Bill Text: TX HB3853 | 2021-2022 | 87th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to middle mile broadband service provided by an electric utility.
Spectrum: Bipartisan Bill
Status: (Passed) 2021-06-15 - Effective immediately [HB3853 Detail]
Download: Texas-2021-HB3853-Introduced.html
Bill Title: Relating to middle mile broadband service provided by an electric utility.
Spectrum: Bipartisan Bill
Status: (Passed) 2021-06-15 - Effective immediately [HB3853 Detail]
Download: Texas-2021-HB3853-Introduced.html
87R6805 CXP-F | ||
By: Anderson | H.B. No. 3853 |
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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 [ |
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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 [ |
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(b) [ |
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development in Texas depends on [ |
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participation of electric utilities in this state that own and | ||
operate [ |
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the full deployment of broadband service throughout this state | ||
[ |
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(c) The legislature finds that electric utilities have | ||
existing infrastructure in place throughout this state and that | ||
their existing and new infrastructure could be used to provide | ||
middle mile broadband service. | ||
(d) The [ |
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it is in the public interest to encourage the deployment of | ||
broadband service [ |
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operate facilities providing middle mile broadband service | ||
[ |
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The purpose of this chapter is to provide the appropriate framework | ||
to support the deployment of those facilities [ |
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(e) [ |
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may choose to implement middle mile broadband service [ |
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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 | ||
[ |
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implement that service [ |
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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) No provision of this title imposes [ |
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obligation on an electric utility to [ |
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broadband service [ |
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facilities or use the electric utility's facilities for the | ||
provision of broadband service [ |
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Sec. 43.003. DEFINITIONS. In this chapter: | ||
(1) "Broadband service" means Internet service with | ||
the capability of providing a download speed of 25 megabits per | ||
second or faster and an upload speed of 3 megabits per second or | ||
faster [ |
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(2) "Middle mile broadband service" means the | ||
provision of broadband service to an Internet service provider on a | ||
wholesale basis. The term does not include provision of Internet | ||
service to end-use customers on a retail basis [ |
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(3) "Internet [ |
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[ |
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wholesale basis or to end-use customers on a retail basis. | ||
(4) [ |
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[ |
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[ |
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and related transmission and distribution facilities used by an | ||
electric utility to deliver electric energy. | ||
(5) [ |
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an electric utility and a transmission and distribution utility as | ||
defined in Section 31.002(6) or (19). | ||
SUBCHAPTER B. DEVELOPMENT OF MIDDLE MILE BROADBAND [ |
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Sec. 43.051. AUTHORIZATION FOR MIDDLE MILE BROADBAND [ |
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SYSTEM. (a) An [ |
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maintain, and operate fiber optic cables and other facilities for | ||
providing middle mile broadband service [ |
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consistent with the requirements of this chapter. Nothing in this | ||
chapter prohibits [ |
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11.003(9) from providing broadband [ |
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operating a broadband [ |
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(b) The electric utility may determine which Internet | ||
service providers may have access to broadband capacity on the | ||
electric utility's middle mile broadband system and provide access | ||
points to allow connection between the electric utility's broadband | ||
system and the Internet service provider systems of those Internet | ||
service providers. [ |
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Sec. 43.052. [ |
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[ |
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[ |
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[ |
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[ |
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[ |
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that owns and operates a middle mile broadband system may lease | ||
capacity on the system to an Internet service provider on a | ||
wholesale basis and [ |
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[ |
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[ |
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[ |
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[ |
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[ |
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[ |
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Sec. 43.053 [ |
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CONSIDERATION REQUIRED. Because broadband [ |
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benefits to electric delivery systems, the installation of a middle | ||
mile broadband [ |
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[ |
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modify, or expand easements or other rights-of-way for the middle | ||
mile broadband [ |
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a result of the installation or the operation of a middle mile | ||
broadband [ |
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electric utility or entity. [ |
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Sec. 43.054 [ |
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MAINTAINED. An electric utility that installs [ |
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[ |
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reasonable measures to ensure that the operation of the middle mile | ||
broadband [ |
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reliability of the utility's electric delivery system. If [ |
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a disruption in the provision of electric service occurs [ |
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the electric utility is [ |
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conditions of the retail electric delivery service tariff. The | ||
electric utility may take all necessary actions regarding its | ||
middle mile broadband system to address emergency circumstances | ||
that may pose health, safety, or reliability concerns. At all | ||
times, the provision of broadband service is [ |
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secondary to the reliable provision of electric delivery services. | ||
An electric utility is not liable to any person, including an | ||
Internet service provider, for any direct, indirect, or | ||
consequential damages, including loss of business, loss of profits | ||
