c. Grant, modify, or affect the authority of the commission to implement, carry out, or enforce the rights or obligations provided by 47 U.S.C. Sections 251 and 252, or of an applicable wholesale tariff or law, regulation, or order related to wholesale rights, duties, and obligations, consistent with federal law and Federal Communications Commission requirements, through arbitration proceedings or other available mechanisms and procedures.
(c) Once a telecommunications service, a bundled offering, or a contract offering is no longer subject to the general jurisdiction of the commission as prescribed below, the commission shall nevertheless retain exclusive complaint jurisdiction for the telecommunications services provided, either as stand-alone services or as part of a bundled offering or contract offering, for complaints arising out of any of the following:
(1) Inaccurate billing for telecommunications services.
(2) Billing of telecommunications services not ordered by or on behalf of the customer.
(3) The establishment or disruption of telecommunications service.
The commission may only interpret and enforce the terms and conditions of the underlying agreements or contracts for telecommunications services. The commission shall not have the power to set the agreement aside or alter its terms or conditions, either directly or indirectly. No person or entity other than the customer and his or her representative, the carrier, and the Attorney General may participate in these complaint proceedings before the commission. The jurisdiction of the commission with respect to these retail issues shall extend to formal and informal complaints and may include the resolution thereof through alternative dispute resolution procedures including mediation with any mediator to be chosen by the commission. With respect to retail billing requirements, after August 1, 2005, the commission shall enforce only the Truth in Billing regulations prescribed by the Federal Communications Commission and those rules developed by the commission to support Truth in Billing requirements as authorized by the Federal Communications Commission.
(4) The provision of call blocking of number delivery and line blocking of number delivery in order to protect the confidentiality of victims of domestic violence, domestic violence shelters, or affiliated professionals certified by the Alabama Coalition Against Domestic Violence to be in need of blocking.
(d) Beginning August 1, 2006, the commission shall not have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, the costs, rates, charges, terms, or conditions for any new bundled offering or the number or types of communications services that comprise a new bundled offering, but may continue to regulate, supervise, control, oversee, or monitor existing bundled offerings.
(e) Beginning August 1, 2006, the commission shall not have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, the costs, rates, charges, terms, or conditions of any new contract offering, but it shall retain jurisdiction over existing contract offerings for the duration of the existing contract offering, unless otherwise agreed to by the affected customer.
(f) Beginning February 1, 2007, the commission shall exercise its jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, and monitor basic telephone service and optional telephone features as prescribed in Section 37-2A-8.
(g) Beginning February 1, 2007, the commission shall not have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, any retail telecommunications services and any existing bundled offering, except as provided in subsections (e) and (f) and Section 37-2A-7, nor shall it have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, the facilities used to provide such retail telecommunications services or bundled offerings.
(h) Tariffs for the services remaining subject to the commission’s jurisdiction under subsections (d) and (e) shall remain valid and in effect until (1) the date on which the commission’s jurisdiction ceases as contemplated in subsection (g), and (2) until the last existing contract offering has expired or has been replaced by a new contract offering, respectively. The relevant carrier shall notify the commission in writing of the expiration or replacement of the last existing contract offering, identifying the expiration date for the relevant tariffs, after which date the tariffs shall be null and void and of no further force or effect. Except as set forth above, the tariffs for those services no longer subject to the commission’s authority pursuant to subsection (g) shall be null and void and of no further force or effect from and after the date on which such jurisdiction ceases.
(i) The commission shall not impose or establish information or reporting requirements or a uniform system of accounts on any carrier that is subject to this chapter that exceeds in degree or differs in kind from the requirements of the Federal Communications Commission.
(j) Prior to January 1, 2006, each person, corporation, or other entity that provides telephone service in this state shall file a plan with the commission setting forth in detail how such person, corporation, or other entity will protect the confidentiality of the address or location of family violence shelters, as defined in Section 30-6-1, in this state. The persons, corporations, and other entities shall update the plans at least every 24 months. The original and updated plans shall be approved by the commission within a reasonable time upon a determination that the plans are reasonably effective in identifying the family violence shelters in the state and in maintaining the confidentiality of the location and address of family violence shelters. If the commission determines that a plan is inadequate, it shall state the basis on which the plan was determined to be inadequate and shall allow the person, corporation, or other entity filing the plan a period of not more than 30 days to file a revised plan that is acceptable to the commission. The plans shall not be open to examination by the public. Within three days of filing original plans or updates with the commission, each person, corporation, or other entity subject to this subsection shall submit a copy of all original plans, updated plans, and revised plans to the Alabama Coalition Against Domestic Violence, which is authorized to provide comments concerning the plans to the commission in order to aid in review and approval of the plans. The filing or approval of the plans shall not in any manner be a defense to any action or complaint.
(k) After February 25, 2014, subdivisions (1), (2), and (3) of subsection (c) shall not apply to retail telecommunications services offered by telecommunications carriers operating pursuant to this chapter, if the carrier files a written election with the commission to be removed from the commission’s complaint and dispute jurisdiction as provided in such subdivisions. Such election shall be effective immediately upon filing, and may be changed by the carrier no more than once a year.
(Act 2005-110, p. 163, §1; Act 2009-461, p. 810, §1; Act 2014-82, p. 129, §1.)
Notwithstanding any provision of Section 40-21-120(1)a. or (2) to the contrary, upon petition to the Alabama Public Service Commission, the commission may designate the petitioning commercial mobile radio service provider as an eligible telecommunications carrier to be eligible to offer and receive universal service support pursuant to 47 U.S.C. §§ 214(e) and 254.
(Act 2023-469, §1.)
(a) An incumbent local exchange carrier, local exchange carrier, or inter-exchange carrier shall be deemed to have elected to be regulated under this chapter unless the carrier files written notice with the commission declining regulation under this chapter not later than August 31, 2005; provided, however, that, any other provision of this chapter to the contrary notwithstanding, so long as (i) application of any of the requirements of 47 U.S.C. 251 (b) or (c) shall have been suspended or modified with respect to an incumbent local exchange carrier pursuant to the provisions of 47 U.S.C. 251 (f) (2), or (ii) an incumbent local exchange carrier shall be exempt from the obligations of 47 U.S.C. 251 (c) pursuant to the provisions of 47 U.S.C. 251 (f) (1) (A), such incumbent local exchange carrier shall not be eligible to elect and shall not be deemed to have elected to be regulated under this chapter unless the incumbent local exchange carrier files with the commission either a written waiver of the incumbent local exchange carrier’s exemption pursuant to the provisions of 47 U.S.C. 251(f)(1)(A), accompanied by a written statement and undertaking to the effect that those requirements of 47 U.S.C. 251(b) and (c), if any, that shall have theretofore been or that may thereafter be suspended or modified with respect to it pursuant to the provisions of 47 U.S.C. 251(f)(2) will either expire by the terms of such suspension or modification, or will cease to be effective, within 18 months from the date of filing of the waiver in the case of such suspensions or modifications theretofore granted, or otherwise from the date any such suspension or modification is thereafter granted, or written certification of the existence of two or more of the following:
(1) Either (i) the incumbent local exchange carrier has executed an interconnection agreement with two or more specified local exchange carriers unaffiliated with the incumbent local exchange carrier and, to the extent required under law, has obtained regulatory approval for such agreement or agreements, or (ii) the incumbent local exchange carrier offers for resale at wholesale rates, consistent with the provisions of 47 U.S.C. 251(c)(4)(A) and (B), any telecommunications service that the incumbent local exchange carrier provides at retail to subscribers who are not telecommunications carriers.
(2) Either (i) at least two specified wireless telecommunications providers unaffiliated with the incumbent local exchange carrier are licensed by the Federal Communications Commission in a geographic area encompassing more than one-half of the incumbent local exchange carrier’s subscribers, or (ii) at least two specified voice over Internet protocol providers offer service in a geographic area encompassing more than one-half of the incumbent local exchange carrier’s subscribers.
(3) Another entity not specified by the incumbent local exchange carrier in its certification of the existence of a condition described in subdivision (1) or (2) above has been designated an eligible telecommunications carrier by the Federal Communications Commission for the purpose of providing universal service to at least one-half of the incumbent local exchange carrier’s subscribers.
Such certification shall, except as provided hereinafter, become effective on the 91st day following its filing and the incumbent local exchange carrier shall thereafter become subject to regulation under this chapter.
The incumbent local exchange carrier shall cause notice of the filing of any such certification to be given to the mayor of each municipality within the incumbent local exchange carrier’s local service area or areas, and shall publish such notice once a week for three consecutive weeks in a daily newspaper of general circulation within the incumbent local exchange carrier’s local service area or areas, proof of which notice to the mayors and of publication shall be provided to the commission within 30 days of the filing of the certification. The notice shall reference this chapter, identify the incumbent local exchange carrier, specify the date of the filing of the certification, explain the nature of the certification, and explain that any subscriber of the incumbent local exchange carrier may challenge the material correctness of the certification by filing with the commission within 90 days of the date of filing of the certification a pleading in writing setting forth with specificity the reasons the subscriber believes the certification to be materially inaccurate. Upon timely receipt of such a pleading, the effectiveness of the certification shall be deemed suspended, and the commission shall set a hearing thereon and give notice thereof in accordance with its rules. At the hearing, the commission may take such testimony as may be offered, the burden of proof being upon the incumbent local exchange carrier to demonstrate by substantial evidence that its certification is correct in all material respects. The commission shall within 60 days after the completion of the hearing and arguments, if any, determine whether the incumbent local exchange carrier’s certification is materially correct and shall make and file and serve upon all the interested parties a written order setting forth its determination. In the event that the commission shall determine the incumbent local exchange carrier’s certification to be materially correct, the suspension of the certification shall cease and the incumbent local exchange carrier shall be deemed to have validly elected to be regulated under the provisions of this chapter, effective as of the date of the commission’s order. In the event that the commission shall fail to make and serve its order determining the material correctness of the incumbent local exchange carrier’s certification within 60 days after the completion of the hearing and arguments, the incumbent local exchange carrier’s certification shall be deemed to be materially correct, the suspension of the certification shall cease, and the incumbent local exchange carrier shall be deemed to have validly elected to be regulated under the provisions of this chapter, effective as of the 61st day following the completion of the hearing and arguments. An aggrieved party may appeal the commission’s order setting forth its determination to the Supreme Court of Alabama pursuant to the provisions of Section 37-1-140 et seq., governing appeals of decisions involving rates and charges of telephone companies and public utilities.
(b) An incumbent local exchange carrier, local exchange carrier, or inter-exchange carrier who elects not to be regulated under this chapter as provided in subsection (a) shall be regulated as provided in other chapters of this title.
(c) An incumbent local exchange carrier, local exchange carrier, or inter-exchange carrier may change its election annually by filing written notice with the commission. The time for filing notice each year shall begin on August 1, beginning in 2006, and shall end 30 days thereafter.
(d) Persons or entities who are not certified in this state to provide local exchange service or inter-exchange service on August 1, 2005, may make an election as to the form of regulation by filing written notice with the commission not later than 30 days after the commission issues a certificate to provide service. The commission shall not condition its grant of certification on a provider’s decision about its election of the form of regulation.
(Act 2005-110, p. 163, §1.)
Notwithstanding anything in this chapter to the contrary, those provisions of Act 2009-461 which revise or create Sections 37-2A-8(b)(2)a., 37-2A-8(b)(2)b., 37-2A-8(b)(2)c., 37-2A-8(b)(3)a., 37-2A-8(b)(3)b., 37-2A-8(b)(3)c., and 37-2A-8(b)(3)d. shall not be applicable to any incumbent local exchange carrier until and unless such carrier has waived in writing with the commission any exemption, suspension, or modification otherwise available under 47 U.S.C. §251(f).
(Act 2009-461, p. 810, §2.)
(a) Carriers that become regulated under subsection (a) of Section 37-2A-5 shall send notice to any existing retail customers who will be affected by the change in regulation under subsection (g) of Section 37-2A-4 at least 45 days prior to February 1, 2007.
(b) Carriers that become regulated under subsection (c) of Section 37-2A-5 shall send notice to any existing retail customers who will be affected by the change in regulation under subsection (g) of Section 37-2A-4 at least 45 days prior to the carrier’s filing pursuant to subsection (c) of Section 37-2A-4.
(c) Carriers that become regulated under subsection (a) or (c) of Section 37-2A-5 shall send notice to any existing retail customer who will be affected by the change in regulation under subsections (b)(2)b. and (b)(3)d. of Section 37-2A-8 at least 45 days prior to the effective date of the change in regulation.
(d) The notice provided for in subsection (a), subsection (b), and subsection (c) shall meet all of the following:
(1) Be posted on the carrier’s web site and sent to the customer’s billing address via a bill message or a bill insert. An incumbent local exchange carrier may also publish notice in a newspaper of general circulation in the county of the billing address, or an adjoining county if no newspaper of general circulation is published in the county.
(2) Summarize the terms and conditions under which the carrier will provide service on and after the effective date of the change in regulation.
(3) Notify the customer that he or she may obtain a copy of the terms and conditions from the carrier’s web site or by contacting the carrier’s business office by telephone.
(e) A customer who does not cancel service before the effective date of the new form of regulation shall be deemed to have accepted the new terms and conditions in their entirety until he or she cancels the service. No person who fails to receive actual notice, and no person who wishes to reject the new terms and conditions, or any part thereof, but fails to cancel service in a timely fashion shall have, directly or indirectly in any forum, a complaint or cause of action arising out of such failure or wish to reject.
(Act 2005-110, p. 163, §1; Act 2009-461, p. 810, §1.)
(a)(1) The commission shall implement, supervise, and control state and federal universal service programs in compliance with federal and state law.
(2) A subscriber who receives Lifeline service shall be required to pay all applicable fees, including the Alabama E-911 surcharge, the Alabama telephone relay system surcharge, and all applicable federal, state, and local taxes.
(b) Beginning June 10, 2019, each state agency that administers public assistance programs, consumer participation which qualifies a consumer for federal Tribal Link-Up, federal Lifeline benefits, or both, shall fully cooperate with the Federal Communications Commission and the Universal Service Administrative Company, or its designees, in allowing access to the agency’s data files, with no cost to the agency, as solely necessary to allow the Universal Service Administrative Company, National Eligibility Verifier, and the national Lifeline eligibility database to perform Lifeline and Tribal Link-Up eligibility, enrollment, and other necessary related administrative functions, as required by the Federal Communications Commission with respect to Alabama consumers.
(Act 2005-110, p. 163, §1; Act 2009-461, p. 810, §1; Act 2019-483, §1.)
(a)(1) Notwithstanding any provision of law to the contrary, an entity that is not an incumbent local exchange carrier shall not be obligated to tariff or otherwise provide basic telephone service. An incumbent local exchange carrier shall provide, upon reasonable request, basic telephone service to the premises of a permanent residence within its franchised service territory, if the costs, including, but not limited to costs of facilities, rights-of-way, and equipment, of providing basic telephone service to the requesting party does not exceed eight thousand dollars ($8,000).
(2) If the cost exceeds eight thousand dollars ($8,000), as provided in subdivision (1), an incumbent local exchange carrier may not deny service on the basis of cost so long as sufficient funds to provide that service are available from the Alabama portion of the applicable federal universal service fund program.
(3) An incumbent local exchange carrier obligated by this section to serve as the carrier of last resort is relieved of that obligation and shall not be obligated to provide basic telephone service to any occupants of real property if the owner or developer of the real property, or a person acting on behalf of the owner or developer of real property, engages in any of the following acts:
a. Permits an alternative communications service provider to install its facilities or equipment used to provide communications services based on a condition of exclusion of the incumbent local exchange carrier during the construction phase of the real property.
b. Accepts or agrees to accept incentives or rewards from an alternative communications services provider that are contingent upon the provision of any or all local communications services by one or more alternative communications services providers to the exclusion of the incumbent local exchange carrier.
c. Collects from the occupants or residents of the real property mandatory charges for the provision of any local communications services provided by an alternative communications services provider to the occupants or residents in any manner, including, but not limited to, collection through rent, fees, or dues.
d. Prohibits an incumbent local exchange carrier from providing the full range of its communications services, including video services, to the premises of potential customers.
(4) If the alternative communications services provider in paragraphs a. through c. of subdivision (3) goes out of business and is unable to provide service to the property and there is no other provider willing or able to provide, or actually providing voice service to the property, then the incumbent local exchange carrier, subject to the limitations in subdivisions (1) and (2), shall provide voice service to the property utilizing any available technology through any affiliated companies, provided the incumbent local exchange carrier has reasonable access to the property.
(5)a. Notwithstanding subdivisions (1), (2), (3), and (4), on July 1, 2012, an incumbent local exchange carrier is relieved of its obligation to provide basic telephone service unless the incumbent local exchange carrier elects to retain the obligation and notifies the Public Service Commission not later than July 31, 2012.
b. An incumbent local exchange carrier that elects to retain the obligation to provide basic telephone service pursuant to paragraph a. and files a notice with the Public Service Commission on or before December 1 of any year, shall be relieved of the obligation on January 1 of any subsequent year.
(6) The relief specified in subdivision (5) does not affect an incumbent local exchange carrier’s obligations under federal law.
(7) [This subdivision is repealed January 1, 2014.] a. If the premises of a permanent residence in existence on July 1, 2012, is within an incumbent local exchange carrier’s franchised service territory and the residence is unable to receive voice service from any provider through any voice technology, the owner of the permanent residence or a tenant may file a request for service with the commission. Following investigation by the commission, if the commission determines that a reasonable request for service has been made and that no voice service is available to the premises of the permanent residence, the commission may determine whether an incumbent local exchange carrier is best able to provide voice service to the residence and may order the carrier to provide voice service to the residence. Alternatively, the commission may conduct a competitive procurement process to identify a willing provider of voice service to provide voice service at the requesting residence. In either case, the incumbent local exchange carrier or willing provider of voice service may utilize any voice technology or service arrangement to provide voice service. The commission shall issue a final order disposing of any request within 90 days of the filing of the request.
b. This subdivision and any obligations created pursuant to it shall be repealed on January 1, 2014.
(b)(1) Beginning February 1, 2007, the retail price for basic telephone service to be offered by incumbent local exchange carriers shall not exceed the highest price charged by the incumbent local exchange carrier on January 31, 2007.
(2)a. Beginning January 1, 2008, and every succeeding January 1 through December 31, 2010, the retail rates for basic telephone service may not be increased by the incumbent local exchange carrier to exceed the rates of the previous year as of January 1, plus any increase in the Consumer Price Index for all urban consumers as reported by the U.S. Department of Labor, Bureau of Labor Statistics.
b. Beginning August 1, 2009, the commission shall not have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, the costs, rates, charges, terms, or conditions, for any retail telecommunications services provided to businesses or government entities, except as provided in Section 37-2A-11(b)(6).
c. Beginning January 1, 2011, the commission shall not have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, the costs, rates, charges, terms, or conditions for basic telephone service.
(3)a. Each optional telephone feature in a bundled offering must be available on a stand-alone basis under a tariff on file with the commission. If a bundled offering is offered by a local exchange carrier, the carrier shall have a basic telephone service tariffed offering for residential customers on file with the commission.
b. Beginning January 1, 2008, and through December 31, 2010, increases in tariffed rates for optional telephone features may not exceed five percent per optional telephone feature per year.
c. Through December 31, 2010, a residential bundled offering that consists solely of basic telephone service and optional telephone features must be priced at or below the sum of the tariffed price of basic telephone service and the tariffed price of the associated optional telephone features.
d. Beginning January 1, 2011, the commission shall not have any jurisdiction, right, power, authority, or duty to regulate, supervise, control, oversee, or monitor, directly or indirectly, the costs, rates, charges, terms, or conditions for optional telephone features.
(Act 2005-110, p. 163, §1; Act 2009-461, p. 810, §1; Act 2011-622, p. 1436, §1; Act 2012-181, p. 285, §1.)
(a) The commission shall retain its jurisdiction to prescribe reasonable entry standards for persons not previously granted certification to provide telecommunications service in Alabama.
(b) Every application for a certificate of public convenience and necessity by a new entrant to provide telecommunications service in this state shall be accompanied by an application fee in the amount of one hundred dollars ($100).
(Act 2005-110, p. 163, §1.)
[Repealed]
REPEALED BY ACT 2015-70 EFFECTIVE OCTOBER 1, 2019.
Telecommunications carriers subject to this chapter shall pay to the commission supervision and inspection fees under the following schedule:
(1) Except as provided in subdivision (4), a telecommunications carrier that becomes regulated under subsection (a) of Section 37-2A-5 shall annually pay supervision and inspection fees which shall not be diminished as a result of this chapter and shall be no less than that equal to the annual fees imposed by Section 37-2-41 and paid by that carrier for the calendar year preceding August 1, 2005.
(2) Except as provided in subdivision (4), a telecommunications carrier that becomes regulated under subsection (c) of Section 37-2A-5 shall annually pay supervision and inspection fees which shall not be diminished as a result of this chapter and shall be no less than that equal to the annual fees imposed by Section 37-2-41 and paid by that carrier for the calendar year preceding its election to be regulated under subsection (c) of Section 37-2A-5.
(3) A telecommunications carrier that has not been granted certification to provide telecommunications services in Alabama prior to August 1, 2005, and that obtains certification under the commission’s jurisdiction under Section 37-2A-9 shall pay annually supervision and inspection fees as specified in Section 37-2-41.
(4) Should a telecommunications carrier subject to the payment of supervision and inspection fees under subdivisions (1) and (2), sell or otherwise divest more than 25 percent of its intrastate business upon which its supervision and inspection fees were paid, as applicable, for the calendar year preceding August 1, 2005, under subdivision (1) or for the calendar year preceding the date of its election under subdivision (2), it shall annually pay supervision and inspection fees in succeeding calendar years as specified in Section 37-2-41 based on its intrastate business not sold or otherwise divested. Nothing in this subdivision shall relieve any telecommunications carrier acquiring such sold or otherwise divested business from the provisions of this chapter, including the payment of supervision and inspection fees as specified in Section 37-2-41.
(Act 2005-110, p. 163, §1.)
For fiscal years 2017, 2018, and 2019, supervision and inspection fees for telecommunications carriers subject to Section 37-2A-10(1), (2), or (4) shall be reduced in three equal installments representing, in total, the difference in fees paid by a carrier in fiscal year 2015 and the amount of fees calculated pursuant to Section 37-2-41 for fiscal year 2015. The reductions shall be applied with cumulative effect for payments made after July 1, 2019, and for payments made prior to July 1, 2019 which included the cumulative effect of the reductions. For fiscal year 2020 and subsequent years, fees for telecommunications carriers subject to this chapter shall be paid pursuant to the formula contained in Section 37-2-41.
(Act 2015-70, p. 258, §2(a); Act 2019-462, §1.)
(a) This chapter is intended to supersede the remainder of this title as to any matter provided for in this chapter.
(b) Nothing in this chapter shall do any of the following:
(1) Alter the jurisdiction, rights, powers, authority, or duties of the commission except as specifically provided for in this chapter.
(2) Be interpreted to expand the commission’s jurisdiction, right, power, authority, or duty as it is provided for in any other chapter of this title.
(3) Alter any provider’s obligations under state E-911 laws.
(4) Alter, amend, or modify taxes imposed by Title 40, or any other title of this code, unless specifically provided for in this chapter.
(5) Alter, amend, or modify, other than as provided in subdivision (1) of subsection (b) of Section 37-2A-4, the commission’s authority with regard to wholesale transactions between incumbent local exchange carriers and other telecommunications carriers for the transmission and routing of telephone exchange service and exchange access.
(6) Alter or modify the current treatment of tariffed emergency reporting services regulated by the commission on or before February 1, 2005, and offered by local exchange carriers to public safety answering points and emergency communications districts.
(7) Confer upon the commission the power and jurisdiction to regulate and supervise any utility or telecommunications carrier owned and operated by any municipal corporation in the state or any municipal instrumentality, as defined in subdivision (15) of Section 11-50B-2.
(8) Limit the ability of the Attorney General of this state to investigate claims of, and seek appropriate remedies for, alleged anticompetitive pricing or illegal tying of telecommunications services or other potential violations of antitrust law relating to the provision of telecommunications services by any carrier that becomes subject to this chapter.
(Act 2005-110, p. 163, §1; Act 2009-461, p. 810, §1.)
This chapter shall be known and may be cited as the “Alabama Motor Carrier Act.”
(Acts 1939, No. 669, p. 1064, §33; Code 1958, T. 48, §301(1a).)
The following words and phrases used in this chapter, where not in conflict with the context, shall have the following meanings:
(1) BROKER. Any person not included in the term “motor carrier” and not a bona fide employee or agent of any such carrier, who or which, as principal or agent, sells or offers for sale any transportation of property other than that transported by common carriers of passengers, subject to this chapter, or negotiates for or holds itself out by solicitation, advertisement, or otherwise as one who sells, provides, furnishes, contracts, or arranges for the transportation.
(2) CERTIFICATE. A certificate of public convenience and necessity issued under this chapter to common carriers by motor vehicle.
(3) COMMON CARRIER BY MOTOR VEHICLE. Any person who or which undertakes, whether directly or by a lease or other arrangement, to transport passengers or property or any class or classes of property for the general public in the State of Alabama by motor vehicle for compensation, whether over regular or irregular routes or whether between fixed termini or not, including such other motor vehicle operations of carriers by rail or water or express and forwarding companies under this chapter.
(4) COMMISSIONER. One of the members of the commission.
(5) COMMISSION. The Alabama Public Service Commission.
(6) CONTRACT CARRIER BY MOTOR VEHICLE. Any person not included under subdivision (3), who or which under a special or individual contract or agreement, under special or individual contracts or special or individual agreements and whether directly or by lease or any other arrangement transports passengers or property by motor vehicle for compensation in this state.
(7) HIGHWAY. Every public highway, or place of whatever nature, open to the use of the public for purposes of vehicle travel in this state, including the public highways, roads, streets, and alleys in towns and cities.
(8) HOUSEHOLD GOODS CARRIER. A common carrier by motor vehicle which transports personal effects and property used or to be used in a dwelling as part of the equipment or supply of the dwelling.
(9) LICENSE. A license issued under this chapter to a broker.
(10) MOTOR CARRIER. Both a common carrier by motor vehicle and a contract carrier by motor vehicle.
(11) MOTOR VEHICLE. Any vehicle, machine, tractor, trailer, or semitrailer, propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, but not including any vehicle, locomotive, or car operated exclusively on a rail or rails.
(12) PERMIT. A permit issued under this chapter to contract carriers by motor vehicle.
(13) PERSON. Any individual, firm, copartnership, corporation, company, association or joint stock association, including any trustee, receiver, assignee, or personal representative thereof.
(14) SERVICE and TRANSPORTATION. All vehicles operated by, for, or in the interest of any motor carrier irrespective of ownership or of contract, express or implied.
(Acts 1939, No. 669, p. 1064, §1; Code 1958, T. 48, §301(1); Act 2001-370, p. 474, §1.)
This chapter and every part thereof shall apply to and be construed to apply to interstate commerce, except insofar as the same may be in conflict with the provisions of the Constitution of the United States and the Acts of Congress now in force or hereafter enacted.
(Acts 1939, No. 669, p. 1064, §4; Code 1958, T. 48, §301(4).)
(a) This chapter shall not be construed to apply to:
(1)a. School buses or other motor vehicles which are owned by county boards of education or under contract with county boards of education, regardless of whether or not the school buses and other motor vehicles are being used exclusively for the transportation of school children and school teachers to and from school and provided the school buses and other motor vehicles do not take on passengers for fare on a certificated route.
b. Motor vehicles for hire while operating wholly within the limits of a city or incorporated town or within the police jurisdiction thereof, or between two or more incorporated towns or cities whose city limits join or are contiguous or whose police jurisdictions join or are contiguous.
c. Motor vehicles while used in the transportation of property when the owner of the vehicle is legally and regularly engaged in the business of selling such property and is the owner and has the legal title to the motor vehicle involved, also motor vehicles if engaged in hauling milk, livestock, coal, coke, logs, lumber, poles, pulpwood, cotton in bales, cottonseed, fertilizer, peanuts, potatoes, or any other agricultural commodity of any kind (but not manufactured products thereof); or motor vehicles hauling road materials and paid by the State of Alabama, or paid by any county or other political subdivision thereof, or paid by any contractor performing work for the State of Alabama, or any county or other political subdivision thereof, for a distance not exceeding 50 miles; and motor vehicles used exclusively in the transportation of milk in thermal or artificially cooled bodies or containers; except, that this subsection shall not be construed to exempt from the provisions of Chapter 19 of Title 40 any motor carrier who operates under a certificate or permit granted under the authority of the Alabama Public Service Commission.
All motor vehicles hauling property for hire and which are in any respect exempt under paragraph a. of this subdivision (1) must, before transporting any exempt property, secure a permit from the Department of Revenue of the State of Alabama, which permit may be furnished without cost upon proper application where there are no legal objections thereto; and a permit shall be issued under reasonable rules and regulations promulgated by the Department of Revenue of the State of Alabama.
(2) Motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons.
(3) Motor vehicles owned and operated by the United States, this state or any county, municipality, or other political subdivision of this state.
(4) Motor vehicles controlled and operated by any farmer while used in the transportation of agricultural commodities and products thereof, whether for personal use or another farmer, or in the transportation of supplies to or from the farm.
(5) Motor vehicles controlled and operated by a bona fide cooperative association as defined by the General Agricultural Marketing Act, approved June 15, 1929, as amended, or organized or existing under any state cooperative marketing act, while used exclusively in the conduct of the business of the association.
(6) Motor vehicles while used exclusively in the transportation of newspapers and magazines and United States mail.
(7) Motor vehicles owned by a farmer used occasionally in transporting household goods and furniture.
(8) Motor vehicles, except taxicabs or airport limousines, used primarily for hauling 14 or fewer passengers to and from their regular places of employment, including the organizers, sponsors, or promoters of the vehicles where the operator of the vehicle is not otherwise engaged in transportation for hire and is engaged in a not-for-profit operation, provided, that the Alabama Public Service Commission may require the operators of the motor vehicles to register with the Public Service Commission, and the commission may inspect these motor vehicles as it deems necessary for purposes of safety.
(9) Church-owned buses used for carrying passengers to and from religious services, regardless of size and capacity.
(b) In addition to all other exclusions and exemptions from the application of this chapter, there are hereby exempted from the operation and provisions of this chapter ambulances, hearses, and wrecker services wherever used or operated in this state.
(c) No motor carrier who transports property exclusively in open-top dump truck and trailers without pneumatic loading and unloading devices shall be subject to any provisions of this chapter which require the filing of tariffs, schedules of charges, contracts, or the establishment or participation in any published rates. Nothing contained herein, however, shall exempt any motor carrier providing service in vehicles from complying with all other provisions of this chapter, unless otherwise provided by this chapter.
(d) No house mover or motor carrier of houses and other intact buildings shall be subject to any provision of this chapter which requires the filing of tariffs, schedules of charges, contracts, or the establishment or participation in any published rates. A house mover or motor carrier of houses or other intact buildings shall be subject to all remaining provisions of this chapter.
(e) Motor carriers who transport passengers for any nonprofit educational, religious, or charitable institution, society or corporation, or for any nonprofit literary, or scientific institution, or public institution, society, or corporation, or other organizations with tax exempt status by the federal government pursuant to 26 U.S.C.A. §501(c), including their organizers, sponsors, or promoters shall be exempted from the provisions of this chapter while transporting persons pursuant to an otherwise lawful contract or agreement. The provisions of subsection (d) of Section 37-3-20, as amended, shall not be applicable for that service or transportation except as herein provided. The agreement or contract shall not be declared invalid because it is not in compliance with any tariff, schedule of rates, or contracts prescribed by this chapter and no penalties, fines, assessments, or recovery of charges below any required rates, or waived entirely, shall be recovered from the motor carrier or such passenger. Provided, however, that the Alabama Public Service Commission may require the operators of the motor vehicle to register with the Public Service Commission and the commission may inspect these motor vehicles as it deems necessary for purposes of safety, insurance, and visibility of the name of owner or operator of the vehicle. Any motor carrier who transports any nonprofit group passengers shall file quarterly reports with the Public Service Commission, listing the names and addresses of the nonprofit organization, corporation, institution, or society and the organizers, sponsors, or promoters, if any, together with the date and its published fare, rate, and charges for each group. The report shall be cumulative only for the quarter filing as prescribed by the commission.
Any carriage heretofore or hereafter conducted by motor carriers exclusively in their vehicles pursuant to an otherwise lawful agreement shall not be declared invalid because it was not in compliance with any tariff, schedule of rates, or contracts required by this chapter and no penalties, fines, assessments, or recovery of charges in excess of or below any prescribed rates may be levied against or recovered by any shipper or motor carrier as a result of the carriage.
(Acts 1939, No. 669, p. 1064, §2; Acts 1949, No. 76, p. 103; Acts 1949, No. 101, p. 128; Acts 1951, No. 932, p. 1600; Acts 1953, No. 265, p. 330; Acts 1955, 2nd Ex. Sess., No. 34, p. 140; Acts 1955, No. 547, p. 1204; Code 1958, T. 48, §§301(2), 301(2a); Acts 1961, Ex. Sess., No. 215, p. 2218; Acts 1978, 2nd Ex. Sess., No. 13, p. 1689, §1; Acts 1980, No. 80-744, p. 1515; Acts 1984, No. 84-373, p. 874; Acts 1985, No. 85-688, p. 1103; Acts 1993, No. 93-752, p. 1503, §1; Acts 1993, 1st Ex. Sess., No. 93-918, p. 219, §1.)
No motor carrier, as defined in this chapter, not exempt in this chapter, shall operate any motor vehicle for the transportation of passengers or property for compensation on any highway in the state except in accordance with the provisions of this chapter; and every such carrier is hereby declared subject to control, supervision and regulation by the commission.
(Acts 1939, No. 669, p. 1064, §3; Code 1958, T. 48, §301(3).)
Nothing in this chapter shall confer any proprietary or property rights in the use of the public highways.
(Acts 1939, No. 669, p. 1064, §3; Code 1958, T. 48, §301(3).)
It shall be the duty of the commission:
(1) To regulate common carriers by motor vehicle as provided in this chapter, and, to that end, the commission may establish reasonable rules and requirements with respect to adequate service, transportation of passengers, baggage, freight and express, uniform systems of accounts, records and reports, preservation of records, qualifications and maximum hours of service of employees and safety of operation and equipment.
(2) To regulate contract carriers by motor vehicle as provided in this chapter, and, to that end, the commission may establish reasonable requirements with respect to uniform systems of accounts, records and reports, preservation of records, qualifications and maximum hours of service of employees and safety of operation and equipment.
(3) To regulate brokers as provided in this chapter, and, to that end, the commission may establish reasonable requirements with respect to the licensing, financial responsibility, accounts, records, reports, operations and practices of any such person or persons.
(4) To supervise and regulate common carriers in all matters affecting the relationship between such common carriers and the traveling and shipping public.
(5) To administer, execute and enforce all provisions of this chapter and to make all necessary orders in connection therewith and to prescribe rules, regulations and procedure for such administration.
(6) To inquire into the organization of motor carriers and brokers and into the management of their business, to keep itself informed as to the manner and method in which the same is conducted and to transmit to the legislature, from time to time, such recommendation as to additional legislation relating to such carriers or brokers as the commission may deem necessary.
(7) To establish from time to time such just and reasonable classification of brokers or of groups of carriers, included in the term “common carrier by motor vehicle” or “contract carrier by motor vehicle,” as the special nature of the services performed by such carriers or brokers shall require and such just and reasonable rules, regulations and requirements, consistent with the provision of this chapter, to be observed by the carriers or brokers so classified or grouped as the commission deems necessary or desirable in the public interest.
(8) Upon complaint in writing to the commission by any person, state board, organization or body politic or upon its own initiative without complaint, to investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or with any requirement established pursuant thereto. If the commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the commission shall issue an appropriate order to compel the carrier or broker to comply therewith.
After a decision, order or requirement has been made by the commission in any proceeding under this chapter, any party thereto may make application to the commission for reconsideration or rehearing of the same, or of any matter determined herein, and it shall be lawful for the commission in its discretion to grant such reconsideration or a rehearing, if sufficient reason therefor is made to appear. Such application shall be filed within 30 days after date of such decision, order or requirement; provided, that the commission may by order extend such time for not more than 30 days additional. Applications for reconsideration or rehearing shall be governed by such general rules as the commission may prescribe. No such application shall excuse any motor carrier or broker from complying with or obeying any decision or requirement of the commission or operate in any manner to stay or postpone the enforcement thereof without the special order of the commission. If, after such reconsideration or rehearing, it shall appear that the original decision, order or requirement is in any respect unjust or unreasonable, the commission may reverse, change or modify the same accordingly. Any decision, order or requirement made after such reconsideration or rehearing shall be subject to the same provisions as an original decision, order or requirement; provided, however, it shall not be subject to any further application for reconsideration or rehearing by the commission.
(Acts 1939, No. 669, p. 1064, §5; Code 1958, T. 48, §301(5).)
No member of the commission, nor any employee of the commission appointed or employed in the administration of this chapter, shall in any manner have pecuniary interest in, own any securities of, or hold any position with any motor carrier or broker subject to this chapter.
(Acts 1939, No. 669, p. 1064, §6; Code 1958, T. 48, §301(6).)
Except as otherwise provided, any matter arising in the administration of this chapter requiring a hearing shall be heard and decided by the commission or shall, by written order of the commission, be referred to a member or examiner of the commission for hearing and the recommendation of an appropriate order thereon. With respect to such matter, the member or examiner shall have all the rights, duties, powers and jurisdiction conferred by this chapter upon the commission; except, that the order recommended by such member or examiner shall be subject to the following provisions of this paragraph. Any order recommended by the member or examiner with respect to such matter shall be in writing and be accompanied by the reasons therefor and shall be filed with the commission. Copies of such recommended order shall be served upon the parties in interest, who have appeared in the proceeding, who may file exceptions thereto, but if no exceptions are filed within 20 days after service upon such parties, or within such further period as the commission may authorize, such recommended order shall become the order of the commission and become effective, unless within such period the order is stayed or postponed by the commission. Where exceptions are filed as provided in this section, it shall be the duty of the commission to consider the same, and, if sufficient reason appears therefor, the commission shall grant such review or make such order or hold or authorize such further hearing or proceedings in the premises as may be necessary or proper to carry out the purpose of this chapter, or the commission may, on its own motion, review any such matter and take action thereon as if exceptions thereto had been filed. The commission, after review upon the same record or as supplemented by a further hearing shall decide the matter and make appropriate order thereon. Where practicable and as the commission may by rule or notice direct, hearings by the commission, any member or examiner upon any matter shall be held at such places within the State of Alabama as are convenient to the parties.
(Acts 1939, No. 669, p. 1064, §7; Code 1958, T. 48, §301(7).)
(a) No common carrier by motor vehicle subject to the provisions of this chapter shall engage in intrastate commerce on any highway in this state unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the commission pursuant to the provisions of this chapter authorizing such operation. The application for such certificate shall be decided in accordance with the procedure provided in Section 37-3-11, and such certificate shall be issued or denied accordingly. No common carrier of passengers holding a certificate of public convenience and necessity issued to it by the commission shall be required to apply for a certificate under this chapter, but such certificate held and effective shall be effective as if issued under this chapter, but this shall not be construed or held to relieve the holder of such certificate from complying with all other provisions of this chapter and any and all laws now or hereafter in effect.
(b) Application for certificates shall be made in writing to the commission, be verified under oath and shall be in such form and contain such information and be accompanied by proof of service of notice thereof upon such interested parties as the commission shall, by regulation, require; provided, that the commission shall give notice of the filing of any such application upon the State Department of Transportation and, in the case of an application for a certificate to transport passengers, upon each common carrier of passengers then operating or proposing to operate by application pending before the commission in the territory proposed to be served; and, in the case of an application for a certificate to transport freight, upon each common carrier of freight then operating or proposing to operate by application pending before the commission in the territory proposed to be served.
(Acts 1939, No. 669, p. 1064, §8; Code 1958, T. 48, §301(8).)
(a) Subject to the provisions of Section 37-3-14 and to the provisions of subsection (b), a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing, and able to properly perform the service proposed and to conform with the provisions of this chapter and requirements, rules, and regulations of the commission thereunder, and that the proposed service, to the extent to be authorized by the certificate is or will be required by the present or future public convenience and necessity; otherwise, the application shall be denied. No certificate shall be issued to any common carrier of passengers by motor vehicle for operations over other than a regular route or routes and between fixed termini, except as the carriers may be authorized to engage in special or charter operations.
(b) Before granting a certificate to a common carrier by motor vehicle, the commission shall, among other things, consider all of the following:
(1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs.
(2) The financial ability of the applicant to furnish adequate, continuous, and uninterrupted service the year around.
(3) The advantages to the public of the proposed service.
(c) Notwithstanding subsections (a) and (b), a certificate shall be issued to any qualified household goods carrier upon application and without the necessity of a hearing, if it is found that the applicant is fit, willing, and able to properly perform the service proposed and to conform with this chapter and the requirements, rules, and regulations of the commission.
(Acts 1939, No. 669, p. 1064, §9; Code 1958, T. 48, §301(9); Act 2001-370, p. 474, §1.)
(a) Any certificate issued under Sections 37-3-10 and 37-3-11 shall specify the service to be rendered and the routes over which, the fixed termini, if any, between which, and the intermediate and off-route points, if any, at which, and in case of operations not over specified routes or between fixed termini, the territory within which the motor carrier is authorized to operate; and there shall at the time of issuance and from time to time thereafter be attached to the exercise of the privilege granted by the certificate such reasonable terms, conditions and limitations as the public convenience and necessity may from time to time require, including terms, conditions and limitations as to the extension of the route or routes of the carrier, and such terms and conditions as are necessary to carry out, with respect to the operations of the carrier, the requirements established by the commission under this chapter; provided, that the carrier may add to his or its equipment and facilities over the routes, between the termini or within the territory specified in the certificate, as the development of the business and the demands of the public shall require, subject to such reasonable regulations as the commission may prescribe.
(b) A common carrier by motor vehicle operating under any such certificate may occasionally deviate from the route over which or the fixed termini between which it is authorized to operate under the certificate, under such general rules and regulations as the commission may prescribe.
(c) Any common carrier by motor vehicle transporting passengers under a certificate issued or effective under this chapter may transport to any place a special or chartered party or parties, under such rules and regulations as the commission prescribed; and every common carrier by motor vehicle transporting passengers not holding a certificate of public convenience and necessity issued under this chapter, but holding a certificate of public convenience and necessity from the Interstate Commerce Commission issued pursuant to the Motor Carrier Act 1935, 49 U.S.C., §306, as now or hereafter amended, may transport on the highways of this state special or chartered parties under such rules and regulations as the commission shall prescribe; provided, that no such carrier shall be permitted to make more than two trips during a period of one month; and provided further, that before any such trip is permitted the carrier shall present to the commission proper evidence of public liability and property damage insurance covering the vehicle or vehicles to be used in making such trip and shall pay to the State of Alabama the mileage tax prescribed by Chapter 19 of Title 40 of this Code and shall furnish the commission with such other information as the commission by general or special rule or regulation may reasonably require.
(d) A certificate for the transportation of passengers may include authority to transport in the same vehicle with the passengers, newspapers, baggage of passengers, express or mail, or to transport baggage of passengers in a separate vehicle.
(e) No common carrier by motor vehicle authorized under the provisions of this chapter to operate within the State of Alabama shall abandon or discontinue, either temporarily (except in cases of emergency) or permanently, any service established under the provisions of this chapter without an order of the commission that the public convenience and necessity permit such abandonment or discontinuance, which said order shall be granted by the commission only after hearing, should the commission deem a hearing necessary.
(Acts 1939, No. 669, p. 1064, §10; Code 1958, T. 48, §301(10).)
Notwithstanding the provisions of Section 37-3-11 or any other provision of general law, local law, or any rule or regulation of a state agency to the contrary, the Public Service Commission is hereby authorized to grant intrastate charter rights to any common carrier of passengers by motor vehicle regardless if such common carrier holds and operates regular route authority.
(Acts 1984, No. 84-184, p. 278.)
(a) No person shall engage in the business of a contract carrier by motor vehicle in intrastate commerce on any highway of this state unless there is in force with respect to such carrier a permit issued by the commission, authorizing such person to engage in such business. The application for such permit shall be decided in accordance with the procedure provided for in subsection (b) of this section, and such permit shall be issued or denied accordingly.
(b) Application for such permits shall be made to the commission in writing, be verified under oath and shall be in such form and contain such information as the commission may, by regulation, require. Such application for permit shall be accompanied by such proof of service of notice of said application and the filing thereof with the commission as the commission shall by regulation require. Notice of such application by every contract carrier of passengers shall be served upon every contract carrier of passengers, and such notice of application by contract carriers of property shall be served on every such carrier of property then operating in the territory proposed to be served by the applicant and upon every other applicant then having an application pending before the commission for a permit to operate in the territory proposed to be served by the applicant and upon the State Department of Transportation. Subject to Section 37-3-14, a permit shall be issued to any qualified applicant therefor, authorizing in whole or in part the operations covered by the application, if, after public hearing of the application, it appears from the application and the evidence in support thereof or from any hearing held thereon that the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this chapter and the lawful requirements, rules and regulations of the commission thereunder, and that the proposed operation, to the extent authorized by the permit, will be consistent with the public interest, otherwise such application shall be denied. The commission shall specify on the permit the business of the contract carrier covered thereby and the scope thereof and shall attach to it, at the time of issuance and from time to time thereafter, such reasonable rules, terms, conditions and limitations consistent with the character of the holder as a contract carrier as are necessary to carry out, with respect to the operations of such carrier, the requirements established by the commission under this chapter; provided, that subject to such reasonable regulations as the commission may prescribe, the carrier may substitute or add contracts, within the scope of his permit, or add to his or its equipment and facilities, within the scope of the permit, as the development of the business and the demands of the public may require.
(c) Contract carriers of property shall not transport on any one motor vehicle over any highway in this state, outside of the corporate limits of any city, town or municipality, property of more than two consignors at the same time, and, for the purposes of this section, the word “consignors” means the bona fide owner of the property transported at the time of shipment, who has made the contract for shipment with the carrier.
(Acts 1939, No. 669, p. 1064, §11; Code 1958, T. 48, §301(11).)
No person shall at the same time hold under this chapter a certificate as a common carrier and a permit as a contract carrier authorizing operation for the transportation of property by motor vehicle over the same route or within the same territory, unless for good cause shown the commission shall find that such certificate and permit may be held consistently with the public interest.
(Acts 1939, No. 669, p. 1064, §12; Code 1958, T. 48, §301(12).)
(a) No person shall for compensation sell or offer for sale transportation subject to this chapter or shall make any contract, agreement or arrangement to provide, procure, furnish or arrange for such transportation or shall hold himself or itself out by advertisement, solicitation or otherwise as one who sells, provides, procures, contracts or arranges for such transportation, unless such person holds a broker’s license issued by the commission to engage in such transactions; provided, that no such person shall engage in transportation subject to this chapter unless he holds a certificate or permit as provided in this chapter. In the execution of any contract agreement or arrangement to sell, provide, procure, furnish or arrange for such transportation, it shall be unlawful for such person to employ any carrier by motor vehicle who or which is not the lawful holder of an effective certificate or permit issued as provided in this chapter; and provided further, that the provisions of this paragraph shall not apply to any carrier holding a certificate or a permit under the provisions of this chapter or to any bona fide employee or agent of such motor carrier, so far as concerns transportation to be furnished wholly by such carrier or jointly with other motor carriers holding like certificates or permits or with a common carrier by railroad, express or water.
(b) A brokerage license shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and the proposed service, to the extent authorized by the license, is or will be consistent with the public interest and the provisions of this chapter; otherwise, such application shall be denied.
(c) The commission shall prescribe reasonable rules and regulations for the protection of travellers or shippers and receivers of property by motor vehicle operated by motor carriers subject to this chapter, to be observed by any person holding a brokerage license, and no such license shall be issued or remain in force unless such person shall have furnished a bond or other security approved by the commission, in such form and amount as will insure financial responsibility and the supplying of authorized transportation in accordance with contracts, agreements or arrangements therefor.
(d) The commission and its special agents and examiners shall have the same authority as to accounts, reports and records, including inspection and preservation thereof, of any person holding a brokerage license issued under the provisions of this section, that they have under this chapter with respect to motor carriers subject thereto.
(e) The word “transportation,” as used in this section, means the transportation of property by carriers other than common carriers of passengers.
(Acts 1939, No. 669, p. 1064, §13; Code 1958, T. 48, §301(13).)
Certificates, permits and licenses shall be effective from the date specified therein and shall remain in effect until terminated as herein provided. Any such certificate, permit or license may, upon application of the holder thereof, in the discretion of the commission be amended or revoked, in whole or in part, or may, upon complaint or on the commission’s own initiative, after notice and hearing, be suspended, changed or revoked, in whole or in part, for willful failure to comply with any provision of this chapter or with any lawful order, rule or regulation of the commission promulgated thereunder, or with any term, condition or limitation of such certificate, permit or license; provided, that no such certificate, permit or license shall be revoked (except upon application of the holder) unless the holder thereof willfully fails to comply within a reasonable time, not less than 30 days, to be fixed by the commission, with a lawful order of the commission, made as provided in this chapter, commanding obedience to the provisions of this chapter or to the rules or regulations of the commission thereunder, or to the term, condition or limitation of such certificate, permit or license, found by the commission to have been violated by such holder.
(Acts 1939, No. 669, p. 1064, §14; Code 1958, T. 48, §301(14).)
Subject to the provisions of Section 37-3-14, any certificate or permit may be transferred or leased pursuant to such rules and regulations as the commission may prescribe; provided, that no such certificate or permit shall be transferred, or lease of any such certificate or permit approved, except after a finding by the commission that the proposed transferee or lessee is in all respects qualified under the provisions of this chapter to conduct the service or operation contemplated by such certificate or permit and that the proposed transfer or the approval of said lease is consistent with the public interest.
(Acts 1939, No. 669, p. 1064, §15; Code 1958, T. 48, §301(15).)
(a) No certificate or permit shall be issued to a motor carrier or remain in force, and no motor carrier subject to the provisions of this chapter shall engage in any operation on any highway of this state, unless such carrier complies with such reasonable rules and regulations as the commission shall prescribe governing the filing and approval of surety bonds, policies of insurance, qualifications as a self-insurer or other securities or agreements, in such reasonable amounts as the commission may require, conditioned to pay, within the amount of such surety bonds, policies of insurance, qualifications as a self-insurer or other securities or agreements, any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance or use of motor vehicles under certificate or permit or for loss or damage to property of others. The commission shall, under such rules and regulations as it shall prescribe, require any such common carrier of property other than common carriers of passengers to file a surety bond, policies of insurance, qualifications as a self-insurer or other securities or agreements in the sum to be determined by the commission, to be conditioned upon such carrier making compensation to shippers or consignees for all property belonging to shippers or consignees and coming into the possession of such carrier in connection with its transportation service, such bond to be not less than $1,000.00. Any carrier which may be required by law to compensate a shipper or consignee for any loss, damage or default for which a connecting motor carrier is legally responsible shall be subrogated to the rights of such shipper or consignee under such bond, policies of insurance or other securities or agreements to the extent of the sum so paid.
(b) In addition to all other bonds, all common carriers by motor vehicle, other than carriers of passengers, engaged in or who transport any freight or express collect on delivery under this chapter must file with the commission for the protection of the consignor and/or consignee a bond known as a collect on delivery bond in the sum of $1,000.00, such bond to be made by a surety company qualified to do business in this state.
(Acts 1939, No. 669, p. 1064, §16; Code 1958, T. 48, §301(16); Acts 1945, No. 374, p. 595.)
(a) It shall be the duty of every common carrier of passengers by motor vehicle to establish and provide safe and adequate service, equipment and facilities for the intrastate transportation of passengers in the State of Alabama; to establish, observe and enforce just and reasonable individual and joint rates, fares and charges and just and reasonable regulations and practices resulting thereto, and to the issuance, form and substance of tickets and the carrying of personal sample and excess baggage, the facilities for the transportation, and all other matters relating to or connected with the intrastate transportation of passengers in the State of Alabama; and, in case of such joint rates, fares and charges, to establish just, reasonable and equitable divisions thereof as between the carriers participating therein, which shall not unduly prefer or prejudice any such participating carriers.
(b) It shall be the duty of every common carrier of property by motor vehicle to provide safe and adequate service, equipment and facilities for the intrastate transportation of property in the State of Alabama; to establish, observe and enforce just and reasonable rates, charges and classifications and just and reasonable regulations and practices relating thereto and to the manner and method of presenting, marking, packing and delivering property for transportation, the facilities for transportation and all other matters relating to or connected with the intrastate transportation of property in the State of Alabama.
(c) Common carriers of property by motor vehicle may establish reasonable through routes and joint rates, charges and classifications with other such carriers or with common carriers by railroad or express or water; and common carriers of passengers by motor vehicle may establish joint rates and fares or charges with common carriers by railroad or water. In case of such joint rates, fares or charges, it shall be the duty of the carrier parties thereto to establish just and reasonable regulations and practices in connection therewith and just, reasonable and equitable divisions thereof as between the carriers participating therein, which shall not unduly prefer or prejudice any of said participating carriers.
(d) Any person, state board, organization or body politic may make complaint in writing to the commission that any such rate, fare, charge, classification, rules, regulation or practice in effect or proposed to be put in effect is or will be in violation of this section or of Section 37-3-20. Whenever, after hearing, upon complaint or in an investigation on its own initiative, the commission shall be of the opinion that any individual or joint rate, fare or charge demanded, charged or collected by any common carrier or carriers by motor vehicle or by any common carrier or carriers by motor vehicle in conjunction with any common carrier or carriers by railroad or express, or water for transportation intrastate commerce, or any classification, rule, regulation or practice whatsoever of such carrier or carriers affecting such rate, fare or charge or the value of the service thereunder is or will be unjust or unreasonable or unjustly discriminatory or unduly preferential or unduly prejudicial, it shall determine and prescribe the lawful rate, fare or charge or the maximum or minimum, or maxima or minima rate, fare or charge thereafter to be observed, or the lawful classification, rule, regulation or practice thereafter to be made effective, and the commission shall, whenever deemed by it to be necessary or desirable in the public interest, after hearing upon complaint or upon its own initiative without a complaint, establish joint rates, fares, charges, regulations or practices applicable to the transportation of passengers by common carrier by motor vehicle, or the maximum or minimum, or maxima or minima, to be charged and the terms and conditions under which such shall be operated.
(e) Whenever after hearing, upon complaint or upon its own initiative, the commission is of the opinion that the divisions of joint rates, fares or charges applicable to the transportation in intrastate commerce in this state of passengers or property by common carriers by motor vehicle or by such carriers in conjunction with common carriers by railroad or express or water are or will be unjust, unreasonable, inequitable or unduly preferential or prejudicial as between the carriers parties thereto (whether agreed upon by such carriers, or any of them, or otherwise established), the commission shall by order prescribe the just, reasonable and equitable division thereof to be received by the several carriers and, in cases where the joint rate, fare or charge was established pursuant to a finding or order by the commission and the divisions thereof are found by it to have been unjust, unreasonable or inequitable, or unduly preferential or prejudicial, the commission may also by order determine what would have been the just, reasonable and equitable divisions thereof to be received by the several carriers and require adjustment to be made in accordance therewith. The order of the commission may require the adjustment of divisions between carriers, in accordance with the order, from the date of filing the complaint or entry or order of investigation or such other date subsequent, as the commission finds justified, and, in case of joint rates prescribed by the commission, the order as to divisions may be made effective as a part of the original order.
(f) Whenever there shall be filed with the commission any schedule stating a new, individual or joint rate, fare, charge or classification for the transportation of passengers or property by a common carrier or carriers by motor vehicle or by any such carrier and carriers by railroad or express or water in intrastate commerce, or any rule, regulation or practice affecting such rate, fare or charge, or the value of the service thereunder, the commission is hereby authorized and empowered upon complaint of any interested party or upon its own initiative at once and, if it so orders, without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare or charge or such rule, regulation or practice; and, pending such hearing and the decision thereon, the commission, by filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, fare or charge, or such rule, regulation or practice, for a period of 90 days, and, if the proceedings have not been concluded and a final order made within such period, the commission may, from time to time, extend the period of suspension by order, but not for a longer period in the aggregate than 180 days beyond the time when it would otherwise go into effect; and, after hearing, whether completed before or after the rate, fare, charge, classification, rule, regulation or practice goes into effect, the commission may make such order with reference thereto as would be proper in a proceeding instituted after it has become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate, fare or charge, or classification, rule, regulation or practice shall go into effect at the end of such period; at any hearing involving a rate, fare, charge or classification, increased or sought to be increased, or involving a rule, regulation or practice after July 5, 1940, the burden of proof shall be upon the carrier to show that the increased rate, fare, charge or classification, or the rule, regulation or practice is just and reasonable, or the proposed increased rate, fare, charge or classification or rule or regulation or practice is just and reasonable.
(g) In the exercise of its power to prescribe just and reasonable rates for the transportation of passengers or property by common carriers by motor vehicle, the commission shall give due consideration, among other things, to the effect of rates upon the movement of traffic by such carriers to the need, in public interest, of adequate and efficient transportation service by such carriers at the lowest cost consistent with the furnishing of such service, and the need of revenues sufficient to enable such carriers, under honest, economical and efficient management to provide such service.
(h) Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith.
(Acts 1939, No. 669, p. 1064, §17; Code 1958, T. 48, §301(17).)
(a) Every common carrier by motor vehicle shall file with the commission and keep open to the public inspection tariffs showing all the rates, fares and charges for transportation and all services in connection therewith of passengers or property in intrastate commerce in the State of Alabama between points on its own route and between points on its own route and points on the route of any other such carrier, or on the route of any common carrier by railroad or express, or water, when a through route and route and joint rate shall have been established. Such rates, fares and charges shall be stated in terms of lawful money of the United States. The tariffs required by this section shall be published, filed and posted in such form and manner and shall contain such information as the commission by reasonable regulation shall prescribe; and the commission is authorized to reject any tariff filed with it which is not in consonance with this section and with such regulations. Any tariff so rejected by the commission shall be void and its use shall be unlawful.
(b) Except as otherwise provided by law, no common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares and charges specified in the tariffs in effect at the time; and no such carrier shall refund or remit in any manner or by any device, directly or indirectly, or through any agent or broker or otherwise, any portion of the rates, fares or charges so specified, or extend to any person any privileges or facilities for transportation in intrastate commerce in this state, except such as are specified in its tariffs.
(c) No common carrier subject to the provisions of this chapter shall, directly or indirectly, issue or give an intrastate free ticket, free pass or free transportation for passengers except to its officers, employees and agents and their families, its surgeons, physicians and attorneys-at-law; to ministers of religion, inmates of charitable and eleemosynary institutions; to persons totally blind, to indigent, destitute and homeless persons and to such persons when transported by charitable societies or hospitals, and caretakers of livestock, poultry, milk and fruit; to witnesses attending any legal investigation in which the common carrier is interested, persons injured in wrecks and physicians and nurses attending such persons; to members of the commission and such of their employees as may be designated by them to assist the commission in their duties under this chapter, and the members of the commission and each of their employees as are designated by them to assist the commission in the performance of their duties under this chapter, shall be entitled to free transportation within the state upon any motor vehicle of any common carrier subject to the provisions of this chapter; provided, that this provision shall not be construed to prohibit the interchange of passes for the officers, agents and employees of common carriers of passengers by motor vehicle and their families; nor prohibit any common carrier from carrying passengers or property free or at reduced rates with the object of providing relief in case of general epidemic, pestilence or other calamitous visitation; and provided further, that nothing in this chapter shall prevent the carriage, storage or handling of property free or at reduced rates for the United States, state, county or municipal governments or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the issuance of mileage, excursion or commutation passenger tickets; provided however, such mileage, excursion or commutation tickets shall be obtainable by all persons applying therefor under like circumstances and conditions; and provided further, that if special or reduced rates are granted under the provisions of this chapter, said companies shall file with the commission a statement setting forth the terms and conditions upon which they grant such special or reduced rates. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the State of Alabama a penalty of not less than $100.00 nor more than $2,000.00, and any person other than the person excepted in this provision who uses any such intrastate free ticket, free pass or free transportation shall be subject to a like penalty.
(d) No change shall be made in any rate, fare, charge or classification, or any rule, regulation or practice affecting such rate, fare, charge or classification, or the value of the service thereunder, except after 30 days’ notice of the proposed change filed and posted in accordance with subsection (a) of this section. Such notice shall plainly state the change proposed to be made and the time when such change will take effect. The commission may in its discretion and for good cause shown allow such change upon notice less than specified in this section or modify the requirements of this section with respect to posting and filing of tariffs either in particular instances or by general order applicable to special or peculiar circumstances or conditions.
(e) No common carrier by motor vehicle, unless otherwise provided by this chapter, shall engage in the transportation of passengers or property unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter.
(Acts 1939, No. 669, p. 1064, §18; Code 1958, T. 48, §301(18).)
(a) It shall be the duty of every contract carrier by motor vehicle to file with the commission, publish and keep open for public inspection, in the form and manner prescribed by the commission, schedules or, in the discretion of the commission, copies of contracts containing the minimum charges of such carrier for the transportation of passengers or property in intrastate commerce in this state and any rule, regulation or practice affecting such charges and the value of the service thereunder. No such contract carrier, unless otherwise provided by this chapter, shall engage in the transportation of passengers or property in intrastate commerce in this state unless the minimum charges for such transportation by said carrier have been published, filed and posted in accordance with the provisions of this chapter. No reduction shall be made in any such charge either directly or by means of any change in any rule, regulation or practice affecting such charge or the value of service thereunder, except after 20 days’ notice of the proposed change filed in the aforesaid form and manner; but the commission may, in its discretion and for good cause shown, allow such change upon less notice or modify the requirements of this subsection with respect to posting and filing of such schedules or copies of contracts either in particular instances or by general order applicable to special or peculiar circumstances or conditions. Such notice shall plainly state the change proposed to be made and time when such change will take effect. No such carrier shall demand, charge or collect a less compensation for such transportation than the charges filed in accordance with this subsection, as affected by any rule, regulation or practice so filed or as may be prescribed by the commission from time to time, and it shall be unlawful for any such carrier, by the furnishing of special services, facilities or privileges, or by any other device whatsoever, to charge, accept or receive less than the minimum charges so filed or prescribed; provided, that any such carrier or carriers, or any class or group thereof, may apply to the commission for relief from the provisions of this subsection, and the commission may after hearing grant such relief to such an extent and for such time and in such manner as in its judgment is consistent with public interest and the provisions of this chapter.
(b) Whenever, after hearing upon complaint or its own initiative, the commission finds that any charge of any contract carrier by motor vehicle or any rule, regulation or practice of any such carrier or carriers affecting such charge, or the value of the service thereunder, for the transportation of passengers or property in intrastate commerce in this state is not consistent with the public interest, the commission may prescribe such minimum charge or such rule, regulation or practice as in its judgment may be necessary or desirable in the public interest. Such minimum charge or such rule, regulation or practice so prescribed by the commission shall give no advantage or preference to any such carrier in competition with any common carrier by motor vehicle subject to this chapter, which the commission may find to be undue or inconsistent with public interest, and the commission shall give due consideration to the cost of the service rendered by such carriers and to the effect of such minimum charge or such rules, regulations or practices, upon the movement of traffic by such carriers. All complaints shall state fully the facts complained of and the reasons for such complaint and shall be made under oath.
(c) Whenever there shall be filed with the commission by any such contract carrier any schedule or contract stating a reduced charge directly or by means of any rule, regulation or practice for the transportation of passengers or property in intrastate commerce, the commission is hereby authorized and empowered upon complaint of interested parties or upon its own initiative at once and, if it so orders, without answers or other formal pleading by the interested party, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such charge or such rule, regulation or practice, and, pending such hearing and the decision thereon, the commission, by filing with such schedule or contract and delivering to the carrier affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule or contract and defer the use of such charge or such rule, regulation or practice for a period of 90 days, and, if the proceeding has not been concluded and a final order made within such period, the commission may from time to time extend the period of such suspension, but not for a longer period in the aggregate than 180 days beyond the time when it would otherwise go into effect; and after hearing, whether completed before or after the charge or rule, regulation or practice goes into effect, the commission may make such order with reference thereto as would be proper in a proceeding instituted after it had become effective. If the proceeding had not been concluded and an order made within the period of suspension, the proposed change in any charge, rule, regulation or practice shall go into effect at the end of such period.
(Acts 1939, No. 669, p. 1064, §19; Code 1958, T. 48, §301(19).)
(a) The commission is hereby authorized to require annual, periodical or special reports from all motor carriers, to prescribe the manner and form in which such reports shall be made and to require from such carrier specific answers to all questions upon which the commission may deem information to be necessary. Such reports shall be under oath whenever the commission so requires. The commission may also require any motor vehicle carrier to file with it a true copy of each or any contract, agreement or arrangement between such carrier and any other carrier or person in relation to any traffic affected by the provisions of this chapter, to which he or it may be a party.
(b) The commission may, in its discretion, prescribe the forms of any and all accounts, records and memoranda to be kept by motor carriers and the length of time such accounts, records and memoranda shall be preserved, including the accounts, records and memoranda of the movement of traffic, as well as of the receipts and expenditures of money. The commission or its duly authorized agents shall at all times have access to all lands, buildings or equipment of motor carriers used in connection with intrastate operations and also all accounts, records and memoranda, including all documents, papers and correspondence now or hereafter existing and kept, or required to be kept, by motor carriers. The agents of the commission shall have authority under its order to inspect and examine any and all such lands, buildings, equipment, accounts, records and memoranda, including all documents, papers and correspondence now or hereafter existing and kept or required to be kept by such carriers; this provision shall apply to receivers of carriers and to operating trustees and, to the extent deemed necessary by the commission, to persons having control, directly or indirectly, over or affiliated with any motor carriers.
(c) As used in this section, the term “motor carrier” includes brokers.
(Acts 1939, No. 669, p. 1064, §20; Code 1958, T. 48, §301(20).)
Every common carrier by motor vehicle subject to the provisions of this chapter receiving property for transportation originating and terminating in this state shall issue to the shipper a receipt or bill of lading therefor and shall be liable as a common carrier under the laws of this state to the lawful holder thereof for any loss, damage or injury to such property caused by it; and no contract, stipulation, receipt, rule or regulation contained in said receipt or bill of lading, or otherwise, shall exempt such common carrier from the liability hereby imposed; but nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. Every bill of lading so issued to the shipper shall state the class or classes of freight or express shipped and the rate to the point of destination and the aggregate charge made for the transportation. The commission shall prescribe the forms and contents of bills of lading receipts, expense bills and other records to be used by such common carriers subject to the provisions of this chapter and to make all proper rules and regulations with respect thereto which may be necessary or proper to secure the safe receipt, handling, transportation and delivery of property by such common carriers upon just and reasonable terms, and such records shall be subject to inspection by the commission.
(Acts 1939, No. 669, p. 1064, §21; Code 1958, T. 48, §301(21).)
(a) In this section, the following words shall have the following meanings:
(1) MOTOR CARRIER. The same meaning ascribed in subdivision (10) of Section 37-3-2, or any successor provision and includes an agent, employee, servant, or independent contractor of the motor carrier if the agent, employee, servant, or independent contractor provides services in connection with the particular motor vehicle transportation contract to which subsection (b) applies.
(2) MOTOR CARRIER TRANSPORTATION CONTRACT. A bill of lading, contract, agreement, or other understanding covering the following:
a. The transportation of property for compensation or hire by the motor carrier.
b. Entrance on property by the motor carrier for the purpose of loading, unloading, or transporting property for compensation or hire.
c. A service incidental to a. or b., including, but not limited to, storage of property.
(3) MOTOR VEHICLE. A motor vehicle, as defined in Section 32-1-1.1, having a gross weight or gross combination weight of 10,000 pounds or more.
(4) SHIPPER. An entity that enters into a motor carrier transportation contract to use the services of a motor carrier and includes an agent, employee, servant, or independent contractor of the shipper if the agent, employee, servant, or independent contractor provides services in connection with the particular motor vehicle transportation contract to which subsection (b) applies.
(b) Notwithstanding any provision of law to the contrary, a motor carrier and a shipper, in a motor carrier transportation contract, may not agree to any provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract that does any of the following:
(1) Purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the shipper from or against any liability for loss or damage resulting from the criminal acts of the shipper.
(2) Purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the shipper from or against any liability for loss or damage resulting from the intentionally wrongful acts or omissions of the shipper.
(3) Purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the shipper from or against any liability for loss or damage resulting from the wantonness of the shipper.
(4) Purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the shipper from or against any liability for loss or damage resulting solely from the negligence of the shipper.
