Texas 2021 - 87th Regular

Texas House Bill HB1505 Compare Versions

OldNewDifferences
1-H.B. No. 1505
1+By: Paddie, et al. (Senate Sponsor - Hancock) H.B. No. 1505
2+ (In the Senate - Received from the House May 5, 2021;
3+ May 13, 2021, read first time and referred to Committee on
4+ Transportation; May 20, 2021, reported adversely, with favorable
5+ Committee Substitute by the following vote: Yeas 9, Nays 0;
6+ May 20, 2021, sent to printer.)
7+Click here to see the committee vote
8+ COMMITTEE SUBSTITUTE FOR H.B. No. 1505 By: Hancock
29
310
11+ A BILL TO BE ENTITLED
412 AN ACT
513 relating to attachments for broadband service on utility poles
614 owned by an electric cooperative and establishing and funding a
715 pole replacement program for deployment of certain broadband
816 facilities.
917 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1018 SECTION 1. Chapter 403, Government Code, is amended by
1119 adding Subchapter R to read as follows:
1220 SUBCHAPTER R. INFRASTRUCTURE AND BROADBAND FUNDING
1321 Sec. 403.501. DEFINITIONS. In this subchapter:
1422 (1) "Pole replacement fund" means the broadband pole
1523 replacement fund established under Section 403.502.
1624 (2) "Pole replacement program" means the Texas
1725 Broadband Pole Replacement Program established under Section
1826 403.503.
1927 Sec. 403.502. BROADBAND POLE REPLACEMENT FUND. (a) The
2028 broadband pole replacement fund is created as a fund in the state
2129 treasury outside the general revenue fund.
2230 (b) Notwithstanding any other law and except as provided by
2331 federal law, the comptroller shall make a one-time transfer from
2432 money received by this state from the federal government from the
2533 Coronavirus Capital Projects Fund established under Section 9901 of
2634 the American Rescue Plan Act of 2021 (Pub. L. No. 117-2) to the
2735 credit of the pole replacement fund. The comptroller shall make the
2836 transfer described by this subsection as soon as practicable
2937 following receipt by this state of money from the Coronavirus
3038 Capital Projects Fund.
3139 (c) Money deposited to the credit of the pole replacement
3240 fund may be used only for the purpose of supporting the pole
3341 replacement program under Section 403.503, including the costs of
3442 program administration and operation. Money in the pole replacement
3543 fund must be used in a manner consistent with federal law.
3644 (d) Interest earned on money deposited to the credit of the
3745 pole replacement fund is exempt from Section 404.071. Interest
3846 earned on money in the fund shall be retained in the pole
3947 replacement fund.
4048 (e) The comptroller may issue guidelines for state agencies
4149 regarding the implementation of this section.
4250 Sec. 403.503. TEXAS BROADBAND POLE REPLACEMENT PROGRAM.
4351 (a) In this section:
4452 (1) "Eligible broadband facility" means a facility
4553 used by a retail broadband service provider to provide qualifying
4654 broadband service to residences or businesses in an unserved area,
4755 including a facility owned by an affiliate of the provider and used
4856 in the provision of service. The term does not include a facility
4957 used only for the provision of wholesale service and not used by the
5058 owner of the facility or the owner's affiliate to provide retail
5159 qualifying broadband service directly to residences or businesses.
5260 (2) "Eligible pole replacement cost" means the actual
5361 and reasonable costs paid or incurred by a party after August 31,
5462 2021, to remove and replace a pole, including the amount of any
5563 expenditures to remove and dispose of the existing pole, purchase
5664 and install a replacement pole, and transfer any existing
5765 facilities to the new pole. The term includes costs paid or incurred
5866 by the party responsible for the costs of a pole replacement to
5967 reimburse the party that performs the pole replacement. The term
6068 does not include costs that the party incurs initially that have
6169 been reimbursed to the party by another party ultimately
6270 responsible for the costs.
6371 (3) "Qualifying broadband service" means retail
6472 wireline or wireless broadband service capable of providing:
6573 (A) a download speed of 25 megabits per second or
6674 faster; and
6775 (B) an upload speed of 3 megabits per second or
6876 faster.
