16 U.S. States Still Ban Community-Owned Broadband Networks Because AT&T and Comcast Told Them To
For years we’ve noted how U.S. broadband is expansive, patchy, and slow thanks to mindless consolidation, regulatory capture, regional monopolization, and limited competition.
For years we’ve noted how U.S. broadband is expansive, patchy, and slow thanks to mindless consolidation, regulatory capture, regional monopolization, and limited competition. That’s resulted in a growing number of pissed off towns, cities, cooperatives, and city-owned utilities building their own, locally-owned broadband networks in a bid for better, cheaper, faster broadband.
#broadband #internet #technology #comcast #att #telecommunications
Regional giants like Comcast, Charter, or AT&T could have responded to this organic trend by offering better, cheaper, faster service. But ultimately they found it far cheaper to undermine these efforts via regulatory capture, congressional lobbying, lawsuits, protectionist state laws, and misleading disinformation.
Currently sixteen states have laws — usually ghost written by regional telecom monopolies — restrict or outright ban community broadband. Some of these laws are outright bans on community broadband, basically letting Comcast or AT&T veto your local infrastructure voting rights. Others erect elaborate, cumbersome restrictions on the financing and expansion of such networks and pretend that’s not a ban.
The good news: The Institute For Local Self Reliance (where I study and write about broadband access) notes that these sixteen laws are a notable reduction from the 21 state laws we had in 2020. What caused the change? The pandemic home education and telecommuting boom highlighted the essential nature of broadband (or more accurately, the expensive, sluggish, terrible nature of monopoly options).
Article
The State of State Preemption: Stalled – But Moving In More Competitive Direction
As the federal government makes unprecedented investments to expand high-speed access to the Internet, unbeknownst to most outside the broadband industry is that nearly a third of the states in the U.S. have preemption laws in place that either prevent or restrict local municipalities from building and operating publicly-owned, locally-controlled networks.
Currently, there are 16 states across the U.S. (listed below) with these monopoly-protecting, anti-competition preemption laws in place.
These states maintain these laws, despite the fact that wherever municipal broadband networks or other forms of community-owned networks operate, the service they deliver residents and businesses almost always offers faster connection speeds, more reliable service, and lower prices.
In numerous cases, municipal broadband networks are able to provide low-cost or free service to low-income households even in the absence of the now expired federal Affordable Connectivity Program (ACP). And for several years in a row now, municipal networks consistently rank higher in terms of consumer satisfaction and performance in comparison to the big monopoly Internet service providers, as PCMag and Consumer Reports have documented time and time again.
Nevertheless, these preemption laws remain in 16 states, enacted at the behest of Big Cable and Telecom lobbyists, many of whom have ghost written the statutes, in an effort to protect ISP monopolies from competition.
The Infrastructure Law Was Supposed to Move the Preemption Needle But …
In March of 2021, President Biden first issued his vision for a bipartisan infrastructure bill – which would eventually include $65 billion for broadband expansion with $42.5 billion of that earmarked for building new networks under the BEAD program. The President wanted to center nonprofit municipal and cooperative business models in his plan to connect unserved and underserved communities, while bringing competition to a broken market that has left Americans paying among the highest prices for high-speed Internet service of any developed nation in the world.
The Biden-Harris administration’s “American Jobs Plan” called for broadband investments and policies that would “promote price transparency and competition among Internet providers, including by lifting barriers that prevent municipally-owned or affiliated providers and rural electric co-ops from competing on an even playing field with private providers.”
The President’s call to action also envisioned an infrastructure bill that would “prioritize support for broadband networks owned, operated by, or affiliated with local governments, non-profits, and co-operatives – providers with less pressure to turn profits and with a commitment to serving entire communities.”
Ultimately, however, when the Congressional sausage-making was complete and the Infrastructure Investment and Jobs Act (IIJA) was passed in November 2021, the bill deemphasized the Biden-Harris administration’s community-centered, local choice approach.
Still, it should be noted that the seed of the Biden-Harris administration’s vision did make it into the law, as the law specifically says any state that uses BEAD funds to build new networks must “ensure the participation of non-traditional broadband providers (such as municipalities or political subdivisions, cooperatives, non-profits, Tribal Governments, and utilities).”
Yet, neither Congress nor the NTIA – the agency charged with overseeing the distribution of the funds – has enforced the letter of the law. Instead, even those states that did not lift “barriers that prevent municipally-owned or affiliated providers and rural electric co-ops from competing” are still receiving their share of BEAD funds, all but ensuring the lion’s share of BEAD funds in those states will go to the big monopoly providers.
Pandemic Triggers Preemption Roll Back
But even without the federal government compelling states to remove preemption laws, the Covid-19 pandemic that shut down the nation in March 2020 was enough to convince four states that the preemption laws they had on the books were counterproductive, especially in the midst of a remote work and schooling boom, and as more and more commerce and governmental services moved online.
In 2021, Arkansas and Washington passed legislation significantly rolling back legislative barriers on publicly owned broadband networks. In 2023, Colorado rolled back a law that required communities to hold a referendum vote to opt out of a state ban on municipal broadband. That law was repealed after over 120 communities across the state overwhelmingly voted to opt out of the state preemption law, fueled no doubt by the success of the municipal networks in Estes Park, Fort Collins, and Loveland. In May of 2024, Minnesota followed suit, rolling back its preemptions laws.
Having tracked community broadband networks across the nation for nearly two decades now, we believe that locally-rooted, democratically-accountable networks are the best path for long term success.
Furthermore, we believe community-led broadband is the best option for promoting economic prosperity, improving quality of life, and ensuring broadband access for everyone irrespective of income and background.
Therefore we support legislative efforts to remove the preemption barriers that remain.
The 16 States That Still Have Preemption Laws Limiting Community Networks
Below is a list (and explanation) of the 16 states that still have preemption laws on the books that either outright prohibit or erect severe barriers to building and operating publicly-owned, locally controlled broadband networks.
Alabama: Municipalities are allowed to provide telecommunications services but state preemption laws impose numerous restrictions that all together make it extremely difficult for municipalities to build and operate a broadband network.
Alabama limits networks to community boundaries, preventing Opelika from expanding to serve others in the region, bringing opportunity to more and allowing its fixed costs to be spread among more subscribers.
As an example, Alabama prohibits municipalities from using local tax dollars or other funds to pay for the start-up expenses that any capital intensive project like network construction requires.
The law also requires municipal broadband projects to cover ongoing expenses and debt service from network revenues alone, which like any business may take years to reach; to say nothing of the fact that it forecloses the option of local communities deciding that the service is so valuable that it’s worth being subsidized by the local government, as is done with other basic infrastructure such as roads and schools.
Florida: Imposes numerous restrictions that have scared local governments away from investments though they likely could have navigated them. The state imposes taxes on municipal telecommunications that do not apply to other municipal services.
Communities considering an investment must conduct public hearings under specific circumstances and prepare a report showing “a plan to ensure that revenues exceed operating expenses and payment of principal and interest on debt within four years.”
Not all business models will break even in that time - especially when the networks are often focused explicitly on low-income neighborhoods that have been left behind.
Louisiana: Has among the strongest prohibitions that were made stronger after Lafayette launched LUS Fiber.
Municipalities must hold a referendum and are required to “impute” (or invent) additional costs that would apply to a private provider if it were offering services.
This requirement invites endless litigation as there are no agreed-upon standards for what these fees could be.
A community that somehow surmounts these obstacles would then lose the ability to charge franchise fees and similar obligations to other operators in the community – though those fees are usually owed to the public as compensation for using the community rights-of-way for poles, conduits, etc.