(5) Purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the shipper from or against any liability for claims of loss or damage resulting where: a. the property in the trailer is loaded and sealed by the shipper and the motor carrier is not able to inspect the trailer, and b. the manner in which the trailer is loaded and sealed is the proximate cause of the loss or damage.
(6) Purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the motor carrier from or against any liabilities for loss or damage resulting from the negligence or intentional acts or omissions of the motor carrier.
(7) Purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the shipper where: a. the property being transported or the packaging of the property being transported has a latent defect that the motor carrier is not able to discover, and b. the latent defect is the proximate cause of the loss or damage.
(c) If any part of a provision of a motor carrier transportation contract violates this section then that part only is void and unenforceable to the extent of the violation. Nothing in this section affects any provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract whereby either: (1) a motor carrier indemnifies, defends, or holds harmless a shipper against liability for loss or damage to the extent the loss or damage did not result from the negligence, wantonness, intentionally wrongful acts or omissions of the shipper, or (2) a motor carrier is required to maintain policies of liability insurance and to include a shipper as an additional insured on those policies, provided that the policies are not workers’ compensation policies.
(d) This section does not apply to the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Association of North America or any other agreement providing for the interchange, use, or possession of intermodal chassis, containers, or other intermodal equipment.
(e) This section shall apply only to motor carrier transportation contracts entered into after May 3, 2012.
(Act 2012-277, p. 551, §§1, 2.)
(a) Except as otherwise provided in this chapter, all orders of the commission shall take effect within such reasonable time as the commission may prescribe and shall continue in force until its further order or for a specified period of time, as shall be prescribed in the order, unless the same shall be suspended or modified or set aside by the commission or be suspended or set aside by a court of competent jurisdiction.
(b) As used in this chapter, the term “motor carriers” includes brokers.
(Acts 1939, No. 669, p. 1064, §22; Code 1958, T. 48, §301(22).)
(a) Any person knowingly and willfully violating any provision of this chapter or any rule, regulation, requirement or order thereunder or any term or condition of any certificate, permit or license for which a penalty is not otherwise herein provided shall, upon conviction thereof, be fined not more than $100.00 for the first offense and not more than $500.00 for any subsequent offense. Each day of such violation shall constitute a separate offense.
(b) If any motor carrier or broker operates in violation of any provision of this chapter (except as to the reasonableness of rates, fares or charges and discriminatory character thereof), or any rule, regulation or requirement, or order thereunder, or of any term or condition of any certificate or permit, the commission or its duly authorized agency may apply to the circuit court of the State of Alabama for any county where such motor carrier or broker operates for the enforcement of such provision of this chapter or of such rule, regulation, requirement, order, term or condition; and such court shall have jurisdiction to enforce obedience thereto by a writ of injunction or by other process, mandatory or otherwise, restraining such carrier or broker, his or its officers, agents, employees and representatives from further violation of such provision of this chapter or of such rule, regulation, requirement, order, term or condition and enjoining upon it or them obedience thereto.
(c) Any person, whether carrier, shipper, consignee or broker, or any officer, employee, agent or representative thereof, who shall knowingly offer, grant or give, or solicit, accept or receive any rebate, concession or discrimination in violation of any provision of this chapter or who, by means of any false statement or representation or by use of any false or fictitious bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, deposition, lease or bill of sale or by any other means or device, shall knowingly and willfully assist, suffer or permit any person or persons, natural or artificial, to obtain transportation of passengers or property subject to this chapter for less than the applicable rate, fare or charge, or who shall knowingly and willfully by any such means or otherwise fraudulently seek to evade or defeat regulations as in this chapter provided for motor carriers or brokers shall be deemed guilty of a misdemeanor and, upon conviction thereof, be fined not more than $100.00 for the first offense and not more than $1,000.00 for any subsequent offense.
(d) Any agent or employee of the commission who divulges any fact or information which may come to his knowledge during the course of the examination of the accounts, records and memoranda of motor carriers or brokers as provided in this chapter, except as he may be directed by the commission or by a court of competent jurisdiction or judge thereof, shall be subject, upon conviction in any court of the State of Alabama of competent jurisdiction, to a fine of not more than $1,000.00.
(e) It shall be unlawful for any motor carrier or broker engaged in intrastate commerce or any officer, receiver, trustee, lessee, agent or employee of such carrier, broker or person or any other person authorized by such carrier, broker or person to receive information, knowingly to disclose to, or permit to be acquired by any person other than the shipper or consignee without the consent of such shipper or consignee any information concerning the nature, kind, quantity, destination, consignee or routing of any property tendered or delivered to such motor carrier or broker for such transportation, which information may be used to the detriment or prejudice of such shipper or consignee or which may improperly disclose his business transaction to a competitor, and it shall be unlawful for any person to solicit or knowingly receive any such information which may be so used.
(f) Nothing in this chapter shall be construed to prevent the giving of such information in response to any legal process issued under the authority of any court or to any officer or agent of the government of the United States or of any state, territory or district thereof in the exercise of his power, or to any officer or other duly authorized person seeking such information for the prosecution of persons charged with or suspected of crimes or to another carrier or broker or its duly authorized agent, for the purpose of adjusting mutual traffic accounts in the ordinary course of business of such carriers or brokers.
(g) Any motor carrier or broker or any officer, agent, employee or representative thereof who shall willfully fail or refuse to make a report to the commission as required by this chapter or to keep accounts, records and memoranda in the form and manner approved or prescribed by the commission or shall knowingly and willfully falsify, destroy, mutilate or alter any such report, account, record or memorandum or shall knowingly and willfully file any false report, account, record or memorandum shall be deemed guilty of a misdemeanor and, upon conviction thereof, be subject for each offense to a fine of not more than $5,000.00.
(Acts 1939, No. 669, p. 1064, §23; Code 1958, T. 48, §301(23).)
No common carrier by motor vehicle shall deliver or relinquish possession at destination of any freight transported by it in intrastate commerce until all tariff rates and charges thereon have been paid, except under such rules and regulations as the commission may from time to time prescribe to govern the settlement of all such rates and charges, including rules and regulations for weekly or monthly settlement, and to prevent unjust discrimination or undue preference or prejudice; provided, that the provisions of this section shall not be construed to prohibit any such carrier from extending credit in connection with rates and charges on freight transported for the United States for any department, bureau, or agency thereof, or for any state or political subdivision thereof. Where any common carrier by motor vehicle is instructed by a shipper or consignor to deliver property transported by such carrier to a consignee other than the shipper or consignor, such consignee shall not be legally liable for transportation charges in respect to the transportation of such property (beyond those billed against him at the time of delivery for which he is otherwise liable) which may be found to be due after the property has been delivered to him if the consignee is an agent only and has no beneficial title in the property and, prior to delivery of the property, has notified the delivering carrier in writing of the fact of such agency and absence of beneficial title and, in the case of shipment reconsigned or diverted to a point other than that specified in the original bill of lading, has also notified the delivering carrier in writing of the name and address of the beneficial owner of the property. In such cases the shipper or consignor or, in cases of a shipment so reconsigned or diverted, the beneficial owner shall be liable for such additional charges, notwithstanding the foregoing provisions of this section. On shipments reconsigned or diverted by an agent who has furnished the carrier with a notice of agency and the proper name and address of the beneficial owner and where such shipments are refused or abandoned at ultimate destination, said beneficial owner shall be liable for all legally applicable charges in connection therewith.
(Acts 1939, No. 669, p. 1064, §24; Code 1958, T. 48, §301(24).)
The commission is authorized to employ such assistants and employees as are necessary to aid the commission in the proper administration and enforcement of this chapter, subject to the provisions of the merit system.
(Acts 1939, No. 669, p. 1064, §25; Code 1958, T. 48, §301(25).)
The commission is empowered to designate by its order such of its employees to act as examiners under this chapter as may be found to be necessary or desirable. Each of the commissioners and any employee designated as examiner by the commission, for the purposes mentioned in this chapter and in all hearings before the commission, may administer oaths, certify to official acts, issue subpoenas, compel the attendance of witnesses and the production of books and papers.
(Acts 1939, No. 669, p. 1064, §26; Code 1958, T. 48, §301(26).)
From any final action or order of the commission in the exercise of the jurisdiction, power or authority, conferred upon the commission by this chapter, an appeal shall lie to the circuit court of the county of the carrier’s residence or in which he has his principal place of business or to the Circuit Court of Montgomery County, Alabama, and thence to the Supreme Court of Alabama. Appeals to a circuit court must be taken within 30 days after the date of such final action or order, and such appeals and the supersedeas and stay of action or order appealed from in other respects shall be governed by the provisions of the law respecting appeals in other cases from the final orders and actions of the commission. Appeals to the supreme court from judgments of the circuit court shall be governed by the Alabama Rules of Appellate Procedure.
(Acts 1939, No. 669, p. 1064, §27; Code 1958, T. 48, §301(27).)
For the extra, new and additional duties imposed upon the commission and the members thereof by this chapter and for the performance of duties which are and will be hereafter required of said commission and the members thereof under this chapter, each member of the commission, in addition to the compensation otherwise provided by law to be paid to him for his service as a member of the commission, shall receive $1,500.00 annually, to be paid monthly as the salaries of other officers are paid, out of the moneys of the State Treasury provided by law for payment of salaries and other expenses of the commission.
(Acts 1939, No. 669, p. 1064, §28; Code 1958, T. 48, §301(28).)
There is appropriated out of the moneys of the treasury, to the credit of the motor carrier fund, the sum of $50,000.00 annually, to meet the expense incurred by the Alabama Public Service Commission under the provisions of this chapter. The expenses incurred by the Alabama Public Service Commission under the provisions of this chapter, when certified by the commission or its president and approved by the Governor, shall be paid on warrant drawn as prescribed by law with respect to warrants.
(Acts 1939, No. 669, p. 1064, §29; Code 1958, T. 48, §301(29).)
In addition to all of the taxes and fees prescribed by law, motor carriers shall pay to the commission under the provisions of this chapter the following:
(1) Every application for a certificate of public convenience and necessity or permit under this chapter shall be accompanied by an application fee in the amount of $100.00.
(2) Every application for an amendment of a certificate of public convenience and necessity or permit shall be accompanied by an application fee of $100.00.
(3) Every application for transfer of a certificate of public convenience and necessity or permit shall be accompanied by a fee of $25.00.
(4) Every application for approval of a lease of a certificate of public convenience and necessity for a period of more than six months shall be accompanied by a fee of $10.00.
(5)a. For every motor vehicle to be used by a motor carrier on the highways of the State of Alabama there shall be paid a registration fee in the amount of $6.00, and the commission is given authority to adopt reasonable rules and regulations for the issuance of an appropriate or distinguishing number for each such motor vehicle upon which the registration fee prescribed by this chapter shall have been paid and such registration or distinguishing number shall remain with the motor vehicle for which it was issued and shall be nontransferable.
b. The registration fee for tour buses, as defined in Section 40-19-1(10), shall be paid pursuant to Section 40-17-150(e).
c. It shall be unlawful for a motor vehicle to be operated on the highways of this state without having conspicuously displayed on its sides a registration or distinguishing number prescribed and issued for the vehicle by the commission under this chapter.
d. Of such registration fee, $1.00 shall be paid into the State Treasury in the motor carrier fund as provided in this section. The remaining portion of this fee shall be paid over to the treasurer and shall be held in the commission’s operating fund, and shall be paid out by the treasurer in payment of expenses incurred by the commission in the regulation of motor carriers upon warrants drawn as provided by law upon the treasurer and approved as required by law.
The commission may negotiate and enter into written reciprocity agreements with other states regarding the payment of these fees.
All tax penalties, fees, and allowances collected under this chapter, except those registration fees in excess of $1.00 collected under subsection (5) above shall be paid into the State Treasury within 30 days after their receipt and shall be kept separate and apart from all other funds by the state treasury in a fund to be known as the “motor carrier fund”.
(Acts 1939, No. 669, p. 1064, §30; Code 1958, T. 48, §301(30); Acts 1969, No. 477, p. 933; Acts 1985, No. 85-653, p. 1022; Acts 1991, No. 91-730, p. 1422, §1; Acts 1992, 2nd Ex. Sess., No. 92-710, §1.)
(a) Foreign and domestic motor carriers, motor private carriers, leasing companies, brokers, and freight forwarders shall not operate in interstate commerce in this state without first registering with a base state and paying all fees as required under the federal Unified Carrier Registration Act of 2005.
(b) The Public Service Commission is the state agency in this state responsible for the administration of the federal Unified Carrier Registration Act of 2005, including participating in the development, implementation, and administration of the Unified Carrier Registration Agreement. The commission may follow rules governing the Unified Carrier Registration Agreement issued under the Unified Carrier Registration Plan by its board of directors.
(c) The commission may follow rules and collect fee assessments set by the federal Secretary of Transportation from foreign and domestic motor carriers, motor private carriers, leasing companies, brokers, and freight forwarders, and do all things necessary to enable this state to participate in the federal Unified Carrier Registration Agreement pursuant to the federal Unified Carrier Registration Act of 2005. The commission may register applicants and collect all fees without notice or a public hearing.
(d) Any fees collected by the commission pursuant to this section, except application fees, shall be distributed as follows: One-sixth shall be paid in the Motor Carrier Fund in the State Treasury Fund; and the remaining five-sixths of the fees shall be paid in the Public Service Commission’s operating fund, and shall be expended for the payment of expenses incurred by the commission in the regulation of motor carriers upon appropriation as provided by law.
(e) This section shall not be construed as transferring authority for the enforcement of the federal Motor Carrier Safety Regulations or any part of the Motor Carrier Safety Assistance Program from the Department of Public Safety.
(Act 2006-517, p. 1191, §1.)
(a) Any incorporated city or town in this state shall have the right by proper ordinance to tax and collect reasonable privilege license fees or taxes from any motor bus terminal or any person operating any terminal or station facilities for transportation of passengers, property or express transported by motor carrier and any motor carrier as defined by this chapter where such motor carrier does business in said city or town by receiving passengers or freight for transportation for hire between said city or town and another point in Alabama; provided, that said privilege license or tax shall not exceed the sum of $25.00 in incorporated cities or towns of less than 5,000 inhabitants, that said privilege license or tax shall not exceed the sum of $100.00 in incorporated cities or towns of over 5,000 and less than 25,000 inhabitants, that said privilege license or tax shall not exceed the sum of $200.00 in incorporated cities or towns of more than 25,000 and less than 100,000 inhabitants and that said privilege license or tax shall not exceed the sum of $300.00 in incorporated cities or towns of over 100,000 inhabitants, and that the population shall be computed on the federal census of 1930 or any subsequent decennial federal census; and provided further, that said privilege license or tax shall, in cases of motor buses, include the privilege of receiving and discharging both passengers and express.
(b) This section shall not be construed as allowing a municipality, county, metropolitan government or combination thereof to regulate any church owned buses used for carrying passengers to and from religious services, regardless of size and capacity, or to regulate any motor vehicle engaged primarily in the hauling of 10 or fewer passengers to and from their regular places of employment, taxicabs and airport limousines exempted, or to regulate the organizers, sponsors or promoters of motor vehicles engaged primarily in the hauling of passengers to and from their regular places of employment, but regulation by the appropriate government shall be permitted, however, if the motor vehicles excluded from regulation and the organizers, sponsors and promoters of such vehicles, are specifically defined and regulated as a class separate and distinct from other existing common carriers and contract carriers.
(Acts 1939, No. 669, p. 1064, §31; Code 1958, T. 48, §301(31); Acts 1978, 2nd Ex. Sess., No. 13, p. 1689, §1.)
The commission is given the power and authority to make such general rules and regulations not incorporated herein or inconsistent herewith by general order or otherwise as may be necessary to carry out the provisions of this chapter and may, on its own initiative, inquire into and enforce all provisions of this chapter. A substantial compliance by the commission with the requirements of this chapter shall be sufficient to give effect to all rules, orders, acts and regulations of the commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto.
(Acts 1939, No. 669, p. 1064, §32; Code 1958, T. 48, §301(32).)
(a) Notwithstanding any law to the contrary, the deployment, implementation or use of a motor carrier safety improvement by, or as required by, a motor carrier or its related entity, including by contract, shall not be considered when determining an individual’s status as an employee or independent contractor, or as a jointly employed employee under any state law.
(b) For purposes of this section, “motor carrier safety improvement” shall mean any device, equipment, software, technology, procedure, training, policy, program, or operational practice intended and primarily used to improve or facilitate any of the following:
(1) Compliance with traffic safety or motor carrier safety laws.
(2) Safety of a motor vehicle.
(3) Safety of the operator of a motor vehicle.
(4) Safety of third party users of public roadways.
(Act 2023-191, §1.)
Unless otherwise specified, when used in this article, these terms shall have the following meanings:
(1) COMMISSION. The Alabama Public Service Commission.
(2) COMMISSIONER. A member of the commission.
(3) MUNICIPALITY. Any municipal corporation organized under the laws of this state.
(4) PERSON. Such term shall mean and include individuals, associations of individuals, firms, partnerships, companies, corporations, municipalities, governmental agencies, their lessees, trustees, or receivers appointed by any court whatsoever, in the singular number as well as in the plural.
(5) NONUTILITY. Any federal agency, instrumentality, or corporation, owned by the United States, and any corporation or joint stock company in which the United States or any of its departments, establishments, or agencies, owns more than 50 percent of the voting shares of stock of such corporation or joint stock company.
(6) SECURITIES. Such term shall mean and include stock, stock certificates, bonds, notes, debentures, or other evidences of indebtedness, authorized, issued, or executed by any utility.
(7) UTILITY. Such term shall mean and include every person, not engaged solely in interstate business, that now or may hereafter own, operate, lease, or control:
a. Any plant, property, or facility for the generation, transmission or distribution, sale or furnishing to or for the public of electricity for light, heat, or power, or other uses, including any conduits, ducts, or other devices, materials, apparatus, or property for containing, holding, or carrying conductors used or to be used for the transmission of electricity for light, heat, or power, or other uses.
b. Any plant, property, or facility for the manufacture, storage, distribution, sale, or furnishing to or for the public of natural or manufactured gas for light, heat, or power, or other uses.
c. Any plant, property, or facility for the supply, storage, distribution, or furnishing to or for the public of water for manufacturing, municipal, domestic, or other uses.
d. Any plant, property, or facility for the production, transmission, conveyance, delivery, or furnishing to or for the public of steam for heat or power, or other uses.
e. Any public wharf, dock, or terminal.
f. Any boat line propelled by any power and not regulated by the laws of this state heretofore or hereafter enacted as a steamboat or steam packet line.
The term “utility” shall also mean and include two or more utilities rendering joint service.
(8) RATE. Such term shall mean and include, in the plural number as well as in the singular, every individual or joint rate, classification, fare, toll, charge, or other compensation for service rendered, or to be rendered, by any utility, and every rule, regulation, practice, act, requirement, or privilege in any way relating to such rate, fare, toll, charge, or other compensation, and any schedule or tariff, or part of a schedule or tariff thereof.
(9) SERVICE REGULATION. Such term shall mean and include every rule, regulation, practice, act, or requirement in any way relating to the service or facilities of a utility, including the voltage of electricity, the heat units, pressure and candlepower of gas, the supply, rates, and pressure of water, and in general the quality of any commodity, service, or product supplied.
(10) HOLDING COMPANY. Such term shall mean and include firms, partnerships, companies, corporations, individuals, and associations made up in whole or in part of individuals, firms, partners, companies, trusts at common law, corporations, or any other legal entities, their lessees, trustees, or receivers appointed by any court whatsoever, in the singular number as well as in the plural, who own or control as much as 10 percent in number or amount of the outstanding shares of common stock of any utility engaged in any intrastate business in this state.
(11) COMMON STOCK. Such term shall mean and include any and all stock, shares, or interest in any such utility of such nature that the ownership or control of a majority of the stock, shares, or interest, in number and amount, or in number or amount thereof, vests the control and management of such utility in the holders or owners thereof.
(12) AFFILIATED INTERESTS. Such term shall mean and include the following:
a. Every corporation and person owning or holding directly or indirectly five percent or more of the voting securities of any utility engaged in any intrastate business in this state.
b. Every corporation and person, other than those specified in paragraph a. hereof, in any chain of successive ownership of five percent or more of voting securities, the chain beginning with the holder or holders of the voting securities of such utility.
c. Every corporation or person with which the utility has a management or service contract.
(Acts 1920, No. 37, p. 38; Code 1923, §9742; Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §302; Acts 1951, No. 963, p. 1637; Acts 1996, 1st Ex. Sess., No. 96-30, p. 40, §1.)
The commission shall not have any jurisdiction, authority, power or control in any respect whatsoever over any nonutility, as defined in Section 37-4-1, except as may be provided in Division 2 of Article 2 of this chapter. Any utility, as defined by Section 37-4-1, may sell, lease or otherwise dispose of any or all of its property, including, without limitations, any franchise, rights, contracts, business, good will, capital stock and all other assets to any such nonutility without the approval or consent of the commission, except as may be provided in Division 2 of Article 2 of this chapter.
(Acts 1935, No. 1, p. 1; Code 1940, T. 48, §303.)
Notwithstanding any other provision of law, any private water system utility which serves less than 1,000 customers and purchases its water from a municipal water system in a Class 8 municipality may elect to be exempt from all regulation of the Public Service Commission and subject to regulation by the municipality from which it purchases its water in the manner set forth in this section. An initial election under this section shall be effective upon filing of a written notification to the Public Service Commission and the municipality, and shall remain effective until and unless revoked in the same manner. Any private water system utility making an election under this section may maintain its rates and charges which are in effect at the time of the election without further approval from the municipality. The municipality shall thereafter approve any changes in rates and charges for the private water system utility that are fair, just, and reasonable to the water system and the customers. Approval of the changes may be set forth in a water purchase agreement between the private water system and the municipality, or by other written means, and may allow for prospective rate adjustments based on specified criteria.
(Act 2013-247, p. 606, §1.)
The officers and directors of every corporation operating as a utility shall be deemed to stand in a fiduciary relation to the corporation, and shall discharge the duties of their respective offices or positions in good faith and with that diligence, care and skill which ordinary prudent men would exercise under similar circumstances and conditions.
(Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §305.)
The directors of corporations which are utilities engaged in any intrastate business in this state shall not, in any manner, delegate or temporarily or permanently relinquish or surrender their duty or obligation while occupying said office.
(Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §306.)
No utility shall permit any employee to sell, offer for sale, or solicit the purchase of any security of any other person or corporation during such hours as such employee is engaged to perform any duty of such utility; nor shall any utility by any means or device whatsoever require any employee to purchase or contract to purchase any of its securities or those of any other person or corporation; nor shall any utility require any employee to permit the deduction from his wages or salary of any sum as a payment or to be applied as a payment on any purchase or contract to purchase any security of such utility or of any other person or corporation.
(Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §304.)
(a) No utility engaged in intrastate business in this state shall pay any dividend upon its common stock until: The utility’s earnings and earned surplus are sufficient to declare and pay same after provision is made for reasonable and proper reserves. The dividend then proposed to be paid upon such common stock can reasonably be declared and paid without impairment of the ability of the utility to perform its duty to render reasonable and adequate service at reasonable rates. If any common stock dividends are proposed to be declared and paid other than as above provided, the utility shall give the commission at least 30 days’ notice in writing of its intention to so declare and pay such dividends.
(b) If at any time the commission shall find that the capital of any utility is impaired, the commission may, after due notice, investigation and hearing, issue an order directing such utility to cease paying dividends on its common stock until reasonable proof has been made to the commission that such impairment has been made good, and that the status of the utility has become such that common stock dividends may reasonably and properly be paid after the utility has made full compliance with the law and with the commission’s rules and regulations pertaining thereto.
(Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §§307, 308.)
No utility shall issue any securities, or assume any obligation or liability, as lessor, lessee, guarantor, endorser, surety or otherwise, in respect to the securities of any other person unless and until, and then only to the extent that, upon application by the utility, and after investigation by the commission of the purposes and uses of the proposed issue, and the proceeds thereof, or of the proposed assumption of obligation or liability in respect of the securities of any other person, the commission by order authorizes such issue or assumption. The commission shall make such order only if it finds that such issue or assumption is for some lawful object within the corporate purposes of the utility, is compatible with the public interest, is necessary or appropriate for or consistent with the proper performance by the utility of its service to the public as such utility and will not impair its ability to perform that service and is reasonably necessary and appropriate for such purpose. Any such order of the commission shall specify the purposes for which any such securities or the proceeds thereof may be used by the utility making such application.
(Acts 1920, No. 37, p. 38; Code 1923, §9744; Code 1940, T. 48, §309.)
Every application for authority for such issue or assumption shall be made in such form and contain such matters as the commission may prescribe. Every such application and every certificate of notification provided for in this article shall be made under oath, signed and filed on behalf of the utility by its president, a vice-president, auditor, comptroller or other executive officer having knowledge of the matters therein set forth and duly designated for that purpose by the utility.
(Acts 1920, No. 37, p. 38; Code 1923, §9746; Code 1940, T. 48, §311.)
All applications for the issuance of securities or assumption of liability or obligation shall be placed at the head of the commission’s docket and disposed of promptly, and all such applications shall be disposed of in 60 days after the same are filed with the commission, unless it is necessary for good cause to continue the same for a longer period for consideration. Whenever such application is continued beyond 60 days after the time it is filed, the order making such continuance must state fully the facts necessitating such continuance.
(Acts 1920, No. 37, p. 38; Code 1923, §9747; Code 1940, T. 48, §312.)
The commission, by its order, may grant or deny the application provided for in Section 37-4-7 as made, or may grant it in part or deny it in part, or may grant it with such modification and upon such terms and conditions as the commission may deem necessary or appropriate in the premises and may, from time to time, for good cause shown, make such supplemental orders in the premises as it may deem necessary or appropriate and may, by any such supplemental order, modify the provisions of any previous order as to the particular purposes, uses, and extent to which or the conditions under which, any securities so theretofore authorized or the proceeds thereof may be applied; subject always to the requirements of Section 37-4-7.
(Acts 1920, No. 37, p. 38; Code 1923, §9745; Code 1940, T. 48, §310.)
Whenever any securities set forth and described in any such application for authority or certificate of notification as pledged or held unencumbered in the treasury of the utility shall, subsequent to the filing of such application or certificate, be sold, pledged, repledged or otherwise disposed of by the utility, such utility shall, within 10 days after such sale, pledge, repledge or other disposition, file with the commission a certificate of notification to that effect, setting forth therein all such facts as may be required by the commission.
(Acts 1920, No. 37, p. 38; Code 1923, §9748; Code 1940, T. 48, §313.)
Nothing in this article shall be construed to imply any guarantee or obligation as to such securities on the part of the State of Alabama.
(Acts 1920, No. 37, p. 38; Code 1923, §9749; Code 1940, T. 48, §314.)
The provisions of Sections 37-4-7 through 37-4-12 shall not apply to notes issued by a utility for the proper purposes and not in violation of law, payable at a period of not more than two years from the date thereof, and aggregating (together with all other outstanding notes of a maturity of two years or less) not more than five percent of the tangible fixed capital as defined in the accounting classification as prescribed by the commission, and shall not apply to like notes issued by a utility, payable at a period of not more than two years from the date thereof, to pay, retire, discharge or refund, in whole or in part, any such note or notes, and shall not apply to renewals thereof from time to time, not exceeding in the aggregate six years from the date of the issue of the original note or notes so renewed or refunded. No such notes payable at a period of not more than two years from the date thereof shall, however, in whole or in part, directly or indirectly, be paid, retired, discharged or refunded by any issue of securities of another kind of any term or character, or from the proceeds thereof without the approval of the commission. Within 10 days after the making of any such notes, so payable at periods of not more than two years from the date thereof, the utility issuing the same shall file with the commission a certificate of notification, in such form as may from time to time be determined and prescribed by the commission, setting forth as nearly as may be the same matters as those required in respect of application for authority to issue other securities.
(Acts 1920, No. 37, p. 38; Code 1923, §§9750, 9751; Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §§315, 316.)
Nothing contained in this chapter shall limit the power of any court having jurisdiction to authorize or cause a receiver’s certificate or debentures to be issued according to the rules and practice obtaining in receivership proceedings.
(Acts 1920, No. 37, p. 38; Code 1923, §9751; Code 1940, T. 48, §316.)
The commission shall require periodical or special reports from each utility hereafter issuing any security, including such notes payable at periods of not more than two years from the date thereof, which shall show, in such detail as the commission may require, the disposition made of such securities and the application of the proceeds thereof.
(Acts 1920, No. 37, p. 38; Code 1923, §9752; Code 1940, T. 48, §317.)
Securities issued and obligations and liabilities assumed by a utility, for which under the provisions of this chapter the authorization of the commission is required, shall not be invalidated because issued or assumed without such authorization therefor having first been obtained, or because issued or assumed contrary to any term or condition of such order of authorization as modified by any order supplemental thereto entered prior to such issuance or assumption. Securities issued or obligations or liabilities assumed in accordance with all the terms and conditions of the order of authorization therefor shall not be affected by a failure to comply with any provision of this chapter or rule or regulation of the commission relating to procedure and other matters preceding the entry of such order of authorization or order supplemental thereto. A copy of any order made and entered by the commission as in this chapter provided (duly certified by a commissioner or by the secretary of the commission) approving the issuance of any securities or the assumption of any obligation or liability by a utility, shall, in and of itself, be sufficient evidence, for all purposes, of full and complete compliance by the applicant for such approval with all procedural and other matters required precedent to the entry of such order. Any utility or officer, agent or employee thereof, acting within the scope of his official duties of employment, who willfully issues any such securities, or assumes any such obligation or liability, or makes any sale or other disposition of securities, or applies any securities or the proceeds thereof to purposes, other than the purposes specified in an order of the commission with respect thereto, contrary to the provisions of this chapter, shall be liable to a penalty of not more than $10,000.00, but the utility is only required to specify in general terms the purpose for which any securities are to be issued, or for which any obligation or liability is to be assumed, and the order of the commission with respect thereto shall likewise be in general terms.
(Acts 1920, No. 37, p. 38; Code 1923, §9753; Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §318.)
The commission may, upon its own motion, at any time, and upon reasonable notice to any utility, when the commission deems it necessary to ascertain the value of the property of such utility, proceed to investigate, ascertain and report the value thereof, and shall make such investigation, ascertainment and report upon the request and application of any utility. To enable the commission to make such investigation and report, if upon its own motion, it may employ such experts and other assistants as it may deem necessary. If such investigation and report is made upon the application of a utility, the same shall be made and the experts and assistants employed by the commission for that purpose shall be employed at the expense of the utility making such application. The commission may appoint examiners who shall have the power to administer oaths, examine witnesses and take testimony in connection with any such investigation. In arriving at a valuation of the property of any utility as provided in this section, the commission shall give due consideration to the history and development of the utility and its property, original cost, cost of reproduction as a going concern and other elements of value recognized by the laws of the land for rate-making purposes. For the purpose of making such investigation, the members of the commission and its duly authorized agents and employees shall at all reasonable times have free access to the property, accounts, records and memoranda of the utility whose property and rights are being valued, and such utility shall aid and cooperate with the commission and its duly authorized agents and employees to the fullest degree for the purpose of facilitating such investigation. Upon the completion of the valuation of any utility, as provided in this article, the commission shall thereafter keep itself informed of all extensions and improvements or other changes in the condition and values of the property of such utility, and shall ascertain the value thereof, and shall from time to time revise and correct its valuation to the extent that may be necessary by reason of such extension and improvements or other changes in the physical condition and resulting value of such property; and to this end every utility shall make such report and furnish such information as the commission may require.
(Acts 1920, No. 37, p. 38; Code 1923, §9757; Code 1940, T. 48, §319.)
Whenever the commission shall have completed its valuation and report of the property of any utility, as provided in this article, and before such valuation shall become final, the commission shall give notice to such utility and to every municipality in the state where such utility renders service, as shown by the records of the commission, stating the valuation placed upon the property valued, and shall allow 90 days in which such utility, or any person who uses the service of such utility, or any municipality in which such utility operates, may file a protest of the same with the commission. If no protest is filed within 90 days, the valuation fixed by such report shall become final, as of the date thereof.
(Acts 1920, No. 37, p. 38; Acts 1923, No. 82, p. 62; Code 1923, §9758; Code 1940, T. 48, §320.)
If notice of protest is filed, the commission shall fix a time for hearing the same and shall proceed as promptly as possible to hear and consider any matter relative and material thereto which may be presented in support of any such protest so filed. If, after hearing any such protest, the commission shall be of the opinion that its valuation should not be made final, it shall make such changes as may be necessary to do justice, and shall issue an order making such valuation as corrected final as of the date thereof, which order shall be a final order of the commission. If, after hearing any such protest, the commission shall be of the opinion that its valuation should be made final, it shall issue an order making such valuation final as of the date thereof, which order shall likewise be a final order of the commission. Any such final order and the commission’s report of valuation upon which the same is based shall be a permanent public record of the commission, and shall be kept on file at its office. If no protest is filed as provided in Section 37-4-18 and such report of valuation by the commission becomes final as therein provided, then the valuation fixed in such report shall for all future rate-making purposes be the permanent basic valuation of the property of such utility unless there be a revaluation of the property of such utility as is provided in this article. If such protest is filed and after hearing thereof and order thereon, no appeal be taken to the Circuit Court of Montgomery County, then the valuation fixed by such final order thereon shall for all future rate-making purposes be the permanent basic valuation of the property of such utility unless there is a revaluation of the property of such utility as is provided in this article.
(Acts 1920, No. 37, p. 38; Code 1923, §9759; Code 1940, T. 48, §321.)
(a) If the valuation of the property of any utility has become final as provided in this article, or if such valuation becomes final as provided in Section 37-4-18, the commission may, within 90 days after any valuation hereafter made becomes final, proceed for reasons which it shall deem sufficient to make a revaluation of the property of such utility of which a valuation has been made or may be made under the provisions of this chapter, such revaluation being had upon the principles declared in this chapter; and the commission may to this end make such further investigation as provided in this chapter as it may see fit. The commission shall give notice to any utility of its intention to proceed to a revaluation of the property of such utility.
(b) Whenever the commission shall have completed its revaluation, it shall make a report thereof, and before such revaluation shall become final, the commission shall give notice to such utility, and to each municipality in which it renders service as shown by the records of the commission, stating the valuation placed upon the property so revalued, and shall allow 60 days in which such utility, or any person who uses the service of such utility, or any municipality in which such utility operates, may file a protest of the same with the commission. If no protest is filed within 60 days, the valuation fixed in such report of revaluation shall become final, as of the date thereof. If notice of protest is filed by any utility whose property is so revalued, or by any person who uses the service of such utility or any municipality in which such utility operates, the commission shall fix a time for hearing the same and shall proceed as promptly as practicable to hear and consider any matter relative and material thereto which may be presented in support of any such protest so filed. If, after hearing any such protest, the commission shall be of the opinion that the valuation fixed in its report of revaluation should not be made final, it shall make such changes as may be necessary to do justice, and shall issue an order making such valuation as corrected, final as of the date thereof, which order shall be a final order of the commission. If, after hearing any such protest, the commission shall be of the opinion that the valuation fixed in its report of revaluation should be made final, it shall issue an order making such valuation final as of the date thereof, which order shall likewise be a final order of the commission. Any such final order and the commission’s report of revaluation upon which the same is based shall be a permanent public record of the commission, and shall be kept on file at its office. If no protest is filed as provided in this article, and the valuation fixed by the commission in its report of revaluation becomes final, as herein provided, then the valuation fixed in such report of revaluation shall for all future rate-making purposes be the permanent basic valuation of the property of such utility. If protest is filed as provided in this article, and after hearing thereof, and order thereon, no appeal is taken to the Circuit Court of Montgomery County, then the valuation fixed by such final order on the commission’s report of revaluation shall for all future rate-making purposes be the permanent basic valuation of the property of such utility.
(c) In the case of any revaluation in a proceeding in which the final order of valuation is made, the cost of services of engineers, accountants or other experts employed and used by the commission in such revaluation proceeding shall be borne by the commission where such revaluation is by the commission on its own motion, or upon the application of some person other than the utility whose property is involved.
(Acts 1920, No. 37, p. 38; Code 1923, §§9759, 9761; Code 1940, T. 48, §§321-323.)
When any order of valuation or of revaluation of the commission has become a final order, an appeal may be taken therefrom by the utility or by any person, as defined in this article, who is a party to the cause before the commission, to the Circuit Court of Montgomery County, Alabama, within 30 days from the date of such final order, and upon the hearing of such appeal that court shall have the right to affirm the order of the commission, or reverse the same and remand the case to the commission for further consideration. From any such judgment of the circuit court, an appeal shall lie to the Supreme Court of Alabama, which court shall have the right to affirm the judgment of the circuit court, or to reverse the same and remand the case to the commission for further consideration. If the case should be reversed and remanded to said commission by either the circuit or the supreme court, the commission shall proceed to a consideration thereof in accordance with the mandate of said court and the law as applicable thereto.
(Acts 1920, No. 37, p. 38; Code 1923, §9762; Code 1940, T. 48, §324.)
(a) Rates and service regulations may be established by contract between a municipality and utility for a specified term, not exceeding 30 years, but only by and with the approval of the commission to be expressed by its order. Utilities may contract with each other and with persons who are not utilities in respect of the use of their properties and facilities, the sale or exchange of water, gas, electricity or other products or commodities, otherwise than pursuant to established rates, the distribution to the public of such products and commodities jointly or singly, and the territory within which such joint or single service shall be rendered and other matters deemed to be of mutual advantage, subject, however, in all such cases, to the approval of the commission; but no person shall participate in such distribution who is not a utility.
(b) Whenever any such contract shall be made, it shall, before becoming effective, be submitted to the commission. If the commission shall find the provisions of any such contract consistent with the public interest, it shall approve the same. Otherwise, it shall disapprove the same, and unless and until so approved, such contract shall be of no effect; but if it is approved, it shall in all respects be lawful. Whenever a utility provides for itself by contract, as above provided, a source of supply of any product or commodity which it would otherwise be under the duty to generate or manufacture, it shall, to such extent as the commission may order, be excused from the construction or maintenance of plant, facilities and equipment necessary for such generation or manufacture.
(Acts 1920, No. 37, p. 38; Code 1923, §§9763, 9764; Code 1940, T. 48, §§325, 326.)
(a) For purposes of this section, the following terms have the following meanings:
(1) INCREMENTAL COSTS OF RETAIL ELECTRIC SERVICE. The additional costs associated with the generation, transmission, distribution, sale, or furnishing of electricity to a large load data center customer, including fuel costs and taxes, which the utility would not incur but for the large load data center customer contract.
(2) LARGE LOAD DATA CENTER CUSTOMER. A customer of the utility which has executed a contract for retail electric service with the utility which requires the utility to serve an expected total peak demand of 150 megawatts or greater at one or more contiguous parcels of land, meets the definition of a data processing center under Section 40-9B-3, and operates solely for the purpose of data processing.
(3) TERMS AND CONDITIONS. The provisions in a contract for service between a customer and utility which address matters such as minimum term for contract length, upfront payments, security and collateral, and minimum payment.
(b) Consistent with the commission’s authority under Title 37 generally and Section 37-4-22 specifically, a contract for retail electric service between a utility and a person that qualifies as a large load data center customer is consistent with the public interest where the commission determines that the contract pricing and contract terms and conditions over the contract term are expected to:
(1) Provide for the recovery of the incremental costs of retail electric service to the large load data center customer’s premises from the large load data center customer; and
(2) Promote positive benefits to other retail electric customers of the utility.
(c) The determination of whether a contract between a large load data center customer and a utility promotes positive benefits under subdivision (b)(2) includes considerations such as:
(1) Whether the pricing and terms and conditions of the contract could lower costs for other customers of the utility;
(2) Whether the large load data center customer is expected to increase the efficiency of the utility’s power system; and
(3) Whether the large load data center customer promotes or contributes to economic growth in the community where the premises of the large load data center customer is located.
(Act 2026-610, §1.)
Each utility, as defined in this chapter, doing business in this state and subject to the control and jurisdiction of the commission with respect to its rates and service regulations, shall pay quarterly to the commission beginning November 1, 1985 and on each quarter thereafter February 1, May 1, August 1, and November 1 of each year, a fee for the inspection and supervision of such business. Such inspection and supervision fees shall be paid by such utilities in addition to any and all property, franchise, licence, intangible and other taxes, fees and charges now or hereafter provided by law. No similar inspection and supervision fees shall be levied or assessed by any county or municipality of the state, and no part of such inspection and supervision fees shall be allowed to any county or municipality of this state. Such inspection and supervision fee shall be measured by the amount of the gross receipts of each such utility for the fiscal year next preceding the dates fixed in this article for the payment of the same, except that in case of such utilities engaged in interstate business, the fees shall be measured by the gross receipts of such utilities from intrastate business only, for such preceding fiscal year, and not in any respect upon receipts derived wholly or in part from interstate business. Such fees shall be ascertained as follows: A fee of $2.85 per $1,000.00 for the first $100,000.00 or less of such gross receipts; a fee of $2.35 per $1,000.00 for each additional $1,000.00 of such gross receipts up to and including $1,000,000.00 thereof; and a fee of $1.85 per $1,000.00 for each additional $1,000.00 of such gross receipts over $1,000,000.00 thereof; but in no case shall said fee be less than $25.00, which shall be the minimum inspection and supervision fee to be paid by any utility. However, all utilities with gross intrastate receipts in excess of $60,000,000.00 per calendar year will continue to submit the quarterly payment of fees, as due on the intrastate gross receipts of the fiscal year ended September 30, 1984, through August 1, 1985. On September 1, 1985 such utilities shall pay fees due based on gross receipts for the calendar quarter ended December 31, 1984. Beginning November 1, 1985 such companies shall pay over on a quarterly basis fees based on gross receipts for the calendar quarter ended March 31, 1985 and henceforth for the calendar quarters ending June 30, September 30, December 31 and March 31 of each year on the following February 1, May 1, August 1 and November 1 of each year respectively. The commission shall keep a true record of all such amounts so paid to it, but said amounts when received by the commission shall be promptly paid over to the treasurer and shall be held in the commission’s operating fund by him except those funds identified in Section 37-4-88 which are designated for the “gas pipeline safety fund,” and shall be paid out by the treasurer in payment of expenses incurred by the commission under this title upon warrants drawn by the comptroller on the treasurer, and approved by said commission or a majority thereof. Subject to the provisions of the merit system, the commission shall have power to employ such assistants as may be found necessary to aid the commission in such regulation, and to make payment for any necessary traveling or incidental expenses incurred in connection with such regulation, which shall be paid out of said fund as aforesaid, so far as it may be available. Payment of the supervision and inspection fees provided for under this section shall in all respects be governed by the provisions of Section 37-4-24.
(Acts 1920, No. 37, p. 38; Code 1923, §9765; Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §327; Acts 1981, No. 81-718, p. 1210, §1; Acts 1985, No. 85-756, p. 1256, §2; Acts 1989, No. 89-943, p. 1852, §2; Acts 1991, No. 91-586, p. 1075, §1.)
(a) Supervision and inspection fees provided for in this chapter shall be in default after February 1, May 1, August 1 and November 1 of each year, if not paid prior to or on that date. In the event that the amount payable by any utility for any quarter cannot be ascertained on or before the dates herein prescribed for payment each year, such utility shall, in any event, pay the minimum supervision and inspection fee provided in this article, and in addition such part of any additional supervision and inspection fee as may be ascertainable on or before the date of default; and when any further or additional amount payable for such quarter can be ascertained, the same shall be paid within 30 days after it becomes possible to ascertain the same. Any utility failing, in whole or in part to pay any supervision or inspection fee, or part thereof, due by it within any of the time prescribed in this article, for the payment of the same, shall be in default, and shall be liable to a penalty of not exceeding $50.00 per day, to be recovered by a civil action brought by the state, for every day it thereafter remains in default, and such penalty may be recovered together with the supervision and inspection fee, in default, in a single action. And the state shall have a lien upon all the property in this state of any utility for the payment of the supervision and inspection fees provided by this chapter, to be paid, and the penalties in this section provided for, which lien shall be superior to all other liens, except the lien for state, county and municipal taxes.
(b) Any utility company may, at their own election, pay over the total fees due for the preceding fiscal year on November 1 of each year.
(Acts 1920, No. 37, p. 38; Code 1923, §9767; Code 1940, T. 48, §328; Acts 1981, No. 81-718, p. 1210, §1.)
For all the purposes of this chapter the commission may, in its discretion, deem and treat any utility, the property of which is operated in connection with or as a part of a general system of any other utility and all of the capital stock of which or substantially all of the capital stock of which is owned or controlled by such other utility, or by any person or persons who own or control all of the capital stock or substantially all of the capital stock of such other utility as a part of or consolidated with such owning or controlling utility or such other utility whose stock is so owned or controlled.
(Acts 1920, No. 37, p. 38; Code 1923, §9792; Code 1940, T. 48, §329.)
Every utility engaged in any intrastate business in this state must file with the commission a true and correct statement, properly verified, of every outstanding or existing agreement between it and any holding company or affiliated interests, substantially affecting the financial status or credit of the utility, or the management or control of the utility by such holding company or affiliated interests. Thereafter, it shall be the duty of every such utility, within 30 days after the making thereof, to file with the commission a verified statement of every new agreement or modification of an existing agreement of like character; provided, that the commission may, by affirmative action, relieve any utility from the duty or obligation of filing any such statement. The commission shall have full authority and power to investigate any such agreement, and if the commission, after due notice and hearing, finds that such agreement is unjust and unreasonable, the commission shall make and enter such order as is just and reasonable relating thereto.
(Acts 1932, Ex. Sess., No. 232, p. 233; Code 1940, T. 48, §330.)
All utilities may grant free transportation or service, or transportation or service at reduced rates, to such persons as are now or may hereafter be authorized by law to receive the same, and may grant free transportation or service, or transportation or service at reduced rates, to their officers, agents, attorneys or employees, and their families, and may exchange the same with other utilities.
(Acts 1920, No. 37, p. 38; Code 1923, §9794; Code 1940, T. 48, §331.)
No plant, property or facility for the production, transmission, delivery or furnishing of gas, electricity, water or steam shall be constructed, except ordinary extensions of existing systems in the usual course of business, until written application is first made to the commission for the issuance of a certificate of convenience and necessity, and the issuance by the commission of such certificate. Upon the filing of any such application, and after a public hearing of all parties interested, the commission may, or may not, in its discretion, issue such a certificate of convenience and necessity, and if issued, may prescribe such conditions upon the issuance as it may deem advisable.
(Acts 1920, No. 37, p. 38; Code 1923, §9795; Code 1940, T. 48, §332.)
Unless exercised within a period designated by the commission, but not exceeding one year from the grant thereof, exclusive of any delay due to the order of any court, or the failure to obtain any grant or consent, authority conferred by a certificate of convenience and necessity issued by the commission shall be null and void; but the beginning of the construction of the road, line, system or works of such utility, in good faith within the time prescribed by the commission, and the prosecution of the same with reasonable diligence, shall constitute a compliance with such certificate.
(Acts 1920, No. 37, p. 38; Code 1923, §9797; Code 1940, T. 48, §334.)
(a) No existing electric customer shall obtain electric service under a private contract for electric service without first giving written notice to the utility currently providing it retail electric service at least 45 days prior to the date on which the private contract for electric service is to become effective. In the event any utility currently providing service to the existing electric customer determines that it or its other electric customers will be adversely affected by the loss of the existing electric customer due to the private contract for electric service, it may, within 45 days of the date of the existing electric customer’s written notice of a private contract for electric service, file a petition for review of the private contract for electric service as set forth below and service under such contract shall not be initiated until 45 days after such review has been completed and an order concerning such review has been issued by the Public Service Commission or a circuit court; provided, however, that if the utility currently providing electric service is a utility subject to the jurisdiction of the Public Service Commission, the existing electric customer may file with the secretary of said commission, and if the utility currently providing electric service is a utility exempt from or otherwise not subject to the jurisdiction of the Public Service Commission, the existing electric customer may file with the clerk of the circuit court in the judicial circuit in which the existing electric customer is located, a bond in the amount of the utility’s estimate of the stranded costs associated with the transfer of the existing electric customer’s service under the private contract for electric service as set forth below, with two or more sureties, to be approved by the Public Service Commission or by one of the judges of the circuit court, as the case may be, one of which may be a surety company, payable to the utility and conditioned to pay all stranded costs associated with the transfer of the existing electric customer’s service under the private contract, as well as interest thereon for the period from the date of transfer of the existing electric customer’s service under the private contract to the existing electric customer’s payment of the stranded costs associated with the referenced transfer as such reasonable rate as the Public Service Commission or circuit court, as the case may be, shall determine, and upon the filing of the bond, service under the private contract for electric service may be initiated on the date on which the private contract for electric service is to become effective, or thereafter at the election of the existing electric customer, subject to the further orders of the Public Service Commission or circuit court, as the case may be, as set forth below.
In any such proceeding, upon the request of the existing electric customer or the utility, a protective order may be entered protecting the confidentiality of information in the private electric contract or the utility’s contract with the existing electric customer, where it is asserted by the existing electric customer or the utility that the contract contains sensitive business information the disclosure of which may compromise competition or the proprietary rights of the existing electric customer, the proposed electric supplier, or the utility.
(i) If the utility currently providing electric service is a utility subject to the jurisdiction of the Public Service Commission, it may file a petition for review with the Public Service Commission and the existing electric customer shall be made a party to any such proceeding. The utility’s petition for review shall state its estimate of the stranded cost associated with the transfer of the existing electric customer’s service under the private contract for electric service. Upon filing of such petition, the existing electric customer seeking to enter into a private contract for electric service shall submit the contract to the Public Service Commission for its review in accordance with the requirements of this section. The Public Service Commission shall review the private contract for electric service to determine whether the contract is consistent with the public interest by determining whether the private contract for electric service will materially impair the ability of any utility currently providing service to the existing electric customer to provide efficient and reliable service at a reasonable cost to and for the public which it continues to serve. If the Public Service Commission determines that the private contract for electric service is not inconsistent with the public interest, it may approve the private contract, but to ensure that no utility or electric customer will be adversely affected, shall require the existing electric customer to reimburse any utility, for any and all reasonable stranded costs associated with the transfer of the existing electric customer’s service under the private contract for electric service. In appropriate circumstances, the commission may allow, upon the posting of adequate security, payments by the existing electric customer of any and all reasonable stranded costs associated with the transfer over a period of up to five years with appropriate consideration to the utility for the time value of such method of payment. The Public Service Commission shall, within 90 days after the completion of the hearings and arguments, if any, and the filing of briefs, if any, in the review of a petition filed hereunder, or upon a rehearing thereof, decide the matter.
(ii) If the utility currently providing electric service is a utility exempt from or otherwise not subject to the jurisdiction of the Public Service Commission, it may file a petition for review with the circuit court in the judicial circuit in which the existing electric customer shall be made a party to any such proceeding. The utility’s petition for review shall state its estimate of the stranded cost associated with the transfer of the existing electric customer’s service under the private contract for electric service. Upon the filing of such petition, the existing electric customer seeking to enter into a private contract for electric service shall submit the contract to the circuit court for its review in accordance with the requirements of this section.
The circuit court shall review the proposed private contract for electric service to determine whether approval of the contract is consistent with the public interest. The proposed private contract for electric service shall not be consistent with the public interest if its approval and becoming effective would materially impair the ability of any utility currently providing service to the existing electric customer to provide efficient and reliable service at a reasonable cost to and for the public which it continues to serve. If the circuit court determines that the private contract for electric service is not inconsistent with the public interest, it shall approve the contract, but to ensure that no utility or electric customer will be adversely affected by approval of the proposed private contract for electric service, shall require the existing electric customer seeking approval of the proposed private contract for electric service to reimburse any utility for any and all reasonable stranded costs associated with the transfer of the existing electric customer’s service under the private contract for electric service. In appropriate circumstances, the circuit court may allow, upon the posting of adequate security, payments by the existing electric customer of any and all reasonable stranded costs associated with the transfer over a period of up to five years with appropriate consideration to the utility for the time value of such method of payment.
For its aid, in making the determinations required hereunder, as to both the public interest and the compensation to be paid a utility where a private contract for electric service is determined not to be inconsistent with the public interest, the circuit court shall, upon motion of any party, refer the case to a panel of three commissioners to be appointed by the court. Each commissioner shall be knowledgeable and experienced in the operations of electric utilities and shall meet the qualification requirements applicable to a master under Rule 53(a), Alabama Rules of Civil Procedure. The existing electric customer and the utility petitioning for relief may each submit a list of not less than three nor more than five nominees to be appointed as commissioners. The court shall, in the absence of exceptional circumstances, select one commissioner from the list submitted by the existing customer and one commissioner from the list submitted by the complaining utility. If one or both parties nominate no commissioners, the court may appoint a commissioner or commissioners, qualified under this section by knowledge and experience, of its own choosing. The two commissioners so appointed shall nominate a third commissioner qualified by knowledge and experience under this section. The court shall approve such nominee or shall appoint such other person qualified under this section as the court may determine to serve as the third commissioner. By agreement of the existing electric customer seeking approval of the private contract for electric service and the utility currently serving the customer, a single commissioner qualified under this section, jointly nominated by those parties and approved by the court, may serve instead of three commissioners.
The commissioners shall have all the powers vested in a master appointed under Rule 53, Alabama Rules of Civil Procedure, and shall conduct hearings, gather facts, and issue their report in a manner consistent with Rule 53 or its successor in purpose and effect.
At the close of the commissioners’ examination and deliberations, the commissioners shall issue a report including their recommendations to the circuit court stating (1) whether the private contract for electric service would materially impair the existing utility’s ability to provide efficient and reliable service to its other electric customers at a reasonable cost, and (2) if not, recommending the compensation and reimbursement to be made to any utility adversely affected by the loss of its existing customer by virtue of the private contract for electric service.
The parties shall have 30 days following the issuance of the commissioners’ report, or such longer period as the court may grant upon cause shown, to examine the commissioners’ report and submit to the court objections or exceptions thereto.
At the close of the 30-day period following issuance of the commissioners’ report, and following a hearing upon such objections and exceptions, the commissioners’ report shall be approved by the court and incorporated into its order, except insofar as the report’s conclusions, or any material conclusion of the report, are clearly erroneous. In that event, the court may incorporate the report’s recommendations, with modifications necessary to correct the errors, in its order; may refer the report to the commissioners for further deliberation, analysis, and recommendations, following the issuance of which the court may incorporate the commissioners’ amended recommendations into its order; or the court may reject the entire report and resolve the issues as the objectives of this section may require.
Either party may appeal to the Supreme Court from the action or order of the circuit court under the same rules and in the same manner and under the same conditions as are or may be provided by law for appeals from circuit court as of right to the Supreme Court in other cases.
A commissioner under this section shall be compensated under the provisions of Rule 53(a), Alabama Rules of Civil Procedure, or its successor in purpose and effect.
Any commissioner acting hereunder and the circuit court, in determining the stranded costs associated with the transfer of the existing electric customer’s service, at a minimum, may consider any guidelines, formulas, and methodologies or decisions accepted, utilized, or issued by the Public Service Commission in its evaluation of private contracts for electric service under subsection (a)(i) hereof.
(b) The term “private contract for electric service” shall mean and include any transfer of an existing electric customer’s service to another utility, electric service provider, or any other entity, whether or not the utility, electric service provider, or any other entity is subject to the general jurisdiction of the Public Service Commission, where current service to the existing customer will be terminated or curtailed. The term “existing electric customer” shall mean and include any retail consumer of electric service at the premises to which electric service has previously been rendered by a utility, including a utility exempt from or otherwise not subject to the general jurisdiction of the Public Service Commission.
“Stranded costs” means all verifiable costs or obligations incurred by a utility in order to provide service to electric customers in the area served by the utility that cannot actually be recovered through mitigation upon the transfer of the existing electric customer to another supplier. These costs shall include, without limitation, such items as costs of investment in generating, transmission, and distribution facilities; obligations for purchased power, fuel, and transmission charges; costs of assets required to be capitalized under utility accounting principles or by regulatory order; and other fixed costs incurred by the utility to provide service.
(c) The term “private contract for electric service” shall not include any arrangement under which the electric generation source is wholly-owned, for federal income tax purposes, by the consumer of the electric service, a wholly-owned subsidiary of the electric consumer’s parent company. Notwithstanding the foregoing, the Public Service Commission or the circuit court, as appropriate, may review an arrangement pursuant to this section when it determines that a transaction, viewed in its totality and regardless of structure, is a private contract for electric service because of the involvement of entities other than the electric consumer.
(d) The term “private contract for electric service” shall not include contracts or arrangements entered into earlier than May 6, 1996, or subsequent amendments, alterations, modifications, or extensions of such contracts or arrangements.
(e) The term “utility,” solely for the purpose of this Section 37-4-30, shall include a utility providing retail service to, or in privity of contract with, the existing electric customer but shall also, in addition, include a utility, whether a distribution, transmission, or generation utility, providing wholesale or power supply service to the utility that is providing retail service or that is in privity of contract with the existing electric customer. The term “utility,” solely for the purpose of this Section 37-4-30, shall also include a utility board for the operation of water, sewer, gas, and electric systems organized pursuant to the provisions of Section 11-50-310, et seq., an electric utility board organized pursuant to the provisions of Section 11-50-490, et seq., or an improvement authority organized pursuant to the provisions of Section 39-7-1, et seq.
(Acts 1996, No. 96-395, p. 486, §1.)
The property of a utility, together with its franchises, contracts, business, good will and other assets, may be lawfully sold and conveyed or leased to, and thereafter lawfully held, enjoyed and operated by, a purchaser then engaged or proposing to engage in the business conducted by such utility; or the capital stock of a corporation owning and operating a utility may be lawfully sold and conveyed to, and thereafter lawfully held and enjoyed by, a purchaser, whether or not such purchaser is engaged, or proposes to engage, in the business conducted by such utility; whenever such sale and conveyance or lease of the property, franchises, contracts, good will and other assets of such utility, or whenever the sale and conveyance of the capital stock of such corporation is consistent with the interests of the public.
(Acts 1915, No. 205, p. 268; Code 1923, §9825; Code 1940, T. 48, §337.)
In cases other than those covered by Section 37-4-42, the question whether the proposed sale and conveyance or lease is consistent with the interests of the public shall be determined by the Public Service Commission, and if the commission determines that the proposed sale and conveyance or lease is consistent with the interests of the public, its determination shall be shown by its approval of the proposed sale and conveyance or lease. Thirty days’ notice in a newspaper published in each municipality involved of such application shall be given before the hearing by the commission. If all, or substantially all, of the property and assets of any utility or corporation is proposed to be sold under the provisions of this division, the same procedure shall be necessary as in the case of other private corporations.
(Acts 1915, No. 205, p. 268; Code 1923, §9827; Code 1940, T. 48, §339.)
In cases where the property of the utility proposed to be sold and conveyed or leased lies within, and the franchises and public duties thereof relate to a single municipality, and in cases where such a utility is owned by a corporation, and its capital stock is proposed to be sold, the question whether the proposed sale and conveyance or lease is consistent with the interests of the public shall be determined by the governing body of such municipality, and also by the Public Service Commission, and if the governing body of such municipality and the commission shall each determine that the proposed sale and conveyance, or lease, is consistent with the interests of the public, their determination shall be shown by their approval of the proposed sale and conveyance or lease.
(Acts 1915, No. 205, p. 268; Code 1923, §9826; Code 1940, T. 48, §338.)
Nothing in this division shall be construed to limit or restrict any right to sell, lease, hypothecate or mortgage any property, or to invalidate any legal sale, lease, hypothecation or mortgage thereof, where the same is legal without reference to the provisions of this division.
(Acts 1915, No. 205, p. 268; Code 1923, §9828; Code 1940, T. 48, §340.)
Nothing contained in this division shall be construed to authorize the sale and conveyance of property employed in the business of commerce among or between the states and territories of the United States or District of Columbia contrary to the laws of the United States.
(Acts 1915, No. 205, p. 268; Code 1923, §9829; Code 1940, T. 48, §341.)
Any provision of this division to the contrary notwithstanding, any not-for-profit corporation or other not-for-profit entity owning, operating, leasing or controlling any plant, property or facility for the supply, storage, distribution or furnishing to or for the public of water for manufacturing, municipal, domestic or other uses, may sell, convey, lease or otherwise dispose of any or all of such plant, property, or facility, and its other properties, including without limitation any franchises, rights, contracts, business, good will and all other assets, to any public authority or corporation that is organized under the laws of Alabama and that is empowered to own, operate, lease or control such plant, property or facility, all without the necessity of any approval or consent of the Public Service Commission.
(Acts 1981, 3rd Ex. Sess., No. 81-1197, p. 530.)
Whenever any municipal corporation, county improvement authority, power district, federal or other governmental agency, sometimes called “agency” in this division, proposes to engage in the business of operating an electric light plant or distribution system, or of furnishing electric service for industrial, domestic or other consumption and at the time such agency proposes to engage in such business there is then in existence within the territory in which it is proposed to furnish such electric service a plant or distribution system, either or both, or any part or parts thereof, furnishing the service so proposed to be furnished by such agency, then such agency, as a condition precedent to the exercise of such authority, shall notify the owner of such plant or system by registered or certified mail of its intention to engage in such business and of its willingness to acquire on such terms and conditions as may be agreed upon so much of such plant and system as shall be located in the territory in which the agency proposes to furnish such service and as shall be necessary and convenient therefor.
(Acts 1939, No. 244, p. 405; Code 1940, T. 48, §342.)
If within 30 days after receipt of such notice the owner shall propose voluntarily to sell and transfer such property to the agency upon terms and conditions to be mutually agreed upon between the owner and the agency and approved by the Alabama Public Service Commission, and serve a copy of such proposal upon the agency and upon the commission, the commission shall fix a time and place to hear and consider such proposal and notify all parties interested therein. If the terms and conditions of purchase and sale shall be agreed upon by and between the owner and the agency and approved by the commission, the commission shall announce its approval thereof by appropriate order, and the agency shall by resolution or ordinance, as the case may be, authorize and direct the execution on the part of the agency of such contract in writing and other instrument and take any and every other action with reference thereto necessary or appropriate to consummate such purchase and sale and the transfer to the agency of possession of such acquired property and payment therefor in accordance with the terms of such agreement. If the owner fails or refuses to advise such agency within 30 days after receipt of such notice of its purpose to sell such property, then the agency may proceed as provided by law to construct, condemn or otherwise acquire a plant or system within the designated territory; and the advice to be given by the owner to such agency shall be sufficient if it advises that the owner is willing to sell the property provided the valuation as finally determined by the commission or court is satisfactory to the owner. Upon the owner advising of its willingness to sell such property, acquisition of the property sought to be acquired shall proceed with the rights and privileges to the respective parties as set forth in this division.
(Acts 1939, No. 244, p. 405; Acts 1939, No. 414, p. 554; Code 1940, T. 48, §343.)
If acquisition of the property sought to be acquired by the agency is not consummated under the provisions of Sections 37-4-60 and 37-4-61, the agency, before proceeding to engage in the proposed business, shall take such steps as may be provided in this division. If the agency and the owner fail within 60 days after written notice to the owner of the utility as provided in this division to consummate the proposed acquisition, either the agency or the owner may apply to the commission within 15 days after the expiration of such 60 days for a determination as to what property ought in the public interest to be included in the purchase and what price ought to be paid, having in view the cost of the property less a reasonable allowance for depreciation and obsolescence, and any other element which may enter into a determination of the fair value of the property to be purchased; but such price shall be determined without enhancement on account of future earning capacity or good will, or of exclusive privileges derived from rights in the public streets or roads. Thereupon, the commission, after notice to all interested parties, shall hold a hearing thereon and make the determination aforesaid. Such purchase shall include such portion of the property of the owner within the limits of the agency as is suitable for, and used in connection with, the generation or distribution of electricity within the agency or within the territory which the agency proposes to serve. The price shall include damages, if any, which the commission finds would be caused by the severance of the property proposed to be included in the purchase from other property of the owner. Such severance damages shall be separately found by the commission, and shall not exceed 15 percent of the amount, exclusive of such damages, fixed by the commission to be paid to the owner. If any such property is subject to any mortgages, liens or other encumbrances, the commission in making its determination shall provide for the deduction or withholding from the purchase price, pending discharge, of such sum or sums as it deems proper. The determination provided in this division shall be made by order, and such order shall be deemed a final order of the commission. The commission may impose in its order reasonable conditions relating to the terms and conditions of the proposed acquisition and shall state in its order the findings of fact and conclusions of law upon which its determination and the conditions attached thereto are based.
(Acts 1939, No. 244, p. 405; Code 1940, T. 48, §344.)
Any party shall have the right to appeal from the order of the commission, such appeal to be governed by existing provisions of law relating to appeals from final orders of the commission; except, that such appeal shall be taken to the circuit court of the judicial circuit containing the greater portion, by value, of the property to be acquired, and such appeal shall be taken within 10 days from the filing of the order of the commission. The order of the commission shall specify the judicial circuit in which the greater portion of the property, by value, is located, and such specification shall be conclusive for fixing the venue of an appeal. On any such appeal, if the court shall determine that any condition imposed by the order of the commission is unreasonable or that the commission has erred in determining the just compensation to be paid, the court shall proceed to enter the judgment the commission should have entered. Any action brought under the provisions of this division shall have a preferred status before the commission and in the courts as to trial and disposition thereof.
(Acts 1939, No. 244, p. 405; Code 1940, T. 48, §345.)
The owner shall have 30 days after a final determination by the commission or the courts to notify the agency of its acceptance of such determination and shall have a further period of 30 days to tender a good and sufficient deed of conveyance to the agency of the property required by the order of the commission or the court to be purchased by placing such deed in escrow with the commission or the court, as the case may be, and to comply with all other terms and conditions of the order or judgment. The agency shall have 60 days from the date of the deposit of the deed in escrow to accept or reject such deed, and if it accepts, the agency shall have a further period of 60 days to pay to the owner the price determined as provided in this division and to comply with all other terms and conditions of the order or judgment. For good cause shown the commission or the court may extend any period of time fixed in this section, such extension or extensions not to exceed a total of 60 days. If the owner fails to notify the agency of his acceptance and make tender of a deed as provided in this division within the time so fixed or extended, or to comply with all other terms and conditions of the order or judgment, the agency may proceed as provided by law to construct or otherwise acquire a plant or system within the territory where the property of such owner or any part thereof is located. If the agency shall reject the tender provided in this division for or shall fail to pay the purchase price of the property determined as provided in this division or to comply with all other terms and conditions of the order or judgment, the agency shall not engage in the business of operating an electric public utility in the territory where the property involved is located until it shall again be authorized, as provided by this division and the general law relating thereto, to engage in such business, and such agency shall not again institute proceedings under this division sooner than two years from the date of such rejection or the expiration of the time for the payment of such purchase price, as the case may be.
(Acts 1939, No. 244, p. 405; Code 1940, T. 48, §346.)
Nothing in this division shall be deemed to require the purchase of or payment of compensation for any existing plant or distribution system within the corporate limits of any agency in which the construction of any electric distribution system has been already authorized by an election held prior to September 12, 1939, nor shall this division apply with respect to any project for which loans or grants have been made or were under contract to be made by the United States through the Federal Emergency Administrator of Public Works, the Federal Works Administrator, the Commissioner of Public Works, the Federal Works Agency, or the Public Works Administration, prior to September 12, 1939, nor shall this division apply to rural electric membership corporation distribution systems.
(Acts 1939, No. 244, p. 405; Acts 1939, No. 414, p. 554; Code 1940, T. 48, §347.)
For the purposes of this article, the following words and terms shall have the following meanings, unless a different meaning is expressly stated or clearly indicated by the context:
(1) PUBLIC UTILITY. Any person, firm, corporation or other legal entity of any kind engaged in the transportation and sale of gas and shall include the State of Alabama, every county in the State of Alabama, every municipality in the State of Alabama, every public body or corporation of whatever kind in the State of Alabama, as well as every private or nonpublic entity, when engaged in the transportation and sale of gas.
(2) GAS. Natural gas, flammable gas or gas which is toxic or corrosive.
(3) TRANSPORTATION OF GAS. The gathering, transmission, distribution and storage of natural gas and the transmission and distribution by pipeline of all kinds of gas other than natural gas.
(4) PIPELINE SYSTEM. New and existing pipe rights-of-way and any pipeline, equipment, facility and building, or any of the foregoing, used by a public utility in the transportation of gas or the treatment of gas during the course of transportation; but “rights-of-way,” as used in this article does not authorize the commission to prescribe the location or routing of any pipeline, equipment, facility or building, or any of the foregoing.
(5) COMMISSION. The Alabama Public Service Commission.
(6) FEDERAL SAFETY STANDARDS. The minimum standards of safety adopted by the United States Department of Transportation pursuant to the Natural Gas Pipeline Safety Act of 1968 (P.L. 90-481) or any amendments thereto, and any rules and regulations promulgated by any regulatory agency of the United States having jurisdiction thereof.
