Texas 2013 - 83rd Regular

Texas House Bill HB3355 Compare Versions

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1	1	By: Cook (Senate Sponsor - Carona) H.B. No. 3355
2	2	(In the Senate - Received from the House May 6, 2013;
3	3	May 8, 2013, read first time and referred to Committee on Business
4	4	and Commerce; May 14, 2013, reported favorably by the following
5	5	vote: Yeas 9, Nays 0; May 14, 2013, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to cable operators' attachments on distribution poles
11	11	owned or controlled by electric cooperatives.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Title 5, Utilities Code, is amended by adding
14	14	Chapter 252 to read as follows:
15	15	CHAPTER 252. ATTACHMENTS TO ELECTRIC COOPERATIVE'S DISTRIBUTION
16	16	POLES
17	17	Sec. 252.001. DEFINITIONS. In this chapter:
18	18	(1) "Abandoned pole attachment" means a pole
19	19	attachment:
20	20	(A) for which a cable operator has not paid, for a
21	21	period of 90 consecutive days or more, an invoice for rental charges
22	22	presented by an electric cooperative, unless there is a bona fide
23	23	dispute over the invoice; or
24	24	(B) that is not removed after authority for the
25	25	pole attachment has terminated or expired, subject to any extension
26	26	period for negotiation and mediation described by Section
27	27	252.005(c).
28	28	(2) "Cable operator" means an entity that owns or
29	29	operates a cable system, as that term is defined by 47 U.S.C.
30	30	Section 522, regardless of the nature of the services offered or
31	31	provided by the entity in addition to cable services.
32	32	(3) "Pole" means a pole carrying distribution lines
33	33	with a voltage rating no higher than 34.5 kilovolts.
34	34	(4) "Pole attachment" means an affixture of cables,
35	35	strands, wires, and associated equipment attached to a pole
36	36	directly or indirectly.
37	37	(5) "Security instrument" means a performance bond or
38	38	an equivalent financial instrument that guarantees payments of
39	39	amounts payable to an electric cooperative by a cable operator.
40	40	Sec. 252.002. APPLICABILITY. (a) This chapter applies to a
41	41	pole attachment affixed by a cable operator to a pole owned and
42	42	controlled by an electric cooperative. This chapter does not apply
43	43	to a pole attachment regulated by the Federal Communications
44	44	Commission under 47 U.S.C. Section 224.
45	45	(b) This chapter does not abrogate or affect a right or
46	46	obligation of a party to a pole attachment contract entered into by
47	47	a cable operator and an electric cooperative before September 1,
48	48	2013.
49	49	Sec. 252.003. LIMITATION. (a) This chapter does not
50	50	constitute state certification under 47 U.S.C. Section 224(c). If
51	51	a court determines that this chapter constitutes certification
52	52	under that section, this chapter is not enforceable and has no
53	53	effect.
54	54	(b) This chapter may not be construed to subject an electric
55	55	cooperative to regulation by the Federal Communications Commission
56	56	under 47 U.S.C. Section 224. This chapter does not authorize a
57	57	department, agency, or political subdivision of the state to
58	58	exercise enforcement or regulatory authority over attachments to
59	59	electric cooperative poles.
60	60	Sec. 252.004. CONSTRUCTION. Unless defined by Section
61	61	252.001, the technical terms and phrases in this chapter shall be
62	62	construed using their usual and customary meanings in the electric
63	63	and cable industries.
64	64	Sec. 252.005. POLE ATTACHMENT CONTRACTS; ACCESS
65	65	REQUIREMENTS. (a) A cable operator and an electric cooperative
66	66	shall establish the rates, terms, and conditions for pole
67	67	attachments, including the cooperative's application and
68	68	permitting processes by a written pole attachment contract executed
69	69	by both parties. The rates, terms, and conditions for attachments
70	70	by a cable operator on an electric cooperative's poles must be just
71	71	and reasonable.
72	72	(b) A cable operator and an electric cooperative shall
73	73	negotiate a pole attachment contract in good faith.
74	74	(c) A request to negotiate a new pole attachment contract by
75	75	a cable operator or an electric cooperative must be in writing. If
76	76	a cable operator and an electric cooperative are unable to agree to
77	77	a new pole attachment contract before the expiration date of an
78	78	existing pole attachment contract, the rates, terms, and conditions
79	79	of the existing pole attachment contract and the terms and
80	80	conditions of the electric cooperative's application and
81	81	permitting processes remain in force:
82	82	(1) during the 180-day negotiation period described by
83	83	Subsection (d) and during the period of any agreed extension; and
84	84	(2) during the 90-day mediation period described by
85	85	Subsection (d) and during the period of any agreed extension.
86	86	(d) If a cable operator and an electric cooperative are
87	87	unable to agree to a new pole attachment contract before the 181st
88	88	day after the expiration date of the existing pole attachment
89	89	contract and are unable to agree to an extension of the negotiation
90	90	period for a certain number of days, the cable operator and electric
91	91	cooperative shall attempt to resolve any disagreement over the
92	92	rates, terms, or conditions by submitting the contract negotiations
93	93	to mediation. The mediation process may not extend later than the
94	94	90th day after the end of the 180-day negotiation period and any
95	95	agreed extension of that period unless the cable operator and an
96	96	electric cooperative agree to an extension of the mediation period
97	97	for a certain number of days. The mediation process must be
98	98	conducted in a county in which the electric cooperative has
99	99	distribution poles. The cable operator and an electric cooperative
100	100	must share the expenses for the mediator equally.