Michigan: Requires public entities to issue an RFP and can only proceed with a public investment if they receive “less than 3 qualified bids from private providers.”
They are also required to subject themselves to the same terms and conditions as those specified in their request for proposals - which is code for having to combine all the limitations of a public entity with the limitations of a private entity and the benefits of neither. Local governments are limited in serving any areas outside their boundaries.
Missouri: Limits municipalities and public power systems from telecommunications services leasing and selling for non-internal purposes but exempts “Internet-type” services.
What that means currently may be arguable but several communities have built fiber networks to offer Internet access to the public for a fee. Statute.
Counterintuitively, KC Fiber, a municipal network in North Kansas City, offers every resident within city limits fiber Internet service for free.
Montana: Local governments can invest in networks only if such services are not available from a private provider.
Like Pennsylvania, a service may be available to a few addresses at exorbitant prices and a community would not be able to move forward with a project.
Nebraska: Has among the worst prohibitions of municipal networks. The relevant law states:
“An agency or political subdivision of the state that is not a public power supplier shall not provide on a retail or wholesale basis any broadband services, Internet services, telecommunications services, or video services.”
Dark fiber, which is almost never regulated or limited even in states that limit municipal broadband, is also effectively prohibited due to complicated restrictions meant to protect the big telephone monopoly – CenturyLink/Lumen.
However, Lincoln recognized it could lease conduit and has built an impressive network doing just that.
Nevada: Prohibits municipalities with populations of 25,000 or more and counties with populations of 55,000 or more from providing telecommunications services. Statute. Statute.
Small wonder then, that the Silver State is a virtual community broadband desert with the notable exception of Churchill County Communications, a telephone cooperative first established in 1889.
North Carolina: Imposes numerous restrictions on community-owned broadband that have the practical effect of severely curtailing any such effort.
For example, as explained by the prominent telecom attorneys Jim Baller, Sean Stokes, and Casey Lide, “public entities are required to comply with unspecified legal requirements that may apply to private providers; impute phantom costs into their rates; conduct a referendum before providing service; forego popular financing mechanisms; refrain from using typical industry pricing mechanisms; and make their commercially sensitive information available to their incumbent competitors.”
No new municipal networks have been built since the law took effect, though Wilson’s Greenlight Network has still been able to thrive as one of the best examples of municipal broadband in the nation. North Carolina’s limits only apply to networks that would charge a fee for service.
Pennsylvania: Local governments are required to get permission from the local telephone company prior to investing in a network or partnership. This is literally the language of the statute:
Communities cannot consider factors such as whether the incumbent service is affordable, available to everyone, or reliable.
South Carolina: Effectively prohibits municipal networks by requiring them to invent phantom fees that would be applicable to private service providers – which would be subject to endless litigation. As with some other states, community providers would have to include unnecessary fees into their services to make them less competitive. Statute.
SC Five Year Action Plan Monopoly Comments
When state broadband officials conducted “listening tours” across the state to compile its Five Year Action Plan to qualify for BEAD funding the plan cited widespread criticism of monopoly ISPs.
The plan also explictly acknowledged the state’s preemption law was a stumbling block to maximizing its effort to provide universal connectivity.
The plan listed the three most common complaints they heard from residents:
“1) ISPs are not interested in expanding Internet service if it is not profitable, which can result in lack of access or spotty service in an area; 2) that ISPs are creating monopolies and customers are beholden to the prices and services they offer, regardless of the quality of services; and 3) that ISPs are difficult to contact, are not helpful with repairs and provide confusing information about service offerings and costs.”
Because of the state’s preemption law, South Carolina’s BEAD plan concluded: “no government entity has chosen to make a filing at the Public Service Commission of South Carolina to declare an area is unserved and that the government entity seeks to provide retail Internet service in that unserved area,” adding how the South Carolina Broadband Office “may raise any concerns for the consideration of the State General Assembly.”
Those concerns were either never raised or put on the back-burner as South Carolina’s preemption laws remain in place.
Tennessee: Municipal broadband networks are only allowed in communities with an existing municipally-owned electric utility.
And even then, those municipalities are only allowed to offer broadband service to households and businesses in their service territory.
It’s important to note, however, that even with Tennessee’s preemption law, the state is home to one of the most celebrated municipal networks in the nation, EPB Fiber in Chattanooga. And in Knoxville, the city's electric utility is currently building what will be the biggest municipally-owned network in the U.S. (KUB Fiber) when it is completed.
Texas: Home-rule cities can build and operate Internet access networks, but only to offer “data services” because the state outlaws municipal telecommunications services directly or indirectly. Mont Belvieu was able to clarify this interpretation of Texas law prior to building its network. Statute.
The municipal network in Pharr has distinguished itself among the handful of municipal networks in Texas in a city that was once considered one of the worst connected cities in the nation.
And like a number of other municipal networks, Pharr is offering low-cost high-quality 500 Megabit per second service for just $25/month and for qualified low-income households with a school-aged child in the home, gig-speed service is offered at no cost.
Utah: Effectively prohibits offering municipal Internet service as a retail operation but allows wholesale-only business models. As a result, most of the municipal networks we see in Utah use the open access business model, though Spanish Fork has a thriving retail network that predates the restrictive law.
In 2013, Utah restricted municipal bonds relating to telecommunications.
Virginia: Allows only municipal electric utilities to offer broadband service but not any form of cable TV service.
State law also prohibits municipal providers from subsidizing any of its broadband services and requires them to charge rates in line with private sector costs, effectively preventing publicly-owned network providers from offering even low-cost service to low-income households that is less than what private incumbent providers offer.
Additionally, municipal providers must “comply with numerous procedural, financing, reporting and other requirements that do not apply to the private sector,” as noted by Baller, Stokes, and Lide. Many community networks in Virginia are organized as Wireless Service Authorities.
Wisconsin: Requires specific local hearings and feasibility studies and that prices are greater than “total service long-run incremental cost” that includes phantom costs that are similar to those incurred by a non-governmental utility.
Such requirements are subject to endless litigation because there is no agreed-upon way to define these costs.
Alabama Code Title 11. Counties and Municipal Corporations § 11-50B-1
Current as of December 30, 2022
It is hereby declared to be the public policy of this state to encourage the development of advanced telecommunications capabilities, cable, interactive computer, and Internet facilities and services to better serve the public and further industrial economic development in this state. It is necessary for growth, job opportunities, and sustained economic development to encourage new investment in advanced telecommunications capabilities, cable, interactive computer, and Internet facilities, including investment by public providers of these services. Nothing contained herein, however, is intended to exempt, except, or exclude public providers which engage in the provision of advanced telecommunications capability or services, cable,
interactive computer, or Internet facilities or services pursuant to the authority granted herein from complying with any provisions of federal law which may at any time apply to the public providers or their facilities or services, including without limitation, to the extent that they apply, any requirement that they interconnect with other telecommunications providers, or that they obtain from the regulatory authorities designated by federal law as being the appropriate bodies from which to obtain any requisite approval, the approval of interconnection agreements with other telecommunications providers.
Florida Statute
125.421 Telecommunications services.—A telecommunications company that is a county or other entity of local government may obtain or hold a certificate required by chapter 364, and the obtaining or holding of said certificate serves a public purpose only if the county or other entity of local government:
(1) Separately accounts for the revenues, expenses, property, and source of investment dollars associated with the provision of such service;
(2) Is subject, without exemption, to all local requirements applicable to telecommunications companies; and
(3) Notwithstanding any other provision of law, pays, on its telecommunications facilities used to provide two-way telecommunication services to the public for hire and for which a certificate is required under chapter 364, ad valorem taxes, or fees in amounts equal thereto, to any taxing jurisdiction in which the county or other entity of local government operates. Any entity of local government may pay and impose such ad valorem taxes or fees. Any immunity of any county or other entity of local government from taxation of the property taxed by this section is hereby waived.
