| (a) Purpose and application. This section implements
Public Utility Regulatory Act (PURA) Chapter 43, permitting an electric
utility to implement middle mile broadband service for excess fiber
capacity. This section applies to an electric utility, including a
transmission and distribution utility, regardless of whether the utility
is offering customer choice under PURA Chapter 39.
(b) Definitions. The following terms, when used in
this section, have the following meanings, unless the context indicates
otherwise.
(1) Affected property owner--an owner of real property
that is burdened by an easement or other property right owned or leased
by an electric utility that will be affected by the installation or
operation of middle mile broadband service on an electric delivery
system or other facilities of the electric utility. A state or local
government body that owns a public right of way and a property owner
whose real property is burdened by an existing easement or other property
right that permits the provision of third-party middle mile broadband
service on an electric utility delivery system are not affected property
owners.
(2) Affiliated internet service provider--an internet
service provider that is an affiliate of the electric utility that
provides or intends to provide a plan for middle mile broadband service
under this section.
(3) Broadband service--retail internet service provided
by a commercial internet service provider with the capability of providing
a download speed of at least 25 megabits per second and an upload
speed of at least 3 megabits per second.
(4) Electric delivery system--the power lines and related
transmission and distribution facilities constructed to deliver electric
energy to the electric utility's customers.
(5) Excess fiber capacity--fiber capacity neither utilized
nor reserved for current or planned electric utility operations.
(6) Internet service provider--a commercial entity
that provides internet services to end-user customers on a retail
basis.
(7) Middle mile broadband service--the provision of
excess fiber capacity on an electric utility's electric delivery system
or other facilities 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.
(8) Underserved area--means one or more census blocks
that are not an unserved area and in which 80 percent or more of end-user
addresses in each census block either lack access to broadband service
with a download speed not less than 100 megabits per second and an
upload speed not less than 20 megabits per second, or lack access
to reliable broadband service with those speeds as determined using
Federal Communications Commission mapping criteria, if available.
(9) Unserved area--means one or more census blocks,
in which 80 percent or more of the end-user addresses in each census
block either have no access to broadband service, or lack access to
reliable broadband service as determined using Federal Communications
Commission mapping criteria, if available.
(c) Authorization for middle mile broadband service.
(1) An electric utility may own, construct, maintain,
and operate fiber optic cables and other facilities for providing
middle mile broadband service to an internet service provider for
the purpose of providing broadband service in unserved and underserved
areas consistent with the requirements of this section. The electric
utility has the right to decide, in its sole discretion, whether to
implement middle mile broadband service and may not be penalized for
deciding to implement or not to implement that service.
(2) An electric utility that elects to provide middle
mile broadband service must determine on a nondiscriminatory basis
which internet service providers may access excess fiber capacity
on the electric utility's electric delivery system or other facilities
and provide access points to allow connection between the electric
utility's electric delivery system or other facilities and the systems
of those internet service providers. An electric utility is prohibited
from leasing excess fiber capacity to provide middle mile broadband
service to an affiliated internet service provider.
(3) The electric utility must provide access to excess
fiber capacity only on reasonable and nondiscriminatory terms and
conditions that assure the electric utility the unimpaired ability
to comply with and enforce all applicable federal and state requirements
regarding the safety, reliability, and security of the electric delivery
system.
(4) Nothing in this section is intended to restrict
an electric utility from owning, constructing, maintaining, or operating
fiber optic cables or a broadband system for the electric utility's
own use to support the operation of the electric utility's electric
delivery system or for other lawful purposes.
(d) Charges. An electric utility that owns and operates
facilities to provide middle mile broadband service may lease excess
fiber capacity on the electric utility's electric delivery system
or other facilities to an internet service provider on a wholesale
basis and must charge the internet service provider for the use of
the electric utility's system for all costs directly attributable
to providing middle mile broadband service. The rates, terms, and
conditions of a lease of excess fiber capacity described by this section
must be nondiscriminatory. An electric utility may not lease excess
fiber capacity to provide middle mile broadband service to an affiliated
internet service provider.
(e) Participation by electric utility.
(1) An electric utility may install and operate facilities
to provide middle mile broadband service on any part of its electric
delivery system or other facilities for internet service providers
but may not construct new electric delivery facilities for the purpose
of expanding the electric utility's middle mile broadband service.
(2) An electric utility that owns and operates middle
mile broadband service:
(A) may lease excess fiber capacity on the electric
utility's electric delivery system or other facilities to an internet
service provider on a wholesale basis; and
(B) may not provide internet service to end-use customers
on a retail basis.
(f) Commission review of electric utility middle mile
broadband service plan.
