A02118 Summary:

BILL NO    A02118A

SAME AS    
SAME AS S02685-A

SPONSOR    Pretlow

COSPNSR    

MLTSPNSR   


Ren Art 11 4000, 4001 & 4002 to be Art 12 4200, 4201 & 4202, add Art
11
4100 - 4120, 2807, Pub Auth L; add Art 11-A 231 - 246, 92-h, 90-a,
90-b,
90-c, 90-d, 90-e & 90-f, amd 215, 99 & 100, Pub Serv L; add 32-a,
Exec L


Enacts the "omnibus telecommunications reform act of 2016".
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A02118 Actions:

BILL NO    A02118A

01/15/2015 referred to corporations, authorities and commissions
01/06/2016 referred to corporations, authorities and commissions
02/08/2016 amend and recommit to corporations, authorities and commissions
02/08/2016 print number 2118a
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A02118 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2118A
 
SPONSOR: Pretlow
  TITLE OF BILL: An act to amend the public authorities law, the public service law, and the executive law, in relation to reforming the telecommunications sector of the New York economy, by creating a broadband authority, authorizing statewide cable franchises for the purposes of competitive cable service, promoting the wide-spread development of high-capacity broadband internet access, and increasing the availability and quality of services in this key economic development area and ensuring the safe- ty, reliability and affordability of telecommunications services   PURPOSE OR GENERAL IDEA OF BILL: This bill makes fundamental reforms in the ever-changing world of tele- communications to guarantee that residents of New York are provided with universal access to telecommunications services at just and reasonable rates, while requiring telecommunications companies to make investments in telecommunications infrastructure and adequate staffing.   SUMMARY OF SPECIFIC PROVISIONS: § 1. Short Title. This Act shall be known as the "Omnibus Telecommuni- cations Reform and Consumer Protection Act of 2015. § 2. Legislative Findings. § 3. Amends the public authorities law by adding Article 11 to create the New York State Broadband Development Authority. § 4. Amends the public service law by adding a new section 92-h to create the Universal, Affordable and Secure Telecommunications Services Fund. § 5. Amends the public authorities law by adding a new article 11-A to create a statewide cable franchise. § 6. Amends § 215 of the public service law to require that cable fran- chises submit a "neutrality report." § 7. Amends § 99 of the public service law by adding a new section on anti-discrimination of service provisions. § 8. Amends the general business law by adding a new section 349-b-1 on VOIP 911 disclosure. §§ 9-10. Amends the public service law on telecommunications mergers. § 11. Amends the executive law on State Agency Telecommunications Resource Management. § 12. Amends the executive law on State Authorities Telecommunications Resource Management. § 13. Amends the public service law to require that the PSC complete a study on the effects of telecommunications mergers on universal service. § 14. Amends the public service law to require that the PSC complete a study on the effects of any proposed sale of telecommunications networks on universal service. § 15. Amends the public authorities law to require a report on Broadband Deployment. § 16. Amends the public service law to require the PSC perform a study on 911 Emergency Services. § 17. Amends the public service law to require that the PSC perform a study on consumer protections in wireless telecommunications services. § 18 Amends the public service law to study and then implement service quality standards for all telecommunications providers. § 19. Applicability of other law. § 20. Severability. § 21. Effective date.   JUSTIFICATION: The State has a responsibility, as a matter of public safety and consum- er protection, to promote safe, reliable and affordable telecommuni- cations services. This bill, therefore, has several goals including: *guaranteeing that all New Yorkers are offered quality telecommuni- cations services at just and reasonable rates; *bridging the ever-widening chasm of the digital divide in rural, high- cost and low income areas; *promoting the deployment of high-capacity broadband networks throughout New York State through the use of public-private partnerships which will help to remove the barriers to development of universally deployed world-class high-capacity broadband networks; and *increasing competition in cable television services across the State, resulting in increased investment in the state, lower prices and *improved service offerings for consumers, while still preserving munic- ipal power to manage public rights of way and their ability to collect a franchise fee and administer Public Education and Government access channels. To reform the telecommunications industry in New York State to ensure consumer protections and public safety by providing telecommunications access for all New Yorkers, we need a strong and fundamental reform of the entire system. This bill begins that process. A comprehensive plan is needed to lead the State into the next phase of telecommunications. This comprehensive legislation is a start to that process. Specific provisions are described below.   I. BROADBAND DEPLOYMENT AUTHORITY/MAPPING Broadband technologies, which enable the high-speed transmission of electronic information, play a fundamental role in the State's economy. These broadband services are essential for electronic commerce and tele- commuting, and are critical for 21st century learning and medicine. However, broadband technologies are not evenly dispersed and utilized among the state's citizens. Rural, inner-city, and low-income households may be unable to reap the benefits of broadband access. In order to develop a strategy for encouraging the cost-effective deployment of broadband technologies in the state, the legislature intends to identify factors preventing the widespread availability and use of broadband technologies. This bill will guarantee adequate service quality by telecommunications and cable companies in rural, high-cost and low income areas. Often social access is just as important as physical access. In other words, even as broadband is deployed, the costs are so high that most citizens cannot afford to use the technology. Such a cost prohibitive deployment must be addressed. As other states have found, due to the complexity and expense of estab- lishing universal broadband access, the creation of a new public author- ity is necessary. This public authority, the Broadband Deployment Authority, will manage, regulate, and assist with funding of the wide array of infrastructure enhancement projects necessary for universal broadband access. This is not a new concept as other states have already moved ahead with the creation of similar public authorities. Virginia created the Innovative Technology Authority with an operational arm known as the Center for Innovative Technology. The Authority has powers to promote various technology projects and is authorized to disburse funds to broadband enhancement projects throughout the state. The Innovative Technology Authority/Center for Innovative Technology is considered nation-wide model for broadband deployment authorities. ConnectKentucky was based off these institutions and has made impressive strides in its effort to establish 100 Broadband availability throughout their home state by the end of 2007. Maine has created the ConnectME authority tasked with establishing universal broadband access in that state, with power to designate and redesignate base-level broadband access speeds, designate un- and under-served areas, distribute funds, and level assessments on telecommunications providers to support those funds. By creating this authority, and the requisite broadband infras- tructure the economic future of New York will be greatly enhanced. However, in order to deploy broadband to the places in greater need, the State needs a comprehensive system of mapping. Therefore, the Empire State Development Corporation and the Public Service Commission, in conjunction with the Geographic Information Services Clearinghouse of the Office of Cyber Security and Critical Infrastructure Coordination will be appropriated $250,000 to complete a survey of broadband avail- ability in New York State. The survey shall collect and inter part statistically reliable geographic, demographic, and telecommunications technology information to identify any broadband deployment disparities in the state. The survey shall also produce a statistically reliable profile of the following: Households and businesses in the state with no available broadband options; Households and businesses in the state with access to broadband options, but who choose not to purchase an option; and Purposes for which broadband is used by households and businesses in the state. The survey will be conducted at the census tract level or such smaller administrative units as is reasonable. After the initial survey is complete, the Empire State Development Corporation, Public Service Commission, and the Geographic Information Services Clearinghouse will provide updates every six months to track the expansion and progress of broadband access across the State.   II. COMPETITION OF CABLE TELEVISION SERVICES The State has a responsibility to promote adequate, affordable and effi- cient cable services to its residents and encourage the optimum develop- ment of community-service potentials of the cable television medium. Technology is ever-changing and it is imperative that the State of New York allows for many sources of technological competition to provide the goal of adequate and affordable cable services to residents. This Act is a step in providing a balanced approach to providing consumers cable choice and allowing for areas of the State to have access to developing broadband technologies. Currently, other states have enacted laws to provide choice for cable service including: California, Indiana, New Jersey, Michigan, Kansas, North Carolina, South Carolina, Texas and Virginia. Other states have also moved statewide franchise bills through the legislative process including Pennsylvania, Connecticut, Georgia, Missouri, New Hampshire and Tennessee, among others. Contrary to various reports, this bill protects all municipal power, save the power to approve the franchise, and sets the fees, public access and other social protections at a ceiling so that municipalities, community groups and other interested parties have the most progressive and comprehensive franchise possible. In the end this section is to protect the consumer and strengthen the economy, while preserving locality's power to regu- late franchises. The GAO, FCC and other studies show that only statewide franchises cause rate reductions of 20-25%. In addition, Towns, cities and villages will receive a 4031 increase in payments from cable compa- nies.   A. ADDITIONAL CONSUMER AND LOCAL GOVERNMENT: PROTECTIONS While other states have enacted laws to provide choice, this bill would require other important protections to protect local input, community input, citizen access to television channels, the free flow of ideas and information on broad-brand networks and other consumer protections This is the most progressive statewide cable franchise in the country that will protect consumers, bring choice, protects the power of munici- palities and require social responsibility on behalf of cable providers. 1. It maintains and exceeds financial commitments to local governments. The Ant has a progressive franchise fee schedule that includes a 5% franchise fee, free cable and Internet service to municipal buildings and agencies and a separate fund to maintain and build quality PEG chan- nels. Finally, tax loopholes and other financial gimmicks used by the cable companies to reduce municipal payments are outlawed. 2. It maintains municipal oversight to tailor the provider's commitment to the community's needs. The Statewide franchise will allow munici- palities the various powers to retain all their historic powers includ- ing: *The power of municipalities to exercise its power over public rights- of-way; *Receive, mediate and resolve cable service quality complaints from a franchise holder's customers within the municipality; *Require a franchise holder who is providing cable service within the municipality to register with the municipality, maintain a point of contact, and provide notice of any franchise authorization transfer to the municipality within fourteen business days after the completion of the transfer; and *Establish guidelines regarding the use of public, educational, and governmental access channels within the municipality. 3. It protects and allows for progressive public access. In many parts of the State, PEG channels are woefully inadequate in providing access and programming opportunities to citizens. This bill would create a strong system of PEG channels for it provides the necessary funding and channel space. The Act will require that the current regulations govern- ing PEG channels be followed including additional PEG channels and services not contained in the current regulations. For example every statewide franchise will have to allot analog channels of six megahertz bandwidth. In addition, the Act would create a separate fund specif- ically for PEG channels to maintain a reliable service and community network. This is the most progressive language in the State or country. 4. It requires a continued commitment to the community. The Act will require cable operators to provide free cable and high speed Internet service to hospitals, schools, firehouses and other important community/municipal organizations. In addition, the Act includes anti- redlining provisions. If the PSC finds that a cable operator is redlin- ing, the Commission may terminate the franchise as well as impose fines and Penalties on the cable operator.   B. REQUIRING COMPANIES TO PROVIDE COMPETITIVE SERVICES AND STOPPING THE "CHERRY PICKING" PROBLEM. Contrary to various reports, this Act would mandate that cable operators fulfill their obligation to provide choice by requiring certain build out dates as well as impose fines to any company that is found to discriminate against a class or race of people by not providing service to communities. Specifically, any evidence of redlining by a company results in significant penalties. This bill will require that the franchisee provide service to a majority of New Yorkers to ensure that competition is offered throughout the State. This bill would require that any statewide franchise provide: service to over half the State's consumers (including in the upstate, western, central and downstate portion of the State) within three years of receiving a statewide franchise, and service to over 85% of New York- ers within five years. This is among the most progressive deployment requirements in the country.   C. WHY THE NEED FOR THE STATEWIDE FRANCHISE? It has been argued that there is no need for a statewide franchise because any company can file for a local franchise now and further, that it is unfair to companies that have had to file for local franchises to now compete with a state- wide model. However, the technology and market has changed considerably since the first cable franchises. It took years for cable companies to offer cable service and broadband service to the entire State, so a local franchise-by-local franchise approach will not deploy and create the competitive market that consumers deserve. More- over, a review of franchises throughout New York has shown that many municipalities get shortchanged. This bill sets protects municipalities by statutorily. requiring the financial and community incentives that are needed in franchises. Finally, and most importantly, in the end the consumer wins because of lower cable rates.   D. THE STATEWIDE FRANCHISE PROVIDES CHOICE, CREATES COBS AND SPURS THE ECONOMY The Cable Choice Act provides residents all the consumer protections and statutory requirements for adequate, efficient and affordable service while providing choice of service providers. This carefully constructed legislation will promote and facilitate the deployment of advanced tech- nologies and new reliable and affordable services to all classes and communities and protect New York's ability to compete in the national and international marketplace for industry and jobs.   III. PROTECTING THE NEUTRALITY OF THE INTERNET The proposal includes net neutrality language - whereby networks would not be able to favor one particular network destination or class of applications over others--to ensure that the free flow of ideas of the Internet. Although the Federal Government has eliminated net neutrality rules, the State has every right and obligation to build this important consumer protection in as a condition of a new model of cable and broad- band deployment. Net Neutrality is not in itself a new idea. Its roots date back to the 1050's with Common Carrier legislation for telegraphs, Those laws made it unlawful for anyone owning or operating a telegraph line to refuse to receive dispatch from any other company or person owning or operating any telegraph line in the state, or refuse or willfully neglect to tran- smit the same in good faith, without partiality. The offense would result in the forfeiture of all right and franchises associated with telegraph transmission in the state. In 2005 the Federal Communications Commission incorrectly decided that common carrier status need not apply to telecommunication providers. There is no logical reason to overturn statutes that have worked for over 140 years, Our legislation will update an existing statute in order to ensure consumer protection and public safety by providing equal tele- communications access for all New Yorkers.   IV. PROTECTING 911 EMERGENCY SERVICES This legislation also protects and will require the further enhancement of 911 emergency services. The ability to call 911 during an emergency saves lives everyday in New York State. Many New Yorkers who use VoIP (Internet phone service) as their primary phone assume that emergency 911 works the same for VoIP phones as traditional phones, but this is mostly not the case, Consumers must be made aware of any limitations of their 911 service before an emergency occurs. Disclosure of the limits of VoIP's 911 services will allow New Yorkers to avoid the tragedies that have occurred in other states when customers wrongly believed that VoIP would work the same as traditional phone service when placing a call to 911. For example, in Texas a child recently witnessed a violent crime in her home, but was unable to access 911 emergency services from the family's VoIP telephone, The Attorneys General of the States of Michigan and Texas have brought suit against the largest provider of VoIP telephony to require it to fully disclose the limitations of such services to current and prospective customers. Furthermore, New York's existing Enhanced 911 (E911) system greatly enhances public safety by automatically identifying the caller's phone number and location. Nearly all consumers with traditional wireline Phone service and most consumers with wireless cellular phones currently have access to E911. However, outside of New York City, most VoIP subscribers do not enjoy the benefits of E911. With an increasing number of New Yorkers using VoIP phones, it is important that the State studies the technological challenges facing the extension of E911 to VoIP services and other issues that could degrade the effective ness of New York's E911 networks in the future. E911 services are essential to the public safety of all New Yorkers. E911 is distinguished from traditional 911 in that it provides the Emer- gency Operators the caller's phone number as well as their location. As such it is necessary for New York State to perform a comprehensive study to ascertain the current availability and reliability of its E911 services. As the telecommunications industry migrates from copper wire- based infrastructure to fiber optic-based infrastructure, it is equally important that New York take steps to safeguard the current availability and reliability of E911 while looking secure and expand the service with new and emerging technologies. After such a study is performed, the public will be better informed of the policy issues surrounding E911 as well as possible legislative actions necessary to ensure its availabili- ty.   V. ANNUAL TELECOMMUNICATIONS RESOURCES REPORTS BY AUTHORITIES AND AGEN- CIES Wide access to broadband services will serve the nubile interest and promote economic development within New York State. This section will have public authorities and agencies lease on a non-discriminatory and commercially reasonable basis any excess capacity or bandwidth under their control to public entities or certified telecommunications carri- ers. This excess capacity will then be used to provide broadband services to unserved, underserved, and distressed areas. This section will also have public authorities and agencies report on the telecommu- nications services they use that may be used in a telecommunications demand aggregation program administered by the State Broadband Deploy- ment Council created in this legislation. Finally, this section will require each public authority and agency to post on its website documen- tation on the telecommunications infrastructure resources controlled by the authority and agency. It is wasteful for public authorities and agencies to let excess capaci- ty go unused when it can be leased to public entities or telecommuni- cations carriers in order to increase broadband access to under served areas.   VI. PROTECTING UNIVERSAL SERVICE AND THE LEGACY SYSTEM While new telecommunications technologies emerge daily, many New Yorkers are forced to rely on the legacy system. New Yorks historic responsibil- ity was and is to provide universal service at just and reasonable rates. The Federal government has defined universal service as being composed of the following parts: the high-cost support mechanism; the low-income support mechanism; the rural healthcare support mechanism; and the "E-Rate" which helps to provide telecommunications access to our schools and libraries. New York currently provides minimal assistance to elderly persons with help paying their phone bills as well as telecommu- nications relay services (TRS) to the hearing impaired. New York does not provide any E-Rate assistance beyond what it receives in federal moneys. This situation is unacceptable. As part of a holistic approach to reforming the telecommunications industry, implementation of all four federal aspects of the universal service fund is necessary, as well as expanding that definition to include high-speed broadband access to unserved and underserved areas. As demonstrated in the by Committee's various public hearing and inves- tigations into Verizon's declining service quality, it is necessary for comprehensive reform of the telecommunications industry. Relying on market forces to regulate the industry (legacy or burgeoning networks) has so far proved inadequate. As the industry migrates from aging copper wire networks to new, high capacity fiber-optic cables it is imperative that the State have a free hand to regulate the industry. Through new regulations the State can ensure service quality that will provide instant access to emergency phone and internet services throughout the infrastructure transition and beyond. Evaluating service quality should encompass a wide number of criteria; the length of time needed to repair out of service reports, wait times for customer service phone calls, the time needed for installations, missed repair appointments, and more. Along with Assembly Tonko's service quality proposal, this legislation takes several steps to ensure adequate service quality for New Yorkers. It requires the Public Service Commission to issue reports that evaluate the impact of the sale or transfer of the capital stock of telephone corporations on service qual- ity in the relevant area along with looking at the impact on prices and network reliability. The bill also empowers a municipal government to mediate cable television service quality complaints within the munici- pality. Thus, in order to accomplish the goals of universal service, it is imperative that a system of support mechanisms remain in place and is expanded to burgeoning technologies for high-cost areas. The legislation expands universal service to promote the goal of ensuring that telecom- munications consumers in New York have generally and readily available and, reasonably priced access to broadband telecommunication services and other advanced communications services in a fair and non discrimina- tory procedure. Additional measures are needed to ensure that the State fulfills its responsibility of providing universal service. First, the Public Service Commission must approve of any sale, lease, or other form of acquisition of said infrastructure, before that transaction can be finalized. Approval of any transaction is contingent on the Public Service Commis- sion's findings that the transaction will be in the public interest and meet standards described in statute. Second, the State must take a hard look at any sale of part of the lega- cy system. Recently Verizon has sold off portions of their networks in New Hampshire, Connecticut and Vermont. As recently as 2005, reports surfaced that verizon and Frontier were looking to selling off portions of their networks in Upstate New York. Reports have also indicated that the companies that were interested in purchasing the lines are private equity firms and speculators interested in generating quick profits, rather than traditional telephone companies interested in operating the business over the long term in the upstate region. Such a sale would clearly have a dramatic impact on telephone service in upstate areas and would have a pronounced effect on the policy of universal service. It is therefore vital that the Department of Public Service, the Legislature, and the Governor understand the full range of issues and questions aris- ing from the sale of a large sector of telephone networks on service quality and public safety among other issues. Third, before consent is given to any merger, the Public Service Commis- sion must agree that such merger is within the public's interest. The Public interest requires that the Public Service Commission's analysis of mergers and conclusions drawn there arise from objective alild veri- fiable empirical evidence, rather than from unsupported statements of policy or conclusory observations. It is additionally in the public interest to require a portion of the benefits of telecommunications mergers to be returned to the state's ratepayers as refunds, reinvest- ment in the infrastructure, providing E-911 services or to finance repairs, maintenance or new construction that might otherwise be unfunded. Finally, requiring the Public Service Commission to conduct its analysis upon an enumerated list of public interest factors increases the participation of the public and other stakeholder groups in such proceedings, which enhances the transparency and accountability of the merger analysis process.   VII. ANTI-DISCRIMINATION IN ACCESS TO TELECOMMUNICATIONS SERVICES Pursuant to section 228 of the public service law, cable television companies are authorized to install their facilities upon private prem- ises under reasonable conditions. This statutory authorization, however, does not apply to any other types of telecommunications service provid- ers. This bill would permit all types of telecommunications service providers to install their facilities upon private premises, under reasonable conditions, in recognition of the current range of telecommu- nications service choices available to consumers and the potential for expansion of such services. The bill would thereby allow equal access by telecommunications service providers to install their facilities in private premises so that consumers will in turn have full access to, a variety of telecommunications services.   VIII. WIRELESS TELECOMMUNICATIONS Wireless technology has developed rapidly across the globe. For many people across the State wireless telephone service is now their primary mode of communication. Many other customers, especially older ones, use cell phones primarily for safety in the event of emergencies during travel. Assemblyman O'Donnell sponsors legislation that will give consumers protections such as disclosure of terms, conditions of services and charges, 5-911 service, and coverage maps and areas. Along- side Assemblyman O'Donnell's legislation there should also be a study into wireless telecommunications service providers to ensure consumer protection, health and public safety. With the expansion of wireless telephone service it is in the public's best interest for the Public Service Commission to go forth with a study and report their findings to the Legislature in 180 days after this bill shall become law. Taken together this legislation will provide the resources for modernizing the State's telecommunications network, provide choice for consumers, and protect the legacy system.   PRIOR LEGISLATIVE HISTORY: 2013-14 A 4143-A report to commissions and authorities. 2009/2010 A1875 referred to corporations, authorities and commissions; A.3980 (2007-2008). However, note: Reference to wireless telephone and consumer protections A. 2030 of 2007 (O'Donnell); telecommunications service and consumer protections standards A. 3704/3705 of 2007 (Tonko). Includes elements of A. 6524 of 2006 (Brodsky); A. 9807 of 2006 (Brodsky); A. 9808 of 2006 (Brodsky); A. 9809 of 2006 (Brodsky); A. 1423 of 2007 (Brodsky) and A. 7932 of 2006 (Brodsky).   FISCAL IMPLICATIONS: Not known   EFFECTIVE DATE: This act shall take effect immediately
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A02118 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2118--A
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 15, 2015
                                       ___________
 
        Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
          tee on Corporations, Authorities and Commissions -- recommitted to the
          Committee on Corporations, Authorities and Commissions  in  accordance
          with  Assembly  Rule  3, sec. 2 -- committee discharged, bill amended,
          ordered reprinted as amended and recommitted to said committee
 

        AN ACT to amend the public authorities law, the public service law,  and
          the  executive  law,  in  relation to reforming the telecommunications
          sector of the New York economy, by  creating  a  broadband  authority,
          authorizing statewide cable franchises for the purposes of competitive
          cable  service, promoting the wide-spread development of high-capacity
          broadband internet access, and increasing the availability and quality
          of services in this key economic development  area  and  ensuring  the
          safety, reliability and affordability of telecommunications services
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "omnibus telecommunications reform act of 2016".

