Texas 2021 - 87th Regular

Texas Senate Bill SB1650 Compare Versions

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1	1		By: Perry, et al. S.B. No. 1650
2		-	(Anderson)
3	2
4	3
5	4		A BILL TO BE ENTITLED
6	5		AN ACT
7	6		relating to middle mile broadband service provided by an electric
8	7		utility.
9	8		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	9		SECTION 1. Chapter 43, Utilities Code, is amended to read as
11	10		follows:
12	11		CHAPTER 43. PROVISION [USE] OF MIDDLE MILE [ELECTRIC DELIVERY
13	12		SYSTEM FOR ACCESS TO] BROADBAND SERVICE BY ELECTRIC UTILITIES [AND
14	13		OTHER ENHANCED SERVICES, INCLUDING COMMUNICATIONS]
15	14		SUBCHAPTER A. GENERAL PROVISIONS
16	15		Sec. 43.001. LEGISLATIVE FINDINGS. (a) The legislature
17	16		finds that access to quality, high-speed broadband Internet service
18	17		is important to this state, is a necessary prerequisite for
19	18		enabling economic development and improving education, health
20	19		care, public safety, and government services in this state, and
21	20		provides other benefits to its citizens [broadband over power
22	21		lines, also known as BPL, is an emerging technology platform that
23	22		offers a means of providing broadband services to reach homes and
24	23		businesses. BPL services can also be used to enhance existing
25	24		electric delivery systems, which can result in improved service and
26	25		reliability for electric customers].
27	26		(b) [The legislature finds that access to quality, high
28	27		speed broadband services is important to this state. BPL
29	28		deployment in Texas has the potential to extend broadband service
30	29		to customers where broadband access is currently not available and
31	30		may provide an additional option for existing broadband consumers
32	31		in Texas, resulting in a more competitive market for broadband
33	32		services.] The legislature [further] finds that broadband [BPL]
34	33		development in unserved and underserved areas of Texas can be
35	34		facilitated by [is fully dependent upon] the participation of
36	35		electric utilities in this state that own and operate [power lines
37	36		and related] facilities that may be useful [are necessary] for the
38	37		full deployment of broadband service by Internet service providers
39	38		throughout this state [construction of BPL systems and the
40	39		provision of BPL services].
41	40		(c) The legislature finds that electric utilities have
42	41		existing infrastructure in place throughout this state and that
43	42		excess fiber capacity on that infrastructure could be used to
44	43		provide middle mile broadband service in unserved and underserved
45	44		areas.
46	45		(d) The [(c) Consistent with the goal of increasing options
47	46		for telecommunications in this state, the] legislature finds that
48	47		it is in the public interest to encourage the deployment of
49	48		broadband service in unserved and underserved areas [BPL] by
50	49		permitting electric utilities to own or operate facilities
51	50		providing middle mile broadband service to lease excess fiber
52	51		capacity [affiliates of the electric utility, or permitting
53	52		unaffiliated entities, to own or operate all or a portion of such
54	53		BPL systems]. The purpose of this chapter is to provide the
55	54		appropriate framework to facilitate the leasing of excess fiber
56	55		capacity on electric utility facilities [support the deployment of
57	56		BPL].
58	57		(e) [(d)] The legislature finds that an electric utility
59	58		may choose to implement middle mile broadband service to lease
60	59		excess fiber capacity to Internet service providers [BPL] under the
61	60		procedures set forth in this chapter, but is not required to do so.
62	61		The electric utility shall have the right to decide, in its sole
63	62		discretion, whether to implement middle mile broadband service
64	63		[BPL] and may not be penalized for deciding to implement or not to
65	64		implement that service [BPL].
66	65		Sec. 43.002. APPLICABILITY. (a) This chapter applies to an
67	66		electric utility whether or not the electric utility is offering
68	67		customer choice under Chapter 39.
69	68		(b) If there is a conflict between the specific provisions
70	69		of this chapter and any other provisions of this title, the
71	70		provisions of this chapter control.
