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HOUSE BILL NO. 192
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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
]]]] 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
2 RELATING TO CABLE AND VIDEO COMPETITION; AMENDING TITLE 61, IDAHO CODE, BY THE
3 ADDITION OF A NEW CHAPTER 17, TITLE 61, IDAHO CODE, TO PROVIDE A SHORT
4 TITLE, TO DEFINE TERMS, TO PROVIDE REQUIREMENTS, PROCEDURES AND AUTHORITY
5 FOR THE PROVISION OF CABLE OR VIDEO SERVICE WITHIN THE STATE OF IDAHO, TO
6 PROVIDE REQUIREMENTS AND PROCEDURES FOR CUSTOMER ACCESS TO COMMUNITY PRO-
7 GRAMMING, TO PROVIDE FOR SERVICE PROVIDER FEES AND PROCEDURES AND DEFINI-
8 TIONS RELATED THERETO, TO PROVIDE FOR NONDISCRIMINATION BY GOVERNMENTAL
9 ENTITIES RELATING TO USE OF PUBLIC RIGHTS-OF-WAY, TO PROHIBIT DISCRIMINA-
10 TION AMONG POTENTIAL RESIDENTIAL SUBSCRIBERS AND TO PROVIDE FOR APPLICA-
11 BILITY OF OTHER LAW; AND TO PROVIDE FOR SEVERABILITY.
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-
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
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
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.
46 61-1703. COMPETITIVE SERVICE PROVIDERS -- FILING WITH SECRETARY OF STATE
47 -- PREEMPTION OF LOCAL UNITS OF GOVERNMENT TO REQUIRE FRANCHISE FROM COMPETI-
48 TIVE SERVICE PROVIDERS -- AUTHORIZATION FOR INCUMBENT CABLE SERVICE PROVIDERS
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-
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-
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
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
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
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
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.
21 61-1706. NONDISCRIMINATION BY GOVERNMENTAL ENTITIES RELATING TO USE OF
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.
50 61-1707. DISCRIMINATION AMONG POTENTIAL RESIDENTIAL SUBSCRIBERS PROHIB-
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
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
There is no fiscal impact.
Name: Bill Roden, Ed Lodge
Quest Communications, Inc
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