H.B. No. 1505         AN ACT   relating to attachments for broadband service on utility poles   owned by an electric cooperative and establishing and funding a   pole replacement program for deployment of certain broadband   facilities.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 403, Government Code, is amended by   adding Subchapter R to read as follows:   SUBCHAPTER R. INFRASTRUCTURE AND BROADBAND FUNDING          Sec. 403.501.  DEFINITIONS. In this subchapter:                (1)  "Pole replacement fund" means the broadband pole   replacement fund established under Section 403.502.                (2)  "Pole replacement program" means the Texas   Broadband Pole Replacement Program established under Section   403.503.          Sec. 403.502.  BROADBAND POLE REPLACEMENT FUND. (a) The   broadband pole replacement fund is created as a fund in the state   treasury outside the general revenue fund.          (b)  Notwithstanding any other law and except as provided by   federal law, the comptroller shall make a one-time transfer from   money received by this state from the federal government from the   Coronavirus Capital Projects Fund established under Section 9901 of   the American Rescue Plan Act of 2021 (Pub. L. No. 117-2) to the   credit of the pole replacement fund. The comptroller shall make the   transfer described by this subsection as soon as practicable   following receipt by this state of money from the Coronavirus   Capital Projects Fund.          (c)  Money deposited to the credit of the pole replacement   fund may be used only for the purpose of supporting the pole   replacement program under Section 403.503, including the costs of   program administration and operation. Money in the pole replacement   fund must be used in a manner consistent with federal law.          (d)  Interest earned on money deposited to the credit of the   pole replacement fund is exempt from Section 404.071. Interest   earned on money in the fund shall be retained in the pole   replacement fund.          (e)  The comptroller may issue guidelines for state agencies   regarding the implementation of this section.          Sec. 403.503.  TEXAS BROADBAND POLE REPLACEMENT PROGRAM.   (a) In this section:                (1)  "Eligible broadband facility" means a facility   used by a retail broadband service provider to provide qualifying   broadband service to residences or businesses in an unserved area,   including a facility owned by an affiliate of the provider and used   in the provision of service. The term does not include a facility   used only for the provision of wholesale service and not used by the   owner of the facility or the owner's affiliate to provide retail   qualifying broadband service directly to residences or businesses.                (2)  "Eligible pole replacement cost" means the actual   and reasonable costs paid or incurred by a party after August 31,   2021, to remove and replace a pole, including the amount of any   expenditures to remove and dispose of the existing pole, purchase   and install a replacement pole, and transfer any existing   facilities to the new pole. The term includes costs paid or incurred   by the party responsible for the costs of a pole replacement to   reimburse the party that performs the pole replacement. The term   does not include costs that the party incurs initially that have   been reimbursed to the party by another party ultimately   responsible for the costs.                (3)  "Qualifying broadband service" means retail   wireline or wireless broadband service capable of providing:                      (A)  a download speed of 25 megabits per second or   faster; and                      (B)  an upload speed of 3 megabits per second or   faster.                (4)  "Unserved area" means a location that lacks access   to a retail fixed, terrestrial, wireline, or wireless Internet   service capable of providing:                      (A)  a download speed of 25 megabits per second or   faster; and                      (B)  an upload speed of 3 megabits per second or   faster.                (5)  "Pole" means any pole used, wholly or partly, for   any wire communications or electric distribution, irrespective of   who owns or operates the pole.                (6)  "Pole owner" means a person who owns or controls a   pole.          (b)  The Texas Broadband Pole Replacement Program is   established for the purpose of speeding the deployment of broadband   to individuals in rural areas by reimbursing a portion of eligible   pole replacement costs incurred by certain persons.          (c)  The comptroller shall administer, prescribe rules for,   and provide administrative support for the pole replacement   program. The comptroller may take any action necessary or   convenient to implement the pole replacement program.          (d)  A pole owner or a provider of qualifying broadband   service who pays or incurs the costs of removing and replacing an   existing pole in an unserved area for the purpose of accommodating   the attachment of an eligible broadband facility may apply to the   comptroller for a reimbursement award for an amount equal to:                (1)  50 percent of the eligible pole replacement costs   paid or incurred by the applicant or $5,000, whichever is less, for   the pole replaced; and                (2)  the documented and reasonable administrative   expenses incurred by the applicant in preparing and submitting the   reimbursement application, including expenses charged by a pole   owner under Subsection (m).          (e)  The amount reimbursed under Subsection (d)(2) may not   exceed five percent of the eligible pole replacement costs in the   application.          (f)  For purposes of Subsection (d), a pole is considered to   be located in an unserved area if:                (1)  at the time of the request by a retail broadband   service provider to attach facilities to the pole, the pole is in a   location that, according to the latest broadband availability data   made available by the Federal Communications Commission, is in an   unserved area; or                (2)  the pole is located in an area that is the subject   of a federal or state grant to deploy broadband service, the   conditions of which limit the availability of a grant to unserved   areas.          (g)  The comptroller shall require each applicant for   reimbursement to provide:                (1)  information sufficient to establish the number,   cost, and eligibility of pole replacements and the identity of the   retail broadband service provider attaching the eligible broadband   facilities;                (2)  documentation sufficient to establish that the   pole replacements have been completed or will be completed not   later than the 90th day after the award of program reimbursement;                (3)  the amount of reimbursement requested and any   grant funding or accounting information required to justify the   amount of the request;                (4)  a notarized statement from an officer or agent of   the applicant that the contents of the application are true and   accurate and that the applicant accepts the requirements of   Subsections (j), (k), and (l) as a condition of receiving an award   of program reimbursement; and                (5)  any other information the comptroller considers   necessary for final review, award, and payment of program   reimbursements.          (h)  Not later than the 60th day after the date that the   comptroller receives a completed application for reimbursement,   the comptroller shall review the application and, if the pole   replacement fund includes enough money to pay the award amount,   shall issue a reimbursement award. The award must be paid not later   than 30 days after the date of issuance.          (i)  The comptroller must provide notice of a reimbursement   award to the pole owner and the retail broadband service provider   attaching the eligible broadband facility.          (j)  As a condition of receiving an award of program   reimbursement, an applicant must certify the applicant's   compliance with the requirements of this section.          (k)  If a pole owner receives a reimbursement award under   this section, the owner may not include in any rates or fees charged   for the owner's services an eligible pole replacement cost:                (1)  reimbursed by the program;                (2)  paid for by a qualifying broadband service   provider; or                (3)  funded by another grant source.          (l)  If the comptroller finds on substantial evidence after   notice and opportunity to respond that a recipient of funds under   this section has materially violated the requirements of this   section with respect to reimbursements or portions of   reimbursements, the comptroller may direct the recipient to refund   the reimbursement or a portion of the reimbursement with interest   at the applicable federal funds rate as specified by Section   4A.506(b), Business & Commerce Code, to the pole replacement fund   or the state general fund.          (m)  If a retail broadband service provider incurs eligible   pole replacement costs relating to a pole replacement performed by   the pole owner, the owner shall coordinate with the provider to   supply all information necessary for the provider to promptly   complete and submit an application under this section. A pole owner   may charge the provider the documented and reasonable   administrative expenses incurred by the pole owner for assistance,   in an amount not to exceed five percent of eligible pole replacement   costs. The provider may seek reimbursement of costs in accordance   with Subsection (d)(2).          (n)  If the pole replacement fund does not have money   sufficient to pay an award, the application for the award is   considered denied. The application may be refiled if sufficient   funds are later made available in the pole replacement fund.          (o)  Not later than the 60th day after the date the pole   replacement fund receives money for the pole replacement program,   the comptroller shall maintain and publish on the comptroller's   Internet website:                (1)  statistics on the number of applications received,   processed, and rejected by the program;                (2)  statistics on the size, number, and status of   reimbursements awarded by the program, including the retail   broadband service providers and pole owners receiving   reimbursements; and                (3)  the estimated amount of money remaining in the   pole replacement fund.          (p)  Not later than the first anniversary after the pole   replacement fund receives funds for the purpose of providing pole   replacement reimbursements, the state auditor shall audit the fund   and the administration of the pole replacement program.          (q)  Not later than one year after the date that the amount   transferred to the pole replacement fund under Section 403.502(b)   is exhausted, the comptroller shall identify, examine, and report   on the deployment of broadband infrastructure and technology   facilitated by the pole reimbursements the comptroller has awarded.          SECTION 2.  The heading to Chapter 252, Utilities Code, is   amended to read as follows:   CHAPTER 252. CABLE ATTACHMENTS TO ELECTRIC COOPERATIVE'S   DISTRIBUTION POLES          SECTION 3.  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 3 megabits per second or   faster.                (3)  "Pole" has the meaning assigned by Section   252.001.                (4)  "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.          Sec. 253.0002.  APPLICABILITY. This chapter applies to a   pole attachment that is used wholly or partly to provide broadband   service and 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.          Sec. 253.0003.  CONSTRUCTION OF CHAPTER. (a) 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.          (b)  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. 253.0004.  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. 253.0005.  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. 253.0006.  COST-BASED NONRECURRING CHARGES.     Nonrecurring charges authorized by this chapter must be cost-based.   SUBCHAPTER B. ACCESS TO POLES          Sec. 253.0101.  APPLICATION FOR POLE ACCESS. 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.          Sec. 253.0102.  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.          Sec. 253.0103.  NONDISCRIMINATORY ACCESS; MODIFICATION OR   REPLACEMENT TO ACCOMMODATE ATTACHMENT. (a) Except as provided by   this chapter, an electric cooperative shall provide a broadband   provider with nondiscriminatory access to a pole that the   cooperative owns or controls.          (b)  Except as provided by Subsection (c), an electric   cooperative may deny a broadband provider access to a pole:                (1)  if there is insufficient capacity; or                (2)  for reasons of safety, reliability, and generally   applicable engineering purposes.          (c)  An electric cooperative may not deny a broadband   provider access to a pole if the basis for denial may be remedied by   rearranging facilities on the pole through reasonable make-ready   activities.          (d)  Except as provided by Subsection (e), if a pole must be   replaced to accommodate a new pole attachment applied for by a   broadband provider:                (1)  the electric cooperative and broadband provider   shall determine, through good faith negotiations, a reasonable date   by which the pole replacement will occur; and                (2)  the broadband provider shall pay the actual costs   of replacing the pole, including the cost to:                      (A)  remove and dispose of the existing pole;                      (B)  purchase and install a replacement pole; and                      (C)  transfer any existing facilities to the new   pole.          (e)  An electric cooperative is responsible for the costs of   removing and replacing under Subsection (d) a pole:                (1)  with recorded conditions or defects that would   reasonably be expected to endanger human life or property and which   should be promptly corrected; or                (2)  that must be replaced for safety or reliability as   a result of normal wear and tear or other natural causes and not on   account of a pole attachment or the action of a broadband provider   or third party.   SUBCHAPTER C. POLE ATTACHMENT CONTRACTS          Sec. 253.0201.  CONTRACTS FOR POLE ATTACHMENTS. (a) An   electric cooperative that owns a pole may require a broadband   provider that attaches a pole attachment to the pole under this   chapter to enter into a contract for access to the pole.          (b)  The terms and conditions of a contract under Subsection   (a) must be consistent with this chapter.          Sec. 253.0202.  RATES, TERMS, AND CONDITIONS FOR POLE   ATTACHMENT. (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.          (b)  The rates, terms, and conditions of a contract under   this chapter must:                (1)  be just, reasonable, and nondiscriminatory; and                (2)  comply with this chapter.          (c)  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 electric services and broadband services   offered through the pole attachments;                (4)  compliance with applicable safety standards; and                (5)  the maintenance and reliability of both electric   distribution and broadband services.          (d)  A broadband provider and an electric cooperative shall   negotiate a pole attachment contract and any amendment,   modification, or renewal thereof in good faith.          (e)  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. 253.0203.  