Amendments for SB19-107
Senate Journal, April 15
After consideration on the merits, the Committee recommends that SB19-107 be amended
as follows, and as so amended, be referred to the Committee on Local Government with
favorable recommendation.
Amend printed bill, strike everything below the enacting clause and
substitute:
"SECTION 1. In Colorado Revised Statutes, add part 6 to article
15 of title 40 as follows:
PART 6
ELECTRIC UTILITY EASEMENTS
40-15-601. Definitions. AS USED IN THIS PART 6, UNLESS THE
CONTEXT OTHERWISE REQUIRES:
(1) "ATTACHED FACILITY" MEANS A BROADBAND FACILITY, AS
DEFINED IN SECTION 38-5.5-102 (2), OR A BROADBAND NETWORK OR ANY
PORTION OF A BROADBAND NETWORK, IN EACH CASE LOCATED
SUBSTANTIALLY:
(a) ABOVEGROUND AND ATTACHED TO AN ELECTRIC UTILITY'S
ELECTRIC SERVICE INFRASTRUCTURE; OR
(b) UNDERGROUND IN AN ELECTRIC EASEMENT AND EXISTING
BEFORE THE DELIVERY OF NOTICE PURSUANT TO SECTION 40-15-602 (2).
(2) "BROADBAND AFFILIATE" MEANS A COMMERCIAL BROADBAND
SUPPLIER THAT IS A SEPARATE LEGAL ENTITY FROM ANY ELECTRIC
UTILITY BUT IS CONTROLLED BY, CONTROLS, OR IS UNDER COMMON
CONTROL WITH AN ELECTRIC UTILITY.
(3) "COMMERCIAL BROADBAND SERVICE" MEANS "BROADBAND
SERVICE", AS THAT TERM IS DEFINED IN SECTION 38-5.5-102 (1), OR
BROADBAND INTERNET SERVICE.
(4) (a) "COMMERCIAL BROADBAND SUPPLIER" MEANS:
(I) A PROVIDER OF BROADBAND INTERNET SERVICE OR AN
EXISTING BROADBAND PROVIDER, AS THAT TERM IS DEFINED IN SECTION
38-5.5-102 (3), OR A PERSON THAT INTENDS TO PROVIDE BROADBAND
INTERNET SERVICE OR BROADBAND SERVICE; OR
(II) A PERSON THAT DIRECTLY OR INDIRECTLY SELLS, LEASES, OR
OTHERWISE TRANSFERS ATTACHED FACILITIES OR A RIGHT TO INSTALL,
OPERATE, MAINTAIN, OR USE ATTACHED FACILITIES FOR ANOTHER
PERSON'S PROVISION OF COMMERCIAL BROADBAND SERVICE OR A PERSON
THAT INTENDS TO SELL, LEASE, OR OTHERWISE TRANSFER ATTACHED
FACILITIES OR A RIGHT TO INSTALL, OPERATE, MAINTAIN, OR USE
ATTACHED FACILITIES.
(b) "COMMERCIAL BROADBAND SUPPLIER" DOES NOT MEAN AN
ELECTRIC UTILITY.
(5) "ELECTRIC EASEMENT" MEANS A RECORDED OR UNRECORDED
EASEMENT, RIGHT-OF-WAY UNDER SECTION 38-4-103 OR OTHERWISE, OR
SIMILAR RIGHT IN OR TO REAL PROPERTY, NO MATTER HOW ACQUIRED,
HELD BY AN ELECTRIC UTILITY FOR THE SITING OF ELECTRIC SERVICE
INFRASTRUCTURE OR FOR THE PURPOSE OF DELIVERING ELECTRIC
SERVICE, REGARDLESS OF WHETHER:
(a) THE EASEMENT OR OTHER RIGHT IS EXCLUSIVELY FOR THE
PROVISION OF ELECTRIC SERVICE OR FOR USE IN CONNECTION WITH
COMMERCIAL BROADBAND SERVICE, TELECOMMUNICATION SERVICE, OR
ANOTHER PURPOSE; OR
(b) THE ELECTRIC UTILITY OR A COMMERCIAL BROADBAND
SUPPLIER USES THE EASEMENT OR OTHER RIGHT TO PROVIDE COMMERCIAL
BROADBAND SERVICE.
(6) "ELECTRIC UTILITY" MEANS A COOPERATIVE ELECTRIC
ASSOCIATION, AS DEFINED IN SECTION 40-9.5-102.
(7) "INTEREST HOLDER" MEANS A PROPERTY OWNER OR OTHER
PERSON WITH AN INTEREST IN THE REAL PROPERTY UPON WHICH AN
ELECTRIC EASEMENT IS LOCATED.
(8) "MEMORANDUM" MEANS A WRITTEN INSTRUMENT THAT
INCLUDES, AT A MINIMUM, THE NAME AND ADDRESS OF THE ELECTRIC
UTILITY, THE DATE ON WHICH THE NOTICE WAS MAILED, AND THE
INFORMATION REQUIRED TO BE INCLUDED IN A NOTICE UNDER SECTION
40-15-602 (2)(b)(III) AND (2)(b)(IV).
(9) "NOTICE" MEANS A WRITTEN LETTER SUBSTANTIALLY
COMPLYING WITH THE REQUIREMENTS SET FORTH IN SECTION 40-15-602
(2)(b), WHICH NOTICE SHALL BE DEEMED DELIVERED ON THE DATE
POSTMARKED OR OTHERWISE TIME STAMPED.
(10) "PERSON" HAS THE MEANING SET FORTH IN SECTION 40-1-102
(10).
(11) "PROPERTY OWNER" MEANS A PERSON WITH A RECORDED FEE
SIMPLE INTEREST IN REAL PROPERTY UPON WHICH AN ELECTRIC EASEMENT
IS LOCATED.
40-15-602. Electric easements - commercial broadband
service - broadband affiliates - notice required. (1) WITH REGARD TO
REAL PROPERTY SUBJECT TO AN ELECTRIC EASEMENT, IF AN ELECTRIC
UTILITY, OR ANY COMMERCIAL BROADBAND SUPPLIER DESIGNATED BY
THE ELECTRIC UTILITY TO ACT ON ITS BEHALF, COMPLIES WITH THE
NOTICE AND FILING REQUIREMENTS SET FORTH IN SUBSECTION (2) OF THIS
SECTION, THE ELECTRIC UTILITY HOLDING THE ELECTRIC EASEMENT MAY,
WITHOUT THE CONSENT OF AN INTEREST HOLDER IN THE REAL PROPERTY
SUBJECT TO THE ELECTRIC EASEMENT, TAKE THE FOLLOWING ACTIONS TO
THE EXTENT NOT ALREADY PERMITTED BY THE ELECTRIC EASEMENT:
(a) INSTALL, MAINTAIN, OR OWN, OR PERMIT ANY COMMERCIAL
BROADBAND SUPPLIER, INCLUDING A BROADBAND AFFILIATE, TO INSTALL,
MAINTAIN, OR OWN AN ATTACHED FACILITY FOR EXTERNAL USE AND
OPERATION BY A COMMERCIAL BROADBAND SUPPLIER, INCLUDING A
BROADBAND AFFILIATE, IN PROVIDING COMMERCIAL BROADBAND
SERVICE; AND
(b) LEASE OR OTHERWISE PROVIDE TO A COMMERCIAL
BROADBAND SUPPLIER, INCLUDING A BROADBAND AFFILIATE, ANY EXCESS
CAPACITY OF ATTACHED FACILITIES FOR PURPOSES OF PROVIDING
COMMERCIAL BROADBAND SERVICE.
