# Title 49 — Public Utilities

## Chapter 49-21 — Telecommunications Companies

### § 49-21-01. Definitions.

As used in this chapter, unless the context otherwise requires:
1. "Access" means telecommunications services to connect a telecommunications
customer or end user with a telecommunications company that allows for the
origination or the termination, or both, of WATS, 800, and message toll
telecommunications services and private line transport services.
2. "Competitive local exchange company" means any telecommunications company
providing local exchange service, other than an incumbent local exchange carrier,
whether by its own facilities, interconnection, or resale.
3. "Eligible telecommunications carrier" means a telecommunications company
designated under section 214(e) of the federal act as eligible to receive universal
service support in accordance with section 254 of the federal act.
4. "Essential telecommunications service" means the following services:
a. Switched access;
b. Installation of the service connection for other essential services from the end
user's premises to the local exchange network; and
c. Primary flat rate residence basic telephone service including the following service
elements:
(1) Billing and collecting of the telecommunications company's charges for the
service.
(2) Primary directory listing.
(3) Access to directory assistance.
(4) Access to emergency 911 service and emergency operator assistance in
local exchange areas in which emergency 911 service is not available.
(5) Except as provided in section 49-02-01.1, mandatory, flat-rate extended
area service to designated nearby local exchange areas.
(6) Transmission service necessary for the connection between the end user's
premises and the local exchange central office switch including a trunk
connection that has inward dialing and necessary signaling service such as
touchtone used by end users for the service.
5. "Federal act" means the federal Communications Act of 1934, as amended by the
federal Telecommunications Act of 1996 [47 U.S.C. 151 et seq.].
6. "Incumbent local exchange carrier" means a telecommunications company that meets
the definition of section 251(h) of the federal act.
7. "Inside wire" and "premise cable" mean the telecommunications wire on the
customer's side of a demarcation point or point of interconnection between the
telecommunications facilities of the telecommunications company and the customer or
premise owner established under title 47, Code of Federal Regulations, part 68,
section 68.105.
8. "Interexchange telecommunications company" means a person providing
telecommunications service to end users located in separate local exchange areas.
9. "Internet protocol-enabled service" means any service, capability, functionality, or
application that uses internet protocol or any successor protocol and enables an end
user to send or receive voice, data, or video communication in internet protocol format
or a successor format.
10. "Local exchange area" means a geographic territorial unit established by a
telecommunications company for the administration of telecommunications services as
approved and regulated in accordance with chapter 49-03.1.
11. "Management costs" means the reasonable direct actual costs a political subdivision
incurs in exercising its police powers over the public rights of way.
12. "Mutual telephone company" means a telephone cooperative organized and operating
subject to the provisions of this chapter, and such a cooperative shall also be subject

to the general law governing cooperatives, except where such general law is in conflict
with this chapter.
13. "Nonessential telecommunications service" means any telecommunications service,
other than those essential telecommunications services listed in subsection 4 that a
customer has the option to purchase either in conjunction with or separate from any
essential telecommunications service.
14. "Price" means any charge set and collected by a telecommunications company for any
telecommunications service offered by it to the public or other telecommunications
companies.
15. "Private line transport service" means a telecommunications service to a customer
over a circuit dedicated to the customer's exclusive use, within a local exchange area,
or between or among local exchanges. Private line transport service includes services
to customers who are end users and services to telecommunications companies.
16. "Public right of way" means the area on, below, or above a public roadway, highway,
street, bridge, cartway, bicycle lane, or public sidewalk in which a political subdivision
has a legal interest, including other dedicated rights of way for travel purposes, utility
easements, and all the area within seventy-five feet [22.86 meters] of the centerline of
any county or township highway right of way over which a board of county
commissioners or a board of township supervisors has control under section 24-01-42.
The term does not include the airwaves above a public right of way with regard to
cellular or other wireless telecommunications or broadcast service or utility poles
owned by a political subdivision or a municipal utility or a telecommunications
company, in whole or part.
17. "Rural telephone company" means a telecommunications company that meets the
definition of section 153(37) of the federal act.
18. "Service element" means a telecommunications function or service component that is
not useful to the user unless it is combined with one or more other telecommunications
functions or service components.
19. "Switched access" means access to include:
a. Local exchange central office switching and signaling;
b. Operator and recording intercept of calls;
c. Termination of end user lines in the local exchange central office;
d. The carrier common line charge for the line between the end user's premises and
the local exchange central office;
e. Billing and collection recording for interexchange carriers to which the local
exchange carrier provides access service; and
f. Telecommunications service, including connections, provided to allow
transmission service and termination between an interexchange company's
premises and the local exchange central office switch for the origination or
termination of the interexchange company's switched telecommunications
services.
20. "Telecommunications company" means a person engaged in the furnishing of
telecommunications service within this state.
21. "Telecommunications service" means the offering for hire of telecommunications
facilities, or transmitting for hire telecommunications by means of such facilities
whether by wire, radio, lightwave, or other means.
22. "Voice over internet protocol service" means any service that enables real time,
two-way voice communication originating from or terminating at the user's location in
internet protocol or a successor protocol, utilizes a broadband connection at the user's
location, and permits a user to receive a call that originates on the public switched
telephone network and to terminate a call to the public switched telephone network.
### § 49-21-01.1. Inapplicability of provisions of chapter.

