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66-104. Utilities subject to supervision; exceptions. (a) The term "public utility," as used in this act, shall be construed to mean every corporation, company, individual, association of persons, their trustees, lessees or receivers, that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant or generating machinery, or any part thereof, for the transmission of telephone messages or for the transmission of telegraph messages in or through any part of the state, or the conveyance of oil and gas through pipelines in or through any part of the state, except pipelines less than 15 miles in length and not operated in connection with or for the general commercial supply of gas or oil, and all companies for the production, transmission, delivery or furnishing of heat, light, water or power. No cooperative, cooperative society, nonprofit or mutual corporation or association that is engaged solely in furnishing telephone service to subscribers from one telephone line without owning or operating its own separate central office facilities, shall be subject to the jurisdiction and control of the commission as provided in this section, except that it shall not construct or extend its facilities across or beyond the territorial boundaries of any telephone company or cooperative without first obtaining approval of the commission. The term "transmission of telephone messages" shall include the transmission by wire or other means of any voice, data, signals or facsimile communications, including all such communications now in existence or as may be developed in the future.

(b) The term "public utility" shall also include that portion of every municipally owned or operated electric or gas utility located in an area outside of and more than three miles from the corporate limits of such municipality, but regulation of the rates, charges and terms and conditions of service of such utility within such area shall be subject to commission regulation only as provided in K.S.A. 66-104f, and amendments thereto. Nothing in this act shall apply to a municipally owned or operated utility, or portion thereof, located within the corporate limits of such municipality or located outside of such corporate limits but within three miles thereof.

(c) Except as provided in this section, the power and authority to control and regulate all public utilities and common carriers situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, shall be vested exclusively in such city, subject only to the right to apply for relief to the corporation commission as provided in K.S.A. 66-133, and amendments thereto, and to the provisions of K.S.A. 66-104e, and amendments thereto. A transit system principally engaged in rendering local transportation service in and between contiguous cities in this and another state by means of street railway, trolley bus and motor bus lines, or any combination thereof, shall be deemed to be a public utility as that term is used in this act and shall be subject to the jurisdiction of the commission.

(d) The term "public utility" shall not include any activity of an otherwise jurisdictional corporation, company, individual, association of persons, their trustees, lessees or receivers as to the marketing or sale of:

(1) Compressed natural gas for end use as motor vehicle fuel; or

(2) electricity that is purchased through a retail electric supplier in the certified territory of such retail electric supplier, as such terms are defined in K.S.A. 66-1,170, and amendments thereto, for the sole purpose of the provision of electric vehicle charging service to end users.

(e) (1) Except as provided in paragraph (2), at the option of an otherwise jurisdictional entity, the term "public utility" shall not include any activity or facility of such entity as to the generation, marketing and sale of electricity generated by an electric generation facility or addition to an electric generation facility that:

(A) Is newly constructed and placed in service on or after January 1, 2001; and

(B) is not in the rate base of:

(i) An electric public utility that is subject to rate regulation by the state corporation commission;

(ii) any cooperative, as defined by K.S.A. 17-4603, and amendments thereto, or any nonstock member-owned cooperative corporation incorporated in this state; or

(iii) a municipally owned or operated electric utility.

(2) The provisions of this subsection shall not be construed to affect the authority of the state corporation commission to regulate any activity or facility of an otherwise jurisdictional entity with regard to wire stringing pursuant to K.S.A. 66-183 et seq., and amendments thereto.

(f) Additional generating capacity achieved through efficiency gains by refurbishing or replacing existing equipment at generating facilities placed in service before January 1, 2001, shall not qualify under subsection (e).

(g) For purposes of the authority to appropriate property through eminent domain, the term "public utility" shall not include any activity for the siting or placement of wind powered electrical generators or turbines, including the towers.

