Bill Text: MS HB1312 | 2019 | Regular Session | Introduced
Bill Title: Broadband services; authorize electric power cooperatives to provide for.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2019-02-05 - Died In Committee [HB1312 Detail]
Download: Mississippi-2019-HB1312-Introduced.html
MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Public Utilities
By: Representative Steverson
House Bill 1312
AN ACT TO AUTHORIZE ELECTRIC COOPERATIVES TO PROVIDE BROADBAND SERVICES; TO PROVIDE DEFINITIONS; TO PROVIDE FOR THE OWNERSHIP AND OPERATION OF THESE BROADBAND SYSTEMS; TO PROVIDE FOR NONDISCRIMINATION IN POLE ACCESS; TO PROVIDE REQUIREMENTS PREVENTING THE INTERFERENCE WITH ELECTRIC SYSTEM RELIABILITY; TO PROVIDE THAT THE STATE AUDITOR MAY INSPECT THE BOOKS OF THE ELECTRIC COOPERATIVE TO ENSURE COMPLIANCE WITH THIS ACT; TO AMEND SECTIONS 77-5-205 AND 77-5-231, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following terms shall have the following meanings unless the context clearly indicates otherwise:
(a) "Affiliate" means any entity that (i) is wholly or partially owned by an electric cooperative or otherwise meets the definition of affiliate provided in Section 77-3-3(g), and (ii) provides broadband service or owns and operates a broadband system utilizing the system of an electric cooperative.
(b) "Authorized attacher" means a communications services provider that is otherwise authorized to attach to poles in Mississippi.
(c) "Broadband system" means the fiber, cables, materials, equipment or other facilities that are used or are useful for the provision of broadband service.
(d) "Broadband service" means broadband Internet access service as defined by the Federal Communications Commission in 47 CFR Section 8.1(b).
(e) "Commercial partner" means any entity that contracts or otherwise makes any arrangement with an electric cooperative to provide or market broadband service using the electric cooperative's system, but does not include an entity that contracts only to attach communications facilities to poles that are owned or controlled by the electric cooperative.
(f) "Communications facility" means the set of equipment and network components, including cable, wires, antennas and associated facilities used by a cable operator, as defined in 47 U.S.C. Section 522(5), a telecommunications carrier, as defined in 47 U.S.C. Section 153(51), or a broadband system, to provide communications services.
(g) "Communications services" means services provided over a communications facility including broadband service, cable service as defined in 47 U.S.C. Section 522(6), video service, telecommunications service as defined in 47 U.S.C. Section 153(53), voice over internet protocol service, ethernet transport business data services, and/or wireless backhaul.
(h) "Electric cooperative" means an electric power association formed or operating under Section 77-5-201, et seq.
(i) "Energy" has the same meaning as defined in Section 77-5-203(d).
(j) "Fixed terrestrial broadband service provider" means the provision of broadband service that is not intended to be strictly mobile or dependent on satellite for service delivery.
(k) "System" means and includes any plant works, system, facilities or properties, or parts thereof, together with all appurtenances thereto, used or useful in connection with the generation, production, transmission or distribution of energy in accordance with Section 77-5-203(f).
(l) "Unserved areas" are the smallest geographic areas for which the Federal Communications Commission collects Form 477 data and makes that data available in the Federal Communications Commission Broadband Map (or any successor Federal Communications Commission report providing such data) and in or for which:
(i) Consumers do not have access to a fixed terrestrial broadband service provider offering download speeds and upload speeds equivalent to at least the minimum speeds the Federal Communications Commission requires to receive high-cost support from the Connect America Fund II model-based support (10/1 mega bits per second); and
(ii) There is no existing commitment, which is reasonably likely to be fulfilled based on publicly available information, by a fixed terrestrial broadband service provider to build a broadband system using, in whole or in part (1) federal or state grants, loans, or subsidies; and/or (2) private capital.