Telecommunications service does not include and the provisions of this title do not apply to:
1. The one-way transmission of radio or television signals for broadcast purposes,
including the one-way transmission of videoprogramming or other programming

service by a cable system as well as subscriber interaction, if any, which is required for
the selection of such videoprogramming or other programming service.
2. A hospital, hotel, motel, or similar place of temporary accommodation owning or
operating message switching or billing equipment solely for the purpose of reselling
telecommunications services to its patients or guests.
3. Telegraph service.
4. Except as provided in section 49-21-01.5, home, business, and coinless or
coin-operated public or semipublic telephone terminal equipment and the use of such
equipment.
5. The lease of telecommunications equipment by a telecommunications company from a
person whose business is the leasing or sale of such equipment.
6. Billing and collection services.
7. Inside wire and premise cable installation and maintenance.
8. Directory services that are not essential.
9. Private line transport service.
10. Services or facilities provided by a system or institution of higher education to:
a. Institution employees or students at institution facilities or housing owned or
leased by the institution;
b. Affiliated organizations, including alumni operations and research foundations,
formed for the purpose of supporting the institution or leased by the institution
and offering products and services intended primarily for the benefit of institution
employees, students, or guests;
c. Other persons or entities located on property owned or leased by the institution
and offering products and services intended primarily for the benefit of institution
employees, students, or guests;
d. Casual users using the institution's facilities for conferences, seminars and other
similar special events, and broadcasters of athletic events;
e. Occupants of technology parks, or business incubators receiving secretarial or
business startup support in facilities owned or leased by the institution during a
business startup phase for a term not to exceed four years or until August 1,
2005, whichever is later; and
f. Educational, governmental, and nonprofit users of system or institution interactive
videoconferencing site facilities and associated network services.
Institutions may not unreasonably restrict access by a telecommunications company to
institution facilities for the purpose of furnishing telecommunications services to
residents in institution housing or to other persons or entities leasing institution
facilities, except institutions may limit access to residence halls. Institutions may
require reasonable payment for and adopt reasonable restrictions on the use of
institution telecommunications infrastructure to avoid service interruptions or increased
maintenance or administrative burdens.
### § 49-21-01.2. Exemption - Rate regulation.

Except as provided for in this chapter and sections 49-02-01.1, 49-02-21, 49-02-22, and
49-04-02.1, telecommunications companies and all telecommunications services are exempt
from the provisions of chapters 49-02, 49-04, 49-05, and 49-06. Telecommunications companies
and services are not subject to rate or rate of return regulation. Any telecommunications
company may elect not to be subject to the provisions of this section and section 49-21-01.3,
and to be subject to rate and rate of return regulation, by filing an election with the commission
in writing. For telecommunications companies with over fifty thousand subscribers, the election
not to be exempt from rate and rate of return regulation is a one-time, irrevocable election.
Notwithstanding an election filed under this section, a telecommunications company is not
obligated to pay any fee for filing a price schedule or tariff.

### § 49-21-01.3. Certain price changes from surcharges - Essential telecommunications

services.
1. This section does not prohibit the lowering of a price of an essential service based on
reasonable business practices in a competitive environment except a price change
may not be anticompetitive or otherwise in violation of antitrust or unfair trade practice
laws.
2. Whenever a price change provided for in this section is less than three percent of the
existing price, notwithstanding any time limitations in this section, a
telecommunications company may accumulate such changes in price subject to the
following conditions:
a. Price increases may be accumulated up to a percentage total of five percent.
b. Price decreases may be accumulated only to the extent that there is an offsetting
accumulated price increase of an equal or greater percentage. Accumulated price
decreases may never exceed accumulated price increases.
c. Price decreases may be accumulated only for two years beginning January first
of the year in which the change is allowed.
d. Accumulated price increases may be implemented at the discretion of the
telecommunications company.
e. The effective date of implementation of an accumulated price change may be
prospective only, and in accordance with the filing requirements of section
49-21-04.
3. This chapter does not prohibit an incumbent local exchange carrier from deaveraging
local exchange service prices provided the incumbent local exchange carrier agrees to
amend its commission-approved interconnection agreements to allow for deaveraged
interconnection prices effective concurrently with the deaveraged retail prices.
### § 49-21-01.4. Purchase of essential telecommunications services.

