Section 58-9-3030 - Nondiscriminatory access; written contracts; retail broadband service(A) An electric cooperative shall provide communications service providers, including any broadband affiliates of such electric cooperative, with nondiscriminatory access in offering or granting rights to install or attach any attached facilities, including the right to use easements and rights of way, and must offer just, reasonable, and nondiscriminatory rates, fees, charges, terms, and conditions for attached facilities to communications service providers, which must pay such charges and comply with such terms and conditions. Access includes the right to nondiscriminatory use of all easements and rights of way and to all poles, ducts, conduits to the extent not prohibited by the National Electric Safety Code, and similar support structures owned or controlled by the electric cooperative or, if applicable, its broadband affiliate, including access to the replacement or expansion of such facilities for the purpose of attaching equipment for the provision of broadband service. (1) Except as expressly provided otherwise, nothing in this article alters, amends, or otherwise affects the provisions of any agreement that, as of the effective date of this article, addresses the attachment or placement of facilities by communications service providers on or in the poles or structures of an electric cooperative.(2) Notwithstanding item (1), a communications service provider may submit to an electric cooperative a written request to negotiate agreements addressing the attachment or placement of facilities, after the date of the written request, by the communications service provider on or in the existing or new poles or structures of the electric cooperative. Unless the communications service provider and the electric cooperative agree otherwise, such agreements must not address facilities that were attached or placed prior to the date of the written request to negotiate. The parties must negotiate in good faith for at least sixty days after the written request, after which either party may petition the commission to determine just and reasonable rates, terms, and conditions for the agreements. The commission must make such determination within one hundred eighty days of the filing of the petition for that determination and the commission's determination must apply retroactively to all facilities attached or placed between the date of the written request to negotiate and the date of the commission's determination. Between the date of the written request to negotiate and the date of the commission's determination: (a) the terms and conditions of any existing agreement addressing such attachments or placements apply, subject to true-up, to put the parties in the positions in which they would have been had the commission's determination been in effect on the date of the written request to negotiate; and(b) in the absence of such existing agreement, unless the parties agree otherwise, the commission, within thirty days of the petition for a determination, must establish interim rates, terms, and conditions that will apply, subject to true-up, to put the parties in the positions in which they would have been had the commission's determination been in effect on the date of the written request to negotiate.(B)(1) Except as provided in item (2), an electric cooperative shall not withhold authorization or delay its decision to provide authorization to a communications service provider to install, maintain, own, operate, or use the communications service provider's attached facilities on electric service infrastructure owned or controlled by the electric cooperative. A communications service provider shall not delay installation, maintenance, or relocation of attachments owned or controlled by the communications service provider on infrastructure owned or controlled by an electric cooperative except as may be required by law, regulation, or agreement. All review by an electric cooperative of requests by a communications service provider to attach facilities, make-ready activities, and all pole or support structure replacement or expansions undertaken pursuant to this section shall be completed by the electric cooperative, its broadband affiliate, or by the communications service provider, as applicable, within the timeframes and other make-ready requirements set forth in 47 C.F.R. Section 1.1411 under federal law for utilities subject to regulation by the FCC pursuant to the Federal Pole Attachments Act (47 U.S.C. Section 224) as it exists on September 15, 2020, unless the commission finds, upon petition by the electric cooperative, its affiliate, or the communications service provider that the public interest and necessity require an extension of such timelines.(2) A request to utilize poles, ducts, or conduits under this section may be denied only if there is insufficient capacity or for reasons of safety, reliability, and generally applicable engineering principles, and those limitations cannot be remedied by rearranging, expanding, or otherwise reengineering the facilities, provided the communications service provider pays the reasonable and actual cost of the pole owner caused by its attachment.(C)(1) An electric cooperative that provides any broadband facility or any broadband service that is not retail broadband service to a broadband affiliate or to any other person or entity must do so pursuant to a written contract, at market rates, and on terms and conditions that are not harmful to competition. Within fifteen business days of entering any such contract, an electric cooperative must file notice of the contract with the commission in a docket designated by the commission. If, after consultation with the electric cooperative that has filed such notice, a communications services provider believes the electric cooperative has violated the provisions of this subsection, a communications services provider may submit a complaint pursuant to the provisions of Section 33-49-150 asserting that the electric cooperative has violated the provisions of this subsection. Upon submitting such complaint, the electric cooperative must provide any relevant contracts to the communications services provider pursuant to a nondisclosure agreement. If the communications services provider and the electric cooperative cannot agree to the terms of a nondisclosure agreement within ten days after the submission of the complaint, either may petition the commission to determine the terms and conditions of such nondisclosure agreement and the commission must do so within ten days of the filing of the petition. No complaint submitted pursuant to this subsection shall be the subject of a motion to dismiss or a motion to stay or otherwise delay the proceedings for failure to set forth sufficient factual allegations to support the claim until fifteen business days after the communications service provider submitting the complaint has been provided any relevant contract. If the complaint results in a contested case before the commission, the electric cooperative subject to the complaint and the communications service provider submitting the complaint shall be permitted to conduct discovery in accordance with the commission's rules and regulations. The Office of Regulatory Staff is given authority to investigate such complaints and the commission is given authority and jurisdiction to resolve any disputed issues concerning such complaints. For the purposes of determining whether a contract is harmful to competition pursuant to this subsection: (a) the commission may consider whether the contract is exclusive, but the exclusivity of a contract does not, in and of itself, constitute harm to competition; and(b) any contract that by its own terms is available for adoption by any communications service provider is, by operation of law, at market rates and on terms and conditions that are not harmful to competition.