Tennessee § 65-25-105 - Powers of cooperative — Effect of chapter on third-party contractors.

§ 65-25-105. Powers of cooperative — Effect of chapter on third-party contractors.

Not inconsistent with or in lieu of, but in addition to, the powers set forth in title 48, chapter 53, a cooperative has the power to: Have a corporate seal and alter the same at will; provided, that it need not have, nor shall it for any purpose be necessary for it to use, such a seal; Become a member in or stockholder of one (1) or more other nonprofit cooperatives, corporations or other legal entities and to own the same, wholly or in part; Solely on its own, or jointly, as tenant in common or as a partner with one (1) or more other entities, construct, purchase, take, receive, lease as lessee or lessor, or otherwise acquire, and own, hold, use, equip, maintain, and operate and sell, assign, transfer, convey, exchange, lease back, mortgage, pledge, or otherwise dispose of or encumber any and all property, of whatever kind or nature and of whatever estate, real and personal, tangible and intangible, including choses in action; Purchase or otherwise acquire, and own, lease as lessor or lessee, lease back, hold, use, and exercise, and sell, assign, transfer, convey, mortgage, pledge, hypothecate, or otherwise dispose of or encumber, franchises, rights, privileges, licenses, rights-of-way, and easements; Secure any of its liabilities or obligations by mortgage, pledge, deed of trust, or any other encumbrance upon any or all of its then-owned or after-acquired real or personal property, assets, franchises, revenues, or income; Make any and all contracts necessary or convenient for the full exercise of the powers in this chapter granted, including, but not limited to, contracts with any person, federal agency, or municipality, for the purchase or sale of electric power and energy and, in connection with any such electric power and energy contract, stipulate and agree to such covenants, terms, and conditions as the board may deem appropriate, including covenants, terms, and conditions with respect to resale rates, financial and accounting methods, services, operation and maintenance practices, and, consistent with § 65-25-112, the manner of disposing of the revenues of the properties operated and maintained by the cooperative; Conduct its business and exercise any or all of its powers within or without this state; Adopt, amend, and repeal bylaws; Organize and promote and otherwise foster and participate in, through membership or ownership, including stock ownership, community, regional, or statewide or national organizations whose purposes are or include the promotion and assistance of economic, industrial or commercial development which the board of the cooperative determines will, or likely will, result in economic benefits to the cooperative or its members; Do and perform any and all other acts and things and have and exercise any and all other powers which may be necessary, convenient, or appropriate to accomplish the cooperative's purpose or purposes; With respect to a primary purpose and the secondary purpose of supplying telecommunications and broadband internet access and related services, but without limiting the generality or particularity of subdivisions (a)(1)-(10), construct, maintain, and operate, and allow others, so long as such others are permitted by law to operate such systems within the cooperative's service area, to operate, electric, or other telecommunications or broadband internet access and related services transmission and distribution lines or other conducting or communications facilities along, upon, under, and across all of the following: Real property, personal property, rights of way and easements owned, held, or otherwise used by the cooperative. Any easement owned, held, or otherwise used by the cooperative in pursuit of a primary purpose may be used for any secondary purpose; and Public thoroughfares, including, but not limited to, all roads, highways, streets, alleys, bridges, and causeways and publicly owned lands if the applicable authorities having jurisdiction over the public thoroughfares and lands consent, but consent shall not be unreasonably withheld or conditioned for the purpose of enabling the authority to gain competitive advantage with respect to the rendition by the authority or any other entity of a service that the cooperative also has a right to render; and With respect to a primary purpose, but without limiting the generality or particularity of subdivisions (a)(1)-(11): Generate, manufacture, purchase, acquire, and transmit, and transform, supply, distribute, furnish, deliver, sell, and dispose of, electric power and energy; Make loans to persons to whom electric power or energy is or will be supplied by the cooperative for the purpose of, and otherwise to assist such persons in, wiring their premises and installing therein electric and plumbing fixtures, appliances, apparatus, and equipment of any and all kinds and character, and, in connection therewith, purchase, acquire, lease, sell, distribute, install, and repair such electric and plumbing fixtures, appliances, apparatus, and equipment, and accept, or otherwise acquire, and sell, assign, transfer, endorse, pledge, hypothecate and otherwise dispose of, notes, bonds and other evidences of indebtedness and any and all types of security therefor; and Condemn either