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AB-1999 Local government: public broadband services.(2017-2018)

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Date Published: 02/01/2018 09:00 PM
AB1999:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1999


Introduced by Assembly Member Chau

February 01, 2018


An act to amend Sections 53395.3.2, 61100, and 61105 of, and to add Article 12 (commencing with Section 53167) to Chapter 1 of Part 1 of Division 2 of Title 5 of, the Government Code, and to add Sections 10001.5, 12801.5, and 16461.10 to the Public Utilities Code, relating to local government.


LEGISLATIVE COUNSEL'S DIGEST


AB 1999, as introduced, Chau. Local government: public broadband services.
(1) Existing law authorizes any municipal corporation to acquire, construct, own, operate, or lease any public utility, and provides that “public utility” for these purposes means to supply the inhabitants of that municipal corporation with specified services, including a means of communication. Existing law similarly authorizes a municipal utility district and a public utility district to acquire, construct, own, operate, control, or use works for supplying the inhabitants of the district with specified services, including a means of communication. Existing law, as described in more detail below, authorizes a community services district to construct, own, improve, maintain, and operate broadband facilities and to provide broadband services if certain conditions are met. Existing law also authorizes an infrastructure finance district to finance public facilities or projects that include broadband.
This bill would, except as provided, prohibit a local agency that is authorized to engage in the provision of broadband Internet access service, as defined, in the state from taking certain actions regarding the accessing of content on the Internet by end users.
(2) The Community Services District Law authorizes the establishment of community services districts to provide various services to the geographic area within each district, including, among other things, if the district is unable to locate a private person or entity who is willing or able to provide broadband service, constructing, owning, improving, maintaining, and operating broadband facilities and providing broadband services. Existing law provides that if a community service district exercises this power and later a private person or entity is ready, willing, and able to acquire, construct, improve, maintain, and operate broadband facilities and to provide broadband services at a comparable cost and quality of service to what is provided by the district, then the district is required to either transfer title to the broadband facilities so constructed to the private entity at fair market value or to lease the operation of those broadband facilities at a fair market value to that private person or entity.
Existing law provides that the Mountain House Community Services District is not authorized to operate television, cable, or telecommunications systems except as provided for community services districts with respect to broadband services, as described above.
This bill would, for all districts except for the Mountain House Community Services District, broaden that authorization by removing the requirement that a district first determine that a private person or entity is unwilling or unable to provide broadband services before the district may contract, own, improve, and operate broadband facilities and provide broadband services. The bill would authorize a district to transfer title to the broadband facilities so constructed, or to lease the operation of those facilities, to a private entity that the district determines is ready, willing, and able to provide those services at a comparable cost and quality of service to what is provided by the district.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Article 12 (commencing with Section 53167) is added to Chapter 1 of Part 1 of Division 2 of Title 5 of the Government Code, to read:
Article  12. Public Broadband Services

53167.
 For purposes of this article:
(a) “Broadband Internet access service” means a mass-market retail service by wire or radio in California that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. “Broadband Internet access service” also encompasses any service in California that provides a functional equivalent of that service or that is used to evade the protections set forth in this article.
(b) “Edge provider” means any individual or entity in California that provides any content, application, or service over the Internet, and any individual or entity in California that provides a device used for accessing any content, application, or service over the Internet.
(c) “End user” means any individual or entity in California that uses a broadband Internet access service.
(d) “Fixed broadband Internet access service” means any broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment in California. Fixed broadband Internet access service includes fixed wireless services, including fixed unlicensed wireless services, and fixed satellite services.
(e) “Local agency” means any agency of local government authorized by any other law to provide broadband internet access service, including a city, public capital facilities or projects financed by an infrastructure finance district, a community services district, a public utility district, and a municipal utility district.
(f) “Mobile broadband Internet access service” means any broadband Internet access service that serves end users primarily using mobile stations in California.
(g) “Paid prioritization” means the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through the use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (1) in exchange for consideration, monetary or otherwise, from a third party, or (2) to benefit an affiliated entity.
(h) “Reasonable network management” means a network management practice that has a primarily technical network management justification, but does not include other business practices. A network management practice is reasonable if it is primarily used for, and tailored to, achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

53167.1.
 It is the intent of the Legislature that this article protect and promote the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission, thereby encouraging the deployment of advanced telecommunications capability and remove barriers to infrastructure investment.

