Bill Text: GA SB313 | 2011-2012 | Regular Session | Introduced

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Bill Title: 'Broadband Investment Equity Act'; provide regulation of competition between public and private providers of communications service

Spectrum: Slight Partisan Bill (Republican 3-1)

Status: (Introduced - Dead) 2012-01-23 - Senate Read and Referred [SB313 Detail]

Download: Georgia-2011-SB313-Introduced.html

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12 LC 36 1999ER

Senate Bill 313

By: Senators Rogers of the 21st, Shafer of the 48th, Unterman of the 45th and Stoner of the 6th

A BILL TO BE ENTITLED
AN ACT

To amend Title 36 of the Official Code of Georgia Annotated, relating to local government, so as to repeal Chapter 90, relating to the "Local Government Cable Fair Competition Act of 1999"; to enact the "Broadband Investment Equity Act" to provide for regulation of competition between public providers of communications service and private providers of such service; to provide for a short title; to provide for definitions; to provide for authorization to public providers to deliver communications services and invest capital in facilities designed to provide communications services; to establish financial requirements prior to cross-subsidizing the costs of providing communications services; to establish requirements as to pricing; to provide for exemptions; to provide for the applicability of the public records and public meetings laws; to specify the applicability of antitrust liability; to provide for public and private partnerships for communications service; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 36 of the Official Code of Georgia Annotated, relating to local government, is amended by repealing Chapter 90, relating to the "Local Government Cable Fair Competition Act of 1999," and enacting a new chapter to read as follows:

"CHAPTER 90

36-90-1.

This chapter shall be known and may be cited as the 'Broadband Investment Equity Act.'

36-90-2.

As used in this chapter, the term:

(1) 'Broadband service' means a service that consists of the capability to transmit at a rate not less than 200 kilobits per second in either the upstream or downstream direction and in combination with such service provide either:

(A) Access to the Internet; or

(B) Computer processing, information storage, or protocol conversion.

(2) 'Cable service' means the one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(3) 'Capital costs' means all costs of providing a service which are capitalized in accordance with generally accepted governmental accounting principles.

(4) 'Communications network' means a wired or wireless network for the provision of communications services.

(5) 'Communications service' means the provision of cable service, video programming service, telecommunications service, broadband service, or high-speed Internet service to the public for a fee, regardless of the technology used to deliver the service.

(6) 'Cross-subsidization' or 'cross-subsidize' or 'cross-subsidy' means the payment of any item of direct or indirect costs of providing a service from a source other than from the revenues derived from the sale of communications services, or a source that is not accounted for in the full-cost accounting of providing the service.

(7) 'Direct costs' means those expenses of a public provider which are directly attributable to the provision of a service that would be eliminated if the provision of said service were discontinued.

(8) 'Franchising authority' means any governmental entity which is authorized by law to grant a franchise and which is also a public provider.

(9) 'Full-cost accounting' means the accounting for all costs incurred by a public provider in providing a service, including all direct and indirect costs, utilizing cost accounting standards promulgated by the federal Costs Accounting Standards Board of the federal Office of Management and Budget so as to assure that all direct and indirect costs are included.

(10) 'Generally accepted governmental accounting principles' means the accounting standards promulgated from time to time by the Governmental Accounting Standards Board.

(11) 'High-speed Internet service' means Internet access service with transmission speeds that are equal to or greater than the requirements for basic broadband tier 1 service as defined by the Federal Communications Commission for broadband data gathering and reporting.

(12) 'Indirect costs' means any costs that are identified with two or more services or other public provider functions and are not directly identified with a single service. Indirect costs may include, but are not limited to, administration, accounting, personnel, purchasing, legal, and other staff or departmental support. Indirect costs shall be allocated to two or more services in proportion to the relative burden each respective service places upon the cost category.

(13) 'Private provider' means any person, firm, partnership, corporation, or association, other than a public provider, offering communications service.

(14) 'Public provider' means any county, municipal corporation, or other political subdivision of the state which provides communications service using a communications network, whether directly, indirectly, or through any authority or instrumentality acting on behalf of or jointly with other public providers for the benefit of any county, municipal corporation, or other political subdivision of the state.

(15) 'Subscriber' means any private person lawfully receiving any communications service provided by a private provider or public provider.

(16) 'Telecommunications service' means any service provided for a charge or compensation to facilitate the origination, transmission, emission, or reception of signs, signals, data, writings, images, sounds, or intelligence of any nature by telephone or telephone service, including public pay telephones, or cable television service (CATV), including cellular or other wireless telephones, wire, radio, electromagnetic, photo electronic, or photo-optical system.