SECTION 2. (1) Subject to the terms and conditions provided for in this chapter, every electric cooperative is authorized to:
(a) Own, construct, maintain and operate a broadband system within the authorized service area of its system; and
(b) Establish, acquire and wholly or partially own one or more affiliates.
(2) An electric cooperative may allow its affiliates or commercial partners to own, lease, construct, maintain and operate a broadband system on the electric cooperative's system and to provide broadband service utilizing the electric cooperative's broadband system or other parts of its system.
(3) To the extent an electric cooperative, its affiliate, or its commercial partner receives public funds for the deployment of broadband service or a broadband system, the electric cooperative, affiliate, or commercial partner may only use such funds to construct, maintain or operate a broadband system and/or provide broadband service in unserved areas:
(a) If an electric cooperative or its affiliate or its commercial partner believes that an area shown on the Federal Communications Commission broadband map (or any successor Federal Communications Commission report providing such data) as served by a fixed terrestrial broadband service provider is actually an unserved area, it may file a challenge supported by documentary evidence with the State Auditor demonstrating that the area is an unserved area; or
(b) If a fixed terrestrial broadband service provider believes that an area shown on the Federal Communications Commission broadband map (or any successor Federal Communications Commission report providing such data) as an unserved area is actually served, it may file a challenge supported by documentary evidence with the State Auditor demonstrating that the area is served.
The State Auditor shall establish rules and procedures to resolve challenges over unserved areas that afford the fixed terrestrial broadband service providers identified as serving the challenged area of the Federal Communications Commission broadband map (or successor report) a reasonable opportunity to respond to any challenge.
(4) An electric cooperative providing broadband service or deploying or operating a broadband system, including through any affiliate or commercial partner:
(a) Shall administer and operate any broadband service or broadband system as a separate subsidiary;
(b) Shall separately account for the revenues, costs, property, and source of investment dollars associated with the provision of broadband service and the deployment and operations of a broadband system;
(c) Shall cause to be performed an annual audit of the financial records concerning the broadband service and/or broadband system operations of the electric cooperative and its affiliates and commercial partners;
(d) Shall file an annual report with the State Auditor, which shall be made publicly available, demonstrating that the requirements of this subsection (4) have been met including a summary of the results of the audit required under this paragraph (d) and a sworn statement by a financial officer of the entity certifying the accuracy of the report;
(e) Shall not provide any subsidies for broadband services or a broadband system and shall administer, operate and maintain the system separately in all respects, including establishing and maintaining a separate fund for the revenues from electric operations, and shall not directly or indirectly mingle system funds or accounts, or otherwise consolidate or combine the financing of the system, with those of any other of its operations in areas or to customers being served by other fixed terrestrial broadband service providers with download speeds of at least ten (10) megabits per second and upload speeds of at least one (1) megabit per second; and
(f) In an unserved area, may allow its commercial partners to own, lease, construct, maintain and operate a broadband system on the electric cooperative's system and to provide broadband service utilizing the electric cooperative's broadband system or other parts of its system.
SECTION 3. (1) An electric cooperative that elects to provide broadband service or to deploy or operate a broadband system, including through an affiliate or commercial partner, shall provide cable operators, telecommunications carriers and authorized attachers with nondiscriminatory access to locate their equipment for the provision of communications services on infrastructure and/or poles owned or controlled by the electric cooperative or any affiliate (as defined by Section 77-3-3(g)) on just, reasonable and nondiscriminatory terms and conditions that are consistent with the regulatory obligations provided by the Federal Communications Commission for Federal Communications Commission regulated utilities and at rates that are no higher than those permitted by the Federal Communications Commission rate formulas set forth in 47 C.F.R. Section 1.1406(d).
(2) Any authorized attacher shall not be required to bear any of the costs of rearranging or replacing its attachment on a pole, if such rearrangement or replacement is required to accommodate an additional attachment or the modification of an existing attachment sought by an electric cooperative, affiliate or a commercial partner to deploy a broadband system or to provide broadband service.
