HF 451

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to telecommunications; limiting local 
  1.3             regulation of telecommunications companies; proposing 
  1.4             coding for new law as Minnesota Statutes, chapter 237A.
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  [237A.01] [DEFINITIONS.] 
  1.7      Subdivision 1.  [SCOPE.] The terms used in this chapter 
  1.8   have the meanings given them in this section. 
  1.9      Subd. 2.  [POLITICAL SUBDIVISION.] "Political subdivision" 
  1.10  means the state and all of its departments and agencies except 
  1.11  the Minnesota public utilities commission; county; statutory or 
  1.12  home rule charter city; town; joint powers authority or 
  1.13  commission; port authority; service authority; school district; 
  1.14  local improvement district; law enforcement authority; water, 
  1.15  sanitation, fire protection, metropolitan, irrigation, drainage, 
  1.16  or other special district; any other kind of municipal, 
  1.17  quasi-municipal, or public corporation organized pursuant to 
  1.18  law; or any combination of them. 
  1.19     Subd. 3.  [PUBLIC RIGHT-OF-WAY.] "Public right-of-way" 
  1.20  includes all types of public highways, roads, and streets 
  1.21  defined and set forth in sections 160.02 and 173.02, subdivision 
  1.22  7; public cartways, alleyways, and easements; and other 
  1.23  dedicated rights-of-way and utility easements of the state or 
  1.24  any of its political subdivisions. 
  1.25     Subd. 4.  [TELECOMMUNICATIONS PROVIDER OR PROVIDER.] 
  2.1   "Telecommunications provider" or "provider" means a person that 
  2.2   provides telecommunications service, as set forth in section 
  2.3   237.01, subdivisions 2, 3, 4, and 6, with the exception of cable 
  2.4   services as defined by section 602(5) of the federal Cable 
  2.5   Communications Policy Act of 1984, United States Code, title 47, 
  2.6   section 522, subsection (c), pursuant to authority granted by 
  2.7   the Minnesota public utilities commission or by the Federal 
  2.8   Communications Commission.  Telecommunications provider or 
  2.9   provider includes commercial mobile radio service providers as 
  2.10  defined in United States Code, title 47, section 332, subsection 
  2.11  (d).  Telecommunications provider or provider does not mean a 
  2.12  person or business using antennas, support towers, equipment, 
  2.13  and buildings used to transmit high-power, over-the-air 
  2.14  broadcasts of AM or FM radio, VHF or UHF television, or advanced 
  2.15  television services, including high definition television 
  2.16  services.  Telecommunications provider is synonymous with 
  2.17  telecommunication provider. 
  2.18     Sec. 2.  [237A.02] [LEGISLATIVE POLICY DECLARATION AND 
  2.19  FINDINGS.] 
  2.20     (a) The legislature declares that it is the policy of the 
  2.21  state of Minnesota to encourage competition among various 
  2.22  telecommunications providers, including both wireless and wire 
  2.23  line telecommunications service providers, to reduce the 
  2.24  barriers to entry for those providers, to encourage competition 
  2.25  within the local exchange telecommunications market, and to 
  2.26  ensure that all consumers benefit from such competition and 
  2.27  expansion. 
  2.28     (b) The goals of this policy are for all citizens to have 
  2.29  access to a wider range of telecommunications services at rates 
  2.30  that are reasonably comparable within the state, for basic 
  2.31  service to be available and affordable to all citizens of 
  2.32  Minnesota, and for universal access to advanced 
  2.33  telecommunications services to be available to all consumers.  
  2.34  These goals are essential to the economic and social well-being 
  2.35  of the citizens of Minnesota and can be accomplished only if 
  2.36  telecommunications providers are allowed to develop ubiquitous, 
  3.1   seamless, statewide telecommunications networks.  
