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A01239 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                     January 7, 2021
        Introduced  by  M.  of A. CAHILL, COLTON, QUART, HYNDMAN, LAVINE, ENGLE-
          Multi-Sponsored by -- M. of A. DE LA ROSA, THIELE  --  read  once  and
          referred to the Committee on Corporations, Authorities and Commissions

        AN  ACT  to  amend  the public service law and the state finance law, in
          relation to state contracts being only with internet service providers
          compliant with net neutrality and establishes a revolving fund for the
          establishment of municipal internet service providers; and  making  an
          appropriation therefor
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. This act shall be known and may be cited as  the  "NYS  Net
     2  Neutrality Protection Act".
     3    §  2.  Subdivision 1 of section 5 of the public service law is amended
     4  by adding a new paragraph i to read as follows:
     5    i. To every broadband internet line which lies wholly within the state
     6  and that part within the state of New York of every  broadband  internet
     7  line  which  lies  partly within and partly without the state and to the
     8  persons or corporations owning, leasing or operating any such  broadband
     9  internet line.
    10    §  3.  Section  5 of the public service law is amended by adding a new
    11  subdivision 7 to read as follows:
    12    7. The commission shall require any person engaged in the provision of
    13  broadband internet access service in New York state  to  report  to  the
    14  commission, and publicly disclose annually, accurate information regard-
    15  ing  the network management practices, performance, and commercial terms
    16  of its broadband internet access services sufficient  for  consumers  to
    17  make  informed  choices  regarding use of such services and for content,
    18  application, service, and device providers to develop, market, and main-
    19  tain internet offerings.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 1239                             2
     1    § 4. Subdivision 1 of section 165 of the state finance law is  amended
     2  by adding three new paragraphs f, g and h to read as follows:
     3    f.  A "net neutral source of internet services" shall mean an internet
     4  service provider who adheres to the principles of net neutrality.
     5    g. A "non-net neutral source  of  internet  services"  shall  mean  an
     6  internet  service  provider  who  violates  any of the principles of net
     7  neutrality.
     8    h. "The principles of net neutrality" shall mean the rules  and  regu-
     9  lations  under the open internet report and order on remand, declaratory
    10  ruling, and order by  the  federal  communications  commission  released
    11  March twelfth, two thousand fifteen, GN Docket No. 14-28.
    12    §  5.  Section 165 of the state finance law is amended by adding a new
    13  subdivision 9 to read as follows:
    14    9. Prohibition on purchase of internet services from a non-net neutral
    15  source of internet services.
    16    a. (i) With respect to contracts described in subparagraphs  (ii)  and
    17  (iii)  of this paragraph, and in accordance with such subparagraphs, the
    18  state and any governmental agency or  political  subdivision  or  public
    19  benefit  corporation or municipality of the state shall not contract for
    20  the supply of internet services with any contractor who does  not  agree
    21  to  stipulate  to the following, if there is another contractor who will
    22  contract to supply internet services of comparable quality at a compara-
    23  ble price or cost, the contractor and any individual or legal entity  in
    24  which  the  contractor holds a ten percent or greater ownership interest
    25  and any individual or legal entity that holds a ten percent  or  greater
    26  ownership  interest  in  the  contractor shall make lawful steps in good
    27  faith to conduct any business operations as  a  net  neutral  source  of
    28  internet services.
    29    (ii)  In  the case of contracts let by a competitive process, whenever
    30  the responsive and responsible offerer having the lowest price  or  best
    31  value  offer  has not agreed to stipulate to the conditions set forth in
    32  this subdivision and another responsive and responsible offerer who  has
    33  agreed  to  stipulate  to  such  conditions has submitted an offer shall
    34  determine that the contract be awarded to the lowest price or best value
    35  offer for internet services  from  a  net  neutral  source  of  internet
    36  services.
    37    (iii) In the case of contracts let by other than a competitive process
    38  internet services involving an expenditure of an amount greater than the
    39  discretionary  buying  threshold  as  specified  in  section one hundred
    40  sixty-three of this article, the contracting entity shall not award to a
    41  proposed contractor who has not agreed to stipulate  to  the  conditions
    42  set  forth  in  this  subdivision  unless  the entity seeking to use the
    43  internet services determines that the internet  services  are  necessary
    44  for  the entity to perform its functions and there is no other responsi-
    45  ble contractor who will supply internet services of  comparable  quality
    46  at  a comparable price. Such determinations shall be made in writing and
    47  shall be public documents.
    48    b. Upon receiving information that a contractor who has made the stip-
    49  ulation required by  this  subdivision  is  in  violation  thereof,  the
    50  contracting  entity shall review such information and offer the contrac-
    51  tor an opportunity to respond. If the contracting entity  finds  that  a
    52  violation  has occurred, it shall take such action as may be appropriate
    53  and provided for by law, rule or contract, including,  but  not  limited
    54  to,  imposing  sanctions,  seeking  compliance,  recovering  damages  or
    55  declaring the contractor in default.

