By: Cook (Senate Sponsor - Carona) H.B. No. 3355
(In the Senate - Received from the House May 6, 2013;
May 8, 2013, read first time and referred to Committee on Business
and Commerce; May 14, 2013, reported favorably by the following
vote: Yeas 9, Nays 0; May 14, 2013, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to cable operators' attachments on distribution poles
owned or controlled by electric cooperatives.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 5, Utilities Code, is amended by adding
Chapter 252 to read as follows:
CHAPTER 252. ATTACHMENTS TO ELECTRIC COOPERATIVE'S DISTRIBUTION
POLES
Sec. 252.001. DEFINITIONS. In this chapter:
(1) "Abandoned pole attachment" means a pole
attachment:
(A) for which a cable operator has not paid, for a
period of 90 consecutive days or more, an invoice for rental charges
presented by an electric cooperative, unless there is a bona fide
dispute over the invoice; or
(B) that is not removed after authority for the
pole attachment has terminated or expired, subject to any extension
period for negotiation and mediation described by Section
252.005(c).
(2) "Cable operator" means an entity that owns or
operates a cable system, as that term is defined by 47 U.S.C.
Section 522, regardless of the nature of the services offered or
provided by the entity in addition to cable services.
(3) "Pole" means a pole carrying distribution lines
with a voltage rating no higher than 34.5 kilovolts.
(4) "Pole attachment" means an affixture of cables,
strands, wires, and associated equipment attached to a pole
directly or indirectly.
(5) "Security instrument" means a performance bond or
an equivalent financial instrument that guarantees payments of
amounts payable to an electric cooperative by a cable operator.
Sec. 252.002. APPLICABILITY. (a) This chapter applies to a
pole attachment affixed by a cable operator to a pole owned and
controlled by an electric cooperative. This chapter does not apply
to a pole attachment regulated by the Federal Communications
Commission under 47 U.S.C. Section 224.
(b) This chapter does not abrogate or affect a right or
obligation of a party to a pole attachment contract entered into by
a cable operator and an electric cooperative before September 1,
2013.
Sec. 252.003. LIMITATION. (a) This chapter does not
constitute state certification under 47 U.S.C. Section 224(c). If
a court determines that this chapter constitutes certification
under that section, this chapter is not enforceable and has no
effect.
(b) This chapter may not be construed to subject an electric
cooperative to regulation by the Federal Communications Commission
under 47 U.S.C. Section 224. This chapter does not authorize a
department, agency, or political subdivision of the state to
exercise enforcement or regulatory authority over attachments to
electric cooperative poles.
Sec. 252.004. CONSTRUCTION. Unless defined by Section
252.001, the technical terms and phrases in this chapter shall be
construed using their usual and customary meanings in the electric
and cable industries.
Sec. 252.005. POLE ATTACHMENT CONTRACTS; ACCESS
REQUIREMENTS. (a) A cable operator and an electric cooperative
shall establish the rates, terms, and conditions for pole
attachments, including the cooperative's application and
permitting processes by a written pole attachment contract executed
by both parties. The rates, terms, and conditions for attachments
by a cable operator on an electric cooperative's poles must be just
and reasonable.
(b) A cable operator and an electric cooperative shall
negotiate a pole attachment contract in good faith.
(c) A request to negotiate a new pole attachment contract by
a cable operator or an electric cooperative must be in writing. If
a cable operator and an electric cooperative are unable to agree to
a new pole attachment contract before the expiration date of an
existing pole attachment contract, the rates, terms, and conditions
of the existing pole attachment contract and the terms and
conditions of the electric cooperative's application and
permitting processes remain in force:
(1) during the 180-day negotiation period described by
Subsection (d) and during the period of any agreed extension; and
(2) during the 90-day mediation period described by
Subsection (d) and during the period of any agreed extension.
(d) If a cable operator and an electric cooperative are
unable to agree to a new pole attachment contract before the 181st
day after the expiration date of the existing pole attachment
contract and are unable to agree to an extension of the negotiation
period for a certain number of days, the cable operator and electric
cooperative shall attempt to resolve any disagreement over the
rates, terms, or conditions by submitting the contract negotiations
to mediation. The mediation process may not extend later than the
90th day after the end of the 180-day negotiation period and any
agreed extension of that period unless the cable operator and an
electric cooperative agree to an extension of the mediation period
for a certain number of days. The mediation process must be
conducted in a county in which the electric cooperative has
distribution poles. The cable operator and an electric cooperative
must share the expenses for the mediator equally.
