Second Substitute Senate Bill 5383 - Retail telecommunications in unserved areas (State of Washington, 2021)
Summary
Second Substitute Senate Bill 5383, State of Washington, 67th Legislature, 2021 Regular Session, by Senate Ways & Means, read first time February 22, 2021. The bill relates to authorizing public utility districts and port districts to provide retail telecommunications services in unserved areas under certain conditions. Section 1 states that equitable access to education can only happen with equitable access to reliable broadband. A public utility district may provide retail services to an end user in an unserved area if the governor's statewide broadband office notifies it that an existing service provider has not submitted an objection and a broadband service plan. A new section makes a broadband service plan exempt from disclosure.
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“Second Substitute Senate Bill 5383 - Retail telecommunications in unserved areas (State of Washington, 2021).”
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S-1250.2
SECOND SUBSTITUTE SENATE BILL 5383
State of Washington 67th Legislature 2021 Regular Session
By Senate Ways & Means (originally sponsored by Senators Wellman,
Short, Hunt, King, Lovelett, Nguyen, Randall, Saldaña, Warnick,
Wilson, C., and Wilson, L.)
READ FIRST TIME 02/22/21.
1 AN ACT Relating to authorizing public utility districts and port
2 districts to provide retail telecommunications services in unserved
3 areas under certain conditions; amending RCW 54.16.330, 53.08.370,
4 and 43.330.538; adding a new section to chapter 42.56 RCW; and
5 creating a new section.
6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
7 NEW SECTION. Sec. 1. The legislature finds that the COVID-19
8 pandemic has made it clear that equitable access to education can
9 only happen with equitable access to reliable broadband. Increasing
10 broadband access to unserved areas of the state is of vital
11 importance to increasing quality of life, broadening educational
12 opportunities, and promoting economic inclusion in the parts of our
13 state that, without broadband access, cannot fully participate in
14 modern society. The legislature further finds that one of the most
15 effective tools to ensure all Washingtonians have an opportunity to
16 equitably access education, the job market, and health care resources
17 is to allow our public utility districts and port districts to
18 provide retail telecommunications services.
19 Sec. 2. RCW 54.16.330 and 2019 c 365 s 9 are each amended to
20 read as follows:
p. 1 2SSB 5383
1 (1)(a) A public utility district in existence on June 8, 2000,
2 may construct, purchase, acquire, develop, finance, lease, license,
3 handle, provide, add to, contract for, interconnect, alter, improve,
4 repair, operate, and maintain any telecommunications facilities
5 within or without the district's limits for the following purposes:
6 (i) For the district's internal telecommunications needs; and
7 (ii) For the provision of wholesale telecommunications services
8 within the district and by contract with another public utility
9 district, or to an area currently served with electrical service in
10 an adjoining county.
11 (b) Except as provided in subsections (8) and (10) of this
12 section, nothing in this section shall be construed to authorize
13 public utility districts to provide telecommunications services to
14 end users.
15 (2) A public utility district providing wholesale or retail
16 telecommunications services shall ensure that rates, terms, and
17 conditions for such services are not unduly or unreasonably
18 discriminatory or preferential. Rates, terms, and conditions are
19 discriminatory or preferential when a public utility district
20 offering rates, terms, and conditions to an entity for wholesale or
21 retail telecommunications services does not offer substantially
22 similar rates, terms, and conditions to all other entities seeking
23 substantially similar services.
24 (3) A public utility district providing wholesale or retail
25 telecommunications services shall not be required to, but may,
26 establish a separate utility system or function for such purpose. In
27 either case, a public utility district providing wholesale or retail
28 telecommunications services shall separately account for any revenues
29 and expenditures for those services according to standards
30 established by the state auditor pursuant to its authority in chapter
31 43.09 RCW and consistent with the provisions of this title. Any
32 revenues received from the provision of wholesale or retail
33 telecommunications services must be dedicated to costs incurred to
34 build and maintain any telecommunications facilities constructed,
35 installed, or acquired to provide such services, including payments
36 on debt issued to finance such services, until such time as any bonds
37 or other financing instruments executed after June 8, 2000, and used
38 to finance such telecommunications facilities are discharged or
39 retired.
p. 2 2SSB 5383
1 (4) When a public utility district provides wholesale or retail
2 telecommunications services, all telecommunications services rendered
3 to the district for the district's internal telecommunications needs
4 shall be allocated or charged at its true and full value. A public
5 utility district may not charge its nontelecommunications operations
6 rates that are preferential or discriminatory compared to those it
7 charges entities purchasing wholesale or retail telecommunications
8 services.