(Acts 1969, Ex. Sess., No. 204, p. 273, §1.)
All pipeline systems used in this state for the transportation of gas shall be constructed, operated and maintained in such safe manner as at all times to be in compliance with the defined federal minimum safety standards.
(Acts 1969, Ex. Sess., No. 204, p. 273, §2.)
The commission shall have the right, power and authority: To provide and make certifications, reports and information to the Secretary of the United States Department of Transportation; to enter into agreements with said secretary to carry out the purposes of this article; to enforce federal safety standards in the State of Alabama in lieu of enforcement by the said department of transportation as permitted in the Natural Gas Pipeline Safety Act of 1968 (P. L. 90-481); and to exercise regulatory jurisdiction over the safety of pipeline systems and the transportation of gas as permitted by the Natural Gas Pipeline Safety Act of 1968 (P. L. 90-481).
(Acts 1969, Ex. Sess., No. 204, p. 273, §3.)
In order to determine whether or not each such pipeline system is operating in compliance with the required safety standards and to enforce such compliance, the Alabama Public Service Commission shall have the right, power and authority to promulgate reasonable rules and regulations to facilitate such purposes. It may require each such pipeline system to make, maintain and file such books, papers, records and documents as the commission may deem necessary, which books, papers, records and documents shall be made available to members of the commission and their employees upon request. Authorized personnel of the commission shall be authorized to inspect all such pipeline systems, facilities and equipment and shall have the right of access and entry to all buildings and property owned, leased or operated by such systems.
(Acts 1969, Ex. Sess., No. 204, p. 273, §4.)
The Alabama Public Service Commission shall be authorized to employ, subject to the provisions of the Merit System Act, such inspectors or other qualified employees as may be necessary to carry out the provisions of this article.
(Acts 1969, Ex. Sess., No. 204, p. 273, §6.)
Nothing in this article shall be deemed to confer upon the commission any additional power and jurisdiction to supervise or regulate the rates, services, franchises or other matters pertaining to pipeline systems or transportation of gas except with respect to the enforcement of federal safety standards prescribed by the Secretary of the United States Department of Transportation; nor shall anything in this article be deemed to confer upon the commission any power to adopt or continue in force any standards for pipeline systems or transportation of gas subject to the jurisdiction of the Federal Power Commission as prohibited by Section 3 (b) of the Natural Gas Pipeline Safety Act of 1968 (P.L. 90-481).
(Acts 1969, Ex. Sess., No. 204, p. 273, §8.)
Upon petition of the commission, the circuit court in any county in which a violation of this article exists shall have jurisdiction to restrain such violations and to enforce compliance with the safety standards herein required.
(Acts 1969, Ex. Sess., No. 204, p. 273, §5.)
(a) Any person who violates any provision of this article or of any regulation issued hereunder shall be subject to a civil penalty not to exceed two hundred thousand dollars ($200,000) for each violation for each day that the violation persists. However, the maximum civil penalty shall not exceed two million dollars ($2,000,000) for any related series of violations.
(b) Any civil penalty may be compromised by the commission. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of the penalty to the size of the business of the person charged, the gravity of the violation, and the good faith of the person charged in attempting to achieve compliance, after notification of a violation, shall be considered. The amount of the penalty, when finally determined, or the amount agreed upon in compromise, may be deducted from any sums owing by the State of Alabama to the person charged, or may be recovered in a civil action brought by the commission in the circuit court of any county in which a violation exists.
(Acts 1969, Ex. Sess., No. 204, p. 273, §7; Acts 1990, No. 90-568, p. 965, §1; Act 2015-452, §1.)
(a) Any gas system operated by any investor-owned company, city, county, municipality, or public gas district which comes under the supervision of the commission for the purpose of enforcing the gas pipeline safety requirements of this article, shall pay annually on October first of each year an inspection fee to the commission of $.50 per active service line for the previous calendar year ending December 31, for each active service line in said system.
(b) Any investor-owned company, partnership, public housing authority or public entity created by Act of Congress or state legislature that uses a master meter for one or more units, shall pay the inspection fee based upon the number of all units on premises served by said master meter.
(c) All provisions of this section are applicable to any and all liquefied petroleum gas installations that come under the enforcement provisions of the commission.
(d) All said inspection fees collected under this provision shall be paid into a fund to be known as the “gas pipeline safety fund” and shall be kept separate and apart from all other funds by the commission.
(e) Payment of gas pipeline safety inspection fees provided for under this section shall in all respects be governed by the provisions of Section 37-4-23 and Section 37-4-24.
(f) In the event said “gas pipeline safety fund” accumulates by September 30 in any year to an amount equal to 110 percent of the amount budgeted in that current fiscal year for the purpose of enforcing the gas pipeline safety requirements of this article, the commission shall suspend the collection of said inspection fees for one year.
(g) Upon July 25, 1983, the additional revenue generated herein shall be over and above the appropriation of the commission for fiscal year 1983-84.
(Acts 1983, No. 83-588, p. 920; Acts 1984, No. 84-259, p. 431, §1.)
For the purposes of this article the following words and terms shall have the following meanings unless a different meaning is expressly stated or clearly indicated by the context:
(1) PERSON. Any individual, firm, joint venture, partnership, corporation, association, or joint stock association and includes any trustee, receiver, assignee, or personal representative thereof engaged in the transportation of hazardous liquids.
(2) HAZARDOUS LIQUID:
a. Petroleum, petroleum products; or anhydrous ammonia.
b. Any substance or material which is in liquid state, including liquified natural gas (LNG), when transported by pipeline facilities and which may pose an unreasonable risk to life or property when transported by pipeline facilities;
(3) TRANSPORTATION OF HAZARDOUS LIQUIDS. The movement of hazardous liquids by intrastate pipeline, or their storage incidental to such movement, except that it shall not include: any such movement through gathering lines in rural locations, coastal waters, or onshore production; refining or manufacturing, cleansing and processing facilities, not including LNG facilities; or storage or in-plant piping systems associated with any such facilities;
(4) FACILITIES. Includes, without limitation, new and existing pipe, right-of-way, any equipment, facility, or building used or intended for use in the transportation of hazardous liquids, and any facility used in the liquification of natural gas, but “rights-of-way” as used in this title does not authorize the commission to prescribe the location or the routing of any pipeline facility;
(5) COMMISSION. The Alabama Public Service Commission;
(6) FEDERAL SAFETY STANDARDS. The minimum standards of safety adopted by the United States Department of Transportation pursuant to the Natural Gas Pipeline Safety Act of 1968 and the Hazardous Liquid Pipeline Safety Act of 1979 (P.L. 96-129) (Title 49 C.F.R., Parts 191-195) or any amendments thereto, and any rules and regulations promulgated by any regulatory agency of the United States having jurisdiction thereof.
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §1.)
All facilities used in this state for the transportation of hazardous liquids and the liquification of natural gas shall be constructed, operated and maintained in such safe manner as at all times to be in compliance with the defined federal minimum standards.
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §2.)
The commission shall have the right, power and authority: to provide and make certification, reports and information to the Secretary of the United States Department of Transportation; to enter into agreements with said secretary to carry out the purposes of this article; to enforce federal safety standards in the State of Alabama in lieu of enforcement by the said department of transportation as permitted in the Natural Gas Pipeline Safety Act of 1968 and the Hazardous Liquid Pipeline Safety Act of 1979 (P.L. 96-129); and to exercise regulatory jurisdiction over the safety of pipeline facilities and the transportation of hazardous liquids as permitted by the Natural Gas Pipeline Safety Act of 1968 and the Hazardous Liquid Pipeline Safety Act of 1979 (P.L. 96-129).
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §3.)
In order to determine whether or not each such pipeline facility is operating in compliance with the required safety standards and to enforce such compliance, the Alabama Public Service Commission shall have the right, power and authority to promulgate reasonable rules and regulations to facilitate such purposes. It may require each such pipeline system to make, maintain and file such books, papers, records and documents as the commission may deem necessary, which books, papers, records and documents shall be made available to members of the commission and their employees upon request. Authorized personnel of the commission shall be authorized to inspect all such pipeline facilities, systems, and equipment and shall have the right of access and entry to all buildings and property owned, leased or operated by such systems.
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §4.)
Upon petition of the commission, the circuit court in any county in which a violation of this article exists shall have jurisdiction to restrain such violations and to enforce compliance with the safety standards herein required.
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §5.)
The Alabama Public Service Commission shall be authorized to employ, subject to the provisions of the Merit System Act, such inspectors or other qualified employees as may be necessary to carry out the provisions of this article.
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §6.)
(a) Any person who violates any provision of this article or any regulation issued hereunder shall be subject to a civil penalty not to exceed two hundred thousand dollars ($200,000) for each violation for each day that the violation persists. However, the maximum civil penalty shall not exceed two million dollars ($2,000,000) for any related series of violations.
(b) In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the person charged, the gravity of the violation, and the good faith of the person charged in attempting to achieve compliance, after notification of a violation, shall be considered. The amount of the penalty, when finally determined, or the amount agreed upon in compromise, may be deducted from any sums owing by the State of Alabama to the person charged, or may be recovered in a civil action brought by the commission in the circuit court of any county in which a violation exists.
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §7; Acts 1990, No. 90-568, p. 965, §1; Act 2015-452, §1.)
Nothing in this article shall be deemed to confer upon the commission any additional power or jurisdiction to supervise or regulate the rates, services, franchises, or other matters pertaining to pipeline facilities or transportation of hazardous liquids except with respect to the enforcement of federal safety standards prescribed by the Secretary of the United States Department of Transportation.
(Acts 1988, 1st Ex. Sess., No. 88-915, p. 508, §8.)
This article shall be known, and may be cited, as the “Alabama Radio Utility Act.”
(Acts 1971, No. 1595, p. 2733, §1.)
The following words, when used in this article, shall have the following meanings, unless otherwise clearly apparent from the context:
(1) COMMISSION. The Public Service Commission of Alabama.
(2) PERSON. Such term shall include any individual, partnerships, corporations, companies, associations, administrators, executors, trustees and receivers appointed by any court whatsoever.
(3) RADIO UTILITY. Any person or organization which owns, controls, operates or manages a radio utility system; except, that such definition shall not include a telephone utility or telegraph utility regulated by the commission.
(4) RADIO UTILITY SYSTEM. A system employing any facility within this state to offer a radio service on a for-hire basis to the members of the public who subscribe to such service, and which is operated under such circumstances as would require a license by the Federal Communications Commission as a miscellaneous common carrier in the domestic land mobile radio services.
(5) FACILITY. Such term shall include all real property, stations, antennae, radios, receivers, transmitters, instruments, appliances, fixtures and other personal property used by a radio utility in providing service to its subscribers.
(Acts 1971, No. 1595, p. 2733, §2.)
No person shall begin or continue the construction or operation of any radio utility system, or any geographical extension thereof, or acquire ownership or control thereof either directly or indirectly without first obtaining from the public service commission a certificate that the present or future public convenience and necessity requires or will require such construction, operation, geographical extension or acquisition. The commission is authorized to prescribe appropriate and reasonable rules and regulations governing the issuance of such certificates and is authorized to prescribe the appropriate form of applications for such certificates.
(Acts 1971, No. 1595, p. 2733, §3.)
(a) Upon the filing of an application for such certificate, the commission shall fix the time and place for a hearing thereon and shall cause notice thereof to be given to such parties in interest as the commission may deem necessary. In the event the applicant proposes to interconnect its radio utility system with the communication system of an existing landline telephone or telegraph company, then notice of such hearing and a copy of said application shall be served upon said telephone or telegraph utility. The commission shall also cause notice of the application to be published once at least 14 days prior to the hearing in some newspaper of general circulation in the affected territory.
(b) After such hearing, the commission may issue to the applicant a certificate of public convenience and necessity in a form to be prescribed by it or may refuse to issue the same or may issue it for only partial exercise of the privilege sought, or may attach to the exercise of the right granted by the certificate such terms, limitations and conditions which it deems the public interest may require. The certificate shall include a copy of a service area map clearly showing the territory in which the radio utility system is to be constructed, extended, operated or acquired.
(c) In determining whether a certificate shall be issued, the commission shall take into consideration, among other things, the public need for the proposed service or acquisition, the suitability of the applicant, the financial responsibility of the applicant, and the ability of the applicant to perform efficiently the service for which authority is requested.
(Acts 1971, No. 1595, p. 2733, §4.)
Any person who, on September 28, 1971, either is engaged in the construction or operation of any radio utility system licensed by the Federal Communications Commission, or who holds a valid existing certificate previously issued by the commission to provide interconnected radio utility service, shall receive a certificate of public convenience and necessity from the commission authorizing such person to continue construction or operation of such radio utility system and to provide radio utility service in the territory served by such person on September 28, 1971, if, within 90 days thereafter, such person shall file with the commission an application in the form prescribed by the commission for such certificate, including copies of the license or licenses issued by the Federal Communications Commission to such person, and including copies of maps showing the area served by such person. The construction or operation of such radio utility system or the providing of such radio utility service may be lawfully continued pending the filing of such an application and the determination of same unless the commission shall, for cause, order otherwise.
(Acts 1971, No. 1595, p. 2733, §5.)
No such certificate of public convenience and necessity may be transferred, assigned or encumbered unless such transaction is first approved, after hearing, by the commission.
(Acts 1971, No. 1595, p. 2733, §6.)
No radio utility shall combine, merge or consolidate with, or acquire control of, another organization without first obtaining the approval of the commission, which shall be granted only after hearing and finding that such proposed combination, merger, consolidation or acquisition is in the public interest.
(Acts 1971, No. 1595, p. 2733, §7.)
The commission may, after affording the holder an opportunity to be heard, revoke, suspend or alter any such certificate of public convenience and necessity for the willful violation of any provision of this article or the rules and regulations or orders of the commission made under the authority of this article, or for other reasonable cause.
(Acts 1971, No. 1595, p. 2733, §8.)
(a) The commission shall have the power and jurisdiction to supervise and regulate every radio utility operating within this state and its property, property rights, equipment, facilities, contracts, certificates and franchises so far as may be necessary to carry out the purposes of this article, and to do all things, whether specifically designated in this article or in addition thereto, which are necessary or convenient in the exercise of such power and jurisdiction. Without limiting the generality of the foregoing, the commission is authorized to adopt and enforce such reasonable rules and regulations and orders as it may deem necessary with respect to rates, charges and classifications, issuance of certificates, territory of operation, abandonment or suspension of service, adequacy of service, prevention or elimination of unjust discrimination between subscribers, financial responsibility, records, reports, safety of operation and equipment and to otherwise accomplish the purposes of this article and to implement its provisions.
(b) The commission may, after affording an opportunity for hearing, order a radio utility to make any reasonable repair or improvement of or addition to such system.
(c) The commission shall from time to time visit the places of business and other premises and examine the records and facilities of all radio utilities to ascertain if all rules and regulations and orders of the commission have been complied with, and shall have the power to examine all officers, agents and employees of such radio utilities, and all other persons, under oath, and to compel the production of papers and the attendance of witnesses to obtain the information necessary for administering the provisions of this article.
(d) The commission shall have the power and authority to institute all proceedings and investigations, hear all complaints, issue all process and orders and render all decisions necessary to enforce the provisions of this article or of the rules, regulations and orders adopted thereunder, or to otherwise accomplish the purposes of this article.
(e) The commission shall have the right to institute, or to intervene as a party in, any action in any court of competent jurisdiction seeking mandamus, injunctive or other relief to compel compliance with any provision of this article or of any rule, regulation or order adopted thereunder, or to restrain or otherwise prevent or prohibit any illegal or unauthorized conduct in connection therewith.
(Acts 1971, No. 1595, p. 2733, §9.)
The commission shall prescribe just and reasonable rates, charges and classifications for the services rendered by a radio utility to subscribers, and the tariffs therefor shall be in such form and shall be filed and published in such manner and on such notice as the commission may prescribe, and shall be subject to change on such notice and in such manner as the commission may prescribe.
(Acts 1971, No. 1595, p. 2733, §10.)
Except as provided in Section 37-4-104, the commission shall not grant a certificate for a proposed radio utility operation, or extension thereof, into an established service area, which will be in competition with, or duplication of the service of, any other radio utility unless the commission shall first determine that the existing certificated radio utility is:
(1) Unwilling or unable to meet the reasonable needs of the public, and
(2) That the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonably adequate service.
(Acts 1971, No. 1595, p. 2733, §11.)
The provisions of this article relate only to “radio utilities” as defined in this article and shall not apply to mobile radio telephone service offered by landline telephone or telegraph utilities regulated by the commission.
(Acts 1971, No. 1595, p. 2733, §12.)
Each radio utility holding a certificate from the commission may interconnect its facilities with the communication facilities of any other regulated communication company operating in the area in which the radio utility is located, provided an agreement can be reached between the radio utility and the communication company providing for such interconnection; provided further, that when an agreement cannot be reached between the radio utility and the communication company, either may petition the commission for the right of interconnection, and such interconnection shall be ordered by the commission on such reasonable terms as shall be set by the commission.
(Acts 1971, No. 1595, p. 2733, §13.)
Any radio utility operating a radio system under authority of a certificate of public convenience and necessity issued by the Alabama Public Service Commission shall, where necessary and upon making due compensation, have the right to construct, maintain and operate antennas and towers, for the purpose of broadcasting and receiving radio signals, upon any private lands or property, and to that end, may have and exercise the right of eminent domain; provided, that the antenna equipment be so erected, placed and maintained as not to obstruct or interfere with the ordinary use of such land or property, or with the convenience of any land or property owners, more than may be avoidable; provided further, that where it is necessary for such radio utilities to exercise the right of eminent domain, they shall proceed to exercise the same in the same manner as provided by law for the exercise of such right of eminent domain by other regulated public utilities. This section shall not authorize a radio utility to exercise the right of eminent domain in regard to the lands or property of any other regulated public utility.
(Acts 1971, No. 1595, p. 2733, §14.)
From any final action or order of the commission in the exercise of the jurisdiction, power and authority conferred upon it by this article, an appeal shall lie to the Circuit Court of Montgomery County, and thence to the Supreme Court of Alabama. All appeals to the Circuit Court of Montgomery County shall be taken within 30 days from the date of such action or order and shall be granted as a matter of right and be deemed perfected by filing with the Public Service Commission a bond for security of cost of said appeal; except, that when the appellant is the State of Alabama, no bond shall be required and the same shall be deemed perfected by filing notice of an appeal. Appeals to the supreme court shall be taken in accordance with the Alabama Rules of Appellate Procedure.
(Acts 1971, No. 1595, p. 2733, §15.)
(a) Any person or the officer, agent or employee of any organization who willfully violates any provision of this article or of any rule, regulation or order adopted thereunder, or who willfully procures, aids or abets any violation of such a provision, shall be guilty of a misdemeanor.
(b) Any person who offers radio service on a for-hire basis to the public in this state under such circumstances as would require a license by the federal communications commission as a miscellaneous common carrier in the domestic public land mobile radio service, without a certificate of public convenience and necessity, or after such certificate is cancelled, may be enjoined by the courts of this state from operating within this state, at the suit of the commission, or at the suit of a radio utility which competes with it, or of any person.
(Acts 1971, No. 1595, p. 2733, §16.)
(a) Each radio utility, as defined in this article, doing business in this state and subject to the control and jurisdiction of the commission with respect to its rates and service regulations, shall pay quarterly to the commission, beginning on November 1, 1988, and on each quarter thereafter, February 1, May 1, August 1, and November 1 of each year, a fee for the inspection and supervision of such business during the next preceding fiscal year. Such inspection and supervision fees shall be paid by such radio utilities in addition to any and all property, franchise, license, intangible and other taxes, fees and charges now or hereafter provided by law. No similar inspection and supervision fees shall be levied or assessed by any county or municipality of the state, and no part of such inspection and supervision fees shall be allowed to any county or municipality of this state. Such inspection and supervision fees shall be measured by the amount of the gross receipts of each such utility derived from the sale of air time for the fiscal year next preceding the dates herein fixed for the payment of the same, except that in case of such utilities engaged in interstate business the fee shall be measured by the gross receipts of such utilities from intrastate business only, for such preceding fiscal year, and not in any respect upon receipts derived wholly or in part from interstate business. Such fees shall be ascertained as follows: a fee of $2.85 per $1,000.00 for the first $100,000.00 or less of such gross receipts; a fee of $2.35 per $1,000.00 for each additional $1,000.00 of such gross receipts up to and including $1,000,000.00 thereof; and a fee of $1.85 per $1,000.00 for each additional $1,000.00 of such gross receipts over $1,000,000.00 thereof; but in no case shall said fee be less than $50.00, which shall be the minimum inspection and supervision fee to be paid by any radio utility, and this amount shall in any event be paid over on a quarterly basis beginning November 1, 1988, at which time the first amount due based upon the remainder of the fiscal year January 1, 1988, through September 30, 1988, is to be paid, and then to be paid on each quarter thereafter on February 1, May 1, August 1, and every year thereafter to be paid over on November 1, February 1, May 1, and August 1 for the preceding fiscal year. The commission shall keep a true record of all such amounts so paid to it, but said amounts when received by the commission shall be promptly paid over to the treasurer and shall be held in the commission’s operating fund, and shall be paid out by the treasurer in payment of expenses incurred by the commission under this title, upon warrants drawn by the comptroller on the treasurer, and approved by said commission or a majority thereof. Subject to the provisions of the merit system, the commission shall have power to employ such assistants as may be found necessary to aid the commission in such regulation, and to make payment for any necessary traveling or incidental expenses incurred in connection with such regulation, which shall be paid out of said fund as aforesaid, so far as it may be available.
(b) Supervision and inspection fees provided for in this chapter shall be in default on or after the dates herein prescribed of each year, if not paid prior to that date. Any radio utility failing, in whole or in part, to pay any supervision or inspection fee, or part thereof, due by it within the time prescribed in this section for the payment of the same, shall be in default, and shall be liable to a penalty of not exceeding $5.00 per day, to be recovered by suit of the state, for every day it thereafter remains in default, and such penalty may be recovered together with the supervision and inspection fee, in default, in a single action. And the state shall have a lien upon all the property in this state of any radio utility for the payment of the supervision and inspection fees provided by this article, to be paid, and the penalties in this section provided for, which lien shall be superior to all other liens, except the lien for state, county and municipal taxes.
(c) Any radio utility may, at its own election, pay over the total fee due for the preceding fiscal year on November 1 of each year, such payment to be governed by the provisions of subsection (b).
(Acts 1971, No. 1595, p. 2733, §17; Acts 1989, No. 89-943, p. 1852, §3; Acts 1991, No. 91-586, p. 1075, §1.)
For all the purposes of this article, the commission may, in its discretion, deem and treat any radio utility, the property of which is operated in connection with or as a part of a general system of any other radio utility and all of the capital stock of which or substantially all of the capital stock of which is owned or controlled by such other radio utility, or by any person or persons who own or control all of the capital stock or substantially all of the capital stock of such other radio utility, as a part of or consolidated with such owning or controlling radio utility or such other radio utility whose stock is so owned or controlled.
(Acts 1971, No. 1595, p. 2733, §17.)
Every electric public utility corporation organized under the laws of this state, and every such corporation organized under the laws of any other state of the United States and which has complied with the constitution and laws of this state as to foreign corporations, may in addition to its other rights and powers acquire by condemnation ways and rights-of-way or easements, without limitation as to width, on, over, under or across the lands or easements of others, on, over, under or across which it may erect, construct, operate and maintain transmission and distribution lines for the transmission, distribution, supply and sale of electric power. Such corporation shall have the right and authority to clear and remove from such lands, rights-of-way or easements all timber and other growth, and the right and authority to remove outside of such lands, rights-of-way or easements such timber as may injure or endanger by shading, falling or otherwise, any of its lines or works, and for that purpose may acquire such timber and other growth by condemnation. Such corporation may acquire by condemnation lands, on or under which it may erect, construct, operate and maintain steam or other electric generating plants and substations for the manufacture, distribution and supply of electric power to the public. Such corporation may condemn any dwelling house, garden, stable, lot or barn, or any yard or curtilage of any dwelling house, or so much of such yard or curtilage as may be necessary, for any of the purposes enumerated in this article.
(Acts 1953, No. 434, p. 540, §1.)
The procedure for condemnation under Section 37-4-130 shall be in the manner provided for the condemnation of lands and rights-of-way or easements for public use in Chapter 1A of Title 18; or, at the option of the condemning party, in the manner provided in any other statute conferring the power of eminent domain on public utility corporations.
(Acts 1953, No. 434, p. 540, §2.)
(a) For purposes of this section only, the following terms shall have the following meanings:
(1) AVOIDED COSTS. Costs that a utility or a commission non-jurisdictional electric supplier which purchases electrical energy from a distributed generation facility would have been required to incur but for the distributed generation facility’s provision of electrical energy during the same period of time. To the extent such costs are actually avoided, the term may include incremental fuel costs, incremental energy losses, incremental emission allowance costs, and incremental fuel-related operation and maintenance expenses. The term does not include, among other things, costs associated with capacity, the transmission and distribution system, administrative and general costs, customer accounting costs, and general plant in service costs.
(2) COMMISSION. The Alabama Public Service Commission.
(3) COMMISSION NON-JURISDICTIONAL ELECTRIC SUPPLIER.
a. A municipality that owns or operates an electric system.
b. Any public corporation, cooperative corporation, membership corporation, agency, authority, board, or other entity or body which is engaged in the business of selling electricity to its members at wholesale, or purchasing electricity from, or distributing or selling electricity to, retail electric consumers in the state, which is not subject to the jurisdiction of the commission, and which is organized and existing pursuant to the provisions of any of the following:
A local act providing that the governing body of the entity is to be appointed by the governing body of a municipality and is authorized to furnish electricity to the public in the municipality or in the municipality and the surrounding territory.
Article 9 of Chapter 50 of Title 11.
Chapter 50A of Title 11.
Article 15 of Chapter 50 of Title 11.
Article 16 of Chapter 50 of Title 11.
Chapter 5 of Title 37.
Chapter 6 of Title 37.
Chapter 7 of Title 37.
Chapter 7 of Title 39.
(4) DISTRIBUTED GENERATION FACILITY. A facility owned and operated by a customer of the utility or a commission non-jurisdictional electric supplier for the production of electrical energy that is located on the customer’s premises, that may transmit electrical energy to distribution facilities at any time, that has a peak generating capacity of not more than 100 kW, and that is intended primarily to offset part or all of the customer’s requirements for electricity.
(5) RENEWABLE ENERGY RESOURCE. The meaning given in Section 40-18-1.
(6) UTILITY. A utility as defined by Section 37-4-1(7)a., that is subject to the jurisdiction of the commission.
(b)(1) The commission shall not require a utility to purchase electrical energy from any distributed generation facility at a price that exceeds the utility’s avoided costs.
(2) Notwithstanding subdivision (1), the commission may approve a utility proposal to establish a renewable energy program whereby the utility purchases energy from a distributed generation facility that generates electrical energy from a renewable energy resource.
(c) To the extent a utility purchases electrical energy from any distributed generation facility under subsection (b), all of the following requirements shall also apply:
(1) The commission shall approve the utility’s rates, fees, and charges for services to a distributed generation facility including, but not limited to, metering service, administering metering service, standby power, supplementary power, back-up power, and maintenance power. The utility shall also be allowed to recover the costs associated with interconnecting a distributed generation facility from the applicable customer. The commission may not require the utility to allocate such costs to the utility’s entire customer base. The commission shall require that a customer with a distributed generation facility pay for all such applicable costs.
(2) The commission may adopt or approve any safety, power quality, reliability, and interconnection requirements for a distributed generation facility that the commission determines are necessary to protect public safety, power quality, and system reliability.
The customer shall at all times be responsible for the proper installation, maintenance, and operation of the distributed generation facility and all related wiring, equipment, and apparatus. The utility shall have no obligation to install, maintain, operate, or inspect any electrical facilities owned or operated by the customer and shall not be liable to any person, group of persons, or legal entity for damage to or loss of property, injury, or death that arises in any way from the improper installation, maintenance, or operation of the customer’s electrical facilities or the failure of the customer to satisfy all applicable interconnection requirements.
(d)(1) A commission non-jurisdictional electric supplier shall not purchase electrical energy from any distributed generation facility at a price that exceeds the commission non-jurisdictional electric supplier’s avoided costs.
(2) Subdivision (1) shall not apply to a renewable energy program established by a commission non-jurisdictional electric supplier whereby the supplier purchases energy from a distributed generation facility that generates electrical energy from a renewable energy resource.
(3) To the extent that the governing board of a commission non-jurisdictional electric supplier determines that it will establish a program to purchase electrical energy from any distributed generation facility, then all of the following requirements shall also apply:
a. The governing board of a commission non-jurisdictional electric supplier shall establish rates, fees, and charges for services to a distributed generation facility including, but not limited to, metering service, administering metering service, standby power, supplementary power, back-up power, and maintenance power. The commission non-jurisdictional electric supplier shall also be allowed to recover the costs associated with interconnecting a distributed generation facility from the applicable customer. The applicable governing board may not allocate such costs to its entire customer base and shall require that a customer with a distributed generation facility pay for all such applicable costs.
b. The governing board of a commission non-jurisdictional electric supplier may adopt any safety, power quality, reliability, and interconnection requirements for a distributed generation facility that it determines are necessary to protect public safety, power quality, and system reliability.
The customer shall at all times be responsible for the proper installation, maintenance, and operation of the distributed generation facility and all related wiring, equipment, and apparatus. The commission non-jurisdictional electric supplier shall have no obligation to install, maintain, operate, or inspect any electrical facilities owned or operated by the customer and shall not be liable to any person, group of persons, or legal entity for damage to or loss of property, injury, or death that arises in any way from the improper installation, maintenance, or operation of the customer’s electrical facilities or the failure of the customer to satisfy all applicable interconnection requirements.
(4) Nothing in this section shall:
a. Subject any commission non-jurisdictional electric supplier to the jurisdiction or control of the commission.
b. Affect the authority of the governing board of each commission non-jurisdictional electric supplier to determine whether it will establish a program to purchase electrical energy from a distributed generation facility.
c. Apply to any commission non-jurisdictional electric supplier, which is a party to a wholesale power supply contract with a federal agency or instrumentality of the United States Government under which it purchases electricity for resale to its customers, in any manner which would be inconsistent with the terms and conditions of any of its contracts with said federal agency or instrumentality of the United States Government.
d. Apply to any commission non-jurisdictional electric supplier which is a party to a contract entered into pursuant to the provisions of Section 11-50A-17, in any manner that would be inconsistent with the terms and conditions of this contract.
e. Apply to any contract, agreement, or arrangement that is in existence on May 8, 2008, pursuant to which a commission non-jurisdictional electric supplier purchases or is entitled to purchase electrical energy, electrical capacity, or both, from a distributed generation facility, including without limitation, renewals and extensions of such contracts, agreements, or arrangements whether containing the same or different terms and conditions as is effect on May 8, 2008.
(Act 2008-275, p. 402, §3.)
(a) This section shall be known and may be cited as the Energy Security Act of 2015.
(b) The Legislature hereby finds and declares that due to the economic, financial, and service impacts associated with the development of electric transmission facilities used for the furnishing of electric service to consumers in this state, it is in the public interest to provide incumbent electric suppliers the right to construct, own, operate, and maintain new transmission facilities that connect to their own electric systems. The Legislature further finds and declares that providing incumbent electric suppliers this right furthers their ability to satisfy their respective obligations to provide service to Alabama consumers. This section implements these findings.
(c) As used in this section, the following words have the following meanings:
(1) COMMISSION. The Alabama Public Service Commission.
(2) ELECTRIC TRANSMISSION FACILITY. Any transmission line, substation, equipment, or other facility at a design voltage greater than 35,000 volts.
(3) INCUMBENT ELECTRIC SUPPLIER. A utility that furnishes electric service for end-use to retail customers or non-jurisdictional electric supplier that furnishes electric service for end-use to retail customers or at wholesale for resale in Alabama.
(4) NON-JURISDICTIONAL ELECTRIC SUPPLIER. Any of the following:
a. A municipality that owns or operates an electric system.
b. Any public corporation, cooperative corporation, membership corporation, agency, authority, board, or other entity or body which is engaged in the business of selling electricity to its members at wholesale, or purchasing electricity from, or distributing or selling electricity to, retail electric consumers in the state, which is not subject to the jurisdiction of the commission and which is organized and existing pursuant to the provisions of any of the following:
A local act providing that the governing body of the entity is to be appointed by the governing body of a municipality and is authorized to furnish electricity to the public in the municipality or in the municipality and the surrounding territory.
Article 9 of Chapter 50 of Title 11.
Chapter 50A of Title 11.
Article 15 of Chapter 50 of Title 11.
Article 16 of Chapter 50 of Title 11.
Chapter 5 of this title.
Chapter 6 of this title.
Chapter 7 of this title.
Chapter 7 of Title 39.
(5) UTILITY. A utility as defined in paragraph a. of subdivision (7) of Section 37-4-1 that is subject to the jurisdiction of the commission.
(d) Subject to the requirements of applicable Alabama law, an incumbent electric supplier shall have the right to construct, own, operate, and maintain both of the following:
(1) Any new electric transmission facility in the state that would connect to its electric system.
(2) Any upgrade to any electric transmission facility that it owns in this state.
(e) The right to construct, own, operate, and maintain a new electric transmission facility that would connect to the electric systems of two or more incumbent electric suppliers belongs individually and proportionally to each such incumbent electric supplier whose electric system would connect to the new electric transmission facility, subject to any existing written agreement between the incumbent electric suppliers respecting the facilities, unless otherwise agreed upon in writing.
(f) In recognition of the duty of a utility established in Section 37-1-49 to maintain its plant, facilities, and equipment in good operating condition, to render adequate service to the public, and to make such reasonable improvements, extensions, and enlargements of its plants, facilities, and equipment as may be necessary to meet the growth and demand of the territory which it is under the duty to serve, a utility may not waive its right to construct, own, operate, and maintain any new electric transmission facility in the state that would connect to its electric system such that an entity who is not an incumbent electric supplier would have that right unless the utility has first applied to and received an order from the commission authorizing the waiver.
(g) In the event of a dispute between incumbent electric suppliers concerning the right described in subsection (d) or (e), an incumbent electric supplier may petition the circuit court for the judicial circuit in which all or any portion of the electric transmission facility would be located to determine matters that are in dispute.
(h) Nothing in this section shall do any of the following:
(1) Subject any non-jurisdictional electric supplier to the jurisdiction or control of the commission.
(2) Affect the right and power of any non-jurisdictional electric supplier to construct, own, operate, and maintain an electric transmission facility except as specifically provided herein, or the authority of the governing body thereof to determine whether to do so.
(3) Apply to any electric transmission facility to be constructed, owned, operated, and maintained by a nonutility as defined by subdivision (5) of Section 37-4-1.
(Act 2015-120, p. 335, §§1-3; Act 2019-356, §1.)
For the purposes of this article the following terms have the following meanings:
(1) AFFILIATED SYSTEM. A sewer or wastewater system that is both under common ownership or control with a regulated sewer or wastewater entity and not subject to the jurisdiction of the Public Service Commission as of October 1, 2025.
(2) COMMON OWNERSHIP or CONTROL. Ownership, directly or through one or more affiliates, of 50 percent or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or 50 percent or more of the voting equity interests in the case of any other type of legal entity, or status as a general partner in any partnership, or any other arrangement whereby an entity controls or has the right to control the selection of 50 percent or more of the board of directors, managing members, or equivalent governing body of a legal entity. An “affiliate” under the preceding sentence means any corporation, limited liability company, partnership, or other legal entity that directly or indirectly controls or is controlled by or is under common control with such entity.
(3) REGULATED SEWER OR WASTEWATER ENTITY. A privately owned sewer or wastewater management entity subject to the rate jurisdiction of the Public Service Commission as of October 1, 2025. The term includes, but is not limited to, any of the following:
a. A privately owned and operated wastewater system, as defined in Section 22–25B–1, that is required by Chapter 25B, Title 22, to be operated and maintained by a wastewater management entity certified by the Public Service Commission.
b. Any system subject to the jurisdiction of the Public Service Commission pursuant to Shelby County, Section 58-11.21(b) of the Constitution of Alabama of 2022.
(Act 2025-106, §1.)
(a) An affiliated system may elect to become subject to the regulatory jurisdiction of the Public Service Commission by filing a notice with the commission.
(b) The Public Service Commission shall certify and regulate an affiliated system making an election under this section in accordance with this title, and in arriving at a valuation of the property of an affiliated system, the Public Service Commission shall give due consideration to the private utility’s property, original cost to the affiliated system, cost of reproduction as a going concern when original cost is not available, and other elements of value recognized by law for rate-making purposes as outlined in Section 37-4-17.
(c) An affiliated system making an election under this section shall continue to charge the rates in effect at the time of election, and which rates shall continue in force and effect until the rates established by the Public Service Commission are finalized and effective.
(d) In establishing prospective rates and rate structures for an affiliated system, the Public Service Commission shall consider both the affiliated system and regulated systems’ capital expenditures and operating expenses together as a whole to determine a single rate structure and rate amounts for all customers of the combined entity, except to the extent the commission finds adjustments are necessary due to pre-existing obligations or other circumstances unique to a particular area served.
(Act 2025-106, §2.)
An affiliated system making an election under Section 37-4-161 shall be subject to the fees established by the Public Service Commission for wastewater management entities under Section 22–25B–7.
(Act 2025-106, §3.)
(a) Nothing in this article shall infringe upon or replace the authority granted to the Jefferson County Board of Health pursuant to Act No. 659 (1978).
(b) This article shall not apply in any county that has a local constitutional amendment authorizing the regulation of wastewater utilities, except to the extent this article would be permitted under such constitutional amendment.
(c) Except as specifically provided, this article is supplemental to all other laws and administrative rules and is not intended to repeal or replace any existing statute except to the extent that there is a direct conflict. In such case, this article shall control.
(Act 2025-106, §4.)
Unless the context otherwise requires, the following terms, when used in this chapter, shall have the meanings respectively ascribed to them by this section:
(1) MUNICIPAL POWER DISTRICT, POWER DISTRICT or DISTRICT. A municipal power district organized under this chapter, either as originally organized or as the same may be from time to time altered or amended.
(2) MUNICIPALITY. Any city or town.
(3) GOVERNING BODY. Whenever used in relation to any municipality, the body or board, by whatsoever name known, having charge of the governing of a municipality and shall be held to include the mayor or other chief executive officers of such municipality in any case wherein the concurrence or approval of such officer is required by the law governing such municipality for the adoption of any municipal ordinance or resolution or other municipal act provided for in this chapter.
(4) BOARD OF DIRECTORS, DIRECTORS or BOARD. The board of directors of a municipal power district selected as provided in this chapter, duly constituted, organized and acting as a board.
(5) COMMISSION. The Public Service Commission of the State of Alabama.
(6) PUBLIC UTILITY or UTILITY. The plant, works, system facilities or properties together with all parts thereof and appurtenances thereto, including contract rights, used and useful primarily for the production, transmission or distribution of electric energy to or for the public for any purpose.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §1.)
A municipal power district may be created as provided in this chapter and, when so created, shall be considered a municipal corporation and may exercise the powers granted in this chapter. The governing body of every municipality proposed to be included in a district shall pass a resolution declaring that the public interest or necessity demands the creation and maintenance of a municipal power district, describing the territory to be included in the proposed district, and file a certified copy thereof in duplicate with the commission. Upon receipt of the resolutions, the commission shall make an investigation of the propriety of creating the proposed district, of the character of utility feasible and economically desirable for the district and of the territory to be served. After investigation, the commission shall issue an order approving or disapproving the creation of the district and, if it approves, determining the character of utility appropriate to the district. If the commission finds that the public convenience and necessity requires the creation of a power district and that the creation of a power district is economically sound and desirable, it shall enter an order so finding, approving the creation of the district and defining its territorial limits, a certified copy of which order the commission shall file with the Secretary of State. Thereupon the district shall be and constitute a municipal corporation as provided in this chapter. Whenever the commission shall after hearing determine that it is in the public interest and in the interest of efficient and economical operation of a utility to alter the territorial limits of a district, it shall so order and file a certified copy of such order with the Secretary of State. Thereupon the territorial limits of the district shall be considered altered in accordance with such order. Two or more districts may be consolidated by a determination of the board of each district, fixing the terms and conditions of such consolidation. Certified copies of such determination shall be filed with the commission. If the commission finds that such consolidation is in the public interest and in the interest of efficient and economical utility service, it shall approve such consolidation and file a certified copy of the order approving the same with the Secretary of State. Thereupon the consolidation shall be effective to create a single district. Preexisting rights and liabilities shall not be affected by such consolidation. Whenever the commission shall determine that the continued existence of the district is not in the public interest and is not in the interest of efficient and economical utility service, it shall make an order to such effect and file a certified copy of such order with the Secretary of State, whereupon the district shall cease to continue as a body corporate for the purpose of doing business, but shall continue as such for such period as the commission may determine to settle the business of the district, wind up its affairs, dispose of its assets and settle its obligations, and for no other purpose. Under such circumstances the directors shall have the powers of receivers, subject to the supervisory control of the commission, to determine what is in the best interests of creditors and the users of the service of the district. In the event of dissolution, the assets of the district and the proceeds thereof shall be used first to pay the expenses of settling the affairs of the district, then the creditors in the order of their priority, and any surplus remaining shall be divided among and paid to the municipalities in the district in proportion to the gross operating revenues of the district for the last five years of its operation derived from payment for services furnished within the territorial limits of each municipality.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §2.)
A district shall be created for the purpose of conducting and operating a utility and, to carry out such purpose, shall have power and authority to acquire, construct, reconstruct, operate, maintain, extend or improve any utility within or without the district and to furnish, deliver and sell to the public and to any municipality and to the state and any public institution heat, light and power service and any other service, commodity or facility which may be produced or furnished in connection therewith. For said purposes the district is granted and shall have and exercise the right freely to use and occupy any public highway, street, way or place reasonably necessary to be used or occupied for the maintenance and operation of such utility or any part thereof, subject to such local regulations as may be imposed in connection therewith by any regulations of the governing body of the municipality in which such highway, street, way or place is located. Any district created pursuant to the provisions of this chapter shall be vested with all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature. No enumeration of particular powers created in this chapter shall be construed to impair or limit any general grant of power contained in this chapter nor to limit any such grant to a power or powers of the same class or classes as those enumerated. The district is empowered to do all acts necessary, proper or convenient in the exercise of the powers granted under this chapter. Any district created pursuant to this statute shall have the power:
(1) To sue and be sued.
(2) To have a seal.
(3) To acquire by purchase, gift, devise, lease or exercise of the power of eminent domain or other mode of acquisition, hold and dispose of real and personal property of every kind within or without the district, subject to mortgages or any other liens.
(4) To make and enter into contracts, conveyances, mortgages, deeds of trust, bonds or leases.
(5) To incur debts, to borrow money, to issue negotiable bonds and to provide for the rights of holders thereof.
(6) To fix, maintain and collect rates and charges for any service.
(7) To pledge all or any part of its revenues.
(8) To make such covenants in connection with the issuance of bonds or to secure the payment of bonds that a private business corporation can make under the general laws of the state, notwithstanding that such covenants may operate as limitations on the exercise of any power granted by this section.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §3.)
The government of the district shall be vested in a board of three directors, to be appointed by the Governor within 10 days after the creation and incorporation of the district. The regular term of directors of the district after the first term shall be four years. Each director shall hold office until his successor is selected and qualified. Each director shall, before entering upon discharge of his duties, take and subscribe to the constitutional oath of office. Such oath shall be filed with the commission. The first directors of the district shall be selected for terms of two, three and four years, respectively. The death of a director, his resignation, his removal for cause by the appointing power, or his disability to continue for any cause to act as director, or his change of residence from the district shall vacate the office. Within 20 days after a determination of the vacancy by the appointing power, a successor for the unexpired term shall be selected by such appointing power. Each director of the district shall receive compensation from the district for his services as such at the rate of $10.00 for each day he shall attend meetings of the board or when he is engaged upon business of the board, not to exceed the sum of $1,000.00 in any one year. He shall also be entitled to be reimbursed for actual and necessary expenses incurred by him in the performance of his duties required of him by law or by resolution or vote of the board.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §4.)
The board of directors of any district shall have power and authority:
(1) To exercise by vote, ordinance or resolution all of the general powers of the district.
(2) To make all needful rules, regulations and bylaws for the management and the conduct of the affairs of the district and of the board.
(3) To adopt a seal for the district, prescribe the style thereof and alter the same at pleasure.
(4) To lease, purchase, sell, convey and mortgage the property of the district and to execute all instruments, contracts, mortgages, deeds or bonds on behalf of the district in such manner as the board shall direct.
(5) To inquire into any matter relating to the affairs of the district, to compel by subpoena the attendance of witnesses and the production of books and papers material to any such inquiry, to administer oaths to witnesses and to examine such witnesses.
(6) To appoint and fix the salaries and duties of such officer, experts, agents and employees as it deems necessary, to hold office during the pleasure of the board and upon such terms and conditions as the board may require.
(7) To do all things necessary or convenient to carry out its functions.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §5.)
Each district shall have power and is authorized from time to time to issue its negotiable bonds in anticipation of the revenues from an enterprise. Said bonds may be issued for any corporate purpose or purposes of such district. Said bonds shall be authorized by resolution of the board of such district and may be issued in one or more series, may bear such date or dates, mature at such time or times not exceeding 40 years from their respective dates, bear interest at such rate or rates, not exceeding six percent per annum, payable semiannually, be in such denominations, be in such form, either coupon or registered, be executed in such manner, be payable in such medium of payment, at such place or places and be subject to such terms of redemption, with or without premium, be declared or become due before the maturity date thereof, as such resolution or resolutions may provide. Said bonds may be issued for money or property (at public or private sale for such price or prices) as the board shall determine, provided that the interest cost to maturity of the money or property (at its value as determined by such board, the determination of which shall be conclusive) received for any issue of said bonds shall not exceed six percent per annum, payable semiannually. Said bonds may be repurchased by the district out of any funds available for such purpose at a price not more than the principal amount thereof and accrued interest, and all bonds so repurchased shall be cancelled. Pending the preparation or execution of definitive bonds, interim receipts or certificates or temporary bonds may be delivered to the purchaser of said bonds.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §6.)
No bonds or other evidence of indebtedness of a district created under this chapter shall be issued or sold until consent to the issuance and sale thereof shall have been given by the Department of Finance. Such consent shall be granted only after a public hearing and after a petition requesting such consent has been duly filed by such district with the director of the Department of Finance more than five days before such public hearing. Such petition shall specify the plan or program of the district and the uses to which it is proposed to put the proceeds of such issue and such other matters as are necessary fully to advise said department of the nature of the corporate purpose, in furtherance of which such issue is proposed, and said petition shall include such other information as may be required by the rules of the Department of Finance. The Department of Finance shall grant such consent only after it finds that such issue or sale serves some public need and is in the public interest. It shall be unlawful for the district to use the proceeds of any such issue or sale contrary to the plan and purposes presented to the Department of Finance in obtaining its consent thereto. The district applying for such consent is authorized to pay such fees as shall be lawfully assessed against it by the Department of Finance.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §7.)
In addition to all other remedies, any holder of a bond of any district incorporated under this chapter, including a trustee for bondholders, shall have the right, subject to any contractual limitations binding upon such bondholders or trustee and subject to the prior or superior rights of others:
(1) By mandamus or other action or proceedings to enforce his rights against such district and the board of such district, including the right to require such district and such board to fix and collect rates and charges adequate to carry out any agreement as to, or pledge of, the revenues produced by such rates or charges, and to require such district and such board to carry out any other covenants and agreements with such bondholder and to perform its and their duties under this chapter.
(2) By civil action to enjoin any acts or things which may be unlawful or a violation of the rights of such bondholder.
(3) By civil action to require such authority to act as if it were the trustees of an express trust for such bondholder.
(4) By civil action or proceeding to obtain the appointment of a receiver of the enterprise in which the district is engaged or any part or parts thereof, who may enter and take possession of such utility or any part or parts thereof, including all property, land, property rights, easements and other adjuncts of the utility, and such receiver may operate and maintain the same, and collect and receive all revenues thereafter arising therefrom in the same manner as such district itself might do and shall deposit all such moneys in a separate account or accounts and apply the same in accordance with the obligations of such district as the court shall direct.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §8.)
Any municipality situated within the territorial limits of a district may advance funds to such district to pay the preliminary organization and administration expenses thereof, on such terms of repayment as the governing body of such municipality shall determine. Notwithstanding the provisions of any law to the contrary, any such municipality is authorized and empowered to borrow money for a period not to exceed one year from the date of such borrowing for the purpose of making such advances.
(Acts 1935, No. 42, p. 87; Code 1940, T. 18, §9.)
For the purposes of this chapter, the following terms shall have the meanings respectively ascribed to them by this section, unless the context otherwise requires:
(1) PERSON. Such term includes any natural person, firm, association, corporation, business trust partnership, federal agency, state, or political subdivision or agency thereof, or any body politic.
(2) MEMBER. Each incorporator of a cooperative and each person admitted to and retaining membership therein, including a husband and wife admitted to joint membership.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §31.)
Cooperative, nonprofit membership corporations may be organized under this chapter for the purpose of supplying electric energy and promoting and extending the use thereof, for the purpose of promoting and extending the use of water and water systems and sanitary sewer systems and for the purpose of providing to its members and other persons services solely for the reception of television programming through the use of television program decryption equipment and subscriber owned, leased or rented satellite dishes, but such equipment shall not be utilized for the bi-directional transmission of voice, data or other signal. A cooperative providing television reception services shall enter into pole attachment agreements with cable television companies permitting cable television companies to attach their lines to the cooperative’s poles at prevailing market rates.
Cooperatives heretofore organized under this chapter may, in addition to the purposes for which they were organized engage in any of the activities authorized or described in the preceding paragraph of this section, whether or not the bylaws of the cooperative provide for such activity.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §32; Acts 1977, No. 577, p. 764, §1; Acts 1987, No. 87-787, p. 1541, §1.)
A cooperative shall have the power:
(1) To sue and be sued in its corporate name.
(2) To adopt a corporate seal and alter the same at its pleasure.
(3) To generate, manufacture, purchase, acquire and transmit electric energy and to distribute, sell, supply and dispose of electric energy to its members, to governmental agencies and political subdivisions and to other persons; provided, however, that should a cooperative acquire any electric facilities dedicated or devoted to the public use, it may continue to serve the persons served directly from such facilities at the time of such acquisition without requiring that such persons become members, and, provided further, that such nonmembers shall have the right to become members upon nondiscriminatory terms. Cooperatives may not condition membership or provision of service on compliance by the member with requirements not directly related to the electric or other service to be provided by the cooperative.
(4) To process, treat, sell, and dispose of water and water rights and to purchase, construct, own, and operate water systems and to supply water services.
(5) To purchase, construct, own, and operate sanitary sewer systems and supply sewer services.
(6) To purchase, construct, own and operate systems and facilities for providing television reception services through the use of television program decryption equipment and subscriber owned, leased or rented satellite dishes, but such equipment shall not be utilized for the bi-directional transmission of voice, data, or other signal.
(7) To make loans to persons to whom electric energy, water, sanitary sewer or television reception services through the use of television program decryption equipment and subscriber owned, leased or rented satellite dishes is or will be supplied by the cooperative for the purpose of, and otherwise to assist such persons in, wiring their premises and installing therein electric, water, sanitary sewer and plumbing fixtures, appliances, apparatus and equipment of any and all kinds and character or to make loans to or assist such persons in constructing, maintaining and operating electric refrigeration plants, and, in connection therewith, to purchase, acquire, lease, sell, distribute, install, and repair such electric, water, sanitary sewer, plumbing, and television reception services through the use of television program decryption equipment and subscriber owned, leased or rented satellite dishes, fixtures, appliances, apparatus, and equipment and to assist in any manner members in the efficient and economical use of electric energy, water, sanitary sewer, or television reception services that are described in subsection (6) of this section. Loans made under this subsection may be made out of general funds or otherwise and such loans shall not be subject to the provisions of Chapters 18 and 19 of Title 5, or other similar legislation that may be adopted in the future.
(8) To accept, or otherwise acquire, and to sell, assign, transfer, endorse, pledge, hypothecate, and otherwise dispose of notes, bonds, and other evidences of indebtedness and any and all types of security therefor. To make loans to persons to whom electric energy, water, and sanitary sewer service is or will be supplied by the cooperative for the purpose of, and otherwise to assist such persons in constructing, maintaining, and operating electric refrigeration plants.
(9) To become a member of one or more other cooperatives and to acquire, hold and dispose of and exercise any power or right with respect thereto or with respect to the shares or other interests in, or obligations of other public or private domestic or foreign corporations, associations, partnerships or individuals whether or not such entities pursue purposes, exercise powers, or engage in activities that the cooperative is authorized to pursue, exercise, or engage in.
(10) To construct, purchase, take, receive, lease as lessee or otherwise acquire, and to own, hold, use, equip, maintain, and operate, and to sell, assign, transfer, convey, exchange, lease as lessor, mortgage, pledge, or otherwise dispose of or encumber electric transmission and distribution lines or systems, electric generating plants, electric refrigeration plants, water lines, sanitary sewer lines, water systems, and sanitary sewer systems, television reception equipment through the use of television program decryption equipment and subscriber owned, leased, or rented satellite dishes, lands, buildings, structures, dams, plants, and equipment and any and all kinds and classes of real or personal property whatsoever, which shall be deemed necessary, convenient or appropriate to accomplish the purpose for which the cooperative was organized or in which it subsequently lawfully engages.
Electric generating plants, transmission, and distribution lines or systems as referred to in this section shall include any arrangement or agreement for the purchase, exchange, or transmission of electric power, capacity or energy, whether sole or as joint owner of all or any part in common with one or more persons as agent, or as principal, and shall include ownership of an undivided interest in facilities with any other person. Any agreement with respect to such facilities may include provisions for the construction, operation, and maintenance of electric generation, distribution, or transmission facilities by any one or more of the parties to the agreement or by any other means which may be determined by the parties thereto, and may include provisions for a method or methods of determining and allocating, among or between the parties, costs of construction, operation, maintenance, renewals, replacements, improvements, retirement, and disposals with respect to the facility and the entitlement of joint owners to the production capability or utilization of the facilities including allocation of costs in the event of default on the part of one or more joint owners and the payment of all such costs as provided in the agreement. Any such agreement shall supersede any provision of law to the contrary relating to the rights of joint owners of property and relating to the use of property, title to which is held by the cooperative jointly with others and, notwithstanding anything contained in any other law to the contrary, pursuant to the terms of any agreement authorized in this subdivision, the cooperative may delegate any and all of its powers and duties with respect to the construction, operation, maintenance, renewal, replacement, improvement, retirement or disposal of electric generation, distribution or transmission facilities to the party or parties acting as agent, managing partner, managing co-owner of the party otherwise given such responsibility or authority pursuant to the agreement and all actions taken by such other party in accordance with the provisions of the agreement may be binding upon the cooperative without further action or approval by the cooperative. Such agreements may provide for purchase, acquisition, and ownership of project capability or amounts of electric capacity and energy, if any, which a project is capable of producing at any particular time (including times when the project is incomplete or not operable or not operating or the operation thereof is suspended, interrupted, interfered with, reduced, or curtailed in whole or in part for any reason whatsoever) and may provide for the payment of proportional shares of costs of the project, including debt service and deposits for reserves and contingencies as directed or established by the project manager and including increases in such payments to cover project costs upon the default of any participant and to enter into agreements requiring payments by the cooperative of an unconditional nature, irrespective of whether any electricity or other service is received in return for such payments and irrespective of whether the cooperative acquires any ownership interest in any tangible physical property.
(11) To purchase or otherwise acquire and to own, hold, use, and exercise and to sell, assign, transfer, convey, mortgage, pledge, hypothecate, or otherwise dispose of or encumber franchises, rights, privileges, licenses, rights-of-way, and easements.
(12) To borrow money and otherwise contract indebtedness and to issue notes, bonds, and other evidences of indebtedness therefor, and to secure the payment thereof by mortgage, pledge, deed of trust or any other encumbrance upon any or all of its then owned or after acquired real or personal property, assets, franchises, revenues, or income.
(13) To make any and all contracts necessary or convenient for the full purpose of the powers in this chapter granted, including, but not limited to, contracts with any person, federal agency, or municipality for the purchase or sale of electric energy, water, water and sanitary sewer services, or television reception services through the use of television program decryption equipment and subscriber owned, leased, or rented satellite dishes and in connection with any such contract to stipulate and agree to such covenants, terms and conditions as the board of trustees may deem appropriate, including covenants, terms and conditions with respect to resale rates, financial and accounting methods, services, operation and maintenance practices and, consistent with Section 37-6-20, the manner of disposing of the revenues of the properties operated and maintained by the cooperative.
(14) To construct, acquire, maintain, and operate electric transmission and distribution lines, water lines, sewer lines, and television reception systems, and equipment through the use of television program decryption equipment, and subscriber owned, leased, or rented satellite dishes along, upon, under, and across all public thoroughfares, including without limitation all roads, highways, streets, alleys, bridges, and causeways and upon, under, and across all publicly owned lands; subject only to reasonable rules and regulations as to safety that the respective authorities having jurisdiction thereof shall require.
(15) To exercise the power of eminent domain in the manner provided by the laws of this state for the exercise of that power by corporations constructing or operating electric generating, transmission, or distribution lines, or systems; and, in the construction and operation of water systems and sanitary sewer systems and television reception systems through the use of television program decryption equipment and subscriber owned, leased or rented satellite dishes, to exercise the power of eminent domain in the manner provided in Title 18.
(16)a. A cooperative shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed claim, action, suit, or proceeding, whether civil, criminal, administrative, or investigative, including appeals (other than an action by or in the right of the cooperative), by reason of the fact that he is or was a director, trustee, officer, employee, or agent of the cooperative, or is or was serving at the request of the cooperative as a director, trustee, officer, partner, employee, or agent of another cooperative, corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such claim, action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the cooperative or other entity, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any claim, action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the cooperative, and with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
b. A cooperative shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed claim, action, or suit by or in the right of the cooperative to procure a judgment in its favor by reason of the fact that he is or was a director, trustee, officer, employee, or agent of the cooperative, or is or was serving at the request of the cooperative as a director, officer, partner, employee, or agent of another cooperative, corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the cooperative or other entity and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the cooperative or other entity unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which court shall deem proper.
c. To the extent that a director, trustee, officer, employee, or agent of a cooperative or other entity has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in paragraphs a. and b. of this subdivision, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith, notwithstanding that he has not been successful on any other claim, issue, or matter in any such action, suit, or proceeding.
d. Any indemnification under paragraphs a. and b. of this subdivision (unless ordered by a court) shall be made by the cooperative only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs a. and b. of this subdivision. Such determination shall be made (i) by the board of directors or trustees by a majority vote of a quorum consisting of directors or trustees who were not parties to, or who have been wholly successful on the merits or otherwise with respect to, such claim, action, suit, or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors or trustees so directs, by independent legal counsel in a written opinion, or (iii) by the shareholders.
e. Expenses (including attorneys’ fees) incurred in defending a civil or criminal claim, action, suit, or proceeding may be paid by the cooperative in advance of the final disposition of such claim, action, suit, or proceeding as authorized in the manner provided in paragraph a. of this subdivision upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount if and to the extent that it shall be ultimately determined that he is not entitled to be indemnified by the cooperative as authorized in this section.
f. The indemnification authorized by this section shall not be deemed exclusive of and shall be in addition to any other right (whether created prior or subsequent to the enactment of this section) to which those indemnified may be entitled under any statute, rule of law, provisions of articles of incorporation, bylaw, agreement, vote of members or shareholders or disinterested directors or trustees, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
g. A cooperative shall have power to purchase and maintain insurance on behalf of any person who is or was a director, trustee, officer, employee, or agent of the cooperative, or is or was serving at the request of the cooperative as a director, trustee, officer, partner, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the cooperative would have the power to indemnify him against such liability under the provisions of this section.
(17) To conduct its business and exercise any or all of its powers within or without this state.
(18) To adopt, amend, and repeal bylaws.
(19) To provide its members and other persons services solely for the reception of television programming through the use of television program decryption equipment and subscriber owned, leased, or rented satellite dishes, but such equipment shall not be utilized for the bi-directional transmission of voice, data, or other signal.
(20) To assist any other cooperatives organized under this chapter in the execution of its purposes and powers.
(21) To apply a surcharge on its rates to those members or other consumers which it serves in a political subdivision imposing a requirement on a cooperative which necessitates the incurrence of additional costs in providing service in that political jurisdiction or a portion thereof in an amount and for a time sufficient to recover such additional costs and the carrying charges thereon.
(22) To make and enter into contracts of guaranty, including, without limitation, obligations of a generating and transmission cooperative which is the wholesale power supplier of the cooperative, whether or not the cooperative has a direct interest in the subject matter of the contract with respect to which it acts as guarantor or surety. Notwithstanding any contrary provision of Section 37-6-21, in connection with any such guaranty, without authorization of its members, to secure its guaranty obligations by executing a guarantor’s note and securing such note or its guaranty with a mortgage on all or any portion of its property, assets and the revenues and income therefrom. Such mortgage may be to the party for whose benefit the guaranty is given, to other guarantors of the debt guaranteed by the cooperative or to an agent, trustee or other representative of the holder of the guaranty or other guarantors.
(23) To do and perform any and all other acts and things and to have and exercise any and all other powers which may be necessary, convenient, or appropriate to accomplish the purposes for which the cooperative is organized or in which it subsequently lawfully engages.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §33; Acts 1977, No. 577, p. 764, §2; Acts 1987, No. 87-787, p. 1541, §2; Acts 1989, No. 89-658, p. 1303, §1; Acts 1992, No. 92-206, §1.)
The name of each cooperative primarily engaged in the distribution of electricity or other services shall include the word “cooperative”; and the name of each cooperative primarily engaged in generating or transmitting electricity for delivery to an electric distributor shall include at least one of the words “electric”, “power” or “cooperative”; provided, that such limitation shall not apply if, in an affidavit made by the president or vice president of a cooperative on file with the Secretary of State, it shall appear that the cooperative desires to transact business in another state and is precluded therefrom by reason of its name; and provided further, that any corporation heretofore or hereafter organized under Chapter 7 of this title, which may be converted into a cooperative and become subject to this chapter, as provided in Section 37-6-16, or any foreign corporation transacting business in this state pursuant to Section 37-6-26, may, at its election, retain the same corporate name which it had prior to such conversion or transaction of business. The name of a cooperative shall distinguish it from the name of any other corporation organized under the laws of, or authorized to transact business in, this state. The words “electric cooperative” or “power cooperative” shall not both be used in the name of any corporation organized under the laws of, or authorized to transact business in, this state, except a cooperative or corporation transacting business in this state pursuant to the provisions of this chapter.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §34; Acts 1987, No. 87-576, p. 920, §1.)
Five or more natural persons or two or more cooperatives may organize a cooperative in the manner provided in this article.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §35.)
The articles of incorporation of a cooperative shall recite in the caption that they are executed pursuant to this chapter, shall be signed and acknowledged by each of the incorporators, and shall state: The name of the cooperative; the address of its principal office; the names and addresses of the incorporators; the names and addresses of the persons who shall constitute its first board of trustees; and any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of its business and affairs. Such articles of incorporation shall be submitted to the Secretary of State for filing as provided in this chapter. It shall not be necessary to set forth in the articles of incorporation of a cooperative the purpose for which it is organized or any of the corporate powers vested in a cooperative under this chapter.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §36.)
A cooperative may amend its articles of incorporation by complying with the following requirements: The proposed amendment shall be first approved by the board of trustees and shall then be submitted to a vote of the members at any annual or special meeting thereof, the notice of which shall set forth the proposed amendment. The proposed amendment, with such changes as the members shall choose to make therein, shall be deemed to be approved on the affirmative vote of not less than two thirds of those members voting thereon at such meeting; and, upon such approval by the members, articles of amendment shall be executed and acknowledged on behalf of the cooperative by its president or vice-president, and its corporate seal shall be affixed thereto and attested by its secretary. The articles of amendment shall recite in the caption that they are executed pursuant to this chapter and shall state: The name of the cooperative; the address of its principal office; the date of the filing of its articles of incorporation in the Office of the Secretary of State; and the amendment to its articles of incorporation. The president or vice-president executing such articles of amendment shall also make and annex thereto an affidavit stating that the provisions of this section were duly complied with. Such articles of amendment and affidavit shall be submitted to the Secretary of State for filing as provided in this chapter. A cooperative may, without amending its articles of incorporation, upon authorization of its board of trustees, change the location of its principal office by filing a certificate of change of principal office executed and acknowledged by its president or vice-president under its seal attested by its secretary in the Office of the Secretary of State and also in each county office in which its articles of incorporation or any prior certificate of change of principal office of such cooperative has been filed. Such cooperative shall also, within 30 days after the filing of such certificate of change of principal office in any county office, file therein certified copies of its articles of incorporation and all amendments thereto, if the same are not already on file therein.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §42.)
The original bylaws of a cooperative shall be adopted by its Board of Trustees. Thereafter, bylaws shall be adopted, amended, or repealed by its members voting in person, or if the Board of Trustees has so authorized, voting by mail. The bylaws shall set forth the rights and duties of members and trustees and may contain other provisions for the regulation and management of the affairs of the cooperative not inconsistent with this chapter or with its articles of incorporation.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §37; Acts 1992, No. 92-206, §1.)
(a) No person who is not an incorporator shall become a member of a cooperative unless such person shall agree to use electric energy furnished by the cooperative when such electric energy shall be available through its facilities. The bylaws of a cooperative may provide that any person, including an incorporator, shall cease to be a member thereof if he shall fail or refuse to use or pay for electric energy made available by the cooperative or if electric energy shall not be made available to such person by the cooperative within a specified time after such person shall have become a member thereof. Membership in the cooperative shall not be transferable, except as may be provided in the bylaws. The bylaws may prescribe additional qualifications and limitations in respect of membership.
(b) An annual meeting of the members shall be held at such time as shall be provided in the bylaws. The bylaws may provide that area meetings shall take the place of a central annual meeting. If the bylaws of the cooperative provide for the utilization of area meetings, the areas shall be as prescribed in the bylaws and, if the cooperative’s bylaws provide for voting districts as permitted by Section 37-6-11, the area shall coincide with such voting districts. A central annual special meeting must be held, and area meetings shall not take the place of a central meeting, if members vote on whether to consolidate or merge the cooperative with any other entity, to dissolve or sell or lease more than 10 percent of the assets or property of the cooperative. The board of trustees shall not have authority to file any petition for bankruptcy or reorganization in any court without a vote of a majority of the members taken at a central annual or special meeting. Special meetings of the members may be called by the board of trustees, by any three trustees, by not less than 10 percent of the members or by the president. Meetings of members shall be held at such place as may be provided in the bylaws. In the absence of any such provision, all meetings shall be held in the city or town in which the principal office of the cooperative is located. Except as otherwise provided in this article, written or printed notice stating the time and place of each meeting of members and, in the case of a special meeting, the purpose or purposes for which the meeting is called shall be given to each member, either personally or by mail, not less than five nor more than 40 days before the date of the meeting. Three percent of all members present in person or, if mail voting is being utilized, three percent of all members either present in person or casting a vote by mail shall constitute a quorum for the transaction of business at all meetings of the members, unless the bylaws prescribe the presence (in person or, if authorized, by mail) of a greater percentage of the members for a quorum. If less than a quorum is present at any meeting, a majority of those present in person may adjourn the meeting from time to time without further notice. Registration of attendance at the meeting may be used to determine a quorum. Each member shall be entitled to one vote on each matter submitted to a vote at a meeting. Voting shall be in person, but, if the bylaws so provide, may also be by proxy or by mail, or both; provided, however, notwithstanding any contrary provision in the bylaws of the cooperative, the board of trustees, by resolution, may authorize voting by mail on bylaw adoption, amendment, or repeal and, in such event, the board of trustees shall also specify the procedures to be followed in such mail voting. If the bylaws provide for voting by proxy or by mail, they shall also prescribe the conditions under which proxy or mail voting shall be exercised. No person shall vote as proxy for more than three members at any meeting of the members.
(c) If the trustees of the cooperative are elected at area or district meetings of members, unless the bylaws of the cooperative provide that area meetings shall take the place of an annual meeting, an annual meeting of members shall be held for the purpose of receiving reports, voting on any other matters of which notice was given to the members in the notice of the annual meeting and conducting any other business that is provided to be transacted by the bylaws of the cooperative at the annual meeting of members.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §38; Acts 1971, 1st Ex. Sess., No. 55, p. 92, §1; Acts 1973, No. 487, p. 701, §1; Acts 1987, No. 87-388, p. 551, §1; Acts 1992, No. 92-206, §1.)
