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