This section does not apply to the provision of telecommunications services for internal operational needs of a county or other entity of local government. This section does not apply to the provision of internal information services, including, but not limited to, tax records, engineering records, and property records, by a county or other entity of local government to the public for a fee.
History.—s. 1, ch. 97-197.
MICHIGAN TELECOMMUNICATIONS ACT (EXCERPT)
Act 179 of 1991
484.2252 Telecommunication services offered by public entity.
Sec. 252.
(1) A public entity may provide telecommunication services within its boundaries if the public entity has complied with the requirements of section 14 of the metropolitan extension telecommunications right-of-way oversight act, 2002 PA 48, MCL 484.3114, and all of the following apply: (a) The public entity has issued a request for competitive sealed bids to provide telecommunication services. (b) The public entity has received less than 3 qualified bids from private providers. (c) It is more than 60 days from the date the request for bids was issued. (d) The public entity is providing the telecommunication services under the same terms and conditions as required under the request for bids issued pursuant to subdivision (a).(2) Except as provided under subsection (3), a public entity shall not provide telecommunication services outside its boundaries. (3) Two or more public entities may jointly request bids under subsection (1) and provide telecommunication services if all participating public entities meet the requirements of this section. If a public entity does not receive a qualified bid as required under subsection (1), the public entity may contract with another public entity to receive telecommunication services. (4) A public entity shall not establish a board or other entity for the purpose of providing regulation of a private provider of services under this section. (5) This section does not apply to all of the following: (a) Public safety systems. (b) Systems used only for the internal use of the public entity or for the sharing of information between the public entity and another public entity.(c) A public entity that is currently providing telecommunication services or that has held a public hearing by November 1, 2005 on a proposal to provide telecommunication services, or has issued a request for bids by November 1, 2005 to provide telecommunication services, or has an enforceable contract to begin construction of a telecommunication system by November 1, 2005. (d) A public entity that is currently providing service in another public entity's boundaries. (e) Services offered by a public entity to the public within a facility owned and operated by the public entity. (f) Systems or services used or offered by 1 or more public entities or consortiums to advance or promote the public health, safety, and provision of e-government services.(6) This section may not be construed to prevent a municipally-owned utility from providing to its energy customers, either directly or indirectly, any energy related service involving the transfer or receipt of information or data concerning the use, measurement, monitoring, or management of energy services provided by the municipally-owned utility, including services such as load management or automated meter reading. (7) As used in this section, "public entity" means a county, city, village, township, or any agency or subdivision of the public entity.2023 Wisconsin Statutes & Annotations
Chapter 196 - Regulation of public utilities.
196.204 - Local government telecommunications utilities.
392.410. Certificate of public convenience and necessity required, exception — certificate of interexchange service authority, required when — duration of certificates — temporary certificates, issued when — political subdivisions restricted from providing certain telecommunications services or facilities. — 1. A telecommunications company not possessing a certificate of public convenience and necessity from the commission at the time this section goes into effect shall have not more than ninety days in which to apply for a certificate of service authority from the commission pursuant to this chapter unless a company holds a state charter issued in or prior to the year 1913 which charter authorizes a company to engage in the telephone business.
No telecommunications company not exempt from this subsection shall transact any business in this state until it shall have obtained a certificate of service authority from the commission pursuant to the provisions of this chapter, except that any telecommunications company which is providing telecommunications service on September 28, 1987, and which has not been granted or denied a certificate of public convenience and necessity prior to September 28, 1987, may continue to provide that service exempt from all other requirements of this chapter until a certificate of service authority is granted or denied by the commission so long as the telecommunications company applies for a certificate of service authority within ninety days from September 28, 1987.
2. No telecommunications company offering or providing, or seeking to offer or provide, any interexchange telecommunications service shall do so until it has applied for and received a certificate of interexchange service authority pursuant to the provisions of subsection 1 of this section. No telecommunications company offering or providing, or seeking to offer or provide, any local exchange telecommunications service shall do so until it has applied for and received a certificate of local exchange service authority pursuant to the provisions of section 392.420.
3. No certificate of service authority issued by the commission shall be construed as granting a monopoly or exclusive privilege, immunity or franchise. The issuance of a certificate of service authority to any telecommunications company shall not preclude the commission from issuing additional certificates of service authority to another telecommunications company providing the same or equivalent service or serving the same geographical area or customers as any previously certified company, except to the extent otherwise provided by section 392.450.
4. Any certificate of public convenience and necessity granted by the commission to a telecommunications company prior to September 28, 1987, shall remain in full force and effect unless modified by the commission, and such companies need not apply for a certificate of service authority in order to continue offering or providing service to the extent authorized in such certificate of public convenience and necessity. Any such carrier, however, prior to substantially altering the nature or scope of services provided under a certificate of public convenience and necessity, or adding or expanding services beyond the authority contained in such certificate, shall apply for a certificate of service authority for such alterations or additions pursuant to the provisions of this section.
5. The commission may review and modify the terms of any certificate of public convenience and necessity issued to a telecommunications company prior to September 28, 1987, in order to ensure its conformity with the requirements and policies of this chapter. Any certificate of service authority may be altered or modified by the commission after notice and hearing, upon its own motion or upon application of the person or company affected. Unless exercised within a period of one year from the issuance thereof, authority conferred by a certificate of service authority or a certificate of public convenience and necessity shall be null and void.
6. The commission may issue a temporary certificate which shall remain in force not to exceed one year to assure maintenance of adequate service or to serve particular customers, without notice and hearing, pending the determination of an application for a certificate.
7. No political subdivision of this state shall provide or offer for sale, either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section. Nothing in this subsection shall be construed to restrict a political subdivision from allowing the nondiscriminatory use of its rights-of-way including its poles, conduits,
ducts and similar support structures by telecommunications providers or from providing to telecommunications providers, within the geographic area in which it lawfully operates as a municipal utility, telecommunications services or telecommunications facilities on a nondiscriminatory, competitively neutral basis, and at a price which covers cost, including imputed costs that the political subdivision would incur if it were a for-profit business. Nothing in this subsection shall restrict a political subdivision from providing telecommunications services or facilities:
(1) For its own use;
(2) For 911, E-911 or other emergency services;
(3) For medical or educational purposes;
(4) To students by an educational institution; or
(5) Internet-type services.
Nevada Statute
NRS 268.086 Telecommunication service generally in city whose population is 25,000 or more: Sale of service by city to public prohibited; exception; procedure for city to purchase or construct certain facilities.
1. The governing body of an incorporated city whose population is 25,000 or more: (a) Shall not sell telecommunication service to the general public. (b) May purchase or construct facilities for providing telecommunication that intersect with public rights-of-way if the governing body: (1) Conducts a study to evaluate the costs and benefits associated with purchasing or constructing the facilities; and (2) Determines from the results of the study that the purchase or construction is in the interest of the general public.2. Any information relating to the study conducted pursuant to subsection 1 must be maintained by the city clerk and made available for public inspection during the business hours of the office of the city clerk. 3. Notwithstanding the provisions of paragraph (a) of subsection 1, an airport may sell telecommunication service to the general public. 4. As used in this section: (a) “Telecommunication” has the meaning ascribed to it in NRS 704.025. (b) “Telecommunication service” has the meaning ascribed to it in NRS 704.028. (Added to NRS by 1997, 2745; A 2007, 714) NRS 268.088 Telecommunication service or interactive computer service: Power of city to require franchises and impose terms and conditions on franchises limited; power of city to regulate placement of facilities limited.1. The governing body of an incorporated city shall not:
(a) Impose any terms or conditions on a franchise for the provision of telecommunication service or interactive computer service other than terms or conditions concerning the placement and location of the telephone or telegraph lines and fees imposed for a business license or the franchise, right or privilege to construct, install or operate such lines. (b) Require a company that provides telecommunication service or interactive computer service to obtain a franchise if it provides telecommunication service over the telephone or telegraph lines owned by another company. (c) Require a person who holds a franchise for the provision of telecommunication service to place its facilities in ducts or conduits or on poles owned or leased by the city.2. As used in this section: (a) “Interactive computer service” has the meaning ascribed to it in 47 U.S.C. § 230(f)(2), as that section existed on January 1, 2007. (b) “Telecommunication service” has the meaning ascribed to it in NRS 704.028. (Added to NRS by 1997, 2745; A 2001, 2126; 2007, 715)North Carolina:
Article 16A.
Provision of Communications Service by Cities.
§ 160A-340. Definitions.
The following definitions apply in this Article:
(1) City-owned communications service provider. - A city that provides communications service using a communications network, whether directly, indirectly, or through an interlocal agreement or a joint agency.
(2) Communications network. - A wired or wireless network for the provision of communications service.
(3) Communications service. - The provision of cable, video programming, telecommunications, broadband, or high-speed Internet access service to the public, or any sector of the public, for a fee, regardless of the technology used to deliver the service. The terms "cable service," "telecommunications service," and "video programming service" have the same meanings as in G.S. 105-164.3. The following is not considered the provision of communications service:
a. The sharing of data or voice between governmental entities for internal governmental purposes.
b. The remote reading or polling of data from utility or parking meters, or the provisioning of energy demand reduction or smart grid services for an electric, water, or sewer system.
c. The provision of free services to the public or a subset thereof.
(4) High-speed Internet access service. - 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.
(5) Interlocal agreement. - An agreement between units of local government as authorized by Part 1 of Article 20 of Chapter 160A of the General Statutes.
(6) Joint agency. - A joint agency created under Part 1 of Article 20 of Chapter 160A of the General Statutes. (2011-84, s. 1(a).)
§ 160A-340.1. City-owned communications service provider requirements.
(a) A city-owned communications service provider shall meet all of the following requirements:
(1) Comply in its provision of communications service with all local, State, and federal laws, regulations, or other requirements applicable to the provision of the communications service if provided by a private communications service provider.
(2) In accordance with the provisions of Chapter 159 of the General Statutes, the Local Government Finance Act, establish one or more separate enterprise funds for the provision of communications service, use the enterprise funds to separately account for revenues, expenses, property, and source of investment dollars associated with the provision of communications service, and prepare and publish an independent annual report and audit in accordance with generally accepted accounting principles that reflect the fully allocated cost of providing the communications service, including all direct and indirect costs. An annual independent audit conducted under G.S. 159-34 and submitted to the Local Government Commission satisfies the audit requirement of this subdivision.
(3) Limit the provision of communications service to within the corporate limits of the city providing the communications service.
(4) Shall not, directly or indirectly, under the powers of a city, exercise power or authority in any area, including zoning or land-use regulation, or exercise power to withhold or delay the provision of monopoly utility service, to require any person, including residents of a particular development, to use or subscribe to any communications service provided by the city-owned communications service provider.
(5) Shall provide nondiscriminatory access to private communications service providers on a first-come, first-served basis to rights-of-way, poles, or conduits owned, leased, or operated by the city unless the facilities have insufficient capacity for the access and additional capacity cannot reasonably be added to the facilities. For purposes of this subdivision, the term "nondiscriminatory access" means that, at a minimum, access shall be granted on the same terms and conditions as that given to a city-owned communications service provider.
(
(7) Shall not subsidize the provision of communications service with funds from any other noncommunications service, operation, or other revenue source, including any funds or revenue generated from electric, gas, water, sewer, or garbage services.
(8) Shall not price any communications service below the cost of providing the service, including any direct or indirect subsidies received by the city-owned communications service provider and allocation of costs associated with any shared use of buildings, equipment, vehicles, and personnel with other city departments. The city shall, in calculating the costs of providing the communications service, impute (i) the cost of the capital component that is equivalent to the cost of capital available to private communications service providers in the same locality
and (ii) an amount equal to all taxes, including property taxes, licenses, fees, and other assessments that would apply to a private communications service provider, including federal, State, and local taxes; rights-of-way, franchise, consent, or administrative fees; and pole attachment fees. In calculating the costs of the service the city may amortize the capital assets of the communications system over the useful life of the assets in accordance with generally accepted principles of governmental accounting.
(9) The city shall annually remit to the general fund of the city an amount equivalent to all taxes or fees a private communications service provider would be required to pay the city or county in which the city is located, including any applicable tax refunds received by the city-owned communications service provider because of its government status and a sum equal to the amount of property tax that would have been due if the city-owned communications service provider were a private communications service provider.
(b) A city-owned communications service provider shall not be required to obtain voter approval under G.S. 160A-321 prior to the sale or discontinuance of the city's communications network. (2011-84, s. 1(a).)
§ 160A-340.2. Exemptions.
(a) The provisions of G.S. 160A-340.1, 160A-340.4, 160A-340.5, and 160A-340.6 do not apply to the purchase, lease, construction, or operation of facilities by a city to provide communications service within the city's corporate limits for the city's internal governmental purposes, including the sharing of data or voice between governmental entities for internal governmental purposes, or within the corporate limits of another unit of local government that is a party with the city to an interlocal agreement under Part 1 of Article 20 of Chapter 160A of the General Statutes for the provision of internal government services.
(b) The provisions of G.S. 160A-340.1, 160A-340.4, and 160A-340.5 do not apply to the provision of communications service in an unserved area. A city seeking to provide communications service in an unserved area shall petition the North Carolina Utilities Commission for a determination that an area is unserved. The petition shall identify with specificity the geographic area for which the designation is sought. Any private communications service provider, or any other interested party, may, within a time established by order of the Commission, which time shall be no fewer than 30 days, file with the Commission an objection to the designation on the grounds that one or more areas designated in the petition is not an unserved area or that the city is not otherwise eligible to provide the service.
For purposes of this subsection, the term "unserved area" means a census block, as designated by the most recent census of the U.S. Census Bureau, in which at least fifty percent (50%) of households either have no access to high-speed Internet service or have access to high-speed Internet service only from a satellite provider. A city may petition the Commission to serve multiple contiguous unserved areas in the same proceeding.
(c) The provisions of G.S. 160A-340.1, 160A-340.3, 160A-340.4, 160A-340.5, and 160A-340.6 do not apply to a city or joint agency providing communications service as of January 1, 2011, provided the city or joint agency limits the provision of communications service to any one or more of the following:
(1) Persons within the corporate limits of the city providing the communications service. For the purposes of this subsection, corporate limits shall mean the corporate limits of the city as of April 1, 2011, or as expanded through annexation.
(2) Existing customers of the communications service as of April 1, 2011. Service to a customer outside the service area of the city or joint agency who is also a public entity must comply with the open bidding procedures of G.S. 143-129.8 upon the expiration or termination of the existing service contract.
