MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Public Utilities
By: Representative Ellis (By Request)
AN ACT TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-801, MISSISSIPPI CODE OF 1972, TO NAME THE ACT AS THE "BROADBAND OVER POWER LINES ACT"; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-803, MISSISSIPPI CODE OF 1972, TO DECLARE LEGISLATIVE FINDINGS; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-805, MISSISSIPPI CODE OF 1972, TO DEFINE CERTAIN TERMS USED IN THE ACT; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-807, MISSISSIPPI CODE OF 1972, TO AUTHORIZE AN ELECTRIC UTILITY, AN AFFILIATE OF AN ELECTRIC UTILITY OR A PERSON UNAFFILIATED WITH AN ELECTRIC UTILITY TO OWN, CONSTRUCT, MAINTAIN AND OPERATE A BPL SYSTEM; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-809, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE OWNERSHIP AND OPERATION OF BPL SYSTEMS; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-811, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT NO AGENCY, INSTRUMENTALITY OR POLITICAL SUBDIVISION OF THE STATE SHALL HAVE JURISDICTION OVER AN ELECTRIC UTILITY'S OWNERSHIP OR OPERATION OF A BPL SYSTEM, EXCEPT PROVIDED IN THIS ACT; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-813, MISSISSIPPI CODE OF 1972, TO AUTHORIZE FEES AND CHARGES FOR THE COSTS INCURRED TO OWN, OPERATE, CONSTRUCT AND MAINTAIN A BPL SYSTEM; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 77-3-815, MISSISSIPPI CODE OF 1972, TO REQUIRE AN ELECTRIC UTILITY THAT INSTALLS OR OPERATES A BPL SYSTEM ON ITS ELECTRIC DELIVERY SYSTEM TO MAINTAIN THE RELIABILITY OF THE UTILITY'S ELECTRIC SYSTEM; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 11-27-28, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THERE IS NO ADDITIONAL TAKING WHEN USES HAVE NO SUBSTANTIAL IMPACT UPON THE SERVIENT ESTATE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 77-3-801, Mississippi Code of 1972:
77-3-801. Title. This article shall be known and may be cited as the "Broadband Over Power Lines Act" or the "BPL Act."
SECTION 2. The following shall be codified as Section 77-3-803, Mississippi Code of 1972:
77-3-803. Legislative findings. (1) The Legislature finds that broadband over power lines, also known as BPL, is an emerging technology platform that offers a means of providing broadband services to reach homes and businesses. BPL services can also be used to enhance existing electric delivery systems, which can result in improved service and reliability for electric customers.
(2) The Legislature finds that access to quality, high speed broadband services is important to this state. BPL deployment in Mississippi may provide an additional option for broadband consumers in Mississippi, resulting in a more competitive market for broadband services. The Legislature further finds that BPL development in Mississippi is dependent upon the participation of electric utilities in this state that own and operate power lines and related facilities that are necessary for the construction of BPL systems and the provision of BPL services.
(3) Consistent with the goal of increasing options for broadband services in this state, the Legislature finds that it is in the public interest to encourage the deployment of broadband services.
(4) The Legislature finds that an electric utility should be able to choose to implement BPL under the procedures set forth in this article but should not be required to do so, and that an electric utility has the right to decide, in its sole discretion, whether to implement BPL and may not be penalized for deciding to implement or not to implement BPL.
SECTION 3. The following shall be codified as Section 77-3-805, Mississippi Code of 1972:
77-3-805. Definitions. As used in this article:
(a) "BPL," "broadband over power lines" or "BPL services" means the provision of connectivity to a high-speed, high-capacity transmission medium that can carry signals from network carriers over electric power lines and related facilities, whether above or below ground;
(b) "BPL access" means the ability to access BPL services via a BPL operator or BPL Internet service provider;
(c) "BPL affiliate" or "affiliate" means an entity that is at least ten percent (10%) owned or controlled, directly or indirectly, by the electric utility and formed to provide BPL services;
(d) "BPL Internet service provider" means an entity that provides Internet BPL services to others on a wholesale basis or to end-use customers on a retail basis;
(e) "BPL operator" means an entity that owns or operates a BPL system on the electric power lines and related facilities of an electric utility;
(f) "BPL system" means the materials, equipment and other facilities installed to facilitate the provision of BPL services;
(g) "Electric delivery system" means the power lines and related facilities used by an electric utility to deliver electric energy;
(h) "Electric utility" means a public utility as defined in Section 77-3-3(d)(i) that is engaged in the business of generating, transmitting or distributing electric power to or for the public for compensation.
SECTION 4. The following shall be codified as Section 77-3-807, Mississippi Code of 1972:
77-3-807. Authorization for BPL system. (1) An electric utility, an affiliate of an electric utility, or a person unaffiliated with an electric utility may own, construct, maintain and operate a BPL system and provide BPL services on an electric utility's electric delivery system.
(2) No electric utility is or shall be required to implement a BPL system, provide BPL services, or allow others to install BPL facilities or use the electric utility's facilities to provide BPL services.
(3) An electric utility, a BPL affiliate or a BPL operator may elect to install and operate a BPL system on part or all of an electric utility's electric delivery system in any part or all of its certificated service territory.
(4) An electric utility may provide construction or maintenance services to a BPL affiliate, BPL operator or BPL Internet service provider provided that the costs of these services are properly accounted for between the electric utility and the BPL affiliate, BPL operator or BPL Internet service provider.
SECTION 5. The following shall be codified as Section 77-3-809, Mississippi Code of 1972:
77-3-809. Ownership and operation of BPL system. (1) An electric utility may:
(a) Own or operate a BPL system on the electric utility's electric delivery system;
(b) Allow an affiliate to own or operate a BPL system on the electric utility's electric delivery system;
(c) Allow an unaffiliated entity to own or operate a BPL system on the electric utility's electric delivery system;
(d) Provide BPL services, including without limitation, Internet service over a BPL system; and
(e) Allow an affiliate or unaffiliated entity to provide BPL service, including without limitation, Internet service over a BPL system.
(2) The electric utility in its sole discretion shall determine which BPL Internet service providers may have access to BPL capacity on the BPL system.
SECTION 6. The following shall be codified as Section 77-3-811, Mississippi Code of 1972:
77-3-811. Jurisdiction. (1) Except as provided in this article, no agency, instrumentality or political subdivision of the state has or shall have jurisdiction over:
(a) An electric utility's ownership or operation of a BPL system; or
(b) The provision of BPL services by the electric utility, a BPL affiliate or a BPL operator.
(2) Nothing in this article shall interfere with the Mississippi Public Service Commission's authority to regulate public utilities pursuant to Section 77-3-1 et seq.
(3) No payments will be made to any municipality under Section 77-3-17 pursuant to or as a result of an electric utility, a BPL affiliate or a BPL operator owning, constructing, maintaining or operating a BPL system or providing BPL services.
(4) No agency, instrumentality or political subdivision of the state shall impose any franchise fees or other payments upon any provider of BPL services.
(5) No agency, instrumentality or political subdivision of the state shall:
(a) Require an electric utility, either through an affiliate or an unaffiliated entity, to install a BPL system on its electric delivery system or otherwise, nor to offer BPL services in all or any part of the electric utility's certificated service area;
(b) Require an electric utility to allow others to install a BPL system on the utility's electric delivery system in any part or all of the electric utility's certificated service area; or
(c) Prohibit an electric utility from having an affiliate or unaffiliated entity install a BPL system or offering BPL services in any part or all of the electric utility's certificated service area.
SECTION 7. The following shall be codified as Section 77-3-813, Mississippi Code of 1972:
77-3-813. Fees and charges. (1) An electric utility may charge a BPL affiliate, an unaffiliated BPL Internet service provider or a BPL operator for the use of the electric utility's electric delivery system and for the costs of the construction, installation, operation and maintenance of the BPL system of the BPL affiliate, unaffiliated BPL Internet service provider or BPL operator.
(2) (a) The costs incurred by an electric utility to own, operate, construct and maintain a BPL system and to provide BPL services on its electric delivery system either by itself or through a BPL affiliate or BPL operator shall be allocated and accounted for in accordance with generally accepted accounting principles.
(b) (i) Costs allocated to nonregulated BPL services:
1. Are outside the scope of an electric utility's providing of electric service to the public;
2. Shall not be recoverable through its rates for the providing of electric service; and
3. Are not subject to the jurisdiction of any agency, instrumentality or political subdivision of the state.
(ii) Revenues received by an electric utility attributable to the providing of nonregulated BPL services shall not be included as revenues to the electric utility for purposes of establishing its rates for the providing of electric service.
(3) (a) If all or part of a BPL system is installed on poles or other structures of a telephone utility and the BPL operator is unaffiliated with the electric utility that owns the electric delivery system, before installing equipment the unaffiliated BPL operator shall enter into the customary agreement used by the telephone utility and shall pay the telephone utility an annual fee consistent with the usual and customary charges for access to the space occupied by that portion of the BPL system.
(b) If all or part of a BPL system is installed on poles or other structures of a telephone utility and the BPL operator is an electric utility or BPL affiliate, the existing contract governing placement of the electric utility's attachments on poles or other structures shall apply and no additional annual fee or approval shall be required if the BPL system is installed within the space allocated for electric service under the contract.
SECTION 8. The following shall be codified as Section 77-3-815, Mississippi Code of 1972:
77-3-815. Reliability of electric systems maintained. (1) An electric utility that installs or operates or permits the installation or operation of a BPL system on its electric delivery system shall employ reasonable measures to maintain the reliability of the electric utility's electric delivery system.
(2) The provision of BPL services shall be at all times secondary to the reliable provision of electric delivery service.
SECTION 9. The following shall be codified as Section 11-27-28, Mississippi Code of 1972:
11-27-28. No additional easements or consideration required. Grants, transfers or other conveyances of easements, servitudes, rights-of-way, licenses or other rights of use of real property, including takings by way of condemnation or eminent domain proceedings, whether existing and of record as of July 1, 2010, or whether made, created or taken after July 1, 2010, are declared to be and shall be treated as (1) apportionable, (2) easements in gross, as such rights of use are not appurtenances to any estate in land, and (3) granting to the purchaser, grantee, transferee or condemnor, and any successors, assigns or licensees of all or any part of such rights of use, full authority to put such real property to any use that does not impose a substantial additional burden in fact upon the landowner's servient estate, including, but not limited to, any use that may be considered a technological advance and any use that is not incompatible with the original use. No such new use is an additional taking or an additional servitude so long as it does not impose a substantial additional burden in fact upon the landowner's servient estate.
SECTION 10. This act shall take effect and be in force from and after its passage.