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, the broadband provider or electric   cooperative may file suit in a district court to resolve the   disagreement or dispute.   SUBCHAPTER D.  ADDITIONAL POLE ATTACHMENT REQUIREMENTS          Sec. 253.0401.  TRANSFER OF ATTACHMENTS. (a) Before an   electric cooperative installs a new pole to replace an existing   pole due to the rerouting, maintenance, or upgrading of the   electric distribution system, the cooperative shall provide notice   of the replacement to each broadband provider with a pole   attachment on the existing pole.          (b)  The notice required under Subsection (a) must specify a   date by which the broadband provider must remove the pole   attachment from the existing pole and transfer the attachment to   the new pole.          (c)  If a broadband provider does not transfer a pole   attachment to the new pole before the 31st day after the date   specified in the notice, the electric cooperative may transfer the   pole attachment to the new pole at the broadband provider's   expense, including the cost for the electric cooperative to return   to the site.          (d)  A broadband provider shall indemnify, defend, and hold   harmless an electric cooperative and the cooperative's members,   directors, officers, agents, and employees from and against all   liability for the removal and transfer of a pole attachment subject   to this section, except for personal injury or property damage   arising from the gross negligence or wilful misconduct of the   electric cooperative during the removal and transfer process.          Sec. 253.0402.  ABANDONED POLE ATTACHMENTS; REMOVAL. (a)  A   broadband provider that receives a written request from an electric   cooperative to remove an abandoned pole attachment owned by the   provider from a pole owned by the cooperative shall remove the   attachment not later than the 60th day after the date the provider   receives the request.           (b)  Before the deadline under Subsection (a), a broadband   provider may request, and an electric cooperative may grant, a   reasonable extension of that deadline. A request for an extension   under this subsection must be in writing.          (c)  If a broadband provider does not remove a pole   attachment by the deadline under Subsection (a) or an extended   deadline under Subsection (b), the electric cooperative may remove,   use, sell, or dispose of the pole attachment at the broadband   provider's expense.          (d)  An electric cooperative may require that a broadband   provider post a security instrument in an amount reasonably   sufficient to cover the potential cost to the electric cooperative   of removal and disposal of abandoned pole attachments.          (e)  A broadband provider shall indemnify, defend, and hold   harmless an electric cooperative and the cooperative's members,   directors, officers, agents, and employees from and against all   liability for the removal, use, sale, or disposal of abandoned pole   attachments, except for personal injury or property damage arising   from the gross negligence or wilful misconduct of the electric   cooperative during the removal and disposal process.          Sec. 253.0403.  EASEMENTS; INDEMNITY. (a) A broadband   provider is responsible for obtaining all rights-of-way and   easements necessary for the installation, operation, and   maintenance of the provider's pole attachments.          (b)  An electric cooperative is not required to obtain or   expand a right-of-way or easement to accommodate a pole attachment   requested by a broadband provider.          (c)  An electric cooperative is not liable if a broadband   provider is prevented from placing or maintaining a pole attachment   because the broadband provider did not obtain a necessary   right-of-way or easement.          (d)  A broadband provider shall indemnify, defend, and hold   harmless the electric cooperative and the cooperative's members,   directors, officers, agents, and employees from and against any   liability resulting from the broadband provider's failure to obtain   a necessary right-of-way or easement for a pole attachment.          SECTION 4.  The comptroller of public accounts shall   establish rules for the Texas Broadband Pole Replacement Program,   as established by Section 403.503, Government Code, as added by   this Act, not later than March 1, 2022.          SECTION 5.  This Act takes effect September 1, 2021.       ______________________________ ______________________________      President of the Senate Speaker of the House                   I certify that H.B. No. 1505 was passed by the House on May 4,   2021, by the following vote:  Yeas 138, Nays 7, 2 present, not   voting; and that the House concurred in Senate amendments to H.B.   No. 1505 on May 28, 2021, by the following vote:  Yeas 128, Nays 17,   1 present, not voting.     ______________________________   Chief Clerk of the House               I certify that H.B. No. 1505 was passed by the Senate, with   amendments, on May 26, 2021, by the following vote:  Yeas 31, Nays   0.     ______________________________   Secretary of the Senate      APPROVED: __________________                   Date                       __________________                 Governor