[Senate Report 110-330]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Report
110-330
_______________________________________________________________________
Calendar No. 707
COMMUNITY BROADBAND ACT OF 2007
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1853
April 22, 2008.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred tenth congress
second session
DANIEL K. INOUYE, Hawaii, Chairman
TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West JOHN McCAIN, Arizona
Virginia KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota GORDON H. SMITH, Oregon
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JOHN E. SUNUNU, New Hampshire
MARIA CANTWELL, Washington JIM DeMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
MARK PRYOR, Arkansas JOHN THUNE, South Dakota
THOMAS CARPER, Delaware ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
Margaret Cummisky, Staff Director and Chief Counsel
Lila Helms, Deputy Staff Director and Policy Director
Jean Toal Eisen, Senior Advisor and Deputy Policy Director
Christine Kurth, Republican Staff Director and General Counsel
Paul J. Nagle, Republican Chief Counsel
Mimi Braniff, Republican Deputy Chief Counsel
Calendar No. 707
110th Congress Report
SENATE
2d Session 110-330
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COMMUNITY BROADBAND ACT OF 2007
_______
April 22, 2008.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 1853]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1853) to promote competition,
to preserve the ability of local governments to provide
broadband capability and services, and for other purposes,
having considered the same, reports favorably thereon with
amendments, and recommends that the bill (as amended) do pass.
PURPOSE OF THE BILL
The purpose of S. 1853 is to promote universal and affordable
access to broadband by preserving the ability of municipal
governments to provide advanced telecommunications capability
and services.
BACKGROUND AND NEEDS
Widespread broadband deployment can promote economic
development, enhance public safety, and increase educational
opportunities for millions of Americans. As a result,
communities across the country are eager to bring the economic
and social benefits of broadband infrastructure to their
citizens. Within the past several years, hundreds of cities
have launched community broadband initiatives, either with
private partners or on their own. These efforts have an
historical analogue from the last century: When the private
sector fell short of providing electric services in some areas
of the country, community leaders stepped forward to form their
own municipal electric utilities.
In some areas of the country, however, community broadband
efforts have been blocked or stymied by State or local laws
restricting the ability of municipalities to provide
telecommunications or telecommunications services. In practice,
these laws can leave some rural and remote communities without
broadband service. Other municipalities may find their
broadband service limited to already available commercial
options, which may fall short of community need. Many of these
laws followed in the wake of the Supreme Court decision in
Nixon v. Missouri Municipal League, holding that the
Telecommunications Act of 1996 did not preempt a specific State
statute prohibiting political subdivisions from providing
telecommunications. 451 U.S. 125 (2004).
The Community Broadband Act of 2007 will support efforts of
cities and towns across the country to ensure faster, more
affordable broadband service for their citizens. The bill would
prohibit State or local regulations or requirements that
prevent a municipality from offering advanced
telecommunications capability or services to any person, or
public or private entity. The bill, however, would prevent a
municipality from using its regulatory authority to
discriminate against competing private providers. In addition,
the bill would require a municipality offering high-speed
Internet services to comply with Federal and State
telecommunications laws and regulations that apply to all such
providers.
SUMMARY OF PROVISIONS
S. 1853, the Community Broadband Act of 2007, would promote
broadband service by preserving the ability of municipalities
to provide advanced telecommunications capability and services.
The bill would bar State and local governments from adopting
new legal measures or enforcing existing legal measures that
would prohibit or have the effect of prohibiting municipal
governments from providing broadband services. At the same
time, the bill would encourage the development and use of
public-private partnerships to further the deployment of these
services. The bill also would set forth notice requirements to
ensure that the public has adequate information to evaluate
prospective public broadband deployments and that the private
sector has an opportunity to put forward alternative
approaches. Finally, the bill would ensure that public
providers of broadband services are treated on an equal footing
with respect to ordinances, rules, and policies that apply to
private providers of broadband services.
LEGISLATIVE HISTORY
In the 109th Congress, H.R. 5252, the Communications
Opportunity, Promotion, and Enhancement Act of 2006, included
Title V, a section to establish the framework under which local
governments may offer broadband capability or services to the
public. The bill (as amended) was reported favorably by the
Commerce Committee by a vote of 15-7.
On July 23, 2007, Senator Lautenberg, for himself and
Senators Inouye, Kerry, McCain, McCaskill, Smith, Snowe, and
Stevens, introduced S. 1853, a bill to preserve the ability of
local governments to provide broadband capability and services.
