By: Anderson, Guillen, King of Uvalde, Ashby, H.B. No. 3853
      King of Hemphill, et al.
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to middle mile broadband service provided by an electric
  utility.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 43, Utilities Code, is amended to read as
  follows:
  CHAPTER 43. PROVISION [USE] OF MIDDLE MILE [ELECTRIC DELIVERY
  SYSTEM FOR ACCESS TO] BROADBAND SERVICE BY ELECTRIC UTILITIES [AND
  OTHER ENHANCED SERVICES, INCLUDING COMMUNICATIONS]
  SUBCHAPTER A. GENERAL PROVISIONS
         Sec. 43.001.  LEGISLATIVE FINDINGS. (a) The legislature
  finds that access to quality, high-speed broadband Internet service
  is important to this state, is a necessary prerequisite for
  enabling economic development and improving education, health
  care, public safety, and government services in this state, and
  provides other benefits to its citizens [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 quality, high
  speed 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 broadband [BPL]
  development in unserved and underserved areas of Texas can be
  facilitated by [is fully dependent upon] the participation of
  electric utilities in this state that own and operate [power lines
  and related] facilities that may be useful [are necessary] for the
  full deployment of broadband service by Internet service providers
  throughout this state [construction of BPL systems and the
  provision of BPL services].
         (c)  The legislature finds that electric utilities have
  existing infrastructure in place throughout this state and that
  excess fiber capacity on that infrastructure could be used to
  provide middle mile broadband service in unserved and underserved
  areas.
         (d)  The [(c) Consistent with the goal of increasing options
  for telecommunications in this state, the] legislature finds that
  it is in the public interest to encourage the deployment of
  broadband service in unserved and underserved areas [BPL] by
  permitting electric utilities to own or operate facilities
  providing middle mile broadband service to lease excess fiber
  capacity [affiliates of the electric utility, or permitting
  unaffiliated entities, to own or operate all or a portion of such
  BPL systems]. The purpose of this chapter is to provide the
  appropriate framework to facilitate the leasing of excess fiber
  capacity on electric utility facilities [support the deployment of
  BPL].
         (e) [(d)]  The legislature finds that an electric utility
  may choose to implement middle mile broadband service to lease
  excess fiber capacity to Internet service providers [BPL] under the
  procedures set forth in this chapter, but is not required to do so.
  The electric utility shall have the right to decide, in its sole
  discretion, whether to implement middle mile broadband service
  [BPL] and may not be penalized for deciding to implement or not to
  implement that service [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.
         (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)  Except as otherwise provided by this title, no [No]
  provision of this title imposes [shall impose] an obligation on an
  electric utility to construct or operate a middle mile system, to 
  [implement BPL, to] provide middle mile broadband service
  [services], or to allow others to install [BPL] facilities or use
  the electric utility's facilities for the provision of broadband
  service [services].
         Sec. 43.003.  DEFINITIONS. In this chapter:
               (1)  "Broadband service" means retail Internet service
  provided by a commercial Internet service provider with the
  capability of providing a download speed of 25 megabits per second
  or faster and an upload speed of 3 megabits per second or faster
  ["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)  "Middle mile broadband service" means the
  provision of excess fiber capacity on an electric utility's
  electric delivery system to an Internet service provider to provide
  broadband service.  The term does not include provision of Internet
  service to end-use customers on a retail basis ["BPL access" means
  the ability to access broadband services via a BPL operator or BPL
  Internet service provider].
               (3)  "Internet ["BPL operator" means an entity that
  owns or operates a BPL system on the electric power lines and
  related facilities of an electric utility.
               [(4)  "BPL Internet] service provider" means a
  commercial [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.
               (4) [(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 constructed 
  [used by an electric utility] to deliver electric energy to the
  electric utility's customers.
               (5) [(8)]  "Electric utility" includes [shall include]
  an electric utility and a transmission and distribution utility as
  defined in Section 31.002(6) or (19).
  SUBCHAPTER B. DEVELOPMENT OF MIDDLE MILE BROADBAND [BPL] SYSTEMS
         Sec. 43.051.  AUTHORIZATION FOR MIDDLE MILE BROADBAND [BPL]
  SYSTEM. (a) An [affiliate of an] electric utility [or a person
  unaffiliated with an electric utility] may own, construct,
  maintain, and operate fiber optic cables and other facilities for
  providing middle mile broadband service [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 prohibits [shall prohibit] an entity defined in Section
  11.003(9) from providing broadband [BPL] service to an Internet
  service provider or owning and operating a broadband [BPL] system
  as otherwise permitted by law.
         (b)  The electric utility may determine on a
  nondiscriminatory basis which Internet service providers may have
  access to excess fiber capacity on the electric utility's electric
  delivery system and provide access points to allow connection
  between the electric utility's electric delivery system and the
  Internet service provider systems of those Internet service
  providers.  The electric utility may provide access to excess fiber
  capacity on the electric utility's middle mile broadband system
  only on reasonable and nondiscriminatory terms and conditions.
