|SAME AS||SAME AS S02880|
|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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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. LBD07364-01-7A. 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 ofA. 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 andA. 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 failsA. 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 theA. 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 similarA. 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 whichA. 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 theA. 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 programmingA. 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 theA. 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 dealA. 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; andA. 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 theA. 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 scheduleA. 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 ofA. 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 toA. 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 internetA. 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 an6 original cost of (a) less than one hundred thousand dollars proposed by7 a telephone corporation having annual gross revenues in excess of two8 hundred million dollars, (b) less than twenty-five thousand dollars9 proposed by a telephone corporation having annual gross revenues of less10 than two hundred million but more than ten million dollars or (c) less11 than ten thousand dollars proposed by a telephone corporation having12 annual gross revenues of less than ten million dollars and any other13 transfer or lease between non-affiliates regardless of cost shall be14 effective without the commission's written consent within ninety days15 after such corporation notifies the commission that it plans to complete16 such transfer or lease and submits a description of the transfer or17 lease, unless the commission, or its designee, determines within such18 ninety days that the public interest requires the commission's review19 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 aA. 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 usedA. 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 theA. 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 analysisA. 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 andA. 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 senateA. 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.