(a) For as long as the electric cooperative maintains an exclusive right to provide electric service to customers within its exclusive service territory, may provide broadband service only through a broadband affiliate or through a separate broadband division within the electric cooperative; and
(b) If the electric cooperative has a broadband affiliate or separate broadband division:
(A) Shall maintain or cause to be maintained an accounting system for the broadband affiliate or division that is separate from the accounting system for the electric cooperative’s electric division;
(B) Shall cause, within two years after commencement of commercial operation by the electric cooperative’s broadband affiliate or division and at least once every two years thereafter, a financial audit to be performed by an independent certified public accountant with respect to the broadband affiliate’s or division’s provision of retail broadband service, including an audit of the allocation of costs for property and services that are used in both the provision of broadband service and the electric cooperative’s provision of electric service; and
(C) May not provide the broadband affiliate or division of the electric cooperative a right to install maintain, own, operate, or use attachments at rates, terms or conditions that are more favorable than the rates, terms or conditions provided to commercial broadband service providers.
(2)(a) An electric cooperative may not use its exclusive right to provide electric service within its exclusive territory to cross-subsidize a broadband affiliate of the electric cooperative or a separate broadband division within the electric cooperative, or to cross-subsidize a broadband affiliate’s or division’s provision of broadband service through:
(A) Below fair market pricing;
(B) Payment of capital or operating costs properly charged to the broadband affiliate or division under applicable accounting rules; or
(C) Use of any revenue from or subsidy for the provision of electric service to provide broadband service below market value, except in connection with the electric cooperative’s provision of electricity.
(b) An electric cooperative may:
(A) Enter into transactions with the broadband affiliate or division of the electric cooperative on terms and conditions that are substantially similar to the terms and conditions that would be agreed to between two similarly situated parties in an arm’s-length commercial transaction;
(B) Loan funds to the broadband affiliate or division of the electric cooperative if the interest rate on the loan is no less than the electric cooperative’s lowest cost of capital;
(C) Provide for reduced-cost broadband service to low-income customers;
(D) Conduct and fund due diligence, operational analysis, entity set-up, and associated noncapital expenditures relating to and prior to the establishment of a broadband affiliate or division; or
(E) Offer broadband service through a broadband affiliate or division at below market pricing on a temporary basis for promotional purposes.
(3)(a) Upon request from a commercial broadband service provider, an electric cooperative subject to this section and any broadband affiliate or division of the electric cooperative shall cause an officer of the electric cooperative and the broadband affiliate or division, respectively, to certify that both the electric cooperative and the broadband affiliate or division are in compliance with this section.
(b) If a dispute arises between an electric cooperative or its broadband affiliate or division and a commercial broadband service provider regarding matters addressed in this subsection, the parties to the dispute have standing to file a claim or cause of action in any court of competent jurisdiction in the state. The following are discoverable and admissible as evidence in court regarding compliance by the electric cooperative and the broadband affiliate or division of the electric cooperative compliance with this section:
(A) Any certification requested and produced pursuant to this subsection; and
(B) Any audit required to be performed pursuant to subsection (1) of this section, except that the court shall provide appropriate restrictions upon the disclosure of any trade secret, as that term is defined in ORS 192.345 (2), that may be included in the audit. [2021 c.149 §3]
Note: See note under 758.120.