6977 (4) "Unserved area" means a location that lacks access
7078 to a retail fixed, terrestrial, wireline, or wireless Internet
7179 service capable of providing:
7280 (A) a download speed of 25 megabits per second or
7381 faster; and
7482 (B) an upload speed of 3 megabits per second or
7583 faster.
7684 (5) "Pole" means any pole used, wholly or partly, for
7785 any wire communications or electric distribution, irrespective of
7886 who owns or operates the pole.
7987 (6) "Pole owner" means a person who owns or controls a
8088 pole.
8189 (b) The Texas Broadband Pole Replacement Program is
8290 established for the purpose of speeding the deployment of broadband
8391 to individuals in rural areas by reimbursing a portion of eligible
8492 pole replacement costs incurred by certain persons.
8593 (c) The comptroller shall administer, prescribe rules for,
8694 and provide administrative support for the pole replacement
8795 program. The comptroller may take any action necessary or
8896 convenient to implement the pole replacement program.
8997 (d) A pole owner or a provider of qualifying broadband
9098 service who pays or incurs the costs of removing and replacing an
9199 existing pole in an unserved area for the purpose of accommodating
92100 the attachment of an eligible broadband facility may apply to the
93101 comptroller for a reimbursement award for an amount equal to:
94102 (1) 50 percent of the eligible pole replacement costs
95103 paid or incurred by the applicant or $5,000, whichever is less, for
96104 the pole replaced; and
97105 (2) the documented and reasonable administrative
98106 expenses incurred by the applicant in preparing and submitting the
99107 reimbursement application, including expenses charged by a pole
100108 owner under Subsection (m).
101109 (e) The amount reimbursed under Subsection (d)(2) may not
102110 exceed five percent of the eligible pole replacement costs in the
103111 application.
104112 (f) For purposes of Subsection (d), a pole is considered to
105113 be located in an unserved area if:
106114 (1) at the time of the request by a retail broadband
107115 service provider to attach facilities to the pole, the pole is in a
108116 location that, according to the latest broadband availability data
109117 made available by the Federal Communications Commission, is in an
110118 unserved area; or
111119 (2) the pole is located in an area that is the subject
112120 of a federal or state grant to deploy broadband service, the
113121 conditions of which limit the availability of a grant to unserved
114122 areas.
115123 (g) The comptroller shall require each applicant for
116124 reimbursement to provide:
117125 (1) information sufficient to establish the number,
118126 cost, and eligibility of pole replacements and the identity of the
119127 retail broadband service provider attaching the eligible broadband
120128 facilities;
121129 (2) documentation sufficient to establish that the
122130 pole replacements have been completed or will be completed not
123131 later than the 90th day after the award of program reimbursement;
124132 (3) the amount of reimbursement requested and any
125133 grant funding or accounting information required to justify the
126134 amount of the request;
127135 (4) a notarized statement from an officer or agent of
128136 the applicant that the contents of the application are true and
129137 accurate and that the applicant accepts the requirements of
130138 Subsections (j), (k), and (l) as a condition of receiving an award
131139 of program reimbursement; and
132140 (5) any other information the comptroller considers
133141 necessary for final review, award, and payment of program
134142 reimbursements.
135143 (h) Not later than the 60th day after the date that the
136144 comptroller receives a completed application for reimbursement,
137145 the comptroller shall review the application and, if the pole
138146 replacement fund includes enough money to pay the award amount,
139147 shall issue a reimbursement award. The award must be paid not later
140148 than 30 days after the date of issuance.
141149 (i) The comptroller must provide notice of a reimbursement
142150 award to the pole owner and the retail broadband service provider
143151 attaching the eligible broadband facility.
144152 (j) As a condition of receiving an award of program
145153 reimbursement, an applicant must certify the applicant's
146154 compliance with the requirements of this section.
147155 (k) If a pole owner receives a reimbursement award under
148156 this section, the owner may not include in any rates or fees charged
149157 for the owner's services an eligible pole replacement cost:
150158 (1) reimbursed by the program;
151159 (2) paid for by a qualifying broadband service
152160 provider; or
153161 (3) funded by another grant source.
