CHAPTER 43. USE OF ELECTRIC DELIVERY SYSTEM FOR ACCESS TO BROADBAND AND OTHER ENHANCED SERVICES, INCLUDING COMMUNICATIONS - Texas Statutes

UTILITIES CODE

TITLE 2. PUBLIC UTILITY REGULATORY ACT

SUBTITLE B. ELECTRIC UTILITIES

CHAPTER 43. USE OF ELECTRIC DELIVERY SYSTEM FOR ACCESS TO

BROADBAND AND OTHER ENHANCED SERVICES, INCLUDING COMMUNICATIONS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 43.001. LEGISLATIVE FINDINGS. (a) The legislature finds

that 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 BPL development in Texas is

fully dependent upon the participation of electric utilities in

this state that own and operate power lines and related

facilities that are necessary for the construction of BPL systems

and the provision of BPL services.

(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 BPL by

permitting 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 support the deployment of BPL.

(d) The legislature finds that an electric utility may choose to

implement 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 BPL

and may not be penalized for deciding to implement or not to

implement BPL.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

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 shall impose an obligation on an

electric utility to implement BPL, to provide broadband services,

or to allow others to install BPL facilities or use the electric

utility's facilities for the provision of broadband services.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

Sec. 43.003. DEFINITIONS. In this chapter:

(1) "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) "BPL access" means the ability to access broadband services

via a BPL operator or BPL Internet service provider.

(3) "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" 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.

(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 used by an electric

utility to deliver electric energy.

(8) "Electric utility" shall include an electric utility and a

transmission and distribution utility as defined in Section

31.002(6) or (19).

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

SUBCHAPTER B. DEVELOPMENT OF BPL SYSTEMS

Sec. 43.051. AUTHORIZATION FOR BPL SYSTEM. An affiliate of an

electric utility or a person unaffiliated with an electric

utility may own, construct, maintain, and operate 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 shall prohibit an entity defined in

Section 11.003(9) from providing BPL service or owning and

operating a BPL system. 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.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

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.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

Sec. 43.053. FEES AND CHARGES. (a) An electric utility that

allows an affiliate or an unaffiliated entity to own a BPL system

on the electric utility's electric delivery system shall charge

the owner of the BPL system for the use of the electric utility's

electric delivery system.

(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.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

Sec. 43.054. NO ADDITIONAL EASEMENTS OR CONSIDERATION REQUIRED.

Because BPL systems provide benefits to electric delivery

systems, the installation of a BPL system on an electric delivery

system shall not require the electric utility or the owner of the

BPL system or an entity defined in Section 11.003(9) to obtain or

expand easements or other rights-of-way for the BPL system or to

give additional consideration as a result of the installation or

the operation of a BPL system. For purposes of this section,

installation of a BPL system shall be deemed to be consistent

with installation of an electric delivery system.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

Sec. 43.055. RELIABILITY OF ELECTRIC SYSTEMS MAINTAINED. An

electric utility that allows the installation and operation of a

BPL system on its electric delivery system shall employ all

reasonable measures to ensure that the operation of the BPL

system does not interfere with or diminish the reliability of the

utility's electric delivery system. Should a disruption in the

provision of electric service occur, the electric utility shall

be governed by the terms and conditions of the retail electric

delivery service tariff. At all times, the provision of

broadband services shall be secondary to the reliable provision

of electric delivery services.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

SUBCHAPTER C. IMPLEMENTATION OF 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 BPL system on 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 BPL system and the

provision of BPL services shall not be regulated by any state

agency, a municipality, or local government other than as

provided for in this chapter.

(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 BPL system on its power

lines or offer 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 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 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.

(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 is

prohibited from requiring a franchise or an amendment to a

franchise or from requiring a charge, fee, or tax from any entity

for use of the public rights-of-way for a BPL system.

(e) The state or a municipality may impose a charge on the

provision of BPL services, but the charge may not be greater than

the lowest charge that the state or municipality imposes on other

providers of broadband services for use of the public

rights-of-way in its respective jurisdiction.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

Sec. 43.102. COST RECOVERY FOR DEPLOYMENT OF BPL AND UTILITY

APPLICATIONS. (a) Where an electric utility permits the

installation of a BPL system on its electric delivery system

under Section 43.052(a), the electric utility's investment in

that BPL system 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 shall be eligible for inclusion as

operating expenses for purposes of any proceeding under Chapter

36. The invested capital and expenses described in this section

must be allocated to the customer classes directly receiving the

services.

(b) In any proceeding under Chapter 36, 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.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

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.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.

Sec. 43.152. COMPLIANCE WITH FEDERAL LAW. 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.

Added by Acts 2005, 79th Leg., 2nd C.S., Ch.

2, Sec. 2, eff. September 7, 2005.