S.TBD — 2017-1031 Thune/Schatz Discussion DRAFT
- Current Bill Text: https://www.congress.gov/bill/115th-congress/senate-bill/tbd/text
- Current Bill History: https://www.congress.gov/bill/115th-congress/senate-bill/tbd/all-actions
- 10/31/17 Discussion Draft Text: 2017-1031-OLL17609-Thune-Draft.pdf
- It would impose sharply reduced "shot clock" time limits for local governments to process potentially unlimited wireless facility applications for all sizes;
- "Deem granted" applications for facilities when local governments are unable to meet the stringent time limits;
- Can result in approved applications regardless of their safety, health or environmental impacts;
- It interferes with local governments’ management of public property and local governments’ ability to receive appropriate compensation for its use.
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OLL17609 Staff Discussion Draft S.L.C.
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The US Federal government, on behalf of Telecom and cable companies, is pushing for unrestricted access to public property at below-market rates for these firms to allow their equipment to create a "dangerous condition of public property": wireless antennas on light/utility poles and other street furniture in the public rights-of-way, or other facility owned by the State or local government or instrumentality to support equipment for use by providers of wireless services.
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This draft, unfortunately, is a direct translation of the American Legislation Exchange Council (ALEC) agenda/bills about forcing so-called "Small Cells" into the public right of way against the wishes of the cities, counties and residents, enabling powerful cell phone towers to be placed 10 to 50 feet in front of people’s homes in residential neighborhoods, which violates residents’ inalienable rights to privacy, safety and happiness — rights guaranteed by the US and various state constititions.
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Bills like these are extremely unpopular, completely unnecessary and unconstitutional, as evidenced by judges’ rulings against similar state bills (Ohio struck down State Bill 331 and the City of Austin is suing Texas over State Bill 1004). California Governor Jerry Brown listened to the substantial Opposition (over 300 cities, a majority of counties and residents) and vetoed the ALEC-written State Bill 649 for very good reasons on 10/15/17.
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The ALEC-written agenda has been handed to and is now being dutifully carried out by the US Republican Congress and the completely Captured Agency — called the FCC — that works against the public interests in allowing Telecomm firms to fraudulently transfer billions of dollars collected from landline customers (for wireline upgrades) from their regulated Wireline entities to their unregulated Wireless entities. The FCC’s 11/16/17 Open Meeting agenda represents some significant steps in the ALEC-written agenda.
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This is particularly heinous when you consider that in disasters, including the recent fires in Northern California, reverse-911 calls made to traditional copper, legacy, wireline POTS landline phones properly warned Santa Rosa residents — saving many lives — while the Wireless Emergency Alert systems and Voice Over Internet Protocol (VOIP) phones did not properly warn Santa Rosa residents because 77 cell towers burned and the power went down — resulting in no warnings to many Wireless-only customers and 250+ confirmed dead or missing in Santa Rosa (see Cell Coverage Failed in October 2017 California Fires).
League of California Cities Action Alert:
Just this year, the wireless industry’s attempt to pursue similar legislation in California, with SB 649 (Hueso), failed when it was met with overwhelming opposition from over 325 cities.
As drafted, this bill would shift authority away from residents, businesses, and communities over to for-profit industry whose interest in shareholder returns outweigh their considerations for the health, safety, aesthetic, and public benefits of the communities we serve.
California cities share the goal of ensuring all our residents have access to affordable, reliable high-speed broadband Internet.
The draft bill pending introduction is problematic in its current form because:
Please OPPOSE the Senate Commerce Committee draft bill in its current form.
Summary, emphases, and [comments], below, by Scientists For Wired Technology (‘S4WT’).
Discussion DRAFT Summary: S.TBD
The Draft states the following:
START — PROPOSED EDITS TO 47 U.S.C. 332(c)(7)
Emphases shown as bold text, deletions shown as strikethrough, additions shown as blue text and comments shown as [comment: square-bracketed red text].
