(A) As used in this section, unless the context otherwise requires:
(1) "Unaffiliated communications service provider" means a "communications service provider", as defined under Section 58-9-3010(8), and including, but not limited to, electric cooperatives and their broadband affiliates, that is not controlled by or under common control with the Public Service Authority.
(2) "Excess fiber capacity" means fiber optic capacity owned or controlled by the Public Service Authority, constructed to provide internal communications in support of the provision of electric services, and that is unused, available, and in excess of the capacity needed by the Public Service Authority, including its reserve margins, for its internal communications in furtherance of its provision of electric service.
(B) Subject to the provisions set forth in this section, the Public Service Authority shall only lease excess fiber capacity that is used for providing any broadband service to a third party through an arrangement in which the unaffiliated communications service provider provides the broadband service.
(C) The Public Service Authority may cause or allow unaffiliated communications service providers to lease excess fiber capacity through an arrangement in which the unaffiliated communications service provider uses such capacity to provide broadband service; provided such lease shall, subject to the requirements of Section 58-31-30(a)(13), charge rates, fees, or other charges on a nondiscriminatory basis pursuant to a written contract, at market rates and on terms and conditions that are not harmful to competition.
(D) With regard to the lease of excess fiber capacity pursuant to subsection (C), the Public Service Authority must:
(1) submit rates, terms, and conditions to the Office of Regulatory Staff for review and comment;
(2) post rates, fees, and other charges along with terms and conditions on its publicly available website;
(3) within fifteen business days of entering any written contract post conspicuous notice of the contract on its publicly available website; and
(4) within ten days after a written request, make each contract for the lease of excess fiber capacity available for public inspection on an unredacted basis.
(E) Nothing in this section conveys or confers any implied or express grant of authority to the Public Service Authority to directly provide broadband service or act as a broadband service provider, as these terms are defined in Section 58-9-3010(5) and (6) and any legal rights which may or may not belong to the Public Service Authority related to broadband services, if any, are neither expanded nor contracted by this section.
(F) To the extent the Public Service Authority determines, in its sole discretion, to provide any communications service provider including, without limitation, electric cooperatives and their broadband affiliates, access to any pole, duct, conduit, easement, or right of way owned or controlled by the Public Service Authority, for the purpose of providing retail broadband service, it must provide such access to any other communications service provider for the purpose of providing retail broadband service on a nondiscriminatory basis and subject to the Public Service Authority's terms and conditions. Nothing in this section shall prohibit the Public Service Authority from denying access to a pole, duct, or conduit if it determines there is insufficient capacity or for reasons of safety, reliability, and generally applicable engineering principles. The terms of this subsection shall not apply to leasing by the authority of excess fiber capacity.
(G) The Administrative Law Court shall have authority and jurisdiction to enforce compliance with this section.
(H) Nothing in this section:
(1) subjects the Public Service Authority to regulation by the FCC;
(2) constitutes an exercise of, or an obligation or intention to exercise, the right of a state under 47 U.S.C. Section 224(c) to regulate the rates, terms, and conditions for pole attachments, as defined in 47 U.S.C. Section 224(a)(4); or
(3) constitutes a certification or an obligation to certify to the FCC under 47 U.S.C. Section 224.
HISTORY: 2020 Act No. 175 (H.3780), Section 5, eff September 29, 2020.
Editor's Note
2020 Act No. 175, Section 6, provides as follows:
"SECTION 6. This act does not convey or confer any implied or express grant of authority to an investor-owned electric utility to provide broadband facilities or broadband services as defined in this act and any legal rights which may or may not belong to investor-owned electric utilities to provide broadband facilities or broadband services at the time of the passage of this act are neither expanded nor contracted by its passage."