101	101	(e) If the mediation process does not resolve the
102	102	disagreement over the rates, terms, or conditions, the cable
103	103	operator or the electric cooperative may request that a court
104	104	resolve the disagreement over the rates, terms, and conditions.
105	105	(f) Access to a pole may be denied where there is
106	106	insufficient capacity and for reasons of safety, reliability, and
107	107	generally applicable engineering purposes.
108	108	(g) In determining whether rates, terms, and conditions are
109	109	just and reasonable, at least the following factors must be
110	110	considered:
111	111	(1) the interests of and benefits to the consumers and
112	112	potential consumers of the electric cooperative's services;
113	113	(2) the interests of and benefits to the subscribers
114	114	and potential subscribers of the services offered through the pole
115	115	attachments;
116	116	(3) compliance with applicable safety standards; and
117	117	(4) the maintenance and reliability of both electric
118	118	distribution and cable services.
119	119	Sec. 252.006. TRANSFER OF ATTACHMENTS. (a) An electric
120	120	cooperative shall provide a cable operator with notice when the
121	121	electric cooperative is installing a new pole to replace an
122	122	existing pole to which a pole attachment is affixed due to the
123	123	rerouting, maintenance, or upgrading of the electric distribution
124	124	system. In the notice, the electric cooperative shall specify a
125	125	date for the cable operator to remove its attachment from the
126	126	existing pole and transfer the attachment to the new pole.
127	127	(b) If a cable operator does not transfer a pole attachment
128	128	to the new pole on or before the 30th day after the date specified by
129	129	the electric cooperative under Subsection (a), the electric
130	130	cooperative may transfer the pole attachment to the new pole at the
131	131	cable operator's expense, including the cost for the electric
132	132	cooperative to return to the site.
133	133	(c) A cable operator shall indemnify, defend, and hold
134	134	harmless the electric cooperative and the cooperative's members,
135	135	directors, officers, agents, and employees from and against all
136	136	liability for the removal and transfer of a pole attachment subject
137	137	to this section, except for personal injury or property damage
138	138	arising from gross negligence or wilful misconduct of the electric
139	139	cooperative during the removal and transfer process.
140	140	Sec. 252.007. ABANDONED POLE ATTACHMENTS; REMOVAL. (a) A
141	141	cable operator shall remove the operator's abandoned pole
142	142	attachment from an electric cooperative's pole not later than the
143	143	60th day after the date the cable operator receives from the
144	144	electric cooperative a written request for removal of the pole
145	145	attachment. A cable operator may request an electric cooperative
146	146	to extend for a reasonable period the 60-day period prescribed by
147	147	this section at any time before the 60-day period expires. The
148	148	request for an extension must be in writing. The electric
149	149	cooperative may grant a cable operator a reasonable extension of
150	150	time to remove an abandoned attachment.
151	151	(b) If a cable operator does not remove a pole attachment
152	152	for which a request for removal was made under Subsection (a) before
153	153	the expiration of the period described by that subsection or before
154	154	the expiration of an extended period granted by the electric
155	155	cooperative, the electric cooperative may remove, use, sell, or
156	156	dispose of the pole attachment at the cable operator's expense.
157	157	(c) An electric cooperative may require that a cable
158	158	operator post a security instrument in an amount reasonably
159	159	sufficient to cover the potential cost to the electric cooperative
160	160	of removal and disposal of abandoned pole attachments.
161	161	(d) A cable operator shall indemnify, defend, and hold
162	162	harmless the electric cooperative and the cooperative's members,
163	163	directors, officers, agents, and employees from and against all
164	164	liability for the removal, use, sale, or disposal of abandoned pole
165	165	attachments, except for personal injury or property damage arising
166	166	from the gross negligence or wilful misconduct of the electric
167	167	cooperative during the removal and disposal process.
168	168	Sec. 252.008. EASEMENTS; INDEMNITY. (a) A cable operator
169	169	is responsible for obtaining all rights-of-way and easements
170	170	necessary for the installation, operation, and maintenance of the
171	171	operator's pole attachments.
172	172	(b) An electric cooperative is not required to obtain or
173	173	expand a right-of-way or easement to accommodate a pole attachment
174	174	requested by a cable operator.
175	175	(c) An electric cooperative is not liable if a cable
176	176	operator is prevented from placing or maintaining a pole attachment
177	177	because the cable operator did not obtain a necessary right-of-way
178	178	or easement.
179	179	(d) A cable operator shall indemnify, defend, and hold
180	180	harmless the electric cooperative and the cooperative's members,
181	181	directors, officers, agents, and employees from and against any
182	182	liability resulting from the cable operator's failure to obtain a
183	183	necessary right-of-way or an easement for a pole attachment.
184	184	SECTION 2. Chapter 252, Utilities Code, as added by this
185	185	Act, applies to a pole attachment contract entered into, or renewed
186	186	or extended, by a cable operator and an electric cooperative on or
187	187	after the effective date of this Act. A contract entered into by a
188	188	cable operator and an electric cooperative before the effective
189	189	date of this Act is governed by the law in effect on the date the
190	190	contract is executed, and the former law remains in effect for that
191	191	purpose.
192	192	SECTION 3. This Act takes effect September 1, 2013.
193	193	* * * * *