10 LC 38
1018S
The
Senate Economic Development Committee offered the following substitute to SB
328:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 46 of the Official Code of Georgia Annotated, relating to public
utilities and public transportation, so as to require electric suppliers to
provide cable companies nondiscriminatory access to electrical facilities on
just and reasonable rates, terms, and conditions; to provide a short title; to
provide legislative findings; to provide definitions; to provide procedures and
remedies; to provide for a repeal under certain circumstances; to provide for
related matters; to provide an effective date; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
46 of the Official Code of Georgia Annotated, relating to public utilities and
public transportation, is amended by adding a new chapter to read as
follows:
"CHAPTER
3B.
46-3B-1.
This
chapter shall be known
and may be
cited as the 'Georgia Broadband Deployment and Fair Access to Electric
Facilities Act.'
46-3B-2.
The
General Assembly finds that:
(1)
The deployment of facilities based communications services should be
promoted;
(2)
Cable companies should be encouraged to attach their facilities to poles already
existing in current rights of way rather than acquiring or condemning additional
property to construct duplicative sets of poles and to promote the deployment of
facilities based communications services; and
(3)
The provisions set forth in this chapter will encourage colocation of facilities
in order to discourage the unnecessary use of eminent domain and promote the
deployment of facilities based communications services.
46-3B-3.
As
used in this chapter, the term:
(1)
'Cable attachment' means any attachment by a cable company to an electrical
facility.
(2)
'Cable company' means a cable television operator as defined in Section 602(5)
of the federal Communications Act of 1934 that offers or provides, or intends to
offer or provide, cable television service, including any broadband cable
communications services, voice service, Internet access service, or any other
service similar to such services, including the transport or delivery of
services between or to cable companies or end users.
(3)
'Electrical facility' means any pole, duct, conduit, or right of way owned or
controlled by an electric supplier.
(4)
'Electric supplier' means any electric membership corporation, including without
limitation any corporation or utility that is cooperatively organized,
furnishing retail electric service in this state and any municipality which
furnishes such retail electric service within this state.
(5)
'Make ready' means all work necessary or appropriate to make space for or
otherwise accommodate new, additional, or changed cable attachments, including,
but not limited to, necessary or appropriate rearrangements, removal and
replacement of the electrical facility or cable attachments, and other work
related thereto.
46-3B-4.
(a)
An electric supplier shall provide cable companies with nondiscriminatory access
to all electrical facilities on just and reasonable rates, terms, and
conditions.
(b)
An electric supplier shall approve or deny in writing any cable attachment
request no later than 15 business days after the receipt thereof; and if
make-ready construction by the electric supplier is required, an estimate for
such costs shall be provided to the requesting cable company. Any denial shall
include, in sufficient detail, the grounds therefor not inconsistent with the
provisions of this Code section. An electric supplier may deny a cable company
access to its electrical facilities on a nondiscriminatory basis if there is
insufficient capacity and for reasons of safety, reliability, and generally
applicable engineering principles. No electric supplier may deny a cable
company access to its electrical facilities on the ground that there is
insufficient capacity or for reasons of safety, reliability, and generally
applicable engineering principles if:
(1)
Those limitations can be remedied by setting a new pole or other electrical
facility or by rearranging or otherwise reengineering the electrical facilities;
and
(2)
The cable company agrees to pay the reasonable, actual, and verifiably
comparable costs of setting a new pole or other electrical facility or
rearranging or otherwise reengineering the electrical facilities to resolve
those capacity, safety, reliability, or engineering issues.
(c)
A cable company that requests a cable attachment shall be held responsible for
the reasonable, actual, and verifiable costs incurred by the electric supplier
or any other attaching entity in accommodating the
request.
(d)
A cable company with an existing cable attachment shall not be required to bear
any of the costs of rearranging or relocating its cable attachment if such
rearrangement or relocation is required as the result of an additional
attachment or the adjustment of an existing attachment sought by any other
entity or sought by an electric supplier.
