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ENGROSSED SENATE AMENDMENT
TO
ENGROSSED HOUSE
BILL NO. 2779 By: Pfeiffer of the House
and
Leewright of the Senate
[ rural electric cooperative easements - providing
for use of certain easements for broadband service
- authorizing Approved Broadb and Providers to use
rural electric cooperative Above Ground Easements
for certain purposes - effective date ]
AMENDMENT NO. 1. Page 1, strike the title, enacting clause and
entire bill and insert
”[ rural electric cooperative easements - providing
for use of certain easements for broadband service -
authorizing Approved Broadband Providers to use rural
electric cooperative Above Ground Easements for
certain purposes – codification - effective date ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLA HOMA:
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 numbering, reads as follows:
As used in this act:
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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 the 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, nuisance 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
cooperative. In a suit in trespass, nuisance or inverse
condemnation against a rural electric cooperative or its broadband
subsidiary, based on a claim of expanded use of an easement, any
trespass or nusiance found to exist shall be deemed permanent and
the actual damages awarded shall be the fair market value which,
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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, evide nce 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 n ot 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 easement for the trespass or condemnation tha t 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 broad band service. Any pole
attachments made pursuant to this section shall be at least fourteen
(14) feet above roadway or driveway. Notwithstanding the provisions
of Section 2023 of Title 12 of the Oklahoma Statutes, a class action
may not be maintained aga inst an Approved Broadband Provider or the
rural electric cooperative in a suit in trespass, nusiance or
inverse condemnation based on a claim of expanded use of an easement
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where the broadband facilities are located on above ground
infrastructure owned, h eld or used by a rural electric cooperative.
In a suit in trespass, nuisance or inverse condemnation 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 or
nusiance 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.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 437.33 of Title 18, unless there
is created a duplication in numbering, reads as follows:
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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 cooperatives
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 technology 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 compliance with any
express prohibitions in an electric cooperative easement, and in
compliance with this act, the rural electric cooperative and/or a n
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 supporting broadband
services.
SECTION 4. This act shall become effective November 1, 2021. ”
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Passed the Senate the 22nd day of April, 2021.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2021.
Presiding Officer of the House
of Representatives
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ENGROSSED HOUSE
BILL NO. 2779 By: Pfeiffer of the House
and
Leewright of the Senate
[ rural electric cooperative easements - providing
for use of certain easements for broadband service
- authorizing Approved Broadband Providers to use
rural electric cooperative Above Ground Easements
for certain purposes - effective date ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 5. 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 numbering, 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
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2. "Above Ground Easement" shall mean the ability t o attach to
the above ground infrastructure of a rural electric cooperative.
SECTION 6. 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 nu mbering, 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
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 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
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value of the property owner's property immediately after the takin g.
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 ini tial 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 easement for the tre spass 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
Provider or the rural electric cooperative 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 above ground
infrastructure owned, held or used by a rural electric cooperative.
In a suit in trespass or inverse condemnation against a n 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
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shall be deemed permanent and the actual damage s 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 t aking 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 determinin g 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.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 437.33 of Title 18, unless 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 cooperatives
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 technology and,
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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 compliance 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. P rovided,
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 supporting broadband
services.
SECTION 8. This act shall become effective November 1, 2021.
Passed the House of Representatives the 11th day of March, 2021.
Presiding Officer of the House
of Representatives
Passed the Senate the ___ day of __________, 2021.
Presiding Officer of the Senate