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