(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 shall:
Not discriminate among commercial broadband suppliers, including broadband
affiliates, in offering or granting rights to install or attach any attached facilities; or
Charge fees that are nondiscriminatory among commercial broadband suppliers for asubstantially 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:
Charge just and reasonable attachment fees, including recurring fees, that are relatedto 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;
Provide all commercial broadband suppliers access to all poles and similar supportstructures 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:
On a just, reasonable, and nondiscriminatory basis; and
Under terms and conditions that are no less favorable than the terms and conditionsoffered 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 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.
Subject to the requirements of subsection (1) of this section, nothing in this sectionrequires 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, in the electric utility's reasonable discretion, materially interfere with the electric utility's construction, maintenance, or use of any electric utility infrastructure for the provision of electric service.
(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 the commercial broadband supplier's 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:
There is insufficient capacity for the attached facilities; or
Concerns of safety or reliability or generally applicable engineering purposes weighagainst 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.
An electric utility shall not directly provide retail commercial broadband service butmay 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:
Maintain or cause to be maintained an accounting system for the broadband affiliateseparate from the electric utility's accounting system, using generally accepted accounting principles or another reasonable and customary allocation method;
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
(I) Not cause or allow the electric utility to use its exclusive right to provide electricservices within its exclusive territory to cross-subsidize the broadband affiliate or its provision of commercial broadband service, whether by: 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:
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;
Loaning funds to a broadband affiliate if the interest rate on the loan is no less thanthe electric utility's lowest cost of capital;
Exchanging services or materials for other services or materials of equivalent value;
Providing reduced-cost commercial broadband service to low-income retail customers; or
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.
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. If a dispute arises between an electric utility or its broadband affiliate and an unaffiliated commercial broadband supplier:
Regarding matters addressed in this part 6, the parties to the dispute have standing tofile a claim or cause of action in any court of competent jurisdiction in the state; and
The following are discoverable and admissible as evidence in court regarding theelectric utility's and its broadband affiliate's compliance with this section:
Any certification requested and produced pursuant to this subsection (6);
The terms and conditions applied to the electric utility's or broadband affiliate's offerto or grant of a right to the unaffiliated commercial broadband supplier to install, maintain, own, operate, or use attached facilities; and
Any audit required to be performed pursuant to subsection (5) of this section.
Notwithstanding any provision of this part 6 to the contrary, an electric utility that issubject 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.
Nothing in this part 6:
Subjects an electric utility to regulation by the FCC;
Constitutes an exercise of, or an obligation or intention to exercise, the right of thestate 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
Constitutes a certification, or an obligation or intention to certify, to the FCC under47 U.S.C. sec. 224.
Source: L. 2019: Entire part added, (SB 19-107), ch. 424, p. 3710, § 1, effective August 2.