(3) The following service areas:
a. For the joint agency operated by the cities of Davidson and Mooresville, the service area is the combined areas of the city of Cornelius; the town of Troutman; the town of Huntersville; the unincorporated areas of Mecklenburg County north of a line beginning at Highway 16 along the west boundary of the county, extending eastward along Highway 16, continuing east along Interstate 485, and continuing eastward to the eastern boundary of the county along Eastfield Road; and the unincorporated areas of Iredell County south of Interstate 40, excluding Statesville and the extraterritorial jurisdiction of Statesville.
b. For the city of Salisbury, the service area is the municipalities of Salisbury, Spencer, East Spencer, Granite Quarry, Rockwell, Faith, Cleveland, China Grove, Landis and the corridors between those cities. The service area also includes the economic development sites, public safety facilities, governmental facilities, and educational schools and colleges located outside the municipalities and the corridors between the municipalities and these sites, facilities, schools, and colleges. The corridors between Salisbury and these municipalities and these sites, facilities, schools, and colleges includes only the area necessary to provide service to these municipalities and these sites, facilities, schools, and colleges and shall not be wider than 300 feet.
The elected bodies of Spencer, East Spencer, Granite Quarry, Rockwell, Faith, Cleveland, China Grove, and Landis shall vote to approve the service extension into each respective municipality before Salisbury can provide service to that municipality. The Rowan County Board of County Commissioners shall vote to approve service extension to any governmental economic development site, governmental facility, school, or college owned by Rowan County. The Rowan Salisbury School Board shall also vote to approve service extension to schools.
c. For the city of Wilson, the service area is the county limits of Wilson County, including the incorporated areas within the County. Notwithstanding any other provision of this Article, the city of Wilson may continue the provision of communication services to persons and businesses in the temporary extension areas under the condition that the provision of communication services in such areas is terminated by a date which is 30 days after the date retail service is first available in the area from a competitive provider of communications service that will provide Fiber to the Premises (FTTP) service. For purposes of this subdivision, "temporary extension areas" shall mean
(i) the corporate limits of the Town of Pinetops and (ii) any service connection located within 800 feet of the centerline of Christian Road (State Road No. 1942) between its intersection with Bloomery Road (State Road No. 1996) and West Hornes Church Road (State Road No. 1941). Prior to the cessation of service, the city of Wilson may establish rates, fees, charges, and penalties for the communication services provided in the temporary extension areas in the same manner as communication services provided in the county limits of Wilson County,
including the incorporated areas within the County. Service will be deemed available for purposes of this provision upon the certification by a competitive provider to the city that service is available in a temporary extension area. For purposes of this subdivision, a competitive provider is an incumbent local exchange carrier or cable telecommunications company that is not presently providing Fiber to the Premises (FTTP) service in the temporary extension areas.
d. For all other cities or joint agencies offering communications service, the service area is the area designated in the map filed as part of the initial notice of franchise with the Secretary of State as of January 1, 2011.
(d) The exemptions provided in this section do not exempt a city or joint agency from laws and rules of general applicability to governmental services, including nondiscriminatory obligations.
(e) In the event a city subject to the exemption set forth in subsection (c) of this section provides communications service to a customer outside the limits set forth in that subsection, the city shall have 30 days from the date of notice or discovery to cease providing service to the customer without loss of the exemption. (2011-84, s. 1(a); 2017-180, s. 1.)
§ 160A-340.3. Notice; public hearing.
A city or joint agency that proposes to provide communications service shall hold not fewer than two public hearings, which shall be held not less than 30 days apart, for the purpose of gathering information and comment. Notice of the hearings shall be published at least once a week for four consecutive weeks in the predominant newspaper of general circulation in the area in which the city is located. The notice shall also be provided to the North Carolina Utilities Commission, which shall post the notice on its Web site, and to all companies that have requested service of the notices from the city clerk. The city shall deposit the notice in the U.S. mail to companies that have requested notice at least 45 days prior to the hearing subject to the notice.
Private communications service providers shall be permitted to participate fully in the public hearings by presenting testimony and documentation relevant to their service offerings and the city's plans. Any feasibility study, business plan, or public survey conducted or prepared by the city in connection with the proposed communications service project is a public record as defined by G.S. 132-1 and shall be made available to the public prior to the public hearings required by this section. This section does not apply to the repair, rebuilding, replacement, or improvement of an existing communications network, or equipment relating thereto. (2011-84, s. 1(a).)
§ 160A-340.4. Financing.
(a) A city or joint agency subject to the provisions of G.S. 160A-340.1 shall not enter into a contract under G.S. 160A-19 or G.S. 160A-20 to purchase or to finance the purchase of property for use in a communications network or to finance the construction of fixtures or improvements for use in a communications network unless it complies with subsection (b) of this section. The provisions of this section shall not apply to the repair, rebuilding, replacement, or improvement of an existing communications network, or equipment relating thereto.
(b) A city shall not incur debt for the purpose of constructing a communications system without first holding a special election under G.S. 163-297 on the question of whether the city may provide communications service. If a majority of the votes cast in the special election are for the city providing communications service, the city may incur the debt for the service. If a majority of the votes cast in the special election are against the city providing communications service, the city shall not incur the debt. However, nothing in this section shall prohibit a city from revising its plan to offer communications service and calling another special election on the question prior to providing or offering to provide the service. A special election required under Chapter 159 of the General Statutes as a condition to the issuance of bonds shall satisfy the requirements of this section. (2011-84, s. 1(a); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)
§ 160A-340.5. Taxes; payments in lieu of taxes.
(a) A communications network owned or operated by a city or joint agency shall be exempt from property taxes. However, each city possessing an ownership share of a communications network and a joint agency owning a communications network shall, in lieu of property taxes, pay to any county authorized to levy property taxes the amount which would be assessed as taxes on real and personal property if the communications network were otherwise subject to valuation and assessment. Any payments in lieu of taxes shall be due and shall bear interest, if unpaid, as in the case of taxes on other property.
(b) A city-owned communications service provider shall pay to the State, on an annual basis, an amount in lieu of taxes that would otherwise be due the State if the communications service was provided by a private communications service provider, including State income, franchise, vehicle, motor fuel, and other similar taxes. The amount of the payment in lieu of taxes shall be set annually by the Department of Revenue and shall approximate the taxes that would be due if the communications service was undertaken by a private communications service provider. A city-owned communications service provider must provide information requested by the Secretary of Revenue necessary for calculation of the assessment.
The Department must inform each city-owned communications service provider of the amount of the assessment by January 1 of each year. The assessment is due by March 15 of each year. If the assessment is unpaid, the State may withhold the amount due, including interest on late payments, from distributions otherwise due the city under G.S. 105-164.44I.
(c) A city-owned communications service provider or a joint agency that provides communications service shall not be eligible for a refund under G.S. 105-164.14(c) for sales and use taxes paid on purchases of tangible personal property and services related to the provision of communications service, except to the extent a private communications service provider would be exempt from taxation. (2011-84, s. 1(a).)
§ 160A-340.6. Public-private partnerships for communications service.
(a) Prior to undertaking to construct a communications network for the provision of communications service, a city shall first solicit proposals from private business in accordance with the procedures of this section.
(b) The city shall issue requests for proposals 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 city's proposed participation in providing equipment, infrastructure, or other aspects of the service. The city may prescribe the form and content of proposals and may require that proposals contain sufficiently detailed information to allow for an objective evaluation of proposals using the factors stated in subsection (d) of this section. Each proposal shall at minimum contain all of the following:
(1) Information regarding the proposer's experience and qualifications to perform the requirements of the proposal.
(2) Information demonstrating the proposer's ability to secure financing needed to perform the requirements of the proposal.
(3) Information demonstrating the proposer's ability to provide staffing, implement work tasks, and carry out all other responsibilities necessary to perform the requirements of the proposal.
(4) Information clearly identifying and specifying all elements of cost of the proposal for the term of the proposed contract, including the cost of the purchase or lease of equipment and supplies, design, installation, operation, management, and maintenance of any system, and any proposed services.