Customers of any telecommunications company that provides essential telecommunications
services must be permitted to purchase essential telecommunications services separate from all
other telecommunications services. A telecommunications company may disconnect local
exchange or essential telecommunications services only pursuant to rules adopted by the
commission.
### § 49-21-01.5. Access code number usage.

A person who, in the ordinary course of operations, makes telephones available to the
public or to transient users of that person's premises, for intrastate telephone calls using a
provider of operator services shall ensure that each of its telephones presubscribed to a
provider of operator services allows the consumer to use "toll free '8XX'", "950", or "101XXXX
0+" access code numbers to obtain access to the provider of operator services desired by the
consumer. Each such person shall ensure that no charge to the consumer for using a "toll free
'8XX'", "950", or "101XXXX 0+" access code number is greater than the amount charged for
calls placed using the presubscribed provider of operator services.
### § 49-21-01.6. Call identification services - Charges prohibited - Notice - Exceptions.

1. Any telephone call identification service offered in this state by a telecommunications
company must allow a caller on a per-call and a per-line basis to withhold display of a
caller's telephone number from the telephone instrument of the individual receiving the
telephone call placed by the caller.
2. A telecommunications company offering call identification services may not charge any
person who requests that the call identification services be blocked on a per-call basis.
Per-line blocking must be provided without charge for residential customers and
business customers with special needs, such as law enforcement and domestic
violence agencies.

3. A telecommunications company offering a call identification service shall notify its
subscribers that their calls may be identified to a called party at least thirty days before
the service is offered.
4. This section does not apply to:
a. An identification service that is used within the same limited system, including a
Centrex, Centron, or private branch exchange (PBX) system, as the recipient
telephone.
b. An identification service that is used on a public agency's emergency telephone
line or on a line that receives the primary emergency telephone number (911).
c. An identification service provided in connection with legally sanctioned call tracing
or tapping procedures.
d. An identification service provided in connection with any "700", "800", or "900"
access code telecommunications service, or any voice or data store and forward
service.
e. Any other service that, after investigation by the commission, the commission
finds that a nondisclosure or similar agreement will protect the privacy interests of
a calling party.
### § 49-21-01.7. Powers in general.

The commission has the power to:
1. Investigate all methods and practices of telecommunications companies.
2. Require telecommunications companies to conform to the laws of this state and to all
rules, regulations, and orders of the commission not contrary to law.
3. Require reports as to rates, prices, and terms and conditions of service in effect and
used by the company, and all other information deemed relevant and necessary by the
commission in the exercise of its authority.
4. Compel obedience to its lawful orders by proceedings of mandamus or injunction or
other proceedings, in the name of the state, in any court having jurisdiction of the
parties or of the subject matter.
5. Hold hearings on good cause being shown, upon notice and subject to the provisions
of chapter 28-32.
6. Employ and fix the compensation of experts, engineers, auditors, attorneys, and other
such assistance for complaints, investigations, and other proceedings relating to
telecommunications companies. The expense of any hearings, and the compensation
and actual expenses of any employees of the commission while engaged upon any
such hearings must be paid by the telecommunications company involved in such
hearings. The commission shall ascertain the exact cost and expenditure and render a
bill for payment. The bill must be delivered by electronic or paper mail or personal
delivery to the managing officer of the telecommunications company. Upon receipt of
the bill for payment, the telecommunications company has thirty days within which to
pay the amount billed. All amounts not paid within thirty days after receipt of the bill
thereafter draw interest at the rate of six percent per annum. If the telecommunications
company disputes the amount of the bill, the company shall request a hearing.
Amounts collected by the commission under this subsection must be deposited in a
special account within the public service commission.
7. Act upon an application for a certificate of public convenience and necessity under
chapter 49-03.1 consistent with section 253 of the federal act, provided a
telecommunications company is not required to obtain a certificate of public
convenience and necessity to resell telecommunications services.
8. Mediate or arbitrate agreements for interconnection, services, or network elements
under sections 251 and 252 of the federal act.
9. Approve or reject agreements for interconnection, services, or network elements under
sections 251 and 252 of the federal act.
10. Receive and approve or reject a statement of generally available terms under section
252(f) of the federal act.

