HOUSE OF REPRESENTATIVES

H.B. NO.

1782

THIRTY-FIRST LEGISLATURE, 2022

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO BROADBAND SERVICE INFRASTRUCTURE.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that development and investment in broadband facilities and services to rural, unserved, underserved, and urban communities is vital and necessary to promote industrial and economic development, create job opportunities, and enhance health care and education within the State. The legislature believes that the State needs to take action to ensure the provision of broadband facilities and services to its citizens.

The legislature further finds that electric utilities are well-positioned to serve as a middle mile infrastructure provider to communities throughout their service territories as it serves the public interest with minimal impact or burden on the underlying property owner. The National Association of Regulatory Utility Commissioners, a non-profit organization that seeks to improve the quality and effectiveness of public utility regulation and ensure that utility services are provided at rates and conditions that are fair, reasonable, and nondiscriminatory for all consumers, supports both a limited grant of authorization to electric utilities that provide broadband facilities and minimal regulation of electric utilities that contribute to broadband expansion.

Therefore, the purpose of this Act is to utilize electric easements and public rights of way to support broadband deployment by allowing an electric utility to own, operate, lease, plan, construct, install, maintain, or replace broadband facilities, including middle mile infrastructure, to help facilitate the development of and investment in broadband facilities and services to rural, unserved, underserved, and urban communities throughout the State.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

BROADBAND DEPLOYMENT OVER ELECTRIC EASEMENTS ACT

   -1 Short title. This chapter shall be known as the Broadband Deployment Over Electric Easements Act.

   -2 Definitions. As used in this chapter, unless the context requires otherwise:

"Broadband affiliate" means any person that directly or indirectly controls, is controlled by, or is under common control of one or more electric utilities, as defined herein, and participates in providing broadband services.

"Broadband facility" means any facility, including an electric utility's middle mile infrastructure or other equipment that can be used to facilitate, support, transmit, or provide, directly or indirectly, broadband services, including but not limited to wires; cables, including fiber optic and copper cables, whether the cables are dark or lit, and whether the cables are in use or dormant; ducts; conduits; antennas; equipment; fixtures; switching multiplexers; poles; routers; switches; servers; appurtenances; facilities; and ancillary or auxiliary equipment.

"Broadband service" has the same meaning as in section 440J-1.

"Electric easement" means a right-of-way or an easement, whether acquired by eminent domain, prescription, franchise, or conveyance, that is used or may be used for transmitting, distributing, or providing electrical energy and services by utilizing aboveground or underground wires, cables, lines, or similar facilities.

"Electric utility" means a public utility as defined in section 269-1.

"Middle mile infrastructure" means any broadband infrastructure that does not connect directly to an end-user location, including an anchor institution. "Middle mile infrastructure" includes:

(1) Leased dark fiber, interoffice transport, backhaul, internet exchange facilities, carrier-neutral submarine cable landing stations, undersea cables, transport connectivity to data centers, special access transport, and other similar services; and

(2) Wired or private wireless broadband infrastructure, including microwave capacity, radio tower access, and other services or infrastructure for a private wireless broadband network, such as towers, fiber, and microwave links.

"Person" means any individual, partnership, firm, association, public or private corporation, federal agency, the State or any of its political subdivisions, trust, estate, or any other legal entity.

"Utility support services" means broadband services and related services, uses, or purposes that support the generation, transmission, or distribution of electricity by an electric utility.

   -3 Authorized activities; electric utility. Notwithstanding any other statute, law, charter provision, ordinance, or rule to the contrary, an electric utility may engage in the following activities, in addition to all other activities authorized by law:

(1) Own, operate, lease (as lessor or lessee), plan, construct, install, maintain, or replace broadband facilities, including middle mile infrastructure;

(2) Provide or support the provision of broadband services; and

(3) Engage in any lawful act or activity necessary or convenient to carry out the purposes of paragraphs (1) and (2).

   -4 Electric easements for broadband. (a) Subject to compliance with any express prohibitions in a document creating an electric easement, an electric utility may construct, install, own, operate, lease, maintain, utilize, or replace broadband facilities, as a middle mile infrastructure provider, on, over, under, across, or within its electric easements.

(b) Subject to compliance with any express prohibitions in a document creating an electric easement, an electric utility may allow a broadband affiliate or any other person to construct, install, own, operate, lease, maintain, or replace broadband facilities on, over, under, across, or within the electric utility's electric easements on the agreement of, or the terms and conditions as specified by, the electric utility.

(c) Any person providing broadband services that makes use of an electric utility's electric easement or an electric utility's broadband facilities in an electric easement pursuant to this section shall enter into an agreement with the electric utility authorizing the person to use the electric easement for the provision of broadband services, and any other agreements, including pole attachment, colocation, or underground facility occupancy license agreements as the electric utility may require in its reasonable discretion.

(d) An electric utility may require any person authorized by the electric utility to own, construct, install, maintain, or remove broadband facilities in its electric easements to:

(1) Defend and indemnify the electric utility;

(2) Provide the electric utility with security instruments including bonds or letters of credit; or

(3) Provide the electric utility with the proof of insurance as the electric utility may reasonably require.

(e) An electric utility may apportion its electric easements for purposes of subsections (a) and (b).