or revenue, or loss of production capacity caused by a fluctuation, | ||
disruption, or interruption of middle mile broadband service that | ||
is caused in whole or in part by: | ||
(1) force majeure; or | ||
(2) the electric utility's provision of electric | ||
delivery services, including actions taken by the electric utility | ||
to ensure the reliability of the electric delivery system and | ||
actions taken in response to address emergency circumstances that | ||
may pose health, safety, or reliability concerns. | ||
SUBCHAPTER C. IMPLEMENTATION OF MIDDLE MILE BROADBAND [ |
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BY ELECTRIC UTILITY | ||
Sec. 43.101. PARTICIPATION BY ELECTRIC UTILITY. (a) An | ||
electric utility[ |
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[ |
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(b) The installation, operation, and use of a middle mile | ||
broadband [ |
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service may [ |
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agency, a municipality, or local government other than as provided | ||
by [ |
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(c) An electric utility that owns and operates a middle mile | ||
broadband system: | ||
(1) may lease capacity on the system to an Internet | ||
service provider on a wholesale basis; and | ||
(2) may not provide Internet service to end-use | ||
customers on a retail basis. | ||
(d) [ |
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regulatory or quasi-governmental or a quasi-regulatory authority | ||
may not: | ||
(1) require an electric utility[ |
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broadband [ |
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broadband service on the utility's electric delivery system [ |
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(2) require an electric utility to allow others to | ||
install a middle mile broadband [ |
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electric delivery system [ |
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(3) prohibit an electric utility from installing a | ||
middle mile broadband system or offering middle mile broadband | ||
service on the utility's electric delivery system [ |
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(e) [ |
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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 [ |
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to a franchise or require an additional [ |
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fee, or tax from the electric utility [ |
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public rights-of-way for a middle mile broadband [ |
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(f) [ |
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the provision of middle mile broadband service [ |
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the charge may not be greater than the lowest charge that the state | ||
or municipality imposes on other providers of broadband service | ||
[ |
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jurisdiction. | ||
Sec. 43.102. COMMISSION REVIEW OF UTILITY MIDDLE MILE PLAN. | ||
(a) An electric utility that plans a project to deploy middle mile | ||
broadband shall submit to the commission a written plan that | ||
includes: | ||
(1) the route of the middle mile broadband | ||
infrastructure proposed for the project; | ||
(2) the number of fiber strands and any other | ||
facilities that would be used in connection with the project and | ||
dedicated to serve as the middle mile; | ||
(3) the location of the electric utility's | ||
infrastructure that will be used in connection with the project; | ||
(4) the capacity or number of fiber strands and any | ||
other facilities of the middle mile that will be available to lease | ||
to Internet service providers and other third parties on completion | ||
of the project; | ||
(5) the name of at least one Internet service provider | ||
that has committed to leasing access to the middle mile broadband | ||
assets constructed as part of the project; | ||
(6) an estimate of potential broadband customers that | ||
would be served by the middle mile infrastructure; | ||
(7) the estimated cost of the project, including | ||
engineering costs, construction costs, permitting costs, | ||
right-of-way costs, and a reasonable allowance for funds used | ||
during construction; | ||
(8) the proposed schedule of construction for the | ||
project; | ||
(9) the method of attachment and connection of the | ||
middle mile broadband assets to the electric utility's | ||
infrastructure; | ||
(10) testimony, exhibits, or other evidence that | ||
demonstrates the project will allow for the provision and | ||
maintenance of adequate, efficient, safe, reliable, and reasonably | ||
priced middle mile broadband service; and | ||
(11) any other information that the applicant | ||
considers relevant or that the commission requires. | ||
(b) The commission, after notice and hearing if required by | ||
the commission, shall approve the plan if the commission finds that | ||
the plan will allow for the provision and maintenance of adequate, | ||
efficient, safe, reliable, and reasonably priced middle mile | ||
broadband service. | ||
(c) If the commission approves a plan under this section, | ||
the commission shall issue a finding for the electric utility that | ||
the middle mile broadband facilities subject to the plan are used | ||
and useful to the electric utility, the costs associated with the | ||
middle mile broadband facilities are reasonable, and the middle | ||
mile broadband facilities are prudent and includable in the | ||
electric utility's rate base, regardless of the extent of the | ||
electric utility's actual use of the middle mile broadband | ||
facilities. | ||
(d) 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). | ||
(e) An approved plan may be updated or amended subject to | ||
commission approval in accordance with this section. | ||
Sec. 43.103 [ |
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MIDDLE MILE BROADBAND FACILITIES [ |
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(a) Where an electric utility installs a middle mile broadband | ||
system [ |
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utility's investment in that middle mile broadband [ |
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[ |
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for inclusion in the electric utility's invested capital, and any | ||
fees or operating expenses that are reasonable and necessary are | ||
[ |
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purposes of any proceeding under Chapter 36. An electric utility | ||
may recover, on a periodic basis, the invested capital and any fees | ||
or operating expenses associated with the middle mile broadband | ||
system. In approving a tariff or rate schedule that includes the | ||
recovery of invested capital and any fees or operating expenses | ||
associated with the middle mile broadband system, the commission | ||
shall use the return on investment used in the final order that | ||
established the electric utility's latest effective base rates [ |
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(b) In a [ |
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received by an electric utility from an Internet service provider | ||
for the use of a middle mile broadband system must be applied as a | ||
revenue credit [ |
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[ |
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SUBCHAPTER D. MISCELLANEOUS PROVISIONS | ||
Sec. 43.151. [ |
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[ |
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[ |
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utility that owns and operates a middle mile broadband system [ |
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SECTION 2. Section 33.001(b), Utilities Code, is repealed. | ||
SECTION 3. 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. |