SENATE Amended 2nd Reading February 28, 2005First Regular Session Sixty-fifth General Assembly STATE OF COLORADO ENGROSSED This Version Includes All Amendments Adopted on Second Reading in the House of Introduction LLS NO. 05-0176.01 Gregg Fraser SENATE BILL 05-152 SENATE SPONSORSHIP Veiga, HOUSE SPONSORSHIP Jahn, Senate Committees House Committees Local Government A BILL FOR AN ACT Concerning local government competition in the provision of specified communications services. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Prohibits a local government from providing cable television service, telecommunications service, and high speed internet access (advanced) service to subscribers, as well as taking specified actions related to providing such services, except in specified circumstances. Allows such services to be provided if a local government:  Holds a preliminary public hearing before providing a service with notice to the public and any private provider of the service within the boundaries of the local government;  Conducts at least 2 public hearings in accordance with specified notice and other requirements for the purpose of informing the public of the local government's intent to provide the service; and  Holds an election in accordance with specified requirements on whether the local government shall provide the proposed service. Prohibits a local government from cross subsidizing its cable television, telecommunications, or advanced services with tax revenues, below-market rate loans, or other sources. Specifies requirements to account for operations of the services and provides that the books and records for the services shall be subject to audit by the state auditor. Authorizes the governing body of a local government to issue bonds to finance the capital costs for facilities necessary to provide cable television, telecommunications, or advanced service. Specifies requirements for the payment of the bonds and costs associated with the bonds. Requires a local government that provides cable television, telecommunications, or advance service to comply with all state and federal laws applicable to providing the service. Prohibits a local government from providing a service outside the boundaries of the local government, from receiving distributions from the high cost fund, and from exercising the power of eminent domain to provide a service. Specifies enforcement and appeal provisions. Specifies that local governments shall not be afforded immunity from antitrust liability with respect to cable television, telecommunications, or advanced services provided by the local government. Defines terms. Makes legislative findings and declarations. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Title 29, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW ARTICLE to read: ARTICLE 27 Competition in Utility and Entertainment Services PART 1 COMPETITION IN UTILITY AND ENTERTAINMENT SERVICES 29-27-101. Legislative declaration. (1) The general assembly hereby finds and declares that it is the policy of this state to ensure that cable television service, telecommunications service, and high speed internet access, otherwise known as advanced service, are each provided within a consistent, comprehensive, and nondiscriminatory federal, state, and local government framework. (2) The general assembly further finds and declares that: (a) There is a need for statewide uniformity in the regulation of all public and private entities that provide cable television service, telecommunications service, and advanced service. (b) Municipal ordinances, rules, and other regulations governing the provision of cable television service, telecommunications service, and advanced service by a local government impact persons living outside the municipality. (c) Regulating the provision of cable television service, telecommunications service, and advanced service by a local government is a matter of statewide concern. 29-27-102. Definitions. As used in this article, unless the context otherwise requires: (1) "Advanced service" means high-speed internet access capability in excess of one hundred forty-four kilobits per second both upstream and downstream. (2) "Cable television service" means the one-way transmission to subscribers of video programming or other programming service, as well as subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service. (3) "Local government" means any city, county, city and county, special district, or other political subdivision of this state. (4) "Private provider" means a private entity that provides cable television service, telecommunications service, or advanced service. (5) "Subscriber" means a person that lawfully receives cable television service, telecommunications service, or advanced service. (6) "Telecommunications service" has the same meaning as set forth in section 40-15-102 (29), C.R.S. 29-27-103. Limitations on providing cable television, telecommunications, and advanced services. (1) Except as provided in part 2 of this article, a local government shall not: (a) Provide to one or more subscribers cable television service, telecommunications service, or advanced service; or (b) Purchase, lease, construct, maintain, or operate any facility for the purpose of providing cable television service, telecommunications service, or advanced service to one or more subscribers. (2) For purposes of this article, a local government provides cable television service, telecommunications service, or advanced service if the local government provides the cable television service, telecommunications service, or advanced service: (a) Directly or indirectly; (b) Through an authority or instrumentality acting on behalf of the local government or for the benefit of the local government by itself; (c) Through a partnership or joint venture; (d) By contract, including a contract whereby the local government leases, sells capacity in, or grants other similar rights to a private provider to use local governmental facilities in connection with a private provider's offering of cable television service, telecommunications service, or advanced service; (e) Through the sale or purchase of resale cable television service, telecommunications service, or advanced service; or (f) Through the sale or purchase of wholesale cable television service, telecommunications service, or advanced service. PART 2 CONDITIONS FOR PROVIDING SERVICES 29-27-201. Vote - referendum. (1) Before a local government may engage or offer to engage in providing cable television service, telecommunications service, or advanced service, an election shall be called on whether or not the local government shall provide the proposed cable television service, telecommunications service, or advanced service. (2) The election shall be held at the next general election or at a local special election, the purpose of which is authorized by this section in accordance with the provisions of articles 1 to 13 of title 1, C.R.S., except as provided in this section. (3) The notice of the election shall include, with any other information required by law, a summary of the cable television service, telecommunications service, or advanced service that the governing body of the local government proposes to provide to subscribers residing within the boundaries of the local government. (4) The ballot at an election conducted pursuant to this section shall pose the question substantially as follows: "Shall the [name of the local government] provide [cable television service, telecommunications service, or advanced service] to the inhabitants of the [local government]?" The ballot proposition shall not take effect until submitted to the electors and approved by the majority of those voting on the ballot. 29-27-204. Exemption for unserved areas. (1) A local government shall be exempt from the requirements of this part 2 and may engage or offer to engage in providing cable television service, telecommunications service, or advance service if: (a) The area to be served is currently unserved by a private provider of the service; (b) The governing body of the local government has submitted a written request to provide the service to any incumbent provider of cable television service, telecommunications service, or advanced service within the boundaries of the local government; and (c) The incumbent provider has not agreed within sixty days of the receipt of a request submitted pursuant to paragraph (b) of this subsection (1) the to provide the service or, if the provider has agreed, it has not commenced providing the service within fourteen months of the receipt of the request. PART 3 COMPLIANCE WITH LOCAL, STATE, AND FEDERAL REGULATIONS 29-27-301. General operating limitations. (1) A local government that provides cable television service, telecommunications service, or advanced service under this article shall comply with all state and federal laws, rules, and regulations applicable to a private provider of cable television service, telecommunications service, or advanced service. (2) (a) A local government shall not make or grant any undue or unreasonable preference or advantage to itself or to any private provider of cable television services, telecommunications services, or advanced services. (b) A local government shall apply without discrimination as to itself and to any private provider the local government's ordinances, rules, and policies, including those relating to: (I) Obligation to serve; (II) Access to public rights-of-way; (III) Permitting; (IV) Performance bonding; (V) Reporting; and (VI) Quality of service. 29-27-302. Scope of article. (1) Nothing in this article shall be construed to authorize any local government to: (a) Provide, directly or indirectly, cable television service, telecommunications service, or advanced service; or (b) Purchase, lease, construct, maintain, or operate a facility for the purpose of providing, directly or indirectly, cable television service, telecommunications service, or advanced service. (2) Nothing in this article shall be construed to apply to a local government purchasing, leasing, constructing, or equipping facilities that are designed to provide cable television service, telecommunications service, or advanced service within the local government that the local government uses for internal governmental purposes. (3) Nothing in this article shall be construed to limit the authority of a local government to lease physical property or structures to a private company for the purpose of placing a cellular telephone antenna. 29-27-303. Enforcement and appeal. (1) Before an individual subscriber or a private provider that competes with a local government in the geographic boundaries of the local government may file an action in district court for violation of this article, that person shall file a written complaint with the local government. The failure by the local government to issue a final decision regarding the complaint within forty-five days shall be treated as an adverse decision for purposes of appeal. (2) An appeal of an adverse decision from the local government may be taken to the district court for a de novo proceeding. SECTION 2. Applicability. This act shall apply to cable television service, telecommunications service, and advanced service, and to the purchase, lease, construction, maintenance, or operation of any facility for the purpose of providing such service, for which a local government has not entered into an agreement or otherwise taken any substantial action prior to the effective date of this act to provide. SECTION 3. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.