(f) Utilizing existing electric easements pursuant to this section and section    -3 shall not materially alter the physical use of the easement, interfere with or impair any vested rights of the owner or occupier of the real property subject to the electric easement, or place any material additional burden on the property interests of the owner or occupier. Use of the electric easement shall be a compatible use, especially where the same electric easement is already being used in connection with utility support services.

(g) An electric utility may determine which broadband affiliate or other person may have access to the broadband facilities within its electric easements, and, subject to any required approval by the public utilities commission, to determine the rates, terms and conditions on which the broadband affiliate or other person may access the broadband facilities, including whether the access shall be on an exclusive or non-exclusive basis.

(h) Notwithstanding any other statute, law, charter provision, ordinance, or rule to the contrary, this chapter shall not require an electric utility to install or implement any broadband facilities or provide broadband services.

   -5 Liability; civil actions. (a) If, following an electric utility's or other person's exercise of its rights under this chapter, the owner of an interest in real property subject to an electric easement contends that the owner's property has been trespassed upon, taken, injured, damaged, or destroyed by the construction, installation, operation, use, enlargement of broadband facilities, or the provision of broadband services within the electric easement on the owner's property and the electric easement does not expressly provide for such, the owner may file a civil action in the circuit court for the county in which the property is located to recover damages as specified by this section. An action for relief under this section shall be brought within twelve months of:

(1) The effective date of this Act; or

(2) The date on which broadband facilities are first constructed or installed within the electric easement on the owner's real property,

whichever is later.

Nothing in this chapter shall revive any right or remedy that may have become barred by lapse of time, or by any law of the State, before the effective date of this Act.

(b) In any action under subsection (a), the measure of damages shall be an amount equal to the difference, if any, between the following:

(1) The fair market value of the owner's real property immediately before the construction or installation of broadband facilities within the electric easement on the owner's real property; and

(2) The fair market value of the owner's real property immediately after the construction or installation of broadband facilities within the electric easement on the owner's real property.

The court shall consider any positive value that access to broadband services may add to the property's value when calculating damages. When calculating damages, the court shall not consider evidence of past, current, or future revenues or profits derived or to be derived by the electric utility or any party constructing broadband facilities or providing broadband services, and such evidence shall not be admissible for any purpose in any proceeding.

(c) An owner of real property shall not bring an action under this section against an electric utility for an electric utility's apportionment of its electric easement to another person that subsequently constructs broadband facilities or provides broadband services on, over, under, across, or within the owner's real property.

(d) Damages awarded under this section, if any, shall be fixed and shall not be deemed to continue, accumulate, or accrue. Payment of the judgment in any action shall vest in the electric utility all property rights necessary to construct, use, install, operate, replace, and maintain, from time to time, the broadband facilities within the electric easement on the owner's real property, and the electric easement shall be thereafter permanently expanded to include the right to construct, use, install, operate, replace, and maintain the broadband facilities and to provide broadband services. The judgment shall have the same effect as a conveyance executed by the owner in due form under applicable law and shall run with the land. The expansion of the electric easement shall include the broadband facilities within the maintenance, egress, and ingress provisions of the electric easement.

(e) The civil action and measure of damages authorized by this section shall be the exclusive remedy for any and all claims that the owner's property has been trespassed upon or taken, or the scope of the electric easement exceeded, by the construction, installation, use, or enlargement of broadband facilities or the provision of broadband services within the electric easement on the owner's property. The owner shall not assert:

(1) Any other theory, claim, or cause of action, either at law or in equity, or recover any other damages, including without limitation, consequential, compensatory, or punitive damages; or

(2) A claim for injunctive relief to require the removal of broadband facilities or to enjoin the operation or provision of broadband services.

(f) An owner of real property who brings an action under this section shall not bring an action on behalf of a class. This limitation is a substantive limitation, and allowing an owner to bring a class action or other representative action for a violation of this chapter shall be construed to abridge, enlarge, or modify the substantive rights created by this chapter.

(g) With respect to the installation of broadband facilities within an electric easement, the electric utility shall provide the same notice as is required by the express terms of the electric easement, if any. If there is no written document creating the electric easement or no express terms in the document regarding notice, then the electric utility shall provide notice to the owner of the real property subject to the electric easement by informing the owner of the installation of the broadband facilities within the electric easement prior to installation. Notice shall be deemed sufficient if mailed to the name and address of the owner or owners listed in the real property ad valorem tax records for the county in which the real property is located. Nothing in this section shall require notice from the electric utility when the electric easement is acquired by condemnation or pursuant to an expansion of the electric easement by civil action commenced by the owner.

(h) This chapter shall not limit the liability of an electric utility or any other person for any claims or causes of action except as specifically set forth in this section.

   -6 Public utilities commission; oversight. (a) The public utilities commission shall develop an efficient regulatory review process to support the purposes of this chapter and the expeditious deployment of broadband by leveraging an electric utility's middle mile infrastructure and other broadband facilities in rural, unserved, underserved, and urban communities in the State.

(b) Except as specifically provided in subsection (a), nothing in this section shall be construed to alter section 269-19."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act shall take effect upon its approval.

 



 

Report Title:

Broadband Service Infrastructure; Broadband Deployment; Electric Easement

 

Description:

Allows an electric utility to own, operate, lease, plan, construct, install, maintain, or replace broadband facilities, including middle mile infrastructure, to help facilitate the development of and investment in broadband facilities and services to rural, unserved, underserved, and urban communities throughout the State. (HD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.