11. Determine whether to terminate a rural telephone company's exemption under section
251(f) of the federal act.
12. Designate telecommunications companies as eligible telecommunications carriers to
receive universal service support under sections 214 and 254 of the federal act.
13. Designate geographic service areas for the purpose of determining universal service
obligations and support mechanisms under the federal act.
14. Investigate and resolve numbering issues relating to assignment of NII dialing codes
and resolve numbering resource conservation administration and area code
assignment issues in accordance with the federal communications commission's
numbering resource orders. The commission's jurisdiction with regard to numbering
resource conservation administration is limited to those prefixes that are unassigned
on January 1, 2005.
15. Adopt rules consistent with state law as are necessary to carry out the powers in
subsections 7 through 13 provided the rules may not impose obligations on a
telecommunications company that are greater than obligations imposed under the act.
16. Grant suspensions or modifications under section 251(f) of the federal act.
### § 49-21-01.8. Eligible telecommunications company requirements.

A telecommunications company may not be an eligible telecommunications carrier unless
the company offers all services supported by federal universal service mechanisms throughout
the study area.
### § 49-21-01.9. Voice over internet protocol service and internet protocol-enabled service.

1. Notwithstanding any other law, a state entity or political subdivision of the state may
not by rule, order, or other means directly or indirectly regulate the entry, rates, terms,
or conditions for internet protocol-enabled or voice over internet protocol service.
2. Voice over internet protocol service is subject to the following:
a. Any required assessments under any state high-cost universal service fund.
b. Any required assessment of 911 or E911 fees.
c. Any required surcharge under section 54-44.8-08.
d. Any required tax under chapter 57-34.
3. Nothing in this section affects or modifies:
a. Any applicable wholesale tariff or any commission authority to implement or
enforce any rights, duties, or obligations of any party related to wholesale
services.
b. Any entity's obligations or rights or commission authority under sections 251 and
252 of the federal Communications Act of 1934 [47 U.S.C. 251 and 252].
c. Any commission jurisdiction over intrastate switched access rates, terms and
conditions, including the implementation of federal law with respect to intercarrier
compensation or existing commission authority to address or affect the resolution
of disputes regarding intercarrier compensation.
d. Any obligation for the provision of video or cable service by any entity under
applicable law.
e. Any commission jurisdiction or authority to address federal high-cost fund or
federal universal service fund issues.
f. Any obligation to offer essential telecommunications services.
g. Authority to enforce criminal or civil laws, including consumer protection and
unfair or deceptive trade practice laws under title 51, which apply generally to the
conduct of business.
h. Authority of a political subdivision of the state to exercise its zoning power under
chapters 40-47, 58-03, or 11-33.
i. Any obligation arising out of chapter 49-23.

### § 49-21-02. Telecommunications companies - Common carriers - Public policy.

All persons providing telecommunications service within this state shall be common carriers
and are hereby declared to be affected with a public interest and subject to regulation and
general supervision by the commission. Among the purposes to be served by such regulation
and supervision are:
1. To make available to all people of this state modern and efficient telecommunications
services at the most economic and reasonable cost.
2. To allow the development of competitive markets for telecommunications services
where such competition does not unreasonably distract from the efficient provision of
telecommunications services to the public, and to lessen regulation in whole or in part
of those telecommunications services which become subject to effective competition.
3. To establish and maintain reasonable charges for telecommunications services without
unreasonable discrimination, or unfair or destructive competitive practices.
4. To ensure that regulated charges do not include the costs of unregulated activities.
5. To encourage the establishment and maintenance of a strong telecommunications
industry.
### § 49-21-02.1. Authority to exempt from regulation.

Repealed by S.L. 1999, ch. 411, § 13.
### § 49-21-02.2. Cross-subsidization prohibited.

Revenues obtained from essential telecommunications services may not be used to
subsidize or otherwise give advantage to a telecommunications company in its nonessential
telecommunications services.
### § 49-21-02.3. Directors, trustees, officers, and managers - Immunity from civil liability.

Directors, trustees, and officers of mutual telephone companies, and the manager of a
mutual telephone company who is the person most responsible for carrying out the policies and
directives of the trustees, officers, or board of directors, are immune from civil liability for any act
or omission relating to their service or function as a director, trustee, officer, or manager, unless
the act or omission constitutes gross or willful negligence or gross or willful misconduct.
### § 49-21-02.4. Unauthorized telecommunications service.

