SB192 By Senators Whatley and Dial RFD Transportation and Energy Rd 1 14-FEB-17

SYNOPSIS: Existing law places certain restrictions on a public provider of municipal telecommunications services or other services that is a municipality or a municipal instrumentality.

This bill would propose an amendment to the Constitution of Alabama of 1901, relating to Lee County, to remove restrictions on the service area of a public provider of municipal telecommunications services or other services that is a municipality or a municipal instrumentality in the county.

This bill would further allow the public provider to provide cable systems, telecommunications equipment and systems, furnish cable service, interactive computer service, Internet access, other Internet services, advanced telecommunications service, and other services, or any combination thereof without the restrictions as to coverage area.

This bill would provide that a public provider intending to serve an area outside of its jurisdiction would give notice to the private provider or providers that serve the area.

This bill would provide that a public provider would only be allowed to serve the area or areas in the county in which the public provider is headquartered or in a contiguous county and would limit service to Internet, cable, and phone.

This bill would provide the sources of funding that could be used by a public provider to provide service outside of its municipal boundaries and would provide that the public provider would be responsible for all taxes and fees due in that area under certain conditions.

A BILL TO BE ENTITLED AN ACT

To propose an amendment to the Constitution of Alabama of 1901, relating to Lee County; to remove certain restrictions on public providers of municipal telecommunications services and other services and further provide for the delivery of services; to require notice be given to private providers by public providers intending to expand coverage; to restrict the coverage area of public providers; to limit the sources of funding; and to subject the public provider to all taxes and fees due in the area where it provides service outside of its municipal boundaries under certain conditions.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. The following amendment to the Constitution of Alabama of 1901, is proposed and shall become valid as a part of the Constitution when all requirements of this act are fulfilled:

PROPOSED AMENDMENT

Section I. This amendment shall apply only to a public provider located in Lee County.

Section II. For the purposes of this amendment, the following terms have the following meanings:

(1) ADVANCED TELECOMMUNICATIONS CAPABILITY. Without regard to any transmission media or technology, high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.

(2) ADVANCED TELECOMMUNICATIONS SERVICE. Without regard to any transmission media or technology, the provision of high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.

(3) ALARM MONITORING SERVICE. A service that uses a device located at a residence, place of business, or other fixed premises for both of the following purposes:

a. To receive signals from other devices located at or about the premises regarding a possible threat at the premises to life, safety, or property, from burglary, fire, vandalism, bodily injury, or other emergency.

b. To transmit a signal regarding any threat by means of transmission facilities of a public provider, local exchange carrier, or one of its affiliates to a remote monitoring center to alert a person at the center of the need to inform the customer or another person or police, fire, rescue, security, or public safety personnel of the threat, but does not include a service that uses a medical monitoring device attached to an individual for the automatic surveillance of an ongoing medical condition.

(4) BROADBAND. Having the capability of supporting, in both the provider-to-consumer (downstream) and the consumer-to-provider (upstream) directions, a speed (in technical terms, bandwidth) in excess of 200 kilobits per second (kbps) in the last mile.

(5) CABLE SERVICE. A service that provides both of the following:

a. The one-way or bi-directional transmission to subscribers of video programming or other programming service.

b. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, including, without limitation, digital services, utilization of fiber optics, broadband services, use of data packets, and use of wireless methods to provide cable service.

(6) CABLE SYSTEM. A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community. The term does not include any of the following:

a. A facility that serves only to retransmit the television signals of one or more television broadcast stations.

b. A facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of Chapter 5 of Title 47, U.S.C., as the provisions thereof read on August 1, 2000, except that such facility shall be considered a cable system to the extent the facility is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on-demand services.

c. An open video system that complies with the provisions of 47 U.S.C. §573, as the provisions thereof read on August 1, 2000.

d. Any facilities of any electric utility used for operating its electric utility system.

(7) CAPITAL COSTS. All costs of providing a service which are capitalized in accordance with generally accepted governmental accounting principles.

(8) CUSTOMER PREMISES EQUIPMENT. Equipment employed on the premises of a person, other than a telecommunications service provider, to originate, route, or terminate telecommunications.

