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  H.B. No. 1505
 
 
 
 
AN ACT
  relating to attachments for broadband service on utility poles
  owned by an electric cooperative and establishing and funding a
  pole replacement program for deployment of certain broadband
  facilities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 403, Government Code, is amended by
  adding Subchapter R to read as follows:
  SUBCHAPTER R. INFRASTRUCTURE AND BROADBAND FUNDING
         Sec. 403.501.  DEFINITIONS. In this subchapter:
               (1)  "Pole replacement fund" means the broadband pole
  replacement fund established under Section 403.502.
               (2)  "Pole replacement program" means the Texas
  Broadband Pole Replacement Program established under Section
  403.503.
         Sec. 403.502.  BROADBAND POLE REPLACEMENT FUND. (a) The
  broadband pole replacement fund is created as a fund in the state
  treasury outside the general revenue fund.
         (b)  Notwithstanding any other law and except as provided by
  federal law, the comptroller shall make a one-time transfer from
  money received by this state from the federal government from the
  Coronavirus Capital Projects Fund established under Section 9901 of
  the American Rescue Plan Act of 2021 (Pub. L. No. 117-2) to the
  credit of the pole replacement fund. The comptroller shall make the
  transfer described by this subsection as soon as practicable
  following receipt by this state of money from the Coronavirus
  Capital Projects Fund.
         (c)  Money deposited to the credit of the pole replacement
  fund may be used only for the purpose of supporting the pole
  replacement program under Section 403.503, including the costs of
  program administration and operation. Money in the pole replacement
  fund must be used in a manner consistent with federal law.
         (d)  Interest earned on money deposited to the credit of the
  pole replacement fund is exempt from Section 404.071. Interest
  earned on money in the fund shall be retained in the pole
  replacement fund.
         (e)  The comptroller may issue guidelines for state agencies
  regarding the implementation of this section.
         Sec. 403.503.  TEXAS BROADBAND POLE REPLACEMENT PROGRAM.
  (a) In this section:
               (1)  "Eligible broadband facility" means a facility
  used by a retail broadband service provider to provide qualifying
  broadband service to residences or businesses in an unserved area,
  including a facility owned by an affiliate of the provider and used
  in the provision of service. The term does not include a facility
  used only for the provision of wholesale service and not used by the
  owner of the facility or the owner's affiliate to provide retail
  qualifying broadband service directly to residences or businesses.
               (2)  "Eligible pole replacement cost" means the actual
  and reasonable costs paid or incurred by a party after August 31,
  2021, to remove and replace a pole, including the amount of any
  expenditures to remove and dispose of the existing pole, purchase
  and install a replacement pole, and transfer any existing
  facilities to the new pole. The term includes costs paid or incurred
  by the party responsible for the costs of a pole replacement to
  reimburse the party that performs the pole replacement. The term
  does not include costs that the party incurs initially that have
  been reimbursed to the party by another party ultimately
  responsible for the costs.
               (3)  "Qualifying broadband service" means retail
  wireline or wireless broadband service capable of providing:
                     (A)  a download speed of 25 megabits per second or
  faster; and
                     (B)  an upload speed of 3 megabits per second or
  faster.
               (4)  "Unserved area" means a location that lacks access
  to a retail fixed, terrestrial, wireline, or wireless Internet
  service capable of providing:
                     (A)  a download speed of 25 megabits per second or
  faster; and
                     (B)  an upload speed of 3 megabits per second or
  faster.
               (5)  "Pole" means any pole used, wholly or partly, for
  any wire communications or electric distribution, irrespective of
  who owns or operates the pole.
               (6)  "Pole owner" means a person who owns or controls a
  pole.
         (b)  The Texas Broadband Pole Replacement Program is
  established for the purpose of speeding the deployment of broadband
  to individuals in rural areas by reimbursing a portion of eligible
  pole replacement costs incurred by certain persons.
         (c)  The comptroller shall administer, prescribe rules for,
  and provide administrative support for the pole replacement
  program. The comptroller may take any action necessary or
  convenient to implement the pole replacement program.
