Bill Text: TX SB1238 | 2023-2024 | 88th Legislature | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to broadband development.

Spectrum: Slight Partisan Bill (Republican 39-24)

Status: (Passed) 2023-06-02 - Effective immediately [SB1238 Detail]

Download: Texas-2023-SB1238-Comm_Sub.html

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By: Nichols S.B. No. 1238
(In the Senate - Filed February 27, 2023; March 9, 2023,
read first time and referred to Committee on Business & Commerce;
March 31, 2023, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 11, Nays 0; March 31, 2023,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1238 By: Nichols

A BILL TO BE ENTITLED
AN ACT
relating to broadband development.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 490I.0101(a) and (b), Government Code,
are amended to read as follows:
(a) For purposes of this chapter, subject to Subsection (b),
"broadband service" means Internet service with the capability of
providing a:
(1) [a download] speed of not less than 25 megabits per
second for a download [or faster]; [and]
(2) [an upload] speed of not less than three megabits
per second for an upload; and
(3) network round-trip latency of less than or equal
to 100 milliseconds based on the 95th percentile of speed
measurements [or faster].
(b) If the Federal Communications Commission adopts
standards [upload or download threshold speeds] for advanced
telecommunications capability under 47 U.S.C. Section 1302 that are
different than those specified by Subsection (a), the comptroller
by rule may require Internet service to be capable of matching the
[providing download or upload speeds that match that] federal
standards [threshold] in order to qualify under this chapter as
"broadband service."
SECTION 2. Sections 490I.0105(a), (b), (c), (d), (f), (k),
(l), (n), (o), and (p), Government Code, are amended to read as
follows:
(a) The broadband development office shall create, update
annually, and publish on the comptroller's Internet website a map
classifying each broadband serviceable location [designated area]
in this state as:
(1) an unserved location [eligible area,] if[:
[(A) fewer than 80 percent of the addresses in]
the location does not [designated area] have access to reliable
broadband service capable of providing the speeds described by
Subdivision (2); [and
[(B) the federal government has not awarded
funding under a competitive process to support the deployment of
broadband service to addresses in the designated area; or]
(2) an underserved location [ineligible area,] if the
location is not an unserved location but does not[:
[(A) 80 percent or more of the addresses in the
designated area] have access to reliable broadband service with the
capability of providing:
(A) a speed of not less than 100 megabits per
second for a download;
(B) a speed of not less than 20 megabits per
second for an upload; and
(C) a network round-trip latency of less than or
equal to 100 milliseconds based on the 95th percentile of speed
measurements; or
(3) a served location if the location is neither an
unserved nor an underserved location [(B) the federal government
has awarded funding under a competitive process to support the
deployment of broadband service to addresses in the designated
area].
(b) The comptroller by rule may establish new threshold
speeds for a location to qualify as an underserved location if the
comptroller has required Internet service to be capable of matching
federal standards to qualify as broadband service under Section
490I.0101(b) [determine the scope of a designated area under
Subsection (a)].
(c) After creation of the initial map described in
Subsection (a), the office may evaluate the usefulness of the
standards for unserved and underserved locations [eligible and
ineligible areas] outlined in Subsection (a) and, if appropriate,
make a recommendation to the legislature to revise the standards.
(d) The map required by Subsection (a) must organize
broadband serviceable locations into designated areas and display
for each area:
(1) the number of broadband service providers that
serve the [each designated] area;
(2) [for each eligible area,] an indication of whether
the area has access to Internet service that is not broadband
service, regardless of the technology used to provide the service;
[and]
(3) each public school campus [in this state] with an
indication of whether the public school campus has access to
broadband service; and
(4) the number and percentage of unserved,
underserved, and served locations within the area.
(f) Except as provided by Subsection (g), the office shall
use the best available data, including information available from
the Federal Communications Commission, to create or update the map.
(k) A person who contracts under Subsection (i) may not
provide services in this state to [for] a broadband provider [in
this state] before the second anniversary of the last day the
contract is in effect.
(l) The office shall establish criteria for determining
whether a broadband serviceable location [designated area] should
be reclassified as an unserved or underserved location [eligible
area or an ineligible area]. The criteria must include an
evaluation of Internet speed test and reliability data [and
information on end user addresses. The criteria may also include
community surveys regarding the reliability of Internet service,
where available].
(n) A broadband service provider or political subdivision
may petition the office to reclassify a broadband serviceable
location [designated area on the map as an eligible area or
ineligible area]. The office shall provide notice of each accepted
[the] petition to each affected broadband service provider and
political subdivision by posting [that provides broadband service
to the designated area and post] notice of the petition on the
comptroller's Internet website.
(o) Not later than the 45th day after the date that the
