By: Anderson, et al. (Senate Sponsor - Perry) H.B. No. 3853
(In the Senate - Received from the House April 27, 2021;
May 13, 2021, read first time and referred to Committee on
Transportation; May 20, 2021, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 20, 2021, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 3853 By: Perry
A BILL TO BE ENTITLED
AN ACT
relating to middle mile broadband service provided by an electric
utility.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 43, Utilities Code, is amended to read as
follows:
CHAPTER 43. PROVISION [USE] OF MIDDLE MILE [ELECTRIC DELIVERY
SYSTEM FOR ACCESS TO] BROADBAND SERVICE BY ELECTRIC UTILITIES [AND
OTHER ENHANCED SERVICES, INCLUDING COMMUNICATIONS]
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 43.001. LEGISLATIVE FINDINGS. (a) The legislature
finds that access to quality, high-speed broadband Internet service
is important to this state, is a necessary prerequisite for
enabling economic development and improving education, health
care, public safety, and government services in this state, and
provides other benefits to its citizens [broadband over power
lines, also known as BPL, is an emerging technology platform that
offers a means of providing broadband services to reach homes and
businesses. BPL services can also be used to enhance existing
electric delivery systems, which can result in improved service and
reliability for electric customers].
(b) [The legislature finds that access to quality, high
speed broadband services is important to this state. BPL
deployment in Texas has the potential to extend broadband service
to customers where broadband access is currently not available and
may provide an additional option for existing broadband consumers
in Texas, resulting in a more competitive market for broadband
services.] The legislature [further] finds that broadband [BPL]
development in unserved and underserved areas of Texas can be
facilitated by [is fully dependent upon] the participation of
electric utilities in this state that own and operate [power lines
and related] facilities that may be useful [are necessary] for the
full deployment of broadband service by Internet service providers
throughout this state [construction of BPL systems and the
provision of BPL services].
(c) The legislature finds that electric utilities have
existing infrastructure in place throughout this state and that
excess fiber capacity on that infrastructure could be used to
provide middle mile broadband service in unserved and underserved
areas.
(d) The [(c) Consistent with the goal of increasing options
for telecommunications in this state, the] legislature finds that
it is in the public interest to encourage the deployment of
broadband service in unserved and underserved areas [BPL] by
permitting electric utilities to own, construct, or operate fiber
facilities for the support of electric service and to lease excess
fiber capacity for the provision of middle mile broadband service
[affiliates of the electric utility, or permitting unaffiliated
entities, to own or operate all or a portion of such BPL systems].
The purpose of this chapter is to provide the appropriate framework
to facilitate the leasing of excess fiber capacity on electric
utility facilities [support the deployment of BPL].
(e) [(d)] The legislature finds that an electric utility
may choose to implement middle mile broadband service to lease
excess fiber capacity to Internet service providers [BPL] under the
procedures set forth in this chapter, but is not required to do so.
The electric utility shall have the right to decide, in its sole
discretion, whether to implement middle mile broadband service
[BPL] and may not be penalized for deciding to implement or not to
implement that service [BPL].
Sec. 43.002. APPLICABILITY. (a) This chapter applies to an
electric utility whether or not the electric utility is offering
customer choice under Chapter 39.
(b) If there is a conflict between the specific provisions
of this chapter and any other provisions of this title, the
provisions of this chapter control.
(c) Except as otherwise provided by this title, no [No]
provision of this title imposes [shall impose] an obligation on an
electric utility to construct or operate facilities to [implement
BPL, to] provide middle mile broadband service [services], or to
allow others to install [BPL] facilities or use the electric
utility's facilities for the provision of broadband service
[services].
Sec. 43.003. DEFINITIONS. In this chapter:
(1) "Broadband service" means retail Internet service
provided by a commercial Internet service provider with the
capability of providing a download speed of at least 25 megabits per
second and an upload speed of at least 3 megabits per second ["BPL,"
"broadband over power lines," and "BPL services" mean the provision
of broadband services over electric power lines and related
facilities, whether above ground or in underground conduit].