         (d)  A pole owner or a provider of qualifying broadband
  service who pays or incurs the costs of removing and replacing an
  existing pole in an unserved area for the purpose of accommodating
  the attachment of an eligible broadband facility may apply to the
  comptroller for a reimbursement award for an amount equal to:
               (1)  50 percent of the eligible pole replacement costs
  paid or incurred by the applicant or $5,000, whichever is less, for
  the pole replaced; and
               (2)  the documented and reasonable administrative
  expenses incurred by the applicant in preparing and submitting the
  reimbursement application, including expenses charged by a pole
  owner under Subsection (m).
         (e)  The amount reimbursed under Subsection (d)(2) may not
  exceed five percent of the eligible pole replacement costs in the
  application.
         (f)  For purposes of Subsection (d), a pole is considered to
  be located in an unserved area if:
               (1)  at the time of the request by a retail broadband
  service provider to attach facilities to the pole, the pole is in a
  location that, according to the latest broadband availability data
  made available by the Federal Communications Commission, is in an
  unserved area; or
               (2)  the pole is located in an area that is the subject
  of a federal or state grant to deploy broadband service, the
  conditions of which limit the availability of a grant to unserved
  areas.
         (g)  The comptroller shall require each applicant for
  reimbursement to provide:
               (1)  information sufficient to establish the number,
  cost, and eligibility of pole replacements and the identity of the
  retail broadband service provider attaching the eligible broadband
  facilities;
               (2)  documentation sufficient to establish that the
  pole replacements have been completed or will be completed not
  later than the 90th day after the award of program reimbursement;
               (3)  the amount of reimbursement requested and any
  grant funding or accounting information required to justify the
  amount of the request;
               (4)  a notarized statement from an officer or agent of
  the applicant that the contents of the application are true and
  accurate and that the applicant accepts the requirements of
  Subsections (j), (k), and (l) as a condition of receiving an award
  of program reimbursement; and
               (5)  any other information the comptroller considers
  necessary for final review, award, and payment of program
  reimbursements.
         (h)  Not later than the 60th day after the date that the
  comptroller receives a completed application for reimbursement,
  the comptroller shall review the application and, if the pole
  replacement fund includes enough money to pay the award amount,
  shall issue a reimbursement award. The award must be paid not later
  than 30 days after the date of issuance.
         (i)  The comptroller must provide notice of a reimbursement
  award to the pole owner and the retail broadband service provider
  attaching the eligible broadband facility.
         (j)  As a condition of receiving an award of program
  reimbursement, an applicant must certify the applicant's
  compliance with the requirements of this section.
         (k)  If a pole owner receives a reimbursement award under
  this section, the owner may not include in any rates or fees charged
  for the owner's services an eligible pole replacement cost:
               (1)  reimbursed by the program;
               (2)  paid for by a qualifying broadband service
  provider; or
               (3)  funded by another grant source.
         (l)  If the comptroller finds on substantial evidence after
  notice and opportunity to respond that a recipient of funds under
  this section has materially violated the requirements of this
  section with respect to reimbursements or portions of
  reimbursements, the comptroller may direct the recipient to refund
  the reimbursement or a portion of the reimbursement with interest
  at the applicable federal funds rate as specified by Section
  4A.506(b), Business & Commerce Code, to the pole replacement fund
  or the state general fund.
         (m)  If a retail broadband service provider incurs eligible
  pole replacement costs relating to a pole replacement performed by
  the pole owner, the owner shall coordinate with the provider to
  supply all information necessary for the provider to promptly
  complete and submit an application under this section. A pole owner
  may charge the provider the documented and reasonable
  administrative expenses incurred by the pole owner for assistance,
  in an amount not to exceed five percent of eligible pole replacement
  costs. The provider may seek reimbursement of costs in accordance
  with Subsection (d)(2).
         (n)  If the pole replacement fund does not have money
  sufficient to pay an award, the application for the award is
  considered denied. The application may be refiled if sufficient
  funds are later made available in the pole replacement fund.
         (o)  Not later than the 60th day after the date the pole
  replacement fund receives money for the pole replacement program,
  the comptroller shall maintain and publish on the comptroller's
  Internet website:
               (1)  statistics on the number of applications received,
  processed, and rejected by the program;
               (2)  statistics on the size, number, and status of
  reimbursements awarded by the program, including the retail
  broadband service providers and pole owners receiving
  reimbursements; and
               (3)  the estimated amount of money remaining in the
  pole replacement fund.