9 (5) If a person or entity receiving retail telecommunications
10 services from a public utility district under this section has a
11 complaint regarding the reasonableness of the rates, terms,
12 conditions, or services provided, the person or entity may file a
13 complaint with the district commission.
14 (6) A public utility district shall not exercise powers of
15 eminent domain to acquire telecommunications facilities or
16 contractual rights held by any other person or entity to
17 telecommunications facilities.
18 (7) Except as otherwise specifically provided, a public utility
19 district may exercise any of the powers granted to it under this
20 title and other applicable laws in carrying out the powers authorized
21 under this section. Nothing in chapter 81, Laws of 2000 limits any
22 existing authority of a public utility district under this title.
23 (8)(a) If an internet service provider operating on
24 telecommunications facilities of a public utility district that
25 provides wholesale telecommunications services but does not provide
26 retail telecommunications services, ceases to provide access to the
27 internet to its end-use customers, and no other retail service
28 providers are willing to provide service, the public utility district
29 may provide retail telecommunications services to the end-use
30 customers of the defunct internet service provider in order for end-
31 use customers to maintain access to the internet until a replacement
32 internet service provider is, or providers are, in operation.
33 (b) Within thirty days of an internet service provider ceasing to
34 provide access to the internet, the public utility district must
35 initiate a process to find a replacement internet service provider or
36 providers to resume providing access to the internet using
37 telecommunications facilities of a public utility district.
38 (c) For a maximum period of five months, following initiation of
39 the process begun in (b) of this section, or, if earlier than five
40 months, until a replacement internet service provider is, or
p. 3 2SSB 5383
1 providers are, in operation, the district commission may establish a
2 rate for providing access to the internet and charge customers to
3 cover expenses necessary to provide access to the internet.
4 (9) The tax treatment of the retail telecommunications services
5 provided by a public utility district to the end-use customers during
6 the period specified in subsection (8) of this section must be the
7 same as if those retail telecommunications services were provided by
8 the defunct internet service provider.
9 (10)(a) A public utility district may provide retail
10 telecommunications services to an end user in an unserved area if the
11 public utility district receives notice from the governor's statewide
12 broadband office, established in RCW 43.330.532, that an existing
13 service provider has not submitted an objection and a broadband
14 service plan required in this subsection for the same project area.
15 Prior to beginning a project to provide retail telecommunications
16 services in this subsection, a public utility district must notify
17 the governor's statewide broadband office of its intent to provide
18 such services and post a notice of intent on its public website. The
19 governor's statewide broadband office must post notices received from
20 a public utility district pursuant to this subsection on its public
21 website.
22 (b)(i) Any existing service provider providing broadband services
23 within the proposed project area may, within 30 days of the posting
24 of the notice of intent under (a) of this subsection, submit the
25 following in writing to the governor's statewide broadband office:
26 (A) A letter certifying by affidavit that the project would
27 result in overbuild, meaning that the objecting service provider
28 currently provides, has begun construction to provide, or can
29 demonstrate that it obligated resources towards the completion of a
30 feasibility study before the public utility district provided notice
31 of intent under (a) of this subsection to begin construction within
32 six months for broadband service to end users in the proposed project
33 area with speeds of at least 100 megabits per second download and 20
34 megabits per second upload; and
35 (B) If an existing service provider intends to prevent overbuild
36 as provided in (b)(i)(A) of this subsection, then the existing
37 service provider must submit a broadband service plan to the
38 governor's statewide broadband office. The broadband service plan
39 must, at a minimum, demonstrate that the existing service provider
40 currently provides broadband service to end users within the unserved
p. 4 2SSB 5383
1 area at speeds equal to or greater than the speed goals contained in
2 RCW 43.330.536(1) and outline how the existing service provider
3 intends to provide and sustain broadband service to end users with
4 speeds of at least 100 megabits per second download and 20 megabits
5 per second upload within six months.
