By: Turner H.B. No. 2710
A BILL TO BE ENTITLED
AN ACT
relating to cable attachments to electric facilities of electric
cooperatives.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 2, Utilities Code, is amended
by adding Chapter 44 to read as follows:
CHAPTER 44. BROADBAND DEPLOYMENT AND FAIR ACCESS TO ELECTRIC
COOPERATIVE FACILITIES
Sec. 44.001. DEFINITIONS. In this chapter:
(1) "Cable attachment" means any attachment by a cable
company to an electric facility.
(2) "Cable company" means a cable operator as defined
in 47 U.S.C. Section 522(5), regardless of the nature of the
services offered or provided.
(3) "Electric cooperative" has the meaning assigned by
Section 161.002(4).
(4) "Electric facility" means any pole, duct, conduit,
or right-of-way owned or controlled by an electric cooperative.
(5) "Make-ready" means all work necessary or
appropriate to make space for or otherwise accommodate new,
additional, or changed cable attachments, including necessary or
appropriate rearrangements, removal and replacement of the
electric facility or cable attachments, and other related work.
Sec. 44.002. ACCESS REQUIREMENTS. An electric cooperative
shall provide a cable company with access to all of the electric
cooperative's electric facilities using just, reasonable,
cost-based, and nondiscriminatory rates, terms, and conditions.
Sec. 44.003. APPROVAL OR DENIAL OF CABLE ATTACHMENT
REQUEST. (a) An electric cooperative shall approve or deny in
writing a cable attachment request no later than the 15th business
day after the request is received from the cable company.
(b) If make-ready by the electric cooperative is required in
order to grant the cable attachment request, an estimate for the
make-ready costs shall be provided to the cable company that
submitted the cable attachment request at the same time the
electric cooperative provides written notice of the approval or
denial of the cable attachment request. The cable company shall
provide written notice to the electric cooperative indicating
whether or not the cable company consents to the make-ready cost
estimate provided by the electric cooperative.
(c) The denial of a cable attachment request must include,
in sufficient detail, the grounds for the denial. The grounds for
the denial must be in accordance with this section.
(d) Except as provided by Subsection (e), an electric
cooperative may deny a cable company access to its electric
facilities on a nondiscriminatory basis:
(1) if there is insufficient capacity; or
(2) for reasons of safety, reliability, or generally
applicable engineering principles.
(e) An electric cooperative may not deny a cable company
access to its electric facilities on the ground that there is
insufficient capacity or for reasons of safety, reliability, or
generally applicable engineering principles if:
(1) the grounds for denial specified by the electric
cooperative can be remedied by setting a new pole or other electric
facility or by rearranging or otherwise reengineering the electric
facilities; and
(2) the cable company that submitted the cable
attachment request agrees to pay the reasonable, actual, and
verifiably comparable costs of:
(A) setting a new pole or other electric
facility; or
(B) rearranging or otherwise reengineering the
electric facilities to resolve capacity, safety, reliability, or
engineering issues specified by the electric cooperative in its
denial of a cable attachment request.
Sec. 44.004. MAKE-READY COSTS AND WORK. (a) A cable
company with an existing cable attachment to the electric
cooperative's electric facilities is not required to bear any of
the costs of make-ready with regard to its cable attachment if such
make-ready is required as the result of an additional attachment or
adjustment of an existing attachment sought by another entity or
the electric cooperative.
(b) If make-ready is required by an electric cooperative to
accommodate the cable attachment of a cable company that submitted
a cable attachment request approved by the electric cooperative,
the electric cooperative must begin the make-ready work no later
than the 20th business day after the electric cooperative receives
the cable company's written consent to the electric cooperative's
make-ready cost estimate. The electric cooperative shall use its
best efforts to complete all make-ready work no later than the 60th
business day after receiving the cable company's written consent to
the electric cooperative's make-ready cost estimate.
Sec. 44.005. TERMS OF CABLE ATTACHMENT AGREEMENT. (a)
Following receipt of a request from a cable company to enter into a
cable attachment agreement, an electric cooperative shall
negotiate in good faith the rates, terms, and conditions for access
to and use of the electric facilities.
(b) A cable company and an electric cooperative that are
parties to an existing cable attachment agreement shall negotiate
in good faith the rates, terms, and conditions for the cable
company's continued access to the electric cooperative's electric
facilities if a written request to negotiate is submitted to the
electric cooperative by the cable company or to the cable company by
the electric cooperative:
(1) pursuant to the terms of the existing agreement;
(2) no sooner than the 120th day before the end of the
term of the existing agreement; or
(3) no later than the 120th day following the
expiration of the term of the existing agreement.
(c) A cable company or electric cooperative may file an
action with the commission if:
(1) the parties are unable to reach agreement for a new
or revised cable attachment agreement by the 90th day following
receipt by either party of a written request to negotiate from the
other party; or
(2) either party believes in good faith that an
impasse has been reached before the 90th day following receipt by
either party of a written request to negotiate from the other party.
(d) All rates, including rent, fees, and charges demanded,
invoiced, or assessed by an electric cooperative, shall be just,
reasonable, cost-based, and nondiscriminatory. An electric
cooperative may not charge a cable company, regardless of the
nature of the services provided by that cable company, a cable
attachment rate or conduit rate that exceeds the rate the electric
cooperative would be permitted to charge under rules adopted by the
Federal Communications Commission under 47 U.S.C. Section 224(d) if
the electric cooperative were regulated under federal law and the
rules of the Federal Communications Commission.
(e) Rates may not be increased more often than once annually
and then only if:
(1) the cable attachment agreement between the
electric cooperative and the cable company allows for such
increases; and
(2) the electric cooperative provides the cable
company with written notice containing the justification for the
proposed increase at least 60 days before the proposed increase
goes into effect.
(f) An electric cooperative shall provide a cable company
written notice at least 180 days before removing the cable
company's cable attachments to an electric facility or terminating
any service to the electric facility as the result of a breach of a
rate, term, or condition of a cable attachment agreement. If a
breach of a rate, term, or condition of a cable attachment agreement
alleged by the electric cooperative is disputed by a cable company,
the cable company may file an action with the commission to contest
the decision of the electric cooperative to remove the cable
company's cable attachments or terminate any service to the
electric facility.
(g) All other terms and provisions of any agreement between
an electric cooperative and a cable company governing or affecting
a cable company's cable attachments, including any rate, term, or
condition governing audits, inspections, termination,
indemnification, security bond, and insurance requirements, shall
be just, reasonable, and consistent with the provisions of this
chapter.
Sec. 44.006. COMMISSION AUTHORITY AND JURISDICTION. (a)
Notwithstanding any other law, the commission has jurisdiction to
enforce this chapter.
(b) Any electric cooperative or cable company that is
aggrieved by conduct of another party that is in violation of this
chapter may file a complaint with the commission.
(c) The commission shall resolve any dispute brought by a
party under this chapter consistent with the public interest and
this chapter, taking into consideration and applying such factors
and evidence that may be presented by a party, including the rules
and regulations applicable to cable attachments under 47 U.S.C.
Section 224, or the rules and regulations of any state certified to
regulate cable attachments under 47 U.S.C. Section 224(c).
Sec. 44.007. APPLICABILITY AND ENFORCEABILITY. (a) This
chapter shall not apply to any cable attachment regulated by the
Federal Communications Commission under 47 U.S.C. Section 224.
(b) This chapter does not constitute state certification
under 47 U.S.C. Section 224(c). If a court of competent
jurisdiction determines that this chapter is tantamount to
certification, this chapter has no effect and is not enforceable.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September, 1, 2011.