         (p)  Not later than the first anniversary after the pole
  replacement fund receives funds for the purpose of providing pole
  replacement reimbursements, the state auditor shall audit the fund
  and the administration of the pole replacement program.
         (q)  Not later than one year after the date that the amount
  transferred to the pole replacement fund under Section 403.502(b)
  is exhausted, the comptroller shall identify, examine, and report
  on the deployment of broadband infrastructure and technology
  facilitated by the pole reimbursements the comptroller has awarded.
         SECTION 2.  The heading to Chapter 252, Utilities Code, is
  amended to read as follows:
  CHAPTER 252. CABLE ATTACHMENTS TO ELECTRIC COOPERATIVE'S
  DISTRIBUTION POLES
         SECTION 3.  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 3 megabits per second or
  faster.
               (3)  "Pole" has the meaning assigned by Section
  252.001.
               (4)  "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.
         Sec. 253.0002.  APPLICABILITY. This chapter applies to a
  pole attachment that is used wholly or partly to provide broadband
  service and 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.
         Sec. 253.0003.  CONSTRUCTION OF CHAPTER. (a) 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.
         (b)  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. 253.0004.  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. 253.0005.  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. 253.0006.  COST-BASED NONRECURRING CHARGES.  
  Nonrecurring charges authorized by this chapter must be cost-based.
  SUBCHAPTER B. ACCESS TO POLES
         Sec. 253.0101.  APPLICATION FOR POLE ACCESS. 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.
         Sec. 253.0102.  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.
         Sec. 253.0103.  NONDISCRIMINATORY ACCESS; MODIFICATION OR
  REPLACEMENT TO ACCOMMODATE ATTACHMENT. (a) Except as provided by
  this chapter, an electric cooperative shall provide a broadband
  provider with nondiscriminatory access to a pole that the
  cooperative owns or controls.
         (b)  Except as provided by Subsection (c), an electric
  cooperative may deny a broadband provider access to a pole:
               (1)  if there is insufficient capacity; or
               (2)  for reasons of safety, reliability, and generally
  applicable engineering purposes.
         (c)  An electric cooperative may not deny a broadband
  provider access to a pole if the basis for denial may be remedied by
  rearranging facilities on the pole through reasonable make-ready
  activities.
         (d)  Except as provided by Subsection (e), if a pole must be
  replaced to accommodate a new pole attachment applied for by a
  broadband provider:
               (1)  the electric cooperative and broadband provider
  shall determine, through good faith negotiations, a reasonable date
  by which the pole replacement will occur; and
               (2)  the broadband provider shall pay the actual costs
  of replacing the pole, including the cost to:
                     (A)  remove and dispose of the existing pole;
                     (B)  purchase and install a replacement pole; and
                     (C)  transfer any existing facilities to the new
  pole.
         (e)  An electric cooperative is responsible for the costs of
  removing and replacing under Subsection (d) a pole:
               (1)  with recorded conditions or defects that would
  reasonably be expected to endanger human life or property and which
  should be promptly corrected; or
               (2)  that must be replaced for safety or reliability as
  a result of normal wear and tear or other natural causes and not on
  account of a pole attachment or the action of a broadband provider
  or third party.
  SUBCHAPTER C. POLE ATTACHMENT CONTRACTS
         Sec. 253.0201.  CONTRACTS FOR POLE ATTACHMENTS. (a) An
  electric cooperative that owns a pole may require a broadband
  provider that attaches a pole attachment to the pole under this
  chapter to enter into a contract for access to the pole.
         (b)  The terms and conditions of a contract under Subsection
  (a) must be consistent with this chapter.
         Sec. 253.0202.  RATES, TERMS, AND CONDITIONS FOR POLE
  ATTACHMENT. (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.
         (b)  The rates, terms, and conditions of a contract under
  this chapter must:
               (1)  be just, reasonable, and nondiscriminatory; and
               (2)  comply with this chapter.
         (c)  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 electric services and broadband services
  offered through the pole attachments;
               (4)  compliance with applicable safety standards; and
               (5)  the maintenance and reliability of both electric
  distribution and broadband services.