(2) (a) AT LEAST THIRTY DAYS BEFORE FIRST EXERCISING ITS
RIGHTS UNDER ONE OR BOTH OF SUBSECTION (1)(a) OR (1)(b) OF THIS
SECTION WITH RESPECT TO AN ELECTRIC EASEMENT OR PORTION OF AN
ELECTRIC EASEMENT, AN ELECTRIC UTILITY OR ITS DESIGNATED
COMMERCIAL BROADBAND SUPPLIER MUST SEND NOTICE TO EACH
PROPERTY OWNER THAT HOLDS AN INTEREST IN THE REAL PROPERTY
SUBJECT TO THE ELECTRIC EASEMENT AND MUST FILE A MEMORANDUM IN
THE OFFICE OF THE COUNTY CLERK AND RECORDER IN EACH COUNTY IN
WHICH THE ELECTRIC UTILITY IS EXERCISING ITS RIGHTS UNDER
SUBSECTION (1) OF THIS SECTION. IF, WITHIN ONE YEAR AFTER DELIVERY
OF NOTICE PURSUANT TO THIS SUBSECTION (2), AN ELECTRIC UTILITY HAS
NOT COMMENCED ENGAGING IN ANY OF THE ACTIONS SET FORTH IN
SUBSECTION (1) OF THIS SECTION, INCLUDING THE COMMENCEMENT OF
CONSTRUCTING A NEW INSTALLATION, THE ELECTRIC UTILITY OR
DESIGNATED COMMERCIAL BROADBAND SUPPLIER MUST REDELIVER
NOTICE PURSUANT TO THIS SUBSECTION (2) BEFORE EXERCISING ITS
RIGHTS UNDER SUBSECTION (1) OF THIS SECTION. IF AN ELECTRIC UTILITY
OR ITS DESIGNATED COMMERCIAL BROADBAND SUPPLIER FAILS TO
DELIVER SUFFICIENT NOTICE IN ACCORDANCE WITH THIS SUBSECTION (2),
IT MAY ONLY COMMENCE EXERCISING ITS RIGHTS UNDER SUBSECTION (1)
OF THIS SECTION UPON SUBSEQUENT DELIVERY OF SUFFICIENT NOTICE, AT
WHICH TIME THE ONE-YEAR PERIOD WILL COMMENCE.
(b) A LETTER PROVIDING NOTICE PURSUANT TO THIS SUBSECTION
(2) MUST:
(I) BE SENT BY FIRST-CLASS MAIL FROM OR ON BEHALF OF THE
ELECTRIC UTILITY TO THE INTEREST HOLDER AT THE LAST KNOWN
ADDRESS BASED ON THE ELECTRIC UTILITY'S RECORDS OR THE ADDRESS
LISTED FOR THE PROPERTY IN THE RECORDS OF THE OFFICE OF THE
COUNTY CLERK AND RECORDER;
(II) INCLUDE THE NAME, ADDRESS, TELEPHONE NUMBER, AND
NAMED POINT OF CONTACT FOR THE ELECTRIC UTILITY AND, IF DELIVERED
BY A COMMERCIAL BROADBAND SUPPLIER DESIGNATED BY THE ELECTRIC
UTILITY, THE NAME, ADDRESS, TELEPHONE NUMBER, AND NAMED POINT
OF CONTACT FOR THE DESIGNATED COMMERCIAL BROADBAND SUPPLIER;
(III) INCLUDE THE PROPERTY ADDRESS AND APPROXIMATE
LOCATION OF THE ELECTRIC EASEMENT, WHICH NEED NOT INCLUDE A
LEGAL DESCRIPTION, LAND TITLE SURVEY, PLAT, OR OTHER DESIGNATION
OF THE EXACT BOUNDARIES OF THE ELECTRIC EASEMENT;
(IV) INCLUDE:
(A) A CITATION TO THIS PART 6; AND
(B) A COPY OF THE LANGUAGE OF SUBSECTION (1) OF THIS
SECTION WITH AN INDICATION OF WHETHER THE ELECTRIC UTILITY IS
EXERCISING RIGHTS UNDER ONE OR MORE OF SUBSECTION (1)(a) OR (1)(b)
OF THIS SECTION;
(V) GIVE AN ESTIMATED TIME FOR THE START OF INSTALLATION
OR CONSTRUCTION WITH REGARD TO ANY NEW INSTALLATION OR
CONSTRUCTION THAT WILL OCCUR IN CONNECTION WITH THE EXERCISE OF
RIGHTS UNDER SUBSECTION (1) OF THIS SECTION;
(VI) INCLUDE A STATEMENT REGARDING THE RIGHT AND
OBLIGATION OF THE ELECTRIC UTILITY, OR ITS DESIGNATED COMMERCIAL
BROADBAND SUPPLIER, TO RECORD A MEMORANDUM; AND
(VII) INCLUDE A STATEMENT REGARDING THE STATUTE OF
LIMITATIONS FOR THE INTEREST HOLDER TO FILE A CLAIM WITH RESPECT
TO THE ELECTRIC UTILITY'S EXERCISE OF RIGHTS.
(3) UPON EXERCISE OF THE RIGHTS SET FORTH IN SUBSECTION (1)
OF THIS SECTION, THE RIGHTS RUN WITH THE LAND AND ARE ASSIGNABLE
BY THE ELECTRIC UTILITY.
(4) AN ELECTRIC UTILITY SHALL NOT DIRECTLY PROVIDE RETAIL
COMMERCIAL BROADBAND SERVICE BUT MAY CAUSE OR ALLOW A
BROADBAND AFFILIATE TO OFFER RETAIL COMMERCIAL BROADBAND
SERVICE. AS LONG AS AN ELECTRIC UTILITY MAINTAINS ITS EXCLUSIVE
RIGHT TO PROVIDE ELECTRIC SERVICE TO CUSTOMERS WITHIN ITS
EXCLUSIVE SERVICE TERRITORY, BOTH THE ELECTRIC UTILITY THAT HAS
A BROADBAND AFFILIATE AND THE BROADBAND AFFILIATE SHALL:
(a) MAINTAIN OR CAUSE TO BE MAINTAINED AN ACCOUNTING
SYSTEM FOR THE BROADBAND AFFILIATE SEPARATE FROM THE ELECTRIC
UTILITY'S ACCOUNTING SYSTEM, USING GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES OR ANOTHER REASONABLE AND CUSTOMARY
ALLOCATION METHOD;
(b) CAUSE A FINANCIAL AUDIT TO BE PERFORMED BY AN
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT, WITHIN TWO YEARS AFTER
COMMENCEMENT OF COMMERCIAL OPERATION OF RETAIL COMMERCIAL
BROADBAND SERVICE AND AT LEAST ONCE EVERY TWO YEARS
THEREAFTER, WITH RESPECT TO THE BROADBAND AFFILIATE'S PROVISION
OF COMMERCIAL BROADBAND SERVICE, INCLUDING AN AUDIT OF THE
ALLOCATION OF COSTS FOR PROPERTY AND SERVICES THAT ARE USED IN
BOTH THE PROVISION OF COMMERCIAL BROADBAND SERVICE AND THE
ELECTRIC UTILITY'S PROVISION OF ELECTRIC SERVICE; AND
(c) (I) NOT CAUSE OR ALLOW THE ELECTRIC UTILITY TO USE ITS
EXCLUSIVE RIGHT TO PROVIDE ELECTRIC SERVICES WITHIN ITS EXCLUSIVE
TERRITORY TO DIRECTLY OR INDIRECTLY CROSS-SUBSIDIZE THE
BROADBAND AFFILIATE OR ITS PROVISION OF COMMERCIAL BROADBAND
SERVICE, WHETHER BY DISCRIMINATORY OR BELOW FAIR MARKET VALUE
PRICING; PAYMENT OF CAPITAL OR OPERATING COSTS PROPERLY CHARGED
TO THE BROADBAND AFFILIATE UNDER APPLICABLE ACCOUNTING RULES;
USE OF ANY REVENUE FROM OR SUBSIDY FOR THE PROVISION OF ELECTRIC
SERVICE TO SUPPORT COMMERCIAL BROADBAND SERVICE, EXCEPT IN
CONNECTION WITH THE ELECTRIC UTILITY'S PROVISION OF ELECTRICITY;
OR OTHERWISE.
(II) NOTHING IN THIS SUBSECTION (4)(c) PROHIBITS AN ELECTRIC
UTILITY FROM:
(A) ENTERING INTO A TRANSACTION WITH A BROADBAND
AFFILIATE ON TERMS AND CONDITIONS SUBSTANTIALLY SIMILAR TO THOSE
THAT WOULD BE AGREED TO BETWEEN TWO SIMILARLY SITUATED PARTIES
IN AN ARM'S LENGTH COMMERCIAL TRANSACTION; OR
(B) PROVIDING REDUCED-COST COMMERCIAL BROADBAND
SERVICE TO LOW-INCOME RETAIL CUSTOMERS.
(5) THE TERMS AND CONDITIONS OF A WRITTEN ELECTRIC
EASEMENT APPLY TO AN ELECTRIC UTILITY'S USES OF THE ELECTRIC
EASEMENT SET FORTH IN SUBSECTION (1) OF THIS SECTION, EXCEPT TO THE
EXTENT THAT THOSE TERMS AND CONDITIONS PROHIBIT OR HAVE THE
EFFECT OF PROHIBITING OR MATERIALLY IMPAIRING THE ELECTRIC
UTILITY'S EXERCISE OF RIGHTS UNDER SUBSECTION (1) OF THIS SECTION.
A PROHIBITION ON ABOVEGROUND ELECTRIC SERVICE INFRASTRUCTURE
CONTAINED WITHIN A WRITTEN ELECTRIC EASEMENT CONSTITUTES A
PROHIBITION ON ABOVEGROUND ATTACHED FACILITIES.
(6) NOTHING IN THIS PART 6 REQUIRES AN ELECTRIC UTILITY TO
COMPLY WITH SUBSECTION (2) OF THIS SECTION IN ORDER TO TAKE ANY
ACTION OR EXERCISE ANY RIGHT UNDER AN ELECTRIC EASEMENT THAT IS
ALREADY PERMITTED BY THE TERMS OF THE ELECTRIC EASEMENT.
40-15-603. Statute of limitations - damages - limitations on
damages. (1) (a) NO CLAIM OR CAUSE OF ACTION AGAINST AN ELECTRIC
UTILITY OR A COMMERCIAL BROADBAND SUPPLIER CONCERNING THE
ELECTRIC UTILITY'S OR COMMERCIAL BROADBAND SUPPLIER'S EXERCISE
OF RIGHTS UNDER THIS PART 6 OR ANY ACTIONS THAT THE ELECTRIC
UTILITY OR COMMERCIAL BROADBAND SUPPLIER TAKES BEFORE THE
EFFECTIVE DATE OF THIS SECTION THAT, IF TAKEN AFTER THE EFFECTIVE
DATE OF THIS SECTION, WOULD BE AUTHORIZED UNDER SECTION
40-15-602 (1) MAY BE BROUGHT BY OR ON BEHALF OF AN INTEREST
HOLDER MORE THAN TWO YEARS AFTER THE LATEST OF:
(I) THE EFFECTIVE DATE OF THIS SECTION;
(II) THE DATE OF DELIVERY OF NOTICE PURSUANT TO SECTION
40-15-602 (2); OR
(III) THE DATE OF RECORDING OF A MEMORANDUM PURSUANT TO
SECTION 40-15-602 (2).
(b) SUBSECTION (1)(a) OF THIS SECTION DOES NOT APPLY TO A
CLAIM OR CAUSE OF ACTION BASED SOLELY ON DAMAGE TO PROPERTY OR
BREACH OF THE TERMS AND CONDITIONS OF A WRITTEN ELECTRIC
EASEMENT AS THE TERMS AND CONDITIONS APPLY IN ACCORDANCE WITH
SECTION 40-15-602 (5).
(c) NOTHING IN THIS SECTION 40-15-603 EXTENDS THE
STATUTORY LIMITATION PERIOD APPLICABLE TO A CLAIM OR REVIVES AN
EXPIRED CLAIM.
(2) A CLAIM OR CAUSE OF ACTION SHALL NOT BE BROUGHT BY OR
ON BEHALF OF AN INTEREST HOLDER AGAINST A COMMERCIAL
BROADBAND SUPPLIER FOR ACTIONS THAT THE COMMERCIAL BROADBAND
SUPPLIER HAS TAKEN UNDER SECTION 40-15-602 (2) AN ELECTRIC
UTILITY.
(3) IF AN INTEREST HOLDER BRINGS A TRESPASS CLAIM, INVERSE
CONDEMNATION CLAIM, OR ANY OTHER CLAIM OR CAUSE OF ACTION FOR
AN ELECTRIC UTILITY'S OR COMMERCIAL BROADBAND SUPPLIER'S
EXERCISE OF RIGHTS OR PERFORMANCE OF ACTIONS DESCRIBED IN
SUBSECTION (1) OF THIS SECTION, THE FOLLOWING APPLIES TO THE CLAIM
OR CAUSE OF ACTION:
(a) THE MEASURE OF DAMAGES FOR ALL SUCH CLAIMS, TAKEN
TOGETHER, IS THE FAIR MARKET VALUE OF THE REDUCTION IN VALUE OF
THE INTEREST HOLDER'S INTEREST IN THE REAL PROPERTY, AS
CONTEMPLATED BY SECTION 38-1-121 (1). IN DETERMINING OR
PROVIDING THE FAIR MARKET VALUE UNDER THIS SUBSECTION (3)(a):
(I) THE FOLLOWING SHALL NOT BE USED AND ARE NOT ADMISSIBLE
AS EVIDENCE IN ANY PROCEEDING:
(A) PROFITS, FEES, OR REVENUE DERIVED FROM THE ATTACHED
FACILITIES; OR
(B) THE RENTAL VALUE OF THE REAL PROPERTY INTEREST OR THE
ELECTRIC EASEMENT, INCLUDING THE RENTAL VALUE OF ANY ATTACHED
FACILITIES OR AN ASSEMBLED BROADBAND CORRIDOR; AND
(II) CONSIDERATION MUST BE GIVEN TO ANY INCREASE IN VALUE
TO THE REAL PROPERTY INTEREST RESULTING FROM THE AVAILABILITY OF
COMMERCIAL BROADBAND SERVICE TO THE REAL PROPERTY UNDERLYING
THE REAL PROPERTY INTEREST THAT ARISES FROM THE INSTALLATION OF
ATTACHED FACILITIES.
(b) THE INTEREST HOLDER MUST MAKE REASONABLE
ACCOMMODATIONS FOR THE ELECTRIC UTILITY OR COMMERCIAL
BROADBAND SUPPLIER TO PERFORM AN APPRAISAL OR INSPECTION OF THE
REAL PROPERTY WITHIN NINETY DAYS FOLLOWING ANY WRITTEN REQUEST
FOR AN APPRAISAL OR INSPECTION. IF AN INTEREST HOLDER FAILS TO
MAKE SUCH ACCOMMODATIONS, THE ELECTRIC UTILITY OR COMMERCIAL
BROADBAND SUPPLIER HAS NO FURTHER LIABILITY TO THE INTEREST
HOLDER.
(c) ANY DAMAGES FOR THE EXERCISE OF RIGHTS OR ACTIONS SET
FORTH IN SUBSECTION (1) OF THIS SECTION:
(I) EXCEPT AS PROVIDED IN SUBSECTION (3)(c)(III) OF THIS
SECTION, ARE LIMITED TO THOSE DAMAGES THAT EXISTED AT THE TIME
THAT THE ELECTRIC UTILITY OR COMMERCIAL BROADBAND SUPPLIER
FIRST EXERCISED THE RIGHTS OR PERFORMED THE ACTIONS;
(II) SHALL NOT BE DEEMED TO CONTINUE, ACCRUE, OR
ACCUMULATE; AND
(III) MAY INCLUDE ADDITIONAL DAMAGES FOR ANY PHYSICAL
DAMAGE TO PROPERTY OR BREACH OF THE TERMS AND CONDITIONS OF A
WRITTEN ELECTRIC EASEMENT AS THE TERMS AND CONDITIONS APPLY
AFTER GIVING EFFECT TO SECTION 40-15-602 (5).
(d) (I) EXCEPT FOR AN ELECTRIC UTILITY'S OR COMMERCIAL
BROADBAND SUPPLIER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
OR IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF A WRITTEN
ELECTRIC EASEMENT AS THE TERMS AND CONDITIONS APPLY IN
ACCORDANCE WITH SECTION 40-15-602 (5), AN INTEREST HOLDER IS NOT
ENTITLED TO REIMBURSEMENT FROM AN ELECTRIC UTILITY OR
COMMERCIAL BROADBAND SUPPLIER FOR THE COST OF ANY APPRAISAL,
ATTORNEY FEES, OR AWARD FOR SPECIAL, CONSEQUENTIAL, INDIRECT, OR
PUNITIVE DAMAGES.
(II) FOR PURPOSES OF THIS SUBSECTION (3)(d), ANY ACTION OR
FAILURE TO ACT BY AN ELECTRIC UTILITY OR COMMERCIAL BROADBAND
SUPPLIER IN FURTHERANCE OF THE ELECTRIC UTILITY'S OR COMMERCIAL
BROADBAND SUPPLIER'S EXERCISE OF RIGHTS SET FORTH IN SECTION
40-15-602 (1) SHALL NOT BE DEEMED GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
(4) BY ACCEPTING A DAMAGE AWARD UNDER THIS SECTION OTHER
THAN A DAMAGE AWARD UNDER SUBSECTION (3)(c)(III) OF THIS SECTION,
AN INTEREST HOLDER SHALL BE DEEMED TO HAVE GRANTED AN
EASEMENT, EQUAL IN DURATION TO THE TERM OF THE ELECTRIC
EASEMENT AND SUBJECT TO SECTION 40-15-602 (5),TO THE EXTENT OF
THE INTEREST HOLDER'S RIGHTS IN THE REAL PROPERTY, FOR ALL OF THE
USES OF THE REAL PROPERTY AND ACTIONS SET FORTH IN SECTION
40-15-602 (1).
40-15-604. Electric utility obligations. (1) AN ELECTRIC
UTILITY THAT EXERCISES ANY RIGHTS UNDER SECTION 40-15-602 (1)(a)
OR (1)(b) FOR THE PROVISION OF COMMERCIAL BROADBAND SERVICE OR
THAT HAS A BROADBAND AFFILIATE SHALL NOT DISCRIMINATE AMONG
COMMERCIAL BROADBAND SUPPLIERS, INCLUDING BROADBAND
AFFILIATES, IN OFFERING OR GRANTING RIGHTS TO INSTALL OR ATTACH
ANY ATTACHED FACILITIES OR IN LEASING OR USING CAPACITY OF ANY
ATTACHED FACILITIES.
(2) AN ELECTRIC UTILITY THAT HAS A BROADBAND AFFILIATE
AND, IF APPLICABLE, THE BROADBAND AFFILIATE SHALL:
(a) CHARGE RECURRING FEES NOT EXCEEDING ANY FEES IN
ACCORDANCE WITH RATES THAT APPLY TO ATTACHMENTS TO POLES
UNDER SECTION 224 (e) OF THE FEDERAL "COMMUNICATIONS ACT OF
1934", AS AMENDED, AND THE FCC'S REGULATIONS AND POLICIES
IMPLEMENTING THE FEDERAL ACT CONCERNING POLE ATTACHMENT RATES
THAT APPLY TO INVESTOR-OWNED UTILITIES, AS SET FORTH IN 47 CFR
1.1406, TO ALL COMMERCIAL BROADBAND SUPPLIERS FOR ATTACHMENTS
ON A POLE OR ELECTRIC SERVICE INFRASTRUCTURE THAT IS OWNED OR
CONTROLLED BY THE ELECTRIC UTILITY OR BROADBAND AFFILIATE;
EXCEPT THAT, IF AN ELECTRIC UTILITY DEMONSTRATES WITH COMPETENT
EVIDENCE THAT IT CANNOT RECOVER ALL OF ITS INCREMENTAL CAPITAL
AND OPERATING COSTS OF PROVIDING THE POLE ATTACHMENT THROUGH
THE RATES AND ANY APPLICABLE ONE-TIME CHARGES, THE ELECTRIC
UTILITY MAY CHARGE A HIGHER RATE TO COMMERCIAL BROADBAND
SUPPLIERS ON A NONDISCRIMINATORY BASIS TO THE EXTENT REQUIRED TO
RECOVER THE INCREMENTAL COSTS;
(b) PROVIDE ALL COMMERCIAL BROADBAND SUPPLIERS ACCESS TO
ALL POLES OR ELECTRIC SERVICE INFRASTRUCTURE OWNED BY THE
ELECTRIC UTILITY OR BROADBAND AFFILIATE FOR THE PURPOSE OF
ATTACHING EQUIPMENT FOR THE PROVISION OF COMMERCIAL BROADBAND
SERVICE. ACCESS PROVIDED IN ACCORDANCE WITH THIS SUBSECTION
(2)(b) MUST BE PROVIDED:
(I) ON A JUST, REASONABLE, AND NONDISCRIMINATORY BASIS AND
IN A MANNER CONSISTENT WITH THE REGULATORY OBLIGATIONS SET
FORTH IN FCC REGULATIONS REGARDING INVESTOR-OWNED UTILITY POLE
OWNERS; AND
(II) UNDER TERMS AND CONDITIONS THAT ARE NO LESS
FAVORABLE THAN THE TERMS AND CONDITIONS OFFERED TO BROADBAND
AFFILIATES, INCLUDING TERMS AND CONDITIONS REGARDING APPLICATION
REQUIREMENTS, TECHNICAL REQUIREMENTS, ELECTRIC LINEWORKER
HEALTH AND SAFETY REQUIREMENTS, ADMINISTRATIVE FEES, TIMELINES,
AND MAKE-READY REQUIREMENTS; AND
(c) CHARGE FEES TO COMMERCIAL BROADBAND SUPPLIERS FOR
LEASE OR USE OF ATTACHED FACILITIES OWNED OR CONTROLLED BY THE
ELECTRIC UTILITY UNDER JUST, REASONABLE, AND NONDISCRIMINATORY
TERMS AND CONDITIONS, INCLUDING FEES THAT ARE EQUAL TO OR LESS
THAN THE FEES THAT THE ELECTRIC UTILITY CHARGES TO ITS BROADBAND
AFFILIATES.
(3) SUBJECT TO THE REQUIREMENTS OF SUBSECTION (1) OF THIS
SECTION, NOTHING IN THIS SECTION REQUIRES AN ELECTRIC UTILITY TO
OFFER OR GRANT A RIGHT TO ACCESS OR USE AN ELECTRIC EASEMENT OR
TO USE ATTACHED FACILITIES OR ELECTRIC SERVICE INFRASTRUCTURE
OWNED OR CONTROLLED BY THE ELECTRIC UTILITY IN A MANNER THAT
WOULD MATERIALLY INTERFERE WITH THE ELECTRIC UTILITY'S
CONSTRUCTION, MAINTENANCE, OR USE OF ANY ELECTRIC UTILITY
INFRASTRUCTURE FOR THE PROVISION OF ELECTRIC SERVICE.
(4) (a) AN ELECTRIC UTILITY WITH A BROADBAND AFFILIATE
SHALL NOT UNREASONABLY WITHHOLD AUTHORIZATION OR DELAY ITS
DECISION WHETHER TO PROVIDE AUTHORIZATION TO A COMMERCIAL
BROADBAND SUPPLIER TO INSTALL, MAINTAIN, OWN, OPERATE, OR USE
ATTACHED FACILITIES ON ELECTRIC SERVICE INFRASTRUCTURE OWNED OR
CONTROLLED BY THE ELECTRIC UTILITY. AN ELECTRIC UTILITY MAY ONLY
WITHHOLD AUTHORIZATION PURSUANT TO THIS SUBSECTION (4) IF THE
REASON FOR WITHHOLDING AUTHORIZATION IS THAT:
(I) THERE IS INSUFFICIENT CAPACITY FOR THE ATTACHED
FACILITIES; OR
(II) CONCERNS OF SAFETY OR RELIABILITY OR GENERALLY
APPLICABLE ENGINEERING PURPOSES WEIGH AGAINST GRANTING THE
AUTHORIZATION.
(b) AN ELECTRIC UTILITY THAT WITHHOLDS AUTHORIZATION
PURSUANT TO THIS SUBSECTION (4) SHALL PROMPTLY NOTIFY THE
COMMERCIAL BROADBAND SUPPLIER IN WRITING OF THE REASONS FOR
WITHHOLDING AUTHORIZATION.
(5) UPON REQUEST OF A COMMERCIAL BROADBAND SUPPLIER, AN
ELECTRIC UTILITY AND ANY BROADBAND AFFILIATE SUBJECT TO THIS
SECTION SHALL CAUSE AN OFFICER OF THE ELECTRIC UTILITY AND AN
OFFICER OF THE BROADBAND AFFILIATE TO CERTIFY THAT THE ELECTRIC
UTILITY AND THE BROADBAND AFFILIATE, RESPECTIVELY, ARE IN
COMPLIANCE WITH THIS SECTION AND SECTION 40-15-602 (4)(b). IF A
DISPUTE ARISES IN A COURT OF COMPETENT JURISDICTION BETWEEN AN
ELECTRIC UTILITY OR ITS BROADBAND AFFILIATE AND AN UNAFFILIATED
COMMERCIAL BROADBAND SUPPLIER:
(a) REGARDING MATTERS ADDRESSED IN THIS PART 6, THE PARTIES
TO THE DISPUTE HAVE STANDING TO FILE A CLAIM OR CAUSE OF ACTION
IN ANY COURT OF COMPETENT JURISDICTION IN THE STATE; AND
(b) THE FOLLOWING ARE DISCOVERABLE AND ADMISSIBLE AS
EVIDENCE IN COURT REGARDING THE ELECTRIC UTILITY'S AND ITS
BROADBAND AFFILIATE'S COMPLIANCE WITH THIS SECTION:
(I) ANY CERTIFICATION REQUESTED AND PRODUCED PURSUANT TO
THIS SUBSECTION (5);
(II) THE TERMS AND CONDITIONS APPLIED TO THE ELECTRIC
UTILITY'S OR BROADBAND AFFILIATE'S OFFER TO OR GRANT OF A RIGHT TO
THE UNAFFILIATED COMMERCIAL BROADBAND SUPPLIER TO INSTALL,
MAINTAIN, OWN, OPERATE, OR USE ATTACHED FACILITIES; AND
(III) ANY AUDIT REQUIRED TO BE PERFORMED PURSUANT TO
SECTION 40-15-602 (4)(b).
(6) NOTWITHSTANDING ANY PROVISION OF THIS PART 6 TO THE
CONTRARY, AN ELECTRIC UTILITY THAT IS SUBJECT TO REGULATION
UNDER 47 U.S.C. SEC. 224, AS AMENDED, AND THE FCC REGULATIONS
PROMULGATED PURSUANT TO THAT FEDERAL LAW, IS NOT SUBJECT TO
THIS SECTION.
(7) NOTHING IN THIS PART 6:
(a) SUBJECTS AN ELECTRIC UTILITY TO REGULATION BY THE FCC;
(b) CONSTITUTES AN EXERCISE OF, OR AN OBLIGATION OR
INTENTION TO EXERCISE, THE RIGHT OF THE STATE UNDER 47 U.S.C. SEC.
224 (c) TO REGULATE THE RATES, TERMS, AND CONDITIONS FOR POLE
ATTACHMENTS, AS DEFINED IN 47 U.S.C. SEC. 224 (a)(4); OR
(c) CONSTITUTES A CERTIFICATION, OR AN OBLIGATION OR
INTENTION TO CERTIFY, TO THE FCC UNDER 47 U.S.C. SEC. 224.
SECTION 2. In Colorado Revised Statutes, amend 38-4-103 as
follows:
38-4-103. Electric power companies. (1) Any foreign or
domestic corporation organized or chartered for the purpose, among
other things, of conducting and maintaining electric power transmission
lines for providing power or light by means of electricity for hire shall
have HAS a right-of-way for the construction, operation, and maintenance
of such electric power transmission lines through any patented or
unpatented mine or mining claim or other land without the consent of the
owner thereof OF THE PATENTED OR UNPATENTED MINE OR MINING CLAIM
OR OTHER LAND, if such THE right-of-way is necessary for the purposes
proposed.
(2) AN ELECTRIC UTILITY, AS DEFINED IN SECTION 40-15-601 (6),
EXERCISING ITS RIGHTS UNDER SUBSECTION (1) OF THIS SECTION MAY, IN
ACCORDANCE WITH PART 6 OF ARTICLE 15 OF TITLE 40:
(a) INSTALL OR ALLOW THE INSTALLATION OF ANY ATTACHED
FACILITY, AS THAT TERM IS DEFINED IN SECTION 40-15-601 (1); AND
(b) EXERCISE ANY RIGHTS AVAILABLE TO THE ELECTRIC UTILITY
UNDER PART 6 OF ARTICLE 15 OF TITLE 40 IN CONNECTION WITH THE
INSTALLATION.
SECTION 3. In Colorado Revised Statutes, amend 38-5-103 as
follows:
38-5-103. Power of companies to contract. (1) Such AN
electric light power, gas, or pipeline company or such A city or town shall
have power to MAY contract with any person or corporation, the owner
of any lands LAND or any franchise, easement, or interest therein ON THE
LAND over or under which the line of electric light wire power or pipeline
is proposed to be laid or created for the right-of-way for the construction,
maintenance, and operation of its electric light wires, pipes, poles,
regulator stations, substations, or other property and for the erection,
maintenance, occupation, and operation of offices at suitable distances
for the public accommodation.
(2) AN ELECTRIC UTILITY, AS DEFINED IN SECTION 40-15-601 (6),
EXERCISING ITS RIGHTS UNDER SUBSECTION (1) OF THIS SECTION MAY, IN
ACCORDANCE WITH PART 6 OF ARTICLE 15 OF TITLE 40, INSTALL OR
ALLOW THE INSTALLATION OF ANY ATTACHED FACILITY FOR COMMERCIAL
BROADBAND SERVICE, AS THOSE TERMS ARE DEFINED IN SECTION
40-15-601 (1) AND (3), RESPECTIVELY.
SECTION 4. Act subject to petition - effective date. This act
takes effect at 12:01 a.m. on the day following the expiration of the
ninety-day period after final adjournment of the general assembly
(August 2, 2019, if adjournment sine die is on May 3, 2019); except that,
if a referendum petition is filed pursuant to section 1 (3) of article V of
the state constitution against this act or an item, section, or part of this act
within such period, then the act, item, section, or part will not take effect
unless approved by the people at the general election to be held in
November 2020 and, in such case, will take effect on the date of the
official declaration of the vote thereon by the governor.".
Senate Journal, April 23
SB19-107 by Senator(s) Donovan; --Concerning the installation of broadband internet service
infrastructure.
Amendment No. 1, Business, Labor & Technology Committee Amendment.
(Printed in Senate Journal, April 15, pages 849-855 and placed in members' bill files.)
Amendment No. 2(L.002), by Senator Donovan.
Amend the Business, Labor, and Technology Committee Report, dated
April 15, 2019, page 2, line 13, strike "MEAN" and substitute "INCLUDE".
Page 2, line 17, after "PROPERTY," insert "INCLUDING PRESCRIPTIVE
RIGHTS,".
Page 3, after line 5 insert:
"(12) "REQUEST FOR NOTICE" MEANS A WRITTEN INSTRUMENT
RECORDED BY AN INTEREST HOLDER IN COMPLIANCE WITH THE
REQUIREMENTS SET FORTH IN SECTION 40-15-602 (2)(c).".
Page 3, line 12, before "WITHOUT" insert "SUBJECT TO SUBSECTION (4) OF
THIS SECTION AND".
Page 3, strike line 32 and substitute "SUBJECT TO THE ELECTRIC
EASEMENT AND ANY OTHER INTEREST HOLDER THAT HAS RECORDED A
REQUEST FOR NOTICE AND MUST RECORD A MEMORANDUM IN".
Page 3, strike lines 35 through 41 and substitute "SUBSECTION (1) OF THIS
SECTION.".
Page 4, strike lines 1 through 13 and substitute "AN ELECTRIC UTILITY OR
ITS DESIGNATED COMMERCIAL BROADBAND SUPPLIER MUST COMPLY WITH
ANY NOTICE REQUIREMENTS CONTAINED IN A WRITTEN ELECTRIC
EASEMENT BEFORE ENTERING THE REAL PROPERTY SUBJECT TO THE
ELECTRIC EASEMENT OR COMMENCING ANY CONSTRUCTION OR
INSTALLATION IN CONNECTION WITH THE EXERCISE OF RIGHTS UNDER
SUBSECTION (1) OF THIS SECTION. AN ELECTRIC UTILITY OR ITS
DESIGNATED COMMERCIAL BROADBAND SUPPLIER MAY ONLY COMMENCE
EXERCISING ITS RIGHTS UNDER SUBSECTION (1) OF THIS SECTION UPON
DELIVERY OF SUFFICIENT NOTICE.
(b) A LETTER PROVIDING NOTICE PURSUANT TO THIS SUBSECTION
(2) MUST:
(I) BE SENT BY CERTIFIED MAIL FROM OR ON BEHALF OF THE
ELECTRIC UTILITY TO THE PROPERTY OWNER AND ANY INTEREST HOLDER
THAT HAS RECORDED A REQUEST FOR NOTICE AT EACH OF THE
FOLLOWING, AS APPLICABLE:
(A) THE LAST KNOWN ADDRESS FOR THE PROPERTY OWNER BASED
ON THE ELECTRIC UTILITY'S RECORDS;
(B) THE ADDRESS LISTED FOR THE PROPERTY OWNER IN THE
RECORDS OF THE OFFICE OF THE COUNTY ASSESSOR; AND
(C) THE ADDRESS SET FORTH IN A REQUEST FOR NOTICE;".
Page 4, line 19, strike "ADDRESS AND" and substitute "ADDRESS; THE
RECORDED NUMBER, IF ANY, OF THE ELECTRIC EASEMENT OR RECORDED
MEMORANDUM OF THE ELECTRIC EASEMENT; A GENERAL DESCRIPTION OF
ANY EXISTING ELECTRIC SERVICE INFRASTRUCTURE CURRENTLY LOCATED
IN THE ELECTRIC EASEMENT; AND THE".
Page 4, line 27, strike "MORE" and substitute "BOTH".
Page 4, after line 38 insert:
"(c) AN INTEREST HOLDER THAT DESIRES TO OBTAIN NOTICE
UNDER THIS PART 6 AT A SPECIFIC ADDRESS MAY FILE IN THE OFFICE OF
THE COUNTY CLERK AND RECORDER FOR THE COUNTY IN WHICH THE REAL
PROPERTY IS SITUATED A REQUEST FOR NOTICE THAT IDENTIFIES THE
INTEREST HOLDER'S NAME AND ADDRESS, THE INSTRUMENT GRANTING
THE INTEREST HOLDER'S INTEREST IN THE PROPERTY, AND THE RECORDING
NUMBER OF THE INSTRUMENT OR A RECORDED MEMORANDUM OF THE
INSTRUMENT.".
Page 5, strike lines 1 through 40.
Renumber succeeding subsections accordingly.
Page 6, strike lines 2 through 4 and substitute "EASEMENT SET FORTH IN
SUBSECTION (1) OF THIS SECTION, EXCEPT THOSE TERMS AND CONDITIONS
THAT WOULD PROHIBIT THE ELECTRIC".
Page 6, strike lines 8 through 12 and substitute "PROHIBITION ON
ABOVEGROUND ATTACHED FACILITIES. IN CONNECTION WITH THE
EXERCISE OF RIGHTS UNDER SUBSECTION (1) OF THIS SECTION, AN
ELECTRIC UTILITY OR ITS DESIGNATED COMMERCIAL BROADBAND
SUPPLIER MUST COMPLY WITH ANY NOTICE REQUIREMENTS CONTAINED IN
A WRITTEN ELECTRIC EASEMENT HELD BY THE ELECTRIC UTILITY RELATED
TO ENTERING THE REAL PROPERTY SUBJECT TO THE ELECTRIC EASEMENT
OR COMMENCING ANY CONSTRUCTION OR INSTALLATION ON THE REAL
PROPERTY.
(5) NOTHING IN THIS PART 6 REQUIRES AN ELECTRIC UTILITY TO
COMPLY WITH SUBSECTION (2) OF THIS SECTION IN ORDER TO TAKE ANY
ACTION OR EXERCISE ANY RIGHTS UNDER AN ELECTRIC EASEMENT THAT
IS ALREADY PERMITTED WITHIN THE SCOPE OF THE ELECTRIC EASEMENT.
UNLESS EXPRESSLY PROHIBITED BY THE TERMS OF AN ELECTRIC
EASEMENT, AN ELECTRIC EASEMENT WILL BE DEEMED TO ALLOW AN
ELECTRIC UTILITY TO INSTALL, MAINTAIN, OR OWN, OR PERMIT A THIRD
PARTY TO INSTALL, MAINTAIN, OR OWN FOR BENEFICIAL USE BY THE
ELECTRIC UTILITY, AN ATTACHED FACILITY IN THE ELECTRIC EASEMENT
FOR USE IN CONNECTION WITH THE ELECTRIC UTILITY'S PROVISION OF
ELECTRICITY.".
Page 6, strike lines 29 and 30 and substitute "CLAIM OR CAUSE OF ACTION
BASED ON:
(I) PHYSICAL DAMAGE TO PROPERTY;
(II) INJURY TO NATURAL PERSONS; OR
(III) BREACH OF THE TERMS AND CONDITIONS OF A WRITTEN
ELECTRIC".
Page 6, line 32, strike "(5)." and substitute "(4).".
Page 6, line 36, after "ACTION" insert "TO WHICH SUBSECTION (1)(a) OF
THIS SECTION APPLIES".
Page 6, line 39, after "(2)" insert "ON BEHALF OF", and after the period
add "NOTHING IN THIS SUBSECTION (2) PROHIBITS AN ELECTRIC UTILITY
AND A COMMERCIAL BROADBAND SUPPLIER FROM CONTRACTING TO
ALLOCATE LIABILITY FOR ACTIONS TAKEN UNDER SECTION 40-15-602
(2).".
Page 6, line 41, after "ACTION" insert "TO WHICH SUBSECTION (1)(a) OF
THIS SECTION APPLIES".
Page 7, strike lines 2 and 3 and substitute "OF RIGHTS OR PERFORMANCE
OF ACTIONS DESCRIBED IN SECTION 40-15-602 (1)(a) OR (1)(b), THE
FOLLOWING APPLIES TO THE CLAIM OR CAUSE OF".
Page 7, line 5, strike "SUCH CLAIMS," and substitute "CLAIMS OR CAUSES
OF ACTION TO WHICH SUBSECTION (1)(a) OF THIS SECTION APPLIES,".
Page 7, strike lines 29 through 41 and substitute "HOLDER. THE ELECTRIC
UTILITY OR COMMERCIAL BROADBAND SUPPLIER SHALL PROMPTLY
PROVIDE TO THE INTEREST HOLDER A COPY OF ANY APPRAISAL
PERFORMED PURSUANT TO THIS SUBSECTION (3)(b).
(c) ANY DAMAGES FOR ANY CLAIMS OR CAUSES OF ACTION TO
WHICH SUBSECTION (1)(a) OF THIS SECTION APPLIES:
(I) ARE LIMITED TO THOSE DAMAGES THAT EXISTED AT THE TIME
THAT THE ELECTRIC UTILITY OR COMMERCIAL BROADBAND SUPPLIER
FIRST EXERCISED THE RIGHTS OR PERFORMED THE ACTIONS; AND
(II) SHALL NOT BE DEEMED TO CONTINUE, ACCRUE, OR
ACCUMULATE.".
Page 8, strike lines 1 and 2 and substitute:
"(d) WITH REGARD TO A CLAIM OR CAUSE OF ACTION TO WHICH
SUBSECTION (1)(a) OF THIS SECTION APPLIES:
(I) EXCEPT FOR AN ELECTRIC UTILITY'S OR COMMERCIAL
BROADBAND SUPPLIER'S FAILURE TO COMPLY WITH SECTION 40-15-602
(2), NEGLIGENCE, OR WILLFUL MISCONDUCT, OR".
Page 8, line 5, strike "(5)," and substitute "(4),".
Page 8, line 14, strike "GROSS".
Page 8, strike lines 16 through 18 and substitute:
"(4) BY ACCEPTING A DAMAGE AWARD FOR ANY CLAIM OR CAUSE
OF ACTION TO WHICH SUBSECTION (1)(a) OF THIS SECTION APPLIES, AN
INTEREST HOLDER SHALL BE DEEMED TO HAVE GRANTED AN INCREASE IN
THE SCOPE OF THE ELECTRIC".
Page 8, line 20, strike "(5)," and substitute "(4),".
Page 8, strike lines 25 through 41 and substitute "FOR THE PROVISION OF
COMMERCIAL BROADBAND SERVICE SHALL:
(a) NOT DISCRIMINATE AMONG COMMERCIAL BROADBAND
SUPPLIERS, INCLUDING BROADBAND AFFILIATES, IN OFFERING OR
GRANTING RIGHTS TO INSTALL OR ATTACH ANY ATTACHED FACILITIES; OR
(b) CHARGE FEES THAT ARE NONDISCRIMINATORY AMONG
COMMERCIAL BROADBAND SUPPLIERS FOR A SUBSTANTIALLY SIMILAR
LEASE OR USE OF THE CAPACITY OF ATTACHED FACILITIES OWNED OR
CONTROLLED BY THE ELECTRIC UTILITY, BUT ONLY TO THE EXTENT AN
ELECTRIC UTILITY CHOOSES, IN ITS SOLE DISCRETION, TO OFFER THE LEASE
OR USE TO A PARTICULAR COMMERCIAL BROADBAND SUPPLIER.
(2) AN ELECTRIC UTILITY THAT HAS A BROADBAND AFFILIATE
AND, IF APPLICABLE, THE BROADBAND AFFILIATE SHALL:
(a) CHARGE JUST AND REASONABLE ATTACHMENT FEES,
INCLUDING RECURRING FEES, THAT ARE RELATED TO THE COSTS
ASSOCIATED WITH SUCH ATTACHMENTS, SUCH AS A JUST AND
REASONABLE SHARE OF THE CARRYING COSTS OF THE PER POLE
INVESTMENT, INCLUDING ONGOING MAINTENANCE OF THE POLE BASED ON
THE PORTION OF THE USABLE SPACE ON THE POLE OCCUPIED BY THE
ATTACHMENT;".
Page 9, strike lines 1 through 6.
Page 9, line 8, strike "OR ELECTRIC SERVICE INFRASTRUCTURE" and
substitute "AND SIMILAR SUPPORT STRUCTURES".
Page 9, strike lines 13 through 16 and substitute:
"(I) ON A JUST, REASONABLE, AND NONDISCRIMINATORY BASIS;
AND".
Page 9, strike lines 23 through 28 and substitute:
"(c) CHARGE FEES THAT ARE NONDISCRIMINATORY AMONG
COMMERCIAL BROADBAND SUPPLIERS FOR A SUBSTANTIALLY SIMILAR
LEASE OR USE OF THE CAPACITY OF ATTACHED FACILITIES OWNED OR
CONTROLLED BY THE ELECTRIC UTILITY OR BROADBAND AFFILIATE AND
THAT ARE EQUAL TO OR LESS THAN THE FEES THAT THE ELECTRIC UTILITY
CHARGES TO ITS BROADBAND AFFILIATES, BUT ONLY TO THE EXTENT AN
ELECTRIC UTILITY OR BROADBAND AFFILIATE CHOOSES, IN ITS SOLE
DISCRETION, TO OFFER THE LEASE OR USE TO A PARTICULAR COMMERCIAL
BROADBAND SUPPLIER.".