72	71		(c) Except as otherwise provided by this title, no [No]
73	72		provision of this title imposes [shall impose] an obligation on an
74	73		electric utility to construct or operate a middle mile system, to
75	74		[implement BPL, to] provide middle mile broadband service
76	75		[services], or to allow others to install [BPL] facilities or use
77	76		the electric utility's facilities for the provision of broadband
78	77		service [services].
79	78		Sec. 43.003. DEFINITIONS. In this chapter:
80	79		(1) "Broadband service" means retail Internet service
81	80		provided by a commercial Internet service provider with the
82	81		capability of providing a download speed of 25 megabits per second
83	82		or faster and an upload speed of 3 megabits per second or faster
84	83		["BPL," "broadband over power lines," and "BPL services" mean the
85	84		provision of broadband services over electric power lines and
86	85		related facilities, whether above ground or in underground
87	86		conduit].
88	87		(2) "Middle mile broadband service" means the
89	88		provision of excess fiber capacity on an electric utility's
90	89		electric delivery system to an Internet service provider to provide
91	90		broadband service. The term does not include provision of Internet
92	91		service to end-use customers on a retail basis ["BPL access" means
93	92		the ability to access broadband services via a BPL operator or BPL
94	93		Internet service provider].
95	94		(3) "Internet ["BPL operator" means an entity that
96	95		owns or operates a BPL system on the electric power lines and
97	96		related facilities of an electric utility.
98	97		[(4) "BPL Internet] service provider" means a
99	98		commercial [and "BPL ISP" mean an] entity that provides Internet
100	99		services [to others on a wholesale basis or] to end-use customers on
101	100		a retail basis.
102	101		(4) [(5) "BPL system" means the materials, equipment,
103	102		and other facilities installed on electric utility property to
104	103		facilitate the provision of BPL services.
105	104		[(6) "BPL electric utility applications" means
106	105		services and technologies that are used and useful and designed to
107	106		improve the operational performance and service reliability of an
108	107		electric utility including, but not limited to, automated meter
109	108		reading, real time system monitoring and meter control, remote
110	109		service control, outage detection and restoration, predictive
111	110		maintenance and diagnostics, and monitoring and enhancement of
112	111		power quality.
113	112		[(7)] "Electric delivery system" means the power lines
114	113		and related transmission and distribution facilities constructed
115	114		[used by an electric utility] to deliver electric energy to the
116	115		electric utility's customers.
117	116		(5) [(8)] "Electric utility" includes [shall include]
118	117		an electric utility and a transmission and distribution utility as
119	118		defined in Section 31.002(6) or (19).
120	119		SUBCHAPTER B. DEVELOPMENT OF MIDDLE MILE BROADBAND [BPL] SYSTEMS
121	120		Sec. 43.051. AUTHORIZATION FOR MIDDLE MILE BROADBAND [BPL]
122	121		SYSTEM. (a) An [affiliate of an] electric utility [or a person
123	122		unaffiliated with an electric utility] may own, construct,
124	123		maintain, and operate fiber optic cables and other facilities for
125	124		providing middle mile broadband service [a BPL system and provide
126	125		BPL services on an electric utility's electric delivery system]
127	126		consistent with the requirements of this chapter. Nothing in this
128	127		chapter prohibits [shall prohibit] an entity defined in Section
129	128		11.003(9) from providing broadband [BPL] service to an Internet
130	129		service provider or owning and operating a broadband [BPL] system
131	130		as otherwise permitted by law.
132	131		(b) The electric utility may determine on a
133	132		nondiscriminatory basis which Internet service providers may have
134	133		access to excess fiber capacity on the electric utility's electric
135	134		delivery system and provide access points to allow connection
136	135		between the electric utility's electric delivery system and the
137	136		Internet service provider systems of those Internet service
138	137		providers. The electric utility may provide access to excess fiber
139	138		capacity on the electric utility's middle mile broadband system
140	139		only on reasonable and nondiscriminatory terms and conditions.
141	140		[Nothing in this chapter shall prohibit an electric utility from
142	141		providing construction or maintenance services to a BPL operator or
143	142		BPL ISP provided that the costs of these services are properly
144	143		accounted for between the electric utility and the BPL operator or
145	144		BPL ISP.]
