By: Fraser S.B. No. 1748
A BILL TO BE ENTITLED
AN ACT
relating to the development and provision of broadband over
electric delivery systems and the development of enhanced electric
delivery systems.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 2, Utilities Code, is amended
by adding Chapter 43 to read as follows:
CHAPTER 43. USE OF ELECTRIC DELIVERY SYSTEM FOR ACCESS TO BROADBAND
AND OTHER ENHANCED SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 43.001. LEGISLATIVE FINDINGS. (a) The legislature
finds that 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 customer service and reliability for
electric customers.
(b) The legislature finds that access to 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 BPL development in Texas is fully dependent upon
the participation of electric utilities in this state that own and
operate power lines and related facilities that are necessary for
the construction of BPL systems and the provision of BPL services.
(c) The legislature finds that it is in the public interest
to encourage the deployment of BPL and to encourage each electric
utility to construct, maintain, and operate BPL systems, either by
permitting affiliates of the utility or unaffiliated entities to
own or operate all or a portion of such BPL systems. The purpose of
this chapter is to provide regulatory certainty for utilities to
support the deployment of BPL.
(d) The legislature finds that an electric utility may
choose to implement BPL but is not required to do so. The electric
utility shall have the right to decide, in its sole discretion,
whether to implement BPL and may not be penalized for deciding to
implement or not to implement BPL.
Sec. 43.002. APPLICABILITY. (a) This chapter applies to
an electric utility whether or not the utility is offering customer
choice under Chapter 39.
(b) If there is a conflict between the specific provisions
of this chapter and any other provision of this title, the
provisions of this chapter control.
(c) No provision of this title shall impose an obligation on
an electric utility to construct or permit others to construct a BPL
system, to implement BPL, to provide broadband services, or to
allow others to use its facilities for the provision of broadband
services.
Sec. 43.003. DEFINITIONS. In this chapter:
(1) "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) "BPL access" means the ability to access broadband
services via a BPL operator or BPL Internet service provider.
(3) "BPL customer" means an end-use customer who
receives BPL services from a BPL operator or a BPL Internet service
provider.
(4) "BPL operator" means an entity that operates a BPL
system on the electric power lines and related facilities of an
electric utility.
(5) "BPL Internet service provider" 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.
(6) "BPL system" means the materials, equipment, and
other facilities installed on electric utility property to
facilitate the provision of BPL services.
(7) "BPL electric utility applications" means
technologies that are designed to improve the operational
performance and service reliability of an electric utility,
including 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.
(8) "Electric delivery system" means the power lines
and related transmission and distribution facilities used by an
electric utility to deliver electric energy.
(9) "Electric utility" shall include an electric
utility and a transmission and distribution utility as defined in
Section 31.002(6) or (19).
[Sections 43.004-43.050 reserved for expansion]
SUBCHAPTER B. DEVELOPMENT OF BPL SYSTEMS
Sec. 43.051. AUTHORIZATION FOR A BPL SYSTEM. An electric
utility may allow another person, including an affiliate of the
electric utility, to own, construct, maintain, and operate a BPL
system and provide BPL services on its electric delivery system
consistent with the requirements of this chapter.
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; or
(2) allow an unaffiliated entity to own or operate a
BPL system on the electric utility's electric delivery system.
(b) The BPL operator shall determine what BPL Internet
service providers may have access to broadband capacity on the BPL
system. The BPL operator for that specific system shall determine
what Internet service providers shall have access to the BPL
system.
(c) Nothing in this chapter shall prohibit an entity defined
in Section 11.003(9) from providing BPL service or owning and
operating a BPL system.
Sec. 43.053. FEES AND CHARGES. (a) An electric utility
that allows an affiliate or an unaffiliated entity to own a BPL
system on the electric utility's electric delivery system shall
charge the owner of the BPL system for the use of the electric
utility's electric delivery system.
(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 installed BPL system.
(d) Notwithstanding Subsections (a)-(c):
(1) an electric utility may not charge an affiliate
under this section an amount less than the 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 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. 43.054. NO ADDITIONAL EASEMENTS OR PAYMENTS REQUIRED.
Because BPL systems provide benefits to electric delivery systems,
the installation of a BPL system on an electric delivery system
shall not require the electric utility or the owner of the BPL
system or an entity defined in Section 11.003(9) to obtain or expand
easements or other rights-of-way for the BPL system or to give
additional consideration for the placement of its BPL 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. 43.055. RELIABILITY OF ELECTRIC SYSTEMS MAINTAINED.