     3    §  2. Legislative findings. 1. a. It is and has been the long-standing
     4  policy of the state of New York that every resident and business in  the
     5  state  of  New York has a right to have equal physical and social access
     6  to adequate telecommunications services at just  and  reasonable  rates,
     7  because  universal access to the benefits of telephony is fundamental to
     8  effective communication, quality of life, economic  development,  public
     9  safety  and  security, and democratic participation. Telecommunications,
    10  however, is undergoing dramatic changes with  new  technologies  driving
    11  the  ways  people  communicate with one another. No matter the source or
    12  vehicle by which people communicate with each other, the people of  this
    13  state  have  the right to adequate service at just and reasonable rates.
    14  Therefore, all telecommunications services must meet the highest  stand-

    15  ards  of  quality,  reliability,  and  safety--including  protecting and
    16  expanding the system of emergency 911 service--which requires sufficient
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05431-03-6

        A. 2118--A                          2
 
     1  investment in telecommunications infrastructure and, as  many  years  of
     2  experience  have  shown,  adequate  staffing provided by trained, career
     3  employees operating under the applicable safety codes and regulations.
     4    b.  While  the  state's  long-standing  mission  has  been  to provide
     5  universal, affordable and reliable service to all New Yorkers, all citi-
     6  zens of the state do not have equal access to  communications  technolo-

     7  gies  that  are  becoming  the standard bearers for the 21st century. In
     8  fact, the state lags behind in deploying communication networks that are
     9  the foundation of modern telecommunications. The lack of  deployment  of
    10  high-capacity  telecommunications  infrastructure services ("broadband")
    11  in rural, underserved, unserved, economically distressed and other areas
    12  of the state is affected with a public interest; the rates, services and
    13  operations of cable television companies  are  affected  with  a  public
    14  interest and it is imperative that the state fairly regulate cable tele-
    15  vision  services in the interest of the public, and; the public interest
    16  is furthered by comprehensive action in the area of  telecommunications,
    17  and by the state's continued promotion of universally available telecom-
    18  munications  services  of  adequate  service  quality  and at affordable

    19  rates, particularly in rural, high-cost and low income  areas,  and  the
    20  state's entry into promoting the universal availability and physical and
    21  social  access  to  high-quality  broadband  and advanced communications
    22  services at affordable rates.
    23    c.  The  deployment  of  high-capacity  broadband   telecommunications
    24  networks  and  advanced communications networks throughout New York will
    25  promote improvements in healthcare, public safety,  education,  consumer
    26  choice, and the economy.
    27    d.  State  action  and  public-private  partnerships will be needed to
    28  deepen investment in, promote demand for,  stimulate  adoption  of,  and
    29  remove  barriers  to the development of universally deployed world-class
    30  high-capacity broadband networks, providing  services  to  business  and
    31  residential  consumers  in  all areas of the state at competitive prices

    32  with adequate service quality.
    33    e. Reasonably unfettered access of  the  citizenry  to  the  maximally
    34  diverse  Internet is in the public interest, consistent however with the
    35  need or company choice of telecommunications providers to  block,  limit
    36  or  otherwise  restrict the passage of electronic mail messages or other
    37  content that transmit, portray, describe, represent or otherwise contain
    38  matters such as child pornography or similar obscenity,  other  unlawful
    39  material,  threats  of serious bodily harm, threats to the public safety
    40  and homeland security, threats of death  to  individuals  or  groups  of
    41  individuals,  viruses  or  similar  computer generated programs or codes
    42  that have the potential to harm computer hardware and/or software and/or
    43  networks, excessive unsolicited commercial email that degrades or inter-

    44  feres with or harms the normal  operation  of  broadband  networks,  and
    45  other  similar  types  or  forms  of material or software (the foregoing
    46  examples are illustrative, not  exhaustive  of  such  threats  to  users
    47  and/or the network).
    48    2.  a.  New  cable television services regulation is necessary to: (i)
    49  promote adequate, affordable and efficient cable television  service  to
    50  the  citizens  and  residents  of  the state; (ii) encourage the optimum
    51  development of the educational, government and community-service  poten-
    52  tials  of the cable television medium; (iii) provide just and reasonable
    53  rates for cable television service  without  geographic  discrimination;
    54  (iv)  protect  the  interests  of  the  municipalities  of this state in
    55  relation to the issuance of municipal consents  for  the  operations  of

    56  cable  television  companies  in those jurisdictions; (v) to protect the

        A. 2118--A                          3
 
     1  right of consumers to  access  the  lawful  internet  content  of  their
     2  choice, to run applications and use services of their choice, subject to
     3  the  requirements  of  law  enforcement,  and to connect their choice of
     4  legal  devices  that  do  not  harm the network; and (vi) cooperate with
     5  other states and with the federal government in promoting and coordinat-
     6  ing efforts to regulate  cable  television  effectively  in  the  public
     7  interest.
     8    b.  Competition  in the provisioning of cable service is emerging with
     9  the convergence of preexisting and new technologies for providing voice,
    10  video and data services, which results in increased  investment  in  the
    11  state, lower prices and improved service offerings for consumers.

    12    c. Increased investment and the potential for competition in the cable
    13  service  market  through the provisioning of new communications services
    14  and  deployment  of  advanced  communications   infrastructure   further
    15  enhances  economic  opportunities, public safety, and the overall health
    16  and well-being of the residents of the state.
    17    d. State-issued franchises for the provision  of  cable  service  will
    18  promote  and  facilitate the deployment of advanced technologies and new
    19  services to all classes of communities and protect New York's ability to
    20  compete in the national and international marketplace for  industry  and
    21  jobs.
    22    e.  Modifying  existing cable service regulation through the enactment
    23  of new standards and procedures that provide consumers with access to  a
    24  competitive  facilities-based  cable  market  and also preserves munici-

    25  palities historic authority to manage public  rights-of-way,  collect  a
    26  franchise  fee  up  to  five percent of gross revenue, administer public
    27  educational and government access channels, enforce consumer protections
    28  and ensure competitive cable services are delivered in a  nondiscrimina-
    29  tory manner is warranted in this state.
    30    f. Nothing in this act shall be seen to limit or reduce the protection
    31  afforded  to  cable  television  customers,  broadband internet services
    32  customers, telephone customers, and customers of advanced communications
    33  services generally, and it is in the  public  interest  to  ensure  that
    34  customers  continue  to  be provided a high level of customer protection
    35  and customer service in a more competitive market.
    36    3. Therefore, the legislature declares that the state needs to  funda-
    37  mentally  reform  the  three  key pillars of its vast telecommunications

    38  system--telephone, broadband internet access  and  cable  television--to
    39  provide  21st  Century technology to all New Yorkers that is safe, reli-
    40  able and affordable.
    41    § 3.   Article 11 and sections 4000,  4001  and  4002  of  the  public
    42  authorities  law, article 11 as renumbered by chapter 168 of the laws of
    43  1975 and sections 4000, 4001 and 4002 as renumbered by  chapter  182  of
    44  the  laws of 2005, are renumbered article 12 and sections 4200, 4201 and
    45  4202 and a new article 11 is added to read as follows:
    46                                 ARTICLE 11
    47                       BROADBAND DEVELOPMENT AUTHORITY
    48  Section 4100. Short title.
    49          4101. Broadband development authority.
    50          4102. Definitions.
    51          4103. Powers of the authority.

    52          4104. Board of directors.
    53          4105. Broadband development and deployment council.
    54          4106. Applications for broadband deployment financing; responsi-
    55                  bilities of the applicant to provide safe, reliable  and
    56                  affordable service.

        A. 2118--A                          4
 
     1          4107. Bonds and notes of the authority.
     2          4108. Bonds and notes; personal liability.
     3          4109. Rights  of  authority  to  fulfill  terms of agreement not
     4                  limited, altered, or impaired.
     5          4110. Remedies of bondholders and noteholders.
     6          4111. Grants or loans of public  or  private  funds  or  in-kind

     7                   material.
     8          4112. Exemption from taxes and assessments.
     9          4113. Broadband and advanced communications development fund.
    10          4114. Appropriations by any government or municipal corporation.
    11          4115. Conveyance,  lease  or  transfer  of property by a city or
    12                  county to the authority.
    13          4116. Actions against the authority.
    14          4117. Audit power and contract approval by the comptroller.
    15          4118. Annual report.
    16          4119. Effect of inconsistent provisions.
    17          4120. Severability.
    18    § 4100. Short title. This article shall be known and may be  cited  as
    19  the "broadband development authority act".

    20    § 4101. Broadband development authority.  1. The New York state broad-
    21  band  development  authority  is  established  in order to encourage the
    22  provision of affordable and reliable  broadband  services  and  networks
    23  that will:
    24    (a) ensure the long term growth of and the enhancement and delivery of
    25  services  by  business, educational, medical, commercial, nonprofit, and
    26  governmental entities in unserved, underserved and distressed  areas  in
    27  New York;
    28    (b) benefit residential, commercial, public, governmental, and nonpro-
    29  fit  entities in unserved, underserved and distressed areas in New York;
    30  and
    31    (c) to advance the availability  of,  and  promote  the  physical  and

    32  social  access  to, broadband and other advanced communications services
    33  to all consumers, including those in low  income,  rural,  insular,  and
    34  high cost areas at rates that are reasonably comparable to those charged
    35  in  high-density  urban areas and/or in the area of the state where such
    36  services are most competitively priced; and to increase access  to,  and
    37  the  ubiquity  of, advanced telecommunications services available to the
    38  public in an equitable and nondiscriminatory manner.
    39    2. The authority shall administer the broadband  development  program,
    40  and  shall,  through  the  broadband  development and deployment council
    41  created in section forty-one hundred five of this article, work to build

    42  and facilitate local technology and social access planning entities, and
    43  partnerships with broadband internet services providers  and  technology
    44  companies,  and  the  private  and nonprofit sectors generally, and such
    45  other programs as are reasonably calculated to facilitate  the  authori-
    46  ty's achievement of its statutory duties.
    47    § 4102. Definitions. 1. "Authority" means the New York state broadband
    48  development  authority  created  under  section forty-one hundred one of
    49  this article.
    50    2. "Unserved area" means any part of a  municipality  without  readily
    51  and  generally available retail consumer access to a facilities-based or
    52  fixed wireless broadband services provider. For  the  purposes  of  this

    53  section,  the  definition of wireless broadband services providers shall
    54  not include subscription satellite service.
    55    3. "Underserved area" means any part of a municipality without readily
    56  and generally available retail consumer access to at least two  or  more

        A. 2118--A                          5
 
     1  nonaffiliated  facilities-based or fixed wireless broadband telecommuni-
     2  cations services providers.  Wireless  shall  not  include  subscription
     3  satellite service.
     4    4. "Broadband" means the transmission of information, between or among
     5  points  specified  by  the  user,  with or without change in the form or
     6  content of the information as sent and received,  at  minimum  rates  of

     7  transmission  of  two megabits per second downstream and one megabit per
     8  second upstream, or one hundred  fifty  percent  of  those  transmission
     9  rates  defined  by the Federal Communications Commission as "broadband,"
    10  or at those synchronous upstream and downstream  transmission  rates  as
    11  may be recommended by the broadband council from time to time, whichever
    12  is fastest in speed.
    13    5.  "Broadband  carrier"  means  any  provider  of broadband services,
    14  except aggregators of broadband services,  as  defined  in  section  two
    15  hundred twenty-six of the nineteen hundred ninety-six telecommunications
    16  act.
    17    6.  "Broadband  infrastructure"  means  all  equipment and facilities,

    18  including all changes, modifications, and expansions to existing facili-
    19  ties, as well as the customer premises equipment used to provide  broad-
    20  band,  and  any  software  integral  to  or  related  to the operations,
    21  support, facilitation, or interconnection of such  equipment,  including
    22  upgrades, and any installation, operations and support, maintenance, and
    23  other functions required to support the delivery of broadband.
    24    7.  "Broadband  service"  means  the  offering  of broadband for a fee
    25  directly to the public, or to such classes of users  as  to  be  readily
    26  available directly to the public, regardless of the facilities used.
    27    8.  "Open network" means any broadband infrastructure which is open to

    28  any third party users in a nondiscriminatory manner on a fair and  equi-
    29  table basis using publicly available access tariffs for services.
    30    9.  "Open  network  interfaces"  means  the  technical and operational
    31  means, manners, and methods for any third party access to the  broadband
    32  infrastructure,  which  shall  be  provided  on  the  basis of generally
    33  acceptable industry standards available at the time of access.
    34    10. "Distressed area" means:
    35    (a) a census tract or tracts or block numbering area or areas or  such
    36  census tract or block numbering area contiguous thereto which, according
    37  to the most recent census data available, has:
    38    (i)  a  poverty  rate of at least twenty percent for the year to which

    39  the data relates or at least  twenty  percent  of  households  receiving
    40  public assistance; and
    41    (ii)  an  unemployment  rate  of  at least one and a quarter times the
    42  statewide unemployment rate for the year to which the data relates; or
    43    (b) a city, town, village or county within a city with a population of
    44  one million or more for which:
    45    (i) the ratio of the full value property wealth, as determined by  the
    46  comptroller  for  the  year nineteen hundred ninety, per resident to the
    47  statewide average full value property wealth per resident; and
    48    (ii) the ratio of the income per resident; as shown  in  the  nineteen
    49  hundred  ninety census to the statewide average income per resident; are

    50  each fifty-five percent or less of the statewide average; or
    51    (c) an area which was designated an empire zone  pursuant  to  article
    52  eighteen-B of the general municipal law.
    53    11. "Dark fiber" means fiber optic cable that is not lighted by lasers
    54  or other electronic equipment.
    55    12. "Comptroller" means the comptroller of the state of New York.

        A. 2118--A                          6
 
     1    13.  "Board" means the board of directors created under section forty-
     2  one hundred four of this article.
     3    14. "Fund" means the broadband and advanced communications development
     4  fund created under section forty-one hundred thirteen of this article.
     5    15. "Broadband council" means the broadband development and deployment

     6  council as created under section forty-one hundred five of this article.
     7    16.  "Current  generation broadband service" means the transmission of
     8  signals at a rate of at least one million five hundred thousand bits per
     9  second to the subscriber and at least  two  hundred  thousand  bits  per
    10  second from the subscriber.
    11    17.  "Next  generation  broadband  service"  means the transmission of
    12  signals at a rate of at least twenty-two million bits per second to  the
    13  subscriber and at least ten million bits per second from the subscriber.
    14    18. "Qualified equipment" means equipment capable of providing current
    15  generation  broadband  services or next generation broadband services at
    16  any time to each subscriber who is utilizing such services.

    17    19. "Qualified expenditure" means any amount chargeable to the capital
    18  account with respect to  the  purchase  and  installation  of  qualified
    19  equipment,  including  any  upgrades  thereto, for which depreciation is
    20  allowable under section 168 of the Internal Revenue Code.
    21    20. "Underserved subscriber" means a retail  consumer  residing  in  a
    22  dwelling located in an unserved or underserved area.
    23    21.  "Underserved  structure"  means  a multi-family housing unit or a
    24  multiple-dwelling housing unit located in  an  unserved  or  underserved
    25  area.
    26    § 4103. Powers of the authority. 1. The general powers of the authori-
    27  ty  under  this  article  include  all  those necessary to carry out and

    28  effectuate the purposes of this article, including, but not limited  to,
    29  the following:
    30    (a)   to  invest  any  money  of  the  authority  at  the  authority's
    31  discretion, in any obligations determined proper by the  authority,  and
    32  to name and use depositories for the authority's money;
    33    (b) to receive and distribute federal, state or local funding, includ-
    34  ing grants, loans, and appropriations;
    35    (c) to make expenditures necessary to carry out the authority's duties
    36  under this article, including paying the authority's operating expenses;
    37    (d)  to sue and be sued, implead and be impleaded, complain and defend
    38  in all courts;
    39    (e) to adopt, use and alter at will a corporate seal;

    40    (f) to acquire, purchase, hold, use, lease or otherwise dispose of any
    41  project and property, real, personal or mixed, tangible  or  intangible,
    42  or  any  interest  therein  necessary  or desirable for carrying out the
    43  purposes of the authority, and, without limitation of the foregoing,  to
    44  lease  as lessee, any project and any property, real, personal or mixed,
    45  or any interest therein, at such annual rental and  on  such  terms  and
    46  conditions  as  may be determined by the board and to lease as lessor to
    47  any person, any project and  any  property,  real,  personal  or  mixed,
    48  tangible or intangible, or any interest therein, at any time acquired by
    49  the  authority,  whether  wholly  or partially completed, at such annual

    50  rental and on such terms and conditions as  may  be  determined  by  the
    51  board,  and  to sell, transfer or convey any property, real, personal or
    52  mixed, tangible or intangible or  any  interest  therein,  at  any  time
    53  acquired or held by the authority on such terms and conditions as may be
    54  determined by the board of the authority;
    55    (g)  to plan, develop, undertake, carry out, construct, improve, reha-
    56  bilitate, repair, furnish, maintain, and operate projects;

        A. 2118--A                          7
 
     1    (h) to adopt bylaws for the management and regulation of  its  affairs
     2  consistent with this chapter;
     3    (i) to establish and maintain satellite offices within New York;

     4    (j)  to  fix,  alter,  charge,  and  collect rates, rentals, and other
     5  charges for the use of projects of, or for the sale of  products  of  or
     6  for  the  services rendered by, the authority, at rates to be determined
     7  by it for the purpose of providing for the payment of  the  expenses  of
     8  the  authority,  the  planning,  development, construction, improvement,
     9  rehabilitation, repair, furnishing, maintenance, and  operation  of  its
    10  projects  and  properties,  the  payment  of the costs accomplishing its
    11  tasks;
    12    (k) the payment of the principal of and interest on  its  obligations,
    13  and  to fulfill the terms and provisions of any agreements made with the
    14  purchasers or holders of any such obligations;

    15    (l) to borrow money, make and issue bonds, and to secure  the  payment
    16  of  all bonds, or any part thereof, by pledge or deed of trust of all or
    17  any of its revenues, rentals, and receipts or of any project or  proper-
    18  ty,  real,  personal  or  mixed, tangible or intangible, or any interest
    19  therein, and to make agreements with the purchasers or holders  of  such
    20  bonds  or  with others in connection with any such bonds, whether issued
    21  or to be issued, as the authority deems advisable,  and  in  general  to
    22  provide  for the security for the bonds and the rights of holders there-
    23  of;
    24    (m) to make and enter into all contracts and agreements  necessary  or
    25  incidental  to  the  performance  of  its duties, the furtherance of its

    26  purposes and the execution to its powers under this  article,  including
    27  agreements with any person or federal agency;
    28    (n)  to employ, in its discretion, consultants, attorneys, architects,
    29  engineers, accountants, financial experts,  investment  bankers,  super-
    30  intendents,  managers  and  such  other  employees  and agents as may be
    31  necessary, and to fix their compensation to be payable from  funds  made
    32  available to the authority;
    33    (o)  to  pledge  or  otherwise  encumber all or any of the revenues or
    34  receipts of the authority as security for all or any of the  obligations
    35  of the authority; and
    36    (p) to do all acts and things necessary or convenient to carry out the
    37  powers granted to it by law.

    38    2.  The  physical  access  powers  of the authority under this article
    39  include all those necessary to carry out and effectuate the purposes  of
    40  this article, including, but not limited to, the following:
    41    (a)  to  make  loans  or  grants to broadband developers and broadband
    42  operators, and developers and operators of advanced communications, that
    43  will acquire, construct, maintain, and operate all or part of the broad-
    44  band infrastructure serving unserved, underserved and distressed areas;
    45    (b) to set construction, operation, and financing  standards  for  the
    46  broadband  infrastructure  in connection with authority financing and to
    47  provide for inspections to determine compliance with those standards;

    48    (c) to investigate, evaluate, and access the current broadband infras-
    49  tructure and the future broadband infrastructure needs of the state;
    50    (d) to take actions reasonably calculated to result in  infrastructure
    51  construction, enhancement, exchanges, expansion, leases, swaps and other
    52  agreements or arrangements giving rise to service or competitive service
    53  to underserved structures and underserved subscribers; and
    54    (e) to do all acts and things necessary or convenient to carry out the
    55  powers granted to it by law.

        A. 2118--A                          8
 
     1    3.  The  social  access  powers  of  the  authority under this article
     2  include all those necessary to carry out and effectuate the purposes  of

     3  this article, including, but not limited to, the following:
     4    (a)  to  provide  operating assistance to make broadband services more
     5  affordable to broadband developers, broadband operators,  and  broadband
     6  customers  in unserved, underserved and distressed areas, in conjunction
     7  with broadband infrastructure financed by the authority;
     8    (b) to encourage and participate in  aggregation  strategies  for  the
     9  broadband  services of all public entities and nonprofit corporations in
    10  the state to maximize the  interconnectivity  and  efficiencies  of  the
    11  broadband infrastructure;
    12    (c)  to receive and accept from any federal or private agency, founda-
    13  tion, corporation, association or person grants to be expended in accom-

    14  plishing the objectives of the authority, and to receive and accept from
    15  New York or any state, and any municipality, county or  other  political
    16  subdivision  thereof  and from any other source, aid or contributions of
    17  either money, property, or other things of value, to be held,  used  and
    18  applied  only  for  the purposes for which such grants and contributions
    19  may be made;
    20    (d) to render advice and  assistance,  and  to  provide  services,  to
    21  institutions of higher education and to other persons providing services
    22  or  facilities  for  scientific  and  technological research or graduate
    23  education, focused upon development of advanced communications technolo-
    24  gies, provided that credit towards  a  degree,  certificate  or  diploma

    25  shall  be granted only if such education is provided in conjunction with
    26  an institution of higher education authorized to operate in New York;
    27    (e) to take such other actions it deems necessary or convenient,  that
    28  are  reasonably calculated to result in enhanced, initial or competitive
    29  social access  to  generally  available  retail  broadband  services  of
    30  adequate  quality,  at affordable prices, for underserved structures and
    31  underserved subscribers; and
    32    (f) to do all acts and things necessary or convenient to carry out the
    33  powers granted to it by law.
    34    § 4104. Board of directors. 1. The authority shall be  governed  by  a
    35  board  of  directors  consisting  of  seventeen  members, including: the

    36  commissioners of the department  of  economic  development,  the  empire
    37  state  development  corporation,  the  public service commission and the
    38  state office for technology, or their designees,  the  governor,  senate
    39  majority  leader,  speaker of the assembly, and the comptroller or their
    40  designees. Two members of the board shall be proposed by the  respective
    41  unions of the wireline and wireless telecommunications industries of New
    42  York.  The  remaining  members  of  the  board shall be appointed by the
    43  governor with the advice and consent of the senate, from a list of indi-
    44  viduals nominated by the principal established industry groups,  techni-
    45  cal  counsels, or academic professional groups of New York. The appoint-

    46  ees shall be the following:  one  member  from  each  telecommunications
    47  industry  grouping, to be nominated by the New York-based wireline tele-
    48  phone industry, the New York-based wireless cellular telephone industry,
    49  and the New York-based cable television/broadband industry and  wireless
    50  internet provider industry; the president of the state university system
    51  of New York, two presidents of major New York research universities, one
    52  of  whom  shall  represent private research universities and one of whom
    53  shall represent public research universities; and one member  who  shall
    54  be nominated by New York's financial services community.
    55    2.  The  government members shall serve on the board for terms coinci-

    56  dent with their terms of office. The initial term of the  non-governmen-

        A. 2118--A                          9
 
     1  tal  members  shall  expire on December thirty-first, two thousand eigh-
     2  teen,  and  all  subsequent  nongovernmental  member  terms   shall   be
     3  coincident  with  the  term  of the governor who appointed such members.
     4  Vacancies  in the membership of the board shall be filled by appointment
     5  by the governor for the unexpired portion of  the  term.  No  nongovern-
     6  mental  member of the board shall be eligible to serve for more than two
     7  successive terms, provided however that after the expiration of  a  four
     8  year  term,  such  members may be appointed to and serve up to two addi-

     9  tional terms. Members of the board shall be subject to the public  offi-
    10  cers  law, and shall serve at the pleasure of the governor.  Immediately
    11  after appointment, the  members  of  the  board  shall  enter  upon  the
    12  performance of their duties.
    13    3. The board shall elect annually from among its members a chairperson
    14  and  vice-chairperson.  The board shall also annually elect a secretary,
    15  who need not be a board member, and may also elect such  other  subordi-
    16  nate officers who need not be members of the board as it deems necessary
    17  and  proper.  The chairperson, or in his or her absence, the vice-chair-
    18  person, shall preside over all meetings of the board. In the absence  of

    19  both  the  chairperson  and  vice-chairperson, the board shall appoint a
    20  chairperson pro tempore, who shall preside at such meetings.
    21    4. The board shall employ a president  of  the  authority,  who  shall
    22  serve  at the pleasure of the board, to direct the day-to-day operations
    23  and activities of the authority and carry out such duties and powers  as
    24  may  be  conferred  upon  him or her by the board. The president and all
    25  employees of the authority shall be compensated in the  manner  provided
    26  by  the  board, provided however that such compensation shall not exceed
    27  the median salaries of employees in equivalent titles of New York "state
    28  authorities" as defined in this chapter.

    29    § 4105. Broadband development and deployment  council.  1.  The  board
    30  shall  establish,  within  thirty  days  of  the  effective date of this
    31  section, a seventeen member technical advisory committee from  represen-
    32  tatives  recommended by technology councils, industry and business asso-
    33  ciations, and college and university presidents,  to  be  known  as  the
    34  broadband  development  and  deployment council. Five members shall have
    35  knowledge, skills and expertise in the needs  of  industry,  five  shall
    36  have  knowledge,  skills  and  expertise  in specific telecommunications
    37  technology areas,  and  two  shall  be  community  representatives  from
    38  unserved  and/or underserved areas. The chief technical officers for the

    39  public service commission, the state office for  technology,  the  state
    40  office  for  emergency management and the state office of science, tech-
    41  nology and academic research, and the chief information officer for  the
    42  state of New York, shall also serve on this committee.
    43    2.  (a)  Within  sixty days of the effective date of this section, the
    44  broadband council shall create, coordinate,  or  liaise  with  existing,
    45  municipal  and/or  county-level  social  access  councils  to study, and
    46  subsequently report to the authority upon: (i) the  location,  size  and
    47  population  of  unserved,  underserved  and  distressed areas within the
    48  respective municipalities and counties; (ii) a proposed list  of  social

    49  access  projects for the municipalities and counties; (iii) the presence
    50  of non-governmental organizations and federal 501c3  organizations  that
    51  could  work  cooperatively with the authority on social access projects;
    52  (iv) such other matters as the broadband  council  and  local  broadband
    53  development  councils  believe  necessary to effectuating the mission of
    54  the authority.
    55    (b) Within ninety days of the effective  date  of  this  section,  the
    56  broadband council shall study and report to the authority upon:

        A. 2118--A                         10
 
     1    (i)  the  availability  of any existing federal, state and local funds
     2  that can be used  or  re-purposed  to  fund  broadband  development  and

     3  promote  universal  access  to  broadband  and  advanced  communications
     4  services in unserved, underserved and distressed areas;
     5    (ii)  commercially  reasonable  investment benchmarks that it believes
     6  are necessary to  determine  between  reasonably  equally  valuable  and
     7  imperative broadband development projects;
     8    (iii)  an appropriate set of metrics by which to determine the quality
     9  of a broadband buildout project, and whether  such  buildout  was  being
    10  completed  within the time span upon which the authority conditioned the
    11  grant of any funds toward such buildout;
    12    (iv) the availability, desirability and utility of a set of  standard-
    13  ized  metrics  for service quality, speed, and reliability that shall be

    14  applied to the networks built with funds from the authority; and
    15    (v) the availability of surplus computers and other broadband telecom-
    16  munications equipment in the inventories of state and local  authorities
    17  that might be donated to the authority for use in enhancing physical and
    18  social access to broadband in the state.
    19    3.    The  council  shall  act  as  liaison, and binding mediator when
    20  requested, between any deployment projects and owners of  rights-of-way,
    21  easements  or infrastructure necessary to promote or establish broadband
    22  service in unserved, underserved and distressed areas.
    23    4. The council shall determine and recommend to the board projects for
    24  the expenditure of funds  from  the  fund,  with  special  attention  to

    25  projects using minority and women-owned business enterprises as contrac-
    26  tors or sub-contractors, and to projects providing private sector match-
    27  ing  funding  at  ratios  of  three  to one private to public funding or
    28  greater.
    29    5. The council shall recommend to  the  board,  on  an  annual  basis,
    30  legislation  that it determines would be reasonably necessary to further
    31  promote broadband development, enhance economic development arising from
    32  such broadband development, and protect and enhance access of  consumers
    33  to  E911  and  other  public  safety  services and entities by method of
    34  broadband and advanced communications services.
    35    6. (a) A member of the board or officer, employee,  or  agent  of  the

    36  authority shall discharge the duties of his or her position in a nonpar-
    37  tisan  manner,  with good faith, and with that degree of diligence, care
    38  and skill that an ordinary prudent person would exercise  under  similar
    39  circumstances  in  a  like position. In discharging the duties of his or
    40  her position, a member of the board or an officer, employee, or agent of
    41  the authority, when acting in good faith, may rely upon the  opinion  of
    42  counsel  for  the authority, upon the report of an independent appraiser
    43  selected with reasonable care by the board, or upon financial statements
    44  of the authority represented to the member  of  the  board  or  officer,
    45  employee,  or  agent  of the authority to be correct by the president or

    46  the officer of the authority having charge of its books or  account,  or
    47  stated  in  a written report by a certified public accountant or firm of
    48  certified public accountants to fairly reflect the  financial  condition
    49  of the authority.
    50    (b)  A member of the broadband development council shall discharge the
    51  duties of his or her position in a nonpartisan manner, with good  faith,
    52  and  with  that  degree  of  diligence,  care and skill that an ordinary
    53  prudent person would exercise under  similar  circumstances  in  a  like
    54  position.
    55    (c)  A member of a social access council shall discharge the duties of
    56  his or her position in a nonpartisan manner, with good faith,  and  with


        A. 2118--A                         11
 
     1  that degree of diligence, care and skill that an ordinary prudent person
     2  would exercise under similar circumstances in a like position.
     3    §  4106. Applications for broadband deployment financing; responsibil-
     4  ities of the applicant to provide safe, reliable and affordable service.
     5  In addition to rules promulgated by the authority as well as  the  other
     6  requirements  established in this article, as part of an application for
     7  financing under this chapter, a broadband developer or broadband  opera-
     8  tor must file with the authority:
     9    1. a participation plan for minority and woman-owned businesses;
    10    2.  a  community wide outreach plan to educate the public with respect

    11  to the availability of broadband services;
    12    3. a construction and maintenance plan that shall detail the  capacity
    13  of any broadband network or networks built with funding from the author-
    14  ity,  and  whether such networks shall maintain full upload and download
    15  speeds when subscribed to one hundred percent of capacity;
    16    4. a detailed plan showing how such buildout funded by  the  authority
    17  shall  address  or  exceed  the  current  aggregate demand for broadband
    18  services in the area of proposed buildout as determined by the  authori-
    19  ty,  council,  cyber  security  and critical infrastructure coordination
    20  office ("CSCIC") and public  service  commission's  mapping  and  demand
    21  assessment analyses and reports;

    22    5.  such  other requirements as may be recommended to the authority by
    23  the council and the public service commission;
    24    6. a plan for following the principles of neutral networks as required
    25  in section forty-one hundred thirteen of this article; and
    26    7. a plan containing detailed metrics setting forth time to completion
    27  for each stage of its proposed buildout, the speeds to be offered on and
    28  across its network, and such other metrics as the broadband  council  or
    29  board may propose. The authority may not approve an application unless a
    30  plan is submitted under this section and unless the requirements of this
    31  section are met.
    32    § 4107. Bonds and notes of the authority.  1. The authority shall have

    33  the power and is hereby authorized from time to time to issue negotiable
    34  bonds  or  notes for any of its corporate purposes for up to one hundred
    35  fifty million dollars annually for five years to do all of  the  follow-
    36  ing:
    37    (a)  pay  the  development  costs  associated with acquiring, leasing,
    38  constructing, maintaining, and operating the  broadband  infrastructure,
    39  in unserved, underserved, and distressed areas;
    40    (b) make loans to persons for development costs;
    41    (c)  make  loans to persons to make purchases related to the broadband
    42  infrastructure;
    43    (d) pay the interest on bonds and notes of the authority;
    44    (e) establish reserves to secure the bonds and notes of the authority;
    45  and

    46    (f) make other expenditures necessary to  carry  out  the  authority's
    47  duties  under  this  article,  including  the payment of the authority's
    48  operating expenses.
    49    The bonds and notes shall be in a form, bear interest  at  a  rate  or
    50  rates,  be in the denominations, carry registration privileges, be paya-
    51  ble, and be subject to the terms of redemption as provided in the resol-
    52  ution described in subdivision two of this section. The bonds and  notes
    53  of the authority may be sold by the authority at public or private sales
    54  at prices as the authority determines.

        A. 2118--A                         12
 
     1    2. A resolution relating to authorizing notes or bonds may contain any

     2  of  the following provisions, which shall be a part of the contract with
     3  the holders of the notes or bonds:
     4    (a) pledging all or any part of the revenues of the authority, and all
     5  or  any  part  of the money received in payment of loans and interest on
     6  loans, and other money received or to be received to secure the  payment
     7  of the notes or bonds;
     8    (b) pledging all or any part of the assets of the authority, including
     9  mortgages  and  obligations obtained by the authority in connection with
    10  its programs, to secure the payment of the notes or bonds;
    11    (c) pledging any loan, grant, or contribution from a government  enti-
    12  ty;
    13    (d)  the  use  and  disposition of the gross income from contracts and

    14  leases of the authority;
    15    (e) limitations on the purpose to which the proceeds of sale of  notes
    16  or  bonds  may be applied and pledging proceeds to secure the payment of
    17  the notes or bonds;
    18    (f) limitations on the issuance of  additional  notes  or  bonds,  the
    19  terms  upon  which  additional notes or bonds may be issued and secured,
    20  and the refunding of outstanding or other notes or bonds;
    21    (g) the procedure, if any, by which the terms  of  any  contract  with
    22  noteholders  or  bondholders  may be amended or abrogated, the amount of
    23  notes or bonds the holders of which shall consent to  the  amendment  or
    24  abrogation, and the manner in which the consent is to be given;

    25    (h)  vesting  in  a  trustee or trustees property, rights, powers, and
    26  duties in trust as the authority may determine, which may include any of
    27  the rights, powers, and duties of the trustee appointed by the bondhold-
    28  ers under this article and limiting or abrogating the right of the bond-
    29  holders to appoint a trustee under this section or limiting the  rights,
    30  powers, and duties of the trustee.
    31    3. No more than fifty percent of any payments to the authority for use
    32  of rights-of-way under its control or supervision shall be deemed reven-
    33  ues  of the authority. Up to seventy-five percent of monies arising from
    34  right-of-way use payments may be used to fund social access projects  of

    35  the  authority,  or  may  be  contributed to a state fund established to
    36  guarantee universal and affordable broadband service to, without limita-
    37  tion, underserved subscribers and structures. Any  remaining  unexpended
    38  monies  arising  from  right-of-way  use  payments may be pledged by the
    39  authority to secure the payment of notes and bonds.
    40    § 4108. Bonds and notes; personal liability. The members of the  board
    41  or  any  person  executing the notes or bonds under this article are not
    42  liable personally on the notes or  bonds  or  subject  to  any  personal
    43  liability or accountability by reason of the issuance.
    44    § 4109. Rights of authority to fulfill terms of agreement not limited,

    45  altered,  or impaired. This state pledges and agrees with the holders of
    46  any notes or bonds issued under this article, that the  state  will  not
    47  limit  or  alter the rights vested in the authority to fulfill the terms
    48  of any agreements made with the holders, or in any way impair the rights
    49  and remedies of the holders until the  notes  or  bonds,  together  with
    50  earned  interest,  with interest on any unpaid installments of interest,
    51  and all costs and expenses in connection with any action  or  proceeding
    52  by  or  on  behalf  of  the  holders,  are fully met and discharged. The
    53  authority is authorized to include this  pledge  and  agreement  of  the
    54  state  in  any  agreement  with the holders of notes or bonds under this
    55  article.

        A. 2118--A                         13
 
     1    § 4110. Remedies of bondholders and noteholders. 1. If  the  authority
     2  defaults  in  the payment of principal or interest of any notes or bonds
     3  when due, whether at maturity or  upon  call  for  redemption,  and  the
     4  default continues for a period of thirty days, or if the authority fails
     5  or  refuses  to  comply  with this article, or defaults in any agreement
     6  made with the holders of any notes or bonds, the holders of  twenty-five
     7  percent  in  aggregate  principal  amount  of  the  notes  or bonds then
     8  outstanding may apply to the court of claims for the  appointment  of  a
     9  trustee to represent the holders of the notes or bonds.

    10    2.  A  trustee  appointed under this article may, and upon the written
    11  request of the holders of twenty-five  percent  in  aggregate  principal
    12  amount of the notes or bonds shall, do any of the following:
    13    (a)  enforce  all  rights of the noteholders or bondholders, including
    14  the right to require the authority to  perform  its  duties  under  this
    15  article;
    16    (b) bring suit upon the notes or bonds;
    17    (c)  require  the authority to account as if it were the trustee of an
    18  express trust for the holders of the notes or bonds;
    19    (d) enjoin any acts or things that may be unlawful or in violation  of
    20  the rights of the holders of the notes or bonds; and
    21    (e) declare all the notes or bonds due and payable.

    22    3.  Before  declaring the principal of notes or bonds due and payable,
    23  the trustee shall first give thirty  days'  notice  in  writing  to  the
    24  governor,  to  the  authority,  to  the  comptroller and to the attorney
    25  general.
    26    4. The trustee has all of the powers necessary or appropriate for  the
    27  general  representation of bondholders or noteholders in the enforcement
    28  and protection of their rights.
    29    5. An action under this section shall  be  brought  in  the  court  of
    30  claims.
    31    §  4111. Grants or loans of public or private funds or in-kind materi-
    32  al. 1. The authority may accept, receive,  receipt  for,  disburse,  and
    33  expend  federal  and  state  moneys and other moneys, public or private,

    34  made available by grant or loan or both or otherwise, to accomplish,  in
    35  whole or in part any of the purposes of this article. All federal moneys
    36  accepted  under  this  section  shall  be  accepted  and expended by the
    37  authority upon such terms and conditions as are prescribed by the United
    38  States and as are consistent  with  state  law;  and  all  state  moneys
    39  accepted  under  this  section  shall  be  accepted  and expended by the
    40  authority upon such terms and conditions as are prescribed by  New  York
    41  state law.
    42    2.  The  authority  may  accept,  receive,  receipt for, grant or loan
    43  computers and other telecommunications equipment  or  broadband  infras-
    44  tructure  equipment  made  available to it by in-kind donation, grant or

    45  loan, to accomplish, in whole or in part, any of the  purposes  of  this
    46  article.  All  such  in-kind  material  shall  be accepted and loaned or
    47  granted  by  the  authority  upon  such  terms  and  conditions  as  are
    48  prescribed in applicable sections of the law of the United States and as
    49  are consistent with state law.
    50    §  4112.  Exemption  from  taxes  and assessments. The exercise of the
    51  powers granted by this article shall be in all respects for the  benefit
    52  of  the  people  of  this  state, for the increase of their commerce and
    53  prosperity, for the improvement of their health and  living  conditions,
    54  and  as  the  operation and maintenance of projects by the authority and

    55  the undertaking of activities in  furtherance  of  the  purpose  of  the
    56  authority  constitute  the  performance  of essential governmental func-

        A. 2118--A                         14
 
     1  tions, the authority shall not be required to pay any taxes  or  assess-
     2  ments upon any project or any property acquired or used by the authority
     3  under  the  provisions  of  this  article  or upon the income therefrom,
     4  including  sales and use taxes on tangible personal property used in the
     5  operations of the authority, and any bonds issued under  the  provisions
     6  of  this article, their transfer and the income therefrom (including any
     7  profit made on the sale thereof) shall at all times be free  from  state

     8  and  local  taxation. The exemption granted in this section shall not be
     9  construed to extend to persons conducting on the premises of a  facility
    10  businesses for which local or state taxes would otherwise be required.
    11    §  4113.  Broadband  and advanced communications development fund.  1.
    12  There is created in the joint custody of the comptroller and the commis-
    13  sioner of the department of taxation and finance a special nonreverting,
    14  permanent account in the special revenue fund, to be called the advanced
    15  communications assistance fund, to be  administered  by  the  authority.
    16  Moneys  in  the  fund  shall  be  used solely for the purpose of helping
    17  unserved, underserved and distressed municipal corporations in New  York

    18  state  take  full  advantage  of  broadband  and advanced communications
    19  services.  Loans or grants from the fund shall  be  used  to  effectuate
    20  physical  and  social  access  to broadband in unserved, underserved and
    21  distressed localities for:
    22    (a) the internal communication needs of  such  localities,  which  may
    23  include  but  are not limited to fiber-optic and wireless communications
    24  networks;
    25    (b) help in financing the costs of  planning,  designing,  purchasing,
    26  leasing,  installing, or maintaining dark fiber to the extent permitted,
    27  subject however to all duties and restrictions that  exist  within  this
    28  section; or
    29    (c)  to  advance the physical and social availability of broadband and

    30  other advanced communications services to all consumers, including those
    31  in low income, rural, insular, and high cost areas  at  rates  that  are
    32  reasonably  comparable  to  those  charged  in  high-density urban areas
    33  and/or in the area of the state where such services  are  most  competi-
    34  tively  priced;  and  to increase physical and social access to, and the
    35  ubiquity of,  advanced  telecommunications  services  available  to  the
    36  public in an equitable and nondiscriminatory manner.
    37    2.  All moneys of the authority from whatever source derived including
    38  such funds as may be appropriated and any gifts, grants, donations  from
    39  public  or  private sources, or moneys raised from bonds or notes, shall
    40  be deposited in the fund.