The business and affairs of a cooperative shall be managed by a board of not less than five trustees, each of whom shall be a member of the cooperative or of another cooperative which shall be a member thereof, or a person designated by the governing body or board of directors of a municipality or other corporation, respectively, which is a member thereof. The bylaws shall prescribe the number of trustees, their qualifications, other than those provided for in this chapter, the manner of holding meetings of the board of trustees, and of the election of successors to trustees who shall resign, die or otherwise be incapable of acting. The bylaws may also provide for the removal of trustees from office and for the election of their successors. The bylaws may establish a procedure for nominating candidates for the board of trustees and if the bylaws contain such a procedure, they may prohibit nominations from the floor on the day of an annual, district, or area meeting. The board of trustees may establish a fixed fee and expenses of attendance, if any, to be paid to each trustee for attendance at each meeting of the board of trustees, at national, regional, or state meetings of electric cooperatives, at meetings for the purpose of training or educating trustees sponsored by the cooperative or by organizations in which the cooperative is a member, or organizations which provide such training and education to trustees of cooperatives or for time expended otherwise performing their duties. The cooperative may also provide fringe benefits such as insurance for trustees who are serving or who have served the cooperative as a trustee. Except for said fixed fees, expenses, and fringe benefits, trustees shall not receive any salaries for their services as trustees and, except in emergencies, shall not be employed by the cooperative in any capacity involving compensation without prior approval by the members or under procedures approved by the members, which procedures may include delegation of such authority to the board of trustees. The trustees of a cooperative named in any articles of incorporation, consolidation, merger or conversion, as the case may be, shall hold office until the next following annual meeting of the members or until their successors shall have been elected and qualified. At each annual meeting, in case of failure to hold the annual meeting as specified in the bylaws, at a special meeting called for that purpose, or at an area or district meeting, the members shall elect trustees to hold office until the next following annual meeting of the members, except as hereinafter otherwise provided. Each trustee shall hold office for the term for which he is elected or until his successor shall have been elected and qualified. The bylaws may provide that, in lieu of electing the whole number of trustees annually, the trustees shall be divided into classes at the first or any subsequent annual meeting, each class to be as nearly equal in number as possible, with the term of office of the trustees to be staggered. At each annual, district or area meeting after such classification, a number of trustees equal to the number of the class whose term expires at the time of such meeting shall be elected. A majority of the board of trustees shall constitute a quorum. If a husband and wife hold joint membership in a cooperative, pursuant to appropriate bylaw provision, either one, but not both, may be elected as a trustee. The board of trustees may exercise all of the powers of a cooperative except such as are conferred upon the members by this chapter or its articles of incorporation or bylaws.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §39; Acts 1951, No. 766, p. 1334; Acts 1973, No. 487, p. 701, §2; Acts 1987, No. 87-388, p. 551, §2; Acts 1992, No. 92-206, §1.)
Notwithstanding any other provision of this chapter, the bylaws may provide that the territory in which a cooperative supplies electric energy to its members shall be divided into two or more voting districts and that, in respect of each such voting district, a designated number of trustees shall be elected by the members residing therein, or a designated number of delegates shall be elected by such members, or both such trustees and delegates shall be elected by such members. In any case, the bylaws shall prescribe the manner in which such voting districts and the members thereof and the delegates and trustees, if any, elected therefrom shall function, and the powers of the delegates, which may include the power to elect trustees. No member at any voting district meeting and no delegate at any meeting shall vote by proxy or by mail. A quorum of three percent of all members present in person shall constitute a quorum for the election of trustees at a district or area meeting of members or for the transaction of other business at an area meeting, unless the bylaws prescribe a greater quorum requirement. In actions required to be approved by the cooperative’s members, votes cast at all area meetings shall be aggregated and the failure of an area to have a quorum present or an adverse vote at some area meetings shall not defeat the action if, after aggregating votes at all area meetings, the proposal received a sufficient vote on an aggregate basis. No vote of the members on any matter required to be voted on by Section 37-6-9(b) at a central annual or special meeting shall be taken at an area meeting.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §40; Acts 1987, No. 87-388, p. 551, §3.)
The officers of a cooperative shall consist of a president, one or more vice-presidents, a secretary, and a treasurer, who shall be elected annually by the board of trustees. The cooperative may elect a chairperson of the board who shall be elected by and from the board of trustees. The offices of secretary and treasurer may be held by the same person. The board of trustees may also elect or appoint such other officers, agents, or employees as it shall deem necessary or advisable and shall prescribe the powers and duties thereof. Any officer may be removed from office and his successor elected in the manner prescribed in the bylaws.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §41; Acts 1992, No. 92-206, §1.)
Any two or more cooperatives, each of which is hereinafter designated a “consolidating cooperative,” may consolidate into a new cooperative, hereinafter designated the “new cooperative,” by complying with the following requirements: The proposition for the consolidation of the consolidating cooperatives into the new cooperative and proposed articles of consolidation to give effect thereto shall be first approved by the board of trustees of each consolidating cooperative. The proposed articles of consolidation shall recite in the caption that they are executed pursuant to this chapter and shall state: The name of each consolidating cooperative, the address of its principal office and the date of the filing of its articles of incorporation in the office of the secretary of state; the name of the new cooperative and the address of its principal office; the names and addresses of the persons who shall constitute the first board of trustees of the new cooperative; the terms and conditions of the consolidation and the mode of carrying the same into effect, including the manner and basis of converting memberships in each consolidating cooperative into memberships in the new cooperative and the issuance of certificates of membership in respect of such converted memberships; and any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the new cooperative. The proposition for the consolidation of the consolidating cooperatives into the new cooperative and the proposed articles of consolidation approved by the board of trustees of each consolidating cooperative shall then be submitted to a vote of the members thereof at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed consolidation. The proposed consolidation and the proposed articles of consolidation shall be deemed to be approved upon the affirmative vote of not less than two thirds of those members of each consolidating cooperative voting thereon at such meeting. Upon such approval by the members of the respective consolidating cooperatives, articles of consolidation in the form approved shall be executed and acknowledged on behalf of each consolidating cooperative by its president or vice-president, and its seal shall be affixed thereto and attested by its secretary. The president or vice-president of each consolidating cooperative executing such articles of consolidation shall also make and annex thereto an affidavit stating that the provisions of this section were duly complied with by such cooperative. Such articles of consolidation and affidavits shall be submitted to the Secretary of State for filing as provided in this chapter.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §43.)
Any one or more cooperatives, each of which is hereinafter designated a “merging cooperative,” may merge into another cooperative, hereinafter designated the “surviving cooperative,” by complying with the following requirements: The proposition for the merger of the merging cooperatives into the surviving cooperative and proposed articles of merger to give effect thereto shall be first approved by the board of trustees of each merging cooperative and by the board of trustees of the surviving cooperative. The proposed articles of merger shall recite in the caption that they are executed pursuant to this chapter and shall state: The name of each merging cooperative, the address of its principal office and the date of the filing of its articles of incorporation in the Office of the Secretary of State; the name of the surviving cooperative and the address of its principal office; a statement that the merging cooperatives elect to be merged into the surviving cooperative; the terms and conditions of the merger and the mode of carrying the same into effect, including the manner and basis of converting the memberships in the merging cooperative or cooperatives into memberships in the surviving cooperative and the issuance of certificates of membership in respect of such converted memberships; and any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the surviving cooperative. The proposition for the merger of the merging cooperatives into the surviving cooperative and the proposed articles of merger approved by the board of trustees of the respective cooperatives, parties to the proposed merger, shall then be submitted to a vote of the members of each such cooperative at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed merger. The proposed merger and the proposed articles of merger shall be deemed to be approved upon the affirmative vote of not less than two thirds of those members of each cooperative voting thereon at such meeting. Upon such approval by the members of the respective cooperatives, parties to the proposed merger, articles of merger in the form approved shall be executed and acknowledged on behalf of each cooperative by its president or vice-president, and its seal shall be affixed thereto and attested by its secretary. The president or vice-president of each cooperative executing such articles of merger shall also make and annex thereto an affidavit stating that the provisions of this section were duly complied with by such cooperative. Such articles of merger and affidavits shall be submitted to the Secretary of State for filing as provided in this chapter.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §44.)
The effect of consolidation or merger shall be as follows: The several cooperatives, parties to the consolidation or merger, shall be a single cooperative which, in the case of consolidation, shall be the new cooperative provided for in the articles of consolidation and, in the case of a merger, shall be that cooperative designated in the articles of merger as the surviving cooperative, and the separate existence of all cooperatives, parties to the consolidation or merger, except the new or surviving cooperative, shall cease. Such new or surviving cooperative shall have all the rights, privileges, immunities and powers and shall be subject to all the duties and liabilities of a cooperative organized under the provisions of this chapter, and shall possess all the rights, privileges, immunities and franchises as well of a public as of a private nature, and all property, real and personal, applications for membership, all debts due on whatever account, and all other choses in action of each of the consolidating or merging cooperatives, and, furthermore, all and every interest of, or belonging or due to each of the cooperatives so consolidated or merged shall be taken and deemed to be transferred to and vested in such new or surviving cooperative without further act or deed; and the title to any real estate, or any interest therein, under the laws of this state vested in any such cooperatives shall not revert or be in any way impaired by reason of such consolidation or merger. Such new or surviving cooperative shall thenceforth be responsible and liable for all of the liabilities and obligations of each of the cooperatives so consolidated or merged, and any claims existing, or action or proceeding pending, by or against any of such cooperatives may be prosecuted as if such consolidation or merger had not taken place; but such new or surviving cooperative may be substituted in its place. Neither the rights of creditors nor any liens upon the property of any of such cooperatives shall be impaired by such consolidation or merger. In the case of a consolidation, the articles of consolidation shall be deemed to be the articles of incorporation of the new cooperative; and in the case of a merger, the articles of incorporation of the surviving cooperative shall be deemed to be amended to the extent, if any, that changes therein are provided for in the articles of merger.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §45.)
Any corporation organized under the laws of this state for the purpose, among others, of supplying electric energy to its members may be converted into a cooperative and become subject to this chapter with the same effect as if originally organized under this chapter by complying with the following requirements: The proposition for the conversion of such corporation into a cooperative and proposed articles of conversion to give effect thereto shall be first approved by the board of trustees or the board of directors, as the case may be, of such corporation. The proposed articles of conversion shall recite in the caption that they are executed pursuant to this chapter and shall state: The name of the corporation prior to its conversion into a cooperative; the address of the principal office of such corporation; the date of the filing of articles of incorporation of such corporation in the office of the secretary of state; the statute or statutes under which such corporation was organized; the name assumed by such corporation; a statement that such corporation elects to become a cooperative, general welfare, membership corporation subject to this chapter; the manner and basis of converting either memberships in or shares of stock of such corporation into memberships in the converted corporation; and any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs. The proposition for the conversion of such corporation into a cooperative and the proposed articles of conversion approved by the board of trustees or board of directors, as the case may be, of such corporation shall then be submitted to a vote of the members or stockholders, as the case may be, of such corporation at any duly held annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed conversion. The proposition for the conversion of such corporation into a cooperative and the proposed articles of conversion, with such amendments thereto as the members or stockholders of such corporation shall choose to make, shall be deemed to be approved upon the affirmative vote of not less than two thirds of those members of such corporation voting thereon at such meeting, or, if such corporation is a stock corporation, upon the affirmative vote of the holders of not less than two thirds of the capital stock of such corporation represented at such meeting. Upon such approval by the members or stockholders of such corporation, articles of conversion in the form approved by such members or stockholders shall be executed and acknowledged on behalf of such corporation by its president or vice-president, and its corporate seal shall be affixed thereto and attested by its secretary. The president or vice-president executing such articles of conversion on behalf of such corporation shall also make and annex thereto an affidavit stating that the provisions of this section, with respect to the approval of its trustees or directors and its members or stockholders, of the proposition for the conversion of such corporation into a cooperative and such articles of conversion were duly complied with. Such articles of conversion and affidavit shall be submitted to the Secretary of State for filing as provided in this chapter. The term “articles of incorporation,” as used in this chapter, shall be deemed to include the articles of conversion of a converted corporation.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §46.)
(a) A cooperative which has not commenced business may dissolve voluntarily by delivering to the Secretary of State articles of dissolution, executed and acknowledged on behalf of the cooperative by a majority of the incorporators, which shall state:
(1) The name of the cooperative;
(2) The address of its principal office;
(3) The date of its incorporation;
(4) That the cooperative has not commenced business;
(5) That the amount, if any, actually paid in on account of membership fees, less any part thereof disbursed for necessary expenses, has been returned to those entitled thereto and that all easements shall have been released to the grantors;
(6) That no debt of the cooperative remains unpaid; and
(7) That a majority of the incorporators elect that the cooperative be dissolved.
Such articles of dissolution shall be submitted to the Secretary of State for filing as provided in this chapter.
(b) A cooperative which has commenced business may dissolve voluntarily and wind up its affairs solely and exclusively in the following manner:
(1) The board of trustees shall first recommend that the cooperative be dissolved voluntarily, and, thereafter, the proposition that the cooperative be dissolved shall be submitted to the members of the cooperative at any annual or special meeting, the notice of which shall set forth such proposition. The proposed voluntary dissolution shall be voted upon at a meeting of members and shall be deemed to be approved upon the affirmative vote of not less than a majority of all of the members of the cooperative.
(2) Upon such approval, a certificate of election to dissolve, hereinafter designated the “certificate,” shall be executed and acknowledged on behalf of the cooperative by its president or vice-president, and its corporate seal shall be affixed thereto and attested by its secretary. The certificate shall state:
a. The name of the cooperative;
b. The address of its principal office;
c. The names and addresses of its trustees; and
d. The total number of members of the cooperative and the number of members who voted for and against the voluntary dissolution of the cooperative.
The president or vice-president executing the certificate shall also make and annex thereto an affidavit stating that the provisions of this subsection were duly complied with. Such certificate and affidavit shall be submitted to the Secretary of State for filing as provided in this chapter.
(3) Upon the filing of the certificate and affidavit by the Secretary of State, the cooperative shall cease to carry on its business except insofar as may be necessary for the winding up thereof, but its corporate existence shall continue until articles of dissolution have been filed by the Secretary of State.
(4) After the filing of the certificate and affidavit by the Secretary of State, the board of trustees shall immediately cause notice of the winding up proceedings to be mailed to each known creditor and claimant and to be published once a week for two successive weeks in a newspaper of general circulation in the county in which the principal office of the cooperative is located.
(5) The board of trustees shall have full power to wind up and settle the affairs of the cooperative and shall proceed to collect the debts owed to the cooperative, convey and dispose of its property and assets, pay, satisfy, and discharge its debts, obligations, and liabilities, and do all other things required to liquidate its business and affairs and, after paying or adequately providing for the payment of all its debts, obligations, and liabilities, shall distribute the remainder of its property and assets among its members in proportion to the aggregate patronage of each such member during the seven years next preceding the date of such filing of the certificate or, if the cooperative shall not have been in existence for such period, during the period of its existence, or, on such other basis as the board of trustees may determine.
(6) When all debts, liabilities, and obligations of the cooperative have been paid and discharged or adequate provision shall have been made therefor, and all of the remaining property and assets of the cooperative shall have been distributed to the members pursuant to the provisions of this section, the board of trustees shall authorize the execution of articles of dissolution which shall thereupon be executed and acknowledged on behalf of the cooperative by its president or vice-president, and its corporate seal shall be affixed thereto and attested by its secretary. Such articles of dissolution shall recite in the caption that they are executed pursuant to this chapter and shall state:
a. The name of the cooperative;
b. The address of the principal office of the cooperative;
c. That the cooperative has heretofore delivered to the Secretary of State a certificate of election to dissolve and the date on which the certificate was filed by the Secretary of State in the records of his office;
d. That all debts, obligations and liabilities of the cooperative have been paid and discharged or that adequate provision has been made therefor;
e. That all the remaining property and assets of the cooperative have been distributed among the members in accordance with the provisions of this section; and
f. That there are no actions pending against the cooperative.
The president or vice-president executing the articles of dissolution shall also make and annex thereto an affidavit stating that the provisions of this subsection were duly complied with. Such articles of dissolution and affidavit, accompanied by proof of the publication required in this subsection, shall be submitted to the Secretary of State for filing as provided in this chapter.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §48; Acts 1986, No. 86-503, p. 983; Acts 1992, No. 92-206, §1.)
Articles of incorporation, amendment, consolidation, merger, conversion or dissolution, as the case may be, when executed and acknowledged and accompanied by such affidavits as may be required by applicable provisions of this chapter, shall be presented to the Secretary of State for filing in the records of his office. If the Secretary of State shall find that the articles presented conform to the requirements of this chapter, he shall, upon the payment of the fees, file the articles so presented in the records of his office, and, upon such filing, the incorporation, amendment, consolidation, merger, conversion or dissolution provided for therein shall be in effect. The Secretary of State immediately upon the filing in his office of any articles pursuant to this chapter shall transmit a certified copy thereof to the probate judge of the county in which the principal office of each cooperative or corporation affected by such incorporation, amendment, consolidation, merger, conversion or dissolution shall be located. The probate judge of any county, upon receipt of any such certified copy, shall file and index the same in the records of his office, but the failure of the Secretary of State or of a probate judge of a county to comply with the provisions of this section shall not invalidate such articles. The provisions of this section shall also apply to certificates of election to dissolve and affidavits of compliance executed pursuant to subsection (b) (2) of Section 37-6-18.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §49.)
Revenues of a cooperative for any fiscal year in excess of the amount thereof necessary to defray expenses of the cooperative and of the operation and maintenance of its facilities during such fiscal year; to pay interest and principal obligations of the cooperative coming due in such fiscal year; to finance or to provide a reserve for the financing of, the construction or acquisition by the cooperative of additional facilities to the extent determined by the board of trustees; to provide a reasonable reserve for working capital; to provide a reserve for the payment of indebtedness of the cooperative maturing more than one year after the date of the incurrence of such indebtedness in an amount not less than the total of the interest and principal payments in respect thereof required to be made during the next following fiscal year; and to provide a fund for education in cooperation and for the dissemination of information concerning the effective use of electric energy and other services made available by the cooperative shall be distributed by the cooperative to its members as, and in the manner, provided in the bylaws, either as patronage refunds prorated in accordance with the patronage of the cooperative by the respective members paid for during such fiscal year or by way of general rate reductions, or by combination of such methods. Nothing contained in this article shall be construed to prohibit the payment by a cooperative of all or any part of its indebtedness prior to the date when the same shall become due.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §50.)
A cooperative may not sell or lease all or any substantial portion of its property, unless such sale or lease is authorized at a duly held meeting of the members thereof by the affirmative vote of not less than two thirds of all the members of the cooperative and unless the notice of such sale or lease shall have been contained in the notice of the meeting. A cooperative acting through its board of trustees may mortgage, by mortgage or deed of trust, pledge or otherwise encumber, to secure any indebtedness of the cooperative, all or any portion of its property, assets and the revenues and income therefrom, from time to time, when authorized by the affirmative vote of a majority of its members at a duly held meeting after proper notice thereof. The board of trustees of a cooperative, without authorization of the members, shall have full power and authority to authorize from time to time the execution and delivery of a mortgage or mortgages or a deed or deeds of trust upon, or the pledging or encumbering of, all or any portion of the property, assets, rights, privileges, licenses, franchises and permits of the cooperative, whether acquired or to be acquired and wherever situated, as well as the revenues and income therefrom, all upon such terms and conditions as the board of trustees shall determine, to secure any indebtedness of the cooperative to the United States of America, any instrumentality or agency thereof, to any financing institution organized on a cooperative plan for the purpose of financing its members’ programs, projects and undertakings, in which the cooperative holds membership or to any bank or other financial institution lending money or credit to the cooperative. The term “substantial portion” used herein means 10 percent or more of the cooperative’s total assets as reflected on its books at the time of a transaction.
Prior to the making of any offer by any person or entity to acquire or lease all or a substantial portion of the assets or property of a cooperative, the person or entity making such offer shall, not less than five business days prior to such offer becoming effective and being communicated to members of the cooperative, file with each member of the board of trustees of the cooperative and with its general manager a disclosure statement as contemplated by Section 14 of the United States Securities Exchange Act of 1934 and rules and regulations promulgated by the United States Securities Commission thereunder on Schedule 14D-1. Comprehensive financial statements on the offeror and all persons who may own five percent or more of the stock or other interests in the offeror shall be included with such schedule. If there is any material change in any of the information set forth in such disclosure statement, the person or entity making the offer shall promptly file an amendment to the disclosure statement with each of the trustees and the general manager of the cooperative. References in Schedule 14D-1 to securities and equity owners shall for the purposes of this section, mean members of the cooperative and their votes.
Within 10 days from the receipt of the disclosure statement or any amendment thereto, the board of trustees of the cooperative shall cause all information concerning the offer and copies of the disclosure statement to be transmitted to every other cooperative that is organized under this Chapter 6 of Title 37 with an invitation inviting them to submit competing or alternative proposals, including proposals to merge or consolidate with the cooperative. Such other cooperatives shall be given at least 90 days from the date they receive the information required by this paragraph to make such proposals and no meeting of members shall be called or noticed to consider any offer until after the expiration of such deadline.
The disclosure statement and other information required to be submitted to the board of trustees of the cooperative shall not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
Compliance with the provisions of this section shall not be required if the sale or lease is to be with one or more other cooperatives which are organized under this chapter and the effect thereof will be essentially the same as if a merger or consolidation were being consummated with one or more other cooperatives. This section shall also not apply if the proposed sale is in the nature of an involuntary sale, such as condemnation, or a sale required or authorized by electric utility territorial legislation now existing or hereafter adopted, or if the property to be sold is no longer used or useful in conducting the business of the cooperative.
Failure to provide the disclosure statement and any and all information required therein shall cause the offer made in violation of the disclosure requirements hereof to be void and unenforceable and shall cause any purchase or transaction taken in pursuance or as a result thereof between the cooperative and the offeror to be ineffective and rescindable within five years after consummation at the option of the cooperative.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §51; Acts 1971, 1st Ex. Sess., No. 55, p. 92, §2; Acts 1973, No. 487, p. 701, §3; Acts 1989, No. 89-519, p. 1065, §1; Acts 1989, No. 89-814, p. 1627, §1.)
The private property of the members of a cooperative shall be exempt from execution for the debts of the cooperative, and no member shall be liable or responsible for any debts of the cooperative. A cooperative shall not be liable to its members for any outage of service or voltage fluctuation resulting from acts of God, such as lightning or windstorm, or from occurrences that may reasonably be expected to happen in the normal course of utility business, such as equipment failures. In any claim for property damage alleging negligence of the cooperative, the member shall prove by the testimony of a witness expert in the operation of utility businesses that the action or inaction of the cooperative alleged to have caused the property damage is not normal in the operations of a utility business.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §52; Acts 1992, No. 92-206, §1.)
Any mortgage, deed of trust or other instrument executed by a cooperative or foreign corporation transacting business in this state pursuant to this chapter, which, by its terms, creates a lien upon real and personal property then owned or after acquired and which is recorded as a mortgage of real property in any county in which such property is located or is to be located, shall have the same force and effect as if the mortgage, deed of trust or other instrument were also recorded or filed in the proper office in such county as a mortgage of personal property. Recordation of any such mortgage, deed of trust or other instrument shall cause the lien thereof to attach to all after acquired property of the mortgagor of the nature therein described as being mortgaged or pledged thereby, immediately upon the acquisition of such property by the mortgagor, and such lien shall be superior to all claims of creditors of the mortgagor and purchasers of such property and to all other liens, except liens of prior record and tax liens affecting such property.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §53.)
Whenever any notice is required to be given under the provisions of this chapter or under the provisions of the articles of incorporation or bylaws of a cooperative, waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time fixed for the giving of such notice, shall be deemed equivalent to such notice. If a person or persons entitled to notice of a meeting shall attend such meeting, such attendance shall constitute a waiver of notice of the meeting, except in case the attendance is for the express purpose of objecting to the transaction of any business because the meeting shall not have been lawfully called or convened.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §54.)
No person who is authorized to take acknowledgments under the laws of this state shall be disqualified from taking acknowledgments of instruments executed in favor of a cooperative or to which it is a party, by reason of being an officer, director or member of such cooperative.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §55.)
Any corporation or association organized under generally similar laws of another state shall be allowed to carry on any proper activities, operations and functions in this state upon compliance with the general regulations applicable to foreign corporations desiring to do business in this state. In its activities, operations and functions in this state, such corporation or association shall be subject to the provisions of this chapter.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §56.)
Cooperatives transacting business in this state pursuant to this chapter shall be deemed to be general welfare cooperatives and exempt in all respects from the jurisdiction and control of the Public Service Commission of this state.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §57.)
No bonds or other evidences of indebtedness of any cooperative or foreign corporation transacting business in this state pursuant to this chapter shall be issued or sold until the consent to the issuance and sale thereof shall have been given by the Department of Finance, as provided by law.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §58.)
(a) For the purposes of this section, the following terms shall have the meanings respectively ascribed to them herein:
(1) RURAL ELECTRIC COOPERATIVE. A cooperative corporation formed under Chapter 6 or Chapter 7 of Title 37, or any successor provision of the Code of Alabama, or any of its subsidiaries.
(2) GAS DISTRICT. A public corporation formed under Article 12 of Chapter 50 of Title 11, or any successor provision of the Code of Alabama.
(b) Any rural electric cooperative or gas district may terminate or decline service at all locations if an applicant or customer, or a member of the applicant’s or customer’s household, is indebted to the rural electric cooperative or gas district for services at the present location or a former location of the applicant or customer. This section shall not apply if a person was not a member of the household of the applicant or customer, or if a person was a minor when the indebtedness was incurred. In the event that such indebtedness for service previously rendered is in dispute, the applicant shall be served or the customer’s service shall be continued upon complying with the normal deposit requirements of the rural electric cooperative or gas district and, in addition thereto, by making a special deposit in an amount equal to the net balance in dispute. Upon settlement of the disputed account, the balance, if any, due the applicant or customer or member of applicant’s or customer’s household shall be promptly repaid.
(Acts 1987, No. 87-743, p. 1455, §§1, 2; Acts 1992, No. 92-206, §1.)
The provisions of the Alabama Securities Law shall not apply to any note, bond or other evidence of indebtedness issued by any cooperative transacting business in this state pursuant to this chapter to the United States of America, or any agency or instrumentality thereof, or to any mortgage or deed of trust executed to secure the same. The provisions of said securities law shall not apply to the issuance of membership certificates by any cooperative.
(Acts 1939, No. 231, p. 371; Code 1940, T. 18, §59.)
For the purposes of this article, the following terms shall have the meanings respectively ascribed to them by this section:
(1) RURAL AREA. Any area within this state not included within the boundaries of any incorporated or unincorporated city, town, village, or borough having a population in excess of 25,000 inhabitants according to the last preceding federal census, prior to the time service was commenced. For purposes of providing wireless communications services, including, without limitation, services classified as of January 1, 1997, as “commercial mobile radio services” by the FCC, the term “rural area” shall include all of the territory for which the electric cooperative is authorized to provide wireless service under federal law or regulations.
(2) TELEPHONE SERVICE. Any communication service, including, without limitation, all telephone lines, facilities, or systems used in the rendition of such service.
(Acts 1949, No. 339, p. 509, §1; Acts 1951, No. 613, p. 1057, §1; Acts 1990, No. 90-174, p. 193, §1; Act 98-602, p. 1318, §1.)
Any electric cooperative presently or hereafter organized and any corporation converted into an electric cooperative under the provisions of Article 1 of this chapter shall have, in addition to its present or other powers, the power to furnish telephone service in rural areas to its members and the persons it serves, in the manner provided in this article.
(Acts 1949, No. 339, p. 509, §2; Acts 1951, No. 613, p. 1057, §1.)
(a) Any such electric cooperative shall have power:
(1) To supply telephone service in rural areas to its members, to governmental agencies and political subdivisions, to other persons, and to business entities not in excess of 40 percent of the number of its members; provided that wireless communications services, including, without limitation, services classified as of January 1, 1997, as “commercial mobile radio services” by the Federal Communications Commission, may be provided to any person, firm, corporation, governmental agency, or political subdivision within any area for which the electric cooperative is authorized to provide such wireless service under federal law or regulations, without the business entity being a member of the cooperative, regardless of whether the business entity is in excess of 40 percent of the number of its members, and, without limiting the foregoing, should a cooperative acquire any facilities in rural areas supplying telephone service to persons in rural areas, it may, for the purpose of continuing such service and avoiding hardship, and to an extent which together with all other persons receiving telephone service on a nonmember basis shall not exceed 50 percent of the total number of persons receiving telephone service, continue to serve the persons served directly from the facilities at the time of the acquisition without requiring that persons become members and provided further that no electric service shall be furnished contrary to the provisions of Sections 37-14-1 through 37-14-17 or Sections 37-14-30 through 37-14-40.
(2) To construct, purchase, take, receive, lease as lessee or otherwise acquire, and to own, hold, use, equip, maintain, and operate, to sell, assign, transfer, convey, exchange, lease as lessor, mortgage, pledge or otherwise dispose of or encumber telephone lines, facilities, or systems, lands, buildings and structures, plants and equipment, and any and all kinds and classes of real or personal property whatsoever which shall be deemed necessary, convenient, or appropriate to accomplish the purpose for which the cooperative is organized; provided, however, that no electric cooperative organized and no corporation converted into an electric cooperative, under Article 1 of this chapter, shall construct, purchase, take, receive, lease as lessee, or otherwise acquire or maintain or operate any telephone lines, facilities, plants, or systems, other than telephone lines, facilities, plants, or systems used to provide wireless communications services, in any area other than a rural area as defined by this article.
(3) To make any and all contracts necessary or convenient for the full exercise of the powers granted in this article, including, but not limited to, contracts with any person, firm, corporation, federal agency, or municipality for connections of telephone lines, facilities, or systems and in connection with any contract to stipulate and agree to covenants, terms, and conditions as the board of trustees may deem appropriate, including covenants, terms, and conditions with respect to rates, financial and accounting methods, services, operation and maintenance practices, and, consistent with Section 37-6-20, the manner of disposing of the revenues of the properties operated and maintained by the cooperative; to construct, maintain, and operate telephone lines along, upon, under, and across all public thoroughfares, including without limitation all roads, highways, streets, alleys, bridges, and causeways, and upon, under, and across all publicly owned lands; provided, however, that the respective authorities having jurisdiction thereof shall consent thereto; provided further, that said construction, maintenance, and operation of the telephone lines shall be in the manner and according to the specifications as will avoid interference with, or hazards to, existing communication lines; to exercise the power of eminent domain in the manner provided by the laws of this state for the exercise of that power by corporations constructing or operating telephone lines, facilities, or systems; provided, however, that, notwithstanding Section 37-6-27, cooperatives organized and corporations converted into cooperatives under Article 1 of this chapter for the purpose of supplying the telephone service shall, as relates to that part or portion of their business devoted to the supplying of telephone service under this article, be subject to the jurisdiction of the Alabama Public Service Commission to the same extent, in the same manner, and in every respect as are existing telephone companies.
(b) Any cooperative organized under or furnishing telephone service pursuant to this article shall have the right to interconnect its lines, facilities, or systems with the lines, facilities, or systems of any person, firm, or corporation furnishing telephone service to the public in this state, and any person, firm, or corporation furnishing telephone services to the public in this state shall have the right to interconnect its lines, facilities, or systems with those of any cooperative furnishing telephone services under this article, in order to provide a continuous line of communication for all telephone subscribers. Any such interconnection shall be pursuant to the same terms and conditions regardless of whether initiated by the cooperative or other telephone or telecommunications supplier, with compensation to be the same or based on methodology designed to recover the reasonable costs of the respective parties; provided, however, that nothing herein shall affect arrangements in place on May 6, 1998. If a person, firm, or corporation and the cooperative shall be unable to agree upon the terms and conditions of such interconnection, including compensation therefor, the Alabama Public Service Commission shall establish the terms and conditions, which shall be reasonable and nondiscriminatory.
(Acts 1949, No. 339, p. 509, §3; Acts 1951, No. 613, p. 1057, §1; Acts 1990, No. 90-174, p. 193, §1; Act 98-602, p. 1318, §1.)
The name of an electric cooperative which engages in the furnishing of telephone service may include the word “telephone” and need not include the word “electric” if it is not engaged in the furnishing of electrical energy. The words “telephone” and “cooperative” shall not both be used in the name of any corporation hereafter organized under the laws of, or authorized to transact business in, this state, except a cooperative or corporation transacting business in this state pursuant to the provisions of this article.
(Acts 1949, No. 339, p. 509, §4; Acts 1951, No. 613, p. 1057, §1.)
Except as otherwise provided in this article, electric cooperatives shall possess and exercise all powers in connection with the construction, acquisition and operation of telephone systems and in connection with furnishing telephone service as they now possess in connection with making electrical energy available to their members and other persons.
(Acts 1949, No. 339, p. 509, §5.)
Electric cooperatives are authorized to supply to their members and other persons they are authorized to serve only electrical energy or only telephone service, or both.
(Acts 1949, No. 339, p. 509, §6.)
The power to furnish telephone service conferred in this article on electric cooperatives is exclusive, and no other nonprofit membership corporation or organization, including improvement authorities organized under the provisions of Article 1 of this chapter, shall furnish such service.
(Acts 1949, No. 339, p. 509, §7.)
It shall be the duty of the Alabama Public Service Commission to encourage the improvement and expansion of existing rural telephone facilities and the construction and operation of such additional facilities as are required to assure availability of adequate rural telephone service to the widest practicable number of rural users of such service, and to such ends the commission shall confer and advise with, and keep its official records open to inspection by, any interested person.
(Acts 1949, No. 339, p. 509, §8.)
For the extra, new and additional duties imposed upon the Alabama Public Service Commission and the members thereof by this article and for the performance of duties which are and will be hereafter required of said commission and the members thereof under this article, each member of the commission, in addition to the compensation otherwise provided by law to be paid to him for his service as a member of the commission, shall receive $1,800.00 annually, which shall be paid semimonthly, as the salaries of other state officers are paid, out of the appropriation provided by law for payment of salaries and expenses of the commission and its employees.
(Acts 1949, No. 339, p. 509, §9.)
Any cooperative organized under the provisions of this chapter prior to September 4, 1951, for the sole purpose of furnishing telephone service is hereby vested with all the powers and authority conferred on cooperatives by Sections 37-6-40 through 37-6-48. No cooperative shall have the right to furnish telephone service in any area or territory in which any cooperative organized prior to September 4, 1951, is authorized to furnish such service under the provisions of Sections 37-6-40 through 37-6-48. The organization of any cooperative created prior to September 4, 1951, for the sole purpose of furnishing telephone service is hereby ratified, validated and confirmed, and any irregularity in the organization of any such cooperative shall be deemed to be perfected.
(Acts 1951, No. 613, p. 1057, §2.)
The following terms, whenever used or referred to in this chapter, shall have the following meanings, unless a different meaning clearly appears from the context:
(1) CORPORATION. A corporation formed under this chapter.
(2) MUNICIPALITY. Any county, city or town of this state.
(3) PERSON or INHABITANT. Such term includes natural persons, firms, associations, corporations, business trusts, partnerships and bodies politic.
(4) ENERGY. Such term includes any and all electric energy no matter how generated or produced.
(5) SYSTEM. Such term includes any plant, works, system, facilities or properties, together with all parts thereof and appurtenances thereto, used or useful in the generation, production, transmission or distribution of energy.
(6) BONDS. Such term includes negotiable bonds, interim certificates or receipts, notes, debentures and all other evidences of indebtedness either issued or the payment thereof assumed by a corporation.
(7) LAW. Any act or statute, general, special or local of this state.
(8) FEDERAL AGENCY. Such term includes the United States of America, the President of the United States of America, the Administrator of General Services and any and all other authorities, agencies and instrumentalities of the United States of America heretofore or hereafter created.
(9) ACQUIRE. Such term includes construct, acquire by purchase, lease, devise, gift or the exercise of the right of eminent domain in the manner now or hereafter provided by law for the exercise thereof by the state, or other mode of acquisition.
(10) IMPROVE. Such term includes construct, reconstruct, improve, extend, enlarge, alter, better and repair.
(11) BOARD. The board of directors of a corporation formed under this chapter.
(12) MEMBER. Such term includes each natural person signing the certificate of incorporation of a corporation and each person admitted to membership therein pursuant to law or its bylaws.
(13) SERVICE. The sale or other disposition of energy at the lowest cost consistent with sound economy and the prudent management of the business of a corporation.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §11.)
Any number of natural persons not less than three may by executing, filing and recording a certificate as provided in this chapter form a corporation not organized for pecuniary profit for the purpose of promoting and encouraging the fullest possible use of electric energy in the state by making electric energy available to inhabitants of the state at the lowest cost consistent with sound economy and prudent management of the business of such corporation.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §10.)
The certificate of incorporation shall be entitled and endorsed “CERTIFICATE OF INCORPORATION OF _____ ELECTRIC MEMBERSHIP CORPORATION” (the blank space being filled in with the name of the corporation) and shall state: The name of the corporation, which name shall be such as to distinguish it from any other corporation; a reasonable description of the territory in which its operations are principally to be conducted; the location of its principal office and the post office address thereof; the maximum number of directors, not less than three; the names and post office addresses of the directors, not less than three, who are to manage the affairs of the corporation for the first year of its existence or until their successors are chosen; the period, if any, limited for the duration of the corporation. If the duration of the corporation is to be perpetual, this fact should be stated, as well as the terms and conditions upon which members of the corporation shall be admitted. The certificate of incorporation of a corporation may also contain any provision not contrary to law which the incorporators may choose to insert for the regulation of its business and for the conduct of the affairs of the corporation and any provisions creating, defining, limiting or regulating the powers of the corporation, its directors and members.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §12.)
The natural persons executing the certificate of incorporation shall be residents of the territory in which the operations of the corporation are principally to be conducted who are desirous of using electric energy to be furnished by the corporation. The certificate of incorporation shall be acknowledged by the subscribers before an officer authorized by the laws of this state to take acknowledgments of deeds. When so acknowledged, the certificate may be filed in the office of the Secretary of State, who shall forthwith prepare a certified copy or copies thereof and forward one to the officer charged with the duty of recording deeds in each county in which a portion of the territory of the corporation is located, who shall forthwith file such certified copy or copies in their respective offices. As soon as the provisions of this section have been complied with, the proposed corporation described in the certificate so filed, under its designated name, shall be and constitute a body corporate.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §13.)
Each corporation formed under this chapter shall have a board of directors, which board shall constitute the governing body of the corporation. The directors of the corporation, other than those named in its certificate of incorporation, shall be elected annually by the members entitled to vote therefor. The directors must be members and shall not be entitled to compensation for their services but shall be entitled to reimbursement for expenses incurred by them in the performance of their duties. The board shall elect annually from its own number a president and a secretary.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §14.)
The board shall have power to do all things necessary or convenient in conducting the business of a corporation, including but not limited to: The power to adopt and amend bylaws for the management and regulation of the affairs of the corporation; the bylaws by a corporation may make provisions, not inconsistent with law or its certificate of incorporation, regulating the admission, withdrawal, suspension or expulsion of members; the transfer of memberships; the fees and dues of members and the termination of memberships on nonpayment of dues or otherwise; the number, times and manner of choosing, qualifications, terms of office, official designations, powers, duties and compensation of its officers; defining a vacancy in the board or in any office or the manner of filling it; the number of members, not less than 20 percent, to constitute a quorum at meetings, the date of the annual meeting and the giving of notice thereof and the holding of special meetings and the giving of notice thereof; the terms and conditions upon which the corporation is to render service to its members, the disposition of the revenues and receipts of the corporation; regular and special meetings of the board and the giving of notice thereof. Said board shall also have the power: To appoint agents and employees and to fix their compensation and the compensation of the officers of the corporation; to execute instruments; to delegate to one or more of the directors or to the agents and employees of a corporation such powers and duties as it may deem proper; and to make its own rules and regulations as to its procedure.
(Acts 1935, No. 45, p. 100; Acts 1935, No. 168, p. 229; Code 1940, T. 18, §15.)
A corporation may issue to its members certificates of membership, and each member shall be entitled to only one vote at the meeting of the corporation.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §16.)
The corporate purpose of each corporation formed under this chapter shall be to render service to its members only, and no person shall become or remain a member unless such a person shall use energy supplied by such corporation and shall have complied with the terms and conditions in respect to membership contained in the bylaws of such corporation. The membership fee of the corporation shall not exceed $10.00. Should the corporation acquire any electric facilities already dedicated or devoted to the public use, it may, for the purpose of continuing existing service and avoiding hardship, continue to serve the persons served directly from such facilities at the time of such acquisition without requiring that such persons become members. In no event shall the number of such nonmembers served exceed 49 percent of the total number of persons served by the corporation. Such nonmember customers shall have the right to become members upon nondiscriminatory terms. The rates to such nonmembers shall be on a cost basis and may exceed the rates to members by only such amounts as may be necessary to meet the full actual cost of service to such nonmembers. Any corporation formed under this chapter rendering service in a county in this state adjacent to a county or counties of any other state is authorized, upon compliance with the laws of such other state, to render service in such county or counties of such other state, and persons served in such county or counties may become members.
(Acts 1935, No. 45, p. 100; Acts 1935, No. 168, p. 229; Code 1940, T. 18, §17.)
Each corporation formed under this chapter is vested with all power necessary or requisite for the accomplishment of its corporate purpose and capable of being delegated by the Legislature of Alabama; and no enumeration of particular powers granted shall be construed to impair any general grant of power contained in this chapter, nor to limit any such grant to a power or powers of the same class or classes as those so enumerated.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §18.)
A corporation created under the provisions of this chapter shall have power to do any and all acts or things necessary or convenient for carrying out the purpose for which it was formed, including, but not limited to the power: To sue and be sued; to have a seal and alter the same at pleasure; to acquire, hold and dispose of property, real and personal, tangible and intangible, or interests therein, and to pay therefor in cash or on credit, and to secure and procure payment of all or any part of the purchase price thereof on such terms and conditions as the board shall determine; to acquire, own, operate, maintain and improve a system or systems; to pledge all or any part of its revenues or mortgage or otherwise encumber all or any part of its property for the purpose of securing the payment of the principal of and interest on any of its obligations; to construct works across or along any street or public highway or over any lands which are now or may be the property of this state or any political subdivision thereof without obtaining any franchise or other permit therefor. The corporation shall, however, restore any such street or highway to its former condition or state as near as may be and shall not use the same in a manner to impair unnecessarily its usefulness. Said corporation shall also have the power: To accept gifts or grants of property, real or personal, from any person, municipality or federal agency and to accept voluntary and uncompensated services; to make any and all contracts necessary or convenient for the full exercise of the powers in this chapter granted, including, without limiting the generality of the foregoing, contracts with any person, federal agency or municipality for the purchase or sale of energy; for the management and conduct of the business of the corporation, including the regulation of the rates, fees or charges for service rendered by the corporation; to sell, lease, mortgage or otherwise encumber or dispose of all or any part of its property, as provided in this chapter; to contract debts, borrow money and to issue or assume the payment of obligations; to levy and collect reasonable fees, rents, tolls and other charges for service rendered; to perform any and all of the foregoing acts and to do any and all of the foregoing things under, through or by means of its own officers, agents and employees or by contracts with any person, federal agency or municipality.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §19.)
No corporation may sell, mortgage, lease or otherwise encumber or dispose of any of its property (other than property which, in the judgment of the board, is neither necessary nor useful in operating and maintaining the corporation’s system and which in any one year shall not exceed 10 percent in value of the value of all the property of the corporation or merchandise) unless authorized so to do by the votes of at least a majority of its members and the consent of the holders of 75 percent in amount of the bonds of such corporation then outstanding is obtained.
(Acts 1935, No. 45, p. 100; Acts 1935, No. 168, p. 229; Code 1940, T. 18, §20.)
No bonds or obligations of any corporation formed under this chapter shall be issued or sold until consent to the issuance and sale thereof shall have been given by the Department of Finance. Such consent shall be granted only after a public hearing and after a petition requesting such consent has been duly filed by such corporation with the director of said department more than five days before such public hearing. Such petition shall specify the plan or program of the corporation and the uses to which it is proposed to put the proceeds of such issue and such other matters as are necessary fully to advise such Department of Finance of the nature of the corporate purpose in furtherance of which such issue is proposed, and said petition shall include such other information as may be required by the rules of such Department of Finance. The department shall grant such consent only after it finds that such issue or sale serves some public need and is in the public interest. It shall be unlawful for the corporation to use the proceeds of any such issue or sale contrary to the plan and purposes presented to such Department of Finance in obtaining its consent thereto. The corporation applying for such consent is authorized to pay such fees as shall be lawfully assessed against it by the Department of Finance.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §21.)
A corporation formed under this chapter shall have power and is authorized, from time to time, to issue its obligation in anticipation of its revenues for any corporate purpose. Said obligations may be authorized by resolution or resolutions of the board and may bear such date or dates, mature at such time or times, not exceeding 40 years from their respective dates, bear interest at such rate or rates not exceeding six percent per annum, payable semiannually, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be executed in such manner, be payable in such medium of payment, at such place or places, and be subject to such terms of redemption, not exceeding par and accrued interest, as such resolution or resolutions may provide. Such obligations may be sold in such manner and upon such terms as the board may determine at not less than par and accrued interest. Any provision of law to the contrary notwithstanding, any obligations and the interest coupons appertaining thereto, if any, issued pursuant to this chapter shall possess all of the qualities of negotiable instruments.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §22.)
In connection with the issuance of any obligations, a corporation may make such covenants or agreements and do any and all such acts and things as may be necessary or convenient or desirable in order to secure its obligations or which, in the absolute discretion of the board, tend to make the obligations more marketable, notwithstanding that such covenants, agreements, acts and things may constitute a limitation on the exercise of the powers granted in this chapter.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §23.)
Any two or more corporations created under the provisions of this chapter may enter into an agreement for the consolidation of such corporations. Such agreements shall set forth the terms and conditions of the consolidation, the name of the proposed consolidated corporation, the number of its directors, not less than three, the time of the annual election and the names of the persons, not less than three, to be directors until the first annual meeting. If such agreement is approved by a majority of the members of each corporation, the directors named in the agreement shall subscribe and acknowledge a certificate conforming substantially to the original certificates of incorporation, except that it shall be entitled and endorsed “CERTIFICATE OF CONSOLIDATION OF _____” (the blank space being filled in with names of the corporations being consolidated) and shall state: The names of the corporations being consolidated; the name of the consolidated corporation; the other items required or permitted to be stated in an original certificate of incorporation. Such certificate of consolidation and a certified copy or copies thereof shall be filed in the same places as an original certificate of incorporation, and, thereupon, the proposed consolidated corporation, under its designated name, shall be and constitute a body corporate with all of the powers of a corporation as originally formed under this chapter.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §25.)
A corporation shall have power out of any funds available therefor to purchase any obligations issued by it at a price not exceeding the principal amount thereof and accrued interest thereon. All obligations so purchased shall be cancelled.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §24.)
Any corporation, as originally formed under this chapter, or a corporation resulting from the consolidation of two or more corporations may extend its territory by filing in the office of the officer charged with the duty of recording deeds of the county in which such new territory is located a certificate subscribed and acknowledged in the same manner as an original certificate of incorporation under this chapter by the president or a vice-president and the secretary or an assistant secretary of the corporation, which shall set forth: The name of the corporation; a reasonable description of the new territory; that the corporation is ready and able to extend forthwith its system into such new territory to the extent that it may economically do so. In the event that such new territory includes part of the territory of another corporation or corporations, then such certificate shall contain a statement to the effect that such other corporation or corporations have been requested in writing to construct the extensions which the corporation wishing to extend its territory is ready and able to construct and that such other corporation or corporations are not ready and able to do so. Unless such other corporation or corporations shall commence construction of such extensions within 30 days after being requested so to do, this shall be conclusive evidence as to the fact that such other corporation or corporations are not ready and able to construct such extensions. Construction of such extensions begun by such other corporation or corporations within said 30 day period must be continued with reasonable diligence.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §26.)
A corporation formed under this chapter shall have power to charge reasonable fees, rents, tolls, prices and other charges for service rendered which shall be sufficient at all times to pay all operating and maintenance expenses necessary or desirable for the prudent conduct and operation of its business and the principal of and interest on such obligations as the corporation may have issued or assumed in the performance of the purpose for which it was formed, and the revenues and receipts of a corporation shall first be devoted to such operating and maintenance expenses and to the payment of such principal and interest and thereafter to such reserves for improvement, new construction, depreciation and contingencies as the board may from time to time prescribe. Revenues and receipts not needed for these purposes shall be returned to the members, either in cash or in payment of past due or current charges for energy, as the board may decide, in proportion to the gross operating revenues received from each, or such return may be made by way of a general rate reduction to members, if the board so elects.
(Acts 1935, No. 45, p. 100; Acts 1935, No. 168, p. 229; Code 1940, T. 18, §29.)
Any corporation created under this chapter may be dissolved by filing in the Office of the Secretary of State a certificate which shall be entitled and endorsed “CERTIFICATE OF DISSOLUTION of _____” (the blank space being filled in with the name of the corporation) and shall state: The name of the corporation and, if such corporation is a corporation resulting from a consolidation as provided in this chapter, the names of the original corporation; the date of filing of the certificate of incorporation in the Office of the Secretary of State and, if such corporation is a corporation resulting from a consolidation as provided in this chapter, the dates on which the certificates of incorporation of the original corporations were filed in the Office of the Secretary of State; the fact that the corporation elects to dissolve; the name and post office address of each of its directors and the name, title and post office address of each of its officers. Such certificate shall be subscribed and acknowledged in the same manner as an original certificate of incorporation by the president or a vice-president and the secretary or an assistant secretary, who shall make and annex an affidavit stating that they have been authorized to execute and file such certificate by the votes cast in person or by proxy by a majority of the members of the corporation entitled to vote. A certificate of dissolution and a certified copy or copies thereof shall be filed in the same places as an original certificate of incorporation, and, thereupon, the corporation shall be deemed to be dissolved. Such corporation shall continue for the purpose of paying, satisfying and discharging any existing liabilities or obligations and collecting or liquidating its assets, and doing all other acts required to adjust and wind up its business and affairs, and may sue and be sued in its corporate name. Any assets remaining after all liabilities or obligations of the corporations have been satisfied or discharged shall pass to and become the property of the state.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §28.)
Any corporation or association organized under generally similar laws of another state shall be allowed to carry on any proper activities, operations and functions in this state upon compliance with the general regulations applicable to foreign corporations desiring to do business in this state. In its activities, operations and functions in this state, such corporation or association shall be subject to the provisions of this chapter.
(Acts 1935, No. 168, p. 229; Code 1940, T. 18, §29.)
A corporation created under this chapter may amend its certificate of incorporation to change its corporate name, to increase or reduce the number of its directors or to change any other provision therein, provided, however, that no corporation shall amend its certificate of incorporation to embody therein any purpose, power or provision which would not be authorized if its original certificate, including such additional or changed purpose, power or provision, were offered for filing at the time a certificate under this section is offered. Such amendment may be accomplished by filing a certificate which shall be entitled and endorsed “CERTIFICATE OF AMENDMENT OF _____ ELECTRIC MEMBERSHIP CORPORATION” and state: The name of the corporation, and if it has been changed, the name under which it was originally incorporated; the date of filing the certificate of incorporation in each public office where filed; the purposes, powers or provisions, if any, to be amended or eliminated and the purposes, powers or provisions, if any, to be added or substituted. Such certificate shall be subscribed in the same manner as an original certificate of incorporation under this chapter by the president or a vice-president, by the secretary or the assistant secretary, who shall make and annex an affidavit stating that they have been authorized to execute and file such certificate by the votes cast in person or by proxy by a majority of the members of the corporation entitled to vote. Such certificate shall be filed in the same places as an original certificate of incorporation, and, thereupon, the amendment shall be deemed to have been effected.
(Acts 1935, No. 45, p. 100; Code 1940, T. 18, §30.)
(a) Any utility doing business in this state or any of its authorized agents, officers or employees who knowingly or willfully violate or procure, aid or abet a violation of any lawful order or decree of said commission shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than $1,000.00 for each offense. In the case of a violation of said commission’s orders or decrees, each day’s violation shall be deemed to be a separate offense.
(b) Every officer, agent or employee of any common carrier or corporation who shall violate or who procures, aids or abets any violation of, or who shall fail to obey, observe or comply with any order of the public service commission or any provisions of any order of the commission, or who procures, aids or abets any such common carrier or corporation in its failure to obey, observe and comply with any such order or provision shall be guilty of a misdemeanor and, upon conviction, shall be fined a sum not exceeding $500.00 for each offense, to be fixed by the court or judge trying the case.
(Acts 1907, Ex. Sess., No. 17, p. 29; Acts 1920, No. 37, p. 38; Code 1923, §§5392, 5399; Acts 1932, Ex. Sess., No. 201, p. 209; Code 1940, T. 48, §§399, 405.)
Any officer, agent or employee shall be subject to indictment or prosecution in any county in which a subordinate agent or employee of a common carrier violates any of the provisions of this Code relating to the Public Service Commission, or any rule or order of the commission by the direction or in consequence of the direction of such officer, agent or employee.
(Acts 1907, Ex. Sess., No. 17, p. 29; Code 1923, §5400; Code 1940, T. 48, §406.)
The agent or employee who locally, in any county, violates any of the provisions of this Code relating to the Public Service Commission or any of the rules or orders of the commission, in pursuance of the direction or authority of his superior officer or agent of the common carrier, may be called as a witness and be compelled to testify, showing the authority by which he acted, and such testimony shall not be used against him, nor shall he thereafter be subject to indictment for said offense.
(Acts 1920, No. 37, p. 38; Acts 1923, No. 82, p. 62; Code 1923, §5401; Code 1940, T. 48, §408.)
Witnesses before the grand jury, summoned to give evidence of any violation of this title, may be required to answer generally as to any such offense within their knowledge committed within 12 months next preceding, without being specially interrogated as to any particular offense, but no witness shall be prosecuted for any offense as to which he testifies before the grand jury, and any member of the grand jury or district attorney may be a witness to prove this fact.
(Code 1907, §7693; Code 1923, §5374; Code 1940, T. 48, §425.)
Every person, company or corporation now engaged or hereafter engaging in the business of furnishing electricity or natural or artificial gas for heating, illuminating or other purposes, to be used and paid for by patrons by meter measure, shall furnish to each and every patron a meter properly tested and in good order and shall arrange such meters so that the patron can, at any time, see the meter dial and ascertain how much electricity or gas he is consuming and how much he is liable to pay for.
(Code 1923, §4302; Code 1940, T. 14, §309; Code 1975, §13-2-86.)
Every officer, agent or employee of a common carrier or railroad corporation who shall violate or procure, aid or abet any violation by such common carrier or railroad corporation of any of the statutes of this state relating to reasonable rates, adequate service and unjust discriminations of the public service of any common carrier of this state, or who shall fail to obey, observe or comply with any order of the public service commission or any provisions of any order of said commission, or who procures, aids or abets any such common carrier or corporation in its failure to obey, observe and comply with any such order, direction or provision relating to reasonable rates, adequate service and unjust discrimination by common carriers of this state shall be guilty of a misdemeanor and, on conviction, shall be fined not exceeding $1,000.00, to be fixed by the court.
(Acts 1907, Ex. Sess., No. 12, p. 23; Code 1923, §5350; Code 1940, T. 48, §400.)
Any utility doing business in this state or any of its authorized agents, officers or employees who are guilty of knowingly or willfully charging, demanding or receiving any rate or charge for any commodity or service different from that authorized by its lawful tariffs on file with the Alabama Public Service Commission shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than $1,000.00 for each offense.
(Acts 1920, No. 37, p. 38; Code 1923, §5392; Acts 1932, Ex. Sess., No. 201, p. 209; Code 1940, T. 48, §399.)
Any person or corporation operating a utility who offers, demands or collects, and any person who knowingly accepts, a lower transportation rate, fare or charge for persons or property than that which is applicable at the time must, on conviction, be fined not less than $100.00 nor more than $5,000.00.
(Code 1886, §4147; Code 1896, §5551; Code 1907, §7689; Code 1923, §5370; Code 1940, T. 48, §420.)
Any corporation, partnership, association or person owning or operating a railroad or other utility transporting passengers or property, or officer, servant or agent of any such, who shall knowingly charge or collect a fee or charge at a higher rate for the transportation of passengers or property than prescribed or authorized by law, or fixed by the Public Service Commission, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not less than $50.00 for each offense.
(Code 1923, §5376; Code 1940, T. 48, §426.)
Any utility doing business in this state or any of its authorized agents, officers or employees who are guilty of knowingly or willfully granting or giving to any person or persons any concession or rebate in respect to its lawful charges or rates shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than $1,000.00 for each offense.
(Acts 1920, No. 37, p. 38; Code 1923, §5392; Acts 1932, Ex. Sess., No. 201, p. 209; Code 1940, T. 48, §399.)
Any person who shall demand or knowingly accept or receive any rebate, concession or discrimination in respect to charges or rates of service of any utility subject to the laws of this state, or who shall knowingly, by any device whatever, secure a less rate than that named in the schedule or service regulations of such utility filed with the commission, whereby such person shall receive any service or advantage other than is provided by law, shall be guilty of a misdemeanor and, on conviction thereof, shall be punished by a fine of not more than $1,000.00.
(Acts 1920, No. 37, p. 38; Code 1923, §5397; Code 1940, T. 48, §404.)
Any common carrier, whether a corporation, association, partnership or person, engaged in the business of a common carrier of passengers in this state, or the agent, officer, servant or employee of such, who shall give, procure for or deliver to any person or accept any free passes, tickets or free transportation for any person, or give, make or allow any rebate, discount or reduction from such rates as are offered or given to the public at large, except as provided in Section 37-8-28; and any person other than the persons excepted in Section 37-8-28, who accepts or uses any such free ticket, free passes or free transportation, rebate, discount or reduction shall be guilty of a misdemeanor and shall be indicted as such corporation, partnership or person for each offense and, on conviction, shall be fined not less than $100.00 nor more than $2,000.00, or be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months, one or both, at the discretion of the jury trying the case.
(Code 1907, §7691; Code 1923, §5372; Code 1940, T. 48, §422.)
Section 37-8-27 shall not apply to employees of railroads, or other common carriers and their families, nor to the widows and dependent children of deceased employees, nor to employees who have retired from active service, by reason of age or physical infirmities, and the wives and dependent children of the latter, nor to officers or agents, surgeons, physicians and attorneys-at-law of such carriers, and the immediate families of such persons, to sheriffs, to ministers of religion, traveling secretaries of the Young Men’s Christian Association and the Young Women’s Christian Association, inmates of hospitals and charitable and eleemosynary institutions and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute and homeless persons, and to such persons when transported by charitable societies and hospitals and the necessary agents, employed in such transportation; to the widows of soldiers who served during the Civil War; to inmates of the national home or state home for disabled volunteer soldiers, and of sailors and soldiers homes, including those about to enter, and those returning home after discharge and boards of managers of such homes; to necessary caretakers of livestock, poultry and fruit, to employees on sleeping cars and express cars, and to linemen of telegraph and telephone companies, to railway mail service employees, postoffice inspectors, custom inspectors, and immigration inspectors, to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the carrier is interested, persons injured in wrecks when being transported from the place of injury to their homes and places of treatment and physicians and nurses attending such persons; and members of the public service commission, and its agents and employees when traveling on official business only; but this section shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of railroads and other common carriers and their immediate families, nor prohibit any such carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence or other calamitous visitation. Editors and publishers of newspapers in Alabama may exchange with railroads and other common carriers in this state advertisements and space in the columns of their newspapers for mileage issued to editors and publishers of newspapers over the railroads and other common carriers.
(Code 1907, §7692; Acts 1911, No. 197, p. 193; Acts 1915, No. 500, p. 566; Acts 1923, No. 145, p. 107; Acts 1923, No. 209, p. 218; Code 1923, §5373; Code 1940, T. 48, §423.)
Any officer, agent or servant of a person or corporation operating a railroad who aids in making or carrying out an agreement between railroads, commonly called a pool, for the division between themselves of the freight-carrying business of any place in this state, whereby trade is restrained by the establishment of extortionate rates and the prevention of free competition, unless such agreement has been approved by the Public Service Commission, must, on conviction, be fined not less than $50.00 nor more than $200.00.
(Code 1886, §4145; Code 1896, §5549; Code 1907, §7687; Code 1923, §5368; Code 1940, T. 48, §418.)
Any person or corporation operating a railroad who fails to post and keep posted at all freight depots the tariff of rates for transporting freight, showing general and special rates for each class as prescribed by law and the rules and regulations promulgated by the Alabama Public Service Commission pursuant thereto, must, on conviction, be fined not less than $20.00 nor more than $100.00.
(Code 1886, §4148; Code 1896, §5552; Code 1907, §7690; Code 1923, §5371; Code 1940, T. 48, §421.)
(a) No person shall either personally or through an employee or agent, or as an employee or agent of another, use, operate, place, erect, or move any tools, machinery, equipment, apparatus, or material, or move any building or other structure or any part thereof within 10 feet of a high voltage overhead conductor of electricity except where the person has arranged effectively to safeguard against danger of accidental contact with the high voltage overhead conductor of electricity by any of the following:
(1) The erection of mechanical barriers which shall prevent physical contact with the high voltage overhead conductor.
(2) Deenergizing the high voltage overhead conductor and grounding the same.
(3) Temporary or permanent relocation of the high voltage overhead conductor.
(b) Only in the case of compliance with one or more of the above safety measures, after the negotiation of mutually agreeable arrangements with the owner or operator of the high voltage overhead conductor, may the 10-foot clearance requirement be reduced. In no event shall the provisions of this section be construed to permit any contact being made with high voltage overhead conductors and their supports, whether energized or not. The required 10-foot clearance shall not be provided by impressing strains, by attachment or otherwise, upon the conductors or their supporting structures or upon their appurtenances or associated equipment.
(c) Each person who fails to comply with or who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding five hundred dollars ($500) or imprisonment not exceeding 12 months, or both.
(d) For the purposes of this section, the following terms shall have the following meanings:
(1) HIGH VOLTAGE. A voltage in excess of 750 volts, measured between conductors or measured between the conductor and the ground.
(2) OVERHEAD CONDUCTOR. Any electrical conductor, either bare or covered, installed above the ground, except conductors that are enclosed in iron pipe or other metal covering of equal strength.
(Acts 1967, No. 504, p. 1216, §1; Act 2018-402, §1.)
Whoever operates or employs any person to operate any crane, derrick, power shovel, drilling rig, pile driver, or like apparatus, any part of which is capable of vertical, lateral, or swinging motion, without there being posted and maintained in plain view of the operator thereof a durable, weather-resistant warning sign legible at 12 feet, reading “WARNING, unlawful to operate this equipment within 10 feet of overhead high voltage lines,” is guilty of a misdemeanor and, upon conviction, shall be fined not more than five hundred dollars ($500) and imprisoned for not more than 12 months, or both fined and imprisoned. Each day’s failure to post or maintain such a sign shall constitute a separate offense.
(Acts 1967, No. 504, p. 1216, §2; Act 2018-402, §1.)
The provisions of Sections 37-8-52 through 37-8-55 shall not apply to:
(1) The construction, reconstruction, operation or maintenance of any overhead conductor or its supporting structures, appurtenances and associated equipment by persons authorized by the owner;
(2) The operation of standard railway equipment which is normally used in the transportation of freight or passengers, or the operation of relief trains or other emergency railroad equipment by persons authorized by the owner;
(3) Any construction, reconstruction, operation or maintenance of any overhead structures covered by rules prescribed by the Alabama Public Service Commission; nor
(4) Any person employed or engaged in the electrical generating, transmission, distribution or communication business, nor any agents, employees, lessees, licensees or contractors in connection with work performed or activity conducted for such person engaged or employed in such business.
(Acts 1967, No. 504, p. 1216, §3.)
Nothing in Sections 37-8-52 through 37-8-55 shall be interpreted to relieve any utility company of civil liability that it would otherwise have except for Sections 37-8-52 through 37-8-55.
(Acts 1967, No. 504, p. 1216, §3(a).)
Any person not a passenger or intended passenger, employee or agent of a railroad, or an officer of any city or town, or sheriff or his deputy, or such persons as may go upon the train to act as escort to assist some person who has taken passage, who jumps on or off any train while in motion, shall be guilty of a misdemeanor, and, on conviction, shall be punished by fine and imprisonment, either or both, at the discretion of the court, not to exceed $25.00 fine and 30 days in the county jail.
(Code 1907, §7679; Code 1923, §5360; Code 1940, T. 48, §459.)
Any person charged with a violation of the provisions of this article committed on a train or bus may be tried in any county in which such violation may have occurred or may be discovered; or in any county in which said person may ride on said train or bus, or part thereof, during or after the commission of said offense.
(Code 1907, §7683; Code 1923, §5364; Code 1940, T. 48, §463.)
Any person or corporation operating a railroad which fails for more than 90 days after its receipt, and for such further time, if any, as may be allowed by the Public Service Commission, to comply with a legal order of the public service commission, regarding the erection of a depot, or providing other conveniences for travelers at stations, must, on conviction, be fined not less than $250.00 nor more than $5,000.00. To any indictment under this section, it is good defense that such order was, in view of all the circumstances, unreasonable or unjust.
(Code 1886, §4102; Code 1896, §5364; Code 1907, §7656; Code 1923, §5324; Code 1940, T. 48, §428.)
For failure to notify the proper district attorney and Attorney General, or either, of the failure of any railroad company or person operating the railroad to comply with any order of the Public Service Commission regarding the erection of a depot or providing other convenience for travelers at stations, within 60 days after the period within which such conveniences were required by such order to be erected, each member of the Public Service Commission must, on conviction, be fined not less than $100.00 nor more than $200.00.
(Code 1896, §5365; Code 1907, §7657; Code 1923, §5325; Code 1940, T. 48, §429.)
Any engineer or other person having the control of the running of a locomotive on any railroad who shall fail to perform any of the duties required of him by Section 37-2-81 must, on conviction, be fined not less than $50.00 nor more than $1,000.00, and imprisoned in the county jail for not more than 12 months, one or both at the discretion of the jury.
(Code 1867, §1400; Code 1876, §4256; Code 1886, §4106; Code 1896, §5369; Code 1907, §7662; Code 1923, §5330; Code 1940, T. 48, §434.)
Any superintendent of a railroad who fails to instruct the engineers and conductors thereof as to the provisions of this title in regard to blowing the horn or whistle, ringing the bell and stopping and handling the train, and order them to comply therewith, must, on conviction, be fined not less than $1,000.00, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than 12 months, at the discretion of the jury.
(Code 1867, §1405; Code 1876, §1703; Code 1886, §4104; Code 1896, §5367; Code 1907, §5327; Code 1923, §5327; Code 1940, T. 48, §431.)
Any engineer, conductor or other person who, having the control or management of any engine or electric motor running on any railroad in this state, fails to use proper precautions to prevent accidents by ringing the bell, blowing the horn or whistle or checking the speed of his engine, on approaching any curve in the road, or any depot, station or crossing of any public road, or on leaving any depot or station, must, on conviction, be fined not less than $100.00 nor more than $1,000.00, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months.
(Code 1852, §135; Code 1867, §3677; Code 1876, §4234; Code 1886, §4109; Code 1896, §5372; Code 1907, §7665; Code 1923, §5333; Code 1940, T. 48, §437.)
No member of a train crew, yard crew or engine crew of a railroad, which is a common carrier, shall be held personally responsible or found guilty of violating any law of this state or any municipal ordinance regulating or intended to regulate the occupying or blocking of any street, road or highway crossing-at-grade by trains or passenger or freight cars upon reasonable proof that the occupying or blocking of said street, road or highway crossing-at-grade was necessary to comply with the orders or instructions either written or oral of his employer or its officers or supervisory officials; provided, that the provisions of this section shall not relieve the employer or railroad from any responsibility placed upon said employee or railroad by any such state laws or by such municipal ordinances; provided further, that nothing contained herein shall affect any civil tortious responsibility of the agent, servants, employees and the railroad itself.
(Acts 1969, No. 620, p. 1126, §1.)
Any company, corporation, lessee, owner, operator, receiver or officer of any company, corporation, owner, lessee, operator or receiver owning or operating a railroad or railway in whole or in part in this state, violating or causing to be violated any of the statutes of this state providing for the safety of employees or other persons on railroads, by providing for power headlights on all engines operated in road service in the nighttime, shall be guilty of a crime, and upon conviction, shall forfeit and pay as a penalty $300.00 for each separate offense, which shall be recovered in a civil action in the name of the state, and the complaint shall be filed by the district attorney for the county in which such crime shall have been committed, and all fines collected under and by virtue of the provisions of this section shall revert to and become a part of the public school fund.