On October 30, 2007, the Committee held an executive session
at which S. 1853 was considered. The Committee adopted two
amendments proposed by Senator Ensign. The first would preclude
the use of Federal funds to assist a public provider in the
event of bankruptcy or termination of a project. The second
would provide private sector entities with the opportunity to
bid to provide advanced telecommunications services. The bill,
as amended, was approved by voice vote.
ESTIMATED COSTS
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 1853--Community Broadband Act of 2007
S. 1853 would likely preempt state and local laws in 15
states that would ban, or have the effect of banning, the
provision of broadband services by public entities, including
municipalities. Before public entities may provide broadband
service, the bill would require them to publish notice of their
intent to offer such services, including detail of the types of
services to be provided. The bill also would require public
entities to allow private bids for those services. CBO
estimates that enacting S. 1853 would have no significant
impact on the federal budget, but it would impose mandates on
state and local governments.
The preemption, as well as the notification and bidding
requirements, would be intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that
the costs of those mandates would be small and would not exceed
the threshold established in UMRA ($66 million in 2007,
adjusted annually for inflation). The bill would benefit public
entities in some states by allowing them to offer broadband
services. The bill contains no new private-sector mandates as
defined in UMRA.
The CBO staff contacts for this estimate are Susan Willie
(for federal costs) and Elizabeth Cove (for the impact on state
and local governments). The estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
REGULATORY IMPACT STATEMENT
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 1853 would expand the availability of broadband access.
The number of persons covered by this legislation should be
consistent with current levels of individuals affected.
ECONOMIC IMPACT
S. 1853 would increase the affordability of broadband service
for consumers and commercial use.
PRIVACY
S. 1853 is not expected to have an adverse effect on the
personal privacy of any individuals that will be impacted by
this legislation.
PAPERWORK
S. 1853 has minimal or no impact on current paperwork levels.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 would establish the short title of the Act as
``Community Broadband Act of 2007''.
Section 2. Local government provision of advanced telecommunications
capability and services
Section 2 would bar State or local governments from
prohibiting any public provider from providing advanced
telecommunications capability or services using advanced
telecommunications capability to any person or any public or
private entity.
Section 3. Safeguards
Subsection (a) would prohibit any public providers from
biasing themselves over competing providers with respect to
ordinances, rules, and policies, including those relating to
access to public rights-of-way, permitting, performance
bonding, and reporting.
Subsection (b) would provide that the bill does not exempt
any public providers from any Federal communications law or
regulation that applies to all providers of advanced
telecommunications capability or services.
Section 4. Public-private partnerships encouraged
Section 4 would encourage each public provider that intends
to provide advanced telecommunications capability or services
to consider the potential benefits of a public-private
partnership prior to doing so.
Section 5. Public input and private sector opportunity to bid
Subsection (a) would require that before a public provider
may provide advanced telecommunications capability or services,
either directly or through a public-private partnership, a
public provider must publish notice of its intention to do so;
generally describe the capability or services to be provided
and proposed coverage area; identify any special capabilities
or services to be provided in low-income areas or other
demographically or geographically defined areas; provide local
citizens and private-sector entities with an opportunity to be
heard on the costs and benefits of the project and potential
alternatives to the project; and provide private-sector
entities with an opportunity to bid to provide such capability
or services.
Subsection (b) would make clear that subsection (a) does not
apply to contracts or arrangements under which a public
provider is providing advanced telecommunications capability or
services as of the date of enactment. Subsection (b) also would
make clear that subsection (a) does not apply to proposals that
as of the date of enactment are in the request-for-proposals
process, are in the process of being built, or have been
approved by referendum.
Section 6. Exemptions
Section 6 would make clear that the requirements of sections
3 and 5 do not apply when a public provider provides advanced
telecommunications capabilities or services other than to the
public. Section 6 also would make clear that the requirements
of sections 3 and 5 do not apply during an emergency declared
by the President, Governor of the State, or any other elected
local official authorized by law to declare a state of
emergency where the public provider is located.
Section 7. Use of Federal funds
Section 7 would prohibit the use of Federal funds by public
providers if any project providing advanced telecommunications
capability or services fails due to bankruptcy or is terminated
by a public provider.
Section 8. Definitions
Section 8 would define ``advanced telecommunications
capability'' consistent with its meaning in the
Telecommunications Act of 1996 and ``public provider'' as a
State or political subdivision thereof, or an Indian tribe, or
any agency or entity affiliated with a State, political
subdivision, or Indian tribe.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, the Committee states that the bill as
reported would make no change to existing law.