(e) If the mediation process does not resolve the
disagreement over the rates, terms, or conditions, the cable
operator or the electric cooperative may request that a court
resolve the disagreement over the rates, terms, and conditions.
(f) Access to a pole may be denied where there is
insufficient capacity and for reasons of safety, reliability, and
generally applicable engineering purposes.
(g) In determining whether rates, terms, and conditions are
just and reasonable, at least the following factors must be
considered:
(1) the interests of and benefits to the consumers and
potential consumers of the electric cooperative's services;
(2) the interests of and benefits to the subscribers
and potential subscribers of the services offered through the pole
attachments;
(3) compliance with applicable safety standards; and
(4) the maintenance and reliability of both electric
distribution and cable services.
Sec. 252.006. TRANSFER OF ATTACHMENTS. (a) An electric
cooperative shall provide a cable operator with notice when the
electric cooperative is installing a new pole to replace an
existing pole to which a pole attachment is affixed due to the
rerouting, maintenance, or upgrading of the electric distribution
system. In the notice, the electric cooperative shall specify a
date for the cable operator to remove its attachment from the
existing pole and transfer the attachment to the new pole.
(b) If a cable operator does not transfer a pole attachment
to the new pole on or before the 30th day after the date specified by
the electric cooperative under Subsection (a), the electric
cooperative may transfer the pole attachment to the new pole at the
cable operator's expense, including the cost for the electric
cooperative to return to the site.
(c) A cable operator shall indemnify, defend, and hold
harmless the electric cooperative and the cooperative's members,
directors, officers, agents, and employees from and against all
liability for the removal and transfer of a pole attachment subject
to this section, except for personal injury or property damage
arising from gross negligence or wilful misconduct of the electric
cooperative during the removal and transfer process.
Sec. 252.007. ABANDONED POLE ATTACHMENTS; REMOVAL. (a) A
cable operator shall remove the operator's abandoned pole
attachment from an electric cooperative's pole not later than the
60th day after the date the cable operator receives from the
electric cooperative a written request for removal of the pole
attachment. A cable operator may request an electric cooperative
to extend for a reasonable period the 60-day period prescribed by
this section at any time before the 60-day period expires. The
request for an extension must be in writing. The electric
cooperative may grant a cable operator a reasonable extension of
time to remove an abandoned attachment.
(b) If a cable operator does not remove a pole attachment
for which a request for removal was made under Subsection (a) before
the expiration of the period described by that subsection or before
the expiration of an extended period granted by the electric
cooperative, the electric cooperative may remove, use, sell, or
dispose of the pole attachment at the cable operator's expense.
(c) An electric cooperative may require that a cable
operator post a security instrument in an amount reasonably
sufficient to cover the potential cost to the electric cooperative
of removal and disposal of abandoned pole attachments.
(d) A cable operator shall indemnify, defend, and hold
harmless the electric cooperative and the cooperative's members,
directors, officers, agents, and employees from and against all
liability for the removal, use, sale, or disposal of abandoned pole
attachments, except for personal injury or property damage arising
from the gross negligence or wilful misconduct of the electric
cooperative during the removal and disposal process.
Sec. 252.008. EASEMENTS; INDEMNITY. (a) A cable operator
is responsible for obtaining all rights-of-way and easements
necessary for the installation, operation, and maintenance of the
operator's pole attachments.
(b) An electric cooperative is not required to obtain or
expand a right-of-way or easement to accommodate a pole attachment
requested by a cable operator.
(c) An electric cooperative is not liable if a cable
operator is prevented from placing or maintaining a pole attachment
because the cable operator did not obtain a necessary right-of-way
or easement.
(d) A cable operator shall indemnify, defend, and hold
harmless the electric cooperative and the cooperative's members,
directors, officers, agents, and employees from and against any
liability resulting from the cable operator's failure to obtain a
necessary right-of-way or an easement for a pole attachment.
SECTION 2. Chapter 252, Utilities Code, as added by this
Act, applies to a pole attachment contract entered into, or renewed
or extended, by a cable operator and an electric cooperative on or
after the effective date of this Act. A contract entered into by a
cable operator and an electric cooperative before the effective
date of this Act is governed by the law in effect on the date the
contract is executed, and the former law remains in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2013.
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