(5) Any other information the city determines has a material bearing on its ability to evaluate the proposal.
(c) The city shall provide notice that it is requesting proposals in accordance with this subsection. The notice shall state the time and place where plans and specifications for the proposed service may be obtained and the time and place for opening proposals. Any notice given under this subsection shall reserve to the city the right to reject any or all proposals. Notice of request for proposals shall be given by all of the following methods:
(1) By mailing a notice of request for proposals to each firm that has obtained a license or permit to use the public rights-of-way in the city to provide a communications service within the city by depositing such notices in the U.S. mail at least 30 days prior to the date specified for the opening of proposals. In identifying firms, the city may rely upon lists provided by the Office of the Secretary of State and the North Carolina Utilities Commission.
(2) By posting a notice of request for proposals on the city's Web site at least 30 days before the time specified for the opening of proposals.
(3) By publishing a notice of request for proposals in a newspaper of general circulation in the county in which the city is predominantly located at least 30 days before the time specified for the opening of proposals.
(d) In evaluating proposals, the city may consider any relevant factors, including system design, system reliability, operational experience, operational costs, compatibility with existing systems and equipment, and emerging technology. The city may negotiate aspects of any proposal with any responsible proposer with regard to these factors to determine which proposal is the most responsive. A determination of most responsive proposer by the city shall be final.
(e) The city may negotiate a contract with the most responsive proposer for the performance of communications service specified in the request for proposals. All contracts entered into pursuant to this section shall be approved and awarded by the governing body of the city.
(f) If the city is unable to successfully negotiate the terms of a contract with the most responsive proposer within 60 days of the opening of the proposals, the city may proceed to negotiate with the firm determined to be the next most responsive proposer if such a proposer exists. If the city is unable to successfully negotiate the terms of a contract with the next most responsive proposer within 60 days, it may proceed under this Article to provide communications service.
(g) All proposals shall be sealed and shall be opened in public. Provided, that trade secrets shall remain confidential as provided under G.S. 132-1.2. (2011-84, s. 1(a).)
Pennsylvania Statute:
§ 3014. Network modernization plans.
(a) Continuation of approved plan.--A local exchange telecommunications company that does not elect an option under subsection (b) shall remain subject to its network modernization plan in effect as of December 31, 2003, without revision or modification except by agreement under section 3013(b) (relating to continuation of commission-approved alternative regulation and network modernization plans) and as provided in this section through December 31, 2015.
(b) Options for amendment of network modernization plan.--Local exchange telecommunications companies shall have the following options:
(1) (i) A rural telecommunications carrier that elects to amend its network modernization plan pursuant to this subsection shall remain subject to the carrier's network modernization plan in effect as of December 31, 2003, as amended pursuant to this subsection, through December 31, 2008. Prior to implementation of such election, the rural telecommunications carrier shall comply with the notification requirements of subsection (e).
(ii) The rural telecommunications carrier shall commit to accelerate 100% broadband availability by December 31, 2008, in its amended network modernization plan. Any rural telecommunications carrier electing this option shall not be required to offer a bona fide retail request program or a business attraction or retention program.
(2) (i) A rural telecommunications carrier that elects to amend its network modernization plan pursuant to this subsection shall remain subject to the carrier's network modernization plan in effect as of December 31, 2003, as amended pursuant to this subsection, through December 31, 2013, or December 31, 2015, as applicable. Prior to implementation of such election, the rural telecommunications carrier shall comply with the notification requirements of subsection (e).
(ii) The rural telecommunications carrier shall commit:
east 80% of its total retail access lines in its distribution network by December 31, 2010, and 100% of its total retail access lines in its distribution network by December 31, 2013; or
(B) to accelerate broadband availability to at least 80% of its total retail access lines in its distribution network by December 31, 2010, and 100% of its total retail access lines in its distribution network by December 31, 2015; and
(C) to offer a bona fide retail request program and a business attraction or retention program pursuant to subsections (c) and (d). Under no circumstances may the rural telecommunications carrier reduce its existing broadband availability commitment.
(3) (i) A nonrural telecommunications carrier that elects to amend its network modernization plan pursuant to this subsection shall remain subject to such carrier's network modernization plan in effect as of December 31, 2003, as amended pursuant to this subsection, including meeting its 100% broadband availability commitment. Prior to implementation of such election, the nonrural telecommunications carrier shall comply with the notification requirements of subsection (e).
(ii) The nonrural telecommunications carrier shall commit:
(A) to provide broadband availability to 100% of its total retail access lines in its distribution network by December 31, 2013, or December 31, 2015; and
(B) to offer a bona fide retail request program and a business attraction or retention program pursuant to subsections (c) and (d). Under no circumstances may such nonrural telecommunications carrier reduce its existing broadband availability commitment.
(4) A local exchange telecommunications company that elects under paragraph (1), (2) or (3) shall also commit to universal broadband deployment in or adjacent to public rights-of-way abutting all public schools, including the administration offices supporting public schools, industrial parks and health care facilities in its service territory on or before December 31, 2005, except that a local exchange telecommunications company serving more than ten exchanges in this Commonwealth may elect to extend this commitment from December 31, 2005, to December 31, 2006, for any exchange with less than 4,000 access lines.
(5) A local exchange telecommunications company that elects under paragraph (1), (2) or (3) may amend its network modernization plan to extend the period of time within which broadband service must be made available to a customer to up to ten business days after the customer's request for broadband service.
(6) A local exchange telecommunications company operating under an amended network modernization plan may subsequently petition the commission for approval of further modification of its amended network modernization plan, which the commission may grant upon good cause shown.
(7) A rural telecommunications carrier serving less than 50,000 access lines in this Commonwealth making an election pursuant to paragraph (1) and filing its amended network modernization plan with the commission pursuant to subsection (e) shall be granted by the commission a suspension of section 251(c)(2), (3), (4), (5) and (6) obligations under the Telecommunications Act of 1996. This suspension of obligations shall expire December 31, 2008, unless extended by the commission. Should the commission, following a hearing, determine that the rural telecommunications carrier has failed to timely meet its commitments pursuant to this paragraph, the suspension of obligations shall expire upon entry of the commission order making such determination. Expiration of the suspension of obligations shall not impact the rural telephone company exemption of the rural telecommunications carrier under section 251(f)(1) of the Telecommunications Act of 1996.
(8) A local exchange telecommunications company may accelerate its broadband availability commitment by electing an additional option pursuant to paragraph (1), (2) or (3), as applicable, at a later date. The local exchange telecommunications company shall be subject to the applicable modified inflation offset in its price stability mechanism as set forth in section 3015(a)(1) (relating to alternative forms of regulation) effective upon the filing of an amended network modernization plan under subsection (e).
(c) Bona fide retail request program.--A local exchange telecommunications company that elects to amend its network modernization plan pursuant to subsection (b)(2) or (3) shall no later than 90 days after the effective date of its amended plan implement a bona fide retail request program in areas where it does not provide broadband. Not later than 30 days in advance of program implementation, the local exchange telecommunications company shall file with the commission and provide the department with a written description of the program, a sample request for advanced services form for use in the program and the form of any advanced services term subscription agreements customers will be required to execute in connection with receiving the requested services. A bona fide retail request program shall consist of the following:
(1) Any person, business, local development district, industrial development agency or other entity seeking advanced services pursuant to a bona fide retail request program shall submit a written request for such services to the local exchange telecommunications company or to the department in accordance with subsection (d). The written request may be in the form of a petition which includes the information required by paragraph (2), in the form provided by the department under subsection (d) which includes the information required by paragraph (2) or in the form of individual requests each of which includes the information required by paragraph (2). If individual requests are received, the local exchange telecommunications company shall aggregate requests for the same service and initiate appropriate action pursuant to this subsection when the required number of requests have been received.
