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  H.B. No. 3853
 
 
 
 
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, construct, or operate fiber
  facilities for the support of electric service and to lease excess
  fiber capacity for the provision of middle mile broadband service
  [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 facilities 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 at least 25 megabits per
  second and an upload speed of at least 3 megabits per second ["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)  "Internet ["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 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.
               (3) [(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.
               (4) [(8)]  "Electric utility" includes [shall include]
  an electric utility and a transmission and distribution utility as
  defined in Section 31.002(6) or (19).
               (5)  "Middle mile broadband service" means the
  provision of excess fiber capacity on an electric utility's
  electric delivery system or other facilities 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.
  SUBCHAPTER B. DEVELOPMENT OF MIDDLE MILE BROADBAND SERVICE [BPL
  SYSTEMS]
         Sec. 43.051.  AUTHORIZATION FOR MIDDLE MILE BROADBAND
  SERVICE [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 in unserved
  and underserved areas [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 shall determine on a
  nondiscriminatory basis which Internet service providers may
  access excess fiber capacity on the electric utility's electric
  delivery system or other facilities and provide access points to
  allow connection between the electric utility's electric delivery
  system or other facilities and the systems of those Internet
  service providers.  The electric utility shall provide access to
  excess fiber capacity only on reasonable and nondiscriminatory
  terms and conditions that assure the electric utility the
  unimpaired ability to comply with and enforce all applicable
  federal and state requirements regarding the safety, reliability,
  and security of the electric delivery 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 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 facilities to provide middle mile broadband
  service may lease excess fiber capacity on the electric utility's
  electric delivery system or other facilities 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 described by this section must be nondiscriminatory.  
  An electric utility may not lease excess fiber capacity to provide
  middle mile broadband service 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
  facilities to provide middle mile broadband service [a BPL system]
  on an electric delivery system or other facilities 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
  service [BPL system] or to give additional consideration as a
  result of the installation or the operation of middle mile
  broadband service on the electric delivery system or other
  facilities of the electric utility or entity, unless the property
  owner protests the use as provided by this section [a BPL system].
         (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 proposed middle mile
  broadband service may cancel the project at any time.
         (f)  The requirements of this section do not apply to an
  existing easement that permits the provision of third-party middle
  mile broadband service 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 facilities to provide middle mile
  broadband service [operation of a BPL system on its electric
  delivery system] shall employ all reasonable measures to ensure
  that the operation of the middle mile broadband service [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
  service and the facilities required in the provision of that
  service to address circumstances that may pose health, safety,
  security, or reliability concerns. At all times, the provision of
  broadband service is [services shall be] secondary to the reliable
  provision of electric delivery services. Except as provided by
  contract or tariff, an electric utility is not liable to any person,
  including an Internet service provider, for any damages, including
  direct, indirect, physical, economic, exemplary, 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 and security of the electric delivery
  system and actions taken in response to address all circumstances
  that may pose health, safety, security, or reliability concerns.
  SUBCHAPTER C. IMPLEMENTATION OF MIDDLE MILE BROADBAND SERVICE [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 facilities to provide
  middle mile broadband service [a BPL system] on any part of its
  electric delivery system or other facilities for Internet service
  providers but may not construct new electric delivery facilities
  for the purpose of expanding the electric utility's middle mile
  broadband 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 middle mile
  broadband service and the lease of excess fiber capacity by
  Internet service providers from an electric utility may [a BPL
  system and the provision of 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 middle mile
  broadband service:
               (1)  may lease excess fiber capacity on the electric
  utility's electric delivery system or other facilities 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 BPL system on
  its power lines] or offer middle mile broadband service on the
  utility's electric delivery system or other facilities [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 middle mile broadband service [a BPL system] on the
  utility's electric delivery system or other facilities [in any part
  or all of the electric utility's certificated service area]; or
               (3)  prohibit an electric utility from installing or
  offering middle mile broadband service on the utility's electric
  delivery system or other facilities [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 middle mile broadband service [a BPL
  system].
         (f)  If the state or a municipality or local government is
  not already collecting a charge or fee from the electric utility for
  the use of the public rights-of-way, the [(e) The] state or a
  municipality or local government 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 service shall submit to the commission a written plan
  that includes:
               (1)  the route of the middle mile broadband service
  infrastructure proposed for the project;
               (2)  the location of the electric utility's
  infrastructure that will be used in connection with the project;
               (3)  an estimate of potential broadband customers that
  would be served by the Internet service provider;
               (4)  the capacity, number of fiber strands, and any
  other facilities of the middle mile broadband service that will be
  available to lease to Internet service providers;
               (5)  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;
               (6)  the proposed schedule of construction for the
  project;
               (7)  testimony, exhibits, or other evidence that
  demonstrates the project will allow for the provision and
  maintenance of middle mile broadband service; and
               (8)  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 includes all the items required by Subsection (a) and by
  commission rule.
         (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 facilities used to provide
  middle mile broadband service [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 those facilities
  is [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 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
  and associated costs in middle mile broadband service if the plan
  for the service has been submitted and approved under Section
  43.102 [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 middle mile broadband service 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 AND STATE LAW. An
  electric utility that owns and operates facilities for the
  provision of middle mile broadband service [BPL operators] shall
  comply with all applicable federal and state 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.  Not later than the 270th day after the effective
  date of this Act, the Public Utility Commission of Texas shall adopt
  any rules necessary to implement Chapter 43, Utilities Code, as
  amended by this Act.
         SECTION 4.  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 5.  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.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 3853 was passed by the House on April
  27, 2021, by the following vote:  Yeas 147, Nays 0, 1 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 3853 on May 28, 2021, by the following vote:  Yeas 145, Nays 0,
  1 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 3853 was passed by the Senate, with
  amendments, on May 22, 2021, by the following vote:  Yeas 30, Nays
  0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor