| (XIII) a link or website address for the commission
website for public participation.
(iii) 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.
(B) Notice to the following persons or entities must
be sent by first class mail to the last known address of the person
or entity or by electronic service:
(i) all parties in the electric utility's last comprehensive
(ii) property owners whose property is listed on the
most recent tax roll of each county authorized to levy property taxes
against the property and whose real property is burdened by an existing
easement, right-of-way or other property right that permits the provision
of third-party middle mile broadband service on an electric utility
(iii) the Office of Public Utility Counsel; and
(iv) municipalities crossed by or within five miles
of the planned project and counties that are crossed by the planned
(C) Notice to the parties described under subparagraph
(B) of this paragraph must conspicuously state in plain language:
(i) that the electric utility has determined the recipient
is not an affected property owner as defined under Chapter 16, Texas
Administrative Code §25.218(b)(1), that the mailing is a notice
of intent to use the utility's easement for implementation of middle
mile broadband service, and that the electric utility's determination
may be challenged in the docket listed in the notice if the person
or entity files a motion to intervene in the proceeding and that motion
to intervene is granted by the presiding officer;
(ii) the intervention deadline in accordance with subparagraph
(E) of this paragraph; and
(iii) a link or website address for the commission
website for public participation.
(D) The electric utility must file a notice of written
middle mile broadband plan proceeding and must include in the notice
the docket number for the proceeding. The commission will designate
a project number for the filing of notice of plans under this section.
This filing serves as notice to all other interested parties.
(E) The intervention deadline is 45 days from the date
the utility files its notice of written middle mile broadband plan
proceeding in accordance with subparagraph (D) of this paragraph.
The lapse of the intervention deadline does not prevent an affected
property owner from submitting a written protest under subparagraph
(F) of this paragraph.
(F) Protest by affected property owner.
(i) Not later than the 60th day after the postmarked
date an electric utility mails notice to affected property owners
in accordance with subparagraph (A) of this paragraph, an affected
property owner 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 by filing the protest with the commission in
the docket assigned to the middle mile broadband plan proceeding.
For purposes of this section, an electric utility is deemed to have
received a written protest filed with the commission in the appropriate
(ii) If an electric utility receives a written protest
directly from an affected property owner, the electric utility must
file the protest with the commission within three working days of
(iii) An electric utility that receives a timely written
protest from an affected property owner must not use the easement
or other property right for middle mile broadband service unless that
use is authorized by law or the protester later retracts its protest
or agrees in writing to that use.
(iv) An electric utility that receives a timely written
protest from an affected property owner regarding the proposed middle
mile broadband plan may cancel the project at any time.
(v) An electric utility that receives any timely written
protests must file an update with the commission that any applicable
protests have been resolved in accordance with clause (iii) of this
subparagraph before implementing its middle mile broadband plan.
(vi) If an affected property owner fails to submit
a timely written protest, an electric utility may proceed with a commission-approved
plan to provide middle mile broadband service without modifying or
expanding the easement for the property owner.
(3) Commission processing of electric utility's plan.
(A) The commission must approve, modify, or reject
an electric utility's middle mile broadband plan submitted to the
commission under this section not later than the 181st day after the
date all information necessary for the plan to be deemed materially
sufficient was filed.
(B) Following the filing of a plan by an electric utility
under this section, the commission may review the electric utility's
plan for middle mile broadband service under subsection (f) of this
section or refer the application to the State Office of Administrative
Hearings (SOAH). Upon referral to SOAH:
(i) The commission delegates authority to the presiding
officer to deem plans sufficient, approve plans, and modify approved
plans filed under this subsection through a notice of approval under §22.35(b)(1)
(relating to Informal Disposition) of this title.
(ii) The presiding officer will review for sufficiency
the electric utility's plan for middle mile broadband service under
paragraph (1) of this subsection and notice to potential intervenors
under paragraph (2) of this subsection.
(iii) The presiding officer must establish a procedural
schedule that will enable the commission to, approve, modify, or reject
the plan not later than the 181st day after the date all information
necessary for the plan to be deemed materially sufficient was filed.
(C) A motion to find a plan filing materially deficient
must be filed no later than seven days after the intervention deadline.
The motion must specify the nature of the deficiency, the relevant
portions of the plan, and cite the particular requirement under paragraph
(1) of this subsection with which the plan is alleged not to comply.
The electric utility's response to a motion to find a plan materially
deficient must be filed no later than five working days after such
motion is received.
(D) An approved plan may be updated or amended subject
to commission approval in accordance with this subsection.
(g) Cost recovery for deployment of middle mile broadband
(1) An electric utility's investment in facilities
installed by that electric utility to provide middle mile broadband
service under a plan approved by the commission under this section
is eligible for inclusion in the electric utility's invested capital.
(2) In a proceeding under PURA Chapter 36, revenue
received by an electric utility from an internet service provider
for the use of middle mile broadband service must be applied as a
revenue credit to customers in proportion to the customers' funding
of the underlying infrastructure. For purposes of this paragraph,
the term ‘customers’ refers to ‘rate classes.’
(3) An electric utility submitting a plan must ensure
that revenues received by the electric utility from the provision
of middle mile broadband service offset all costs directly attributable
to the middle mile broadband service, including but not limited to,
construction, maintenance, operations, taxes, other costs, and return.
(4) If revenues received by an electric utility from
an internet service provider for the use of middle mile broadband
service are insufficient to offset the costs under paragraph (3) of
this subsection, the utility must ensure that its regulated rates
prevent ratepayer cross-subsidization.
(h) Reliability of electric systems maintained.
(1) An electric utility that installs and operates
facilities to provide middle mile broadband service must employ all
reasonable measures to ensure that the operation of the middle mile
broadband service does not interfere with or diminish the reliability
of the electric utility's electric delivery system.
(2) If a disruption in the provision of electric service
occurs, the electric utility is governed by the terms and conditions
of the retail electric delivery service tariff.
(3) The electric utility may take all necessary actions
regarding its middle mile broadband service and the facilities required
in the provision of that service to address circumstances that may
pose health, safety, security, or reliability concerns.
(4) At all times, the provision of broadband service
is secondary to the reliable provision of electric delivery services.
(5) Except as provided by contract or tariff, an electric
utility is not liable to any person, including an internet service
provider, for any damages, including direct, indirect, physical, economic,
exemplary, 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:
(A) force majeure; or
(B) the electric utility's provision of electric delivery
services, including actions taken by the electric utility to ensure
the reliability and security of the electric delivery system and actions
taken in response to address all circumstances that may pose health,
safety, security, or reliability concerns.