the fee or such other right, title, interest or easement in and to property as the board may deem necessary, and such property or interest in such property may be so acquired, whether or not the same is owned or held for public use by corporations, associations, cooperatives or persons having the power of eminent domain, or otherwise held or used for public purposes, and such power of condemnation may be exercised in the mode of procedure prescribed by title 29, chapter 16, or in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain; provided, that no property which is owned or held for public use, nor any interest therein, shall be condemned if, in the judgment of the court the condemnation of such property or interest therein will obstruct, prevent, burden, interfere with, or unduly inconvenience the continued use of such property for the public use to which it is devoted at the time the same is sought to be condemned; provided further, that where title to any property sought to be condemned is defective, it shall be passed by decree of court; provided further, that where condemnation proceedings become necessary, the court in which such proceedings are filed shall, upon application by the cooperative and upon the posting of a bond with the clerk of the court in such amount as the court may deem commensurate with the value of the property, order that the right of possession shall issue immediately or as soon and upon such terms as the court, in its discretion, may deem proper and just; but provided further, that in cases where condemnation of property already devoted to a public use is sought, no order as to right of possession shall issue until it is finally determined that the condemnor is entitled to condemn such property. The power of eminent domain provided by this subdivision (a)(12)(C) shall be supplemental to, not in lieu of or in conflict with, § 48-51-103 of the Tennessee Nonprofit Corporation Act. All of the powers conferred by this section are to be exercised by a cooperative for rendering one (1) or more services to persons who or which are its members and to other persons, not to exceed fifteen percent (15%) of the number of persons who or which are its members; provided, that whenever in the sole judgment of its board such is necessary to acquire or to protect and preserve a cooperative's exemption from federal income taxation relative to a primary or secondary purpose, a cooperative may require new nonmember patron applicants or existing nonmember patrons to become members as a condition of initially receiving or of continuing to receive such service. This chapter does not affect, abrogate, or eliminate any obligation of a cooperative's third-party contractors that are permitted by law to operate within the cooperative's service area to comply with applicable permitting requirements that the cooperative is subject to with respect to property that is held or controlled by a railroad company. In addition to all other powers set forth in this chapter, a cooperative may make contributions for bona fide charitable purposes and accept excess receipts pursuant to programs approved by the board of directors, which programs may include, but are not limited to, programs in which bills for electric power are rounded up to the next dollar when the amount of any excess receipt due to rounding is shown as a separate line on the electric bill. Excess receipts accepted by a cooperative pursuant to programs authorized by subdivision (d)(1) are not considered revenue to the cooperative and the cooperative may only use the excess receipts for charitable purposes. This subsection (d) prohibits discrimination by a cooperative in the distribution of excess receipts for bona fide charitable purposes to organizations whose mission is to assist persons regardless of their race, color, creed, religion, national origin, gender, disability, or age. A cooperative that establishes a program authorized by subdivision (d)(1) on or after January 1, 2021, shall not enroll any customer into the program without the express consent of the customer. A customer who is enrolled in a program authorized by subdivision (d)(1) may opt out of the program by providing notice to the cooperative of the customer's desire to cease participation in the program. Upon receiving an opt-out notice from a customer, the cooperative shall remove the customer from enrollment in the program no later than the first day of the customer's next regular billing cycle that begins no fewer than thirty (30) days after the date of the customer's opt-out notice. Any cooperative that on June 3, 2019, utilizes a program authorized by subdivision (d)(1) and operates the program on an opt-out basis shall send a written notice to each cooperative customer no later than November 1, 2020, that contains, but is not limited to, the following information: A statement that the cooperative utilizes a program authorized by subdivision (d)(1), the program is operated on an opt-out basis, and a description of the program; Notification that a customer whose bill is currently rounded up by the cooperative has the right to opt out of participation in the program; and Contact information for the cooperative and instructions on how the customer may contact the cooperative to opt out of participation in the program. The written notice required by this subdivision (d)(5) may be provided to the customer by