History: L. 1911, ch. 238, § 3; R.S. 1923, 66-104; L. 1949, ch. 335, § 1; L. 1951, ch. 366, § 1; L. 1968, ch. 333, § 6; L. 1974, ch. 262, § 1; L. 1975, ch. 339, § 1; L. 1978, ch. 263, § 2; L. 1992, ch. 69, § 1; L. 1997, ch. 84, § 1; L. 2001, ch. 206, § 1; L. 2005, ch. 72, § 2; L. 2007, ch. 176, § 2; L. 2021, ch. 39, § 1; L. 2021, ch. 113, § 6; July 1.

Revisor's Note:

Other provisions of 1968 act, see 12-806, 12-808, 12-808a, 12-808b, 12-820, 12-821, 13-1223, 66-131.

Section was amended by L. 2007, ch. 112, § 2, but that version was repealed by L. 2007, ch. 176, § 4.

Section was also amended by L. 2021, ch. 33, § 1, but that version was repealed by L. 2021, ch. 113, § 9.

Cross References to Related Sections:

Exception hereto, see 66-1,150.

Law Review and Bar Journal References:

"Groundwater Pollution I: The Problem and the Law," Robert L. Glicksman, George Cameron Coggins, 35 K.L.R. 142, 156 (1986).

"Comments on the Proposed Kansas Groundwater Conservation Act from the Electric Utility Industry Viewpoint," L. Earl Watkins, Jr., 35 K.L.R. 395 (1987).

"Making The Most of Venue After The 1987 Reforms and [Kenyon v. K.C.P.&L.]," L. J. Leatherman, J.K.T.L.A. Vol. XVIII, No. 6, 21, 22, 23, 24 (1995).

"The Wireless Frontier in Kansas and Missouri: Are the Public Rights-of-Way Finally Beckoning?" William F. Watkins, 73 J.K.B.A. No. 6, 30 (2004).

Attorney General's Opinions:

Public utilities; powers of KCC over municipal franchises and ordinances. 84-54.

Public utilities; acquisition and operation of city plants. 84-128.

Cities and municipalities; public utilities; power of city to sell service generally; disposition of supplier refunds. 85-32.

Action by customer for refund from utility based on refund from supplier increase disallowance must be filed in three years. 87-102.

Powers of rural water districts; contract with city for purchase of water. 89-95.

Permanent registration of city, county or township vehicles; ambulances. 90-52.

Gas pipeline safety; application of rules and regulations of federal pipeline safety act. 91-101.

Public utilities; definition; constitutionality of excluding certain telephone companies. 93-142.

Public utilities; rate making; legislative discretion. 94-76.

"Public utility" defined for the purpose of property tax classification. 1999-21.

CASE ANNOTATIONS

1. Meaning of term "public utility"; physical equipment, etc., not included. The State, ex rel., v. Gas Co., 88 Kan. 165, 167, 127 P. 639. Affirmed: Wyandotte Gas Co. v. Kansas, 231 U.S. 622, 34 S. Ct. 226, 58 L.Ed. 404.

2. Scope of jurisdiction; utility owning equipment in several cities. The State, ex rel., v. Gas Co., 88 Kan. 165, 167, 127 P. 639. Affirmed: Wyandotte Gas Co. v. Kansas, 231 U.S. 622, 34 S. Ct. 226, 58 L.Ed. 404.

3. Telephone company held subject to control of public utilities commission. City of Emporia v. Telephone Co., 90 Kan. 118, 120, 124, 133 P. 858.

4. Water company held subject to control of public utilities commission. The State, ex rel., v. Water Co., 92 Kan. 227, 140 P. 103.

5. Exception not restricted to utilities municipally owned when act passed. Humphrey v. City of Pratt, 93 Kan. 413, 417, 144 P. 197.

6. Mere enactment of act did not abrogate telephone agreements, etc. Kaul v. Telephone Co., 95 Kan. 1, 3, 147 P. 1130.

7. Power to regulate and control location of telegraph stations. The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 301, 150 P. 544.