    41    3. Interest earned on moneys in the fund shall remain in the fund  and
    42  be  credited  to it. Any moneys remaining in the fund at the end of each
    43  fiscal year, including interest thereon, shall not revert to the general
    44  fund but shall remain in the fund  and  expenditures  and  disbursements
    45  from  the  fund,  which may consist of grants or loans, shall be made by
    46  the comptroller upon written request bearing the signature of the  chair
    47  or the vice-chair of the authority, or, if so authorized by the authori-
    48  ty, bearing his or her facsimile signature, and the official seal of the
    49  authority.
    50    4.  The  receipt of monies from the fund shall be conditioned upon the
    51  acceptance by public and private  telecommunications  services  provider

    52  recipients  of the important state policy that the reasonably unfettered
    53  access of the citizenry to the maximally  diverse  internet  is  in  the
    54  public  interest, with the express understanding that telecommunications
    55  providers may choose to block, limit or otherwise restrict  the  passage
    56  of  electronic  mail  message  or  other content that transmit, portray,

        A. 2118--A                         15
 
     1  describe, represent or otherwise contain matters such as child pornogra-
     2  phy or similar obscenity, other unlawful material,  threats  of  serious
     3  bodily harm, threats to the public safety and homeland security, threats
     4  of  death  to  individuals  or groups of individuals, viruses or similar

     5  computer generated programs or code that  have  the  potential  to  harm
     6  computer hardware and/or software and/or networks, excessive unsolicited
     7  commercial  email  that  degrades or interferes with or harms the normal
     8  operation of broadband networks, and other similar  types  or  forms  of
     9  material  or  software  (the  foregoing  examples  are illustrative, not
    10  exhaustive of such threats to users and/or the network). Each  recipient
    11  of  monies  from  the  fund  shall provide to the authority on an annual
    12  basis a written report describing every instance in which such recipient
    13  blocks, limits or otherwise restricts subscribers or other purchasers of
    14  broadband services from the  recipient  from  accessing  any  particular

    15  internet site or category or type of internet site or any specific elec-
    16  tronic  mail message or category or type of electronic mail ("neutrality
    17  report"). Such neutrality report shall contain detail of  a  specificity
    18  level  to  be  determined by the authority, and shall contain sufficient
    19  detail to allow the authority to ascertain the nature of  any  blocking,
    20  limitation  or  other  restrictions,  and  the  reason for the recipient
    21  taking such action, but shall be provided in a manner reasonably  calcu-
    22  lated  to  protect  subscriber  and  purchaser privacy or the legitimate
    23  needs of law enforcement. No recipient of funds shall be responsible  or
    24  liable  for  any  efforts  by or policies, practices or procedures of an

    25  unaffiliated telecommunications services provider or  internet  services
    26  provider  or internet protocol traffic routing entity to block subscrib-
    27  ers from accessing any internet site or any category or type of internet
    28  site or any specific electronic mail message or any category or type  of
    29  electronic mail.
    30    5. Any pledge made by the authority is valid and binding from the date
    31  that  the  pledge is made. The money or property pledged and received by
    32  the authority shall immediately be subject to the  lien  of  the  pledge
    33  without  any physical delivery or further act and the lien of the pledge
    34  is valid  and  binding  against  all  parties  having  claims  in  tort,
    35  contract,  or  otherwise  against the authority, irrespective of whether

    36  the parties have notice of the lien. The resolution or any other instru-
    37  ment by which a pledge is created need not be recorded.
    38    § 4114. Appropriations by any government or municipal corporation. Any
    39  government or municipal corporation  may  make  appropriations  for  the
    40  acquisition,  construction, improvement, maintenance or operation of any
    41  project acquired, constructed, improved, maintained or operated  by  the
    42  authority.
    43    §  4115. Conveyance, lease or transfer of property by a city or county
    44  to the authority. Any city or county within New York state in  order  to
    45  provide  for  the  construction,  reconstruction, improvement, repair or
    46  management of any project, or in order to accomplish any of the purposes

    47  of this article may, with or without  consideration  or  for  a  nominal
    48  consideration, lease, sell, convey or otherwise transfer to the authori-
    49  ty  any  real,  personal  or  mixed property located within such city or
    50  county.
    51    § 4116. Actions against the authority. 1. In every action against  the
    52  authority for damages, for injuries to real or personal property, or for
    53  the  destruction  thereof, or for personal injuries, the complaint shall
    54  contain an allegation that at least thirty days have elapsed  since  the
    55  demand, claim or claims upon which such action is founded were presented
    56  to a member of the authority, or to its secretary, or to its chief exec-

        A. 2118--A                         16
 

     1  utive officer and that the authority has neglected or refused to make an
     2  adjustment or payment thereof for thirty days after such presentment.
     3    2. An action against the authority for damages for injuries to real or
     4  personal property, or for the destruction thereof, or for personal inju-
     5  ries,  alleged  to  have been sustained shall not be commenced more than
     6  one year and ninety days after the cause of action therefor  shall  have
     7  accrued, nor unless a notice of intention to commence such action and of
     8  the  time  when  and place where the damages were incurred or sustained,
     9  together with a  verified  statement  showing  in  detail  the  property
    10  alleged  to have been damaged or destroyed and the value thereof, or the

    11  personal injuries alleged to have been sustained and by whom, shall have
    12  been filed in the principal office of the authority within  ninety  days
    13  after such cause of action shall have accrued.
    14    3.  An  action  against  the  authority  for  wrongful  death shall be
    15  commenced in accordance with the notice of  claim  and  time  limitation
    16  provisions of title eleven of article nine of this chapter.
    17    §  4117.  Audit power and contract approval by the comptroller. 1. The
    18  comptroller, or his or her  legally  authorized  representatives,  shall
    19  have the authority to examine the accounts and finances of the authority
    20  and  to conduct management audits of the staff and board of the authori-
    21  ty.

    22    2. The procurement, public work, construction, and  revenue  contracts
    23  of  the  authority  shall be subject to prior review and approval by the
    24  comptroller, if the comptroller, in his or  her  discretion,  determines
    25  that  such  review  and  approval  shall be required. If the comptroller
    26  determines that any contract or category of contracts of a state author-
    27  ity  requires  direct  supervision  in  the  form  of  pre-approval   of
    28  contracts,  and the comptroller so notifies such state authority of such
    29  determination, then subject to subdivision three  of  this  section,  no
    30  such  contract  or agreement by such state authority selected for review
    31  by the comptroller shall be a valid  enforceable  contract  unless  such

    32  contract  shall  first be approved by the comptroller. In the event that
    33  the comptroller notifies the authority that approval shall  be  required
    34  as  provided  in  this  section,  then  the  authority  shall  include a
    35  provision in all such contracts selected for review  as  stated  in  any
    36  such  notice informing the other parties to such contracts that the same
    37  are not valid and enforceable without the comptroller's approval.
    38    3. Any contract selected by the comptroller for  review  and  approval
    39  pursuant to subdivision two of this section shall be a valid enforceable
    40  contract  only  if the comptroller (a) approves the contract, or (b) has
    41  not disapproved the contract within forty-five days of the submission of

    42  such contract to his or her office, unless  the  state  authority  shall
    43  agree  with  the  comptroller on an extension for a reasonable period of
    44  time.
    45    § 4118. Annual report. The authority shall submit an annual report  no
    46  later  than March first of each year, including the recommendations made
    47  by the  broadband  development  and  deployment  council  under  section
    48  forty-one  hundred  five of this article, relating to its activities for
    49  the preceding calendar year to the governor, the speaker of  the  assem-
    50  bly,  the  temporary president of the senate, the minority leader of the
    51  assembly, the minority leader of the senate, the chair of  the  assembly
    52  standing committee on corporations, authorities and commissions, and the

    53  chair of the senate standing committee on energy and telecommunications.
    54    §  4119.  Effect of inconsistent provisions. Insofar as the provisions
    55  of this article are inconsistent with the provisions of any  other  act,
    56  general or special, the provisions of this title shall be controlling.

        A. 2118--A                         17
 
     1    §  4120. Severability. If any provision of any section of this article
     2  or the application thereof  to  any  person  or  circumstance  shall  be
     3  adjudged  invalid  by  a  court of competent jurisdiction, such order or
     4  judgment shall be confined in its operation to the controversy in  which
     5  it was rendered, and shall not affect or invalidate the remainder of any

     6  provision  of any section of this article or the application of any part
     7  thereof to any  other  person  or  circumstance  and  to  this  end  the
     8  provisions  of  each  section  of this article are hereby declared to be
     9  severable.
    10    § 4. The public service law is amended by adding a new section 92-h to
    11  read as follows:
    12    § 92-h. Universal, affordable and secure  telecommunications  services
    13  fund.   1. The commission shall establish a mechanism for the support of
    14  universal service, also referred to in this section as  the  "high  cost
    15  support mechanism", which shall operate in accordance with rules adopted
    16  by  the commission. The purpose of the high cost support mechanism is to

    17  provide financial assistance to telecommunications services providers to
    18  help make basic local exchange and broadband services universally avail-
    19  able, at just and reasonable rates and allow such providers to be  fully
    20  reimbursed  for  the difference between the reasonable costs incurred in
    21  making basic service available to their customers within a  rural,  high
    22  cost  geographic  support  area  and the price charged for such service,
    23  after taking into account any amounts received by such  providers  under
    24  price  support  mechanisms  established by the federal government and by
    25  this state. The  commission  shall  ensure  that  no  telecommunications
    26  services provider is receiving funds from this or any other source that,

    27  together  with  local  exchange  service  revenues,  exceeds the cost of
    28  providing local exchange service to customers of such provider. The high
    29  cost support mechanism shall be supported and distributed equitably  and
    30  on  a  nondiscriminatory,  competitively  neutral  basis  through a rate
    31  element assessed on all  telecommunications  service  providers  in  New
    32  York.  A  provider that offers basic local exchange service or broadband
    33  service throughout an entire support area through use of its own facili-
    34  ties or on a resale basis may be qualified as a provider of last  resort
    35  or  may  be eligible to receive universal service support, as determined
    36  by the commission. A provider that fails to pay an  assessment  due  and

    37  payable under this section shall be subject to the revocation of certif-
    38  icate after notice and the opportunity for a hearing as provided in this
    39  chapter.  In  all  relevant geographic areas of the state, as defined by
    40  the commission, the commission shall designate at least one provider  as
    41  the  provider of last resort and adopt procedures for changing or termi-
    42  nating such designations. A provider of last resort designation  carries
    43  the  responsibility  to offer basic local exchange service and broadband
    44  service to all consumers who request it. A person holding a  certificate
    45  of  public  convenience  and necessity to provide basic service shall be
    46  subject to the evolving definition of basic  service  developed  by  the

    47  commission  under  this  chapter and the system of financial support for
    48  universal service established by the commission under this  section.  If
    49  and  when  additional  elements  are included in the definition of basic
    50  service as a result of review by the commission, prices may increase  as
    51  is  determined by the commission to be reasonably necessary to cover the
    52  cost and account for the inclusion of such additional elements.
    53    2. On or before December first of  each  year,  the  commission  shall
    54  submit  a  written  report  to  the governor, temporary president of the
    55  senate, speaker of the assembly, minority  leaders  of  the  senate  and
    56  assembly,  chairperson  and ranking minority member of the senate energy


        A. 2118--A                         18
 
     1  and telecommunications committee, and the chairperson and ranking minor-
     2  ity member of the assembly  corporations,  authorities  and  commissions
     3  committee,  accounting  for the operation of the high cost support mech-
     4  anism  during  the  preceding calendar year and containing the following
     5  information, at a minimum:
     6    (a) the total amount of money that the  commission  determined  should
     7  constitute  the  high  cost  support  mechanism from which distributions
     8  would be made;
     9    (b) the total amount of money ordered to be contributed through a rate
    10  element assessment collected by each telecommunications service  provid-
    11  er;

    12    (c)  the  basis  on  which the contribution of each telecommunications
    13  service provider was calculated;
    14    (d) the benchmarks used and the basis on  which  the  benchmarks  were
    15  determined;
    16    (e) the total amount of money that the commission determined should be
    17  distributed from the high cost support mechanism;
    18    (f)  the  total amount of money distributed to each telecommunications
    19  service provider from the high cost support mechanism;
    20    (g) the basis on which the distribution to telecommunications  service
    21  providers was calculated;
    22    (h)  as  to  each  telecommunications  service  provider  receiving  a
    23  distribution, the amount received by geographic support area and type of

    24  customer, the way in which the benefit of the distribution  was  applied
    25  or accounted for;
    26    (i)   the  proposed  benchmarks,  the  proposed  contributions  to  be
    27  collected through a rate element assessment by  each  telecommunications
    28  service provider, and the proposed total amount of the high cost support
    29  mechanism  from  which  distributions  are  to be made for the following
    30  calendar year; and
    31    (j) the total amount of distributions made from the  high  cost  fund,
    32  directly  or indirectly, and how they are balanced by rate reductions by
    33  all providers for the same period and a full accounting  of  and  justi-
    34  fication  for  any  difference. If the report submitted pursuant to this

    35  subdivision contains a proposal for an increase in any  of  the  amounts
    36  listed  in  paragraph  (b)  of  this subdivision, such increase shall be
    37  suspended until March thirty-first of the following year.
    38    Such report must also determine what amount of  unexpended  funds,  if
    39  any, at the end of each fiscal year, could be refunded to the contribut-
    40  ing  telecommunications  services  providers  on a basis that is propor-
    41  tional to the amounts contributed by  such  telecommunications  services
    42  providers.
    43    3.  There  is hereby created, in the state treasury, the New York high
    44  cost administration fund, referred to in this  section  as  the  "fund",
    45  which  shall be used to reimburse the commission and, if applicable, its

    46  contractors, for reasonable expenses incurred in the  administration  of
    47  the  high  cost  support mechanism as determined by rules of the commis-
    48  sion, and shall be audited in a manner and frequency to be determined by
    49  the comptroller. The moneys in the fund that are  to  be  used  for  the
    50  direct  and indirect administrative costs incurred by the commission and
    51  its contractors shall be appropriated annually by  the  legislature.  At
    52  the  end  of  any fiscal year, all unexpended and unencumbered moneys in
    53  the fund shall remain therein and shall not be credited  or  transferred
    54  to  the general fund or any other fund. Based upon the balance remaining
    55  in the fund and the amount appropriated annually by the legislature  for

    56  use  by  the  commission,  each  year the commission shall determine the

        A. 2118--A                         19
 
     1  nondiscriminatory, competitively neutral assessment on all  telecommuni-
     2  cations  service  providers  in New York that will be necessary to cover
     3  the cost of implementing the high cost  support  mechanism.    Only  the
     4  moneys from such assessment shall be transmitted to the state treasurer,
     5  who  shall  credit  the  same to the fund. All interest derived from the
     6  deposit and investment of this fund shall remain in the fund  and  shall
     7  not revert to the general fund.
     8    § 5. The public service law is amended by adding a new article 11-A to
     9  read as follows:
    10                                ARTICLE 11-A

    11                 STATEWIDE CABLE FRANCHISING AND REGULATION
    12  Section 231. Definitions.
    13          232. Authorization to provide cable service.
    14          233. Public service commission responsibilities.
    15          234. Application for statewide cable franchise.
    16          235. Length of statewide franchise.
    17          236. Termination of a statewide franchise.
    18          237. Abandonment of service.
    19          238. Municipal power and regulation over franchise holders.
    20          239. Payment and remittance of franchise fee.
    21          240. Public, educational and government channels.
    22          241. Cable operator's community commitment.
    23          242. Consumer protection rules.

    24          243. Neutral internet and broadband networks.
    25          244. Deployment requirements for statewide cable franchise.
    26          245. Discrimination in the provisioning of service prohibited.
    27          246. Enforcement.
    28    §  231.  Definitions. The words and phrases used in this article shall
    29  have the following meanings unless a different meaning  clearly  appears
    30  in the context.
    31    1.  "Cable service" shall mean the one-way transmission to subscribers
    32  of video programming;  or  other  programming  service,  and  subscriber
    33  interaction,  if any, which is required for the selection or use of such
    34  video programming or other programming service, regardless of the  tech-

    35  nology  utilized  by a cable television company to enable such selection
    36  or use.
    37    2. "Cable operator" shall mean any person or group of persons (a)  who
    38  provides  cable  service over a cable system and directly or through one
    39  or more affiliates owns a significant interest in such cable system,  or
    40  (b)  who  otherwise controls or is responsible for, through any arrange-
    41  ment, the management and operation of such a cable system, as set  forth
    42  in 47 U.S.C. § 522(5).
    43    3.  "Cable  system"  shall  mean  any facility, consisting of a set of
    44  closed transmission paths and associated  signal  generation,  reception
    45  and  control  equipment  that is designed to provide cable service which

    46  includes video programming, without regard to  the  technology  used  to
    47  deliver  such  video programming, including internet protocol technology
    48  or any successor technology and which is provided to multiple  subscrib-
    49  ers  within  a  community, as set forth in 47 U.S.C.  § 522(7), but such
    50  term does not include:
    51    (a) a facility that serves only to retransmit the  television  signals
    52  of one or more television broadcast stations;
    53    (b) a facility that serves subscribers without using any public right-
    54  of-way;
    55    (c)  a  facility  of a common carrier which is subject, in whole or in
    56  part, to the provisions of Title II of the Communications Act  of  1934,

        A. 2118--A                         20
 

     1  47 U.S.C. § 201 et seq., except that such facility shall be considered a
     2  cable  system  (other  than  for  purposes of 47 U.S.C. § 541(c)) to the
     3  extent such facility is used in the transmission  of  video  programming
     4  directly  to  subscribers,  unless  the  extent of such use is solely to
     5  provide interactive on-demand services;
     6    (d) an open video system that complies with 47 U.S.C. § 573; or
     7    (e) any facilities of any electric utility used solely  for  operating
     8  its electric utility system.
     9    4.  "CATV  company"  shall mean any person or group of persons (a) who
    10  provides cable service over a cable system and directly or  through  one
    11  or  more affiliates owns a significant interest in such cable system, or

    12  (b) who otherwise controls or is responsible for, through  any  arrange-
    13  ment, the management and operation of such a cable system.
    14    5.  "CATV system" shall mean any facility which receives and amplifies
    15  the signals broadcast by one or more television stations and  redistrib-
    16  utes  such  signals  by wire, cable or other means, or which distributes
    17  signals it originates or which are originated by another for viewing  by
    18  subscribers,  whether  the  wire, cable or other facilities are owned or
    19  leased. A "CATV system" shall not include:
    20    (a) the poles or other facilities of any telephone corporation used to
    21  provide channel service as a common carrier,
    22    (b) a system serving not more than two hundred fifty subscribers, or

    23    (c) a master antenna system servicing subscribers situated on property
    24  under common ownership.
    25    6. "Commission" shall  mean  the  public  service  commission  or  any
    26  successor agency.
    27    7.  "Franchise"  shall mean an initial authorization, or renewal of an
    28  authorization, issued by a franchising authority, regardless of  whether
    29  the  authorization is designated as a franchise, permit, license, resol-
    30  ution, contract, certificate, agreement, or otherwise,  that  authorizes
    31  the  construction  and operation of a cable system in the public rights-
    32  of-way.
    33    8. "Franchise holder" or "holder" shall mean a person who has received
    34  a state-wide franchise, but has not transferred or terminated such fran-

    35  chise authorization, in accordance with the provisions of this article.
    36    9. "Franchising authority" shall mean the  public  service  commission
    37  and  municipalities  which are entitled to require franchises and impose
    38  fees in accordance with 47 U.S.C. §§ 522(10) and 542, respectively.
    39    10. "Gross revenues" shall mean any and all revenues, including  cash,
    40  credits,  property  or other consideration of any kind or nature arising
    41  from, attributable to, or in any way derived directly or indirectly from
    42  the operation of the franchisee's cable system  (including  the  studios
    43  and  other  facilities  associated therewith) to provide cable services.
    44  Gross revenues include, by  way  of  illustration  and  not  limitation,

    45  monthly  fees charged subscribers for any basic, optional, premium, per-
    46  channel, per-program service, or cable  programming  service;  installa-
    47  tion,  disconnection,  reconnection,  and change-in-service fees; leased
    48  channel fees; late fees and  administrative  fees,  payments,  or  other
    49  consideration  received  from programmers for carriage of programming on
    50  the system; revenues from rentals or sales of converters or other equip-
    51  ment; any studio  rental,  production  equipment,  and  personnel  fees;
    52  advertising  revenues;  barter;  revenues  from program guides; revenues
    53  from the sale or carriage of other cable  services;  and  revenues  from
    54  home  shopping  channels  and  other revenue sharing arrangements. Gross

    55  revenues shall include revenues received by any entity  other  than  the
    56  franchisee,  an  affiliate,  or  another entity that operates the system

        A. 2118--A                         21
 
     1  where necessary to prevent evasion or avoidance of the obligation  under
     2  this statute to pay the franchise fee. Gross revenues shall not include:
     3    (a)  amounts  not actually received, even if billed, such as bad debt;
     4  refunds, rebates or discounts to subscribers or third parties; or reven-
     5  ue imputed from the provision of cable services for free or  at  reduced
     6  rates  to  any  person as required or allowed by law, including, without
     7  limitation, the provision  of  such  services  to  public  institutions,

     8  public  schools, governmental entities, or employees, other than forgone
     9  revenue chosen not to be  received  in  exchange  for  trades,  barters,
    10  services, or other items of value; or
    11    (b) any revenue from any charges or fees derived from services classi-
    12  fied as non-cable services and information services and any other reven-
    13  ues  attributed by the holder of a certificate of approval or systemwide
    14  franchise to non-cable services  in  accordance  with  federal  communi-
    15  cations commissions rules, regulations, standards, or orders.
    16    In  the  case of cable service that may be bundled or integrated func-
    17  tionally with other services, capabilities or  applications,  the  gross
    18  revenues  shall  only  include  those  charges  or  fees derived from or

    19  attributable to the provision of cable  service,  as  reflected  on  the
    20  books  and  records  of  the  holder  of  a certificate of approval or a
    21  systemwide franchise, as the case may be, in accordance with the  rules,
    22  regulations,  standards and orders of the federal communications commis-
    23  sion.
    24    11. "Incumbent cable operator" shall mean the cable  operator  serving
    25  the  largest number of cable subscribers in a particular municipal fran-
    26  chise area on the effective date of this article.
    27    12. "Municipality" shall mean a city or town within the state.
    28    13. "Person" shall mean an individual, partnership, association, joint
    29  stock company, trust, corporation, government entity, limited  liability
    30  company or any other entity.

    31    14.  "Public  right-of-way"  shall  mean the area on, below or above a
    32  public roadway, highway, street, public sidewalk,  alley,  waterway,  or
    33  utility easement in which a municipality has an interest.
    34    15.  "Video programming" shall mean programming provided by, or gener-
    35  ally considered comparable to,  programming  provided  by  a  television
    36  broadcast station, as set forth in 47 U.S.C. § 522(20).
    37    §  232. Authorization to provide cable service. 1. Notwithstanding any
    38  other law to the contrary and subject to the provisions of this article,
    39  a person seeking to provide cable service in the state after the  effec-
    40  tive  date of this article may file an application for a statewide fran-

    41  chise with the commission as required by this section. This article does
    42  not preclude cable operators from filing individual  applications  under
    43  article eleven of this chapter, provided however that a person filing an
    44  application  for  a  statewide  franchise  with  the commission shall be
    45  required upon receipt of such franchise  to  comply  with  sections  two
    46  hundred  forty-two  and  two  hundred  forty-three  of this article with
    47  regard to all in-state broadband and  broadband-capable  facilities  and
    48  lines built during the initial build-out period pursuant to the authori-
    49  zation  provided  by  such  franchise, and for the period of the initial
    50  build-out period with regard to such  person's  in-state  broadband  and

    51  broadband-capable  facilities and lines in existence when such franchise
    52  becomes effective.
    53    2. A person, including an incumbent cable  operator,  providing  cable
    54  service  under  a franchise agreement with a franchising authority which
    55  existed prior to the effective date of this article is  not  subject  to
    56  this  section  until  the  franchise agreement expires at the end of its

        A. 2118--A                         22
 
     1  original or any mutually agreeable renewal term, or unless and until the
     2  franchising authority and entity providing cable service mutually  agree
     3  to terminate the existing franchise agreement.
     4    3. Nothing in this section shall restrict a cable operator from apply-

     5  ing  to  the  commission  for  a  statewide franchise to provision cable
     6  services in territories of the state for  which  it  does  not  have  an
     7  existing  franchise agreement with a franchising authority. For purposes
     8  of this section, a cable operator will be deemed to have a franchise  to
     9  provide  cable  service  in  the  jurisdiction of a specific franchising
    10  authority if any affiliate, predecessor or successor entity of the cable
    11  operator maintains a franchise granted by  that  franchising  authority.
    12  The  terms  "affiliate, predecessor or successor entity" in this section
    13  shall include but not be limited to any entity receiving,  obtaining  or
    14  operating  under a franchise from a franchising entity for cable service

    15  through the grant of a franchise, merger, sale, assignment,  restructur-
    16  ing, or any other type of transaction.
    17    4. The commission shall have the franchising authority to issue state-
    18  wide  franchises  for the provisioning of cable service under this arti-
    19  cle.   Neither the commission nor any  municipality  in  the  state  may
    20  require  the franchise holder to obtain any separate or additional fran-
    21  chise or otherwise impose any fee or other  requirement,  including  but
    22  not  limited  to the regulation of cable service rates, on any franchise
    23  holder as a condition of providing cable service, except as provided  in
    24  this article.
    25    5.  16 NYCRR § 895.3, as amended from time to time, shall not apply to
    26  this article.