(e)
If make ready is required by an electric supplier, such make-ready work shall be
commenced by the electric supplier within 20 business days of the electric
supplier's receipt of consent to its make-ready cost estimate by the requesting
cable company; and the electric supplier shall ensure the make-ready work
performed is consistent with the electric supplier's standard work order
process. The electric supplier shall use its best efforts to complete all
make-ready work within 60 business days of receipt of consent to the make-ready
work estimate by the requesting cable
company.
(f)
Following receipt of a request from a cable company, an electric supplier shall
negotiate in good faith the rates, terms, and conditions for access to and the
use of the electrical facilities. Following a request from a cable company that
is a party to an existing agreement with an electric supplier or a request from
an electric supplier that is a party to an existing agreement with a cable
company, made either pursuant to the terms of the existing agreement or within
90 days prior to or following the end of the term of the agreement, the parties
to the existing agreement shall negotiate in good faith the rates, terms, and
conditions for the continued access to and use of the electrical facilities. In
the event the parties are unable to reach agreement within 90 days of a request
to negotiate or if either party believes in good faith that an impasse has been
reached prior to the expiration of the 90 day period, either party may bring an
action to the commission as provided in Code Section
46-3B-5.
(g)
All rental rates, including rent, fees, and charges demanded, invoiced, or
assessed by an electric supplier, shall be just, reasonable, and cost based. An
electric supplier shall not increase its rental rates more than once annually
and then only:
(1)
If the pole attachment agreement between the electric supplier and the cable
company allows for such increases; and
(2)
After providing the cable company with at least 120 days' advance written notice
containing justification for the proposed increase. Every invoice provided by
an electric supplier to a cable company shall be itemized in sufficient detail
and have appropriate supporting documentation attached to permit the cable
company to ascertain the basis of the rates, fees, and charges
therein.
(h)
For a year for which there is a pole count or audit, the following adjustment
shall be made:
(1)
The difference between the number of poles found by the pole audit for the year
in question and the number of attachments for which the attacher was most
recently invoiced for adjustment payments shall be prorated evenly based on the
assumption that such attacher's attachments were added evenly over the period
since the last pole audit; and
(2)
If the number of poles in the previous annual rental invoice is greater than the
number found by the pole audit in the current year, then the cable company shall
be entitled to a credit or pro rata refund from the electric
supplier.
(i)
Except as otherwise provided in subsection (l) of this Code section, an electric
supplier shall not impose requirements or conditions upon overlashing activities
of a cable company.
(j)
An electric supplier shall not require any cable company having or seeking
attachments to indemnify or insure such electric supplier from or against any
losses, damages, claims for damages, or other liability to the extent that such
arises from the negligence or willful misconduct of the electric supplier or its
agents, employees, contractors, or licensees as a condition to granting access
or making attachments.
(k)
The electric supplier has the option to perform periodic safety inspections and
pole inventories not more than once every five years, unless otherwise mutually
agreed by the parties, to determine any safety violations caused by an attacher
upon 180 days' advance written notice. Such notice shall describe the scope of
the inspection, and the electric supplier shall use best efforts to get all
entities with attachments to participate in the safety inspection. The cable
company shall pay a pro rata share of the electric supplier's inspection costs
and shall incur its own costs to participate in such periodic safety
inspections. The cable company's pro rata share of the electric supplier's cost
shall be equal to the percentage of the total violations related to the cable
company's cable attachments as identified during the safety inspection unless
the cable company can clearly demonstrate that it did not cause the
violation.
(l)
When a cable company makes cable attachments that do not comply with generally
applicable engineering rules, the electric supplier shall provide written notice
of the noncompliant cable attachments. In the event of a noncompliant cable
attachment that poses an imminent safety risk, the cable company shall
immediately bring such cable attachment into compliance. In all other instances
of noncompliant cable attachments, the cable company shall, within 60 days
following the written notice, either contest the notice of noncompliance in
writing or bring its cable attachments into compliance. If the work required to
bring the cable attachments into compliance is not reasonably capable of being
completed within the 60 day period, the period for compliance shall be extended
as may be deemed reasonable under the circumstances so long as the cable company
promptly commences and diligently pursues within the 60 day period such actions
as are reasonably necessary to make the cable attachments
compliant.
