87R8812 BRG-F
By: Paddie H.B. No. 1505
A BILL TO BE ENTITLED
AN ACT
relating to attachments for broadband service on utility poles
owned by an electric cooperative.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 252, Utilities Code, is
amended to read as follows:
CHAPTER 252. CABLE ATTACHMENTS TO ELECTRIC COOPERATIVE'S
DISTRIBUTION POLES
SECTION 2. Title 5, Utilities Code, is amended by adding
Chapter 253 to read as follows:
CHAPTER 253. BROADBAND ATTACHMENTS TO ELECTRIC COOPERATIVE'S
DISTRIBUTION POLES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 253.0001. DEFINITIONS. In this chapter:
(1) "Broadband provider" means an entity that provides
broadband service either directly or through an affiliate that uses
the entity's communications facilities, regardless of whether the
entity:
(A) provides additional services in addition to
broadband service; or
(B) uses its facilities in whole or in part to
provide broadband service.
(2) "Broadband service" means Internet service with
the capability of providing:
(A) a download speed of 25 megabits per second or
faster; and
(B) an upload speed of three megabits per second
or faster.
(3) "Communications space" means the lower usable
space on a pole that is typically reserved for low-voltage
communications equipment.
(4) "Large order application" means an application
submitted by a broadband provider under this subchapter requesting
access to attach pole attachments to a number of poles:
(A) that exceeds the lesser of 300 poles or a
number equal to 0.5 percent of the electric cooperative's poles;
and
(B) that is not more than the lesser of 3,000
poles or a number equal to five percent of the electric
cooperative's poles.
(5) "Pole" has the meaning assigned by Section
252.001.
(6) "Pole attachment" means an affixture of cables,
strands, wires, and associated equipment used in the provision of a
broadband provider's services attached to a pole directly or
indirectly or placed in a right-of-way owned or controlled by an
electric cooperative.
(7) "Simple make-ready activities" means work to
accommodate a new pole attachment on a pole and includes work where
existing attachments in the communications space are moved without
any reasonable expectation of:
(A) service outage or facility damage;
(B) a need to splice an existing communications
attachment; or
(C) a need to relocate an existing wireless
attachment.
Sec. 253.0002. APPLICABILITY AND CONSTRUCTION OF CHAPTER.
(a) This chapter applies to a pole attachment affixed by a
broadband provider 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 broadband provider and an electric cooperative before September
1, 2021.
(c) A broadband provider that attaches a pole attachment to
a pole owned by an electric cooperative under the terms of this
chapter is subject to Sections 252.006, 252.007, and 252.008 in the
same manner as if the broadband provider were a cable operator.
(d) This chapter does not limit a right of a party to a pole
attachment contract to request modification, amendment, or renewal
of such contract to conform it to the provisions of this chapter.
Sec. 253.0003. NO STATE CERTIFICATION; NO REGULATORY
AUTHORITY. (a) This chapter does not constitute state
certification under 47 U.S.C. Section 224. 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.
(c) This chapter does not authorize a department, agency, or
political subdivision of this state to exercise enforcement or
regulatory authority over attachments to electric cooperative
poles.
Sec. 253.0004. CONSTRUCTION OF TERMS AND PHRASES.
Technical terms and phrases in this chapter, other than those
defined by Section 253.0001, shall be construed using the term's or
phrase's usual and customary meanings in the electric and broadband
industries.
Sec. 253.0005. COST-BASED NON-RECURRING CHARGES.
Non-recurring charges authorized by this chapter must be
cost-based.
SUBCHAPTER B. APPLICATION FOR ACCESS TO POLES
Sec. 253.0101. APPLICATION FOR POLE ACCESS. (a) A
broadband provider may not access a pole owned by an electric
cooperative for the purpose of placing a pole attachment unless the
provider applies for that access in accordance with this
subchapter.
(b) An electric cooperative shall:
(1) establish a timeline for a broadband provider to
apply for and obtain access to poles for placing a pole attachment
under this chapter; and
(2) make available an explanation of the information
reasonably required for an application for access to poles for
placing a pole attachment under this chapter to be considered
complete.
Sec. 253.0102. REVIEW OF APPLICATION FOR COMPLETENESS. (a)
An electric cooperative shall review an application for
completeness before the cooperative reviews the application on the
merits.
