H.B. No. 3355
 
 
 
 
AN ACT
  relating to cable operators' attachments on distribution poles
  owned or controlled by electric cooperatives.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Title 5, Utilities Code, is amended by adding
  Chapter 252 to read as follows:
  CHAPTER 252. ATTACHMENTS TO ELECTRIC COOPERATIVE'S DISTRIBUTION
  POLES
         Sec. 252.001.  DEFINITIONS. In this chapter:
               (1)  "Abandoned pole attachment" means a pole
  attachment:
                     (A)  for which a cable operator has not paid, for a
  period of 90 consecutive days or more, an invoice for rental charges
  presented by an electric cooperative, unless there is a bona fide
  dispute over the invoice; or
                     (B)  that is not removed after authority for the
  pole attachment has terminated or expired, subject to any extension
  period for negotiation and mediation described by Section
  252.005(c).
               (2)  "Cable operator" means an entity that owns or
  operates a cable system, as that term is defined by 47 U.S.C.
  Section 522, regardless of the nature of the services offered or
  provided by the entity in addition to cable services.
               (3)  "Pole" means a pole carrying distribution lines
  with a voltage rating no higher than 34.5 kilovolts.
               (4)  "Pole attachment" means an affixture of cables,
  strands, wires, and associated equipment attached to a pole
  directly or indirectly.
               (5)  "Security instrument" means a performance bond or
  an equivalent financial instrument that guarantees payments of
  amounts payable to an electric cooperative by a cable operator.
         Sec. 252.002.  APPLICABILITY. (a) This chapter applies to a
  pole attachment affixed by a cable operator to a pole owned and
  controlled by an electric cooperative.  This chapter does not apply
  to a pole attachment regulated by the Federal Communications
  Commission under 47 U.S.C. Section 224.
         (b)  This chapter does not abrogate or affect a right or
  obligation of a party to a pole attachment contract entered into by
  a cable operator and an electric cooperative before September 1,
  2013.
         Sec. 252.003.  LIMITATION. (a) This chapter does not
  constitute state certification under 47 U.S.C. Section 224(c).  If
  a court determines that this chapter constitutes certification
  under that section, this chapter is not enforceable and has no
  effect.
         (b)  This chapter may not be construed to subject an electric
  cooperative to regulation by the Federal Communications Commission
  under 47 U.S.C. Section 224.  This chapter does not authorize a
  department, agency, or political subdivision of the state to
  exercise enforcement or regulatory authority over attachments to
  electric cooperative poles.
         Sec. 252.004.  CONSTRUCTION. Unless defined by Section
  252.001, the technical terms and phrases in this chapter shall be
  construed using their usual and customary meanings in the electric
  and cable industries.
         Sec. 252.005.  POLE ATTACHMENT CONTRACTS; ACCESS
  REQUIREMENTS. (a) A cable operator and an electric cooperative
  shall establish the rates, terms, and conditions for pole
  attachments, including the cooperative's application and
  permitting processes by a written pole attachment contract executed
  by both parties.  The rates, terms, and conditions for attachments
  by a cable operator on an electric cooperative's poles must be just
  and reasonable.
         (b)  A cable operator and an electric cooperative shall
  negotiate a pole attachment contract in good faith.
         (c)  A request to negotiate a new pole attachment contract by
  a cable operator or an electric cooperative must be in writing.  If
  a cable operator and an electric cooperative are unable to agree to
  a new pole attachment contract before the expiration date of an
  existing pole attachment contract, the rates, terms, and conditions
  of the existing pole attachment contract and the terms and
  conditions of the electric cooperative's application and
  permitting processes remain in force:
               (1)  during the 180-day negotiation period described by
  Subsection (d) and during the period of any agreed extension; and
               (2)  during the 90-day mediation period described by
  Subsection (d) and during the period of any agreed extension.
         (d)  If a cable operator and an electric cooperative are
  unable to agree to a new pole attachment contract before the 181st
  day after the expiration date of the existing pole attachment
  contract and are unable to agree to an extension of the negotiation
  period for a certain number of days, the cable operator and electric
  cooperative shall attempt to resolve any disagreement over the
  rates, terms, or conditions by submitting the contract negotiations
  to mediation. The mediation process may not extend later than the
  90th day after the end of the 180-day negotiation period and any
  agreed extension of that period unless the cable operator and an
  electric cooperative agree to an extension of the mediation period
  for a certain number of days.  The mediation process must be
  conducted in a county in which the electric cooperative has
  distribution poles. The cable operator and an electric cooperative
  must share the expenses for the mediator equally.
