By: Fraser S.B. No. 1748
Substitute the following for S.B. No. 1748:
By: King of Parker C.S.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, of the 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 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 by permitting affiliates of the
electric utility, or permitting unaffiliated entities to own and/or
operate all or a portion of such BPL systems. The purpose of this
chapter is to provide the appropriate framework to support the
deployment of BPL.
(d) The Legislature finds that an electric utility may
choose to implement BPL under the procedures set forth in this
section, 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 electric utility is offering
customer choice under Chapter 39 of this subtitle.
(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) No provision of this title shall impose an obligation on
an electric utility to implement BPL, to provide broadband
services, or to allow others to install BPL facilities or use the
electric utility's 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 operator" means an entity that operates a BPL
system on the electric power lines and related facilities of an
electric utility.
(4) "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.
(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 used by an
electric utility to deliver electric energy.
(8) "Electric utility" shall include an electric
utility and a transmission and distribution utility as defined in
Section 31.002(6) or (19) of this title.
SUBCHAPTER B. DEVELOPMENT OF BPL SYSTEMS
Sec. 43.051. AUTHORIZATION FOR A BPL SYSTEM. An affiliate
of an electric utility or a person unaffiliated with an electric
utility may own, construct, maintain, and operate 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 shall prohibit an entity defined in Section
11.003(9) of this title from providing BPL service or owning and
operating a BPL 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 A 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 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 BPL system so installed.
(d) Notwithstanding Subsections (a) through (c) of this
section:
(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. 43.054. NO ADDITIONAL EASEMENTS OR CONSIDERATION
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) of this
title to obtain or expand easements or other rights of way for the
BPL system or to give additional consideration as a result of the
installation or the operation of a 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 all
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.
SUBCHAPTER C. IMPLEMENTATION OF A BPL SYSTEM BY AN
ELECTRIC UTILITY
Sec. 43.101. PARTICIPATION BY AN ELECTRIC UTILITY. (a) An
electric utility 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) Neither the commission nor any state or local government
or regulatory or quasi-government or quasi-regulatory authority
shall:
(1) require an electric utility, either through an
affiliate or an unaffiliated entity, 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;
(2) require an electric utility to allow others to
install a BPL system on the 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 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.
(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 or from requiring 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 that entity imposes on other providers of
Internet services in its respective jurisdiction.
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)(1)-(3), the electric utility's investment in
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 shall be eligible for inclusion as
operating expenses for purposes of any proceeding under Chapter 36.
The invested capital and expenses described in this section must be
allocated to the customer classes directly receiving the services.
(b) In any proceeding under Chapter 36, 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 AN 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 LAW. BPL operators
shall comply with all applicable federal 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 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, 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 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.