§ 8092. Rates; terms; conditions

(a) Any company providing electric or gas service under Public Utility Commission jurisdiction pursuant to this title shall prepare and file with the Public Utility Commission, with a copy provided to the Commissioner of Public Service and the Director for Public Advocacy, a statement of generally available rates, terms, and conditions for attachments and installations required under section 8091 of this chapter. The nature and specificity of such statement may take into account the nature and size of the company, an assessment of the types of communications facilities for which requests are most likely, and such other factors as necessary to ensure that the rates, terms, and conditions set forth in the statement are sufficiently flexible to meet the capacities of the company, the interests of the company's ratepayers, and the goal of facilitating broadband and wireless service.

(b) The Department and the Commission shall review the statement of generally available rates, terms, and conditions filed by each company. In the event that the Commission or the Department has grounds to believe that the rates, terms, or conditions are not just and reasonable, the Commission may open an investigation into the statement. In the absence of an investigation, or while such an investigation is pending, the company's filed statement of rates, terms, and conditions shall take effect or shall remain in effect without requiring the approval of the Commission. Changes to any company's filed statement of rates, terms, and conditions shall not take effect until 45 days after the statement has been filed with the Commission and the Department.

(c) In the event of a Commission investigation into a company's statement of rates, terms, and conditions pursuant to this chapter, the Commission may alter or change the rates, terms, or conditions in effect for attachments and installations after notice and hearing, upon a finding that the company's rates, terms, or conditions are not just and reasonable. In making its determination, the Commission shall consider evidence that may be presented regarding the commercial reasonableness of the rates given the local market and the public interest in reasonable rates for electric or gas service and availability of communications services in the State. Any change in rates, terms, and conditions required as a result of a Commission investigation shall be effective as of the date of the Commission's order without any refund.

(d) The statement shall include rates, terms, and conditions for services for which the company may reasonably expect to receive requests, including at a minimum:

(1) For wireline communications facilities:

(A) Attachment of communications facilities to electric transmission facilities and maintenance of these communications facilities.

(B) Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric and gas company facilities when requested by a communications service provider.

(2) For wireless communication facilities:

(A) Attachment of communications facilities to electric transmission and generation facilities and maintenance of these communications facilities.

(B) Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric company facilities when requested by a communications service provider.

(e) Rates, terms, and conditions for contributions to construction and for maintenance of communications facilities installed concurrently when companies are constructing or substantially reconstructing electric transmission or distribution lines or structures or gas transmission lines shall be based on the incremental cost of adding the communications facility to the project, as long as the communications facilities will provide service in the municipality in which they are located and surrounding municipalities.

(f) The company may negotiate rates, terms, and conditions of service that deviate from the statement of rates, terms, and conditions on file, but the company may not refuse a request to provide service in accordance with the rates, terms, and conditions on file. Section 229 of this title does not apply to deviations from the statement of rates, terms, and conditions, unless a company provides service pursuant to this chapter to an affiliate of the company that is not an electric or gas utility.

(g) Companies with facilities meeting the requirements of this section shall submit their statement of rates, terms, and conditions within 150 days of the date of the enactment of this legislation.

(h)(1) A company may limit wireline attachments on electric transmission structures exclusively carrying voltages of 110 kV or higher to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities on such electric transmission structures where there are not sufficient facilities for use by communications service providers. Rates, terms, and conditions for access to such company-attached and company-maintained facilities shall be made available consistent with the requirements of this section.

(2) Notwithstanding any law or rule to the contrary, a company may not enter into a contract with a communications service provider that provides exclusive access to its company-attached and company-maintained fiber-optic facilities by including terms that expressly prohibit any other communications service provider from leasing or purchasing unused strands of fiber. The terms and conditions of any contract entered into under this section shall include a provision specifying that, if a communications service provider leases fiber-optic capacity but fails to use that capacity within one year from the date the contract is entered into, the communications service provider shall report such nonuse to the Department of Public Service. The Commissioner of Public Service shall determine if such nonuse constitutes anticompetitive behavior that unreasonably precludes another communications service provider from leasing fiber-optic capacity. If the Commissioner determines that such nonuse constitutes anticompetitive behavior, he or she shall commence an investigation with the Public Utility Commission. The Commission is authorized to impose a remedy it deems appropriate under the circumstances. Such remedy may include termination of the lease with respect to the unused portion of the leased fiber-optic capacity.

(i) The Public Utility Commission may establish rules to implement this chapter. Such rules may include default rates, terms, and conditions to implement subsections (c) and (h) of this section. As part of the implementation of this chapter, the Commission shall establish rules to require, to the extent the Commission is not preempted, communications providers to extend their facilities as far as the Commission's authority permits.

(j) A company having electric transmission or distribution structures carrying voltages of 110 kV or lower may not enter into a contract with a communications service provider that provides exclusive access to its company-attached and company-maintained fiber-optic facilities by including terms that expressly prohibit any other communications service provider from leasing or purchasing unused strands of fiber. The terms and conditions of any contract entered into under this section shall include a provision specifying that, if a communications service provider leases fiber-optic capacity but fails to use that capacity within one year from the date the contract is entered into, the communications service provider shall report such nonuse to the Department of Public Service. The Commissioner of Public Service shall determine if such nonuse constitutes anticompetitive behavior that unreasonably precludes another communications service provider from leasing fiber-optic capacity. If the Commissioner determines that such nonuse constitutes anticompetitive behavior, he or she shall commence an investigation with the Public Utility Commission. The Commission is authorized to impose a remedy it deems appropriate under the circumstances. Such remedy may include termination of the lease with respect to the unused portion of the leased fiber-optic capacity. (Added 2007, No. 131 (Adj. Sess.), § 2; amended 2011, No. 53, § 10, eff. May 27, 2011.)