2005 Texas Utilities Code CHAPTER 43. USE OF ELECTRIC DELIVERY SYSTEM FOR ACCESS TO BROADBAND AND OTHER ENHANCED SERVICES, INCLUDING COMMUNICATIONS

UTILITIES CODE

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

SUBCHAPTER A. GENERAL PROVISIONS


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005. 

SUBCHAPTER B. DEVELOPMENT OF BPL SYSTEMS


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005. 

SUBCHAPTER C. IMPLEMENTATION OF BPL SYSTEM BY ELECTRIC UTILITY


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005. 

SUBCHAPTER D. MISCELLANEOUS PROVISIONS


	§ 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, § 2, eff. Sept. 1, 
2005. 


	§ 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, § 2, eff. Sept. 1, 
2005.