(Acts 1915, No. 181, p. 257; Code 1923, §5349; Code 1940, T. 48, §451.)
Any officer or agent of a person or corporation operating a railroad who knowingly violates a judgment of the circuit court confirming the public service commission’s award, regulating such railroad’s business with any connecting line, must, on conviction, be fined not less than $10.00 nor more than $500.00.
(Code 1886, §4103; Code 1896, §5366; Code 1907, §7658; Code 1923, §5326; Code 1940, T. 48, §430.)
Any person, firm, company or corporation who shall make application to any common carrier by rail for, and shall procure from such common carrier any number of cars without a bona fide intention to use the same for the transportation of freight, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than $500.00 nor more than $5,000.00 for each offense.
(Code 1907, §7673; Code 1923, §5342; Code 1940, T. 48, §444.)
Any person who shall, without written authority from the railroad company owning the same, purchase or receive for sale, or in pledge or on storage, or for safekeeping, any article of iron, brass or other metal which has been manufactured and is used exclusively for railroad purposes without the consent in writing of the president, vice-president, general manager, superintendent or purchasing agent of such railroad company shall be guilty of a misdemeanor and upon conviction be fined in a sum not less than $100.00 nor more than $500.00, or be imprisoned not less than six months nor more than one year, or both, at the discretion of the court, and proof of possession of any said articles shall be prima facie evidence of violation of this section.
(Acts 1932, Ex. Sess., No. 145, p. 167; Code 1940, T. 48, §467.)
[Repealed]
Repealed by Act 2015-70 effective April 21, 2015.
(Acts 1907, Ex. Sess., No. 60, p. 87; Acts 1909, No. 191, p. 63; Acts 1915, No. 2, p. 8; Code 1923, §4641; Code 1940, T. 29, §116.)
Every person who, being employed upon any railway as engineer, conductor, baggage master, brakeman, switch tender, flagman or signal man or person having charge of stations or the starting, regulating or running of trains upon any railway, or being employed as captain, engineer or other officer of any vessel, shall be intoxicated while engaged in the discharge of any such duties, shall be guilty of a misdemeanor.
(Acts 1909, No. 191, p. 63; Code 1923, §4628; Code 1940, T. 29, §104.)
It shall be unlawful to transport, carry or convey, or cause to be transported, carried or conveyed, any dynamite, gunpowder or other explosive, between any points or places within the State of Alabama, on any vessel, car or vehicle of any description, operated by any common carrier, which vessel, car or vehicle is carrying passengers for hire. It shall be lawful to transport on any such vessel, car or vehicle small arms ammunition in any quantity and such fusees, torpedoes, rockets or other signal devices as may be essential to promote safety in operation, and properly packaged and marked samples for laboratory examination, not exceeding a net weight of one-half pound each, and not exceeding 20 samples at one time in a single vessel, car or vehicle; but such samples shall not be carried in that part of a vessel, car or vehicle which is intended for the transportation of passengers for hire. Nothing in this section shall be construed to prevent transportation of military or naval forces with their accompanying munitions of war on passenger equipment vessels, cars or vehicles.
(Acts 1911, No. 368, p. 409; Code 1923, §5377; Code 1940, T. 48, §468.)
It shall be unlawful to transport, carry or convey, or cause to be transported, carried or conveyed, liquid nitroglycerine, fulminate in bulk in dry condition or other like explosive between any points or places within the State of Alabama, on any vessel, car or vehicle of any description operated by a common carrier in the transportation of passengers, or articles of commerce by land or water.
(Acts 1911, No. 368, p. 409; Code 1923, §5378; Code 1940, T. 48, §469.)
Every package containing explosives or other dangerous articles, when presented to a common carrier for shipment, shall have plainly marked on the outside thereof the contents thereof, and it shall be unlawful for any person, partnership or corporation to deliver for transportation to any common carrier engaged in commerce by land or water, or to cause to be delivered or to carry any explosive or other dangerous article, under any false or deceptive marking, description, invoice, shipping order or other declaration or without informing the agent of such carrier of the true character thereof, at or before the time such delivery or carriage is made, and it shall be unlawful for any person to carry or place, or cause to be carried or placed on any vessel, car or other vehicle on which passengers are carried for hire, any of the explosives in this division prohibited from being carried on vessels, cars or other vehicles on which passengers are carried for hire.
(Acts 1911, No. 368, p. 409; Code 1923, §5379; Code 1940, T. 48, §470.)
The Public Service Commission of Alabama shall formulate regulations for the safe transportation of explosives between points or places in Alabama, which shall be binding upon all common carriers and shippers and their agents. Said commission of its own motion, or upon application made by any interested party, may make changes or modifications in such regulations made desirable by new information or altered conditions. Such regulations shall be in accord with the best known practicable means for securing safety in transit covering the packing, marking, loading, handling while in transit and the precautions necessary to determine whether the material when offered is in proper condition to transport. Such regulations as well as all changes or modifications thereof shall take effect 20 days after their formulation and promulgation by said commission and shall be in effect until set aside or modified.
(Acts 1911, No. 368, p. 409; Code 1923, §5380; Code 1940, T. 48, §471.)
(a) Any person, partnership or corporation who knowingly violates or causes to be violated any of the foregoing provisions of this division or any regulation made by the Public Service Commission of Alabama in pursuance thereof shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished for each offense by a fine not exceeding $2,000.00, or by imprisonment not exceeding 18 months, or both such fine and imprisonment, in the discretion of the court.
(b) When the death or bodily injury of any person is caused by the explosion of any article named in this division, while the same is being placed upon any vessel or vehicle to be transported, in violation thereof, while the same is being so transported, or while the same is being removed from such vessel or vehicle, the person knowingly placing or aiding or permitting the placing of such article upon any such vessel or vehicle, to be so transported, shall be guilty of a felony and may be imprisoned in the penitentiary for not more than 10 years.
(Acts 1911, No. 368, p. 409; Code 1923, §§5381, 5382; Code 1940, T. 48, §§472, 473.)
(a) No person, firm, association or corporation shall erect or maintain on any public road or street in the State of Alabama, or on private property within one fourth of a mile of the right-of-way of any public road or street, any advertising sign that resembles or that can reasonably be mistaken for a railroad crossing sign; and the owner or person in possession of such private property shall not knowingly permit another to erect or maintain such sign on such private property.
(b) The person, firm, association or corporation whose name shall appear on said sign as the beneficiary of the advertising thereon shall be prima facie presumed to be the party guilty of erecting and maintaining the same, whether it be on a public road or street or on private property, within one fourth of a mile of the right-of-way of a public road or street.
(c) No owner or person in possession of private property upon which such sign or signs are erected shall allow said signs to remain on said premises or lands in his possession after having notice for 10 days that the sign or signs are on his premises or land in his possession.
(d) The sheriff of every county in which such signs have been erected or may hereafter be erected shall report the facts to the grand jury of his county giving the name or names of such person, firm, association or corporation erecting or maintaining such sign or signs.
(e) Any person, firm, association or corporation, or agent or employee thereof, violating the provisions of subsections (a) through (d) of this section shall be deemed guilty of a misdemeanor, and on conviction, shall be fined not less than $25.00 nor more than $100.00 for each offense in erecting such signs, or in knowingly permitting such signs to be erected on his premises, as before defined, and for maintaining such signs, or knowingly permitting such signs to be maintained on his premises, shall be fined not less than $25.00 for every day that such sign or signs shall be maintained.
(f) Nothing in subsections (a) through (e) of this section shall be so construed as to prevent any railroad company from erecting and maintaining at road crossings proper danger signals or signs.
(Acts 1919, No. 163, p. 151; Code 1923, §§5343-5348; Code 1940, T. 48, §§445-450.)
(a) Any owners, manager, operator or employee of any telegraph or telephone lines operated in the State of Alabama who shall publish or communicate in any way whatsoever or cause or allow to be communicated the contents of any telegram or telephone message sent or received over said line or lines without the consent of either the sender or receiver of the same shall be guilty of a misdemeanor and, on conviction, shall be fined not less than $25.00 nor more than $100.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than 12 months.
(b) Nothing contained in subsection (a) of this section shall apply when such information is called for by any writ or summons from any court.
(Acts 1915, No. 301, p. 321; Code 1923, §§5543, 5545; Code 1940, T. 48, §§416, 417.)
[Repealed]
Repealed by Act 2015-70 effective April 21, 2015.
(Acts 1961, Ex. Sess., No. 71, p. 1946.)
For the purposes of this section, and Sections 37-8-218, 37-8-220, and 37-8-221, the term “prohibited instrument” shall mean and include any instrument, apparatus, equipment, device or appliance, or the plan or instruction for the making or assembling thereof, which is designed, adapted or may be used to avoid billing to the proper person or payment of the lawful price, charge or toll, in whole or in part, for any telephone, telegraph or other telecommunication service or for the transmission of a message, signal or other communication by or over the facilities of telephone, telegraph or other telecommunication, or to conceal the existence, place of origin or destination or the true identity of the sender, addressee or receiver of any message, signal or other communication by or over the facilities of telephone, telegraph or other telecommunication from the supplier thereof or any lawful authority or to violate any provision of this section, Section 37-8-218, Section 37-8-220, or Section 37-8-221.
(Acts 1965, No. 698, p. 1297, §5.)
(a) It shall be unlawful for any person to make, manufacture, possess, use, employ, transport, purchase, sell, give, transfer to another or offer or advertise to sell, give or otherwise transfer to another, or to conspire with, aid, assist or cause another to do any of the foregoing, any prohibited instrument, as defined in this section, Sections 37-8-217, 37-8-220, and 37-8-221, with intent to use or employ or to allow same to be used or employed, or with knowledge or good reason to believe that such instrument is intended to be used or employed, or designed or adapted to be used or employed, to violate any provision of this section, Section 37-8-217, Section 37-8-220, or Section 37-8-221, or to conceal the existence, place of origin or destination, or the true identity of the sender, addressee or receiver of any message, signal or other communication by or over the facilities of telephone, telegraph or other telecommunication from the supplier of such service or any lawful authority.
(b) The unexplained making or manufacturing, possessing, using, employing, transporting, purchasing, selling, giving or transferring, offering or advertising to sell, give or otherwise transfer to another, or attempting, aiding, assisting or causing any other person to do any of the foregoing, of any prohibited instrument shall be prima facie evidence of violation of this section, Section 37-8-217, Section 37-8-220, or Section 37-8-221.
(Acts 1965, No. 698, p. 1297, §§4, 6.)
Any person who violates any provision of this section, Section 37-8-217, Section 37-8-218, or Section 37-8-221 shall be guilty of a misdemeanor, punishable by a fine of not less than $50.00 nor more than $1,000.00, to which, at the discretion of the court or judge trying the case, may be added imprisonment in the county jail or at hard labor for the county for not more than 12 months. Any person who violates any provision of this section, Section 37-8-217, Section 37-8-218, or Section 37-8-221 who has been previously convicted of violating this section, Section 37-8-217, Section 37-8-218, or Section 37-8-221 or of any crime in this or any other state or federal jurisdiction involving fraud or which carries possible punishment by confinement in the penitentiary shall be guilty of a felony and, upon conviction thereof, shall be punished by confinement at hard labor in the penitentiary for not less than one year nor longer than 10 years.
(Acts 1965, No. 698, p. 1297, §8.)
(a) In addition to the grounds enumerated in Section 15-5-2 for the issuance of search warrants, search warrants may be issued as prescribed in Title 15, for the seizure of any prohibited instrument, as defined in Sections 37-8-217, 37-8-218, 37-8-220, and this section.
(b) Any such prohibited instrument may be seized by court order, under a search warrant or incident to lawful arrest, and shall be held by the sheriff or other lawful peace officer subject to the order of the magistrate or the court to which the proceedings may be carried by appeal; and, upon final disposition of any proceedings in connection with any prohibited instrument, as defined by Sections 37-8-217, 37-8-218, 37-8-220, and this section, such prohibited instrument shall be destroyed by such officer.
(c) Any prohibited instrument, as defined by Sections 37-8-217, 37-8-218, 37-8-220, and this section, lawfully seized, shall not be taken from the custody of the officer by replevin or detinue or other process if it can be shown by such officer that the article seized is a “prohibited instrument,” as defined by this article.
(Acts 1965, No. 698, p. 1297, §9.)
Every public service corporation engaged in transportation doing business in this state, employing as many as 50 or more employees, shall be required to make full payment to employees for services performed as often as once every two weeks, or twice during each calendar month, and such payment or settlement shall include all amounts due for labor or services performed up to not less than 15 days previous to the time of payment. Any public service corporation engaged in transportation who violates this section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $25.00 nor more than $250.00 for each offense, and each day’s violation against each employee shall constitute a separate offense.
(Acts 1931, No. 525, p. 636; Code 1940, T. 48, §474.)
Any agent, officer or attorney of any traffic association or freight bureau who asks, solicits or bids for any claim from any shipper or consignee against any carrier shall be guilty of a misdemeanor and, upon conviction, shall be fined for each offense not less than $500.00 nor more than $1,000.00.
(Code 1923, §5389; Code 1940, T. 48, §475.)
This chapter shall be known and may be cited as the “Alabama Air Commerce Act.”
(Acts 1945, No. 269, p. 414, §27.)
As used in this chapter, unless the context otherwise requires:
(1) AIR CARRIER. This term includes both a common carrier by aircraft and a contract carrier by aircraft.
(2) AIR COMMERCE. The carriage by aircraft of persons or property, or any class or classes thereof, for compensation or hire in intrastate commerce in this state, including such aircraft operations of carriers by rail, water or motor vehicle, and/or express or forwarding companies, except pilot training, flight instruction, sale of property and services for aircraft, engines and accessories.
(3) AIRCRAFT. Any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air.
(4) BROKER. Any person not included in the term “air carrier” and not a bona fide employee or agent of any such carrier, who or which, as principal or agent, sells or offers for sale any transportation subject to this chapter, or negotiates for or holds himself, or itself, out by solicitation, advertisement or otherwise as one who sells, provides, furnishes, contracts or arranges for such transportation.
(5) CERTIFICATE. A certificate of public convenience and necessity issued under this chapter to a common carrier by aircraft.
(6) CITIZEN OF THE UNITED STATES.
a. An individual who is a citizen of the United States or one of its possessions, territorial or otherwise, or
b. A partnership of which each member is such an individual, or
c. A corporation or association created or organized under the laws of the United States or of any state, territory or possession of the United States, of which the president and two-thirds or more of the board of directors and other managing officers thereof are such individuals, and in which at least 75 percent of the voting interest is owned or controlled by persons who are citizens of the United States or one of its possessions.
(7) COMMISSION. The Alabama Public Service Commission.
(8) COMMON CARRIER BY AIRCRAFT. Any person which holds itself out to the general public, whether directly or indirectly, or by a lease or other arrangement and, whether over regular or irregular routes, to engage in air commerce.
(9) CONTRACT CARRIER BY AIRCRAFT. Any person, who, except as provided in subsection (a) of Section 37-9-20, undertakes, otherwise than as a common carrier by aircraft, whether directly or indirectly, or by a lease or any other arrangement, to engage in air commerce.
(10) LICENSE. A license issued under this chapter to a broker.
(11) OVERCHARGES. Charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the commission.
(12) PERMIT. A permit issued under this chapter to a contract carrier by aircraft.
(13) PERSON. Any individual, firm, copartnership, corporation, company, association, joint stock association or a body politic and includes any trustee, receiver, assignee or other similar representative thereof.
(14) SERVICE and TRANSPORTATION. Such terms include all aircraft operated by, for, or in the interest of any air carrier irrespective of ownership or of contract, express or implied, together with all facilities and property operated or controlled by any such carrier or carriers and used in air commerce or in the performance of any service in connection therewith.
(15) STATE. Any of the several states or the District of Columbia.
(Acts 1945, No. 269, p. 414, §1.)
Nothing in this chapter shall be construed to apply to:
(1) The transportation or handling of United States mail; or
(2) The casual, occasional or reciprocal carriage of passengers or property by aircraft in intrastate commerce for compensation by any person not engaged in air commerce as a regular occupation or business, unless, in the case of transportation of passengers, such transportation is sold or offered for sale or provided or procured or furnished or arranged for by a broker, or by any other person who sells or offers for sale transportation furnished by a person lawfully engaged in the transportation of passengers by aircraft under a certificate or permit issued under this chapter or under a pending application for such certificate or permit.
(Acts 1945, No. 269, p. 414, §2.)
Nothing in this chapter shall apply to, or be construed or held to apply to, any common carrier by aircraft which the commission shall by order determine to be engaged mainly and principally in interstate commerce and whose intrastate business is incidental to its interstate business, provided the commission shall find that its operations are conducted pursuant to a certificate or certificates of public convenience and necessity issued by the Civil Aeronautics Board of the United States of America or by any other governmental agency successor thereto.
(Acts 1945, No. 269, p. 414, §25.)
(a) It is hereby declared to be the policy of this state to regulate intrastate air commerce in such manner as to:
(1) Recognize and preserve the inherent advantages of such commerce;
(2) Foster sound economic conditions in such commerce and among air carriers in the public interest;
(3) Promote adequate, economical and efficient service by air carriers and to provide reasonable charges therefor, without unjust discrimination, undue privileges or advantages and unfair or destructive competitive practices;
(4) Provide for competition to the extent necessary to assure the sound development of an air transportation system properly adapted to meet the needs of the commerce of the United States and this state and of the national and state defense;
(5) Improve the relations between and coordinate transportation by and regulation of air carriers and other carriers; and
(6) Cooperate with the federal government and the several states of the United States and the duly authorized officials thereof in the administration and enforcement of this chapter.
(b) All of the provisions of this chapter shall be administered and enforced with a view to carrying out the above declaration of policy.
(Acts 1945, No. 269, p. 414, §3.)
Nothing in this chapter shall confer any proprietary or property rights in the use of airspace over the State of Alabama.
(Acts 1945, No. 269, p. 414, §4.)
No person shall engage in air commerce except in accordance with the provisions of this chapter, and every person engaging in air commerce is hereby declared to be subject to control, supervision and regulation by the commission.
(Acts 1945, No. 269, p. 414, §5.)
It shall be the duty of the commission to administer the provisions of this chapter, and to that end the commission is hereby authorized to make and amend such general or specific rules and regulations and to issue such orders as may be reasonably necessary to carry out such provisions.
(Acts 1945, No. 269, p. 414, §6.)
The commission shall have authority, for purposes of the administration of the provisions of this chapter, to inquire into the management of the business of air carriers and brokers and into the management of the business of persons controlling, controlled by or under common control with air carriers, to the extent that the business of such persons is related to the management of the business of one or more air carriers, and the commission shall keep itself informed as to the manner and method in which the same are conducted and may require such carriers and persons to furnish such information as the commission deems necessary to carry out the provisions of this chapter.
(Acts 1945, No. 269, p. 414, §6.)
The commission may make such just and reasonable classifications for brokers and air carriers, according to geographical sections, types or otherwise, as it may determine to be in the public interest, and may make any provision of this chapter inapplicable to any or all brokers or air carriers or classes thereof for such periods or until such time and subject to such terms and conditions, as it may deem to be in the public interest. Such action shall be taken with the objective of so adjusting the regulatory provisions hereof to the changing conditions of the brokerage and air carrier business as to avoid undue administrative burdens.
(Acts 1945, No. 269, p. 414, §6.)
The commission may investigate, either upon complaint or upon its own initiative, whether any broker or air carrier has failed to comply with any provisions of this chapter or with any orders, rules, regulations or requirements issued or established pursuant thereto and, after notice and hearing, take appropriate action to compel compliance therewith. Whenever the commission is of the opinion that any complaint does not state reasonable grounds for action on its part, it may dismiss such complaint.
(Acts 1945, No. 269, p. 414, §6.)
The commission is authorized to confer with or to hold joint hearings with any authorities of any state or of the government of the United States having jurisdiction with respect to matters involving air carriers, in connection with any matter arising under this chapter. The commission is also authorized to avail itself of the cooperation, services, records and facilities of such authorities, as fully as may be practicable, in the enforcement or administration of any provision of this chapter.
(Acts 1945, No. 269, p. 414, §6.)
The commission shall have authority to investigate all interstate rates, fares, charges, classifications and services, or rules or practices in relation thereto, for or in relation to the interstate transportation of property or passengers by aircraft, where any act in relation thereto shall take place within, or affect the commerce of, the state. When such rates, fares, charges or classifications are, in the opinion of the commission, excessive or discriminatory or are levied or laid in violation of the act of Congress entitled “The Civil Aeronautics Act of 1938,” approved June 23, 1938, and the acts amendatory thereof and supplementary thereto, or in conflict with the rules, orders or regulations of the authorities having jurisdiction thereof, or when such services are, in the opinion of the commission, inadequate, unsatisfactory or discriminatory, the commission may apply by petition to the authorities having jurisdiction thereof, for relief and may present to such authorities all facts coming to the commission’s knowledge as to violations of the rules, orders or regulations of such authorities or as to violations of the said Civil Aeronautics Act of 1938, or acts amendatory thereof or supplementary thereto.
(Acts 1945, No. 269, p. 414, §6.)
Except as herein otherwise expressly provided, in all respects in which the commission has power and authority under the Constitution of this state or this chapter, applications and complaints may be made and filed with the commission; processes, notices and orders issued, served and proved; hearings held, opinions, orders and decisions made, reconsidered, amended, revoked and filed; petitions for rehearing filed and acted upon; and appeals and petitions for writs of mandate filed with the courts of this state and considered and disposed of by said courts, in regard to the matters provided for in this chapter, in the same manner, under the same conditions and subject to the same limitations and with the same effect specified in Chapter 3 of this title, or acts amendatory thereof or supplementary thereto, as far as may be practicable.
(Acts 1945, No. 269, p. 414, §6.)
No member of the commission nor any employee of the commission appointed or employed in the administration of this chapter, shall in any manner, directly or indirectly, have pecuniary interest in, or any securities of, or hold any position with, any air carrier, broker, motor carrier, railroad, steamboat or canal company.
(Acts 1945, No. 269, p. 414, §6.)
(a) Certificate. No person shall engage in the business of a common carrier by aircraft unless there is in force a certificate issued by the commission authorizing such person to engage in such business.
(b) Permit. No person shall engage in the business of a contract carrier by aircraft, except passenger common carriers by aircraft, as provided in subsection (a) of Section 37-9-20, unless there is in force a permit issued by the commission authorizing such person to engage in such business.
(Acts 1945, No. 269, p. 414, §7.)
(a) Applications for certificates and permits shall be made in writing to the commission, be verified under oath and shall be in such form and contain such information and be accompanied by proof of service upon such interested parties as the commission shall, by regulation, require.
(b) Upon the filing of applications for certificates or permits, the commission shall give due notice thereof:
Any interested person may file with the commission a protest or memo of opposition to or in support of the issuance of a certificate or permit. A public hearing shall be held on such application if the applicant or any person having a substantial interest in the proceeding shall so request within such time as the commission shall by reasonable regulation provide, unless the commission be of the opinion that such request be not made in good faith or made for the purpose of delay, in which case the commission shall set forth in writing their reasons for such refusal.
(c) The commission, upon its own initiative, whenever it deems such action advisable, may conduct an investigation to determine whether additional air transportation appears to be needed, and if, after such investigation, the commission is of the opinion that such procedure is appropriate, it may encourage the filing of applications for certificates authorizing the furnishing of such transportation. If such transportation may be furnished through the extension of existing service, the commission may institute a proceeding to require such extension in accordance with the provisions of Section 37-9-22.
(Acts 1945, No. 269, p. 414, §8.)
No certificate or permit shall be issued to an air carrier or shall remain in force unless such carrier complies with such reasonable rules and regulations as the commission shall prescribe covering the filing and approval of surety bonds, policies of insurance, qualifications as a self-insurer or other securities or agreements in such reasonable amount as the commission may require, conditioned to pay, within the amount of such surety bonds, policies of insurance, qualifications as a self-insurer or other securities or agreements, any final judgment recovered against such air carrier for a bodily injury or the death of any person resulting from the negligent operation, maintenance or use of aircraft under such certificate or permit, or for loss or damage to property of others. The commission may, in its discretion and under such rules and regulations as it shall prescribe, require any such air carrier to file a surety bond, policies of insurance, qualifications as a self-insurer or other securities or agreements, in a reasonable sum to be determined by the commission, to be conditioned upon such carrier making compensation to shippers or consignees for all property belonging to shippers or consignees and coming into the possession of such carrier in connection with its transportation service. Any carrier which may be required by law to compensate a shipper or consignee for any loss, damage or default for which a connecting carrier is legally responsible shall be subrogated to the rights of such shipper or consignee under any such bond, policies of insurance or other securities or agreements, to the extent of the sum so paid. Nothing in this chapter shall relieve a certificate or permit holder from any liability for negligence, whether or not it has complied with the requirements of this section.
(Acts 1945, No. 269, p. 414, §15.)
(a) The commission shall, subject to subsections (b) and (d) of this section and Section 37-9-18, issue a certificate or permit as applied for authorizing the whole or any part of the operation covered by an application for a certificate or permit, if it finds that the applicant is fit, willing and able to perform such operation properly and to conform to the provisions of this chapter and the rules, regulations and requirements of the commission hereunder, and that such operation, and the performance thereof by the applicant, is required by public convenience and necessity or for the public interest, as the case may be, and is consistent with the declaration of policy declared in Section 37-9-5; otherwise, such application shall be denied. If the commission finds that the public convenience and necessity or the public interest, as the case may be, requires operation of the applicant as a common or contract carrier by aircraft only for a limited period or periods, it shall issue a certificate or permit only for such period or periods.
(b) No certificate or permit shall be issued under this chapter to any person who is not a citizen of the United States.
(c) No certificate or permit shall be issued to any person to operate as an air carrier unless the applicant submits evidence, reasonably satisfactory to the commission, showing that it will comply with the provisions of the laws of the United States and the lawful rules, regulations and orders thereunder, respecting safety of operations and the provisions of the Alabama Aeronautics Department Act, or any act amendatory thereof or supplementary thereto, with respect to the right to use such airports, air lanes and aircraft, as may be necessary in order to properly conduct the proposed operation and observe proper standards of safety in the operation or navigation of aircraft.
(d) To enable the provision of service for which there is an immediate and urgent need to a point or points or within a territory having no air carrier service capable of meeting such need, the commission may, in its discretion and without hearings or other proceedings, grant temporary authority for such service by a common carrier or a contract carrier by aircraft, as the case may be. Such temporary authority, unless suspended or revoked for good cause shall be valid for such time as the commission shall specify, but for not more than an aggregate of 120 days, and shall in no event create a presumption that corresponding permanent authority will be granted thereafter. Transportation services rendered under such temporary authority shall be subject to all applicable provisions of this chapter and to the rules, regulations and requirements of the commission thereunder.
(Acts 1945, No. 269, p. 414, §9.)
(a) Each certificate issued under this chapter shall specify the points between which, or areas within which the person is authorized to engage in operations as a common carrier by aircraft, the services to be rendered and, in the case of carriage of goods, the commodity or commodities authorized to be transported. There shall be attached to the exercise of the privileges granted by such certificate, or amendment thereto, such reasonable terms, conditions and limitations as the public interest may require; except, that no term, condition or limitation shall restrict the right of the common carrier by aircraft to add to or change schedules, equipment, accommodations and facilities for performing the authorized transportation and service as the development of the business and the demands of the public shall require. Any common carrier by aircraft transporting passengers under a certificate issued by the commission may make charter trips or perform any other special service without regard to the points named in its certificate, under regulations prescribed by the commission. In making such trips and performing such service, a common carrier by aircraft shall not be considered a contract carrier by aircraft or subject to the provisions of this chapter relating to contract carriers by aircraft.
(b) Each permit issued under this chapter shall specify the points between which, or area within which, operation as a contract carrier by aircraft is to be permitted, the nature of the traffic and the scope of the business to be authorized thereby, and, in the case of the carriage of goods, the commodity or commodities authorized to be transported. There shall be attached to the exercise of the privileges granted by such permit, or amendment thereto, such reasonable terms, conditions and limitations as the public interest may require; except, that no term, condition or limitation shall restrict the right of the common carrier by aircraft to change or add contracts within the scope of the permit or to change or add to its equipment or facilities for performing the authorized operation as the public interest may require; but such permit shall not authorize operation as a common carrier by aircraft.
(c) Each certificate or permit shall be effective from the date specified therein and shall continue in effect until suspended or revoked as hereinafter provided or until the commission shall certify that operation thereunder has ceased or, if issued for a limited period of time under subsection (d) of Section 37-9-19, shall continue in effect until the expiration thereof, unless, prior to the date of expiration, such certificate or permit shall be modified, suspended or revoked as provided herein, or the commission shall certify that operations thereunder have ceased; provided, that if any service authorized by a certificate or permit is not inaugurated within such period, not less than 90 days after the date of the authorization as shall be fixed by the commission or, if for a period of 90 days or such other greater period as may be designated by the commission any such service is not operated, the commission may, by order entered after notice and opportunity for hearing, direct that such certificate or permit shall thereupon cease to be effective to the extent of such service.
(d) No aircraft shall be deemed to have violated any term, condition or limitation of its certificate or permit, as the case may be, by landing or taking-off in an emergency at a point not carried in its certificate or permit or by operating during an emergency between terminal and intermediate points other than those specified in its certificate or permit.
(Acts 1945, No. 269, p. 414, §10.)
The commission, upon petition or complaint or upon its own initiative, after notice and opportunity for hearing, may by order alter, amend, modify, suspend or revoke any certificate or permit, in whole or in part, for intentional misrepresentation of a material fact in obtaining such certificate or permit or for intentional failure to comply with any provision of this chapter or any order, rule or regulation issued hereunder or any term, condition or limitation of such certificate or permit; provided, that no such certificate or permit shall be revoked for failure to comply with any provision of this chapter or any order, rule or regulation issued hereunder, or any term, condition or limitation of such certificate or permit, unless the holder thereof fails to comply, within a reasonable time to be fixed by the commission, with an order of the commission commanding obedience to the provisions or to the order (other than an order issued in accordance with this provision), rule, regulation, term, condition or limitation found by the commission to have been violated. Any interested person may file with the commission a protest or memorandum in support of or in opposition to the alteration, amendment, modification, suspension or revocation of a certificate.
(Acts 1945, No. 269, p. 414, §1.)
The commission, upon petition or complaint or upon its own initiative, after notice and opportunity for hearing, may by order require any common carrier by aircraft to make reasonable extension of its existing service if the commission finds that such extension is required by the public convenience and necessity and that the expense involved will not impair the ability of such common carrier to perform its duties to the public under its existing certificate or certificates. Such order shall provide for such amendment of the certificate or certificates held by such common carrier as may be necessary because of such extension.
(Acts 1945, No. 269, p. 414, §12.)
Any certificate or permit may be transferred or leased subject to the approval of the commission and under such rules and regulations as may be prescribed by the commission. Except where a transfer of a certificate or a permit results from the operation of law, approval of such transfer or lease shall be given only upon a finding by the commission, after notice and opportunity for a hearing, that such transfer or lease will be consistent with the public interest. The application for approval shall be made jointly by the transferor and the transferee or lessor and lessee. No value shall be allowed for any purpose for any certificate or permit issued under this chapter.
(Acts 1945, No. 269, p. 414, §13.)
(a) No person shall, for compensation, sell or offer for sale transportation subject to this chapter or shall make any contract, agreement or arrangement to provide, procure, furnish or arrange for such transportation or shall hold himself or itself out by advertisement, solicitation or otherwise as one who sells, provides, procures, contracts or arranges for such transportation, unless such person holds a brokers license issued by the commission to engage in such transaction; provided, that no such person shall engage in transportation subject to this chapter unless he or it holds a certificate or permit as provided in this chapter. In the execution of any contract, agreement or arrangement to sell, provide, procure, furnish or arrange for such transportation, it shall be unlawful for such person to employ any air carrier who, or which, is not the lawful holder of a certificate or permit issued as provided in this chapter; provided, that the provisions of this subsection shall not apply to any carrier holding a certificate or permit under the provisions of this chapter or to any bona fide employee or agent of such carrier, so far as concerns transportation to be furnished wholly by such carrier or jointly with other carriers holding like certificates or permits or with a common carrier by railroad, motor vehicle, express or water.
(b) The provisions of subsections (a) and (b) of Section 37-9-17 shall apply with like force and effect to brokerage licenses and, for such purpose the term “certificate” as used in such subsections shall include “license.” A brokerage license shall be issued to any qualified applicant to have authority to engage in the whole or any part of the operations covered by the application if it is found that the applicant is fit, willing and able properly to perform the services proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent to be authorized by the license is, or will be, consistent with the public interest and the declaration of policy contained in Section 37-9-5; otherwise such application shall be denied.
(c) The provisions of Sections 37-9-21 and 37-9-23 shall apply with like force and effect to brokerage licenses, and for such purpose the term “certificate” as used in such sections shall include “license.”
(d) The commission shall prescribe reasonable rules and regulations for the protection of travelers or shippers by air carrier, to be observed by any person holding a brokerage license, and no such license shall be issued or remain in force unless such person shall have furnished a bond or other security approved by the commission in such form and amount as will insure financial responsibility and the supplying of authorized transportation in accordance with contracts, agreements or arrangement therefor.
(e) The commission and its employees shall have the same authority as to accounts, reports and records, including inspection and the preservation thereof, of any person holding a brokerage license issued under the provisions of this section that they have under this chapter with respect to air carriers.
(Acts 1945, No. 269, p. 414, §16.)
(a) The commission shall have the right to fix reasonable fees to be paid to the commission by any applicant for a certificate or permit or for any other purpose provided for by the terms of this chapter; provided, that such fees in all instances be reasonable and comparable to the fees charged and collected from applicants for certificates or permits or otherwise for other modes of transportation than by aircraft.
(b) All fees or sums collected by the commission under the provisions of this chapter shall be deposited with the State Treasurer of Alabama and shall be set aside by him in a separate fund earmarked for the use of the commission in the administration and enforcement of this chapter.
(Acts 1945, No. 269, p. 414, §22.)
No common carrier by aircraft shall abandon or discontinue any route, or part thereof, for which a certificate has been issued by the commission, unless upon the application of such common carrier, after notice and opportunity for hearing, the commission shall find such abandonment or discontinuance to be in the public interest. Any interested person may file with the commission a protest or memorandum of opposition to or in support of any such abandonment. The commission may, by regulation or otherwise, authorize such temporary suspension of service as may be in the public interest.
(Acts 1945, No. 269, p. 414, §14.)
(a) Every common carrier by aircraft shall file with the commission, print and make available to the public, tariffs showing all the rates, fares and charges for the intrastate transportation of persons or property within the state between points served by it, and between points served by it and points served by any other common carriers when through intrastate service and rates have been established, and all classifications, rules, regulations, practices and services in connection with such transportation.
(b) Every contract carrier by aircraft shall file with the commission, print and make available to the public, tariffs showing all minimum rates, fares and charges for the intrastate transportation of persons or property within the state, and all classifications, rules, regulations, practices and services in connection with such transportation.
(c) Air carrier tariffs shall be filed, printed and made available to the public to the extent and in the manner required by reasonable regulations of the commission. The form of such tariff shall be prescribed by the commission and shall conform as nearly as may be to the form of tariffs required of air carrier and air contractors by the Civil Aeronautics Board or other administrative agency of the federal government under the Act of Congress entitled, “The Civil Aeronautics Act of 1938,” approved June 23, 1938, and the acts amendatory thereof and supplementary thereto. The rates, fares and charges shown in any tariff shall be stated in terms of lawful money of the United States.
(d) The commission is empowered to reject any tariff which is not consistent with this section and the reasonable regulations of the commission thereunder. Any tariff so rejected shall be void.
(e) No common carrier by aircraft shall charge or demand or collect or receive a greater or less or a different compensation for the intrastate transportation of persons or property, or for any service in connection therewith, than the rates, fares and charges specified in its currently effective tariff; and no common carrier by aircraft shall in any manner or by any device, directly or indirectly, or through any agent or broker, or otherwise, refund or remit any portion of the rates, fares or charges so specified or extend to any person any privileges or facilities, with respect to matters required by the commission to be specified in such tariffs, except those specified therein. In the event that an excessive rate, fare or charge is stated in a currently effective tariff through error, the common carrier by aircraft may, in accordance with the regulations prescribed by the commission, make appropriate refunds to any persons paying such charge.
(f) No contract carrier by aircraft shall charge, demand, collect or receive a less compensation for the transportation of persons or property, or for any service in connection therewith, than the rates or charges specified in its currently effective tariffs; and no contract carrier shall in any manner or by any device, directly or indirectly, or through any agent or broker, or otherwise, refund or remit any portion of the compensation for such transportation so as to reduce such compensation below the rate, fare or charge so specified or extend to any person any privileges or facilities, with respect to matters required by the commission to be specified in such tariffs, except those specified therein. In the event that an excessive minimum rate, fare or charge is stated in a currently effective tariff through error, the contract carrier may, in accordance with regulations issued by the commission, make appropriate refunds to any persons paying such charge.
(g) Nothing in this chapter shall prohibit air carriers, under such reasonable terms and conditions as the commission may prescribe, from issuing or interchanging tickets or passes for free or reduced-rate transportation to their directors, officers and employees and their immediate families, witnesses summoned by them and attorneys duly employed by them and actually attending any legal investigation in which such air carrier is interested, persons injured in aircraft accidents and physicians and nurses attending such person or any person or property with the object of providing relief in cases of general epidemic or of calamity. No air carrier shall provide free or reduced-rate transportation to any other persons or under any other circumstances.
(h) No change shall be made in any rate, fare or charge in or any classification, rule, regulation or practice affecting any such rate, fare, charge or the value of the service thereunder, specified in any effective tariff or any common carrier by aircraft, except after 30 days notice of the proposed change filed, printed and made available to the public in accordance with subsections (a) and (c) of this section. Such notice shall plainly state the change proposed to be made and the time such change will take effect. The commission may, in the public interest, by regulation or otherwise, allow such change upon notice less than that herein specified or required in this section with respect to filing and posting of tariffs, either in the particular instance or by general order applicable to specific or peculiar instances or conditions; provided, that such action on the part of the commission shall in no way work a discrimination against any person.
(i) No reduction shall be made in any rate, fare or charge, specified in any effective tariff of any contract carrier by aircraft, and no change shall be made in any classification, rule, regulation or practice affecting any such rate, fare or charge, or the value of the service thereunder, except after 30 days notice of the proposed reduction or change filed, printed, and made available to the public in accordance with subsections (b) and (c) of this section. Such notice shall plainly state the reduction or change proposed to be made and the time such reduction or change will take effect. The commission may, in the public interest, by regulation or otherwise, allow such reduction or change by notice less than that specified herein; provided, that such action on the part of the commission shall in no way work a discrimination against any person.
(j) Every common carrier by aircraft shall keep currently on file with the commission, if the commission so requires, the established divisions of all joint rates, fares and charges for air transportation in which such common carrier participates.
(Acts 1945, No. 269, p. 414, §17.)
(a) It shall be the duty of every common carrier by aircraft to provide and furnish intrastate transportation, as authorized by its certificate, upon reasonable request to have and to provide reasonable through intrastate service in such transportation in connection with other such carriers or with common carriers by railroad, motor vehicles, express or water; to provide adequate and reasonable service, equipment, facilities, waiting rooms and rest rooms, in connection with such transportation; to establish, observe and enforce just and reasonable individual and joint rates, fares and charges and just and reasonable classifications, rules, regulations and practices relating to such transportation; and in case of such joint rates, fares and charges, to establish just, reasonable and equitable divisions thereof as between common carriers by aircraft participating therein which shall not unduly prefer or prejudice any participating carrier.
(b) No common carrier by aircraft shall make any or consider any undue or unreasonable preference or advantage to any particular person, port, locality or description of traffic in any respect whatsoever or subject any person, port, locality or description of traffic to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
(c) Nothing in this chapter shall prohibit a common carrier by aircraft from extending credit, for such reasonable periods and subject to reasonable terms and conditions as the commission may by reasonable regulations prescribe, to such persons as, in the judgment of such carrier, may appear to be proper credit risks.
(d) It shall be the duty of every contract carrier by aircraft to establish, observe and enforce reasonable minimum rates, fares and charges for any service in intrastate commerce rendered by it as a contract carrier and not so low as to be incompatible with the public interest, and to establish, observe and enforce reasonable classifications, rules, regulations and practices related to such commerce. A contract carrier by aircraft may transport property in intrastate commerce only under individual written contracts or agreements.
(e)(1) Whenever, after notice and opportunity for hearing, upon complaint or upon its own initiative, the commission shall be of the opinion that any individual or a joint rate, fare or charge demanded, charged, collected or received by any common carrier by aircraft for intrastate transportation or any classification, rule, regulation or practice affecting such rate, fare or charge, or the value of the service thereunder, is or will be unjust or unreasonable, or unjustly discriminatory or unduly preferential or unduly prejudicial, the commission shall determine and prescribe the lawful rate, fare or charge (or the maximum or minimum or the maximum and the minimum thereof) thereafter to be demanded, charged, collected or received or the lawful classification, rule, regulation or practice thereafter to be made effective.
(2) Whenever, after notice and opportunity for hearing, upon complaint or upon its own initiative, the commission shall be of the opinion that any minimum rate, fare or charge of any contract carrier by aircraft for intrastate transportation or any classification, rule, regulation or practice affecting such rate, fare or charge, or the value of the service thereunder, is or will be in violation of this chapter, the commission shall determine and prescribe the lawful minimum rate, fare or charge thereafter to be demanded, charged, collected or received or the lawful classification, rule, regulation or practice thereafter to be made effective by such contract carrier.
(f) In any proceeding to determine the justness or reasonableness of any rate, fare or charge of any air carrier, there shall not be taken into consideration or allowed as evidence or elements of value of the property of such carrier, either good will, earning power or the certificate under which such carrier is operating; and, in applying for and receiving a certificate under this chapter, any such carrier shall be deemed to have agreed to the provisions of this subsection on its own behalf and on behalf of all transferees and lessees of such certificate.
(g) (1) Whenever any air carrier shall file with the commission a tariff stating a new individual or joint rate, fare or charge for intrastate transportation, or any classification, rule, regulation or practice affecting such rate, fare or charge, or the value of the service thereunder, the commission is empowered, upon complaint or upon its own initiative, at once, and, if it so orders, without answer or other formal pleading by the air carrier, but only upon reasonable notice, to enter upon investigation concerning the lawfulness of such rate, fare or charge of such classification, rule, regulation or practice; and pending such investigation and the decision thereon, the commission, by filing with such tariff and delivering to the air carrier affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such tariff and defer the use of such rate, fare or charge or such classification, rule, regulation or practice for a period of not more than 90 days, and, if the proceeding has not been concluded and a final order made within such period, the commission may, from time to time, extend the period of suspension, but not for a longer period in the aggregate than 180 days beyond the time when such tariff would otherwise go into effect; and, before or after the rate, fare, charge, classification, rule, regulation or practice goes into effect, the commission, after reasonable opportunity for hearing, may make such order with reference thereto as would be proper in a proceeding instituted if such rate, fare, charge, classification, rule, regulation or practice had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed rate, fare, charge, classification, rule, regulation or practice shall go into effect at the end of such period; provided, that this subsection shall not apply to any initial tariff filed by any air carrier.
(2) At any hearing involving any change in any tariff, classification, rule, regulation or practice of a common carrier by aircraft, the effect of which is to increase any rate, fare or charge thereof charged, or to decrease the value of the service thereunder, the burden of proof to show that the changed tariff, classification, rule, regulation or practice is a just and reasonable charge is upon such common carrier.
(h) Whenever, after notice and reasonable opportunity for hearing, upon complaint or upon its own initiative, the commission is of the opinion that the divisions of joint rates, fares or charges for intrastate transportation are, or will be, unjust, unreasonable, inequitable or unduly preferential or prejudicial as between the common carriers by aircraft thereto, the commission shall prescribe the just, reasonable and equitable divisions thereof to be received by such common carriers. The commission may require the adjustment of divisions between such common carriers from the date of filing the complaint or entry of order of investigation or such other date subsequent thereto as the commission finds to be just, reasonable and equitable.
(i) The commission shall, whenever required by the public convenience and necessity, after notice and hearing, upon complaint or upon its own initiative, establish through service and joint rates, fares or charges (or the maximum or minimum or the maximum and minimum thereof) for intrastate air transportation by common carriers by aircraft, or the classifications, rules, regulations or practices affecting such rates, fares or charges, or the value of the service thereunder, and the terms and conditions under which such through service shall be operated.
(j) No common carrier by aircraft shall charge or receive any greater compensation in the aggregate for the carriage of persons or of a like kind of property for a shorter distance than for a longer distance over the same route and in the same direction within this state, the shorter being included within the longer distance, or shall charge any greater compensation as a through fare or rate than the aggregate of the intermediate fares or rates; but this shall not be construed as authorizing any such carrier to charge or receive as great a compensation for a shorter as for a longer distance. Upon application to the commission, such carrier may, in special cases after investigation, be authorized by the commission to charge less for a longer than for a shorter distance for the carriage of persons or property, and the commission may, from time to time, prescribe the extent to which such carrier may be relieved from the operation and requirements of this section.
(k) Common carriers by aircraft shall publish, post and file with the commission, in accordance with general or special regulations prescribed by the commission, time tables showing the time of arrival and departure of regularly scheduled aircraft engaged in intrastate commerce.
(l) Whenever the commission, upon its own motion or upon complaint, after reasonable opportunity for hearing, shall find that any common carrier by aircraft does not operate a sufficient number of aircraft to reasonably accommodate the traffic passengers or freight transported by or offered for transportation to it, does not operate its aircraft with sufficient frequency or at reasonable or proper time, does not stop the same at proper places, does not operate its aircraft upon a reasonable time schedule for the run or does not maintain its time schedule with reasonable regularity, the commission shall have power to make any order or orders that the commission may determine to be reasonably necessary to correct such deficiency or inadequacy; provided, that no such order shall require such carrier to violate any provision of the Act of Congress entitled “The Civil Aeronautics Act of 1938,” approved June 23, 1938, and the acts amendatory thereof and supplementary thereto, or the lawful rules, regulations and orders of the Civil Aeronautics Board or other administrative agency of the federal government charged with the duty of administering said act; and further provided, that no order or orders of the commission shall deprive any carrier by aircraft of anything of value without first having given such carrier by aircraft an adequate and reasonable opportunity to be heard.
(Acts 1945, No. 269, p. 414, §18.)
(a) The commission is empowered to require annual reports from any air carrier covering any or all operations of business. The contents of such report, and the form thereof, shall conform as nearly as may be to that required of air carriers and air contractors by the Civil Aeronautics Board or other administrative agency of the federal government under the Act of Congress entitled “The Civil Aeronautics Act of 1938,” approved June 23, 1938, and the acts amendatory thereof and supplementary thereto. The commission may also require monthly, periodical and special reports from any air carrier, may prescribe the manner and form in which such reports shall be made and require from any such carrier specific answers to any reasonable questions pertaining to intrastate transportation by aircraft within this state and the books, records, properties or operations in connection therewith upon which the commission may reasonably deem information to be necessary. Such annual, monthly, periodical and special reports and answers to questions shall be under oath whenever the commission so requires. The commission may also require any common or contract carrier to file with it a true copy of each or any contract, agreement, understanding or arrangement between such carrier and any other carrier or person in relation to any traffic affected by the provisions of this chapter.
(b) The commission shall prescribe the forms of any and all accounts, records and memoranda to be kept by common carriers by aircraft, including the accounts, records and memoranda of the movement of traffic, as well as of the receipts and expenditures of money and the length of time that such accounts, records and memoranda shall be preserved. The forms of accounts, records and memoranda prescribed by the commission, as provided above, shall conform, as nearly as may be, to those from time to time prescribed by the Civil Aeronautics Board or other administrative agency of the federal government under the Act of Congress entitled “The Civil Aeronautics Act of 1938,” approved June 23, 1938, and the acts amendatory thereof and supplementary thereto.
(c) The commission shall at all reasonable times have access to all lands, buildings and equipment of any air carrier and to all accounts, records and memoranda, including all documents, papers and correspondence now or hereafter existing and kept or required to be kept by air carriers, and it may employ special agents or auditors who shall have authority under the orders of the commission to inspect and examine any and all such lands, buildings, equipment, accounts, records and memoranda.
(Acts 1945, No. 269, p. 414, §19.)
When complaint has been made to the commission concerning any rate, fare or charge for any service performed by any air carrier, and the commission has found, after investigation, that the air carrier has charged an unreasonable, excessive or discriminatory amount for such service, in violation of any of the provisions of this chapter, the commission may order that the air carrier make due reparation to the complainer therefor, with reasonable interest from the date of collection, provided no discrimination will result for such reparation. Such complaint shall be filed with the commission within two years from the time the cause of action accrues and not after; provided, that if a claim based on an overcharge has been presented to the air carrier within the two-year period of limitation, said period shall be extended to include six months from the time notice in writing is given by the air carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice. If an air carrier does not comply with an order for the payment of money within the time limit in such order, the complainant or any person for whose benefit such order was made, suit may be instituted in any court of competent jurisdiction to recover the same within one year from the date of the order and not after.
(Acts 1945, No. 269, p. 414, §29.)
Every person, including any officer, agent or employee of a corporation, who violates, procures, aids or abets in the violation of any provision of this chapter or fails to comply with any order, decision or regulation issued by the commission shall be guilty of a misdemeanor, and, upon conviction, shall be punishable by a fine of not to exceed $1,000.00 or by imprisonment in the county jail for a term not to exceed one year, or both, in the discretion of the judge trying said case. Each day’s violation of this chapter or any of the terms or conditions of any such order, decision or regulation shall constitute a separate offense, each punishable as aforesaid.
(Acts 1945, No. 269, p. 414, §21.)
For the extra, new and additional duties imposed upon the commission and the members thereof by this chapter and for the performance of duties which are and will be hereafter required of said commission and the members thereof hereunder, each member of the commission, in addition to the compensation otherwise provided by law to be paid to him for his service as a member of the commission, shall receive $600.00 annually, to be paid monthly as the salaries of other officers are paid, out of the moneys of the State Treasury provided by law for payment of salaries and other expenses of the commission.
(Acts 1945, No. 269, p. 414, §23.)
This chapter may be cited as the “State Rail Preservation Act”.
(Acts 1976, No. 307, p. 340, §1.)
When used in this chapter, the following words and phrases shall have the following meanings, respectively, unless the context clearly indicates otherwise:
(1) DEPARTMENT. The Department of Transportation of the State of Alabama.
(2) PERSON. An individual, corporation, partnership or foreign or domestic association.
(3) RAIL PROPERTIES. Assets or rights, both real and personal, owned, leased or otherwise controlled by a railroad which are used or useful in providing rail transportation service.
(4) RAIL SERVICE. Both freight and passenger service.
(Acts 1976, No. 307, p. 340, §2.)
The department is hereby authorized to exercise those powers necessary for the state to qualify for rail service continuation subsidies and for rail safety subsidies which are or may become available pursuant to the provisions and regulations of the Federal Railroad Revitalization and Regulatory Reform Act of 1976 and any subsequent federal legislation, rules or regulations, including, but not limited to, the authority:
(1) To establish a state plan for rail transportation services as part of an overall plan for all transportation services in the state;
(2) To administer and coordinate the state plan;
(3) To provide in the plan for the equitable distribution of federal rail service continuation subsidies;
(4) To promote, supervise and support safe, adequate and efficient rail service;
(5) To employ sufficient trained and qualified personnel for these purposes;
(6) To maintain adequate programs of investigation, research, promotion and development in connection with such purposes and to provide for public participation therein;
(7) To reduce transportation related energy utilization and pollution in compliance with state and federal regulations;
(8) To provide satisfactory assurances on behalf of the state that such financial control and fund accounting procedures will be adopted by the state as may be necessary to assure proper use of federal funds paid to the state as rail service continuation subsidies;
(9) To comply with the regulations of the Federal Department of Transportation affecting federal rail service continuation programs; and
(10) To do all things necessary to maximize federal assistance to the state upon the provisions of Section 5 of the Federal Department of Transportation Act.
(Acts 1976, No. 307, p. 340, §3.)
(a) The department is hereby authorized to expend federal funds now available under the provisions of the Federal Railroad Revitalization and Regulatory Reform Act of 1976, any other funds that may become available pursuant to subsequent legislation or any funds appropriated by the legislature for the purposes outlined in Section 37-10-3.
(b) The department may also act as the agent of the state in cooperation with any local or regional transportation authority, local governmental units, any group of rail users or any persons and the federal government in any rail service continuation program.
(Acts 1976, No. 307, p. 340, §4.)
(a) The department in performing its planning function is authorized to request any railroad to provide such data and information as are necessary for the planning process. The department shall make every effort to ensure that such requests are compatible with the information requested by similar agencies in other states and by the Federal Department of Transportation. Railroads operating within the state shall provide such information within 60 days of the date of the request.
(b) The department is hereby authorized to reimburse the railroads for all reasonable and necessary expenses incurred in gathering and compiling the data provided that it is determined by the department such funds are available and the costs are substantiated by the railroads.
(c) The department shall exercise all necessary caution to avoid disclosure of confidential information supplied under this section.
(Acts 1976, No. 307, p. 340, §5.)
The department shall promulgate rules and regulations consistent with and for the purpose of adequately implementing the provisions of this chapter.
(Acts 1976, No. 307, p. 340, §7.)
Any sums of money necessary to supplement available federal funds to provide for those activities enumerated under Section 37-10-3 are hereby appropriated. The appropriation is nonlapsing and shall be expended by the department for only those purposes included in this chapter.
(Acts 1976, No. 307, p. 340, §6.)
The Legislature makes the following findings and statements regarding the need for shortline railroad rehabilitation in Alabama:
(1) Shortline railroads are an integral part of Alabama’s total transportation network; however, lack of funding for railroads places Alabama in a less competitive position with the shortline railroads of other states and regions for potential industrial development projects.
(2) The opportunities for economic development and growth would be greatly enhanced by the proper rehabilitation and upgrading of shortline railroads.
(3) The proper maintenance and improvement of the shortline railroad routes would help preserve critical growth corridors for future needs of transportation and other possible uses such as communication, commerce, public transit, or highways.
(Act 2008-382, p. 711, §1.)
This chapter shall be known and may be cited as the Alabama Shortline Railroad Infrastructure Rehabilitation Act.
(Act 2008-382, p. 711, §2.)
For purposes of this chapter, the following terms shall have the following meanings:
(1) DEPARTMENT. The Alabama Department of Transportation or any successor agency of the department.
(2) FUND. The Alabama Shortline Railroad Infrastructure Rehabilitation Fund created by this chapter.
(3) GRANTEE. A local public railroad authority created pursuant to Chapter 13 of this title, Sections 37-13-1 to 37-13-21, inclusive, or other entity that may become eligible for financial assistance pursuant to federal or state law.
(4) PROGRAM. The Alabama Shortline Railroad Infrastructure Rehabilitation Program providing grants, loans, or other financial assistance for the rehabilitation of shortline railroads operating in Alabama.
(5) SHORTLINE RAILROAD. A Class III shortline railroad operating in Alabama.
(Act 2008-382, p. 711, §3.)
(a) There is created the Alabama Shortline Railroad Infrastructure Rehabilitation Program within the Alabama Department of Transportation. The program is established to promote and develop safe and efficient rail transportation service for the State of Alabama by providing grants and or no-cost loans to local public rail authorities on a fair and equitable basis for the rehabilitation and improvement of shortline railroads within the jurisdiction of the qualified grantees.
(b) There is created the Alabama Shortline Railroad Infrastructure Rehabilitation Fund for the use of the department in implementing and administering the requirements of this chapter. The fund shall receive federal and state appropriations, grants, and other public and private sources of funds made available for shortline railroad infrastructure rehabilitation and improvement projects throughout the state.
(Act 2008-382, p. 711, §4.)
The department shall establish a program under this chapter whereby the department will determine if a shortline railroad has a need for the rehabilitation of any railroad bed, bridge, track, building, other railroad facility, or other infrastructure improvement of any description on any shortline railroad in Alabama. The department will determine which shortline railroads have needs, the amount of the needs, and the priority of the needs when compared to the needs of other shortline railroads in the state. Upon determination by the department of a need as provided herein, the department is authorized to provide financial assistance to the grantee in the form of grants and or no-cost loans. The department may contract with the grantee, any local government for the grantee, or shortline railroad to participate in the grant as may be appropriate under the circumstances, based upon the need and the ability of the grantee, the shortline railroad, or the local government to participate. Local participation may be in the form of in-kind work within the scope of the program. Any loan provided herein will be at no interest if repaid as provided by the agreement when the loan is made. If the loan or any part thereof is in default, then the agreement may provide for the payment of interest on any amounts in default. Any repayment of loans made hereunder shall go back into the fund provided for herein for future financial assistance to shortline railroads. Any loans or grants made hereunder shall be made only to a qualified grantee as provided herein.
(Act 2008-382, p. 711, §5.)
The Governor, on behalf of this state, is hereby authorized to execute a compact in substantially the following form with the states of Louisiana and Mississippi, and the legislature hereby signifies in advance its approval and ratification of such compact, which compact is as follows:
Southern High-Speed Rail Commission.
Article I.
The purpose of this compact is to study the feasibility of rapid rail transit service between the states of Mississippi, Louisiana and Alabama and to establish a joint interstate commission to assist in this effort.
Article II.
This compact shall become effective immediately as to the states ratifying it whenever the states of Mississippi, Louisiana and Alabama have ratified it and Congress has given consent thereto. Any state not mentioned in this article which is contiguous with any member state may become a party to this compact, subject to approval by the legislature of each of the member states.
Article III.
The states which are parties to this compact (hereinafter referred to as “party states”) do hereby establish and create a joint agency which shall be known as the Southern High-Speed Rail Commission (hereinafter referred to as the “commission”), or any successor name adopted by all members of the commission. The membership of such commission shall consist of the governor of each party state, one representative each from the Mississippi Energy and Transportation Board, or its successor, the Office of Aviation and Public Transportation of the Louisiana Department of Transportation and Development, or its successor, and the Alabama Department of Energy, or its successor, five other citizens of each party state, to be appointed by the Governor thereof. The appointive members of the commission shall serve for terms of four years each. Vacancies on the commission shall be filled by appointment by the Governor for the unexpired portion of the term. The members of the commission shall not be compensated for service on the commission, but each of the appointed members shall be entitled to actual and reasonable expenses incurred in attending meetings, or incurred otherwise in the performance of his duties as a member of the commission. The members of the commission shall hold regular quarterly meetings and such special meetings as its business may require. They shall choose annually a chairman and vice chairman from among their members, and the chairmanship shall rotate each year among the party states in order of their acceptance of this compact. The commission shall adopt rules and regulations for the transaction of its business and a record shall be kept of all its business. It shall be the duty of the commission to study the feasibility of providing interstate rapid rail transit service between the party states. Toward this end, the commission shall have power to hold hearings; to conduct studies and surveys of all problems, benefits and other matters associated with such service, and to make reports thereon; to acquire, by gift, grant or otherwise, from local, state, federal or private sources such money or property as may be provided for the proper performance of their function, and to hold and dispose of same; to cooperate with other public or private groups, whether local, state, regional or national, having an interest in such service; to formulate and execute plans and policies for emphasizing the purpose of this compact before the Congress of the United States and other appropriate officers and agencies of the United States; and to exercise such other powers as may be appropriate to enable it to accomplish its functions and duties and to carry out the purposes of this compact.
Article IV.
Each party state agrees that its legislature may, in its discretion, from time to time make available and pay over to the commission funds for the establishment and operation of the commission. The contribution of each party state shall be in equal amounts, if possible, but nothing in this article shall be construed as binding the legislature of either state to make an appropriation of a set amount of funds at any particular time.
Article V.
Nothing in this compact shall be construed so as to conflict with any existing statute, or to limit the powers of any party state, or to repeal or prevent legislation, or to affect any existing or future cooperative arrangement or relationship between any federal agency and a party state.
Article VI.
(1) This compact shall continue in force and remain binding upon each party state until the legislature or Governor of each or any state takes action to withdraw therefrom. However, any such withdrawal shall not become effective until six months after the date of the action taken by the legislature or Governor. Notice of such action shall be given to the other party state or states by the Secretary of State of the party state which takes such action.
(2) There is hereby granted to the Governor, to the members of the commission for Mississippi, Louisiana, and Alabama, and to the compact administrator all the powers provided for in the compact and in this section. All officers of the State of Alabama are hereby authorized and directed to do all things falling within their respective jurisdictions which are necessary or incidental to carrying out the purpose of the compact.
(Acts 1982, No. 82-464, p. 755; Act 2010-700, p. 1697, §1.)
The Governor, on behalf of this state, shall execute a compact, in substantially the following form, with the State of Mississippi, and the Legislature approves and ratifies the compact in the form substantially as follows:
Northeast Mississippi - Northwest Alabama Railroad Authority Compact.
The contracting states solemnly agree:
Article I.
The purpose of this compact is to promote and develop trade, commerce, industry, and employment opportunities for the public good and welfare in northeast Mississippi and northwest Alabama through the establishment of a joint interstate authority to acquire certain railroad properties and facilities which the operator thereof has notified the Interstate Commerce Commission of an intention to abandon and which are located in any of Franklin, Marion, or Winston Counties, Alabama or in Alcorn or Tishomingo Counties, Mississippi.
Article II.
This compact shall become effective immediately as to the State of Alabama upon its passage and approval by the Governor, or upon its otherwise becoming a law, and when the State of Mississippi ratifies the compact.
Article III.
For purposes of this compact, the following terms shall have the following meanings:
(1) Person means an individual, a corporation, a partnership, or any other entity.
(2) Railroad means a common carrier by railroad as defined in Section 1(3) of Part I of the Interstate Commerce Act [codified as 49 U.S.C. §1(3)].
(3) Railroad properties and facilities mean any real or personal property or interest in property which is owned, leased, or otherwise controlled by a railroad or other person, including, without limitation, the authority, and which are used or are useful in rail transportation service, including, without limiting the generality of the foregoing:
a. Track, roadbed, and related structures, including rail, ties, ballast, other track materials, grading, tunnels, bridges, trestles, culverts, elevated structures, stations, office buildings used for operating purposes only, repair shops, engine houses, and public improvements used or useful in providing rail transportation service.
b. Communication and power transmission systems for use by railroads.
c. Signals and interlockers.
d. Terminal or yard facilities and services to express companies, railroads, and their shippers, including ferries, tugs, car floats, and related shoreside facilities designed for the transportation of equipment by water.
e. Shop or repair facilities or any other property used or capable of being used in providing rail transportation service or in connection with such service or for originating, terminating, improving, and expediting the movement of equipment or goods.
(4) Rail Transportation Service means freight or passenger rail service, or both.
Article IV.
The states that are parties to this compact, hereinafter referred to as the “party states,” do hereby establish and create a joint interstate authority that shall be known as “The Northeast Mississippi - Northwest Alabama Railroad Authority,” hereinafter referred to as the “authority.” The authority shall be governed and all powers thereof exercised by a board of directors, hereinafter referred to as the “board.” The membership of the board shall consist of the Mayor of the Town of Belmont, Mississippi, and two other citizens of the State of Mississippi, to be appointed by the governing body of the Town of Belmont, Mississippi; the Mayor of the City of Red Bay, Alabama, and two other citizens of the State of Alabama to be appointed by the governing body of the City of Red Bay, Alabama. If at the time of the election of any directors there shall be in existence in a party state any person, firm, or entity that makes use of the railroad properties and facilities owned or to be acquired by the authority, the governing body located in the party state shall elect as such directors the representative or representatives of the person, firm, or entity as designated thereby. Each of the appointive members of the board shall be a qualified elector in a county named in Article I and shall serve for a term of four years. Directors shall be eligible for reappointment. If any director dies, resigns, or becomes incapable or ineligible to act as a director, a successor shall be appointed by the governing body which appointed the director whose unexpired term is to be filled for the remaining portion of the unexpired term. The board shall hold regular and special meetings as its business may require and as the board may determine. Any meeting of the board may be adjourned from time to time by a majority of the members present. A majority of the members of the board shall constitute a quorum for the transaction of any business. No vacancy in the membership of the board shall impair the right of a quorum to exercise all powers and duties of the authority. Members of the board shall receive no compensation for their services as directors; however, each member may be reimbursed for expenses actually incurred thereby in and about the performance of duties. The authority shall adopt rules and regulations for the transaction of its business and the secretary shall keep a record of all its business and furnish copies thereof to each member of the board. The meetings and records of the board and of the authority shall be open to the public. The board shall establish the location of the principal office of the authority, which shall be in one of the counties named in Article I. The officers of the authority shall consist of a chair, a vice-chair, a secretary, a treasurer, and such other officers as the board shall deem necessary. The chair and vice-chair shall be elected by the board from its membership and the chairship shall rotate each year among the party states in order of their acceptance of this compact. Neither the secretary nor the treasurer nor any other officer of the authority need be a member of the board. Each officer shall be elected by the board for a term of one year. Officers shall be eligible for re-election. The duties of the officers of the authority shall be such as are customarily performed by such officers and as may be prescribed by the board.
Article V.
Subject to this compact, the authority may exercise all powers as may be necessary or appropriate to enable it to carry out the purposes of this compact, including without limitation, the following powers, together with all powers incidental thereto or necessary to the discharge thereof in corporate form:
(1) To have succession by its corporate name.
(2) To sue and be sued in its own name in civil suit and actions.
(3) To adopt and make use of a corporate seal and to alter the seal at pleasure.
(4) To adopt and alter bylaws for the regulation and conduct of its affairs and business.
(5) To acquire, receive, take, and hold, whether by purchase, gift, lease, devise, or otherwise, property of every description, whether real, personal, or mixed, wherever located in any party state, and to manage the property, and to develop any undeveloped property owned, leased, or controlled by it in a manner necessary or convenient to carry out the purposes of this compact.
(6) To make, enter into, execute, and deliver such contracts, agreements, leases, applications, permits, notifications, security documents, and other instruments and documents as may be necessary, proper, convenient, or incidental to accomplish any purpose for which the authority was created or to carry out the purposes of this compact or to exercise any power granted hereunder, including without limitation, contracts, agreements, and other documents and instruments containing such covenants, terms, and conditions as in the judgment of the board may be necessary, proper or advisable for the purpose of obtaining grants, loans, or other financial assistance from any federal or state government or any department, branch, or agency thereof for or in the aid of the acquisition or improvement of railroad properties and facilities and any and all licenses, leases, mortgages, and deeds of trust and other agreements relating to the railroad properties and facilities and the construction, operation, maintenance, repair, and improvement thereof, and to carry out and perform the covenants, terms, and conditions of all such contracts, agreements, and other documents or instruments.
(7) To plan, establish, acquire by purchase, gift, lease, or devise, construct, enlarge, reconstruct, improve, operate, maintain, replace, repair, extend, improve, regulate, and protect railroad properties and facilities, whether or not then existing, wherever located or to be located within the boundaries of either or both of the party states.
(8) To make the use and services of its railroad properties and facilities available to others in furtherance of the purposes of this compact and upon such terms and conditions as the board shall deem proper, and to lease the railroad properties and facilities to others upon such terms and conditions as the board may determine.
(9) To establish schedules of tolls, fees, rates, charges, and rentals for the use of its railroad properties and facilities and to charge, alter, and collect such tolls, fees, rates, charges, and rentals in carrying out the provisions of this compact.
(10) To issue revenue bonds and notes at any time and from time to time, for any corporate purpose of purposes, or in aid of any power under this compact, payable from the limited sources hereinafter referenced and to pledge for payment of such bonds and notes any revenues and funds from which such bonds and notes are made payable.
(11) To exercise, with respect to property located in Alabama in the manner provided by the laws of Alabama and with respect to property located in Mississippi in the manner provided by the laws of Mississippi, the power of eminent domain with respect to any property, real, personal, or mixed. The authority shall not acquire by eminent domain any real property or rights owned or held by railroads, transportation companies, or utilities, either public or private.
(12) To appoint, employ, contract with, and provide for compensation of officers, employees, and agents, including engineers, attorneys, consultants, fiscal advisers, and such other employees as the business of the authority may require, including the power to fix working conditions by general rule and other conditions of employment; and at its option to provide a system of disability pay, retirement compensation, and pensions, or any of them; and to hire and fire servants, agents, employees, and officers at will.
(13) To provide for insurance, including use and occupancy insurance, as the authority may deem advisable.
(14) To invest any funds of the authority that the board may determine are not presently needed for its corporate purposes in any obligations which are direct general obligations of the United States of America, or which are unconditionally guaranteed as to both principal and interest by the United States of America, or in interest-bearing time deposits of any bank or savings and loan association organized under the laws of any party state or of the United States of America.