(m)
No electric supplier shall enter into any contract or arrangement pertaining to
a cable company's cable attachments to or use of electrical facilities or its
books and records if any part of the compensation or other benefits paid or
payable for the services of the private examining or collecting firm conducting
the examination is contingent upon or otherwise related to the amount of tax,
interest, fee, rent, charge, court cost, or penalty assessed against or
collected from the cable company. Any such contract or arrangement, if made or
entered into, is void and unenforceable. Any assessment or preliminary
assessment of taxes, penalties, fees, rent, charges, court costs, or interest
proposed or asserted by, or based upon the recommendation of, a private
examining or collecting firm compensated under any such contract or arrangement
shall be void and unenforceable.
(n)
An electric supplier shall provide cable companies no less than 120 days'
written notice prior to removal of cable attachments to electrical facilities or
termination of any service to those facilities which arises out of a breach of a
rate, term, or condition of a cable attachment agreement. If any such breach of
rate, term, or condition of cable attachment is disputed by a cable company, the
cable company may bring an action to the commission as provided in Code Section
46-3B-5.
(o)
All other terms and provisions of any agreement with electric suppliers
governing or affecting a cable company's cable attachments, including any rate,
term, or condition governing audits, inspections, termination, security bond,
and insurance requirements, shall be just, reasonable, and consistent with the
provisions of this chapter. An electric supplier shall not require any cable
company having or seeking cable attachments to be subject to any unilateral
changes to any operational procedures, practices, or rules in an existing
agreement or otherwise without first being provided a reasonable opportunity to
review, accept, or dispute the change; and any such operational procedures,
practices, or rules shall not be unduly burdensome.
46-3B-5.
(a)(1)
Any electric supplier or cable company that is aggrieved by conduct of another
party that is in violation of any provision of this chapter may file a complaint
with the commission. The commission shall have exclusive jurisdiction over such
actions.
(2)
Upon the complaint of an electric supplier or a cable company that is aggrieved
by conduct of another party that is in violation of any provision of this
chapter, the commission shall have the authority and exclusive jurisdiction over
such actions, after notice to all affected electric suppliers, cable companies,
and other interested parties and after a hearing, to enforce the provisions of
this chapter by appropriate orders.
(3)
The complaint shall state with specificity the conduct complained of and all
information and argument relied on to justify said claim.
(4)
The respondent shall have 30 days from the date the complaint was filed to file
a response.
(5)
The complainant shall have 20 days from the date of the response to file a
reply.
(6)
The burden of proof shall be on the party advocating a deviation from this
chapter or on the party claiming that the rate, term, or condition complained of
is not just and reasonable.
(b)
The commission shall resolve any dispute identified in the pleadings consistent
with the public interest and this chapter, taking into consideration and
applying such factors and evidence that may be presented by a party, including
without limitation the rules and regulations applicable to cable attachments
under Section 224 of the federal Communications Act of 1934, as amended, or the
rules and regulations of any state certified to regulate cable attachments under
Section 224(c) of the federal Communications Act of 1934, as
amended.
(c)
The commission shall resolve a complaint within 180 days of the commencement of
the action. The commission may adopt such rules as it deems necessary to
implement its jurisdiction and authority under this chapter.
(d)
The parties shall pay any reasonable third-party expenses incurred by the
commission in resolving a complaint. At the time the commission determines that
third-party expenses will be required, the commission shall issue an order
setting forth the scope and budget for such expenses. All invoices relating to
the expenses shall be subject to commission review and approval, and no party
shall be required to pay any invoice not approved by the
commission.
46-3B-6.
(a)
This chapter shall not constitute certification as defined by federal law. If a
court of competent jurisdiction determines that this chapter is tantamount to
certification, this chapter shall automatically stand repealed and shall be null
and void.
(b)
This chapter shall not apply to any cable attachment regulated by the Federal
Communications Commission under Section 224 of the federal Communications Act of
1934 as amended.
(c)
This chapter does not affect and is not intended to affect the powers of the
Department of Transportation with respect to the state highway system regarding
any utility facility which is or may be installed within the limits of any
public road or street right of
way."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.