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A09057 Text:

                STATE OF NEW YORK
                   IN ASSEMBLY
                                    January 18, 2018
        Introduced by M. of A. CAHILL -- read once and referred to the Committee
          on Corporations, Authorities and Commissions
        AN  ACT  to  amend  the public service law and the state finance law, in
          relation to state contracts being only with internet service providers
          compliant with net neutrality and establishes a revolving fund for the
          establishment of municipal internet service providers; and  making  an
          appropriation therefor
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. This act shall be known and may be cited as  the  "NYS  Net
     2  Neutrality Protection Act".
     3    §  2.  Subdivision 1 of section 5 of the public service law is amended
     4  by adding a new paragraph i to read as follows:
     5    i. To every broadband internet line which lies wholly within the state
     6  and that part within the state of New York of every  broadband  internet
     7  line  which  lies  partly within and partly without the state and to the
     8  persons or corporations owning, leasing or operating any such  broadband
     9  internet line.
    10    §  3.  Section  5 of the public service law is amended by adding a new
    11  subdivision 7 to read as follows:
    12    7. The commission shall require any person engaged in the provision of
    13  broadband internet access service in New York state  to  report  to  the
    14  commission, and publicly disclose annually, accurate information regard-
    15  ing  the network management practices, performance, and commercial terms
    16  of its broadband internet access services sufficient  for  consumers  to
    17  make  informed  choices  regarding use of such services and for content,
    18  application, service, and device providers to develop, market, and main-
    19  tain internet offerings.
    20    § 4. Subdivision 1 of section 165 of the state finance law is  amended
    21  by adding three new paragraphs f, g and h to read as follows:
    22    f.  A "net neutral source of internet services" shall mean an internet
    23  service provider who adheres to the principles of net neutrality.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 9057                             2
     1    g. A "non-net neutral source  of  internet  services"  shall  mean  an
     2  internet  service  provider  who  violates  any of the principles of net
     3  neutrality.
     4    h.  "The  principles of net neutrality" shall mean the rules and regu-
     5  lations under the open internet report and order on remand,  declaratory
     6  ruling,  and  order  by  the  federal communications commission released
     7  March twelfth, two thousand fifteen, GN Docket No. 14-28.
     8    § 5. Section 165 of the state finance law is amended by adding  a  new
     9  subdivision 9 to read as follows:
    10    9. Prohibition on purchase of internet services from a non-net neutral
    11  source of internet services.
    12    a.  (i)  With respect to contracts described in subparagraphs (ii) and
    13  (iii) of this paragraph, and in accordance with such subparagraphs,  the
    14  state  and  any  governmental  agency or political subdivision or public
    15  benefit corporation or municipality of the state shall not contract  for
    16  the  supply  of internet services with any contractor who does not agree
    17  to stipulate to the following, if there is another contractor  who  will
    18  contract to supply internet services of comparable quality at a compara-
    19  ble  price or cost, the contractor and any individual or legal entity in
    20  which the contractor holds a ten percent or greater  ownership  interest
    21  and  any  individual or legal entity that holds a ten percent or greater
    22  ownership interest in the contractor shall make  lawful  steps  in  good
    23  faith  to  conduct  any  business  operations as a net neutral source of
    24  internet services.
    25    (ii) In the case of contracts let by a competitive  process,  whenever
    26  the  responsive  and responsible offerer having the lowest price or best
    27  value offer has not agreed to stipulate to the conditions set  forth  in
    28  this  subdivision and another responsive and responsible offerer who has
    29  agreed to stipulate to such conditions  has  submitted  an  offer  shall
    30  determine that the contract be awarded to the lowest price or best value
    31  offer  for  internet  services  from  a  net  neutral source of internet
    32  services.
    33    (iii) In the case of contracts let by other than a competitive process
    34  internet services involving an expenditure of an amount greater than the
    35  discretionary buying threshold  as  specified  in  section  one  hundred
    36  sixty-three of this article, the contracting entity shall not award to a
    37  proposed  contractor  who  has not agreed to stipulate to the conditions
    38  set forth in this subdivision unless  the  entity  seeking  to  use  the
    39  internet  services  determines  that the internet services are necessary
    40  for the entity to perform its functions and there is no other  responsi-
    41  ble  contractor  who will supply internet services of comparable quality
    42  at a comparable price. Such determinations shall be made in writing  and
    43  shall be public documents.
    44    b. Upon receiving information that a contractor who has made the stip-
    45  ulation  required  by  this  subdivision  is  in  violation thereof, the
    46  contracting entity shall review such information and offer the  contrac-
    47  tor  an  opportunity  to respond. If the contracting entity finds that a
    48  violation has occurred, it shall take such action as may be  appropriate
    49  and  provided  for  by law, rule or contract, including, but not limited
    50  to,  imposing  sanctions,  seeking  compliance,  recovering  damages  or
    51  declaring the contractor in default.
    52    c.  As used in this subdivision, the term "contract" shall not include
    53  contracts with  governmental  and  non-profit  organizations,  contracts
    54  awarded  pursuant  to  emergency  procurement  procedures  or contracts,
    55  resolutions, indentures, declarations  of  trust  or  other  instruments
    56  authorizing  or  relating to the authorization, issuance, award, sale or

        A. 9057                             3
     1  purchase of bonds, certificates of indebtedness, notes or  other  fiscal
     2  obligations,  provided  that  the  policies of this subdivision shall be
     3  considered when selecting a contractor to  provide  financial  or  legal
     4  advice, and when selecting managing underwriters in connection with such
     5  activities.
     6    d. The provisions of this subdivision shall not apply to contracts for
     7  which  the state or other contracting entity receives funds administered
     8  by the United States, except to the extent congress has directed to  not
     9  withhold  funds  from  states  and  localities  that choose to implement
    10  selective purchasing policies based on an agreement to comply  with  the
    11  principles  of  net neutrality, or to the extent that such funds are not
    12  otherwise withheld by congress.
    13    § 6. The state finance law is amended by adding a new section 99-bb to
    14  read as follows:
    15    § 99-bb. Municipal internet service provider revolving loan fund.   1.
    16  There  is hereby established in the joint custody of the comptroller and
    17  the public service commission a fund  to  be  known  as  the  "municipal
    18  internet  service provider revolving loan fund". Such fund shall consist
    19  of moneys made available pursuant to appropriation and any other sources
    20  in order to provide support  for  municipalities  attempting  to  create
    21  their own internet service provider.
    22    2.  The  account  shall  consist  of  all  moneys appropriated for its
    23  purpose, all moneys transferred to such account pursuant to law, and all
    24  moneys required by this section or any other law  to  be  paid  into  or
    25  credited  to  this account, including all moneys received by the account
    26  or donated to it, payments of principal and interest on loans made  from
    27  the account, and any interest earnings which may accrue from the invest-
    28  ment or reinvestment of moneys from the account.
    29    3.  Moneys  of  the account, when allocated, shall be available to the
    30  public service commission to make loans as provided in this section.  Up
    31  to  five percent of the moneys of the account or two hundred fifty thou-
    32  sand dollars, whichever is less,  may  be  used  to  pay  the  expenses,
    33  including  personal service and maintenance and operation, in connection
    34  with the administration of such loans.
    35    4. (a) The public service commission may make, upon  application  duly
    36  made,  up  to  the amounts available by appropriation, loans for any and
    37  all costs associated with the creation of a municipally owned  broadband
    38  internet service provider.
    39    (b)  The  public  service commission shall have the power to make such
    40  rules and regulations as may be necessary and proper to  effectuate  the
    41  purposes of this section.
    42    5.  (a)  Application for loans may be made by a town, village, city or
    43  county provided that the application is otherwise  consistent  with  its
    44  respective powers.  Applications may also be submitted jointly by multi-
    45  ple  applicants  provided  that  the application is otherwise consistent
    46  with each applicant's respective powers.
    47    (b) Every application shall be in a  form  acceptable  to  the  public
    48  service  commission.  Every  application  shall  accurately  reflect the
    49  conditions which give rise to the proposed  expenditure  and  accurately
    50  reflect the ability of the applicant to make such an expenditure without
    51  the proceeds of a loan under this section.
    52    (c)  (i)  The public service commission shall give preference to those
    53  applications which demonstrate the greatest  need,  joint  applications,
    54  and  to  those applications the proceeds of which will be applied toward
    55  attaining compliance with federal and state laws and may disapprove  any
    56  application  which  contains  no adequate demonstration of need or which

        A. 9057                             4
     1  would result in inequitable or inefficient use  of  the  moneys  in  the
     2  account.
     3    (ii) In making determinations on loan applications, the public service
     4  commission  shall assure that loan fund moneys are equitably distributed
     5  among all geographical areas of the state.
     6    (d) The public service commission shall, to the maximum extent  feasi-
     7  ble,  and  consistent with the other provisions of this section, seek to
     8  provide that loans authorized by this  section  reflect  an  appropriate
     9  geographic   distribution,   are  distributed  equitably  and  encourage
    10  regional cooperation.
    11    § 7. The sum of two hundred fifty million dollars  ($250,000,000),  or
    12  so  much  thereof  as  may be necessary, is hereby appropriated from any
    13  moneys in the state treasury in the general fund to the  credit  of  the
    14  state purposes account for the initial capital of the municipal internet
    15  service  provider  revolving loan fund in carrying out the provisions of
    16  this act. Such sum shall be payable on the  audit  and  warrant  of  the
    17  state  comptroller  on  vouchers  certified  or  approved  in the manner
    18  provided by law. No expenditure shall be made  from  this  appropriation
    19  until  a  certificate of approval of availability shall have been issued
    20  by the director of the budget and filed with the state comptroller and a
    21  copy filed with the chairman of the senate  finance  committee  and  the
    22  chairman  of the assembly ways and means committee. Such certificate may
    23  be amended from time to time by the director of the budget and a copy of
    24  each such amendment shall be  filed  with  the  state  comptroller,  the
    25  chairman  of the senate finance committee and the chairman of the assem-
    26  bly ways and means committee.
    27    § 8. This act shall take effect immediately.
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