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A01958 Summary:

BILL NOA01958
 
SAME ASSAME AS S02880
 
SPONSORPretlow
 
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 2017"; reforms the competitive cable service, promotes the wide-spread development of high-capacity broadband internet access, and increases the availability and quality of services in this key economic development area and ensures the safety, reliability and affordability of telecommunications services.
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A01958 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1958
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 17, 2017
                                       ___________
 
        Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
          tee on Corporations, Authorities and Commissions
 
        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 2017".
     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
    17  investment in telecommunications infrastructure and, as  many  years  of
    18  experience  have  shown,  adequate  staffing provided by trained, career
    19  employees operating under the applicable safety codes and regulations.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07364-01-7

        A. 1958                             2
 
     1    b. While  the  state's  long-standing  mission  has  been  to  provide
     2  universal, affordable and reliable service to all New Yorkers, all citi-
     3  zens  of  the state do not have equal access to communications technolo-
     4  gies that are becoming the standard bearers for  the  21st  century.  In
     5  fact, the state lags behind in deploying communication networks that are
     6  the  foundation  of modern telecommunications. The lack of deployment of
     7  high-capacity telecommunications infrastructure  services  ("broadband")
     8  in rural, underserved, unserved, economically distressed and other areas
     9  of the state is affected with a public interest; the rates, services and
    10  operations  of  cable  television  companies  are affected with a public
    11  interest and it is imperative that the state fairly regulate cable tele-
    12  vision services in the interest of the public, and; the public  interest
    13  is  furthered by comprehensive action in the area of telecommunications,
    14  and by the state's continued promotion of universally available telecom-
    15  munications services of  adequate  service  quality  and  at  affordable
    16  rates,  particularly  in  rural, high-cost and low income areas, and the
    17  state's entry into promoting the universal availability and physical and
    18  social access to  high-quality  broadband  and  advanced  communications
    19  services at affordable rates.
    20    c.   The  deployment  of  high-capacity  broadband  telecommunications
    21  networks and advanced communications networks throughout New  York  will
    22  promote  improvements  in healthcare, public safety, education, consumer
    23  choice, and the economy.
    24    d. State action and public-private  partnerships  will  be  needed  to
    25  deepen  investment  in,  promote  demand for, stimulate adoption of, and
    26  remove barriers to the development of universally  deployed  world-class
    27  high-capacity  broadband  networks,  providing  services to business and
    28  residential consumers in all areas of the state  at  competitive  prices
    29  with adequate service quality.
    30    e.  Reasonably  unfettered  access  of  the citizenry to the maximally
    31  diverse Internet is in the public interest, consistent however with  the
    32  need  or  company choice of telecommunications providers to block, limit
    33  or otherwise restrict the passage of electronic mail messages  or  other
    34  content that transmit, portray, describe, represent or otherwise contain
    35  matters  such  as child pornography or similar obscenity, other unlawful
    36  material, threats of serious bodily harm, threats to the  public  safety
    37  and  homeland  security,  threats  of  death to individuals or groups of
    38  individuals, viruses or similar computer  generated  programs  or  codes
    39  that have the potential to harm computer hardware and/or software and/or
    40  networks, excessive unsolicited commercial email that degrades or inter-
    41  feres  with  or  harms  the  normal operation of broadband networks, and
    42  other similar types or forms of  material  or  software  (the  foregoing
    43  examples  are  illustrative,  not  exhaustive  of  such threats to users
    44  and/or the network).
    45    2. a. New cable television services regulation is  necessary  to:  (i)
    46  promote  adequate,  affordable and efficient cable television service to
    47  the citizens and residents of the  state;  (ii)  encourage  the  optimum
    48  development  of the educational, government and community-service poten-
    49  tials of the cable television medium; (iii) provide just and  reasonable
    50  rates  for  cable  television service without geographic discrimination;
    51  (iv) protect the interests  of  the  municipalities  of  this  state  in
    52  relation  to  the  issuance  of municipal consents for the operations of
    53  cable television companies in those jurisdictions; (v)  to  protect  the
    54  right  of  consumers  to  access  the  lawful  internet content of their
    55  choice, to run applications and use services of their choice, subject to
    56  the requirements of law enforcement, and  to  connect  their  choice  of

        A. 1958                             3

     1  legal  devices  that  do  not  harm the network; and (vi) cooperate with
     2  other states and with the federal government in promoting and coordinat-
     3  ing efforts to regulate  cable  television  effectively  in  the  public
     4  interest.
     5    b.  Competition  in the provisioning of cable service is emerging with
     6  the convergence of preexisting and new technologies for providing voice,
     7  video and data services, which results in increased  investment  in  the
     8  state, lower prices and improved service offerings for consumers.
     9    c. Increased investment and the potential for competition in the cable
    10  service  market  through the provisioning of new communications services
    11  and  deployment  of  advanced  communications   infrastructure   further
    12  enhances  economic  opportunities, public safety, and the overall health
    13  and well-being of the residents of the state.
    14    d. State-issued franchises for the provision  of  cable  service  will
    15  promote  and  facilitate the deployment of advanced technologies and new
    16  services to all classes of communities and protect New York's ability to
    17  compete in the national and international marketplace for  industry  and
    18  jobs.
    19    e.  Modifying  existing cable service regulation through the enactment
    20  of new standards and procedures that provide consumers with access to  a
    21  competitive  facilities-based  cable  market  and also preserves munici-
    22  palities historic authority to manage public  rights-of-way,  collect  a
    23  franchise  fee  up  to  five percent of gross revenue, administer public
    24  educational and government access channels, enforce consumer protections
    25  and ensure competitive cable services are delivered in a  nondiscrimina-
    26  tory manner is warranted in this state.
    27    f. Nothing in this act shall be seen to limit or reduce the protection
    28  afforded  to  cable  television  customers,  broadband internet services
    29  customers, telephone customers, and customers of advanced communications
    30  services generally, and it is in the  public  interest  to  ensure  that
    31  customers  continue  to  be provided a high level of customer protection
    32  and customer service in a more competitive market.
    33    3. Therefore, the legislature declares that the state needs to  funda-
    34  mentally  reform  the  three  key pillars of its vast telecommunications
    35  system--telephone, broadband internet access  and  cable  television--to
    36  provide  21st  Century technology to all New Yorkers that is safe, reli-
    37  able and affordable.
    38    § 3.   Article 11 and sections 4000,  4001  and  4002  of  the  public
    39  authorities  law, article 11 as renumbered by chapter 168 of the laws of
    40  1975 and sections 4000, 4001 and 4002 as renumbered by  chapter  182  of
    41  the  laws of 2005, are renumbered article 12 and sections 4200, 4201 and
    42  4202 and a new article 11 is added to read as follows:
    43                                 ARTICLE 11
    44                       BROADBAND DEVELOPMENT AUTHORITY
    45  Section 4100. Short title.
    46          4101. Broadband development authority.
    47          4102. Definitions.
    48          4103. Powers of the authority.
    49          4104. Board of directors.
    50          4105. Broadband development and deployment council.
    51          4106. Applications for broadband deployment financing; responsi-
    52                  bilities of the applicant to provide safe, reliable  and
    53                  affordable service.
    54          4107. Bonds and notes of the authority.
    55          4108. Bonds and notes; personal liability.

        A. 1958                             4
 
     1          4109. Rights  of  authority  to  fulfill  terms of agreement not
     2                  limited, altered, or impaired.
     3          4110. Remedies of bondholders and noteholders.
     4          4111.  Grants  or  loans  of  public or private funds or in-kind
     5                   material.
     6          4112. Exemption from taxes and assessments.
     7          4113. Broadband and advanced communications development fund.
     8          4114. Appropriations by any government or municipal corporation.
     9          4115. Conveyance, lease or transfer of property  by  a  city  or
    10                  county to the authority.
    11          4116. Actions against the authority.
    12          4117. Audit power and contract approval by the comptroller.
    13          4118. Annual report.
    14          4119. Effect of inconsistent provisions.
    15          4120. Severability.
    16    §  4100.  Short title. This article shall be known and may be cited as
    17  the "broadband development authority act".
    18    § 4101. Broadband development authority.  1. The New York state broad-
    19  band development authority is established  in  order  to  encourage  the
    20  provision  of  affordable  and  reliable broadband services and networks
    21  that will:
    22    (a) ensure the long term growth of and the enhancement and delivery of
    23  services by business, educational, medical, commercial,  nonprofit,  and
    24  governmental  entities  in unserved, underserved and distressed areas in
    25  New York;
    26    (b) benefit residential, commercial, public, governmental, and nonpro-
    27  fit entities in unserved, underserved and distressed areas in New  York;
    28  and
    29    (c)  to  advance  the  availability  of,  and promote the physical and
    30  social access to, broadband and other advanced  communications  services
    31  to  all  consumers,  including  those in low income, rural, insular, and
    32  high cost areas at rates that are reasonably comparable to those charged
    33  in high-density urban areas and/or in the area of the state  where  such
    34  services  are  most competitively priced; and to increase access to, and
    35  the ubiquity of, advanced telecommunications services available  to  the
    36  public in an equitable and nondiscriminatory manner.
    37    2.  The  authority shall administer the broadband development program,
    38  and shall, through the  broadband  development  and  deployment  council
    39  created in section forty-one hundred five of this article, work to build
    40  and facilitate local technology and social access planning entities, and
    41  partnerships  with  broadband internet services providers and technology
    42  companies, and the private and nonprofit  sectors  generally,  and  such
    43  other  programs  as are reasonably calculated to facilitate the authori-
    44  ty's achievement of its statutory duties.
    45    § 4102. Definitions. 1. "Authority" means the New York state broadband
    46  development authority created under section  forty-one  hundred  one  of
    47  this article.
    48    2.  "Unserved  area"  means any part of a municipality without readily
    49  and generally available retail consumer access to a facilities-based  or
    50  fixed  wireless  broadband  services  provider. For the purposes of this
    51  section, the definition of wireless broadband services  providers  shall
    52  not include subscription satellite service.
    53    3. "Underserved area" means any part of a municipality without readily
    54  and  generally  available retail consumer access to at least two or more
    55  nonaffiliated facilities-based or fixed wireless broadband  telecommuni-

        A. 1958                             5
 
     1  cations  services  providers.  Wireless  shall  not include subscription
     2  satellite service.
     3    4. "Broadband" means the transmission of information, between or among
     4  points  specified  by  the  user,  with or without change in the form or
     5  content of the information as sent and received,  at  minimum  rates  of
     6  transmission  of  two megabits per second downstream and one megabit per
     7  second upstream, or one hundred  fifty  percent  of  those  transmission
     8  rates  defined  by the Federal Communications Commission as "broadband,"
     9  or at those synchronous upstream and downstream  transmission  rates  as
    10  may be recommended by the broadband council from time to time, whichever
    11  is fastest in speed.
    12    5.  "Broadband  carrier"  means  any  provider  of broadband services,
    13  except aggregators of broadband services,  as  defined  in  section  two
    14  hundred twenty-six of the nineteen hundred ninety-six telecommunications
    15  act.
    16    6.  "Broadband  infrastructure"  means  all  equipment and facilities,
    17  including all changes, modifications, and expansions to existing facili-
    18  ties, as well as the customer premises equipment used to provide  broad-
    19  band,  and  any  software  integral  to  or  related  to the operations,
    20  support, facilitation, or interconnection of such  equipment,  including
    21  upgrades, and any installation, operations and support, maintenance, and
    22  other functions required to support the delivery of broadband.
    23    7.  "Broadband  service"  means  the  offering  of broadband for a fee
    24  directly to the public, or to such classes of users  as  to  be  readily
    25  available directly to the public, regardless of the facilities used.
    26    8.  "Open network" means any broadband infrastructure which is open to
    27  any third party users in a nondiscriminatory manner on a fair and  equi-
    28  table basis using publicly available access tariffs for services.
    29    9.  "Open  network  interfaces"  means  the  technical and operational
    30  means, manners, and methods for any third party access to the  broadband
    31  infrastructure,  which  shall  be  provided  on  the  basis of generally
    32  acceptable industry standards available at the time of access.
    33    10. "Distressed area" means:
    34    (a) a census tract or tracts or block numbering area or areas or  such
    35  census tract or block numbering area contiguous thereto which, according
    36  to the most recent census data available, has:
    37    (i)  a  poverty  rate of at least twenty percent for the year to which
    38  the data relates or at least  twenty  percent  of  households  receiving
    39  public assistance; and
    40    (ii)  an  unemployment  rate  of  at least one and a quarter times the
    41  statewide unemployment rate for the year to which the data relates; or
    42    (b) a city, town, village or county within a city with a population of
    43  one million or more for which:
    44    (i) the ratio of the full value property wealth, as determined by  the
    45  comptroller  for  the  year nineteen hundred ninety, per resident to the
    46  statewide average full value property wealth per resident; and
    47    (ii) the ratio of the income per resident; as shown  in  the  nineteen
    48  hundred  ninety census to the statewide average income per resident; are
    49  each fifty-five percent or less of the statewide average; or
    50    (c) an area which was designated an empire zone  pursuant  to  article
    51  eighteen-B of the general municipal law.
    52    11. "Dark fiber" means fiber optic cable that is not lighted by lasers
    53  or other electronic equipment.
    54    12. "Comptroller" means the comptroller of the state of New York.
    55    13.  "Board" means the board of directors created under section forty-
    56  one hundred four of this article.

        A. 1958                             6
 
     1    14. "Fund" means the broadband and advanced communications development
     2  fund created under section forty-one hundred thirteen of this article.
     3    15. "Broadband council" means the broadband development and deployment
     4  council as created under section forty-one hundred five of this article.
     5    16.  "Current  generation broadband service" means the transmission of
     6  signals at a rate of at least one million five hundred thousand bits per
     7  second to the subscriber and at least  two  hundred  thousand  bits  per
     8  second from the subscriber.
     9    17.  "Next  generation  broadband  service"  means the transmission of
    10  signals at a rate of at least twenty-two million bits per second to  the
    11  subscriber and at least ten million bits per second from the subscriber.
    12    18. "Qualified equipment" means equipment capable of providing current
    13  generation  broadband  services or next generation broadband services at
    14  any time to each subscriber who is utilizing such services.
    15    19. "Qualified expenditure" means any amount chargeable to the capital
    16  account with respect to  the  purchase  and  installation  of  qualified
    17  equipment,  including  any  upgrades  thereto, for which depreciation is
    18  allowable under section 168 of the Internal Revenue Code.
    19    20. "Underserved subscriber" means a retail  consumer  residing  in  a
    20  dwelling located in an unserved or underserved area.
    21    21.  "Underserved  structure"  means  a multi-family housing unit or a
    22  multiple-dwelling housing unit located in  an  unserved  or  underserved
    23  area.
    24    § 4103. Powers of the authority. 1. The general powers of the authori-
    25  ty  under  this  article  include  all  those necessary to carry out and
    26  effectuate the purposes of this article, including, but not limited  to,
    27  the following:
    28    (a)   to  invest  any  money  of  the  authority  at  the  authority's
    29  discretion, in any obligations determined proper by the  authority,  and
    30  to name and use depositories for the authority's money;
    31    (b) to receive and distribute federal, state or local funding, includ-
    32  ing grants, loans, and appropriations;
    33    (c) to make expenditures necessary to carry out the authority's duties
    34  under this article, including paying the authority's operating expenses;
    35    (d)  to sue and be sued, implead and be impleaded, complain and defend
    36  in all courts;
    37    (e) to adopt, use and alter at will a corporate seal;
    38    (f) to acquire, purchase, hold, use, lease or otherwise dispose of any
    39  project and property, real, personal or mixed, tangible  or  intangible,
    40  or  any  interest  therein  necessary  or desirable for carrying out the
    41  purposes of the authority, and, without limitation of the foregoing,  to
    42  lease  as lessee, any project and any property, real, personal or mixed,
    43  or any interest therein, at such annual rental and  on  such  terms  and
    44  conditions  as  may be determined by the board and to lease as lessor to
    45  any person, any project and  any  property,  real,  personal  or  mixed,
    46  tangible or intangible, or any interest therein, at any time acquired by
    47  the  authority,  whether  wholly  or partially completed, at such annual
    48  rental and on such terms and conditions as  may  be  determined  by  the
    49  board,  and  to sell, transfer or convey any property, real, personal or
    50  mixed, tangible or intangible or  any  interest  therein,  at  any  time
    51  acquired or held by the authority on such terms and conditions as may be
    52  determined by the board of the authority;
    53    (g)  to plan, develop, undertake, carry out, construct, improve, reha-
    54  bilitate, repair, furnish, maintain, and operate projects;
    55    (h) to adopt bylaws for the management and regulation of  its  affairs
    56  consistent with this chapter;

        A. 1958                             7
 
     1    (i) to establish and maintain satellite offices within New York;
     2    (j)  to  fix,  alter,  charge,  and  collect rates, rentals, and other
     3  charges for the use of projects of, or for the sale of  products  of  or
     4  for  the  services rendered by, the authority, at rates to be determined
     5  by it for the purpose of providing for the payment of  the  expenses  of
     6  the  authority,  the  planning,  development, construction, improvement,
     7  rehabilitation, repair, furnishing, maintenance, and  operation  of  its
     8  projects  and  properties,  the  payment  of the costs accomplishing its
     9  tasks;
    10    (k) the payment of the principal of and interest on  its  obligations,
    11  and  to fulfill the terms and provisions of any agreements made with the
    12  purchasers or holders of any such obligations;
    13    (l) to borrow money, make and issue bonds, and to secure  the  payment
    14  of  all bonds, or any part thereof, by pledge or deed of trust of all or
    15  any of its revenues, rentals, and receipts or of any project or  proper-
    16  ty,  real,  personal  or  mixed, tangible or intangible, or any interest
    17  therein, and to make agreements with the purchasers or holders  of  such
    18  bonds  or  with others in connection with any such bonds, whether issued
    19  or to be issued, as the authority deems advisable,  and  in  general  to
    20  provide  for the security for the bonds and the rights of holders there-
    21  of;
    22    (m) to make and enter into all contracts and agreements  necessary  or
    23  incidental  to  the  performance  of  its duties, the furtherance of its
    24  purposes and the execution to its powers under this  article,  including
    25  agreements with any person or federal agency;
    26    (n)  to employ, in its discretion, consultants, attorneys, architects,
    27  engineers, accountants, financial experts,  investment  bankers,  super-
    28  intendents,  managers  and  such  other  employees  and agents as may be
    29  necessary, and to fix their compensation to be payable from  funds  made
    30  available to the authority;
    31    (o)  to  pledge  or  otherwise  encumber all or any of the revenues or
    32  receipts of the authority as security for all or any of the  obligations
    33  of the authority; and
    34    (p) to do all acts and things necessary or convenient to carry out the
    35  powers granted to it by law.
    36    2.  The  physical  access  powers  of the authority under this article
    37  include all those necessary to carry out and effectuate the purposes  of
    38  this article, including, but not limited to, the following:
    39    (a)  to  make  loans  or  grants to broadband developers and broadband
    40  operators, and developers and operators of advanced communications, that
    41  will acquire, construct, maintain, and operate all or part of the broad-
    42  band infrastructure serving unserved, underserved and distressed areas;
    43    (b) to set construction, operation, and financing  standards  for  the
    44  broadband  infrastructure  in connection with authority financing and to
    45  provide for inspections to determine compliance with those standards;
    46    (c) to investigate, evaluate, and access the current broadband infras-
    47  tructure and the future broadband infrastructure needs of the state;
    48    (d) to take actions reasonably calculated to result in  infrastructure
    49  construction, enhancement, exchanges, expansion, leases, swaps and other
    50  agreements or arrangements giving rise to service or competitive service
    51  to underserved structures and underserved subscribers; and
    52    (e) to do all acts and things necessary or convenient to carry out the
    53  powers granted to it by law.
    54    3.  The  social  access  powers  of  the  authority under this article
    55  include all those necessary to carry out and effectuate the purposes  of
    56  this article, including, but not limited to, the following:

        A. 1958                             8
 
     1    (a)  to  provide  operating assistance to make broadband services more
     2  affordable to broadband developers, broadband operators,  and  broadband
     3  customers  in unserved, underserved and distressed areas, in conjunction
     4  with broadband infrastructure financed by the authority;
     5    (b)  to  encourage  and  participate in aggregation strategies for the
     6  broadband services of all public entities and nonprofit corporations  in
     7  the  state  to  maximize  the  interconnectivity and efficiencies of the
     8  broadband infrastructure;
     9    (c) to receive and accept from any federal or private agency,  founda-
    10  tion, corporation, association or person grants to be expended in accom-
    11  plishing the objectives of the authority, and to receive and accept from
    12  New  York  or any state, and any municipality, county or other political
    13  subdivision thereof and from any other source, aid or  contributions  of
    14  either  money,  property, or other things of value, to be held, used and
    15  applied only for the purposes for which such  grants  and  contributions
    16  may be made;
    17    (d)  to  render  advice  and  assistance,  and to provide services, to
    18  institutions of higher education and to other persons providing services
    19  or facilities for scientific  and  technological  research  or  graduate
    20  education, focused upon development of advanced communications technolo-
    21  gies,  provided  that  credit  towards  a degree, certificate or diploma
    22  shall be granted only if such education is provided in conjunction  with
    23  an institution of higher education authorized to operate in New York;
    24    (e)  to take such other actions it deems necessary or convenient, that
    25  are reasonably calculated to result in enhanced, initial or  competitive
    26  social  access  to  generally  available  retail  broadband  services of
    27  adequate quality, at affordable prices, for underserved  structures  and
    28  underserved subscribers; and
    29    (f) to do all acts and things necessary or convenient to carry out the
    30  powers granted to it by law.
    31    §  4104.  Board  of directors. 1. The authority shall be governed by a
    32  board of directors  consisting  of  seventeen  members,  including:  the
    33  commissioners  of  the  department  of  economic development, the empire
    34  state development corporation, the public  service  commission  and  the
    35  state  office  for  technology, or their designees, the governor, senate
    36  majority leader, speaker of the assembly, and the comptroller  or  their
    37  designees.  Two members of the board shall be proposed by the respective
    38  unions of the wireline and wireless telecommunications industries of New
    39  York. The remaining members of the  board  shall  be  appointed  by  the
    40  governor with the advice and consent of the senate, from a list of indi-
    41  viduals  nominated by the principal established industry groups, techni-
    42  cal counsels, or academic professional groups of New York. The  appoint-
    43  ees  shall  be  the  following:  one member from each telecommunications
    44  industry grouping, to be nominated by the New York-based wireline  tele-
    45  phone industry, the New York-based wireless cellular telephone industry,
    46  and  the New York-based cable television/broadband industry and wireless
    47  internet provider industry; the president of the state university system
    48  of New York, two presidents of major New York research universities, one
    49  of whom shall represent private research universities and  one  of  whom
    50  shall  represent  public research universities; and one member who shall
    51  be nominated by New York's financial services community.
    52    2. The government members shall serve on the board for  terms  coinci-
    53  dent  with their terms of office. The initial term of the non-governmen-
    54  tal members shall expire on December thirty-first,  two  thousand  nine-
    55  teen,   and   all  subsequent  nongovernmental  member  terms  shall  be
    56  coincident with the term of the governor  who  appointed  such  members.

        A. 1958                             9
 
     1  Vacancies  in the membership of the board shall be filled by appointment
     2  by the governor for the unexpired portion of  the  term.  No  nongovern-
     3  mental  member of the board shall be eligible to serve for more than two
     4  successive  terms,  provided however that after the expiration of a four
     5  year term, such members may be appointed to and serve up  to  two  addi-
     6  tional  terms. Members of the board shall be subject to the public offi-
     7  cers law, and shall serve at the pleasure of the governor.   Immediately
     8  after  appointment,  the  members  of  the  board  shall  enter upon the
     9  performance of their duties.
    10    3. The board shall elect annually from among its members a chairperson
    11  and vice-chairperson. The board shall also annually elect  a  secretary,
    12  who  need  not be a board member, and may also elect such other subordi-
    13  nate officers who need not be members of the board as it deems necessary
    14  and proper. The chairperson, or in his or her absence,  the  vice-chair-
    15  person,  shall preside over all meetings of the board. In the absence of
    16  both the chairperson and vice-chairperson, the  board  shall  appoint  a
    17  chairperson pro tempore, who shall preside at such meetings.
    18    4.  The  board  shall  employ  a president of the authority, who shall
    19  serve at the pleasure of the board, to direct the day-to-day  operations
    20  and  activities of the authority and carry out such duties and powers as
    21  may be conferred upon him or her by the board.  The  president  and  all
    22  employees  of  the authority shall be compensated in the manner provided
    23  by the board, provided however that such compensation shall  not  exceed
    24  the median salaries of employees in equivalent titles of New York "state
    25  authorities" as defined in this chapter.
    26    §  4105.  Broadband  development  and deployment council. 1. The board
    27  shall establish, within thirty  days  of  the  effective  date  of  this
    28  section,  a seventeen member technical advisory committee from represen-
    29  tatives recommended by technology councils, industry and business  asso-
    30  ciations,  and  college  and  university  presidents, to be known as the
    31  broadband development and deployment council. Five  members  shall  have
    32  knowledge,  skills  and  expertise  in the needs of industry, five shall
    33  have knowledge, skills  and  expertise  in  specific  telecommunications
    34  technology  areas,  and  two  shall  be  community  representatives from
    35  unserved and/or underserved areas. The chief technical officers for  the
    36  public  service  commission,  the state office for technology, the state
    37  office for emergency management and the state office of  science,  tech-
    38  nology  and academic research, and the chief information officer for the
    39  state of New York, shall also serve on this committee.
    40    2. (a) Within sixty days of the effective date of  this  section,  the
    41  broadband  council  shall  create,  coordinate, or liaise with existing,
    42  municipal and/or county-level  social  access  councils  to  study,  and
    43  subsequently  report  to  the authority upon: (i) the location, size and
    44  population of unserved, underserved  and  distressed  areas  within  the
    45  respective  municipalities  and counties; (ii) a proposed list of social
    46  access projects for the municipalities and counties; (iii) the  presence
    47  of  non-governmental  organizations and federal 501c3 organizations that
    48  could work cooperatively with the authority on social  access  projects;
    49  (iv)  such  other  matters  as the broadband council and local broadband
    50  development councils believe necessary to effectuating  the  mission  of
    51  the authority.
    52    (b)  Within  ninety  days  of  the effective date of this section, the
    53  broadband council shall study and report to the authority upon:
    54    (i) the availability of any existing federal, state  and  local  funds
    55  that  can  be  used  or  re-purposed  to  fund broadband development and

        A. 1958                            10
 
     1  promote  universal  access  to  broadband  and  advanced  communications
     2  services in unserved, underserved and distressed areas;
     3    (ii)  commercially  reasonable  investment benchmarks that it believes
     4  are necessary to  determine  between  reasonably  equally  valuable  and
     5  imperative broadband development projects;
     6    (iii)  an appropriate set of metrics by which to determine the quality
     7  of a broadband buildout project, and whether  such  buildout  was  being
     8  completed  within the time span upon which the authority conditioned the
     9  grant of any funds toward such buildout;
    10    (iv) the availability, desirability and utility of a set of  standard-
    11  ized  metrics  for service quality, speed, and reliability that shall be
    12  applied to the networks built with funds from the authority; and
    13    (v) the availability of surplus computers and other broadband telecom-
    14  munications equipment in the inventories of state and local  authorities
    15  that might be donated to the authority for use in enhancing physical and
    16  social access to broadband in the state.
    17    3.    The  council  shall  act  as  liaison, and binding mediator when
    18  requested, between any deployment projects and owners of  rights-of-way,
    19  easements  or infrastructure necessary to promote or establish broadband
    20  service in unserved, underserved and distressed areas.
    21    4. The council shall determine and recommend to the board projects for
    22  the expenditure of funds  from  the  fund,  with  special  attention  to
    23  projects using minority and women-owned business enterprises as contrac-
    24  tors or sub-contractors, and to projects providing private sector match-
    25  ing  funding  at  ratios  of  three  to one private to public funding or
    26  greater.
    27    5. The council shall recommend to  the  board,  on  an  annual  basis,
    28  legislation  that it determines would be reasonably necessary to further
    29  promote broadband development, enhance economic development arising from
    30  such broadband development, and protect and enhance access of  consumers
    31  to  E911  and  other  public  safety  services and entities by method of
    32  broadband and advanced communications services.
    33    6. (a) A member of the board or officer, employee,  or  agent  of  the
    34  authority shall discharge the duties of his or her position in a nonpar-
    35  tisan  manner,  with good faith, and with that degree of diligence, care
    36  and skill that an ordinary prudent person would exercise  under  similar
    37  circumstances  in  a  like position. In discharging the duties of his or
    38  her position, a member of the board or an officer, employee, or agent of
    39  the authority, when acting in good faith, may rely upon the  opinion  of
    40  counsel  for  the authority, upon the report of an independent appraiser
    41  selected with reasonable care by the board, or upon financial statements
    42  of the authority represented to the member  of  the  board  or  officer,
    43  employee,  or  agent  of the authority to be correct by the president or
    44  the officer of the authority having charge of its books or  account,  or
    45  stated  in  a written report by a certified public accountant or firm of
    46  certified public accountants to fairly reflect the  financial  condition
    47  of the authority.
    48    (b)  A member of the broadband development council shall discharge the
    49  duties of his or her position in a nonpartisan manner, with good  faith,
    50  and  with  that  degree  of  diligence,  care and skill that an ordinary
    51  prudent person would exercise under  similar  circumstances  in  a  like
    52  position.
    53    (c)  A member of a social access council shall discharge the duties of
    54  his or her position in a nonpartisan manner, with good faith,  and  with
    55  that degree of diligence, care and skill that an ordinary prudent person
    56  would exercise under similar circumstances in a like position.

        A. 1958                            11
 
     1    §  4106. Applications for broadband deployment financing; responsibil-
     2  ities of the applicant to provide safe, reliable and affordable service.
     3  In addition to rules promulgated by the authority as well as  the  other
     4  requirements  established in this article, as part of an application for
     5  financing  under this chapter, a broadband developer or broadband opera-
     6  tor must file with the authority:
     7    1. a participation plan for minority and woman-owned businesses;
     8    2. a community wide outreach plan to educate the public  with  respect
     9  to the availability of broadband services;
    10    3.  a construction and maintenance plan that shall detail the capacity
    11  of any broadband network or networks built with funding from the author-
    12  ity, and whether such networks shall maintain full upload  and  download
    13  speeds when subscribed to one hundred percent of capacity;
    14    4.  a  detailed plan showing how such buildout funded by the authority
    15  shall address or exceed  the  current  aggregate  demand  for  broadband
    16  services  in the area of proposed buildout as determined by the authori-
    17  ty, council, cyber security  and  critical  infrastructure  coordination
    18  office  ("CSCIC")  and  public  service  commission's mapping and demand
    19  assessment analyses and reports;
    20    5. such other requirements as may be recommended to the  authority  by
    21  the council and the public service commission;
    22    6. a plan for following the principles of neutral networks as required
    23  in section forty-one hundred thirteen of this article; and
    24    7. a plan containing detailed metrics setting forth time to completion
    25  for each stage of its proposed buildout, the speeds to be offered on and
    26  across  its  network, and such other metrics as the broadband council or
    27  board may propose. The authority may not approve an application unless a
    28  plan is submitted under this section and unless the requirements of this
    29  section are met.
    30    § 4107. Bonds and notes of the authority.  1. The authority shall have
    31  the power and is hereby authorized from time to time to issue negotiable
    32  bonds or notes for any of its corporate purposes for up to  one  hundred
    33  fifty  million  dollars annually for five years to do all of the follow-
    34  ing:
    35    (a) pay the development  costs  associated  with  acquiring,  leasing,
    36  constructing,  maintaining,  and operating the broadband infrastructure,
    37  in unserved, underserved, and distressed areas;
    38    (b) make loans to persons for development costs;
    39    (c) make loans to persons to make purchases related to  the  broadband
    40  infrastructure;
    41    (d) pay the interest on bonds and notes of the authority;
    42    (e) establish reserves to secure the bonds and notes of the authority;
    43  and
    44    (f)  make  other  expenditures  necessary to carry out the authority's
    45  duties under this article, including  the  payment  of  the  authority's
    46  operating expenses.
    47    The  bonds  and  notes  shall be in a form, bear interest at a rate or
    48  rates, be in the denominations, carry registration privileges, be  paya-
    49  ble, and be subject to the terms of redemption as provided in the resol-
    50  ution  described in subdivision two of this section. The bonds and notes
    51  of the authority may be sold by the authority at public or private sales
    52  at prices as the authority determines.
    53    2. A resolution relating to authorizing notes or bonds may contain any
    54  of the following provisions, which shall be a part of the contract  with
    55  the holders of the notes or bonds:

        A. 1958                            12
 
     1    (a) pledging all or any part of the revenues of the authority, and all
     2  or  any  part  of the money received in payment of loans and interest on
     3  loans, and other money received or to be received to secure the  payment
     4  of the notes or bonds;
     5    (b) pledging all or any part of the assets of the authority, including
     6  mortgages  and  obligations obtained by the authority in connection with
     7  its programs, to secure the payment of the notes or bonds;
     8    (c) pledging any loan, grant, or contribution from a government  enti-
     9  ty;
    10    (d)  the  use  and  disposition of the gross income from contracts and
    11  leases of the authority;
    12    (e) limitations on the purpose to which the proceeds of sale of  notes
    13  or  bonds  may be applied and pledging proceeds to secure the payment of
    14  the notes or bonds;
    15    (f) limitations on the issuance of  additional  notes  or  bonds,  the
    16  terms  upon  which  additional notes or bonds may be issued and secured,
    17  and the refunding of outstanding or other notes or bonds;
    18    (g) the procedure, if any, by which the terms  of  any  contract  with
    19  noteholders  or  bondholders  may be amended or abrogated, the amount of
    20  notes or bonds the holders of which shall consent to  the  amendment  or
    21  abrogation, and the manner in which the consent is to be given;
    22    (h)  vesting  in  a  trustee or trustees property, rights, powers, and
    23  duties in trust as the authority may determine, which may include any of
    24  the rights, powers, and duties of the trustee appointed by the bondhold-
    25  ers under this article and limiting or abrogating the right of the bond-
    26  holders to appoint a trustee under this section or limiting the  rights,
    27  powers, and duties of the trustee.
    28    3. No more than fifty percent of any payments to the authority for use
    29  of rights-of-way under its control or supervision shall be deemed reven-
    30  ues  of the authority. Up to seventy-five percent of monies arising from
    31  right-of-way use payments may be used to fund social access projects  of
    32  the  authority,  or  may  be  contributed to a state fund established to
    33  guarantee universal and affordable broadband service to, without limita-
    34  tion, underserved subscribers and structures. Any  remaining  unexpended
    35  monies  arising  from  right-of-way  use  payments may be pledged by the
    36  authority to secure the payment of notes and bonds.
    37    § 4108. Bonds and notes; personal liability. The members of the  board
    38  or  any  person  executing the notes or bonds under this article are not
    39  liable personally on the notes or  bonds  or  subject  to  any  personal
    40  liability or accountability by reason of the issuance.
    41    § 4109. Rights of authority to fulfill terms of agreement not limited,
    42  altered,  or impaired. This state pledges and agrees with the holders of
    43  any notes or bonds issued under this article, that the  state  will  not
    44  limit  or  alter the rights vested in the authority to fulfill the terms
    45  of any agreements made with the holders, or in any way impair the rights
    46  and remedies of the holders until the  notes  or  bonds,  together  with
    47  earned  interest,  with interest on any unpaid installments of interest,
    48  and all costs and expenses in connection with any action  or  proceeding
    49  by  or  on  behalf  of  the  holders,  are fully met and discharged. The
    50  authority is authorized to include this  pledge  and  agreement  of  the
    51  state  in  any  agreement  with the holders of notes or bonds under this
    52  article.
    53    § 4110. Remedies of bondholders and noteholders. 1. If  the  authority
    54  defaults  in  the payment of principal or interest of any notes or bonds
    55  when due, whether at maturity or  upon  call  for  redemption,  and  the
    56  default continues for a period of thirty days, or if the authority fails

        A. 1958                            13
 
     1  or  refuses  to  comply  with this article, or defaults in any agreement
     2  made with the holders of any notes or bonds, the holders of  twenty-five
     3  percent  in  aggregate  principal  amount  of  the  notes  or bonds then
     4  outstanding  may  apply  to the court of claims for the appointment of a
     5  trustee to represent the holders of the notes or bonds.
     6    2. A trustee appointed under this article may, and  upon  the  written
     7  request  of  the  holders  of twenty-five percent in aggregate principal
     8  amount of the notes or bonds shall, do any of the following:
     9    (a) enforce all rights of the noteholders  or  bondholders,  including
    10  the  right  to  require  the  authority to perform its duties under this
    11  article;
    12    (b) bring suit upon the notes or bonds;
    13    (c) require the authority to account as if it were the trustee  of  an
    14  express trust for the holders of the notes or bonds;
    15    (d)  enjoin any acts or things that may be unlawful or in violation of
    16  the rights of the holders of the notes or bonds; and
    17    (e) declare all the notes or bonds due and payable.
    18    3. Before declaring the principal of notes or bonds due  and  payable,
    19  the  trustee  shall  first  give  thirty  days' notice in writing to the
    20  governor, to the authority, to  the  comptroller  and  to  the  attorney
    21  general.
    22    4.  The trustee has all of the powers necessary or appropriate for the
    23  general representation of bondholders or noteholders in the  enforcement
    24  and protection of their rights.
    25    5.  An  action  under  this  section  shall be brought in the court of
    26  claims.
    27    § 4111. Grants or loans of public or private funds or in-kind  materi-
    28  al.  1.  The  authority  may accept, receive, receipt for, disburse, and
    29  expend federal and state moneys and other  moneys,  public  or  private,
    30  made  available by grant or loan or both or otherwise, to accomplish, in
    31  whole or in part any of the purposes of this article. All federal moneys
    32  accepted under this section  shall  be  accepted  and  expended  by  the
    33  authority upon such terms and conditions as are prescribed by the United
    34  States  and  as  are  consistent  with  state  law; and all state moneys
    35  accepted under this section  shall  be  accepted  and  expended  by  the
    36  authority  upon  such terms and conditions as are prescribed by New York
    37  state law.
    38    2. The authority may accept,  receive,  receipt  for,  grant  or  loan
    39  computers  and  other  telecommunications equipment or broadband infras-
    40  tructure equipment made available to it by in-kind  donation,  grant  or
    41  loan,  to  accomplish,  in whole or in part, any of the purposes of this
    42  article. All such in-kind material  shall  be  accepted  and  loaned  or
    43  granted  by  the  authority  upon  such  terms  and  conditions  as  are
    44  prescribed in applicable sections of the law of the United States and as
    45  are consistent with state law.
    46    § 4112. Exemption from taxes and  assessments.  The  exercise  of  the
    47  powers  granted by this article shall be in all respects for the benefit
    48  of the people of this state, for the  increase  of  their  commerce  and
    49  prosperity,  for  the improvement of their health and living conditions,
    50  and as the operation and maintenance of projects by  the  authority  and
    51  the  undertaking  of  activities  in  furtherance  of the purpose of the
    52  authority constitute the performance  of  essential  governmental  func-
    53  tions,  the  authority shall not be required to pay any taxes or assess-
    54  ments upon any project or any property acquired or used by the authority
    55  under the provisions of this  article  or  upon  the  income  therefrom,
    56  including  sales and use taxes on tangible personal property used in the

        A. 1958                            14
 
     1  operations of the authority, and any bonds issued under  the  provisions
     2  of  this article, their transfer and the income therefrom (including any
     3  profit made on the sale thereof) shall at all times be free  from  state
     4  and  local  taxation. The exemption granted in this section shall not be
     5  construed to extend to persons conducting on the premises of a  facility
     6  businesses for which local or state taxes would otherwise be required.
     7    §  4113.  Broadband  and advanced communications development fund.  1.
     8  There is created in the joint custody of the comptroller and the commis-
     9  sioner of the department of taxation and finance a special nonreverting,
    10  permanent account in the special revenue fund, to be called the advanced
    11  communications assistance fund, to be  administered  by  the  authority.
    12  Moneys  in  the  fund  shall  be  used solely for the purpose of helping
    13  unserved, underserved and distressed municipal corporations in New  York
    14  state  take  full  advantage  of  broadband  and advanced communications
    15  services.  Loans or grants from the fund shall  be  used  to  effectuate
    16  physical  and  social  access  to broadband in unserved, underserved and
    17  distressed localities for:
    18    (a) the internal communication needs of  such  localities,  which  may
    19  include  but  are not limited to fiber-optic and wireless communications
    20  networks;
    21    (b) help in financing the costs of  planning,  designing,  purchasing,
    22  leasing,  installing, or maintaining dark fiber to the extent permitted,
    23  subject however to all duties and restrictions that  exist  within  this
    24  section; or
    25    (c)  to  advance the physical and social availability of broadband and
    26  other advanced communications services to all consumers, including those
    27  in low income, rural, insular, and high cost areas  at  rates  that  are
    28  reasonably  comparable  to  those  charged  in  high-density urban areas
    29  and/or in the area of the state where such services  are  most  competi-
    30  tively  priced;  and  to increase physical and social access to, and the
    31  ubiquity of,  advanced  telecommunications  services  available  to  the
    32  public in an equitable and nondiscriminatory manner.
    33    2.  All moneys of the authority from whatever source derived including
    34  such funds as may be appropriated and any gifts, grants, donations  from
    35  public  or  private sources, or moneys raised from bonds or notes, shall
    36  be deposited in the fund.
    37    3. Interest earned on moneys in the fund shall remain in the fund  and
    38  be  credited  to it. Any moneys remaining in the fund at the end of each
    39  fiscal year, including interest thereon, shall not revert to the general
    40  fund but shall remain in the fund  and  expenditures  and  disbursements
    41  from  the  fund,  which may consist of grants or loans, shall be made by
    42  the comptroller upon written request bearing the signature of the  chair
    43  or the vice-chair of the authority, or, if so authorized by the authori-
    44  ty, bearing his or her facsimile signature, and the official seal of the
    45  authority.
    46    4.  The  receipt of monies from the fund shall be conditioned upon the
    47  acceptance by public and private  telecommunications  services  provider
    48  recipients  of the important state policy that the reasonably unfettered
    49  access of the citizenry to the maximally  diverse  internet  is  in  the
    50  public  interest, with the express understanding that telecommunications
    51  providers may choose to block, limit or otherwise restrict  the  passage
    52  of  electronic  mail  message  or  other content that transmit, portray,
    53  describe, represent or otherwise contain matters such as child pornogra-
    54  phy or similar obscenity, other unlawful material,  threats  of  serious
    55  bodily harm, threats to the public safety and homeland security, threats
    56  of  death  to  individuals  or groups of individuals, viruses or similar

        A. 1958                            15
 
     1  computer generated programs or code that  have  the  potential  to  harm
     2  computer hardware and/or software and/or networks, excessive unsolicited
     3  commercial  email  that  degrades or interferes with or harms the normal
     4  operation  of  broadband  networks,  and other similar types or forms of
     5  material or software  (the  foregoing  examples  are  illustrative,  not
     6  exhaustive  of such threats to users and/or the network). Each recipient
     7  of monies from the fund shall provide to  the  authority  on  an  annual
     8  basis a written report describing every instance in which such recipient
     9  blocks, limits or otherwise restricts subscribers or other purchasers of
    10  broadband  services  from  the  recipient  from accessing any particular
    11  internet site or category or type of internet site or any specific elec-
    12  tronic mail message or category or type of electronic mail  ("neutrality
    13  report").  Such  neutrality report shall contain detail of a specificity
    14  level to be determined by the authority, and  shall  contain  sufficient
    15  detail  to  allow the authority to ascertain the nature of any blocking,
    16  limitation or other restrictions,  and  the  reason  for  the  recipient
    17  taking  such action, but shall be provided in a manner reasonably calcu-
    18  lated to protect subscriber and  purchaser  privacy  or  the  legitimate
    19  needs  of law enforcement. No recipient of funds shall be responsible or
    20  liable for any efforts by or policies, practices  or  procedures  of  an
    21  unaffiliated  telecommunications  services provider or internet services
    22  provider or internet protocol traffic routing entity to block  subscrib-
    23  ers from accessing any internet site or any category or type of internet
    24  site  or any specific electronic mail message or any category or type of
    25  electronic mail.
    26    5. Any pledge made by the authority is valid and binding from the date
    27  that the pledge is made. The money or property pledged and  received  by
    28  the  authority  shall  immediately  be subject to the lien of the pledge
    29  without any physical delivery or further act and the lien of the  pledge
    30  is  valid  and  binding  against  all  parties  having  claims  in tort,
    31  contract, or otherwise against the authority,  irrespective  of  whether
    32  the parties have notice of the lien. The resolution or any other instru-
    33  ment by which a pledge is created need not be recorded.
    34    § 4114. Appropriations by any government or municipal corporation. Any
    35  government  or  municipal  corporation  may  make appropriations for the
    36  acquisition, construction, improvement, maintenance or operation of  any
    37  project  acquired,  constructed, improved, maintained or operated by the
    38  authority.
    39    § 4115. Conveyance, lease or transfer of property by a city or  county
    40  to  the  authority. Any city or county within New York state in order to
    41  provide for the construction,  reconstruction,  improvement,  repair  or
    42  management of any project, or in order to accomplish any of the purposes
    43  of  this  article  may,  with  or without consideration or for a nominal
    44  consideration, lease, sell, convey or otherwise transfer to the authori-
    45  ty any real, personal or mixed property  located  within  such  city  or
    46  county.
    47    §  4116. Actions against the authority. 1. In every action against the
    48  authority for damages, for injuries to real or personal property, or for
    49  the destruction thereof, or for personal injuries, the  complaint  shall
    50  contain  an  allegation that at least thirty days have elapsed since the
    51  demand, claim or claims upon which such action is founded were presented
    52  to a member of the authority, or to its secretary, or to its chief exec-
    53  utive officer and that the authority has neglected or refused to make an
    54  adjustment or payment thereof for thirty days after such presentment.
    55    2. An action against the authority for damages for injuries to real or
    56  personal property, or for the destruction thereof, or for personal inju-

        A. 1958                            16
 
     1  ries, alleged to have been sustained shall not be  commenced  more  than
     2  one  year  and ninety days after the cause of action therefor shall have
     3  accrued, nor unless a notice of intention to commence such action and of
     4  the  time  when  and place where the damages were incurred or sustained,
     5  together with a  verified  statement  showing  in  detail  the  property
     6  alleged  to have been damaged or destroyed and the value thereof, or the
     7  personal injuries alleged to have been sustained and by whom, shall have
     8  been filed in the principal office of the authority within  ninety  days
     9  after such cause of action shall have accrued.
    10    3.  An  action  against  the  authority  for  wrongful  death shall be
    11  commenced in accordance with the notice of  claim  and  time  limitation
    12  provisions of title eleven of article nine of this chapter.
    13    §  4117.  Audit power and contract approval by the comptroller. 1. The
    14  comptroller, or his or her  legally  authorized  representatives,  shall
    15  have the authority to examine the accounts and finances of the authority
    16  and  to conduct management audits of the staff and board of the authori-
    17  ty.
    18    2. The procurement, public work, construction, and  revenue  contracts
    19  of  the  authority  shall be subject to prior review and approval by the
    20  comptroller, if the comptroller, in his or  her  discretion,  determines
    21  that  such  review  and  approval  shall be required. If the comptroller
    22  determines that any contract or category of contracts of a state author-
    23  ity  requires  direct  supervision  in  the  form  of  pre-approval   of
    24  contracts,  and the comptroller so notifies such state authority of such
    25  determination, then subject to subdivision three  of  this  section,  no
    26  such  contract  or agreement by such state authority selected for review
    27  by the comptroller shall be a valid  enforceable  contract  unless  such
    28  contract  shall  first be approved by the comptroller. In the event that
    29  the comptroller notifies the authority that approval shall  be  required
    30  as  provided  in  this  section,  then  the  authority  shall  include a
    31  provision in all such contracts selected for review  as  stated  in  any
    32  such  notice informing the other parties to such contracts that the same
    33  are not valid and enforceable without the comptroller's approval.
    34    3. Any contract selected by the comptroller for  review  and  approval
    35  pursuant to subdivision two of this section shall be a valid enforceable
    36  contract  only  if the comptroller (a) approves the contract, or (b) has
    37  not disapproved the contract within forty-five days of the submission of
    38  such contract to his or her office, unless  the  state  authority  shall
    39  agree  with  the  comptroller on an extension for a reasonable period of
    40  time.
    41    § 4118. Annual report. The authority shall submit an annual report  no
    42  later  than March first of each year, including the recommendations made
    43  by the  broadband  development  and  deployment  council  under  section
    44  forty-one  hundred  five of this article, relating to its activities for
    45  the preceding calendar year to the governor, the speaker of  the  assem-
    46  bly,  the  temporary president of the senate, the minority leader of the
    47  assembly, the minority leader of the senate, the chair of  the  assembly
    48  standing committee on corporations, authorities and commissions, and the
    49  chair of the senate standing committee on energy and telecommunications.
    50    §  4119.  Effect of inconsistent provisions. Insofar as the provisions
    51  of this article are inconsistent with the provisions of any  other  act,
    52  general or special, the provisions of this title shall be controlling.
    53    §  4120. Severability. If any provision of any section of this article
    54  or the application thereof  to  any  person  or  circumstance  shall  be
    55  adjudged  invalid  by  a  court of competent jurisdiction, such order or
    56  judgment shall be confined in its operation to the controversy in  which

        A. 1958                            17
 
     1  it was rendered, and shall not affect or invalidate the remainder of any
     2  provision  of any section of this article or the application of any part
     3  thereof to any  other  person  or  circumstance  and  to  this  end  the
     4  provisions  of  each  section  of this article are hereby declared to be
     5  severable.
     6    § 4. The public service law is amended by adding a new section 92-h to
     7  read as follows:
     8    § 92-h. Universal, affordable and secure  telecommunications  services
     9  fund.   1. The commission shall establish a mechanism for the support of
    10  universal service, also referred to in this section as  the  "high  cost
    11  support mechanism", which shall operate in accordance with rules adopted
    12  by  the commission. The purpose of the high cost support mechanism is to
    13  provide financial assistance to telecommunications services providers to
    14  help make basic local exchange and broadband services universally avail-
    15  able, at just and reasonable rates and allow such providers to be  fully
    16  reimbursed  for  the difference between the reasonable costs incurred in
    17  making basic service available to their customers within a  rural,  high
    18  cost  geographic  support  area  and the price charged for such service,
    19  after taking into account any amounts received by such  providers  under
    20  price  support  mechanisms  established by the federal government and by
    21  this state. The  commission  shall  ensure  that  no  telecommunications
    22  services provider is receiving funds from this or any other source that,
    23  together  with  local  exchange  service  revenues,  exceeds the cost of
    24  providing local exchange service to customers of such provider. The high
    25  cost support mechanism shall be supported and distributed equitably  and
    26  on  a  nondiscriminatory,  competitively  neutral  basis  through a rate
    27  element assessed on all  telecommunications  service  providers  in  New
    28  York.  A  provider that offers basic local exchange service or broadband
    29  service throughout an entire support area through use of its own facili-
    30  ties or on a resale basis may be qualified as a provider of last  resort
    31  or  may  be eligible to receive universal service support, as determined
    32  by the commission. A provider that fails to pay an  assessment  due  and
    33  payable under this section shall be subject to the revocation of certif-
    34  icate after notice and the opportunity for a hearing as provided in this
    35  chapter.  In  all  relevant geographic areas of the state, as defined by
    36  the commission, the commission shall designate at least one provider  as
    37  the  provider of last resort and adopt procedures for changing or termi-
    38  nating such designations. A provider of last resort designation  carries
    39  the  responsibility  to offer basic local exchange service and broadband
    40  service to all consumers who request it. A person holding a  certificate
    41  of  public  convenience  and necessity to provide basic service shall be
    42  subject to the evolving definition of basic  service  developed  by  the
    43  commission  under  this  chapter and the system of financial support for
    44  universal service established by the commission under this  section.  If
    45  and  when  additional  elements  are included in the definition of basic
    46  service as a result of review by the commission, prices may increase  as
    47  is  determined by the commission to be reasonably necessary to cover the
    48  cost and account for the inclusion of such additional elements.
    49    2. On or before December first of  each  year,  the  commission  shall
    50  submit  a  written  report  to  the governor, temporary president of the
    51  senate, speaker of the assembly, minority  leaders  of  the  senate  and
    52  assembly,  chairperson  and ranking minority member of the senate energy
    53  and telecommunications committee, and the chairperson and ranking minor-
    54  ity member of the assembly  corporations,  authorities  and  commissions
    55  committee,  accounting  for the operation of the high cost support mech-

        A. 1958                            18
 
     1  anism during the preceding calendar year and  containing  the  following
     2  information, at a minimum:
     3    (a)  the  total  amount of money that the commission determined should
     4  constitute the high cost  support  mechanism  from  which  distributions
     5  would be made;
     6    (b) the total amount of money ordered to be contributed through a rate
     7  element  assessment collected by each telecommunications service provid-
     8  er;
     9    (c) the basis on which the  contribution  of  each  telecommunications
    10  service provider was calculated;
    11    (d)  the  benchmarks  used  and the basis on which the benchmarks were
    12  determined;
    13    (e) the total amount of money that the commission determined should be
    14  distributed from the high cost support mechanism;
    15    (f) the total amount of money distributed to  each  telecommunications
    16  service provider from the high cost support mechanism;
    17    (g)  the basis on which the distribution to telecommunications service
    18  providers was calculated;
    19    (h)  as  to  each  telecommunications  service  provider  receiving  a
    20  distribution, the amount received by geographic support area and type of
    21  customer,  the  way in which the benefit of the distribution was applied
    22  or accounted for;
    23    (i)  the  proposed  benchmarks,  the  proposed  contributions  to   be
    24  collected  through  a rate element assessment by each telecommunications
    25  service provider, and the proposed total amount of the high cost support
    26  mechanism from which distributions are to  be  made  for  the  following
    27  calendar year; and
    28    (j)  the  total  amount of distributions made from the high cost fund,
    29  directly or indirectly, and how they are balanced by rate reductions  by
    30  all  providers  for  the same period and a full accounting of and justi-
    31  fication for any difference. If the report submitted  pursuant  to  this
    32  subdivision  contains  a  proposal for an increase in any of the amounts
    33  listed in paragraph (b) of this  subdivision,  such  increase  shall  be
    34  suspended until March thirty-first of the following year.
    35    Such  report  must  also determine what amount of unexpended funds, if
    36  any, at the end of each fiscal year, could be refunded to the contribut-
    37  ing telecommunications services providers on a  basis  that  is  propor-
    38  tional  to  the  amounts contributed by such telecommunications services
    39  providers.
    40    3. There is hereby created, in the state treasury, the New  York  high
    41  cost  administration  fund,  referred  to in this section as the "fund",
    42  which shall be used to reimburse the commission and, if applicable,  its
    43  contractors,  for  reasonable expenses incurred in the administration of
    44  the high cost support mechanism as determined by rules  of  the  commis-
    45  sion, and shall be audited in a manner and frequency to be determined by
    46  the  comptroller.  The  moneys  in  the fund that are to be used for the
    47  direct and indirect administrative costs incurred by the commission  and
    48  its  contractors  shall  be appropriated annually by the legislature. At
    49  the end of any fiscal year, all unexpended and  unencumbered  moneys  in
    50  the  fund  shall remain therein and shall not be credited or transferred
    51  to the general fund or any other fund. Based upon the balance  remaining
    52  in  the fund and the amount appropriated annually by the legislature for
    53  use by the commission, each year  the  commission  shall  determine  the
    54  nondiscriminatory,  competitively neutral assessment on all telecommuni-
    55  cations service providers in New York that will be  necessary  to  cover
    56  the  cost  of  implementing  the high cost support mechanism.   Only the

        A. 1958                            19
 
     1  moneys from such assessment shall be transmitted to the state treasurer,
     2  who shall credit the same to the fund. All  interest  derived  from  the
     3  deposit  and  investment of this fund shall remain in the fund and shall
     4  not revert to the general fund.
     5    § 5. The public service law is amended by adding a new article 11-A to
     6  read as follows:
     7                                ARTICLE 11-A
     8                 STATEWIDE CABLE FRANCHISING AND REGULATION
     9  Section 231. Definitions.
    10          232. Authorization to provide cable service.
    11          233. Public service commission responsibilities.
    12          234. Application for statewide cable franchise.
    13          235. Length of statewide franchise.
    14          236. Termination of a statewide franchise.
    15          237. Abandonment of service.
    16          238. Municipal power and regulation over franchise holders.
    17          239. Payment and remittance of franchise fee.
    18          240. Public, educational and government channels.
    19          241. Cable operator's community commitment.
    20          242. Consumer protection rules.
    21          243. Neutral internet and broadband networks.
    22          244. Deployment requirements for statewide cable franchise.
    23          245. Discrimination in the provisioning of service prohibited.
    24          246. Enforcement.
    25    §  231.  Definitions. The words and phrases used in this article shall
    26  have the following meanings unless a different meaning  clearly  appears
    27  in the context.
    28    1.  "Cable service" shall mean the one-way transmission to subscribers
    29  of video programming;  or  other  programming  service,  and  subscriber
    30  interaction,  if any, which is required for the selection or use of such
    31  video programming or other programming service, regardless of the  tech-
    32  nology  utilized  by a cable television company to enable such selection
    33  or use.
    34    2. "Cable operator" shall mean any person or group of persons (a)  who
    35  provides  cable  service over a cable system and directly or through one
    36  or more affiliates owns a significant interest in such cable system,  or
    37  (b)  who  otherwise controls or is responsible for, through any arrange-
    38  ment, the management and operation of such a cable system, as set  forth
    39  in 47 U.S.C. § 522(5).
    40    3.  "Cable  system"  shall  mean  any facility, consisting of a set of
    41  closed transmission paths and associated  signal  generation,  reception
    42  and  control  equipment  that is designed to provide cable service which
    43  includes video programming, without regard to  the  technology  used  to
    44  deliver  such  video programming, including internet protocol technology
    45  or any successor technology and which is provided to multiple  subscrib-
    46  ers  within  a  community, as set forth in 47 U.S.C.  § 522(7), but such
    47  term does not include:
    48    (a) a facility that serves only to retransmit the  television  signals
    49  of one or more television broadcast stations;
    50    (b) a facility that serves subscribers without using any public right-
    51  of-way;
    52    (c)  a  facility  of a common carrier which is subject, in whole or in
    53  part, to the provisions of Title II of the Communications Act  of  1934,
    54  47 U.S.C. § 201 et seq., except that such facility shall be considered a
    55  cable  system  (other  than  for  purposes of 47 U.S.C. § 541(c)) to the
    56  extent such facility is used in the transmission  of  video  programming

        A. 1958                            20
 
     1  directly  to  subscribers,  unless  the  extent of such use is solely to
     2  provide interactive on-demand services;
     3    (d) an open video system that complies with 47 U.S.C. § 573; or
     4    (e)  any  facilities of any electric utility used solely for operating
     5  its electric utility system.
     6    4. "CATV company" shall mean any person or group of  persons  (a)  who
     7  provides  cable  service over a cable system and directly or through one
     8  or more affiliates owns a significant interest in such cable system,  or
     9  (b)  who  otherwise controls or is responsible for, through any arrange-
    10  ment, the management and operation of such a cable system.
    11    5. "CATV system" shall mean any facility which receives and  amplifies
    12  the  signals broadcast by one or more television stations and redistrib-
    13  utes such signals by wire, cable or other means,  or  which  distributes
    14  signals  it originates or which are originated by another for viewing by
    15  subscribers, whether the wire, cable or other facilities  are  owned  or
    16  leased. A "CATV system" shall not include:
    17    (a) the poles or other facilities of any telephone corporation used to
    18  provide channel service as a common carrier,
    19    (b) a system serving not more than two hundred fifty subscribers, or
    20    (c) a master antenna system servicing subscribers situated on property
    21  under common ownership.
    22    6.  "Commission"  shall  mean  the  public  service  commission or any
    23  successor agency.
    24    7. "Franchise" shall mean an initial authorization, or renewal  of  an
    25  authorization,  issued by a franchising authority, regardless of whether
    26  the authorization is designated as a franchise, permit, license,  resol-
    27  ution,  contract,  certificate, agreement, or otherwise, that authorizes
    28  the construction and operation of a cable system in the  public  rights-
    29  of-way.
    30    8. "Franchise holder" or "holder" shall mean a person who has received
    31  a state-wide franchise, but has not transferred or terminated such fran-
    32  chise authorization, in accordance with the provisions of this article.
    33    9.  "Franchising  authority"  shall mean the public service commission
    34  and municipalities which are entitled to require franchises  and  impose
    35  fees in accordance with 47 U.S.C. §§ 522(10) and 542, respectively.
    36    10.  "Gross revenues" shall mean any and all revenues, including cash,
    37  credits, property or other consideration of any kind or  nature  arising
    38  from, attributable to, or in any way derived directly or indirectly from
    39  the  operation  of  the franchisee's cable system (including the studios
    40  and other facilities associated therewith) to  provide  cable  services.
    41  Gross  revenues  include,  by  way  of  illustration and not limitation,
    42  monthly fees charged subscribers for any basic, optional, premium,  per-
    43  channel,  per-program  service,  or cable programming service; installa-
    44  tion, disconnection, reconnection, and  change-in-service  fees;  leased
    45  channel  fees;  late  fees  and  administrative fees, payments, or other
    46  consideration received from programmers for carriage of  programming  on
    47  the system; revenues from rentals or sales of converters or other equip-
    48  ment;  any  studio  rental,  production  equipment,  and personnel fees;
    49  advertising revenues; barter; revenues  from  program  guides;  revenues
    50  from  the  sale  or  carriage of other cable services; and revenues from
    51  home shopping channels and other  revenue  sharing  arrangements.  Gross
    52  revenues  shall  include  revenues received by any entity other than the
    53  franchisee, an affiliate, or another entity  that  operates  the  system
    54  where  necessary to prevent evasion or avoidance of the obligation under
    55  this statute to pay the franchise fee. Gross revenues shall not include:

        A. 1958                            21
 
     1    (a) amounts not actually received, even if billed, such as  bad  debt;
     2  refunds, rebates or discounts to subscribers or third parties; or reven-
     3  ue  imputed  from the provision of cable services for free or at reduced
     4  rates to any person as required or allowed by  law,  including,  without
     5  limitation,  the  provision  of  such  services  to public institutions,
     6  public schools, governmental entities, or employees, other than  forgone
     7  revenue  chosen  not  to  be  received  in exchange for trades, barters,
     8  services, or other items of value; or
     9    (b) any revenue from any charges or fees derived from services classi-
    10  fied as non-cable services and information services and any other reven-
    11  ues attributed by the holder of a certificate of approval or  systemwide
    12  franchise  to  non-cable  services  in  accordance with federal communi-
    13  cations commissions rules, regulations, standards, or orders.
    14    In the case of cable service that may be bundled or  integrated  func-
    15  tionally  with  other  services, capabilities or applications, the gross
    16  revenues shall only include  those  charges  or  fees  derived  from  or
    17  attributable  to  the  provision  of  cable service, as reflected on the
    18  books and records of the holder  of  a  certificate  of  approval  or  a
    19  systemwide  franchise, as the case may be, in accordance with the rules,
    20  regulations, standards and orders of the federal communications  commis-
    21  sion.
    22    11.  "Incumbent  cable operator" shall mean the cable operator serving
    23  the largest number of cable subscribers in a particular municipal  fran-
    24  chise area on the effective date of this article.
    25    12. "Municipality" shall mean a city or town within the state.
    26    13. "Person" shall mean an individual, partnership, association, joint
    27  stock  company, trust, corporation, government entity, limited liability
    28  company or any other entity.
    29    14. "Public right-of-way" shall mean the area on,  below  or  above  a
    30  public  roadway,  highway,  street, public sidewalk, alley, waterway, or
    31  utility easement in which a municipality has an interest.
    32    15. "Video programming" shall mean programming provided by, or  gener-
    33  ally  considered  comparable  to,  programming  provided by a television
    34  broadcast station, as set forth in 47 U.S.C. § 522(20).
    35    § 232. Authorization to provide cable service. 1. Notwithstanding  any
    36  other law to the contrary and subject to the provisions of this article,
    37  a  person seeking to provide cable service in the state after the effec-
    38  tive date of this article may file an application for a statewide  fran-
    39  chise with the commission as required by this section. This article does
    40  not  preclude  cable operators from filing individual applications under
    41  article eleven of this chapter, provided however that a person filing an
    42  application for a statewide  franchise  with  the  commission  shall  be
    43  required  upon  receipt  of  such  franchise to comply with sections two
    44  hundred forty-two and two  hundred  forty-three  of  this  article  with
    45  regard  to  all  in-state broadband and broadband-capable facilities and
    46  lines built during the initial build-out period pursuant to the authori-
    47  zation provided by such franchise, and for the  period  of  the  initial
    48  build-out  period  with  regard  to such person's in-state broadband and
    49  broadband-capable facilities and lines in existence when such  franchise
    50  becomes effective.
    51    2.  A  person,  including an incumbent cable operator, providing cable
    52  service under a franchise agreement with a franchising  authority  which
    53  existed  prior  to  the effective date of this article is not subject to
    54  this section until the franchise agreement expires at  the  end  of  its
    55  original or any mutually agreeable renewal term, or unless and until the

        A. 1958                            22
 
     1  franchising  authority and entity providing cable service mutually agree
     2  to terminate the existing franchise agreement.
     3    3. Nothing in this section shall restrict a cable operator from apply-
     4  ing  to  the  commission  for  a  statewide franchise to provision cable
     5  services in territories of the state for  which  it  does  not  have  an
     6  existing  franchise agreement with a franchising authority. For purposes
     7  of this section, a cable operator will be deemed to have a franchise  to
     8  provide  cable  service  in  the  jurisdiction of a specific franchising
     9  authority if any affiliate, predecessor or successor entity of the cable
    10  operator maintains a franchise granted by  that  franchising  authority.
    11  The  terms  "affiliate, predecessor or successor entity" in this section
    12  shall include but not be limited to any entity receiving,  obtaining  or
    13  operating  under a franchise from a franchising entity for cable service
    14  through the grant of a franchise, merger, sale, assignment,  restructur-
    15  ing, or any other type of transaction.
    16    4. The commission shall have the franchising authority to issue state-
    17  wide  franchises  for the provisioning of cable service under this arti-
    18  cle.   Neither the commission nor any  municipality  in  the  state  may
    19  require  the franchise holder to obtain any separate or additional fran-
    20  chise or otherwise impose any fee or other  requirement,  including  but
    21  not  limited  to the regulation of cable service rates, on any franchise
    22  holder as a condition of providing cable service, except as provided  in
    23  this article.
    24    5.  16 NYCRR § 895.3, as amended from time to time, shall not apply to
    25  this article.
    26    § 233. Public service commission responsibilities. 1.  The  commission
    27  shall assign existing permanent staff of such legal, technical and other
    28  employees of the commission as may be required for the proper conduct of
    29  its  cable  franchising  responsibilities under this article. The powers
    30  and duties of the public service commission with  respect  to  statewide
    31  franchises shall not exceed those prescribed in this article.
    32    2.  The  commission  shall  be responsible for establishing additional
    33  administrative procedures and regulations not explicitly granted in this
    34  article for the issuance of statewide franchises in accordance with  the
    35  provisions  of  this article. The commission's administrative powers and
    36  duties shall be limited to the provision found in  section  two  hundred
    37  thirty-four of this article and additional powers including the:
    38    (a)  Development of procedures to submit, review and document applica-
    39  tions filed with the commission;
    40    (b) Review of the initial submission and any updates  of  the  general
    41  description  of  the  service  area  footprint to be served or expanded,
    42  including, if applicable, any area within a municipality to be served by
    43  an applicant;
    44    (c) Determination and notice of incomplete applications;
    45    (d) Approval of applications and amended applications,  or  denial  of
    46  such applications, within the periods designated under the provisions of
    47  this article;
    48    (e)  Issuance to applicants whose applications are approved for state-
    49  wide franchises to provide cable service in the service  area  footprint
    50  described in the application; to construct, upgrade, operate or maintain
    51  a  network  capable of providing such service, and to use and occupy the
    52  public rights-of-way in the delivery of that service;
    53    (f) Development of procedures to review and document the  transfer  or
    54  termination of a statewide franchise;
    55    (g)  Establish  guidelines  in  addition to those developed by munici-
    56  palities under section two hundred thirty-eight of this article, to deal

        A. 1958                            23
 
     1  with any consumer complaints or complaints alleging  violations  of  any
     2  provisions  of  this article. Such guidelines shall be easily accessible
     3  to residents of the state and shall  be  posted  on  the  internet.  The
     4  commission  shall  also provide consumer complaint forms on the internet
     5  even if municipalities establish their  own  complaint  forms.  In  such
     6  cases,  municipalities  and  the  commission  will work cooperatively to
     7  address consumer complaints.
     8    § 234. Application for statewide cable franchise. 1. Any person  wish-
     9  ing  to  provide  cable service in the state after the effective date of
    10  this article may file an application for a statewide franchise with  the
    11  commission  as  required by this section. A statewide franchise applica-
    12  tion shall be accompanied by an application fee of ten thousand  dollars
    13  that  shall  be used by the commission to carry out the purposes of this
    14  article. Nothing in this section requires that any person or entity file
    15  an application for a statewide franchise.
    16    2. Applications for a statewide franchise shall  contain  but  not  be
    17  limited to:
    18    (a)  A statement that the applicant has filed or will timely file with
    19  the Federal Communications Commission all forms required by that  agency
    20  in advance of offering cable service in this state;
    21    (b)  A  statement  that  the applicant agrees to comply with all other
    22  applicable federal, state statutes and  regulations  and  all  generally
    23  applicable municipal ordinances and regulations, including without limi-
    24  tation  municipal  ordinances  and regulations regarding the time, place
    25  and manner of  using  and  occupying  public  rights-of-way  adopted  in
    26  accordance with state and federal law;
    27    (c)  A general description of the service area footprint to be served,
    28  including, if applicable, any area within a municipality to be served by
    29  the applicant. Such description may be set forth on one or more maps. If
    30  the applicant is a telephone corporation or an affiliate of a  telephone
    31  corporation, the service area will include a description of the territo-
    32  ry  in  which  the  company provides telephone service.  Descriptions of
    33  service area footprints shall be updated by the applicant prior  to  the
    34  expansion  of  cable  service  to a previously undesignated service area
    35  and, upon such expansion, written notice shall be given to  the  commis-
    36  sion  of  the new service area to be served by the applicant. The state-
    37  issued franchise area and any service area within the franchise area may
    38  extend beyond the area or areas where  the  applicant  has  pre-existing
    39  authority to occupy the public rights-of-way;
    40    (d)  The  location of the applicant's principal place of business, the
    41  names of the applicant's principal executive  officers,  and  the  name,
    42  address  and  telephone  number  of an officer, general partner or other
    43  employee of the applicant who will be responsible for  ongoing  communi-
    44  cations with the commission;
    45    (e)  The  name  and location of the principal place of business of the
    46  applicant's parent company, if any;
    47    (f) The signature of an officer or general partner  of  the  applicant
    48  verifying the information set forth in the application;
    49    (g) Demonstrate the financial, technical, managerial and legal charac-
    50  ter  and other qualifications needed to construct, operate, and maintain
    51  the necessary plant and to provide service in a safe, adequate and prop-
    52  er manner;
    53    (h) Provide a record of compliance with local, state and federal laws;
    54  and
    55    (i) Provide additional information as needed by the commission.

        A. 1958                            24
 
     1    3. Upon filing an application with the  commission  for  a  systemwide
     2  franchise  agreement  pursuant  to  subdivision two of this section, the
     3  applicant shall include a list of the specific municipalities  to  which
     4  CATV  service will be provided or extended, the anticipated construction
     5  and  deployment dates, and the anticipated date on which service will be
     6  offered and a certified statement that such  deployment  will  meet  the
     7  requirements  of  section  two  hundred  forty-four of this article. The
     8  applicant will concurrently provide a copy of the  application  to  each
     9  affected municipality.
    10    4. Within fifteen business days after it receives the application, the
    11  commission shall:
    12    (a) determine whether an application submitted is incomplete; and
    13    (b) if so, the commission shall notify the applicant that the applica-
    14  tion is incomplete and identify the information that the commission must
    15  receive from the applicant to make the application complete.
    16    5. Within sixty business days after it receives the completed applica-
    17  tion, the commission shall approve the application and issue a statewide
    18  franchise  to  the applicant, or deny the application. Within sixty days
    19  of the receipt thereof, the commission shall schedule three public hear-
    20  ings to be held in different geographical areas of  the  state  to  gain
    21  public  comment  in  consideration  of the application. On or before the
    22  expiration of the sixty-day period, the commission shall issue an  order
    23  in  writing approving the application if the applicant has complied with
    24  the requirements for a statewide  franchise,  or  the  commission  shall
    25  disapprove the application in writing citing the reasons for disapproval
    26  if  the  board determines that the application for a statewide franchise
    27  does not comply with the requirements for  a  statewide  franchise.  The
    28  commission may deny the application if the applicant has failed to state
    29  in  the  application  the  information  and  representations required by
    30  subdivision two of this section. If the commission denies  the  applica-
    31  tion,  it  must specify with particularity the reason or reasons for the
    32  denial, and the applicant may amend its application to  cure  any  defi-
    33  ciency.  The commission shall decide such amended application within ten
    34  business days of its submission to the commission by the applicant.   If
    35  the  commission  denies the application, the commission shall schedule a
    36  public meeting with the  applicant  to  explain  to  the  applicant  the
    37  reasons  for  the commission's disapproval. Such meeting shall be sched-
    38  uled no later than thirty days following the expiration of the sixty-day
    39  review period as required by this  section.  The  applicant  shall  have
    40  thirty  days  following  the  date of the meeting with the commission to
    41  file an appeal of the board's decision. The commission shall  thereafter
    42  schedule  an  administrative  hearing  not  later than the thirtieth day
    43  following the date of the filing of the applicant's appeal in  order  to
    44  consider  the  applicant's  appeal.  The  commission shall issue a final
    45  decision in written form on the applicant's appeal not  later  than  the
    46  sixtieth  day  following  the  administrative  hearing, required by this
    47  subdivision, on the applicant's appeal. After an  administrative  period
    48  an applicant may challenge a denial of its application or amended appli-
    49  cation in any court of competent jurisdiction.
    50    6.  A statewide franchise authorization issued by the commission shall
    51  contain:
    52    (a) A grant of a franchise to provide cable  service  in  the  service
    53  area  footprint  described  in  the  application; to construct, upgrade,
    54  operate or maintain a network capable of providing such service,  except
    55  where  this  grant  is  not  required  and  to use and occupy the public
    56  rights-of-way in the delivery of that service; and

        A. 1958                            25
 
     1    (b) A statement that the franchise grant in subdivision  one  of  this
     2  section  is  subject  to  lawful  operation  of the cable service by the
     3  applicant or its successor in interest.
     4    7.  An  applicant  having pre-existing authority to utilize the public
     5  rights-of-way is required to obtain a statewide franchise prior  to  the
     6  actual  provision  of  cable  service  on a commercial basis directly to
     7  subscribers. However, such an applicant is  not  required  to  obtain  a
     8  statewide  franchise or any municipality authorization, except for being
     9  subject  to  municipality  right-of-way  requirements,   in   order   to
    10  construct,  upgrade,  operate  or  maintain a network that is capable of
    11  providing cable service.
    12    8. A system-wide franchise issued by the board shall be  nontransfera-
    13  ble, except by written consent of the board.
    14    §  235. Length of statewide franchise. A statewide franchise issued by
    15  the commission shall be valid for ten years from the date  of  issuance.
    16  Renewal of a systemwide franchise shall be valid for a period of fifteen
    17  years  from  the  date of the renewal issuance, and the commission shall
    18  establish rules governing the renewal of a systemwide franchise.
    19    § 236. Termination of a statewide  franchise.  1.  A  franchise  shall
    20  terminate  at the expiration of its term or otherwise in accordance with
    21  the provisions thereof, unless, prior thereto, the commission  otherwise
    22  orders.  The  commission  may  so  order  only if it finds, after public
    23  notice and opportunity for a hearing, that the franchisee:
    24    (a) has committed a material breach of its franchise or any applicable
    25  provision of this article or of the  regulations  promulgated  hereunder
    26  and  has  failed,  without reasonable justification, to cure said breach
    27  within sixty days after having received written notice thereof from  the
    28  commission; or
    29    (b)  has  not met the requirements of sections two hundred forty-three
    30  and two hundred forty-four of this article;
    31    (c) has engaged in blocking of lawful content on web sites or services
    32  of competitors, or refused  to  interconnect  its  facilities  with  the
    33  facilities  of another provider of broadband network services on reason-
    34  able and nondiscriminatory terms or conditions; or
    35    (d) has been adjudicated a bankrupt or has filed a voluntary  petition
    36  for  bankruptcy  or reorganization or for an order protecting its assets
    37  from the claims of creditors and the commission finds  that  termination
    38  of the franchise or certificate of confirmation under such conditions is
    39  in the best interest of the public.
    40    2. Upon termination of a franchise or certificate of confirmation, the
    41  cable  operator  shall  dispose of its facilities in accordance with the
    42  provisions of the franchise or certificate. However, on  motion  of  any
    43  interested  party  or  upon  its own motion, and after public notice and
    44  opportunity for hearing, if the  commission  finds  that  the  continued
    45  presence  of  the  facilities  in  any  public thoroughfare would pose a
    46  nuisance to the municipality or its residents, the operator shall remove
    47  its facilities within such period as the commission shall order. In  the
    48  absence of any applicable franchise or certificate provision or order by
    49  the commission to the contrary, the cable television company may abandon
    50  its facilities.
    51    §  237.  Abandonment  of service. 1. No cable operator may abandon any
    52  service or portion thereof without  giving  six  months'  prior  written
    53  notice to the commission and to the franchisor, if any, and to the muni-
    54  cipalities it serves.
    55    2.  When  abandonment  of any service is prohibited by a franchise, no
    56  cable operator may abandon such service without written consent  of  the

        A. 1958                            26
 
     1  commission.  In  granting  such  consent, the commission may impose such
     2  terms, conditions or requirements as in its judgment  are  necessary  to
     3  protect the public interest.
     4    §  238. Municipal power and regulation over franchise holders. A muni-
     5  cipality may:
     6    1. Exercise its public rights-of-way authority over franchise holders,
     7  including requiring franchise holders to follow municipal ordinances  as
     8  well as all applicable local, state and federal laws;
     9    2. Receive, mediate, and resolve cable service quality complaints from
    10  a franchise holder's customers within the municipality;
    11    3.  Require  a  franchise holder who is providing cable service within
    12  the municipality to register with the municipality, maintain a point  of
    13  contact,  and  provide notice of any franchise authorization transfer to
    14  the municipality within fourteen business days after the  completion  of
    15  the transfer;
    16    4. Establish reasonable guidelines regarding the use of public, educa-
    17  tional,  and  governmental  access  channels  within the municipality in
    18  addition to those established in section two hundred forty-one  of  this
    19  article.
    20    § 239. Payment and remittance of franchise fee. 1. The franchise hold-
    21  er  who  offers  cable service within the jurisdiction of a municipality
    22  shall calculate and remit to the municipality at the end of each  calen-
    23  dar year quarter a franchise fee, as provided in this section. The obli-
    24  gation to calculate and remit the franchise fee to a municipality begins
    25  immediately  upon  provision of cable service within that municipality's
    26  jurisdiction, but the first remittance shall not be due until the end of
    27  the first calendar year quarter that is later than  one  hundred  eighty
    28  days after the provision of cable service began.
    29    2.  The franchise fee shall be calculated as a percentage of the hold-
    30  er's gross revenues, as defined in section  two  hundred  thirty-one  of
    31  this  article  and  shall be five percent.  A municipality may, by ordi-
    32  nance, change the percentage applied to the gross revenues of the  hold-
    33  er.
    34    3.  No  fee  under this section will become due until the municipality
    35  certifies and provides documentation to the franchise holder  supporting
    36  the  percentage  paid  by  any incumbent cable operator serving the area
    37  within the municipality's jurisdiction.
    38    4. No municipality or any other political subdivision  of  this  state
    39  may  assess any additional fees or charges or require other remuneration
    40  of any kind from the franchise holder other than as set  forth  in  this
    41  section,  provided,  however,  that the provision of in-kind services or
    42  support, personnel and funding  dedicated  to  public,  educational  and
    43  government  facilities  and  services shall not be considered additional
    44  fees, charges or remuneration.
    45    5. For purposes of this section, in the case of a cable  service  that
    46  may be bundled or integrated functionally with other services, capabili-
    47  ties  or  applications,  the  franchise fee shall be applied only to the
    48  gross revenues, as  defined  in  this  article,  attributable  to  cable
    49  service  or  the use of the cable system and facilities, as reflected on
    50  the books and  records  of  the  holder  in  accordance  with  generally
    51  accepted  accounting  principles  and  Federal Communications Commission
    52  rules, regulations, standards or orders, as applicable.
    53    6. The franchise fee shall be remitted to the applicable  municipality
    54  quarterly,  within  forty-five days after the end of the quarter for the
    55  preceding calendar quarter. Each  payment  shall  be  accompanied  by  a
    56  summary  explaining  the basis for the calculation of the franchise fee.

        A. 1958                            27
 
     1  Not more than once annually, a municipality may  examine  the  franchise
     2  holder's  business  records to the extent reasonably necessary to ensure
     3  compensation in accordance with this section. Each party shall bear  the
     4  party's  own costs of the examination. Any claims by a municipality that
     5  compensation is not in accordance with this section, and any claims  for
     6  refunds  or other corrections to the remittance of the franchise holder,
     7  must be made within three years and forty-five days of the  end  of  the
     8  quarter for which compensation is remitted, or three years from the date
     9  of  remittance,  whichever  is later. Either a municipality or the fran-
    10  chise holder may, in the event  of  a  dispute  concerning  compensation
    11  under  this  section,  bring an action in a court of competent jurisdic-
    12  tion.
    13    § 240. Public, educational and government channels. 1. In addition  to
    14  the  requirements  set  forth  in 16 NYCRR Sec. 894.4 (as may be amended
    15  from time to time), the franchise holder shall provide the  municipality
    16  with  capacity  in  its  cable  system to allow public, educational, and
    17  governmental (PEG) access channels for  noncommercial  programming.  For
    18  the  purposes  of  this section, PEG channels shall be defined as analog
    19  channels of six megahertz bandwidth or the same as any other channel  on
    20  the  basic  tier,  whichever is greater. In addition to the requirements
    21  set forth in this section, the commission may issue additional rules  or
    22  guidelines  regarding  PEG access channels. The holder shall provide the
    23  same ancillary services to the PEG channels and entities as  the  incum-
    24  bent provider.
    25    2. The franchise holder shall designate a sufficient amount of capaci-
    26  ty  on its cable system to allow the provision of a comparable number of
    27  PEG channels or hours of programming that the incumbent  cable  operator
    28  has  activated  and  provided within the municipality under the terms of
    29  its franchise agreement as of the effective date of this article.  If  a
    30  municipality did not have PEG access channels as of that date, the cable
    31  operator  shall furnish to the municipality upon request up to three PEG
    32  channels for a municipality with a population of at least fifty thousand
    33  and up to two PEG channels for a municipality with a population of  less
    34  than  fifty thousand. For the purposes of this section, a PEG channel is
    35  deemed activated if it is being utilized for PEG programming within  the
    36  municipality for at least eight hours per day and if such programming is
    37  not broadcast more than once in every eight hours. The holder shall have
    38  twelve  months from the date the municipality requests such PEG channels
    39  to designate the capacity;  provided,  however,  that  the  twelve-month
    40  period  shall  be  tolled  by any period during which the designation or
    41  provision of PEG channel capacity is technically  infeasible,  including
    42  any  failure  or  delay of the incumbent cable operator to make adequate
    43  interconnection available, as required by this section. In cities with a
    44  population of one million or more persons, if a system has  total  acti-
    45  vated  bandwidth  in excess of eight hundred sixty-two megahertz then at
    46  least two additional PEG channels shall be  set  aside  by  the  holder,
    47  including one for public access.
    48    3. The franchise holder may submit to the commission an application to
    49  cease  providing  any PEG channel provided pursuant to this section that
    50  is not utilized by the municipality for at least eight  hours  per  day,
    51  and  except as provided herein, the channel may thereafter be programmed
    52  at the franchise holder's discretion. The commission may hold a  hearing
    53  in  the  municipality  to  aid  in  making  its determination whether to
    54  approve the application. The commission shall issue  a  decision  within
    55  thirty  business  days  of  the franchisee's application. If the munici-
    56  pality subsequently certifies to the commission and  holder  a  schedule

        A. 1958                            28
 
     1  for at least eight hours of daily non-repeat PEG channel programming per
     2  channel,  the  holder  shall restore the PEG channel or channels for the
     3  use of the municipality for as long as the municipality uses the channel
     4  or channels for at least eight hours a day.
     5    4. The content and operation of any PEG access channel provided pursu-
     6  ant  to  this  section  shall be the responsibility of the municipality,
     7  receiving the benefit of such channel, and the  franchise  holder  bears
     8  only the responsibility for the transmission of such channel, subject to
     9  reasonable  technological  constraints.  The  franchise  holder shall be
    10  responsible for providing the connectivity, as well as  other  equipment
    11  necessary,  to each PEG access channel programming distribution location
    12  and for doing so without charge for up to the first two hundred feet  of
    13  the holder's connecting facilities.
    14    5.  The  municipality,  or  its designees, must ensure that all trans-
    15  missions, content, or programming to be transmitted over  a  PEG  access
    16  channel  or  facility by a franchise holder are provided or submitted to
    17  the cable operator in a manner or form that is capable of being accepted
    18  and transmitted by the cable operator,  without  requirement  for  addi-
    19  tional  alteration  or change in the content by the cable operator, over
    20  the cable system of the  cable  operator.  The  municipality's,  or  its
    21  designees'  provision  of  PEG  content  to  the holder shall constitute
    22  authorization for the holder to carry such  content  including,  at  the
    23  holder's  option,  beyond  the  jurisdictional boundaries of the munici-
    24  pality.
    25    6. The franchise holder and an  incumbent  cable  operator  shall  use
    26  reasonable  efforts  to interconnect their cable systems for the purpose
    27  of providing PEG programming. Interconnection  may  be  accomplished  by
    28  direct  cable,  microwave link, satellite, or other reasonable method of
    29  connection. Franchise holders and incumbent cable operators shall  nego-
    30  tiate  in  good  faith  and  incumbent  cable operators may not withhold
    31  interconnection of PEG channels. In the event a franchise holder and  an
    32  incumbent  cable  operator  cannot reach a mutually acceptable intercon-
    33  nection agreement, then the duty of the holder shall  be  discharged  if
    34  the  holder makes interconnection available to the channel originator at
    35  a point on the holder's network determined by the holder.
    36    7. The PEG channels shall be for the exclusive use of the local entity
    37  or its designee to provide public, educational, and  governmental  chan-
    38  nels.    The PEG channels shall be used only for noncommercial purposes.
    39  However, advertising, underwriting, or sponsorship  recognition  may  be
    40  carried  on  the  channels for the purpose of funding PEG-related activ-
    41  ities. The PEG channels shall all be carried on the basic service  tier.
    42  To  the  extent feasible, the PEG channels shall not be separated numer-
    43  ically from other channels carried on the basic  service  tier  and  the
    44  channel  numbers  for the PEG channels shall be the same channel numbers
    45  used by the incumbent cable operator unless prohibited by  federal  law.
    46  After  the  initial  designation  of  PEG  channel  numbers, the channel
    47  numbers shall not be changed without the agreement of the  local  entity
    48  unless  the  change  is  required  by federal law. Each channel shall be
    49  capable of carrying a national television system committee (NTSC)  tele-
    50  vision signal.
    51    8.  The  content to be provided over the PEG channel capacity provided
    52  pursuant to this section shall be the responsibility of the local entity
    53  or its designee receiving the benefit of that capacity, and  the  holder
    54  of  a state franchise bears only the responsibility for the transmission
    55  of that content, subject to technological restraints.

        A. 1958                            29
 
     1    9. The PEG signal shall be receivable by all subscribers, whether they
     2  receive digital or analog service, or a combination thereof, without the
     3  need for any equipment other than the equipment necessary to receive the
     4  lowest cost tier of service. The PEG access capacity provided  shall  be
     5  of similar quality and functionality to that offered by commercial chan-
     6  nels on the lowest cost tier of service unless the signal is provided to
     7  the holder at a lower quality or with less functionality.
     8    10.  After January first, two thousand eighteen, and until the expira-
     9  tion of the incumbent cable operator's franchise, if the incumbent cable
    10  operator has existing unsatisfied obligations  under  the  franchise  to
    11  remit  to  the  local  entity  or its designee any cash payments for the
    12  ongoing costs of public,  educational,  and  government  access  channel
    13  facilities,  the  local  entity,  or  its designee for the public access
    14  channels, shall divide those cash payments  among  all  cable  or  video
    15  providers as provided in this section. The fee shall be the holder's pro
    16  rata per subscriber share of the cash payment required to be paid by the
    17  incumbent  cable  operator to the local entity or its designee community
    18  access organization for the costs of PEG channel facilities.  All  video
    19  service  providers  and the incumbent cable operator shall be subject to
    20  the same requirements for recurring payments  for  the  support  of  PEG
    21  channel  facilities,  whether expressed as a percentage of gross revenue
    22  or as an amount per subscriber, per month, or otherwise.
    23    11. A local entity shall establish a payment for the  ongoing  support
    24  of  the  cost of PEG facilities and services that would become effective
    25  subsequent to the  expiration  of  any  fee  imposed  by  this  article,
    26  provided,  however,  that  no  such fee shall be allocated such that any
    27  community access organization is receiving anything less than what it is
    28  receiving from the cable operator on the effective date of  this  legis-
    29  lation, and provided, however, that every local entity shall be entitled
    30  to  a  payment  of  not less than two percent from the holder of a state
    31  franchise for the ongoing support of the  cost  of  PEG  facilities  and
    32  services.  If, on December thirty-first, two thousand seventeen, a local
    33  entity or its designee was imposing a separate fee to support PEG  chan-
    34  nel  facilities  that  is  in  excess of two percent, that entity or its
    35  designee may establish a fee no greater than that separate fee,  and  in
    36  no  event  greater than three percent, to support PEG activities. If the
    37  PEG support fee imposed by a local entity or its designee  is  expressed
    38  in  a  manner  other  than  as a percentage of gross revenues, the local
    39  entity or its designee community access organization  may  convert  that
    40  fee  to a currently equivalent percentage of gross revenues at any time.
    41  The local  entity  or  its  designee  may  adopt  requirements  for  the
    42  provision  of  PEG-related  in-kind  resources  by  all  cable and video
    43  service providers.
    44    12. Rules and regulations adopted by the community access organization
    45  shall govern the use of any channel time on the public channels as  well
    46  as  the  equipment,  facilities and services related to the public chan-
    47  nels.
    48    13. The commission, through an administrative  proceeding  shall  have
    49  the original jurisdiction to enforce any requirements under this section
    50  to  resolve  any  dispute  regarding  the requirements set forth in this
    51  section. After the administrative  process  is  exhausted,  a  court  of
    52  competent  jurisdiction  shall have jurisdiction to enforce any require-
    53  ment under this section or resolve any dispute  regarding  the  require-
    54  ments  set  forth  in  this section, and no cable operator may be barred
    55  from the provision of cable service or be required  to  terminate  cable
    56  service as a result of such dispute or enforcement action.

        A. 1958                            30
 
     1    §  241.    Cable  operator's  community commitment. 1. Cable operators
     2  shall install and retain or provide, without charge, one service  outlet
     3  activated  for  basic  service  to  any  and  all  fire stations, public
     4  schools, police stations, public libraries and other such buildings used
     5  for municipal purposes.
     6    2.  Cable  operators  shall  provide internet service, without charge,
     7  through one service outlet activated for basic service to  any  and  all
     8  fire  stations,  public  schools, police stations, public libraries, and
     9  other such building used for municipal purposes.
    10    § 242. Consumer  protection  rules.  1.  Every  cable  operator  shall
    11  provide  safe, adequate and reliable service in accordance with applica-
    12  ble laws, regulations, and franchise requirements. Cable operators  with
    13  a statewide franchise are subject to the requirements under sections two
    14  hundred  twenty-four  and  two hundred twenty-four-a of this chapter and
    15  any other customer service standards  pertaining  to  the  provision  of
    16  video  service  established  by  federal law or regulation or adopted by
    17  subsequent enactment  of  the  legislature.  All  customer  service  and
    18  consumer  protection  standards  under this section shall be interpreted
    19  and applied to accommodate newer or different technologies while meeting
    20  or exceeding the goals of these standards.
    21    2. In addition, cable operators:
    22    (a) shall clearly  and  conspicuously  disclose  to  users,  in  plain
    23  language,  accurate  information  concerning  any  terms, conditions, or
    24  limitations on the broadband network service they offer, the  speeds  of
    25  the download and uploading speeds of the provider's internet service;
    26    (b) provide their broadband network services on reasonable and nondis-
    27  criminatory  terms  and  conditions  such  that  any person can offer or
    28  provide content, applications, or services to or over the network  in  a
    29  manner that is at least equal to the manner in which the provider or its
    30  affiliates  offer  content,  applications,  and  services,  free  of any
    31  surcharge on the basis of the content, application, or service;
    32    (c) interconnect their facilities with the facilities of other provid-
    33  ers of broadband network services on  reasonable  and  nondiscriminatory
    34  terms or conditions.
    35    §  243.  Neutral  internet and broadband networks. 1.  Cable operators
    36  shall not:
    37    (a) block, impair, discriminate against, or interfere with the ability
    38  of any person to use internet based traffic based on the source,  desti-
    39  nation, or ownership of the internet traffic that carries video service,
    40  in a manner that degrades or otherwise negatively impacts the access to,
    41  or the quality of services received by an end user;
    42    (b)  engage  in  any  exclusive or preferential dealings regarding the
    43  carriage and treatment of internet traffic, including, but  not  limited
    44  to,  traffic  that  carries  video programming or video service, with an
    45  affiliate or third party provider of  internet  applications,  services,
    46  content, or video services;
    47    (c) impose an additional charge to avoid any conduct that is prohibit-
    48  ed by this section;
    49    (d) prohibit a user from attaching or using a device on the provider's
    50  internet  or  broadband network that does not physically damage or mate-
    51  rially degrade other users' utilization of the network.
    52    2. Nothing in this section shall be construed to prevent  a  broadband
    53  or internet network provider from taking reasonable and nondiscriminato-
    54  ry measures:
    55    (a)  to  manage the functioning of its network to protect the security
    56  and to offer parental controls and other consumer protection measures of

        A. 1958                            31
 
     1  such network and broadband or internet network services if such  manage-
     2  ment  does not result in discrimination among the content, applications,
     3  or services on the network;
     4    (b) to give priority to emergency communications; or
     5    (c)  to  prevent  a  violation of a federal or state law, or to comply
     6  with an order of a court to enforce  such  law,  or  such  other  action
     7  against  network  threats  as  may  be authorized in section two hundred
     8  fifteen of this chapter.
     9    § 244. Deployment requirements for statewide cable franchise. 1.    As
    10  part  of any franchise issued by the commission in this article, a cable
    11  operator shall be required to:
    12    (a) Begin providing cable service on a commercial basis, within  three
    13  years of issuance of the system-wide franchise, in:
    14    (i)  each  county seat that is within the CATV company's service area;
    15  and
    16    (ii) each municipality within the CATV company's service area that has
    17  a population density greater than seventy-one hundred eleven persons per
    18  square mile of land area, as  determined  by  the  most  recent  federal
    19  decennial  census,  provided, however, that if such county seats are not
    20  located within or contiguous to such municipalities,  each  such  county
    21  seat  shall  be  interconnected to the nearest municipality with a popu-
    22  lation density greater than persons per square mile of land area by  the
    23  cable operator; and
    24    (b) Make cable television service available throughout the residential
    25  areas  on  a  commercial  basis,  before the beginning of the sixth year
    26  after the issuance of the system-wide franchise, in:
    27    (i) each municipality within the state that has a  population  density
    28  greater  than  five hundred one persons per square mile of land area, as
    29  determined by the most recent federal decennial census; and
    30    (ii) throughout the residential areas of any municipalities served  by
    31  central  offices  located  within  a county seat within the franchisee's
    32  service area, subject to the cable  operator's  line  extension  policy;
    33  provided,  however,  a  CATV  company may apply to the commission for an
    34  exemption from this requirement if the board finds, after  conducting  a
    35  hearing  with full notice and opportunity to be heard, that the areas in
    36  question are areas in which the CATV company is  unable  to  access  the
    37  public rights-of-way under reasonable terms and conditions.
    38    2.  The  requirements  of  subdivision  one of this section shall only
    39  apply to cable operators that  on  the  date  of  the  issuance  of  the
    40  system-wide  franchise  provide  more  than  forty  percent of the local
    41  exchange telephone service market in this state; and to cable  operators
    42  that  on  the  date of the issuance of the system-wide franchise provide
    43  two hundred fifty thousand or more local  exchange  telephone  lines  in
    44  this state;
    45    3.  Incumbent  cable companies that become statewide franchise holders
    46  shall not reduce the number or percentage  of  households  served;  will
    47  build  out  to all residential households subject to the operator's line
    48  extension policy within three years; and will upgrade  their  facilities
    49  to  the  entire  service  area  within three years of the date the cable
    50  operator upgrades any part of its facilities.
    51    4. Within three years of the issuance of the system-wide franchise all
    52  other statewide franchise holders shall fully complete a system  capable
    53  of providing cable service to all households within the cable operator's
    54  service area, subject to the cable operator's line extension policy.
    55    §  245.   Discrimination in the provisioning of service prohibited. 1.
    56  The franchise holder shall become capable of providing cable service  to

        A. 1958                            32
 
     1  all  households  within  the  designated service area footprint. A cable
     2  operator that has been granted a statewide franchise under this  article
     3  shall  not  deny access to cable service to any group of potential resi-
     4  dential  subscribers  because  of the income or race of the residents in
     5  the local area in which such group resides. A franchisee must submit  to
     6  the  commission  a deployment schedule, setting forth the municipalities
     7  to be served, the date service shall  begin  in  each  proposed  munici-
     8  pality,  and  a  date  certain  by  which each community will be able to
     9  receive cable service. The commission will  ensure  that  the  build-out
    10  process  is  not  discriminatory  based  on  an area's class or race. If
    11  deployment of cable services under a statewide  franchise  is  scheduled
    12  for deployment in a given area, the cable operator must offer service to
    13  all residents within the geographic area or the commission may terminate
    14  the  franchise  pursuant to section two hundred thirty-six of this arti-
    15  cle.
    16    2. Notwithstanding any other provision of law,  the  franchise  holder
    17  shall  comply  with  customer  service requirements set forth in article
    18  eleven of this chapter, at 47 C.F.R.  § 76.309(c) and any other customer
    19  service standards pertaining to the provision of  video  service  estab-
    20  lished  by  federal  law or regulation or by subsequent enactment of the
    21  legislature. All customer  service  and  consumer  protection  standards
    22  under this section shall be interpreted and applied to accommodate newer
    23  or  different technologies while meeting or exceeding the goals of these
    24  standards.
    25    3. If the commission determines  that  a  cable  operator  has  denied
    26  access  of cable service to a group of potential residential subscribers
    27  because of the income levels of the residents of the local area in which
    28  such group resides or  has  failed  to  meet  the  requirements  of  the
    29  section,  the  commission  is  authorized to, after conducting a hearing
    30  with full notice and opportunity to be heard, impose monetary  penalties
    31  of not less than fifty thousand dollars, nor more than one hundred thou-
    32  sand  dollars  per  municipality, not to exceed a total of three million
    33  six hundred fifty thousand dollars per year for all violations. A  muni-
    34  cipality  in  which the provider offers cable service shall be an appro-
    35  priate party in any such proceeding.
    36    § 246. Enforcement. The exclusive remedy for enforcing the  provisions
    37  of  this  article,  notwithstanding  specific  sections of this article,
    38  shall be an action in a  court  of  competent  jurisdiction  brought  by
    39  either  the  municipality, the attorney general on behalf of the commis-
    40  sion or other injured party. At least sixty days before bringing such an
    41  action, the municipality or attorney general shall serve  the  franchise
    42  holder  with a notice setting out the alleged violation and stating that
    43  an action  may  be  brought  unless  the  holder  corrects  the  alleged
    44  violation  or  enters  into a binding agreement to correct the violation
    45  within the sixty-day notice period. The notice shall  contain  a  suffi-
    46  ciently  detailed  description  of  the  alleged violation to enable the
    47  franchise holder to make a specific response.
    48    § 6. Section 215 of the public service law is amended by adding a  new
    49  subdivision 14 to read as follows:
    50    14.  Require that cable television franchises contain, upon submission
    51  for  certificates  of  confirmation, provisions requiring that the cable
    52  television services franchisee deliver to the franchisor and the commis-
    53  sion, on an annual basis, a written report describing every instance  in
    54  which  such franchisee blocks, limits or otherwise restricts subscribers
    55  or other purchasers of  broadband  services  from  the  franchisee  from
    56  accessing  any  particular internet site or category or type of internet

        A. 1958                            33
 
     1  site or any specific electronic mail message  or  category  or  type  of
     2  electronic  mail  ("neutrality  report").  Such  neutrality report shall
     3  contain detail of a specificity level to be determined  by  the  commis-
     4  sion, and shall contain sufficient detail to allow the commission or the
     5  franchisor  to ascertain the nature of any blocking, limitation or other
     6  restrictions, and the reason for the franchisee for taking such  action,
     7  but  shall  be  provided  in  a  manner reasonably calculated to protect
     8  subscriber privacy or the legitimate needs of law  enforcement.  Nothing
     9  in this subdivision shall be interpreted to restrict the rights of fran-
    10  chisees,  if  they  so choose, to block, limit or otherwise restrict the
    11  passage of electronic mail messages  or  other  content  that  transmit,
    12  portray,  describe, represent or otherwise contain matters such as child
    13  pornography or similar obscenity, other unlawful  material,  threats  of
    14  serious bodily harm, threats to the public safety and homeland security,
    15  threats  of  death  to  individuals or groups of individuals, viruses or
    16  similar computer generated programs or code that have the  potential  to
    17  harm  computer hardware and/or software and/or networks, excessive unso-
    18  licited commercial email that degrades or interferes with or  harms  the
    19  normal operation of broadband networks, and other similar types or forms
    20  of  material  or  software (the foregoing examples are illustrative, not
    21  exhaustive of such threats to users  and/or  the  network,  collectively
    22  hereafter  "network  threats").  Blocking  or  limitation  of subscriber
    23  access to the maximally diverse internet, if  not  predicated  upon  the
    24  franchisee's  right  to  defend  its  network  and  subscribers  against
    25  "network threats", shall presumptively be a breach of the franchise.  No
    26  franchisee  shall  be  responsible or liable for any efforts by or poli-
    27  cies, practices or  procedures  of  an  unaffiliated  telecommunications
    28  services  provider  or  internet  services provider or internet protocol
    29  traffic routing entity to block subscribers from accessing any  internet
    30  site or any category or type of internet site or any specific electronic
    31  mail message or any category or type of electronic mail.
    32    §  7.  Section 99 of the public service law is amended by adding a new
    33  subdivision 4 to read as follows:
    34    4.  No building owner may discriminate against  a  telephone  company,
    35  broadband  services  or advanced communications company or their ability
    36  to provide services to one or more tenants of  a  multi-tenant  property
    37  that is owned or controlled by the building owner, including discrimina-
    38  tory  terms  and  conditions  by  which the telephone company, broadband
    39  services or advanced communications company gain physical access to  the
    40  property to place its facilities and provide telecommunications services
    41  to  the  property's  tenants.  The commission shall have jurisdiction to
    42  implement the provisions of this subdivision by  appropriate  rules  and
    43  regulations  and  to  administratively adjudicate disputes arising under
    44  this subdivision. In no event may the lack of agreement over  terms  and
    45  conditions  of  access  delay  the  ability of a requesting telecommuni-
    46  cations company to obtain access for more than thirty days following  an
    47  initial request therefor.
    48    § 8. Subdivision 2 of section 99 of the public service law, as amended
    49  by chapter 383 of the laws of 1996, is amended to read as follows:
    50    2.  (a) No franchise nor any right to or under any franchise to own or
    51  operate a telegraph line or telephone line  shall  be  assigned,  trans-
    52  ferred,  or  leased,  nor shall any contract or agreement hereafter made
    53  with reference to or affecting any such franchise or right be  valid  or
    54  of  any  force  or effect whatsoever[,] unless the assignment, transfer,
    55  lease, contract, or agreement shall have been approved  by  the  commis-
    56  sion.

        A. 1958                            34

     1    (b)  No  telephone  corporation  shall  transfer or lease its works or
     2  system or any part of such works or system to any other person or corpo-
     3  ration or contract for the operation of its works or  system[,]  without
     4  the  written  consent of the commission. [Notwithstanding the foregoing,
     5  any  such  transfer  or  lease  between  affiliated corporations with an
     6  original cost of (a) less than one hundred thousand dollars proposed  by
     7  a  telephone  corporation  having annual gross revenues in excess of two
     8  hundred million dollars, (b)  less  than  twenty-five  thousand  dollars
     9  proposed by a telephone corporation having annual gross revenues of less
    10  than  two  hundred million but more than ten million dollars or (c) less
    11  than ten thousand dollars proposed by  a  telephone  corporation  having
    12  annual  gross  revenues  of  less than ten million dollars and any other
    13  transfer or lease between non-affiliates regardless  of  cost  shall  be
    14  effective  without  the  commission's written consent within ninety days
    15  after such corporation notifies the commission that it plans to complete
    16  such transfer or lease and submits a  description  of  the  transfer  or
    17  lease,  unless  the  commission, or its designee, determines within such
    18  ninety days that the public interest requires  the  commission's  review
    19  and written consent.]
    20    (c) (1) No consent shall be given by the commission to the assignment,
    21  transfer, or lease of any right or franchise to operate a telegraph line
    22  or  telephone line unless it shall have been shown that such assignment,
    23  transfer, or lease is in the public interest.
    24    (2) No consent shall be given by the  commission  to  the  assignment,
    25  transfer,  or  lease  of any right or franchise to operate any part of a
    26  telephone corporation's works or system, or to a contract for the opera-
    27  tion of such entity's works or system, unless it shall have  been  shown
    28  that  such  assignment,  transfer, or lease or contract is in the public
    29  interest.
    30    (d) Before authorizing the merger, acquisition, assignment, lease,  or
    31  transfer  of  control  of  any telephone corporation organized and doing
    32  business in this state, where any of the entities that  are  parties  to
    33  the  proposed  transaction  has gross annual New York revenues exceeding
    34  two hundred million dollars, the commission shall find that the proposal
    35  does all of the following:
    36    (1) Provides short-term and long-term economic benefits to ratepayers.
    37    (2) Equitably allocates, where the commission has ratemaking  authori-
    38  ty,  the total short-term and long-term forecasted economic benefits, as
    39  determined by the commission, of the proposed  merger,  acquisition,  or
    40  control  between  shareholders  and ratepayers. Ratepayers shall receive
    41  not less than forty percent of such benefits.
    42    (3) Maintains or improves the financial  condition  of  the  resulting
    43  telephone  corporations  doing business in the state and does not unrea-
    44  sonably allocate a telephone corporation's debt to a divestiture  entity
    45  created  from an existing telephone corporation. For the purpose of this
    46  section, a divestiture entity  is  a  business  entity  created  by  the
    47  assignment,  exchange,  sale,  or  other  transfer  of some or all of an
    48  existing telephone corporation's lines, system, or works to a new  tele-
    49  phone corporation.
    50    (4)  Maintains  or improves the quality of service to telephone corpo-
    51  ration ratepayers in the state.
    52    (5) Maintains or improves the quality of management of  the  resulting
    53  telephone corporation doing business in the state.
    54    (6)  Is  fair and reasonable to affected telephone corporation employ-
    55  ees, including both union and nonunion employees.

        A. 1958                            35
 
     1    (7) Is fair and reasonable to the majority of all  affected  telephone
     2  corporations.
     3    (8) Is beneficial on an overall basis to state and local economies and
     4  to  the  communities in the area served by the resulting entity and does
     5  not allocate substantially unfunded pension or health  care  obligations
     6  or other employee benefits to a resulting telephone corporation.
     7    (9)  Preserves  the jurisdiction of the commission and the capacity of
     8  the commission to effectively regulate and audit  telephone  corporation
     9  operations in the state.
    10    (10)  Provides  mitigation  measures  to  prevent  significant adverse
    11  consequences which may result.
    12    (11) Does not adversely affect competition. In  making  this  finding,
    13  the  commission  shall  request  an  advisory  opinion from the attorney
    14  general regarding whether or not competition will be adversely  affected
    15  and  what mitigatory measures could be adopted to avoid any such adverse
    16  effect.
    17    (e) When reviewing a  merger,  acquisition,  or  transfer  of  control
    18  proposal,  the  commission  shall  consider  reasonable  alternatives or
    19  modifications to the proposal recommended by other parties, including no
    20  merger, acquisition, or control, to determine whether or not  comparable
    21  short-term  and long-term economic savings can be achieved through other
    22  means while avoiding the possible adverse consequences of the proposal.
    23    (f) The person or corporation seeking  acquisition  or  control  of  a
    24  telephone  corporation  organized and doing business in this state shall
    25  have before the commission the burden of proving by a  preponderance  of
    26  the  evidence that the requirements of paragraph (d) of this subdivision
    27  are met.
    28    (g) In determining whether or not an acquiring  telephone  corporation
    29  has  gross  annual  revenues exceeding the amount specified in paragraph
    30  (d) of this subdivision, the revenues of  that  telephone  corporation's
    31  affiliates  shall  not  be  considered,  unless  the  affiliate is to be
    32  utilized for the purpose  of  effecting  such  merger,  acquisition,  or
    33  control.
    34    (h)  Subparagraphs  one  and  two of paragraph (d) of this subdivision
    35  shall not apply to the formation of a holding company.
    36   (i) Subparagraphs one and two of  paragraph  (d)  of  this  subdivision
    37  shall  not apply to acquisitions or changes in control that are mandated
    38  by either the commission or the legislature.
    39    § 9. Section 100 of the public service law, as amended by chapter  226
    40  of the laws of 2009, is amended to read as follows:
    41    § 100. Transfer and ownership of stock. 1. No telegraph corporation or
    42  telephone  corporation,  domestic  or  foreign, shall hereafter purchase
    43  [or], acquire, take, or hold any part of the capital stock of any  tele-
    44  graph  corporation  or telephone corporation organized or existing under
    45  the laws of this state unless authorized so to do by the commission.
    46    2. Save where stock shall be transferred or held for  the  purpose  of
    47  collateral security, no stock corporation, domestic or foreign, company,
    48  including, but not limited to, a limited liability company, association,
    49  including  a  joint  stock association, partnership, including a limited
    50  liability partnership, or person, other than a telegraph corporation  or
    51  telephone  corporation,  shall,  without  the consent of the commission,
    52  purchase [or], acquire, take, or hold more than ten [per centum] percent
    53  of the voting capital stock issued by any telegraph corporation or tele-
    54  phone corporation organized or existing under or by virtue of  the  laws
    55  of  this  state.  Any corporation now lawfully holding a majority of the
    56  voting capital stock of any telegraph corporation  or  telephone  corpo-

        A. 1958                            36
 
     1  ration  may, without the consent of the commission, acquire and hold the
     2  remainder of the voting capital stock of such telegraph  corporation  or
     3  telephone corporation[,] or any portion thereof.
     4    3.  (a) No consent shall be given by the commission to the acquisition
     5  of any stock in accordance with this section unless it shall  have  been
     6  shown that such acquisition is in the public interest[; provided, howev-
     7  er,  that any], which the commission shall determine by finding that the
     8  proposal does all of the following,  to  the  extent  determined  to  be
     9  applicable:
    10    (i) Provides short-term and long-term economic benefits to ratepayers.
    11    (ii)  Equitably  allocates,  where applicable and where the commission
    12  has ratemaking authority, the total short-term and long-term  forecasted
    13  economic  benefits,  as  determined  by  the commission, of the proposed
    14  acquisition, purchase, sale, transfer, or retention between shareholders
    15  and ratepayers. Ratepayers shall receive not less than forty percent  of
    16  those benefits.
    17    (iii)  Maintains  or improves the financial condition of the resulting
    18  telephone corporations doing business in the state and does  not  unrea-
    19  sonably  allocate a telephone corporation's debt to a divestiture entity
    20  created from an existing telephone corporation. For the purpose of  this
    21  section,  a  divestiture  entity  is  a  business  entity created by the
    22  assignment, exchange, sale, or other transfer  of  some  or  all  of  an
    23  existing  telephone corporation's lines, system, or works to a new tele-
    24  phone corporation.
    25    (iv) Maintains or improves the quality of service to telephone  corpo-
    26  ration ratepayers in the state.
    27    (v)  Maintains  or improves the quality of management of the resulting
    28  telephone corporation doing business in the state.
    29    (vi) Is fair and reasonable to affected telephone corporation  employ-
    30  ees, including both union and non-union employees.
    31    (vii) Is fair and reasonable to the majority of all affected telephone
    32  corporations.
    33    (viii)  Is  beneficial, on an overall basis, to state and local econo-
    34  mies, and to the communities in the area served by the resulting  entity
    35  and  does  not  allocate  substantially  unfunded pension or health care
    36  obligations or other employee benefits to a resulting  telephone  corpo-
    37  ration.
    38    (ix)  Preserves the jurisdiction of the commission and the capacity of
    39  the commission to effectively regulate and audit  telephone  corporation
    40  operations in the state.
    41    (x)  Provides  mitigation  measures  to  prevent significantly adverse
    42  consequences which may result from such acquisition.
    43    (xi) Does not adversely affect competition. In  making  this  finding,
    44  the  commission  shall  request  an  advisory  opinion from the attorney
    45  general regarding whether or not competition will be adversely  affected
    46  and  what mitigatory measures could be adopted to avoid any such adverse
    47  effect.
    48    (b) Any such consent, however, shall be deemed to be  granted  by  the
    49  commission  ninety days after such corporation applies to the commission
    50  for its consent, unless the commission, or its designee, determines  and
    51  informs  the applicant in writing within such ninety day period that the
    52  public  interest  requires  the  commission's  review  and  its  written
    53  consent.   Nothing [herein] contained in this section shall be construed
    54  to prevent the holding of any stock heretofore lawfully acquired, nor to
    55  prevent, upon the surrender or exchange of  such  stock  pursuant  to  a
    56  reorganization  plan,  the purchase, acquisition, taking or holding of a

        A. 1958                            37
 
     1  proportionate amount of stock of any new corporation organized  to  take
     2  over, at foreclosure or other sale the property of any corporation whose
     3  stock  has  been thus surrendered or exchanged[;], but the proportion of
     4  the  voting  capital stock of the new corporation held by a stock corpo-
     5  ration, company, association, partnership or person and acquired  by  it
     6  by any such surrender or exchange of stock shall not without the consent
     7  of the commission exceed the proportion of the voting capital stock held
     8  by it in the former corporation.
     9    4.  Every contract, assignment, transfer, or agreement for transfer of
    10  any stock by or through any person or corporation  to  any  corporation,
    11  company,  association,  partnership  or  person,  in  violation  of  any
    12  provision of this chapter shall be void and of no effect,  and  no  such
    13  transfer  or  assignment  shall be made upon the books of any such tele-
    14  graph corporation or telephone corporation[,] or shall be recognized  as
    15  effective for any purpose.
    16    §  10.  The  executive  law is amended by adding a new section 32-a to
    17  read as follows:
    18    § 32-a. State agency telecommunications resource management. 1. Within
    19  ninety days of the effective date of this section, all  state  agencies,
    20  as  such  are  defined  in subdivision one of section thirty-two of this
    21  article, shall study  and  report  upon  the  physical  location  and/or
    22  frequency,  and  amount  of all excess capacity, within the telecommuni-
    23  cations infrastructure and radio frequency bandwidth owned, licensed  or
    24  otherwise controlled by such agencies. Telecommunications infrastructure
    25  is  herein defined for the purposes of this article to include conduits,
    26  ducts, poles, wires, fiber optic  cable  and/or  lines,  coaxial  cable,
    27  copper  twisted pair telephone lines, receivers, transmitters, broadcast
    28  radio  frequency  bandwidth,  lasers  and  multiplexers,   transmitters,
    29  instruments,  machines,  appliances  and all devices, real estate, ease-
    30  ments, apparatus, property and routes  used  and/or  operated  by  state
    31  agencies.
    32    2.  All  state  agencies  shall,  within one hundred fifty days of the
    33  effective date of this section, identify the excess capacity  and  band-
    34  width  reported  upon  which  may  be leased on a non-discriminatory and
    35  commercially reasonable basis to public entities or certified telecommu-
    36  nications carriers that need such capacity to provide broadband services
    37  to unserved, underserved and distressed areas. Such excess capacity  and
    38  bandwidth so identified shall be reported upon.
    39    3.  All  state  agencies  shall, within one hundred eighty days of the
    40  effective date of this section, identify and report upon all  telecommu-
    41  nications  services  purchased, leased or otherwise used by the agencies
    42  that may be used in  a  telecommunications  demand  aggregation  program
    43  administered  by  the state broadband development and deployment council
    44  pursuant to section four thousand one hundred five of the public author-
    45  ities law.
    46    4. (a) All state agencies shall, within ninety days of  the  effective
    47  date  of  this  section,  install  telecommunications-grade  conduit and
    48  antenna attachment points in and/or on all infrastructure projects newly
    49  constructed or upgraded by such agencies, for lease on a non-discrimina-
    50  tory and commercially reasonable basis to public entities  or  certified
    51  telecommunications carriers that need such capacity to provide broadband
    52  services  to  unserved, underserved and distressed areas. State agencies
    53  may, however, exempt from this  requirement  infrastructure  where  such
    54  installations  could  pose  a  threat  to  public safety or otherwise be
    55  unreasonable. Such conduit and antenna  attachment  point  installations
    56  shall be reported on a semi-annual basis.

        A. 1958                            38
 
     1    (b)  The state office of general services shall, within ninety days of
     2  the effective date of this section, make wireless internet access avail-
     3  able to the public in publicly accessible and highly-trafficked areas of
     4  the state capitol and the legislative office building,  and  such  other
     5  publicly  accessible  and  highly-trafficked  office of general services
     6  managed state buildings as is reasonable and prudent.
     7    5. All reports  provided  for  in  this  section  shall  be  delivered
     8  initially, and thereafter on an annual basis, to the governor, temporary
     9  president  of  the  senate, speaker of the assembly, minority leaders of
    10  the senate and assembly, chair and ranking minority member of the senate
    11  energy and telecommunications  committee,  and  the  chair  and  ranking
    12  minority  member  of  the assembly corporations, authorities and commis-
    13  sions committee, chair of the public service commission, commissioner of
    14  the department of economic development, commissioner of the empire state
    15  development corporation and the chairpersons of the  broadband  develop-
    16  ment and deployment council and broadband development authority.
    17    §  11.  The  public authorities law is amended by adding a new section
    18  2807 to read as follows:
    19    § 2807. Annual telecommunications resources reports by authorities. 1.
    20  State authorities. (a) For the purpose  of  furnishing  the  state  with
    21  systematic  information  regarding  the  existing, newly constructed and
    22  planned telecommunications infrastructure resources of  public  authori-
    23  ties,  every state authority continued or created by this chapter or any
    24  other chapter of the laws of the state of New York shall:
    25    (i) within ninety days of the effective date of this  section,  submit
    26  to  the  governor,  temporary  president  of  the senate, speaker of the
    27  assembly, minority leaders of the senate and assembly, chair and ranking
    28  minority member of the senate energy and  telecommunications  committee,
    29  and  the chair and ranking minority member of the assembly corporations,
    30  authorities and commissions  committee,  chair  of  the  public  service
    31  commission,  commissioner  of  the  department  of economic development,
    32  commissioner of the empire state development corporation and the  chairs
    33  of the broadband development and deployment council and broadband devel-
    34  opment  authority,  a  complete  and detailed report or reports upon the
    35  physical location and/or frequency, and amount of all  excess  capacity,
    36  within  the  telecommunications infrastructure and radio frequency band-
    37  width owned, licensed or otherwise controlled by state authorities;
    38    (ii) within one hundred fifty days  of  the  effective  date  of  this
    39  section,  submit  to  the  governor,  temporary president of the senate,
    40  speaker of the assembly, minority leaders of the  senate  and  assembly,
    41  chair  and ranking minority member of the senate energy and telecommuni-
    42  cations committee, and the chair and  ranking  minority  member  of  the
    43  assembly  corporations,  authorities  and  commissions committee, chair-
    44  person of the public service commission, commissioner of the  department
    45  of  economic  development,  commissioner of the empire state development
    46  corporation and  the  chairpersons  of  the  broadband  development  and
    47  deployment  council  and broadband development authority, a complete and
    48  detailed report or reports identifying the excess capacity and bandwidth
    49  possessed or controlled by state authorities which may be  leased  on  a
    50  non-discriminatory  and commercially reasonable basis to public entities
    51  or certified telecommunications carriers  that  need  such  capacity  to
    52  provide  broadband  services  to  unserved,  underserved  and distressed
    53  areas;
    54    (iii) within one hundred eighty days of the  effective  date  of  this
    55  section,  identify  and  report  upon  all  telecommunications  services
    56  purchased, leased or otherwise used by the authorities that may be  used

        A. 1958                            39
 
     1  in  a  telecommunications demand aggregation program administered by the
     2  state broadband development and deployment council.
     3    (b)  All  state  authorities  shall,  from  the effective date of this
     4  section, install telecommunications-grade conduit and antenna attachment
     5  points in and/or on all infrastructure  projects  newly  constructed  or
     6  upgraded by such agencies, for lease on a non-discriminatory and commer-
     7  cially  reasonable  basis  to  public entities or certified telecommuni-
     8  cations carriers that need such capacity to provide  broadband  services
     9  to  unserved,  underserved  and distressed areas. State authorities may,
    10  however, exempt from this requirement infrastructure where such  instal-
    11  lations  could  pose a threat to public safety or otherwise be unreason-
    12  able. Such conduit and antenna attachment point installations  shall  be
    13  reported on a semi-annual basis.
    14    (c)  All state authority reports provided for in this section shall be
    15  delivered initially, and thereafter on an annual basis unless  otherwise
    16  specified,  to  the governor, temporary president of the senate, speaker
    17  of the assembly, minority leaders of the senate and assembly, chair  and
    18  ranking  minority  member  of  the  senate energy and telecommunications
    19  committee, and the chair and ranking minority  member  of  the  assembly
    20  corporations, authorities and commissions committee, chair of the public
    21  service  commission, commissioner of the empire state development corpo-
    22  ration and the chairpersons of the broadband development and  deployment
    23  council and broadband development authority.
    24    (d)  Telecommunications  infrastructure is defined for the purposes of
    25  this article to include conduits, ducts, poles, wires, fiber optic cable
    26  and/or lines,  coaxial  cable,  copper  twisted  pair  telephone  lines,
    27  receivers, transmitters, broadcast radio frequency bandwidth, lasers and
    28  multiplexers,  transmitters,  instruments,  machines, appliances and all
    29  devices, real estate, easements, apparatus,  property  and  routes  used
    30  and/or operated by state authorities and local authorities.
    31    2. Local authorities. (a) For the purpose of furnishing the state with
    32  systematic  information  regarding  the  existing, newly constructed and
    33  planned telecommunications infrastructure resources of  public  authori-
    34  ties,  every local authority continued or created by this chapter or any
    35  other chapter of the laws of the state of New York shall:
    36    (i) within ninety days of the effective date of this  section,  submit
    37  to  the  governor,  temporary  president  of  the senate, speaker of the
    38  assembly, minority leaders of the senate and assembly, chair and ranking
    39  minority member of the senate energy and  telecommunications  committee,
    40  and  the chair and ranking minority member of the assembly corporations,
    41  authorities and commissions  committee,  chair  of  the  public  service
    42  commission, commissioner of the empire state development corporation and
    43  the  chairs  of  the  broadband  development  and deployment council and
    44  broadband development authority,  a  complete  and  detailed  report  or
    45  reports  upon  the physical location and/or frequency, and amount of all
    46  excess capacity, within the telecommunications infrastructure and  radio
    47  frequency  bandwidth  owned,  licensed  or otherwise controlled by state
    48  authorities;
    49    (ii) within one hundred fifty days  of  the  effective  date  of  this
    50  section,  submit  to  the  governor,  temporary president of the senate,
    51  speaker of the assembly, minority leaders of the  senate  and  assembly,
    52  chair  and ranking minority member of the senate energy and telecommuni-
    53  cations committee, and the chair and  ranking  minority  member  of  the
    54  assembly  corporations,  authorities and commissions committee, chair of
    55  the public service commission, commissioner of the empire state develop-
    56  ment corporation and the chairs of the broadband development and deploy-

        A. 1958                            40
 
     1  ment  council  and  broadband  development  authority,  a  complete  and
     2  detailed report or reports identifying the excess capacity and bandwidth
     3  possessed  or  controlled  by local authorities which may be leased on a
     4  non-discriminatory  and commercially reasonable basis to public entities
     5  or certified telecommunications carriers  that  need  such  capacity  to
     6  provide  broadband  services  to  unserved,  underserved  and distressed
     7  areas;
     8    (iii) within one hundred eighty days of the  effective  date  of  this
     9  section,  identify  and  report  upon  all  telecommunications  services
    10  purchased, leased or otherwise used by the authorities that may be  used
    11  in  a  telecommunications demand aggregation program administered by the
    12  state broadband development and deployment council.
    13    (b) All local authorities shall,  from  the  effective  date  of  this
    14  section, install telecommunications-grade conduit and antenna attachment
    15  points  in  and/or  on  all infrastructure projects newly constructed or
    16  upgraded by such agencies, for lease on a non-discriminatory and commer-
    17  cially reasonable basis to public  entities  or  certified  telecommuni-
    18  cations  carriers  that need such capacity to provide broadband services
    19  to unserved, underserved and distressed areas.  Local  authorities  may,
    20  however,  exempt from this requirement infrastructure where such instal-
    21  lations could pose a threat to public safety or otherwise  be  unreason-
    22  able.  Such  conduit and antenna attachment point installations shall be
    23  reported on a semi-annual basis.
    24    (c) All local authority reports provided for in this section shall  be
    25  delivered  initially, and thereafter on an annual basis unless otherwise
    26  specified, to the governor, temporary president of the  senate,  speaker
    27  of  the assembly, minority leaders of the senate and assembly, chair and
    28  ranking minority member of  the  senate  energy  and  telecommunications
    29  committee,  and  the  chair  and ranking minority member of the assembly
    30  corporations, authorities and commissions committee, chairperson of  the
    31  public  service commission, commissioner of the empire state development
    32  corporation and the chairpersons of the  broadband  development  council
    33  and broadband authority.
    34    3.  State  and  local  authorities.  To  the  extent  practicable, and
    35  consistent with applicable directives or  guidelines  by  the  emergency
    36  preparedness  commission,  state  emergency  management office and state
    37  office of homeland security, each state and local authority  shall  make
    38  accessible  to  the public via its official internet web site documenta-
    39  tion pertaining to the telecommunications infrastructure resources owned
    40  by, leased by, used by or otherwise controlled by such state  and  local
    41  authorities.
    42    §  12.  The public service law is amended by adding a new section 90-a
    43  to read as follows:
    44    § 90-a. Statement of policy. 1. The state of New York's  long-standing
    45  policy,  codified in this section, is that certain communications tools,
    46  and particularly telephone services, i.e.  essential  services,  are  so
    47  fundamental  that  it  is  not  in  the  public  interest to leave their
    48  provision to the vagaries of the  marketplace  alone.  Furthermore,  the
    49  legislature  declares that it is in the public interest that such essen-
    50  tial services be made and maintained universally across New  York.  Such
    51  tools  and  services have, over time, and increasingly now, shaped citi-
    52  zens' ability to participate  in  civic  affairs,  to  acquire  learning
    53  skills  needed  for their economic success and that of the state, and to
    54  enjoy the rich and unparalleled social and cultural life that is a vital
    55  part of New York  state's  economy.  The  state's  goals  for  universal
    56  service  are to further and protect the public interest by promoting the

        A. 1958                            41
 
     1  availability of quality services at  just,  reasonable,  and  affordable
     2  rates;  to  advance  the availability of such services to all consumers,
     3  including those in low income, rural, insular, and high  cost  areas  at
     4  rates  that  are  reasonably comparable to those charged in high-density
     5  urban areas; and to increase access to, and the  ubiquity  of,  advanced
     6  telecommunications  services available to the public in an equitable and
     7  nondiscriminatory manner. All telephone corporations and  providers  and
     8  resellers  of  telecommunications  services  should  contribute  to core
     9  public safety and public interest goals to the extent allowable by  law.
    10  At  a  minimum,  these  include  equivalent  universal  service support,
    11  provision and support for E911, disability access, consumer protections,
    12  and equitable taxation. Effective public programs must be made available
    13  where competitive forces do not result in the  deployment,  maintenance,
    14  or  reconstruction  of  affordable,  high-quality,  and reliable advance
    15  telecommunications capability across all geographic  regions  and  demo-
    16  graphic  segments  of  the  state.  Telecommunications  networks must be
    17  inter-operable, based on open standards, reliable, survivable, diversely
    18  pathed, as widely interconnected as is reasonable,  accessible  for  all
    19  users as provided for by law, including but not limited to the Americans
    20  with  Disabilities  Act,  and  all  applicable federal, state, and local
    21  regulations, and must meet basic requirements concerning public  safety,
    22  consumer protection, and relevant social and moral obligations.
    23    2. For the purposes of this section:
    24    (a)  The  term  "universal service" means that certain basic telephone
    25  facilities,  services,  and  instrumentalities,  known   as   "essential
    26  services",  shall  be accessible to any person, corporation, or locality
    27  in New York state at costs reasonably comparable  to  rates  charged  in
    28  urban  areas and low-cost areas, so that there shall not be any undue or
    29  unreasonable preference or advantage  to  any  person,  corporation,  or
    30  locality.
    31    (b)  The  term  "essential  services" means the provision by telephone
    32  corporations of voice grade access to and  across  the  public  switched
    33  telephone  network,  with the ability to place and receive calls; touch-
    34  tone  service;  single-party  service;  access  to  emergency  services,
    35  including 911 and E911 (which identifies a caller's location); access to
    36  operator services; access to inter-exchange services; access to directo-
    37  ry  assistance;  access to "lifeline" services, or other services equiv-
    38  alent in price and quality  for  qualifying  low-income  consumers;  and
    39  access  to  all  of  such  other services as may be mandated by federal,
    40  state, and local law.
    41    3. Within thirty days of the date on which the commission  had  actual
    42  knowledge,  or  should  reasonably  have  known or been informed, of the
    43  occurrence, or appearance of the proximate occurrence,  of  a  purchase,
    44  acquisition,  taking,  or  other transfer of control or ownership of the
    45  capital stock of a  telegraph  or  telephone  corporation  organized  or
    46  existing  under  the  laws  of  this  state  within the contemplation of
    47  section one hundred of this article or paragraph (b)  of  this  subdivi-
    48  sion,  the  commission shall compile and publish a report on the effect,
    49  if any, of such transfer of control upon universal service in the state.
    50  Such report shall be known as the "universal service  impact  analysis",
    51  and  shall be issued before the commission may vote upon the approval of
    52  such occurrence. If, on the effective date of this subdivision, there is
    53  a proceeding before the commission within the contemplation of  subdivi-
    54  sion  one  of  this  section, then the commission shall have thirty days
    55  from such effective date to issue its universal service impact  analysis

        A. 1958                            42
 
     1  report. Such universal service impact analysis report shall include, but
     2  not be limited to:
     3    (a)  an  analysis of the effects upon pricing of telephone services in
     4  high-cost and rural and low-income areas affected by  such  transfer  of
     5  control;
     6    (b) an analysis of the actual or potential effects of such transfer of
     7  control  upon  network  reliability  and  service  quality  in  the area
     8  affected by such transfer of control;
     9    (c) an analysis of the actual or potential effects  upon  new  service
    10  provision  in  rural  and high-cost and low-income areas within the area
    11  affected by such transfer of control.
    12    For the purposes of  triggering  such  reporting  requirement  by  the
    13  commission,  there  shall  be  a rebuttable presumption of a transfer of
    14  control or ownership upon the acquisition or accumulation by any  person
    15  or  group  of  persons  of  ten  percent or more of the shares of, or of
    16  comparable ownership interest in, a telegraph or telephone  corporation.
    17  Such  transfer  of  control  or acquisition or accumulation of ownership
    18  interests shall also be deemed  to  occur  upon  the  sale,  assignment,
    19  transfer,  divestiture of a portion of a business entity, lease or other
    20  disposal, either in whole or part, either  by  involuntary  sale  or  by
    21  voluntary sale, merger, or consolidation, or bankruptcy, of any title to
    22  such  telegraph  or telephone corporation, either legal or equitable, or
    23  of the lines or other network elements of such  telegraph  or  telephone
    24  corporation  within  three  or  more  local  access  and transport areas
    25  (LATAs) or counties.
    26    4. Upon the completion of the report under subdivision three  of  this
    27  section  the  commission  shall  have power and the duty to establish by
    28  rule or regulation, within ninety days of the  effective  date  of  this
    29  section,  such  charges,  exchanges  of  funds, fees, methodologies, and
    30  modalities as are necessary and convenient to  promote  and  ensure  the
    31  statewide  universal  availability of high-quality essential services at
    32  just, reasonable, and affordable rates; to advance the  availability  of
    33  such  services  to  all consumers, including those in low income, rural,
    34  insular, and high cost areas at rates that are reasonably comparable  to
    35  those  charged  in  low cost and urban areas; and to increase access to,
    36  and the ubiquity of, advanced telecommunications services  available  to
    37  the  public in an equitable and nondiscriminatory manner. The commission
    38  shall have power and the duty to promulgate such rules or regulations as
    39  are necessary and convenient to effectuate the state policies set  forth
    40  in this section.
    41    §  13.  The public service law is amended by adding a new section 90-b
    42  to read as follows:
    43    § 90-b.  Reports, hearings and investigations studying matters in  the
    44  public interest. The legislature finds that universal access to afforda-
    45  ble  telephone  service has been a long-standing tradition and policy of
    46  the state. However, this policy has come into question with proposals by
    47  incumbent carriers to sell significant portions of the upstate telephone
    48  network to companies with little or no background in  the  provision  of
    49  telephone  service.  Universal service, long taken for granted, must now
    50  be reevaluated to ensure that any future upstate telephone carriers will
    51  maintain this  policy.  Therefore,  the  department  shall  prepare  and
    52  submit,  on  or  before August first, two thousand nineteen, a report to
    53  the governor, temporary president of the senate, speaker of  the  assem-
    54  bly,  minority  leaders  of  the  senate and assembly, chair and ranking
    55  minority member of the senate energy and  telecommunications  committee,
    56  and  the chair and ranking minority member of the assembly corporations,

        A. 1958                            43
 
     1  authorities and commissions committee. The  report  shall  evaluate  the
     2  implications of a sale of a portion of the upstate telephone network for
     3  the  policy  of universal access to affordable service. The report shall
     4  further  evaluate  the  standards by which the department will analyze a
     5  proposed sale.
     6    § 14. The public service law is amended by adding a new  section  90-c
     7  to read as follows:
     8    §  90-c. Legislative findings. 1. The legislature finds that deploying
     9  broadband networks and advanced communications services  throughout  New
    10  York  will  enable  continued improvements in healthcare, public safety,
    11  education, economic development and  the  creation  of  jobs,  and  will
    12  facilitate  the  free  exchange of ideas that is vital to democracy. The
    13  legislature further finds that New York's financial services  community,
    14  publishing community, higher education community, high-technology commu-
    15  nity  and other world-class business communities have placed New York at
    16  the forefront of numerous vital industries, but that to continue to be a
    17  world-class leader, New York must  adopt  policies  and  practices  that
    18  promote  the roll-out and further development of broadband. Finally, the
    19  legislature finds that rural areas of New York lack the  multiple  tele-
    20  communications connections necessary to link to outside resources during
    21  times  of  emergency, that broadband networks are necessary to create or
    22  facilitate sustainable telemedicine networks that connect  rural  health
    23  clinics  to  urban medical centers, and that increased government use of
    24  broadband networks and advanced  communications  services  will  enhance
    25  government  operations  through  telemedicine  for  healthcare, distance
    26  learning for education, redundant  and  diversely-pathed  communications
    27  networks  for  public safety communications and to generally protect the
    28  health and welfare of the state and its citizens.
    29    2. The department shall prepare and submit, within ninety days of  the
    30  effective  date  of  this  section,  a report to the governor, temporary
    31  president of the senate, speaker of the assembly,  minority  leaders  of
    32  the senate and assembly, chair and ranking minority member of the senate
    33  energy  and  telecommunications  committee,  and  the  chair and ranking
    34  minority member of the assembly corporations,  authorities  and  commis-
    35  sions  committee.  The  report  shall  study in detail the actual retail
    36  availability of wireline, wireless cellular and fixed-wireless broadband
    37  communications modalities across the state of New York, and shall organ-
    38  ize the data of such availability by census tract.
    39    3. The department, acting together with the empire  state  development
    40  corporation,  shall prepare and submit, within ninety days of the effec-
    41  tive date of this section, a report to the governor, temporary president
    42  of the senate, speaker of the assembly, minority leaders of  the  senate
    43  and assembly, chair and ranking minority member of the senate energy and
    44  telecommunications  committee, and the chair and ranking minority member
    45  of the assembly corporations, authorities and commissions committee. The
    46  report shall list all federal, state, local, foundation, private  sector
    47  and  other funds, grants, loans and other funding mechanisms that can be
    48  applied for and used by the  broadband  development  authority,  by  the
    49  state,  by  municipal  corporations,  by  nonprofit  corporations and by
    50  private sector businesses to fund broadband deployment in New York.
    51    4. The department, acting together with the office for technology  and
    52  the  office  of  cyber security and critical infrastructure coordination
    53  ("CSCIC") shall prepare and submit, within ninety days of the  effective
    54  date  of  this section, a report to the governor, temporary president of
    55  the senate, speaker of the assembly, minority leaders of the senate  and
    56  assembly,  chair  and  ranking  minority member of the senate energy and

        A. 1958                            44
 
     1  telecommunications committee, and the chair and ranking minority  member
     2  of the assembly corporations, authorities and commissions committee. The
     3  report shall determine the location of all areas of the state, by census
     4  tract,  that  do  not  have generally and readily commercially available
     5  retail access to broadband  wireline  facilities  and/or  fixed-wireless
     6  broadband facilities ("unserved areas"); the report shall also determine
     7  all  areas of the state, by census tract, that do not have generally and
     8  readily commercially  available  retail  access  to  broadband  wireline
     9  facilities  and/or  fixed-wireless broadband facilities from two or more
    10  telecommunications  or  advanced   communications   services   providers
    11  ("underserved  areas");  the report shall also determine the location of
    12  all areas of the state, by census tract,  that  qualify  as  "distressed
    13  areas"  under  this  chapter, and either do or do not have generally and
    14  readily commercially  available  retail  access  to  broadband  wireline
    15  facilities and/or fixed-wireless broadband facilities; the report shall,
    16  furthermore,  assess  and set forth with specificity the aggregate unmet
    17  demand for broadband services in unserved,  underserved  and  distressed
    18  areas  by  census tract and by block, lot or other uniquely identifiable
    19  administrative characteristic, and shall estimate the amount  of  broad-
    20  band  connectivity  that would need to be built or offered in such areas
    21  to meet the unmet demand.  Such  report  shall,  in  addition  to  being
    22  submitted  to  the  government offices and officials set forth above, be
    23  used to create a map in standard format to be determined by the New York
    24  geographic information systems clearinghouse and CSCIC,  and  consistent
    25  with  the  legitimate  security concerns that may be expressed by CSCIC,
    26  such map shall be a fully three-dimensional representation of all broad-
    27  band resources within the state.
    28    § 15. The public service law is amended by adding a new  section  90-d
    29  to read as follows:
    30    § 90-d. Legislative purpose. 1. The legislature finds that:
    31    (a)  the  public  interest is furthered and protected by ensuring that
    32  New York's existing Enhanced 9-1-1 ("E911") system  for  wireline  tele-
    33  phone  service  and  wireless cellular telephone service provide all the
    34  automatic number identification ("ANI") and automatic location identifi-
    35  cation ("ALI") necessary to protect public safety and respond  to  home-
    36  land  security  concerns,  and  particularly so in rural areas and on or
    37  near New York's coastlines;
    38    (b) existing emergency services systems can isolate emergency response
    39  agencies that need inter-connectivity in meeting homeland  security  and
    40  public safety crises;
    41    (c)  all  9-1-1  callers  in  New  York,  and the first responders who
    42  receive and act upon such calls, would be better  able  to  enhance  the
    43  public  safety  with flexible E911 networks that could be interconnected
    44  with local, regional and national Internet Protocol based networks,  and
    45  that  could  be  flexibly  adapted and scaled to meet the challenges new
    46  communications technology place upon E911 networks; and
    47    (d) clear lines of authority and organization in  the  deployment  and
    48  administration  of  public  safety  answering points should be a goal of
    49  state E911 policy.
    50    2. The department shall prepare and submit, within ninety days of  the
    51  date this section becomes law a report to the governor, temporary presi-
    52  dent  of  the  senate,  speaker of the assembly, minority leaders of the
    53  senate and assembly, chair and ranking minority  member  of  the  senate
    54  energy  and  telecommunications  committee,  and  the  chair and ranking
    55  minority member of the assembly corporations,  authorities  and  commis-
    56  sions  committee.  The  report shall study in detail the technical chal-

        A. 1958                            45
 
     1  lenges facing and potentially degrading the effectiveness of New  York's
     2  existing  E911  networks,  and shall study and report upon in detail the
     3  next-generation technological solutions,  and  national  standards,  and
     4  potentially  ameliorative  systems  and  procedures proposed by national
     5  public safety expert associations such  as,  but  not  limited  to,  the
     6  National  Emergency  Numbering  Association ("NENA"), the Association of
     7  Public-Safety Communications Officials ("APCO"), and the National Public
     8  Safety Telecommunications Council.
     9    3. The department, acting together with the state emergency management
    10  office, the state office of fire prevention and control, and  the  state
    11  police,  shall  prepare  and submit, within ninety days of the effective
    12  date of this section, a report to the governor, temporary  president  of
    13  the  senate, speaker of the assembly, minority leaders of the senate and
    14  assembly, chair and ranking minority member of  the  senate  energy  and
    15  telecommunications  committee, and the chair and ranking minority member
    16  of the assembly corporations, authorities and commissions committee. The
    17  report shall examine the current E911 systems funding mechanisms, state-
    18  wide, regional, county and local administration of E911 facilities,  the
    19  extent or lack thereof of the commission's existing regulatory authority
    20  of E911 issues in New York, and such other public safety issues directly
    21  arising  from  the current E911 implementations in New York as is neces-
    22  sary and convenient to protect the public interest.
    23    4. Within sixty days after the submission of the reports  required  by
    24  subdivisions two and three of this section, the commission shall convene
    25  a  series of public hearings to discuss New York's existing E911 systems
    26  and networks and the findings of such reports in New York to clarify the
    27  public policy issues involved that might require legislative attention.
    28    § 16. The public service law is amended by adding a new  section  90-e
    29  to read as follows:
    30    §  90-e.  Wireless  telephone  quality,  reliability and affordability
    31  study. 1.  Within one hundred eighty days of the effective date of  this
    32  section, the commission shall study and report on the quality, reliabil-
    33  ity,  and  affordability,  of  wireless telephone service, including why
    34  subdivision six of section five of this chapter should not be  repealed.
    35  The  commission  shall also, as part of such study, determine what rules
    36  and regulations shall be necessary:
    37    (a) to enhance consumer  protections  currently  offered  to  wireless
    38  telephone services consumers;
    39    (b)  to  establish and safeguard wireless telephone service quality so
    40  that it is reasonably comparable to the wireline service quality  neces-
    41  sary to safeguard citizen access to E911; and
    42    (c)  to  protect  the  public  interest,  public safety and health and
    43  welfare.
    44    2. The study shall include a detailed analysis examining  whether  the
    45  wireless telephone service providers' policies include adequate consumer
    46  protections including whether:
    47    (a)  there  is sufficient written disclosure in the company's consumer
    48  service contract with respect to the calling  area  for  the  plan,  the
    49  monthly  access  fee  or  base  charge;  the  number  of airtime minutes
    50  included in the plan; any night and weekend minutes included in the plan
    51  or other differing charges for differing time periods and the time peri-
    52  ods when night and weekend minutes or other charges apply;  the  charges
    53  for  excess  or  additional  minutes;  whether or not, and the extent to
    54  which, per-minute domestic or international long  distance  charges  are
    55  included in other rates, and, to the extent not included, the applicable
    56  per-minute long distance rates; per-minute roaming or off-network charg-

        A. 1958                            46
 
     1  es; the amount of any additional taxes, fees, or surcharges that will be
     2  collected or retained by the wireless telephone service provider; if the
     3  plan  requires a fixed-term contract, the duration of such contract; the
     4  amount  of  any early termination fee and the conditions under which any
     5  such early termination fee would apply,  including  the  length  of  any
     6  trial period during which no early termination fee would apply;
     7    (b) the first bill rendered by the wireless telephone service provider
     8  to  the  customer shall include notice of the terms on and the period of
     9  time during which such service may  be  terminated  without  penalty;  a
    10  statement  notifying  the customer that the service includes basic wire-
    11  less 911 service; the information which is included in  the  educational
    12  plan for informing the public about the enhanced wireless 911 service in
    13  New  York  state  required by subdivision eight of section three hundred
    14  twenty-eight of the county law  and  which  is  an  explanation  of  the
    15  enhanced  wireless  911  system  and a progress report on the county-by-
    16  county implementation of the statewide system;  website  information  to
    17  permit  the  consumer  to  access  such  information via the internet in
    18  accordance with subdivision eight of section three hundred  twenty-eight
    19  of  the  county law; the toll-free hotline number by which such informa-
    20  tion may be accessed by the  consumer  in  accordance  with  subdivision
    21  eight of section three hundred twenty-eight of the county law; and based
    22  upon  customer supplied information regarding anticipated usage patterns
    23  and upon such customer's request, a good faith estimate of  the  monthly
    24  fixed and usage charges and additional taxes, fees, or surcharges and of
    25  the anticipated total monthly bill for such customer under such plan;
    26    (c)  wireless  telephone service providers have adequately established
    27  procedures for disclosure at any point of sale or of contact with poten-
    28  tial or existing residential customers of maps displaying  the  wireless
    29  telephone service provider's outside coverage within the state and with-
    30  in each county of the state in which such provider provides service;
    31    (d)  wireless  telephone  service  providers clearly describe in plain
    32  language the products and services for which charges  are  imposed,  and
    33  shall  conform  to  format  standards  established  by  the board in the
    34  customer's monthly bill;
    35    (e) wireless telephone service providers offer customers a trial peri-
    36  od which after the first bill is rendered to such customer  for  monthly
    37  service  following  service  activation  and  during  which  period such
    38  customer may, after payment for services used,  terminate  such  service
    39  without  incurring  any termination fees or charges or any other penalty
    40  of any kind and may, upon the return of any handset bought or leased  in
    41  connection  with  such service, receive a pro rata refund of any amounts
    42  paid for such handset;
    43    (f) wireless telephone service providers have  established  procedures
    44  for  the  notification  of residential customers at least thirty days in
    45  advance of any change in rates, charges, terms, or conditions of service
    46  for such customers; and
    47    (g) wireless telephone service providers have  established  procedures
    48  for  the  timely  prior  notice to residential customers of the wireless
    49  telephone service provider's intent to terminate such customer's service
    50  such that, at a minimum, such customer is fully advised  of  the  amount
    51  which must be paid to maintain service, the procedures available to make
    52  such  payments  so  that  the termination may be avoided and the board's
    53  complaint handling procedures.
    54    3. The commission shall deliver the report to the governor,  temporary
    55  president  of  the  senate, speaker of the assembly, minority leaders of
    56  the senate and assembly, chair and ranking minority member of the senate

        A. 1958                            47

     1  energy and telecommunications  committee,  and  the  chair  and  ranking
     2  minority  member  of  the assembly corporations, authorities and commis-
     3  sions committee.
     4    4. The commission shall, at the completion of the study and simultane-
     5  ously  with the delivery of the report, begin a rulemaking proceeding to
     6  implement such rules as may be determined during the study to be  neces-
     7  sary and convenient to effectuate the requirements of subdivision one of
     8  this section.
     9    §  17.  The public service law is amended by adding a new section 90-f
    10  to read as follows:
    11    § 90-f.  Legislative findings and declaration. 1. It is  hereby  found
    12  and  declared  that  universal, affordable and high quality telecommuni-
    13  cations services that meet the needs of individuals  and  businesses  in
    14  the  state are necessary and vital to the welfare and development of our
    15  society. It is, and has been  the  goal  of  the  state  to  ensure  the
    16  universal  availability  and  accessibility  of high quality, affordable
    17  telecommunications services to all residents and businesses in the state
    18  and to ensure that providers of telecommunications services in the state
    19  provide  high  quality  customer  service  and  high  quality  technical
    20  service.  All  New  York residents should be able to expect to receive a
    21  similar level of high quality service regardless of where they  live  or
    22  who  provides their service. The commission must make use of its maximum
    23  authority to protect the public health, safety and welfare  by  ensuring
    24  that  telephone  service  quality does not erode to the point that E-911
    25  service is endangered by persistent, extended, or  chronic  loss of dial
    26  tone, or  by  the  failure  of  intermodal  carriers  to  provide  E-911
    27  services, or by such other erosion of service quality that would tend to
    28  undermine  the  ability of the various citizens of New York to engage in
    29  protected speech over the telephone networks and  lines  and  facilities
    30  and equipment under the jurisdiction of the commission.
    31    2.  The  commission  shall  commence a study to survey service quality
    32  practices and standards of providers of telecommunications services that
    33  will  lead  to  legislative  and  regulatory  recommendations.  For  the
    34  purposes  of  this  section,  "telecommunications  service  provider" or
    35  "provider of telecommunications services" shall mean a telephone  corpo-
    36  ration,  or other provider of telephone services, certified in the state
    37  with the authority to provide intrastate toll and local exchange service
    38  using either its own or leased facilities. The commission shall also, as
    39  part of such study, determine what rules and regulations shall be neces-
    40  sary:
    41    (a) to enhance consumer  protections  currently  offered  to  wireline
    42  telephone services consumers;
    43    (b)  to  establish and safeguard wireline telephone service quality so
    44  that it is reasonably comparable to the wireline service quality  neces-
    45  sary to safeguard citizen access to E911; and
    46    (c)  to  protect  the  public  interest,  public safety and health and
    47  welfare.
    48    3. The commission shall specifically  study  service  and  reliability
    49  issues including, but not limited to, areas of the state that experience
    50  chronic  telecommunications outages, customer service providers of tele-
    51  communication  services,  installation  of  telecommunication   services
    52  issues,  network performance, data collection by providers of telecommu-
    53  nications services, the previous effect of  performance-based  incentive
    54  plans  upon  service quality provided by wireline providers, whether and
    55  how the commission's pre-two thousand one service quality  and  consumer
    56  protection  rules and regulations can be expanded to be equally applica-

        A. 1958                            48
 
     1  ble to all telecommunications providers that provide  E911  and  in  any
     2  marketing  materials  present  their company or product as a replacement
     3  for primary line telephone service used by consumers in  New  York,  and
     4  issues  concerning  reporting  upon  service  quality and other consumer
     5  protection related issues, provided however that such reporting require-
     6  ments shall be  examined  by  the  commission  for  methods  that  might
     7  decrease the cost of compliance by such telecommunications providers.
     8    4.  The  commission  shall  issue  a  report of its findings including
     9  legislative and regulatory recommendations  to  enhance  reliability  of
    10  providers  of  telephone service to the governor, temporary president of
    11  the senate, speaker of the assembly, chair of the  senate  committee  on
    12  energy  and  telecommunications  and  chair of the assembly committee on
    13  corporations, authorities and  commissions  within  one  hundred  eighty
    14  days.
    15    5. The commission shall, at the completion of the study and simultane-
    16  ously  with the delivery of the report, begin a rulemaking proceeding to
    17  implement such rules as may be determined during the study to be  neces-
    18  sary and convenient to effectuate the requirements of subdivision two of
    19  this section.
    20    §  18. Applicability of other laws. The provisions of section seven of
    21  this act are intended to be consistent with the Federal  Cable  Act,  47
    22  U.S.C.   §521, et. seq., and nothing in this act shall be interpreted to
    23  prevent a voice provider, cable operator or  municipality  from  seeking
    24  clarification  of  its  rights and obligations under federal law. In the
    25  event that any cable operator obtains relief through judicial,  adminis-
    26  trative, or executive action from any obligation imposed under this act,
    27  or  from  any  obligation in a franchise agreement that gives rise to an
    28  obligation of another cable operator under this  act,  all  other  cable
    29  operators shall be deemed to be relieved of their obligations under this
    30  act within the same geographic area and to the same extent.
    31    § 19. Severability. If any provision of this act or its application to
    32  any  person  or  circumstance  is held invalid, this invalidity does not
    33  affect other provisions or applications of this act that  can  be  given
    34  effect without the invalid provision or application, and to this end the
    35  provisions of this act are declared to be severable.
    36    § 20. This act shall take effect immediately.
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