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SENATE FLOOR VERSION
April 14, 2022
ENGROSSED HOUSE
BILL NO. 3835 By: Martinez, Newton,
Fetgatter, and Caldwell
(Trey) of the House
and
Howard of the Senate
An Act relating to the Oklahoma Corporation
Commission; creating the Facilitating Internet
Broadband Rural Expansion (FIBRE) Act; defining term;
requiring the use of certain pole attachment rate
formula; providing certain formula; making certain
exemption; requiring certain agreement pr ior to
attaching; exempting certain unauthorized pole
attachments; setting certain new att achment rate;
stating certain contingencies; req uiring rates not
include certain charges; requiring certain separate
payment; requiring certain contracts; exempting
certain unauthorized or noncompliant pole
attachments; requiring the submission of data;
providing for certain penalty; vesting authority in
the Oklahoma district courts to enforce certain
provisions and settle disputes; declaring certain
business information to be proprietary; requiri ng
certain filed information be treated in a
confidential manner and subject to confidentiality
order; requiring certain information to be filed
under seal; allowing court to seek certain
information; providing for noncodifica tion; providing
for codification; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLA HOMA:
SECTION 1. NEW LAW A new section of law not to be
codified in the Oklahoma Statutes reads as follows:
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This act shall be known and may be cited as the "Facilitating
Internet Broadband Rural Expansio n (FIBRE) Act".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 158.66 of Title 17, unless there
is created a duplication in numbering, reads as follows:
A. As used in subsection B of this section, the term "attaching
entity" shall include the electric attachments of rural electric
cooperatives and their subsidiaries .
B. Except as otherwise provided in this section, when a ru ral
electric cooperative and a communications services provider c annot
agree to a voluntary negotiated pole attachmen t rate, the maximum
pole attachment rate shall be governed by the following formula:
Maximum Per Pole Rate = Space Factor x Net Cost of Bare Pole x
Carrying Charge Rate
Space Factor = (Occupied Space + (( 2/3 x Unusable Space)/No. of
Attaching Entities)) ÷ Pole Height
Net Pole Investment = Gross Pole Investment (Account 364) -
Accumulated Depreciation (Poles) – Accumulated Deferred Taxes
Carrying Charges = A rural electric cooperative's Administrative
+ Maintenance charges + Depreciation + Taxes + Return
Administrative = Total Admin and General Expense ÷ Net Plant
Maintenance = Account 593 Expense ÷ Net Pole Investment
Depreciation = Gross Pole Investment ÷ Net Pole Investment x
Depreciation Rate
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Taxes = Account 408.1 (Gross Receipts Tax) ÷ Net Plant
Return = 8%
Unusable Space = 25.0 ft
Occupied Space = 1 ft
Presumptive Default Values
No. of Attachers = Actual number of attach ing entities to poles
that have third-party attachments
Pole Height = 37.5 ft or higher based on the actual average pole
height
Net Cost of Bare Pole = 85% of Net Pole Investment ÷ Total
Number of Poles
This subsection shall not a pply to any pole attachments
authorized under currently existing and valid pole attachment
license agreements entered into prior to the effective date of this
act. The determination of a maximum attachment rate does not remove
the requirement of a com munications services provider to have a pole
attachment agreement with the owner of the poles prior to attaching,
and this subsection shall not apply to any unauthorized pole
attachments.
C. Notwithstanding the maximum pole attachment rate determined
in subsection B of this section, beginning on the effective date of
this act and for four (4) years thereafter, the rat es charged by a
rural electric cooperative for new a ttachments to cooperative -owned
electric poles by providers of telecommunications, broadband, video,
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Internet services, or any cooperative affiliate entity or subsidiary
company, under existing pole attachment license agreements or such
agreements entered into on or after the effective date of this act
shall not exceed One Dollar ($1.00) per cooperative-owned electric
pole per year ("One Dollar Deal"), contingent upon the following:
1. A retail broadband provider shall not have an existing
attachment on the specific electric pole;
2. New attachments subject to the One Dollar Deal shall be used
to serve customers located within the applicable cooperative's
certified territory established under the Retail Electric Supplier
Certified Territory Act and is in an unserved area as defined by the
Oklahoma Broadband Service Map;
3. One Dollar Deal attachments shall be capable of providing
wire-line broadband service at speeds of one hundred (100) megabits
per second download and twenty (20) megabits per second upload . The
broadband service speeds listed in this paragraph shall be subject
to change or update when, or if, the Feder al Communications
Commission makes new rulings related to its definition of broadband
and when that new definition exceeds a s peed of one hundred (100)
megabits per second download and twenty (20) megabits per second
upload; and
4. Within sixty (60) days of the e nd of each calendar year,
applicable attaching providers shall submit written reports and
information to the appropriate rural electric cooperative evi dencing
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compliance with all One Dollar Deal attachment requirements. The
evidence of compliance shall include the customer s served, customers
passed, service level offered, and spe cific qualifying poles
attached to that qualify for the One Dollar Deal. The intentional
submission of any incomplete or any false information pursuant to
this section shall result in a n administrative penalty of One
Hundred Dollars ($100.00) a day for th e first thirty (30) days, Five
Hundred Dollars ($500.00) a day for the next thirty (30) days, and
One Thousand Dollars ($1,000.00) every day thereafter until accurate
data is presented.