An electric utility that allows the installation and operation of a
BPL system on its electric delivery system shall employ reasonable
measures to ensure that the operation of the BPL system does not
interfere with or diminish the reliability of the utility's
electric delivery system. Should a disruption in the provision of
electric service occur, the electric utility shall be governed by
the terms and conditions of the retail electric delivery service
tariff. At all times, the provision of broadband services shall be
secondary to the reliable provision of electric delivery services.
[Sections 43.056-43.100 reserved for expansion]
SUBCHAPTER C. IMPLEMENTATION OF A BPL SYSTEM BY AN ELECTRIC UTILITY
Sec. 43.101. PARTICIPATION BY AN ELECTRIC UTILITY. (a) An
electric utility, either through an affiliate or through an
unaffiliated entity, may elect to install and operate a BPL system
on 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 a BPL system and
the provision of BPL services shall not be regulated by the state, a
municipality, or local government other than as provided for in
this chapter.
(c) The commission or any state or local government or
regulatory or quasi-government or quasi-regulatory authority may
not:
(1) require an electric utility to install a BPL
system on its power lines or offer BPL services in all or any part of
the electric utility's certificated service area, either directly
or indirectly through an affiliate or unaffiliated entity;
(2) require an electric utility to allow others to
install a BPL system on the electric utility's electric delivery
system in any part or all of the electric utility's certificated
service area; or
(3) prohibit an electric utility from installing a BPL
system or offering BPL services in any part or all of the electric
utility's certificated service area, either through an affiliate or
unaffiliated entity.
(d) If a municipality or local government is already
collecting a charge or fee from the electric utility for the use of
a municipal street, alley, or public way for the delivery of
electricity to retail electric customers, the municipality or local
government is prohibited from requiring a franchise or an amendment
to a franchise and is prohibited from imposing or collecting a
charge, fee, or tax from any entity for use of a municipal street,
alley, or public way for a BPL system or for the provision of BPL
services.
(e) The state, a municipality, or a local government may not
impose any charge on the provision of BPL services that is greater
than the lowest charge the state, the municipality, or the local
government imposes on other providers of Internet services.
Sec. 43.102. COST RECOVERY FOR DEPLOYMENT OF BPL AND
UTILITY APPLICATIONS. (a) Where an electric utility permits the
installation of a BPL system on its electric delivery system under
Section 43.052(a), the provision of BPL utility applications and
other BPL services consumed by the electric utility shall be
eligible for inclusion as operating expenses for purposes of any
proceeding under Chapter 36, in accordance with the standards
prescribed in that chapter.
(b) In any proceeding under Chapter 36, the commission may
determine the just and reasonable charges for access to the space
occupied by the BPL system and the use of other utility facilities
by the BPL system.
[Sections 43.103-43.150 reserved for expansion]
SUBCHAPTER D. MISCELLANEOUS PROVISION
Sec. 43.151. AFFILIATES OF AN ELECTRIC UTILITY. (a) 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
Sections 11.003(2) and 11.006.
(b) A BPL operator or a BPL ISP shall not be considered a
"competitive affiliate" of a utility as that term is defined in
Section 39.157.
Sec. 43.152. COMPLIANCE WITH FEDERAL LAW. BPL operators
are required to comply with all applicable federal laws, including
laws protecting licensed spectrum users from interference by BPL
systems.
SECTION 2. Section 33.001, Utilities Code, is amended to
read as follows:
Sec. 33.001. MUNICIPAL JURISDICTION. (a) To provide fair,
just, and reasonable rates and adequate and efficient services, the
governing body of a municipality has exclusive original
jurisdiction over the rates, operations, and services of an
electric utility in areas in the municipality, subject to the
limitations imposed by this title.
(b) Notwithstanding Subsection (a), the governing body of a
municipality shall not have jurisdiction over the BPL system, BPL
services, or the rates, operations, or services of the electric
utility or transmission and distribution utility to the extent that
such rates, operations, or services are related, in whole or in
part, to the ownership, construction, maintenance, or operation of
a BPL system used to provide BPL services to affiliated or
unaffiliated entities.
SECTION 3. 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, 2005.