2007 Legislation
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HOUSE BILL NO. 192 – Cable and video competition act


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Bill Status

H0192......................................................by STATE AFFAIRS
CABLE AND VIDEO COMPETITION ACT - Adds to existing law relating to cable
and video competition to provide a short title; to define terms; to provide
requirements, procedures and authority for the provision of cable or video
service within the state of Idaho; to provide requirements and procedures
for customer access to community programming; to provide for service
provider fees; to provide for nondiscrimination by governmental entities
relating to the use of public rights-of-way; and to prohibit discrimination
among potential residential subscribers.
02/14    House intro - 1st rdg - to printing
02/15    Rpt prt - to St Aff

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                              IN THE HOUSE OF REPRESENTATIVES
                                     HOUSE BILL NO. 192
                                 BY STATE AFFAIRS COMMITTEE
  1                                        AN ACT
 12    Be It Enacted by the Legislature of the State of Idaho:
 13        SECTION 1.  That Title 61, Idaho Code, be, and the same is hereby  amended
 14    by  the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
 15    ter 17, Title 61, Idaho Code, and to read as follows:
 16                                      CHAPTER 17
 17                             CABLE AND VIDEO COMPETITION
 18        61-1701.  SHORT TITLE. This chapter shall be known and may be cited as the
 19    "Idaho Cable and Video Competition Act."
 20        61-1702.  DEFINITIONS. As used in this chapter:
 21        (1)  "Cable service" means the one-way transmission to subscribers of: (a)
 22    video programming, or (b) other programming service, and  subscriber  interac-
 23    tion,  if  any,  which is required for the selection or use of such video pro-
 24    gramming or other programming service, which services are provided by wireline
 25    facilities primarily situated in the public rights-of-way;
 26        (2)  "Cable system" means a facility, consisting of a set of closed trans-
 27    mission paths and associated signal generation, reception and  control  equip-
 28    ment  that is designed to provide cable service, which includes video program-
 29    ming and which is provided to multiple subscribers within  a  community.  Such
 30    term does not include:
 31        (a)  A  facility  that serves only to retransmit the television signals of
 32        one (1) or more television broadcast stations;
 33        (b)  A facility that serves subscribers without using any  public  rights-
 34        of-way;
 35        (c)  A  facility of a telephone corporation providing basic local exchange
 36        service, except that such facility shall be considered a cable  system  to
 37        the  extent such facility is used in the transmission of video programming
 38        directly to subscribers, unless the extent of such use is solely  to  pro-
 39        vide interactive on-demand services; or
 40        (d)  Facilities  of  any  electric  utility  used solely for operating its
 41        electric utility system;
  1        (3)  "Competitive service provider" means:
  2        (a)  A person authorized by this chapter to provide cable or video service
  3        in an area in which cable service is being provided by an incumbent  cable
  4        service  provider in the area to be served by the competitive service pro-
  5        vider; or
  6        (b)  A system operator authorized by this  chapter  to  provide  cable  or
  7        video  services  within  the  state of Idaho and, on the effective date of
  8        this chapter, there was no incumbent cable  service  provider  within  the
  9        local  unit  of  government  wherein the cable or video services are to be
 10        provided.
 11        (4)  "Competitive service provider fee" means the amount paid by a compet-
 12    itive service provider pursuant to section 61-1705, Idaho Code.
 13        (5)  "Franchise" means an initial authorization, or renewal of an authori-
 14    zation, issued by a franchising entity, regardless of whether  the  authoriza-
 15    tion is designated as a franchise, permit, license, resolution, contract, cer-
 16    tificate,  agreement or otherwise, that authorizes the construction and opera-
 17    tion of facilities using the public rights-of-way for the provision  of  cable
 18    or video service.
 19        (6)  "Franchising entity" means the city or county, or both, authorized by
 20    state  or federal law to grant a franchise. Commencing July 1, 2007, the state
 21    of Idaho shall constitute the exclusive "franchising entity"  for  competitive
 22    service providers within the state of Idaho.
 23        (7)  "Incumbent  cable service provider" means a system operator who holds
 24    a franchise issued by a franchising entity prior to July 1, 2007.
 25        (8)  "Local unit(s) of government" means a city or county of the state  of
 26    Idaho.
 27        (9)  "Public  rights-of-way"  means  the  area on, below or above a public
 28    roadway, highway, street, public sidewalk, alley, waterway or utility easement
 29    dedicated for compatible uses.
 30        (10) "System operator" means any person or group of persons who:
 31        (a)  Provides cable or video service and directly, or through one  (1)  or
 32        more  affiliates,  owns a significant interest in the cable system through
 33        which the cable services are provided  or  the  facilities  through  which
 34        video services are provided; or
 35        (b)  Otherwise  controls  or  is responsible for, through any arrangement,
 36        the management and operation of such  system or facilities.
 37        (11) "Video service" means video  programming  services  provided  through
 38    wireline facilities located at least in part in the public rights-of-way with-
 39    out regard to the delivery technology, including internet protocol technology.
 40    This  definition does not include any video programming provided by a provider
 41    of commercial mobile service as defined in 47  U.S.C.  section  332(d),  video
 42    programming provided via a cable service or video programming provided as part
 43    of,  and via, a service that enables end users to access content, information,
 44    electronic mail or other services offered over the public internet.
 45        (12) "Video service provider" means a provider of video service.
 49    TO OBTAIN CERTIFICATE OF AUTHORITY. (1) From and after July 1, 2007, no person
 50    shall offer cable or video service within the state of Idaho unless:
 51        (a)  The  system operator is an incumbent cable service provider providing
 52        cable service solely within such incumbent cable service provider's  fran-
 53        chise area(s); or
 54        (b)  The  system  operator  has filed a notice with the Idaho secretary of
  1        state declaring the system operator's intent to be a  competitive  service
  2        provider  within the state of Idaho, which notice shall set forth the fol-
  3        lowing information:
  4             (i)   The name of the system operator and the address of its  princi-
  5             pal place of business within the state of Idaho;
  6             (ii)  A general description of the cable or video services offered by
  7             such  system  operator  and  the area or areas in which it intends to
  8             serve or in which it will offer cable or video  services  within  the
  9             state; and
 10             (iii) A statement that the applicant agrees to comply with all appli-
 11             cable  federal  and state laws relating to the provision of such ser-
 12             vices.
 13    The notice shall be accompanied by a filing fee in the sum of one hundred  ten
 14    dollars ($110).
 15        (2)  Incumbent  cable  service  providers  shall,  during the term of such
 16    franchise, be authorized to offer cable  or  video  service  within  the  area
 17    described  in  such incumbent cable service provider's franchise, without fur-
 18    ther notice, in compliance with the provisions of such franchise.
 19        (3)  System operators that file a notice as set forth in subsection (1)(b)
 20    of this section shall, upon filing of the notice set forth herein, be issued a
 21    certificate of authority by the secretary of state,  which  certificate  shall
 22    constitute  authority  for  a  competitive  service provider to use the public
 23    rights-of-way within this state, or any political subdivision thereof, in com-
 24    pliance with the provisions of this  chapter.  Any  certificate  of  authority
 25    granted  pursuant  to this paragraph shall constitute a franchise for purposes
 26    of 47 U.S.C. section 541(b)(1).
 27        (4)  To the extent required for purposes of 47 U.S.C. sections 521 through
 28    561, the state of Idaho shall constitute the exclusive  franchising  authority
 29    for competitive service providers in the state of Idaho.
 30        (5)  Except  as  provided  in this chapter, no local unit of government or
 31    other political subdivision of the state of Idaho, may require  a  competitive
 32    service  provider  to  obtain a franchise from the local unit of government or
 33    impose any franchise fee or franchise requirement  on  a  competitive  service
 34    provider as a condition for the use of the public rights-of-way for the provi-
 35    sion  of cable or video services within the geographic territory of such local
 36    unit of government or political subdivision. For purposes of  this  subsection
 37    (5), a franchise requirement includes, without limitation, any provision regu-
 38    lating rates charged by a competitive service provider or requiring a competi-
 39    tive  service  provider to satisfy any build-out requirements or to deploy any
 40    facilities or equipment.
 41        (6)  (a) An incumbent cable service  provider  shall  be  eligible  to  be
 42        granted a state certificate of authority as a competitive service provider
 43        within such cable service provider's franchise territory if:
 44             (i)   Prior to the expiration of such franchise, the  application for
 45             such   certificate  is  approved  by  the  governing  board  of  such
 46             franchising entity, and the previously  issued  franchise  is  termi-
 47             nated;
 48             (ii)  A competitive service provider has filed a notice with the sec-
 49             retary  of state, declaring the system operator's intent to be a com-
 50             petitive service provider within the state of Idaho and  such  notice
 51             describes  the area or areas in which it intends to serve or in which
 52             it will offer cable or video  services  within  the  state  and  such
 53             description  includes  an area or areas that are within the incumbent
 54             cable service provider's franchise territory; or
 55             (iii) The original or extended term of such franchise has ended.
  1        (b)  An incumbent cable service provider eligible to be granted a certifi-
  2        cate of authority pursuant to paragraph (a)  of  this  subsection,  shall,
  3        upon  the issuance of such certificate of authority, comply with all terms
  4        and conditions applicable to competitive service providers under the  pro-
  5        visions  of  this  chapter,  and  the previously issued franchise shall be
  6        deemed to be terminated.
  7        (c)  An incumbent cable service provider may file the notice provided  for
  8        in  subsection  (1)(b)  of  this  section, declaring the system operator's
  9        intent to be a competitive service provider for areas in which the  system
 10        operator did not hold a franchise on June 30, 2007. Upon the issuance of a
 11        certificate  of authority the system operator shall comply with all provi-
 12        sions of law relating to such certificate of authority.
 13        61-1704.  CUSTOMER ACCESS TO COMMUNITY PROGRAMMING. (1) Not later than one
 14    hundred eighty (180) days after a request by a local  unit  of  government  in
 15    which  the  competitive  service provider is providing cable or video service,
 16    the competitive service provider shall designate a sufficient amount of capac-
 17    ity or channel(s) to allow the provision of public, educational and governmen-
 18    tal (PEG) noncommercial programming in an amount comparable to  that  provided
 19    by  the  incumbent  cable  service  provider, if any. In the event there is no
 20    incumbent cable service provider, the amount of capacity shall  be  negotiated
 21    in good faith between the local unit of government and the competitive service
 22    provider.
 23        (2)  The content to be provided over PEG access, pursuant to this section,
 24    shall  be the responsibility of the public, educational and governmental agen-
 25    cies receiving the benefit of such capacity. The competitive service  provider
 26    shall bear the responsibility for the transmission of such content only to the
 27    extent  that  such content complies with the requirements of subsection (3) of
 28    this section.
 29        (3)  The public, educational or governmental agencies utilizing the capac-
 30    ity for PEG noncommercial programming must ensure that all transmissions, con-
 31    tent or programming to be transmitted by a competitive  service  provider  are
 32    provided or submitted to such competitive service provider in a manner or form
 33    that  is  capable  of  being accepted and transmitted by the provider, without
 34    requirement for additional alteration or change in the content over  the  par-
 35    ticular  network  of the competitive service provider, and which is compatible
 36    with the technology or protocol utilized by the competitive  service  provider
 37    to deliver cable or video services.
 38        (4)  Where  technically  feasible,  a  competitive service provider and an
 39    incumbent cable service provider shall use reasonable efforts to  interconnect
 40    their  cable  or  video  systems for the purpose of providing PEG programming.
 41    Interconnection may be accomplished by direct cable, microwave link, satellite
 42    or other reasonable method of connection. Competitive  service  providers  and
 43    incumbent  cable  service  providers  shall negotiate in good faith to provide
 44    interconnection of PEG channels.
 45        (5)  A court of competent jurisdiction shall have  exclusive  jurisdiction
 46    to enforce any requirement under this section.
 47        61-1705.  COMPETITIVE SERVICE PROVIDER FEE. (1) A competitive service pro-
 48    vider that uses the public rights-of-way to offer cable or video service shall
 49    provide  notice  to  each  city  and  county in whose jurisdiction said public
 50    rights-of-way are situated. For the  purposes  of  this  section,  subscribers
 51    served by facilities located in public rights-of-way within the jurisdictional
 52    limits  of  the  city  shall  be  deemed city subscribers, and those served by
 53    facilities located in public rights-of-way within the county but  outside  the
  1    jurisdictional limits of a city, shall be deemed county subscribers.
  2        (2)  A  competitive  service  provider  shall  calculate and pay a fee, as
  3    hereinafter provided, to the city or county in which the  competitive  service
  4    provider's subscribers reside, upon the governmental entity's written request.
  5    If  the  city or county makes such a request, the competitive service provider
  6    fee shall be due on a quarterly basis, forty-five (45) days after the close of
  7    the quarter, and shall be calculated as a percentage  of  gross  revenues,  as
  8    defined  herein.  Except as provided in section 61-1706, Idaho Code, the local
  9    unit of government may not require any additional fees  or  charges  from  the
 10    competitive service provider and may not require the use of any other calcula-
 11    tion method.
 12        (3)  The  percentage to be applied against gross revenues pursuant to this
 13    section shall be set by the city or  county  and  identified  in  its  written
 14    request, in an amount equal to the percentage paid by the incumbent cable ser-
 15    vice  provider  or five percent (5%), whichever is less. If there is no incum-
 16    bent cable service provider having a franchise  agreement  with  the  city  or
 17    county,  the  fee to be paid shall be established by the local unit of govern-
 18    ment, but shall in no event be in excess of five percent  (5%)  of  the  gross
 19    revenues, as set forth herein.
 20        (4)  (a) For  purposes of this section, "gross revenues" means all consid-
 21        eration of any kind or nature, including, without limitation,  cash,  cre-
 22        dits,  property  and in-kind contributions (services or goods) received by
 23        the system operator from subscribers to cable or video services within the
 24        jurisdictional limits of the city or county as provided herein.
 25        (b)  For purposes of this section, "gross revenues" does not include:
 26             (i)    Revenue not actually received, even if  billed,  such  as  bad
 27             debt.
 28             (ii)   Revenue  received  by  any  affiliate  or  any other person in
 29             exchange for supplying goods or services used by the provider to pro-
 30             vide cable or video service.
 31             (iii)  Refund, rebates  or  discounts  made  to  subscribers,  leased
 32             access providers, advertisers or any local governmental entity.
 33             (iv)   Any  revenue  from  services  not classified as cable or video
 34             service, and shall not include, without limitation, revenue  received
 35             from  telecommunications  services, revenue received from information
 36             services, revenue received in connection  with  advertising,  revenue
 37             received in connection with home shopping services or any other reve-
 38             nue  attributed  by the competitive service provider to noncable ser-
 39             vice or nonvideo service in  accordance  with  any  applicable  laws,
 40             rules, regulations, standards or orders.
 41             (v)    Any  revenue  paid by subscribers to home shopping programmers
 42             from the sale  of  merchandise  through  any  home  shopping  channel
 43             offered as part of the cable or video services.
 44             (vi)   Any  revenue  from  the  sale  of  cable or video services for
 45             resale.
 46             (vii)  Any tax of general applicability imposed upon the  competitive
 47             service  provider,  or  upon subscribers by a city, state, federal or
 48             any other governmental entity which is required to  be  collected  by
 49             the  competitive  service provider and remitted to the taxing entity,
 50             including, but not limited to, sales/use  tax,  gross  receipts  tax,
 51             excise  tax, utility users tax, public service tax, and communication
 52             taxes, and including the competitive provider fee specified  in  this
 53             subsection.
 54             (viii) The  provision  of  cable services or video services to public
 55             institutions, public schools or governmental entities at no charge.
  1             (ix)   Any foregone revenue from the competitive  service  provider's
  2             provision  of  free  or  reduced-cost  video  service  to any person,
  3             including, without limitation,  any  local  governmental  entity  and
  4             other public institutions or other institutions.
  5             (x)    Sales of capital assets or sales of surplus equipment.
  6             (xi)   Reimbursement  by  programmers  of marketing costs incurred by
  7             the competitive service provider for the introduction or promotion of
  8             new programming.
  9             (xii)  Directory or internet advertising revenue including,  but  not
 10             limited  to,  yellow page, white page, banner advertisement and elec-
 11             tronic publishing.
 12             (xiii) Copyright fees paid to the United States copyright office.
 13        (5)  At the request of a city or county entitled to collect a  competitive
 14    service  provider  fee, pursuant to the provisions of this chapter, such local
 15    governmental entity may, no more than once per year, perform reasonable audits
 16    of the competitive service provider's calculation of the  competitive  service
 17    provider fee.
 18        (6)  Any  competitive service provider may identify and collect the amount
 19    of the competitive service provider fee as a separate line item on the regular
 20    bill of each subscriber.
 22    PUBLIC  RIGHTS-OF-WAY.  (1)  A governmental entity shall allow the holder of a
 23    certificate of authority to install, construct and maintain facilities  within
 24    public  rights-of-way, over which the governmental entity has jurisdiction, to
 25    enable the provision of cable or video services to subscribers  to  such  ser-
 26    vices. The governmental entity shall provide the holder of such certificate of
 27    authority  with  open, comparable, nondiscriminatory and competitively neutral
 28    access to the public rights-of-way within its jurisdiction.
 29        (2)  A governmental entity may not discriminate against the  holder  of  a
 30    certificate of authority to provide competitive cable or video service, in any
 31    manner, including:
 32        (a)  The  authorization or placement of facilities in public rights-of-way
 33        that is necessary for the provision of cable or video services;
 34        (b)  Access to a building; or
 35        (c)  The terms or conditions for access to any utility pole.
 36        (3)  A governmental entity may impose a permit fee on a  competitive  ser-
 37    vice  provider relating to the opening, closing or repair of public rights-of-
 38    way over which rights-of-way the governmental entity has jurisdiction, only to
 39    the extent it imposes such a fee  on  incumbent  cable  service  providers  or
 40    others  accessing the public rights-of-way relating to the opening, closing or
 41    repair thereof. Any fee authorized by this section may not exceed the  actual,
 42    direct costs incurred by the governmental entity for issuing the relevant per-
 43    mit. In no event may a fee under this subsection (3) be levied:
 44        (a)  If  the competitive service provider already has paid a permit fee of
 45        any kind in connection with the same activity in the public  rights-of-way
 46        that would otherwise be covered by the permit fee under this section or is
 47        otherwise  authorized  by  law or contract to place the facilities used by
 48        the competitive service provider in the public rights-of-way; or
 49        (b)  For general revenue purposes.
 51    ITED.  (1)  A competitive service provider that has been granted a certificate
 52    of authority to provide cable or video service may not  deny  access  to  such
 53    service  to  any  group  of  potential  residential subscribers because of the
  1    income of the residents in the local area in which such group resides.
  2        (2)  The holder of a certificate of authority may use direct-to-home  sat-
  3    ellite  service  or another alternative technology that provides content, ser-
  4    vice and functionality to satisfy the requirements of this section.
  5        61-1708.  APPLICABILITY OF OTHER LAW. (1) The provisions of  this  chapter
  6    are  intended to be construed to be consistent with the federal cable communi-
  7    cations act of 1984, 47 U.S.C. section 521, et seq., unless a different intent
  8    is expressed in this chapter.
  9        (2)  Except as otherwise stated herein, nothing in this chapter  shall  be
 10    interpreted  to  prevent  a competitive service provider, a system operator, a
 11    local governmental entity or a franchising entity from  seeking  clarification
 12    of  its  rights  and obligations under federal or state law or to exercise any
 13    right or authority under federal or state law.
 14        SECTION 2.  SEVERABILITY.  The provisions of this act are hereby  declared
 15    to  be  severable  and if any provision of this act or the application of such
 16    provision to any person or circumstance is declared invalid  for  any  reason,
 17    such  declaration  shall  not affect the validity of the remaining portions of
 18    this act.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE

                            RS 16918C1
This legislation, known as the Idaho Cable and Video Competition
Act, provides a simplified mechanism for cable television
services to be provided by competitive cable and video service

The legislation is intended to be competitively neutral between
providers of cable services and to continue cable service as a
reliable source of revenue to cities and counties. At the same
time, the legislation simplifies the process for new providers to
enter the Idaho cable market, encourages legitimate competition
between providers of cable service, and offers the likelihood of
lower subscriber rates for such services as a result of increased

                         FISCAL IMPACT
There is no fiscal impact.

Name:  Bill Roden, Ed Lodge 
       Quest Communications, Inc 
Phone: 208-850-4576
       Doug Cooley,CenturyTel,(503) 587-8722
       Gail Long, TDS Communications,(503) 656-8399
       Ingo Henningsen, Frontier,(801) 274-3127   

STATEMENT OF PURPOSE/FISCAL NOTE                          H 192