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F I S C A L I M P A C T R E P O R T

SPONSOR Anderson

DATE TYPED 2/15/05

HB 959

SHORT TITLE Community Access to Media & Information Act

SB

ANALYST Rosen

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB491

SOURCES OF INFORMATION

Responses Received From

Attorney General’s Office (AGO)

Public Regulation Commission (PRC)

FOR THE ECONOMIC AND RURAL DEVELOPMENT AND TELECOMMUNICATIONS

COMMITTEE

SUMMARY

Synopsis of Bill

House Bill 959 provides for delivery of a minimum amount of public access information through

services provided by service providers of communications, information and digital services, and

for funding of entities providing public access information through a percentage of revenues of

those service providers as negotiated in franchise agreements between service providers and po-

litical subdivisions. This bill provides for a public needs assessment for communications and

information needs of a community prior to the negotiation of a franchise agreement between a

service provider and a political subdivision, and every 5 years thereafter, or upon a change of

ownership of a service provider, and public procedural processes for doing so (Section 4).

Section 2 – defines 1) access management organization, 2) political subdivision, 3) public, edu-

cational, and government access, and 4) service provider.

House Bill 959 -- Page 2

1)

Mandates that a minimum of 10% of the bandwidth and spectrum or channels (whichever

is greater) be made available for public use in franchise agreements between service pro-

viders and political subdivisions, to include methods by which entities are to use the

bandwidth or spectrum (Subsection 3(A)).

2)

Provides compensation of between 3 and 5% of gross revenues of the service provider as

determined by a transparent audit mechanism (Subsection 3(B)). If a needs assessment

determines that there is a community need for public access information, then:

a)

No less than 2% per annum will be passed through to an access management or-

ganization for general operations (Section 4(E)(1)).

b)

A minimum of 1% additional will be set aside for the facilities and equipment to

be collected by the political subdivision to be passed through to a public, educa-

tional and government access operation (See def. and Section 4(E)(2)).

Section 5 - Mandates that cable and satellite services shall carry public, educational, and gov-

ernment access where they carry commercial channels.

Section 6 - States that a communications and information service provider be capable of broad-

casting emergency alerts in their systems.

Section 7 – Defines abandonment of a cable system if a service provider has not come to agree-

ment or entered into a mutually agreed extension of an agreement with a political subdivision.

Section 8 – Mandates diversity of programming and sets conditions for non-discrimination by a

service provider or a political subdivision.

Section 9 – States that the political subdivision and the service provider file a report each year

with the PRC certifying compliance with this provision of the statute.

Section 10 – States a service subscriber may take action according to the provisions of the bill.

Significant Issues

According to PRC, PRC has no enforcement authority over cable provision of media and infor-

mation. The Federal Cable Act delegates the oversight allowed in that Act to the Federal Com-

munication Commission and to the franchising authority of local governments. In return, the lo-

cal governments assess a franchise fee. Therefore, PRC believes it would only be a repository of

public records associated with the filing and that it is questionable whether PRC has the authority

to enforce the filing requirements, or the authority and responsibility to deal with non-

compliance.

According to AGO, there a several significant issues to consider:

•

This bill may be subject to challenge as being overly vague. For example, funding for the

“access management organization” comes from a percentage of the revenue of the service

provider as determined by a “transparent audit” but provides no definition of “revenue”.

Is it net or gross, revenue derived from its worldwide operations, those in New Mexico,

or those in the political sub-division.

•

The bill potentially creates an unfunded mandate. During the negotiations for a franchise

House Bill 959 -- Page 3

agreement, both the service provider and the political sub-division are to conduct a needs

assessment and hearings, but no provision is made on how either entity would fund such

undertakings.

•

The bill may unintentionally actually create disincentives for service providers to carry

local channels, because those service providers that do not provide local channels do not

have to provide for public access channels.

•

There is a large body of law governing public access channels. It is an area that has been

partially pre-empted by the Federal Communications Commission.

•

The bill appears to accommodate the possibility of a service provider acting as an access

management organization, as long as certain conditions are met, and the provisions of

this act do not bind service providers that do not provide local channels to a political sub-

division.

ADMINISTRATIVE IMPLICATIONS

PRC reports its role is essentially ministerial in acceptance of required filings pursuant to Section

9.

TECHNICAL ISSUES

The bill defines “political subdivision” as “a unit of state government with a population of three

thousand five hundred or more.” AGO reports this definition of “political subdivision” is very

different from that contained in the Hospital Funding Act (4-48B-3 NMSA). Also, the term is

used, but not defined, in numerous New Mexico statutes and cases.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

Access will still have to be negotiated with the local franchising authority and AGO indicates it

is unclear whether a New Mexico municipality (“political sub-division”) needs a specific, statu-

tory grant of authority to negotiate community access channels on cable television systems.

JR/yr