HOUSE BILL 9

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Candie G. Sweetser and Anthony Allison

AN ACT

RELATING TO TELECOMMUNICATIONS; CREATING THE BROADBAND INFRASTRUCTURE ADVISORY COMMITTEE; CREATING THE BROADBAND INFRASTRUCTURE DEVELOPMENT FUND; ESTABLISHING STANDARDS FOR PUBLIC AGENCIES TO ENTER INTO PUBLIC-PRIVATE PARTNERSHIP AGREEMENTS FOR BROADBAND INFRASTRUCTURE; REQUIRING REPORTS; MAKING AN APPROPRIATION.

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

     SECTION 1. Section 9-27-3 NMSA 1978 (being Laws 2007, Chapter 290, Section 3, as amended) is amended to read:

     "9-27-3. DEFINITIONS.--As used in the Department of Information Technology Act:

          A. "broadband benefit" means the provision of internet access to a previously unserved service area or a significant increase in internet service speed to a service area that supports economic growth, provides service to mobility-limited persons, allows for nationally competitive remote learning or provides such other benefits that the department establishes by rule;

          B. "broadband infrastructure" means the electronics, equipment, transmission facilities, fiber-optic cables and any other items directly related to a system capable of transmission of internet protocol or other formatted data at the current federal communications commission minimum broadband speed standard;

          [A.] C. "department" means the department of information technology;

          [B.] D. "information technology" means computer hardware and software and ancillary products and services, including:

                (1) systems design and analysis;

                (2) acquisition, storage and conversion of data;

                (3) computer programming;

                (4) information storage and retrieval;

                (5) voice, radio, video and data communications;

                (6) requisite systems;

                (7) simulation and testing; and

                (8) related interactions between users and information systems;

          [C.] E. "information technology project" means the purchase, replacement, development or modification of a hardware or software system;

          F. "local government" means a municipality; a county; or a regional entity created by a joint powers agreement between one or more public agencies;

          G. "material default" means a failure of a private partner to perform any duties under a public-private partnership agreement, which failure jeopardizes delivery of adequate service to the public and remains unsatisfied after a reasonable time and after the private partner has received written notice from the public partner of the failure;

          H. "non-state money" means money that does not derive from revenue acquired from taxes, fees, fines established pursuant to a state statute or from interest accruing to a fund established pursuant to a state statute;

          I. "private partner" means a nongovernmental entity;

          J. "public partner" means a local government, state agency, state institution or instrumentality of the state;

          K. "public-private partnership agreement" means a contract between a public partner and private partner for the development, operations and maintenance of infrastructure in which the partners may negotiate to share the costs and the final disposition of the ownership of the infrastructure;

          L. "rural area" means any part of the state other than:

                (1) an H class county;

                (2) the state fairgrounds;

                (3) an incorporated municipality within a metropolitan statistical area if the municipality's population is fifty thousand or more according to the most recent federal decennial census; and

                (4) any area within ten miles of the exterior boundaries of a municipality described in Paragraph (3) of this subsection;

          [D.] M. "secretary" means the secretary of information technology;

          [E.] N. "state information architecture" means a logically consistent set of principles, policies and standards that guides the engineering of state government's information technology systems and infrastructure in a way that ensures alignment with state government's business needs;

          [F.] O. "state information technology strategic plan" means the information technology planning document for the state that spans a three-year period; and

          [G.] P. "telecommunication network" means the physical and logical components and all associated infrastructure used in transporting, routing, aggregating and delivering voice and data information from computer and telecommunications systems in one location to peer systems in another."

     SECTION 2. A new section of the Department of Information Technology Act is enacted to read:

     "[NEW MATERIAL] CREATION OF BROADBAND INFRASTRUCTURE ADVISORY COMMITTEE--DUTIES.--

          A. The "broadband infrastructure advisory committee" is created to develop recommendations to the department regarding the award of grants or loans from the broadband infrastructure development fund.

          B. The governor may appoint members to the broadband infrastructure advisory committee as necessary, but at a minimum, the advisory committee shall be composed of:

                (1) the secretary or the secretary's designee;

                (2) the secretary of aging and long-term services or the secretary's designee;

                (3) the director of the department's office of broadband and geospatial initiatives;

                (4) the director of a rural public safety answering point;

                (5) a person responsible for a remote learning program in a public school system or a post-secondary public educational institution;

                (6) a representative from an economic development organization in a county with fifty percent or more of its jurisdiction in rural areas; and

                (7) a representative of an Indian nation, tribe or pueblo.