154162 (l) If the comptroller finds on substantial evidence after
155163 notice and opportunity to respond that a recipient of funds under
156164 this section has materially violated the requirements of this
157165 section with respect to reimbursements or portions of
158166 reimbursements, the comptroller may direct the recipient to refund
159167 the reimbursement or a portion of the reimbursement with interest
160168 at the applicable federal funds rate as specified by Section
161169 4A.506(b), Business & Commerce Code, to the pole replacement fund
162170 or the state general fund.
163171 (m) If a retail broadband service provider incurs eligible
164172 pole replacement costs relating to a pole replacement performed by
165173 the pole owner, the owner shall coordinate with the provider to
166174 supply all information necessary for the provider to promptly
167175 complete and submit an application under this section. A pole owner
168176 may charge the provider the documented and reasonable
169177 administrative expenses incurred by the pole owner for assistance,
170178 in an amount not to exceed five percent of eligible pole replacement
171179 costs. The provider may seek reimbursement of costs in accordance
172180 with Subsection (d)(2).
173181 (n) If the pole replacement fund does not have money
174182 sufficient to pay an award, the application for the award is
175183 considered denied. The application may be refiled if sufficient
176184 funds are later made available in the pole replacement fund.
177185 (o) Not later than the 60th day after the date the pole
178186 replacement fund receives money for the pole replacement program,
179187 the comptroller shall maintain and publish on the comptroller's
180188 Internet website:
181189 (1) statistics on the number of applications received,
182190 processed, and rejected by the program;
183191 (2) statistics on the size, number, and status of
184192 reimbursements awarded by the program, including the retail
185193 broadband service providers and pole owners receiving
186194 reimbursements; and
187195 (3) the estimated amount of money remaining in the
188196 pole replacement fund.
189197 (p) Not later than the first anniversary after the pole
190198 replacement fund receives funds for the purpose of providing pole
191199 replacement reimbursements, the state auditor shall audit the fund
192200 and the administration of the pole replacement program.
193201 (q) Not later than one year after the date that the amount
194202 transferred to the pole replacement fund under Section 403.502(b)
195203 is exhausted, the comptroller shall identify, examine, and report
196204 on the deployment of broadband infrastructure and technology
197205 facilitated by the pole reimbursements the comptroller has awarded.
198206 SECTION 2. The heading to Chapter 252, Utilities Code, is
199207 amended to read as follows:
200208 CHAPTER 252. CABLE ATTACHMENTS TO ELECTRIC COOPERATIVE'S
201209 DISTRIBUTION POLES
202210 SECTION 3. Title 5, Utilities Code, is amended by adding
203211 Chapter 253 to read as follows:
204212 CHAPTER 253. BROADBAND ATTACHMENTS TO ELECTRIC COOPERATIVE'S
205213 DISTRIBUTION POLES
206214 SUBCHAPTER A. GENERAL PROVISIONS
207215 Sec. 253.0001. DEFINITIONS. In this chapter:
208216 (1) "Broadband provider" means an entity that provides
209217 broadband service either directly or through an affiliate that uses
210218 the entity's communications facilities, regardless of whether the
211219 entity:
212220 (A) provides additional services in addition to
213221 broadband service; or
214222 (B) uses its facilities in whole or in part to
215223 provide broadband service.
216224 (2) "Broadband service" means Internet service with
217225 the capability of providing:
218226 (A) a download speed of 25 megabits per second or
219227 faster; and
220228 (B) an upload speed of 3 megabits per second or
221229 faster.
222230 (3) "Pole" has the meaning assigned by Section
223231 252.001.
224232 (4) "Pole attachment" means an affixture of cables,
225233 strands, wires, and associated equipment used in the provision of a
226234 broadband provider's services attached to a pole directly or
227235 indirectly or placed in a right-of-way owned or controlled by an
228236 electric cooperative.
