(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:
(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;
(b) Provide all commercial broadband suppliers access to all poles and
similar support structures 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
(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 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.
(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, 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.
(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 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:
(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) 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:
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) Loaning funds to a broadband affiliate if the interest rate on the loan is
no less than the electric utility's lowest cost of capital;
(C) Exchanging services or materials for other services or materials of
equivalent value;
(D) Providing reduced-cost commercial broadband service to low-income
retail customers; or
(E) 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.
(6) 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:
(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 (6);
(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 subsection (5) of this
section.
(7) 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.
(8) 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.