146	145		Sec. 43.052. [OWNERSHIP AND OPERATION OF BPL SYSTEM. (a)
147	146		An electric utility may elect to:
148	147		[(1) allow an affiliate to own or operate a BPL system
149	148		on the utility's electric delivery system;
150	149		[(2) allow an unaffiliated entity to own or operate a
151	150		BPL system on the electric utility's electric delivery system; or
152	151		[(3) allow an affiliate or unaffiliated entity to
153	152		provide Internet service over a BPL system.
154	153		[(b) The BPL operator and the electric utility shall
155	154		determine what BPL Internet service providers may have access to
156	155		broadband capacity on the BPL system.
157	156		[Sec. 43.053. FEES AND] CHARGES. [(a)] An electric utility
158	157		that owns and operates a middle mile broadband system may lease
159	158		excess fiber capacity on the electric utility's electric delivery
160	159		system to an Internet service provider on a wholesale basis and
161	160		[allows an affiliate or an unaffiliated entity to own a BPL system
162	161		on the electric utility's electric delivery system] shall charge
163	162		the Internet service provider [owner of the BPL system] for the use
164	163		of the electric utility's [electric delivery] system for all costs
165	164		associated with that use. The rates, terms, and conditions of a
166	165		lease of excess fiber capacity on an electric utility's middle mile
167	166		broadband system must be nondiscriminatory. An electric utility
168	167		may not lease excess fiber capacity on the electric utility's
169	168		middle mile broadband system to an affiliated Internet service
170	169		provider.
171	170		[(b) An electric utility may pay a BPL owner, a BPL
172	171		operator, or a BPL ISP for the use of the BPL system required to
173	172		operate BPL utility applications.
174	173		[(c) If all or part of a BPL system is installed on poles or
175	174		other structures of a telecommunications utility as that term is
176	175		defined in Section 51.002, the owner of the BPL system shall be
177	176		required to pay the telecommunications utility an annual fee
178	177		consistent with the usual and customary charges for access to the
179	178		space occupied by that portion of the BPL system so installed.
180	179		[(d) Notwithstanding Subsections (a)-(c):
181	180		[(1) an electric utility may not charge an affiliate
182	181		under this section an amount less than the electric utility would
183	182		charge an unaffiliated entity for the same item or class of items;
184	183		[(2) an electric utility may not pay an affiliate
185	184		under this section an amount more than the affiliate would charge an
186	185		unaffiliated entity for the same item or class of items; and
187	186		[(3) an electric utility or an affiliate of an
188	187		electric utility may not discriminate against a retail electric
189	188		provider that is not affiliated with the utility in the terms or
190	189		availability of BPL services.]
191	190		Sec. 43.053 [43.054]. NO ADDITIONAL EASEMENTS OR
192	191		CONSIDERATION REQUIRED. (a) Because broadband [BPL] systems
193	192		provide benefits to electric delivery systems, the installation of
194	193		a middle mile broadband [BPL] system on an electric delivery system
195	194		does [shall] not require the electric utility [or the owner of the
196	195		BPL system] or an entity defined in Section 11.003(9) to obtain,
197	196		modify, or expand easements or other rights-of-way for the middle
198	197		mile broadband [BPL] system or to give additional consideration as
199	198		a result of the installation or the operation of a middle mile
200	199		broadband [BPL] system on the electric delivery system of the
201	200		electric utility or entity, unless the property owner protests the
202	201		use as provided by this section.
203	202		(b) Not later than the 60th day before the date an electric
204	203		utility begins construction in an easement or other property right
205	204		of fiber optic cables and other facilities for providing middle
206	205		mile broadband service, the electric utility shall provide written
207	206		notice to the owners of the affected property of the electric
208	207		utility's intent to use the easement or other property right for
209	208		middle mile broadband service.