8. Receivers operating business of public utility subject to utilities commission. The State, ex rel., v. Flannelly, 96 Kan. 372, 381, 152 P. 22.

9. Telegram dictated over telephone regular corporate business; no preferential service. Milling Co. v. Postal Telegraph Co., 101 Kan. 307, 309, 166 P. 493.

10. Power of regulation of utility operated wholly within city. Street Lighting Co. v. Utilities Commission, 101 Kan. 438, 439, 166 P. 514.

11. Power of cities to regulate utility; powers of utilities commission. Street Lighting Co. v. Utilities Commission, 101 Kan. 774, 776, 169 P. 205.

12. Control of interurban railway by utilities commission. In re Wright, 102 Kan. 329, 332, 170 P. 28.

13. Company transmitting, delivering and furnishing water for public utility. City of Parsons v. Water Supply and Power Co., 104 Kan. 294, 299, 300, 178 P. 438.

14. Allowance of discount; consent of city commission. City of Great Bend v. Water Co., 106 Kan. 553, 555, 189 P. 146.

15. Street railroad franchise within city; jurisdiction of utilities commission. Utilities Co. v. Railway Co., 108 Kan. 285, 292, 195 P. 889.

16. Contract with private corporation to furnish city with electricity; regulation. City of Cimarron v. Water, Light & Ice Co., 110 Kan. 812, 814, 205 P. 603.

17. Supplying gas to city; supervision of public utilities commission. City of Winfield v. Court of Industrial Relations, 111 Kan. 580, 586, 207 P. 813.

18. Mutual telephone companies subject to supervision of utilities commission, when. The State, ex rel., v. Telephone Co., 112 Kan. 701, 705, 212 P. 902.

19. Municipally owned utility may extend lines beyond city without certificate of convenience. Board of Public Utilities v. Kansas City P. & L. Co., 139 Kan. 842, 844, 845, 33 P.2d 320.

20. Mutual telephone companies excepted from act. Andrews v. Richards, 116 Kan. 344, 346, 326 P. 793.

21. Empire Natural Gas Company is within meaning of law. Empire Natural Gas Co. v. Thorp, 121 Kan. 116, 118, 245 P. 1058.

22. Companies to which act made to apply considered. Kansas Gas & Elec. Co. v. Public Serv. Comm., 124 Kan. 690, 695, 261 P. 592.

23. Fixing of rates where utility exclusively within one city considered. City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 349, 264 P. 68.

24. Jurisdiction over water company operating principally within city considered. Wichita Water Co. v. Public Service Comm., 126 Kan. 381, 383, 268 P. 89.

25. City must first invoke relief offered by public utilities act. City of Wichita v. Wichita Motor Bus Co., 126 Kan. 677, 681, 271 P. 403.

26. Cited in holding commission's approval of individual's six-months note unnecessary. Shaw v. Welch, 136 Kan. 736, 739, 18 P.2d 189.

27. Municipally owned utility not governed by state utilities act. Holton Creamery Co. v. Brown, 137 Kan. 418, 419, 421, 20 P.2d 503.

28. Pipe-line length considered in holding gas company not a public utility. State, ex rel., v. City of Coffeyville, 138 Kan. 909, 911, 28 P.2d 1032.

29. Act inapplicable to municipally owned utilities and does not violate U.S. Const., 14 th amendment. Kansas Gas & Elec. Co. v. City of McPherson, 146 Kan. 614, 617, 618, 72 P.2d 985.

30. Cited; pipe-line company without authority to condemn underground stratum for gas storage. Strain v. Cities Service Gas Co., 148 Kan. 393, 400, 83 P.2d 124.

31. Discussed; term "public utility corporation" in another statute includes common carriers. Edwards County Comm'rs v. Simmons, 159 Kan. 41, 51, 151 P.2d 960.