47 U.S.C. 332(c)(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations
(i)The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—
(I) shall not unreasonably discriminate among providers of the same service or of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify <personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
(ii) Regulation by a State or local government or instrumentality thereof shall be deemed to prohibit or have the effect of prohibiting the provision of wireless services for purposes of clause (i)(II) if the regulation consists of an action that —
(I) restricts access to a pole, right-of-way, or other facility owned by the State or local government or instrumentality to support equipment for use by providers of wireless services except in the case of insufficient capacity [comment: capacity means space available on the pole???], or for reasons of —
(aa) safety;
(bb) reliability; or
(cc) generally applicable —
(AA) engineering purposes;
(BB) objective design standards for decorative utility poles; or
(CC) reasonable concealment requirements;
(II) grants exclusive or preferential use to a pole, right-of-way, or other property owned or managed by the State or local government or instrumentality to —
(aa) a particular provider of wireless service;
(bb) a class of providers of wireless service; or
(cc) any entity or class of entity to which access is provided under section 224(f)(1);
(III) requires a demonstration of need for a wireless service facility, or otherwise evaluates radio frequency signal strength or existence, the adequacy of or demand for service coverage, capacity, or quality, or an applicant’s business decision on the technical or operational characteristics, type, and location of wireless service facilities, support structures, poles, or technology deployed;
(IV) limits the ability of a provider of wireless service to make technology or capacity upgrades, updates, or enhancements to its existing wireless service, unless those limitations are consistent with this subsection;
(V) imposes an express or de facto moratorium on the acceptance or processing of permits or other permissions to deploy wireless service facilities;
(VI) grants the State or local government or instrumentality discretion to approve or deny permits or other permissions to deploy wireless service facilities without reasonable, objective, and non-discriminatory guidelines regarding the approval or denial;
(VII) requires removal or replacement of a wireless service facility due to the passage of time or the availability of alternative technology or design, if the wireless service facility continues to be used by a provider of wireless service for non-de minimis purposes;
(VIII) prohibits the placement of an emergency backup power system that otherwise complies with Federal and State —
(aa) environmental regulations;
(bb) safety regulations; and
(cc) generally applicable —
(AA) engineering standards;
(BB) objective design standards; and
(CC) reasonable concealment requirements; or
(IX) requires wireless service providers to demonstrate an actual prohibition of service.
(iii) The actions described in subclauses (I) through (IX) of clause (ii) shall not be construed to be an exhaustive list of regulations by a State or local government or instrumentality thereof that prohibit or have the effect of prohibiting the provision of wireless services for purposes of clause (i)(II) of this subparagraph.
(iv)(I) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify wireless service facilities after the request is duly filed with the government or instrumentality, taking into account the nature and scope of such request, in accordance with this clause.
(II) A State or local government or instrumentality thereof shall act on any request described in subclause (I) that constitutes collocation of wireless service facilities, as that term is defined by the Commission, not later than 60 days after the date on which the request is duly filed.
(III) A State or local government or instrumentality thereof shall act on any other request described in subclause (I) that is not described in subclause (II) not later than 90 days after the date on which the request is duly filed.
(IV) The timeframes specified under subclauses (II) and (III) shall apply collectively to all proceedings required by a State or local government or instrumentality thereof for the approval of the request.
(V) The timeframes specified under subclauses (II) and (III) may not be tolled by any moratorium, whether express or de facto, imposed by a State or local government or instrumentality thereof on the consideration of any request for authorization to place, construct, or modify wireless service facilities.
(v) If a State or local government or instrumentality thereof fails to act on a request to place, construct, or modify wireless service facilities within the applicable period of time under clause (iv), or denies such a request in a manner inconsistent with clause (vi), and the applicant provides written notice of the failure or denial to the government or instrumentality after the expiration of the applicable period —
(I) the request shall be deemed granted on the date that is 31 days after the date on which the government or instrumentality receives the written notice; and
(II) any additional rights an applicant may have under this section or otherwise based on the failure or denial shall be preserved.
