2021 New Mexico Statutes
Chapter 65 - Motor Carriers
Article 2A - Motor Carrier Act
Section 65-2A-13 - Protests, objections and hearings.
A. Any interested person or any member of the public may provide information to the commission or express an objection to any application for a certificate or permit, or for amendment, lease or transfer of a certificate or permit, during the notice period for the application by filing a written objection in regard to the application. The commission shall consider any objections filed in regard to determining whether to hold a hearing on the application. The commission is not required to hold a hearing pursuant to any objection but may, in its discretion or on its own motion for any reason, hold a hearing on any application for a certificate or permit or for an amendment, lease or transfer of a certificate or permit.
B. The commission shall hold a hearing on an application whenever a protest is filed within the notice period or the transportation division of the commission files a request for a hearing relative to an application within the notice period. The commission shall allow a protesting carrier to proceed as an intervenor in the application proceeding.
C. In any hearing held on an application:
(1) the applicant has the burden of proving that the applicant meets the requirements of the Motor Carrier Act and the rules of the commission for the application at issue, the burden of demonstrating with reasonable specificity the nature and scope of its proposed transportation service, the burden of proving any particular factual matters that the commission or the transportation division of the commission may identify and require, the burden of proving any additional allegations and matters of public interest that it may raise and, if the application pertains to ambulance service, the burden of proving that the ambulance service that currently exists in the territory sought in the application is inadequate and that the proposed service is directly responsive to a public need and demand for the service proposed;
(2) a protesting carrier has the burden of proving all matters of fact pertaining to its full-service operation within its certificated full-service territory, the burden of proving the potential impairment or adverse impact on its existing full-service operation by the transportation service proposed by the applicant and the burden of proving all other allegations and matters of public interest that it may raise. The protesting carrier's proof should include, without limitation, a demonstration with reasonable specificity of the nature of the existing full service being provided, the volume of passengers transported, economic analysis related to expenses and revenues of the full-service operation and the anticipated economic, business or functional effect of the proposed service on the existing provision of, or rates for, full-service transportation within the full-service territory;
(3) the commission may allow other interested persons to intervene, either generally or on the basis of specific facts or issues. A permissive intervenor has the burden of proof for its position on all factual matters and legal issues that it alleges and on which it is permitted to intervene; and
(4) all parties to a hearing may base their demonstration and proof on business data, experienced persons and mathematical calculations. Expert testimony shall not be required of any party but may be provided at the option of a party.
D. The commission shall not grant an application:
(1) for a certificate or permit for ambulance service, or for amendment, lease or transfer of such a certificate or permit, if it finds after hearing that the existing ambulance service is provided on a reasonably continuous and adequate basis in the territory in which the new service is sought or that the holder of the certificate or lessee providing the existing ambulance service in such territory is willing and able to provide, and does subsequently provide, reasonably continuous and adequate service within such territory, as specified by commission order;
(2) for a new certificate for general taxicab service within the full-service territory of a protesting municipal taxicab service carrier; or
(3) for a certificate for any passenger service other than those identified in Paragraphs (1) and (2) of this subsection, or for a permit for passenger service other than for an ambulance service pursuant to a public-charge contract, or for amendment, lease or transfer of such a certificate or permit, within a protesting full-service carrier's full-service territory, if it finds after hearing that the grant of the application presents a reasonable potential to impair, diminish or otherwise adversely affect the existing provision of full-service passenger service to the public in the full-service territory or if the application is otherwise contrary to the public interest in the full-service territory. In considering the potential effect on provision of transportation services to the public in regard to such an application, the commission shall consider all evidence presented pertaining to such potential effect, including evidence of the effect that diversion of revenue or traffic may have on the provision of full-service passenger service to the community. Diversion of revenue or traffic from an existing motor carrier shall not, however, be sufficient grounds for denying the application without a showing that the diversion presents a reasonable potential to affect the provision of full-service passenger service to the community.
History: Laws 2003, ch. 359, § 13; 2013, ch. 73, § 12; 2013, ch. 77, § 12.
ANNOTATIONSThe 2013 amendment, effective July 1, 2013, clarified and simplified procedures for protests; in the title, deleted "of application for a certificate or permit or for a change in a certificate of permit" and added "objections and hearings"; deleted former Subsection A, which prohibited a contract carrier from protesting a certificate; deleted former Subsection B, which prohibited a common or contract carrier from protesting a permit; deleted former Subsection C, which prohibited a common carrier from protesting a certificate unless the carrier had the authority and was willing and able to provide the service, the carrier had provided the service during the past twelve months, and the commission granted leave to intervene; and added Subsections A through D.
Laws 2013, ch. 73, § 12 and Laws 2013, ch. 77, § 12, both effective July 1, 2013, enacted identical amendments to this section. The section was set out as amended by Laws 2013, ch. 77, § 12. See 12-1-8 NMSA 1978.
Protesting municipal taxicab company's burden of proof. — Section 65-2A-13(D)(2) NMSA 1978 does not automatically protect municipal taxicab companies from new entrants, because 65-2A-13(C)(2) NMSA 1978 requires protesting municipal taxicab companies to first demonstrate that they are providing a full-service taxicab operation within their certified territories. Albuquerque Cab Co. v. N.M. Pub. Regulation Comm'n, 2017-NMSC-028.
Protesting municipal taxicab companies failed to meet burden of proving their full-service operations. — Where new taxicab company applied to the New Mexico public regulation commission (PRC) for a certificate to provide general taxicab services within Bernalillo county, the PRC did not err in approving the taxicab company's application, because the protesting municipal taxicab companies were not protected from new entrants by 65-2A-13(D)(2) NMSA 1978, because both protesting companies were on notice that to receive the protection provided by 65-2A-13(D)(2) NMSA 1978, they must prove their full-service operation and each failed to do so below, and the protesting companies failed to present evidence that allowing the applicant taxicab company to operate would cause actual impairment of either of their businesses or the passenger service within their territories as required by 65-2A-13(D)(3) NMSA 1978. Albuquerque Cab Co. v. N.M. Pub. Regulation Comm'n, 2017-NMSC-028.
