HOUSE BUSINESS AND EMPLOYMENT COMMITTEE SUBSTITUTE FOR
HOUSE BILL 442
52nd legislature - STATE OF NEW MEXICO - first session, 2015
AN ACT
RELATING TO TELECOMMUNICATIONS; ENACTING THE TELECOMMUNICATIONS SAFEGUARDS ACT; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Telecommunications Safeguards Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Telecommunications Safeguards Act:
A. "minimum broadband transmission speed" means high-speed internet access capability as measured by a download speed of seven megabytes per second and an upload speed of one megabyte per second;
B. "municipal" or "municipality" means any incorporated city, town or village, whether incorporated under general act, special act or special charter;
C. "municipal-owned telecommunications service provider" means a municipality that provides telecommunications service using a telecommunications network, whether directly, indirectly or through an interlocal agreement or a joint agency;
D. "subscriber" means a person that lawfully receives or purchases, as an end user, video, telecommunications or broadband services;
E. "telecommunications network" means a wired or wireless network for the provision of telecommunications service;
F. "telecommunications service" means the two-way transmission of signs, signals, writing, images, sounds, messages, data or other information of any nature by wire, radio, light waves or other electromagnetic means, offered to the public generally;
G. "unserved area" means one or more contiguous census blocks within the legal boundaries of a municipality seeking to provide the unserved area with video, telecommunications or broadband service, where at least nine out of ten households lack access to facilities-based, terrestrial broadband service, either fixed or mobile, or satellite broadband service, at the minimum broadband transmission speed; and
H. "video service" means video programming services provided through wireline facilities located at least in part in the public rights of way without regard to delivery technology.
SECTION 3. [NEW MATERIAL] REQUIREMENTS FOR MUNICIPAL- OWNED TELECOMMUNICATIONS SERVICE PROVIDER.--
A. A municipal-owned telecommunications service provider shall:
(1) comply with all local, state and federal laws, regulations or other requirements applicable to the provision of the telecommunications service if provided by a private telecommunications service provider;
(2) limit the provision of telecommunications service to the corporate limits of the municipality providing the telecommunications service;
(3) provide nondiscriminatory access to private telecommunications service providers on a first-come, first-served basis to rights of way, poles or conduits owned, leased or operated by the municipality, unless the facilities have insufficient capacity for the access and additional capacity cannot reasonably be added to the facilities. For purposes of this paragraph, the term "nondiscriminatory access" means that access shall be granted on the same terms and conditions as that given to a municipal-owned telecommunications service provider; and
(4) annually remit to the general fund of the municipality an amount equivalent to all taxes or fees that a private telecommunications service provider would be required to pay to the municipality or county in which the municipality is located, including any applicable tax refunds received by the municipal-owned telecommunications service provider because of its government status, and a sum equal to the amount of property tax that would have been due if the municipal-owned telecommunications service provider were a private telecommunications service provider.
B. A municipal-owned telecommunications service provider shall not:
(1) directly or indirectly, under the powers of a municipality, exercise power or authority in any area, including zoning or land-use regulation, to require any person, including residents of a particular development, to use or subscribe to any telecommunications service provided by the municipal-owned telecommunications service provider;
(2) air advertisements or other promotions for the municipal-owned telecommunications service provider on a public, educational or governmental access channel if the municipality requires another telecommunications service provider to carry the channel;
(3) use municipal resources that are not allocated for cost accounting purposes to the municipal-owned telecommunications service provider to promote municipal-owned telecommunications service in comparison to private services or, directly or indirectly, require municipal employees, officers or contractors to purchase municipal-owned telecommunications services;
(4) subsidize the provision of municipal-owned telecommunications service with funds from any other non-communications service, operation or other revenue source, including any funds or revenue generated from electric, gas, water, sewer or garbage services; or
(5) price any telecommunications service below the cost of providing the service, including any direct or indirect subsidies received by the municipal-owned telecommunications service provider and allocation of costs associated with any shared use of buildings, equipment, vehicles and personnel with other municipal departments.
SECTION 4. [NEW MATERIAL] LIMITATION ON MUNICIPAL VIDEO SERVICE, TELECOMMUNICATIONS SERVICE AND BROADBAND SERVICE.--
A. Except with regard to unserved areas, a municipality shall not, directly or indirectly:
(1) offer or provide to one or more subscribers video service, telecommunications service or broadband service; or
(2) purchase, lease, construct, maintain or operate any facility for the purpose of enabling a private business or entity to offer, provide, carry or deliver video service, telecommunications service or broadband service to one or more subscribers.
B. For purposes of the Telecommunications Safeguards Act, a municipality offers or provides video service, telecommunications service or broadband service if the municipality offers or provides the service:
(1) directly or indirectly, including through an authority or instrumentality:
(a) acting on behalf of the municipality; or
(b) for the benefit of the municipality;
(2) by itself;
(3) through a partnership, joint venture or other entity in which the municipality participates; or
(4) by contract, resale or otherwise.
C. Nothing in the Telecommunications Safeguards Act shall prohibit a municipality from purchasing, leasing, constructing or equipping facilities:
(1) that are designed to provide video service, telecommunications service or broadband service within the municipality that the municipality uses exclusively for internal government purposes, including communications between and among government buildings and other public buildings, such as public schools, public safety and public library facilities; or
(2) that are designed to provide video service, telecommunications service or broadband service to an unserved area.
SECTION 5. [NEW MATERIAL] LIMITATION ON MUNICIPAL EMINENT DOMAIN POWER.--
A. A municipality shall not exercise its power of eminent domain to condemn a plant and equipment of a private provider of video service, telecommunications service or broadband service for the purpose of offering or providing to one or more subscribers video service, telecommunications service or broadband service, or to utilize such plant and equipment for the purpose of enabling a private business or entity to offer, provide, carry or deliver video service, telecommunications service or broadband service to one or more subscribers.
B. Except with regard to providing video service, telecommunications service or broadband service to unserved areas, a municipality shall not exercise its power of eminent domain to condemn any real property, whether in whole or in part, to obtain an easement for the purpose of offering or providing to one or more subscribers video service, telecommunications service or broadband service, or to facilitate the construction of a facility for the purpose of enabling a private business or entity to offer, provide, carry or deliver video service, telecommunications service or broadband service to one or more subscribers.
SECTION 6. [NEW MATERIAL] ANTITRUST PROVISIONS.--When a municipality is offering or providing a video service, telecommunications service or broadband service to one or more subscribers, any immunity from antitrust liability afforded to municipalities pursuant to Section 57-1-16 NMSA 1978 shall not apply to the municipality with respect to the offering or provision of those services.
SECTION 7. [NEW MATERIAL] SEVERABILITY.--If any part or application of the provisions of the Telecommunications Safeguards Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
SECTION 8. [NEW MATERIAL] APPLICABILITY.--
A. The Telecommunications Safeguards Act shall not affect a municipality that is providing video service, telecommunications service or broadband service to subscribers via a municipally owned video, telecommunications or broadband system existing on the effective date of this act.
B. The Telecommunications Safeguards Act shall apply only to municipalities located in class A counties.
SECTION 9. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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