2008 Legislation
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SENATE BILL NO. 1461<br /> – Video service, right-of-way use


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S1461......................................................by STATE AFFAIRS
VIDEO SERVICE - RIGHTS-OF-WAY - Adds to existing law relating to the use of
public rights-of-way to provide video service; to provide a short title; to
define terms; to provide for certificate of authority; to provide for
franchising authority; to provide for authorization to use public
rights-of-way; to provide for modification of existing franchise
agreements; to provide for customer access to community programming; to
provide for a video service provider fee; to provide for nondiscrimination
by governmental entities relating to the use of public rights-of-way; to
prohibit discrimination among potential residential subscribers; to provide
for customer service standards; and to provide for application of other

03/04    Senate intro - 1st rdg - to printing
03/05    Rpt prt - to St Aff

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008


                                       IN THE SENATE

                                    SENATE BILL NO. 1461

                                 BY STATE AFFAIRS COMMITTEE

  1                                        AN ACT

 13    Be It Enacted by the Legislature of the State of Idaho:

 14        SECTION  1.  That Title 50, Idaho Code, be, and the same is hereby amended
 15    by the addition thereto of a NEW CHAPTER, to be known and designated as  Chap-
 16    ter 30, Title 50, Idaho Code, and to read as follows:

 17                                      CHAPTER 30

 19        50-3001.  SHORT TITLE. This chapter shall be known and may be cited as the
 20    "Use of Public Right-of-Way to Provide Video Service Act."

 21        50-3002.  DEFINITIONS. As used in this chapter:
 22        (1)  "Access  to  video  service"  means the capability of a video service
 23    provider to provide video service  at  a  household  address  irrespective  of
 24    whether  a  subscriber has ordered the service or whether the service is actu-
 25    ally provided at that address.
 26        (2)  "Cable service" has the meaning ascribed to it in 47  U.S.C.  section
 27    522, as that section existed on January 1, 2008.
 28        (3)  "Cable  system"  has  the meaning ascribed to it in 47 U.S.C. section
 29    522, as that section existed on January 1, 2008.
 30        (4)  "Certificate of authority" means a certificate issued  by  the  Idaho
 31    secretary  of  state to a video service provider pursuant to the provisions of
 32    this chapter.
 33        (5)  "Franchise" has the meaning ascribed to it in 47 U.S.C. section  522,
 34    as  that section existed on January 1, 2008. However, a certificate of author-
 35    ity issued pursuant to section 50-3003, Idaho Code, shall constitute  a  fran-
 36    chise for the purposes of 47 U.S.C. section 522.
 37        (6)  "Franchising  entity"  means the city, county or state, authorized by
 38    state or federal law to grant a franchise.
 39        (7)  "Incumbent cable service provider" means a person who provides  cable
 40    service  and holds a franchise issued by a franchising entity prior to July 1,
 41    2008.


  1        (8)  "Local authorization" means approval pursuant to this  chapter  by  a
  2    local  unit  of government to use public rights-of-way within its jurisdiction
  3    to deliver video service.
  4        (9)  "Local unit of government" means a city, county or other governmental
  5    entity of the state of Idaho having jurisdiction over the public rights-of-way
  6    within an area for which a franchise or certificate of franchise authority has
  7    been issued by a franchising entity, unless the context requires otherwise.
  8        (10) "Nonincumbent video service provider" means:
  9        (a)  A person authorized in this chapter to provide video  service  in  an
 10        area  in  which cable service is being provided by an incumbent cable ser-
 11        vice provider; or
 12        (b)  A person authorized in this chapter to provide video  service  in  an
 13        area  in which, on the effective date of this chapter, there was no incum-
 14        bent cable service provider providing cable service.
 15        (11) "Political subdivision" means a city or county of the state of Idaho.
 16        (12) "Public rights-of-way" means the area on, below  or  above  a  public
 17    roadway, highway, street, public sidewalk, alley, waterway or utility easement
 18    dedicated for compatible uses.
 19        (13) "System  operator"  means  any person or group of persons who provide
 20    video service and directly, or through one (1) or more affiliates, own a  sig-
 21    nificant interest in the system or facilities through which the video services
 22    are  provided  and  which  person  has  been issued a certificate of franchise
 23    authority pursuant to the provisions of this chapter.
 24        (14) "Video service" means video programming services  provided  primarily
 25    through  wires or cables located in the public rights-of-way without regard to
 26    the delivery technology. The term includes cable  service,  but  excludes  any
 27    video programming provided to persons in their capacity as subscribers to com-
 28    mercial  mobile  service as defined in 47 U.S.C. section 332(d), or video pro-
 29    gramming provided solely as a part of and via a service that enables end users
 30    to access content, information, electronic mail or other services offered over
 31    the public internet.
 32        (15) "Video service provider" means  a  provider  of  video  service,  and
 33    includes  an  incumbent  cable  service provider, a nonincumbent video service
 34    provider or a system operator, unless the context in which the  term  is  used
 35    indicates otherwise.
 36        (16) "Video service provider fee" means the amount paid by a system opera-
 37    tor pursuant to section 50-3005, Idaho Code.

