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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 2779 By: Pfeiffer
AS INTRODUCED
An Act relating to rural electric cooperative
easements; defining terms; providing for use of
certain easements for broadband service; prohibiting
class action lawsuits against certain entities based
on trespass or inverse condemnation; providing for
permanent nature of trespass or inverse condemnation;
prescribing measure of damages; prohibiting admission
of certain evidence for purposes of fair market value
determination; providing for permanent easement based
upon payment of damages; authorizing Approved
Broadband Providers to use rural electric cooperative
Above Ground Easements for certain pur poses;
prohibiting class action lawsuit provisions with
respect to certain lawsuits; providing for
determination of permanency with respect to certain
trespass; providing method for computation of
damages; prohibiting admission of certain evidence
for fair market value determinations; providing for
computation of damages; providing for grant of
permanent easement upon payment of damages; making
legislative findings regarding easements; providing
for permitted use as a matter of law; providing for
use of certain electric easements for broadband
services; authorizing rural electric cooperatives to
assess fees and charges with respect to facilities
within electric easement for support of broadband
services; providing for codification; and providing
an effective date.
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BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 437.31 of Title 18, unless there
is created a duplication in numberi ng, reads as follows:
As used in this act:
1. "Approved Broadband Provider" shall mean a Broadband
Provider with a current pole attachment agreement with the Rural
Electric Cooperative to which it is attaching; and
2. "Above Ground Easement" shall mean t he ability to attach to
the above ground infrastructure of a Rural Electric Cooperative.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 437.32 of Title 18, unless there
is created a duplication in numbering, reads as follows:
A. Any easement owned, held, or otherwise used by a rural
electric cooperative for the purpose of electric services, may also
be used by the cooperative or its wholly owned subsidiary or other
broadband provider, for the purpose of supplying high -speed
broadband service.
B. Notwithstanding the provisions of Section 2023 of Title 12
of the Oklahoma Statutes, a class action may not be maintained
against a rural electric cooperative or its broadband subsidiary in
a suit in trespass or inverse condemnation based on a claim of
expanded use of an easement where the broadband facilities are
located on an easement owned, held or used by a rural electric
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cooperative. In a suit in trespass or inverse condemnation against
a rural electric cooperative or its broadband subsidiary, based on a
claim of expanded use of an easement, any trespass found to exist
shall be deemed permanent and the actual damages awarded shall be
the fair market value which, notwithstanding any other provi sion of
law, shall always be greater than zero but shall not exceed the
difference between the fair market value of the property owner's
entire property immediately before the taking and the fair market
value of the property owner's property immediately af ter the taking.
In such a suit, evidence of revenues or profits derived, or the
rental value of use of the attached broadband facilities, shall not
be admissible in determining fair market value. A property owner's
actual damages shall be fixed at the ti me of the initial trespass
and shall not be deemed to continue, accumulate or accrue. Upon
payment of damages, the rural electric cooperative and/or its wholly
owned broadband subsidiary and/or other broadband provider shall be
granted a permanent easemen t for the trespass or condemnation that
was the subject of the claim.
C. An Approved Broadband Provider with a current pole
attachment agreement with the electric cooperative to which it is
attaching may use the cooperative’s Above Ground Easement for the
purpose of providing high speed broadband service. Notwithstanding
the provisions of Section 2023 of Title 12 of the Oklahoma Statutes,
a class action may not be maintained against an Approved Broadband
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Provider or the rural electric cooperative in a sui t in trespass or
inverse condemnation based on a claim of expanded use of an easement
where the broadband facilities are located on above ground
infrastructure owned, held or used by a rural electric cooperative.
In a suit in trespass or inverse condemnat ion against an Approved
Broadband Provider or the rural electric cooperative, based on a
claim of expanded use of an Above Ground Easement by the cooperative
or the Approved Broadband Provider, any trespass found to exist
shall be deemed permanent and the actual damages awarded shall be
the fair market value which, notwithstanding any other provision of
law, shall always be greater than zero but shall not exceed the
difference between the fair market value of the property owner's
entire property immediately before the taking and the fair market
value of the property owner's property immediately after the taking.
In such a suit, evidence of revenues or profits derived, or the
rental value of use of the attached broadband facilities, shall not
be admissible in determining fair market value. A property owner's
actual damages shall be fixed at the time of the initial trespass
and shall not be deemed to continue, accumulate or accrue. Upon
payment of damages, the Approved Broadband Provider and the electric
cooperative shall be granted a permanent easement for the trespass
or condemnation that was the subject of the claim.
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SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 437.33 of Title 18, unles s there
is created a duplication in numbering, reads as follows:
The Oklahoma Legislature finds that Rural Electric Cooperatives
and/or their subsidiaries should be permitted to use existing
utility easements owned, held or used by rural electric cooperati ves
to provide or expand access to broadband services. Consequently,
the installation and operation of broadband services within their
electric easement are merely changes in the manner or degree of the
granted use as appropriate to accommodate a new tech nology and,
absent any applicable express prohibition contained in the
instrument conveying or granting the electric easement, shall be
deemed as a matter of law to be a permitted use within the scope of
every electric cooperative easement. Subject to com pliance with any
express prohibitions in an electric cooperative easement, and in
compliance with this act, the Rural Electric Cooperative and/or an
Approved Broadband Provider may use the electric easement to
install, maintain, lease and operate broadband services. Provided,
however, that any rural electric cooperative owning an electric
easement may assess fees and charges and impose reasonable
conditions on the use of its facilities within such electric
easement for the purpose of providing or supportin g broadband
services.
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SECTION 4. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON UTILITIES, dated 02/23/2021 - DO
PASS.