Friday, February 18, 2005

Texas Legislature/Municipal Internet

Updated #6: HB 789 died in the conference committee. As a result, there is currently no ban on municipal wireless Internet services. There are rumors of a special session, but they are just rumors at this point. ******************************************* Update #5: Last Friday, HB 789 was removed from SB 408. HB 789 was heard at the Senate Business and Commerce Committee meeting this morning. The section concerning municipal wireless was removed. There is still the possibility of an amendment from the Senate floor. ******************************************* Update #4: Earlier this week, HB 789 and HB 3719 were both added as amendments to SB 408, the sunset legislation for the Public Utility Commission of Texas. Since SB 408 had already passed the Senate, it will not come back for a final vote. What this means is that HB 789, which still includes a ban on municipal wireless, will most likely pass to the governor without being heard in the Senate. ******************************************* Update #3: On March 24th, HB 789 was voted out of the House by a vote of 145 - 1. Pretty lopsided. The wireless Internet section was re-written. According to Save Muni Wireless, municipalities cannot charge for wireless services; existing services are grandfathered in; new services can only be offered at no charge. Municipalities have until September 1, 2006 to set up wireless service or until June 15, 2006 to let the PUC know that they have plans. After that, no other municipalities could provide wireless at all. We'll see what happens in the Senate. ********************************************* Update #2: HB 789 is now out of committee and will be headed to the Texas House. According to Save Muni Wireless, there is no mention of municipal network services. As this post states, however, we can probably expect amendments from the floor. Sorry -- I can't link to the updated language of the bill. Not only is the revised bill not available online, but the committee itself it not keeping its own website up. The only thing I can find that is current are the webcasts of the meetings. The vote to bring this bill to the House floor is available at http://www.house.state.tx.us/committees/broadcasts.php?session=79&cmte=425. It is the 3-minute meeting on 3/17/05. ********************************************* Update: According to the Save Muni Wireless blog, it looks like Rep. King will at least re-write Section 54.202 (maybe strike it, but we'll see) so that wireless in public places like libraries and parks are protected. ********************************************* HB 789, entitled "Advanced Service Infrastructure and Intermodal Competition," is the bill for this session dealing with telecommunications. This bill comes out of the House Committee on Regulated Industries, chaired by Phil King. If you look at the marked up bill, you can see there a lot of changes -- both inserted and deleted text. One of the deleted pieces of text that caught my eye was 51.001(g):
It is the policy of this state to ensure that customers in all regions of this state, including low-income customers and customers in rural and high cost areas, have access to telecommunications and information services, including interexchange services, cable services, wireless services, and advanced telecommunications and information services, that are reasonably comparable to those services provided in urban areas and that are available at prices that are reasonably comparable to prices charged for similar services in urban areas.
The focus now seems to be more on providing competitive services:
" . . . as new technologies become available, all public policy must be driven by free-market principles for the benefit of Texas consumers consistent with the public interest." "It is the policy of this state to promote and encourage the development of competitive broadband networks."
Section 54.201 - 54.202, dealing with municipalities, was modified to read:
CERTIFICATES PROHIBITED. The commission may not grant to a municipality a network provider or service provider certificate. PROHIBITED MUNICIPAL SERVICES. A municipality or municipality owned network may not, directly or indirectly, on its own or with another entity, offer to the public: (1) a service for which a certificate is required; (2) a service as a network provider; (3) any telecommunications or information service, without regard to the technology platform used to provide the service.
So, what could this mean? The way I read the language of the bill, the provision of Internet access, both wired and wireless, by public libraries would be prohibited. To paraphrase: a municipality may not offer information services to the public. Although the bill doesn't provide a definition for "telecommunications service," it does state that the definition for "telecommunications" should be taken from federal law. I'm assuming that we can take the definition for "telecommunications service" from federal law also. From the Telecommunications Act of 1996:
" . . . the offering of telecommunications for a fee directly to the public . . . regardless of the facilities used."
Most public libraries do not provide telecommunications services under this definition. The bill does state that the definition of "information service" is the same as the one found in federal law. The definition in the Telecommunications Act of 1996 is:
" . . . the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications . . . "
Here's where I think we might have a problem. The provision of Internet access by a municipality (public libraries, city-owned community colleges, school districts?) seems to be prohibited. Am I reading too much into this? Remember that after a bill is passed, the legislative intent is not always taken into consideration. If this committee meant to exempt organizations like public libraries, then it should be stated. There is a public hearing on this bill scheduled for Tuesday, February 22.

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