32. Mentioned; procedure for hearings before commission and appeals therefrom fixed by statute. City of McPherson v. State Corporation Commission, 174 Kan. 407, 408, 257 P.2d 123.

33. Mentioned; authority of city to grant to utility right to use streets determined. Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 128, 238 P.2d 544.

34. Pipeline company carrying own oil not "common carrier" or "public utility." State, ex rel., v. Sinclair Pipe Line Co., 180 Kan. 425, 438, 439, 304 P.2d 930.

35. Section not applicable to oil pipe lines engaged in interstate commerce. State, ex rel., v. Sinclair Pipe Line Co., 180 Kan. 425, 426, 427, 433, 304 P.2d 930.

36. Commission cannot by approval limit liability of telegraph company for error in intrastate message. McNally Pittsburg Mfg., Corp. v. Western Union Telegraph Co., 186 Kan. 709, 713, 353 P.2d 199.

37. Foreign electric utility company authorized to obtain right of way by condemnation; statutes construed. Cline v. Kansas Gas and Electric Company, 260 F.2d 271, 272, 273.

38. Where utility is subject to control of one city, city's powers must be considered as liberally as those of corporation commission. Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 737, 738, 739, 741, 746, 747, 748, 433 P.2d 572.

39. Jurisdiction of the commission over certain corporations not determined by court because of absence of findings on the subject. Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 225, 226, 227, 230, 236, 242, 246, 440 P.2d 660.

40. Noncompliance herewith; contract void; parties not in pari delicto; action maintainable thereon. Wycoff v. Quick Way Homes, Inc., 201 Kan. 442, 445, 446, 441 P.2d 886.

41. Section does not limit corporation commission's jurisdiction pursuant to K.S.A. 10-1203. City of Wichita v. Kansas Corporation Commission, 225 Kan. 524, 526, 527, 528, 529, 530, 532, 592 P.2d 880.

42. Separation of interstate and intrastate operations of utility required when considering whether increase in intrastate rates is justified. Elkhart Tel. Co. v. Kansas Corporation Commission, 7 Kan App. 2d 235, 640 P.2d 335 (1982).

43. Application of act to one-city gas public utilities considered. Kearney v. Kansas Public Service Co., 233 Kan. 492, 506, 507, 665 P.2d 757 (1983).

44. Where common carrier seeking rate increase also "public utility" hereunder, it meets jurisdictional test under K.S.A. 66-118a. MAPCO Intrastate Pipeline Co. v. Kansas Corporation Comm'n, 10 Kan App. 2d 527, 529, 704 P.2d 989 (1985).

45. Cited; transmission of communications through fiber-optic cable as transmission by electrical current (K.S.A. 17-618) noted. Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 679, 750 P.2d 398 (1988).

46. Appellate jurisdiction of Court of Appeals to review KCC action arising from rate hearings examined. Kansas Gas & Electric Co. v. Kansas Corp. Comm'n, 14 Kan App. 2d 527, 529, 794 P.2d 1165 (1990).

47. Mentioned in holding that one-way radio paging service company not a public utility for property taxation purposes. First Page, Inc. v. Cunningham, 252 Kan. 593, 597, 598, 599, 600, 847 P.2d 1238 (1993).

48. Radio common carrier not considered a public utility for property tax purposes. In re Appeal of Topeka SMSA Ltd. Partnership, 260 Kan. 154, 164, 917 P.2d 827 (1996).

49. Right-of-way grant is not an illegal contract; parties did not transact business without proper certificate. Kansas Gas and Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P.2d 73 (1996).

50. Discovery rule did not apply to party's claim so as to delay accrual of claim. United Cities Gas Co. v. Brock Exploration Co., 984 F. Supp. 1379, 1387 (1997).

51. Water district has an exclusive right to provide pressurized treated water within district's boundaries. Water Dist. No. 1 v. Mission Hills Country Club, 265 Kan. 355, 363, 960 P.2d 239 (1998).


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