(b) An electric cooperative shall notify an applicant
whether an application is complete not later than:
(1) the 10th business day after the date the
cooperative receives the application;
(2) the 25th business day after the date the
cooperative receives a large order application;
(3) the fifth business day after the date the
cooperative receives a resubmitted application; or
(4) the 20th business day after the date the
cooperative receives a resubmitted large order application.
Sec. 253.0103. TREATMENT OF MULTIPLE APPLICATIONS BY SAME
APPLICANT. For purposes of this chapter, an electric cooperative
may treat as a single application for pole access an application the
cooperative receives from the same applicant before the 31st day
after the cooperative receives that applicant's most recent
previous application.
Sec. 253.0104. GRANT OR DENIAL OF APPLICATION. (a) Except
as provided by Sections 253.0204 and 253.0302, an electric
cooperative shall grant or deny an application for pole access
under this chapter and provide to the applicant a survey of the
poles affected by the application not later than:
(1) the 45th day after the date the cooperative
receives a complete application; or
(2) the 60th day after the date the cooperative
receives a complete large order application.
(b) An electric cooperative may deny an application for
access to a pole under this chapter if:
(1) generally applicable safety, reliability, or
engineering requirements established for the protection of public
health, safety, or welfare prevent granting access; or
(2) the pole lacks sufficient capacity.
(c) Notwithstanding Subsection (b)(1), an electric
cooperative may not deny access to a pole if the capacity, safety,
reliability, or engineering consideration may be remedied by
rearranging, expanding, replacing, or otherwise safely
reengineering the pole or pole attachments through make-ready
activities.
(d) An electric cooperative's denial of an application to
access a pole under this chapter must:
(1) be specific;
(2) include all relevant evidence and information that
supports the denial; and
(3) explain how the evidence and information relate to
the denial.
Sec. 253.0105. DEADLINES NOT APPLICABLE TO CERTAIN
APPLICATIONS. (a) An electric cooperative is not required to meet
the deadlines under this subchapter for an application for pole
access to place pole attachments on more than 3,000 poles or more
than 5 percent of the electric cooperative's poles.
(b) An electric cooperative may not act under Subsection (a)
to delay an application unreasonably and shall negotiate in good
faith with the applicant regarding the time required to fulfill the
cooperative's duties.
SUBCHAPTER C. MAKE-READY ACTIVITIES
Sec. 253.0201. DEADLINES FOR MAKE-READY ACTIVITIES. (a)
Not later than the 15th day after the date an electric cooperative
grants an application, the electric cooperative shall provide to
the broadband provider a detailed and itemized estimate of the
expected costs of all necessary make-ready activities.
(b) An electric cooperative shall complete all make-ready
activities in the communications space and send a detailed,
itemized final invoice to the broadband provider not later than:
(1) the 30th day after the date the electric
cooperative receives payment of the estimated make-ready cost from
the broadband provider; or
(2) for a large order application, the 75th day after
the date the electric cooperative receives payment of the estimated
make-ready cost from the broadband provider.
(c) An electric cooperative shall complete all make-ready
activities above the communications space, including pole
replacements, and send a detailed, itemized final invoice to the
broadband provider not later than:
(1) the 90th day after the date the electric
cooperative receives payment of the estimated make-ready cost from
the broadband provider; or
(2) for a large order application, the 135th day after
the date the electric cooperative receives payment of the estimated
make-ready cost from the broadband provider.
Sec. 253.0202. EXTENSION OF MAKE-READY ACTIVITIES
DEADLINE. (a) An electric cooperative may extend a deadline under
Section 253.0201(b) or (c) for a cause that renders the deadline
infeasible. A cooperative that chooses to extend a deadline shall:
(1) immediately and in writing notify the broadband
provider and each person with an affected existing pole attachment
about the delay; and
(2) identify the affected poles and provide a detailed
explanation of the reason for the delay and an estimated new
completion date to the broadband provider and each person with an
affected existing pole attachment.
(b) An electric cooperative may not extend a deadline under
this section for a period longer than is necessary to complete
make-ready activities on affected poles.
(c) An electric cooperative may not extend a deadline under
this section because of a preexisting violation on an affected pole
caused by a person other than the broadband provider. The
cooperative shall correct a preexisting violation as part of the
make-ready process and before the applicable deadline at the cost
of the responsible person.