Page 9, line 40, after "USE" insert "THE COMMERCIAL BROADBAND
SUPPLIER'S".
Page 10, after line 12 insert:
"(5) AN ELECTRIC UTILITY SHALL NOT DIRECTLY PROVIDE RETAIL
COMMERCIAL BROADBAND SERVICE BUT MAY CAUSE OR ALLOW A
BROADBAND AFFILIATE TO OFFER RETAIL COMMERCIAL BROADBAND
SERVICE. AS LONG AS AN ELECTRIC UTILITY MAINTAINS ITS EXCLUSIVE
RIGHT TO PROVIDE ELECTRIC SERVICE TO CUSTOMERS WITHIN ITS
EXCLUSIVE SERVICE TERRITORY, BOTH THE ELECTRIC UTILITY THAT HAS
A BROADBAND AFFILIATE AND THE BROADBAND AFFILIATE SHALL:
(a) MAINTAIN OR CAUSE TO BE MAINTAINED AN ACCOUNTING
SYSTEM FOR THE BROADBAND AFFILIATE SEPARATE FROM THE ELECTRIC
UTILITY'S ACCOUNTING SYSTEM, USING GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES OR ANOTHER REASONABLE AND CUSTOMARY
ALLOCATION METHOD;
(b) CAUSE A FINANCIAL AUDIT TO BE PERFORMED BY AN
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT, WITHIN TWO YEARS AFTER
COMMENCEMENT OF COMMERCIAL OPERATION OF RETAIL COMMERCIAL
BROADBAND SERVICE AND AT LEAST ONCE EVERY TWO YEARS
THEREAFTER, WITH RESPECT TO THE BROADBAND AFFILIATE'S PROVISION
OF COMMERCIAL BROADBAND SERVICE, INCLUDING AN AUDIT OF THE
ALLOCATION OF COSTS FOR PROPERTY AND SERVICES THAT ARE USED IN
BOTH THE PROVISION OF COMMERCIAL BROADBAND SERVICE AND THE
ELECTRIC UTILITY'S PROVISION OF ELECTRIC SERVICE; AND
(c) (I) NOT CAUSE OR ALLOW THE ELECTRIC UTILITY TO USE ITS
EXCLUSIVE RIGHT TO PROVIDE ELECTRIC SERVICES WITHIN ITS EXCLUSIVE
TERRITORY TO CROSS-SUBSIDIZE THE BROADBAND AFFILIATE OR ITS
PROVISION OF COMMERCIAL BROADBAND SERVICE, WHETHER BY
DISCRIMINATORY OR BELOW FAIR MARKET VALUE PRICING; PAYMENT OF
CAPITAL OR OPERATING COSTS PROPERLY CHARGED TO THE BROADBAND
AFFILIATE UNDER APPLICABLE ACCOUNTING RULES; OR USE OF ANY
REVENUE FROM OR SUBSIDY FOR THE PROVISION OF ELECTRIC SERVICE TO
PROVIDE COMMERCIAL BROADBAND SERVICE BELOW MARKET VALUE,
EXCEPT IN CONNECTION WITH THE ELECTRIC UTILITY'S PROVISION OF
ELECTRICITY.
(II) NOTHING IN THIS SUBSECTION (5)(c) PROHIBITS AN ELECTRIC
UTILITY FROM:
(A) ENTERING INTO A TRANSACTION WITH A BROADBAND
AFFILIATE ON TERMS AND CONDITIONS SUBSTANTIALLY SIMILAR TO THOSE
THAT WOULD BE AGREED TO BETWEEN TWO SIMILARLY SITUATED PARTIES
IN AN ARM'S LENGTH COMMERCIAL TRANSACTION;
(B) PROVIDING REDUCED-COST COMMERCIAL BROADBAND
SERVICE TO LOW-INCOME RETAIL CUSTOMERS; OR
(C) CONDUCTING AND FUNDING DUE DILIGENCE, OPERATIONAL
ANALYSIS, ENTITY SET-UP, AND ASSOCIATED NONCAPITAL EXPENDITURES
RELATING TO AND PRIOR TO THE ESTABLISHMENT OF A BROADBAND
AFFILIATE.".
Renumber succeeding subsections accordingly.
Page 10, line 18, strike "THIS SECTION AND SECTION 40-15-602 (4)(b)."
and substitute "THIS SECTION.".
Page 10, line 29, strike "(5);" and substitute "(6);".
Page 10, strike line 35 and substitute "SUBSECTION (5) OF THIS SECTION.".
Page 11, strike lines 30 through 32 and substitute:
"38-5-103. Power of companies to contract. (1) Such AN
electric, light power, gas, or pipeline company or such A city, or town,
shall have power to COUNTY, CITY AND COUNTY, SPECIAL DISTRICT, OR
OTHER LOCAL GOVERNMENT MAY contract with any person or
corporation, the owner of any".
Page 11, strike line 34 and substitute "over or under which the A line of
electric light wire, power, or pipeline is".
Page 11, line 36, strike "its" and substitute "its".
As amended, ordered engrossed and placed on the calendar for third reading and final
passage.
House Journal, April 26
49 SB19-107 be amended as follows, and as so amended, be referred to
50 the Committee of the Whole with favorable
51 recommendation:
52
53 Amend reengrossed bill, page 5, strike line 19 and substitute "MAINTAIN,
54 OR OWN, AN ATTACHED FACILITY FOR".
55
1 Page 6, strike lines 10 through 16 and substitute "UNDER SUBSECTION (1)
2 OF THIS SECTION. AN ELECTRIC UTILITY OR ITS".
3
4 Page 7, line 9, strike "RECORDED" and substitute "RECORDING".
5
6 Page 9, line 13, strike "AN ATTACHED FACILITY IN THE ELECTRIC
7 EASEMENT" and substitute "TELECOMMUNICATIONS FACILITIES AND
8 EQUIPMENT".
9
10 Page 14, line 27, strike "WOULD" and substitute "WOULD, IN THE ELECTRIC
11 UTILITY'S REASONABLE DISCRETION,".
12
13 Page 16, lines 18 and 19, strike "BY DISCRIMINATORY OR" and substitute
14 "BY:".
15
16 Page 17, strike lines 5 and 6 and substitute:
17
18 "(B) LOANING FUNDS TO A BROADBAND AFFILIATE IF THE INTEREST
19 RATE ON THE LOAN IS NO LESS THAN THE ELECTRIC UTILITY'S LOWEST COST
20 OF CAPITAL;
21 (C) EXCHANGING SERVICES OR MATERIALS FOR OTHER SERVICES
22 OR MATERIALS OF EQUIVALENT VALUE;
23 (D) PROVIDING REDUCED-COST COMMERCIAL BROADBAND
24 SERVICE TO LOW-INCOME RETAIL CUSTOMERS; OR".
25
26 Page 17, line 7, strike "(C)" and substitute "(E)".
27
28 Page 17, lines 16 and 17, strike "IN A COURT OF COMPETENT
29 JURISDICTION".
30
31 Page 19, strike lines 15 through 22 and substitute:
32
33 "38-5-103. Power of companies to contract. (1) Such electric
34 light power, gas, or pipeline company, or such city, or town, OR OTHER
35 LOCAL GOVERNMENT shall have power to contract with any person or
36 corporation, the owner of any lands or any franchise, easement, or interest
37 therein over or under which the line of electric light wire power or
38 pipeline is proposed to be laid or created for the right-of-way for the
39 construction, maintenance, and operation of its electric light wires,".
40
41