6 (ii) The governor's statewide broadband office may require an
7 existing service provider to disclose additional information pursuant
8 to (b)(i)(B) of this subsection to validate the authenticity of
9 claims issued by an objecting provider. A broadband service plan is
10 confidential and exempt from public inspection and copying under
11 chapter 42.56 RCW.
12 (c) No later than 30 days after submitting information to the
13 governor's statewide broadband office under (b) of this subsection,
14 the governor's statewide broadband office must notify the public
15 utility district of one of the following:
16 (i) An existing service provider did not submit the letter and
17 broadband service plan under (b) of this subsection and the public
18 utility district may pursue the proposed project in the unserved
19 area; or
20 (ii) An existing service provider did submit the letter and
21 broadband service plan under (b) of this subsection. The parties may
22 elect to enter into mediation to explore options for providing
23 broadband services in the unserved area. Mediation must be completed
24 within 30 days or a date agreed to by all parties.
25 (d) If an existing service provider that raised an objection does
26 not fulfill its commitment within six months for reasons deemed by
27 the governor's statewide broadband office as not outside the existing
28 service provider's control, the governor's statewide broadband office
29 must notify the affected public utility district that the existing
30 service provider has not fulfilled its commitment and grant
31 permission to the public utility district to commence work on the
32 project. The service provider that did not fulfill its commitment is
33 prohibited from objecting to proposed projects posted on the
34 governor's statewide broadband office under (a) of this subsection
35 for the next 18 months.
36 (e) A public utility district providing retail telecommunications
37 services under this subsection must operate an open access network.
38 (f) This section does not apply to retail internet services
39 provided by a public utility district under RCW 54.16.420.
40 (g) For the purposes of this subsection:
p. 5 2SSB 5383
1 (i) "Broadband service" has the same meaning as defined in RCW
2 43.330.530.
3 (ii) "Open access network" means a network that, during the
4 useful life of the infrastructure, ensures service providers may use
5 network services and facilities at rates, terms, and conditions that
6 are not discriminatory or preferential between providers, and employs
7 accountable interconnection arrangements published and available
8 publicly.
9 (iii) "Unserved areas" has the same meaning as defined in RCW
10 43.330.530.
11 Sec. 3. RCW 53.08.370 and 2019 c 365 s 10 are each amended to
12 read as follows:
13 (1) A port district in existence on June 8, 2000, may construct,
14 purchase, acquire, develop, finance, lease, license, handle, provide,
15 add to, contract for, interconnect, alter, improve, repair, operate,
16 and maintain any telecommunications facilities within or without the
17 district's limits for the following purposes:
18 (a) For the district's own use; and
19 (b) For the provision of wholesale telecommunications services
20 within or without the district's limits. ((Nothing)) Except as
21 provided in subsection (10) of this section, nothing in this
22 subsection shall be construed to authorize port districts to provide
23 telecommunications services to end users.
24 (2) Except as provided in subsection (9) of this section, a port
25 district providing wholesale telecommunications services under this
26 section shall ensure that rates, terms, and conditions for such
27 services are not unduly or unreasonably discriminatory or
28 preferential. Rates, terms, and conditions are discriminatory or
29 preferential when a port district offering such rates, terms, and
30 conditions to an entity for wholesale telecommunications services
31 does not offer substantially similar rates, terms, and conditions to
32 all other entities seeking substantially similar services.
33 (3) When a port district establishes a separate utility function
34 for the provision of wholesale telecommunications services, it shall
35 account for any and all revenues and expenditures related to its
36 wholesale telecommunications facilities and services separately from
37 revenues and expenditures related to its internal telecommunications
38 operations. Any revenues received from the provision of wholesale
39 telecommunications services must be dedicated to the utility function
p. 6 2SSB 5383
1 that includes the provision of wholesale telecommunications services
2 for costs incurred to build and maintain the telecommunications
3 facilities until such time as any bonds or other financing
4 instruments executed after June 8, 2000, and used to finance the
5 telecommunications facilities are discharged or retired.
6 (4) When a port district establishes a separate utility function
7 for the provision of wholesale telecommunications services, all
8 telecommunications services rendered by the separate function to the
9 district for the district's internal telecommunications needs shall
10 be charged at its true and full value. A port district may not charge
11 its nontelecommunications operations rates that are preferential or
12 discriminatory compared to those it charges entities purchasing
13 wholesale telecommunications services.