(1) Filing requirements. An electric utility that plans
to deploy middle mile broadband service must submit to the commission
a written plan that includes:
(A) a demonstration that the middle mile broadband
service will be used only for unserved and underserved areas based
on a broadband availability map developed by the Broadband Development
Office or Federal Communications Commission, to the extent that such
a broadband availability map is available, accurate, and developed
using criteria reasonably consistent with this section; in the absence
of an appropriate map, an electric utility may demonstrate that an
area is unserved or underserved using other available and necessary
information;
(B) a sworn statement by a cybersecurity expert attesting
that the electric utility's cybersecurity has been properly addressed
for implementing and providing middle mile broadband service, a copy
of the cybersecurity expert's resume or curriculum vitae, and a description
of the expert's cybersecurity expertise;
(C) the route of the middle mile broadband service
infrastructure proposed for the project;
(D) the location of the electric utility's infrastructure
that will be used in connection with the project;
(E) an estimate of potential unserved or underserved
broadband customers that would be served by the internet service provider;
(F) the capacity, number of fiber strands, and any
other facilities of the middle mile broadband service that will be
available to lease to internet service providers;
(G) the estimated cost of the project, including an
itemization of engineering costs, construction costs, permitting costs,
right-of-way costs, a reasonable allowance for funds used during construction,
and all other costs associated with the lease and use of the electric
utility's system for middle mile broadband service by internet service
providers;
(H) the proposed schedule of construction for the project;
(I) a copy of the lease with the internet service provider
for middle mile broadband service and a statement attesting that the
lease is in compliance with subsections (c)(2) and (3), and subsection
(d) of this section;
(J) a copy of the final order and the docket number
for the electric utility's last comprehensive base-rate case proceeding;
(K) a disclosure of all state and federal funds, including
but not limited to, subsidies, grants, and tax benefits, credits,
or deductions, utilized by the electric utility and internet service
provider in association with the provision of middle mile broadband
service;
(L) a demonstration that the revenues received from
the provision of middle mile broadband service under the plan offset
all costs directly attributable to the middle mile broadband service,
including but not limited to, construction, maintenance, operations,
taxes, other costs, and return;
(M) testimony, exhibits, and other evidence that demonstrate
the project will allow for the provision and maintenance of middle
mile broadband service to unserved and underserved areas with a sworn
statement attesting compliance with subsection (e) of this section;
(N) unless otherwise specified, testimony, exhibits,
or other evidence that fully support the information required by subparagraphs
(A) - (M) of this paragraph; and
(O) any other information that the applicant considers
relevant.
(2) Notice and intervention deadline. On or before
the day after an electric utility files its plan, the electric utility
must provide notice in accordance with this paragraph. The notice
must include the docket number assigned to the electric utility's
filed written plan. Within 10 days of the date service of notice is
completed, an electric utility must file, in the docket assigned to
its written plan, proof of notice to the persons or entities specified
under subparagraphs (A) and (B) of this paragraph and a list of such
parties by name specifying whether the person or entity qualifies
as an affected property owner under subsection (b)(1) of this section.
Failure by an electric utility to provide timely notice, as determined
by the presiding officer, will toll the intervention deadline under
subparagraph (E) of this paragraph until the date timely notice is
issued. Affected property owners automatically qualify as intervenors
for proceedings under this section.
(A) Notice to affected property owners under this section
must:
(i) Be sent by first class mail to the last known address
of each affected property owner whose property is listed on the most
recent tax roll of each county authorized to levy property taxes against
the property and, if available, by electronic service.
(ii) Conspicuously state in plain language:
(I) that the electric utility has determined the recipient
is an affected property owner as defined under 16 Texas Administrative
Code §25.218(b)(1) and that the mailing is a notice of intent
to use the utility's easement for middle mile broadband implementation;
(II) the recipient's status as an affected property
owner means the utility's easement or other property right planned
by the utility for the provision of third-party middle mile broadband
service does not include language permitting middle mile broadband
service;
(III) that under PURA Chapter 43 and 16 Texas Administrative
Code §25.218, a utility may implement middle mile broadband service
without modifying or expanding the easement if the affected property
owner does not submit a timely written protest;
(IV) that a written protest may be submitted electronically
in the docket for the middle mile broadband proceeding using the interchange
on the commission's website or mailed with reference to the docket
to Commission's Filing Clerk, Public Utility Commission of Texas,
1701 North Congress Avenue, P.O. Box 13326, Austin, Texas 78711-3326;
(V) the project number for the filing of notice of
written plans and the docket number for utility's specific middle
mile broadband plan;
(VI) that a written protest can be filed for any reason;
(VII) that a written protest is considered timely if
submitted not later than the 60th day from the postmarked date of
the notice;
(VIII) that a submitted written protest can be retracted
at any time by the recipient through a mailed or electronic filing
with the commission in the specified docket, or resolved by written
agreement with the electric utility;
(IX) that other legal authorization could override
the written protest;
(X) an estimated schedule for construction with a statement
that the schedule is subject to change;
(XI) the recipient qualifies as an intervenor and may
seek to intervene in the docket, and that intervention is not the
same as a written protest;
(XII) specify the intervention deadline in accordance
with subparagraph (E) of this paragraph; and
Cont'd... |