    27    § 233. Public service commission responsibilities. 1.  The  commission
    28  shall assign existing permanent staff of such legal, technical and other
    29  employees of the commission as may be required for the proper conduct of
    30  its  cable  franchising  responsibilities under this article. The powers
    31  and duties of the public service commission with  respect  to  statewide
    32  franchises shall not exceed those prescribed in this article.
    33    2.  The  commission  shall  be responsible for establishing additional
    34  administrative procedures and regulations not explicitly granted in this
    35  article for the issuance of statewide franchises in accordance with  the
    36  provisions  of  this article. The commission's administrative powers and

    37  duties shall be limited to the provision found in  section  two  hundred
    38  thirty-four of this article and additional powers including the:
    39    (a)  Development of procedures to submit, review and document applica-
    40  tions filed with the commission;
    41    (b) Review of the initial submission and any updates  of  the  general
    42  description  of  the  service  area  footprint to be served or expanded,
    43  including, if applicable, any area within a municipality to be served by
    44  an applicant;
    45    (c) Determination and notice of incomplete applications;
    46    (d) Approval of applications and amended applications,  or  denial  of
    47  such applications, within the periods designated under the provisions of
    48  this article;

    49    (e)  Issuance to applicants whose applications are approved for state-
    50  wide franchises to provide cable service in the service  area  footprint
    51  described in the application; to construct, upgrade, operate or maintain
    52  a  network  capable of providing such service, and to use and occupy the
    53  public rights-of-way in the delivery of that service;
    54    (f) Development of procedures to review and document the  transfer  or
    55  termination of a statewide franchise;

        A. 2118--A                         23
 
     1    (g)  Establish  guidelines  in  addition to those developed by munici-
     2  palities under section two hundred thirty-eight of this article, to deal
     3  with any consumer complaints or complaints alleging  violations  of  any

     4  provisions  of  this article. Such guidelines shall be easily accessible
     5  to  residents  of  the  state  and  shall be posted on the internet. The
     6  commission shall also provide consumer complaint forms on  the  internet
     7  even  if  municipalities  establish  their  own complaint forms. In such
     8  cases, municipalities and the  commission  will  work  cooperatively  to
     9  address consumer complaints.
    10    §  234. Application for statewide cable franchise. 1. Any person wish-
    11  ing to provide cable service in the state after the  effective  date  of
    12  this  article may file an application for a statewide franchise with the
    13  commission as required by this section. A statewide  franchise  applica-

    14  tion  shall be accompanied by an application fee of ten thousand dollars
    15  that shall be used by the commission to carry out the purposes  of  this
    16  article. Nothing in this section requires that any person or entity file
    17  an application for a statewide franchise.
    18    2.  Applications  for  a  statewide franchise shall contain but not be
    19  limited to:
    20    (a) A statement that the applicant has filed or will timely file  with
    21  the  Federal Communications Commission all forms required by that agency
    22  in advance of offering cable service in this state;
    23    (b) A statement that the applicant agrees to  comply  with  all  other
    24  applicable  federal,  state  statutes  and regulations and all generally

    25  applicable municipal ordinances and regulations, including without limi-
    26  tation municipal ordinances and regulations regarding  the  time,  place
    27  and  manner  of  using  and  occupying  public  rights-of-way adopted in
    28  accordance with state and federal law;
    29    (c) A general description of the service area footprint to be  served,
    30  including, if applicable, any area within a municipality to be served by
    31  the applicant. Such description may be set forth on one or more maps. If
    32  the  applicant is a telephone corporation or an affiliate of a telephone
    33  corporation, the service area will include a description of the territo-
    34  ry in which the company provides telephone  service.    Descriptions  of

    35  service  area  footprints shall be updated by the applicant prior to the
    36  expansion of cable service to a  previously  undesignated  service  area
    37  and,  upon  such expansion, written notice shall be given to the commis-
    38  sion of the new service area to be served by the applicant.  The  state-
    39  issued franchise area and any service area within the franchise area may
    40  extend  beyond  the  area  or areas where the applicant has pre-existing
    41  authority to occupy the public rights-of-way;
    42    (d) The location of the applicant's principal place of  business,  the
    43  names  of  the  applicant's  principal executive officers, and the name,
    44  address and telephone number of an officer,  general  partner  or  other

    45  employee  of  the applicant who will be responsible for ongoing communi-
    46  cations with the commission;
    47    (e) The name and location of the principal place of  business  of  the
    48  applicant's parent company, if any;
    49    (f)  The  signature  of an officer or general partner of the applicant
    50  verifying the information set forth in the application;
    51    (g) Demonstrate the financial, technical, managerial and legal charac-
    52  ter and other qualifications needed to construct, operate, and  maintain
    53  the necessary plant and to provide service in a safe, adequate and prop-
    54  er manner;
    55    (h) Provide a record of compliance with local, state and federal laws;
    56  and

        A. 2118--A                         24
 

     1    (i) Provide additional information as needed by the commission.
     2    3.  Upon  filing  an  application with the commission for a systemwide
     3  franchise agreement pursuant to subdivision two  of  this  section,  the
     4  applicant  shall  include a list of the specific municipalities to which
     5  CATV service will be provided or extended, the anticipated  construction
     6  and  deployment dates, and the anticipated date on which service will be
     7  offered and a certified statement that such  deployment  will  meet  the
     8  requirements  of  section  two  hundred  forty-four of this article. The
     9  applicant will concurrently provide a copy of the  application  to  each
    10  affected municipality.
    11    4. Within fifteen business days after it receives the application, the

    12  commission shall:
    13    (a) determine whether an application submitted is incomplete; and
    14    (b) if so, the commission shall notify the applicant that the applica-
    15  tion is incomplete and identify the information that the commission must
    16  receive from the applicant to make the application complete.
    17    5. Within sixty business days after it receives the completed applica-
    18  tion, the commission shall approve the application and issue a statewide
    19  franchise  to  the applicant, or deny the application. Within sixty days
    20  of the receipt thereof, the commission shall schedule three public hear-
    21  ings to be held in different geographical areas of  the  state  to  gain
    22  public  comment  in  consideration  of the application. On or before the

    23  expiration of the sixty-day period, the commission shall issue an  order
    24  in  writing approving the application if the applicant has complied with
    25  the requirements for a statewide  franchise,  or  the  commission  shall
    26  disapprove the application in writing citing the reasons for disapproval
    27  if  the  board determines that the application for a statewide franchise
    28  does not comply with the requirements for  a  statewide  franchise.  The
    29  commission may deny the application if the applicant has failed to state
    30  in  the  application  the  information  and  representations required by
    31  subdivision two of this section. If the commission denies  the  applica-
    32  tion,  it  must specify with particularity the reason or reasons for the

    33  denial, and the applicant may amend its application to  cure  any  defi-
    34  ciency.  The commission shall decide such amended application within ten
    35  business days of its submission to the commission by the applicant.   If
    36  the  commission  denies the application, the commission shall schedule a
    37  public meeting with the  applicant  to  explain  to  the  applicant  the
    38  reasons  for  the commission's disapproval. Such meeting shall be sched-
    39  uled no later than thirty days following the expiration of the sixty-day
    40  review period as required by this  section.  The  applicant  shall  have
    41  thirty  days  following  the  date of the meeting with the commission to
    42  file an appeal of the board's decision. The commission shall  thereafter

    43  schedule  an  administrative  hearing  not  later than the thirtieth day
    44  following the date of the filing of the applicant's appeal in  order  to
    45  consider  the  applicant's  appeal.  The  commission shall issue a final
    46  decision in written form on the applicant's appeal not  later  than  the
    47  sixtieth  day  following  the  administrative  hearing, required by this
    48  subdivision, on the applicant's appeal. After an  administrative  period
    49  an applicant may challenge a denial of its application or amended appli-
    50  cation in any court of competent jurisdiction.
    51    6.  A statewide franchise authorization issued by the commission shall
    52  contain:
    53    (a) A grant of a franchise to provide cable  service  in  the  service

    54  area  footprint  described  in  the  application; to construct, upgrade,
    55  operate or maintain a network capable of providing such service,  except

        A. 2118--A                         25
 
     1  where  this  grant  is  not  required  and  to use and occupy the public
     2  rights-of-way in the delivery of that service; and
     3    (b)  A  statement  that the franchise grant in subdivision one of this
     4  section is subject to lawful operation  of  the  cable  service  by  the
     5  applicant or its successor in interest.
     6    7.  An  applicant  having pre-existing authority to utilize the public
     7  rights-of-way is required to obtain a statewide franchise prior  to  the
     8  actual  provision  of  cable  service  on a commercial basis directly to

     9  subscribers. However, such an applicant is  not  required  to  obtain  a
    10  statewide  franchise or any municipality authorization, except for being
    11  subject  to  municipality  right-of-way  requirements,   in   order   to
    12  construct,  upgrade,  operate  or  maintain a network that is capable of
    13  providing cable service.
    14    8. A system-wide franchise issued by the board shall be  nontransfera-
    15  ble, except by written consent of the board.
    16    §  235. Length of statewide franchise. A statewide franchise issued by
    17  the commission shall be valid for ten years from the date  of  issuance.
    18  Renewal of a systemwide franchise shall be valid for a period of fifteen
    19  years  from  the  date of the renewal issuance, and the commission shall

    20  establish rules governing the renewal of a systemwide franchise.
    21    § 236. Termination of a statewide  franchise.  1.  A  franchise  shall
    22  terminate  at the expiration of its term or otherwise in accordance with
    23  the provisions thereof, unless, prior thereto, the commission  otherwise
    24  orders.  The  commission  may  so  order  only if it finds, after public
    25  notice and opportunity for a hearing, that the franchisee:
    26    (a) has committed a material breach of its franchise or any applicable
    27  provision of this article or of the  regulations  promulgated  hereunder
    28  and  has  failed,  without reasonable justification, to cure said breach
    29  within sixty days after having received written notice thereof from  the
    30  commission; or

    31    (b)  has  not met the requirements of sections two hundred forty-three
    32  and two hundred forty-four of this article;
    33    (c) has engaged in blocking of lawful content on web sites or services
    34  of competitors, or refused  to  interconnect  its  facilities  with  the
    35  facilities  of another provider of broadband network services on reason-
    36  able and nondiscriminatory terms or conditions; or
    37    (d) has been adjudicated a bankrupt or has filed a voluntary  petition
    38  for  bankruptcy  or reorganization or for an order protecting its assets
    39  from the claims of creditors and the commission finds  that  termination
    40  of the franchise or certificate of confirmation under such conditions is
    41  in the best interest of the public.

    42    2. Upon termination of a franchise or certificate of confirmation, the
    43  cable  operator  shall  dispose of its facilities in accordance with the
    44  provisions of the franchise or certificate. However, on  motion  of  any
    45  interested  party  or  upon  its own motion, and after public notice and
    46  opportunity for hearing, if the  commission  finds  that  the  continued
    47  presence  of  the  facilities  in  any  public thoroughfare would pose a
    48  nuisance to the municipality or its residents, the operator shall remove
    49  its facilities within such period as the commission shall order. In  the
    50  absence of any applicable franchise or certificate provision or order by
    51  the commission to the contrary, the cable television company may abandon
    52  its facilities.

    53    §  237.  Abandonment  of service. 1. No cable operator may abandon any
    54  service or portion thereof without  giving  six  months'  prior  written
    55  notice to the commission and to the franchisor, if any, and to the muni-
    56  cipalities it serves.

        A. 2118--A                         26
 
     1    2.  When  abandonment  of any service is prohibited by a franchise, no
     2  cable operator may abandon such service without written consent  of  the
     3  commission.  In  granting  such  consent, the commission may impose such
     4  terms, conditions or requirements as in its judgment  are  necessary  to
     5  protect the public interest.
     6    §  238. Municipal power and regulation over franchise holders. A muni-
     7  cipality may:

     8    1. Exercise its public rights-of-way authority over franchise holders,
     9  including requiring franchise holders to follow municipal ordinances  as
    10  well as all applicable local, state and federal laws;
    11    2. Receive, mediate, and resolve cable service quality complaints from
    12  a franchise holder's customers within the municipality;
    13    3.  Require  a  franchise holder who is providing cable service within
    14  the municipality to register with the municipality, maintain a point  of
    15  contact,  and  provide notice of any franchise authorization transfer to
    16  the municipality within fourteen business days after the  completion  of
    17  the transfer;
    18    4. Establish reasonable guidelines regarding the use of public, educa-

    19  tional,  and  governmental  access  channels  within the municipality in
    20  addition to those established in section two hundred forty-one  of  this
    21  article.
    22    § 239. Payment and remittance of franchise fee. 1. The franchise hold-
    23  er  who  offers  cable service within the jurisdiction of a municipality
    24  shall calculate and remit to the municipality at the end of each  calen-
    25  dar year quarter a franchise fee, as provided in this section. The obli-
    26  gation to calculate and remit the franchise fee to a municipality begins
    27  immediately  upon  provision of cable service within that municipality's
    28  jurisdiction, but the first remittance shall not be due until the end of
    29  the first calendar year quarter that is later than  one  hundred  eighty

    30  days after the provision of cable service began.
    31    2.  The franchise fee shall be calculated as a percentage of the hold-
    32  er's gross revenues, as defined in section  two  hundred  thirty-one  of
    33  this  article  and  shall be five percent.  A municipality may, by ordi-
    34  nance, change the percentage applied to the gross revenues of the  hold-
    35  er.
    36    3.  No  fee  under this section will become due until the municipality
    37  certifies and provides documentation to the franchise holder  supporting
    38  the  percentage  paid  by  any incumbent cable operator serving the area
    39  within the municipality's jurisdiction.
    40    4. No municipality or any other political subdivision  of  this  state

    41  may  assess any additional fees or charges or require other remuneration
    42  of any kind from the franchise holder other than as set  forth  in  this
    43  section,  provided,  however,  that the provision of in-kind services or
    44  support, personnel and funding  dedicated  to  public,  educational  and
    45  government  facilities  and  services shall not be considered additional
    46  fees, charges or remuneration.
    47    5. For purposes of this section, in the case of a cable  service  that
    48  may be bundled or integrated functionally with other services, capabili-
    49  ties  or  applications,  the  franchise fee shall be applied only to the
    50  gross revenues, as  defined  in  this  article,  attributable  to  cable

    51  service  or  the use of the cable system and facilities, as reflected on
    52  the books and  records  of  the  holder  in  accordance  with  generally
    53  accepted  accounting  principles  and  Federal Communications Commission
    54  rules, regulations, standards or orders, as applicable.
    55    6. The franchise fee shall be remitted to the applicable  municipality
    56  quarterly,  within  forty-five days after the end of the quarter for the

        A. 2118--A                         27
 
     1  preceding calendar quarter. Each  payment  shall  be  accompanied  by  a
     2  summary  explaining  the basis for the calculation of the franchise fee.
     3  Not more than once annually, a municipality may  examine  the  franchise

     4  holder's  business  records to the extent reasonably necessary to ensure
     5  compensation in accordance with this section. Each party shall bear  the
     6  party's  own costs of the examination. Any claims by a municipality that
     7  compensation is not in accordance with this section, and any claims  for
     8  refunds  or other corrections to the remittance of the franchise holder,
     9  must be made within three years and forty-five days of the  end  of  the
    10  quarter for which compensation is remitted, or three years from the date
    11  of  remittance,  whichever  is later. Either a municipality or the fran-
    12  chise holder may, in the event  of  a  dispute  concerning  compensation
    13  under  this  section,  bring an action in a court of competent jurisdic-
    14  tion.

    15    § 240. Public, educational and government channels. 1. In addition  to
    16  the  requirements  set  forth  in 16 NYCRR Sec. 894.4 (as may be amended
    17  from time to time), the franchise holder shall provide the  municipality
    18  with  capacity  in  its  cable  system to allow public, educational, and
    19  governmental (PEG) access channels for  noncommercial  programming.  For
    20  the  purposes  of  this section, PEG channels shall be defined as analog
    21  channels of six megahertz bandwidth or the same as any other channel  on
    22  the  basic  tier,  whichever is greater. In addition to the requirements
    23  set forth in this section, the commission may issue additional rules  or
    24  guidelines  regarding  PEG access channels. The holder shall provide the

    25  same ancillary services to the PEG channels and entities as  the  incum-
    26  bent provider.
    27    2. The franchise holder shall designate a sufficient amount of capaci-
    28  ty  on its cable system to allow the provision of a comparable number of
    29  PEG channels or hours of programming that the incumbent  cable  operator
    30  has  activated  and  provided within the municipality under the terms of
    31  its franchise agreement as of the effective date of this article.  If  a
    32  municipality did not have PEG access channels as of that date, the cable
    33  operator  shall furnish to the municipality upon request up to three PEG
    34  channels for a municipality with a population of at least fifty thousand
    35  and up to two PEG channels for a municipality with a population of  less

    36  than  fifty thousand. For the purposes of this section, a PEG channel is
    37  deemed activated if it is being utilized for PEG programming within  the
    38  municipality for at least eight hours per day and if such programming is
    39  not broadcast more than once in every eight hours. The holder shall have
    40  twelve  months from the date the municipality requests such PEG channels
    41  to designate the capacity;  provided,  however,  that  the  twelve-month
    42  period  shall  be  tolled  by any period during which the designation or
    43  provision of PEG channel capacity is technically  infeasible,  including
    44  any  failure  or  delay of the incumbent cable operator to make adequate
    45  interconnection available, as required by this section. In cities with a

    46  population of one million or more persons, if a system has  total  acti-
    47  vated  bandwidth  in excess of eight hundred sixty-two megahertz then at
    48  least two additional PEG channels shall be  set  aside  by  the  holder,
    49  including one for public access.
    50    3. The franchise holder may submit to the commission an application to
    51  cease  providing  any PEG channel provided pursuant to this section that
    52  is not utilized by the municipality for at least eight  hours  per  day,
    53  and  except as provided herein, the channel may thereafter be programmed
    54  at the franchise holder's discretion. The commission may hold a  hearing
    55  in  the  municipality  to  aid  in  making  its determination whether to

    56  approve the application. The commission shall issue  a  decision  within

        A. 2118--A                         28
 
     1  thirty  business  days  of  the franchisee's application. If the munici-
     2  pality subsequently certifies to the commission and  holder  a  schedule
     3  for at least eight hours of daily non-repeat PEG channel programming per
     4  channel,  the  holder  shall restore the PEG channel or channels for the
     5  use of the municipality for as long as the municipality uses the channel
     6  or channels for at least eight hours a day.
     7    4. The content and operation of any PEG access channel provided pursu-
     8  ant to this section shall be the  responsibility  of  the  municipality,

     9  receiving  the  benefit  of such channel, and the franchise holder bears
    10  only the responsibility for the transmission of such channel, subject to
    11  reasonable technological constraints.  The  franchise  holder  shall  be
    12  responsible  for  providing the connectivity, as well as other equipment
    13  necessary, to each PEG access channel programming distribution  location
    14  and  for doing so without charge for up to the first two hundred feet of
    15  the holder's connecting facilities.
    16    5. The municipality, or its designees, must  ensure  that  all  trans-
    17  missions,  content,  or  programming to be transmitted over a PEG access
    18  channel or facility by a franchise holder are provided or  submitted  to

    19  the cable operator in a manner or form that is capable of being accepted
    20  and  transmitted  by  the  cable operator, without requirement for addi-
    21  tional alteration or change in the content by the cable  operator,  over
    22  the  cable  system  of  the  cable  operator. The municipality's, or its
    23  designees' provision of PEG  content  to  the  holder  shall  constitute
    24  authorization  for  the  holder  to carry such content including, at the
    25  holder's option, beyond the jurisdictional  boundaries  of  the  munici-
    26  pality.
    27    6.  The  franchise  holder  and  an incumbent cable operator shall use
    28  reasonable efforts to interconnect their cable systems for  the  purpose
    29  of  providing  PEG  programming.  Interconnection may be accomplished by

    30  direct cable, microwave link, satellite, or other reasonable  method  of
    31  connection.  Franchise holders and incumbent cable operators shall nego-
    32  tiate in good faith and  incumbent  cable  operators  may  not  withhold
    33  interconnection  of PEG channels. In the event a franchise holder and an
    34  incumbent cable operator cannot reach a  mutually  acceptable  intercon-
    35  nection  agreement,  then  the duty of the holder shall be discharged if
    36  the holder makes interconnection available to the channel originator  at
    37  a point on the holder's network determined by the holder.
    38    7. The PEG channels shall be for the exclusive use of the local entity
    39  or  its  designee to provide public, educational, and governmental chan-

    40  nels.  The PEG channels shall be used only for  noncommercial  purposes.
    41  However,  advertising,  underwriting,  or sponsorship recognition may be
    42  carried on the channels for the purpose of  funding  PEG-related  activ-
    43  ities.  The PEG channels shall all be carried on the basic service tier.
    44  To the extent feasible, the PEG channels shall not be  separated  numer-
    45  ically  from  other  channels  carried on the basic service tier and the
    46  channel numbers for the PEG channels shall be the same  channel  numbers
    47  used  by  the incumbent cable operator unless prohibited by federal law.
    48  After the initial  designation  of  PEG  channel  numbers,  the  channel
    49  numbers  shall  not be changed without the agreement of the local entity

    50  unless the change is required by federal  law.  Each  channel  shall  be
    51  capable  of carrying a national television system committee (NTSC) tele-
    52  vision signal.
    53    8. The content to be provided over the PEG channel  capacity  provided
    54  pursuant to this section shall be the responsibility of the local entity
    55  or  its  designee receiving the benefit of that capacity, and the holder

        A. 2118--A                         29
 
     1  of a state franchise bears only the responsibility for the  transmission
     2  of that content, subject to technological restraints.
     3    9. The PEG signal shall be receivable by all subscribers, whether they
     4  receive digital or analog service, or a combination thereof, without the

     5  need for any equipment other than the equipment necessary to receive the
     6  lowest  cost  tier of service. The PEG access capacity provided shall be
     7  of similar quality and functionality to that offered by commercial chan-
     8  nels on the lowest cost tier of service unless the signal is provided to
     9  the holder at a lower quality or with less functionality.
    10    10. After January first, two thousand seventeen, and until the expira-
    11  tion of the incumbent cable operator's franchise, if the incumbent cable
    12  operator has existing unsatisfied obligations  under  the  franchise  to
    13  remit  to  the  local  entity  or its designee any cash payments for the
    14  ongoing costs of public,  educational,  and  government  access  channel

    15  facilities,  the  local  entity,  or  its designee for the public access
    16  channels, shall divide those cash payments  among  all  cable  or  video
    17  providers as provided in this section. The fee shall be the holder's pro
    18  rata per subscriber share of the cash payment required to be paid by the
    19  incumbent  cable  operator to the local entity or its designee community
    20  access organization for the costs of PEG channel facilities.  All  video
    21  service  providers  and the incumbent cable operator shall be subject to
    22  the same requirements for recurring payments  for  the  support  of  PEG
    23  channel  facilities,  whether expressed as a percentage of gross revenue
    24  or as an amount per subscriber, per month, or otherwise.

