First Regular Session

Sixty-first General Assembly

LLS NO. 97­0435.01D DHG HOUSE BILL 97­1319

STATE OF COLORADO

BY REPRESENTATIVES McElhany, Schauer, Dean, and T. Williams;

also SENATORS J. Johnson, Chlouber, R. Powers, and Tebedo.

ENGROSSED

BUSINESS AFFAIRS & LABOR

A BILL FOR AN ACT

CONCERNING REGULATION BY THE PUBLIC UTILITIES COMMISSION OF CONTRACTS GOVERNING ACCESS BY CABLE TELEVISION COMPANIES TO DISTRIBUTION FACILITIES OF ELECTRIC UTILITIES.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Directs the public utilities commission to ensure that contracts between cable television companies and electric utilities, for access to facilities such as utility poles, be in the public interest. For purposes of determining whether such contracts are in the public interest, lists factors the commission is required to consider, including whether contract provisions place an undue burden or expense on either party and whether penalty provisions appear to exceed the actual costs of a breach or the rental income and interest likely to accrue after a breach and before the breach is remedied or cured. Grants the commission jurisdiction over federally regulated cable companies to the extent necessary to enforce these requirements.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  40­4­105, Colorado Revised Statutes, 1993 Repl. Vol., is amended to read:

40­4­105.  Joint use of equipment and facilities. (1)  Whenever the commission, after a hearing upon its own motion or upon complaint of a public utility affected, finds that the public convenience and necessity require the use by one public utility of the conduits, subways, tracks, wires, poles, pipes, or other equipment, or any part thereof on, over, or under any street or highway which belongs to another public utility, and that such use will not result in irreparable injury to the owners or other users of such conduits, subways, wires, tracks, poles, pipes, or other equipment, or in any substantial detriment to the service, and that such public utilities have failed to agree upon such use or the terms and conditions or compensation for the same, the commission by order may direct that such use be permitted and prescribe reasonable compensation and reasonable terms and conditions for the joint use. If such use is directed, the public utility to whom the use is permitted shall be liable to the owner or other users of such conduits, subways, tracks, wires, poles, pipes, or other equipment for such damage as may result therefrom to the property of such owners or other users thereof.

(2) (a)  TO THE EXTENT NECESSARY FOR THE ENFORCEMENT OF THIS SUBSECTION (2), AND TO THE EXTENT THAT RATES FOR ACCESS AS CONTEMPLATED IN THIS SECTION WERE NOT, AS OF JANUARY 1, 1997, SUBJECT TO REGULATION UNDER FEDERAL LAW AND RULES, THE COMMISSION IS HEREBY GRANTED JURISDICTION TO REVIEW AND APPROVE CONTRACTS ENTERED INTO BY PERSONS PROVIDING CABLE SERVICES, AS DEFINED BY SECTION 602(5) OF THE FEDERAL "CABLE COMMUNICATIONS POLICY ACT OF 1984", 47 U.S.C. SEC. 522(c), PURSUANT TO AUTHORITY GRANTED BY THE FEDERAL COMMUNICATIONS COMMISSION. SUCH PERSONS SHALL BE REFERRED TO IN THIS SUBSECTION (2) AS "CABLE COMPANIES".

(b)  THE COMMISSION, UPON REQUEST BY ANY PARTY TO THE CONTRACT, SHALL ENSURE THAT ANY CONTRACT BETWEEN A CABLE COMPANY AND A PUBLIC UTILITY PROVIDING ELECTRIC ENERGY, UNDER WHICH CONTRACT THE CABLE COMPANY IS GRANTED ACCESS TO THE CONDUITS, WIRES, POLES, OR OTHER EQUIPMENT OF SUCH PUBLIC UTILITY, IS IN THE PUBLIC INTEREST. IN DETERMINING WHETHER SUCH A CONTRACT IS IN THE PUBLIC INTEREST, THE COMMISSION SHALL CONSIDER THE FOLLOWING FACTORS, AT A MINIMUM:

(I)  WHETHER THE PROVISIONS OF THE CONTRACT ARE FAIR, JUST, REASONABLE, COST­BASED, AND SUFFICIENT TO DETER VIOLATIONS OF THE CONTRACT;

(II)  WHETHER ANY PENALTY PROVIDED FOR IN THE CONTRACT APPEARS TO EXCEED THE ACTUAL, DIRECT DAMAGES THAT WILL PROXIMATELY RESULT FROM A BREACH OF THE OPERATIVE PROVISIONS OF THE CONTRACT, INCLUDING BUT NOT LIMITED TO LOST RENTAL INCOME, PLUS REASONABLE INTEREST, THAT WILL ACCRUE AFTER A BREACH AND BEFORE SUCH BREACH IS REMEDIED OR CURED AND WHETHER ANY PENALTY PROVISION IS SUFFICIENT TO DETER VIOLATIONS OF THE CONTRACT; AND

(III) WHETHER ANY PROVISION OF THE CONTRACT TENDS TO RESTRICT COMPETITION IN THE RELEVANT TELECOMMUNICATIONS MARKET OR TO CONFLICT WITH THE LEGISLATIVE INTENT TO ENCOURAGE SUCH COMPETITION.

(c)  ANY CABLE COMPANY THAT REQUESTS THE COMMISSION TO ACT PURSUANT TO PARAGRAPH (b) OF THIS SUBSECTION (2) SHALL PAY TO THE COMMISSION ITS ACTUAL AND NECESSARY COSTS INCURRED AS A RESULT OF SUCH REQUEST.

(3)  THIS SUBSECTION (2) SHALL NOT APPLY TO CONTRACTS BETWEEN CABLE COMPANIES AND COOPERATIVE ELECTRIC ASSOCIATIONS.

SECTION 2.  Effective date ­ applicability. (1)  This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety­day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution; except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor.

(2)  The provisions of this act shall apply to contracts entered into or renewed on or after the applicable effective date of this act.