Bill Text: VA HB2304 | 2021 | 1st Special Session | Introduced
Bill Title: Phase I or Phase II electric utilities; provision of broadband capacity.
Spectrum: Moderate Partisan Bill (Democrat 4-1)
Status: (Passed) 2021-03-25 - Governor: Acts of Assembly Chapter text (CHAP0369) [HB2304 Detail]
Download: Virginia-2021-HB2304-Introduced.html
Be it enacted by the General Assembly of Virginia:
1. That §56-585.1:9 of the Code of Virginia is amended and reenacted as follows:
§56-585.1:9. Provision of broadband capacity to unserved areas of the Commonwealth.
A. The Commission
shall establish pilot programs under which each Each Phase I Utility and each
Phase II Utility, as such terms are defined in subdivision A 1 of §56-585.1,
may submit one or more petitions to provide or make available broadband
capacity to nongovernmental Internet service providers in areas of the
Commonwealth unserved by broadband. Any
such petitions that a Phase I Utility submits shall not exceed $60 million in
costs annually. Any such
petitions that a Phase II Utility submits shall not exceed $60 million in costs
annually. The provision of such broadband capacity to nongovernmental
Internet service providers in areas of the Commonwealth unserved by broadband
pursuant to this section is in the public interest.
B. The incremental
costs of providing broadband capacity pursuant to any such pilot
program
petition, net of revenue generated therefrom, shall be
eligible for recovery from customers as an electric grid transformation project
pursuant to clause (vi) of subdivision A 6 of §56-585.1 filed on or after July
1, 2020
2021, as a non-bypassable
charge. Notwithstanding
any provision of subdivision A 6 or 7 of §56-585.1, the utility may file one
or more petitions for approval of such a rate adjustment clause, on a
stand-alone basis, seeking recovery of the costs of providing broadband
capacity at any time on or after July 1, 2021, and the Commission shall issue
its final order regarding such petition within three months following the date
of filing.
C. Notwithstanding the provisions of §13.1-620 or the
articles of incorporation of an investor-owned utility, an investor-owned utility
may, either directly or through an affiliate or subsidiary, pursuant to a pilot program petition that the Commissioner
approves pursuant to this section, (i) own, manage, or control any broadband
capacity equipment and electronics, including any plant, works, system, lines,
facilities, or properties, or any part or parts thereof, together with all
appurtenances thereto, used or useful in connection with the provision and
extension of such broadband services; (ii) lease indefeasible rights of use in
such broadband capacity equipment and electronics to nongovernmental Internet
service providers in areas of the Commonwealth unserved by broadband pursuant
to this section; and (iii) provide access points that are outside the utility's
energized zone to allow connection between the utility's broadband capacity
system and the nongovernmental Internet service provider's system.
D. Each petition to provide broadband capacity pursuant to
this section that an investor-owned utility submits to the Commission shall
identify the nongovernmental Internet service provider to which the utility
shall lease such capacity, together with the area to be served using such
capacity. The Commission shall, after notice and opportunity for hearing,
initiate proceedings to review each petition submitted.
In determining whether an area is unserved by broadband,
the Commission shall take into account the impact of any grants or loans made
to provide broadband access to the designated area. The Commission's final
order regarding any such petition shall be entered by the Commission not more
than six months after the date of the filing of such petition. The Commission
shall condition any approval of such petition on the requirement that
construction shall commence within three years of such approval. If the utility
fails to commence construction within such period, the utility may resubmit the
petition for Commission approval
An area shall be
conclusively determined to be unserved by broadband if (i) the Department of
Housing and Community Development certifies that the designated area is
unserved; (ii) the Virginia Telecommunication Initiative has issued a grant or
loan to service the designated area; (iii) the federal
government has
issued a grant or a
loan, or has provided support,
to service the designated area; or (iv) the federal
government or the
Commonwealth has designated the area as unserved. The determination of the
Department of Housing and Community Development, the Virginia Telecommunication
Initiative, or the federal government
shall be sufficient for the Commission to find the area to be unserved. In
addition, the Commission may determine that an area is unserved on the basis
of other competent evidence.
E. An investor-owned utility shall be responsible to obtain all necessary rights-of-way or other easements or real property rights to permit leasing of broadband capacity to nongovernmental Internet service providers. A nongovernmental Internet service provider shall be responsible to obtain all necessary rights-of-way or other easements or real property rights from utility access point to permit the provision of broadband services to end-user customers.
F. As used in this section:
"Broadband" means Internet access at speeds equal to or greater than 10 MBps download speed and one MBps upload speed,
provided that the adequate
speed as determined by the broadband
guidelines set out by the
Department of Housing and Community Development for its Virginia
Telecommunication Initiative may by guideline
modify such speeds from time to time.
"Unserved by broadband" means a designated area in which less than 10 percent of residential and commercial units are capable of receiving broadband service, provided that the Department of Housing and Community Development for its Virginia Telecommunication Initiative may by guideline increase such percentage from time to time.
G. No investor-owned utility nor any affiliate thereof may offer broadband or Internet service provider services to residential or commercial end-user customers in the Commonwealth pursuant to this section. Nothing in this section shall be construed to prevent an investor-owned utility or an affiliate thereof from providing transport of or capacity for broadband or Internet service in the Commonwealth as a wholesaler or intermediate vendor, provided that an unaffiliated nongovernmental third party is the provider of broadband or Internet services to the end-user customer.
H. The provision and extension of broadband capacity by an
incumbent electric utility to an area of the Commonwealth unserved by broadband
pursuant to a pilot
program petition that
the Commission approves pursuant to this section, including any business
activity related to the construction or leasing of broadband capacity
facilities, shall be exempt from any rules and regulations that the Commission
has promulgated or may promulgate governing functional separation of
generation, retail transmission, and distribution of incumbent electric
utilities. Investor-owned electric utilities may for the purposes of this
section engage in such coordination between and among their various corporate
divisions as necessary for the purposes of providing broadband capacity to an
area of the Commonwealth unserved by broadband.
I. The
pilot program established pursuant to this section shall continue for the
three-year period ending three years following the date the Commission approves
the first petition to provide broadband capacity pursuant to this section,
unless the Commission extends the pilot program or makes the pilot program
permanent. At the termination of the pilot program, a utility shall continue to
provide broadband capacity pursuant to leases existing as of the date of such
termination.
J. Notwithstanding
the provisions of §13.1-620 or the articles of incorporation of an
investor-owned utility, an investor-owned utility may, either directly or
through an affiliate or subsidiary, lease
broadband-related assets or
capacity to any third party
that is a wholesaler and that is not a government-owned broadband authority, for the purposes of providing broadband
connectivity. The leases may, if the parties choose, extend in length beyond
the end of the pilot program, notwithstanding any Commission order issued
pursuant to subsection I terminating the pilot program. The
revenues generated from such leases shall offset (i) the
incremental costs of the
pilot program
petition recovered through the rate adjustment clause
described in subsection B or (ii) the utility's electric cost of service.
2. That any pilot program established by Phase I or Phase II utility prior to July 1, 2021, under §56-585.1:9 of the Code of Virginia prior to the enactment of this act may continue, and the utility may maintain such pilot program at its discretion, under the terms originally established. Upon the expiration of such pilot program, the utility may seek to renew or extend such program pursuant to the terms of this act.