(15) To cooperate with any party state and any county, city, town, public corporation, agency, department, or political subdivision of any party state and to make such contracts with them or any of them as the board may deem advisable to accomplish the purposes for which the authority was established.
(16) To sell and convey any of its properties that may have become obsolete or worn out, or that may no longer be needed or useful.
(17) To accept, receive, receipt for, disburse, and expend moneys or other financial assistance from the United States of America, or any department or agency thereof, and from any party state or any department, agency, or political subdivision thereof, and to receive and accept money, property, labor, or other thing of value, from any source whatever, public or private, to be used for or in aid of the acquisition, construction, extension, improvement, maintenance, and operation of railroad properties and facilities or to be used in furtherance or to accomplish, in whole or in part, any of the purposes of this compact. All federal moneys shall be accepted and expended by the authority upon such terms and conditions as are prescribed by the United States of America and as are not inconsistent with the laws of any party state, and all state moneys shall be accepted and expended by the authority upon such terms and conditions as are prescribed by the laws of the state making the funds available.
(18) To purchase equipment and supplies necessary or convenient for the exercise of any power of the authority.
(19) To take such action and do all things as may be necessary or convenient to carry out the purposes of this compact or the exercise of any power under this compact.
Nothing contained in this compact shall operate or be construed to (1) permit or require any person to avoid or refuse compliance with any law, rule, regulation, order, or other controlling directive or administrative guidance, now or hereafter existing, or in force, of any federal or state government, department, branch, agency, or other instrumentality, (2) impair, limit, diminish, or otherwise affect any right, power, or jurisdiction of the United States of America or any department, branch, agency, court, bureau, or other instrumentality thereof with respect to any matter including without limitation commerce between the states, or (3) grant or confer any right or power to the authority or any officer, member of the board, or other representative thereof to regulate commerce between the states. The authority shall be subject to and shall comply with all applicable laws, regulations, rules, rulings, orders, decrees, judgments, decisions or other guidelines of the United States of America or any branch, agency, department, court, or other instrumentality having jurisdiction over the authority or any of its activities or properties or of any person acting for the authority and all rights and powers provided by this compact may be exercised only to the extent the exercise thereof does not violate any of the foregoing. This compact is subject to all provisions of federal law and other controlling federal directives applicable to the premises and is limited to the extent necessary to comply therewith.
Article VI.
For the purpose of aiding and cooperating with the authority in the planning, development, undertaking, construction, extension, improvement, or operation of railroad properties and facilities, any county, city, town, or other political subdivision, public corporation, agency, or instrumentality of a party state may, upon such terms and with or without consideration, as it may determine:
(1) Lend or donate money to the authority.
(2) Cause water, sewer, or drainage facilities, or any other facilities that it is empowered to provide, to be furnished adjacent to or in connection with the railroad properties and facilities.
(3) Donate, sell, convey, transfer, or lease to the authority any land, property, franchise, grant, easement, license, or lease, which it may own.
(4) Donate, transfer, assign, sell, or convey to the authority any right, title, or interest which it may have in any lease, contract, agreement, license, or property.
(5) Furnish, dedicate, close, pave, repair, install, grade, regrade, plan, or replan streets, roads, roadways, and walks from established streets or roads to railroad properties and facilities of the authority.
(6) Do any and all things whether or not specifically authorized in this compact, and not otherwise prohibited by law in the applicable party state, that are necessary or convenient to aid and cooperate with the authority in the planning, undertaking, construction, reconstruction, acquisition, or operation of railroad properties and facilities.
Article VII.
No action or suit shall be brought or maintained against any administrator, executive, manager, officer, or member of the board or the authority for or on account of the negligence of the authority or of any such person or its or his or her agents, servants or employees, in or about the construction, maintenance, operation, superintendence, or management of any railroad properties and facilities or other property owned or controlled by the authority.
Article VIII.
All bonds issued by the authority shall be payable solely from, and may be secured by a pledge of, the revenues derived by the authority from the operation, leasing, or sale of any or all of its railroad properties and facilities and other property, or from any other funds made available or to be made available to the authority if permitted by the terms under which the funds are made available to the authority. No bonds or notes issued or contracts entered into by the authority shall ever constitute or create an obligation or debt of any party state, or of any county, city, or town within any party state, or a charge against the credit or taxing powers of any party state, or of any county, city, or town within any party state.
Bonds of the authority may be issued at any time and from time to time; may be in such form, either in bearer form with appurtenant coupons, and subject to registration as to principal or interest, or both, all as the board may determine, or in fully registered form without coupons, and in such denominations, may be of such tenor, may be payable in such installments and at such time or times, not exceeding 40 years from their date; may be payable at such place or places whether within or without any party state; may bear interest at such rate or rates, which may be fixed or which may float or vary based on some index or other standard deemed appropriate by the board; and shall be payable and evidenced in such manner, all as shall not be inconsistent with this compact and as may be provided in the proceedings of the board wherein the bonds are authorized to be issued. Any bond may be made subject to redemption at the option of the authority at such time or times, and at such price or prices, and upon such notice or notices, and on such terms, and in such manner as may be provided in the proceedings of the board wherein the bonds are authorized to be issued. Bonds of the authority may be sold at public or private sale in the manner and from time to time as may be determined by the board. The authority may pay all reasonable expenses, premiums, fees, and commissions that the board may deem necessary or advantageous in connection with the authorization, sale, and issuance of its bonds. All bonds shall contain a recital that they are issued pursuant to this compact, which recital shall be conclusive that they have been duly authorized pursuant to this compact. Neither a public hearing nor the consent of any agency of any party state or any political subdivision thereof shall be prerequisite to the issuance of bonds by the authority. All bonds issued under this compact are hereby made and shall be deemed negotiable instruments.
All bonds shall be signed, either manually or by facsimile, by the chair or the vice-chair and the secretary or the treasurer of the authority and the seal of the authority shall be affixed, either manually or by facsimile, thereto. Delivery of bonds so executed shall be valid notwithstanding any changes in the officers or in the seal of the authority after the signing and sealing of the bonds.
Any bonds may be issued under and secured by an indenture between the authority and a trustee. The trustee may be a private person or corporation, including but not limited to, any trust company or bank having trust powers, whether the bank or trust company is located within or without any party state. In any indenture or resolution providing for the issuance of bonds, the authority may pledge, for payment of the principal of and the interest on bonds, any of its revenues to which its right then exists or may thereafter come into existence and may assign, as security for the payment, any of its leases, franchises, permits and contracts; and in any indenture, the authority may mortgage or grant security interests in any of its properties, including any that may be thereafter acquired by it. Any pledge of revenues shall be valid and binding from the time it is made and the revenues so pledged and thereafter received by the authority shall immediately become subject to the lien of the pledge without any physical delivery thereof or further act. The lien of the pledge shall be valid and binding against all parties having claims of any kind in tort, contract, or otherwise against the authority, irrespective of whether the parties have actual notice thereof, from the time a statement is filed for record in each county in which is located any part of the property the revenues from which are so pledged. The notice need state only the date on which the resolution authorizing the issuance of the bonds was adopted by the board, the principal amount of bonds issued, a brief description of the revenues pledged, and a brief description of any property the revenues from which are pledged.
In any indenture or resolution authorizing the issuance of bonds and pledging for the benefit thereof revenues from any of its railroad properties and facilities, the authority shall have the power to include provisions customarily contained in instruments securing evidence of indebtedness, including without limitation, provisions respecting the collection, segregation, and application of any rental or other revenue due to or to become due to the authority, the terms to be incorporated in any lease agreement respecting any property of the authority, the maintenance and insurance of any building or structure owned by the authority, the creation and maintenance of special funds from any revenue of the authority, and the rights and remedies available in the event of default to the holders of the bonds or the trustee under the indenture, all as the board shall deem advisable. If there be any default by the authority in payment of the principal of or the interest on the bonds, or in any of the agreements on the part of the authority that may properly be included in any indenture securing the bonds, any holder of bonds, or the trustee under any indenture if authorized in the indenture, may, in addition to any other remedies herein provided or otherwise available, either at law or in equity, by suit, action, mandamus, or other proceedings, enforce payment of such principal or interest and compel performance of all duties of the board and officers of the authority, and shall be entitled as a matter of right, and regardless of the sufficiency of any security, to the appointment of a receiver in equity with all the powers of the receiver for the operation and maintenance of the property of the authority covered by the indenture and the collection, segregation, and application of revenues therefrom. The indenture may also contain provisions restricting the individual rights of action of the holders of the bonds.
The proceeds derived from the sale of any bonds, other than refunding bonds, may be used only to pay the costs of acquiring, constructing, improving, enlarging, equipping, and operating the railroad properties and facilities, or other property with respect to which the bonds were issued, as may be specified in the proceedings in which the bonds are authorized to be issued. The costs shall be deemed to include the following: (1) the costs of any land or easements forming a part of the railroad properties and facilities or other property; (2) the cost of labor, material, and supplies used in any construction, improvement, or enlargement, including architects’ and engineers’ fees, and the cost of preparing contract documents and advertising for bids; (3) the purchase price of, and the cost of installing equipment for use in connection with, the railroad properties and facilities or other property; (4) the cost of constructing and installing roads, sidewalks, curbs, gutters, utilities, and parking places in connection with the railroad properties and facilities or other property; (5) the amounts of any debt service, maintenance, and capital improvement and other similar reserves deemed advisable; (6) legal, fiscal, credit enhancement or insurance, and recording fees, premiums, and expenses incurred in connection with the authorization, sale, and issuance of the bonds issued in connection with the railroad properties and facilities or other property; (7) interest on said bonds for a reasonable period prior to and during the time required for such construction, improvement, enlargement, and equipment and for not to exceed 18 months after completion thereof. If any of the proceeds derived from the sale of the bonds remains undisbursed after completion of the work and payment of all of the costs and expenses, the balance shall be used for retirement of the principal of the bonds of the same issue.
The authority may, at any time and from time to time, issue refunding bonds for the purpose of refunding the principal of and the interest on any bonds of the authority theretofore issued hereunder and then outstanding, whether or not the principal and interest has matured at the time of the refunding, and for the payment of any expenses incurred in connection with the refunding and any premium necessary to be paid in order to redeem, retire, or purchase for retirement the bonds to be refunded. The proceeds derived from the sale of any refunding bonds shall be used only for the purposes for which the refunding bonds were authorized to be issued. Any refunding may be effected either by sale of the refunding bonds and the application of the proceeds thereof, or by exchange of the refunding bonds for the bonds to be refunded thereby. All provisions of this compact pertaining to bonds of the authority that are not inconsistent with this paragraph shall, to the extent applicable, also apply to refunding bonds issued by the authority. The authority may, at any time and from time to time, issue bonds for the purpose of refunding the principal of and the interest on any of its bonds and for any other purpose for which it is authorized to issue bonds, in which event the provisions hereof respecting refunding bonds shall apply only to that portion of the combined issue authorized for refunding purposes and the provisions hereof respecting other financing shall apply to the remaining portion of such combined issue.
The authority may, in addition to the other powers granted herein, borrow money for use for any corporate purpose described herein and, in evidence of such borrowing, issue from time to time revenue notes maturing not later than 18 months from the date of issuance and bearing such rate or rates of interest as the board may provide in the proceedings when the revenue notes are authorized to be issued. The notes may be payable from the principal proceeds from the sale of bonds or, to the extent necessary, from any revenues of the authority which may be pledged to the payment of its bonds, or both, and the notes may be secured by a pledge of so much as may be necessary therefor of such revenues. Any notes may be refunded, or renewed, or extended for additional periods of not more than 18 months each from the date of maturity of the notes being refunded, or renewed, or extended, but otherwise pursuant to the terms and conditions hereof. The notes may be sold either at public or private sale as the board may determine. All provisions of this compact pertaining to bonds of the authority that are not inconsistent with the provisions of this paragraph shall, to the extent applicable, also apply to notes issued by the authority.
The governing body of any county, city, or town within any party state may invest in bonds of the authority any money held in its treasury. Bonds issued under this compact shall be legal investments for executors, administrators, trustees, and other fiduciaries, unless otherwise directed by the court having jurisdiction of the fiduciary relation, or by the document that is the source of the fiduciary’s authority. The bonds shall be legal investments for savings banks and insurance companies organized under the laws of any party state.
The directors and officers of the authority shall not be subject to any personal liability by reason of the issuance of any bonds or notes of the authority.
Article IX.
The authority and all contracts made by it shall be exempt from (a) all laws (1) relating to the advertising and award of construction contracts and purchase contracts and (2) limiting the duration of or requiring competitive bids in connection with any contract to be entered into by any municipality, county, public corporation, or other instrumentality; and (b) from all laws relating to or governing usury or prescribing or limiting interest rates. The authority and its contracts and properties shall be exempt from all jurisdiction of and all regulation and supervision by the public service commission or other successor or similar agency of any party state.
All bonds or notes issued by the authority, the transfer thereof, and the income therefrom shall be exempt from all taxation by each party state and any political subdivision of any thereof. The authority and all property and income of the authority shall be exempt from all state, county, municipal, and other local taxation, and from any assessment for public improvements. The exemption shall not be construed to exempt concessionaires, licensees, tenants, operators, or lessees of the authority from the payment of any taxes, including licenses or privilege taxes levied by any party state or any county or any municipality in any party state. All documents or instruments of whatever nature or content to which the authority is a party shall be filed for record in any county in any party state without the payment of any tax or fee other than such fee as may be authorized by law for the recording of such documents and instruments. The authority shall be exempt from all income, privilege, license, or excise taxes levied by any party state or any county, city, town, or other political subdivision thereof in respect to the income, revenue, or profits of the authority, or the privilege of engaging in any of the activities or powers in which the authority may engage or which the authority may exercise. The authority shall be exempt from all privilege, license, or excise taxes levied by any party state or any county, city, town, or other political subdivision thereof with respect to tangible personal property purchased or used by the authority.
Article X.
Nothing in this compact shall be construed to conflict with any existing statute, or to limit the powers of any party state, or to repeal or prevent legislation, or to authorize or permit curtailment or diminution of any other railroad project, or to affect any existing or future cooperative arrangement or relationship between any federal agency and a party state.
Article XI.
This compact shall continue in full force and remain binding upon each party state. At any time when the authority does not have any bonds, notes, or other obligations outstanding, including without limitation any leases under which the authority is either lessor or lessee, the legislature of each or either party state may take action to withdraw from this compact; provided, that such withdrawal shall not become effective until six months after the date of the action taken by the legislature. Notice of such action shall be given to the other party state and the authority by the secretary of state of the party state which takes such action. Upon withdrawal of a party state from this compact becoming effective as to such party state, the authority shall cease to exist and all rights, title, and interest of the authority in property located in the State of Alabama shall be vested in the City of Red Bay, Alabama, and all rights, title, and interest of the authority in property located in the State of Mississippi shall be vested in the Town of Belmont, Mississippi.
Article XII.
The authority shall be a nonprofit corporation and no part of its net earnings remaining after payment of its expenses shall inure to the benefit of any person, except that in the event the board determines that sufficient provision has been made for the full payment of the expenses, bonds, notes, and other obligations of the authority, any net earnings of the authority thereafter accruing shall be equally divided between the Town of Belmont, Mississippi, and the City of Red Bay, Alabama.
Article XIII.
There is hereby granted to the Governor, to the members of the board of the authority for Alabama, and to any executives or administrators of this compact all powers provided for in the compact. All officers of the State of Alabama are hereby authorized and directed to do all things falling within their respective jurisdictions which are necessary or incidental to carrying out the purposes of this compact.
Article XIV.
The provisions of this compact are severable. If any part of this compact is declared invalid or unconstitutional, such declaration shall not affect the remaining parts.
(Acts 1992, 2nd Ex. Sess., No. 92-707, §1.)
This chapter shall be known and may be cited as the Alabama Capital Assistance Stimulus for Rail Projects Act of 2009.
(Act 2009-787, p. 2472, §1.)
The Legislature finds and determines that:
(1) There exists in the State of Alabama a continuing need to construct, improve, and invest in rail and rail infrastructure within the state. A strong rail infrastructure promotes economic development and employment opportunities and promotes the public good and general welfare of the state.
(2) The public purpose of this chapter is to develop a coordinated program related to the rail infrastructure within the State of Alabama, including, but not limited to, the construction of such additional rail lines or tracks as may be necessary or advisable, the maintenance and improvement of the existing rail infrastructure, and the prudent use of state funds to take advantage of any opportunities for federal funding assistance that may be available.
(Act 2009-787, p. 2472, §2.)
For the purposes of this chapter, the following words and phrases shall have the following meanings:
(1) ADECA. The Alabama Department of Economic and Community Affairs.
(2) COMMISSION. The Mississippi-Louisiana-Alabama Rapid Rail Transit Commission created by the Mississippi-Louisiana-Alabama Rapid Rail Transit Compact, Chapter 11 of this title, or its successor.
(3) FREIGHT COMPONENT OF THE STATE RAIL PLAN. The plan developed by ADECA with the assistance of the commission, in conjunction with the railroads operating in the state and in concert with the Passenger Component of the State Rail Plan, that promotes freight rail service within the state, including, but not limited to, service to and from water ports in the state and the articulation of the ongoing comprehensive vision and objectives associated with promoting freight rail service within the state.
(4) PASSENGER COMPONENT OF THE STATE RAIL PLAN. The plan developed by ADECA with the assistance of the commission with the railroads operating in the state and in concert with the Freight Component of the State Rail Plan that promotes passenger rail travel within the state in a manner that is compatible with opportunities for the state to obtain federal funding assistance that may be available for intercity passenger rail service or high-speed rail corridor service, or both, and that contains provisions that include, but are not limited to, all of the following:
a. Articulating the ongoing comprehensive vision and objectives associated with promoting passenger rail travel within the state.
b. Identifying all viable routes for passenger rail service.
c. Enhancing the existing passenger rail segments within the state and constructing additional segments.
d. Providing specific guidelines and recommendations to the providers of passenger rail service within the state for complying with federal requirements necessary for the state to qualify for any available federal funding.
e. Implementing any recommendations proposed under Section 37-11B-4.
(5) PROJECT. The construction, rehabilitation, improvement, or repair of rail line or track within the state, the acquisition and development of real property and improvements to the property associated with the project, the acquisition of easements and rights-of-way to real property as may be necessary to the project, and any other component associated with the project as approved by ADECA, especially those components that may enhance state opportunities for available federal funding assistance.
(6) STATE RAIL PLAN. The plan developed by ADECA with the assistance of the commission that coordinates all aspects of the rail infrastructure within the State of Alabama and that includes both freight and passenger components as those components are defined in this section.
(Act 2009-787, p. 2472, §3.)
ADECA with the assistance of the commission shall establish and operate a program to promote passenger rail travel and service in the state and make recommendations for the development and funding of specific projects related to the construction, rehabilitation, maintenance, and improvement of the state’s passenger rail infrastructure, which shall include, but are not limited to, all of the following:
(1) Insuring compatibility for a project or projects with opportunities for the state to obtain federal funding assistance that may be available for high-speed rail service, which includes, but is not limited to, intercity passenger rail service that is reasonably expected to reach speeds of 110 miles per hour.
(2) Considering projects that create a series of corridor route rail segments with passenger service areas that are smaller than long-distance passenger trains and typically connect major city pairs, in order to provide improved service at peak travel times and a higher frequency of trains.
(3) Requiring that passenger rail projects demonstrate improvements in estimated ridership, increased on-time performance, reduced trip time, and additional service frequency to meet anticipated demand.
(4) Establishing criteria for the development of such projects that shall include, but are not limited to, public safety and interest, economic benefit to the state, financial viability after the dedication of state or federal funding resources, and continuity of rail infrastructure with regard to passenger rail service in the state.
(5) Conducting feasibility studies with regard to passenger rail service, in addition to the creation or update of the Passenger Component of the State Rail Plan.
(Act 2009-787, p. 2472, §4.)
(a)(1) Based on information gathered in the State Rail Plan or any studies conducted pursuant to subdivision (5) of Section 37-11B-4, ADECA with the assistance of the commission for purposes of promoting passenger or freight rail service, or both, may do all of the following:
a. Select or recommend routes and locations, perform preliminary engineering and surveying, acquire necessary rights-of-way and property, perform site improvements, and otherwise plan, develop, construct, and own a rail line, or portion thereof, that connects to the rail line of a railroad corporation.
b. Take any action described in subdivision (1) for the purpose of assisting a railroad corporation or other entity in developing, constructing, improving, and owning a rail line, or portion thereof, for any other purpose as approved by ADECA that promotes economic development associated with rail infrastructure or passenger or freight rail service.
(2) The actions undertaken pursuant to this subsection shall be accomplished using all the authority and powers granted to ADECA with the assistance of the commission and as applicable, by agreement with the railroad corporation to which the state-owned rail line connects or as described in any memorandum of understanding between ADECA or with the commission, or both, and the railroad corporation. ADECA and the commission, acting jointly, may enter into an agreement with a connecting railroad corporation for the lease or sale of the rail line for commercial operations on terms and conditions and with safeguards that will promote and protect the public interest. ADECA and the commission, acting jointly, may transfer possession or title to state-owned rail line and rights-of-way by deed, lease, contract, or other legal instrument. Funds for any state-owned rail line projects may be provided as appropriated by the Legislature. While owned by ADECA or any other department, agency, or instrumentality of the state or by the commission the easements and property acquired for use by a rail line may be crossed by governmental entities and public utilities with roads and utility facilities subject to compliance with appropriate safety standards.
(b) At the end of the lease term, ADECA and the commission, acting jointly, shall sell the state-owned rail line to the connecting railroad for a purchase price that, when combined with the total amount of lease payments, made before the sale, shall be an amount which is not less than the proceeds of the appropriation issued to fund the project. All lease payments shall be deposited into the Railroad Revitalization Fund established in Section 37-11B-6.
(c) If ADECA and the commission, acting jointly, take any of the actions authorized in subsection (a) and enter into an agreement for the sale of a state-owned rail line, the terms of the sale agreement shall include a purchase price that shall be in an amount not less than the amount appropriated by the Legislature to accomplish the project. The purchase price payment shall be deposited into the Railroad Revitalization Fund established in Section 37-11B-6.
(d) Contracts for the lease or sale of the rail line may be negotiated and executed without the necessity of advertising and obtaining competitive bids.
(Act 2009-787, p. 2472, §5.)
(a) There is established in the State Treasury a revolving fund to be designated as the Railroad Revitalization Fund. Monies, including interest earnings, in this fund shall be expended either separately or in combination with any available federal funds for railroad research, railroad planning, and railroad administration costs incurred by ADECA directly attributable to railroad revitalization projects; assistance to railroads for the rehabilitation or improvement of rail lines; and construction, improvement, or rehabilitation of railroad facilities.
(b) ADECA with the assistance of the commission, in conjunction with the railroads operating in the State of Alabama, shall develop the State Rail Plan, which shall be a comprehensive plan that coordinates all aspects of the improvements to rail infrastructure within the state and includes distinct freight and passenger components, as described in subdivisions (3) and (4) of Section 37-11B-3. During fiscal years 2010 and 2011, a total cumulative sum not to exceed two hundred fifty thousand dollars ($250,000) of the Railroad Revitalization Fund shall be used specifically for the purpose of initially developing the State Rail Plan. After the initial development of the State Rail Plan, the plan shall be updated periodically, not less than every three years.
(c) Except as may be otherwise provided in Sections 37-11B-1 to 37-11B-5, inclusive, funds appropriated or otherwise provided by the Legislature for rail line assistance as described in subsections (a) and (b) shall be deposited in the Railroad Revitalization Fund. Any monies received by ADECA by agreements, grants, gifts, or other means from individuals, companies, or other business entities, municipalities, counties, local railroad authorities, or regional railroad authorities or other governmental agencies for the purposes set forth in this chapter, except federal grants made under Section 5 of the Department of Transportation Act, as amended, 49 U.S.C. §1654, shall be credited to the Railroad Revitalization Fund. Any interest received from investment of monies in the fund shall be credited to the fund and shall not be deposited into the State General Fund. Use of this fund for the required periodic updates to the State Rail Plan and for railroad research, planning, and administration costs incurred by ADECA that are directly attributable to railroad revitalization projects shall be paid from any available funds of ADECA.
(Act 2009-787, p. 2472, §6.)
This chapter shall be known and may be cited as The Railroad Modernization Act of 2019.
(Act 2019-459, §1.)
As used in this chapter, the following words shall have the following meanings:
(1) CLASS II RAILROAD. A carrier classified as a Class II railroad pursuant to 49 CFR § 1201, or other rule adopted by the United States Surface Transportation Board.
(2) CLASS III RAILROAD. A carrier classified as a Class III railroad pursuant to 49 CFR § 1201, or other rule adopted by the United States Surface Transportation Board.
(3) DEPARTMENT. The Alabama Department of Revenue.
(4) ELIGIBLE TAXPAYER. A railroad that owns or leases railroad infrastructure in Alabama and is classified by the United States Surface Transportation Board as a Class II or Class III railroad.
(5) ELIGIBLE TRANSFEREE. A taxpayer who is transferred a tax credit allowed by this chapter by an eligible taxpayer.
(6) QUALIFIED RAILROAD REHABILITATION EXPENDITURES. Expenditures within the taxable year for maintenance, deductible maintenance of way expenses, reconstruction, or replacement of railroad infrastructure within the state that is owned or leased by an eligible taxpayer. The term includes new construction of industrial leads, switches, spurs, sidings, and extensions of existing sidings by an eligible taxpayer. The term does not include expenditures for which an income tax deduction has been claimed.
(7) RAILROAD INFRASTRUCTURE. Includes, but is not limited to, the track, roadbed, bridges, signaling systems and train control, industrial leads, and track-related structures owned or leased by an eligible taxpayer.
(8) REHABILITATION PLAN. Detailed construction plans and specifications for the proposed rehabilitation of railroad infrastructure under this chapter.
(Act 2019-459, §2; Act 2022-341, §1.)
(a) By December 1, 2019, the Department of Commerce shall develop standards for the approval of qualified railroad rehabilitation expenditures for which a tax credit is being sought. The standards shall consider the availability of additional public or private funding for the project, the expected completion time of the project, and the anticipated impact of the project on usage of the railroad infrastructure.
(b) By December 1, 2022, the Department of Revenue shall develop standards for the approval of qualified railroad rehabilitation expenditures for which a tax credit is being sought. The standards shall consider the availability of additional public or private funding for the project, the expected completion time of the project, and the anticipated impact of the project on usage of the railroad infrastructure.
(c) Prior to beginning any qualified railroad rehabilitation work, the eligible taxpayer shall submit an application and rehabilitation plan to the department and an estimate of the qualified railroad rehabilitation expenditures under the rehabilitation plan; provided, however, the eligible taxpayer, at its own risk, may incur qualified railroad rehabilitation expenditures no earlier than six months prior to the submission of the application and rehabilitation plan.
(d) The department shall review the application and rehabilitation plan to determine if the information contained therein is complete. If the department determines that the application and rehabilitation plan are complete, the department shall reserve, for the benefit of the eligible taxpayer, an allocation for a tax credit as provided in this chapter and shall notify the eligible taxpayer in writing of the amount of the reservation. The reservation of tax credits does not entitle the taxpayer to an issuance of tax credits until the owner complies with all other requirements of this chapter for the issuance of the tax credits. Reservations of tax credits shall be issued by the department within a reasonable time from the filing of a completed application and rehabilitation plan. Any application disapproved by the department shall be removed from the review process, and the department shall notify the taxpayer in writing of the decision to remove the application. A disapproved application may be resubmitted, but shall be deemed to be a new submission and may be charged a new application fee. In the event the reservations of tax credits equal the total amount available for reservations during the tax year, all eligible taxpayers with applications then awaiting approval or thereafter submitted shall be notified by the department that no additional tax credits shall be granted during that tax year. The applications shall remain in active status from the date of the original application and shall be considered for recommendations of tax credits in the event that additional credits become available due to rescission by the department or when a new tax year’s allocation of tax credits becomes available.
(e) Following the completion of a qualified railroad rehabilitation project, the eligible taxpayer shall notify the department that the rehabilitation has been completed and shall certify the qualified railroad rehabilitation expenditures incurred with respect to the rehabilitation plan. Within 90 days after receipt and approval of the foregoing documentation from the eligible taxpayer, the department shall issue a tax credit certificate in an amount equivalent to the amount of the qualified railroad rehabilitation expenditures incurred with respect to the rehabilitation plan as certified by the taxpayer, not to exceed the amount of the tax credit reservation issued for the project.
(f) An eligible taxpayer that has been awarded the tax credit certificate may claim the credit against any state income tax due that is specified in this chapter against the taxpayer’s Alabama state tax return. All information submitted to the Department of Revenue by taxpayers claiming or seeking certification of a credit shall be subject to the confidentiality provisions of Section 40-2A-10.
(g) For processing the taxpayer’s application for a tax credit, the department may impose an application fee equal to one percent of the qualified rehabilitation expenditures, not to exceed a fee equal to ten thousand dollars ($10,000). Any fees collected by the department under this subsection shall be deposited in the State Treasury to the credit of the department and all such funds are to be appropriated to the department to defray the expenses incurred in carrying out this chapter.
(h) The department shall report to the Legislature in the third year following passage of this chapter, and annually thereafter, on the overall economic activity, usage, and impact to the state from the rehabilitation of railroad infrastructure for which tax credits have been allowed. The information in the reports shall be consistent with the information required by the Legislature pursuant to, and shall be provided by the department to the Legislature in accordance with Section 40-1-50, and rules adopted thereunder. Information provided pursuant to this section is exempt from the confidentiality provisions of Section 40-2A-10.
(Act 2019-459, §3; Act 2022-341, §1.)
(a) For tax years beginning after December 31, 2019, through December 31, 2022, there is a credit allowed against the state income tax levied by Section 40-18-2 equal to 50 percent of an eligible taxpayer’s qualified railroad rehabilitation expenditures. The tax credit allowed under this section may not exceed three thousand five hundred dollars ($3,500) multiplied by the number of miles of railroad track owned or leased within the state by the eligible taxpayer at the close of the taxable year.
(b) For tax years beginning after December 31, 2022, through December 31, 2027, there is a credit allowed against the state income tax levied by Section 40-18-2 equal to 50 percent of an eligible taxpayer’s qualified railroad rehabilitation expenditures. The tax credit allowed under this section may not exceed four thousand one hundred dollars ($4,100) multiplied by the number of miles of railroad track owned or leased within the state by the eligible taxpayer at the close of the taxable year.
(c) There is created within the Education Trust Fund a separate account named the Railroad Rehabilitation Income Tax Credit Account. The Commissioner of Revenue shall certify to the state Comptroller the amount of income tax credits under this section, and the state Comptroller shall transfer into the Railroad Rehabilitation Income Tax Credit Account only the amount from sales tax revenues within the Education Trust Fund that is sufficient for the Department of Revenue to use to cover the income tax credits for the applicable tax year. The commissioner shall distribute the funds in the Railroad Rehabilitation Income Tax Credit Account pursuant to this section.
(d) The entire tax credit may be claimed by the taxpayer in the taxable year in which the qualified railroad rehabilitation expenditures are completed and placed into service. Where the taxes owed by the eligible taxpayer are less than the tax credit, the eligible taxpayer may be entitled to claim a refund for the difference.
(e) For the calendar years 2020, 2021, and 2022, the aggregate amount of all tax credits that may be reserved in any one of such years by the department upon certification of rehabilitation plans shall not exceed three million seven hundred thousand dollars ($3,700,000) plus any amount of previous reservations of tax credits that were rescinded during the tax year. However, if all of the allowable tax credit amount for any tax year is not requested and reserved, any unreserved tax credits may be utilized by the department in awarding tax credits in subsequent years; provided, however, that in no event shall a total of more than eleven million one hundred thousand dollars ($11,100,000) be reserved by the department during the period of August 1, 2019 through August 1, 2022. For purposes of this chapter, “tax year” shall mean the calendar year.
(f) For the calendar years 2023 through 2027, the aggregate amount of all tax credits that may be reserved in any one of such years by the department upon certification of rehabilitation plans shall not exceed four million five hundred thousand dollars ($4,500,000) plus any amount of previous reservations of tax credits that were rescinded during the tax year. However, if all of the allowable tax credit amount for any tax year is not requested and reserved, any unreserved tax credits may be utilized by the department in awarding tax credits in subsequent years; provided, however, that in no event shall a total of more than twenty-two million five hundred thousand dollars ($22,500,000) be reserved by the department during the period of August 1, 2022, through August 1, 2027. For the purposes of this chapter “tax year” shall mean the calendar year.
(g) Tax credits granted to a partnership, a limited liability company, S Corporations, trusts, or estates shall be claimed at the entity level and shall not pass through to the partners, members, or owners.
(h) All or any portion of the income tax credit authorized under this section may be transferable and assignable by written transfer agreement and subject to any notice and verification requirements to be determined by the Department of Revenue. Any tax credits transferred shall be at a value of at least eighty-five percent (85%) of the present value of the credits. However, once a credit is transferred, only the transferee may utilize the credit and the credit may not be transferred again. An eligible transferee of the credit may use the amount of credits transferred to offset any income tax due under Chapter 18 of Title 40. The department, by rule, shall adopt a written transfer agreement form. The transfer statement form shall include the name and federal taxpayer identification number of the transferor and each transferee listed therein along with the amount of the tax credit to be transferred to each transferee listed on the form. The transfer statement form shall also contain such other information as the department may from time to time reasonably require. For each transfer, the transferor shall file with the department: (1) a completed transfer statement form; (2) a copy of the executed written transfer agreement; and (3) a transfer fee payable to the department in the amount of one thousand dollars ($1,000) per transferee listed on the transfer statement form. Within 30 days after the department’s receipt of the fully executed written transfer agreement, the department shall issue a tax credit certificate to each transferee listed in the agreement in the amount of the tax credit so transferred. Such certificate shall be used by the transferee in claiming the tax credit. The department may adopt such additional rules as are necessary to permit verification of the ownership of the tax credits but shall not adopt any rules that unduly restrict or hinder the transfer of the tax credits.
(Act 2019-459, §4; Act 2021-177, §1(b)(3); Act 2022-341, §1.)
(a) By October 1, 2019, the Department of Commerce shall adopt rules necessary to implement this chapter. Applications for the reservation of tax credits shall be accepted beginning November 1, 2019.
(b) By October 1, 2022, the Department of Revenue shall adopt rules necessary to implement this chapter. Applications for the reservation of tax credits shall be accepted beginning November 1, 2022.
(Act 2019-459, §5; Act 2022-341, §1.)
The tax credit allowed under this chapter shall be effective for the 2020 tax year and shall continue through the 2027 tax year, unless extended by act of the Legislature.
(Act 2019-459, §6; Act 2022-341, §1.)
This chapter shall be known and may be cited as the “Alabama Cogeneration Act of 1983.”
(Acts 1983, No. 83-574, p. 880, §1.)
It is hereby declared to be the public policy of this state to encourage the development of cogeneration facilities to conserve energy resources and further industrial economic development in this state to the extent such encouragement is not inconsistent with the maintenance of just and reasonable electric rates to consumers of electric utilities. It is necessary for growth and job opportunities to encourage new investment in energy producing systems to remain competitive and allow for the sustained economic development of this state, consistent with just and reasonable treatment of electric consumers of this state.
(Acts 1983, No. 83-574, p. 880, §2.)
In furtherance of the policy set forth in Section 37-12-2, the rules and regulations relating to cogeneration facilities and cogenerators in the State of Alabama and the treatment of such facilities and cogenerators with respect to the capacity and energy produced in such facilities shall be governed by the applicable provisions of the regulations relating thereto which have been promulgated as of July 6, 1983 by the Federal Energy Regulatory Commission under Sections 201 and 210 of the Public Utility Regulatory Policies Act of 1978, (“PURPA”), 16 U.S.C. §796(17)-(22) and 16 U.S.C. §824 a-3 (Supp. V); such regulations being embodied in 18 Code of Federal Regulations Sections 292.101 through 292.602. Said regulations are incorporated by reference as if fully set out herein. A copy of said regulations, as complied and published in 18 Code of Federal Regulations Part 292 as of July 6, 1983 and incorporated in a volume entitled “Regulations Relating to Cogeneration Facilities Adopted for the State of Alabama,” shall be maintained by the secretary of the Alabama Public Service Commission.
(Acts 1983, No. 83-574, p. 880, §3; Acts 1984, No. 84-259, p. 431, §1.)
The Alabama Public Service Commission (“the commission”) is hereby authorized and directed to take all necessary steps to implement the provisions of this chapter as it affects utilities already subject to the jurisdiction of the commission and to promulgate rules and regulations consistent with the provisions hereof. Any such rule or regulation promulgated under the chapter shall be adopted pursuant to a determination by the commission, supported by substantial evidence, that such rule or regulation is in the public interest and shall be just and reasonable to the electric consumers of any electric utility affected. Any cogenerator or electric utility may petition the commission for appropriate relief under this chapter, and the commission will act on any such petition within 180 days. Any cogenerator or electric utility may petition the commission for approval of a contract between them, which approval will be granted within 60 days of such petition unless the contract is clearly contrary to the policy and purposes of this chapter or is otherwise unlawful. Payments required to be made by a utility to a cogenerator pursuant to any contract approved under this chapter, or pursuant to other relief afforded under this chapter, shall be afforded appropriate treatment by the commission to assure full and expedient recovery in the rates charged by the utility which are subject to the commission’s jurisdiction. If the commission action on any petition is inconsistent with the provisions of this chapter, or is otherwise unlawful, the petitioner or any party to the proceedings may bring an action within 30 days after the date of the commission order or the expiration of the applicable 60 or 180-day period, in the Circuit Court of Montgomery County, Alabama, to seek appropriate relief consistent with the policy, purposes and provisions of this chapter.
(Acts 1983, No. 83-574, p. 880, §4.)
In order to enforce the provisions of this chapter, a cogenerator who uses coal as a fuel source to produce electrical power shall purchase coal produced in the State of Alabama provided that such Alabama coal is available to the cogenerator at prices and under terms and conditions (including availability, quantity, quality and reliability of supplier) at least as favorable as coal produced outside the State of Alabama.
(Acts 1983, No. 83-574, p. 880, §5.)
When used in this chapter, unless the context plainly indicates otherwise, the present tense shall include the future tense, the singular shall include the plural, the plural shall include the singular and the following words and phrases shall have the meanings respectively ascribed to them by this section.
(1) ADDITIONAL RAIL SERVICE AREA. Any territory that is outside the boundaries or corporate limits, as the case may be, of any of its authorizing subdivisions and that the governing body of the county, and of any city or town, in which such territory is located has by resolution designated as an area in which the authority may render rail transportation service.
(2) AUTHORITY. Any public corporation organized pursuant to this chapter or any law amendatory thereof or supplemental thereto.
(3) AUTHORIZING SUBDIVISION. Any county, city, or town in this state in which there are located railroad properties and facilities and whose governing body receives an application for permission to organize an authority.
(4) BOARD. The board of directors of an authority.
(5) BOND. Any bond authorized to be issued pursuant to this chapter.
(6) COUPON. Any interest coupon evidencing an installment of interest payable with respect to a bond.
(7) DIRECTOR. A member of a board.
(8) FEDERAL GOVERNMENT. The United States of America or any department, division, commission, or agency and instrumentality thereof, including, without limitation, the Department of Transportation.
(9) INDENTURE. A mortgage, an indenture of mortgage, deed of trust, trust agreement, or trust indenture executed by an authority as security for bonds.
(10) PERSON. An individual, a corporation, a partnership, or a foreign domestic association.
(11) RAILROAD. A common carrier by railroad as defined in Section 1(3) of Part I of the Interstate Commerce Act, codified as 49 U.S.C. §1(3).
(12) RAILROAD PROPERTIES AND FACILITIES. Any real or personal property or interest in such property which is owned, leased, or otherwise controlled by a railroad or other person, including, without limitation, an authority, and which is used or is useful in rail transportation service, including, without limiting the generality of the foregoing:
a. Track, roadbed, and related structures, including rail, ties, ballast, other track materials, grading, tunnels, bridges, trestles, culverts, elevated structures, stations, office buildings used for operating purposes only, repair shops, engine houses, and public improvements used or useful in providing rail transportation service;
b. Communication and power transmission systems for use by railroads;
c. Signals and interlockers;
d. Terminal or yard facilities and services to express companies, railroads and their shippers, including ferries, tugs, car floats, and related shoreside facilities designed for the transportation of equipment by water; and
e. Shop or repair facilities or any other property used or capable of being used in providing rail transportation service or in connection with such service or for originating, terminating, improving, and expediting the movement of equipment or goods.
(13) RAIL TRANSPORTATION SERVICE. Both freight and passenger rail service.
(14) STATE. The State of Alabama.
(Acts 1984, No. 84-179, p. 256, §1; Act 2005-318, 1st Sp. Sess., p. 777, §1.)
Pursuant to this chapter, authorities may be organized as public corporations with the powers herein set forth. To organize an authority, no fewer than three natural persons shall file with the governing body of any one or more counties, cities, or towns within this state in which there are located railroad properties and facilities, an application in writing for permission to incorporate a public corporation under this chapter and shall attach to such application a proposed form of certificate of incorporation for such corporation. If each governing body with which the application is filed shall adopt a resolution, which need not be published or posted, approving the form of the certificate of incorporation and authorizing the formation of a public corporation, then the applicants shall become the incorporators of and shall proceed to incorporate an authority as a public corporation in the manner hereinafter provided, using for that purpose the form of certificate of incorporation so approved.
(Acts 1984, No. 84-179, p. 256, §2; Act 2005-318, 1st Sp. Sess., p. 777, §1.)
The certificate of incorporation of an authority shall state;
(1) The names of the incorporators together with the residence of each thereof, and a statement that each of them is a duly qualified elector of and owner of property in the state;
(2) The name of the authority (which name shall include the words “railroad authority”);
(3) The period for the duration of the authority (if the duration is to be perpetual that fact shall be so stated);
(4) The name of each authorizing subdivision, together with the date on which the governing body thereof adopted a resolution authorizing the incorporation of the authority;
(5) The proposed location of the principal office of the authority, which shall be in this state;
(6) The number of directors, which shall be not less than three, the duration of their respective terms of office (which shall not be in excess of five years), and, subject to the provisions of Section 37-13-5, the manner of their election or appointment; and
(7) Any other matters relating to the authority that the incorporators may choose to insert and that is not inconsistent with this chapter or with other laws of the state.
(Acts 1984, No. 84-179, p. 256, §3.)
The certificate of incorporation of an authority shall be signed and acknowledged by the aforesaid incorporators before an officer authorized by the laws of the state to take acknowledgements to deeds and shall have attached thereto a certified copy of each of the resolutions provided for in Section 37-13-2 and a certificate by the secretary of state that the name proposed for the authority is not identical to that of any other corporation organized under the laws of the state or so nearly similar thereto as to lead to confusion and uncertainty. The certificate of incorporation of an authority, together with the documents required by the preceding sentence to be attached thereto, shall be filed for record in the office of the judge of probate of the county in which the principal office of the authority shall be located. The judge of probate shall forthwith receive and record the same. When such a certificate of incorporation and attached documents have been so filed, the authority referred to therein shall come into existence and shall constitute a public corporation under the name set forth in such certificate of incorporation, whereupon the authority shall be vested with the rights and powers herein granted.
(Acts 1984, No. 84-179, p. 256, §4.)
Each authority shall be governed by a board of directors composed of the number of directors provided in its certificate of incorporation, all of whom shall be selected in accordance with the provisions of this section. If there is to be only one authorizing subdivision (whether a county, city or town), the governing body of the authorizing subdivision shall elect all the directors. If there is to be more than one authorizing subdivision, the respective governing bodies of the authorizing subdivisions shall each elect the same number of directors; and one additional director shall be elected jointly by the governing bodies of all the authorizing subdivisions. Each director shall be a resident of the authorizing subdivision by whose governing body he was elected, except that the said additional director need only be a resident of the county in which is located the principal office of the authority, as specified in its certificate of incorporation. In the event of a vacancy which continues for more than 30 days in the office of the said additional director, then and in such event the Governor of Alabama shall, upon the request of the governing body of any authority subdivision, appoint the said additional director. No officer of the state or any county, city or town therein shall, while holding such office, be eligible to serve as a director. If any director resigns, dies or becomes incapable or ineligible to act as a director, a successor to serve the unexpired portion of his term shall be elected in the manner prescribed hereinabove by the governing body of the authorizing subdivision which elected the director whose unexpired term he is filling or, in the case of the said additional director, by all such governing bodies. Failing such election for a period of more than 30 days, such successor shall, upon the request of the governing body of any authorizing subdivision, be appointed by the governor of the state. Directors shall be eligible for re-election.
A majority of the directors shall constitute a quorum for the transaction of business but any meeting of the board may be adjourned from time to time by a majority of the directors present or may be so adjourned by a single director if such director is the only director present at such meeting. No vacancy in the membership of the board shall impair the right of a quorum to exercise all the powers and duties of the authority. The board shall hold regular meetings on the second Tuesday in each month and at such other times as may be provided in the bylaws of the authority; and the board may hold other meetings at any time and from time to time, provided that upon call of the chairman of the authority or any two directors, a special meeting of the board must be held. Any matter on which the board is authorized to act may be acted upon at any regular, special or called meeting. At the request of any director, the vote on any question before the board shall be taken by yeas and nays and entered upon the record. All proceedings of the board shall be reduced to writing by the secretary of the authority, recorded in a well bound book and open to each director and to the public at all reasonable times. Copies of such proceedings, when certified by the secretary of the authority under its seal, shall be received in all courts as evidence of the matters and things therein certified.
Directors shall receive no compensation for their services as directors; however, each director may be reimbursed for expenses actually incurred by him in and about the performance of his duties. Any director may be impeached and removed from office in the same manner and on the same grounds provided by Section 175 of the Constitution of Alabama and the general laws of the state for impeachment and removal of the officers mentioned in said Section 175.
(Acts 1984, No. 84-179, p. 256, §5.)
The officers of the authority shall consist of a chairman, a vice-chairman, a secretary, a treasurer and such other officers as the board shall deem necessary to accomplish the purposes for which the authority was organized. The chairman, vice-chairman and secretary of the authority shall be elected by the board from its membership, but neither the treasurer nor any of the other officers of the authority need be a member of the board. Subject to the provisions of the immediately preceding sentence, the offices of secretary and treasurer may, but need not be, held by the same person. The chairman, vice-chairman and secretary of the authority shall be elected by the board for a term of one year, and the treasurer and the other officers of the authority shall be elected by the board for such term as it deems advisable. The duties of the chairman, vice-chairman, secretary and treasurer shall be such as are customarily performed by such officers and as may be prescribed by the board. The duties of any other officer of the authority shall be such as are from time to time prescribed by the board.
(Acts 1984, No. 84-179, p. 256, §6.)
Each authority shall have the following powers, together with all powers incidental thereto or necessary to the discharge thereof in corporate form;
(1) To have succession by its corporate name for the duration of time (which may be in perpetuity) specified in its certificate of incorporation;
(2) To sue and be sued in its own name in civil suit and actions;
(3) To adopt and make use of a corporate seal and to alter the same at pleasure;
(4) To adopt and alter bylaws for the regulation and conduct of its affairs and business;
(5) To acquire, receive, take and hold, whether by purchase, gift, lease, devise, or otherwise, property of every description, whether real, personal or mixed, whether in one or more counties and whether within or without the boundaries or corporate limits (as the case may be) of any authorizing subdivision, and to manage said property, and to develop any undeveloped property owned, leased or controlled by it in a manner necessary or convenient to carry out the purposes of this chapter;
(6) To execute such contracts and other instruments and to take such other action as may be necessary or convenient to carry out the purposes of this chapter or the exercise of any power granted hereunder;
(7) To plan, establish, acquire (by purchase, gift, lease, or devise), construct, enlarge, reconstruct, improve, operate, maintain, replace, repair, extend, improve, regulate and protect railroad properties and facilities within the boundaries or corporate limits (as the case may be) of any of its authorizing subdivisions and within any additional rail service area;
(8) To make the use and services of its railroad properties and facilities available to others in the furtherance of the purposes of this chapter and upon such terms and conditions as the board shall deem proper, and to lease such railroad properties and facilities to others upon such terms and conditions as the board may determine, unless specifically provided for herein;
(9) To receive and accept contributions, grants or other financial assistance from the federal government, the state or any political subdivision thereof, to be used in furtherance of the purposes of this chapter;
(10) To establish schedules of tolls, fees, rates, charges and rentals for the use of its railroad properties and facilities and to charge, alter and collect such tolls, fees, rates, charges and rentals in carrying out the provisions of this chapter;
(11) To make contracts and execute instruments containing such covenants, terms and conditions as in the judgment of the board may be necessary, proper or advisable for the purpose of obtaining grants, loans or other financial assistance from any federal or state agency for or in the aid of the acquisition or improvement of the railroad properties and facilities herein provided; to make all other contracts and execute all other instruments including, without limitation, licenses, long and short-term leases, mortgages and deeds of trust and other agreements relating to the railroad properties and facilities within the boundaries or corporate limits (as the case may be) of any of its authorizing subdivisions and within any additional rail service area, and the construction, operation, maintenance, repair and improvement thereof as in the judgment of the board may be necessary, proper or advisable for the furtherance of the purposes of this chapter and the full exercise of the powers herein granted; and to carry out and perform the covenants, terms and conditions of all such contracts or instruments;
(12) To acquire, by purchase, gift, devise or lease, existing railroad properties and facilities, whether in one or more counties and whether within or without the boundaries or corporate limits (as the case may be) of any of its authorizing subdivisions;
(13) To issue revenue bonds payable from the limited sources hereinafter referred to;
(14) To pledge for payment of such bonds any revenues and funds from which such bonds are made payable;
(15) To make and enter into contracts, leases and agreements incidental to or necessary for the accomplishment of any purposes for which the authority was organized;
(16) To exercise the power of eminent domain in the manner and subject to the provisions of Title 18 as amended, with respect to any property, real, personal or mixed, whether in one or more counties and whether within or without the boundaries or corporate limits (as the case may be) of any authorizing subdivision; provided, that the authority may not acquire by eminent domain any real property or rights owned or held by railroads, transportation companies or utilities, either public or private;
(17) To appoint, employ, contract with and provide for compensation of such officers, employees and agents, including engineers, attorneys, consultants, fiscal advisers and such other employees as the business of the authority may require, including the power to fix working conditions by general rule and other conditions of employment, and at its option to provide a system of disability pay, retirement compensation and pensions, or any of them, and to hire and fire servants, agents, employees and officers at will;
(18) To provide for such insurance, including use and occupancy insurance, as the authority may deem advisable;
(19) To invest any funds of the authority that the board may determine are not presently needed for its corporate purposes in any obligations which are direct general obligations of the United States of America or which are unconditionally guaranteed as to both principal and interest by the United States of America, or in interest-bearing time deposits of any bank or savings and loan association organized under the laws of the state or of the United States of America;
(20) To cooperate with the state, any county, city, town, public corporation, agency, department, or political subdivision of the state, and to make such contracts with them or any of them as the board may deem advisable to accomplish the purposes for which the authority was established;
(21) To sell and convey any of its properties that may have become obsolete or worn out or that may no longer be needed or useful;
(22) To receive and accept grants for or in aid of the construction, extension, improvement, maintenance or operation of any railroad properties and facilities from the United States of America or any agency thereof, and from the state, any department or agency thereof and any political subdivision thereof, and to receive and accept money, property, labor or other things of value from any source whatever; and
(23) To purchase equipment and supplies necessary or convenient for the exercise of any power of the authority.
(Acts 1984, No. 84-179, p. 256, §7.)
Each authority is authorized to accept, receive, receipt for, disburse and expend federal and state moneys and other moneys, public or private, made available by grant or loan or both, to accomplish, in whole or in part, any of the purposes of the chapter. All federal moneys accepted under this section shall be accepted and expended by the authority upon such terms and conditions as are prescribed by the United States and as are not inconsistent with the laws of this state, and all state moneys accepted under this section shall be accepted and expended by the authority upon such terms and conditions as are prescribed by law.
(Acts 1984, No. 84-179, p. 256, §8.)
For the purpose of aiding and cooperating with an authority in the planning, development, undertaking, construction, extension, improvement or operation of railroad properties and facilities, any county, city, town or other political subdivision, public corporation, agency or instrumentality of this state may, upon such terms and with or without consideration, as it may determine:
(1) Lend or donate money to an authority;
(2) Cause water, sewer or drainage facilities, or any other facilities which it is empowered to provide, to be furnished adjacent to or in connection with such railroad properties and facilities;
(3) Donate, sell, convey, transfer or lease to an authority any land, property, franchise, grant easement, license or lease, which it may own;
(4) Donate, transfer, assign, sell or convey to an authority any right, title or interest which it may have in any lease, contract, agreement, license or property;
(5) Furnish, dedicate, close, pave, repair, install, grade, regrade, plan or replan streets, roads, roadways and walks from established streets or roads to railroad properties and facilities of an authority; and
(6) Do any and all things, whether or not specifically authorized in this section and not otherwise prohibited by law, that are necessary or convenient to aid and cooperate with an authority in the planning, undertaking, construction, reconstruction, acquisition or operation of railroad properties and facilities.
(Acts 1984, No. 84-179, p. 256, §9.)
No action or suit shall be brought or maintained against the manager or any director of an authority for or on account of the negligence of the authority or such manager or director, or its or his agents, servants or employees, in or about the construction, maintenance, operation, superintendence or management of any railroad properties and facilities or other property owned or controlled by the authority.
(Acts 1984, No. 84-179, p. 256, §10.)
Each authority shall have the power and is hereby authorized at any time and from time to time to issue and sell its revenue bonds for any of its corporate purposes. The principal of and the interest on all such bonds shall be payable solely from, and may be secured by a pledge of, the revenues derived by the authority from the operation, leasing or sale of any or all of its railroad properties and facilities, and other property. No bonds issued or contracts entered into by the authority shall ever constitute or create an obligation or debt of the state, or of any county, city or town within the state, or a charge against the credit or taxing powers of the state, or of any county, city or town within the state. Bonds of the authority may be issued by any time and from time to time, may be in such form, either in bearer form with appurtenant coupons (and subject to registration as to principal or interest, or both, all as the board may determine) or in fully registered form without coupons, and in such denominations, may be of such tenor, may be payable in such installments and at such time or times not exceeding 40 years from their date, may be payable at such place or places whether within or without the state, may bear interest at such rate or rates (which may be fixed or which may float or vary based on some index or other standard deemed appropriate by the board), and shall be payable and evidenced in such manner, all as shall not be inconsistent with the provisions of this chapter and as may be provided in the proceedings of the board wherein the bonds shall be authorized to be issued. Any bond having a stated maturity more than 10 years after its date shall be made subject to redemption at the option of the authority not later than the expiration of 10 years from its date and on any interest payment date thereafter at such price or prices and after such notice or notices and on such terms and in such manner as may be provided in the proceedings of the board wherein it is authorized to be issued. Bonds of the authority may be sold at public or private sale in such manner and from time to time as may be determined by the board. The authority may pay all reasonable expenses, premiums, fees and commissions that the board may deem necessary or advantageous in connection with the authorization, sale and issuance of its bonds. All bonds shall contain a recital that they are issued pursuant to the provisions of this chapter, which recital shall be conclusive that they have been duly authorized pursuant to the provisions of this chapter. Neither a public hearing nor the consent of any agency of the state or any subdivision thereof shall be prerequisite to the issuance of bonds by any authority. Notwithstanding the fact that they are payable solely from a specified source, all bonds issued under the provisions of this chapter shall be deemed negotiable instruments within the meaning of the negotiable instruments law of the state if they otherwise possess all the characteristics of negotiable instruments under the laws of the state.
(Acts 1984, No. 84-179, p. 256, §11.)
All bonds shall be signed by the chairman or vice-chairman and the secretary or treasurer of the authority and the seal of the authority shall be affixed thereto. A facsimile of the signature of one, but not both, of the officers whose signatures will appear on the bonds may be imprinted or otherwise reproduced thereon in lieu of his manually signing the same; provided, however, that a facsimile of the signature of both such officers may be imprinted or reproduced on such bonds if such bonds are required to be authenticated by the manual signature of the duly designated registrar of such bonds, or an authorized officer of such registrar; and provided further, that a facsimile of the seal of the authority may be imprinted or otherwise reproduced on the bonds in lieu of being manually affixed thereto. Coupons shall be signed by the chairman or vice-chairman and the secretary or treasurer of the authority, but a facsimile of the signature of such chairman or vice-chairman and such secretary or treasurer may be impressed or otherwise reproduced on any such coupons in lieu of their manually signing the same. Delivery of bonds so executed shall be valid notwithstanding any changes in officers or in the seal of the authority after the signing and sealing of the bonds.
(Acts 1984, No. 84-179, p. 256, §12.)
In the discretion of the authority any bonds may be issued under and secured by an indenture between the authority and a trustee. Said trustee may be a private person or corporation, including (but not limited to) any trust company or bank having trust powers, whether such bank or trust company is located within or without the state. In any such indenture or resolution providing for the issuance of bonds, the authority may pledge, for payment of the principal of and the interest on such bonds, any of its revenues to which its right then exists or may thereafter come into existence and may assign, as security for such payment, any of its leases, franchises, permits and contracts; and in any such indenture, the authority may mortgage any of its properties, including any that may be thereafter acquired by it. Any such pledge of revenues shall be valid and binding from the time it is made, and the revenues so pledged and thereafter received by the authority shall immediately become subject to the lien of such pledge without any physical delivery thereof or further act. The lien of such pledge shall be valid and binding against all parties having claims of any kind in tort, contract or otherwise against the authority, irrespective of whether the parties have actual notice thereof, from the time a statement is filed in the office of the judge of probate of the county in which is located the principal office of the authority (as specified in its certificate of incorporation) and any other county in which any part of the property, the revenues from which are so pledged, is located. Such notice need state only the date on which the resolution authorizing the issuance of the bonds was adopted by the board, the principal amount of bonds issued, a brief description of the revenues so pledged and a brief description of any property the revenues from which are so pledged.
In any indenture or resolution authorizing the issuance of bonds and pledging for the benefit thereof revenues from any of its railroad properties and facilities, the authority shall have the power to include provisions customarily contained in instruments securing evidence of indebtedness, including, without limiting the generality of the foregoing, provisions respecting the collection, segregation and application of any rental or other revenue due to or to become due to the authority, the terms to be incorporated in any lease agreement respecting any property of the authority, the maintenance and insurance of any building or structure owned by the authority, the creation and maintenance of special funds from any revenue of the authority and the rights and remedies available in the event of default to the holders of the bonds or the trustee under the indenture, all as the board shall deem advisable and as shall not be in conflict with the provisions of this chapter. If there be any default by the authority in payment of the principal of or the interest on the bonds or in any of the agreements on the part of the authority that may properly be included in any indenture securing the bonds, any holder of bonds or coupons, or the trustee under any indenture if so authorized in such indenture, may (in addition to any other remedies herein provided or otherwise available) either at law or in equity, by suit, action, mandamus or other proceedings, enforce payment of such principal or interest and compel performance of all duties of the board and officers of the authority, and shall be entitled as a matter of right, and regardless of the sufficiency of any such security, to the appointment of a receiver in equity with all the powers of such receiver for the operation and maintenance of the property of the authority covered by such indenture and the collection, segregation and application of revenues therefrom. The indenture may also contain provisions restricting the individual rights of action of the holders of the bonds and coupons.
(Acts 1984, No. 84-179, p. 256, §13.)
The proceeds derived from the sale of any bonds (other than refunding bonds) may be used only to pay the costs of acquiring, constructing, improving, enlarging and equipping the railroad properties and facilities, or other property with respect to which they were issued, as may be specified in the proceedings in which the bonds are authorized to be issued. Such costs shall be deemed to include the following: the costs of any land or easements forming a part of such railroad properties and facilities or other property; the cost of labor, material and supplies used in any such construction, improvement or enlargement, including architects’ and engineers’ fees, and the cost of preparing contract documents and advertising for bids; the purchase price of, and the cost of installing equipment for use in connection with, such railroad properties and facilities or other property; the cost of constructing and installing roads, sidewalks, curbs, gutters, utilities, and parking places in connection with such railroad properties and facilities or other property; the amounts of any debt service, maintenance and capital improvement and other similar reserves deemed advisable; legal, fiscal and recording fees and expenses incurred in connection with the authorization, sale and issuance of the bonds issued in connection with such railroad properties and facilities or other property; and interest on said bonds for a reasonable period prior to and during the time required for such construction, improvement, enlargement and equipment and for not exceeding 18 months after completion thereof. If any of the proceeds derived from the sale of said bonds remains undisbursed after completion of such work and payment of all of the said costs and expenses, such balance shall be used for retirement of the principal of or the interest on the bonds of the same issue.
(Acts 1984, No. 84-179, p. 256, §14.)
An authority may at any time and from time to time issue refunding bonds for the purpose of refunding the principal of and the interest on any bonds of the authority theretofore issued hereunder and then outstanding, whether or not such principal and interest shall have matured at the time of such refunding, and for the payment of any expenses incurred in connection with such refunding and any premium necessary to be paid in order to redeem, retire or purchase for retirement the bonds to be refunded. The proceeds derived from the sale of any refunding bonds shall be used only for the purposes for which the refunding bonds were authorized to be issued. Any such refunding may be effected either by sale of the refunding bonds and the application of the proceeds thereof, or by exchange of the refunding bonds for the bonds or coupons to be refunded thereby; provided that the holders of any bonds or coupons so to be refunded shall not be compelled without their consent to surrender their bonds or coupons for payment or exchange prior to the date on which they may be paid or redeemed by call of the authority under their respective provisions. All provisions of this chapter pertaining to bonds of an authority that are not inconsistent with the provisions of this section shall, to the extent applicable, also apply to refunding bonds issued by an authority. An authority may at any time and from time to time issue bonds for the purpose of so refunding the principal of and the interest on any of its bonds and for any other purpose for which it is authorized to issue bonds, in which event the provisions hereof respecting refunding bonds shall apply only to that portion of such combined issue authorized for refunding purposes and the provisions hereof respecting other financing shall apply to the remaining portion of such combined issue.
(Acts 1984, No. 84-179, p. 256, §15.)
The bonds issued by an authority and the income therefrom shall be exempt from all taxation in the state. All property and income of an authority shall be exempt from all state, county, municipal and other local taxation; provided, however, that this exemption shall not be construed to exempt concessionaires, licensees, tenants, operators or lessees of the authority from the payment of any taxes, including licenses or privilege taxes levied by the state, any county or any municipality in the state.
(Acts 1984, No. 84-179, p. 256, §16; Acts 1990, No. 90-546, p. 852, §1.)
The governing body of any county, city or town within this state is authorized in its discretion to invest in bonds of the authority any idle or surplus money held in its treasury.
(Acts 1984, No. 84-179, p. 256, §17.)
Bonds issued under the provisions of this chapter are hereby made legal investments for executors, administrators, trustees and other fiduciaries, unless otherwise directed by the court having jurisdiction of the fiduciary relation or by the document that is the source of the fiduciary’s authority. Such bonds shall be legal investments for savings banks and insurance companies organized under the laws of the state.
(Acts 1984, No. 84-179, p. 256, §18.)
Upon the adoption by the board of any resolution providing for the issuance of bonds, the authority may in its discretion cause to be published once a week for two consecutive weeks, in a newspaper that is customarily published in this state not less than five days in each calendar week and distributed in the county in which is located the principal office of the authority, a notice in substantially the following form (the blanks being properly filled in) at the end of which there shall be printed the name and title of either the chairman or secretary of the authority:
Any action or proceeding in any court to set aside or question the proceedings for the issuance of the bonds referred to in said notice or to contest the validity of any such bonds or the validity of the pledge and any instruments made to secure such bonds must be commenced within 30 days after the first publication of such notice. After the expiration of the said period no right of action or defense questioning or attacking the validity of the said proceedings, the said bonds or the said pledge or instruments shall be asserted, nor shall the validity of the said proceedings, bonds, pledge or instruments be open to question in any court on any ground whatsoever except in an action commenced within such period.
(Acts 1984, No. 84-179, p. 256, §19.)
Authorities organized pursuant to this chapter shall be exempt from (a) all laws relating to the advertising and award of construction contracts and purchase contracts made by or in behalf of the state and its departments and by or in behalf of local governmental authorities in the state (not including, however, laws relating to surety bond requirements for such contracts), and (b) from all jurisdiction of and all regulation and supervision by the Alabama Public Service Commission (other than rate regulation) or other successor or similar agency.
(Acts 1984, No. 84-179, p. 256, §20.)
At any time when no bonds of an authority are outstanding, such authority may be dissolved upon the filing, with the judge of probate of the county in which is filed the certificate of incorporation, of an application for dissolution, which shall be subscribed by each director and sworn to by each director before an officer authorized to take acknowledgments to deeds. Upon the filing of such application for dissolution, the authority shall cease to exist. Said probate judge shall receive and record the application for dissolution in an appropriate book of record in his office. Upon dissolution, all rights, title and interests of the authority in property shall be vested in the authorizing subdivisions pursuant to the provisions of the certificate of incorporation, or, in the absence of such provisions, shall be vested in the authorizing subdivisions in the same proportion as their contributions to the authority over the life thereof.
(Acts 1984, No. 84-179, p. 256, §21; Acts 1990, No. 90-546, p. 852, §2.)
The Legislature of the State of Alabama has investigated the economic, financial and environmental impact associated with the potential for duplication of electric distribution facilities used for the furnishing of retail electric service. Among its findings are the conclusion that with respect to retail electric sales, the benefit normally associated with competition between two or more entities for customers is outweighed by the tremendous cost burden which must be borne by such customers associated with the maintenance of two or more duplicate sets of facilities. It is the further finding of the legislature that the existence of duplicate facilities for the furnishing of electricity at retail is not in the public interest because of the adverse impact which such duplication has on environmental and aesthetic values and on safety. It is therefore declared that the policy of the State of Alabama is to ensure effective, economical and orderly supply of electric service at retail to customers in the state and to avoid unnecessary duplication of facilities by electric suppliers for the furnishing of such services which would result in waste and in degradation of the environment. To accomplish these objectives, it is necessary and in the public interest to establish, mandate and implement procedures for determining which electric supplier shall furnish electric service to customers at retail within various areas of the state including areas within present and future corporate limits of municipalities in the state.
(Acts 1984, No. 84-206, p. 314, §1.)
As used in this article, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise;
(1) ELECTRIC SUPPLIER. Any municipality, municipally-owned utility or other governmental entity, any cooperative, corporation, person, firm, association or other entity engaged in the business of supplying electric service at retail; provided, however, that a university, college or United States military base which distributes electricity shall not be deemed an electric supplier for the purpose of this article.
(2) ELECTRIC SERVICE AT RETAIL and RETAIL ELECTRIC SERVICE. Electric service furnished to a customer for ultimate consumption, but does not include wholesale electric service furnished by an electric supplier to another electric supplier for resale.
(3) PREMISES. The building, structure or facility to which electricity is being metered or is to be furnished and metered, including all meters on such building, structure or facility through which electricity is delivered or to be delivered. Such term shall also include any building, structure or facility which is reconstructed to replace a previously existing building, structure or facility of substantially the same size. In the event two or more buildings, structures, or facilities are located on one tract of land utilized by one customer, those buildings, structures, or facilities which are or will be served through a different meter shall be considered a separate premises.
(4) DISTRIBUTION LINE. An electric conductor which is operated at 35,000 volts or less, up to but not including the service drop. The service drop shall be that line from the last pole or last transformer on the distribution system to the premises.
(5) EXISTING DISTRIBUTION LINE. A distribution line in existence on January 1, 1984.
(6) PRIMARY ELECTRIC SUPPLIER. That electric supplier for each municipality existing on January 1, 1984 serving a plurality of the premises within the existing municipal limits to which service is actually being supplied and metered on January 1, 1984.
(7) SECONDARY ELECTRIC SUPPLIER. Any electric supplier serving within existing municipal limits which is not the primary electric supplier.
(8) EXISTING MUNICIPAL LIMITS. The corporate boundaries of any municipality as such boundaries existed on April 26, 1984.
(9) REPRODUCTION COST NEW LESS DEPRECIATION. The total investment that would be required by the electric supplier selling the facilities to duplicate the facilities to be sold at the time of such sale utilizing then current costs for all materials, supplies, labor, land and land rights, transportation, and miscellaneous direct and indirect expenses (including overhead, engineering and supervision costs that are normally capitalized) that would be required; the costs that would be required to obtain all necessary approvals and permits; and any other costs that would be appropriately applicable to the reproduction of the facilities, less an amount representing the straight line depreciation of such reproduction costs of any depreciable items over an assumed life of 30 years for electric distribution facilities for that period of time equal to the age of the items of the electric distribution facilities being transferred. In no event, however, shall any item be depreciated more than 30 percent of the reproduction costs new of that item, so that in no event shall reproduction cost new less depreciation be less than 70 percent of the reproduction cost of such item.