229237 Sec. 253.0002. APPLICABILITY. This chapter applies to a
230238 pole attachment that is used wholly or partly to provide broadband
231239 service and affixed by a broadband provider to a pole owned and
232240 controlled by an electric cooperative. This chapter does not apply
233241 to a pole attachment regulated by the Federal Communications
234242 Commission under 47 U.S.C. Section 224.
235243 Sec. 253.0003. CONSTRUCTION OF CHAPTER. (a) This chapter
236244 does not abrogate or affect a right or obligation of a party to a
237245 pole attachment contract entered into by a broadband provider and
238246 an electric cooperative before September 1, 2021.
239247 (b) This chapter does not limit a right of a party to a pole
240248 attachment contract to request modification, amendment, or renewal
241249 of such contract to conform it to the provisions of this chapter.
242250 Sec. 253.0004. NO STATE CERTIFICATION; NO REGULATORY
243251 AUTHORITY. (a) This chapter does not constitute state
244252 certification under 47 U.S.C. Section 224. If a court determines
245253 that this chapter constitutes certification under that section,
246254 this chapter is not enforceable and has no effect.
247255 (b) This chapter may not be construed to subject an electric
248256 cooperative to regulation by the Federal Communications Commission
249257 under 47 U.S.C. Section 224.
250258 (c) This chapter does not authorize a department, agency, or
251259 political subdivision of this state to exercise enforcement or
252260 regulatory authority over attachments to electric cooperative
253261 poles.
254262 Sec. 253.0005. CONSTRUCTION OF TERMS AND PHRASES.
255263 Technical terms and phrases in this chapter, other than those
256264 defined by Section 253.0001, shall be construed using the term's or
257265 phrase's usual and customary meanings in the electric and broadband
258266 industries.
259267 Sec. 253.0006. COST-BASED NONRECURRING CHARGES.
260268 Nonrecurring charges authorized by this chapter must be cost-based.
261269 SUBCHAPTER B. ACCESS TO POLES
262270 Sec. 253.0101. APPLICATION FOR POLE ACCESS. A broadband
263271 provider may not access a pole owned by an electric cooperative for
264272 the purpose of placing a pole attachment unless the provider
265273 applies for that access.
266274 Sec. 253.0102. USE OF POLE ATTACHMENTS FOR MULTIPLE
267275 SERVICES. A broadband provider that attaches a pole attachment
268276 under this chapter may use the attachment for any service delivered
269277 over the provider's facilities, including cable service.
270278 Sec. 253.0103. NONDISCRIMINATORY ACCESS; MODIFICATION OR
271279 REPLACEMENT TO ACCOMMODATE ATTACHMENT. (a) Except as provided by
272280 this chapter, an electric cooperative shall provide a broadband
273281 provider with nondiscriminatory access to a pole that the
274282 cooperative owns or controls.
275283 (b) Except as provided by Subsection (c), an electric
276284 cooperative may deny a broadband provider access to a pole:
277285 (1) if there is insufficient capacity; or
278286 (2) for reasons of safety, reliability, and generally
279287 applicable engineering purposes.
280288 (c) An electric cooperative may not deny a broadband
281289 provider access to a pole if the basis for denial may be remedied by
282290 rearranging facilities on the pole through reasonable make-ready
283291 activities.
284292 (d) Except as provided by Subsection (e), if a pole must be
285293 replaced to accommodate a new pole attachment applied for by a
286294 broadband provider:
287295 (1) the electric cooperative and broadband provider
288296 shall determine, through good faith negotiations, a reasonable date
289297 by which the pole replacement will occur; and
290298 (2) the broadband provider shall pay the actual costs
291299 of replacing the pole, including the cost to:
292300 (A) remove and dispose of the existing pole;
293301 (B) purchase and install a replacement pole; and
294302 (C) transfer any existing facilities to the new
295303 pole.
296304 (e) An electric cooperative is responsible for the costs of
297305 removing and replacing under Subsection (d) a pole:
298306 (1) with recorded conditions or defects that would
299307 reasonably be expected to endanger human life or property and which
300308 should be promptly corrected; or
301309 (2) that must be replaced for safety or reliability as
302310 a result of normal wear and tear or other natural causes and not on
303311 account of a pole attachment or the action of a broadband provider
304312 or third party.