electronic means and may accompany a regular billing statement, at the discretion of the cooperative. A cooperative that on June 3, 2019, utilizes a program authorized by subdivision (d)(1) and operates the program on an opt-out basis that fails to send the notice required by this subdivision (d)(5) shall, on and after January 1, 2021, cease operating the program on an opt-out basis and shall not operate a program unless operated in compliance with subdivision (d)(4). Any cooperative that utilizes a program authorized by subdivision (d)(1) and that maintains a website that is accessible by the general public shall publish in a conspicuous location on the website by November 1, 2020, and throughout the duration of the cooperative's utilization of the program, the following information: A statement that the cooperative utilizes a program authorized by subdivision (d)(1) and a description of the program; Notification that a customer whose bill is currently rounded up by the cooperative has the right to opt out of participation in the program; and Contact information for the cooperative and instructions on how the customer may contact the cooperative to opt into or out of participation in the program. Acts 1988, ch. 689, § 2; 1989, ch. 172, § 2; 1999, ch. 430, § 1; 2000, ch. 592, § 2; 2000, ch. 665, § 1; 2002, ch. 512, § 1; 2005, ch. 426, § 2; T.C.A. § 65-25-205 ; Acts 2017, ch. 228, § 8; 2018, ch. 570, § 1; 2019, ch. 508, § 5; 2020, ch. 631, § 1. Code Commission Notes. Former part 1 of this chapter was deleted and former part 2 was renumbered as T.C.A. §§ 65-25-101 to 65-25-135 by authority of the Code Commission in 2015. Compiler's Notes. Acts 1999, ch. 430, § 9 provided that that act supersedes any conflicting general law, charter or metropolitan charter provisions. Acts 2017, ch. 228, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Tennessee Broadband Accessibility Act.” Amendments. The 2017 amendment deleted former (c) which read: “Neither this chapter nor any other law shall be construed to authorize a cooperative to own, operate or otherwise acquire a legal or beneficial interest in a city-franchised or county-franchised cable television system; provided, that each cooperative may, within its service area and with the authorization of its board, contract to establish a cable joint venture with an entity that is a current franchise holder under title 7, chapter 59, within the cooperative's service area and has been operating, either itself or its predecessor franchise holder, for not less than three (3) years at the time of the establishment of the cable joint venture. A cable joint venture shall be authorized to provide cable service, two-way video transmission, video programming, internet services, and other like services and shall comply in all respects with the requirements of § 65-25-130 . The authority to establish a cable joint venture shall not apply to areas served by any existing telephone cooperative that has been providing cable service for not less than ten (10) years under the authority of the federal communications commission.” The 2018 amendment rewrote (a)(11) which read: “With respect to a primary purpose and the secondary purpose of supplying telecommunications services, but without limiting the generality or particularity of subdivisions (a)(1)-(10), construct, maintain, and operate electric and/or other telecommunication transmission and distribution lines or other conducting or communications facilities along, upon, under, and across all public thoroughfares, including, without limitation, all roads, highways, streets, alleys, bridges, and causeways, and upon, under, and across all publicly owned lands; provided, that the respective authorities having jurisdiction thereover shall consent thereto; provided, however, that such consent shall not be unreasonably withheld or conditioned or withheld or conditioned for the purpose of enabling such an authority to gain competitive advantage with respect to the rendition by itself or any other entity of a service which the cooperative also has a right to render; and”. The 2019 amendment, in (d)(1) and (d)(2), substituted “are not” for “shall not be”; in (d)(1) and (d)(3), substituted “excess receipts” for “voluntary contributions”; in (d)(1), substituted “may” for “shall have the power and authority to”, and substituted “the amount of any excess receipt due to rounding” for “such contribution”; in (d)(2), substituted “Excess receipts” for “Contributions”, substituted “the cooperative may” for “shall be used”, and inserted “use the excess receipts”; in (d)(3), inserted a comma following “disability”; and added (d)(4)–(d)(6). The 2020 amendment added (c). Effective Dates. Acts 2017, ch. 228, § 16. April 24, 2017. Acts 2018, ch. 570, § 2. March 16, 2018. Acts 2019, ch. 508, § 6. June 3, 2019. Acts 2020, ch. 631, § 2. March 20, 2020. Cross-References. Telecommunications services, § 65-25-134 . Attorney General Opinions. A city charter and T.C.A. § 65-25-205(a)(11) , when read together, authorized the city to impose a reasonable fee upon an electric cooperative for the use of city rights-of-way, OAG 00-145, 2000 Tenn. AG LEXIS 147 (9/20/00). Authority of electric cooperative to provide broadband internet service. OAG 14-33, 2014 Tenn. AG LEXIS 35 (3/18/14). Rural Electric and Community Services Cooperatives — Charitable Contributions. OAG 15-61, 2015 Tenn. AG LEXIS 61 (7/28/15).