(d) An electric cooperative shall resume make-ready
activities without discrimination when the cooperative returns to
routine operations.
Sec. 253.0203. DEADLINES NOT APPLICABLE TO CERTAIN
APPLICATIONS. (a) An electric cooperative is not required to meet
the deadlines under this subchapter for an application to place
pole attachments on more than 3,000 poles or more than five percent
of the electric cooperative's poles.
(b) An electric cooperative may not act under Subsection (a)
to delay an application unreasonably and shall negotiate in good
faith with the applicant regarding the time required to fulfill the
cooperative's duties.
Sec. 253.0204. CONTRACTORS FOR MAKE-READY ACTIVITIES. (a)
A broadband provider may hire a contractor approved by the electric
cooperative to complete a survey under Section 253.0104 or perform
a make-ready activity under this subchapter that is not timely
completed by the electric cooperative or a person with an existing
pole attachment.
(b) The broadband provider shall provide reasonably timely
notice to the electric cooperative and each person with an existing
pole attachment on an affected pole that the provider intends to
hire a contractor as authorized by Subsection (a).
(c) The broadband provider shall provide reasonably timely
notice to the electric cooperative and each person with an existing
pole attachment on an affected pole of the contractor's completion
of the make-ready activities.
(d) An electric cooperative may not act under Subsection (a)
unreasonably to withhold approval of a contractor for purposes of
this section.
(e) Not later than the 90th day after the date a broadband
provider provides notice as provided by Subsection (c), the
cooperative or person may inspect the make-ready work.
(f) Not later than the 14th day after the date that an
electric cooperative or person completes an inspection under
Subsection (e), the cooperative or person may notify the broadband
provider of any damage or code violations caused by such work. The
notice must include specific documentation.
(g) The electric cooperative or person that completes an
inspection may:
(1) remedy any defective make-ready work at the cost
of the broadband provider; or
(2) require the provider to remedy the defect not
later than the 14th day after the provider receives the notice under
Subsection (f).
Sec. 253.0205. LIST OF APPROVED CONTRACTORS. (a) An
electric cooperative shall maintain and make available a list of
approved contractors for work above the communications space and
pole replacements. An electric cooperative may require any work
above the communications space and pole replacements to be
performed by contractors on this list, including work performed by
a contractor hired under Section 253.0204.
(b) An electric cooperative may not act unreasonably to
withhold consent for a requested addition of a qualified contractor
to the list described by Subsection (a).
SUBCHAPTER D. OPTION FOR SIMPLE MAKE-READY ACTIVITIES
Sec. 253.0301. OPTION: SIMPLE MAKE-READY. A broadband
provider may choose to perform simple make-ready activities using
one-touch make-ready procedures in place of the process outlined
under Subchapter C.
Sec. 253.0302. GRANT OR DENIAL OF APPLICATION: SIMPLE
MAKE-READY. (a) A broadband provider that chooses to perform
simple make-ready activities as described by Section 253.0301 must
indicate that choice and describe the work to be performed as part
of the provider's initial application under Subchapter B.
(b) An electric cooperative shall grant or deny an
application for simple make-ready activities under this section not
later than:
(1) the 15th day after the date the cooperative
receives a complete application; or
(2) the 30th day after the date the cooperative
receives a complete large order application.
Sec. 253.0303. SIMPLE MAKE-READY ACTIVITIES PERFORMED BY
CONTRACTOR. (a) If an application for activities under Section
253.0302 is granted, a contractor hired by the broadband provider
shall perform all necessary surveys.
(b) The broadband provider and contractor shall provide a
reasonable opportunity for the electric cooperative and a person
with an existing pole attachment on an affected pole to be present
for any field inspections.
(c) A contractor hired by the broadband provider may perform
all simple make-ready activities. Not later than the 15th day
before the date the contractor begins performing simple make-ready
activities, the contractor shall provide to the electric
cooperative and a person with an existing pole attachment on an
affected pole written notice that:
(1) identifies the contractor performing the
activities; and
(2) sets out reasonable opportunities for the
cooperative and person to be present for the activities.
Sec. 253.0304. INSPECTION OF WORK AND REMEDIATION OF
DAMAGES. (a) A broadband provider immediately shall notify the
electric cooperative and a person with an existing pole attachment
on an affected pole of any damage to the cooperative's or person's
facilities reasonably likely to interrupt the entity's service.