1. A telecommunications company shall comply with the provision of title 47, Code of
Federal Regulations, part 64, subpart k, in effect on January 1, 2001, regarding
changes in a subscriber's selection of a provider of telecommunications service. The
commission shall enforce the provisions of title 47, Code of Federal Regulations,
part 64, subpart k, in effect on January 1, 2001.
2. A telecommunications company may not initiate an intrastate telecommunications
service to a subscriber without authorization. A subscriber for whom an intrastate
telecommunications service is initiated without authorization is absolved from liability
for charges imposed by the service provider if the subscriber notifies the service
provider within thirty days after the first billing for the unauthorized service. Upon being
informed by the subscriber that an unauthorized initiation of service has occurred, the
telecommunications company providing the service shall cancel the service, inform the
subscriber of the thirty-day absolution period, and refund any payments made by the
subscriber for the service during the absolution period. The telecommunications
company may rebill for the service provided before cancellation if the company
determines the service initiation was authorized. The remedies provided in this section
are in addition to any other remedies available at law.
3. If the commission finds an emergency exists that requires ex parte action, the
commission may issue a cease and desist order without prior notice against a
telecommunications company that the commission has reason to believe is in violation
of this section or title 47, Code of Federal Regulations, part 64, subpart k, in effect on
January 1, 2001. The cease and desist order must be:

a. Directed against the telecommunications company's marketing of
telecommunications service, not the company's provision of service to current
customers;
b. Accompanied by service on the telecommunications company of a commission
order opening an investigation or a formal complaint regarding the company's
compliance with this section; and
c. Accompanied by service on the telecommunications company of a notice of
opportunity to be heard on the cease and desist order within fifteen days of
issuance of the cease and desist order.
4. A telecommunications company that violates this section is deemed to have committed
an unlawful practice in violation of section 51-15-02 and is subject to all the provisions,
procedures, and penalties of chapter 51-15.
### § 49-21-03. Articles of incorporation - Telephone - Telegraph.

Repealed by S.L. 1985, ch. 515, § 26.
### § 49-21-04. Price schedules filed with the commission.

Each telecommunications company shall file with the commission in the form and detail as
the commission may require, subject to considerations for maintaining trade secrets or
commercial confidentiality:
1. Schedules showing all prices for essential services, including those prices set by
contract and the individual unbundled or unpackaged price of any essential service, in
effect at the time for any essential telecommunications service rendered by the
telecommunications company within this state;
2. All rules that in any manner affect the prices charged or to be charged for essential
service; and
3. All new prices and any price increases of essential services at least twenty days
before the effective date of the new price or price increase, unless the commission
upon application and for good cause allows a lesser time. A price or price change is
not effective until filed in accordance with this chapter.
### § 49-21-04.1. Maximum and minimum rates - Changes.

Repealed by S.L. 2005, ch. 399, § 9.
### § 49-21-05. Schedule of prices to be available for public inspection.

The commission may require any telecommunications company to make available to the
public, subject to considerations for maintaining trade secrets or commercial confidentiality, a
printed or electronic schedule of prices for telecommunications services offered by the
telecommunications company as the commission may deem necessary.
### § 49-21-06. Complaint against prices.

There is a rebuttable presumption that prices for essential telecommunications services in
effect on July 1, 1989, are fair and reasonable. Any person may complain to the commission, or
the commission on its own motion may complain and begin investigation, of the
reasonableness, fairness, or adequacy of any price for any essential or nonessential service.
Any notice and hearing by the commission will be provided in accordance with chapter 28-32
and the commission can only set aside, after notice and hearing, any price for a service it
investigates pursuant to this section which it determines to be unreasonable, unfair, or
inadequate. This section must be construed to authorize the commission to set aside any
unreasonable, unfair, or inadequate price set by a telecommunications company for the
connection between facilities of two or more telecommunications companies and for the transfer
of telecommunications, provided this section may not be construed to set aside any price set by
contract between telecommunications companies and in effect on July 1, 1989, upon complaint
by one of the parties to the contract that the price is unreasonably high.

