HSB 185 (LSB 1615YC (6) 91)

HOUSE FILE _____ 

BY  (PROPOSED COMMITTEE ON ECONOMIC GROWTH AND TECHNOLOGY BILL BY CHAIRPERSON SORENSEN)

A BILL FOR

An Act related to using electric transmission and distribution easements held by electric cooperatives for broadband service, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  8.87A  Electric cooperatives —— easements for broadband.
   1.  For purposes of this section, “electric cooperative” means the same as defined in section 390.1 and includes any affiliate.
   2.  An electric cooperative may authorize in an electric transmission or distribution easement held by the electric cooperative the placement of broadband infrastructure, which may include the placement of fiberoptic cable facilities, in the easement by a communications service provider. To exercise rights granted under this subsection, the electric cooperative must provide to the property owner on which the easement is located written notice that the electric cooperative intends to authorize the placement of broadband infrastructure in the easement for the expansion of broadband services. The right to use the easement for broadband services vests in the electric cooperative and runs with the land beginning six months after notice is received under subsection 3, paragraph “a”, unless a court action challenging the use of the easement for broadband purposes has been filed by the property owner as provided under subsection 4 before the right vests. The electric cooperative must also record evidence of the notice with the county recorder.
   3.  a.  The electric cooperative’s notice under subsection 2 must be sent by first class mail to the last known address of the owner of the property on which the easement is located or by printed insertion in the property owner’s utility bill. The notice must include all the following:
   (1)  The name and mailing address of the electric cooperative and the communications service provider that will provide broadband service.
   (2)  A narrative describing the nature and purpose of the intended easement use.
   (3)  A description of any trenching or other underground work expected to result from the intended use, including the anticipated time frame for the work.
   b.  After the right to use the easement for broadband services vests in the electric cooperative, the electric cooperative must send an additional notice to the owner of the property on which the easement is located if the communications service provider changes or additional work not described under paragraph “a”, subparagraph (3), is needed. The notice requirement does not apply to general maintenance or minor repairs of the broadband infrastructure. The notice must describe any changes from the notice sent under paragraph “a”. The notice must be sent not less than thirty days before the communications service provider changes or additional work occurs.
   4.  A property owner, within six months after receiving notice under subsection 3, paragraph “a”, may commence an action seeking to recover damages for an electric cooperative’s use of an electric transmission or distribution easement for broadband service purposes. Notwithstanding any other law to the contrary, the procedures and substantive matters set forth in this section govern an action under this subsection and are the exclusive means to bring a claim for compensation with respect to a notice of intent to use an electric cooperative’s transmission or distribution easement for broadband purposes. To commence an action under this subsection, the property owner must serve a complaint upon the electric cooperative in a civil action and file the complaint with the district court for the county in which the easement is located. The complaint must state one of the following:
   a.  The property owner is challenging the electric cooperative’s right to use the easement for broadband services or infrastructure as authorized under subsection 2.
   b.  The property owner is seeking damages as provided under subsection 5.
   c.  The property owner is asserting claims under both paragraphs “a” and “b”.
   5.  If the property owner is seeking damages, the electric cooperative may, at any time after answering the complaint, deposit with the court administrator an amount equal to the electric cooperative’s estimate of damages or one dollar if damages are estimated to be not more than nominal. After a deposit has been made pursuant to this subsection, the electric cooperative may use the electric transmission or distribution easements for broadband service purposes, conditioned on an obligation to pay the amount of damages determined by the court.
   6.  If the property owner is challenging the electric cooperative’s right to use the easement for broadband services or infrastructure as authorized under subsection 2, after the electric cooperative answers the complaint the district court must promptly hold a hearing on the property owner’s challenge. If the district court denies the property owner’s challenge, the electric cooperative may proceed to make a deposit and make use of the easement for broadband service purposes, as provided under subsection 5.