        A. 1239                             3
     1    c. As used in this subdivision, the term "contract" shall not  include
     2  contracts  with  governmental  and  non-profit  organizations, contracts
     3  awarded pursuant  to  emergency  procurement  procedures  or  contracts,
     4  resolutions,  indentures,  declarations  of  trust  or other instruments
     5  authorizing  or  relating to the authorization, issuance, award, sale or
     6  purchase of bonds, certificates of indebtedness, notes or  other  fiscal
     7  obligations,  provided  that  the  policies of this subdivision shall be
     8  considered when selecting a contractor to  provide  financial  or  legal
     9  advice, and when selecting managing underwriters in connection with such
    10  activities.
    11    d. The provisions of this subdivision shall not apply to contracts for
    12  which  the state or other contracting entity receives funds administered
    13  by the United States, except to the extent congress has directed to  not
    14  withhold  funds  from  states  and  localities  that choose to implement
    15  selective purchasing policies based on an agreement to comply  with  the
    16  principles  of  net neutrality, or to the extent that such funds are not
    17  otherwise withheld by congress.
    18    § 6. The state finance law is amended by adding a new section 99-ii to
    19  read as follows:
    20    § 99-ii. Municipal internet service provider revolving loan fund.   1.
    21  There  is hereby established in the joint custody of the comptroller and
    22  the public service commission a fund  to  be  known  as  the  "municipal
    23  internet  service provider revolving loan fund". Such fund shall consist
    24  of moneys made available pursuant to appropriation and any other sources
    25  in order to provide support  for  municipalities  attempting  to  create
    26  their own internet service provider.
    27    2.  The  account  shall  consist  of  all  moneys appropriated for its
    28  purpose, all moneys transferred to such account pursuant to law, and all
    29  moneys required by this section or any other law  to  be  paid  into  or
    30  credited  to  this account, including all moneys received by the account
    31  or donated to it, payments of principal and interest on loans made  from
    32  the account, and any interest earnings which may accrue from the invest-
    33  ment or reinvestment of moneys from the account.
    34    3.  Moneys  of  the account, when allocated, shall be available to the
    35  public service commission to make loans as provided in this section.  Up
    36  to  five percent of the moneys of the account or two hundred fifty thou-
    37  sand dollars, whichever is less,  may  be  used  to  pay  the  expenses,
    38  including  personal service and maintenance and operation, in connection
    39  with the administration of such loans.
    40    4. (a) The public service commission may make, upon  application  duly
    41  made,  up  to  the amounts available by appropriation, loans for any and
    42  all costs associated with the creation of a municipally owned  broadband
    43  internet service provider.
    44    (b)  The  public  service commission shall have the power to make such
    45  rules and regulations as may be necessary and proper to  effectuate  the
    46  purposes of this section.
    47    5.  (a)  Application for loans may be made by a town, village, city or
    48  county provided that the application is otherwise  consistent  with  its
    49  respective powers.  Applications may also be submitted jointly by multi-
    50  ple  applicants  provided  that  the application is otherwise consistent
    51  with each applicant's respective powers.
    52    (b) Every application shall be in a  form  acceptable  to  the  public
    53  service  commission.  Every  application  shall  accurately  reflect the
    54  conditions which give rise to the proposed  expenditure  and  accurately
    55  reflect the ability of the applicant to make such an expenditure without
    56  the proceeds of a loan under this section.

        A. 1239                             4
     1    (c)  (i)  The public service commission shall give preference to those
     2  applications which demonstrate the greatest  need,  joint  applications,
     3  and  to  those applications the proceeds of which will be applied toward
     4  attaining compliance with federal and state laws and may disapprove  any
     5  application  which  contains  no adequate demonstration of need or which
     6  would result in inequitable or inefficient use  of  the  moneys  in  the
     7  account.
     8    (ii) In making determinations on loan applications, the public service
     9  commission  shall assure that loan fund moneys are equitably distributed
    10  among all geographical areas of the state.
    11    (d) The public service commission shall, to the maximum extent  feasi-
    12  ble,  and  consistent with the other provisions of this section, seek to
    13  provide that loans authorized by this  section  reflect  an  appropriate
    14  geographic   distribution,   are  distributed  equitably  and  encourage
    15  regional cooperation.
    16    § 7. The sum of two hundred fifty million dollars  ($250,000,000),  or
    17  so  much  thereof  as  may be necessary, is hereby appropriated from any
    18  moneys in the state treasury in the general fund to the  credit  of  the
    19  state purposes account for the initial capital of the municipal internet
    20  service  provider  revolving loan fund in carrying out the provisions of
    21  this act. Such sum shall be payable on the  audit  and  warrant  of  the
    22  state  comptroller  on  vouchers  certified  or  approved  in the manner
    23  provided by law. No expenditure shall be made  from  this  appropriation
    24  until  a  certificate of approval of availability shall have been issued
    25  by the director of the budget and filed with the state comptroller and a
    26  copy filed with the chairman of the senate  finance  committee  and  the
    27  chairman  of the assembly ways and means committee. Such certificate may
    28  be amended from time to time by the director of the budget and a copy of
    29  each such amendment shall be  filed  with  the  state  comptroller,  the
    30  chairman  of the senate finance committee and the chairman of the assem-
    31  bly ways and means committee.
    32    § 8. This act shall take effect immediately.
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