### § 49-21-07. Discrimination unlawful.

It shall be unlawful for any telecommunications company to make any unjust or
unreasonable discrimination in prices, practices, or service for or in connection with like
telecommunications service, or give any undue or unreasonable preference or advantage to any
person or telecommunications company or to subject any person or telecommunications
company to any undue or unreasonable prejudice or disadvantage in the service rendered by it
to the public or to a telecommunications company, or to charge or receive for any such service
rendered, more or less than the prices provided for in the schedules then on file with the
commission. A telecommunications company providing intrastate interexchange message toll
services shall charge uniform prices on all routes where it offers such services. A
telecommunications company providing local exchange service and message toll and private
line services shall cover, in its price for message toll and private line services, the price of
providing access service in its own exchanges. Nothing in this chapter shall be construed to
prevent any telecommunications company from offering or providing volume or other discounts
based on reasonable business practices; from introducing promotional offerings, including
special incentives, competitive discounts, and price waivers; from passing through any state,
municipal or local taxes or fees to the specific geographic areas from which the taxes or fees
originate; from contracting with a retail subscriber to provide telecommunications services at
prices negotiated with the subscriber to meet service requests of the subscriber or competitive
offerings of another telecommunications company; or from furnishing free telecommunications
service or service at reduced prices to its officers, agents, servants, or employees.
### § 49-21-08. Unnecessary duplication of exchanges prohibited.

Repealed by S.L. 2005, ch. 399, § 9.
### § 49-21-08.1. Dialing parity - IntraLATA equal access.

Every local exchange carrier shall provide 1 + equal access dialing parity.
### § 49-21-09. Telecommunications - Connections.

Whenever a connection can be made reasonably between the facilities of two or more
telecommunications companies for the transfer of telecommunications and public convenience
and necessity will be subserved thereby, the commission may require that such connection be
made and may order that telecommunications be transmitted and transferred by the companies,
as provided in this section. When, after notice and hearing in accordance with chapter 28-32,
the commission finds that public convenience and necessity require the use by one
telecommunications company of facilities or services of another telecommunications company,
and that such use will not result in irreparable injury to the owner or other users of such facilities
or services, nor any substantial detriment to the facilities or services, and that such
telecommunications companies have failed to agree upon such use or the terms and conditions
or compensation for the same, the commission, by order, may direct that such use be permitted,
and may prescribe reasonable compensation, terms, and conditions. If such use is directed, the
telecommunications company to which the use is permitted is liable to the owner or other users
of such facilities or services for such damage as may result therefrom to the property of such
owner or other users thereof.
### § 49-21-10. Transmitting telecommunications from other telecommunications

companies.
Every telecommunications company operating in this state shall receive, transmit, and
deliver, without discrimination or delay, the telecommunications of every other
telecommunications company with which a connection has been made.
### § 49-21-10.1. Excessive charges - Refunds.

When complaint has been made to the commission or by the commission on its own motion
concerning any price for a telecommunications service, and the commission has found, upon a
hearing after notice given as required by law, that the telecommunications company has

charged for such service a price in excess of the price permitted under section 49-21-01.3, has
discriminated unreasonably, or has otherwise violated a statute, rule, or order, the commission
may order that the telecommunications company make due refunds or reparations, with interest
from a date not earlier than two years from when the complaint was filed.
### § 49-21-10.2. Quality of service.

Any customer, and the commission on its own motion, may complain concerning the quality
of service provided by a telecommunications company providing telecommunications services in
the state. The commission may not adopt any rule or order under this section applicable to retail
services unless the standards of service required by the rule or order are applicable to all
telecommunications companies providing similar service in the relevant market area.
### § 49-21-10.3. Complaints.

A person, and the commission on its own motion, may complain concerning any violation of
law, rule, or order of the commission. In accordance with chapter 28-32, the commission shall
provide notice of the complaint and the time and place of hearing. After hearing under chapter
28-32, if the commission finds that a service of a telecommunications company is inadequate or
a company is in violation of a law, rule, or order, the commission may direct the
telecommunications company to take reasonable and necessary remedial action to provide
adequate service or to bring the company into compliance with the applicable law, rule, or order.
The remedies of this section are in addition to the penalties under chapter 49-07.
### § 49-21-11. Mutual telephone company - Company carrier.

Repealed by S.L. 1985, ch. 515, § 26.
### § 49-21-12. Assessments - Expenses - Sinking fund.

Repealed by S.L. 1985, ch. 515, § 26.
### § 49-21-13. Extension of line and system.

Repealed by S.L. 1985, ch. 515, § 26.
### § 49-21-13.1. Telephone cooperatives - Sale of physical plant - Approval.

No mutual aid cooperative or cooperative association that is a telecommunications
company as defined in section 49-21-01 may sell, transfer, or convey, within the period of any
single calendar year, physical plant in excess of five percent in value of the cooperative, based
upon the most recent audit of the books of the cooperative, unless consent has been obtained
by vote of not less than two-thirds of the entire membership of the cooperative cast at any
regular or special meeting called for that purpose, after notice in writing to all the membership of
the cooperative not less than twenty nor more than thirty days prior to the date of such meeting.
Nothing in this section prohibits the transfer of assets in exchange for physical plant of equal
monetary value to any public or private person or organization.
### § 49-21-14. Connections with other telephone systems permitted.