(2) "Internet ["BPL access" means the ability to
access broadband services via a BPL operator or BPL Internet
service provider.
[(3) "BPL operator" means an entity that owns or
operates a BPL system on the electric power lines and related
facilities of an electric utility.
[(4) "BPL Internet] service provider" means a
commercial [and "BPL ISP" mean an] entity that provides Internet
services [to others on a wholesale basis or] to end-use customers on
a retail basis.
(3) [(5) "BPL system" means the materials, equipment,
and other facilities installed on electric utility property to
facilitate the provision of BPL services.
[(6) "BPL electric utility applications" means
services and technologies that are used and useful and designed to
improve the operational performance and service reliability of an
electric utility including, but not limited to, automated meter
reading, real time system monitoring and meter control, remote
service control, outage detection and restoration, predictive
maintenance and diagnostics, and monitoring and enhancement of
power quality.
[(7)] "Electric delivery system" means the power lines
and related transmission and distribution facilities constructed
[used by an electric utility] to deliver electric energy to the
electric utility's customers.
(4) [(8)] "Electric utility" includes [shall include]
an electric utility and a transmission and distribution utility as
defined in Section 31.002(6) or (19).
(5) "Middle mile broadband service" means the
provision of excess fiber capacity on an electric utility's
electric delivery system or other facilities to an Internet service
provider to provide broadband service. The term does not include
provision of Internet service to end-use customers on a retail
basis.
SUBCHAPTER B. DEVELOPMENT OF MIDDLE MILE BROADBAND SERVICE [BPL
SYSTEMS]
Sec. 43.051. AUTHORIZATION FOR MIDDLE MILE BROADBAND
SERVICE [BPL SYSTEM]. (a) An [affiliate of an] electric utility
[or a person unaffiliated with an electric utility] may own,
construct, maintain, and operate fiber optic cables and other
facilities for providing middle mile broadband service in unserved
and underserved areas [a BPL system and provide BPL services on an
electric utility's electric delivery system] consistent with the
requirements of this chapter. Nothing in this chapter prohibits
[shall prohibit] an entity defined in Section 11.003(9) from
providing broadband [BPL] service to an Internet service provider
or owning and operating a broadband [BPL] system as otherwise
permitted by law.
(b) The electric utility shall determine on a
nondiscriminatory basis which Internet service providers may
access excess fiber capacity on the electric utility's electric
delivery system or other facilities and provide access points to
allow connection between the electric utility's electric delivery
system or other facilities and the systems of those Internet
service providers. The electric utility shall provide access to
excess fiber capacity only on reasonable and nondiscriminatory
terms and conditions that assure the electric utility the
unimpaired ability to comply with and enforce all applicable
federal and state requirements regarding the safety, reliability,
and security of the electric delivery system. [Nothing in this
chapter shall prohibit an electric utility from providing
construction or maintenance services to a BPL operator or BPL ISP
provided that the costs of these services are properly accounted
for between the electric utility and the BPL operator or BPL ISP.]
Sec. 43.052. [OWNERSHIP AND OPERATION OF BPL SYSTEM. (a)
An electric utility may elect to:
[(1) allow an affiliate to own or operate a BPL system
on the utility's electric delivery system;
[(2) allow an unaffiliated entity to own or operate a
BPL system on the electric utility's electric delivery system; or
[(3) allow an affiliate or unaffiliated entity to
provide Internet service over a BPL system.
[(b) The BPL operator and the electric utility shall
determine what BPL Internet service providers may have access to
broadband capacity on the BPL system.
[Sec. 43.053. FEES AND] CHARGES. [(a)] An electric utility
that owns and operates facilities to provide middle mile broadband
service may lease excess fiber capacity on the electric utility's
electric delivery system or other facilities to an Internet service
provider on a wholesale basis and [allows an affiliate or an
unaffiliated entity to own a BPL system on the electric utility's
electric delivery system] shall charge the Internet service
provider [owner of the BPL system] for the use of the electric
utility's [electric delivery] system for all costs associated with
that use. The rates, terms, and conditions of a lease of excess
fiber capacity described by this section must be nondiscriminatory.