  3.2      (c) The legislature finds that to require 
  3.3   telecommunications companies to seek authority from political 
  3.4   subdivisions within the state to conduct business is 
  3.5   unreasonable, impractical, and unduly burdensome.  In addition, 
  3.6   the legislature further finds and declares that since the public 
  3.7   rights-of-way are dedicated to and held on a nonproprietary 
  3.8   basis in trust for the use of the public, their use by 
  3.9   telecommunications companies is consistent with that policy and 
  3.10  appropriate for the public good. 
  3.11     (d) The legislature further finds, determines, and declares 
  3.12  that this act alters the authority of political subdivisions of 
  3.13  the state to lawfully exercise their police powers with respect 
  3.14  to activities of telecommunications providers within their 
  3.15  boundaries, as follows: 
  3.16     (1) the construction, maintenance, operation, oversight, 
  3.17  and regulation of telecommunications providers and their 
  3.18  facilities is a matter of statewide concern and interest; 
  3.19     (2) telecommunications providers operating under the 
  3.20  authority of the Federal Communications Commission, or the 
  3.21  Minnesota public utilities commission pursuant to this chapter, 
  3.22  are not subject to any franchise authority or any additional 
  3.23  authority by any municipality or other political subdivision of 
  3.24  the state to conduct business within a given geographic area and 
  3.25  no political subdivision has jurisdiction to regulate 
  3.26  telecommunications providers based upon the content, nature, or 
  3.27  type of telecommunications service or the signal they provide, 
  3.28  except to the extent expressly granted by federal or state 
  3.29  legislation; 
  3.30     (3) telecommunications providers have a right to occupy and 
  3.31  utilize the public rights-of-way for the efficient conduct of 
  3.32  their business without the imposition of franchise fees, 
  3.33  occupancy fees, taxes, or similar charges; and 
  3.34     (4) access to public rights-of-way and oversight of that 
  3.35  access must be competitively neutral, and no telecommunications 
  3.36  provider should enjoy any competitive advantage or suffer a 
  4.1   competitive disadvantage by virtue of a selective or 
  4.2   discriminatory exercise of the police power by a political 
  4.3   subdivision. 
  4.4      Sec. 3.  [237A.03] [USE OF PUBLIC RIGHTS-OF-WAY; 
  4.5   DISCRIMINATION PROHIBITED; CONTENT REGULATION PROHIBITED.] 
  4.6      (a) A telecommunications provider authorized to do business 
  4.7   under the laws of this state may construct, maintain, and 
  4.8   operate conduit, cable, switches, and related appurtenances and 
  4.9   facilities along, across, upon, above, and under any public 
  4.10  right-of-way of the state or its political subdivisions, subject 
  4.11  to sections 161.45; 161.46; 237.16; 237.38; and 237.74, 
  4.12  subdivisions 5, 8, and 9.  The construction, maintenance, 
  4.13  operation, and regulation of these facilities, including the 
  4.14  right to occupy and utilize the public rights-of-way, by 
  4.15  telecommunications providers are hereby declared to be matters 
  4.16  of statewide concern.  These facilities must be constructed and 
  4.17  maintained as to preserve the safe and convenient use of streets 
  4.18  and alleyways by the public. 
  4.19     (b) No political subdivision shall discriminate among or 
  4.20  grant a preference to competing telecommunications providers 
  4.21  when issuing a permit or enacting an ordinance, nor create or 
  4.22  erect any unreasonable requirement for entry to the 
  4.23  rights-of-way by providers. 
  4.24     (c) No political subdivision shall regulate 
  4.25  telecommunications providers based upon the content or type of 
  4.26  signals that are carried or capable of being carried over the 
  4.27  provider's facilities. 
  4.28     Sec. 4.  [237A.04] [CONSENT NECESSARY TO USE RIGHT-OF-WAY.] 
  4.29     (a) Sections 237.76 and 237.83 do not authorize a 
  4.30  telecommunications provider to erect poles or construct conduit, 
  4.31  cable, switches, or related appurtenances and facilities along, 
  4.32  through, in, upon, above or under a public right-of-way without 
  4.33  first obtaining the consent of the authorities having the power 
  4.34  to consent on behalf of the political subdivision, if required. 
  4.35     (b) A telecommunications provider that, on or before the 
  4.36  effective date of this section, either has obtained the required 
  5.1   consent of the political subdivision or is otherwise lawfully 
  5.2   occupying a public right-of-way in a political subdivision need 
  5.3   not apply for additional or continued consent of the political 
  5.4   subdivision under this section. 
  5.5      (c) Consent for the use of a public right-of-way within a 
  5.6   political subdivision must be based upon a lawful exercise of 
  5.7   the police power of the political subdivision and must not be 
  5.8   unreasonably withheld.  In addition, the political subdivision 
  5.9   shall not create any preference or disadvantage through its 
  5.10  granting or withholding of consent and is subject to the 
  5.11  requirement of sections 253 and 704 of the federal 
  5.12  Telecommunications Act of 1996. 
  5.13     Sec. 5.  [237A.05] [PERMISSIBLE FEES.] 
  5.14     (a) No political subdivision shall levy a fee for any right 
  5.15  or privilege of engaging in a business or for use of a public 
  5.16  right-of-way other than: 
  5.17     (1) a permit or license fee otherwise authorized under this 
  5.18  chapter, subject to paragraphs (b) to (f); and 
  5.19     (2) a public highway, street, or road construction permit 
  5.20  fee, to the extent that the fee applies to all persons, 
  5.21  including political subdivisions as defined herein, who must 
  5.22  seek a construction permit subject to paragraphs (b) to (f).  
  5.23     (b) The fees levied by a political subdivision cannot be 
  5.24  assessed for the occupancy or use of the right-of-way, but must 
  5.25  be reasonably related to the costs directly incurred by the 
  5.26  political subdivision in providing services relating to granting 
  5.27  or administering the permits.  The fees must also be reasonably 
  5.28  related in time to the occurrence of the costs.  In any dispute 
  5.29  concerning the appropriateness of a fee, the political 
  5.30  subdivision has the burden of proving that the fee is reasonably 
  5.31  related to the direct costs incurred by the political 
  5.32  subdivision. 
  5.33     (c) A telecommunications provider shall provide for the 
  5.34  repair and restoration of public rights-of-way to their original 
  5.35  condition if necessitated by the installation or operation of 
  5.36  telephone or telecommunications carrier facilities. 
  6.1      (d) Any permit or license fee imposed by a political 
  6.2   subdivision must be competitively neutral among 
  6.3   telecommunications providers and be uniformly applied to all 
  6.4   users of the right-of-way, including political subdivisions. 
  6.5      (e) Fees imposed may not be collected through the provision 
  6.6   of in-kind services by telecommunications providers, nor may any 
  6.7   political subdivision require the provision of an in-kind 
  6.8   service as a condition of consent to use a public right-of-way. 
  6.9      (f) The terms of all agreements between political 
  6.10  subdivisions and telecommunications providers regarding use of 
  6.11  public rights-of-way are matters of public record and must be 
  6.12  made available upon request. 
  6.13     Sec. 6.  [237A.06] [POLE ATTACHMENT AGREEMENTS; LIMITATIONS 
  6.14  ON REQUIRED PAYMENTS.] 
  6.15     (a) No municipality-owned utility may request or receive 
  6.16  from a telecommunications provider, in exchange for permission 
  6.17  to attach telecommunications devices to poles, any payment in 
  6.18  excess of the amount that would be authorized if the 
  6.19  municipality-owned utility were regulated pursuant to United 
  6.20  States Code, title 47, section 224, as amended. 
  6.21     (b) No municipality may request or receive from a 
  6.22  telecommunications provider any in-kind payment in exchange for 
  6.23  or as a condition for granting permission to attach 
  6.24  telecommunications devices to poles. 
  6.25     Sec. 7.  [237A.07] [SCOPE.] 
  6.26     This chapter supersedes any ordinance, regulation, rule, or 
  6.27  other provision of any other chapter to the contrary. 
  6.28     Sec. 8.  [EFFECTIVE DATE.] 
  6.29     Sections 1 to 7 are effective the day following final 
  6.30  enactment.