Repealed by S.L. 2005, ch. 399, § 9.
### § 49-21-15. Physical connections.

Repealed by S.L. 2005, ch. 399, § 9.
### § 49-21-16. Forfeiture for failure to comply with order.

Repealed by S.L. 1985, ch. 515, § 26.
### § 49-21-17. Additional definitions.

Repealed by S.L. 2005, ch. 399, § 9.

### § 49-21-18. Party line - Refusal to surrender - Emergency.

Repealed by S.L. 2005, ch. 399, § 9.
### § 49-21-19. Distributors of telephone directories to print notice therein.

Repealed by S.L. 2003, ch. 403, § 10.
### § 49-21-20. Penalty.

Repealed by S.L. 2005, ch. 399, § 9.
### § 49-21-21. Fraudulent telecommunications - Penalty.

Repealed by S.L. 1975, ch. 106, § 673.
### § 49-21-22. Regulatory reform review commission - Appointments - Compensation -

Report to legislative council.
Repealed by S.L. 1991, ch. 600, § 17.
### § 49-21-22.1. Regulatory reform review commission - Appointments - Compensation -

Report to legislative council.
Expired under S.L. 1995, ch. 453, § 2.
### § 49-21-22.2. Regulatory reform review commission - Appointments - Compensation -

Report to legislative council.
Repealed by S.L. 2009, ch. 482, § 99.
### § 49-21-23. Construction of facilities - Cost recovery.

1. A telecommunications company is not required to construct, modify, or extend
telecommunications facilities at the request or for the use of another
telecommunications company except as required by the federal act.
2. The commission must allow a telecommunications company to recover in advance
from the benefited company or customer any nonrecurring costs incurred at the
request of another telecommunications company, a particular customer, or to comply
with a commission order, including any order issued under section 49-21-10.2, for
construction, modification or extension of the company's network in excess of the
normal course of business and primarily for the benefit of another telecommunications
company or for a particular customer, and not due to any negligence or misconduct on
the part of the company. This subsection does not apply to:
a. Costs incurred to extend or modify a network to provide for interconnection,
collocation, network access, or the sale of unbundled network elements, unless
those costs are identifiable and specific to a particular end-user customer, or
wholesale services to another telecommunications company under the federal
act;
b. Costs incurred to remedy discriminatory or unequal treatment that has been
found to exist by the commission or an arbitrator; or
c. Costs for which some other recovery treatment is specifically provided in federal
or state law.
### § 49-21-24. Prohibited acts - Arbitration.

1. A telecommunications company may not:
a. Discriminate against another provider of telecommunications services by refusing
or delaying access to the company's services;
b. Discriminate against another provider of telecommunications services by refusing
or delaying access to essential facilities on terms and conditions no less
favorable than those the telecommunications company provides to itself and its
affiliates. A local telecommunications facility, feature, function, or capability of the

telecommunications company's network is an essential facility if all of the
following apply:
(1) Competitors cannot practically or economically duplicate the facility, feature,
function, or capability or obtain the facility, feature, function, or capability
from another source.
(2) The use of the facility, feature, function, or capability by potential competitors
is technically and economically feasible.
(3) Denial of the use of the facility, feature, function, or capability by competitors
is unreasonable.
(4) The facility, feature, function, or capability will enable competition; or
c. Degrade the quality of access or service provided to another provider of
telecommunications services.
2. A claim that a telecommunications company has violated this section may be resolved
by arbitration or by a complaint filed with the commission. Arbitration of a claim must
be conducted by a single arbitrator engaged in the practice of law under the rules of
the American arbitration association. All expedited procedures prescribed by the
American arbitration association rules apply. The arbitrator's award is final and binding
and may be entered in any court having jurisdiction thereof. A complaint filed with the
commission must be referred to the office of administrative hearings for hearing and
issuance of recommended findings of fact, conclusions of law, and an order pursuant
to chapter 28-32. Each party shall bear its own costs and attorney's fees and shall
equally share in the fees and expenses of the arbitration or administrative hearing.
### § 49-21-25. Competitive local exchange companies.