   7.  In an action involving a property owner’s claim for damages, the property owner has the burden to prove the existence and amount of any net reduction in the fair market value of the property, considering the existence, installation, construction, maintenance, modification, operation, repair, replacement, or removal of broadband infrastructure in the easement, as well as any benefit to the property from access to broadband service. Consequential or special damages shall not be awarded. Evidence of revenue, profits, fees, income, or similar benefits to the electric cooperative or a third party is inadmissible. Any fees or costs incurred as a result of an action under this section must be paid by the party that incurred the fees or costs.
   8.  Nothing in this section limits in any way an electric cooperative’s existing easement rights, including but not limited to rights an electric cooperative has or may acquire to transmit communications for electric system operations or otherwise.
   9.  Placement of broadband infrastructure for use in providing broadband service under this section in any portion of an electric transmission or distribution easement located in the public right-of-way is subject to the local government’s existing general police powers to control the use of its right-of-way and the department of transportation’s authority under section 318.9, and the placement shall be coordinated with the relevant authority to minimize potential future relocations. The electric cooperative shall notify the relevant authority prior to the placement of broadband infrastructure in an easement that is in or adjacent to that relevant authority’s public right-of-way.
    Sec. 2.  EFFECTIVE DATE.  This Act, being deemed of immediate importance, takes effect upon enactment.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to using easements held by electric cooperatives for purposes of expanding broadband service.
   The bill allows an electric cooperative to authorize within its electric transmission or distribution easements the placement of broadband infrastructure, which may include fiberoptic cable facilities, by a communications service provider.
   The bill requires the electric cooperative to provide the owner of the property on which the easement is located a written notice when the electric cooperative intends to use the easement for broadband purposes and provides the required procedure and contents of the notice. The electric cooperative is allowed to use the easement for broadband services six months after notice is received by the property owner unless the property owner has filed a challenge with the courts contesting the use of the easement within six months of the initial notice. The bill provides additional notice requirements in the event the communications service provider changes or additional work not included in the original notice is necessary after the right to use the easement for broadband purposes vests with the electric cooperative.
   The bill allows for the property owner to commence action against the electric cooperative by either seeking to recover damages or challenging the electric cooperative’s right to use the easement within six months of receiving the notice and provides procedures.
   If the property owner is seeking damages, the bill allows the electric cooperative to deposit with the court administrator an amount equal to the electric cooperative’s estimate of damages or $1 if damages are estimated to be not more than nominal once the complaint has been answered. After the deposit has been made the electric cooperative may use the electric transmission or distribution easements for broadband purposes, conditioned on an obligation to pay the amount of damages determined by the court.
   If the property owner is challenging the electric cooperative’s right to use the easement for broadband services or infrastructure, the bill directs the district court to promptly hold a hearing on the property owner’s challenge once the complaint has been answered by the electric cooperative. If the district court denies the property owner’s challenge, the electric cooperative may proceed to make a deposit and make use of the easement for broadband service purposes.
   The bill requires that in an action involving a property owner’s claim for damages, the property owner has the burden to prove the existence and amount of any net reduction in the fair market value of the property, considering the existence, installation, construction, maintenance, modification, operation, repair, replacement, or removal of broadband infrastructure in the easement, as well as any benefit to the property from access to broadband service. The bill states that in these actions, consequential or special damages will not be awarded and that evidence of revenue, profits, fees, income, or similar benefits to the electric cooperative, its affiliates, or a third party is inadmissible. The bill directs any fees or costs incurred as a result of an action to be paid by the party that incurred the fees or costs.
   The bill expounds that the bill does not limit in any way an electric cooperative’s existing easement rights.
   The bill explains that the electric cooperative’s placement of broadband infrastructure in any portion of an electric transmission or distribution easement located in the public right-of-way is subject to the local government’s existing general police powers to control the use of its right-of-way and the department of transportation’s authority. The bill directs the electric cooperative to coordinate placement with the relevant authority to minimize potential future relocations and to notify the authority prior to placing infrastructure for broadband service in an easement that is in or adjacent to that authority’s public right-of-way.
   The bill takes effect upon enactment.