87R17712 BRG-F
By: Paddie, et al. H.B. No. 1505
Substitute the following for H.B. No. 1505:
By: Paddie C.S.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) "Pole" has the meaning assigned by Section
252.001.
(4) "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.
Sec. 253.0002. APPLICABILITY. 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.
Sec. 253.0003. CONSTRUCTION OF CHAPTER. (a) 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.
(b) 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. 253.0004. 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. 253.0005. 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. 253.0006. COST-BASED NONRECURRING CHARGES.
Nonrecurring charges authorized by this chapter must be cost-based.
SUBCHAPTER B. ACCESS TO POLES
Sec. 253.0101. APPLICATION FOR POLE ACCESS. 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.
Sec. 253.0102. 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.
Sec. 253.0103. MODIFICATION OR REPLACEMENT TO ACCOMMODATE
ATTACHMENT. (a) Notwithstanding Section 253.0201, an electric
cooperative may not deny access to a pole if a capacity, safety,
reliability, or engineering consideration that would supply a basis
for denial of access under 47 U.S.C. Section 224(f)(2) or any rule,
regulation, or order issued by the Federal Communications
Commission under that section may be remedied by rearranging,
expanding, replacing, or otherwise safely reengineering the pole or
pole attachments through make-ready activities.
(b) An electric cooperative granting access under
Subsection (a) shall rearrange, expand, replace, or otherwise
safely reengineer any pole if to do so is:
(1) reasonably necessary to accommodate a pole
attachment; and
(2) consistent with applicable safety and engineering
standards as authorized under Section 253.0201.
SUBCHAPTER C. POLE ATTACHMENT CONTRACTS
Sec. 253.0201. CONTRACTS FOR POLE ATTACHMENTS. (a) An
electric cooperative that owns a pole may require a broadband
provider that attaches a pole attachment to the pole under this
chapter to enter into a contract for access to the pole.
(b) Notwithstanding 47 U.S.C. Section 224(a)(1), except as
provided by this chapter, the terms and conditions of a contract
required under Subsection (a) must be consistent with:
(1) 47 U.S.C. Section 224, as that section existed on
April 1, 2021; and
(2) any rule, regulation, or order issued by the
Federal Communications Commission under 47 U.S.C. Section 224, as
the rule, regulation, or order existed on April 1, 2021.
(c) The terms and conditions of a contract required under
Subsection (a) are not required to be consistent with the statutes,
rules, regulations, or orders described by Subsection (b) if the
terms and conditions address recurring pole rental rates.
Sec. 253.0202. RATES, TERMS, AND CONDITIONS FOR POLE
ATTACHMENT. (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.
(b) The terms and conditions of a contract under this
chapter must comply with Section 253.0201.
(c) The rates for attachments by a broadband provider on an
electric cooperative's poles must be just, reasonable, and
nondiscriminatory. In determining whether rates 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.
(d) A broadband provider and an electric cooperative shall
negotiate a pole attachment contract and any amendment,
modification, or renewal thereof in good faith.
(e) 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. 253.0203. 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.
SUBCHAPTER D. POLE REPLACEMENT
Sec. 253.0301. RECOVERY OF COSTS FOR REPLACING POLES. (a)
Except as provided by this section, an electric cooperative that
replaces a pole shall assess charges for the replacement from a
broadband provider consistent with:
(1) 47 U.S.C. Section 224, as that section existed on
April 1, 2021; and
(2) any rules, regulations, or orders issued by the
Federal Communications Commission under 47 U.S.C. Section 224, on
or before April 1, 2021, as the rule, regulation, or order existed
on that date.
(b) The Public Utility Commission of Texas shall adopt and
enforce rules regarding the compensation that an electric
cooperative may require from a broadband provider to replace a pole
if:
(1) 47 U.S.C. Section 224, as that section existed on
April 1, 2021, is amended in a manner that pertains to the charges
that may be assessed by a pole owner for a pole replacement; or
(2) a rule, regulation, or order issued by the Federal
Communications Commission under 47 U.S.C. Section 224, on or before
April 1, 2021, that pertains to the charges that may be assessed by
a pole owner for a pole replacement is repealed, amended, or
replaced after April 1, 2021.
(c) The Public Utility Commission of Texas must adopt rules
under Subsection (b) not later than the 180th day after the date
that an amendment, repeal, or replacement described by that
subsection takes effect.
(d) A rule adopted under Subsection (b) must be just,
reasonable, and nondiscriminatory. In adopting the rules, the
commission shall consider:
(1) the significance and persuasiveness of the changes
to federal law;
(2) the interests of electric cooperatives, broadband
providers, their respective customers and potential customers, and
the public; and
(3) when just and reasonable, the importance of
maintaining consistency in the terms and conditions governing
attachment to poles owned by electric cooperatives and poles owned
by investor-owned utilities.
SUBCHAPTER E. ADDITIONAL POLE ATTACHMENT REQUIREMENTS
Sec. 253.0401. TRANSFER OF ATTACHMENTS. (a) Before an
electric cooperative installs a new pole to replace an existing
pole due to the rerouting, maintenance, or upgrading of the
electric distribution system, the cooperative shall provide notice
of the replacement to each broadband provider with a pole
attachment on the existing pole.
(b) The notice required under Subsection (a) must specify a
date by which the broadband provider must remove the pole
attachment from the existing pole and transfer the attachment to
the new pole.
(c) If a broadband provider does not transfer a pole
attachment to the new pole before the 31st day after the date
specified in the notice, the electric cooperative may transfer the
pole attachment to the new pole at the broadband provider's
expense, including the cost for the electric cooperative to return
to the site.
(d) A broadband provider shall indemnify, defend, and hold
harmless an 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 the gross negligence or wilful misconduct of the
electric cooperative during the removal and transfer process.
Sec. 253.0402. ABANDONED POLE ATTACHMENTS; REMOVAL. (a) A
broadband provider that receives a written request from an electric
cooperative to remove an abandoned pole attachment owned by the
provider from a pole owned by the cooperative shall remove the
attachment not later than the 60th day after the date the provider
receives the request.
(b) Before the deadline under Subsection (a), a broadband
provider may request, and an electric cooperative may grant, a
reasonable extension of that deadline. A request for an extension
under this subsection must be in writing.
(c) If a broadband provider does not remove a pole
attachment by the deadline under Subsection (a) or an extended
deadline under Subsection (b), the electric cooperative may remove,
use, sell, or dispose of the pole attachment at the broadband
provider's expense.
(d) An electric cooperative may require that a broadband
provider 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.
(e) A broadband provider shall indemnify, defend, and hold
harmless an 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. 253.0403. EASEMENTS; INDEMNITY. (a) A broadband
provider is responsible for obtaining all rights-of-way and
easements necessary for the installation, operation, and
maintenance of the provider'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 broadband provider.
(c) An electric cooperative is not liable if a broadband
provider is prevented from placing or maintaining a pole attachment
because the broadband provider did not obtain a necessary
right-of-way or easement.
(d) A broadband provider 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 broadband provider's failure to obtain
a necessary right-of-way or easement for a pole attachment.
SECTION 3. This Act takes effect September 1, 2021.