All competitive local exchange companies are subject to the requirements of this chapter
regarding purchase of essential telecommunications services, section 49-21-01.4; access code
number usage, section 49-21-01.5; call identification services, section 49-21-01.6;
cross-subsidization, section 49-21-02.2; unauthorized telecommunications service, section
49-21-02.4; price schedules, sections 49-21-04 and 49-21-05; price complaints, section
49-21-06; discrimination, section 49-21-07; dialing parity, section 49-21-08.1; connections,
sections 49-21-09 and 49-21-10; refunds, section 49-21-10.1; and quality of service, section
49-21-10.2.
### § 49-21-26. Fees.

Unless the governing body of a political subdivision has submitted to the qualified electors
of that political subdivision the question of whether to impose a fee other than a fee for
management costs and a majority of the voters approved the fee, a political subdivision may not
impose after December 31, 1998, any fee to recover from a telecommunications company for
the use of its right of way, other than a fee for its management costs. If requested by a political
subdivision, in order to accomplish a necessary public improvement on the right of way, a
telecommunications company promptly shall remove its facilities from the public right of way or
shall relocate or adjust its facilities within the public right of way at no cost to the political
subdivision. Necessary public improvements are limited to construction and maintenance
activities directly related to improved transportation and safety. A political subdivision may
recover from a telecommunications company only those management costs caused by the
telecommunications company activity in the public right of way. A fee or other obligation under
this section must be imposed on a competitively neutral basis. When a political subdivision's
management costs cannot be attributed to only one entity, those costs must be allocated among
all users of the public rights of way, including the political subdivision itself. The allocation must
reflect proportionately the costs incurred by the political subdivision as a result of the various
types of uses of the public right of way. This section does not prohibit the collection of a
franchise fee as permitted in section 49-21-29.

### § 49-21-27. In-kind services.

A political subdivision, in lieu of a fee imposed under section 49-21-26, may not require
in-kind services by a telecommunications company right-of-way user or require in-kind services
as a condition of the use of the political subdivision's public right of way.
### § 49-21-28. Arbitration.

1. A telecommunications company that is denied the use of or access to a political
subdivision right of way, that has its right-of-way permit revoked, or that believes that
the fees imposed on that company by the political subdivision do not conform to the
requirements of section 49-21-26 may request in writing that the denial, revocation, or
fee imposition be reviewed by the governing body of the political subdivision. The
governing body of the political subdivision shall act within thirty days of the request. A
decision by the governing body affirming the denial, revocation, or fee imposition must
be in writing and supported by written findings establishing the reasonableness of the
decision.
2. Upon affirmation by the governing body of the denial, revocation, or fee imposition, the
telecommunications company may do either of the following:
a. With the consent of the governing body, submit the matter to final, binding
arbitration. Binding arbitration must be before an arbitrator selected by the
political subdivision and the telecommunications company. If the parties are
unable to agree on an arbitrator, the matter must be resolved by the three-person
arbitration panel made up of one arbitrator selected by the political subdivision,
one arbitrator selected by the telecommunications company, and one arbitrator
selected by the other two arbitrators. The cost of a single arbitrator must be paid
equally by the political subdivision and the telecommunications company. If a
three-person arbitration panel is selected, each party shall pay the cost of its own
arbitrator, and the parties shall jointly pay the cost of the third arbitrator and of the
arbitration. Each party to the arbitration shall pay its own costs, disbursements,
and attorney's fees.
b. Bring an action in district court to review a decision of the governing body made
under this section.
### § 49-21-29. Franchise ordinance not superseded.

Sections 49-21-26, 49-21-27, and 49-21-28 do not modify or supersede the rights and
obligations of a political subdivision and the telecommunications company established by the
terms of any existing franchise. A city that collects a city franchise fee under a franchise may not
collect a fee from that entity under section 49-21-26. A political subdivision that collects a fee
prohibited by section 49-21-26 on January 1, 1999, may continue to collect that fee.
### § 49-21-30. Cost recovery.

A telecommunications company that is assessed either management costs by a political
subdivision pursuant to section 49-21-26 or a city franchise fee pursuant to section 49-21-29 is
entitled to recover those costs. If the telecommunications company serves customers within the
boundaries of the political subdivision imposing the management costs, the costs may be
recovered only from those customers.
### § 49-21-31. Performance assurance fund - Continuing appropriation.

The performance assurance fund is a special fund in the state treasury. The commission
shall deposit payments received by the commission under the performance assurance plan in
the performance assurance fund until the balance of the fund equals one hundred thousand
dollars. Up to one hundred thousand dollars per biennium of moneys in the fund are
appropriated on a continuing basis to the commission to monitor the operation and effect of the
performance assurance plan. All the payments received by the commission in excess of the one
hundred thousand dollars balance in the performance assurance fund must be deposited in the
general fund.