(2) To be considered a bona fide retail request, the written request must include:
(i) a request that a minimum of 50 retail access lines or 25% of retail access lines within a community, whichever is less, each be provided the same advanced service or comparable advanced services having a bandwidth within 100 kilobits per second (Kbps) of each other. Notwithstanding the foregoing comparable bandwidth limitation, where a request includes individual customer requests for advanced services having equal to or less than 1.544 megabits per second (Mbps) bandwidth in the downstream direction, all lines in the request shall be counted in meeting the minimum line requirement of this subparagraph;
(ii) the name, address, telephone number and signature of each existing retail customer requesting the advanced service, the advanced service being requested and the number of access lines for which the advanced service is being requested;
(iii) the name, address and telephone number of a designated contact person where the request is made by or on behalf of more than one person or business; and
(iv) a commitment by each customer who signs the request to subscribe to the requested service for one year, subject to the local exchange telecommunications company's identification of the price and terms of the service and the customer's agreement to the price and terms.
(3) In administering the bona fide retail request program, the local exchange telecommunications company shall:
(i) establish an Internet website and toll-free telephone number to address customer inquiries regarding the program;
(ii) mail a request form to a customer upon request;
(iii) confirm its receipt of any completed request in writing to the customer and identify the service requested;
(iv) as part of the written confirmation, if available, or in a subsequent written communication to the customer, provide the customer the applicable rate, the contract term, the status of the request and a term subscription agreement for execution; and
(v) notify the customers in a community, within 30 days of receipt of a bona fide request, of the expected date of the availability of the requesters' service.
(4) When a bona fide retail request has been received that meets the requirements of paragraph (2), the local exchange telecommunications company shall provide the requested advanced service, or other reasonably comparable service having a bandwidth within 100 kilobits per second (Kbps) of the requested service, to the community as soon as practicable, but in no event later than 365 days of the date the requirements of paragraph (2) have been met or within the period approved by the commission under paragraph (5) or (6) where:
(i) the local exchange telecommunications company provides the requested advanced service to other customers in its service territory;
(ii) no service is available to the requesting customers from an alternative service provider at or within 100 kilobits per second (Kbps) of the data speed requested or such service is available at a price that exceeds the then current price offered by the local exchange telecommunications company by more than 50%;
(iii) the community is situated within the service territory of the local exchange telecommunications company; and
(iv) the local exchange telecommunications company does not have to provide fiber to the customer's premises to furnish the requested advanced service.
to furnish the requested advanced service.
(5) Where, as a result of property acquisition, including acquiring rights-of-way, or new construction, a local exchange telecommunications company is unable to provide the requested advanced service within the one-year period set forth in paragraph (4), the company may petition the commission for an extension of up to six months, with service upon the customer or customers who made the bona fide retail request and the department if the department submitted the request on behalf of the customer or customers. The commission may delegate its authority to rule on such petitions to a bureau director or other appropriate employee who shall grant the petition for good cause shown.
(6) Where the total number of bona fide retail requests received by any local exchange telecommunications company or affiliated companies that meet the requirements of paragraphs (2) and (4) exceed 40 requests in any 12-month period or where there are more than 20 such requests that require property acquisition, including acquiring rights-of-way, or new construction in any 12-month period, the local exchange telecommunications company or companies may provide a verified certification to the commission that one or both of the previously stated criteria are met, with service upon the customer or customers who made the additional requests and upon the department if the department submitted any such requests. Upon receipt of the certification, the commission or the commission through its designated staff shall permit the local
exchange telecommunications company or companies to extend the time for such deployments for a period of no more than 12 months unless the commission determines an additional time period to be just and reasonable. If a deployment is extended, it shall be counted in determining the maximum number of deployments provided for under this subsection in any 12-month period covering the month to which it is extended.
(7) No advanced service requested and deployed by a local exchange telecommunications company under the bona fide retail request program which has a bandwidth of less than 1.544 megabits per second (Mbps) in the downstream direction shall be counted as a credit toward the local exchange telecommunications company's broadband deployment obligation under its network modernization plan amended pursuant to subsection (b)(2) or (3).
(9) Local exchange telecommunications companies with bona fide retail request programs shall provide semiannual reports to the commission and the department of the number of requests for advanced services received during the reporting period by exchange or density cell and the action taken on requests meeting the requirements of this subsection.
(10) A local exchange telecommunication company's bona fide retail request program established under this subsection shall continue through December 31, 2015, or such earlier date as the local exchange telecommunications company achieves 100% broadband availability throughout its service territory.
(11) In addition to adjudicating any complaints brought by customers under paragraph (8), the commission shall monitor and enforce the compliance of participating local exchange telecommunications companies with their obligations under this subsection.
(d) Business attraction or retention program.--
(1) Not later than 90 days after amending its network modernization plan under subsection (b)(2) or (3), the local exchange telecommunications company shall establish a business attraction or retention program to permit the department to aggregate customer demand where necessary and facilitate the deployment of advanced or broadband services to qualifying businesses which the department seeks to attract to or retain in this Commonwealth and whose requests for such
services are submitted by or through the department.
(2) Each local exchange telecommunications company which amends its network modernization plan under subsection (b)(2) or (3) not later than 90 days after the effective date of its amended plan shall designate a single point of contact to receive all written advanced or broadband service requests forwarded by the department, provide associated contact information to the department and provide the department and the commission with a written description of its participation in the program and a sample request for advanced or broadband services form for use in the program.
(3) The department may submit a request to the applicable local exchange telecommunications company by or on behalf of qualifying businesses in areas that the department deems priority areas for economic development, including and giving preference to keystone opportunity zones, keystone opportunity expansion zones, enterprise zones, keystone opportunity improvement zones and other areas identified by the department as lacking adequate access to advanced or broadband services which would be important in order to promote economic development projects in those areas.
(4) The department shall establish an advisory committee that shall consist of representatives of each local exchange telecommunications company with a business attraction or retention program, local development districts and other local economic and industrial development agencies to assist the department in developing protocols and procedures for implementing these programs pursuant to this subsection.
(5) Qualifying business or businesses' requests for advanced services submitted by the department that are provisioned through the bona fide retail request program shall be processed in accordance with subsection (c) and shall be allocated 50% of the maximum number of annual deployments referenced in subsection (c)(6). Other requests shall be allocated 50% of the number of such deployments, provided, however, that any allocated deployments that are unused may be utilized by the department or nondepartment applicants, as applicable.
(6) For qualifying business or businesses whose request for advanced services is determined by the local exchange telecommunications company to be better processed outside of the bona fide retail request program, the local exchange telecommunications company shall make a proposal to the requesting business or businesses to provide the requested advanced or broadband service and subsequently shall provision such service. The local exchange telecommunications company shall advise the department and the business or businesses within 30 days of the date the contract is signed of the date by which the requested advanced or broadband service will be provided, which date shall be not later than one year after the date the contract is signed unless the business or businesses agree to a longer period or the local exchange telecommunications company obtains commission approval of an extension under the same procedure set forth in subsection (c)(5).
(7) No advanced service requested of and deployed by a local exchange telecommunications company under the Business Attraction or Retention Program which has a bandwidth of less than 1.544 megabits per second (Mbps) in the downstream direction shall be counted as a credit toward the local exchange telecommunication company's broadband deployment obligation under its network modernization plan amended under subsection (b)(2) or (3).
(8) Each local exchange telecommunications company which is required to participate in the department's Business Attraction or Retention Program shall continue its participation through December 31, 2015, or such earlier date as it achieves 100% broadband availability throughout its service territory.
