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SENATE AMENDED
A07524
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2438
Session of
2020
INTRODUCED BY OWLETT, CAUSER, PICKETT, RYAN, KULIK, SCHLEGEL
CULVER, DONATUCCI, CONKLIN, READSHAW, KAUFER, BOBACK, KEEFER,
HERSHEY, PASHINSKI, NEILSON, MILLARD, BURGOS, STRUZZI, PYLE,
BERNSTINE, IRVIN, LONGIETTI, KAUFFMAN, GLEIM, ZIMMERMAN,
WHEELAND, SCHWEYER, DELOZIER, DUSH, DAVANZO, KORTZ, JAMES AND
HELM, APRIL 27, 2020
AS AMENDED ON THIRD CONSIDERATION, IN SENATE, SEPTEMBER 22, 2020
AN ACT
Amending Title 68 (Real and Personal Property) of the
Pennsylvania Consolidated Statutes, providing for broadband
services.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 68 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 82
BROADBAND SERVICES
Sec.
8201. Definitions.
8202. Broadband services.
§ 8201. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
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"Affiliate." A person that directly, or indirectly through
one or more intermediaries, controls, is controlled by or is
under common control with a specified person. The term includes
subsidiaries, partnerships, joint ventures and other entities
that have shared resources, interests or business dealings.
"Broadband facilities." Wires, cables, materials, equipment
and other facilities, which are or can be used for the provision
of broadband services.
"Broadband service supplier." An electricity,
telecommunications , cable operator or Internet supplier or
affiliate that constructs, owns or installs new broadband
facilities to provide broadband services, at wholesale or
retail, using existing electric infrastructure , including, but
not limited to, poles and conduit, within an easement . The term
includes third parties with which the electric cooperative
corporation contracts, licenses or otherwise enters into
agreements with for the installation, service or maintenance of
broadband infrastructure and provision of broadband services on
behalf of the electric cooperative corporation or ITS affiliate.
"Broadband services." As follows:
(1) Service that consists of or includes the provision
of broadband that:
(i) is used to provide access to the Internet; or
(ii) provides computer processing, information
storage, information content or protocol conversion.
(2) The term includes the provision of video services,
voice over Internet protocol services , wireless services and
Internet protocol-enabled services.
"Easement." A recorded or unrecorded right-of-way, easement
or similar property right acquired by eminent domain,
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prescription or conveyance that is used or may be used for
transmitting, distributing or providing electric service by
utilizing electric infrastructure.
"Electric cooperative corporation." As defined in 15 Pa.C.S.
§ 7302(a) (relating to application of chapter).
§ 8202. Broadband services.
(a) Broadband facilities.--The following apply:
(1) An electric cooperative corporation or an affiliate
of an electric cooperative corporation may provide broadband
services or construct, operate and maintain broadband
facilities through an existing easement owned, held or used
by the electric cooperative corporation. An electric
cooperative corporation may only supply retail broadband
services through one or more affiliates.
(2) Except as provided for under subsection (b), the
attachment of broadband facilities shall not constitute a
change to the physical use of the easement, interfere with or
impair any vested rights of the property owner subject to the
easement or place an additional burden on the property or
interests of the owner.
(3) A broadband service supplier that is not an electric
cooperative corporation may access and attach broadband
facilities within an electric cooperative corporation's
easement:
(i) if an electric cooperative corporation or its
affiliates have attached broadband facilities to provide
retail or wholesale broadband services or if an electric
cooperative corporation, in its sole discretion, gives
express written permission to a broadband service
provider supplier to utilize an existing electric
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easement ; and
(ii) subject to the terms of applicable safety
standards, the structural integrity of the electric
infrastructure and the electric cooperative corporation's
rules and fees for the attachments.
(4) An electric cooperative corporation that elects to
provide RETAIL broadband services , THROUGH AN AFFILIATE, as a
broadband service supplier shall permit other providers
suppliers of such services nondiscriminatory access to attach
to electric infrastructure, owned or controlled by the
electric cooperative corporation, pursuant to the rates,
terms and conditions comparable to and no less favorable than
those offered to an affiliate of an electric cooperative
corporation engaged in the provision of retail broadband
services. NOTHING IN THIS PARAGRAPH SHALL LIMIT, AMEND,
SUPERSEDE OR OTHERWISE ALTER THE RATES, TERMS AND CONDITIONS
ESTABLISHED UNDER EXISTING WRITTEN ATTACHMENT AGREEMENTS FOR
THE TERM OF SUCH AGREEMENTS EXCEPT AS PROVIDED UNDER
SUBPARAGRAPH (III) . THE FOLLOWING SHALL APPLY:
(I) EXCEPT AS PROVIDED UNDER SUBPARAGRAPH (II), AN
ELECTRIC COOPERATIVE CORPORATION SHALL PROVIDE WRITTEN
NOTICE, BY FIRST CLASS MAIL, TO ANY BROADBAND SERVICE
SUPPLIER WITH WHICH IT HAS AN EXISTING WRITTEN AGREEMENT
GOVERNING THE BROADBAND SERVICE SUPPLIER'S ATTACHMENTS TO
ELECTRIC INFRASTRUCTURE OWNED OR CONTROLLED BY THE
ELECTRIC COOPERATIVE CORPORATION, WITHIN 90 DAYS OF THE
DATE ON WHICH AN ELECTRIC COOPERATIVE CORPORATION'S
AFFILIATE BEGINS OFFERING RETAIL BROADBAND SERVICES OVER
BROADBAND FACILITIES.