    25    11. A local entity shall establish a payment for the  ongoing  support
    26  of  the  cost of PEG facilities and services that would become effective
    27  subsequent to the  expiration  of  any  fee  imposed  by  this  article,
    28  provided,  however,  that  no  such fee shall be allocated such that any
    29  community access organization is receiving anything less than what it is
    30  receiving from the cable operator on the effective date of  this  legis-
    31  lation, and provided, however, that every local entity shall be entitled
    32  to  a  payment  of  not less than two percent from the holder of a state
    33  franchise for the ongoing support of the  cost  of  PEG  facilities  and
    34  services.  If,  on  December thirty-first, two thousand sixteen, a local

    35  entity or its designee was imposing a separate fee to support PEG  chan-
    36  nel  facilities  that  is  in  excess of two percent, that entity or its
    37  designee may establish a fee no greater than that separate fee,  and  in
    38  no  event  greater than three percent, to support PEG activities. If the
    39  PEG support fee imposed by a local entity or its designee  is  expressed
    40  in  a  manner  other  than  as a percentage of gross revenues, the local
    41  entity or its designee community access organization  may  convert  that
    42  fee  to a currently equivalent percentage of gross revenues at any time.
    43  The local  entity  or  its  designee  may  adopt  requirements  for  the
    44  provision  of  PEG-related  in-kind  resources  by  all  cable and video
    45  service providers.

    46    12. Rules and regulations adopted by the community access organization
    47  shall govern the use of any channel time on the public channels as  well
    48  as  the  equipment,  facilities and services related to the public chan-
    49  nels.
    50    13. The commission, through an administrative  proceeding  shall  have
    51  the original jurisdiction to enforce any requirements under this section
    52  to  resolve  any  dispute  regarding  the requirements set forth in this
    53  section. After the administrative  process  is  exhausted,  a  court  of
    54  competent  jurisdiction  shall have jurisdiction to enforce any require-
    55  ment under this section or resolve any dispute  regarding  the  require-
    56  ments  set  forth  in  this section, and no cable operator may be barred

        A. 2118--A                         30
 
     1  from the provision of cable service or be required  to  terminate  cable
     2  service as a result of such dispute or enforcement action.
     3    §  241.    Cable  operator's  community commitment. 1. Cable operators
     4  shall install and retain or provide, without charge, one service  outlet
     5  activated  for  basic  service  to  any  and  all  fire stations, public
     6  schools, police stations, public libraries and other such buildings used
     7  for municipal purposes.
     8    2. Cable operators shall provide  internet  service,  without  charge,
     9  through  one  service  outlet activated for basic service to any and all
    10  fire stations, public schools, police stations,  public  libraries,  and

    11  other such building used for municipal purposes.
    12    §  242.  Consumer  protection  rules.  1.  Every  cable operator shall
    13  provide safe, adequate and reliable service in accordance with  applica-
    14  ble  laws, regulations, and franchise requirements. Cable operators with
    15  a statewide franchise are subject to the requirements under sections two
    16  hundred twenty-four and two hundred twenty-four-a of  this  chapter  and
    17  any  other  customer  service  standards  pertaining to the provision of
    18  video service established by federal law or  regulation  or  adopted  by
    19  subsequent  enactment  of  the  legislature.  All  customer  service and
    20  consumer protection standards under this section  shall  be  interpreted

    21  and applied to accommodate newer or different technologies while meeting
    22  or exceeding the goals of these standards.
    23    2. In addition, cable operators:
    24    (a)  shall  clearly  and  conspicuously  disclose  to  users, in plain
    25  language, accurate information  concerning  any  terms,  conditions,  or
    26  limitations  on  the broadband network service they offer, the speeds of
    27  the download and uploading speeds of the provider's internet service;
    28    (b) provide their broadband network services on reasonable and nondis-
    29  criminatory terms and conditions such  that  any  person  can  offer  or
    30  provide  content,  applications, or services to or over the network in a
    31  manner that is at least equal to the manner in which the provider or its

    32  affiliates offer  content,  applications,  and  services,  free  of  any
    33  surcharge on the basis of the content, application, or service;
    34    (c) interconnect their facilities with the facilities of other provid-
    35  ers  of  broadband  network services on reasonable and nondiscriminatory
    36  terms or conditions.
    37    § 243. Neutral internet and broadband networks. 1.    Cable  operators
    38  shall not:
    39    (a) block, impair, discriminate against, or interfere with the ability
    40  of  any person to use internet based traffic based on the source, desti-
    41  nation, or ownership of the internet traffic that carries video service,
    42  in a manner that degrades or otherwise negatively impacts the access to,

    43  or the quality of services received by an end user;
    44    (b) engage in any exclusive or  preferential  dealings  regarding  the
    45  carriage  and  treatment of internet traffic, including, but not limited
    46  to, traffic that carries video programming or  video  service,  with  an
    47  affiliate  or  third  party provider of internet applications, services,
    48  content, or video services;
    49    (c) impose an additional charge to avoid any conduct that is prohibit-
    50  ed by this section;
    51    (d) prohibit a user from attaching or using a device on the provider's
    52  internet or broadband network that does not physically damage  or  mate-
    53  rially degrade other users' utilization of the network.

    54    2.  Nothing  in this section shall be construed to prevent a broadband
    55  or internet network provider from taking reasonable and nondiscriminato-
    56  ry measures:

        A. 2118--A                         31
 
     1    (a) to manage the functioning of its network to protect  the  security
     2  and to offer parental controls and other consumer protection measures of
     3  such  network and broadband or internet network services if such manage-
     4  ment does not result in discrimination among the content,  applications,
     5  or services on the network;
     6    (b) to give priority to emergency communications; or
     7    (c)  to  prevent  a  violation of a federal or state law, or to comply

     8  with an order of a court to enforce  such  law,  or  such  other  action
     9  against  network  threats  as  may  be authorized in section two hundred
    10  fifteen of this chapter.
    11    § 244. Deployment requirements for statewide cable franchise. 1.    As
    12  part  of any franchise issued by the commission in this article, a cable
    13  operator shall be required to:
    14    (a) Begin providing cable service on a commercial basis, within  three
    15  years of issuance of the system-wide franchise, in:
    16    (i)  each  county seat that is within the CATV company's service area;
    17  and
    18    (ii) each municipality within the CATV company's service area that has
    19  a population density greater than seventy-one hundred eleven persons per

    20  square mile of land area, as  determined  by  the  most  recent  federal
    21  decennial  census,  provided, however, that if such county seats are not
    22  located within or contiguous to such municipalities,  each  such  county
    23  seat  shall  be  interconnected to the nearest municipality with a popu-
    24  lation density greater than persons per square mile of land area by  the
    25  cable operator; and
    26    (b) Make cable television service available throughout the residential
    27  areas  on  a  commercial  basis,  before the beginning of the sixth year
    28  after the issuance of the system-wide franchise, in:
    29    (i) each municipality within the state that has a  population  density
    30  greater  than  five hundred one persons per square mile of land area, as

    31  determined by the most recent federal decennial census; and
    32    (ii) throughout the residential areas of any municipalities served  by
    33  central  offices  located  within  a county seat within the franchisee's
    34  service area, subject to the cable  operator's  line  extension  policy;
    35  provided,  however,  a  CATV  company may apply to the commission for an
    36  exemption from this requirement if the board finds, after  conducting  a
    37  hearing  with full notice and opportunity to be heard, that the areas in
    38  question are areas in which the CATV company is  unable  to  access  the
    39  public rights-of-way under reasonable terms and conditions.
    40    2.  The  requirements  of  subdivision  one of this section shall only

    41  apply to cable operators that  on  the  date  of  the  issuance  of  the
    42  system-wide  franchise  provide  more  than  forty  percent of the local
    43  exchange telephone service market in this state; and to cable  operators
    44  that  on  the  date of the issuance of the system-wide franchise provide
    45  two hundred fifty thousand or more local  exchange  telephone  lines  in
    46  this state;
    47    3.  Incumbent  cable companies that become statewide franchise holders
    48  shall not reduce the number or percentage  of  households  served;  will
    49  build  out  to all residential households subject to the operator's line
    50  extension policy within three years; and will upgrade  their  facilities
    51  to  the  entire  service  area  within three years of the date the cable

    52  operator upgrades any part of its facilities.
    53    4. Within three years of the issuance of the system-wide franchise all
    54  other statewide franchise holders shall fully complete a system  capable
    55  of providing cable service to all households within the cable operator's
    56  service area, subject to the cable operator's line extension policy.

        A. 2118--A                         32
 
     1    §  245.   Discrimination in the provisioning of service prohibited. 1.
     2  The franchise holder shall become capable of providing cable service  to
     3  all  households  within  the  designated service area footprint. A cable
     4  operator that has been granted a statewide franchise under this  article

     5  shall  not  deny access to cable service to any group of potential resi-
     6  dential subscribers because of the income or race of  the  residents  in
     7  the  local area in which such group resides. A franchisee must submit to
     8  the commission a deployment schedule, setting forth  the  municipalities
     9  to  be  served,  the  date  service shall begin in each proposed munici-
    10  pality, and a date certain by which  each  community  will  be  able  to
    11  receive  cable  service.  The  commission will ensure that the build-out
    12  process is not discriminatory based on  an  area's  class  or  race.  If
    13  deployment  of  cable  services under a statewide franchise is scheduled
    14  for deployment in a given area, the cable operator must offer service to

    15  all residents within the geographic area or the commission may terminate
    16  the franchise pursuant to section two hundred thirty-six of  this  arti-
    17  cle.
    18    2.  Notwithstanding  any  other provision of law, the franchise holder
    19  shall comply with customer service requirements  set  forth  in  article
    20  eleven of this chapter, at 47 C.F.R.  § 76.309(c) and any other customer
    21  service  standards  pertaining  to the provision of video service estab-
    22  lished by federal law or regulation or by subsequent  enactment  of  the
    23  legislature.  All  customer  service  and  consumer protection standards
    24  under this section shall be interpreted and applied to accommodate newer
    25  or different technologies while meeting or exceeding the goals of  these

    26  standards.
    27    3.  If  the  commission  determines  that  a cable operator has denied
    28  access of cable service to a group of potential residential  subscribers
    29  because of the income levels of the residents of the local area in which
    30  such  group  resides  or  has  failed  to  meet  the requirements of the
    31  section, the commission is authorized to,  after  conducting  a  hearing
    32  with  full notice and opportunity to be heard, impose monetary penalties
    33  of not less than fifty thousand dollars, nor more than one hundred thou-
    34  sand dollars per municipality, not to exceed a total  of  three  million
    35  six  hundred fifty thousand dollars per year for all violations. A muni-
    36  cipality in which the provider offers cable service shall be  an  appro-

    37  priate party in any such proceeding.
    38    §  246. Enforcement. The exclusive remedy for enforcing the provisions
    39  of this article, notwithstanding  specific  sections  of  this  article,
    40  shall  be  an  action  in  a  court of competent jurisdiction brought by
    41  either the municipality, the attorney general on behalf of  the  commis-
    42  sion or other injured party. At least sixty days before bringing such an
    43  action,  the  municipality or attorney general shall serve the franchise
    44  holder with a notice setting out the alleged violation and stating  that
    45  an  action  may  be  brought  unless  the  holder  corrects  the alleged
    46  violation or enters into a binding agreement to  correct  the  violation

    47  within  the  sixty-day  notice period. The notice shall contain a suffi-
    48  ciently detailed description of the  alleged  violation  to  enable  the
    49  franchise holder to make a specific response.
    50    §  6. Section 215 of the public service law is amended by adding a new
    51  subdivision 14 to read as follows:
    52    14.  Require that cable television franchises contain, upon submission
    53  for certificates of confirmation, provisions requiring  that  the  cable
    54  television services franchisee deliver to the franchisor and the commis-
    55  sion,  on an annual basis, a written report describing every instance in
    56  which such franchisee blocks, limits or otherwise restricts  subscribers

        A. 2118--A                         33
 

     1  or  other  purchasers  of  broadband  services  from the franchisee from
     2  accessing any particular internet site or category or type  of  internet
     3  site  or  any  specific  electronic  mail message or category or type of
     4  electronic  mail  ("neutrality  report").  Such  neutrality report shall
     5  contain detail of a specificity level to be determined  by  the  commis-
     6  sion, and shall contain sufficient detail to allow the commission or the
     7  franchisor  to ascertain the nature of any blocking, limitation or other
     8  restrictions, and the reason for the franchisee for taking such  action,
     9  but  shall  be  provided  in  a  manner reasonably calculated to protect
    10  subscriber privacy or the legitimate needs of law  enforcement.  Nothing

    11  in this subdivision shall be interpreted to restrict the rights of fran-
    12  chisees,  if  they  so choose, to block, limit or otherwise restrict the
    13  passage of electronic mail messages  or  other  content  that  transmit,
    14  portray,  describe, represent or otherwise contain matters such as child
    15  pornography or similar obscenity, other unlawful  material,  threats  of
    16  serious bodily harm, threats to the public safety and homeland security,
    17  threats  of  death  to  individuals or groups of individuals, viruses or
    18  similar computer generated programs or code that have the  potential  to
    19  harm  computer hardware and/or software and/or networks, excessive unso-
    20  licited commercial email that degrades or interferes with or  harms  the

    21  normal operation of broadband networks, and other similar types or forms
    22  of  material  or  software (the foregoing examples are illustrative, not
    23  exhaustive of such threats to users  and/or  the  network,  collectively
    24  hereafter  "network  threats").  Blocking  or  limitation  of subscriber
    25  access to the maximally diverse internet, if  not  predicated  upon  the
    26  franchisee's  right  to  defend  its  network  and  subscribers  against
    27  "network threats", shall presumptively be a breach of the franchise.  No
    28  franchisee  shall  be  responsible or liable for any efforts by or poli-
    29  cies, practices or  procedures  of  an  unaffiliated  telecommunications
    30  services  provider  or  internet  services provider or internet protocol

    31  traffic routing entity to block subscribers from accessing any  internet
    32  site or any category or type of internet site or any specific electronic
    33  mail message or any category or type of electronic mail.
    34    §  7.  Section 99 of the public service law is amended by adding a new
    35  subdivision 4 to read as follows:
    36    4.  No building owner may discriminate against  a  telephone  company,
    37  broadband  services  or advanced communications company or their ability
    38  to provide services to one or more tenants of  a  multi-tenant  property
    39  that is owned or controlled by the building owner, including discrimina-
    40  tory  terms  and  conditions  by  which the telephone company, broadband
    41  services or advanced communications company gain physical access to  the

    42  property to place its facilities and provide telecommunications services
    43  to  the  property's  tenants.  The commission shall have jurisdiction to
    44  implement the provisions of this subdivision by  appropriate  rules  and
    45  regulations  and  to  administratively adjudicate disputes arising under
    46  this subdivision. In no event may the lack of agreement over  terms  and
    47  conditions  of  access  delay  the  ability of a requesting telecommuni-
    48  cations company to obtain access for more than thirty days following  an
    49  initial request therefor.
    50    § 8. Subdivision 2 of section 99 of the public service law, as amended
    51  by chapter 383 of the laws of 1996, is amended to read as follows:
    52    2.  (a) No franchise nor any right to or under any franchise to own or

    53  operate a telegraph line or telephone line  shall  be  assigned,  trans-
    54  ferred,  or  leased,  nor shall any contract or agreement hereafter made
    55  with reference to or affecting any such franchise or right be  valid  or
    56  of  any  force  or effect whatsoever[,] unless the assignment, transfer,

        A. 2118--A                         34
 
     1  lease, contract, or agreement shall have been approved  by  the  commis-
     2  sion.
     3    (b)  No  telephone  corporation  shall  transfer or lease its works or
     4  system or any part of such works or system to any other person or corpo-
     5  ration or contract for the operation of its works or  system[,]  without
     6  the  written  consent of the commission. [Notwithstanding the foregoing,

     7  any such transfer or  lease  between  affiliated  corporations  with  an
     8  original  cost of (a) less than one hundred thousand dollars proposed by
     9  a telephone corporation having annual gross revenues in  excess  of  two
    10  hundred  million  dollars,  (b)  less  than twenty-five thousand dollars
    11  proposed by a telephone corporation having annual gross revenues of less
    12  than two hundred million but more than ten million dollars or  (c)  less
    13  than  ten  thousand  dollars  proposed by a telephone corporation having
    14  annual gross revenues of less than ten million  dollars  and  any  other
    15  transfer  or  lease  between  non-affiliates regardless of cost shall be
    16  effective without the commission's written consent  within  ninety  days

    17  after such corporation notifies the commission that it plans to complete
    18  such  transfer  or  lease  and  submits a description of the transfer or
    19  lease, unless the commission, or its designee,  determines  within  such
    20  ninety  days  that  the public interest requires the commission's review
    21  and written consent.]
    22    (c) (1) No consent shall be given by the commission to the assignment,
    23  transfer, or lease of any right or franchise to operate a telegraph line
    24  or telephone line unless it shall have been shown that such  assignment,
    25  transfer, or lease is in the public interest.
    26    (2)  No  consent  shall  be given by the commission to the assignment,
    27  transfer, or lease of any right or franchise to operate any  part  of  a

    28  telephone corporation's works or system, or to a contract for the opera-
    29  tion  of  such entity's works or system, unless it shall have been shown
    30  that such assignment, transfer, or lease or contract is  in  the  public
    31  interest.
    32    (d)  Before authorizing the merger, acquisition, assignment, lease, or
    33  transfer of control of any telephone  corporation  organized  and  doing
    34  business  in  this  state, where any of the entities that are parties to
    35  the proposed transaction has gross annual New  York  revenues  exceeding
    36  two hundred million dollars, the commission shall find that the proposal
    37  does all of the following:
    38    (1) Provides short-term and long-term economic benefits to ratepayers.

    39    (2)  Equitably allocates, where the commission has ratemaking authori-
    40  ty, the total short-term and long-term forecasted economic benefits,  as
    41  determined  by  the  commission, of the proposed merger, acquisition, or
    42  control between shareholders and ratepayers.  Ratepayers  shall  receive
    43  not less than forty percent of such benefits.
    44    (3)  Maintains  or  improves  the financial condition of the resulting
    45  telephone corporations doing business in the state and does  not  unrea-
    46  sonably  allocate a telephone corporation's debt to a divestiture entity
    47  created from an existing telephone corporation. For the purpose of  this
    48  section,  a  divestiture  entity  is  a  business  entity created by the

    49  assignment, exchange, sale, or other transfer  of  some  or  all  of  an
    50  existing  telephone corporation's lines, system, or works to a new tele-
    51  phone corporation.
    52    (4) Maintains or improves the quality of service to  telephone  corpo-
    53  ration ratepayers in the state.
    54    (5)  Maintains  or improves the quality of management of the resulting
    55  telephone corporation doing business in the state.

        A. 2118--A                         35
 
     1    (6) Is fair and reasonable to affected telephone  corporation  employ-
     2  ees, including both union and nonunion employees.
     3    (7)  Is  fair and reasonable to the majority of all affected telephone
     4  corporations.

     5    (8) Is beneficial on an overall basis to state and local economies and
     6  to the communities in the area served by the resulting entity  and  does
     7  not  allocate  substantially unfunded pension or health care obligations
     8  or other employee benefits to a resulting telephone corporation.
     9    (9) Preserves the jurisdiction of the commission and the  capacity  of
    10  the  commission  to effectively regulate and audit telephone corporation
    11  operations in the state.
    12    (10) Provides  mitigation  measures  to  prevent  significant  adverse
    13  consequences which may result.
    14    (11)  Does  not  adversely affect competition. In making this finding,
    15  the commission shall request  an  advisory  opinion  from  the  attorney

    16  general  regarding whether or not competition will be adversely affected
    17  and what mitigatory measures could be adopted to avoid any such  adverse
    18  effect.
    19    (e)  When  reviewing  a  merger,  acquisition,  or transfer of control
    20  proposal, the  commission  shall  consider  reasonable  alternatives  or
    21  modifications to the proposal recommended by other parties, including no
    22  merger,  acquisition, or control, to determine whether or not comparable
    23  short-term and long-term economic savings can be achieved through  other
    24  means while avoiding the possible adverse consequences of the proposal.
    25    (f)  The  person  or  corporation  seeking acquisition or control of a
    26  telephone corporation organized and doing business in this  state  shall

    27  have  before  the commission the burden of proving by a preponderance of
    28  the evidence that the requirements of paragraph (d) of this  subdivision
    29  are met.
    30    (g)  In  determining whether or not an acquiring telephone corporation
    31  has gross annual revenues exceeding the amount  specified  in  paragraph
    32  (d)  of  this  subdivision, the revenues of that telephone corporation's
    33  affiliates shall not be  considered,  unless  the  affiliate  is  to  be
    34  utilized  for  the  purpose  of  effecting  such merger, acquisition, or
    35  control.
    36    (h) Subparagraphs one and two of paragraph  (d)  of  this  subdivision
    37  shall not apply to the formation of a holding company.
    38   (i)  Subparagraphs  one  and  two  of paragraph (d) of this subdivision

    39  shall not apply to acquisitions or changes in control that are  mandated
    40  by either the commission or the legislature.
    41    §  9. Section 100 of the public service law, as amended by chapter 226
    42  of the laws of 2009, is amended to read as follows:
    43    § 100. Transfer and ownership of stock. 1. No telegraph corporation or
    44  telephone corporation, domestic or  foreign,  shall  hereafter  purchase
    45  [or],  acquire, take, or hold any part of the capital stock of any tele-
    46  graph corporation or telephone corporation organized or  existing  under
    47  the laws of this state unless authorized so to do by the commission.
    48    2.  Save  where  stock shall be transferred or held for the purpose of
    49  collateral security, no stock corporation, domestic or foreign, company,
    50  including, but not limited to, a limited liability company, association,

    51  including a joint stock association, partnership,  including  a  limited
    52  liability  partnership, or person, other than a telegraph corporation or
    53  telephone corporation, shall, without the  consent  of  the  commission,
    54  purchase [or], acquire, take, or hold more than ten [per centum] percent
    55  of the voting capital stock issued by any telegraph corporation or tele-
    56  phone  corporation  organized or existing under or by virtue of the laws

        A. 2118--A                         36
 
     1  of this state. Any corporation now lawfully holding a  majority  of  the
     2  voting  capital  stock  of any telegraph corporation or telephone corpo-
     3  ration may, without the consent of the commission, acquire and hold  the
     4  remainder  of  the voting capital stock of such telegraph corporation or

     5  telephone corporation[,] or any portion thereof.
     6    3. (a) No consent shall be given by the commission to the  acquisition
     7  of  any  stock in accordance with this section unless it shall have been
     8  shown that such acquisition is in the public interest[; provided, howev-
     9  er, that any], which the commission shall determine by finding that  the
    10  proposal  does  all  of  the  following,  to the extent determined to be
    11  applicable:
    12    (i) Provides short-term and long-term economic benefits to ratepayers.
    13    (ii) Equitably allocates, where applicable and  where  the  commission
    14  has  ratemaking authority, the total short-term and long-term forecasted
    15  economic benefits, as determined by  the  commission,  of  the  proposed

    16  acquisition, purchase, sale, transfer, or retention between shareholders
    17  and  ratepayers. Ratepayers shall receive not less than forty percent of
    18  those benefits.
    19    (iii) Maintains or improves the financial condition of  the  resulting
    20  telephone  corporations  doing business in the state and does not unrea-
    21  sonably allocate a telephone corporation's debt to a divestiture  entity
    22  created  from an existing telephone corporation. For the purpose of this
    23  section, a divestiture entity  is  a  business  entity  created  by  the
    24  assignment,  exchange,  sale,  or  other  transfer  of some or all of an
    25  existing telephone corporation's lines, system, or works to a new  tele-
    26  phone corporation.

    27    (iv)  Maintains or improves the quality of service to telephone corpo-
    28  ration ratepayers in the state.
    29    (v) Maintains or improves the quality of management of  the  resulting
    30  telephone corporation doing business in the state.
    31    (vi)  Is fair and reasonable to affected telephone corporation employ-
    32  ees, including both union and non-union employees.
    33    (vii) Is fair and reasonable to the majority of all affected telephone
    34  corporations.
    35    (viii) Is beneficial, on an overall basis, to state and  local  econo-
    36  mies,  and to the communities in the area served by the resulting entity
    37  and does not allocate substantially  unfunded  pension  or  health  care
    38  obligations  or  other employee benefits to a resulting telephone corpo-

    39  ration.
    40    (ix) Preserves the jurisdiction of the commission and the capacity  of
    41  the  commission  to effectively regulate and audit telephone corporation
    42  operations in the state.
    43    (x) Provides mitigation  measures  to  prevent  significantly  adverse
    44  consequences which may result from such acquisition.
    45    (xi)  Does  not  adversely affect competition. In making this finding,
    46  the commission shall request  an  advisory  opinion  from  the  attorney
    47  general  regarding whether or not competition will be adversely affected
    48  and what mitigatory measures could be adopted to avoid any such  adverse
    49  effect.
    50    (b)  Any  such  consent, however, shall be deemed to be granted by the

    51  commission ninety days after such corporation applies to the  commission
    52  for  its consent, unless the commission, or its designee, determines and
    53  informs the applicant in writing within such ninety day period that  the
    54  public  interest  requires  the  commission's  review  and  its  written
    55  consent.  Nothing [herein] in this section contained shall be  construed
    56  to prevent the holding of any stock heretofore lawfully acquired, nor to

        A. 2118--A                         37
 
     1  prevent,  upon  the  surrender  or  exchange of such stock pursuant to a
     2  reorganization plan, the purchase, acquisition, taking or holding  of  a
     3  proportionate  amount  of stock of any new corporation organized to take
     4  over, at foreclosure or other sale the property of any corporation whose

     5  stock  has  been thus surrendered or exchanged[;], but the proportion of
     6  the voting capital stock of the new corporation held by a  stock  corpo-
     7  ration,  company,  association, partnership or person and acquired by it
     8  by any such surrender or exchange of stock shall not without the consent
     9  of the commission exceed the proportion of the voting capital stock held
    10  by it in the former corporation.
    11    4. Every contract, assignment, transfer, or agreement for transfer  of
    12  any  stock  by  or through any person or corporation to any corporation,
    13  company,  association,  partnership  or  person,  in  violation  of  any
    14  provision  of  this  chapter shall be void and of no effect, and no such
    15  transfer or assignment shall be made upon the books of  any  such  tele-
    16  graph  corporation or telephone corporation[,] or shall be recognized as

    17  effective for any purpose.
    18    § 10. The executive law is amended by adding a  new  section  32-a  to
    19  read as follows:
    20    § 32-a. State agency telecommunications resource management. 1. Within
    21  ninety  days  of the effective date of this section, all state agencies,
    22  as such are defined in subdivision one of  section  thirty-two  of  this
    23  article,  shall  study  and  report  upon  the  physical location and/or
    24  frequency, and amount of all excess capacity,  within  the  telecommuni-
    25  cations  infrastructure and radio frequency bandwidth owned, licensed or
    26  otherwise controlled by such agencies. Telecommunications infrastructure
    27  is herein defined for the purposes of this article to include  conduits,

    28  ducts,  poles,  wires,  fiber  optic  cable and/or lines, coaxial cable,
    29  copper twisted pair telephone lines, receivers, transmitters,  broadcast
    30  radio   frequency  bandwidth,  lasers  and  multiplexers,  transmitters,
    31  instruments, machines, appliances and all devices,  real  estate,  ease-
    32  ments,  apparatus,  property  and  routes  used and/or operated by state
    33  agencies.
    34    2. All state agencies shall, within one  hundred  fifty  days  of  the
    35  effective  date  of this section, identify the excess capacity and band-
    36  width reported upon which may be  leased  on  a  non-discriminatory  and
    37  commercially reasonable basis to public entities or certified telecommu-
    38  nications carriers that need such capacity to provide broadband services

    39  to  unserved, underserved and distressed areas. Such excess capacity and
    40  bandwidth so identified shall be reported upon.
    41    3. All state agencies shall, within one hundred  eighty  days  of  the
    42  effective  date of this section, identify and report upon all telecommu-
    43  nications services purchased, leased or otherwise used by  the  agencies
    44  that  may  be  used  in  a telecommunications demand aggregation program
    45  administered by the state broadband development and  deployment  council
    46  pursuant to section four thousand one hundred five of the public author-
    47  ities law.
    48    4.  (a)  All state agencies shall, within ninety days of the effective
    49  date of  this  section,  install  telecommunications-grade  conduit  and

    50  antenna attachment points in and/or on all infrastructure projects newly
    51  constructed or upgraded by such agencies, for lease on a non-discrimina-
    52  tory  and  commercially reasonable basis to public entities or certified
    53  telecommunications carriers that need such capacity to provide broadband
    54  services to unserved, underserved and distressed areas.  State  agencies
    55  may,  however,  exempt  from  this requirement infrastructure where such
    56  installations could pose a threat  to  public  safety  or  otherwise  be

        A. 2118--A                         38
 
     1  unreasonable.  Such  conduit  and antenna attachment point installations
     2  shall be reported on a semi-annual basis.

     3    (b)  The state office of general services shall, within ninety days of
     4  the effective date of this section, make wireless internet access avail-
     5  able to the public in publicly accessible and highly-trafficked areas of
     6  the state capitol and the legislative office building,  and  such  other
     7  publicly  accessible  and  highly-trafficked  office of general services
     8  managed state buildings as is reasonable and prudent.
     9    5. All reports  provided  for  in  this  section  shall  be  delivered
    10  initially, and thereafter on an annual basis, to the governor, temporary
    11  president  of  the  senate, speaker of the assembly, minority leaders of
    12  the senate and assembly, chair and ranking minority member of the senate

    13  energy and telecommunications  committee,  and  the  chair  and  ranking
    14  minority  member  of  the assembly corporations, authorities and commis-
    15  sions committee, chair of the public service commission, commissioner of
    16  the department of economic development, commissioner of the empire state
    17  development corporation and the chairpersons of the  broadband  develop-
    18  ment and deployment council and broadband development authority.
    19    §  11.  The  public authorities law is amended by adding a new section
    20  2807 to read as follows:
    21    § 2807. Annual telecommunications resources reports by authorities. 1.
    22  State authorities. (a) For the purpose  of  furnishing  the  state  with
    23  systematic  information  regarding  the  existing, newly constructed and

    24  planned telecommunications infrastructure resources of  public  authori-
    25  ties,  every state authority continued or created by this chapter or any
    26  other chapter of the laws of the state of New York shall:
    27    (i) within ninety days of the effective date of this  section,  submit
    28  to  the  governor,  temporary  president  of  the senate, speaker of the
    29  assembly, minority leaders of the senate and assembly, chair and ranking
    30  minority member of the senate energy and  telecommunications  committee,
    31  and  the chair and ranking minority member of the assembly corporations,
    32  authorities and commissions  committee,  chair  of  the  public  service
    33  commission,  commissioner  of  the  department  of economic development,

    34  commissioner of the empire state development corporation and the  chairs
    35  of the broadband development and deployment council and broadband devel-
    36  opment  authority,  a  complete  and detailed report or reports upon the
    37  physical location and/or frequency, and amount of all  excess  capacity,
    38  within  the  telecommunications infrastructure and radio frequency band-
    39  width owned, licensed or otherwise controlled by state authorities;
    40    (ii) within one hundred fifty days  of  the  effective  date  of  this
    41  section,  submit  to  the  governor,  temporary president of the senate,
    42  speaker of the assembly, minority leaders of the  senate  and  assembly,
    43  chair  and ranking minority member of the senate energy and telecommuni-

    44  cations committee, and the chair and  ranking  minority  member  of  the
    45  assembly  corporations,  authorities  and  commissions committee, chair-
    46  person of the public service commission, commissioner of the  department
    47  of  economic  development,  commissioner of the empire state development
    48  corporation and  the  chairpersons  of  the  broadband  development  and
    49  deployment  council  and broadband development authority, a complete and
    50  detailed report or reports identifying the excess capacity and bandwidth
    51  possessed or controlled by state authorities which may be  leased  on  a
    52  non-discriminatory  and commercially reasonable basis to public entities
    53  or certified telecommunications carriers  that  need  such  capacity  to

    54  provide  broadband  services  to  unserved,  underserved  and distressed
    55  areas;

        A. 2118--A                         39
 
     1    (iii) within one hundred eighty days of the  effective  date  of  this
     2  section,  identify  and  report  upon  all  telecommunications  services
     3  purchased, leased or otherwise used by the authorities that may be  used
     4  in  a  telecommunications demand aggregation program administered by the
     5  state broadband development and deployment council.
     6    (b)  All  state  authorities  shall,  from  the effective date of this
     7  section, install telecommunications-grade conduit and antenna attachment
     8  points in and/or on all infrastructure  projects  newly  constructed  or

     9  upgraded by such agencies, for lease on a non-discriminatory and commer-
    10  cially  reasonable  basis  to  public entities or certified telecommuni-
    11  cations carriers that need such capacity to provide  broadband  services
    12  to  unserved,  underserved  and distressed areas. State authorities may,
    13  however, exempt from this requirement infrastructure where such  instal-
    14  lations  could  pose a threat to public safety or otherwise be unreason-
    15  able. Such conduit and antenna attachment point installations  shall  be
    16  reported on a semi-annual basis.
    17    (c)  All state authority reports provided for in this section shall be
    18  delivered initially, and thereafter on an annual basis unless  otherwise

    19  specified,  to  the governor, temporary president of the senate, speaker
    20  of the assembly, minority leaders of the senate and assembly, chair  and
    21  ranking  minority  member  of  the  senate energy and telecommunications
    22  committee, and the chair and ranking minority  member  of  the  assembly
    23  corporations, authorities and commissions committee, chair of the public
    24  service  commission, commissioner of the empire state development corpo-
    25  ration and the chairpersons of the broadband development and  deployment
    26  council and broadband development authority.
    27    (d)  Telecommunications  infrastructure is defined for the purposes of
    28  this article to include conduits, ducts, poles, wires, fiber optic cable

    29  and/or lines,  coaxial  cable,  copper  twisted  pair  telephone  lines,
    30  receivers, transmitters, broadcast radio frequency bandwidth, lasers and
    31  multiplexers,  transmitters,  instruments,  machines, appliances and all
    32  devices, real estate, easements, apparatus,  property  and  routes  used
    33  and/or operated by state authorities and local authorities.
    34    2. Local authorities. (a) For the purpose of furnishing the state with
    35  systematic  information  regarding  the  existing, newly constructed and
    36  planned telecommunications infrastructure resources of  public  authori-
    37  ties,  every local authority continued or created by this chapter or any
    38  other chapter of the laws of the state of New York shall:

    39    (i) within ninety days of the effective date of this  section,  submit
    40  to  the  governor,  temporary  president  of  the senate, speaker of the
    41  assembly, minority leaders of the senate and assembly, chair and ranking
    42  minority member of the senate energy and  telecommunications  committee,
    43  and  the chair and ranking minority member of the assembly corporations,
    44  authorities and commissions  committee,  chair  of  the  public  service
    45  commission, commissioner of the empire state development corporation and
    46  the  chairs  of  the  broadband  development  and deployment council and
    47  broadband development authority,  a  complete  and  detailed  report  or
    48  reports  upon  the physical location and/or frequency, and amount of all

    49  excess capacity, within the telecommunications infrastructure and  radio
    50  frequency  bandwidth  owned,  licensed  or otherwise controlled by state
    51  authorities;
    52    (ii) within one hundred fifty days  of  the  effective  date  of  this
    53  section,  submit  to  the  governor,  temporary president of the senate,
    54  speaker of the assembly, minority leaders of the  senate  and  assembly,
    55  chair  and ranking minority member of the senate energy and telecommuni-
    56  cations committee, and the chair and  ranking  minority  member  of  the

        A. 2118--A                         40
 
     1  assembly  corporations,  authorities and commissions committee, chair of
     2  the public service commission, commissioner of the empire state develop-

     3  ment corporation and the chairs of the broadband development and deploy-
     4  ment  council  and  broadband  development  authority,  a  complete  and
     5  detailed report or reports identifying the excess capacity and bandwidth
     6  possessed or controlled by local authorities which may be  leased  on  a
     7  non-discriminatory  and commercially reasonable basis to public entities
     8  or certified telecommunications carriers  that  need  such  capacity  to
     9  provide  broadband  services  to  unserved,  underserved  and distressed
    10  areas;
    11    (iii) within one hundred eighty days of the  effective  date  of  this
    12  section,  identify  and  report  upon  all  telecommunications  services
    13  purchased, leased or otherwise used by the authorities that may be  used

    14  in  a  telecommunications demand aggregation program administered by the
    15  state broadband development and deployment council.
    16    (b) All local authorities shall,  from  the  effective  date  of  this
    17  section, install telecommunications-grade conduit and antenna attachment
    18  points  in  and/or  on  all infrastructure projects newly constructed or
    19  upgraded by such agencies, for lease on a non-discriminatory and commer-
    20  cially reasonable basis to public  entities  or  certified  telecommuni-
    21  cations  carriers  that need such capacity to provide broadband services
    22  to unserved, underserved and distressed areas.  Local  authorities  may,
    23  however,  exempt from this requirement infrastructure where such instal-

    24  lations could pose a threat to public safety or otherwise  be  unreason-
    25  able.  Such  conduit and antenna attachment point installations shall be
    26  reported on a semi-annual basis.
    27    (c) All local authority reports provided for in this section shall  be
    28  delivered  initially, and thereafter on an annual basis unless otherwise
    29  specified, to the governor, temporary president of the  senate,  speaker
    30  of  the assembly, minority leaders of the senate and assembly, chair and
    31  ranking minority member of  the  senate  energy  and  telecommunications
    32  committee,  and  the  chair  and ranking minority member of the assembly
    33  corporations, authorities and commissions committee, chairperson of  the

    34  public  service commission, commissioner of the empire state development
    35  corporation and the chairpersons of the  broadband  development  council
    36  and broadband authority.
    37    3.  State  and  local  authorities.  To  the  extent  practicable, and
    38  consistent with applicable directives or  guidelines  by  the  emergency
    39  preparedness  commission,  state  emergency  management office and state
    40  office of homeland security, each state and local authority  shall  make
    41  accessible  to  the public via its official internet web site documenta-
    42  tion pertaining to the telecommunications infrastructure resources owned
    43  by, leased by, used by or otherwise controlled by such state  and  local
    44  authorities.

    45    §  12.  The public service law is amended by adding a new section 90-a
    46  to read as follows:
    47    § 90-a. Statement of policy. 1. The state of New York's  long-standing
    48  policy,  codified in this section, is that certain communications tools,
    49  and particularly telephone services, i.e.  essential  services,  are  so
    50  fundamental  that  it  is  not  in  the  public  interest to leave their
    51  provision to the vagaries of the  marketplace  alone.  Furthermore,  the
    52  legislature  declares that it is in the public interest that such essen-
    53  tial services be made and maintained universally across New  York.  Such
    54  tools  and  services have, over time, and increasingly now, shaped citi-
    55  zens' ability to participate  in  civic  affairs,  to  acquire  learning

    56  skills  needed  for their economic success and that of the state, and to

        A. 2118--A                         41
 
     1  enjoy the rich and unparalleled social and cultural life that is a vital
     2  part of New York  state's  economy.  The  state's  goals  for  universal
     3  service  are to further and protect the public interest by promoting the
     4  availability  of  quality  services  at just, reasonable, and affordable
     5  rates; to advance the availability of such services  to  all  consumers,
     6  including  those  in  low income, rural, insular, and high cost areas at
     7  rates that are reasonably comparable to those  charged  in  high-density
     8  urban  areas;  and  to increase access to, and the ubiquity of, advanced

     9  telecommunications services available to the public in an equitable  and
    10  nondiscriminatory  manner.  All telephone corporations and providers and
    11  resellers of  telecommunications  services  should  contribute  to  core
    12  public  safety and public interest goals to the extent allowable by law.
    13  At a  minimum,  these  include  equivalent  universal  service  support,
    14  provision and support for E911, disability access, consumer protections,
    15  and equitable taxation. Effective public programs must be made available
    16  where  competitive  forces do not result in the deployment, maintenance,
    17  or reconstruction of  affordable,  high-quality,  and  reliable  advance
    18  telecommunications  capability  across  all geographic regions and demo-

    19  graphic segments of  the  state.  Telecommunications  networks  must  be
    20  inter-operable, based on open standards, reliable, survivable, diversely
    21  pathed,  as  widely  interconnected as is reasonable, accessible for all
    22  users as provided for by law, including but not limited to the Americans
    23  with Disabilities Act, and all  applicable  federal,  state,  and  local
    24  regulations,  and must meet basic requirements concerning public safety,
    25  consumer protection, and relevant social and moral obligations.
    26    2. For the purposes of this section:
    27    (a) The term "universal service" means that  certain  basic  telephone
    28  facilities,   services,   and  instrumentalities,  known  as  "essential

    29  services", shall be accessible to any person, corporation,  or  locality
    30  in  New  York  state  at costs reasonably comparable to rates charged in
    31  urban areas and low-cost areas, so that there shall not be any undue  or
    32  unreasonable  preference  or  advantage  to  any person, corporation, or
    33  locality.
    34    (b) The term "essential services" means  the  provision  by  telephone
    35  corporations  of  voice  grade  access to and across the public switched
    36  telephone network, with the ability to place and receive  calls;  touch-
    37  tone  service;  single-party  service;  access  to  emergency  services,
    38  including 911 and E911 (which identifies a caller's location); access to
    39  operator services; access to inter-exchange services; access to directo-

    40  ry assistance; access to "lifeline" services, or other  services  equiv-
    41  alent  in  price  and  quality  for qualifying low-income consumers; and
    42  access to all of such other services as  may  be  mandated  by  federal,
    43  state, and local law.
    44    3.  Within  thirty days of the date on which the commission had actual
    45  knowledge, or should reasonably have known  or  been  informed,  of  the
    46  occurrence,  or  appearance  of the proximate occurrence, of a purchase,
    47  acquisition, taking, or other transfer of control or  ownership  of  the
    48  capital  stock  of  a  telegraph  or  telephone corporation organized or
    49  existing under the laws  of  this  state  within  the  contemplation  of
    50  section  one  hundred  of this article or paragraph (b) of this subdivi-

    51  sion, the commission shall compile and publish a report on  the  effect,
    52  if any, of such transfer of control upon universal service in the state.
    53  Such  report  shall be known as the "universal service impact analysis",
    54  and shall be issued before the commission may vote upon the approval  of
    55  such occurrence. If, on the effective date of this subdivision, there is
    56  a  proceeding before the commission within the contemplation of subdivi-

