Senate Bill 2134

AN ACT TO ENACT THE MISSISSIPPI CONSUMERS' FREEDOM OF CHOICE IN APPLIANCES ACT; TO PREVENT GOVERNMENTAL ENTITIES FROM RESTRICTING OR PROHIBITING USE OF APPLIANCES BASED ON THE TYPE OF UTILITY SERVICE REQUIRED FOR OPERATION; TO CLARIFY THE SCOPE OF RELEVANT GOVERNMENTAL ENTITIES' AUTHORITY; TO AMEND SECTION 77-3-3, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) This section shall be known and may be cited as the "Mississippi Consumers' Freedom of Choice in Appliances Act."

(2) For the purposes of this section, these terms have the meanings ascribed herein:

(a) "Governmental entity" means 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.

(b) "Utility service" means electrical, natural gas, or liquefied petroleum gas service provided to an end user.

(c) "Appliance" means a device or apparatus which utilizes a utility service for its energy operating requirements and has been manufactured and designed to perform a specific task in a domestic or household setting or manufactured and designed to perform similar functions in commercial or industrial settings. The term appliance as used herein shall include a device or apparatus utilized for cooking, space heating, and water heating, or another end use.

(3) A governmental entity may not enact or enforce any resolution, ordinance, regulation, rule, code or policy or take any action that restricts or prohibits or has the effect of restricting or prohibiting any person or entity from using any appliance based on the type of utility service required to operate the appliance.

(4) Nothing in this act shall be construed as affecting a governmental entity's authority to do the following:

(a) Require that a utility service necessary to operate an appliance be obtained from a provider that is authorized to do business in the location;

(b) Prohibit the usage of any appliance for an illegal purpose;

(c) 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 appliance or utility service proposed for the project; and

(d) Taking actions to ensure the safe use of appliances in accordance with the manufacturer's recommendations for usage.

SECTION 2. Section 77-3-3, Mississippi Code of 1972, is amended as follows:

77-3-3. As used in this chapter, the following terms have the meanings ascribed herein unless the context clearly indicates otherwise:

(a) The term "corporation" includes a private or public corporation, a municipality, an association, a joint-stock association or a business trust.

(b) The term "person" includes a natural person, a partnership of two (2) or more persons having a joint or common interest, a cooperative, nonprofit, limited dividend or mutual association, a corporation, or any other legal entity.

(d) The term "public utility" includes persons and corporations, or their lessees, trustees and receivers now or hereafter owning or operating in this state equipment or facilities for:

(i) The generation, manufacture, transmission, distribution, provision, or furnishing of electricity to or for the public, whether an individual person or an entity or a collection of persons or entities, for compensation;

(ii) The transmission, sale, sale for resale, or distribution of natural, artificial, or mixed natural and artificial gas to the public for compensation by means of transportation, transmission, or distribution facilities and equipment located within this state; however, the term shall not include the production and gathering of natural gas, the sale of natural gas in or within the vicinity of the field where produced, or the distribution or sale of liquefied petroleum gas or the sale to the ultimate consumer of natural gas for use as a motor vehicle fuel;

(iii) The transmission, conveyance or reception of any message over wire, of writing, signs, signals, pictures and sounds of all kinds by or for the public, where such service is offered to the public for compensation, and the furnishing, or the furnishing and maintenance, of equipment or facilities to the public, for compensation, for use as a private communications system or part thereof; however, no person or corporation not otherwise a public utility within the meaning of this chapter shall be deemed such solely because of engaging in this state in the furnishing, for private use as last aforementioned, and moreover, nothing in this chapter shall be construed to apply to television stations, radio stations, community television antenna services, video services, Voice over Internet Protocol services ("VoIP"), any wireless services, including commercial mobile services, Internet Protocol ("IP") - enabled services or broadband services; and

(iv) The transmission, distribution, sale or resale of water to the public for compensation, or the collection, transmission, treatment or disposal of sewage, or otherwise operating a sewage disposal service, to or for the public for compensation.

The term "public utility" shall not include any person not otherwise a public utility, who provides or furnishes the services or commodity described in this paragraph only to himself, his employees or tenants as an incident of such employee service or tenancy, if such services are not sold or resold to such tenants or employees on a metered or consumption basis other than the submetering authorized under Section 77-3-97.

The term "public utility" shall not include any person not otherwise a public utility, who purchases electricity on a metered retail basis from the electric public utility that holds a certificate of public convenience and necessity for the area in which the person is located, and provides or furnishes a portion of that electricity, but not electricity from any other source, to the public for compensation directly and exclusively to charge battery-powered electric vehicles and plug-in hybrid electric vehicles. Any such person described in this paragraph is an end-use customer, whether or not such person receives compensation for battery or vehicle charging.

A public utility's business other than of the character defined in subparagraphs (i) through (iv) of this paragraph is not subject to the provisions of this chapter.

(e) The term "rate" means and includes every compensation, charge, fare, toll, customer deposit, rental and classification, or the formula or method by which such may be determined, or any of them, demanded, observed, charged or collected by any public utility for any service, product or commodity described in this section, offered by it to the public, and any rules, regulations, practices or contracts relating to any such compensation, charge, fare, toll, rental or classification; however, the term "rate" shall not include charges for electrical current furnished, delivered or sold by one (1) public utility to another for resale.