An electric utility may not lease excess fiber capacity to provide
middle mile broadband service to an affiliated Internet service
provider.
[(b) An electric utility may pay a BPL owner, a BPL
operator, or a BPL ISP for the use of the BPL system required to
operate BPL utility applications.
[(c) If all or part of a BPL system is installed on poles or
other structures of a telecommunications utility as that term is
defined in Section 51.002, the owner of the BPL system shall be
required to pay the telecommunications utility an annual fee
consistent with the usual and customary charges for access to the
space occupied by that portion of the BPL system so installed.
[(d) Notwithstanding Subsections (a)-(c):
[(1) an electric utility may not charge an affiliate
under this section an amount less than the electric utility would
charge an unaffiliated entity for the same item or class of items;
[(2) an electric utility may not pay an affiliate
under this section an amount more than the affiliate would charge an
unaffiliated entity for the same item or class of items; and
[(3) an electric utility or an affiliate of an
electric utility may not discriminate against a retail electric
provider that is not affiliated with the utility in the terms or
availability of BPL services.]
Sec. 43.053 [43.054]. NO ADDITIONAL EASEMENTS OR
CONSIDERATION REQUIRED. (a) Because broadband [BPL] systems
provide benefits to electric delivery systems, the installation of
facilities to provide middle mile broadband service [a BPL system]
on an electric delivery system or other facilities does [shall] not
require the electric utility [or the owner of the BPL system] or an
entity defined in Section 11.003(9) to obtain, modify, or expand
easements or other rights-of-way for the middle mile broadband
service [BPL system] or to give additional consideration as a
result of the installation or the operation of middle mile
broadband service on the electric delivery system or other
facilities of the electric utility or entity, unless the property
owner protests the use as provided by this section [a BPL system].
(b) Not later than the 60th day before the date an electric
utility begins construction in an easement or other property right
of fiber optic cables and other facilities for providing middle
mile broadband service, the electric utility shall provide written
notice to the owners of the affected property of the electric
utility's intent to use the easement or other property right for
middle mile broadband service.
(c) Notice under this section must:
(1) be sent by first class mail to the last known
address of each person in whose name the affected property is listed
on the most recent tax roll of each county authorized to levy
property taxes against the property; and
(2) state whether any new fiber optic cables used for
middle mile broadband service will be located above or below ground
in the easement or other property right.
(d) Not later than the 60th day after the date an electric
utility mails notice under this section, a property owner entitled
to the notice may submit to the electric utility a written protest
of the intended use of the easement or other property right for
middle mile broadband service. An electric utility that receives a
timely written protest may not use the easement or other property
right for middle mile broadband service unless the protestor later
agrees in writing to that use or that use is authorized by law. If a
property owner fails to submit a timely written protest, an
electric utility may proceed under Subsection (a) without modifying
or expanding the easement for that property owner.
(e) An electric utility that receives a timely written
protest under Subsection (d) regarding proposed middle mile
broadband service may cancel the project at any time.
(f) The requirements of this section do not apply to an
existing easement that permits the provision of third-party middle
mile broadband service on an electric delivery system. [For
purposes of this section, installation of a BPL system shall be
deemed to be consistent with installation of an electric delivery
system.]
Sec. 43.054 [43.055]. RELIABILITY OF ELECTRIC SYSTEMS
MAINTAINED. An electric utility that installs [allows the
installation] and operates facilities to provide middle mile
broadband service [operation of a BPL system on its electric
delivery system] shall employ all reasonable measures to ensure
that the operation of the middle mile broadband service [BPL
system] does not interfere with or diminish the reliability of the
utility's electric delivery system. If [Should] a disruption in
the provision of electric service occurs [occur], the electric
utility is [shall be] governed by the terms and conditions of the
retail electric delivery service tariff. The electric utility may
take all necessary actions regarding its middle mile broadband
service and the facilities required in the provision of that
service to address circumstances that may pose health, safety,
security, or reliability concerns. At all times, the provision of
broadband service is [services shall be] secondary to the reliable
provision of electric delivery services. Except as provided by
contract or tariff, an electric utility is not liable to any person,
including an Internet service provider, for any damages, including
direct, indirect, physical, economic, exemplary, or consequential
damages, including loss of business, loss of profits or revenue, or
loss of production capacity caused by a fluctuation, disruption, or
interruption of middle mile broadband service that is caused in
whole or in part by:
(1) force majeure; or
(2) the electric utility's provision of electric
delivery services, including actions taken by the electric utility
to ensure the reliability and security of the electric delivery
system and actions taken in response to address all circumstances
that may pose health, safety, security, or reliability concerns.