210	209		(c) Notice under this section must:
211	210		(1) be sent by first class mail to the last known
212	211		address of each person in whose name the affected property is listed
213	212		on the most recent tax roll of each county authorized to levy
214	213		property taxes against the property; and
215	214		(2) state whether any new fiber optic cables used for
216	215		middle mile broadband service will be located above or below ground
217	216		in the easement or other property right.
218	217		(d) Not later than the 60th day after the date an electric
219	218		utility mails notice under this section, a property owner entitled
220	219		to the notice may submit to the electric utility a written protest
221	220		of the intended use of the easement or other property right for
222	221		middle mile broadband service. An electric utility that receives a
223	222		timely written protest may not use the easement or other property
224	223		right for middle mile broadband service unless the protestor later
225	224		agrees in writing to that use or that use is authorized by law. If a
226	225		property owner fails to submit a timely written protest, an
227	226		electric utility may proceed under Subsection (a) without modifying
228	227		or expanding the easement for that property owner.
229	228		(e) An electric utility that receives a timely written
230	229		protest under Subsection (d) regarding a proposed middle mile
231	230		broadband project may cancel the project at any time.
232	231		(f) The requirements of this section do not apply to an
233	232		existing easement that permits the installation of a third-party
234	233		middle mile broadband system on an electric delivery system. [For
235	234		purposes of this section, installation of a BPL system shall be
236	235		deemed to be consistent with installation of an electric delivery
237	236		system.]
238	237		Sec. 43.054 [43.055]. RELIABILITY OF ELECTRIC SYSTEMS
239	238		MAINTAINED. An electric utility that installs [allows the
240	239		installation] and operates [operation of] a middle mile broadband
241	240		[BPL] system [on its electric delivery system] shall employ all
242	241		reasonable measures to ensure that the operation of the middle mile
243	242		broadband [BPL] system does not interfere with or diminish the
244	243		reliability of the utility's electric delivery system. If [Should]
245	244		a disruption in the provision of electric service occurs [occur],
246	245		the electric utility is [shall be] governed by the terms and
247	246		conditions of the retail electric delivery service tariff. The
248	247		electric utility may take all necessary actions regarding its
249	248		middle mile broadband system to address emergency circumstances
250	249		that may pose health, safety, or reliability concerns. At all
251	250		times, the provision of broadband service is [services shall be]
252	251		secondary to the reliable provision of electric delivery services.
253	252		An electric utility is not liable to any person, including an
254	253		Internet service provider, for any direct, indirect, or
255	254		consequential damages, including loss of business, loss of profits
256	255		or revenue, or loss of production capacity caused by a fluctuation,
257	256		disruption, or interruption of middle mile broadband service that
258	257		is caused in whole or in part by:
259	258		(1) force majeure; or
260	259		(2) the electric utility's provision of electric
261	260		delivery services, including actions taken by the electric utility
262	261		to ensure the reliability of the electric delivery system and
263	262		actions taken in response to address emergency circumstances that
264	263		may pose health, safety, or reliability concerns.
265	264		SUBCHAPTER C. IMPLEMENTATION OF MIDDLE MILE BROADBAND [BPL] SYSTEM
266	265		BY ELECTRIC UTILITY
267	266		Sec. 43.101. PARTICIPATION BY ELECTRIC UTILITY. (a) An
268	267		electric utility[, through an affiliate or through an unaffiliated
269	268		entity,] may [elect to] install and operate a middle mile broadband
270	269		[BPL] system on any part of its electric delivery system for
271	270		Internet service providers but may not construct new electric
272	271		delivery facilities for the purpose of the electric utility's
273	272		middle mile service [some or all of its electric delivery system in
274	273		any part or all of its certificated service area].
275	274		(b) The installation, operation, and use of a middle mile
276	275		broadband [BPL] system and the provision of middle mile broadband
277	276		service and the lease of excess fiber capacity by Internet service
278	277		providers from an electric utility may [BPL services shall] not be
279	278		regulated by any state agency, a municipality, or local government
280	279		other than as provided by [for in] this chapter.