14 (5) A port district shall not exercise powers of eminent domain
15 to acquire telecommunications facilities or contractual rights held
16 by any other person or entity to telecommunications facilities.
17 (6) Except as otherwise specifically provided, a port district
18 may exercise any of the powers granted to it under this title and
19 other applicable laws in carrying out the powers authorized under
20 this section. Nothing in chapter 81, Laws of 2000 limits any existing
21 authority of a port district under this title.
22 (7) A port district that has not exercised the authorities
23 provided in this section prior to June 7, 2018, must develop a
24 business case plan before exercising the authorities provided in this
25 section. The port district must procure an independent qualified
26 consultant to review the business case plan, including the use of
27 public funds in the provision of wholesale telecommunications
28 services. Any recommendations or adjustments to the business case
29 plan made during third-party review must be received and either
30 rejected or accepted by the port commission in an open meeting.
31 (8) A port district with telecommunications facilities for use in
32 the provision of wholesale telecommunications in accordance with
33 subsection (1)(b) of this section may be subject to local leasehold
34 excise taxes under RCW 82.29A.040.
35 (9)(a) A port district under this section may select a
36 telecommunications company to operate all or a portion of the port
37 district's telecommunications facilities.
38 (b) For the purposes of this section "telecommunications company"
39 means any for-profit entity owned by investors that sells
40 telecommunications services to end users.
p. 7 2SSB 5383
1 (c) Nothing in this subsection (9) is intended to limit or
2 otherwise restrict any other authority provided by law.
3 (10)(a) A port district may provide retail telecommunications
4 services to an end user in an unserved area if the port district
5 receives notice from the governor's statewide broadband office,
6 established in RCW 43.330.532, that an existing service provider has
7 not submitted an objection and a broadband service plan required in
8 this subsection for the same project area. Prior to beginning a
9 project to provide retail telecommunications services in this
10 subsection, a port district must notify the governor's statewide
11 broadband office of its intent to provide such services and post a
12 notice of intent on its public website. The governor's statewide
13 broadband office must post notices received from a port district
14 pursuant to this subsection on its public website.
15 (b)(i) Any existing service provider providing broadband services
16 within the proposed project area may, within 30 days of the posting
17 of the notice of intent under (a) of this subsection, submit the
18 following in writing to the governor's statewide broadband office:
19 (A) A letter certifying by affidavit that the project would
20 result in overbuild, meaning that the objecting service provider
21 currently provides, has begun construction to provide, or can
22 demonstrate that it obligated resources towards the completion of a
23 feasibility study before the port district provided notice of intent
24 under (a) of this subsection to begin construction within six months
25 for broadband service to end users in the proposed project area with
26 speeds of at least 100 megabits per second download and 20 megabits
27 per second upload; and
28 (B) If an existing service provider intends to prevent overbuild
29 as provided in (b)(i)(A) of this subsection, then the existing
30 service provider must submit a broadband service plan to the
31 governor's statewide broadband office. The broadband service plan
32 must, at a minimum, demonstrate that the existing service provider
33 currently provides broadband service to end users within the unserved
34 area at speeds equal to or greater than the speed goals contained in
35 RCW 43.330.536(1) and outline how the existing service provider
36 intends to provide and sustain broadband service to end users with
37 speeds of at least 100 megabits per second download and 20 megabits
38 per second upload within six months.
39 (ii) The governor's statewide broadband office may require an
40 existing service provider to disclose additional information pursuant
p. 8 2SSB 5383
1 to (b)(i)(B) of this subsection to validate the authenticity of
2 claims issued by an objecting provider. A broadband service plan is
3 confidential and exempt from public inspection and copying under
4 chapter 42.56 RCW.
5 (c) No later than 30 days after submitting information to the
6 governor's statewide broadband office under (b) of this subsection,
7 the governor's statewide broadband office must notify the port
8 district of one of the following:
9 (i) An existing service provider did not submit the letter and
10 broadband service plan under (b) of this subsection, and the port
11 district may pursue the proposed project in the unserved area; or
12 (ii) An existing service provider did submit the letter and
13 broadband service plan under (b) of this subsection. The parties may
14 elect to enter into mediation to explore options for providing
15 broadband services in the unserved area. Mediation must be completed
16 within 30 days or a date agreed to by all parties.