        A. 2118--A                         42
 
     1  sion one of this section, then the commission  shall  have  thirty  days
     2  from  such effective date to issue its universal service impact analysis
     3  report. Such universal service impact analysis report shall include, but
     4  not be limited to:

     5    (a)  an  analysis of the effects upon pricing of telephone services in
     6  high-cost and rural and low-income areas affected by  such  transfer  of
     7  control;
     8    (b) an analysis of the actual or potential effects of such transfer of
     9  control  upon  network  reliability  and  service  quality  in  the area
    10  affected by such transfer of control;
    11    (c) an analysis of the actual or potential effects  upon  new  service
    12  provision  in  rural  and high-cost and low-income areas within the area
    13  affected by such transfer of control.
    14    For the purposes of  triggering  such  reporting  requirement  by  the
    15  commission,  there  shall  be  a rebuttable presumption of a transfer of

    16  control or ownership upon the acquisition or accumulation by any  person
    17  or  group  of  persons  of  ten  percent or more of the shares of, or of
    18  comparable ownership interest in, a telegraph or telephone  corporation.
    19  Such  transfer  of  control  or acquisition or accumulation of ownership
    20  interests shall also be deemed  to  occur  upon  the  sale,  assignment,
    21  transfer,  divestiture of a portion of a business entity, lease or other
    22  disposal, either in whole or part, either  by  involuntary  sale  or  by
    23  voluntary sale, merger, or consolidation, or bankruptcy, of any title to
    24  such  telegraph  or telephone corporation, either legal or equitable, or
    25  of the lines or other network elements of such  telegraph  or  telephone

    26  corporation  within  three  or  more  local  access  and transport areas
    27  (LATAs) or counties.
    28    4. Upon the completion of the report under subdivision three  of  this
    29  section  the  commission  shall  have power and the duty to establish by
    30  rule or regulation, within ninety days of the  effective  date  of  this
    31  section,  such  charges,  exchanges  of  funds, fees, methodologies, and
    32  modalities as are necessary and convenient to  promote  and  ensure  the
    33  statewide  universal  availability of high-quality essential services at
    34  just, reasonable, and affordable rates; to advance the  availability  of
    35  such  services  to  all consumers, including those in low income, rural,
    36  insular, and high cost areas at rates that are reasonably comparable  to

    37  those  charged  in  low cost and urban areas; and to increase access to,
    38  and the ubiquity of, advanced telecommunications services  available  to
    39  the  public in an equitable and nondiscriminatory manner. The commission
    40  shall have power and the duty to promulgate such rules or regulations as
    41  are necessary and convenient to effectuate the state policies set  forth
    42  in this section.
    43    §  13.  The public service law is amended by adding a new section 90-b
    44  to read as follows:
    45    § 90-b.  Reports, hearings and investigations studying matters in  the
    46  public interest. The legislature finds that universal access to afforda-
    47  ble  telephone  service has been a long-standing tradition and policy of

    48  the state. However, this policy has come into question with proposals by
    49  incumbent carriers to sell significant portions of the upstate telephone
    50  network to companies with little or no background in  the  provision  of
    51  telephone  service.  Universal service, long taken for granted, must now
    52  be reevaluated to ensure that any future upstate telephone carriers will
    53  maintain this  policy.  Therefore,  the  department  shall  prepare  and
    54  submit,  on  or  before August first, two thousand eighteen, a report to
    55  the governor, temporary president of the senate, speaker of  the  assem-
    56  bly,  minority  leaders  of  the  senate and assembly, chair and ranking

        A. 2118--A                         43
 

     1  minority member of the senate energy and  telecommunications  committee,
     2  and  the chair and ranking minority member of the assembly corporations,
     3  authorities and commissions committee. The  report  shall  evaluate  the
     4  implications of a sale of a portion of the upstate telephone network for
     5  the  policy  of universal access to affordable service. The report shall
     6  further evaluate the standards by which the department  will  analyze  a
     7  proposed sale.
     8    §  14.  The public service law is amended by adding a new section 90-c
     9  to read as follows:
    10    § 90-c. Legislative findings. 1. The legislature finds that  deploying
    11  broadband  networks  and advanced communications services throughout New

    12  York will enable continued improvements in  healthcare,  public  safety,
    13  education,  economic  development  and  the  creation  of jobs, and will
    14  facilitate the free exchange of ideas that is vital  to  democracy.  The
    15  legislature  further finds that New York's financial services community,
    16  publishing community, higher education community, high-technology commu-
    17  nity and other world-class business communities have placed New York  at
    18  the forefront of numerous vital industries, but that to continue to be a
    19  world-class  leader,  New  York  must  adopt policies and practices that
    20  promote the roll-out and further development of broadband. Finally,  the
    21  legislature  finds  that rural areas of New York lack the multiple tele-

    22  communications connections necessary to link to outside resources during
    23  times of emergency, that broadband networks are necessary to  create  or
    24  facilitate  sustainable  telemedicine networks that connect rural health
    25  clinics to urban medical centers, and that increased government  use  of
    26  broadband  networks  and  advanced  communications services will enhance
    27  government operations  through  telemedicine  for  healthcare,  distance
    28  learning  for  education,  redundant and diversely-pathed communications
    29  networks for public safety communications and to generally  protect  the
    30  health and welfare of the state and its citizens.
    31    2.  The department shall prepare and submit, within ninety days of the

    32  effective date of this section, a  report  to  the  governor,  temporary
    33  president  of  the  senate, speaker of the assembly, minority leaders of
    34  the senate and assembly, chair and ranking minority member of the senate
    35  energy and telecommunications  committee,  and  the  chair  and  ranking
    36  minority  member  of  the assembly corporations, authorities and commis-
    37  sions committee. The report shall study  in  detail  the  actual  retail
    38  availability of wireline, wireless cellular and fixed-wireless broadband
    39  communications modalities across the state of New York, and shall organ-
    40  ize the data of such availability by census tract.
    41    3.  The  department, acting together with the empire state development

    42  corporation, shall prepare and submit, within ninety days of the  effec-
    43  tive date of this section, a report to the governor, temporary president
    44  of  the  senate, speaker of the assembly, minority leaders of the senate
    45  and assembly, chair and ranking minority member of the senate energy and
    46  telecommunications committee, and the chair and ranking minority  member
    47  of the assembly corporations, authorities and commissions committee. The
    48  report  shall list all federal, state, local, foundation, private sector
    49  and other funds, grants, loans and other funding mechanisms that can  be
    50  applied  for  and  used  by  the broadband development authority, by the
    51  state, by municipal  corporations,  by  nonprofit  corporations  and  by

    52  private sector businesses to fund broadband deployment in New York.
    53    4.  The department, acting together with the office for technology and
    54  the office of cyber security and  critical  infrastructure  coordination
    55  ("CSCIC")  shall prepare and submit, within ninety days of the effective
    56  date of this section, a report to the governor, temporary  president  of

        A. 2118--A                         44
 
     1  the  senate, speaker of the assembly, minority leaders of the senate and
     2  assembly, chair and ranking minority member of  the  senate  energy  and
     3  telecommunications  committee, and the chair and ranking minority member
     4  of the assembly corporations, authorities and commissions committee. The

     5  report shall determine the location of all areas of the state, by census
     6  tract,  that  do  not  have generally and readily commercially available
     7  retail access to broadband  wireline  facilities  and/or  fixed-wireless
     8  broadband facilities ("unserved areas"); the report shall also determine
     9  all  areas of the state, by census tract, that do not have generally and
    10  readily commercially  available  retail  access  to  broadband  wireline
    11  facilities  and/or  fixed-wireless broadband facilities from two or more
    12  telecommunications  or  advanced   communications   services   providers
    13  ("underserved  areas");  the report shall also determine the location of
    14  all areas of the state, by census tract,  that  qualify  as  "distressed

    15  areas"  under  this  chapter, and either do or do not have generally and
    16  readily commercially  available  retail  access  to  broadband  wireline
    17  facilities and/or fixed-wireless broadband facilities; the report shall,
    18  furthermore,  assess  and set forth with specificity the aggregate unmet
    19  demand for broadband services in unserved,  underserved  and  distressed
    20  areas  by  census tract and by block, lot or other uniquely identifiable
    21  administrative characteristic, and shall estimate the amount  of  broad-
    22  band  connectivity  that would need to be built or offered in such areas
    23  to meet the unmet demand.  Such  report  shall,  in  addition  to  being
    24  submitted  to  the  government offices and officials set forth above, be

    25  used to create a map in standard format to be determined by the New York
    26  geographic information systems clearinghouse and CSCIC,  and  consistent
    27  with  the  legitimate  security concerns that may be expressed by CSCIC,
    28  such map shall be a fully three-dimensional representation of all broad-
    29  band resources within the state.
    30    § 15. The public service law is amended by adding a new  section  90-d
    31  to read as follows:
    32    § 90-d. Legislative purpose. 1. The legislature finds that:
    33    (a)  the  public  interest is furthered and protected by ensuring that
    34  New York's existing Enhanced 9-1-1 ("E911") system  for  wireline  tele-
    35  phone  service  and  wireless cellular telephone service provide all the

    36  automatic number identification ("ANI") and automatic location identifi-
    37  cation ("ALI") necessary to protect public safety and respond  to  home-
    38  land  security  concerns,  and  particularly so in rural areas and on or
    39  near New York's coastlines;
    40    (b) existing emergency services systems can isolate emergency response
    41  agencies that need inter-connectivity in meeting homeland  security  and
    42  public safety crises;
    43    (c)  all  9-1-1  callers  in  New  York,  and the first responders who
    44  receive and act upon such calls, would be better  able  to  enhance  the
    45  public  safety  with flexible E911 networks that could be interconnected
    46  with local, regional and national Internet Protocol based networks,  and

    47  that  could  be  flexibly  adapted and scaled to meet the challenges new
    48  communications technology place upon E911 networks; and
    49    (d) clear lines of authority and organization in  the  deployment  and
    50  administration  of  public  safety  answering points should be a goal of
    51  state E911 policy.
    52    2. The department shall prepare and submit, within ninety days of  the
    53  date this section becomes law a report to the governor, temporary presi-
    54  dent  of  the  senate,  speaker of the assembly, minority leaders of the
    55  senate and assembly, chair and ranking minority  member  of  the  senate
    56  energy  and  telecommunications  committee,  and  the  chair and ranking

        A. 2118--A                         45
 

     1  minority member of the assembly corporations,  authorities  and  commis-
     2  sions  committee.  The  report shall study in detail the technical chal-
     3  lenges facing and potentially degrading the effectiveness of New  York's
     4  existing  E911  networks,  and shall study and report upon in detail the
     5  next-generation technological solutions,  and  national  standards,  and
     6  potentially  ameliorative  systems  and  procedures proposed by national
     7  public safety expert associations such  as,  but  not  limited  to,  the
     8  National  Emergency  Numbering  Association ("NENA"), the Association of
     9  Public-Safety Communications Officials ("APCO"), and the National Public
    10  Safety Telecommunications Council.

    11    3. The department, acting together with the state emergency management
    12  office, the state office of fire prevention and control, and  the  state
    13  police,  shall  prepare  and submit, within ninety days of the effective
    14  date of this section, a report to the governor, temporary  president  of
    15  the  senate, speaker of the assembly, minority leaders of the senate and
    16  assembly, chair and ranking minority member of  the  senate  energy  and
    17  telecommunications  committee, and the chair and ranking minority member
    18  of the assembly corporations, authorities and commissions committee. The
    19  report shall examine the current E911 systems funding mechanisms, state-
    20  wide, regional, county and local administration of E911 facilities,  the

    21  extent or lack thereof of the commission's existing regulatory authority
    22  of E911 issues in New York, and such other public safety issues directly
    23  arising  from  the current E911 implementations in New York as is neces-
    24  sary and convenient to protect the public interest.
    25    4. Within sixty days after the submission of the reports  required  by
    26  subdivisions two and three of this section, the commission shall convene
    27  a  series of public hearings to discuss New York's existing E911 systems
    28  and networks and the findings of such reports in New York to clarify the
    29  public policy issues involved that might require legislative attention.
    30    § 16. The public service law is amended by adding a new  section  90-e
    31  to read as follows:

    32    §  90-e.  Wireless  telephone  quality,  reliability and affordability
    33  study. 1.  Within one hundred eighty days of the effective date of  this
    34  section, the commission shall study and report on the quality, reliabil-
    35  ity,  and  affordability,  of  wireless telephone service, including why
    36  subdivision six of section five of this chapter should not be  repealed.
    37  The  commission  shall also, as part of such study, determine what rules
    38  and regulations shall be necessary:
    39    (a) to enhance consumer  protections  currently  offered  to  wireless
    40  telephone services consumers;
    41    (b)  to  establish and safeguard wireless telephone service quality so
    42  that it is reasonably comparable to the wireline service quality  neces-

    43  sary to safeguard citizen access to E911; and
    44    (c)  to  protect  the  public  interest,  public safety and health and
    45  welfare.
    46    2. The study shall include a detailed analysis examining  whether  the
    47  wireless telephone service providers' policies include adequate consumer
    48  protections including whether:
    49    (a)  there  is sufficient written disclosure in the company's consumer
    50  service contract with respect to the calling  area  for  the  plan,  the
    51  monthly  access  fee  or  base  charge;  the  number  of airtime minutes
    52  included in the plan; any night and weekend minutes included in the plan
    53  or other differing charges for differing time periods and the time peri-

    54  ods when night and weekend minutes or other charges apply;  the  charges
    55  for  excess  or  additional  minutes;  whether or not, and the extent to
    56  which, per-minute domestic or international long  distance  charges  are

        A. 2118--A                         46
 
     1  included in other rates, and, to the extent not included, the applicable
     2  per-minute long distance rates; per-minute roaming or off-network charg-
     3  es; the amount of any additional taxes, fees, or surcharges that will be
     4  collected or retained by the wireless telephone service provider; if the
     5  plan  requires a fixed-term contract, the duration of such contract; the
     6  amount of any early termination fee and the conditions under  which  any

     7  such  early  termination  fee  would  apply, including the length of any
     8  trial period during which no early termination fee would apply;
     9    (b) the first bill rendered by the wireless telephone service provider
    10  to the customer shall include notice of the terms on and the  period  of
    11  time  during  which  such  service  may be terminated without penalty; a
    12  statement notifying the customer that the service includes  basic  wire-
    13  less  911  service; the information which is included in the educational
    14  plan for informing the public about the enhanced wireless 911 service in
    15  New York state required by subdivision eight of  section  three  hundred
    16  twenty-eight  of  the  county  law  and  which  is an explanation of the

    17  enhanced wireless 911 system and a progress  report  on  the  county-by-
    18  county  implementation  of  the statewide system; website information to
    19  permit the consumer to access  such  information  via  the  internet  in
    20  accordance  with subdivision eight of section three hundred twenty-eight
    21  of the county law; the toll-free hotline number by which  such  informa-
    22  tion  may  be  accessed  by  the consumer in accordance with subdivision
    23  eight of section three hundred twenty-eight of the county law; and based
    24  upon customer supplied information regarding anticipated usage  patterns
    25  and  upon  such customer's request, a good faith estimate of the monthly
    26  fixed and usage charges and additional taxes, fees, or surcharges and of

    27  the anticipated total monthly bill for such customer under such plan;
    28    (c) wireless telephone service providers have  adequately  established
    29  procedures for disclosure at any point of sale or of contact with poten-
    30  tial  or  existing residential customers of maps displaying the wireless
    31  telephone service provider's outside coverage within the state and with-
    32  in each county of the state in which such provider provides service;
    33    (d) wireless telephone service providers  clearly  describe  in  plain
    34  language  the  products  and services for which charges are imposed, and
    35  shall conform to format  standards  established  by  the  board  in  the
    36  customer's monthly bill;
    37    (e) wireless telephone service providers offer customers a trial peri-

    38  od  which  after the first bill is rendered to such customer for monthly
    39  service following  service  activation  and  during  which  period  such
    40  customer  may,  after  payment for services used, terminate such service
    41  without incurring any termination fees or charges or any  other  penalty
    42  of  any kind and may, upon the return of any handset bought or leased in
    43  connection with such service, receive a pro rata refund of  any  amounts
    44  paid for such handset;
    45    (f)  wireless  telephone service providers have established procedures
    46  for the notification of residential customers at least  thirty  days  in
    47  advance of any change in rates, charges, terms, or conditions of service
    48  for such customers; and

    49    (g)  wireless  telephone service providers have established procedures
    50  for the timely prior notice to residential  customers  of  the  wireless
    51  telephone service provider's intent to terminate such customer's service
    52  such  that,  at  a minimum, such customer is fully advised of the amount
    53  which must be paid to maintain service, the procedures available to make
    54  such payments so that the termination may be  avoided  and  the  board's
    55  complaint handling procedures.

        A. 2118--A                         47
 
     1    3.  The commission shall deliver the report to the governor, temporary
     2  president of the senate, speaker of the assembly,  minority  leaders  of
     3  the senate and assembly, chair and ranking minority member of the senate

     4  energy  and  telecommunications  committee,  and  the  chair and ranking
     5  minority  member  of  the assembly corporations, authorities and commis-
     6  sions committee.
     7    4. The commission shall, at the completion of the study and simultane-
     8  ously with the delivery of the report, begin a rulemaking proceeding  to
     9  implement  such rules as may be determined during the study to be neces-
    10  sary and convenient to effectuate the requirements of subdivision one of
    11  this section.
    12    § 17. The public service law is amended by adding a new  section  90-f
    13  to read as follows:
    14    §  90-f.   Legislative findings and declaration. 1. It is hereby found
    15  and declared that universal, affordable and  high  quality  telecommuni-

    16  cations  services  that  meet the needs of individuals and businesses in
    17  the state are necessary and vital to the welfare and development of  our
    18  society.  It  is,  and  has  been  the  goal  of the state to ensure the
    19  universal availability and accessibility  of  high  quality,  affordable
    20  telecommunications services to all residents and businesses in the state
    21  and to ensure that providers of telecommunications services in the state
    22  provide  high  quality  customer  service  and  high  quality  technical
    23  service. All New York residents should be able to expect  to  receive  a
    24  similar  level  of high quality service regardless of where they live or
    25  who provides their service. The commission must make use of its  maximum

    26  authority  to  protect the public health, safety and welfare by ensuring
    27  that telephone service quality does not erode to the  point  that  E-911
    28  service  is endangered by persistent, extended, or chronic loss of dial-
    29  tone, or  by  the  failure  of  intermodal  carriers  to  provide  E-911
    30  services, or by such other erosion of service quality that would tend to
    31  undermine  the  ability of the various citizens of New York to engage in
    32  protected speech over the telephone networks and  lines  and  facilities
    33  and equipment under the jurisdiction of the commission.
    34    2.  The  commission  shall  commence a study to survey service quality
    35  practices and standards of providers of telecommunications services that

    36  will  lead  to  legislative  and  regulatory  recommendations.  For  the
    37  purposes  of  this  section,  "telecommunications  service  provider" or
    38  "provider of telecommunications services" shall mean a telephone  corpo-
    39  ration,  or other provider of telephone services, certified in the state
    40  with the authority to provide intrastate toll and local exchange service
    41  using either its own or leased facilities. The commission shall also, as
    42  part of such study, determine what rules and regulations shall be neces-
    43  sary:
    44    (a) to enhance consumer  protections  currently  offered  to  wireline
    45  telephone services consumers;
    46    (b)  to  establish and safeguard wireline telephone service quality so

    47  that it is reasonably comparable to the wireline service quality  neces-
    48  sary to safeguard citizen access to E911; and
    49    (c)  to  protect  the  public  interest,  public safety and health and
    50  welfare.
    51    3. The commission shall specifically  study  service  and  reliability
    52  issues including, but not limited to, areas of the state that experience
    53  chronic  telecommunications outages, customer service providers of tele-
    54  communication  services,  installation  of  telecommunication   services
    55  issues,  network performance, data collection by providers of telecommu-
    56  nications services, the previous effect of  performance-based  incentive

        A. 2118--A                         48
 

     1  plans  upon  service quality provided by wireline providers, whether and
     2  how the commission's pre-two thousand one service quality  and  consumer
     3  protection  rules and regulations can be expanded to be equally applica-
     4  ble  to  all  telecommunications  providers that provide E911 and in any
     5  marketing materials present their company or product  as  a  replacement
     6  for  primary  line  telephone service used by consumers in New York, and
     7  issues concerning reporting upon  service  quality  and  other  consumer
     8  protection related issues, provided however that such reporting require-
     9  ments  shall  be  examined  by  the  commission  for  methods that might
    10  decrease the cost of compliance by such telecommunications providers.

    11    4. The commission shall issue  a  report  of  its  findings  including
    12  legislative  and  regulatory  recommendations  to enhance reliability of
    13  providers of telephone service to the governor, temporary  president  of
    14  the  senate,  speaker  of the assembly, chair of the senate committee on
    15  energy and telecommunications and chair of  the  assembly  committee  on
    16  corporations,  authorities  and  commissions  within  one hundred eighty
    17  days.
    18    5. The commission shall, at the completion of the study and simultane-
    19  ously with the delivery of the report, begin a rulemaking proceeding  to
    20  implement  such rules as may be determined during the study to be neces-
    21  sary and convenient to effectuate the requirements of subdivision two of

    22  this section.
    23    § 18. Applicability of other laws. The provisions of section seven  of
    24  this  act  are  intended to be consistent with the Federal Cable Act, 47
    25  U.S.C.  §521, et. seq., and nothing in this act shall be interpreted  to
    26  prevent  a  voice  provider, cable operator or municipality from seeking
    27  clarification of its rights and obligations under federal  law.  In  the
    28  event  that any cable operator obtains relief through judicial, adminis-
    29  trative, or executive action from any obligation imposed under this act,
    30  or from any obligation in a franchise agreement that gives  rise  to  an
    31  obligation  of  another  cable  operator under this act, all other cable
    32  operators shall be deemed to be relieved of their obligations under this
    33  act within the same geographic area and to the same extent.

    34    § 19. Severability. If any provision of this act or its application to
    35  any person or circumstance is held invalid,  this  invalidity  does  not
    36  affect  other  provisions  or applications of this act that can be given
    37  effect without the invalid provision or application, and to this end the
    38  provisions of this act are declared to be severable.
    39    § 20. This act shall take effect immediately.
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