87R8812 BRG-F
	By: Hancock	S.B. No. 1283

	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.