305313 SUBCHAPTER C. POLE ATTACHMENT CONTRACTS
306314 Sec. 253.0201. CONTRACTS FOR POLE ATTACHMENTS. (a) An
307315 electric cooperative that owns a pole may require a broadband
308316 provider that attaches a pole attachment to the pole under this
309317 chapter to enter into a contract for access to the pole.
310318 (b) The terms and conditions of a contract under Subsection
311319 (a) must be consistent with this chapter.
312320 Sec. 253.0202. RATES, TERMS, AND CONDITIONS FOR POLE
313321 ATTACHMENT. (a) A broadband provider and an electric cooperative
314322 shall establish the rates, terms, and conditions for pole
315323 attachments by a written pole attachment contract executed by both
316324 parties.
317325 (b) The rates, terms, and conditions of a contract under
318326 this chapter must:
319327 (1) be just, reasonable, and nondiscriminatory; and
320328 (2) comply with this chapter.
321329 (c) In determining whether rates, terms, and conditions are
322330 just and reasonable, the following factors must be considered:
323331 (1) the interests of and benefits to the consumers and
324332 potential consumers of the electric cooperative's services;
325333 (2) the interests of and benefits to the subscribers
326334 and potential subscribers to broadband services offered through the
327335 pole attachments;
328336 (3) the interests of and benefits to third parties
329337 from the availability of electric services and broadband services
330338 offered through the pole attachments;
331339 (4) compliance with applicable safety standards; and
332340 (5) the maintenance and reliability of both electric
333341 distribution and broadband services.
334342 (d) A broadband provider and an electric cooperative shall
335343 negotiate a pole attachment contract and any amendment,
336344 modification, or renewal thereof in good faith.
337345 (e) A request to negotiate a new pole attachment contract or
338346 to amend, modify, or renew a contract pertaining to pole
339347 attachments by a broadband provider or an electric cooperative must
340348 be made in writing.
341349 Sec. 253.0203. CONTRACT NEGOTIATIONS AND MEDIATION. (a)
342350 If a broadband provider and an electric cooperative are unable to
343351 agree to a new pole attachment contract before the expiration date
344352 of an existing contract, the rates, terms, and conditions of the
345353 existing contract and the terms and conditions of the electric
346354 cooperative's application and permitting processes remain in
347355 force:
348356 (1) during the 90-day negotiation period described by
349357 Subsection (b) and during the period of any agreed extension;
350358 (2) during the 60-day mediation period described by
351359 Subsection (b) and during the period of any agreed extension; and
352360 (3) pending final disposition of any litigation
353361 commenced under Subsection (c).
354362 (b) If a broadband provider and an electric cooperative are
355363 unable to agree to a new pole attachment contract before the 91st
356364 day after the expiration date of an existing contract, and are
357365 unable to agree to an extension of the negotiation period for a
358366 certain number of days, the broadband provider and electric
359367 cooperative shall attempt to resolve any disagreement over the
360368 rates, terms, or conditions by submitting the contract negotiations
361369 to a mediation process. The mediation process may not extend later
362370 than the 60th day after the end of the initial 90-day negotiation
363371 period and any agreed extension of that period unless the broadband
364372 provider and electric cooperative agree to an extension of the
365373 mediation period for a certain number of days. The mediation
366374 process must be conducted in a county in which the electric
367375 cooperative has distribution poles. The broadband provider and
368376 electric cooperative must share equally the expenses for the
369377 mediator.
370378 (c) If the mediation process under Subsection (b) does not
371379 resolve the disagreement over the rates, terms, or conditions of a
372380 new pole attachment agreement, the broadband provider or electric
373381 cooperative may file suit in a district court to resolve the
374382 disagreement or dispute.
375383 SUBCHAPTER D. ADDITIONAL POLE ATTACHMENT REQUIREMENTS
376384 Sec. 253.0401. TRANSFER OF ATTACHMENTS. (a) Before an
377385 electric cooperative installs a new pole to replace an existing
378386 pole due to the rerouting, maintenance, or upgrading of the
379387 electric distribution system, the cooperative shall provide notice
380388 of the replacement to each broadband provider with a pole
381389 attachment on the existing pole.
382390 (b) The notice required under Subsection (a) must specify a
383391 date by which the broadband provider must remove the pole
384392 attachment from the existing pole and transfer the attachment to
385393 the new pole.