(10) INDUSTRIAL CUSTOMER. A customer utilizing electric service at a premises at which the predominate activity is classified as mining, manufacturing, transportation, communication, electric, gas and sanitary services, or miscellaneous repair services in the Standard Industrial Classification Manual, Part I, Divisions B, D and E and Major Group 76 of Division I as published in 1972 by the Statistical Policy Division of the United States Office of Management and Budget.
(Acts 1984, No. 84-206, p. 314, §2.)
Except as otherwise provided in subdivisions (2), (3), and (4) of this section in areas outside existing municipal limits (including areas annexed to municipalities on or after April 26, 1984), no electric supplier shall construct or maintain electric distribution lines for the provision of retail electric service to any premises being provided retail electric service by another electric supplier, or to any new premises located within the boundaries of assigned service areas of another electric supplier, even if the premises is within municipal limits and the electric supplier, in whose assigned area the premises is located has no franchise from the municipality in which such premises is located. Assigned service areas outside existing municipal limits are hereby established as set forth in this section.
(1) Except as specified in subdivisions (2) and (3) of this section herein, each electric supplier is hereby assigned the sole obligation, in accordance with its established rules and regulations, in areas outside existing municipal limits (including areas annexed to municipalities on or after April 26, 1984 whether or not a franchise has been granted by the municipality to the electric supplier to whom an area annexed has been assigned or to any other electric supplier), for provision of retail electric service to all new premises located in closer proximity to existing distribution lines of such supplier than the nearest existing distribution lines of any other electric supplier. No other electric supplier shall render electric service to such premises. Thus, the assigned service area of each electric supplier in areas outside existing municipal limits is defined as the area or areas consisting of a line or lines drawn equidistant between the existing distribution lines of such electric supplier and the nearest existing distribution line of any other electric supplier. Where a premises is located in the assigned service area of two electric suppliers, the supplier in whose assigned area the majority of the square footage of the premises falls shall provide the service. The above assignment shall also apply to areas within the existing municipal limits in the event the primary electric supplier fails to exercise the option to purchase set forth in Section 37-14-4.
(2) Notwithstanding the above limitations stated in this section on construction of facilities to serve customers in areas outside existing municipal limits, an electric supplier may construct, operate and maintain facilities for provision of retail electric service to any new industrial customer not presently or previously served by another electric supplier, in an area outside existing municipal limits where the initial electric service requirement to such industrial customer, under normal operations and with a six-month growth period permitted from date of initial service, is equal to or greater than 2500 kilowatts as measured over a 15-minute integrated period, upon written request to such electric supplier by the industrial customer to be served.
(3) Notwithstanding subdivision (2) hereof, no municipality or municipally-owned electric supplier shall provide retail electric service in any area outside existing municipal limits unless the premises to be so served is in the assigned service area of such electric supplier.
(4) The foregoing limitations shall not prevent an electric supplier from constructing electric facilities to serve its own premises used or to be used in its electric operations and other premises owned and occupied solely and exclusively by the electric supplier, or a municipality which appoints the governing body of such electric supplier or any agency of said municipality whose governing body is appointed by that municipality.
(5) Within nine months after April 26, 1984, all electric suppliers having existing distribution lines in each county in the state shall exchange maps of such facilities (as of January 1, 1984) located within the county. These maps shall be sufficiently detailed to permit the development of a definitive understanding of the electric supplier designated to serve under the guidelines set forth in subdivision (1) above. The legislature recognizes that the vast majority of existing distribution lines within existing municipal limits will have no effect on the assigned service areas determined in accordance with this section and electric suppliers may, at their option, elect not to show existing distribution lines which do not affect the assigned service areas.
(6) Neither (i) municipal annexations after April 26, 1984, nor (ii) the construction or removal of any facilities after January 1, 1984, nor (iii) the purchase or sale of any facilities after April 26, 1984 consummated under the provisions of this article shall affect any rights or limitations regarding retail electric service under this section. Any annexation by a municipality pursuant to the laws of this state shall be subject to and conditioned upon recognition of the provisions of this article.
(Acts 1984, No. 84-206, p. 314, §3.)
The primary electric supplier within each municipality shall, at its option, have the right to acquire all distribution facilities of any secondary electric supplier used to supply retail electric service within the existing municipal limits and shall have the right to serve all premises within the existing municipal limits of such municipality subject to the following;
(1) The primary electric supplier must announce its intention to exercise its option in writing by registered or certified mail to the affected secondary suppliers within each municipality, addressed to the chief executive officer or manager of such secondary supplier, no later than nine months after April 26, 1984. Simultaneously with the delivery of the notice of exercise of its option by the primary electric supplier, the primary electric supplier shall deposit in escrow with a bank whose principal office is in Alabama and which has capital and surplus of not less than $5,000,000.00, or with any other escrow agent agreeable to the parties, the amount of $1,000.00 for each premises receiving electricity from the distribution facilities proposed to be purchased by the primary electric supplier on the date of the notice based on the primary electric supplier’s good faith estimate of the number of premises involved. The secondary supplier shall, within seven days after receipt of such notice, provide the actual number of premises involved, if different from that estimated by the primary supplier, and the escrow deposit made by the primary supplier shall be adjusted to accommodate any difference within seven days after such actual number of premises is supplied. The escrow agent shall be directed and authorized to invest the funds placed in escrow by the primary electric supplier in any investment directed by the primary electric supplier. The escrow agent is further authorized, upon election of the primary electric supplier making the deposit, to combine for investment any other deposit made by that depositor for the same purpose with respect to different facilities. The escrow agent shall render periodic accountings as to the escrow account to the primary electric supplier and the secondary electric supplier. If the purchase is consummated in accordance with this article, the funds shall be used to satisfy the purchase price of the facilities and other consideration to be paid by the primary electric supplier to the secondary electric supplier due as of the date of closing as determined under this section. Any portion of such fund in excess of the amount due to be paid to the secondary electric supplier on the date of closing shall be refunded to the primary electric supplier. If the amount due to be paid by the primary electric supplier to the secondary electric supplier under this section on the date of closing is in excess of the amount in the escrow account, the primary electric supplier shall pay the difference to the secondary electric supplier at closing. If the closing of the facilities is not consummated because of the failure of the primary electric supplier to pursue its option under this article to purchase the distribution facilities, the escrow agent shall be instructed to deliver from the escrow fund to the secondary electric supplier, 14 days after the date on which the primary electric supplier’s rights to purchase the facilities expire unconsummated, the interest earned on the amount deposited from investment of such funds plus 10 percent of the amount originally deposited by the primary electric supplier. The balance of such escrow funds shall be returned to the primary electric supplier making the deposit.
(2) Unless otherwise agreed to by the secondary electric supplier and except as provided in subdivision (3) of this section, the primary electric supplier must offer to purchase all of the distribution facilities of the secondary electric supplier utilized by the secondary electric supplier for retail electric service within the existing municipal limits of any particular municipality. The primary and secondary electric supplier shall cooperate in the development of an inventory of such facilities and in the valuation of the facilities to be sold and other consideration to be paid in accordance with the principles set forth in subdivision (4) below. The secondary electric supplier shall also furnish to the primary electric supplier an accurate record of the revenues billed to customers of the secondary electric supplier located within the existing municipal limits of the municipality for the 12 months preceding the date of notice from the primary electric supplier of its exercise of the option to purchase facilities. The secondary electric supplier shall also provide the primary electric supplier with such information as is available to the secondary electric supplier concerning title to the distribution facilities. Within three months after initial notice has been given to the secondary electric supplier, if agreement has not been reached as to the inventory of facilities to be acquired and the value thereof or other consideration to be paid, the primary electric supplier shall be entitled to provide, in writing, its proposal listing the distribution facilities to be acquired, stating its estimate of the value and listing its evaluation of other consideration to be paid in accordance with subdivision (4) hereof. Within 30 days after receipt of any such proposal, the secondary electric supplier shall state its objections, if any, to the matters contained in such proposal. If the secondary electric supplier fails to submit objections within such 30-day period, the proposal submitted by the primary electric supplier shall be conclusive as to the matters contained therein. If the secondary electric supplier does provide written objections, any dispute between the parties shall be resolved by mutual agreement or by the procedure set forth in Section 37-14-6.
(3) Each affected secondary supplier shall have the right to continue to provide retail electric service in accordance with its established rules and regulations, without time limitation, to any premises within the existing municipal limits of any municipality, the electric load of which (a) was 800 kilowatts or greater for three consecutive months during the three years prior to January 1, 1984; or (b) is served from a substation or step-down transformer from 44 kilovolts or higher which is devoted exclusively to service to the particular premises.
(4) The reproduction cost new, less depreciation, of the facilities to be acquired shall be determined as of 30 days prior to the date established for the closing of the acquisition. The facilities transferred shall be conveyed by warranty deed, “as is, where is,” without warranty, express or implied, as to the condition of the facilities. In addition to such reproduction costs, the primary electric supplier shall (i) reimburse the secondary electric supplier the costs to the secondary electric supplier for removal of its meters which are excluded from the definition of distribution facilities in Section 37-14-5(i); (ii) reimburse the secondary electric supplier the cost of constructing any necessary facilities to reintegrate the system of the secondary electric supplier after detaching the portion to be sold to the primary electric supplier such that the reintegrated system and supply of power and energy thereto in those areas that will continue to be served by the secondary electric supplier will be as adequate and dependable as exists prior to the sale; such reimbursement to include the cost of removal and to be reduced by the salvage value of any facilities removed by the secondary electric supplier; (iii) reimburse the secondary electric supplier its original cost depreciated for facilities of the secondary electric supplier excluded from the definition of distribution facilities under Section 37-14-5(ii) in which case the primary electric supplier shall take title to such facilities or, at the option of the secondary electric supplier, reimburse the secondary electric supplier the cost of removal, in which case the secondary electric supplier shall retain title; and (iv) pay to any wholesale supplier of the secondary electric supplier (or if the secondary electric supplier does not purchase its electric supply at wholesale then to the secondary electric supplier) the original cost depreciated of any facilities other than distribution facilities, as described in Section 37-14-5(iii), rendered useless by such acquisition of the distribution system of the secondary electric supplier; provided, however, at the election of the owner of such facilities, the payment to be made shall be the cost to such owner of relocating such facilities. The primary electric supplier shall pay the secondary electric supplier the amount determined pursuant to this chapter for reproduction cost new less depreciation of the distribution facilities together with the amount due under subdivision (4)(i), (ii), (iii) and (iv) immediately upon transfer of title to the facilities. In addition, to compensate the secondary electric supplier for the loss of future revenues from presently served or future developing premises, and not as compensation for the sale of its facilities, the primary electric supplier shall pay to the secondary electric supplier an amount equal to two and one-half times the total revenue from electric sales derived by the secondary electric supplier from customers within the existing municipal limits during the 12 months prior to the date notice is given by the primary electric supplier of its election to purchase the facilities. This amount shall be paid in 10 equal annual installments beginning on the date the sale of facilities is consummated.
(5) Each affected secondary electric supplier shall have the right to continue to provide service to premises located within the existing municipal limits until such time as the primary electric supplier exercises its option to purchase and until such purchase is consummated pursuant to the procedures established herein. In the event the electric facilities of the secondary electric supplier are subject to an option to purchase as provided herein, the secondary electric supplier shall have the right to continue to maintain such facilities and retail electric service until the primary electric supplier purchases the facilities of the secondary electric supplier; and in the event the primary electric supplier does not exercise the option to purchase the facilities of the secondary electric supplier as provided in this section, the secondary electric supplier shall have the right to continue to maintain its facilities and service and make extensions to serve new premises within the existing municipal limits under the standards set forth in Section 37-14-3, notwithstanding the lack of a franchise from the municipality in which such premises are located. The primary electric supplier shall be prohibited from extending service to such new or existing premises.
(Acts 1984, No. 84-206, p. 314, §4.)
The term “distribution facilities” as used in Section 37-14-4 shall include distribution lines and other facilities constructed or installed by the electric supplier in the area to which the purchase option applies, for the rendering of retail electric service except (i) meters, (ii) distribution transformers of voltages not compatible with those of the acquiring electric supplier, (iii) substations of such a voltage that are not compatible with operations of the acquiring electric supplier, (iv) facilities for provision of service by the secondary supplier to premises the electric load of which such secondary supplier may continue to serve under Section 37-14-4(3), and (v) such facilities designated by the supplier as necessary to continue its service in an area not subject to the purchase option herein or to serve such supplier’s own load.
(Acts 1984, No. 84-206, p. 314, §4.)
In the event that a dispute should arise between two or more electric suppliers in connection with the purchase of distribution facilities under Section 37-14-4, the primary electric supplier involved may petition the circuit court for the judicial circuit in which the distribution facilities to be purchased are located to determine such matters as are in dispute between the parties. If the purchase of distribution facilities proposed to be purchased under the notice described in Section 37-14-4(1) is not closed within six months after the date of the notice and if the primary electric supplier has not filed a petition for resolution of disputes in the appropriate court within 14 days after six months from the date of the notice, then the primary electric supplier’s exercise of the option shall be void and of no further effect and the primary electric supplier shall have no right to purchase such facilities thereafter.
If a petition is filed with the appropriate circuit court, the sale of the facilities shall be closed within 90 days from the date of the issuance of a final order of the circuit court (or from the date of the decision of an appellate court if such matter is appealed). If the closing is not completed within such 90 days due to the failure of the primary electric supplier to close for any reason, the primary electric supplier’s exercise of the option shall be void and it shall thereafter have no further right to purchase the distribution facilities covered by the notice.
(Acts 1984, No. 84-206, p. 314, §5; Acts 1984, 2nd Ex. Sess., No. 85-45, p. 68, §1.)
With respect to any sale of facilities consummated pursuant to the provisions of this article, the provisions of Section 37-1-50 shall not be applicable to such sale or to the cessation by a utility of rendering service from such facilities involved in such sale. To the extent of any conflict between this article and the provisions of Section 37-4-60 through Section 37-4-65, the provisions of this article shall govern and control.
(Acts 1984, No. 84-206, p. 314, §6.)
The separate agreements listed below which have heretofore been entered into between, or negotiated between retail electric suppliers, have been reviewed by the legislature, determined to be in the public interest and found not to be inconsistent with the purposes and policies set forth in this article. In areas to which these agreements are applicable, the procedures for elimination and prevention of duplication of electric distribution facilities set forth in these agreements shall govern. The following agreements are therefore mandated by the State of Alabama to be applicable:
(1) Agreement between Cherokee Electric Cooperative (successor to Cherokee County Electric Membership Corporation) and Alabama Power Company dated June 5, 1940.
(2) Agreement among the City of Bessemer, Alabama, Alabama Power Company and the Tennessee Valley Authority dated August 12, 1971.
(3) Agreement between the City of Tarrant City, Alabama and Alabama Power Company dated June 8, 1983 regarding electric service areas in and around Tarrant City, Alabama.
(4) Agreement between Alabama Power Company and Covington Electric Cooperative dated as of January 2, 1984 regarding electric service areas in Enterprise, Alabama.
(5) Agreement between Alabama Power Company and Dixie Electric Cooperative dated as of January 2, 1984 regarding electric service areas in Montgomery and Union Springs, Alabama.
(6) Agreement between Alabama Power Company and Coosa Valley Electric Cooperative dated as of January 2, 1984 regarding electric service areas in Lincoln, Alabama.
(7) Agreement between Alabama Power Company and Pea River Electric Cooperative dated January 2, 1984 regarding electric service areas in Ozark, Alabama.
(8) Agreement between Alabama Power Company and Tallapoosa River Electric Cooperative dated as of January 2, 1984 regarding electric service in areas of Randolph and Tallapoosa Counties, Alabama.
(9) Agreement among Covington Electric Cooperative, the City of Elba, Alabama and the City of Elba Water and Electric Board dated as of January 2, 1984 regarding electric service in and around Elba, Alabama.
(10) Agreement between Alabama Power Company and Southern Pine Electric Cooperative dated as of January 2, 1984 regarding electric service areas in Flomaton and Brewton, Alabama.
(11) Agreement between South Alabama Electric Cooperative, Inc. and the City of Troy, Alabama dated as of October 14, 1983 regarding electric service in areas around Troy, Alabama.
(12) Agreement between the Utilities Board of the City of Cullman and the Cullman Electric Cooperative dated November 5, 1954.
Subsequent to April 26, 1984, suppliers shall be permitted to enter into mutual agreements, approved by the respective governing bodies of all suppliers, affected by the agreement respecting the nonduplication of lines, that are consistent with the purposes and policies set forth in this article; provided, however, that no subsequent agreement shall be valid unless and until it has been reviewed and approved by the legislature and the legislature’s approval has been evidenced by an amendment to this section of the article enacted prior to July 1, 1985.
(Acts 1984, No. 84-206, p. 314, §7.)
(a) If an electric supplier commences construction of facilities in violation of the provisions of this article, any aggrieved electric supplier which is designated herein as the entity to provide such service (the “aggrieved electric supplier”) may petition the circuit court for the judicial circuit in which the facilities are being constructed by the offending electric supplier for an injunction to prevent the offending electric supplier from completing the facilities for provision of the retail electric service in question.
(b) If an electric supplier believes that another electric supplier has already rendered or extended electric service at retail to a premise which was designated to be served by the aggrieved electric supplier, the aggrieved electric supplier shall give notice in writing to the offending electric supplier of the potential violation of this article. The offending electric supplier shall have 45 days to determine whether it is in violation of this article. If the offending electric supplier concludes that it is violating this article, it may cease rendering and extending electric service at retail to the premises in question at the time and upon the schedule designated in writing by the aggrieved electric supplier and the offending electric supplier shall have no liability to the aggrieved electric supplier for violation of this article. If the offending electric supplier does not cease rendering service and remove its distribution facilities within the 45-day period or within such longer period designated by the aggrieved electric supplier, the aggrieved electric supplier may file suit in the circuit court for the judicial circuit in which the rendition or extension occurs to enjoin the offending electric supplier from continuing such rendition or extension and for damages. If a violation of this article is proved, the offending electric supplier shall (1) remove its facilities constructed for the rendition of retail electric service to the premises at the time and upon the schedule designated in writing by the aggrieved electric supplier; and (2) pay to the aggrieved electric supplier 25 percent of the gross revenues derived by the offending electric supplier from the sale of electric service in violation of this article from and after the date that is 45 days after the date on which the notice of violation was given. In addition, the offending electric supplier shall reimburse the aggrieved electric supplier for all witness fees, court costs, reasonable attorneys fees and other expenses incurred in any litigation to enforce the aggrieved electric supplier’s rights under this article. If the violation is not proved, the aggrieved electric supplier shall reimburse the offending electric supplier for all witness fees, court costs, reasonable attorneys fees and other costs incurred in the litigation. All actions or proceedings for injunction or for damages shall be brought within three years after the offending electric supplier first renders or extends electric service at retail in violation of this article.
(Acts 1984, No. 84-206, p. 314, §8.)
In order to foster and encourage the underlying policies of this article and to assure that sales and purchases of distribution facilities, and other transactions and actions authorized or allowed by this article may be conducted in good faith with a knowledge of the consequence and the validity thereof and further, to assure that irrevocable commitments are not made in the implementation of the provisions of this article without the assurance of their legality and validity, the following judicial review process is hereby authorized and it is declared to be the legislative intent that the provisions of this statute be judicially reviewed and validated pursuant to the procedure set forth herein and that the circuit court enter a judgment in accordance with the procedure set forth herein.
(Acts 1984, No. 84-206, p. 314, §9.)
At any time subsequent to April 26, 1984, an affected secondary electric supplier whose distribution facilities are subject to the provisions of this article and whose facilities may be purchased pursuant to this article by a primary electric supplier may, in its discretion before the closing of such purchase, seek judicial determination of the legality and validity of such purchase of facilities pursuant to the provisions of this article, and all other questions of the legality or validity of the provisions of this article. Such judicial determination shall be had upon the filing of a complaint against the citizens of the State of Alabama and against the affected primary electric supplier. Such complaint shall be filed in the circuit court of Montgomery County, Alabama which shall have exclusive venue for the determination of all questions of the legality and validity of the provisions of this article. The filing of any such complaint shall stay the dates established for the closing of all sales of facilities pursuant to the provisions of this article until, with respect to each situation in which intent to exercise the option to purchase has been announced, a date is established by the mutual agreement of the affected primary and secondary electric supplier, which date shall not be in excess of 90 days after the final resolution of the action to determine the legality and validity of the proposed transaction as well as the legality and validity of this article, including any appeal therefrom.
(Acts 1984, No. 84-206, p. 314, §9.)
(a) The complaint by appropriate allegations, references and/or exhibits shall briefly state the following: the authority for the purchase and sale of distribution facilities and other transactions and restrictions under this article; the nature of any franchise heretofore issued by a municipality which will be affected; a general description of restrictions imposed by this article; the proposed date when the purchase and sale or other transaction is to be effective, and the impact which such restrictions and sale shall have on the parties and the public.
(b) The judge of said court shall, upon the filing and presentation of said complaint, issue an order against the citizens of the state, and other defendants requiring them to show cause, at a time and place to be designated in said order, which time shall be not less than 35 days nor more than 56 days after the issuance of such order, and which place shall be within Montgomery County, why said purchase and sales and the other transactions and restrictions and all other proceedings under this article should not be validated and confirmed.
(c) The Attorney General of the State of Alabama shall be the designated representative of the citizens of the State of Alabama and shall appear on their behalf for all purposes in any proceeding brought pursuant to this section.
(d) Prior to the hearing of said cause, the clerk of said court shall publish, in a newspaper of general circulation published in Montgomery County, once each week for at least three weeks before the hearing, the first publication which would be at least 21 days before such hearing, a notice addressed to the citizens of the State of Alabama requiring them, at the time and place specified in the order providing for the hearing of such case, to show cause, if any there be, why said purchase and sale or other transaction and restriction that may be referred to in the complaint should not be validated and confirmed. In addition, the clerk of said court shall also publish notice to the citizens of the state in newspapers of general circulation customarily published not less often than five days during each calendar week in the Cities of Andalusia, Birmingham, Dothan, Florence, Gadsden, Huntsville, Mobile, Selma and Tuscaloosa. By the publication of such notice, all citizens of the state shall become parties defendant to such proceedings, and the court shall have jurisdiction of them the same as if each of them were named individually as party defendants in said complaint and personally served with process.
(e) In addition to the publication and notice set forth in subsection (d) of this section, the clerk of the Circuit Court in Montgomery County shall also cause a summons and complaint to be served upon the Attorney General of the State of Alabama as representative of all citizens of the State of Alabama and upon all other parties named as defendants in the action.
(f) The plaintiff shall certify to the court, in writing, with an attached list, that it has mailed a copy, by certified mail, return receipt requested, of the complaint filed in the action to each other electric supplier in the state, as defined in this article. Said notice to said electric suppliers shall inform them of the time and place of the hearing and shall contain a copy of the complaint filed herein. The notice required by this paragraph shall be mailed not less than 21 days prior to the date set for the hearing.
(g) Each electric supplier which receives notice pursuant to the provisions set forth in subsection (f) above, or which receives notice in any manner whatsoever of this action, may petition the court, as a matter of right, to intervene in said action and to participate in the hearing provided for in subsection (f) above.
(h) The failure of any electric supplier, municipality and/or governmental unit to exercise the right to intervene and participate in the hearing shall be deemed a waiver of any right such electric supplier, municipality or governmental unit may have to participate and to challenge, contest or otherwise question the validity of any purchase, sale and/or transaction made or proposed to be made pursuant to this article or to challenge the validity of any of the provisions of this article.
(Acts 1984, No. 84-206, p. 314, §9.)
At the time and place designated in said order, the judge of said circuit court shall proceed to hear and determine all questions of law and of fact in said civil action, and he shall make such order, or orders, as to the proceedings in said civil action as will best preserve and protect the interests of all parties and to enable him to enter a final judgment with the least possible delay. The final judgment shall find the facts specially and shall state separately the judge’s conclusions with regard to any and all legal issues raised with regard to any of the provisions of this article and proposed purchase and sale of distribution facilities and other transactions and restrictions under this article, together with other matters raised in the complaint, and shall state the judge’s conclusions of law thereon. Any citizen of the state may appear in such proceedings, either personally or by attorney, and any party thereto, whether plaintiff, defendant or intervenor, dissatisfied with the judgment of the court may appeal therefrom to the Supreme Court of Alabama in accordance with the Alabama Rules of Appellate Procedure. Such appeal shall take priority in the supreme court over all other cases therein pending, except petitions for writs of habeas corpus.
(Acts 1984, No. 84-206, p. 314, §9.)
If the circuit court shall enter a judgment validating and confirming the propriety of the provisions of this article and purchases and sales, other transactions and restrictions under this article and no appeal shall be taken within the time prescribed within the Alabama Rules of Appellate Procedure; or, if an appeal is taken and the judgment validating the provisions of this article and such purchases and sales, other transactions and restrictions shall be affirmed by the supreme court; or, if the circuit court shall render a judgment refusing to validate and confirm the provisions of this article and/or the purchase and sale, other transactions or restrictions pursuant to this article, and on appeal such judgment shall be reversed by the supreme court (in which case the supreme court shall issue its mandate to the circuit court requiring it to enter a judgment validating the provisions of this article and confirming the proposed purchase, sale, or other transactions or restrictions), the judgment of the circuit court validating and confirming the provisions of this article and the purchase and sale, other transactions and restrictions, shall be forever conclusive as to the validity of the provisions of this article, and shall be conclusive as to the validity of any purchase and sale, other transactions or restrictions or extension of electric service rendered pursuant to this article as against all citizens of the state, electric suppliers and municipalities and other governmental units.
(Acts 1984, No. 84-206, p. 314, §9.)
The court costs in any proceeding brought under this article shall be paid by the electric supplier commencing the action.
(Acts 1984, No. 84-206, p. 314, §9.)
No action shall be commenced challenging the legality or validity of the provisions of this article, or the legality or validity of a purchase and sale transaction or restriction under this article where the legality or validity of this article is in controversy in any prior pending civil action or proceeding in any court or has been determined in any such action. In the event any action is pending in any circuit in the state which raises or challenges the legality or validity of any provision of this article at the time an action is filed under this section, such pending action shall be transferred to the Circuit Court of Montgomery County and shall be consolidated with the action filed pursuant to this section and the consolidated proceeding shall be adjudicated in accordance with the procedures set forth in this article.
(Acts 1984, No. 84-206, p. 314, §9.)
The provisions of this article are not severable. If any part of this article is declared invalid under the constitution or laws of this state, such declaration shall render invalid all parts which remain. Notwithstanding such invalidity, action taken by any party in conformity with the provisions of this article shall be considered lawful actions by such party; provided, however, any electric service rendered which would have been illegal or unlawful or violative of any contractual provision absent this article shall be terminated and the facilities shall be removed following any determination of the invalidity of this article.
(Acts 1984, No. 84-206, p. 314, §9.)
The Legislature of the State of Alabama has investigated the economic, financial and environmental impact associated with the potential for duplication of electric distribution facilities used for the furnishing of retail electric service. It has been determined that with respect to retail electric sales, the benefit normally associated with competition between two or more entities for customers is outweighed by the tremendous cost burden which must be borne by such customers associated with the maintenance of two or more duplicate sets of facilities. It is the further finding of the legislature that the existence of duplicate facilities for the furnishing of electricity at retail is not in the public interest because of the adverse impact which such duplication has on environmental and aesthetic values and on safety. It is therefore declared that the policy of the State of Alabama is to ensure effective, economical and orderly supply of electric service at retail to customers in the state and to avoid unnecessary duplication of facilities by electric suppliers for the furnishing of such services which would result in waste and in degradation of the environment. To accomplish these objectives, it is necessary and in the public interest to establish, mandate and implement procedures for determining which electric supplier shall furnish electric service to customers at retail within various areas of the state including areas within the corporate limits of municipalities in the state. The rules established herein for elimination of duplication of electric facilities may result in the requirement that a municipality grant consent to service by a particular electric supplier if the municipality desires that such area be supplied with electric service. Such rules are deemed essential by the legislature in the exercise of police power of the state to eliminate wasteful duplication of electric facilities. Contracts entered into by municipalities for the purpose of securing loans pursuant to Section 11-50-11, or pursuant to any other provision of law, which restrict the grant by the municipality of a municipal franchise or consent shall not be interpreted as applying to any area of the municipality other than the areas of the city in which the municipal electric system was located on May 20, 1985. The determinations and statements of policy set forth above are similar to those contained in Act No. 84-206 of the Alabama Legislature, regular session, 1984. Act No. 84-206 was declared invalid by the Federal District Court for the Middle District of Alabama. It is the conclusion of the legislature that such determination was improper and should be reversed, leaving valid Act No. 84-206. In the event Act No. 84-206 is hereafter declared to be valid on appeal of the decision of the federal district court, it is the intent of the legislature that Act No. 84-206 not be repealed by this article but shall be considered valid and binding in lieu of the provisions of this article. It is the intent of the legislature that this article establish rules for elimination of duplication of facilities which shall apply to lines constructed after January 1, 1984. It has been determined that no electric supplier should be permitted to retain facilities built inconsistent with the provisions of Act No. 84-206, even though, if Act No. 84-206 is not reinstated, such construction was not prohibited by law. It has been determined further that compensation for facilities should be made in accordance with the provisions of subdivision (6) of Section 37-14-32.
(Acts 1985, No. 85-645, p. 983, §1.)
As used in this article the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise;
(1) ELECTRIC SUPPLIER. Any municipality, municipally-owned utility or other governmental entity, any cooperative, corporation, person, firm, association or other entity engaged in the business of supplying electric service at retail; provided, however, that no person or entity, including the Tennessee Valley Authority, who may not be lawfully regulated by the state by virtue of powers granted by the laws of the United States which prevail over Alabama statutes, nor any university, college or United States agency which distributes electricity at retail shall be deemed an electric supplier for the purpose of this article.
(2) ELECTRIC SERVICE AT RETAIL and RETAIL ELECTRIC SERVICE. Electric service furnished to a customer for ultimate consumption, but does not include wholesale electric service furnished by an electric supplier to another electric supplier for resale.
(3) PREMISES. The building, structure or facility to which electricity is being metered or is to be furnished and metered, including all meters on such building, structure or facility through which electricity is delivered or to be delivered. Such term shall also include any building, structure or facility which is reconstructed to replace a previously existing building, structure or facility of substantially the same size. In the event two or more buildings, structures, or facilities are located on one tract of land utilized by one customer, those buildings, structures, or facilities which are or will be served through a different meter shall be considered a separate premises
(4) DISTRIBUTION LINE. An electric conductor which is operated at 35,000 volts or less, up to but not including the service drop. The service drop shall be that line from the last pole or last transformer on the distribution system to the premises.
(5) EXISTING DISTRIBUTION LINE. A distribution line in existence on January 1, 1984.
(6) PRIMARY ELECTRIC SUPPLIER. That electric supplier for each municipality existing on January 1, 1984 serving a plurality of the premises within the existing municipal limits to which service is actually being supplied and metered on January 1, 1984.
(7) SECONDARY ELECTRIC SUPPLIER. Any electric supplier serving within existing municipal limits which is not the primary electric supplier.
(8) EXISTING MUNICIPAL LIMITS. The corporate boundaries of any municipality as such boundaries existed on April 26, 1984.
(9) MUNICIPAL CONSENT or CONSENT OF THE MUNICIPALITY. The approval by a city or town pursuant to Section 220 of the Alabama Constitution of the use of the streets, avenues, alleys or public places of the city or town evidenced by appropriate action of the proper authorities of the city or town.
(10) REPRODUCTION COST NEW LESS DEPRECIATION. The total investment that would be required by the electric supplier selling the facilities to duplicate the facilities to be sold at the time of such sale utilizing then current costs for all materials, supplies, labor, land and land rights, transportation, and miscellaneous direct and indirect expenses (including overhead, engineering and supervision costs that are normally capitalized) that would be required; the costs that would be required to obtain all necessary approvals and permits; and any other costs that would be appropriately applicable to the reproduction of the facilities, less an amount representing the straight line depreciation of such reproduction costs of any depreciable items over an assumed life of 30 years for electric distribution facilities for that period of time equal to the age of the items of the electric distribution facilities being transferred. In no event, however, shall any item be depreciated more than 30 percent of the reproduction costs new of that item, so that in no event shall reproduction cost new less depreciation be less than 70 percent of the reproduction cost of such item.
(11) INDUSTRIAL CUSTOMER. A customer utilizing electric service at a premises at which the predominate activity is classified as mining, manufacturing, transportation, communication, electric, gas and sanitary services, or miscellaneous repair services in the Standard Industrial Classification Manual, Part I, Divisions B, D and E and Major Group 76 of Division I as published in 1972 by the statistical policy division of the United States Office of Management and Budget.
(12) NEW INDUSTRIAL CUSTOMER. An industrial customer who constructs a new premises on a site not previously occupied by an industrial customer.
(Acts 1985, No. 85-645, p. 983, §2.)
Except as otherwise provided in subdivisions (2), (3), (4) and (6) but notwithstanding any other provision of this article, in areas outside existing municipal limits (including areas annexed to municipalities on or after April 26, 1984), no electric supplier shall construct or maintain electric distribution lines for the provision of retail electric service to any premises being provided retail electric service by another electric supplier, or to any new premises located within the boundaries of assigned service areas of another electric supplier. Assigned service areas outside existing municipal limits are hereby established as set forth in this section.
(1) Except as specified in subdivisions (2) and (3) herein, each electric supplier is hereby granted a legislative franchise and assigned the sole obligation, in areas outside existing municipal limits and within existing municipal limits to the extent the standards of this section are made applicable by subdivision (a)(5) of Section 37-14-33, for provision of retail electric service to all new premises located in closer proximity to existing distribution lines of such supplier than the nearest existing distribution lines of any other electric supplier (including areas annexed to municipalities on or after April 26, 1984 whether or not a municipal franchise has been granted to the electric supplier to whom an area annexed has been assigned or to any other electric supplier) such legislative franchise being subject, nevertheless, to consent of the municipality with respect to any construction or operation for which a municipal consent is required. Electric service shall be rendered by the electric supplier to whom responsibility has been assigned in accordance with its established rules and regulations. No other electric supplier shall render electric service to such premises. Thus, the assigned service area of each electric supplier in areas outside existing municipal limits is defined as the area or areas consisting of a line or lines drawn equidistant between the existing distribution lines of such electric supplier and the nearest existing distribution line of any other electric supplier. Where a premises is located in the assigned service area of two electric suppliers, the supplier in whose assigned area the majority of the square footage of the premises falls shall provide the service. The above prohibitions and assignments shall also apply to areas within the existing municipal limits in the event the primary electric supplier fails to exercise the option to purchase set forth in Section 37-14-33 subject, nevertheless, to the consent of the municipality with respect to any construction or operation for which a municipal consent is required.
(2) Notwithstanding the above limitations stated in this section on construction of facilities to serve customers in areas outside existing municipal limits, an electric supplier may construct, operate and maintain facilities for provision of retail electric service to any new industrial customer not presently or previously served by another electric supplier, in an area outside existing municipal limits where the initial electric service requirement to such industrial customer, under normal operations and with a six month growth period permitted from date of initial service, is equal to or greater than 2500 kilowatts as measured over a 15 minute integrated period, upon written request to such electric supplier by the industrial customer to be served.
(3) Notwithstanding subdivision (2) hereof, no municipality or municipally-owned electric supplier shall provide retail electric service in any area outside existing municipal limits unless the premises to be so served is in the assigned service area of such electric supplier.
(4) The foregoing limitations shall not prevent an electric supplier from constructing electric facilities to serve its own premises used or to be used in its electric operations and other premises owned and occupied solely and exclusively by the electric supplier, or a municipality which appoints the governing body of such electric supplier or any agency of said municipality whose governing body is appointed by that municipality.
(5) Within nine months after May 20, 1985, all electric suppliers having existing distribution lines in each county in the state shall exchange maps of such facilities (as of January 1, 1984) located within the county. These maps shall be sufficiently detailed to permit the development of a definitive understanding of the electric supplier designated to serve under the guidelines set forth in subdivision (1) above. The legislature recognizes that the vast majority of existing distribution lines within existing municipal limits will have no effect on the assigned service areas determined in accordance with this section and electric suppliers may, at their option, elect not to show existing distribution lines which do not affect the assigned service areas.
(6) In the event an electric supplier has constructed, after January 1, 1984 and prior to May 20, 1985, electric distribution facilities to provide electric service at retail to a premises located in the assigned service area of another electric supplier, the electric supplier in whose assigned service area the facilities are located shall, at its option, have the right to acquire such facilities. Such option shall be exercised in the same manner, at the same time, and shall be subject to the same compensation provisions, specified in Section 37-14-33; provided, however, no escrow of funds shall be required in connection with such purchase. If the electric supplier in whose area the electric distribution facilities are located fails to exercise its option to acquire such facilities, the owner of such facilities shall be authorized to maintain such facilities to provide service to premises being served as of May 20, 1985; but shall not extend service from such facilities to new premises in violation of the principles set forth in this section.
(7) Neither (i) municipal annexations after April 26, 1984, nor (ii) the construction or removal of any facilities after January 1, 1984, nor (iii) the purchase or sale of any facilities after May 20, 1985, consummated under the provisions of this article shall affect any rights or limitations regarding retail electric service under this section. Any annexation by a municipality pursuant to the laws of this state shall be subject to and conditioned upon recognition of the provisions of this article.
(Acts 1985, No. 85-645, p. 983, §3.)
(a) Primary supplier’s option to acquire facilities within existing municipal limits. - The primary electric supplier within each municipality shall, at its option, have the right to acquire all distribution facilities of any secondary electric supplier used to supply retail electric service within the existing municipal limits and shall have the right to serve all premises within the existing municipal limits of such municipality subject to the provisions of subdivisions (a)(1) through (a)(5). Except as authorized in this section, no secondary electric supplier shall extend facilities to serve existing or new premises within the existing municipal limits of the municipality.
(1) The primary electric supplier must announce its intention to exercise its option to acquire the distribution facilities of secondary electric suppliers by giving written notice by registered or certified mail to the affected secondary suppliers within each municipality, addressed to the chief executive officer or manager of such secondary supplier, no later than 30 days after May 20, 1985. This notice shall be referred to in this article as the “initial notice of intent to purchase.” Within nine months after May 20, 1985, the primary electric supplier shall deposit in escrow with a bank whose principal office is in Alabama and which has capital and surplus not less than $5,000,000.00, or with any other escrow agent agreeable to the parties, the amount of $1,000.00 for each premises receiving electricity from the distribution facilities proposed to be purchased by the primary electric supplier on the date of the escrow notice defined below, based on the primary electric supplier’s good faith estimate of the number of premises involved. Simultaneously with such deposit, the primary electric supplier shall give notice by registered or certified mail to the affected secondary supplier of the amount and date of the deposit. This notice shall be referred to in this article as the “escrow notice.” Failure to make the escrow deposit within nine months after May 20, 1985, shall constitute a forfeiture of the option granted to the primary supplier hereunder, but such failure to make such escrow deposit shall not create any liability of the primary supplier to the secondary supplier. In such event, provision of electric service shall be governed by the rules set forth in subdivision (a)(5). The secondary supplier shall, within seven days after receipt of the escrow notice, provide the actual number of premises involved, if different from that estimated by the primary supplier, and the escrow deposit made by the primary supplier shall be adjusted to accommodate any difference within seven days after such actual number of premises is supplied. The escrow agent shall be directed and authorized to invest the funds placed in escrow by the primary electric supplier in any investment directed by the primary electric supplier. The escrow agent is further authorized, upon election of the primary electric supplier making the deposit, to combine for investment any other deposit made by that depositor for the same purpose with respect to different facilities. The escrow agent shall render periodic accountings as to the escrow account to the primary electric supplier and the secondary electric supplier. If the purchase is consummated in accordance with this article, the funds shall be used to satisfy the purchase price of the facilities and other consideration to be paid by the primary electric supplier to the secondary electric supplier due as of the date of closing as determined under this section. Any portion of such fund in excess of the amount due to be paid to the secondary electric supplier on the date of closing shall be refunded to the primary electric supplier. If the amount due to be paid by the primary electric supplier to the secondary electric supplier under this section on the date of closing is in excess of the amount in the escrow account, the primary electric supplier shall pay the difference to the secondary electric supplier at closing. If the closing of the facilities is not consummated because of the failure of the primary electric supplier to pursue its option under this article to purchase the distribution facilities, the escrow agent shall be instructed to deliver from the escrow fund to the secondary electric supplier, 14 days after the date on which the primary electric supplier’s rights to purchase the facilities expire unconsummated, the interest earned on the amount deposited from investment of such funds plus 10 percent of the amount originally deposited by the primary electric supplier. The balance of such escrow funds shall be returned to the primary electric supplier making the deposit.
(2) Unless otherwise agreed to by the secondary electric supplier and except as provided in subdivision (a)(3), the primary electric supplier must offer to purchase all of the distribution facilities of the secondary electric supplier utilized by the secondary electric supplier for retail electric service within the existing municipal limits of any particular municipality. The primary and secondary electric supplier shall cooperate in the development of an inventory of such facilities and in the valuation of the facilities to be sold and other consideration to be paid in accordance with the principles set forth in subdivision (a)(4) below. The secondary electric supplier shall also furnish to the primary electric supplier an accurate record of the revenues billed to customers of the secondary electric supplier located within the existing municipal limits of the municipality for the 12 months preceding the date of the escrow notice from the primary electric supplier of its exercise of the option to purchase facilities. The secondary electric supplier shall also provide the primary electric supplier with such information as is available to the secondary electric supplier concerning title to the distribution facilities. Within three months after the escrow notice has been given to the secondary electric supplier, if agreement has not been reached as to the inventory of facilities to be acquired and the value thereof or other consideration to be paid, the primary electric supplier shall be entitled to provide, in writing, its proposal listing the distribution facilities to be acquired, stating its estimate of the value and listing its evaluation of other consideration to be paid in accordance with subdivision (a)(4) hereof. Within 30 days after receipt of any such proposal, the secondary electric supplier shall state its objections, if any, to the matters contained in such proposal. If the secondary electric supplier fails to submit objections within such 30 day period, the proposal submitted by the primary electric supplier shall be conclusive as to the matters contained therein. If the secondary electric supplier does provide written objections, any dispute between the parties shall be resolved by mutual agreement or by the procedure set forth in Section 37-14-34.
(3) Each affected secondary supplier shall have the right to continue to provide retail electric service in accordance with its established rules and regulations, without time limitation, to any premises within the existing municipal limits of any municipality, the electric load of which a. was 800 kilowatts or greater for three consecutive months during the three years prior to January 1, 1984; or b. is served from a substation or step-down transformer from 44 kilovolts or higher which is devoted exclusively to service to the particular premises.
(4) The reproduction cost new, less depreciation, of the facilities to be acquired shall be determined as of 30 days prior to the date established for the closing of the acquisition. The facilities transferred shall be conveyed by warranty deed, “as is, where is”, without warranty, express or implied, as to the condition of the facilities. In addition to such reproduction costs, the primary electric supplier shall
a. Reimburse the secondary electric supplier the costs to the secondary electric supplier for removal of its meters which are excluded from the definition of distribution facilities in item (1) of subsection (b);
b. Reimburse the secondary electric supplier the cost of constructing any necessary facilities to reintegrate the system of the secondary electric supplier after detaching the portion to be sold to the primary electric supplier such that the reintegrated system and supply of power and energy thereto in those areas that will continue to be served by the secondary electric supplier will be as adequate and dependable as exists prior to the sale; such reimbursement to include the cost of removal and to be reduced by the salvage value of any facilities removed by the secondary electric supplier;
c. Reimburse the secondary electric supplier its original cost depreciated for facilities of the secondary electric supplier excluded from the definition of distribution facilities under item (2) of subsection (b) in which case the primary electric supplier shall take title to such facilities or, at the option of the secondary electric supplier, reimburse the secondary electric supplier the cost of removal, in which case the secondary electric supplier shall retain title; and
d. Pay to any wholesale supplier of the secondary electric supplier (or if the secondary electric supplier does not purchase its electric supply at wholesale then to the secondary electric supplier) the original cost depreciated of any facilities other than distribution facilities, as described in item (3) of subsection (b), rendered useless by such acquisition of the distribution system of the secondary electric supplier; provided, however, at the election of the owner of such facilities, the payment to be made shall be the cost to such owner of relocating such facilities.
The primary electric supplier shall pay the secondary electric supplier the amount determined pursuant to this article for reproduction cost new less depreciation of the distribution facilities together with the amount due under paragraphs a, b, c, and d of this subdivision immediately upon transfer of title to the facilities. In addition, to compensate the secondary electric supplier for the loss of future revenues from presently served or future developing premises, and not as compensation for the sale of its facilities, the primary electric supplier shall pay to the secondary electric supplier an amount equal to two and one-half times the total revenue from electric sales derived by the secondary electric supplier from customers within the existing municipal limits during the 12 months prior to the date escrow notice is given by the primary electric supplier of its election to purchase the facilities. This amount shall be paid in 10 equal annual installments beginning on the date the sale of facilities is consummated.
(5) Each affected secondary electric supplier shall have the right to continue to provide service to premises located within the existing municipal limits until such time as the primary electric supplier exercises its option to purchase and until such purchase is consummated pursuant to the procedures established herein. In the event the electric facilities of the secondary electric supplier are subject to an option to purchase as provided herein, the secondary electric supplier shall have the right to continue to maintain such facilities and retail electric service until the primary electric supplier purchases the facilities of the secondary electric supplier. Until the purchase of the facilities of the secondary supplier is consummated, the secondary supplier shall also have the right, subject to consent of the municipality with respect to any construction or operation for which a municipal consent is required, to provide service to any new premises located closer to the existing distribution lines of the secondary electric supplier than to those of the primary electric supplier or any other electric supplier except for new industrial customers having a size equivalent to that specified in subdivision (2) of Section 37-14-32, if such new industrial customer has requested service from the primary electric supplier. The compensation required for the purchase of the secondary electric supplier’s facilities, by the primary electric supplier of facilities built by the secondary electric supplier pursuant to the previous sentence shall be limited to the reproduction costs new, less depreciation, of facilities constructed to serve such new premises and the primary electric supplier shall not be required to pay any of the other costs specified in subdivision (a)(4). In the event the primary electric supplier does not exercise the option to purchase the facilities of the secondary electric supplier as provided in this section, the primary electric supplier and any other electric supplier shall be prohibited from extending its facilities for service to existing premises being served by the secondary electric supplier or to new premises located closer to the existing distribution lines of the secondary electric supplier than to the existing distribution lines of the primary electric supplier or any other electric supplier under the standards set forth in Section 37-14-32. The secondary electric supplier shall have the right to continue to maintain its facilities and service and make extensions to serve new premises within the existing municipal limits under the standards set forth in Section 37-14-32, notwithstanding the lack of a municipal franchise from the municipality in which such premises are located, subject, nevertheless, to consent of the municipality for construction or use of the streets, avenues, alleys, or public ways of the municipality to the extent such consent is required.
(b) Distribution facilities to be purchased. - The term “distribution facilities” as used in subsection (a) shall include distribution lines and other facilities constructed or installed by the electric supplier in the area to which the purchase option applies, for the rendering of retail electric service except (1) meters, (2) distribution transformers of voltages not compatible with those of the acquiring electric supplier, (3) substations of such a voltage that are not compatible with operations of the acquiring electric supplier, (4) facilities for provision of service by the secondary supplier to premises the electric load of which such secondary supplier may continue to serve under subdivision (a)(3), and (5) such facilities designated by the supplier as necessary to continue its service in an area not subject to the purchase option herein or to serve such supplier’s own load.
(Acts 1985, No. 85-645, p. 983, §4.)
In the event that a dispute should arise between two or more electric suppliers in connection with the purchase of distribution facilities under Section 37-14-32 or Section 37-14-33, the primary electric supplier involved may petition the circuit court for the judicial circuit in which the distribution facilities to be purchased are located to determine such matters as are in dispute between the parties. If the purchase of distribution facilities proposed to be purchased under the escrow notice described in subdivision (a)(1) of Section 37-14-33 is not closed within six months after the date of the escrow notice and if the primary electric supplier has not filed a petition for resolution of disputes in the appropriate court within 14 days after six months from the date of the escrow notice, then the primary electric supplier’s exercise of the option shall be void and of no further effect and the primary electric supplier shall have no right to purchase such facilities thereafter.
If a petition is filed with the appropriate circuit court, the sale of the facilities shall be closed within 90 days from the date of the issuance of a final order of the circuit court (or from the date of the decision of an appellate court if such matter is appealed). If the closing is not completed within such 90 days due to the failure of the primary electric supplier to close for any reason, the primary electric supplier’s exercise of the option shall be void and it shall thereafter have no further right to purchase the distribution facilities covered by the escrow notice.
(Acts 1985, No. 85-645, p. 983, §5.)
With respect to any sale of facilities consummated pursuant to the provisions of this article, the provisions of Section 37-1-50 shall not be applicable to such sale or to the cessation by a utility of rendering service from such facilities involved in such sale. To the extent of any conflict between this article and the provisions of Section 37-4-60 through Section 37-4-65, the provisions of this article shall govern and control.
(Acts 1985, No. 85-645, p. 983, §6.)
The separate agreements listed below which have heretofore been entered into between, or negotiated between retail electric suppliers, have been reviewed by the legislature, determined to be in the public interest and found not to be inconsistent with the purposes and policies set forth in this article. In areas to which these agreements are applicable, the procedures for elimination and prevention of duplication of electric distribution facilities set forth in these agreements shall govern. The following agreements are therefore mandated by the State of Alabama to be applicable:
(1) Agreement between Cherokee Electric Cooperative (successor to Cherokee County Electric Membership Corporation) and Alabama Power Company dated June 5, 1940.
(2) Agreement among the City of Bessemer, Alabama, Alabama Power Company and the Tennessee Valley Authority dated August 12, 1971.
(3) Agreement between the City of Tarrant City, Alabama and Alabama Power Company dated June 8, 1983 regarding electric service areas in and around Tarrant City, Alabama.
(4) Agreement between Alabama Power Company and Covington Electric Cooperative dated as of January 18, 1985 regarding electric service areas in Enterprise, Alabama.
(5) Agreement between Alabama Power Company and Dixie Electric Cooperative dated as of January 2, 1985 regarding electric service areas in Montgomery and Union Springs, Alabama.
(6) Agreement between Alabama Power Company and Pea River Electric Cooperative dated January 18, 1985 regarding electric service areas in Ozark, Alabama.
(7) Agreement between Alabama Power Company and Tallapoosa River Electric Cooperative dated as of January 18, 1985 regarding electric service in areas of Randolph and Tallapoosa Counties, Alabama.
(8) Agreement among Covington Electric Cooperative, the City of Elba, Alabama and the City of Elba Water and Electric Board dated as of January 29, 1985 regarding electric service in and around Elba, Alabama.
(9) Agreement between Alabama Power Company and Southern Pine Electric Cooperative dated as of January 18, 1985 regarding electric service areas in Flomaton and Brewton, Alabama.
(10) Agreement between South Alabama Electric Cooperative, Inc. and the City of Troy, Alabama dated as of October 14, 1983 and January 31, 1984 regarding electric service in areas around Troy, Alabama, and the sale of distribution facilities.
(11) Agreement between Alabama Power Company and Cullman County Electric Cooperative, Inc. dated as of January 2, 1985 regarding electric service areas in Cullman and Winston counties, Alabama.
(12) Agreement between South Alabama Electric Cooperative, Inc. and the City of Brundidge dated April 11, 1984 regarding electric service in and around the City of Brundidge, Alabama.
(13) Agreement between Southern Pine Electric Cooperative, Inc. and the City of Evergreen, Alabama as such agreement is reflected in the resolution of the city council of the City of Evergreen dated June 6, 1967 relating to electric service in the City of Evergreen.
(14) Agreements between Covington Electric Cooperative and the City of Andalusia reflected in and reaffirmed by the resolution of the City of Andalusia dated January 29, 1985.
(15) Agreement between the utilities board of the City of Cullman and the Cullman Electric Cooperative dated November 5, 1954.
If any agreement specified above is hereafter terminated pursuant to provisions of such agreement authorizing such termination, the rules contained in such agreement shall not, thereafter, be binding for the prevention of duplication of electric facilities from and after the date of termination. After such date, the rules established in Sections 37-14-32 and 37-14-33 hereof shall govern; provided, however, in the event the agreement related to service inside a municipality, the right of the primary electric supplier to exercise an option to purchase facilities under Section 37-14-33 shall be governed by the time limits established in Section 37-14-33.
Nothing in this article shall apply to affect valid regulations or contracts of the Tennessee Valley Authority or other suppliers of electricity who may not be lawfully regulated by the state. Subsequent to May 20, 1985, suppliers shall be permitted to enter into mutual agreements, approved by the respective governing bodies of all suppliers affected by the agreement, respecting the nonduplication of lines, that are consistent with the purposes and policies set forth in this article; provided, however, that no subsequent agreement shall be valid unless and until it has been reviewed by the legislature and the legislature has amended this section to mandate the implementation of the provisions of such agreement.
(Acts 1985, No. 85-645, p. 983, §7.)
(a) If an electric supplier commences construction of facilities in violation of the provisions of this article, any aggrieved electric supplier which is designated herein as the entity to provide such service (the “aggrieved electric supplier”) may petition the circuit court for the judicial circuit in which the facilities are being constructed by the offending electric supplier for an injunction to prevent the offending electric supplier from completing the facilities for provision of the retail electric service in question.
(b) If an electric supplier believes that another electric supplier has already rendered or extended electric service at retail to a premise which was designated to be served by the aggrieved electric supplier, the aggrieved electric supplier shall give notice in writing to the offending electric supplier of the potential violation of this article. The offending electric supplier shall have 45 days to determine whether it is in violation of this article. If the offending electric supplier concludes that it is violating this article, it may cease rendering and extending electric service at retail to the premises in question at the time and upon the schedule designated in writing by the aggrieved electric supplier and the offending electric supplier shall have no liability to the aggrieved electric supplier for violation of this article. If the offending electric supplier does not cease rendering service and remove its distribution facilities within the 45 day period or within such longer period designated by the aggrieved electric supplier, the aggrieved electric supplier may file suit in the circuit court for the judicial circuit in which the rendition or extension occurs to enjoin the offending electric supplier from continuing such rendition or extension and for damages. If a violation of this article is proved, the offending electric supplier shall (1) remove its facilities constructed for the rendition of retail electric service to the premises at the time and upon the schedule designated in writing by the aggrieved electric supplier; and (2) pay to the aggrieved electric supplier 25 percent of the gross revenues derived by the offending electric supplier from the sale of electric service in violation of this article from and after the date that is 45 days after the date on which the notice of violation was given. In addition, the offending electric supplier shall reimburse the aggrieved electric supplier for all witness fees, court costs, reasonable attorney fees and other expenses incurred in any litigation to enforce the aggrieved electric supplier’s rights under this article. If the violation is not proved, the aggrieved electric supplier shall reimburse the offending electric supplier for all witness fees, court costs, reasonable attorneys fees and other costs incurred in the litigation. All actions or proceedings for injunction or for damages shall be brought within three years after the offending electric supplier first renders or extends electric service at retail in violation of this article.
(Acts 1985, No. 85-645, p. 983, §8.)
In order to foster and encourage the underlying policies of this article and to assure that sales and purchases of distribution facilities, and other transactions and actions authorized or allowed by this article may be conducted in good faith with a knowledge of the validity of the provisions hereof, and further, to assure that irrevocable commitments are not made in the implementation of the provisions of this article without the assurance of their legality and validity, the following judicial review process is hereby authorized and it is declared to be the legislative intent that the provisions of this statute be judicially reviewed and validated pursuant to the procedure set forth herein and that the circuit court enter a judgment in accordance with the procedure set forth herein.
(1) FILING OF COMPLAINT FOR DETERMINATION AS TO LEGALITY OF PROVISIONS OF ARTICLE. - At any time subsequent to May 20, 1985, an affected secondary electric supplier whose distribution facilities are subject to the provisions of this article and whose facilities may be purchased pursuant to this article by a primary electric supplier may, in its discretion before the closing of such purchase, seek judicial determination of the legality and validity of the provisions of this article. Such complaint shall be filed in the Circuit Court of Montgomery County, Alabama which shall have exclusive venue for the determination of all questions of the legality and validity of the provisions of this article. The filing of any complaint for validation shall stay the dates established for the closing of all sales of facilities pursuant to the provisions of this article until, with respect to each situation in which intent to exercise the option to purchase has been or is thereafter announced, a date is established by the mutual agreement of the affected primary and secondary electric supplier, which date shall not be in excess of 90 days after the final resolution of the action to determine the legality and validity of the provisions of this article, including any appeal therefrom. It is the intention of the legislature that implementation of the provisions set forth in this article shall not be stayed, other than as set forth above, during the pendency of any such litigation because of the need to eliminate, as soon as possible, duplication of electric distribution facilities.
(2) CONTENTS OF COMPLAINT; ORDER AND NOTICE OF HEARING TO SHOW CAUSE.
a. The complaint by appropriate allegations, references and/or exhibits shall briefly state the following: The authority for the purchase and sale of distribution facilities and other transactions and restrictions under this article; the nature of any municipal franchise which will be affected; a general description of restrictions imposed by this article; and the impact which such restrictions and sale shall have on the parties and the public.
b. The judge of said court shall, upon the filing and presentation of said complaint, issue an order against the citizens of the state, all municipalities and governmental units and other defendants requiring them to show cause, at a time and place to be designated in said order, which time shall be not less than 35 days nor more than 56 days after the issuance of such order, and which place shall be within Montgomery County, why said purchase and sales and the other transactions and restrictions and all other proceedings under this article should not be validated and confirmed. Notice of such order shall be given in accordance with c, d and e below.
c. The Attorney General of the State of Alabama shall be the designated representative of the citizens of the State of Alabama and shall appear on their behalf for all purposes in any proceeding brought pursuant to this section.
d. Prior to the hearing of said cause, the clerk of said court shall publish, in a newspaper of general circulation published in Montgomery County, once each week for at least three weeks before the hearing, the first publication which would be at least 21 days before such hearing, a notice addressed to the citizens of the State of Alabama and all municipalities and governmental units requiring them, at the time and place specified in the order providing for the hearing of such case, to show cause, if any there be, why said purchase and sale or other transaction and restriction that may be referred to in the complaint should not be validated and confirmed. In addition, the clerk of said court shall also publish notice to the citizens of the state and all municipalities and governmental units in newspapers of general circulation customarily published not less often than five days during each calendar week in the Cities of Andalusia, Birmingham, Dothan, Florence, Gadsden, Huntsville, Mobile, Selma and Tuscaloosa. By the publication of such notice, all citizens of the state, all municipalities and governmental units shall become parties defendant to such proceedings, and the court shall have jurisdiction of them the same as if each of them were named individually as party defendants in said complaint and personally served with process.
e. In addition to the publication and notice set forth in paragraph d, the clerk of the Circuit Court in Montgomery County shall also cause a summons and complaint to be served upon the Attorney General of the State of Alabama as representative of all citizens of the State of Alabama and upon all other parties named as defendants in the action.
f. The plaintiff shall certify to the court, in writing, with an attached list, that it has mailed a copy, by certified mail, return receipt requested, of the complaint filed in the action to each other electric supplier in the state, as defined in this article. Said notice to said electric suppliers shall inform them of the time and place of the hearing and shall contain a copy of the complaint filed herein. The notice required by this paragraph shall be mailed not less than 21 days prior to the date set for the hearing.
g. Each electric supplier, municipality and governmental unit which receives notice pursuant to the provisions set forth in d, e and f above, or which receives notice in any manner whatsoever of this action, may petition the court, as a matter of right, to intervene in said action and to participate in the hearing provided for in subdivision (3) of this section.
h. The failure of any electric supplier, municipality and/or governmental unit having actual or constructive notice of the proceeding to exercise the right to intervene and participate in the hearing shall be deemed a waiver of any right such electric supplier, municipality or governmental unit may have to participate and to challenge, contest or otherwise question the validity of any of the provisions of this article.
(3) HEARING AND ENTRY OF JUDGMENT; APPEALS FROM JUDGMENT OF CIRCUIT COURT. - At the time and place designated in said order, the judge of said circuit court shall proceed to hear and determine all questions of law and of fact in said civil action, and he shall make such order, or orders, as to the proceedings in said civil action as will best preserve and protect the interests of all parties and to enable him to enter a final judgment with the least possible delay. The final judgment shall find the facts specially and shall state separately the judge’s conclusions with regard to any and all legal issues raised with regard to the legality and validity of the provisions of this article and shall state the judge’s conclusions of law thereon. Any citizen of the state may appear in such proceedings, either personally or by attorney, and any party thereto, whether plaintiff, defendant or intervenor, dissatisfied with the judgment of the court may appeal therefrom to the Supreme Court of Alabama in accordance with the Alabama Rules of Appellate Procedure. Such appeal shall take priority in the supreme court over all other cases therein pending, except petitions for writs of habeas corpus.
(4) WHEN JUDGMENT OF CIRCUIT COURT FINAL AND CONCLUSIVE AS TO VALIDITY OF PURCHASE, SALE AND OTHER TRANSACTIONS OR RESTRICTIONS UNDER ARTICLE. - If the circuit court shall enter a judgment validating the provisions of this article and no appeal shall be taken within the time prescribed within the Alabama Rules of Appellate Procedure; or, if an appeal is taken and the judgment validating the provisions of this article shall be affirmed by the Supreme Court; or, if the circuit court shall render a judgment refusing to validate the provisions of this article, and on appeal such judgment shall be reversed by the Supreme Court (in which case the supreme court shall issue its mandate to the circuit court requiring it to enter a judgment validating the provisions of this article), the judgment of the circuit court validating the provisions of this article shall be forever conclusive against all citizens of the state, electric suppliers, municipalities and other governmental units having actual or constructive notice of the proceedings as to the validity of the provisions of this article.
(5) COSTS OF PROCEEDINGS. - The court costs in any proceeding brought under this article shall be paid by the electric supplier commencing the action.
(6) ARTICLE NOT APPLICABLE WHERE THE VALIDITY OF PURCHASE, SALE OR OTHER TRANSACTION IS IN CONTROVERSY IN PENDING ACTIONS OR PROCEEDINGS. - No action shall be commenced challenging the legality or validity of the provisions of the article, or the legality or validity of a purchase and sale transaction or restriction under this article where the legality or validity of the article is in controversy in any prior pending civil action or proceeding in any court or has been determined in any such action. In the event any action is pending in any circuit in the state which raises or challenges the legality or validity of any provision of this article at the time an action is filed under this section, such pending action shall be transferred to the Circuit Court of Montgomery County and shall be consolidated with the action filed pursuant to this section and the consolidated proceeding shall be adjudicated in accordance with the procedures set forth in this article.
(Acts 1985, No. 85-645, p. 983, §9.)
If any part of Section 37-14-32, Section 37-14-33 or Section 37-14-36 of this article is declared invalid under the constitution or laws of this state, including invalidity as a result of impairing unconstitutionally the obligations of a municipal franchise, such declaration shall render invalid all parts which remain; provided, however, that any ruling that the provisions of this article impair unconstitutionally the obligations of any contract other than a municipal franchise shall not render invalid the application of the article in all instances not covered by such contract. Notwithstanding such invalidity, action taken by any party in conformity with the provisions of this article shall be considered lawful actions by such party; provided, however, any electric service rendered which would have been illegal or unlawful or violative of any contractual provision absent this article shall be terminated and the facilities shall be removed following any determination of the invalidity of this article. In all other respects, the provisions and applications of this article shall be deemed to be severable and a declaration of invalidity as to any other part or as to any application thereof to any person or circumstance shall not render invalid the parts or applications which remain.
(Acts 1985, No. 85-645, p. 983, §10.)
Except as provided in this section, all laws or parts of laws in conflict with the provisions of this article are hereby repealed. In the event, as a result of a final adjudication in Dixie Electric Cooperative, et al. vs. The Citizens of the State of Alabama, et al., Civil Action No. CV 84-V-891-N, it is determined that Act No. 84-206 of the Alabama Legislature, Regular Session, was valid and constitutional, such Act No. 84-206 shall remain in effect. The principles of this article which are inconsistent with the provisions of Act No. 84-206 shall no longer be effective with the following exceptions;
(1) The agreement adopted as being in the public interest which is listed in Item 11 of Section 37-14-36.
(2) The agreement adopted as being in the public interest which is listed in Item 12 of Section 37-14-36.
(3) The agreement adopted as being in the public interest which is listed as Item 13 of Section 37-14-36.
(4) The agreement adopted as being in the public interest which is listed as Item 14 of Section 37-14-36.
To the extent actions are taken pursuant to this article which are inconsistent with actions required to be taken under Act No. 84-206, the actions taken hereunder shall be considered lawful. In the event Act No. 84-206 is declared to be valid and constitutional, the time periods for purchase of facilities set forth in Section 37-14-4 shall be extended to occur within nine months from the date of final adjudication of validity.
(Acts 1985, No. 85-645, p. 983, §11.)
The purpose of this chapter is to safeguard against injury and loss of life due to excavation or demolition and to protect underground facilities from costly damage and the interruption of utility or other services to the general public.
(Acts 1994, No. 94-487, p. 911, §1.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
As used in this chapter the following words have the following meanings:
(1) APPROXIMATE LOCATION OF UNDERGROUND FACILITIES. Information about an operator’s underground facilities which is provided to a person by an operator and must be accurate to within 18 inches measured horizontally from the outside edge of each side of such operator’s facility, or a strip of land 18 inches either side of the operator’s field mark or the marked width of the facility plus 18 inches on each side of the marked width of the facility.
(2) AUTHORITY. The Underground Damage Prevention Authority created under Section 37-15-10.1.
(3) AUTHORITY BOARD. The Underground Damage Prevention Board created under Section 37-15-10.1.
(4) BLASTING. The use of an explosive device for the excavation of earth, rock, or other material or the demolition of a structure.
(5) CONTRACT LOCATOR. Any person contracted with an operator specifically to determine and mark the approximate location of the operator’s utility lines that exist within the area specified by a notice served on the “One-Call Notification System.”
(6) DAMAGE. Includes, but is not limited to, the substantial weakening of structural or lateral support of an underground facility, penetration or destruction of any underground facility’s protective coating, housing, or other protective device, and the severance (partial or complete) of any underground facility, but does not apply to any operator’s abandoned underground facility.
(7) DEMOLITION. Any operation by which a structure or mass of material is wrecked, razed, rendered, moved, or removed by means of any tools, equipment, or explosives.
(8) DESIGN OR SURVEY LOCATE REQUEST. Any communication to the “One-Call Notification System,” specifically to request existing underground facilities to be located for bidding, predesign, or advance planning purposes. A design locate request may not be used for excavation purposes and an excavation locate request may not be used for design or survey purposes.
(9) EMERGENCY EXCAVATION OR DEMOLITION. An excavation or demolition that is required to eliminate an imminent danger to life, health, property, or the environment or required for the repair or restoration of operator service that is required to be performed before the notification and response procedures required in Section 37-15-4 and 37-15-6 may be fully utilized.
(10) EXCAVATE or EXCAVATION. Any operation for the purpose of the movement or removal of earth, rock, or other material by mechanized equipment or explosive device and includes, but is not limited to, augering, backfilling, blasting, boring, digging, ditching, drilling, grading, pile-driving, plowing-in, pulling-in, ripping, scraping, sub-soiling, trenching, and tunneling. Excavate or excavation does not include routine roadway maintenance activities carried out by or for those responsible for publicly-maintained roadways, provided that the activities occur entirely within the right-of-way of a public road, street, or highway; are carried out with reasonable care so as to protect any utility facilities placed in the right-of-way by permit; are carried out within the limits of any original excavation on the traveled way, shoulder, or drainage ditches of a public road, street, or highway; and, if involving the replacement of existing structures, including traffic control devices, replace such structures in their approximate previous locations and at their approximate previous depth. Excavate or excavation does not include routine railroad maintenance activities conducted within the track structure and its adjacent right-of-way, provided the activities are performed by railroad employees or railroad contractors and are carried out with reasonable care so as to protect any underground facilities placed in the railroad right-of-way by agreement with the railroad. Nothing in this chapter shall modify or abrogate any contractual provision entered into between any railroad and any other party owning or operating an underground facility or underground utility lines within the railroad’s right-of-way.
(11) EXCAVATOR. Any person who engages in excavation.
(12) EXECUTIVE COMMITTEE. The executive committee created under Section 37-15-10.1.
(13) IMPLIED EASEMENT. Any unwritten easement or right-of-way on private property required to provide utility or other services by means of underground facilities on property of the owner requesting such service.
(14) MARK or MARKING. The use of stakes, flags, paint, buoys, or clearly identifiable materials placed on the surface of the ground or water to show the approximate location of underground facilities.