(17) 'Unserved area' means a census block, as designated by the United States decennial census of 2010 or any future such census, in which at least 50 percent of households either have no access to Broadband service or have access only from a satellite provider.

(18) 'Video programming service' means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, as set forth in 47 U.S.C. Section 522(20).

36-90-3.

(a) Prior to receiving the authorization to deliver communications services or to invest capital in any facilities designed to provide communications services for any purpose, a public provider shall:

(1) First solicit proposals from private providers in accordance with Code Section 36-90-10;

(2) Prepare reasonable projections of at least a three-year cost-benefit analysis which identifies and discloses the total projected direct costs and indirect costs of and revenues to be derived from providing the communications service. Such costs shall be determined in accordance with this chapter, and generally accepted governmental accounting principles;

(3) Conduct at least two public hearings which shall be held at least 30 days apart. A notice of the time, place, and date of each hearing shall be:

(A) Published in a newspaper of general circulation within the jurisdiction of the public provider once a week for two weeks prior to the week in which the hearing is to be held;

(B) Posted on the Public Service Commission website at least 45 days in advance of the date of the hearing; and

(C) Mailed to private providers providing communications service within the jurisdiction of the public provider 45 days in advance of the date of the hearing; and

(4) Hold a special election upon the approval of the General Assembly by a local Act in each county or municipal corporation within the jurisdiction of the public provider. Such local Act shall specify the language to be used in the ballot for the special election which shall state in plain language the amount of debt being issued to finance the cost of providing communications service and that the public provider is required to pay any debts out of the public provider's general fund if revenues from the communications service do not meet the public provider's projections. The special election shall be held pursuant to Code Section 21-2-540. A majority of the votes cast in the special election must approve the public provider's plan to provide communications service or its investment of capital for the provision of communications service. A public provider shall not be required to obtain voter approval prior to the sale or discontinuance of the public provider's communications network.

(b) No county or municipal corporation that has received approval to provide communications service, has been granted the authority to provide communications service, or is providing communications service under the laws of this state on or before June 30, 2012, shall be required to comply with the provisions of Code Section 36-90-10 or with subsection (a) of this Code section.

36-90-4.

(a) No public provider shall cross-subsidize the costs of providing communications service with funds from any noncommunications service, operation, or revenue source, including any funds from electric, water, natural gas, sewer, or garbage services. Each year an officer of the public provider shall certify to the Public Service Commission that no cross-subsidy has taken place in the most recent calendar or fiscal year.

(b) A public provider shall establish one or more separate funds for the provision of communications service, use the funds to separately account for revenues, expenses, property, and capital funding associated with the provision of the communications service.

(c) The public provider shall annually remit to the general fund of the county or municipal corporation an amount equal to all taxes and fees that a similarly situated private service provider would be required to pay to the county or city.

(d) In determining the cost of providing communications service, a public provider shall impute an amount for the following into its indirect costs of providing service:

(1) Capital costs in an amount equal to the cost of capital for a private provider;

(2) An amount equal to all taxes, franchise fees, regulatory fees, occupation taxes, and pole attachment fees, calculated in the same manner as such amounts are calculated for any private provider paying such costs to the public provider for providing the same communications service; and

(3) Expenses related to any facilities, buildings, equipment, vehicles, and personnel used by the public provider in providing communications services.

(e) Each public provider shall prepare and publish an independent annual report and audit in accordance with generally accepted governmental accounting principles that record the full-cost accounting of providing service, including all direct, imputed, and indirect costs. Each public provider shall also maintain records that show the amount and source of capital, including working capital, utilized in providing communications service.

36-90-5.

(a) In providing communication service, a public provider shall not employ terms more favorable or less burdensome than those imposed by the public provider upon any private provider providing the same communication service within its jurisdiction with respect to franchise terms and conditions, conditions of access to public property, and pole attachment.

(b) A franchising authority shall not impose or enforce any local regulation on any private provider which is not also made applicable to any competing public provider, nor shall a franchising authority discriminate between a public provider and private provider.

(c) A public provider shall not under its governmental powers, including zoning or land-use regulation, directly or indirectly exercise power or authority to withhold or delay the provision of any utility service or require any person, including residents of a particular development, to use or subscribe to any communications service provided by the public provider.