  [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 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 owns and operates a middle mile broadband system may lease
  excess fiber capacity on the electric utility's electric delivery
  system to an Internet service provider on a wholesale basis and
  [allows an affiliate or an unaffiliated entity to own a BPL system
  on the electric utility's electric delivery system] shall charge
  the Internet service provider [owner of the BPL system] for the use
  of the electric utility's [electric delivery] system for all costs
  associated with that use.  The rates, terms, and conditions of a
  lease of excess fiber capacity on an electric utility's middle mile
  broadband system must be nondiscriminatory.  An electric utility
  may not lease excess fiber capacity on the electric utility's
  middle mile broadband system to an affiliated Internet service
  provider.
         [(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)-(c):
               [(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. 43.053  [43.054]. NO ADDITIONAL EASEMENTS OR
  CONSIDERATION REQUIRED. (a)  Because broadband [BPL] systems
  provide benefits to electric delivery systems, the installation of
  a middle mile broadband [BPL] system on an electric delivery system
  does [shall] not require the electric utility [or the owner of the
  BPL system] or an entity defined in Section 11.003(9) to obtain,
  modify, or expand easements or other rights-of-way for the middle
  mile broadband [BPL] system or to give additional consideration as
  a result of the installation or the operation of a middle mile
  broadband [BPL] system on the electric delivery system of the
  electric utility or entity, unless the property owner protests the
  use as provided by this section.
         (b)  Not later than the 60th day before the date an electric
  utility begins construction in an easement or other property right
  of fiber optic cables and other facilities for providing middle
  mile broadband service, the electric utility shall provide written
  notice to the owners of the affected property of the electric
  utility's intent to use the easement or other property right for
  middle mile broadband service.
         (c)  Notice under this section must:
               (1)  be sent by first class mail to the last known
  address of each person in whose name the affected property is listed
  on the most recent tax roll of each county authorized to levy
  property taxes against the property; and
               (2)  state whether any new fiber optic cables used for
  middle mile broadband service will be located above or below ground
  in the easement or other property right.
         (d)  Not later than the 60th day after the date an electric
  utility mails notice under this section, a property owner entitled
  to the notice may submit to the electric utility a written protest
  of the intended use of the easement or other property right for
  middle mile broadband service.  An electric utility that receives a
  timely written protest may not use the easement or other property
  right for middle mile broadband service unless the protestor later
  agrees in writing to that use or that use is authorized by law. If a
  property owner fails to submit a timely written protest, an
  electric utility may proceed under Subsection (a) without modifying
  or expanding the easement for that property owner.
         (e)  An electric utility that receives a timely written
  protest under Subsection (d) regarding a proposed middle mile
  broadband project may cancel the project at any time.
         (f)  The requirements of this section do not apply to an
  existing easement that permits the installation of a third-party
  middle mile broadband system on an electric delivery 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. 43.054  [43.055]. RELIABILITY OF ELECTRIC SYSTEMS
  MAINTAINED. An electric utility that installs [allows the
  installation] and operates [operation of] a middle mile broadband
  [BPL] system [on its electric delivery system] shall employ all
  reasonable measures to ensure that the operation of the middle mile
  broadband [BPL] system does not interfere with or diminish the
  reliability of the utility's electric delivery system. If [Should]
  a disruption in the provision of electric service occurs [occur],
  the electric utility is [shall be] governed by the terms and
  conditions of the retail electric delivery service tariff. The
  electric utility may take all necessary actions regarding its
  middle mile broadband system to address emergency circumstances
  that may pose health, safety, or reliability concerns. At all
  times, the provision of broadband service is [services shall be]
  secondary to the reliable provision of electric delivery services.
  An electric utility is not liable to any person, including an
  Internet service provider, for any direct, indirect, or
  consequential damages, including loss of business, loss of profits
  or revenue, or loss of production capacity caused by a fluctuation,
  disruption, or interruption of middle mile broadband service that
  is caused in whole or in part by:
               (1)  force majeure; or 
               (2)  the electric utility's provision of electric
  delivery services, including actions taken by the electric utility
  to ensure the reliability of the electric delivery system and
  actions taken in response to address emergency circumstances that
  may pose health, safety, or reliability concerns.
  SUBCHAPTER C. IMPLEMENTATION OF MIDDLE MILE BROADBAND [BPL] SYSTEM
  BY ELECTRIC UTILITY
         Sec. 43.101.  PARTICIPATION BY ELECTRIC UTILITY. (a) An
  electric utility[, through an affiliate or through an unaffiliated
  entity,] may [elect to] install and operate a middle mile broadband
  [BPL] system on any part of its electric delivery system for
  Internet service providers but may not construct new electric
  delivery facilities for the purpose of the electric utility's
  middle mile service [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 middle mile
  broadband [BPL] system and the provision of middle mile broadband
  service and the lease of excess fiber capacity by Internet service
  providers from an electric utility may [BPL services shall] not be
  regulated by any state agency, a municipality, or local government
  other than as provided by [for in] this chapter.