(vi) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal lwireless service facilities shall be in writing and supported by substantial evidence contained in a written record that is publicly released contemporaneously with the denial.
(vii) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.
(viii) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.
(ix) Nothing in this subparagraph shall be construed to affect the authority of a State or local government or instrumentality thereof —
(I) to manage access to and use of poles, rights-of-way, or other property owned or managed by the State or local government or instrumentality for wireless service facilities or to require fair and reasonable compensation for that access or use if —
(aa) the compensation is competitively neutral, technology neutral, and nondiscriminatory;
(bb) the government or instrumentality publicly discloses the compensation;
(cc) the compensation is based on actual and direct costs, except for compensation for a pole attachment provided under section 224, which shall be calculated in accordance with that section; and
(dd) the management and access, including the requirement of fair and reasonable compensation, is not inconsistent with State law; or
(II) to charge a fee to consider a request for the placement, construction, or modification of wireless service facilities within the jurisdiction of the State or local government or instrumentality thereof if the fee is based on actual and direct costs of —
(aa) issuing and processing permits;
(bb) reviewing plans; and
(cc) conducting physical inspections related to issuing and processing permits.
(C) Definitions For purposes of this paragraph —
(i) the term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
(i) the term ‘wireless service’ means the transmission by radio communication of voice, video, or data communications services, including Internet Protocol or any successor protocol-enabled services, or any combination of those services, including unlicensed wireless services
(ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and
(iii) the term ‘regulation’ includes a law, ordinance, rule, decision, policy, practice, franchising requirement, contract, restriction, or impediment, including the failure to act, or other legal requirement; and
(iv) the term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v) of this title).
END — PROPOSED EDITS TO 47 U.S.C. 332(c)(7)
START — PROPOSED EDITS TO 47 U.S. Code 253
Emphases shown as bold text, deletions shown as strikethrough, additions shown as blue text and comments shown as [comment: square-bracketed red text].
(a) In general. No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
(b) STATE OR LOCAL REQUIREMENTS IDENTIFIED. —
(1) IN GENERAL. — For purposes of subsection (a)—
(A) the term ‘State or local legal requirement’ includes any law, regulation, decision, policy, practice, franchising requirement, contract, restriction, or impediment, including the failure to act, of any State or local government or instrumentality thereof related to the use of or access to a pole, right-of-way, or other property owned by the State or local government or instrumentality, by a provider of telecommunications service, including a provider of wireless service; and
(B) a State or local legal requirement shall be deemed to prohibit or have the effect of prohibiting the ability of an entity to provide any interstate or intrastate telecommunications service if the legal requirement constitutes an action that would be described in section 19 332(c)(7)(B)(ii) if that section were applied by substituting ‘interstate or intrastate telecommunications service’ for ‘wireless service’.
(2) LIST NOT EXHAUSTIVE. — For purposes of paragraph (1)(B), the actions described in subclauses (I) through (IX) of section 332(c)(7)(B)(ii) shall not be construed to be an exhaustive list of actions that prohibit or have the effect of prohibiting the provision of interstate or intrastate telecommunications service.
(c) State regulatory authority. Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.
(c) State and local government authority. Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.
(d) RULE OF CONSTRUCTION. — Nothing in this section shall be construed to affect the authority of a State or a local government or instrumentality thereof to —
(1) apply and enforce its zoning and other land use regulations to the extent consistent with this section and section 332(c)(7);
(2) manage access to and use of poles, rights-of-way, or other property owned or managed by the State or local government or instrumentality, for telecommunications service facilities, including wireless service facilities; or
(3) require fair and reasonable compensation for access or use described in paragraph (2), consistent with section 332(c)(7)(B)(ix).";
(e)Preemption. If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) subsection (a), (b), (c), or (d) of this section or section 332(c)(7)(B)(i)(II), the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.
(f) Commercial mobile service providers. Nothing in this section shall affect the application of section 332(c)(3) of this title to commercial mobile service providers.