(9) The department shall oversee local exchange telecommunications company participation in the Business Attraction or Retention Program, including the timely completion of qualifying advanced or broadband services requests submitted by or through the department which are processed within or outside of the participating local exchange telecommunications companies' bona fide retail request programs.
(10) The commission shall monitor and enforce the compliance of participating local exchange telecommunications companies with their obligations under the Business Attraction or Retention Program.
(e) Notice of filing of amendments.--A local exchange telecommunications company that elects to amend its network modernization plan under subsection (b) shall notify the commission in writing of such election and, within 60 days following such notification, file its amended network modernization plan with the commission. Copies of the written notice of election and of the amended network modernization plan shall be served by the local exchange telecommunications company on the Office of Consumer Advocate and the Office of Small Business Advocate.
Concurrent with the filing of the amended plan with the commission, the local exchange telecommunications company shall publish notice of such filing in a newspaper or newspapers of general circulation in its service territory or by bill message or insert. An amended plan compliant with the requirements of this chapter shall be approved by the commission within 100 days of its filing. If the commission fails to act within 100 days, the amended plan shall be deemed approved.
(f) Network modernization plan report.--
(1) A local exchange telecommunications company operating under a network modernization plan shall continue to file with the commission biennial reports on its provision of broadband availability in the form and detail required by the commission as of July 1, 2004, unless such reporting requirements are subsequently reduced by the commission.
(2) Nothing in this subsection shall be construed to impede the ability of the commission to require the submission of further information to support the accuracy of or to seek an explanation of the reports specified in this subsection.
(3) Under no circumstances shall the commission compel the public release of maps or other information describing the actual location of a local exchange telecommunications company's facilities.
(g) Assistance to political subdivisions.--A local exchange telecommunications company shall commit in its amended network modernization plan to make technical assistance available to political subdivisions located in its service territory in pursuing the deployment of additional telecommunications infrastructure or services by the local exchange telecommunications company.
(h) Prohibition against political subdivision advanced and broadband services deployment.--
(1) Except as otherwise provided for under paragraph (2), a political subdivision or any entity established by a political subdivision may not provide to the public for compensation any telecommunications services, including advanced and broadband services, within the service territory of a local exchange telecommunications company operating under a network modernization plan.
(2) A political subdivision may offer advanced or broadband services if the political subdivision has submitted a written request for the deployment of such service to the local exchange telecommunications company serving the area and, within two months of receipt of the request, the local exchange telecommunications company or one of its affiliates has not agreed to provide the data speeds requested. If the local exchange telecommunications company or one of its affiliates agrees to provide the data speeds requested, then it must do so within 14 months of receipt of the request.
(3) The prohibition in paragraph (1) shall not be construed to preclude the continued provision or offering of telecommunications services by a political subdivision of the same type and scope as were being provided on the effective date of this section.
(i) Broadband Outreach and Aggregation Program.--
(1) The department shall establish a Broadband Outreach and Aggregation Program for the purpose of making expenditures and providing grants from the Broadband Outreach and Aggregation Fund established under section 3015(c) (relating to alternative forms of regulation) for:
(i) Outreach programs for political subdivisions, economic development entities, schools, health care facilities, businesses and residential customers concerning the benefits, use and procurement of broadband services; and
(ii) Seed grants to aggregate customer demand for broadband services in communities or political subdivisions with limited access to such services and to permit customers in such communities or political subdivisions to request such services from a telecommunications provider.
(2) The department shall annually report to the commission on all payments to and expenditures from the Broadband Outreach and Aggregation Fund, and the commission shall verify the accuracy of the contributions from the participating local exchange telecommunications companies.
(j) Education Technology Program.--
(1) The Department of Education shall establish an Education Technology Program for the purpose of providing grants to school entities from the Education Technology Fund (E-Fund) established under section 3015(d).
(2) The Department of Education shall authorize grants from the E-Fund for the following purposes:
(i) Purchase or lease of telecommunications services, infrastructure or facilities to establish and support broadband networks between, among and within school entities and not for the provision of telecommunications services to the public for compensation.
(ii) Purchase or lease of premises telecommunications network equipment and end-user equipment to enable the effective use of broadband networks between, among and within school entities and not for the provision of telecommunications services to the public for compensation.
(iii) Distance learning initiatives that use the foregoing broadband networks.
(iv) Technical support services for the activities described in subparagraphs (i) through (iii).
(3) Each applicant school entity shall be required to provide 100% matching funds to support each E-Fund grant request. Funds received from Federal technology programs such as the universal service support mechanism for schools and libraries set forth in 47 CFR Pt. 54 (relating to universal service or successor regulations), in-kind contributions and any other technology expenditures shall be applied toward the matching fund requirement.
(4) No later than 90 days after the effective date of this section, the Department of Education shall prescribe the grant process and the form and manner of the E-Fund application. Grants shall be limited to the funds available in the Education Technology Fund. In awarding grants, the Department of Education shall give priority to applications:
(i) that are submitted by school entities that seek funds for discounted broadband services under subsection (l) or for broadband infrastructure, facilities or equipment from local exchange telecommunications companies which contribute to the E-Fund;
(ii) that seek funds for regional networks that serve multiple school districts which are filed on behalf of multiple school districts and school entities; or
(iii) that are submitted by school entities that do not have broadband service, provided, however, that nothing in this subsection shall preclude the department from awarding funds to school entities for telecommunications services, infrastructure or facilities that provide bandwidths greater than 1.544 megabits per second (Mbps).
The Department of Education shall assure that the applications funded each year are geographically dispersed throughout the Commonwealth.
(k) Balanced deployment.--A local exchange telecommunications company shall reasonably balance deployment of its broadband network between rural, urban and suburban areas within its service territory, as those areas are applicable, in accordance with its approved network modernization plan.
(l) Broadband discounts to schools.--Each local exchange telecommunications company that elects to amend its network modernization plan pursuant to this section:
(1) Shall offer school customers which meet the eligibility standards described in 47 CFR 54.501 (relating to eligibility for services provided by telecommunications carriers) and which agree to enter into a minimum three-year contract a 30% discount, or greater discount at the local exchange telecommunications company's discretion, in the otherwise applicable tariffed distance-sensitive per-mile rate element and also will waive the associated nonrecurring charges for available intrastate broadband services where used for
educational purposes and not for the provision of telecommunications services to the public for compensation. The discount or waiver shall not be required where application of it to a particular service would conflict with applicable law.
(2) Will assist school customers in applying for e-rate funding under 47 CFR 54.505 (relating to discounts).
(m) Inventory of available services.--
(1) The department shall compile, periodically update and publish, including at its Internet website, a listing of advanced and broadband services, by general location, available from all advanced and broadband service providers operating in this Commonwealth irrespective of the technology used.
(2) All providers of advanced and broadband services shall cooperate with the department.
(3) The department may not disclose maps or other information describing the specific location of any telecommunications carrier's or alternative service provider's facilities.
(n) Construction.--Nothing in this section shall be construed:
(1) As giving the commission the authority to require a local exchange telecommunications company to provide specific services or to deploy a specific technology to retail customers seeking broadband or advanced services.
(2) As prohibiting a local exchange telecommunications company from participating in joint ventures with other entities in meeting its advanced services and broadband deployment commitments under its network modernization plan.
(Nov. 30, 2004, P.L.1398, No.183)
2004 Amendment. Act 183 added section 3014, effective January 1, 2006, as to subsec. (h)(3) and immediately as to the remainder of the section.
Cross References. Section 3014 is referred to in sections 3012, 3015 of this title.