87R8812 BRG-F     By: Paddie H.B. No. 1505       A BILL TO BE ENTITLED   AN ACT   relating to attachments for broadband service on utility poles   owned by an electric cooperative.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  The heading to Chapter 252, Utilities Code, is   amended to read as follows:   CHAPTER 252. CABLE ATTACHMENTS TO ELECTRIC COOPERATIVE'S   DISTRIBUTION POLES          SECTION 2.  Title 5, Utilities Code, is amended by adding   Chapter 253 to read as follows:   CHAPTER 253. BROADBAND ATTACHMENTS TO ELECTRIC COOPERATIVE'S   DISTRIBUTION POLES   SUBCHAPTER A. GENERAL PROVISIONS          Sec. 253.0001.  DEFINITIONS. In this chapter:                (1)  "Broadband provider" means an entity that provides   broadband service either directly or through an affiliate that uses   the entity's communications facilities, regardless of whether the   entity:                      (A)  provides additional services in addition to   broadband service; or                      (B)  uses its facilities in whole or in part to   provide broadband service.                (2)  "Broadband service" means Internet service with   the capability of providing:                      (A)  a download speed of 25 megabits per second or   faster; and                      (B)  an upload speed of three megabits per second   or faster.                (3)  "Communications space" means the lower usable   space on a pole that is typically reserved for low-voltage   communications equipment.                (4)  "Large order application" means an application   submitted by a broadband provider under this subchapter requesting   access to attach pole attachments to a number of poles:                      (A)  that exceeds the lesser of 300 poles or a   number equal to 0.5 percent of the electric cooperative's poles;   and                      (B)  that is not more than the lesser of 3,000   poles or a number equal to five percent of the electric   cooperative's poles.                (5)  "Pole" has the meaning assigned by Section   252.001.                (6)  "Pole attachment" means an affixture of cables,   strands, wires, and associated equipment used in the provision of a   broadband provider's services attached to a pole directly or   indirectly or placed in a right-of-way owned or controlled by an   electric cooperative.                (7)  "Simple make-ready activities" means work to   accommodate a new pole attachment on a pole and includes work where   existing attachments in the communications space are moved without   any reasonable expectation of:                      (A)  service outage or facility damage;                      (B)  a need to splice an existing communications   attachment; or                      (C)  a need to relocate an existing wireless   attachment.          Sec. 253.0002.  APPLICABILITY AND CONSTRUCTION OF CHAPTER.   (a)  This chapter applies to a pole attachment affixed by a   broadband provider 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 broadband provider and an electric cooperative before September   1, 2021.          (c)  A broadband provider that attaches a pole attachment to   a pole owned by an electric cooperative under the terms of this   chapter is subject to Sections 252.006, 252.007, and 252.008 in the   same manner as if the broadband provider were a cable operator.          (d)  This chapter does not limit a right of a party to a pole   attachment contract to request modification, amendment, or renewal   of such contract to conform it to the provisions of this chapter.          Sec. 253.0003.  NO STATE CERTIFICATION; NO REGULATORY   AUTHORITY.  (a)  This chapter does not constitute state   certification under 47 U.S.C. Section 224. 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.          (c)  This chapter does not authorize a department, agency, or   political subdivision of this state to exercise enforcement or   regulatory authority over attachments to electric cooperative   poles.          Sec. 253.0004.  CONSTRUCTION OF TERMS AND PHRASES.   Technical terms and phrases in this chapter, other than those   defined by Section 253.0001, shall be construed using the term's or   phrase's usual and customary meanings in the electric and broadband   industries.          Sec. 253.0005.  COST-BASED NON-RECURRING CHARGES.     Non-recurring charges authorized by this chapter must be   cost-based.   SUBCHAPTER B. APPLICATION FOR ACCESS TO POLES          Sec. 253.0101.  APPLICATION FOR POLE ACCESS. (a)  A   broadband provider may not access a pole owned by an electric   cooperative for the purpose of placing a pole attachment unless the   provider applies for that access in accordance with this   subchapter.          (b)  An electric cooperative shall:                (1)  establish a timeline for a broadband provider to   apply for and obtain access to poles for placing a pole attachment   under this chapter; and                (2)  make available an explanation of the information   reasonably required for an application for access to poles for   placing a pole attachment under this chapter to be considered   complete.          Sec. 253.0102.  REVIEW OF APPLICATION FOR COMPLETENESS. (a)     An electric cooperative shall review an application for   completeness before the cooperative reviews the application on the   merits.          (b)  An electric cooperative shall notify an applicant   whether an application is complete not later than:                (1)  the 10th business day after the date the   cooperative receives the application;                (2)  the 25th business day after the date the   cooperative receives a large order application;                (3)  the fifth business day after the date the   cooperative receives a resubmitted application; or                (4)  the 20th business day after the date the   cooperative receives a resubmitted large order application.          Sec. 253.0103.  TREATMENT OF MULTIPLE APPLICATIONS BY SAME   APPLICANT. For purposes of this chapter, an electric cooperative   may treat as a single application for pole access an application the   cooperative receives from the same applicant before the 31st day   after the cooperative receives that applicant's most recent   previous application.          Sec. 253.0104.  GRANT OR DENIAL OF APPLICATION. (a)  Except   as provided by Sections 253.0204 and 253.0302, an electric   cooperative shall grant or deny an application for pole access   under this chapter and provide to the applicant a survey of the   poles affected by the application not later than:                (1)  the 45th day after the date the cooperative   receives a complete application; or                (2)  the 60th day after the date the cooperative   receives a complete large order application.          (b)  An electric cooperative may deny an application for   access to a pole under this chapter if:                (1)  generally applicable safety, reliability, or   engineering requirements established for the protection of public   health, safety, or welfare prevent granting access; or                (2)  the pole lacks sufficient capacity.          (c)  Notwithstanding Subsection (b)(1), an electric   cooperative may not deny access to a pole if the capacity, safety,   reliability, or engineering consideration may be remedied by   rearranging, expanding, replacing, or otherwise safely   reengineering the pole or pole attachments through make-ready   activities.          (d)  An electric cooperative's denial of an application to   access a pole under this chapter must:                (1)  be specific;                (2)  include all relevant evidence and information that   supports the denial; and                (3)  explain how the evidence and information relate to   the denial.          Sec. 253.0105.  DEADLINES NOT APPLICABLE TO CERTAIN   APPLICATIONS. (a)  An electric cooperative is not required to meet   the deadlines under this subchapter for an application for pole   access to place pole attachments on more than 3,000 poles or more   than 5 percent of the electric cooperative's poles.          (b)  An electric cooperative may not act under Subsection (a)   to delay an application unreasonably and shall negotiate in good   faith with the applicant regarding the time required to fulfill the   cooperative's duties.   SUBCHAPTER C. MAKE-READY ACTIVITIES          Sec. 253.0201.  DEADLINES FOR MAKE-READY ACTIVITIES.  (a)     Not later than the 15th day after the date an electric cooperative   grants an application, the electric cooperative shall provide to   the broadband provider a detailed and itemized estimate of the   expected costs of all necessary make-ready activities.          (b)  An electric cooperative shall complete all make-ready   activities in the communications space and send a detailed,   itemized final invoice to the broadband provider not later than:                (1)  the 30th day after the date the electric   cooperative receives payment of the estimated make-ready cost from   the broadband provider; or                (2)  for a large order application, the 75th day after   the date the electric cooperative receives payment of the estimated   make-ready cost from the broadband provider.          (c)  An electric cooperative shall complete all make-ready   activities above the communications space, including pole   replacements, and send a detailed, itemized final invoice to the   broadband provider not later than:                (1)  the 90th day after the date the electric   cooperative receives payment of the estimated make-ready cost from   the broadband provider; or                (2)  for a large order application, the 135th day after   the date the electric cooperative receives payment of the estimated   make-ready cost from the broadband provider.          Sec. 253.0202.  EXTENSION OF MAKE-READY ACTIVITIES   DEADLINE. (a)  An electric cooperative may extend a deadline under   Section 253.0201(b) or (c) for a cause that renders the deadline   infeasible. A cooperative that chooses to extend a deadline shall:                (1)  immediately and in writing notify the broadband   provider and each person with an affected existing pole attachment   about the delay; and                (2)  identify the affected poles and provide a detailed   explanation of the reason for the delay and an estimated new   completion date to the broadband provider and each person with an   affected existing pole attachment.          (b)  An electric cooperative may not extend a deadline under   this section for a period longer than is necessary to complete   make-ready activities on affected poles.          (c)  An electric cooperative may not extend a deadline under   this section because of a preexisting violation on an affected pole   caused by a person other than the broadband provider. The   cooperative shall correct a preexisting violation as part of the   make-ready process and before the applicable deadline at the cost   of the responsible person.          (d)  An electric cooperative shall resume make-ready   activities without discrimination when the cooperative returns to   routine operations.          Sec. 253.0203.  DEADLINES NOT APPLICABLE TO CERTAIN   APPLICATIONS. (a)  An electric cooperative is not required to meet   the deadlines under this subchapter for an application to place   pole attachments on more than 3,000 poles or more than five percent   of the electric cooperative's poles.          (b)  An electric cooperative may not act under Subsection (a)   to delay an application unreasonably and shall negotiate in good   faith with the applicant regarding the time required to fulfill the   cooperative's duties.          Sec. 253.0204.  CONTRACTORS FOR MAKE-READY ACTIVITIES.  (a)     A broadband provider may hire a contractor approved by the electric   cooperative to complete a survey under Section 253.0104 or perform   a make-ready activity under this subchapter that is not timely   completed by the electric cooperative or a person with an existing   pole attachment.          (b)  The broadband provider shall provide reasonably timely   notice to the electric cooperative and each person with an existing   pole attachment on an affected pole that the provider intends to   hire a contractor as authorized by Subsection (a).          (c)  The broadband provider shall provide reasonably timely   notice to the electric cooperative and each person with an existing   pole attachment on an affected pole of the contractor's completion   of the make-ready activities.          (d)  An electric cooperative may not act under Subsection (a)   unreasonably to withhold approval of a contractor for purposes of   this section.          (e)  Not later than the 90th day after the date a broadband   provider provides notice as provided by Subsection (c), the   cooperative or person may inspect the make-ready work.          (f)  Not later than the 14th day after the date that an   electric cooperative or person completes an inspection under   Subsection (e), the cooperative or person may notify the broadband   provider of any damage or code violations caused by such work. The   notice must include specific documentation.          (g)  The electric cooperative or person that completes an   inspection may:                (1)  remedy any defective make-ready work at the cost   of the broadband provider; or                (2)  require the provider to remedy the defect not   later than the 14th day after the provider receives the notice under   Subsection (f).          Sec. 253.0205.  LIST OF APPROVED CONTRACTORS. (a)  An   electric cooperative shall maintain and make available a list of   approved contractors for work above the communications space and   pole replacements. An electric cooperative may require any work   above the communications space and pole replacements to be   performed by contractors on this list, including work performed by   a contractor hired under Section 253.0204.          (b)  An electric cooperative may not act unreasonably to   withhold consent for a requested addition of a qualified contractor   to the list described by Subsection (a).   SUBCHAPTER D. OPTION FOR SIMPLE MAKE-READY ACTIVITIES          Sec. 253.0301.  OPTION: SIMPLE MAKE-READY.  A broadband   provider may choose to perform simple make-ready activities using   one-touch make-ready procedures in place of the process outlined   under Subchapter C.          Sec. 253.0302.  GRANT OR DENIAL OF APPLICATION: SIMPLE   MAKE-READY.  (a)  A broadband provider that chooses to perform   simple make-ready activities as described by Section 253.0301 must   indicate that choice and describe the work to be performed as part   of the provider's initial application under Subchapter B.          (b)  An electric cooperative shall grant or deny an   application for simple make-ready activities under this section not   later than:                (1)  the 15th day after the date the cooperative   receives a complete application; or                (2)  the 30th day after the date the cooperative   receives a complete large order application.          Sec. 253.0303.  SIMPLE MAKE-READY ACTIVITIES PERFORMED BY   CONTRACTOR.  (a)  If an application for activities under Section   253.0302 is granted, a contractor hired by the broadband provider   shall perform all necessary surveys.          (b)  The broadband provider and contractor shall provide a   reasonable opportunity for the electric cooperative and a person   with an existing pole attachment on an affected pole to be present   for any field inspections.          (c)  A contractor hired by the broadband provider may perform   all simple make-ready activities. Not later than the 15th day   before the date the contractor begins performing simple make-ready   activities, the contractor shall provide to the electric   cooperative and a person with an existing pole attachment on an   affected pole written notice that:                (1)  identifies the contractor performing the   activities; and                (2)  sets out reasonable opportunities for the   cooperative and person to be present for the activities.          Sec. 253.0304.  INSPECTION OF WORK AND REMEDIATION OF   DAMAGES. (a)  A broadband provider immediately shall notify the   electric cooperative and a person with an existing pole attachment   on an affected pole of any damage to the cooperative's or person's   facilities reasonably likely to interrupt the entity's service.          (b)  An electric cooperative or person that receives notice   under Subsection (a) may:                (1)  complete any remedial work at a reasonable cost to   the broadband provider; or                (2)  require the broadband provider immediately to   remedy the damage at the provider's own expense.          (c)  Not later than the 15th day after the date a broadband   provider or contractor hired by the provider completes simple   make-ready activities on a pole, the provider shall notify the   electric cooperative and a person with an existing pole attachment   on the pole of the completed work.          (d)  Not later than the 90th day after the date an electric   cooperative or person receives notice under Subsection (c), the   cooperative or person may inspect the work. Not later than the 14th   day after the date of the inspection, the cooperative or person may   provide notice to the broadband provider, with specific   documentation, of any damage or code violations caused by the work.          (e)  An electric cooperative or person that provides notice   under Subsection (d) may:                (1)  remedy any defective make-ready work at the cost   of the broadband provider; or                (2)  require the provider to remedy the defect not   later than the 14th day after the date the provider received the   notice under Subsection (d).   SUBCHAPTER E. POLES AND POLE ATTACHMENTS          Sec. 253.0401.  DUTIES OF ELECTRIC COOPERATIVE. An electric   cooperative shall rearrange, expand, replace, or otherwise safely   reengineer any pole at the request of a broadband provider whose   application for access to a pole is granted if the change is:                (1)  consistent with the National Electrical Safety   Code; and                (2)  reasonably necessary to safely accommodate a pole   attachment.          Sec. 253.0402.  RECOVERY OF COSTS FOR REPLACING POLES. (a)     If an electric cooperative is required under Section 253.0401 to   replace a pole that has been in service for longer than 75 percent   and less than 100 percent of the average service life of a pole   owned by the cooperative, the cooperative may not require   reimbursement of costs associated with replacing the pole from the   broadband provider that exceed the cooperative's reasonable costs   of advancing the retirement of the existing pole.          (b)  The costs under Subsection (a) shall be determined by   adding:                (1)  the remaining undepreciated value of the existing   pole;                (2)  any interest expense of advancing the replacement   of the pole relative to replacing the pole at the end of the average   service life of a pole owned by the electric cooperative; and                (3)  any reasonable incremental cost of increasing the   capacity of the replacement pole relative to the installation cost   of the average new pole installed by the electric cooperative.          (c)  If an electric cooperative is required under Section   253.0401 to replace a pole that has been in service for the average   service life of a pole owned by the electric cooperative or longer,   the cooperative may not require reimbursement of costs associated   with replacing the pole from the broadband provider that exceed any   reasonable incremental cost of increasing the capacity of the   replacement pole relative to the installation cost of the average   new pole installed by the electric cooperative.          (d)  An electric cooperative shall determine the average   service life of a pole as the period of time during which an   electric cooperative's books maintained for tax and accounting   purposes consider an average pole to have positive value, after   depreciation.          Sec. 253.0403.  SHARING COSTS OF MODIFICATION TO POLE. (a)     The following entities must share proportionately in the costs of   modifying a pole under Section 253.0401:                (1)  the broadband provider who obtains access to a   pole through a modification to the pole; and                (2)  a person who directly benefits from a   modification, including:                      (A)  the electric cooperative;                      (B)  a person with an existing attachment on the   pole who adds to or modifies the person's attachment after   receiving notice of the modification; and                      (C)  a party that makes an attachment to a pole   after the completion of a modification that made the attachment   possible.          (b)  This section does not affect the responsibility of the   electric cooperative under Sections 253.0401 and 253.0402.          Sec. 253.0404.  EXTENSION ARMS AND TEMPORARY POLE   ATTACHMENTS. (a)  A broadband provider may use extension arms and   temporary attachments pending the completion of make-ready   activities if use of extension arms and temporary attachments   complies with the National Electrical Safety Code or other   applicable safety codes.          (b)  An electric cooperative may require a broadband   provider to convert a temporary attachment to a permanent   attachment not later than the 60th day after the date of the   completion of make-ready activities and may require the provider to   comply with the National Electrical Safety Code or other   applicable safety codes.          Sec. 253.0405.  POLE ATTACHMENT SPECIFICATIONS. (a)  A   broadband provider may not be required to meet pole attachment   specifications that exceed the specifications in the National   Electrical Safety Code, applicable fire safety codes, and any   building code or similar code of general applicability for the   protection of public health, safety, or welfare a political   subdivision adopted before the provider submitted an application to   the cooperative.          (b)  This section may not be construed to expand the power of   any local government jurisdiction.          Sec. 253.0406.  OVERLASHING. (a)  A broadband provider with   an existing pole attachment may not be required to obtain advance   approval from an electric cooperative to overlash or permit a third   party to overlash the provider's existing wires.          (b)  An electric cooperative may require a broadband   provider to provide notice before and after overlashing. The   cooperative may not require notice before overlashing to be   provided before the 15th day before the date of the overlashing   activities.          (c)  An electric cooperative may require a broadband   provider to modify an overlashing proposal to address specific and   identified capacity, safety, reliability, or engineering issues.   The cooperative may not prohibit the provider from overlashing   because of a preexisting violation caused by another person.          (d)  An electric cooperative may require a broadband   provider to remedy damage or code violations caused by overlashing   if the electric cooperative:                (1)  inspects the overlash not later than the 90th day   after the date the cooperative receives notice that an overlash is   complete; and                (2)  informs the provider of the damage or violation   not later than the 14th day after the date of the inspection.          Sec. 253.0407.  USE OF POLE ATTACHMENTS FOR MULTIPLE   SERVICES. A broadband provider that attaches a pole attachment   under this chapter may use the attachment for any service delivered   over the provider's facilities, including cable service.   SUBCHAPTER F. POLE ATTACHMENT CONTRACTS          Sec. 253.0501.  POLE ATTACHMENT CONTRACTS WITH BROADBAND   PROVIDERS. (a) A broadband provider and an electric cooperative   shall establish the rates, terms, and conditions for pole   attachments by a written pole attachment contract executed by both   parties. The rates, terms, and conditions for attachments by a   broadband provider on an electric cooperative's poles must be just,   reasonable, and nondiscriminatory.          (b)  In determining whether rates, terms, and conditions are   just and reasonable, 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 to broadband services offered through the   pole attachments;                (3)  the interests of and benefits to third parties   from the availability of broadband services offered through the   pole attachments;                (4)  compliance with the specifications in the National   Electrical Safety Code, applicable fire safety codes, and any   building code or similar code of general applicability for the   protection of public health, safety, or welfare applicable to the   pole attachments; and                (5)  the maintenance and reliability of both electric   distribution and broadband services.          (c)  A broadband provider and an electric cooperative shall   negotiate a pole attachment contract and any amendment,   modification, or renewal thereof in good faith.          (d)  A request to negotiate a new pole attachment contract or   to amend, modify, or renew a contract pertaining to pole   attachments by a broadband provider or an electric cooperative must   be made in writing.          Sec. 253.0502.  CONTRACT NEGOTIATIONS AND MEDIATION. (a)     If a broadband provider and an electric cooperative are unable to   agree to a new pole attachment contract before the expiration date   of an existing contract, the rates, terms, and conditions of the   existing contract and the terms and conditions of the electric   cooperative's application and permitting processes remain in   force:                (1)  during the 90-day negotiation period described by   Subsection (b) and during the period of any agreed extension;                (2)  during the 60-day mediation period described by   Subsection (b) and during the period of any agreed extension; and                (3)  pending final disposition of any litigation   commenced under Subsection (c).          (b)  If a broadband provider and an electric cooperative are   unable to agree to a new pole attachment contract before the 91st   day after the expiration date of an existing contract, and are   unable to agree to an extension of the negotiation period for a   certain number of days, the broadband provider and electric   cooperative shall attempt to resolve any disagreement over the   rates, terms, or conditions by submitting the contract negotiations   to a mediation process. The mediation process may not extend later   than the 60th day after the end of the initial 90-day negotiation   period and any agreed extension of that period unless the broadband   provider and 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 broadband provider and   electric cooperative must share equally the expenses for the   mediator.          (c)  If the mediation process under Subsection (b) does not   resolve the disagreement over the rates, terms, or conditions of a   new pole attachment agreement, or if a dispute arises under the   terms of an existing agreement or the requirements of this chapter,   the broadband provider or electric cooperative may file suit in a   district court to resolve the disagreement or dispute, including to   enforce the terms of the agreement or of this chapter.          SECTION 3.  This Act takes effect September 1, 2021.