(g) Rural markets. It shall not be a violation of this section for a State to require a telecommunications carrier that seeks to provide telephone exchange service or exchange access in a service area served by a rural telephone company to meet the requirements in section 214(e)(1) of this title for designation as an eligible telecommunications carrier for that area before being permitted to provide such service. This subsection shall not apply —
(1) to a service area served by a rural telephone company that has obtained an exemption, suspension, or modification of section 251(c)(4) of this title that effectively prevents a competitor from meeting the requirements of section 214(e)(1) of this title; and
(2) to a provider of commercial mobile services.
(h) DEFINITIONS. — In this section —
(1) the term ‘pole’ means an upright pole or structure, used or capable of being used in whole or in part to provide electric distribution, lighting, traffic control, signage, or a similar function;
(2) the term ‘telecommunications service provider’ includes a provider of wireless service;
(3) the term ‘wireless service’ means the transmission by radio communication of voice, video, or data communications services, including Internet Protocol or any successor protocol-enabled services, or any combination of those services, including unlicensed wireless service (as that term is defined in section 332(c)(7)(C)(iii)); and
(4) the term ‘wireless service facility’ means a facility for the provision of wireless service.
END — PROPOSED EDITS TO 47 U.S. Code 253
START — PROPOSED EDITS TO 47 U.S. Code 541
Emphases shown as bold text, deletions shown as strikethrough, additions shown as blue text and comments shown as [comment: square-bracketed red text].
(a) Authority to award franchises; public rights-of-way and easements; equal access to service; time for provision of service; assurances
(1) A franchising authority may award, in accordance with the provisions of this subchapter, one or more franchises within its jurisdiction; except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise. Any applicant whose application for a second franchise has been denied by a final decision of the franchising authority may appeal such final decision pursuant to the provisions of section 555 of this title for failure to comply with this subsection.
(2) Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses , except that in using such easements the cable operator shall ensure — In using easements under subparagraph (A), the cable operator shall ensure —";
(A) Except as provided in subparagraph (B), any franchise shall be construed to authorize —
(i) the construction of a cable system and any facilities for the provision of telecommunications services or other services that may be attached to the cable system over public rights-of-way, and through easements, that —
(I) are within the area to be served by the cable system or facilities; and
(II) have been dedicated for compatible uses; and
(ii) the operation of the system or facilities described in clause (i) to offer cable service, telecommunications service, or any other service or capability over the cable system or through the facilities."; and
(B) In using easements under subparagraph (A), the cable operator shall ensure —
(i) that the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system and for the provision of telecommunications services or other services that may be attached to the cable system;
(ii) that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscriber, or a combination of both; and
(iii) that the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of such facilities by the cable operator.
zxzxzx
(3) In awarding a franchise or franchises, a franchising authority shall assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.
(4) In awarding a franchise, the franchising authority —
(A) shall allow the applicant’s cable system a reasonable period of time to become capable of providing cable service to all households in the franchise area;
(B) may require adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; and
(C) may require adequate assurance that the cable operator has the financial, technical, or legal qualifications to provide cable service.
(b) No cable service without franchise; exception under prior law
(1) Except to the extent provided in paragraph (2) and subsection (f), a cable operator may not provide cable service without a franchise.
(2) Paragraph (1) shall not require any person lawfully providing cable service without a franchise on July 1, 1984, to obtain a franchise unless the franchising authority so requires.
(3)
(A) If a cable operator or affiliate thereof is engaged in the provision of telecommunications services or other services or capabilities —
(i) such cable operator or affiliate shall not be required to obtain a franchise under this subchapter for the provision of telecommunications services any additional franchise for the provision of telecommunications services or other services or capabilities; and
(ii) the provisions of this subchapter shall not apply to such cable operator or affiliate for the provision of telecommunications services or other services or capabilities.
(B) A franchising authority may not impose any requirement under this subchapter that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service or other service or capability by a cable operator or an affiliate thereof.
(C) A franchising authority may not order a cable operator or affiliate thereof—
(i) to discontinue the provision of a telecommunications service or other service or capability, or
(ii) to discontinue the operation of a cable system, to the extent such cable system is used for the provision of a telecommunications service or other service or capability, by reason of the failure of such cable operator or affiliate thereof to obtain a franchise or franchise renewal under this subchapter with respect to the provision of such telecommunications service or other service or capability.
(D) Except as otherwise permitted by sections 531 and 532 of this title, a franchising authority may not require a cable operator to provide any telecommunications service, facilities or other service or capability, other than institutional networks, as a condition of the initial grant of a franchise, a franchise renewal, or a transfer of a franchise.
(c) Status of cable system as common carrier or utility. Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service.
(d) Informational tariffs; regulation by States; “State” defined.
(1) A State or the Commission may require the filing of informational tariffs for any intrastate communications service provided by a cable system, other than cable service, that would be subject to regulation by the Commission or any State if offered by a common carrier subject, in whole or in part, to subchapter II of this chapter. Such informational tariffs shall specify the rates, terms, and conditions for the provision of such service, including whether it is made available to all subscribers generally, and shall take effect on the date specified therein.
(2) Nothing in this subchapter shall be construed to affect the authority of any State to regulate any cable operator to the extent that such operator provides any communication service other than cable service, whether offered on a common carrier or private contract basis.
(3) For purposes of this subsection, the term “State” has the meaning given it in section 153 of this title.
(e) State regulation of facilities serving subscribers in multiple dwelling units.
Nothing in this subchapter shall be construed to affect the authority of any State to license or otherwise regulate any facility or combination of facilities which serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management and which does not use any public right-of-way.
(f) Local or municipal authority as multichannel video programming distributor. No provision of this chapter shall be construed to—
(1) prohibit a local or municipal authority that is also, or is affiliated with, a franchising authority from operating as a multichannel video programming distributor in the franchise area, notwithstanding the granting of one or more franchises by such franchising authority; or
(2) require such local or municipal authority to secure a franchise to operate as a multichannel video programming distributor.
(g) For purposes of this section, the term ‘other service or capability’ includes —
(1) advanced telecommunications capability (as defined in section 706(d)(1) of the Telecommunications Act of 1996 (47 U.S.C. 1302(d)(1)));
(d) Definitions For purposes of this subsection:
(1) Advanced telecommunications capability
The term “advanced telecommunications capability” is defined, without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.
(2) broadband Internet access service;
(3) private carriage business data services; and
(4) interconnected VoIP service.
END — PROPOSED EDITS TO 47 U.S. Code 541
START OF DRAFT BILL TEXT:
SECTION. 1. HARMONIZING SHOT CLOCKS; REASONABLE RATES.