17 (d) If an existing service provider who raised an objection does
18 not fulfill its commitment within six months for reasons deemed by
19 the governor's statewide broadband office as not outside the existing
20 service provider's control, the governor's statewide broadband office
21 must notify the affected port district that the existing service
22 provider has not fulfilled its commitment and grant permission to the
23 port district to commence work on the project. The service provider
24 that did not fulfill its commitment is prohibited from objecting to
25 proposed projects posted on the governor's statewide broadband office
26 under (a) of this subsection for the next 18 months.
27 (e) A port district providing retail telecommunications services
28 under this subsection must operate an open access network.
29 (f) For the purposes of this subsection:
30 (i) "Broadband service" has the same meaning as defined in RCW
31 43.330.530.
32 (ii) "Open access network" means a network that, during the
33 useful life of the infrastructure, ensures service providers may use
34 network services and facilities at rates, terms, and conditions that
35 are not discriminatory or preferential between providers, and employs
36 accountable interconnection arrangements published and available
37 publicly.
38 (iii) "Unserved areas" has the same meaning as defined in RCW
39 43.330.530.
p. 9 2SSB 5383
1 Sec. 4. RCW 43.330.538 and 2019 c 365 s 6 are each amended to
2 read as follows:
3 (1)(a) Beginning January 1, 2021, and biennially thereafter, the
4 office shall report to the legislative committees with jurisdiction
5 over broadband policy and finance on the office's activities during
6 the previous two years.
7 (((2))) (b) The report must, at a minimum, contain:
8 (((a))) (i) An analysis of the current availability and use of
9 broadband, including average broadband speeds, within the state;
10 (((b))) (ii) Information gathered from schools, libraries,
11 hospitals, and public safety facilities across the state, determining
12 the actual speed and capacity of broadband currently in use and the
13 need, if any, for increases in speed and capacity to meet current or
14 anticipated needs;
15 (((c))) (iii) An overview of incumbent broadband infrastructure
16 within the state;
17 (((d))) (iv) A summary of the office's activities in coordinating
18 broadband infrastructure development with the public works board,
19 including a summary of funds awarded under RCW 43.155.160;
20 (((e))) (v) Suggested policies, incentives, and legislation
21 designed to accelerate the achievement of the goals under RCW
22 43.330.536; and
23 (((f))) (vi) Any proposed legislative and policy initiatives.
24 (2)(a) By December 31, 2023, the office must submit a report to
25 the governor and the appropriate committees of the legislature
26 regarding the provision of retail telecommunications services to
27 unserved areas by public utility districts and port districts as
28 provided in RCW 54.16.330(10) and 53.08.370(10).
29 (b) The report must, at a minimum, contain:
30 (i) The number of public utility districts and port districts
31 providing retail telecommunications services in an unserved area
32 authorized in RCW 54.16.330(10) and 53.08.370(10);
33 (ii) The number of and which existing service providers submitted
34 plans and objected to a public utility district or port district from
35 providing retail telecommunications services pursuant to RCW
36 54.16.330(10)(a) and 53.08.370(10)(a);
37 (iii) The number of and which existing service providers filed a
38 certified affidavit claiming overbuild by a public utility district
39 or port district pursuant to RCW 54.16.330(10)(b)(i) and
40 53.08.370(10)(b)(i);
p. 10 2SSB 5383
1 (iv) The number of and which existing service providers failed to
2 fulfill their commitment to provide retail telecommunications
3 services pursuant to RCW 54.16.330(10)(d) and 53.08.370(10)(d); and
4 (v) Any recommendations to improve the provision of retail
5 telecommunications services in unserved areas.
6 NEW SECTION. Sec. 5. A new section is added to chapter 42.56
7 RCW to read as follows:
8 A broadband service plan submitted by a broadband service
9 provider to the governor's statewide broadband office established in
10 RCW 43.330.532 in accordance with the requirements under RCW
11 54.16.330(10) and 53.08.370(10) are exempt from disclosure under this
12 chapter.
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