 40    MENTS. (1) On and after January 1, 2009, no person shall offer  video  service
 41    within the state of Idaho unless such person:
 42        (a)  Is  a cable service provider currently providing cable service within
 43        an existing franchise area pursuant to an existing franchise agreement; or
 44        (b)  Has been granted a certificate of authority to  do  business  in  the
 45        state of Idaho as a video service provider by the Idaho secretary of state
 46        as required in this chapter; and
 47        (c)  Has  secured  a local authorization from the political subdivision in
 48        which video service is to be delivered.
 49        (2)  Any application seeking a certificate of authority to  provide  video
 50    service shall set forth the following information:
 51        (a)  The  name  of the applicant and the address of its principal place of
 52        business within the state of Idaho and the names of the applicant's  prin-
 53        cipal executive officers and its primary Idaho representative;
 54        (b)  A  specific  identification  of  cities,  for incorporated areas, and


  1        counties, for incorporated areas, wherein the applicant intends to provide
  2        service;
  3        (c)  Verification that the applicant has filed with the federal communica-
  4        tions commission all forms required by that agency in advance of  offering
  5        video service in this state; and
  6        (d)  Verification  that  the applicant has procured and will maintain com-
  7        prehensive general liability insurance coverage and  automobile  liability
  8        insurance  coverage  underwritten by one (1) or more companies licensed to
  9        do business in the state of Idaho in an amount not less than  the  maximum
 10        liability limit established by the Idaho tort claims act, chapter 9, title
 11        6, Idaho Code.
 12        (3)  The  application  shall  be accompanied by a filing fee in the sum of
 13    two hundred dollars ($200) plus twenty-five dollars ($25.00) for each city  or
 14    county identified in the application as an area in which the applicant intends
 15    to provide video service.
 16        (4)  Persons that have received a certificate of authority as set forth in
 17    this section may, upon receiving an authorization from the state or any polit-
 18    ical  subdivision thereof, use the public rights-of-way of the state or of any
 19    political subdivision that has issued an authorization in compliance with  the
 20    provisions  of  this  chapter and in compliance with provisions of local ordi-
 21    nance made applicable to other nonpublic use of public rights-of-way.  A  cer-
 22    tificate  of  authority  granted  pursuant to this subsection, coupled with an
 23    authorization approved by a political subdivision, shall  constitute  a  fran-
 24    chise  issued  to  the  system  operator  for  purposes  of  47 U.S.C. section
 25    541(b)(1).
 26        (5)  The certificate of authority issued by the secretary of state  accom-
 27    panied by an authorization from a political subdivision shall authorize a sys-
 28    tem  operator to provide video service within rights-of-way maintained or man-
 29    aged by the state of Idaho, subject  to  permitting  requirements,  or  within
 30    local  public  rights-of-way  of  each  political subdivision having issued an
 31    authorization to use such public rights-of-way to the holder of a  certificate
 32    of  authority  issued pursuant to this chapter. Any such grant of authority to
 33    the system operator to use and occupy the public right-of-way in the  delivery
 34    of  video  service  shall  be subject to the laws of this state and the police
 35    powers of the political subdivision having jurisdiction over the public right-
 36    of-way in which the service is to be delivered.
 37        (6)  The approval provided by the certificate of authority is  subject  to
 38    maintaining compliance with the qualifications necessary to initially obtain a
 39    certificate of authority and to maintain compliance with reasonable, generally
 40    applicable right-of-way use and maintenance standards established by the state
 41    and the political subdivision. Any holder of an Idaho certificate of authority
 42    issued  pursuant  to  this  chapter  shall immediately notify the secretary of
 43    state of its failure to meet standards established for initial qualification.
 44        (7)  Prior to initiating construction of physical facilities in any  local
 45    jurisdiction  a  certificate  of  authority  holder  shall provide competently
 46    engineered plans describing the facilities to be installed in order to  initi-
 47    ate service within the jurisdiction. Upon presentation of competently prepared
 48    plans,  and  after  participation  in coordination activities by a holder of a
 49    certificate of authority as required herein, no  political  subdivision  shall
 50    unreasonably  deny  authorization  to  use  the local rights-of-way to provide
 51    video service.
 52        (8)  A certificate of authority shall be nonexclusive and shall be  for  a
 53    term of ten (10) years, subject to changes in federal law.
 54        (9)  A certificate of authority may be issued to any successor of the sys-
 55    tem  operator  to which the certificate was initially issued upon showing that


  1    the successor meets all requirements established by this chapter. Any  succes-
  2    sor may undertake operation and maintenance of video facilities pursuant to an
  3    approved  certificate of authority upon providing notice to the state or local
  4    governments with jurisdiction concerning the public rights-of-way to be used.
  5        (10) A certificate of authority may be terminated by  the  holder  of  the
  6    certificate  by  submitting a written notice to the secretary of state and any
  7    affected local unit of government. No approval of the termination of the  cer-
  8    tificate  shall be required by the secretary of state or by any affected local
  9    unit of government. Termination  of  a  certificate  of  authority  shall  not
 10    relieve  a  certificate  holder  of  any subsequent obligation to mitigate the
 11    effects of abandoned physical facilities remaining in any public right-of-way.
 12        (11)  To the extent required for the purposes of 47  U.S.C.  sections  521
 13    through  561,  the  state  of  Idaho  shall constitute the primary franchising
 14    authority for nonincumbent video service providers  in  the  state  of  Idaho.
 15    Video service providers may elect to secure authorization to use rights-of-way
 16    in any local jurisdiction pursuant to local ordinance or policy.
 17        (12) No  local  unit  of  government or other political subdivision of the
 18    state of Idaho, may require a system operator to obtain a franchise  from  the
 19    local  unit  of  government  or  impose  any franchise fee or impose any other
 20    requirement for the provision of video services within the  geographic  terri-
 21    tory  of  such  local unit of government or political subdivision, unless such
 22    fee or requirement is expressly authorized by this chapter  or  unless  imple-
 23    mented  pursuant to a voluntary local franchise agreement with a video service
 24    provider.
 25        (13) A system operator shall, prior to commencing to provide video service
 26    within a political subdivision, secure an authorization to use public  rights-
 27    of-way by providing not less than sixty (60) days' written notice to the chief
 28    administrative officer of the political subdivision and to any incumbent cable
 29    service provider providing service within such political subdivision. In order
 30    to  qualify  for such authorization the video service provider shall provide a
 31    copy of the certificate of authority issued by the secretary of  state  and  a
 32    specific map describing where facilities are proposed and construction methods
 33    that are proposed.
 34        (a)  Construction  plans must be approved as to routes, methods and timing
 35        before construction can be initiated. The political subdivision may  apply
 36        local  ordinances that apply generally to work in the public right-of-way,
 37        including the charging  of  reasonable  inspection  fees  associated  with
 38        installation of physical plant in the public right-of-way.
 39        (b)  The local authorization granted pursuant to this chapter carries with
 40        it  an  obligation to respect orderly management and maintenance of public
 41        rights-of-way. Any video service provider authorized to use public  right-
 42        of-way shall employ sound construction practices to maintain the integrity
 43        of  public improvements and right-of-way conditions and shall be responsi-
 44        ble for repair or replacement of any improvements or maintenance  or  res-
 45        toration of any conditions disrupted by construction activities. The video
 46        service  provider shall cause any repairs to be made promptly, bearing the
 47        costs of such repair.
 48        (c)  The local certificate of authority granted pursuant to  this  chapter
 49        also  requires  a duty to coordinate installation of any physical plant in
 50        public rights-of-way with public utilities or municipal  services  already
 51        using  or  contemplating use of the same or related rights-of-way in order
 52        to minimize conflicts and to avoid damage to existing or otherwise planned
 53        facilities.
 54        (d)  No provision of this chapter shall diminish or  otherwise  limit  the
 55        authority  of political subdivisions to enact local laws to govern the use


  1        or maintenance of public rights-of-way as otherwise provided by law.
  2        (14) Following the activation of new video facilities  within  a  specific
  3    political  subdivision  pursuant to authorization granted as allowed by a cer-
  4    tificate of authority, an incumbent cable service  provider  within  the  same
  5    jurisdiction  may,  at  its discretion, apply for modification of its existing
  6    franchise in order to negotiate revisions to the existing franchise  to  place
  7    the  incumbent cable service provider on an equal footing with a newly author-
  8    ized provider of video service. Such revisions must be implemented by  negoti-
  9    ated  modification  of an existing franchise agreement within no more than one
 10    hundred twenty (120) days from the date that such application for modification
 11    of franchise is presented. If such modifications  cannot  be  negotiated,  the
 12    existing franchise agreement shall be considered modified to the extent neces-
 13    sary not to exceed the limitations imposed upon video service providers by the
 14    provisions of this chapter.

 15        50-3004.  CUSTOMER  ACCESS TO COMMUNITY PROGRAMMING. (1) Any video service
 16    provider offering service pursuant to the provisions  of  this  chapter  shall
 17    designate a sufficient amount of capacity or one (1) or more channels to allow
 18    the provision of public, educational and governmental (PEG) noncommercial pro-
 19    gramming, as follows:
 20        (a)  Designate  an  amount of capacity or channels equal to that which has
 21        been provided by an incumbent video service provider on the effective date
 22        of this chapter, under the terms of a franchise agreement in effect  prior
 23        to January 1, 2009.
 24        (b)  If no PEG channels have been activated within the jurisdictional lim-
 25        its  of the political subdivision on January 1, 2009, the political subdi-
 26        vision may require a maximum of two (2) public, educational and governmen-
 27        tal channels for a political subdivision with a  population  of  at  least
 28        fifty  thousand  (50,000) and one (1) public, educational and governmental
 29        channel for a political subdivision with a population of less  than  fifty
 30        thousand  (50,000). For purposes of this section, if a franchise agreement
 31        in effect prior to January 1, 2009, requires the provision of PEG channels
 32        in excess of the limits set forth in this section, and such  excess  chan-
 33        nels  have not been activated by January 1, 2009, such franchise agreement
 34        shall be deemed  amended  to  conform  to  the  PEG  channel  limitations,
 35        requirements and authorizations set forth in this section.
 36        (c)  The  limits  set  forth  in paragraphs (a) and (b) of this subsection
 37        shall constitute the total number of PEG channels that may  be  designated
 38        on  all  video  service networks that share or provide a common headend to
 39        serve such political subdivisions, regardless of the number  of  political
 40        subdivisions  served  by  such  headend. The respective populations of all
 41        political subdivisions served by such  video  service  networks  shall  be
 42        aggregated for the purpose of applying such limits.
 43        (d)  The  PEG  signal shall be receivable by all subscribers, whether they
 44        receive digital or analog service, or a combination thereof,  without  the
 45        need  for  any equipment other than the equipment necessary to receive the
 46        lowest cost tier of service. The PEG access capacity provided shall be  of
 47        similar  quality  and functionality to that offered by commercial channels
 48        on the lowest cost tier of service unless the signal is  provided  to  the
 49        video service provider at a lower quality or with less functionality.
 50        (2)  The  content  of  programming to be provided over PEG access shall be
 51    the responsibility  of  the  public,  educational  and  governmental  agencies
 52    receiving  the benefit of such capacity. The video service provider shall bear
 53    the responsibility for the transmission of such content  only  to  the  extent
 54    that  such  content  complies  with the requirements of subsection (5) of this


  1    section.
  2        (3)  The public, educational or governmental agencies utilizing the capac-
  3    ity for PEG programming shall ensure that all transmissions, content  or  pro-
  4    gramming  to  be  transmitted  by  a  holder  of a state-issued certificate of
  5    authority are provided or submitted in a manner or  form  that  is  compatible
  6    with  the video service provider's network. If the public, educational or gov-
  7    ernmental agency does not produce or maintain PEG programming in the manner or
  8    form employed by the holder of the certificate of authority, then  the  agency
  9    may  submit or provide PEG programming in a manner or form that is standard in
 10    the industry. The holder of the certificate of authority shall be  responsible
 11    for  any changes in the form of the transmission necessary to make it compati-
 12    ble with the technology or protocol utilized by the holder of the  certificate
 13    of authority to deliver services. If the video service provider is required to
 14    change  the  form of the transmission, the local entity shall permit the video
 15    provider to do so in a manner that is most economical to the  video  provider.
 16    Governmental entities utilizing PEG access channels shall make the programming
 17    of  any PEG access channels available to all video service providers providing
 18    service within such governmental entity's jurisdiction in a  nondiscriminatory
 19    manner.  Each  video  service  provider  shall  be  responsible  for providing
 20    connectivity to the governmental entity's access  channel  distribution  point
 21    within the jurisdiction to be served.
 22        (4)  No franchising entity may require a video service provider to provide
 23    any institutional network or equivalent capacity on its video service network.
 24        (5)  Where technically feasible, video service providers shall use reason-
 25    able efforts to interconnect their video networks for the purpose of providing
 26    PEG  programming.  Interconnection may be accomplished by direct cable, micro-
 27    wave link, satellite or other reasonable method of connection.  Video  service
 28    providers  shall  negotiate  in  good  faith to provide interconnection of PEG
 29    channels.
 30        (6)  A political subdivision collecting a per-connection fee to fund capi-
 31    tal facilities on or before January 1, 2009, for ongoing  capital  support  of
 32    PEG  facilities  and  services pursuant to an existing franchise agreement may
 33    continue such fee by enacting an ordinance maintaining a PEG capital fee to be
 34    imposed only on a per-subscriber basis. Such fee shall not exceed one  percent
 35    (1%) of the average charge per subscriber within the jurisdiction and shall be
 36    paid  by  subscribers to all video service providers, incumbent or subsequent.
 37    The PEG capital fee shall be collected by the video service provider and  paid
 38    to  the political subdivision on the same quarterly schedule as the video ser-
 39    vice provider fee. The video service provider may identify the PEG capital fee
 40    as a separate line item on the regular bill of each subscriber. In  order  for
 41    the  PEG  facility  to  monitor  its on-air signal, the video service provider
 42    shall provide one (1) free outlet of its lowest cost tier to each PEG  channel
 43    distribution point. Except as set forth in this section, an authorizing entity
 44    may  not require a video service provider to provide any funds, services, pro-
 45    gramming, facilities or equipment related to public, educational or governmen-
 46    tal use of channel capacity. The operation of any PEG access channel  provided
 47    pursuant to this section and the production of any programming that appears on
 48    each  such channel shall be the sole responsibility of the governmental entity
 49    receiving the benefit of such channel, and the video  service  provider  shall
 50    bear  only  the responsibility for the transmission of the programming on each
 51    such channel to subscribers and the initial cost of connecting to existing and
 52    obligated PEG  channels.

 53        50-3005.  VIDEO SERVICE PROVIDER FEE. (1)  Every  video  service  provider
 54    acting  pursuant  to  authorization  provided in this chapter shall pay to the


  1    political subdivision issuing an authorization pursuant to this chapter a  fee
  2    as  required  in  this  section. For the purposes of this section, subscribers
  3    whose service address is within the jurisdictional limits of the city shall be
  4    deemed city subscribers, and those subscribers whose service address  is  out-
  5    side the jurisdictional limits of a city shall be deemed county subscribers.
  6        (2)  Upon receipt of an authorization from a political subdivision, a sys-
  7    tem  operator  shall  thereafter  be obligated to pay a video service provider
  8    fee, as provided in subsection (3) of this section, to the political  subdivi-
  9    sion  in which the video service is provided to the subscriber. The video ser-
 10    vice provider's fee shall be due to each political subdivision on a  quarterly
 11    basis,  forty-five  (45)  days  after  the close of each calendar quarter, and
 12    shall be calculated as a percentage of gross revenues, as defined  in  subsec-
 13    tion  (4)  of this section. Except as provided in section 50-3006, Idaho Code,
 14    the political subdivision may not require any additional fees or charges  from
 15    the  system  operator  and  may  not  require the use of any other calculation
 16    method.
 17        (3)  The percentage to be applied against gross revenues pursuant to  this
 18    section  shall be set annually by the political subdivision in an amount equal
 19    to the percentage paid by an incumbent cable service provider or five  percent
 20    (5%),  whichever is less. If there is no incumbent cable service provider hav-
 21    ing a franchise agreement with the political subdivision, the fee to  be  paid
 22    shall  be  established  annually by the political subdivision, but shall in no
 23    event be in excess of five percent (5%) of the gross revenues, as set forth in
 24    subsection (4) of this section.
 25        (4)  (a) For  purposes of this section:
 26             (i)   "Gross revenues" means all consideration of any kind or nature,
 27             prepared in accordance with generally accepted accounting  principles
 28             (GAAP)  including, without limitation, cash,  credits,  property  and
 29             in-kind goods or service contributions received by the  system opera-
 30             tor from subscribers to video services within the jurisdictional lim-
 31             its of the political subdivision as provided herein.  Gross  revenues
 32             shall include all of the following:
 33                  1.  All  charges  and fees paid by subscribers for the provision
 34                  of video service, including equipment rental, late fees,  insuf-
 35                  ficient  funds  fees and fees attributable to video service when
 36                  sold individually or as part of a package or  bundle,  or  func-
 37                  tionally integrated, with services other than video services;
 38                  2.  Compensation received by the provider for promotion or exhi-
 39                  bition of any products or services over the video service;
 40                  3.  Revenue  received  by  the provider as compensation for car-
 41                  riage of video programming on that provider's video service;
 42                  4.  All  revenue  derived  from  compensation  arrangements  for
 43                  advertising attributable to the political  subdivision's  juris-
 44                  dictional area; and
 45                  5.  Any  advertising  commissions  paid  to  an affiliated third
 46                  party for video service advertising.
 47             (ii)  "Gross revenues" does not include:
 48                  1.  Any revenues not actually received, even if billed, such  as
 49                  bad debt net of any recoveries of bad debt;
 50                  2.  Refunds,  rebates,  credits or discounts to subscribers or a
 51                  political subdivision to the extent not already offset  by  sub-
 52                  paragraph  (i)  of  this paragraph and to the extent the refund,
 53                  rebate, credit or discount is attributable to the video service;
 54                  3.  Any revenues received by the system operator or its  affili-
 55                  ates  from  the provision of services or capabilities other than


  1                  video service, including telecommunications  services,  informa-
  2                  tion services, and services, capabilities, and applications that
  3                  may  be  sold  as  part  of a package or bundle, or functionally
  4                  integrated, with video service;
  5                  4.  Any revenues received by the provider or its affiliates  for
  6                  the  provision  of  directory or internet advertising, including
  7                  yellow pages, white pages, banner advertisement  and  electronic
  8                  publishing;
  9                  5.  Any  amounts  attributable to the provision of video service
 10                  to customers at no charge, including the provision of such  ser-
 11                  vice to public institutions without charge;
 12                  6.  Any  tax, fee or assessment of general applicability imposed
 13                  on the customer or the transaction by a federal, state or  local
 14                  government  or  any  other governmental entity, collected by the
 15                  provider and required to  be  remitted  to  the  taxing  entity,
 16                  including sales and use taxes;
 17                  7.  Any  foregone revenue from the provision of video service at
 18                  no charge to  any  person,  except  that  any  foregone  revenue
 19                  exchanged  for  trade,  barter,  service  or other item of value
 20                  shall be included in gross revenue;
 21                  8.  Sales of capital assets or surplus equipment;
 22                  9.  Reimbursement by programmers  of  marketing  costs  actually
 23                  incurred  by  the  provider for the introduction of new program-
 24                  ming; or
 25                  10. The sale of video service for resale to the extent the  pur-
 26                  chaser  certifies in writing that it will resell the service and
 27                  pay a video service provider fee with respect to the service.
 28        (b)  In the case of a video service that is bundled  or  integrated  func-
 29        tionally with other services, capabilities or applications, the portion of
 30        the system operator's revenue attributable to the other services, capabil-
 31        ities  or applications shall be included in gross revenues unless the pro-
 32        vider can reasonably identify the division or  exclusion  of  the  revenue
 33        from  its  books  and records that are kept in the regular course of busi-
 34        ness. Revenues proportionately  allocated  from  bundled  or  functionally
 35        integrated  services may be separated from aggregate charges but shall not
 36        be counted at a charge less than the minimum charge for video service  for
 37        individual customers not receiving bundled or integrated service packages.
 38        (c)  Revenue of an affiliate shall be included in the calculation of gross
 39        revenues  to  the  extent  the  treatment of the revenue as revenue of the
 40        affiliate would have the effect of evading the payment of the  video  ser-
 41        vice provider fee that would otherwise be paid for video service.
 42        (5)  Payment  of the fees as required in this section shall be accompanied
 43    by a written accounting categorizing revenues by category as set forth herein,
 44    including a tabulation of households receiving service. A  political  subdivi-
 45    sion  may,  upon  reasonable   advance written notice, but not more frequently
 46    than once in any calendar year, review the business records of a system opera-
 47    tor to the extent necessary to ensure proper and accurate payment of the video
 48    service provider fee. A video service provider shall provide sufficient infor-
 49    mation about such revenues to a political subdivision to allow a  proper  com-
 50    pliance  review by such political subdivision. The annual frequency limitation
 51    on examinations shall not apply in circumstances where reported  system  reve-
 52    nues  decline in any quarter by more than fifteen percent (15%) or in any year
 53    by more than ten percent (10%) or where the political subdivision can identify
 54    inconsistencies in the data reported. The system operator shall keep all busi-
 55    ness records reflecting any gross revenues, even if there is a change in  own-


  1    ership,  for  at  least three (3) years after those revenues are recognized by
  2    the system operator on its books and records. All records reasonably necessary
  3    for the audit shall, at the discretion of the political subdivision,  be  made
  4    available by the system operator at the location within the jurisdiction where
  5    the  records  are  kept in the ordinary course of business, or may be provided
  6    electronically to the political subdivision with its  consent.  The  political
  7    subdivision  and  the  system  operator  shall  each  be responsible for their
  8    respective costs of the audit, unless the  audit  discloses  that  the  system
  9    operator has underpaid the video service provider fee by more than two percent
 10    (2%)  during  the  examination period, in which case the system operator shall
 11    pay all of the reasonable and actual costs of the audit. Any undisputed amount
 12    or refund due to the political subdivision or the  system  operator  shall  be
 13    paid within sixty (60) days plus interest at the statutory rate on civil judg-
 14    ments.
 15        (6)  Any  system operator may identify and collect the amount of the video
 16    service provider fee as a separate line item on the regular bill of each  sub-
 17    scriber.
 18        (7)  Any  city annexing lands shall notify a video service provider of any
 19    such annexation and each authorized provider shall thereafter  remit  to  said
 20    city the video service provider fee authorized herein beginning in any quarter
 21    after  which  the video service provider has received at least forty-five (45)
 22    days' notice of annexation of customers into the city's corporate limits.

 24    PUBLIC RIGHTS-OF-WAY. (1) A local unit of government shall allow the holder of
 25    a  certificate  of authority and a local authorization issued pursuant to this
 26    chapter to install, construct and maintain facilities within public rights-of-
 27    way, over which the local unit of government has jurisdiction, to  enable  the
 28    provision of video services to subscribers to such services. The local unit of
 29    government shall provide the holder of such certificate of authority and local
 30    authorization  with open, comparable, nondiscriminatory and competitively neu-
 31    tral access to the public rights-of-way within its jurisdiction.
 32        (2)  A local unit of government may not discriminate against the holder of
 33    a certificate of authority in any manner, including:
 34        (a)  The authorization or placement of facilities in public  rights-of-way
 35        that is necessary for the provision of video services;
 36        (b)  Access to a public building; or
 37        (c)  The terms or conditions for access to any utility pole within control
 38        of the jurisdiction.
 39        (3)  A local unit of government may impose a permit fee on a system opera-
 40    tor  relating  to the opening, closing, inspection or repair of public rights-
 41    of-way over which rights-of-way the governmental entity has jurisdiction, only
 42    to the extent it imposes such a fee on incumbent cable  service  providers  or
 43    others  accessing the public rights-of-way relating to the opening, closing or
 44    repair thereof. Any fee authorized in this section may not exceed  the  actual
 45    costs incurred by the governmental entity issuing the permit that are directly
 46    related  to  the system operator's activity in the right-of-way with which the
 47    permit is associated. In no event may a  fee  under  this  subsection  (3)  be
 48    levied:
 49        (a)  If  the  system  operator already has paid a permit fee in connection
 50        with the same activity in the public rights-of-way that would otherwise be
 51        covered by the permit fee under this section; or
 52        (b)  For general revenue purposes.


  2    ITED.  A  system operator may not deny access to video service to any group of
  3    potential residential subscribers because of the income of  the  residents  in
  4    the local area in which such group resides.

  5        50-3008.  CUSTOMER  SERVICE  STANDARDS.  The  holder  of  a certificate of
  6    authority shall comply with  customer  service  requirements  consistent  with
  7    those  contained  in 47 CFR 76.309(c), as amended from time to time, and shall
  8    maintain a local or toll-free telephone number for customer  service  contact.
  9    The  office  of  the  attorney general is hereby authorized to investigate and
 10    enforce consumer service and nondiscrimination requirements of this chapter.

 11        50-3009.  APPLICABILITY OF OTHER LAW. (1) The provisions of  this  chapter
 12    are  intended to be construed to be consistent with the federal cable communi-
 13    cations policy act of 1984, 47 U.S.C. sections 521 through 561, unless a  dif-
 14    ferent intent is expressed in this chapter.
 15        (2)  Except  as  otherwise stated herein, nothing in this chapter shall be
 16    interpreted to prevent an incumbent cable  service  provider,  a  nonincumbent
 17    video  service  provider,  a  system operator, a local unit of government or a
 18    franchising entity from seeking clarification of its  rights  and  obligations
 19    under federal or state law or to exercise any right or authority under federal
 20    or state law.
 21        (3)  Nothing  in  this  chapter  shall  be construed to limit, abrogate or
 22    supersede the provisions of titles 61 and 62, Idaho Code, regarding telecommu-
 23    nications service within the state of Idaho, nor to require a telephone corpo-
 24    ration to obtain a certificate of authority or local authorization pursuant to
 25    this chapter for the purpose of permitting or authorizing the telephone corpo-
 26    ration to construct, upgrade, operate or maintain its telecommunications  sys-
 27    tem.

 28        SECTION  2.  SEVERABILITY.  The provisions of this act are hereby declared
 29    to be severable and if any provision of this act or the  application  of  such
 30    provision  to  any  person or circumstance is declared invalid for any reason,
 31    such declaration shall not affect the validity of the  remaining  portions  of
 32    this act.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE

                            RS 18004C1

The purpose of the proposed legislation is to increase the
opportunity for competition for the provision of video services
within the state, together with increased provider choice for video
service customers and increased investment in video infrastructure
by new entrants into the market.
The proposed legislation establishes a streamlined statewide
process that will enable new providers of video service to receive
a certificate of franchise authority from the Idaho Secretary of
State to provide video service within the state, subject to the new
video service provider obtaining local authorization for the use of
the public rights of way in individual cities and unincorporated
areas of the counties and full compliance with local requirements
and oversight. Local authority over the use of the public rights of
way is preserved. 
Further, the proposal provides for equality of treatment
between incumbent cable service providers and new video service
providers and continuation of the right of local government to
receive revenues from incumbent and new video service providers on
an equal basis.

                           FISCAL NOTE

There is no negative fiscal impact on state or local governments.

Name:  Senator Mike Jorgenson 
       Representative Brent Crane
Phone: 332-1384  

STATEMENT OF PURPOSE/FISCAL NOTE                        S 1461