(a) HARMONIZING SHOT CLOCKS. — Section 2 332(c)(7)(B) of the Communications Act of 1934 (47 U.S.C. 332(c)(7)(B)) is amended —
(1) in clause (i)(I), by inserting "the same service or of" after "of";
(2) by striking clause (ii) and inserting the following:
(ii) Regulation by a State or local government or instrumentality thereof shall be deemed to prohibit or have the effect of prohibiting the provision of wireless services for purposes of clause (i)(II) if the regulation consists of an action that —
(I) restricts access to a pole, right-of-way, or other facility owned by the State or local government or instrumentality to support equipment for use by providers of wireless services except in the case of insufficient capacity, or for reasons of —
(aa) safety;
(bb) reliability; or
(cc) generally applicable —
(AA) engineering purposes;
(BB) objective design standards for decorative utility poles; or
(CC) reasonable concealment requirements;
(II) grants exclusive or preferential use to a pole, right-of-way, or other property owned or managed by the State or local government or instrumentality to —
(aa) a particular provider of wireless service;
(bb) a class of providers of wireless service; or
(cc) any entity or class of entity to which access is provided under section 224(f)(1);
(III) requires a demonstration of need for a wireless service facility, or otherwise evaluates radio frequency signal strength or existence, the adequacy of or demand for service coverage, capacity, or quality, or an applicant’s business decision on the technical or operational characteristics, type, and location of wireless service facilities, support structures, poles, or technology deployed;
(IV) limits the ability of a provider of wireless service to make technology or capacity upgrades, updates, or enhancements to its existing wireless service, unless those limitations are consistent with this subsection;
(V) imposes an express or de facto moratorium on the acceptance or processing of permits or other permissions to deploy wireless service facilities;
(VI) grants the State or local 17 government or instrumentality discretion to approve or deny permits or other permissions to deploy wireless service facilities without reasonable, objective, and non-discriminatory guidelines regarding the approval or denial;
(VII) requires removal or replacement of a wireless service facility due to the passage of time or the availability of alternative technology or design, if the wireless service facility continues to be used by a provider of wireless service for non-de minimis purposes;
(VIII) prohibits the placement of an emergency backup power system that otherwise complies with Federal and State —
(aa) environmental regulations;
(bb) safety regulations; and
(cc) generally applicable —
(AA) engineering standards;
(BB) objective design standards; and
(CC) reasonable concealment requirements; or
(IX) requires wireless service providers to demonstrate an actual prohibition of service."
(3) by redesignating clauses (iii) through (v) as 1 clauses (vi) through (viii), respectively;
(4) by inserting after clause (ii) the following:
(iii) The actions described in subclauses (I) through (IX) of clause (ii) shall not be construed to be an exhaustive list of regulations by a State or local government or instrumentality thereof that prohibit or have the effect of prohibiting the provision of wireless services for purposes of clause (i)(II) of this subparagraph.
(iv)(I) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify wireless service facilities after the request is duly filed with the government or instrumentality, taking into account the nature and scope of such request, in accordance with this clause.
(II) A State or local government or instrumentality thereof shall act on any request described in subclause (I) that constitutes collocation of wireless service facilities, as that term is defined by the Commission, not later than 60 days after the date on which the request is duly filed.
(III) A State or local government or instrumentality thereof shall act on any other request described in subclause (I) that is not described in subclause (II) not later than 90 days after the date on which the request is duly filed.
(IV) The timeframes specified under subclauses (II) and (III) shall apply collectively to all proceedings required by a State or local government or instrumentality thereof for the approval of the request.
(V) The timeframes specified under subclauses (II) and (III) may not be tolled by any moratorium, whether express or de facto, imposed by a State or local government or instrumentality thereof on the consideration of any request for authorization to place, construct, or modify wireless service facilities.
(v) If a State or local government or instrumentality thereof fails to act on a request to place, construct, or modify wireless service facilities within the applicable period of time under clause (iv), or denies such a request in a manner inconsistent with clause (vi), and the applicant provides written notice of the failure or denial to the government or instrumentality after the expiration of the applicable period —
(I) the request shall be deemed granted on the date that is 31 days after the date on which the government or instrumentality receives the written notice; and
(II) any additional rights an applicant may have under this section or otherwise based on the failure or denial shall be preserved.";
(5) in clause (vi), as so redesignated, by inserting before the period the following: "that is publicly released contemporaneously with the denial" and
(6) by adding at the end the following:
(ix) Nothing in this subparagraph shall be construed to affect the authority of a State or local government or instrumentality thereof to —
(I) manage access to and use of poles, rights-of-way, or other property owned or managed by the State or local government or instrumentality for wireless service facilities or to require fair and reasonable compensation for that access or use if —
(aa) the compensation is competitively neutral, technology neutral, and nondiscriminatory;
(bb) the government or instrumentality publicly discloses the compensation;
(cc) the compensation is based on actual and direct costs, except for compensation for a pole attachment provided under section 224, which shall be calculated in accordance with that section; and
(dd) the management and access, including the requirement of fair and reasonable compensation, is not inconsistent with State law; or
(II) charge a fee to consider a request for the placement, construction, or modification of wireless service facilities within the jurisdiction of the State or local government or instrumentality thereof if the fee is based on actual and direct costs of —
(aa) issuing and processing permits;
(bb) reviewing plans; and
(cc) conducting physical inspections related to issuing and processing permits.".