         (d)  A broadband provider and an electric cooperative shall
  negotiate a pole attachment contract and any amendment,
  modification, or renewal thereof in good faith.
         (e)  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. 253.0203.  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, the broadband provider or electric
  cooperative may file suit in a district court to resolve the
  disagreement or dispute.
  SUBCHAPTER D.  ADDITIONAL POLE ATTACHMENT REQUIREMENTS
         Sec. 253.0401.  TRANSFER OF ATTACHMENTS. (a) Before an
  electric cooperative installs a new pole to replace an existing
  pole due to the rerouting, maintenance, or upgrading of the
  electric distribution system, the cooperative shall provide notice
  of the replacement to each broadband provider with a pole
  attachment on the existing pole.
         (b)  The notice required under Subsection (a) must specify a
  date by which the broadband provider must remove the pole
  attachment from the existing pole and transfer the attachment to
  the new pole.
         (c)  If a broadband provider does not transfer a pole
  attachment to the new pole before the 31st day after the date
  specified in the notice, the electric cooperative may transfer the
  pole attachment to the new pole at the broadband provider's
  expense, including the cost for the electric cooperative to return
  to the site.
         (d)  A broadband provider shall indemnify, defend, and hold
  harmless an electric cooperative and the cooperative's members,
  directors, officers, agents, and employees from and against all
  liability for the removal and transfer of a pole attachment subject
  to this section, except for personal injury or property damage
  arising from the gross negligence or wilful misconduct of the
  electric cooperative during the removal and transfer process.
         Sec. 253.0402.  ABANDONED POLE ATTACHMENTS; REMOVAL. (a)  A
  broadband provider that receives a written request from an electric
  cooperative to remove an abandoned pole attachment owned by the
  provider from a pole owned by the cooperative shall remove the
  attachment not later than the 60th day after the date the provider
  receives the request. 
         (b)  Before the deadline under Subsection (a), a broadband
  provider may request, and an electric cooperative may grant, a
  reasonable extension of that deadline. A request for an extension
  under this subsection must be in writing.
         (c)  If a broadband provider does not remove a pole
  attachment by the deadline under Subsection (a) or an extended
  deadline under Subsection (b), the electric cooperative may remove,
  use, sell, or dispose of the pole attachment at the broadband
  provider's expense.
         (d)  An electric cooperative may require that a broadband
  provider post a security instrument in an amount reasonably
  sufficient to cover the potential cost to the electric cooperative
  of removal and disposal of abandoned pole attachments.
         (e)  A broadband provider shall indemnify, defend, and hold
  harmless an electric cooperative and the cooperative's members,
  directors, officers, agents, and employees from and against all
  liability for the removal, use, sale, or disposal of abandoned pole
  attachments, except for personal injury or property damage arising
  from the gross negligence or wilful misconduct of the electric
  cooperative during the removal and disposal process.
         Sec. 253.0403.  EASEMENTS; INDEMNITY. (a) A broadband
  provider is responsible for obtaining all rights-of-way and
  easements necessary for the installation, operation, and
  maintenance of the provider's pole attachments.
         (b)  An electric cooperative is not required to obtain or
  expand a right-of-way or easement to accommodate a pole attachment
  requested by a broadband provider.
         (c)  An electric cooperative is not liable if a broadband
  provider is prevented from placing or maintaining a pole attachment
  because the broadband provider did not obtain a necessary
  right-of-way or easement.
         (d)  A broadband provider shall indemnify, defend, and hold
  harmless the electric cooperative and the cooperative's members,
  directors, officers, agents, and employees from and against any
  liability resulting from the broadband provider's failure to obtain
  a necessary right-of-way or easement for a pole attachment.
         SECTION 4.  The comptroller of public accounts shall
  establish rules for the Texas Broadband Pole Replacement Program,
  as established by Section 403.503, Government Code, as added by
  this Act, not later than March 1, 2022.
         SECTION 5.  This Act takes effect September 1, 2021.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 1505 was passed by the House on May 4,
  2021, by the following vote:  Yeas 138, Nays 7, 2 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 1505 on May 28, 2021, by the following vote:  Yeas 128, Nays 17,
  1 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 1505 was passed by the Senate, with
  amendments, on May 26, 2021, by the following vote:  Yeas 31, Nays
  0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor