By: Perry, et al.	S.B. No. 1650
	(Anderson)

	A BILL TO BE ENTITLED
	AN ACT
	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 [USE] OF MIDDLE MILE [ELECTRIC DELIVERY
	SYSTEM FOR ACCESS TO] BROADBAND SERVICE BY ELECTRIC UTILITIES [AND
	OTHER ENHANCED SERVICES, INCLUDING COMMUNICATIONS]
	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 [broadband over power
	lines, also known as BPL, is an emerging technology platform that
	offers a means of providing broadband services to reach homes and
	businesses. BPL services can also be used to enhance existing
	electric delivery systems, which can result in improved service and
	reliability for electric customers].
	(b)  [The legislature finds that access to quality, high
	speed broadband services is important to this state.  BPL
	deployment in Texas has the potential to extend broadband service
	to customers where broadband access is currently not available and
	may provide an additional option for existing broadband consumers
	in Texas, resulting in a more competitive market for broadband
	services.] The legislature [further] finds that broadband [BPL]
	development in unserved and underserved areas of Texas can be
	facilitated by [is fully dependent upon] the participation of
	electric utilities in this state that own and operate [power lines
	and related] facilities that may be useful [are necessary] for the
	full deployment of broadband service by Internet service providers
	throughout this state [construction of BPL systems and the
	provision of BPL services].
	(c)  The legislature finds that electric utilities have
	existing infrastructure in place throughout this state and that
	excess fiber capacity on that infrastructure could be used to
	provide middle mile broadband service in unserved and underserved
	areas.
	(d)  The [(c) Consistent with the goal of increasing options
	for telecommunications in this state, the] legislature finds that
	it is in the public interest to encourage the deployment of
	broadband service in unserved and underserved areas [BPL] by
	permitting electric utilities to own or operate facilities
	providing middle mile broadband service to lease excess fiber
	capacity [affiliates of the electric utility, or permitting
	unaffiliated entities, to own or operate all or a portion of such
	BPL systems]. The purpose of this chapter is to provide the
	appropriate framework to facilitate the leasing of excess fiber
	capacity on electric utility facilities [support the deployment of
	BPL].
	(e) [(d)]  The legislature finds that an electric utility
	may choose to implement middle mile broadband service to lease
	excess fiber capacity to Internet service providers [BPL] under 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
	[BPL] and may not be penalized for deciding to implement or not to
	implement that service [BPL].
	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)  Except as otherwise provided by this title, no [No]
	provision of this title imposes [shall impose] an obligation on an
	electric utility to construct or operate a middle mile system, to
	[implement BPL, to] provide middle mile broadband service
	[services], or to allow others to install [BPL] facilities or use
	the electric utility's facilities for the provision of broadband
	service [services].
	Sec. 43.003.  DEFINITIONS. In this chapter:
	(1)  "Broadband service" means retail Internet service
	provided by a commercial Internet service provider 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
	["BPL," "broadband over power lines," and "BPL services" mean the
	provision of broadband services over electric power lines and
	related facilities, whether above ground or in underground
	conduit].
	(2)  "Middle mile broadband service" means the
	provision of excess fiber capacity on an electric utility's
	electric delivery system to an Internet service provider to provide
	broadband service.  The term does not include provision of Internet
	service to end-use customers on a retail basis ["BPL access" means
	the ability to access broadband services via a BPL operator or BPL
	Internet service provider].
	(3)  "Internet ["BPL operator" means an entity that
	owns or operates a BPL system on the electric power lines and
	related facilities of an electric utility.
	[(4)  "BPL Internet] service provider" means a
	commercial [and "BPL ISP" mean an] entity that provides Internet
	services [to others on a wholesale basis or] to end-use customers on
	a retail basis.
	(4) [(5)  "BPL system" means the materials, equipment,
	and other facilities installed on electric utility property to
	facilitate the provision of BPL services.
	[(6)  "BPL electric utility applications" means
	services and technologies that are used and useful and designed to
	improve the operational performance and service reliability of an
	electric utility including, but not limited to, automated meter
	reading, real time system monitoring and meter control, remote
	service control, outage detection and restoration, predictive
	maintenance and diagnostics, and monitoring and enhancement of
	power quality.
	[(7)]  "Electric delivery system" means the power lines
	and related transmission and distribution facilities constructed
	[used by an electric utility] to deliver electric energy to the
	electric utility's customers.
	(5) [(8)]  "Electric utility" includes [shall include]
	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 [BPL] SYSTEMS
	Sec. 43.051.  AUTHORIZATION FOR MIDDLE MILE BROADBAND [BPL]
	SYSTEM. (a) An [affiliate of an] electric utility [or a person
	unaffiliated with an electric utility] may own, construct,
	maintain, and operate fiber optic cables and other facilities for
	providing middle mile broadband service [a BPL system and provide
	BPL services on an electric utility's electric delivery system]
	consistent with the requirements of this chapter. Nothing in this
	chapter prohibits [shall prohibit] an entity defined in Section
	11.003(9) from providing broadband [BPL] service to an Internet
	service provider or owning and operating a broadband [BPL] system
	as otherwise permitted by law.
	(b)  The electric utility may determine on a
	nondiscriminatory basis which Internet service providers may have
	access to excess fiber capacity on the electric utility's electric
	delivery system and provide access points to allow connection
	between the electric utility's electric delivery system and the
	Internet service provider systems of those Internet service
	providers.  The electric utility may provide access to excess fiber
	capacity on the electric utility's middle mile broadband system
	only on reasonable and nondiscriminatory terms and conditions.
	[Nothing in this chapter shall prohibit an electric utility from
	providing construction or maintenance services to a BPL operator or
	BPL ISP provided that the costs of these services are properly
	accounted for between the electric utility and the BPL operator or
	BPL ISP.]
	Sec. 43.052.  [OWNERSHIP AND OPERATION OF BPL SYSTEM. (a)
	An electric utility may elect to:
	[(1)  allow an affiliate to own or operate a BPL system
	on the utility's electric delivery system;
	[(2)  allow an unaffiliated entity to own or operate a
	BPL system on the electric utility's electric delivery system; or
	[(3)  allow an affiliate or unaffiliated entity to
	provide Internet service over a BPL system.
	[(b)  The BPL operator and the electric utility shall
	determine what BPL Internet service providers may have access to
	broadband capacity on the BPL system.
	[Sec. 43.053. FEES AND] CHARGES. [(a)] An electric utility
	that owns and operates a middle mile broadband system may lease
	excess fiber capacity on the electric utility's electric delivery
	system to an Internet service provider on a wholesale basis and
	[allows an affiliate or an unaffiliated entity to own a BPL system
	on the electric utility's electric delivery system] shall charge
	the Internet service provider [owner of the BPL system] for the use
	of the electric utility's [electric delivery] system for all costs
	associated with that use.  The rates, terms, and conditions of a
	lease of excess fiber capacity on an electric utility's middle mile
	broadband system must be nondiscriminatory.  An electric utility
	may not lease excess fiber capacity on the electric utility's
	middle mile broadband system to an affiliated Internet service
	provider.
	[(b)  An electric utility may pay a BPL owner, a BPL
	operator, or a BPL ISP for the use of the BPL system required to
	operate BPL utility applications.
	[(c)  If all or part of a BPL system is installed on poles or
	other structures of a telecommunications utility as that term is
	defined in Section 51.002, the owner of the BPL system shall be
	required to pay the telecommunications utility an annual fee
	consistent with the usual and customary charges for access to the
	space occupied by that portion of the BPL system so installed.
	[(d)  Notwithstanding Subsections (a)-(c):
	[(1)  an electric utility may not charge an affiliate
	under this section an amount less than the electric utility would
	charge an unaffiliated entity for the same item or class of items;
	[(2)  an electric utility may not pay an affiliate
	under this section an amount more than the affiliate would charge an
	unaffiliated entity for the same item or class of items; and
	[(3)  an electric utility or an affiliate of an
	electric utility may not discriminate against a retail electric
	provider that is not affiliated with the utility in the terms or
	availability of BPL services.]
	Sec. 43.053  [43.054]. NO ADDITIONAL EASEMENTS OR
	CONSIDERATION REQUIRED. (a)  Because broadband [BPL] systems
	provide benefits to electric delivery systems, the installation of
	a middle mile broadband [BPL] system on an electric delivery system
	does [shall] not require the electric utility [or the owner of the
	BPL system] or an entity defined in Section 11.003(9) to obtain,
	modify, or expand easements or other rights-of-way for the middle
	mile broadband [BPL] system or to give additional consideration as
	a result of the installation or the operation of a middle mile
	broadband [BPL] system on the electric delivery system of the
	electric utility or entity, unless the property owner protests the
	use as provided by this section.
	(b)  Not later than the 60th day before the date an electric
	utility begins construction in an easement or other property right
	of fiber optic cables and other facilities for providing middle
	mile broadband service, the electric utility shall provide written
	notice to the owners of the affected property of the electric
	utility's intent to use the easement or other property right for
	middle mile broadband service.
	(c)  Notice under this section must:
	(1)  be sent by first class mail to the last known
	address of each person in whose name the affected property is listed
	on the most recent tax roll of each county authorized to levy
	property taxes against the property; and
	(2)  state whether any new fiber optic cables used for
	middle mile broadband service will be located above or below ground
	in the easement or other property right.
	(d)  Not later than the 60th day after the date an electric
	utility mails notice under this section, a property owner entitled
	to the notice may submit to the electric utility a written protest
	of the intended use of the easement or other property right for
	middle mile broadband service.  An electric utility that receives a
	timely written protest may not use the easement or other property
	right for middle mile broadband service unless the protestor later
	agrees in writing to that use or that use is authorized by law. If a
	property owner fails to submit a timely written protest, an
	electric utility may proceed under Subsection (a) without modifying
	or expanding the easement for that property owner.
	(e)  An electric utility that receives a timely written
	protest under Subsection (d) regarding a proposed middle mile
	broadband project may cancel the project at any time.
	(f)  The requirements of this section do not apply to an
	existing easement that permits the installation of a third-party
	middle mile broadband system on an electric delivery system. [For
	purposes of this section, installation of a BPL system shall be
	deemed to be consistent with installation of an electric delivery
	system.]
	Sec. 43.054  [43.055]. RELIABILITY OF ELECTRIC SYSTEMS
	MAINTAINED. An electric utility that installs [allows the
	installation] and operates [operation of] a middle mile broadband
	[BPL] system [on its electric delivery system] shall employ all
	reasonable measures to ensure that the operation of the middle mile
	broadband [BPL] system does not interfere with or diminish the
	reliability of the utility's electric delivery system. If [Should]
	a disruption in the provision of electric service occurs [occur],
	the electric utility is [shall be] governed by the terms and
	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 [services shall be]
	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 [BPL] SYSTEM
	BY ELECTRIC UTILITY
	Sec. 43.101.  PARTICIPATION BY ELECTRIC UTILITY. (a) An
	electric utility[, through an affiliate or through an unaffiliated
	entity,] may [elect to] install and operate a middle mile broadband
	[BPL] system on any part of its electric delivery system for
	Internet service providers but may not construct new electric
	delivery facilities for the purpose of the electric utility's
	middle mile service [some or all of its electric delivery system in
	any part or all of its certificated service area].
	(b)  The installation, operation, and use of a middle mile
	broadband [BPL] system and the provision of middle mile broadband
	service and the lease of excess fiber capacity by Internet service
	providers from an electric utility may [BPL services shall] not be
	regulated by any state agency, a municipality, or local government
	other than as provided by [for in] this chapter.
	(c)  An electric utility that owns and operates a middle mile
	broadband system:
	(1)  may lease excess fiber capacity on the electric
	utility's electric delivery 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) [(c)]  The commission or a state or local government or a
	regulatory or quasi-governmental or a quasi-regulatory authority
	may not:
	(1)  require an electric utility[, either through an
	affiliate or an unaffiliated entity,] to install a middle mile
	broadband [BPL] system [on its power lines] or offer middle mile
	broadband service on the utility's electric delivery system [BPL
	services in all or any part of the electric utility's certificated
	service area];
	(2)  require an electric utility to allow others to
	install a middle mile broadband [BPL] system on the utility's
	electric delivery system [in any part or all of the electric
	utility's certificated service area]; or
	(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 [having an
	affiliate or unaffiliated entity install a BPL system or offering
	BPL services in any part or all of the electric utility's
	certificated service area].