         (c)  An electric utility that owns and operates a middle mile
  broadband system:
               (1)  may lease excess fiber capacity on the electric
  utility's electric delivery system to an Internet service provider
  on a wholesale basis; and
               (2)  may not provide Internet service to end-use
  customers on a retail basis.
         (d) [(c)]  The commission or a state or local government or a
  regulatory or quasi-governmental or a quasi-regulatory authority
  may not:
               (1)  require an electric utility[, either through an
  affiliate or an unaffiliated entity,] to install a middle mile
  broadband [BPL] system [on its power lines] or offer middle mile
  broadband service on the utility's electric delivery system [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 middle mile broadband [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 installing a
  middle mile broadband system or offering middle mile broadband
  service on the utility's electric delivery system [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].
         (e) [(d)]  If a municipality or local government is already
  collecting a charge or fee from the electric utility for the use of
  the public rights-of-way for the delivery of electricity to retail
  electric customers, the municipality or local government may not
  require [is prohibited from requiring] a franchise or an amendment
  to a franchise or require an additional [from requiring a] charge,
  fee, or tax from the electric utility [any entity] for use of the
  public rights-of-way for a middle mile broadband [BPL] system.
         (f) [(e)]  The state or a municipality may impose a charge on
  the provision of middle mile broadband service [BPL services], but
  the charge may not be greater than the lowest charge that the state
  or municipality imposes on other providers of broadband service
  [services] for use of the public rights-of-way in its respective
  jurisdiction.
         Sec. 43.102.  COMMISSION REVIEW OF UTILITY MIDDLE MILE PLAN.
  (a) An electric utility that plans a project to deploy middle mile
  broadband shall submit to the commission a written plan that
  includes:
               (1)  the route of the middle mile broadband
  infrastructure proposed for the project;
               (2)  the number of fiber strands and any other
  facilities that would be used in connection with the project and
  dedicated to an Internet service provider;
               (3)  the location of the electric utility's
  infrastructure that will be used in connection with the project;
               (4)  the capacity or number of fiber strands and any
  other facilities of the middle mile that will be available to lease
  to Internet service providers and other third parties on completion
  of the project;
               (5)  the name of at least one Internet service provider
  that has committed to leasing access to the middle mile broadband
  assets constructed as part of the project;
               (6)  an estimate of potential broadband customers that
  would be served by the Internet service provider;
               (7)  the estimated cost of the project, including
  engineering costs, construction costs, permitting costs,
  right-of-way costs, and a reasonable allowance for funds used
  during construction;
               (8)  the proposed schedule of construction for the
  project;
               (9)  the method of attachment and connection of the
  middle mile broadband assets by the Internet service provider to
  the electric utility's electric delivery system;
               (10)  testimony, exhibits, or other evidence that
  demonstrates the project will allow for the provision and
  maintenance of adequate, efficient, safe, reliable, and reasonably
  priced middle mile broadband service; and
               (11)  any other information that the applicant
  considers relevant or that the commission requires.
         (b)  The commission, after notice and hearing if required by
  the commission, shall approve the plan if the commission finds that
  the plan will allow for reasonably priced middle mile broadband
  service.
         (c)  The commission must approve, modify, or reject a plan
  submitted to the commission under this section not later than the
  181st day after the date the plan is submitted under Subsection (a).
         (d)  An approved plan may be updated or amended subject to
  commission approval in accordance with this section.
         Sec. 43.103  [43.102]. COST RECOVERY FOR DEPLOYMENT OF
  MIDDLE MILE BROADBAND FACILITIES [BPL AND UTILITY APPLICATIONS].
  (a) Where an electric utility installs a middle mile broadband
  system [permits the installation of a BPL system on its electric
  delivery system] under Section 43.051 [43.052(a)], the electric
  utility's investment in that middle mile broadband [BPL] system is
  [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 are
  [shall be] eligible for inclusion as operating expenses for
  purposes of any proceeding under Chapter 36. The commission may
  allow an electric utility to recover investment in a middle mile
  broadband system outside of a comprehensive base rate proceeding
  [The invested capital and expenses described in this section must
  be allocated to the customer classes directly receiving the
  services].
         (b)  In a [any] proceeding under Chapter 36, revenue received
  by an electric utility from an Internet service provider for the use
  of a middle mile broadband system must be applied as a revenue
  credit to customers in proportion to the customers' funding of the
  underlying infrastructure [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 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. An electric
  utility that owns and operates a middle mile broadband system [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 or Public
  Utilities 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(b), Utilities Code, is repealed.
         SECTION 3.  The Public Utility Commission of Texas is
  required to implement a provision of this Act only if the
  legislature appropriates money specifically for that purpose.  If
  the legislature does not appropriate money specifically for that
  purpose, the commission may, but is not required to, implement a
  provision of this Act using other appropriations that are available
  for that purpose.
         SECTION 4.  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, 2021.