Tennessee § 65-25-134 - Telecommunications services.

§ 65-25-134. Telecommunications services.

Notwithstanding § 7-59-316, every cooperative has the power and is authorized, acting through its board of directors, to acquire, construct, own, improve, operate, lease, maintain, sell, mortgage, pledge, or otherwise dispose of any system, plant or equipment for the provision of telephone, telegraph, voice over internet protocol, telecommunications services, or any other like system, plant, or equipment within or without the service area of the cooperative in compliance with chapters 4 and 5 of this title and all other applicable state and federal laws, rules, and regulations. Notwithstanding § 65-4-101(6)(A)(vi) or any other provision of this code or of any private act to the contrary, to the extent that any cooperative provides any of the services authorized by this subdivision (a)(1), the cooperative shall be subject to regulation by the Tennessee public utility commission in the same manner and to the same extent as other certificated providers of the services authorized by this subsection (a), including, without limitation, rules or orders governing anti-competitive practices, and shall be considered as and have the duties of a public utility, as defined in § 65-4-101, but only to the extent necessary to effect such regulation and only with respect to the cooperative's provision of the services authorized by this subdivision (a)(1). Every cooperative has the power and is authorized, acting through its board of directors, to acquire, construct, own, improve, operate, lease, maintain, sell, mortgage, pledge, or otherwise dispose of any system, plant or equipment for the provision of broadband internet access, internet protocol-based video, video programming, or related or similar services, or any other like system, plant, or equipment within the service area of the cooperative in compliance with chapters 4 and 5 of this title and all other applicable state and federal laws, rules, and regulations, including, but not limited to, the requirement to obtain a franchise as set forth in § 7-59-304. Notwithstanding § 65-4-101(6)(A)(vi) or any other provision of this code or of any private act to the contrary, to the extent that any cooperative provides any of the services authorized by this subdivision (a)(2), the cooperative shall furnish the services on an area coverage basis, as defined in § 65-25-102, and shall be subject to regulation by the Tennessee public utility commission in the same manner and to the same extent as other providers of broadband internet access, internet protocol-based video, video programming, or related or similar services, including, without limitation, rules or orders governing anti-competitive practices, and shall be considered as and have the duties of a public utility, as defined in § 65-4-101, but only to the extent necessary to effect such regulation and only with respect to the cooperative's provision of the services authorized by this subdivision (a)(2). In the event that a cooperative acquires, merges with, or consolidates with another entity that provides any one (1) of the services authorized by this subdivision (a)(2) in a geographic location concurrent with or adjacent to the electric service area of the cooperative, then, subsequent to such transaction, nothing in this section prohibits the electric cooperative from providing the services authorized by this subdivision (a)(2) in the geographic service territory in which the acquired or merged entity was authorized to provide such services prior to the merger, acquisition, or consolidation. A cooperative that elects to provide services authorized by subdivision (a)(2) shall provide other providers of such services non-discriminatory access to locate their equipment for the provision of such services on infrastructure or poles owned or controlled by the cooperative, subject to the terms of any pole attachment agreements between the cooperative and the other provider, the American National Standard Electric Safety Code described in § 68-101-104, and the structural integrity of the infrastructure or pole. A cooperative providing any of the services authorized by subsection (a) shall not provide subsidies for such services and shall administer, operate, and maintain the electric system separately in all respects, including establishing and maintaining a separate fund for the revenues from electric operations, and shall not directly or indirectly mingle electric system funds or accounts, or otherwise consolidate or combine the financing of the electric system, with those of any other of its operations. A cooperative providing any of the services authorized by subdivision (a)(2) shall administer and operate such services as a separate subsidiary. Notwithstanding the limitations set out in this subsection (b), a cooperative providing the services authorized by subsection (a) is authorized to: Dedicate a reasonable portion of the electric plant to the provision of such services, the costs of which shall be allocated to such services in the separate accounting required under this subsection (b); and Lend funds, at a rate of interest not less than the highest rate then earned by the cooperative on invested electric plant funds, to acquire, construct, and provide working capital for the system, plant, and equipment necessary to provide any of the services authorized under subsection (a); provided, that such interest costs shall be allocated to the cost of such services in the separate accounting required under this subsection (b). To the