(II) AN ELECTRIC COOPERATIVE CORPORATION THAT IS
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PROVIDING RETAIL BROADBAND SERVICE THROUGH AN AFFILIATE
AS OF THE EFFECTIVE DATE OF THIS SECTION SHALL NOT BE
REQUIRED TO SEND THE NOTICE REQUIRED UNDER SUBPARAGRAPH
(I).
(III) FOR A PERIOD OF FIVE YEARS FROM RECEIPT OF THE
NOTICE REQUIRED UNDER SUBPARAGRAPH (I), OR FROM THE
EFFECTIVE DATE OF THIS SECTION IF SUBPARAGRAPH (II)
APPLIES, A BROADBAND SERVICE SUPPLIER THAT HAS AN
EXISTING WRITTEN ATTACHMENT AGREEMENT WITH THE ELECTRIC
COOPERATIVE CORPORATION SHALL HAVE THE RIGHT TO ATTACH TO
THE POLES OF THAT ELECTRIC COOPERATIVE CORPORATION AT
RATES THAT SHALL NOT EXCEED THE THEN-EFFECTIVE RATES IN
THE EXISTING AGREEMENT, SUBJECT TO PERMISSIBLE PERIODIC
RATE ADJUSTMENTS PROVIDED IN THE EXISTING AGREEMENT.
(5) AN ELECTRIC COOPERATIVE CORPORATION MAY NOT DO ANY
OF THE FOLLOWING:
(I) REQUIRE A PERSON TO PURCHASE BROADBAND SERVICES
FROM AN AFFILIATE OF THE ELECTRIC COOPERATIVE CORPORATION
AS A CONDITION OF RECEIVING OR CONTINUING TO RECEIVE
ELECTRIC ENERGY FROM THE ELECTRIC COOPERATIVE
CORPORATION; OR
(II) DISCONNECT, OR THREATEN TO DISCONNECT, ELECTRIC
SERVICE TO A CUSTOMER DUE TO THE CUSTOMER'S FAILURE TO
PAY FOR BROADBAND SERVICES PROVIDED TO THE CUSTOMER BY
THE ELECTRIC COOPERATIVE CORPORATION OR AN AFFILIATE.
(b) Applicability.-- Except for the replacement or relocation
of existing poles or as otherwise provided by law, subsection
(a)(2) shall not apply to the attachment of broadband facilities
that are additional freestanding or ground-based structures
within the easement.
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(C) CROSS-SUBSIDIZATION.--THE FOLLOWING SHALL APPLY:
(1) AN ELECTRIC COOPERATIVE CORPORATION THAT SUPPLIES
RETAIL BROADBAND SERVICES THROUGH AN AFFILIATE SHALL ENSURE
THAT THE RATES CHARGED FOR THE PROVISION OF ELECTRIC SERVICE
DO NOT INCLUDE ANY OF ITS AFFILIATE'S RETAIL BROADBAND
SERVICE COSTS AND SHALL NOT USE ITS ELECTRIC SERVICE REVENUES
TO SUBSIDIZE THE PROVISION OF RETAIL BROADBAND SERVICES TO
THE PUBLIC BY AN AFFILIATE.
(2) AN ELECTRIC COOPERATIVE CORPORATION MAY MAKE CAPITAL
INVESTMENTS IN AN AFFILIATE, MAKE LOANS FOR THE BENEFIT OF AN
AFFILIATE, ENTER INTO CAPITAL OR OPERATING LEASES WITH THE an
AFFILIATE AND ENTER INTO GUARANTEES OR OTHER SECURITY
ARRANGEMENTS FOR THE BENEFIT OF THE an AFFILIATE, ALL OF
WHICH MAY BE IN AMOUNTS, ON TERMS AND SUBJECT TO CONDITIONS
AS THE ELECTRIC COOPERATIVE CORPORATION'S BOARD OF DIRECTORS
APPROVES AND DETERMINES TO BE PRUDENT OR APPROPRIATE.
(c) (D) Construction.--Except as otherwise provided under
this chapter, nothing in this chapter shall limit any of the
rights that exist under the laws of this Commonwealth of any
broadband service supplier to secure its own easements for the
construction or installation of broadband facilities or the
provision of broadband services . OR TO NEGOTIATE SEPARATE TERMS
OR AGREEMENTS FOR ATTACHMENTS TO ELECTRIC INFRASTRUCTURE, OWNED
OR CONTROLLED BY AN ELECTRIC COOPERATIVE CORPORATION .
Section 2. This act shall take effect in 60 days.
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