(b) An electric cooperative or person that receives notice
under Subsection (a) may:
(1) complete any remedial work at a reasonable cost to
the broadband provider; or
(2) require the broadband provider immediately to
remedy the damage at the provider's own expense.
(c) Not later than the 15th day after the date a broadband
provider or contractor hired by the provider completes simple
make-ready activities on a pole, the provider shall notify the
electric cooperative and a person with an existing pole attachment
on the pole of the completed work.
(d) Not later than the 90th day after the date an electric
cooperative or person receives notice under Subsection (c), the
cooperative or person may inspect the work. Not later than the 14th
day after the date of the inspection, the cooperative or person may
provide notice to the broadband provider, with specific
documentation, of any damage or code violations caused by the work.
(e) An electric cooperative or person that provides notice
under Subsection (d) may:
(1) remedy any defective make-ready work at the cost
of the broadband provider; or
(2) require the provider to remedy the defect not
later than the 14th day after the date the provider received the
notice under Subsection (d).
SUBCHAPTER E. POLES AND POLE ATTACHMENTS
Sec. 253.0401. DUTIES OF ELECTRIC COOPERATIVE. An electric
cooperative shall rearrange, expand, replace, or otherwise safely
reengineer any pole at the request of a broadband provider whose
application for access to a pole is granted if the change is:
(1) consistent with the National Electrical Safety
Code; and
(2) reasonably necessary to safely accommodate a pole
attachment.
Sec. 253.0402. RECOVERY OF COSTS FOR REPLACING POLES. (a)
If an electric cooperative is required under Section 253.0401 to
replace a pole that has been in service for longer than 75 percent
and less than 100 percent of the average service life of a pole
owned by the cooperative, the cooperative may not require
reimbursement of costs associated with replacing the pole from the
broadband provider that exceed the cooperative's reasonable costs
of advancing the retirement of the existing pole.
(b) The costs under Subsection (a) shall be determined by
adding:
(1) the remaining undepreciated value of the existing
pole;
(2) any interest expense of advancing the replacement
of the pole relative to replacing the pole at the end of the average
service life of a pole owned by the electric cooperative; and
(3) any reasonable incremental cost of increasing the
capacity of the replacement pole relative to the installation cost
of the average new pole installed by the electric cooperative.
(c) If an electric cooperative is required under Section
253.0401 to replace a pole that has been in service for the average
service life of a pole owned by the electric cooperative or longer,
the cooperative may not require reimbursement of costs associated
with replacing the pole from the broadband provider that exceed any
reasonable incremental cost of increasing the capacity of the
replacement pole relative to the installation cost of the average
new pole installed by the electric cooperative.
(d) An electric cooperative shall determine the average
service life of a pole as the period of time during which an
electric cooperative's books maintained for tax and accounting
purposes consider an average pole to have positive value, after
depreciation.
Sec. 253.0403. SHARING COSTS OF MODIFICATION TO POLE. (a)
The following entities must share proportionately in the costs of
modifying a pole under Section 253.0401:
(1) the broadband provider who obtains access to a
pole through a modification to the pole; and
(2) a person who directly benefits from a
modification, including:
(A) the electric cooperative;
(B) a person with an existing attachment on the
pole who adds to or modifies the person's attachment after
receiving notice of the modification; and
(C) a party that makes an attachment to a pole
after the completion of a modification that made the attachment
possible.
(b) This section does not affect the responsibility of the
electric cooperative under Sections 253.0401 and 253.0402.
Sec. 253.0404. EXTENSION ARMS AND TEMPORARY POLE
ATTACHMENTS. (a) A broadband provider may use extension arms and
temporary attachments pending the completion of make-ready
activities if use of extension arms and temporary attachments
complies with the National Electrical Safety Code or other
applicable safety codes.
(b) An electric cooperative may require a broadband
provider to convert a temporary attachment to a permanent
attachment not later than the 60th day after the date of the
completion of make-ready activities and may require the provider to
comply with the National Electrical Safety Code or other
applicable safety codes.