(3) Complaints by cable operators, telecommunications carriers and authorized attachers that are unaffiliated with the electric cooperative as to the rates, terms and conditions offered for access to the poles owned or controlled by an electric cooperative shall be adjudicated by the State Auditor in a manner that is consistent with the Federal Communication Commission’s complaint process for access to poles.
(4) Whenever the State Auditor shall find, upon complaint by an authorized attacher, that the rates, terms or conditions demanded, exacted, charged or collected by an electric cooperative in connection with access to the infrastructure poles it owns or controls are not just, reasonable, and nondiscriminatory, the State Auditor shall determine the just, reasonable and nondiscriminatory rates, terms and conditions thereafter to be observed and in force and fix the same by final order entered within either: (a) the same time frame provided by the Federal Communications Commission for pole access complaints, or (b) three hundred sixty-five (365) days after the filing of the complaint. The State Auditor will enter an initial order resolving a complaint filed in conformance with this rule within either: (c) the same time frame provided by the Federal Communications Commission for pole access complaints, or (d) six (6) months of the date the complaint is filed. The State Auditor may extend this deadline for good cause. In the event that a rate is deemed to exceed the rate provided for herein, the State Auditor shall order the electric cooperative, including any affiliate thereof, to reimburse the authorized attacher for the excessive rent that has been paid through the applicable statute of limitations.
(5) Except as provided in this rule, the State Auditor's procedural rules govern complaints filed pursuant to this rule.
SECTION 4. (1) An electric cooperative shall not allow the installation or operation of a broadband system on its system by an affiliate or a commercial partner to diminish the reliability of the system.
(2) An electric cooperative shall not require any person to purchase broadband service from itself, an affiliate or a commercial partner as a condition of receiving or continuing to receive energy from the electric cooperative.
(3) An electric cooperative shall not disconnect, or threaten to disconnect, its energy service to any customer due to the customer's failure to pay for broadband service provided to the customer by the electric cooperative, an affiliate or a commercial partner.
(4) An electric cooperative shall not discount the cost of its energy service or provide any other benefit to any customer due to the customer subscribing to broadband service provided to the customer by the electric cooperative, an affiliate or a commercial partner.
SECTION 5. (1) Nothing in this act shall be construed to relieve an electric cooperative, its affiliates and commercial partners from any requirement (a) to obtain a franchise or other required authorization to offer cable service, video service, or other communications services or (b) to obtain any franchise or other required authorization to install, place, maintain or operate communications facilities in the public rights-of-way. The terms and conditions of any such franchise or other authorization shall not be more favorable or less burdensome than the terms and conditions of the franchise or other authorization of other communications service providers.
(2) The provisions of this chapter are not severable, and if any provision of this chapter is declared invalid or substantially impaired for any reason, then all provisions of this chapter shall also be invalid.
(3) The State Auditor is authorized to inspect the books of an electric cooperative and its affiliates and/or commercial partners to ensure compliance with this chapter.
SECTION 6. Section 77-5-205, Mississippi Code of 1972, is amended as follows:
77-5-205. Three (3) or more natural persons may, by executing, filing and recording a certificate as hereafter provided in this article, form a corporation not organized for pecuniary profit for the purpose of promoting and encouraging the fullest possible use of electric energy by making electric energy available at the lowest cost consistent with sound economy and prudent management of the business of such corporations. In addition, such corporations may serve the purposes provided under Sections 1 through 5 of this act.
SECTION 7. Section 77-5-231, Mississippi Code of 1972, is amended as follows:
77-5-231. (1) A corporation shall have power to do any and all acts or things necessary or convenient for carrying out the purposes for which it was formed, including, but not limited to:
(a) To sue and be sued.
(b) To have a seal and alter the same at pleasure.
(c) To acquire, hold and dispose of property, real and personal, tangible and intangible, or interests therein and to pay therefor in cash or property or on credit, and to secure and procure payment of all or any part of the purchase price thereof on such terms and conditions as the board shall determine.
(d) To render service and to acquire, own, operate, maintain and improve a system or systems within the state and in counties adjacent thereto.
