Section 77-3-44 - Rate-regulated electric or natural gas public utilities authorized to undertake economic development activities; rate-regulated electric public utilities authorized to permit broadband service providers to use the electric delivery system(1) Any rate-regulated electric or natural gas public utility with certificated service area in Mississippi may undertake economic development activities, whether directly or indirectly, including activities such as providing capital, or investment in or acquisition and development of business or industrial sites and the necessary infrastructure or services needed to attract new or existing businesses or industry, to create or maintain employment opportunities, or expansion of fiber-optic infrastructure or otherwise to positively impact or in some manner promote the sale of electric energy or natural gas within its certificated service area. Any facilities developed, constructed or acquired in support of the activities described in this section, including fiber-optic infrastructure for which a certificate of public convenience and necessity or other commission approval has been granted after July 1, 2015, as well as any capital investment in natural gas reserves made directly or indirectly by an electric or natural gas public utility to foster long-term stability in the cost of fuel, may be deemed used and useful in the provision of electric or natural gas service regardless of whether or not any end-use customers are taking service from said facilities or investment and otherwise recoverable through the utility's rates.(2)(a) In addition, to further expand fiber-optic infrastructure in the state, any rate-regulated public utility of the type as defined in Section 77-3-3(d)(i) may grant permission to broadband service providers to use the electric delivery system, including without limitation the fiber-optic infrastructure, of the public utility to provide broadband services or other similar services as defined in Section 77-3-3(k) through (o). To the extent a rate-regulated electric public utility grants permission to any broadband service provider to use any part of the utility's electric delivery system, including without limitation its fiber-optic infrastructure, it must grant such permission on a nonexclusive basis.(b) The public utility shall not: (i) allow the use of its electric delivery system by a broadband operator to provide broadband services as defined above to diminish the reliability of the electric delivery system;(ii) require any person to purchase broadband services as a condition of receiving or continuing to receive electric service; or(iii) disconnect, or threaten to disconnect, electric service to any customer due to the customer's failure to pay for broadband services. Any complaint related to a public utility's permissive offer of use pursuant to this paragraph (b) shall be brought before and resolved by the Public Service Commission.(c) In addition, to further expand fiber-optic infrastructure and economic development in the state, any public utility, including electric cooperatives, of the type as defined in Section 77-3-3(d)(i) may grant permission to a retail customer with a nonaggregated load greater than twenty (20) megawatts to construct, install, or maintain above or underground fiber-optic infrastructure on the public utility's existing right-of-way of its electric delivery system.(d) In instances where a landowner has previously been compensated for the use of his land through a right-of-way instrument with a public utility, the use of the public utility's electric delivery system for the provision of broadband services to a broadband operator or use of the public utility's existing right-of-way on its electric delivery system by a retail customer to construct, install, or maintain above or underground fiber-optic infrastructure shall not be considered an additional burden on the real property upon which the public utility's electric delivery system is located and shall not require the public utility, the broadband operator or retail customer to obtain the consent of anyone having an interest in the real property upon which the public utility's electric delivery system is located.(e) If a portion of a public utility's electric delivery system is used by a broadband operator for the provision of broadband services or a portion of a public utility's right-of-way is used by a retail customer to construct, install, or maintain above or underground fiber-optic infrastructure and the landowner of the real property on which such portion is located believes his property has been damaged by such use, the landowner may petition the circuit court of the county in which the property is situated for any damages to which the landowner may be entitled under this subsection:(i) The petition allowed and damages recoverable under this subsection shall be the landowner's exclusive remedy, and the landowner shall not be entitled to assert any other theory, claims or causes of action nor recover any other damages, punitive damages, costs, attorneys' fees, or other relief.(ii) The recoverable damages, if any, shall be recoverable only from the broadband operator or retail customer and not from the public utility.(iii) The damages recoverable shall be an amount equal to the difference between 1. the fair market value of the landowner's interest in the real property immediately before the public utility's electric delivery system on the owner's property was first used by the broadband operator or retail customer for the provision of broadband services, and 2. the fair market value of the landowner's interest in the real property immediately after the public utility's electric delivery system on the landowner's property was first used by the broadband operator or retail customer for the provision of broadband services. The before-and-after values must be established by the testimony of a qualified real estate appraiser. The damages, if any, shall be fixed and shall not be deemed to continue, accumulate, or accrue. The court shall, as part of its judgment, confirm the rights granted by the public utility to the broadband operator or retail customer and their respective successors and assigns for the placement or use of a broadband system on or as part of the electric delivery system. The judgment will have the same effect of a conveyance executed in due form of law and shall run with the land; and a certified copy of said judgment may be filed by the broadband operator retail customer in the land records of the county in which the subject property is located.(iv) Evidence of past, current or future revenues or profits derived or to be derived by a broadband operator or retail customer from providing broadband services is not admissible for any purpose in any such proceeding.(v) The landowner shall not be entitled to any damages or other relief relating to any broadband system or portion thereof that is located on the landowner's property or any fiber-optic infrastructure by the retail customer that is located on the landowner's property and is used or could be used by the electric public utility for its own operations.(vi) The landowner shall not be entitled to any relief or damages if an easement has been granted to the broadband operator or retail customer, if the landowner has authorized the public utility to use or allow others to use its electric delivery system for the provision of broadband services, or if the landowner has authorized the public utility to use its existing right-of-way to construct, install, or maintain above or underground fiber-optic infrastructure.(f) Nothing in this section shall affect, abrogate, or eliminate in any way any obligation of a rate-regulated, public utility or broadband operator to comply with any applicable safety and permitting requirements of any railroad company or any state governmental body or agency with respect to property that is held or controlled by such railroad company or state governmental body or agency, as the case may be, and in, on, over, or across which an easement is located.(g) All costs paid by a rate-regulated public utility to acquire right-of-way shall be considered cost of service and recovered through rates, and all revenue collected by a rate-regulated public utility from third-party use of public utility right-of-way shall be credited back to customers in a comparable manner. The Public Service Commission shall establish a mechanism for electric utility revenues deriving from the provision of competitive broadband services such that electric service customers receive an annual credit, adjusted annually, for any wholesale revenues derived from fiber-optic infrastructure.
Amended by Laws, 2021, ch. 477, SB 2798,§ 3, eff. 4/22/2021.Amended by Laws, 2017, ch. 322, HB 883, 1, eff. 3/10/2017.Added by Laws, 2015, ch. 360, SB 2093, 3, eff. 7/1/2015.