office posts [a broadband provider receives] notice under
Subsection (n), each affected broadband service [the] provider or
political subdivision may [shall] provide information to the office
showing whether the broadband serviceable location [designated
area] should or should not be reclassified.
(p) Not later than the 75th day after the date that the
office posts the [a broadband provider receives] notice under
Subsection (n), the office shall determine whether to reclassify
the broadband serviceable location [designated area] on the map and
update the map as necessary. A determination made by the office
under this subsection is not a contested case for purposes of
Chapter 2001.
SECTION 3. Section 490I.0106, Government Code, is amended
to read as follows:
Sec. 490I.0106. BROADBAND DEVELOPMENT PROGRAM. (a) The
broadband development office shall establish a program to award
grants, low-interest loans, and other financial incentives to
applicants for the purpose of expanding access to and adoption of
broadband service [in designated areas determined to be eligible
areas by the office under Section 490I.0105].
(a-1) The office may award grants, low-interest loans, and
other financial incentives to applicants for eligible broadband
infrastructure projects designed to provide qualifying broadband
service to unserved and underserved locations. For the purposes of
this subsection, an eligible broadband infrastructure project
includes a project in which not less than 80 percent of the
broadband serviceable locations to be served by the project are
unserved and underserved locations.
(a-2) The office may award grants, low-interest loans, and
other financial incentives to applicants for middle-mile broadband
infrastructure projects.
(a-3) The office may award grants, low-interest loans, and
other financial incentives to applicants for projects not involving
the deployment of broadband infrastructure that expand the
accessibility, affordability, or adoption of broadband service,
including education, training, community outreach, remote learning
or telehealth facilities, equipment purchases, or any other use
permitted by the applicable funding source.
(b) The office shall establish eligibility and award [and
publish] criteria for making awards under this chapter for each
applicable notice of funds availability. The comptroller by rule
may prescribe the manner in which the office shall provide notice to
applicants of the applicable criteria [Subsection (a)]. In
establishing eligibility and award criteria, the [The] office
shall:
(1) take into consideration grants and other financial
incentives awarded by the federal government for the deployment of
broadband service [in a designated area];
(2) prioritize the applications of applicants that
will expand access to and adoption of broadband service in
designated [eligible] areas in which the highest [lowest]
percentage of broadband serviceable locations are unserved or
underserved locations; [addresses have access to broadband
service; and]
(3) prioritize the applications of applicants that
will expand access to broadband service in public and private
primary and secondary schools and institutions of higher education;
(4) give preference to an applicant that provided the
information requested by the office under Section 490I.0105 or
490I.01061; and
(5) take into consideration whether an applicant has
forfeited federal funding for defaulting on a project to deploy
qualifying broadband service.
(c) Notwithstanding Subsection (b)(2), the office may
establish criteria that take into account a cost benefit analysis
for awarding money to the [eligible] areas described by that
subdivision.
(d) The office may not:
(1) except as provided by Section 490I.01062, favor a
particular broadband technology in awarding grants, loans, or other
financial incentives;
(2) [award grants, loans, or other financial
incentives to a broadband provider that does not report information
requested by the office under Section 490I.0105;
[(3)] award a grant, loan, or other financial
incentive to a noncommercial provider of broadband service for a
broadband serviceable location [an eligible area] if an eligible
[a] commercial provider of broadband service has submitted an
application for the same location; [eligible area; or]
(3) [(4)] take into consideration distributions from
the state universal service fund established under Section 56.021,
Utilities Code, when deciding to award grants, loans, or other
financial incentives; or
(4) except as provided by Section 490I.01061, award a
grant, loan, or other financial incentive for deployment of
last-mile broadband service for a location that is subject to a
federal commitment to deploy qualifying broadband service on the
date the application is submitted or during the application
process.
(e) The office shall:
(1) post on the comptroller's Internet website
information about the application process and the receipt of awards
and shall update that information as necessary; and
(2) post on the comptroller's Internet website for at
least 30 days information from each accepted application, including
the applicant's name, the area targeted for expanded broadband
service access or adoption by the application, and any other
information the office considers relevant or necessary[, for a
period of at least 30 days before the office makes a decision on the
application].
(f) During the 30-day posting period described by
Subsection (e) for an application, the office shall accept from any
interested party, other than a broadband service provider that does
not report information requested by the office under Section
490I.0105 or 490I.01061, a written protest of the application
relating to whether the applicant or project is eligible for an
award or should not receive an award based on the criteria
prescribed by the office.
(g) Notwithstanding any deadline for submitting an