extent that it provides any of the services authorized by subsection (a), a cooperative has all the powers, obligations and authority granted entities providing telecommunications services under applicable laws of the United States or this state. To the extent that such authority and powers do not conflict with title 65, chapter 4 or 5, and any rules, regulations, or orders issued thereunder, a cooperative providing any of the services authorized by subsection (a) has all the authority and powers with respect to such services as are enumerated in this chapter. Notwithstanding the authorization granted in subsection (a), a cooperative shall not provide any of the services authorized by subsection (a) unrelated to its electric services within the service area of an entity in existence and operating as a telephone cooperative on April 24, 2017, with fewer than one hundred thousand (100,000) total lines organized and operating under chapter 29 of this title, and therefore shall adhere to those regulations of the 1995 Tennessee Telecommunications Act and rules of the Tennessee public utility commission, which are applicable to the telephone cooperatives, and specifically §§ 65-4-101 and 65-29-130. For regulatory purposes, a cooperative shall allocate to the costs of providing any of the services authorized by subsection (a): An amount for attachments to poles owned by the cooperative equal to the highest rate charged by the cooperative to any other person or entity for comparable pole attachments; and Any applicable rights-of-way fees, rentals, charges, or payments required by state or local law of a non-governmental corporation that provides the identical services. Nothing in this chapter shall be construed to allow a cooperative to provide any service for which a license, certification, or registration is required under title 62, chapter 32, part 3. Nothing in this chapter shall allow a cooperative to provide any service for which a license, certification, or registration is required under title 62, chapter 32, part 3, or to provide pager service. This chapter supersedes any conflicting law. It is unlawful for a cooperative to use unfair or anticompetitive practices prohibited by applicable state or federal law. Such practices shall include, but are not limited to, predatory pricing, collusion, and tying. Any person who has been damaged as a result of a violation of this section may bring a civil action in chancery court for injunctive or declaratory relief against the violation. Acts 2000, ch. 665, § 1; T.C.A. § 65-25-234 ; 2017, ch. 94, § 59; Acts 2017, ch. 228, §§ 11-14; 2019, ch. 174, § 2. 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, referred to in (e)(2), amended §§ 65-25-102 , 65-25-104 , 65-25-105 , and 65-25-127 , and enacted §§ 65-25-130 and 65-25-133 . 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 by ch. 94 substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in (a)(2) and (c)(2). The 2017 amendment by ch. 228 rewrote (a) and (b) which read: “(a) Every cooperative has the power and is authorized, acting through its board of directors, to acquire, construct, own, improve, operate, lease, maintain, sell, mortgage, pledge or otherwise dispose of any system, plant or equipment for the provision of telephone, telegraph, telecommunications services, or any other like system, plant, or equipment within and/or without the service area of such cooperative in compliance with title 65, chapters 4 and 5, and all other applicable state and federal laws, rules and regulations. Notwithstanding § 65-4-101(6)(A)(vi) or any other provision of this code or of any private act to the contrary, to the extent that any cooperative provides any of the services authorized by this section, such cooperative shall be subject to regulation by the Tennessee regulatory authority in the same manner and to the same extent as other certificated providers of telecommunications services, including, without limitation, rules or orders governing anti-competitive practices, and shall be considered as and have the duties of a public utility, as defined in § 65-4-101 , but only to the extent necessary to effect such regulation and only with respect to such cooperative's provision of telephone, telegraph and communication services.“(b) A cooperative providing any of the services authorized by subsection (a) shall not provide subsidies for such services. Notwithstanding that limitation, a cooperative providing such services shall be authorized to:“(1) Dedicate a reasonable portion of the electric plant to the provision of such services, the costs of which shall be allocated to such services for regulatory purposes;“(2) Lend funds, at a rate of interest not less than the highest rate then earned by the cooperative on invested electric plant funds, to acquire, construct, and provide working capital for the system, plant, and equipment necessary to provide any of the services authorized under subsection (a); provided, that such interest costs shall be allocated to the cost of such services for regulatory purposes.”; deleted “or to operate a cable system as defined by § 7-59-201 , except as permitted by Acts 1999, ch. 430,” preceding “or to provide pager service” at the end of (e)(2); and added (g) and (h). The 2019 amendment, substituted “an entity in existence and operating as a telephone cooperative on April 24, 2017” for “an existing telephone cooperative” near the beginning of (c)(2). Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017. Acts 2017, ch. 228, § 16. April 24, 2017. Acts 2019, ch. 174, § 3. April 23, 2019.