D. The rates provided in this section shall not include any
applicable charges for electric service. A com munications services
provider must pay separately for electric service and such service
shall be charged to providers at the applicable retail market rate.
E. The monetary cap provided under subsection B of this section
and the One Dollar Deal provided under subsection C of this section
shall not eliminate the requirement of communicati ons services
providers to contract with the rural electric cooperatives on terms
and conditions of attachments under pole attachment license
agreements.
F. This section shall not apply to any communications services
provider that maintains unauthorized pole attachmen ts on cooperative
poles or fails to remedy any noncompl iant pole attachments per the
cooperative's direction.
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G. Rural electric cooperatives shall be required to submit
presumptive default values to retail broadband providers regarding
pole attachments and shall provide the requested data within sixty
(60) days upon the execution of a signed letter of intent and
nondisclosure agreement. The intentional submission of any
incomplete or any false data pursuant to this section shall result
in an administrative penalty of One Hundred Dollars ($100.00) a day
for the first thirty (30) days, Five Hundred Dollars ($500.00) a day
for the next thirty (30) days, and One Thousand Dollars ($1,000.00)
every day thereafter until accurate data is pr esented.
H. The Oklahoma district court system shall be vested with
authority to enforce the provisions of this section and to settle
disputes which may arise regarding pole attachments relative t o
electric cooperative facilities. The electric cooperative 's
business information used to calculate the formula found in
subsection B of this section is sensitive and proprietary in nature
and is hereby declared proprietary business information which is to
be treated in a confidential manner by all parties to any legal
action brought under this section, and such informatio n shall be
made subject to a confidentiality order as shall be prescribed by a
court. To the extent such information is filed with a c ourt, it
shall be filed under seal, made available only to parties to the
action under confidentiality orders, and shall not be made public.
The court may seek information including, but not limited to:
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1. Records that correlate to the following Federal Energy
Regulatory Commission and United States Department of Agriculture
Rural Utility Service Account Codes:
a. 108 – Accumulated Provision for Depreciation of
Electric Utility Plant,
b. 190 – Accumulated Deferred Income Taxes,
c. 281 – Accumulated Deferred Income Taxes – Accelerated
Amortization Property,
d. 282 – Accumulated Deferred Income Taxes – Other
Property,
e. 283 – Accumulated Deferred Income Taxes – Other,
f. 364 – Poles, Towers, and Fixtures,
g. 365 – Overhead Conductors and Devices,
h. 369 – Services,
i. 408.1 – Taxes – Property,
j. 409.1 – Income Taxes, Utility Operating I ncome,
k. 410.1 – Provision for Deferr ed Income Taxes, Utility
Operating Income,
l. 411.1 – Provision for Deferred Income Taxes – Credit,
Utility Operating Income,
m. 411.4 – Investment Tax Credit Adjustments, Utility
Operations, and
n. 593 – Maintenance of Overhead Lines;
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2. Number of poles owne d, leased, or operated by the electric
cooperative;
3. Number of attachments on poles owned, leased, or operated by
the electric cooperative;
4. Average height of poles owned, leased, or operated by the
electric cooperative;
5. Cooperative-defined percentage of usable space on poles
owned, leased, or operated by the electric cooperative; and
6. Cooperative's established rate of ret urn.
SECTION 3. This act shall become effective November 1, 20 22.
COMMITTEE REPORT BY: COMMITTEE ON BUSINESS, COMMERCE AND TOURISM
April 14, 2022 - DO PASS