         (e)  If the mediation process does not resolve the
  disagreement over the rates, terms, or conditions, the cable
  operator or the electric cooperative may request that a court
  resolve the disagreement over the rates, terms, and conditions.
         (f)  Access to a pole may be denied where there is
  insufficient capacity and for reasons of safety, reliability, and
  generally applicable engineering purposes.
         (g)  In determining whether rates, terms, and conditions are
  just and reasonable, at least the following factors must be
  considered:
               (1)  the interests of and benefits to the consumers and
  potential consumers of the electric cooperative's services;
               (2)  the interests of and benefits to the subscribers
  and potential subscribers of the services offered through the pole
  attachments;
               (3)  compliance with applicable safety standards; and
               (4)  the maintenance and reliability of both electric
  distribution and cable services.
         Sec. 252.006.  TRANSFER OF ATTACHMENTS. (a) An electric
  cooperative shall provide a cable operator with notice when the
  electric cooperative is installing a new pole to replace an
  existing pole to which a pole attachment is affixed due to the
  rerouting, maintenance, or upgrading of the electric distribution
  system. In the notice, the electric cooperative shall specify a
  date for the cable operator to remove its attachment from the
  existing pole and transfer the attachment to the new pole.
         (b)  If a cable operator does not transfer a pole attachment
  to the new pole on or before the 30th day after the date specified by
  the electric cooperative under Subsection (a), the electric
  cooperative may transfer the pole attachment to the new pole at the
  cable operator's expense, including the cost for the electric
  cooperative to return to the site.
         (c)  A cable operator shall indemnify, defend, and hold
  harmless the electric cooperative and the cooperative's members,
  directors, officers, agents, and employees from and against all
  liability for the removal and transfer of a pole attachment subject
  to this section, except for personal injury or property damage
  arising from gross negligence or wilful misconduct of the electric
  cooperative during the removal and transfer process.
         Sec. 252.007.  ABANDONED POLE ATTACHMENTS; REMOVAL. (a)  A
  cable operator shall remove the operator's abandoned pole
  attachment from an electric cooperative's pole not later than the
  60th day after the date the cable operator receives from the
  electric cooperative a written request for removal of the pole
  attachment. A cable operator may request an electric cooperative
  to extend for a reasonable period the 60-day period prescribed by
  this section at any time before the 60-day period expires. The
  request for an extension must be in writing.  The electric
  cooperative may grant a cable operator a reasonable extension of
  time to remove an abandoned attachment.
         (b)  If a cable operator does not remove a pole attachment
  for which a request for removal was made under Subsection (a) before
  the expiration of the period described by that subsection or before
  the expiration of an extended period granted by the electric
  cooperative, the electric cooperative may remove, use, sell, or
  dispose of the pole attachment at the cable operator's expense.
         (c)  An electric cooperative may require that a cable
  operator post a security instrument in an amount reasonably
  sufficient to cover the potential cost to the electric cooperative
  of removal and disposal of abandoned pole attachments.
         (d)  A cable operator shall indemnify, defend, and hold
  harmless the electric cooperative and the cooperative's members,
  directors, officers, agents, and employees from and against all
  liability for the removal, use, sale, or disposal of abandoned pole
  attachments, except for personal injury or property damage arising
  from the gross negligence or wilful misconduct of the electric
  cooperative during the removal and disposal process.
         Sec. 252.008.  EASEMENTS; INDEMNITY. (a) A cable operator
  is responsible for obtaining all rights-of-way and easements
  necessary for the installation, operation, and maintenance of the
  operator's pole attachments.
         (b)  An electric cooperative is not required to obtain or
  expand a right-of-way or easement to accommodate a pole attachment
  requested by a cable operator.
         (c)  An electric cooperative is not liable if a cable
  operator is prevented from placing or maintaining a pole attachment
  because the cable operator did not obtain a necessary right-of-way
  or easement.
         (d)  A cable operator shall indemnify, defend, and hold
  harmless the electric cooperative and the cooperative's members,
  directors, officers, agents, and employees from and against any
  liability resulting from the cable operator's failure to obtain a
  necessary right-of-way or an easement for a pole attachment.
         SECTION 2.  Chapter 252, Utilities Code, as added by this
  Act, applies to a pole attachment contract entered into, or renewed
  or extended, by a cable operator and an electric cooperative on or
  after the effective date of this Act. A contract entered into by a
  cable operator and an electric cooperative before the effective
  date of this Act is governed by the law in effect on the date the
  contract is executed, and the former law remains in effect for that
  purpose.
         SECTION 3.  This Act takes effect September 1, 2013.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 3355 was passed by the House on May 2,
  2013, by the following vote:  Yeas 148, Nays 0, 2 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 3355 was passed by the Senate on May
  20, 2013, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor