45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO TELECOMMUNICATIONS; PROVIDING FOR RURAL BROADBAND TELECOMMUNICATIONS DEMONSTRATION PROJECTS; CREATING THE TELECOMMUNICATIONS INFRASTRUCTURE FUND COUNCIL; CREATING THE TELECOMMUNICATIONS INFRASTRUCTURE FUND; ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Telecommunications Infrastructure Fund Act".

Section 2. LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE.--

A. The development of the telecommunications infrastructure for local communities, school districts, educational institutions and health care institutions, including facilities and equipment necessary for high-speed data transmission, is a prerequisite to economic development, distance learning and telemedicine in all areas of the state. Local communities cannot finance these infrastructure needs alone because of inadequate bonding capacity, lag time between development and the generation of revenue and the dependency of economic development on adequate infrastructure. Private telecommunications providers have often been unwilling to provide such infrastructure because the projected return on investment in the infrastructure does not justify the cost over the short term. In addition, the provision of broadband telecommunications services has become increasingly critical for communities' survival and economic growth.

B. The legislature finds and declares that an assistance program is needed to aid local communities in providing telecommunications infrastructure. A telecommunications infrastructure fund council should be created to review proposals submitted by state political subdivisions in cooperation with community-based organizations to allocate funding from several sources, including severance tax bonds as approved and issued by the state board of finance, community development block grants from the federal government, proceeds from the private use of state and local telecommunications facilities and such other sources of funding as the legislature may specify from time to time, for financing needed projects for local community telecommunications infrastructure development. In addition, the council should provide guidance to communities seeking to deploy advanced services needed to implement locally targeted projects.

Section 3. DEFINITIONS.--As used in the Telecommunications Infrastructure Fund Act:

A. "broadband service" means a single telecommunications medium that provides multiple channels for the transmission of information at high speeds;

B. "community assistance program" means a program to assist political subdivisions working in cooperation with community-based organizations with telecommunications infrastructure development, including:

(1) a grant or loan of funds to political subdivisions;

(2) gathering data about political subdivisions, including information concerning telecommunications usage and projected demand;

(3) providing technical assistance to analyze the needs and seek solutions to problems related to telecommunications infrastructure development in political subdivisions; and

(4) providing technical assistance in seeking funds from sources other than the council;

C. "community-based organization" means a local nonprofit organization operating within a political subdivision;

D. "council" means the telecommunications infrastructure fund council;

E. "department" means the economic development department;

F. "fund" means the telecommunications infrastructure fund;

G. "local public body" means every political subdivision of the state that is empowered to receive or expend public money from whatever source derived;

H. "political subdivision" means any county; incorporated city, town or village; school district; educational institution; or county hospital;

I. "project" means the purchase, construction, installation, lease, gift, grant reconstruction, improvement, option to purchase or other acquisition of telecommunications and information technology equipment and facilities by a political subdivision that is cooperating with a community-based organization in the design of a broadband hub or center, including publicly owned poles, towers, wire, cable, conduit, switches, antennae, generators and computer hardware and software and all necessary real and personal property; and

J. "telecommunications provider" means any telegraph company, telephone company, transmission company, telecommunications common carrier, telecommunications company, cellular service company or pay telephone provider regulated in whole or in part by the public regulation commission under law, including the Telephone and Telegraph Company Certification Act, the New Mexico Telecommunications Act, the Cellular Telephone Services Act and Sections 63-9E-1 and 63-9E-3 NMSA 1978.

Section 4. COUNCIL CREATED--MEMBERSHIP--TERMS.--

A. The "telecommunications infrastructure fund council" is created. The council is administratively attached to the department.

B. The council is composed of sixteen voting members. The chairman of the council is the director of the office of science and technology in the department, who shall nominate members to the governor that include both users and providers of broadband services. The governor shall appoint members so that:

(1) not less than one-half of the members are from the group of broadband user nominees; and

(2) not more than four members are officers, directors, members, managers or employees of or have substantial interests in a telecommunications provider.

C. Members of the council shall serve staggered three-year terms; provided that when making the initial appointments, the governor shall appoint five members to one-year terms, five members to two-year terms and five members to three-year terms. The governor may remove a member for good cause.

D. The council shall meet at the call of the chairman of the council not less than four times per year. Necessary officers shall be elected by a majority vote of the council members. Meetings shall be conducted in different regions of the state on an alternating basis.

E. Members of the council shall be reimbursed pursuant to the Per Diem and Mileage Act and shall not receive any other compensation, perquisite or allowance for service on the council.

Section 5. FUND CREATED--ADMINISTRATION.--

A. There is created in the state treasury the "telecommunications infrastructure fund", which shall be administered by the council and operated as a separate account. The council is authorized to establish procedures and adopt rules as required to administer the fund. The council shall, whenever possible, coordinate application procedures and funding cycles in accordance with the New Mexico Community Assistance Act.

B. The following shall be deposited directly in the fund:

(1) grants from the federal government or its agencies allotted to the state for capitalization of the fund;

(2) money appropriated by the legislature to implement the provisions of the Telecommunications Infrastructure Fund Act;

(3) that portion of the net proceeds from the disposition or private use of facilities or equipment funded by a grant under the Telecommunications Infrastructure Fund Act required to be deposited in the fund;

(4) the net proceeds, after the payment or provision for the allocable share of operating expenses, of private use of any telecommunications facilities or equipment owned by the state; and

(5) any other public or private money dedicated to the fund.

C. Money in the fund is appropriated for expenditure by the council as grants made pursuant to the terms and conditions of the Telecommunications Infrastructure Fund Act.

D. Pursuant to rules adopted by the council, the council may impose and collect a fee from each political subdivision that receives a grant from the fund, which shall be used solely for the costs of administering the fund.

E. Money not currently needed for the operation of the fund or otherwise dedicated may be invested according to the provisions of Chapter 6, Article 10 NMSA 1978, and all interest earned on such investments shall be credited to the fund. Money remaining in the fund at the end of any fiscal year shall not revert to the general fund but shall accrue to the credit of the fund.

F. The council shall establish fiscal controls and accounting procedures that are sufficient to ensure proper accounting for fund payments, disbursements and balances and shall provide an annual report and an annual independent audit on the fund to the governor and the legislature.

Section 6. RULES.--

A. The council, after public hearing, shall adopt rules to provide for:

(1) procedures and forms for making grants pursuant to the Telecommunications Infrastructure Fund Act;

(2) documentation to be provided by the proposed grantee to justify the need for the community assistance program;

(3) procedures for review, evaluation and approval of grants;

(4) procedures for reporting by the grantee of programmatic, organizational and financial information necessary for the review, evaluation and approval of a proposed or existing grant to be funded or that is funded by the council;

(5) a guide for the evaluation of the ability and competence of a proposed or existing grantee or its agent to efficiently and adequately provide for the completion and management of the project;

(6) procedures to control the number of applications from each political subdivision; and

(7) such other requirements deemed necessary by the council to ensure that the state receives the services for which the legislature appropriated money.

B. Rules adopted by the council shall become effective when filed according to the provisions of the State Rules Act.

Section 7. POWERS OF THE COUNCIL.--The council shall have all the powers necessary to carry out the purposes and provisions of the Telecommunications Infrastructure Fund Act, including the power to:

A. develop and oversee the administration of community assistance programs;

B. adopt, amend and repeal, in accordance with the provisions of the State Rules Act, all rules necessary to administer and enforce the provisions of the rules of the Telecommunications Infrastructure Fund Act;

C. apply to any appropriate agency of the United States for participation in and for receipt of aid from any program designed to assist local community telecommunications infrastructure development;

D. oversee the administration of federal and other funds that are received, controlled or disbursed for the purposes of carrying out the provisions of the community assistance program;

E. coordinate and mobilize assistance and funding resources in regard to the construction, extension or repair of projects;

F. coordinate with, assist and seek input from political subdivisions, community organizations and civic groups;

G. make and enter into all contracts and agreements necessary or incidental to its duties and the execution of its powers pursuant to the Telecommunications Infrastructure Fund Act;

H. do any and all things necessary or convenient to carry out its purposes and exercise the powers given and granted in the Telecommunications Infrastructure Fund Act; and

I. disburse and oversee the administration of any other money appropriated to the council in connection with community infrastructure programs or as directed by the legislature.

Section 8. COMMUNITY ASSISTANCE APPLICATION REQUIREMENTS.--

A. In considering applications for demonstration projects, the council shall consider the following:

(1) money may be allocated to each demonstration project for a period of up to two years;

(2) the council shall fund up to five demonstration projects in its first year. Each project may be funded for up to one million dollars ($1,000,000);

(3) of the initial five projects, at least two must be for communities of no more than ten thousand population;

(4) of the initial five projects, each should demonstrate a unique technology as a solution to the proposal submitted; and

(5) each proposal should include a cost comparison component to allow adequate review of the community's likelihood of success and sustainability.

B. A political subdivision that works with a community-based organization desiring a grant of funds from the council shall file an application for a grant of funds with the council, which shall contain at least the following:

(1) a general description of the proposed project, a general description of the telecommunications needs to be served by the proposed project and a general description of related existing facilities, if any;

(2) a general description of all real estate, if any, necessary for the proposed project;

(3) preliminary plans and other documents necessary to show the type, structure and general character of the proposed project;

(4) estimates of the cost of the proposed project;

(5) a general description of the efforts made by the political subdivision to cause the facilities or equipment involved in the proposed project or their functional equivalent to be provided by private parties;

(6) a general description of the terms of any proposed lease of the facilities or equipment involved in a proposed project to or of the management of the facilities or equipment by a private party and a projection of any expected associated costs or revenue;

(7) a general description and statement of value of any property, real or personal, of the political subdivision applied or to be applied to the proposed project;

(8) a statement of cash funds previously applied, or currently held by or on behalf of the political subdivision, that are available for and are to be applied to the proposed project;

(9) evidence of the arrangement made by the political subdivision for the financing of all costs of the proposed project in excess of the requested assistance from the council;

(10) evidence that the political subdivision or its agent has the organizational and technical competence to use the requested funds efficiently; and

(11) evidence that the political subdivision or its agent can properly operate and maintain the proposed project.

C. In deciding whether to approve assistance funds, the council shall consider:

(1) the health, safety and convenience of those to be served by the proposed project;

(2) the availability of other means of providing the proposed project or its functional equivalent or of otherwise meeting the needs the proposed project is expected to address;

(3) the needs of other political subdivisions for telecommunications infrastructure development funding;

(4) the extent to which the proposed project involves innovative use of telecommunications technology;

(5) the extent to which the proposed project would provide improved connectivity among telecommunications carriers;

(6) the extent to which the proposed project would provide improved connectivity among communities;

(7) the extent to which the proposed project would stimulate demand for advanced telecommunications services;

(8) the extent to which the proposed project is likely to generate significant gains in economic development, health care, education or public services;

(9) other sources of funds available to the political subdivision to fund the proposed project;

(10) the willingness of the public regulation commission to grant expedited regulatory procedures to any telecommunications company or service provider participating in the demonstration project for the purpose of providing services needed by the project in a timely manner; and

(11) the willingness of a local public body to grant expedited right-of-way agreements or available tax abatements on any aspect of the demonstration project.

D. All action shall be taken by vote of a majority of the members of the council.

E. The council shall, upon a decision to approve assistance funds to a political subdivision, notify all appropriate state agencies of the project and request that they monitor it to assure that all statutes, rules and regulations are complied with and that standards are maintained.

Section 9. OWNERSHIP.--Upon completion of the project, ownership of the related facilities, equipment and other real and personal property, if acquired, constructed or installed with proceeds of a grant from the fund shall reside with the political subdivision or local government body that undertook the project.

Section 10. FACILITIES PROCEEDS.--One-half of the net proceeds of any disposition, by lease, sale or otherwise, or private use of any facilities or equipment funded by a grant from the fund shall be paid to the council by the political subdivision that owns the facilities or equipment for deposit in the fund within thirty days after receipt by the political subdivision. Net proceeds of a lease or sale are the gross proceeds less any expenses incurred by the political subdivision in connection with the sale or lease. Net proceeds of private use are the gross proceeds less any operating expenses incurred by the political subdivision. The remaining proceeds of any disposition or private use may be used by the political subdivision for any lawful purpose.

Section 11. ASSISTANCE BY STATE AGENCIES.--

A. Upon request of the council, any state agency is authorized and empowered to temporarily assign to the council such officers and employees as it may deem necessary from time to time to assist the council in carrying out its functions and duties pursuant to the Telecommunications Infrastructure Fund Act. The officers and employees so assigned shall not lose their status or rights as public employees.

B. Upon request of the council, any state agency, or officer or employee thereof, is authorized and empowered to lend such technical assistance, render advice and attend meetings with members and employees of the council as the council may require in carrying out its functions and duties pursuant to the Telecommunications Infrastructure Fund Act. Section 12. APPROPRIATION.--Five million dollars ($5,000,000) is appropriated from the general fund to the telecommunications infrastructure fund for expenditure in fiscal year 2002 and subsequent fiscal years to implement the provisions of the Telecommunications Infrastructure Fund Act. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.