(9) DIRECT COSTS. Those expenses of a public provider which are directly attributable to the provision of a service that would be eliminated if the provision of the service were discontinued.

(10) FRANCHISING AUTHORITY. Any municipality or municipal instrumentality empowered by law to grant a franchise.

(11) GENERALLY ACCEPTED GOVERNMENTAL ACCOUNTING PRINCIPLES. The accounting standards promulgated from time to time by the Governmental Accounting Standards Board.

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

(13) INTERACTIVE COMPUTER SERVICE. Any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and the systems operated or services offered by libraries or educational institutions.

(14) INTERNET. The international computer network of both federal and nonfederal interoperable packet switched data networks.

(15) MUNICIPAL INSTRUMENTALITY. Any one or more public corporations located in Lee County incorporated pursuant to the provisions of any of the following:

a. Article 9, Chapter 50, Title 11, Code of Alabama 1975.

b. Article 15, Chapter 50, Title 11, Code of Alabama 1975.

c. Chapter 7, Title 39, Code of Alabama 1975.

d. A local act providing that the governing body of the public corporation is to be appointed by the governing body of a municipality located in Lee County and that the public corporation is authorized to furnish electric service to consumers for ultimate consumption.

e. Chapter 50A, Title 11, Code of Alabama 1975.

(16) MUNICIPALITY. Any incorporated city or town located in Lee County.

(17) PRIVATE PROVIDER. Any person, firm, partnership, corporation, or association offering service, other than a municipality or municipal instrumentality.

(18) PUBLIC PROVIDER. Any municipality or municipal instrumentality located in Lee County.

(19) SUBSCRIBER. Any person or entity lawfully receiving cable service provided by a private provider or public provider by means of or in connection with a cable system.

(20) TELECOMMUNICATIONS. The transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

(21) TELECOMMUNICATIONS CARRIER. Any provider of telecommunications services, except that such term does not include aggregators of telecommunications services as defined in 47 U.S.C. §226 as the provisions thereof read on August 1, 2000.

(22) TELECOMMUNICATIONS EQUIPMENT. Equipment, other than customer premises equipment, used by a provider of telecommunications to provide telecommunications services, and includes software integral to such equipment, including upgrades.

(23) TELECOMMUNICATIONS SERVICE. The offering of telecommunications, including servicing and repairing related equipment, for a fee regardless of the facilities used, including, but not limited to, voice, data, imaging, and video transmissions.

Section III. (a)(1) In addition to all other powers, rights, and authority heretofore granted by law, public providers may acquire, establish, purchase, construct, maintain, enlarge, extend, lease, improve, and operate cable systems, telecommunications equipment and telecommunications systems, and furnish cable service, interactive computer service, Internet access, other Internet services, and advanced telecommunications service, or any combination thereof.

(2) Public providers may furnish to the public directly Internet access, other Internet services, meter reading services, appliance, equipment, or facilities monitoring, alarm monitoring service and other security monitoring, surveillance or monitoring services, and billing and financial services.

(3) Any public provider which engages in the installation of alarm systems and any individuals who are employed by the public provider and who engage in the installation of alarm systems for customers of the public provider must comply with the rules and regulations of the Alabama Electronic Security Board of Licensure created pursuant to Section 34-1A-2, Code of Alabama 1975, to the same extent as a private installer of alarm systems for so long as the same may apply to private installers of alarm systems.

(4) a. The governing body of any municipality, by ordinance to be entered on its minutes, and any other public provider, by appropriate action of its governing body to be entered on its minutes, may lease to others any of its cable system and telecommunications equipment not needed for public or municipal purposes and may couple the lease with the provision of cable service, interactive computer service, Internet access, other Internet services, and telecommunications service, or any combination thereof.

b. A lease made, in the case of a municipality, by the mayor in accordance with the ordinance, or in the case of a municipal instrumentality, by the duly authorized officer, officers, or agents of the municipal instrumentality, shall be binding for the term specified in the lease, not to exceed a period of 25 years.

(5) a. Any public provider that acquires a cable system, telecommunications equipment, or telecommunications system for purposes of furnishing to others cable service, interactive computer service, Internet access, other Internet services, and telecommunications service, or any combination thereof, shall provide, to any requesting telecommunications carrier or any electric cooperative exercising any power enumerated in Article 2, Chapter 6, Title 37, Code of Alabama 1975, or an affiliate of an electric cooperative, for the provision of telecommunications service, nondiscriminatory access to any of the public provider's telecommunications equipment not needed for public or municipal purposes or used by the public provider in the provision of telecommunications service to others on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory.

b. A public provider shall make available any of its telecommunications equipment not needed for public or municipal purposes or used by the public provider in the provision of telecommunications service to others on an unbundled basis to requesting telecommunications carriers and electric cooperatives exercising any power enumerated in Article 2, Chapter 6, Title 37, Code of Alabama 1975, or an affiliate of an electric cooperative, upon terms and conditions that are just, reasonable, and nondiscriminatory, provided the electric cooperative or affiliate of an electric cooperative makes available any of its telecommunications equipment not needed for its purposes to the public provider upon terms and conditions that are just, reasonable, and nondiscriminatory.

(6) Every public provider may acquire, establish, purchase, construct, maintain, enlarge, extend, lease, improve, and operate cable systems, telecommunications equipment, and telecommunications systems, and may furnish cable service, interactive computer service, Internet access, other Internet services, and telecommunications service, or any combination thereof, for the use of the public provider, and in the case of a public provider that is a municipality, any department or agency of the municipality, any public corporation, board, or authority that is an agency, department, or municipal instrumentality, and any public school located within the corporate limits or police jurisdiction of the municipality; and in the case of a public provider that is a municipal instrumentality, any department or agency of the municipality in which the municipal instrumentality was organized, and any public school located within the corporate limits or police jurisdiction of the municipality in which the municipal instrumentality was organized.

(7) Nothing contained in this amendment shall affect the authority of state or local governmental agencies to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way.

(b) If a public provider intends to serve an area outside of its jurisdiction or municipal boundaries, the public provider shall give a 12-month notice of the intent of the public provider to serve an area so that any private provider currently serving the area may determine if it will serve the area with the same level or capacity of service to be provided by the public provider.

(c)(1) A public provider may serve an area or areas in the county in which the public provider is headquartered and in an area or areas within any contiguous county of the county in which the public provider is headquartered.

(2) A public provider authorized by this amendment to provide service may only provide service for Internet, cable, or phone, or any combination thereof, and may not provide service for the purposes of this amendment for power, water, or any other service the public provider offers.

(d)(1) Nothing in this amendment shall be interpreted to prohibit the use of public funds or alter the full faith and credit of a municipality under Section 11-50B-9, Code of Alabama 1975.

(2) Nothing in this amendment shall be interpreted to restrict a municipality from accessing federal or state funding provided on a formula or competitive basis, including funds derived from the Universal Service Fund, USDA Rural Development, or the National Telecommunications and Information Administration.

(e) No public funds shall be used to finance the expansion of a public provider, only revenue bonds, cash, grants, loans, or matching dollars may be used as a source of financing.

(f) A municipality that provides service outside of its municipal boundaries as of January 31, 2016, shall pay all taxes and fees that would be due if it were any other entity.

Section 2. An election upon the proposed amendment shall be held in accordance with Amendment 555 to the Constitution of Alabama of 1901, now appearing as Section 284.01 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, and the election laws of this state.

Section 3. The appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot and shall set forth the following description of the substance or subject matter of the proposed constitutional amendment:

"Relating to Lee County, proposing an amendment to the Constitution of Alabama of 1901, to remove certain restrictions on public providers of municipal telecommunications services and other services and further provide for the delivery of services; to require notice be given to private providers by public providers intending to expand coverage; to restrict the coverage area of public providers; to limit the sources of funding; and to subject the public provider to all taxes and fees due in the area where it provides service outside of its municipal boundaries under certain conditions.

"Proposed by Act _________"

This description shall be followed by the following language:

"Yes ( ) No ( )."

Constitutional Amendments

Public Providers

Telecommunications

Municipalities

Internet

Cable Television

Telephones

Corporations

Counties