SUBCHAPTER C. IMPLEMENTATION OF MIDDLE MILE BROADBAND SERVICE [BPL
SYSTEM] BY ELECTRIC UTILITY
Sec. 43.101. PARTICIPATION BY ELECTRIC UTILITY. (a) An
electric utility[, through an affiliate or through an unaffiliated
entity,] may [elect to] install and operate facilities to provide
middle mile broadband service [a BPL system] on any part of its
electric delivery system or other facilities for Internet service
providers but may not construct new electric delivery facilities
for the purpose of expanding the electric utility's middle mile
broadband service [some or all of its electric delivery system in
any part or all of its certificated service area].
(b) The installation, operation, and use of middle mile
broadband service and the lease of excess fiber capacity by
Internet service providers from an electric utility may [a BPL
system and the provision of BPL services shall] not be regulated by
any state agency, a municipality, or local government other than as
provided by [for in] this chapter.
(c) An electric utility that owns and operates middle mile
broadband service:
(1) may lease excess fiber capacity on the electric
utility's electric delivery system or other facilities to an
Internet service provider on a wholesale basis; and
(2) may not provide Internet service to end-use
customers on a retail basis.
(d) [(c)] The commission or a state or local government or a
regulatory or quasi-governmental or a quasi-regulatory authority
may not:
(1) require an electric utility[, either through an
affiliate or an unaffiliated entity,] to install [a BPL system on
its power lines] or offer middle mile broadband service on the
utility's electric delivery system or other facilities [BPL
services in all or any part of the electric utility's certificated
service area];
(2) require an electric utility to allow others to
install middle mile broadband service [a BPL system] on the
utility's electric delivery system or other facilities [in any part
or all of the electric utility's certificated service area]; or
(3) prohibit an electric utility from installing or
offering middle mile broadband service on the utility's electric
delivery system or other facilities [having an affiliate or
unaffiliated entity install a BPL system or offering BPL services
in any part or all of the electric utility's certificated service
area].
(e) [(d)] If a municipality or local government is already
collecting a charge or fee from the electric utility for the use of
the public rights-of-way for the delivery of electricity to retail
electric customers, the municipality or local government may not
require [is prohibited from requiring] a franchise or an amendment
to a franchise or require an additional [from requiring a] charge,
fee, or tax from the electric utility [any entity] for use of the
public rights-of-way for middle mile broadband service [a BPL
system].
(f) If the state or a municipality or local government is
not already collecting a charge or fee from the electric utility for
the use of the public rights-of-way, the [(e) The] state or a
municipality or local government may impose a charge on the
provision of middle mile broadband service [BPL services], but the
charge may not be greater than the lowest charge that the state or
municipality imposes on other providers of broadband service
[services] for use of the public rights-of-way in its respective
jurisdiction.
Sec. 43.102. COMMISSION REVIEW OF UTILITY MIDDLE MILE PLAN.
(a) An electric utility that plans a project to deploy middle mile
broadband service shall submit to the commission a written plan
that includes:
(1) the route of the middle mile broadband service
infrastructure proposed for the project;
(2) the location of the electric utility's
infrastructure that will be used in connection with the project;
(3) an estimate of potential broadband customers that
would be served by the Internet service provider;
(4) the estimated cost of the project, including
engineering costs, construction costs, permitting costs,
right-of-way costs, and a reasonable allowance for funds used
during construction;
(5) the proposed schedule of construction for the
project;
(6) testimony, exhibits, or other evidence that
demonstrates the project will allow for the provision and
maintenance of middle mile broadband service; and
(7) any other information that the applicant considers
relevant or that the commission requires.