(15) MECHANIZED EQUIPMENT. Equipment powered or energized by any motor, engine, hydraulic, or pneumatic device and is used for excavation or demolition work including, but not limited to, tractors, trenchers, bulldozers, power shovels, augers, backhoes, scrapers, pile drivers, drills, cable and pipe plows, or other equipment used for plowing-in or pulling-in cable or pipe.
(16) MEMBER. A person who participates in the “One-Call Notification System” to receive services and is in good standing with the “One-Call Notification System” in accordance with the guidelines set forth in the corporation’s bylaws.
(17) NEAR MISS. An event where damage did not occur, but a clear potential for damage was identified.
(18) NONINVASIVE METHOD OF EXCAVATION. A method of excavation that does not compromise the integrity of the underground facility. These methods include, but are not limited to, hand digging, pot holing, soft digging, vacuum excavation methods, or other methods approved by the operator.
(19) NOTIFICATION AREA. An area or territory which an operator designates as the area where the operator wishes to receive notifications for any excavation in that area. The notification area should encompass the underground distribution system or network of the operator.
(20) ONE-CALL NOTIFICATION SYSTEM. A non-profit corporation, a public corporation, or a governmental entity which will provide a statewide notification service, for the purpose of receiving statewide telephonic toll-free or electronic notification of any planned excavation or demolition activities by excavators or other persons as set forth in Section 37-15-4 and distributing the required excavation or demolition information to its affected member operators as set forth in Section 37-15-5.
(21) OPERATOR. Any person, governmental agency, or political subdivision, or its agents, who owns or operates a public or private underground facility which furnishes services, information, or materials, or transports or transmits electric energy, light, water, steam, oil, gases, gas, mixture of gases, petroleum, petroleum products, hazardous or flammable liquids, toxic or corrosive fluids and gases, or items of like nature, and telecommunications, cable television, water, drainage, sewage, or other systems of like nature. The term operator does not apply to any entity listed above if all of the underground facilities owned and operated by the entity are for the sole use of the entity and are located solely on the entity’s own property or on property over which the entity has rights of operation.
(22) PERSON. An individual, joint venture, partnership, association, authority, cooperative, firm, corporation, governmental entity, or any subdivision or instrumentality of that entity and its employees, agents, or legal representatives.
(23) POSITIVE RESPONSE. The communication among member operators, persons excavating, and the “One-Call Notification System” concerning the status of locating an underground facility.
(24) PREMARK. To delineate the general scope of the excavation on the surface of the ground using white paint, white stakes, or other similar white markings.
(25) ROUTINE ROADWAY MAINTENANCE. Maintenance work on a roadway that is not done pursuant to a contract awarded by a state or local government through a bid process for which plan drawings have been developed in advance or work for which detailed and specific scheduling is not possible or feasible.
(26) TOLERANCE ZONE. The width of the underground facility plus 18 inches on either side of the outside edge of the underground facility on a horizontal plane.
(27) UNDERGROUND FACILITY. Any cable, pipeline, duct, wire, conduit, or other similar installation, installed underground or underwater, by which an operator transports or delivers materials, information, or services.
(28) WILLFUL NONCOMPLIANCE. The intentional refusal or failure to perform, or comply with, a duty created or imposed by this chapter or by the rules adopted pursuant to this chapter.
(29) WORKING DAY. A 24-hour period commencing the beginning of the start of the next working day from the time of receipt of the notification, excluding Saturday, Sunday, and the following nine holidays: New Year’s Day, Memorial Day (observed), Independence Day, Labor Day, Veterans Day, Thanksgiving Day, the Friday following Thanksgiving Day, Christmas Eve, and Christmas Day. When any of these holidays occur on a Saturday, it will be observed on the preceding Friday and when any of these holidays occur on a Sunday, it will be observed on the following Monday.
(30) WORKING DAY HOURS. The time from 7:00 a.m. to 5:00 p.m. local time on working days.
(Acts 1994, No. 94-487, p. 911, §2; Act 2012-504, p. 1483, §1; Act 2014-220, p. 691, §1; Act 2015-363, p. 1129, §1; Act 2019-407, §1.)
No person shall excavate in a street, highway, public easement, private easement, or implied easement of an operator, or on property of an operator, or conduct blasting operations, or perform demolition activities in the near proximity of an operator’s underground facility without first having ascertained, in the manner prescribed in Sections 37-15-4 and 37-15-6, the location of all underground facilities in the area of the proposed excavation, blasting, or demolition; however, violation of this section shall not subject any person to the civil penalties of Section 37-15-10 provided the easement or underground facility is located on property owned by such person and such person did not have knowledge of the existence or presence of such easement or underground facility.
(Acts 1994, No. 94-487, p. 911, §3.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a) A permit issued pursuant to law authorizing excavation or demolition operations shall not be deemed to relieve a person from the responsibility for complying with this chapter. Any public agency issuing such permit shall notify the person receiving the permit of the notification requirements of this chapter; however, failure to provide such notification shall not make the State Department of Transportation subject to the penalties provided for in Section 37-15-10.
(b) Before commencing any excavation or demolition operation prohibited by Section 37-15-3, each person responsible for the excavation or demolition shall give telephonic or electronic notice of the intent to excavate or demolish to the underground facility operator or the “One-Call Notification System” acting on behalf of the operator at least two but not more than 10 working days prior to the start of the proposed excavation, not including the day of notification, and at least two working days but not more than 30 calendar days, not including the day of notification, prior to the start of demolition or any blasting operations for either excavation or demolition.
(c) The notice required by subsection (b) must contain the name, address, and telephone number of the person responsible for the excavation or the demolition and the person giving notice, the proposed starting date and time, the type of excavation or demolition operation to be conducted, the location of the proposed excavation or demolition with sufficient details to enable the operator to locate same with reasonable certainty, and whether or not explosives are to be used. In the event the location requirements of this subsection cannot be met, the excavator shall premark the route or boundaries of the site of proposed excavation or demolition by means of white as the identifying color on stakes, flags, paint, buoys, or clearly identifiable materials placed on the surface of the ground or water prior to the notification to the One-Call Notification System. However, premarking is not required when the premarking could reasonably interfere with traffic or pedestrian control.
(d) Notification to the One-Call Notification System of an intent to excavate shall be valid for a period of 20 working days from the proposed starting date given for excavation and the notice to demolish shall be valid for a period of 30 working days from the starting date given. Each person responsible for excavation or demolition shall renew with the One-Call Notification System each notice of intent to excavate or demolish at least two working days, not counting the day of notification, prior to the expiration date of the notice if the excavation or demolition has not been completed.
(e) When engaged in an extensive and contiguous construction, demolition, or excavation activity, working agreements may be established to accomplish the intent and purpose of this chapter between operators, public agencies, and contractors after initial compliance with the notification provisions of this chapter.
(f) Compliance with the notice requirements of this section is not required of persons plowing less than 12 inches in depth for agricultural purposes.
(g) Compliance with the notice requirements of this section is not required by persons or operators excavating on their own property or easement when no other persons or operators have underground facilities on the property or easement.
(h) Except for those persons submitting design or survey locate requests, no person, including an operator, shall request markings of a site through the One-Call Notification System that meets the operational requirements as described in subsection (a) of Section 37-15-5, unless excavation is scheduled to commence. In addition, no person shall make repeated requests for remarking, unless the repeated request is required for excavating to continue or due to circumstances not reasonably within the control of the person.
(i) Any person who complies with the notification requirements of this chapter is not liable for damage to an operator’s underground facility if all of the following are satisfied:
(1) The operator received the notification required by this section.
(2) The operator failed to locate its underground facilities as required by Section 37-15-6.
(3) The damage is a proximate result of the operator’s failure to locate its underground facilities as required by Section 37-15-6.
(Acts 1994, No. 94-487, p. 911, §4; Acts 1996, No. 96-666, p. 1127, §1; Act 2014-220, p. 691, §1; Act 2019-407, §1.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a) Any person may submit a design or survey locate request to the One-Call Notification System. The design or survey locate request shall describe the tract or parcel of land for which the design or survey locate request has been submitted with sufficient particularity as defined by policies developed and promulgated by the One-Call Notification System to enable the facility operator to ascertain the precise tract or parcel of land involved and state the name, address, telephone number, and facsimile number of the person who has submitted the design or survey locate request and the company name of the project owner.
(b) Within five working days after a design or survey locate request has been submitted to the One-Call Notification System for a proposed project, the operator shall respond by one of the following methods:
(1) Marking the approximate location of all underground facilities in the area of proposed excavation.
(2) Providing to the person submitting the design or survey locate request the best available description of all underground facilities in the area of proposed excavation which may include drawings of underground facilities already built in the area or other facility records that are maintained by the facility operator.
(3) Allowing the person submitting the design or survey locate request or any other authorized person to inspect or copy the drawings or other records for all underground facilities within the proposed area of excavation.
(Act 2014-220, p. 691, §2; Act 2019-407, §1.)
(a) The excavator for an excavation project that qualifies for a complex or large project shall provide the underground facility operator, via the one-call notification system, with notice of the planned complex or large project not less than five working days prior to the planned complex or large project pre-excavation planning meeting. The notice shall follow the guidelines established for complex or large projects which shall include, but not be limited to, all of the following:
(1) Scope of project details and expected timelines for the work to be concluded, including descriptions of project phase, if appropriate.
(2) Company representative contact information.
(3) Field contact representative contact information.
(4) List of known contractors and subcontractors.
(5) Use of premarking requirements at proposed excavation sites.
(b) The excavator, operators, and locators involved in the complex or large project shall negotiate in good faith to reach a working agreement, which shall include, but not be limited to, the agreed upon scope of work, timeline for excavation activity, and location completion schedule.
(c) Once the working agreement is finalized, the locate requests for utility markings shall be made in accordance with the location completion schedule and in compliance with the requirements of Section 37-15-4. The operator shall mark the proposed excavation site in compliance with the requirements of Section 37-15-6.
(d) An excavator’s knowing failure to designate a qualifying project as a complex or large project subject to this section and an excavator or operator’s failure to comply with a working agreement shall be subject to the enforcement provisions of Section 37-15-10.
(e) An operator may require an excavator to utilize the complex or large project process if individual locate requests placed as routine requests combined qualify for the complex or large project process.
(Act 2026-255, §2.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a) Until January 1, 2027:
(1) Operators who have underground facilities within this state shall participate in and utilize the services of the One-Call Notification System.
(2) Operators that are members of the One-Call Notification System on January 1, 2020, must remain members.
(3) Operators with more than 25,000 customers or 500 miles of facilities, that are not members, must join the One-Call Notification System by January 1, 2021.
(4) Operators that do not meet the thresholds described in subdivision (2) or (3), must join the One-Call Notification System by January 1, 2022.
(5) Operators of electrical underground facilities that join the One-Call Notification System under the requirements of subdivision (3) or (4) having less than five percent underground trench miles compared to the total miles of line, are not subject to the membership costs until their underground trench miles exceed the trench mile exemption. These operators shall be required to report annually to the One-Call Notification System their percentage of underground trench miles by the end of each calendar year.
(6) If an operator of an underground facility fails to become a member of the One-Call Notification System, as required by this chapter, and that failure is a cause of damage to that underground facility caused by a person who has complied with this chapter and has exercised reasonable care in the performance of the excavations that has caused damage to the underground facility, the operator has no right of recovery against the person for the damage to that underground facility.
(b) Between April 18, 1994, and January 1, 1995, or any time thereafter, any non-profit corporation, public corporation, or governmental entity desiring to become the One-Call Notification System shall apply to the Alabama Public Service Commission for a certificate of public convenience and necessity, verifying under oath that the applicant meets the requirements of this chapter. After a public hearing on the application, if the Alabama Public Service Commission deems that the applicant meets the requirements of this chapter, and if it is found that the applicant is fit, willing, and able to properly perform the services proposed and that the proposed service is or will be required by the present or future public convenience or necessity, then in such event the Alabama Public Service Commission may issue a certificate of public convenience and necessity authorizing the applicant to commence its operation as the One-Call Notification System. The Alabama Public Service Commission shall revoke a certificate if the non-profit corporation, public corporation, or governmental entity ceases to meet the requirements as set forth in this chapter. The One-Call Notification System must provide a report of operations and financial review or audit to the Public Service Commission annually.
(c) Subject to subsections (a) and (b), there shall be a statewide One-Call Notification System in accordance with this chapter to provide notice of all excavation or demolition near underground facilities.
(d) The One-Call Notification System shall be incorporated or operated as a non-profit corporation and governed by a board of directors representing its membership in accordance with the One-Call Notification System bylaws.
(e) Operators of underground natural gas or hazardous liquid pipeline facilities or the One-Call Notification System acting on their behalf shall develop and implement a public awareness and damage prevention program to educate the general public, excavators, and operators about the availability and use of the One-Call Notification System as required in applicable federal regulations and the requirements of this chapter.
(f) The person giving notice of intent to excavate or demolish shall be furnished an individual reference file number for each notification and upon request shall be furnished the names of the operators to whom the notification will be transmitted.
(g) An adequate record of notifications shall be maintained by the underground facility operator or the One-Call Notification System in order to document timely compliance with this chapter. These records shall be retained for a period of not less than three years and shall be made available at a reasonable cost upon proper and adequate advance request.
(h) The services of the One-Call Notification System should be provided on working days in accordance with the established working day hours.
(i) The One-Call Notification System should voice record the notification telephone calls and after hours calls should at least reach a voice recording which explains emergency procedures.
(j) All members of the One-Call Notification System shall provide the One-Call Notification System with the following information:
(1) The notification area data in a format as required by the current database system utilized by the One-Call Notification System for the locations in which members have underground facilities or for other reasons wish to receive notifications of proposed excavations, demolitions, or blasting. This information shall be updated at least once a year.
(2) The name, address, and telephone number of a person to receive emergency notifications.
(k) The One-Call Notification System shall promptly transmit the information received from the excavator, as set forth in Section 37-15-4, to its appropriate member operators.
(l) All members of the One-Call Notification System who have changes, additions, or new installations of buried facilities within the boundaries of the State of Alabama shall notify the One-Call Notification System of changes in the information required in subdivision (1) of subsection (j), within 30 days of the completion of such change, addition, or new installation.
(Acts 1994, No. 94-487, p. 911, §5; Act 2012-504, p. 1483, §1; Act 2014-220, p. 691, §1; Act 2019-407, §1.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a)(1) Each operator served with notice in accordance with Section 37-15-4, with underground facilities in the area, shall mark or cause to be marked or otherwise provide the approximate location of the operator’s underground facilities by marking in a manner as prescribed herein prior to the proposed start of excavation, demolition, or blasting. If any underground facilities become damaged due to an operator furnishing inaccurate information as to the approximate location of the facilities, through no fault of the operator, then the civil liabilities imposed by this chapter do not apply.
(2) In lieu of such marking, the operator may request to be present at the site upon commencement of the excavation, demolition, or blasting.
(3) A member operator that states that it does not have accurate information concerning the exact location of its underground facilities is exempt from the requirements of this section, but shall provide the best available information to the person excavating in order to comply with the requirements of this section. A person excavating is not liable for any damage to an underground facility under the exemption in this subdivision if the excavation or demolition is performed with reasonable care as noted in Section 37-15-8 and the excavator uses detection equipment or other acceptable means to determine the location of the underground facilities.
(4) When an excavator encounters an unmarked underground facility on an excavation site where notice of intent to excavate has been made in accordance with the provisions of Section 37-15-4, and attempts a follow-up or second notice relative to revising the original notice to the One-Call Notification System or the operator, all operators thus notified must attempt to contact the excavator within four hours and provide a response relative to any of their known underground facilities, active or abandoned, at the site of the excavation.
(b) When marking the approximate location of underground facilities, the operator shall follow the color code designation in accordance with the latest edition of the American Public Works Association Uniform Color Code.
(c) The color code designation referenced in this section shall not be used by any operator or person to mark the boundary or location of any excavation or demolition area. If the excavator elects to mark the proposed excavation or demolition site, the boundary or location shall be identified using white as the identifying color or with natural color wood stakes. White flags or white stakes may have a thin stripe, one inch or less of the designated color code, to indicate the excavator’s proposed type of facility, if applicable.
(d) Each operator, upon determining that no underground facility is present on the tract or parcel of land or upon completion of the marking of the location of any underground facilities on the tract or parcel of land, shall provide a positive response with information to the One-Call Notification System in accordance with the procedures developed by the One-Call Notification System.
(e) The requirement for providing a positive response shall become effective January 1, 2021.
(f) Any contract locator acting on behalf of an operator is subject to this section.
(Acts 1994, No. 94-487, p. 911, §6; Act 2014-220, p. 691, §1; Act 2019-407, §1.)
(a) Compliance with the notice requirements of Section 37-15-4 is not required of persons responsible for emergency excavation or demolition; provided, however, that such person gives, before commencing or as soon as practicable thereafter, notice of the emergency excavation or demolition to each operator having underground facilities located in the area or to the “One-Call Notification System” acting on behalf of the operator. However, every person who shall engage in such emergency excavation or demolition shall take all necessary and reasonable precautions to avoid or minimize damage to existing underground facilities.
(b) An excavator misrepresenting an emergency excavation or demolition is subject to the civil penalties imposed pursuant to Section 37-15-10.
(Acts 1994, No. 94-487, p. 911, §7; Act 2014-220, p. 691, §1.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
In addition to the notification requirements of Section 37-15-4, each person responsible for an excavation or demolition operation designated in Section 37-15-3, when performing excavation or demolition within the tolerance zone, shall do all of the following to avoid damage to or minimize interference with the underground facilities:
(1) Determine the location of any marked underground facility utilizing noninvasive methods of excavation. For parallel type excavations, the existing facility shall be exposed at intervals as often as necessary to avoid damages.
(2) Maintain a clearance of at least 18 inches between any underground facility and the cutting edge or point of mechanized equipment.
(3) Provide such support for underground facilities in and near a construction area, including backfill operations, as may be reasonably required by the operator for the protection of the utilities.
(4) Protect and preserve the markings of approximate locations of underground facilities until those markings are no longer required for proper and safe excavation or demolition.
(Acts 1994, No. 94-487, p. 911, §8; Act 2014-220, p. 691, §1.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a) Each person responsible for any excavation or demolition operation that results in any damage to an underground facility, immediately upon discovery of such damage, shall notify the operator of such facility of the location of the damage or the One-Call Notification System operating on behalf of the underground facility owner and shall allow the operator reasonable time to accomplish any necessary repairs before completing the excavation or demolition in the immediate area of the damage to such facility.
(b) In addition to subsection (a), each person responsible for any excavation or demolition shall immediately report to the operator or the One-Call Notification System operating on behalf of the underground facility owner and appropriate law enforcement agencies and fire departments any damage to an underground facility that results in escaping flammable, corrosive, explosive, or toxic liquids or gas and shall take reasonable actions necessary to protect persons or property and to minimize safety hazards until those law enforcement agencies and fire departments and the operator arrive at the underground facility.
(c) If an event damages any pipe, cable, or its protective covering, or other underground facility, or there is a significant near miss that could have resulted in damage, the operator receiving the notice shall file a report with the One-Call Notification System. Reports must be submitted annually to the system, no later than March 31 for the prior calendar year, or more frequently at the option and sole discretion of the operator. Each report must describe, if known, the cause, nature, and location of the damage. The One-Call Notification System shall establish and maintain a process to facilitate submission of reports by operators or persons excavating.
(Acts 1994, No. 94-487, p. 911, §9; Act 2014-220, p. 691, §1; Act 2019-407, §1.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a) Any person who violates this chapter, or the rules adopted under this chapter, shall be subject to a civil penalty as follows:
(1) For a first violation, the violator shall complete a course of training concerning compliance with this chapter or pay a civil penalty in an amount not to exceed five hundred dollars ($500) per incident, or both.
(2) For a second or subsequent violation within a 12-month period, the violator shall complete a course of training concerning compliance with this chapter or pay a civil penalty in an amount not to exceed one thousand dollars ($1,000) per incident, or both.
(3) For a third or subsequent violation within a 12-month period, the violator shall complete a course of training concerning compliance with this chapter and pay a civil penalty in an amount not to exceed three thousand dollars ($3,000) per incident.
(4) Notwithstanding this subsection, if any violation was the result of gross negligence or willful noncompliance, the violator shall be required to complete a course of training concerning compliance with this chapter and pay a civil penalty in an amount not to exceed ten thousand dollars ($10,000) per incident.
(b) Any person who is required to complete a course of training under this section shall be responsible for paying for the cost of the training. For those instances in which training is ordered, if the person is a firm, partnership, association, corporation, limited liability company, joint venture, department, or subdivision of the state or other governmental entity or any other body or organization, it may be required that at least one manager or supervisor thereof attend any training.
(c) The penalties provided under this section may be subject to periodic review by the authority board and revised by rule as needed to ensure enforcement penalties are deemed effective and are in compliance with federal law.
(d) The amount of such penalties shall be dependent upon the degree of non-compliance, the amount of injury or damage caused, the degree of threat to public safety, the degree of public inconvenience caused as a result of the violation, and the number of past violations. Mitigation of the penalty may be shown by good faith efforts of the violator to have complied with this chapter.
(e) The Underground Damage Prevention Fund is created within the State Treasury, to be administered by the authority. All penalties recovered in actions brought by the authority under this chapter shall be paid into the Underground Damage Prevention Fund. Any monies remaining in the Underground Damage Prevention Fund at the end of the fiscal year shall not revert to the General Fund, but shall remain in the Underground Damage Prevention Fund for the exclusive use of the authority. The expenditures of monies in the Underground Damage Prevention Fund shall be at the discretion of the authority board to carry out its duties under this chapter. Excess funds shall be used to support public awareness programs and training and education of excavators, operators, locators, and other persons to reduce the number and severity of violations of this chapter.
(f) This chapter does not affect any civil remedies for personal injury or property damage or criminal sanctions except as otherwise specifically provided for in this chapter.
(g) Evidence of findings of fact, civil penalties, or any of the actions or proceedings pursuant to this chapter shall not be admissible in any other civil causes of actions related to the excavation or damage for which the penalty or fine was issued; however, these materials are discoverable in civil actions arising from the facts herein. This chapter does not limit any person’s right to pursue any additional civil remedy otherwise allowed by law.
(h) No civil penalty may be imposed pursuant to this section against an excavator or operator who violates any provision of this chapter if the violation occurred while the excavator or operator was responding to an emergency. Notwithstanding the foregoing, the civil penalty shall be imposed if the violation was willful or malicious.
(i) This section shall not be construed to limit any provision of law granting governmental immunity to state or local entities or to impose any liability or duty of care not otherwise imposed by law upon any state or local entity.
(j) Any person who willfully or maliciously removes or otherwise destroys a marking used by an operator to mark the location of any underground facility, except in the ordinary course of excavation, is guilty of a Class C misdemeanor.
(k) Any monies received by the Underground Damage Prevention Authority prior to April 22, 2021, which were directed to be paid into the Underground Damage Prevention Fund shall be deposited into the fund.
(Acts 1994, No. 94-487, p. 911, §10; Act 2014-220, p. 691, §1; Act 2019-407, §1; Act 2021-273, §§1,2.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a) The Underground Damage Prevention Authority is created for the purpose of enforcing this chapter and for reviewing penalty provisions and the adequacy of the enforcement process. It is the intent of the Legislature that the authority and its enforcement activities not be funded by appropriations from the state budget.
(b) The authority shall utilize the services of the Alabama Public Service Commission to provide administrative support for the authority, subject to the concurrence by the authority board. The Public Service Commission shall charge the expenses associated with the administrative duties of the authority back to the authority, subject to the concurrence of the authority board. The administrative support provided by the Alabama Public Service Commission to the authority is in an administrative capacity only and nothing in this chapter shall expand the jurisdiction of the Alabama Public Service Commission in any way.
(c) The authority shall be composed of a board of underground facility protection stakeholders. The board shall be composed of one subject matter expert representative from each of the following stakeholders and all board appointments shall be made by March 31, 2020, as follows:
(1) Alabama Attorney General’s Office.
(2) Alabama Public Service Commission - gas pipeline safety.
(3) Alabama Department of Transportation.
(4) Alabama county engineers.
(5) Cable television industry.
(6) Electric utility industry.
(7) Municipal utility operator industry.
(8) Natural gas distribution industry.
(9) One-Call Notification System.
(10) Professional excavator industry.
(11) Professional road builder industry.
(12) Professional land surveyor industry.
(13) Telecommunications industry.
(14) Transmission pipeline industry.
(15) Utility facility locating industry.
(16) Water utility industry.
(17) Wastewater industry.
(d) The Governor shall appoint the stakeholder representatives selected from qualified persons as provided in subsection (c) with the exception of the stakeholder representatives from the Alabama Attorney General’s office, the Alabama Public Service Commission - gas pipeline safety, and the Alabama Department of Transportation, who shall be appointed by the head of the respective agency. The initial authority board shall be appointed with staggered terms as determined by the Governor. After the initial appointment, each stakeholder representative shall serve a term of three years or until a replacement is appointed, whichever occurs later. No person shall be appointed for more than two full consecutive terms with the exception of the stakeholder representatives from the Alabama Attorney General’s office, the Alabama Public Service Commission - gas pipeline safety, the Alabama Department of Transportation, and the One-Call Notification System.
(e) Membership of the authority board shall be inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.
(f) The board shall elect an executive committee made up of five representatives from the authority board as provided in this section excluding those entities representing a state agency, who will be responsible for levying civil penalties and taking actions as described in Section 37-15-10, this section, and Section 37-15-10.2.
(g) Members of the authority board and executive committee may participate in a meeting of the board or committee by means of telephone conference, video conference, or similar communications equipment by means of which all persons participating in the meeting may hear each other at the same time and members of the public may simultaneously listen to the meeting. Participation by such means shall constitute presence in person at a meeting for all purposes.
(h) The board may do all of the following:
(1) Adopt rules to conduct the affairs of the authority.
(2) Make and enter into contracts.
(3) Enter into an interagency agreement with the Attorney General’s office to serve as legal counsel. The Attorney General shall be compensated at a rate not to exceed the normal hourly rate authorized by the Governor for legal services contracts. The authority shall also reimburse the Attorney General for any expenses incurred in providing legal representation.
(4) Oversee the development of or contract for the development and administration of the designated training program.
(5) Evaluate and revise the enforcement program process and penalty structure by adopting rules if the current structure does not meet the purpose and intent of this chapter or federal law.
(i) No member of the board, individually or jointly, shall be civilly liable for acts within the scope of his or her duties as a board member which are made in good faith and are absent unreasonable, wanton, willful, intentional conduct or a violation of federal law.
(j) The members of the board shall serve without compensation.
(k) Nothing in this chapter shall grant the authority jurisdiction over damage to utilities located above the ground.
(l) Board members shall not participate in any enforcement action decisions pertaining to the entity they represent.
(Act 2019-407, §2; Act 2021-273, §1.)
AMENDED BY ACT 2026-255, EFFECTIVE JANUARY 1, 2027. SEE ACTS FOR REVISED LANGUAGE.
(a) Any person who violates this chapter may be reported to the authority for the alleged violation.
(b) The board shall develop and implement a process for the receipt of a complaint of a violation of this chapter. The complaint must be made no later than 30 days after the known occurrence of the violation. A complaint may be filed as information only and designated not to be pursued under the enforcement provisions.
(c) Upon receipt of a complaint of a violation of this chapter, the administrator, operating on behalf of the authority, shall provide notice to the reported violator advising that a complaint of violation has been made setting out the time and place of the alleged violation, the identity of who reported the violation, his or her right to file a written response within 14 days, and his or her right to appeal from an adverse decision.
(d) The administrator, acting on behalf of the authority, shall submit the complaint and documentation to the executive committee.
(e) The authority executive committee shall review the complaint and any documentation regarding the complaint and make any needed recommendation for penalty action.
(f) The administrator, operating on behalf of the authority, shall notify the complainant and the reported violator of any penalty assessed.
(g) Once the reported violator is notified of the designated penalty as described in Section 37-15-10, the violator may pay the penalty to the Underground Damage Prevention Fund or dispute the penalty and request a hearing before the full authority board.
(h) The request for a hearing before the authority board must be made within 30 days of the issuance of notification of the violation.
(i) The full authority board shall meet no more than quarterly, based on need. The hearings shall be held at the place set forth in the notice of hearing. There shall be no presumption of correctness attached to any finding of fact or any assessment of a penalty that is appealed to the authority board, and the proceedings and hearing before the authority board shall be tried de novo. The complainant must attend the hearing.
(j) The authority board in the appeal process may do all of the following:
(1) Repeal the initial penalty provisions cited for the alleged violation of this chapter.
(2) Uphold the initial penalty provisions cited for the alleged violation of this chapter.
(3) Issue a new penalty provision related to the alleged violation of this chapter.
(4) Issue an order stating the outcome of the hearing including any assigned penalty.
(k) A person aggrieved by the final order, within 30 days from the date of the final order, may seek judicial review in the circuit court by filing a notice of appeal.
(l) All complaints filed pursuant to this chapter shall not be subject to the Alabama Open Records Act. However, the authority shall make available upon request a summary of a complaint after a final resolution has been entered regarding any such complaint requested along with any documents associated with the final resolution of the complaint. However, this restriction shall not prevent a party from obtaining a copy of the complaint by means of a subpoena or other method allowed by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure. The Alabama Open Meetings Act shall apply to all meetings and judicial hearings required pursuant to this chapter, except for those meetings of the authority in which the initial determination of violation and recommended fine is discussed and determined.
(m) The authority may bring an action against any person or entity to collect any fines, penalties, or other monies owed to the authority.
(n) The authority shall be governed by the Alabama Administrative Procedure Act.
(Act 2019-407, §2.)
The provisions of this chapter shall be liberally construed as to effectuate the purposes of this chapter and the operation of a “One-Call Notification System.”
(Acts 1994, No. 94-487, p. 911, §11.)
This chapter shall be known and may be cited as the Broadband Using Electric Easements Accessibility Act.
(Act 2019-326, §1.)
(a) The Legislature finds and declares the following:
(1) More advanced communication capabilities, broadband facilities, and services are needed in many rural and underserved areas of the state.
(2) Electric providers in those rural and underserved areas are capable of providing infrastructure for such advanced communications capabilities and providing, directly or indirectly, broadband facilities or services.
(3) The investment in and development of advanced communications capabilities for providing broadband facilities and services are necessary to better serve the public in those rural and underserved areas.
(4) The continued lack of advanced communication capabilities, broadband facilities, and services in rural and underserved areas deprives citizens residing in these areas from access to opportunities such that the state needs to take action to correct and eliminate these discrepancies.
(5) It is the public policy of this state to encourage and facilitate the development and investment in advanced communications capabilities and broadband facilities and services in those rural and underserved areas in the state, as this development is vital and necessary to induce, create, and promote industrial and economic development in those rural and underserved areas of the state and to create job opportunities, enhance health care, and enhance educational advancement in those areas.
(6) It is the public policy of the state to promote the authorization of advanced communications capabilities to be installed by electric providers within existing easements and other rights-of-way.
(7) It is the intent of this chapter to authorize electric providers to engage in arrangements, contracts, and other collaborative activities with public or private persons to facilitate the investment in or development of advanced communications capabilities and broadband services and broadband systems in this state.
(8) The limited grant of authorization to electric providers in this chapter is reasonably related to the proposed legislative objective of providing advanced communications capabilities, broadband facilities, and services in rural, underserved, and unserved areas.
(b) Except as provided in subsection (a), nothing contained in this chapter is intended to exempt, except, or exclude providers that engage in the provision of broadband facilities or services through advanced communications capabilities from complying with any provisions of federal law which may at any time apply to the electric providers or their broadband facilities or services.
(Act 2019-326, §1.)
As used in this chapter, the following terms shall have the following meanings:
(1) ADVANCED COMMUNICATIONS CAPABILITIES. The communications capabilities defined from time to time as advanced telecommunications capabilities by the Federal Communications Commission (FCC) through regulations, statutes, or other written guidance or orders. The term also includes broadband systems and broadband services.
(2) BROADBAND AFFILIATE. A person that is at least 10 percent owned by an electric provider, controlled by way of ownership interests therein, directly or indirectly, by the electric provider, or under common control with the electric provider, and which is formed to provide, among other services, utility support services or nonutility support services.
(3) BROADBAND OPERATOR. A person that owns or operates a broadband system within an electric easement, including the electric provider if the electric provider is operating the broadband system and including a person that provides broadband services on a wholesale basis to another broadband operator or broadband service provider.
(4) BROADBAND SERVICE PROVIDER. A person that provides broadband services on a retail basis to end-use customers.
(5) BROADBAND SERVICES. The provision of connectivity to a high-speed, high-capacity transmission medium or to a technology supporting, in the provider-to-consumer (downstream) direction, a speed, in technical terms (“bandwidth”), with minimum download speeds of 25 megabits per second and minimum upload speeds of 25 megabits per second for either of the following:
a. To provide access to the Internet.
b. To provide computer processing, information sharing, information storage, information content, or protocol conversion, including any service application or information service over the electric delivery system of an electric provider, and includes any advanced communications capabilities that enable users to originate, send, and receive high-quality voice, data, graphics, video programming, and video communications using any technology including a broadband system.
(6) BROADBAND SYSTEM. Any of the following that may be used to facilitate, directly or indirectly, the provision or transmission of broadband services, whether utility support services or nonutility support services, or both: Materials; wires; cables, including fiber optic and copper cables, whether such cables are dark or lit, and whether such cables are in use or dormant; conduits; antennas; equipment; fixtures; switching multiplexers; poles; routers; switches; servers; appurtenances; facilities; and ancillary or auxiliary equipment.
(7) COMMISSION. The Alabama Public Service Commission.
(8) ELECTRIC DELIVERY SYSTEM. Any product, fixture, equipment, or technology, or part thereof, necessary or useful in supporting the generation, transmission, transformation, or distribution or delivery of electricity, including, but not limited to, generators, electric transmission facilities and lines, distribution facilities and lines, wires, cables, fiber optic cables, poles, transformers, antennas, anchors, guys, grounding systems, communications systems, insulators, conduits, and any other related or ancillary facilities or materials used by an electric provider to generate, transmit, transform, deliver, or distribute electric energy, as such lines and facilities may exist from time to time and whether such lines or facilities are aboveground or underground.
(9) ELECTRIC EASEMENT. Any recorded or unrecorded easement or right-of-way in favor of an electric provider that permits the siting and use of an electric delivery system on, over, under, or across the land of a property owner, regardless of whether the easement or right-of-way is for the exclusive benefit of the electric provider or for use in connection with the provision of other services, and regardless of whether the electric provider provides the other services. Electric easements include, but are not limited to, easements obtained under a law of this state, or by any of the following methods: Negotiation, condemnation, prescription, or grant, including, but not limited to, a grant pursuant to a bylaw provision, service agreement, or membership agreement, rate schedule, tariff, rule, regulation, practice, act, requirement, or privilege.
(10) ELECTRIC PROVIDER. A utility, as defined under paragraph a. of subdivision (7) of Section 37-4-1; or a cooperative nonprofit, membership organization formed, incorporated, or reincorporated under Chapter 6 of Title 37, that produces, generates, transmits, delivers, distributes, or furnishes electricity; or any board, authority, or public corporation incorporated or organized under Article 9, Article 15, or Article 16 of Chapter 50 of Title 11, for the operation of an electric distribution system; or a municipal corporation that operates an electric distribution system.
(11) NONUTILITY SUPPORT SERVICES. Broadband services and related services that support services, uses, or purposes other than utility support services.
(12) PERSON. An individual, trust, estate, corporation, partnership, limited partnership, limited liability partnership, or limited liability company having a separate legal existence under state law.
(13) UTILITY SUPPORT SERVICES. Broadband services and related services, uses, or purposes that support the operational performance and service reliability of the electric delivery system of an electric provider, including, but not limited to, all of the following:
a. Automated meter reading.
b. Real-time or other system monitoring.
c. Remote service control.
d. Outage detection and restoration.
e. Predictive maintenance and diagnostics.
f. Monitoring and enhancement of power quality, load control, voltage control, and flow.
g. Supervisory control and data acquisition.
h. Management and flow of electricity.
i. Internal communications.
j. Dispatch, start-up, ramping, shutdown, curtailment, scheduling, or control of electric generation, transmission, or distribution of resources or ancillary services relating thereto, including, but not limited to, generator imbalance, spinning and non-spinning reserves, and reserve sharing.
k. All other uses supporting the reliability, resilience, and security of the electric delivery system.
(Act 2019-326, §1.)
(a) To the extent not otherwise authorized by law, and in addition to all other purposes, powers, and authority currently granted to electric providers under the laws of this state, an electric provider may do all of the following:
(1) Own, operate, maintain, construct, install, and replace a broadband system on, over, under, or across the electric provider’s electric easements, whether used for or supporting utility support services or used for or supporting nonutility support services, whether on a wholesale or retail basis.
(2) Allow a broadband affiliate or an unaffiliated person to own, lease, manage, construct, superintend, install, operate, maintain, and replace a broadband system on, over, under, or across the electric provider’s electric easements, on such terms and conditions as specified by the electric provider, whether used for or supporting utility support services or used for or supporting wholesale or retail nonutility support services, including the power and authority to apportion the electric easement, to grant licenses, and to grant other usage or operational rights to other broadband operators for the broadband system located within the electric easements.
(3) Provide broadband services, whether used for or supporting utility support services or for wholesale or retail nonutility support services.
(4) Allow a broadband affiliate or an unaffiliated person to provide broadband services over or through a broadband system within the electric easements of an electric provider, on such terms and conditions as specified by the electric provider, whether used for or supporting utility support services or used for or supporting wholesale or retail nonutility support services.
(b) In furtherance of its authority under subsection (a), an electric provider shall have the sole authority to determine which broadband affiliate or unaffiliated person, including a broadband operator or broadband service provider, may have access to the broadband system within its electric easements and on its electric delivery system and to determine the terms and conditions on which the broadband affiliate or unaffiliated person may access the broadband system, including, without limitation, whether the access will be on an exclusive or non-exclusive basis.
(c) An electric provider engaged in providing retail nonutility support services shall apply the same rate methodology to determine pole attachment rates, and shall require the same terms and conditions of access, for pole attachments to its electric delivery system for its broadband services, with such methodology and terms of access to be determined at the time of the applicable pole attachment request, as the provider applies for pole attachments to its electric delivery system by persons not affiliated with the electric provider. Nothing in this subsection shall apply to an electric provider that is a Tennessee Valley Authority distributor or to an electric provider that is a utility as defined under paragraph a. of subdivision (7) of Section 37-4-1.
(d) This chapter does not require or obligate an electric provider to install or implement a broadband system or advanced communications capabilities, to provide broadband services, or to allow others to install a broadband system or facilities or use the electric provider’s electric easements and electric delivery system to provide broadband services.
(e) An electric provider may not require any person to purchase broadband services from the electric provider, a broadband affiliate, or unaffiliated broadband operator or broadband service provider as a condition of receiving or continuing to receive electric energy from the electric provider.
(f) An electric provider shall not disconnect any customer from receiving electric services pursuant to its electric delivery system due to the customer’s failure to pay for broadband services provided to the customer by the electric provider or its broadband affiliate.
(g) By June 30 of each year, an electric provider engaged in providing retail nonutility support services directly or through a broadband affiliate shall provide a report to the Legislature detailing its pole attachment rates. This subsection does not apply to an electric provider that is a Tennessee Valley Authority distributor or to an electric provider that is a utility as defined under paragraph a. of subdivision (7) of Section 37-4-1.
(Act 2019-326, §1.)
In no event does this chapter authorize any electric provider to provide retail electric service outside of its electric service territory as determined under the applicable provisions of Chapter 14. Nothing in this chapter is intended to amend, repeal, enlarge, or otherwise affect Chapter 14.
(Act 2019-326, §1.)
An electric provider may charge a broadband affiliate or an unaffiliated person, including a broadband operator or broadband service provider, for the costs of the construction, installation, replacement, operation, use, and maintenance of the broadband system or of those parts of its electric delivery system that are used or may be reserved for use by the broadband affiliate or unaffiliated broadband operator or broadband service provider for the provision of broadband services. No electric provider shall be required to construct, install, replace, operate, or maintain a broadband system or to provide broadband services. An electric provider, broadband affiliate, or unaffiliated broadband operator or broadband services provider may charge for broadband services or any other uses of the broadband system, whether wholesale or retail, at rates determined by the provider thereof.
(Act 2019-326, §1.)
(a) If the owner of an interest in real property subject to an electric easement contends that the owner’s property has been taken, injured, or destroyed by the construction, installation, use, or enlargement of broadband systems within the electric easement on the owner’s property and the electric easement does not expressly provide for such, the owner may file a civil action in the circuit court for the county in which the property is located to recover damages as specified by this section. All such actions must be brought within three years after the later of: (1) August 1, 2019; or (2) the date broadband systems are first constructed or installed within the electric easement on the owner’s real property. Nothing in this chapter shall revive any right or remedy which may have become barred by lapse of time, or by any law of this state, prior to August 1, 2019.
(b)(1) In any action under subsection (a), the measure of damages shall be an amount equal to the difference, if any, between the following:
a. The fair market value of the owner’s real property immediately before the construction or installation of broadband systems within the electric easement on the owner’s real property.
b. The fair market value of the owner’s real property immediately after the construction or installation of broadband systems within the electric easement on the owner’s real property.
(2) The damages, if any, shall be fixed and shall not be deemed to continue, accumulate, or accrue. The judgment in any such action for the plaintiff shall include the plaintiff’s costs and litigation expenses. Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions. Payment of the judgment in any such action shall vest in the electric provider all property rights necessary to construct, use, install, operate, replace, and maintain, from time to time, the broadband systems within the electric easement on the owner’s real property and the electric easement shall be thereafter permanently expanded to include the right to construct, use, install, operate, replace, and maintain the broadband system and broadband services. The judgment shall have the same effect as a conveyance executed by the owner in due form under applicable law and shall run with the land. A certified copy of the judgment may be filed by the electric provider, a broadband affiliate, or other broadband operator in the land records of the county in which the subject property is located, but is not required to make such broadening of the electric easement effective. The expansion for the broadband system shall include the broadband system within the maintenance, egress, and ingress provisions of the electric easement.
(c) The civil action and measure of damages authorized by this section shall be the exclusive remedy for any and all claims that the owner’s property has been taken, or the scope of the electric easement exceeded, by the construction, installation, use, or enlargement of broadband systems within the electric easement on the owner’s property, and the owner may not assert any other theory, claim, or cause of action, either at law or in equity, nor recover any other damages, including, without limitation, consequential, compensatory, and punitive damages, or equitable relief.
(d) An owner bringing an action under this section may not bring an action on behalf of a class. The limitation in this subsection is a substantive limitation and allowing an owner to bring a class action or other representative action for a violation of this chapter would abridge, enlarge, or modify the substantive rights created by this section.
(e) An electric provider may acquire by condemnation ways, rights-of-way, and easements, without limitation as to width, on, over, under, or across the lands or easements of others, to erect, construct, replace, use, install, operate, and maintain advanced communications capabilities. Such condemnation is to be conducted in accordance with the procedures of Chapter 1A of Title 18, except as otherwise provided in this chapter.
(f) An electric provider, broadband affiliate, or unaffiliated broadband operator or broadband service provider may receive such rights from an owner of real property by service agreement or service regulation, membership agreement, license agreement, or other agreement to serve the property with advanced communications capabilities without granting an easement or right-of-way. The grant or agreement may permit the construction, installation, replacement, operation, use, and maintenance of the advanced communications capabilities on the property without the requirement of further consent of any other tenant, concessionaire, or occupant of that property.
(g) With respect to the installation of broadband systems within an electric easement in effect prior to August 1, 2019, the electric provider shall provide the same notice as is required by the express terms of the electric easement, if any, or as required by other applicable law for the construction or installation of the electric delivery system within the electric easement. With respect to the installation of broadband systems within an electric easement that is acquired other than by condemnation after August 1, 2019, the electric provider shall provide such notice as is required by the express terms of the document creating the electric easement, if any; or if there is no written document creating the electric easement or no express terms in the document, the electric provider shall provide notice to the owner of the real property subject to the electric easement by informing such owner of the installation of the broadband system within the electric easement prior to installation. Notice shall be sufficient if mailed to the name and address of the owner or owners listed in the real property ad valorem tax records for the county where the real property is located. Nothing in this section shall require the notice from the electric provider when the electric easement is acquired by condemnation or pursuant to an expansion of the electric easement by civil action commenced by the owner.
(h) Nothing in this chapter shall be deemed to relieve the broadband operator, broadband service provider, or electric provider from liability for bodily injury or physical damage to real or personal property located adjacent to the electric easement.
(Act 2019-326, §1.)
(a) Nothing in this chapter shall interfere with the commission’s authority to regulate public utilities under this title. Nothing in this chapter shall provide a basis for creating or granting jurisdiction to the commission over any electric providers or any broadband affiliate that are otherwise exempt or are otherwise not subject to the jurisdiction of the commission.
(b) Nothing in this chapter shall affect, abrogate, or eliminate in any way any obligation of an electric provider or any broadband affiliate or broadband operator to comply with any applicable safety and permitting requirements of any railroad company or any state governmental body or agency with respect to property that is held or controlled by such railroad company or state governmental body or agency, as the case may be, and in, on, over, or across which an easement is located.
(c) Any broadband system that encumbers the right-of-way of the Department of Transportation shall require a permit from the department regardless of whether the broadband system is within a currently permitted electric easement or an electric delivery system. Nothing in this chapter shall provide an exemption from an existing applicable regulation regarding access to county rights-of-way or be construed to abrogate, limit, expand, or otherwise affect the authority of a municipality to regulate the use of municipal streets and rights-of-way.
(d) Except as provided in this section, nothing in this chapter is intended to expand or contract an electric provider’s rights and obligations with regard to applicable laws in connection with pole attachments to its electric delivery system, or the terms of any pole attachment agreement in effect with its electric delivery system.
(Act 2019-326, §1.)
(a) An electric provider providing broadband services shall fully allocate and properly account for all marginal costs, including the internal imputation of such costs when the electric provider does not provide broadband services through an affiliate, related to the provision of nonutility support services, including any transactions provided for in subsection (b), and shall not use its electric services sales revenues for the subsidization of such nonutility support services. No transaction treated in accordance with subsection (b) shall be considered a cross-subsidy. Nothing in this subsection shall apply to an electric provider that is a Tennessee Valley distributor or an electric provider that is a utility as defined under paragraph a. of subdivision (7) of Section 37-4-1.
(b) Nothing in this section shall prevent an electric provider from making investments in broadband affiliates otherwise permitted by applicable law, making loans to broadband affiliates otherwise permitted by applicable law which have a repayment obligation from the affiliate, entering into capital or operating leases with the broadband affiliate, or entering into guarantees or other security arrangements for the benefit of a broadband affiliate, all on such terms and subject to such conditions as the board approves in the case of member cooperatives which are electric providers or as determined to be prudent or appropriate under applicable law in the case of other electric providers. An electric provider that is not a Tennessee Valley distributor or a utility as defined under paragraph a. of subdivision (7) of Section 37-4-1 shall separately allocate and account for all transactions described in this subsection as set forth in subsection (a).
(Act 2019-326, §1.)
In no event shall funds be appropriated from the Education Trust Fund under this chapter.
(Act 2019-326, §1.)
When used in this chapter, the following words shall have the following meanings:
(1) ANTENNA. An apparatus designed for the purpose of emitting radio frequency, to be operated or operating from a fixed location pursuant to Federal Communications Commission authorization, for the provision of wireless service. For purposes of this subdivision, the term does not include an unintentional radiator, mobile station, or device authorized under 47 C.F.R. Part 15.
(2) ANTENNA EQUIPMENT. Equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with an antenna, located at the same fixed locations as the antenna, and, when collocated on a structure, mounted or installed at the same time as the antenna.
(3) ANTENNA FACILITY. An antenna and associated antenna equipment.
(4) APPLICATION. A request by a wireless provider to collocate, mount, or install small wireless facilities on or adjacent to an existing, new, or replacement pole; or to install, modify, or replace a pole associated with a small wireless facility.
(5) AUTHORITY. The state or any agency, county, municipality, district, or instrumentality thereof. The term does not include state courts having jurisdiction over an authority.
(6) COLLOCATE or COLLOCATION. Either of the following:
a. Mounting or installing an antenna facility on a pre-existing structure.
b. Modifying a structure for the purpose of mounting or installing an antenna facility on that structure.
(7) COMMUNICATIONS FACILITY. The set of equipment and network components, including wires, cables, and associated facilities, used by a communications service provider.
(8) COMMUNICATIONS SERVICE. Any of the following: Cable service, as defined in 47 U.S.C. § 522; information service, as defined in 47 U.S.C. § 153; telecommunications service, as defined in 47 U.S.C. § 153; and wireless service.
(9) COMMUNICATIONS SERVICE PROVIDER. A provider of communications services.
(10) ELECTRIC PROVIDER. An entity listed in subsection (a) of Section 37-17-6.
(11) MICRO WIRELESS FACILITY. A small wireless facility that meets both of the following qualifications:
a. It is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height.
b. Any exterior antenna is no longer than 11 inches.
(12) NETWORK INTERFACE DEVICE. The telecommunications demarcation device and cross-connect point adjacent to the wireless facility or the structure supporting the wireless facility and demarcating the boundary with any wireline backhaul facility.
(13) POLE. A pole in the right-of-way that is or may be used in whole or in part by or for wireline communications, lighting, traffic control, signage, or a similar function, or for the collocation of small wireless facilities. The term does not include a building; billboard; monopole; tower, either guyed or self-supporting; or an electric distribution or transmission structure. Poles owned by an electric provider are excluded from this chapter under Section 37-17-6.
(14) SMALL WIRELESS FACILITY. A facility that meets each of the following conditions:
a. The facilities are any of the following:
Mounted on structures 50 feet or less in height, including the antennas.
Mounted on structures no more than 10 percent taller than other adjacent structures.
Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater.
b. Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume.
c. All other wireless equipment associated with the structure, including wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume.
d. The facilities do not require antenna structure registration under 47 C.F.R. Part 17.
e. The facilities are not located on tribal lands, as defined under 36 C.F.R. § 800.16.
f. The facilities do not result in human exposure to radio frequency in excess of the applicable safety standards specified in 47 C.F.R. § 1.1307(b).
(15) STRUCTURE. A pole; tower, as defined in 47 C.F.R. § 1.6100(b); base station, as defined in 47 C.F.R. § 1.6100(b); or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of wireless service.
(16) WIRELESS FACILITY. Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including both of the following: Equipment associated with wireless communications; and radio transceivers, antennas, coaxial, metallic, or fiber-optic cable located on, in, or under a pole or wireless support structure, or otherwise adjacent to such structures, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term does not include any of the following: The structure or improvements on, under, or within which the equipment is collocated; wireline backhaul facilities; or coaxial, metallic or fiber-optic cable that is between structures or that is otherwise not adjacent to a particular antenna or the structure supporting the antenna.
(17) WIRELESS INFRASTRUCTURE PROVIDER. Any person, including a person authorized to provide telecommunications service in the state, that builds or installs facilities for the provision of wireless service, but that is not either a wireless service provider or an electric provider.
(18) WIRELESS PROVIDER. A wireless infrastructure provider or a wireless service provider.
(19) WIRELESS SERVICE. Any services using licensed or unlicensed radio spectrum, including the use of Wi-Fi, whether at a fixed location or mobile, provided to the public. The term does not include services provided by an electric provider using wireless devices, facilities, or equipment in support of services of the electric provider.
(20) WIRELESS SERVICE PROVIDER. A person who provides wireless service.
(21) WIRELINE BACKHAUL FACILITY. An above-ground or underground wireline facility used to transport communications data or other electronic communications from a wireless facility network interface device to a communications network.
(Act 2021-5, §1.)
(a) An authority may not deny a wireless provider the right, as a permitted use subject to Section 37-17-3 and the authority’s requirements not in conflict with this chapter or a then-existing final order of the Federal Communications Commission (FCC), to do either of the following:
(1) Collocate, mount, or install small wireless facilities on or adjacent to existing, new, or replacement poles in the right-of-way.
(2) Install, modify, or replace its own poles, or, with the permission of the owner, a third party’s poles, associated with a small wireless facility, along, across, upon, and under the right-of-way controlled by the authority.
(b) For purposes of this section, any new or modified pole may not exceed the greater of either of the following:
(1) Ten feet in height above the tallest existing pole in place as of July 1, 2021, located within 500 feet of the new pole in the same right-of-way controlled by the authority.
(2) Fifty feet above ground level.
(c) The small wireless facilities and associated poles shall be installed and maintained in accordance with the authority’s requirements not in conflict with this chapter or a then-existing final order of the FCC and as not to obstruct or hinder the usual travel and public safety on the right-of-way and adjacent roads and bridges or obstruct the legal use of the right-of-way by utilities.
(d) A wireless provider may collocate a small wireless facility and install, maintain, modify, operate, and replace a pole that exceeds these height limits along, across, upon, and under the right-of-way, subject to applicable zoning regulations or other applicable requirements of the authority.
(Act 2021-5, §2.)
(a) Subject to the limitations established in this chapter, small wireless facilities and associated poles are not subject to zoning review or approval if they are located in the right-of-way under the control of an authority and otherwise comply with this chapter and a then-existing final order of the Federal Communications Commission.
(b) Within 10 days of receiving an application, an authority shall determine and notify the applicant in writing whether the application is complete. If the authority determines the application is incomplete, the authority shall specifically identify the missing information and specify the requirement creating the obligation to submit the missing documents or information in the written notice. If the written notice of incompleteness is provided within 10 days of receiving the application, the processing deadlines in subsection (c) shall restart at zero on the date the applicant submits all the documents and information identified by the authority to render the application complete.
(c) Applications shall be processed on a nondiscriminatory basis. Applications not requiring a written notice of incompleteness shall be approved or denied within the following: 60 days of receipt of an application involving collocation of a small wireless facility using an existing structure; and 90 days of receipt of an application involving deployment of a small wireless facility using a new or replacement pole. For those applications requiring a resubmittal following the delivery of a written notice of incompleteness, the time limitations for approval or denial established in this subsection shall begin on the first date after receipt of all the documents and information identified by the authority. The processing deadline may be tolled by agreement of the applicant and the authority. If an authority fails to act on an application within the review period provided for in this subsection, the applicant may provide the authority, by certified mail, a formal notice stating that unless the authority approves or denies the application within 20 days from receipt of the notice, the application and any associated permits will be deemed granted by operation of law on the twenty-first day from receipt of the notice.
(d) An authority shall approve an application if it complies with the authority’s requirements for deploying small wireless facilities and associated poles in the right-of-way that are written, generally applicable, and adopted in advance.
(e) An applicant seeking to collocate, mount, or install small wireless facilities or to install, modify, or replace an associated pole within the jurisdiction of a single authority may file a consolidated application for small wireless facilities and associated poles, provided that the consolidated application shall be for a geographic area no more than two miles in diameter. The approval of the consolidated application shall apply to the collocation, mounting, or installation of the multiple small wireless facilities or associated poles. The denial of one or more single small wireless facilities or associated poles that are part of a consolidated application may not constitute a reason for denying the remaining small wireless facilities or associated poles included in the consolidated application. A consolidated application that includes a request to install, modify, or replace a pole shall be processed in accordance with the procedures and shall be subject to the 90-day review period established in this chapter.
(f) An authority may not require an application or any other approval or charge fees or rates for any of the following that are in compliance with any applicable codes:
(1) Routine maintenance conducted on small wireless facilities by the holder of an approved application for the small wireless facilities, provided the right-of-way is restored to the pre-maintenance condition.
(2) The replacement of small wireless facilities that are operated by the holder of an approved application for the small wireless facilities, are substantially similar or the same size or smaller, and still qualify as a small wireless facility.
(3) The deployment, installation, placement, maintenance, operation, or replacement of micro wireless facilities that are suspended on cables that are strung between existing poles by an entity with a franchise agreement or other valid authorization which allows the entity to deploy communications facilities in the rights-of-way.
(g) Notwithstanding subsection (f), the deployment of a micro wireless facility that requires the installation, placement, or replacement of any ground-mounted facilities in the right-of-way shall be subject to any applicable authority permitting processes.
(h) Notwithstanding subsection (f), an authority may require a permit for work that requires excavation or the closure of sidewalks or vehicular lanes or that otherwise hinders the usual travel or public safety on the right-of-way or adjacent roads and bridges or obstructs the legal use of the right-of-way by utilities. The permit shall be issued to the applicant on a non-discriminatory basis upon terms and conditions applied to any other person’s activities in the right-of-way that require excavation or the closure of sidewalks or vehicular lanes.
(i) In the event of any action under subsection (f), the roads, bridges, and rights-of-way, to the extent practicable in the reasonable judgment of the authority, shall be restored to the condition prior to the action conducted by the entity.
(j)(1) As part of the application process, an authority may require a small wireless facility to be fully operational within 360 days after the date the last or final permit is issued, subject to the availability of wireline backhaul, electric power, or other matters beyond the control of the applicant. The authority and the applicant may agree to extend the period.
(2) If a small wireless facility is not operational in the time established under subdivision (1), the authority, after providing 20-day prior written notice and reasonable opportunity to cure, may do either or both of the following:
a. Cancel the authority’s approval of the small wireless facility or any associated new pole.
b. Cause the removal of the small wireless facility or any associated new pole by the wireless provider at the wireless provider’s sole expense and in a time the authority specifies after providing prior written notice to the wireless provider.
(Act 2021-5, §3.)
(a) Subject to Sections 37-17-2, 37-17-3, and 37-17-5, an authority shall allow the collocation of small wireless facilities on existing poles, other than any poles owned by an electric provider, owned or controlled by an authority and the mounting or installation of small wireless facilities on replacement poles, other than any poles owned by an electric provider, owned or controlled by an authority on nondiscriminatory terms and conditions that comply with this chapter.
(b) For structures owned or controlled by an authority, an authority may provide a wireless provider the option of either having the wireless provider perform any necessary make-ready work through the use of qualified contractors or having the authority perform any necessary make-ready work at the sole cost of the wireless provider. If the authority performs the make-ready work, the authority shall provide a good faith estimate of the make-ready work, including any pole replacement costs. Make-ready work shall be completed within 60 days after a written acceptance of the good faith estimate by the applicant.
(c) On completion of the make-ready work performed by an authority at the request of a wireless provider, the wireless provider, within 60 days of invoicing, shall reimburse the authority for the authority’s actual and documented cost of the make-ready work, including labor and materials. The cost invoiced to the wireless provider may not exceed the good faith estimate by more than 10 percent.
(Act 2021-5, §4.)
(a) Application fees for permits for small wireless facilities shall be nondiscriminatory and may not exceed the following:
(1) A five hundred dollar ($500) non-recurring fee for a single up-front application for collocation that includes up to five small wireless facilities, with an additional one hundred dollars ($100) for each small wireless facility beyond five in a consolidated application.
(2) A two hundred fifty dollar ($250) non-recurring fee for the modification or replacement of an existing pole together with the mounting or installation of an associated small wireless facility in the right-of-way.
(3) A one thousand dollar ($1,000) non-recurring fee for the installation of a new pole together with the mounting or installation of an associated small wireless facility in the right-of-way.
(b) If an authority elects to charge for access to the right-of-way or collocation on poles owned or controlled by the authority in the right-of-way for small wireless facilities, the rates shall be nondiscriminatory and may not exceed one hundred dollars ($100) per small wireless facility per year for access to and use of the right-of-way and one hundred seventy dollars ($170) per year per small wireless facility collocated, mounted, or installed on or adjacent to poles owned or controlled by an authority.
(Act 2021-5, §5.)
(a) This chapter does not apply to any poles or structures owned by an electric provider, whether used for lighting, distribution, transmission, or otherwise. This chapter also does not apply to the equipment, easements, or business activities of any of the following:
(1) A utility, as defined under Section 37-4-1.
(2) Any board or public corporation incorporated or organized for the acquisition or operation of an electric distribution system under Chapter 50 of Title 11, including, but not limited to, Sections 11-50-490 through 11-50-506, and any city or town that shall have established and is operating a system for the distribution of electric power and energy pursuant to Article 1 of Chapter 50 of Title 11.
(3) An electric cooperative incorporated or organized under Chapter 6.
(4) An electric membership corporation incorporated or organized under Chapter 7.
(5) The parents, affiliates, or subsidiaries of any of the entities described in this section, provided they are not acting as a wireless provider.
(b) Nothing in this chapter shall affect or alter, or be construed to affect or alter, the terms of any pole attachment agreement entered into between or among a wireless provider and an electric provider.
(c) When a wireless provider collocates, installs, or mounts a small wireless facility pursuant to a pole attachment agreement with an electric provider, an authority may only restrict the wireless provider’s access to the right-of-way as described in Section 37-17-2. In such a situation, the authority shall comply with the application process set forth in Section 37-17-3, and any fees and rates paid to the authority by the wireless provider are subject to the limits set forth in Section 37-17-5.
(Act 2021-5, §6.)
(a) An authority exercising its authority established by this chapter may not be subject to suit or otherwise be responsible for the alleged negligence, wantonness, willfulness, recklessness, or any other claims for alleged wrongful acts or omissions of wireless providers or their officers, agents, contractors, subcontractors, employees, or other representatives relative to the design, location, placement, construction, maintenance, and operation of small wireless facilities in an authority’s right-of-way or on an authority’s infrastructure.
(b) Wireless providers shall indemnify authorities and their elected and appointed officials, employees, and authorized agents, or their insurers, and hold them harmless from and against any and all claims, demands, actions, suits, or proceedings in equity or law asserted by third parties for damages, losses, liabilities, or costs of any kind, including, without limitation, reasonable attorney’s fees, as and when incurred that arise from a material breach by a wireless provider or any of its officers, employees, volunteers, or authorized agents of any obligations set forth in this chapter; or for any claims for the alleged negligence, wantonness, willfulness, recklessness, or claims of any other alleged wrongful acts or omissions of wireless providers or their officers, agents, contractors, subcontractors, employees, or other representatives relative to the design, location, placement, construction, maintenance, and operation of small wireless facilities in an authority’s rights-of-way or on an authority’s infrastructure. A wireless provider has no obligation to indemnify or hold harmless against any liabilities and losses due to or caused by the sole negligence or willful misconduct of an authority or its employees or agents.
(Act 2021-5, §7.)
(a) Except as authorized under subsection (b), during the period in which the small wireless facilities of a wireless provider are located on or attached to the authority’s assets, including its poles, or rights-of-way, the authority may require a wireless provider to do both of the following:
(1) Carry, at the wireless provider’s sole cost and expense, the following types of third-party insurance:
a. Property insurance for the replacement cost of all small wireless facilities.
b. Workers’ compensation insurance, as required by law.
c. Commercial general liability insurance of at least two million dollars ($2,000,000) per occurrence, with respect to the wireless providers activities in, on, or around the authority improvements or rights-of-way, including coverage for bodily injury and property damage.
d. Environmental insurance.
(2) Include the authority and its officers, officials, agents, contractors, and employees as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the authority in a commercial general liability policy as reasonably required by the authority.
(b) In lieu of the requirements of subdivisions (1) and (2) of subsection (a), during the period in which the small wireless facilities of a wireless provider are located on or attached to the authority’s assets, including its poles, or rights-of-way, the authority may allow the wireless provider to provide a certificate of self-insurance, acceptable to the authority, that demonstrates that the wireless provider has adequate resources to self-insure in the amounts set forth in subdivision (a)(1).
(Act 2021-5, §8.)
(a) An authority may order a wireless provider to remove, relocate, change, or otherwise alter the wireless provider’s small wireless facility or pole for any of the following reasons, so long as all other occupiers of the same right-of-way remove, relocate, change, or otherwise alter their facilities under the same conditions as the wireless provider:
(1) To perform construction, repair, maintenance, or installation of an authority improvement in or upon the right-of-way or the operations of the authority in or upon the right-of-way.
(2) When the small wireless facility or pole is interfering with or adversely affecting the proper operation of an authority pole, traffic signal, or other equipment in the right-of-way.
(3) To comply with traffic and public safety codes.
(b) Within 90 days of the issuance of a written order from an authority, a wireless provider, at its own expense, shall temporarily or permanently protect, support, disconnect, remove, relocate, change, or otherwise alter the position of a small wireless facility or pole within the right-of-way.
(c) When an authority orders a wireless provider to remove, relocate, change, or alter the position of a small wireless facility or pole within the right-of-way, the authority shall use its best efforts to give the wireless provider a reasonably equivalent alternative location.
(d) If a wireless provider has not complied with an order under subsection (a) within 90 days of the issuance of a written order, the authority, without further notice to the wireless provider and at sole cost and expense to the wireless provider, may relocate any small wireless facility or pole as ordered by the authority.
(e) Notwithstanding any other provision of this section, an authority may remove a small wireless facility or pole if the authority determines that the removal is necessary to address an imminent risk to public safety. If circumstances permit, the authority shall provide notice to the wireless provider and an opportunity for the wireless provider to move its own small wireless facility or pole to address the risk. An authority that removes a facility or pole under this subsection shall promptly notify the wireless provider of the removal.
(Act 2021-5, §9.)
(a) Nothing in this chapter shall be interpreted to allow any entity to provide communications services without compliance with all laws applicable to communications service providers. Nor shall this chapter be interpreted to authorize the collocation, installation, placement, maintenance, or operation of any communications facility, including a wireline backhaul facility, in the rights-of-way, other than a small wireless facility or associated pole.
(b) Except as it relates to small wireless facilities subject to the permit and fee requirements established pursuant to this chapter, and except as it relates to any activities of an electric provider, and except as it relates to regulations or requirements on communications service specifically established by the constitution or by state law, local law enacted by the Legislature, or federal law, an authority may not otherwise adopt or enforce regulations or requirements on the placement, operation, or maintenance of communications facilities by a communications service provider authorized to be in the rights-of-way; or otherwise impose or collect any additional or separate tax, fee, or charge for any service existing on July 1, 2021, or for the provision of additional communications services provided by a communications service provider that is authorized to be in the rights-of-way.
(Act 2021-5, §10.)
This chapter does not apply to an authority that has entered into an agreement with a wireless provider, or that has adopted an ordinance or other resolution, relating to the permitting of small wireless facilities and poles in the rights-of-way of the authority before May 1, 2021. In order to remain exempt from this chapter, an authority shall modify the local agreement, ordinance, or resolution to be in compliance with applicable federal laws, orders, or regulations within 90 days from a final non-appealable federal order, rule, or regulation relating to small wireless facilities.
(Act 2021-5, §11.)
(a) Where this chapter is divergent with any regulations, rulings, or guidance provided by the Federal Highway Administration, the Alabama Department of Transportation shall follow the Federal Highway Administration requirements.
(b) Notwithstanding any provision of this chapter to the contrary, the Alabama Department of Transportation may deny any application for placement, modification, or maintenance of wireless facilities, on new or pre-existing structures, within the department’s right-of-way where the department determines that the placement or maintenance activity would impede the operation or safety of a transportation facility. Small wireless facilities shall not be permitted on any interstate right-of-way.
(Act 2021-5, §12.)
For the purposes of this chapter, the following terms shall have the following meanings:
(1) GOVERNMENTAL ENTITY. The state or any political subdivision thereof, or any executive or legislative department, unit, agency, board, commission, or authority of the state, or any political subdivision, or any public corporation, authority, agency, board, commission, or other governmental entity controlled by the state or by any political subdivision of the state.
(2) UTILITY SERVICE. Electrical, natural gas, or propane gas service provided to an end user.
(Act 2021-336, §1.)
Except as otherwise provided in this chapter, no governmental entity may adopt an ordinance, resolution, regulation, or policy that prohibits, or has the effect of restricting, a person’s or entity’s ability to use a utility service of a provider that is authorized to do business in this state.
(Act 2021-336, §2.)
Nothing in this chapter shall be construed as affecting a governmental entity’s authority to do the following:
(1) Exercise existing police powers to review and approve an application before issuing building permits or to otherwise enforce building, fire, and other public safety codes or subdivision regulations. Provided, however, no governmental entity may deny a building permit or subdivision regulation application based solely on the type of utility service proposed for the project.
(2) License or permit a provider of a utility service, or regulate the use of rights-of-way by a provider of a utility service, in accordance with existing law. Provided, however, no governmental entity may deny a license or permit based solely on the type of utility service provided by the provider.
(3) Regulate the permitting, safe handling, storage, or use of propane gas.
(Act 2021-336, §3.)
Nothing in this chapter shall be deemed to affect the rules of the Alabama Public Service Commission adopted in accordance with its powers under this title. This section does not limit or restrict the power or authority of a utility to take action pursuant to any rules of the commission or the practices established under the rules.
(Act 2021-336, §4.)
Nothing in this chapter shall be deemed to amend, alter, modify, or in any way affect Chapter 14.
(Act 2021-336, §5.)
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