(e) To pledge all or any part of its revenues and to mortgage or otherwise incumber all or any part of its property for the purpose of securing the payment of the principal of and interest on any of its bonds or other obligations.
(f) To use any right-of-way, easement or other similar property right necessary or convenient in connection with the acquisition, improvement, operation or maintenance of a system, granted by the state or any political subdivision thereof, provided that the governing body of such political subdivision shall consent to such use, and to have and exercise the power of eminent domain in the manner provided by the condemnation laws of this state for acquiring private property for public use, such right to be paramount except as to the property of the state or of any political subdivision thereof.
(g) To accept gifts or grants of money, property, real or personal, from any person, municipality or federal agency and to accept voluntary and uncompensated services.
(h) To make any and all contracts necessary or convenient for the full exercise of the powers in this article granted, including, but not limited to, contracts with any person, federal agency, state agency or municipality for the purchase, transfer or sale of energy and/or the acquisition of all or any part of any system, and in connection with any such contract to stipulate and agree to such covenants, terms and conditions as the board may deem appropriate, including covenants, terms and conditions with respect to the resale rates, financial and accounting methods, services, operation and maintenance practices and the manner of disposing of the revenues of the system operated and maintained by the corporation.
(i) To sell, lease, or otherwise dispose of all or any part of its property, subject however to the provisions of Section 77-5-237.
(j) To contract debts, borrow money and to issue, assume or indorse the payment of bonds or other evidences of indebtedness.
(k) To fix, maintain and collect fees, rents, tolls and other charges for services rendered.
(l) To acquire and to sell, lease, distribute and generally to deal in electrical and plumbing appliances, apparatus, machinery and equipment for the purpose of and in connection with the promotion of the sale of electric energy to its customers; to assist its customers to purchase or otherwise obtain such appliances, apparatus, machinery and equipment; to assist its customers to wire their premises and to install therein such appliances, apparatus, machinery and equipment; to acquire and to indorse, sell, pledge, hypothecate and dispose of notes, bonds and other obligations of its customers in carrying out the purposes expressed in this paragraph.
(m) To maintain, in any reasonable manner and in its discretion, its easements and rights-of-way and adjacent property within a reasonable or necessary distance of its energy facilities free of vegetation, trees, limbs or other impediments in order to foster the integrity and reliability of the corporation's electric energy system or the safety of the public or its members, agents or employees.
(n) To condemn any land, easements, or rights-of-way, either on, under, or above the ground, as the association may deem necessary for any purposes mentioned in this article other than the purposes described in subsection (2) of this section, and such property or interest in such property may be so acquired whether or not the same is owned or held for public use by corporations, associations or persons having the power of eminent domain, or otherwise held or used for public purposes. Such power of condemnation may be exercised in the mode or method of procedure prescribed by Chapter 27, Title 11, Mississippi Code of 1972, or in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain. Where condemnation proceedings become necessary, the judge of the circuit court or the judge of the county court in counties where the county court exists, in which such proceedings are filed, shall, upon application of the authority, and upon the deposit in court, to the use of the person or persons lawfully entitled thereto, of such amount as the judge may deem necessary to assure just compensation, order that the right of possession shall issue immediately or as soon and upon such terms as the judge, in his discretion, may deem just and proper. Upon application of the parties in interest other than the corporation, the judge may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceedings.
(o) To operate across state lines.
(p) To perform any and all of the foregoing acts and to do any and all of the foregoing things under, through or by means of its own officers, agents and employees, or by contracts with any person, federal agency or municipality.
(q) To perform as provided under Sections 1 through 5 of this act.
(2) Any generation and transmission electric corporation created under this article may undertake economic development activities, whether directly, indirectly, or in conjunction with other entities, including activities such as providing capital, or investment in or acquisition and development of business or industrial sites and the necessary infrastructure or services needed to attract new or existing businesses or industry, to create or maintain employment opportunities, or otherwise to positively impact its service territory or in some manner promote the sale of electric energy.
SECTION 8. This act shall take effect and be in force from and after July 1, 2019.