(2) The notice requirements of item (1) do not apply to: (a) broadband services or broadband facilities that are provided for the internal electric operations' use of the electric cooperative or another electric cooperative; or(b) any agreements entered into prior to the effective date of this article.(3) No sooner than five years from the effective date of this article, on petition by any interested party, the commission may consider whether there remains a continued need for the notice filing requirements of item (1) and, if it determines that the need no longer exists, the commission may terminate the notice filing requirement of item (1).(D)(1) Except as otherwise provided in this article, a communications service provider that has attached, or applied to attach, facilities on electric cooperative infrastructure shall abide by the terms, conditions, and schedules required of them in pole attachment agreements and will transfer its attached facilities to new or updated electric cooperative infrastructure in accordance with the terms, conditions, or schedules required therein, or, in the absence of any such terms, conditions or schedules, transfer its attached facilities to new or updated electric cooperative infrastructure within a reasonable amount of time.(2) A communications service provider that has attached, or applied to attach, facilities on electric cooperative infrastructure and the electric cooperative must cooperate with the owner of the pole and all other attaching entities in good faith to fully comply with National Electric Safety Code requirements for electric infrastructure attachments.(3) Except in compliance with the provisions of a written agreement that provide otherwise, a communications service provider must not attach to electric cooperative infrastructure without the knowledge and permission of the electric cooperative.(E) An electric cooperative shall not directly provide retail broadband service but may cause or allow a broadband affiliate to offer retail broadband service. As long as an electric cooperative maintains its exclusive right to provide electric service to customers within its exclusive service territory, both the electric cooperative that has a broadband affiliate and the broadband affiliate shall:(1) maintain or cause to be maintained an accounting system for the broadband affiliate separate from the electric cooperative's accounting system, following generally accepted accounting principles or another reasonable and customary allocation method;(2)(a) not cause or allow the electric cooperative to use its exclusive right to provide electric services within its exclusive territory to cross-subsidize the broadband affiliate or its provision of broadband service. To prevent cross-subsidization between broadband service activities and electricity service activities, any electric cooperative with a broadband affiliate that provides retail broadband service shall:(i) fully allocate all costs of electricity service activities and broadband service activities, including costs of any shared services between electricity service activities and broadband affiliate broadband service activities in accordance with:(A) the provisions of this section; and(B) the applicable uniform system of accounts and generally accepted accounting principles that are applicable to electric cooperatives under federal and state laws, rules, and regulations;(ii) not charge any costs of broadband service activities to the electricity service customers of such electric cooperative.(A) Costs of broadband service activities do not include the appropriate costs of construction, installation, attachment, operation, management services, administrative services, repair, and maintenance of the facilities or infrastructure associated with the portion of communications infrastructure and facilities or services that are used by the electric cooperative for internal information and control technology systems necessary for the provision of electricity services.(B) The electric cooperative must charge its broadband affiliate, and the broadband affiliate must cover in the prices it charges for its broadband services, amounts that fully compensate the electric cooperative for the direct, indirect, and shared costs associated with the portion of the infrastructure and facilities or services that are used by the broadband affiliate. Such costs are not limited to marginal or incremental costs but instead must include the appropriate costs of construction, installation, attachment, operation, management services, administrative services, repair, and maintenance of the facilities or infrastructure regardless of whether they are in the space apportioned for electric, communications, or any other facilities or structures;(iii) not use below-market loans or below-market funding from programs that are not intended to support the deployment of broadband facilities or broadband service in order to support broadband facilities or to provide broadband service unless the electric cooperative or its broadband affiliate imputes the difference between market rates and the below-market loans or below-market funding into the costs of its broadband facilities and broadband service. The provisions of this subitem shall not apply to loans or funding from programs that are intended to support the deployment of broadband facilities or broadband service.(b) Nothing in subsection (E)(2) prohibits an electric cooperative from: (i) loaning funds to a broadband affiliate if the interest rate on the loan is no less than the electric cooperative's lowest cost of capital;(ii) exchanging services or materials for other services or materials of equivalent value;(iii) providing reduced-cost broadband service to low-income retail customers; or(iv) conducting and funding due diligence, operational analysis, entity set-up, and associated noncapital expenditures relating to and prior to the establishment of a broadband affiliate.(F) The commission and the Office of Regulatory Staff have the authority and jurisdiction set forth in Section 33-49-150(B) to enforce compliance with this section with regard to communications services providers, electric cooperatives, and broadband affiliates that conduct any activities addressed by this section.(G) Nothing in this article: (1) subjects an electric cooperative to regulation by the FCC;(2) constitutes an exercise of, or an obligation or intention to exercise, the right of a state under 47 U.S.C. Section 224 (c) to regulate the rates, terms, and conditions for pole attachments, as defined in 47 U.S.C. Section 224(a)(4); or(3) constitutes a certification, or an obligation to certify, to the FCC under 47 U.S.C. Section 224.Added by 2020 S.C. Acts, Act No. 175 (HB 3780),s 1, eff. 9/29/2020. 2020 Act No. 175, Section 6, provides as follows:
"SECTION 6. This act does not convey or confer any implied or express grant of authority to an investor-owned electric utility to provide broadband facilities or broadband services as defined in this act and any legal rights which may or may not belong to investor-owned electric utilities to provide broadband facilities or broadband services at the time of the passage of this act are neither expanded nor contracted by its passage."