Sec. 253.0405. POLE ATTACHMENT SPECIFICATIONS. (a) A
broadband provider may not be required to meet pole attachment
specifications that exceed the specifications in the National
Electrical Safety Code, applicable fire safety codes, and any
building code or similar code of general applicability for the
protection of public health, safety, or welfare a political
subdivision adopted before the provider submitted an application to
the cooperative.
(b) This section may not be construed to expand the power of
any local government jurisdiction.
Sec. 253.0406. OVERLASHING. (a) A broadband provider with
an existing pole attachment may not be required to obtain advance
approval from an electric cooperative to overlash or permit a third
party to overlash the provider's existing wires.
(b) An electric cooperative may require a broadband
provider to provide notice before and after overlashing. The
cooperative may not require notice before overlashing to be
provided before the 15th day before the date of the overlashing
activities.
(c) An electric cooperative may require a broadband
provider to modify an overlashing proposal to address specific and
identified capacity, safety, reliability, or engineering issues.
The cooperative may not prohibit the provider from overlashing
because of a preexisting violation caused by another person.
(d) An electric cooperative may require a broadband
provider to remedy damage or code violations caused by overlashing
if the electric cooperative:
(1) inspects the overlash not later than the 90th day
after the date the cooperative receives notice that an overlash is
complete; and
(2) informs the provider of the damage or violation
not later than the 14th day after the date of the inspection.
Sec. 253.0407. USE OF POLE ATTACHMENTS FOR MULTIPLE
SERVICES. A broadband provider that attaches a pole attachment
under this chapter may use the attachment for any service delivered
over the provider's facilities, including cable service.
SUBCHAPTER F. POLE ATTACHMENT CONTRACTS
Sec. 253.0501. POLE ATTACHMENT CONTRACTS WITH BROADBAND
PROVIDERS. (a) A broadband provider and an electric cooperative
shall establish the rates, terms, and conditions for pole
attachments by a written pole attachment contract executed by both
parties. The rates, terms, and conditions for attachments by a
broadband provider on an electric cooperative's poles must be just,
reasonable, and nondiscriminatory.
(b) In determining whether rates, terms, and conditions are
just and reasonable, 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 to broadband services offered through the
pole attachments;
(3) the interests of and benefits to third parties
from the availability of broadband services offered through the
pole attachments;
(4) compliance with the specifications in the National
Electrical Safety Code, applicable fire safety codes, and any
building code or similar code of general applicability for the
protection of public health, safety, or welfare applicable to the
pole attachments; and
(5) the maintenance and reliability of both electric
distribution and broadband services.
(c) A broadband provider and an electric cooperative shall
negotiate a pole attachment contract and any amendment,
modification, or renewal thereof in good faith.
(d) A request to negotiate a new pole attachment contract or
to amend, modify, or renew a contract pertaining to pole
attachments by a broadband provider or an electric cooperative must
be made in writing.
Sec. 253.0502. CONTRACT NEGOTIATIONS AND MEDIATION. (a)
If a broadband provider and an electric cooperative are unable to
agree to a new pole attachment contract before the expiration date
of an existing contract, the rates, terms, and conditions of the
existing contract and the terms and conditions of the electric
cooperative's application and permitting processes remain in
force:
(1) during the 90-day negotiation period described by
Subsection (b) and during the period of any agreed extension;
(2) during the 60-day mediation period described by
Subsection (b) and during the period of any agreed extension; and
(3) pending final disposition of any litigation
commenced under Subsection (c).
(b) If a broadband provider and an electric cooperative are
unable to agree to a new pole attachment contract before the 91st
day after the expiration date of an existing contract, and are
unable to agree to an extension of the negotiation period for a
certain number of days, the broadband provider and electric
cooperative shall attempt to resolve any disagreement over the
rates, terms, or conditions by submitting the contract negotiations
to a mediation process. The mediation process may not extend later
than the 60th day after the end of the initial 90-day negotiation
period and any agreed extension of that period unless the broadband
provider and 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 broadband provider and
electric cooperative must share equally the expenses for the
mediator.
(c) If the mediation process under Subsection (b) does not
resolve the disagreement over the rates, terms, or conditions of a
new pole attachment agreement, or if a dispute arises under the
terms of an existing agreement or the requirements of this chapter,
the broadband provider or electric cooperative may file suit in a
district court to resolve the disagreement or dispute, including to
enforce the terms of the agreement or of this chapter.
SECTION 3. This Act takes effect September 1, 2021.