281	280		(c) An electric utility that owns and operates a middle mile
282	281		broadband system:
283	282		(1) may lease excess fiber capacity on the electric
284	283		utility's electric delivery system to an Internet service provider
285	284		on a wholesale basis; and
286	285		(2) may not provide Internet service to end-use
287	286		customers on a retail basis.
288	287		(d) [(c)] The commission or a state or local government or a
289	288		regulatory or quasi-governmental or a quasi-regulatory authority
290	289		may not:
291	290		(1) require an electric utility[, either through an
292	291		affiliate or an unaffiliated entity,] to install a middle mile
293	292		broadband [BPL] system [on its power lines] or offer middle mile
294	293		broadband service on the utility's electric delivery system [BPL
295	294		services in all or any part of the electric utility's certificated
296	295		service area];
297	296		(2) require an electric utility to allow others to
298	297		install a middle mile broadband [BPL] system on the utility's
299	298		electric delivery system [in any part or all of the electric
300	299		utility's certificated service area]; or
301	300		(3) prohibit an electric utility from installing a
302	301		middle mile broadband system or offering middle mile broadband
303	302		service on the utility's electric delivery system [having an
304	303		affiliate or unaffiliated entity install a BPL system or offering
305	304		BPL services in any part or all of the electric utility's
306	305		certificated service area].
307	306		(e) [(d)] If a municipality or local government is already
308	307		collecting a charge or fee from the electric utility for the use of
309	308		the public rights-of-way for the delivery of electricity to retail
310	309		electric customers, the municipality or local government may not
311	310		require [is prohibited from requiring] a franchise or an amendment
312	311		to a franchise or require an additional [from requiring a] charge,
313	312		fee, or tax from the electric utility [any entity] for use of the
314	313		public rights-of-way for a middle mile broadband [BPL] system.
315	314		(f) [(e)] The state or a municipality may impose a charge on
316	315		the provision of middle mile broadband service [BPL services], but
317	316		the charge may not be greater than the lowest charge that the state
318	317		or municipality imposes on other providers of broadband service
319	318		[services] for use of the public rights-of-way in its respective
320	319		jurisdiction.
321	320		Sec. 43.102. COMMISSION REVIEW OF UTILITY MIDDLE MILE PLAN.
322	321		(a) An electric utility that plans a project to deploy middle mile
323	322		broadband shall submit to the commission a written plan that
324	323		includes:
325	324		(1) the route of the middle mile broadband
326	325		infrastructure proposed for the project;
327	326		(2) the number of fiber strands and any other
328	327		facilities that would be used in connection with the project and
329	328		dedicated to an Internet service provider;
330	329		(3) the location of the electric utility's
331	330		infrastructure that will be used in connection with the project;
332	331		(4) the capacity or number of fiber strands and any
333	332		other facilities of the middle mile that will be available to lease
334	333		to Internet service providers and other third parties on completion
335	334		of the project;
336	335		(5) the name of at least one Internet service provider
337	336		that has committed to leasing access to the middle mile broadband
338	337		assets constructed as part of the project;
339	338		(6) an estimate of potential broadband customers that
340	339		would be served by the Internet service provider;
341	340		(7) the estimated cost of the project, including
342	341		engineering costs, construction costs, permitting costs,
343	342		right-of-way costs, and a reasonable allowance for funds used
344	343		during construction;
345	344		(8) the proposed schedule of construction for the
346	345		project;
347	346		(9) the method of attachment and connection of the
348	347		middle mile broadband assets by the Internet service provider to
349	348		the electric utility's electric delivery system;
350	349		(10) testimony, exhibits, or other evidence that
351	350		demonstrates the project will allow for the provision and
352	351		maintenance of adequate, efficient, safe, reliable, and reasonably
353	352		priced middle mile broadband service; and
354	353		(11) any other information that the applicant
355	354		considers relevant or that the commission requires.
356	355		(b) The commission, after notice and hearing if required by
357	356		the commission, shall approve the plan if the commission finds that
358	357		the plan will allow for reasonably priced middle mile broadband
359	358		service.
360	359		(c) The commission must approve, modify, or reject a plan
361	360		submitted to the commission under this section not later than the
362	361		181st day after the date the plan is submitted under Subsection (a).
