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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
CONFERENCE COMMITTEE
SUBSTITUTE
FOR ENGROSSED
HOUSE BILL NO. 2779 By: Pfeiffer of the House
and
Leewright of the Senate
CONFERENCE COMMITTEE SUBSTITUTE
An Act relating to rur al electric cooperative
easements; defining terms; providing for use of
certain easements for broadband service; prohibiting
class action lawsuits against certain entities based
on trespass, nuisance or inverse condemnation;
providing for permanent nature of trespass, nuisance
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 B roadband Providers
to use rural electric cooperative Above Ground
Easements for certain purposes; requiring pole
attachments to be certain height above roadway;
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
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within electric easement for support of broadband
services; providing for codification; and providing
an effective date.
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 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
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 Ti tle 12
of the Oklahoma Statutes, a class action may not be maintained
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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 broadba nd 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 nuisance 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 differen ce 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 ac crue. 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 that was the
subject of the claim.
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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. Any pole
attachments made pursuant to this section shall be at least twenty
(20) 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 against an Approved Broadband Provider or the
rural electric cooperative 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 above ground
infrastructure owned, held 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 tres pass or
nuisance 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 fai r
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 u se of the
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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 paymen t 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 codif ied
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 d egree 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 an
Approved Broadband Provider may use the el ectric easement to
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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.
58-1-8272 JBH 05/13/21