(f) The word "commission" shall refer to the Public Service Commission of the State of Mississippi, as now existing, unless otherwise indicated.

(g) The term "affiliated interest" or "affiliate" includes:

(i) Any person or corporation owning or holding, directly or indirectly, twenty-five percent (25%) or more of the voting securities of a public utility;

(ii) Any person or corporation in any chain of successive ownership of twenty-five percent (25%) or more of the voting securities of a public utility;

(iii) Any corporation of which fifteen percent (15%) or more of the voting securities is owned or controlled, directly or indirectly, by a public utility;

(iv) Any corporation of which twenty-five percent (25%) or more of the voting securities is owned or controlled, directly or indirectly, by any person or corporation that owns or controls, directly or indirectly, twenty-five percent (25%) or more of the voting securities of any public utility or by any person or corporation in any chain of successive ownership of twenty-five percent (25%) of such securities;

(v) Any person who is an officer or director of a public utility or of any corporation in any chain of successive ownership of fifteen percent (15%) or more of voting securities of a public utility; or

(vi) Any person or corporation that the commission, after notice and hearing, determines actually exercises any substantial influence or control over the policies and actions of a public utility, or over which a public utility exercises such control, or that is under a common control with a public utility, such control being the possession, directly or indirectly, of the power to direct or cause the discretion of the management and policies of another, whether such power is established through ownership of voting securities or by any other direct or indirect means.

However, the term "affiliated interest" or "affiliate" shall not include a joint agency organized pursuant to Section 77-5-701 et seq., nor a member municipality thereof.

(h) The term "facilities" includes all the plant and equipment of a public utility, used or useful in furnishing public utility service, including all real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished or supplied for, by or in connection with its public utility business.

(i) The term "cost of service" includes operating expenses, taxes, depreciation, net revenue and operating revenue requirement at a claimed rate of return from public utility operations.

(j) The term "lead-lag study" includes an analysis to determine the amount of capital which investors in a public utility, the rates of which are subject to regulation under the provisions of this chapter, must provide to meet the day-to-day operating costs of the public utility prior to the time such costs are recovered from customers, and the measurement of (i) the lag in collecting from the customer the cost of providing service, and (ii) the lag in paying the cost of providing service by the public utility.

(k) The term "broadband services" means any service that consists of or includes a high-speed access capability to transmit at a rate that is not less than two hundred (200) kilobits per second either in the upstream or downstream direction and either:

(i) Is used to provide access to the Internet, or

(ii) Provides computer processing, information storage, information content or protocol conversion, including any service applications or information service provided over such high-speed access service.

(l) The term "video services" means video programming services without regard to delivery technology, including Internet Protocol technology ("Internet Protocol television or IPTV") and video programming provided as a part of a service that enables users to access content, information, email or other services offered over the public internet. The term "video programming" means any programming as defined in 47 USCS Section 522(20).

(m) The term "Voice over Internet Protocol services" or "VoIP services" means any service that: (i) enables real-time, two-way voice communications that originate from or terminate to the user's location in Internet Protocol or any successor protocol; (ii) uses a broadband connection from the user's location; and (iii) permits users generally to receive calls that originate on the Public Switched Telephone Network and to terminate calls to the Public Switched Telephone Network.

(n) The term "commercial mobile services" means any services as defined in 47 USCS Section 332(d).

(o) The term "Internet Protocol-enabled services" or "IP-enabled services" means any service, capability, functionality, or application provided using Internet Protocol, or any successor protocol, that enables an end user to send or receive a communication in Internet Protocol format, or any successor format, regardless of whether the communications is voice, data or video. Nothing contained in this paragraph shall apply to retail services that are tariffed by the commission.

(p) "Broadband service provider" means an entity that provides broadband services to others on a wholesale basis or to end-use customers on a retail basis.

(q) "Broadband operator" means a broadband service provider that uses the electric delivery system of any public utility of the type as defined in paragraph (d)(i) of this section with the public utility's consent to provide broadband services.

(r) "Electric delivery system" means the poles, lines, fiber, cables, broadband system, materials, equipment, easements and other facilities or properties used by any public utility of the type as defined in paragraph (d)(i) of this section to deliver or facilitate the delivery, sale or use of electric energy.

(s) "Eligible municipality" means any municipality with a population of greater than One Hundred Thousand (100,000) according to the latest decennial census which has been the subject of litigation by the United States Environmental Protection Agency for violations of the Safe Drinking Water Act, 42 USC Section 300(f) et seq.

(t) "Eligible homeowners association" means any homeowners association created and governed by restrictive covenants, if the subdivision subject to these covenants:

(i) Was constructed prior to 1970 outside of municipal boundaries;

(ii) Was subsequently annexed by an eligible municipality, irrespective of whether the municipality was an eligible municipality at the time of annexation or subsequently became eligible; and

(iii) Is adjacent to which a ground water well system originally designed to supply the subdivision which continues to provide drinking water to a private user is located.

SECTION 3. Section 1 of this act shall be codified in Title 77, Chapter 3, Mississippi Code of 1972.

SECTION 4. This act shall take effect and be in force from and after July 1, 2024.