application, if the office upholds a protest submitted under
Subsection (f) on the grounds that one or more of the broadband
serviceable locations are not eligible to receive funding under
this chapter [addresses in an eligible area subject to the
application have access to broadband service], the applicant may
resubmit the application without the challenged locations
[addresses] not later than 30 days after the date that the office
upheld the protest.
(h) The office shall establish and publish criteria for
award recipients. The criteria must include requirements that
grants, loans, and other financial incentives awarded through the
program for the deployment of broadband infrastructure may be used
only for capital expenses, purchase or lease of property, and other
expenses, including backhaul and transport, that will facilitate
the provision or adoption of broadband service.
(i) An award granted under this section does not affect the
eligibility of a telecommunications provider to receive support
from the state universal service fund under Section 56.021,
Utilities Code.
SECTION 4. Chapter 490I, Government Code, is amended by
adding Sections 490I.01061 and 490I.01062 to read as follows:
Sec. 490I.01061. EXISTING FEDERAL FUNDING; REPORTING
REQUIREMENTS. (a) The broadband development office may award a
grant, loan, or other financial incentive for deployment of
last-mile broadband service for a location that is subject to a
federal commitment to deploy qualifying broadband service if:
(1) federal funding is forfeited or the recipient of
the federal funding is disqualified from receiving the funding; and
(2) the location otherwise may receive funding under
the program.
(b) An applicant for an award under this chapter that has
been awarded federal funding directly and has entered into an
enforceable commitment to deploy broadband services in a location
shall provide to the office information the office may require
regarding:
(1) the existing enforceable commitment; and
(2) the proposed deployment of broadband.
Sec. 490I.01062. FIBER OPTIC PREFERENCE. (a) The
broadband development office shall prioritize broadband
infrastructure projects that connect each end-user location using
end-to-end fiber optic facilities that meet speed, latency,
reliability, consistency, scalability, and related criteria as the
office shall determine for each applicable notice of funds
availability.
(b) The office may consider an application for a broadband
infrastructure project that does not employ end-to-end fiber optic
facilities if the use of an alternative technology:
(1) is proposed for a high cost area;
(2) may be deployed at a lower cost; and
(3) meets the criteria established by the office under
Subsection (a).
SECTION 5. Section 490I.0107(b), Government Code, is
amended to read as follows:
(b) In developing the state broadband plan, the office
shall:
(1) to the extent possible, collaborate with state
agencies, political subdivisions, broadband industry stakeholders
and representatives, and community organizations that focus on
broadband services and technology access;
(2) [consider the policy recommendations of the
governor's broadband development council;
[(3)] favor policies that are technology-neutral and
protect all members of the public;
(3) [(4)] explore state and regional approaches to
broadband development; and
(4) [(5)] examine broadband service needs related
to:
(A) public safety, including the needs of state
agencies involved in the administration of criminal justice, as
that term is defined by Article 66.001, Code of Criminal Procedure;
(B) public education and state and local
education agencies, including any agency involved in the electronic
administration of an assessment instrument required under Section
39.023, Education Code; and
(C) public health, including the needs of state
agencies involved in the administration of public health
initiatives such as the Health and Human Services Commission and
the Department of State Health Services.
SECTION 6. Sections 490I.0110(b) and (h), Government Code,
are amended to read as follows:
(b) The broadband development office board of advisors is
composed of 10 members, appointed as follows:
(1) two members appointed by the governor, including:
(A) one member to represent the Texas Economic
Development and Tourism Office; and
(B) one member of the public with experience in
telecommunications or [to represent nonprofit corporations that
work on the expansion, adoption, affordability, and use of]
broadband service;
(2) three members appointed by the lieutenant
governor, including:
(A) one member who resides in an urban area;
(B) one member to represent the public primary
and secondary education community; and
(C) one member who resides in a county that:
(i) is adjacent to an international border;
(ii) is located not more than 150 miles from
the Gulf of Mexico; and
(iii) has a population of more than 60,000;
(3) three members appointed by the speaker of the
house of representatives, including:
(A) one member who resides in a rural area;
(B) one member to represent the health and
telemedicine industry; and
(C) one member to represent the public higher
education community;
(4) the comptroller or the comptroller's designee; and
(5) one nonvoting member appointed by the broadband
development office to represent the office.
(h) The [Beginning one year after the effective date of the
Act enacting this chapter, the] board of advisors shall meet at
least semiannually [once every other month] with representatives
from the broadband development office for the purpose of advising
the work of the office in implementing the provisions of this
chapter.
SECTION 7. The following provisions of the Government Code
are repealed:
(1) Chapter 490H;
(2) Section 490I.0101(c); and
(3) Section 490I.0105(m).
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2023.
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