(d) A public provider may not unreasonably withhold a request by a private provider to transfer, modify, or renew its existing franchise in accordance with the terms of the franchise and in accordance with the provisions of 47 U.S.C. Section 537, 47 U.S.C. 545, and 47 U.S.C. Section 546.

(e) No public provider shall advertise or promote its communications service on a public, educational, or governmental access channel that is provided by a private provider.

(f) No public provider shall use governmental resources or tax revenue to promote a public provider's communications service or, directly or indirectly, require government employees, officers, vendors, or agents to purchase the public provider's service.

(g) No public provider shall increase the costs of business taxes or other fees for franchises, rights of way, or licenses charged to private providers in order to fund a deficit in a public provider's communications service operation.

(h) In any action by a franchising authority to enforce any term or condition of a franchise agreement, a violation of this Code section by the public provider with respect to such respective term or condition shall be a defense in such action.

(i) A public provider shall comply with all local, state, and federal laws, regulations, or other requirements applicable to the provision of the communications service if that service was provided by a private provider.

(j) A public provider shall limit the provision of communications services to the areas within the geographic boundaries of the county or municipal corporation, and in no instance shall it provide communications service within the geographic boundaries of another municipal corporation or county.

(k) A public provider shall provide nondiscriminatory access to private providers for rights of way, poles, or other facilities owned, leased, or operated by the public provider.

36-90-6.

A public provider shall offer its service at a price or rate to each subscriber that is either (1) equal to or greater than the price or rate for comparable service of competing private providers or (2) equal to or greater than the incremental direct, imputed, and indirect costs of providing service to such subscriber.

36-90-7.

(a) The provisions of this chapter shall not apply to the operation of facilities by a county or municipal corporation to provide exclusive communications service for the county's or municipal corporation's internal governmental purpose.

(b) The provisions of this chapter shall not apply to the provision of communications services in an unserved area. A public provider seeking to provide communications services in an unserved area shall file a petition with the Public Service Commission for a determination that the area is unserved. Objections to the petition shall be filed in accordance with the rules of the Public Service Commission.

36-90-8.

All meetings and records of public providers of a communications service shall be subject to the Georgia public records and public meetings law contained, respectively, in Article 4 of Chapter 18 of Title 50 and Chapter 14 of Title 50; provided, however, that the exemption set forth in paragraph (1) of subsection (b) of Code Section 50-18-72 regarding trade secrets shall not apply to information provided to a governmental entity by a public provider.

36-90-9.

The immunity from antitrust liability afforded to local governments by the provisions of Code Sections 36-65-1 and 36-65-2 shall not apply to public providers in the offering and providing of services as defined in this chapter; and public providers shall be subject to applicable antitrust liabilities, subject, however, to the provisions of the federal Local Government Antitrust Act of 1984, 15 U.S.C. Sections 34-36.

36-90-10.

(a) The public provider shall issue requests for proposals from private providers that specify the nature and scope of the requested communications service, the area in which it is to be provided, any specifications and performance standards, and information as to the public provider's proposed participation in providing equipment infrastructure, or other aspects of the communications service.

(b) The public provider shall provide notice that it is requesting proposals in accordance with this Code section. The notice shall state the time and place where plans and specifications for the proposed communications service may be obtained and the time and place for opening proposals. Notice for requests for proposal shall be given by all of the following methods:

(1) By mailing a notice of request for proposals to each private provider that has obtained a license or permit to use the public rights of way to provide a communications service within the public provider's jurisdiction by depositing such notices in the mail at least 30 days prior to the date specified for the opening of proposals;

(2) By posting a notice of request for proposals on the public provider's website at least 30 days before the time specified for the opening of proposals; and

(3) By publishing a notice of request for proposals in a newspaper of general circulation in the area where the public provider is predominantly located at least 30 days before the time specified for the opening of proposals.

(c) The public provider shall negotiate a contract with the most responsive private provider for the provision of communications services specified in the request for proposals. If the public provider is unable to successfully negotiate the terms of a contract with the most responsive private provider within 60 days of the receipt of all proposals, the public provider may proceed to negotiate with the next most responsive private provider. If the public provider is unable to successfully negotiate the terms of a contract with the next most responsive private provider within 60 days of commencing negotiations, the public provider may proceed under this chapter to provide communications service.

(d) All proposals shall be sealed and shall be opened in public; provided, however, that a private provider's trade secret or proprietary information shall not be shared publicly."

SECTION 2.

All laws and parts of laws in conflict with this Act are repealed.