§ 758.120 — Electric easement in provision of broadband services; exceptions; notice; remedies for property owners

Oregon § 758.120

• Jurisdiction: Oregon
• Vol.: 19
• Title 57: Utility Regulation
• Ch. 758: Utility Rights of Way and Territory Allocation; Cogeneration

Text

(1) As used in this section and ORS 758.125 and 758.130:
(a) “Attachment” has the meaning given that term in ORS 757.270.
(b) “Broadband” has the meaning given that term in ORS 276A.406.
(c) “Commercial broadband service provider” means a provider of broadband service that is not affiliated with or a division of an electric cooperative.
(d) “Electric cooperative” has the meaning given that term in ORS 757.600.
(e) “Electric easement” means any recorded or unrecorded easement or license, including easements created by operation of law, held or used by an electric cooperative for the installation and maintenance of electric facilities, regardless of whether the easement is for the exclusive benefit of the electric cooperative or is also for use in connection with other utility services that may or may not be provided by the electric cooperative.
(f) “Electric facilities” means any line, wire, pipe, conduit, main, pump, pole, tower, fixture, manhole, handhole or other similar facility or facilities, and any other related or ancillary materials, which are owned or controlled, in whole or in part, by one or more electric cooperatives.
(g) “Property owner” means a person with a recorded fee simple interest in land upon which an electric easement is located.
(2)(a)(A) Except as provided in paragraph (b) of this subsection, an electric cooperative may use or allow for the use of an electric easement in the provision of broadband services.
(B) If use of an electric easement in the provision of broadband services as authorized under this paragraph would result in an expansion of the uses for which the easement is granted or acquired, the electric cooperative shall, no later than 60 days prior to the expansion of use, provide written notice to the property owner pursuant to subsection (3) of this section.
(C) A commercial broadband service provider may request for an electric cooperative to send notice to a property owner as required by this subsection. A commercial broadband service provider shall include in a request under this subparagraph the addresses of subject poles and the pole numbers if labeled on the pole, and the names and addresses of the property owners to whom the commercial broadband service provider requests notice to be sent. Absent unusual circumstances such as an outage or similar emergency, an electric cooperative shall send notice to a property owner as requested under this subparagraph no later than 10 days after receipt of the request from a commercial broadband service provider.
(b)(A) The provisions of this section do not authorize an electric cooperative to use or allow for the use in the provision of broadband services any electric easements that are granted on property owned, managed or operated by a city, including but not limited to public rights of way within the boundaries of the city.
(B) If an electric easement is an unrecorded easement, license or easement created by operation of law, the electric easement must be in current use by the electric cooperative for the installation and maintenance of electric facilities in order for the electric cooperative to exercise the authority granted under this section. For purposes of this section, the location and extent of an unrecorded easement, license or easement created by operation of law is limited to:
(i) The location of the electric easement as it was in use prior to commencement of use of the electric easement in the provision of broadband services; and
(ii) A width of no more than 10 feet on each side from the center line of the electric easement.
(3)(a) Written notice as required by subsection (2) of this section must be sent by certified mail to the last known address of the property owner, according to publicly available records of the county assessor. The notice must contain:
(A) The name and mailing address of the electric cooperative;
(B) The mailing address, telephone number and electronic mail address for a representative of the electric cooperative;
(C) A summary statement of the purpose and character of the expansion of the use of the electric easement; and
(D) An offer for an onsite meeting prior to commencement of any installation activities associated with the expanded use.
(b) If the notice is sent by an electric cooperative on behalf of a commercial broadband service provider, the notice must also contain:
(A) The name and mailing address of the commercial broadband service provider; and
(B) The mailing address, telephone number and electronic mail address for a representative of the commercial broadband service provider.
(4) If the activities necessary to expand use of the electric easement for provision of broadband services will require trenching or other underground work that is not included in the uses for which the easement is granted or acquired:
(a) The notice provided under subsection (3) of this section must also include:
(A) A summary statement describing the activities to be conducted during the trenching or other underground work; and
(B) The approximate dates when the trenching or other underground work will start and end;
(b) Any new conduit must be installed in a location that is adjacent to and as close to existing conduit as allowed under applicable code requirements or regulations;
(c) To the extent allowed under any applicable code requirements or regulations, the property owner may choose which side of the existing conduit to install any new conduit; and
(d) Any surface area disturbed during trenching or other underground work must be restored to its condition prior to the trenching or other underground work.
(5) In installing and maintaining facilities necessary to provide broadband services, the provider of broadband services that is making use of an electric easement as authorized pursuant to this section must:
(a) Make reasonable accommodations to prevent disruption to active agricultural and forest operations;
(b) Employ best practices to prevent the introduction of noxious weeds onto the property upon which the electric easement is located;
(c) Provide compensation to the property owner for property damage or crop loss caused by the installation or maintenance of the facilities; and
(d) Upon the request of the property owner, provide at least seven days advance notice before the commencement of any installation or routine maintenance activities.
(6) An expansion of use described in subsection (2) of this section is deemed vested in the electric cooperative and shall run with the land as of the date that the property owner receives notice from the electric cooperative.
(7) Except as provided in ORS 758.125 (1), a property owner that receives notice under subsection (3) of this section may bring a cause of action, in the circuit court of the county where the electric easement is located, against the provider of broadband services for damages relating to a decrease in the value of the property owner’s real property caused by the use of the easement in the provision of broadband services. A cause of action authorized by this subsection must be brought no later than 18 months after the date that the electric cooperative provided notice under subsection (3) of this section. The cause of action provided for in this subsection shall be the exclusive remedy in law or equity with respect to use of the electric easement for the provision of broadband services.
(8)(a) In an action brought under subsection (7) of this section:
(A) The court or jury shall ascertain and assess the decrease in value of property, if any, based on the difference between:
(i) The fair market value of the entire parcel of real property upon which the electric easement is located immediately before the expanded use; and
(ii) The fair market value of the entire parcel of real property immediately after the expanded use;
(B) Evidence of revenues or profits derived from the expanded use or related attachment rates is not admissible in determining fair market value; and
(C) Evidence of the increase in fair market value due to the availability of broadband services is admissible in determining fair market value.
(b) Prior to the commencement of trial in an action brought under subsection (7) of this section, the defendant shall make at least one offer of compensation to the property owner. If the property owner obtains a judgment that exceeds the offer of compensation made by the defendant, the property owner shall be entitled to an additional award for trial costs, disbursements, reasonable attorney fees and expenses as defined in ORS 35.335 (2).
(c) At any point not later than 10 days before the trial of the action, after making an initial offer of compensation pursuant to paragraph (b) of this subsection, the defendant may serve an offer of compromise on the plaintiff in the action, as provided in ORS 35.300. If the plaintiff accepts the offer of compromise, the plaintiff shall be entitled to an award for costs and disbursements, attorney fees and expenses incurred by the plaintiff before service of the offer on plaintiff. If the plaintiff rejects the offer of compromise and fails to obtain a judgment more favorable than the offer, the plaintiff may not recover prevailing party fees or costs and disbursements, attorney fees and expenses that were incurred on and after service of the offer.
(9) The electric cooperative may include required reimbursement for expanded use compensation awards and litigation costs in any attachment license agreement with a provider of broadband services that is not the electric cooperative and that is directly benefited by the expanded use.
(10) A class action may not be maintained against a provider of broadband services in any action for damages based on a claim of expanded use for broadband services.

Legislative History

2021 c.149 §1