          C. Members of the broadband infrastructure advisory committee who are not state employees shall be reimbursed for attending meetings of the advisory committee as provided for nonsalaried public officers in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance."

     SECTION 3. A new section of the Department of Information Technology Act is enacted to read:

     "[NEW MATERIAL] BROADBAND INFRASTRUCTURE DEVELOPMENT FUND CREATED--PLANNING GRANTS--INFRASTRUCTURE LOANS.--

          A. The "broadband infrastructure development fund" is created in the state treasury and shall be administered by the department. The fund consists of appropriations, payments of principal and of interest on loans made from the fund, income from investment of the fund and any other money appropriated, distributed or otherwise allocated to the fund. Balances in the fund at the end of any fiscal year shall not revert to the general fund. The fund may consist of such subaccounts as the department deems necessary to carry out the purposes of the fund. Disbursements from the fund shall be by warrant of the secretary of finance and administration pursuant to vouchers signed by the secretary of information technology.

          B. The department shall establish procedures and adopt rules as required to administer the broadband infrastructure development fund and to recover from the fund the costs of administering the fund and originating grants and loans.

          C. Money in the broadband infrastructure development fund may be used to make a grant of up to fifty thousand dollars ($50,000) to a local government for the purposes of studying the need for and the costs and benefits of providing broadband service to a rural area; provided that the local government shall provide matching funding in non-state money equal to at least fifty percent of the total cost of a study.

          D. Money in the broadband infrastructure development fund may be used to provide a loan to a local government for the construction and installation of broadband infrastructure to provide broadband service to a rural area through either a standard procurement process or a public-private partnership agreement pursuant to Section 4 of this 2019 act; provided that:

                (1) a loan award shall be made on a competitive basis pursuant to a point system established pursuant to Subsection E of this section;

                (2) a local government shall provide matching funding in non-state money that equals at least thirty percent of the entire cost of the construction and installation project; and

                (3) the local government has either:

                     (a) a demonstrated ability to provide maintenance for the broadband infrastructure and operation of the broadband service that is the purpose of the loan; or

                     (b) has established a contract with a service provider that has a demonstrated ability to provide maintenance for the broadband infrastructure and operation of the broadband service that is the purpose of the loan. When evaluating contract bids for service under this section, a local government shall provide a five percent preference for bids from incumbent rural telecommunications carriers as defined in the Rural Telecommunications Act of New Mexico.

          E. The department shall establish by rule:

                (1) the standards for "demonstrated ability", as that term is used in Subsection D of this section; and

                (2) the point system for loan applications required by Subsection D of this section; provided that applications shall be awarded points for:

                     (a) the actual number or percentage of households within a service area that has a mobility-limited person in residence;

                     (b) the need for remote learning within the service area;

                     (c) the degree that economic or job growth in a broadband service can reasonably be attributed to a need for broadband infrastructure; and

                     (d) the need for telemedicine services within the service area."

     SECTION 4. A new section of the Department of Information Technology Act is enacted to read:

     "[NEW MATERIAL] PUBLIC-PRIVATE PARTNERSHIP AGREEMENT STANDARDS--RULES--REPORTS.--

          A. A public partner may enter into a public-private partnership agreement for broadband infrastructure; provided that:

                (1) the public partner makes a formal determination through rule or ordinance as appropriate that entering into a public-private partnership agreement for the development of broadband infrastructure will significantly reduce the time or the cost of delivering broadband benefits to an area within its jurisdiction in comparison to the use of its standard procurement processes and files a copy of the agreement with the department. A public partner may base its decision in part on the degree that broadband benefits are in demand in the projected service area;

                (2) in a public-private partnership agreement where a public partner provides fifty percent or more or five million dollars ($5,000,000) or more of the cost of broadband infrastructure development, the public-private partnership agreement shall specify that a private partner will provide a minimum of twenty-five years of broadband service; and

                (3) in the instance of a material default, the public-private partnership agreement shall specify that the broadband infrastructure shall revert to a public partner.

          B. The department shall promulgate rules as necessary to implement the provisions of this section.

          C. Each year the department shall report to the appropriate interim legislative committee on the number, types and locations of public-private partnership agreements for broadband infrastructure that are in effect throughout the state. The department shall also provide in a report recommendations to strengthen the public benefits of using public-private partnership agreements for the development of broadband infrastructure in the state."

     SECTION 5. APPROPRIATION.--Ten million dollars ($10,000,000) is appropriated from the general fund to the broadband infrastructure development fund for expenditure in fiscal year 2020 and subsequent fiscal years for the purposes of the fund. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.

     SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.