(b) The commission, after notice and hearing if required by
the commission, shall approve the plan if the commission finds that
the plan includes all the items required by Subsection (a) and by
commission rule.
(c) The commission must approve, modify, or reject a plan
submitted to the commission under this section not later than the
181st day after the date the plan is submitted under Subsection (a).
Notwithstanding any other provision of this title, if the
commission approves a plan under this section, the commission shall
issue a finding on the approved middle mile broadband service that:
(1) the service is used and useful to the electric
utility;
(2) the costs associated with the service are
reasonable; and
(3) the service is prudent and may be included in the
electric utility's rate base.
(d) An approved plan may be updated or amended subject to
commission approval in accordance with this section.
Sec. 43.103 [43.102]. COST RECOVERY FOR DEPLOYMENT OF
MIDDLE MILE BROADBAND FACILITIES [BPL AND UTILITY APPLICATIONS].
(a) Where an electric utility installs facilities used to provide
middle mile broadband service [permits the installation of a BPL
system on its electric delivery system] under Section 43.051
[43.052(a)], the electric utility's investment in those facilities
is [that BPL system to directly support the BPL electric utility
applications and other BPL services consumed by the electric
utility that are used and useful in providing electric utility
service shall be] eligible for inclusion in the electric utility's
invested capital, and any fees or operating expenses that are
reasonable and necessary are [shall be] eligible for inclusion as
operating expenses for purposes of any proceeding under Chapter 36.
The commission may allow an electric utility to recover investment
and associated costs in middle mile broadband service if the plan
for the service has been submitted and approved under Section
43.102 [The invested capital and expenses described in this section
must be allocated to the customer classes directly receiving the
services].
(b) In a [any] proceeding under Chapter 36, revenue received
by an electric utility from an Internet service provider for the use
of middle mile broadband service must be applied as a revenue credit
to customers in proportion to the customers' funding of the
underlying infrastructure [just and reasonable charges for the use
of the electric utility's electric delivery system by a BPL owner or
operator shall be limited to the usual and customary pole
attachment charges paid to the electric utility for comparable
space by cable television operators].
[(c) The revenues of an affiliated BPL operator or an
affiliated BPL ISP shall not be deemed the revenues of an electric
utility for purposes of setting rates under Chapter 36.]
SUBCHAPTER D. MISCELLANEOUS PROVISIONS
Sec. 43.151. [AFFILIATES OF ELECTRIC UTILITY. (a) Subject
to the limitations of this chapter, an electric utility may have a
full or partial ownership interest in a BPL operator or a BPL
ISP. Whether a BPL operator or a BPL ISP is an affiliate of the
electric utility shall be determined under Section 11.003(2) or
Section 11.006.
[(b) Neither a BPL operator nor a BPL ISP shall be
considered a "competitive affiliate" of an electric utility as that
term is defined in Section 39.157.
[Sec. 43.152.] COMPLIANCE WITH FEDERAL AND STATE LAW. An
electric utility that owns and operates facilities for the
provision of middle mile broadband service [BPL operators] shall
comply with all applicable federal and state laws[, including those
protecting licensed spectrum users from interference by BPL
systems. The operator of a radio frequency device shall be
required to cease operating the device upon notification by a
Federal Communications Commission or Public Utilities Commission
representative that the device is causing harmful
interference. Operation shall not resume until the condition
causing the harmful interference has been corrected].
SECTION 2. Section 33.001(b), Utilities Code, is repealed.
SECTION 3. Not later than the 270th day after the effective
date of this Act, the Public Utility Commission of Texas shall adopt
any rules necessary to implement Chapter 43, Utilities Code, as
amended by this Act.
SECTION 4. The Public Utility Commission of Texas is
required to implement a provision of this Act only if the
legislature appropriates money specifically for that purpose. If
the legislature does not appropriate money specifically for that
purpose, the commission may, but is not required to, implement a
provision of this Act using other appropriations that are available
for that purpose.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2021.
* * * * *