	(e) [(d)]  If a municipality or local government is already
	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 [is prohibited from requiring] a franchise or an amendment
	to a franchise or require an additional [from requiring a] charge,
	fee, or tax from the electric utility [any entity] for use of the
	public rights-of-way for a middle mile broadband [BPL] system.
	(f) [(e)]  The state or a municipality may impose a charge on
	the provision of middle mile broadband service [BPL services], but
	the charge may not be greater than the lowest charge that the state
	or municipality imposes on other providers of broadband service
	[services] for use of the public rights-of-way in its respective
	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 an Internet service provider;
	(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 Internet service provider;
	(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 by the Internet service provider to
	the electric utility's electric delivery system;
	(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 reasonably priced middle mile broadband
	service.
	(c)  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).
	(d)  An approved plan may be updated or amended subject to
	commission approval in accordance with this section.
	Sec. 43.103  [43.102]. COST RECOVERY FOR DEPLOYMENT OF
	MIDDLE MILE BROADBAND FACILITIES [BPL AND UTILITY APPLICATIONS].
	(a) Where an electric utility installs a middle mile broadband
	system [permits the installation of a BPL system on its electric
	delivery system] under Section 43.051 [43.052(a)], the electric
	utility's investment in that middle mile broadband [BPL] system is
	[to directly support the BPL electric utility applications and
	other BPL services consumed by the electric utility that are used
	and useful in providing electric utility service shall be] eligible
	for inclusion in the electric utility's invested capital, and any
	fees or operating expenses that are reasonable and necessary are
	[shall be] eligible for inclusion as operating expenses for
	purposes of any proceeding under Chapter 36. The commission may
	allow an electric utility to recover investment in a middle mile
	broadband system outside of a comprehensive base rate proceeding
	[The invested capital and expenses described in this section must
	be allocated to the customer classes directly receiving the
	services].
	(b)  In a [any] proceeding under Chapter 36, revenue 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 to customers in proportion to the customers' funding of the
	underlying infrastructure [just and reasonable charges for the use
	of the electric utility's electric delivery system by a BPL owner or
	operator shall be limited to the usual and customary pole
	attachment charges paid to the electric utility for comparable
	space by cable television operators].
	[(c)  The revenues of an affiliated BPL operator or an
	affiliated BPL ISP shall not be deemed the revenues of an electric
	utility for purposes of setting rates under Chapter 36.]
	SUBCHAPTER D. MISCELLANEOUS PROVISIONS
	Sec. 43.151.  [AFFILIATES OF ELECTRIC UTILITY. (a) Subject
	to the limitations of this chapter, an electric utility may have a
	full or partial ownership interest in a BPL operator or a BPL
	ISP.  Whether a BPL operator or a BPL ISP is an affiliate of the
	electric utility shall be determined under Section 11.003(2) or
	Section 11.006.
	[(b)  Neither a BPL operator nor a BPL ISP shall be
	considered a "competitive affiliate" of an electric utility as that
	term is defined in Section 39.157.
	[Sec. 43.152.] COMPLIANCE WITH FEDERAL LAW. An electric
	utility that owns and operates a middle mile broadband system [BPL
	operators] shall comply with all applicable federal laws[,
	including those protecting licensed spectrum users from
	interference by BPL systems.  The operator of a radio frequency
	device shall be required to cease operating the device upon
	notification by a Federal Communications Commission or Public
	Utilities Commission representative that the device is causing
	harmful interference.  Operation shall not resume until the
	condition causing the harmful interference has been corrected].
	SECTION 2.  Section 33.001(b), Utilities Code, is repealed.
	SECTION 3.  The Public Utility Commission of Texas is
	required to implement a provision of this Act only if the
	legislature appropriates money specifically for that purpose.  If
	the legislature does not appropriate money specifically for that
	purpose, the commission may, but is not required to, implement a
	provision of this Act using other appropriations that are available
	for that purpose.
	SECTION 4.  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.