(b) DEFINITION OF WIRELESS SERVICE. — Section 14 332(c)(7) of the Communications Act of 1934 (47 U.S.C. 15 332(c)(7) is amended —
(1) by striking "personal" each place that term appears; and
(2) in subparagraph (C) —
(A) by striking clause (i) and inserting the following:
(i) the term ‘wireless service’ means the transmission by radio communication of voice, video, or data communications 24 services, including Internet Protocol or any successor protocol-enabled services, or any combination of those services, including unlicensed wireless services;";
(B) in clause (ii), by striking "and" at the end;
(C) by redesignating clause (iii) as clause (iv); and (D) by inserting after clause (ii) the following:
(iii) the term ‘regulation’ includes a law, ordinance, rule, decision, policy, practice, franchising requirement, contract, restriction, or impediment, including the failure to act, or other legal requirement; and".
(c) REMOVAL OF BARRIERS TO ENTRY. — Section 253 16 of the Communications Act of 1934 (47 U.S.C. 253) is amended —
(1) by striking subsection (c);
(2) by redesignating subsections (b), (d), (e), and (f) as subsections (c), (e), (f), and (g);
(3) by inserting after subsection (a) the following:
(b) STATE OR LOCAL REQUIREMENTS IDENTIFIED. —
(1) IN GENERAL. — For purposes of subsection (a)—
(A) the term ‘State or local legal requirement’ includes any law, regulation, decision, policy, practice, franchising requirement, contract, restriction, or impediment, including the failure to act, of any State or local government or instrumentality thereof related to the use of or access to a pole, right-of-way, or other property owned by the State or local government or instrumentality, by a provider of telecommunications service, including a provider of wireless service; and
(B) a State or local legal requirement shall be deemed to prohibit or have the effect of prohibiting the ability of an entity to provide 16 any interstate or intrastate telecommunications service if the legal requirement constitutes an 18 action that would be described in section 19 332(c)(7)(B)(ii) if that section were applied by substituting ‘interstate or intrastate telecommunications service’ for ‘wireless service’.
(2) LIST NOT EXHAUSTIVE. — For purposes of paragraph (1)(B), the actions described in subclauses (I) through (IX) of section 332(c)(7)(B)(ii) shall not be construed to be an exhaustive list of actions that prohibit or have the effect of prohibiting the provision of interstate or intrastate telecommunications service.";
(4) by inserting after subsection (c), as so redesignated, the following:
(d) RULE OF CONSTRUCTION. — Nothing in this section shall be construed to affect the authority of a State or a local government or instrumentality thereof to —
(1) apply and enforce its zoning and other land use regulations to the extent consistent with this section and section 332(c)(7);
(2) manage access to and use of poles, rights-of-way, or other property owned or managed by the State or local government or instrumentality, for telecommunications service facilities, including wireless service facilities; or
(3) require fair and reasonable compensation for access or use described in paragraph (2), consistent with section 332(c)(7)(B)(ix).";
(5) in subsection (e), as so redesignated, by striking "subsection (a) or (b)" and inserting "subsection (a), (b), (c), or (d) of this section or section 332(c)(7)(B)(i)(II)"; and
(6) by adding at the end the following:
(h) DEFINITIONS. — In this section —
(1) the term ‘pole’ means an upright pole or structure, used or capable of being used in whole or in part to provide electric distribution, lighting, traffic control, signage, or a similar function;
(2) the term ‘telecommunications service provider’ includes a provider of wireless service;
(3) the term ‘wireless service’ means the transmission by radio communication of voice, video, or data communications services, including Internet Protocol or any successor protocol-enabled services, or any combination of those services, including unlicensed wireless service (as that term is defined in section 332(c)(7)(C)(iii)); and
(4) the term ‘wireless service facility’ means a facility for the provision of wireless service.".
SEC. 2. GAO STUDY OF BROADBAND DEPLOYMENT ON TRIBAL LAND.
Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall —
(1) study the process for obtaining a grant of a right-of-way from the Bureau of Indian Affairs to deploy broadband infrastructure on tribal land;
(2) in conducting the study under paragraph (1), consider the unique challenges involved in broadband deployment on tribal land; and
(3) submit to Congress a report on the study conducted under paragraph (1).
SEC. 3. PROMOTING DEPLOYMENT OF BROADBAND INFRASTRUCTURE.
It is the sense of Congress that State and local governments should consult with local and national telecommunications providers, including telecommunications service and equipment providers, and other stakeholders before beginning a highway construction project to determine whether to install broadband conduit under hard surfaces as part of the highway construction project.
SEC. 4. ENSURING A LEVEL PLAYING FIELD FOR CABLE 15 FRANCHISES.
(a) GENERAL FRANCHISE REQUIREMENTS. — Section 621 of the Communications Act of 1934 (47 U.S.C. 541) is amended —
(1) in subsection (a)(2) —
(A) by redesignating subparagraphs (A) through (C) as clauses (i) through (iii);
(B) in the matter preceding clause (i), as so redesignated, by striking "except that" and all that follows and inserting the following:
(B) In using easements under subparagraph (A), the cable operator shall ensure—";
(C) by striking "Any franchise" and all that follows through "compatible uses," and inserting the following:
(A) Except as provided in subparagraph (B), any franchise shall be construed to authorize —
(i) the construction of a cable system and any facilities for the provision of telecommunications services or other services that may be attached to the cable system over public rights-of-way, and through easements, that —
(I) are within the area to be served by the cable system or facilities; and
(II) have been dedicated for compatible uses; and
(ii) the operation of the system or facilities described in clause (i) to offer cable service, telecommunications service, or any other service or capability over the cable system or through the facilities."; and
(D) in subparagraph (B)(i), as so designated, by inserting after "cable system" the following: "and for the provision of telecommunications services or other services that may be attached to the cable system";
(2) in subsection (b)(3) —
(A) in subparagraph (A) —
(i) in the matter preceding clause (i), by inserting "or other services or capabilities" after "telecommunications services";
(ii) in clause (i), by striking "a franchise under this title for the provision of telecommunications services" and inserting "any additional franchise for the provision of telecommunications services or other services or capabilities"; and
(iii) in clause (ii), by inserting "or other services or capabilities" after "telecommunications services";
(B) in subparagraph (B) —
(i) by striking "under this title"; and
(ii) by inserting "or other service or capability" after "a telecommunications service";
(C) in subparagraph (C) —
(i) in clause (i), by inserting "or other service or capability" after "a telecommunications service"; and
(ii) in clause (ii), by inserting "or other service or capability" after "a telecommunications service" each place that term appears; and
(D) in subparagraph (D), by inserting "or other service or capability," after "any telecommunications service or facilities,"; and
(3) by adding at the end the following:
(g) For purposes of this section, the term ‘other service or capability’ includes —
(1) advanced telecommunications capability (as defined in section 706(d)(1) of the Telecommunications Act of 1996 (47 U.S.C. 1302(d)(1)));
(2) broadband Internet access service;
(3) private carriage business data services; and
(4) interconnected VoIP service.".
(b) FRANCHISE FEES. — Section 622 of the Communications Act of 1934 (47 U.S.C. 542) is amended —
(1) in subsection (b), in the first sentence, by inserting after "any cable system" the following: ", regardless of the services offered over the cable system or the facilities attached to the cable system," and
(2) in subsection (g)(1), by striking "solely because of their status as such" and inserting "for use of the rights-of-way or otherwise".