363	362		(d) An approved plan may be updated or amended subject to
364	363		commission approval in accordance with this section.
365	364		Sec. 43.103 [43.102]. COST RECOVERY FOR DEPLOYMENT OF
366	365		MIDDLE MILE BROADBAND FACILITIES [BPL AND UTILITY APPLICATIONS].
367	366		(a) Where an electric utility installs a middle mile broadband
368	367		system [permits the installation of a BPL system on its electric
369	368		delivery system] under Section 43.051 [43.052(a)], the electric
370	369		utility's investment in that middle mile broadband [BPL] system is
371	370		[to directly support the BPL electric utility applications and
372	371		other BPL services consumed by the electric utility that are used
373	372		and useful in providing electric utility service shall be] eligible
374	373		for inclusion in the electric utility's invested capital, and any
375	374		fees or operating expenses that are reasonable and necessary are
376	375		[shall be] eligible for inclusion as operating expenses for
377	376		purposes of any proceeding under Chapter 36. The commission may
378	377		allow an electric utility to recover investment in a middle mile
379	378		broadband system outside of a comprehensive base rate proceeding
380	379		[The invested capital and expenses described in this section must
381	380		be allocated to the customer classes directly receiving the
382	381		services].
383	382		(b) In a [any] proceeding under Chapter 36, revenue received
384	383		by an electric utility from an Internet service provider for the use
385	384		of a middle mile broadband system must be applied as a revenue
386	385		credit to customers in proportion to the customers' funding of the
387	386		underlying infrastructure [just and reasonable charges for the use
388	387		of the electric utility's electric delivery system by a BPL owner or
389	388		operator shall be limited to the usual and customary pole
390	389		attachment charges paid to the electric utility for comparable
391	390		space by cable television operators].
392	391		[(c) The revenues of an affiliated BPL operator or an
393	392		affiliated BPL ISP shall not be deemed the revenues of an electric
394	393		utility for purposes of setting rates under Chapter 36.]
395	394		SUBCHAPTER D. MISCELLANEOUS PROVISIONS
396	395		Sec. 43.151. [AFFILIATES OF ELECTRIC UTILITY. (a) Subject
397	396		to the limitations of this chapter, an electric utility may have a
398	397		full or partial ownership interest in a BPL operator or a BPL
399	398		ISP. Whether a BPL operator or a BPL ISP is an affiliate of the
400	399		electric utility shall be determined under Section 11.003(2) or
401	400		Section 11.006.
402	401		[(b) Neither a BPL operator nor a BPL ISP shall be
403	402		considered a "competitive affiliate" of an electric utility as that
404	403		term is defined in Section 39.157.
405	404		[Sec. 43.152.] COMPLIANCE WITH FEDERAL LAW. An electric
406	405		utility that owns and operates a middle mile broadband system [BPL
407	406		operators] shall comply with all applicable federal laws[,
408	407		including those protecting licensed spectrum users from
409	408		interference by BPL systems. The operator of a radio frequency
410	409		device shall be required to cease operating the device upon
411	410		notification by a Federal Communications Commission or Public
412	411		Utilities Commission representative that the device is causing
413	412		harmful interference. Operation shall not resume until the
414	413		condition causing the harmful interference has been corrected].
415	414		SECTION 2. Section 33.001(b), Utilities Code, is repealed.
416	415		SECTION 3. The Public Utility Commission of Texas is
417	416		required to implement a provision of this Act only if the
418	417		legislature appropriates money specifically for that purpose. If
419	418		the legislature does not appropriate money specifically for that
420	419		purpose, the commission may, but is not required to, implement a
421	420		provision of this Act using other appropriations that are available
422	421		for that purpose.
423	422		SECTION 4. This Act takes effect immediately if it receives
424	423		a vote of two-thirds of all the members elected to each house, as
425	424		provided by Section 39, Article III, Texas Constitution. If this
426	425		Act does not receive the vote necessary for immediate effect, this
427	426		Act takes effect September 1, 2021.