386394 (c) If a broadband provider does not transfer a pole
387395 attachment to the new pole before the 31st day after the date
388396 specified in the notice, the electric cooperative may transfer the
389397 pole attachment to the new pole at the broadband provider's
390398 expense, including the cost for the electric cooperative to return
391399 to the site.
392400 (d) A broadband provider shall indemnify, defend, and hold
393401 harmless an electric cooperative and the cooperative's members,
394402 directors, officers, agents, and employees from and against all
395403 liability for the removal and transfer of a pole attachment subject
396404 to this section, except for personal injury or property damage
397405 arising from the gross negligence or wilful misconduct of the
398406 electric cooperative during the removal and transfer process.
399407 Sec. 253.0402. ABANDONED POLE ATTACHMENTS; REMOVAL. (a) A
400408 broadband provider that receives a written request from an electric
401409 cooperative to remove an abandoned pole attachment owned by the
402410 provider from a pole owned by the cooperative shall remove the
403411 attachment not later than the 60th day after the date the provider
404412 receives the request.
405413 (b) Before the deadline under Subsection (a), a broadband
406414 provider may request, and an electric cooperative may grant, a
407415 reasonable extension of that deadline. A request for an extension
408416 under this subsection must be in writing.
409417 (c) If a broadband provider does not remove a pole
410418 attachment by the deadline under Subsection (a) or an extended
411419 deadline under Subsection (b), the electric cooperative may remove,
412420 use, sell, or dispose of the pole attachment at the broadband
413421 provider's expense.
414422 (d) An electric cooperative may require that a broadband
415423 provider post a security instrument in an amount reasonably
416424 sufficient to cover the potential cost to the electric cooperative
417425 of removal and disposal of abandoned pole attachments.
418426 (e) A broadband provider shall indemnify, defend, and hold
419427 harmless an electric cooperative and the cooperative's members,
420428 directors, officers, agents, and employees from and against all
421429 liability for the removal, use, sale, or disposal of abandoned pole
422430 attachments, except for personal injury or property damage arising
423431 from the gross negligence or wilful misconduct of the electric
424432 cooperative during the removal and disposal process.
425433 Sec. 253.0403. EASEMENTS; INDEMNITY. (a) A broadband
426434 provider is responsible for obtaining all rights-of-way and
427435 easements necessary for the installation, operation, and
428436 maintenance of the provider's pole attachments.
429437 (b) An electric cooperative is not required to obtain or
430438 expand a right-of-way or easement to accommodate a pole attachment
431439 requested by a broadband provider.
432440 (c) An electric cooperative is not liable if a broadband
433441 provider is prevented from placing or maintaining a pole attachment
434442 because the broadband provider did not obtain a necessary
435443 right-of-way or easement.
436444 (d) A broadband provider shall indemnify, defend, and hold
437445 harmless the electric cooperative and the cooperative's members,
438446 directors, officers, agents, and employees from and against any
439447 liability resulting from the broadband provider's failure to obtain
440448 a necessary right-of-way or easement for a pole attachment.
441449 SECTION 4. The comptroller of public accounts shall
442450 establish rules for the Texas Broadband Pole Replacement Program,
443451 as established by Section 403.503, Government Code, as added by
444452 this Act, not later than March 1, 2022.
445453 SECTION 5. This Act takes effect September 1, 2021.
446- ______________________________ ______________________________
447- President of the Senate Speaker of the House
448- I certify that H.B. No. 1505 was passed by the House on May 4,
449- 2021, by the following vote: Yeas 138, Nays 7, 2 present, not
450- voting; and that the House concurred in Senate amendments to H.B.
451- No. 1505 on May 28, 2021, by the following vote: Yeas 128, Nays 17,
452- 1 present, not voting.
453- ______________________________
454- Chief Clerk of the House
455- I certify that H.B. No. 1505 was passed by the Senate, with
456- amendments, on May 26, 2021, by the following vote: Yeas 31, Nays
457- 0.
458- ______________________________
459- Secretary of the Senate
460- APPROVED: __________________
461- Date
462- __________________
463- Governor
454+ * * * * *