53167.2.
 Except for reasonable network management, a local agency engaged in the provision of broadband Internet access service shall not block lawful content, applications, services, or nonharmful devices.

53167.3.
 Except for reasonable network management, a local agency engaged in the provision of broadband Internet access service shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device.

53167.4.
 A local agency engaged in the provision of broadband Internet access service shall not engage in paid prioritization.

53167.5.
 Except for reasonable network management, a local agency engaged in the provision of broadband Internet access service shall not unreasonably interfere with, or unreasonably disadvantage, either of the following:
(a) An end user’s ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of the end user’s choice.
(b) An edge provider’s ability to make lawful content, applications, services, or devices available to an end user.

SEC. 2.

 Section 53395.3.2 of the Government Code is amended to read:

53395.3.2.
 (a) In addition to the projects authorized by Section 53395.3, any infrastructure financing district may finance public capital facilities or projects that include broadband. A district shall comply with Article 12 (commencing with Section 53167) of Chapter 1 of Part 1 of Division 2 of Title 5 when financing broadband services pursuant to this section.
(b) For purposes of this section, “broadband” means communications network facilities that enable high-speed Internet access.

SEC. 3.

 Section 61100 of the Government Code is amended to read:

61100.
 Within its boundaries, a district may do any of the following:
(a) Supply water for any beneficial uses, in the same manner as a municipal water district, formed pursuant to the Municipal Water District Law of 1911, Division 20 (commencing with Section 71000) of the Water Code. In the case of any conflict between that division and this division, the provisions of this division shall prevail.
(b) Collect, treat, or dispose of sewage, wastewater, recycled water, and storm water, in the same manner as a sanitary district, formed pursuant to the Sanitary District Act of 1923, Division 6 (commencing with Section 6400) of the Health and Safety Code. In the case of any conflict between that division and this division, the provisions of this division shall prevail.
(c) Collect, transfer, and dispose of solid waste, and provide solid waste handling services, including, but not limited to, source reduction, recycling, and composting activities, pursuant to Division 30 (commencing with Section 40000), and consistent with Section 41821.2 of the Public Resources Code.
(d) Provide fire protection services, rescue services, hazardous material emergency response services, and ambulance services in the same manner as a fire protection district, formed pursuant to the Fire Protection District Law, Part 2.7 (commencing with Section 13800) of Division 12 of the Health and Safety Code.
(e) Acquire, construct, improve, maintain, and operate recreation facilities, including, but not limited to, parks and open space, in the same manner as a recreation and park district formed pursuant to the Recreation and Park District Law, Chapter 4 (commencing with Section 5780) of Division 5 of the Public Resources Code.
(f) Organize, promote, conduct, and advertise programs of community recreation, in the same manner as a recreation and park district formed pursuant to the Recreation and Park District Law, Chapter 4 (commencing with Section 5780) of Division 5 of the Public Resources Code.
(g) Acquire, construct, improve, maintain, and operate street lighting and landscaping on public property, public rights-of-way, and public easements.
(h) Provide for the surveillance, prevention, abatement, and control of vectors and vectorborne diseases in the same manner as a mosquito abatement and vector control district formed pursuant to the Mosquito Abatement and Vector Control District Law, Chapter 1 (commencing with Section 2000) of Division 3 of the Health and Safety Code.
(i) Provide police protection and law enforcement services by establishing and operating a police department that employs peace officers pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code.
(j) Provide security services, including, but not limited to, burglar and fire alarm services, to protect lives and property.
(k) Provide library services, in the same manner as a library district formed pursuant to either Chapter 8 (commencing with Section 19400) or Chapter 9 (commencing with Section 19600) of Part 11 of the Education Code.
(l) Acquire, construct, improve, and maintain streets, roads, rights-of-way, bridges, culverts, drains, curbs, gutters, sidewalks, and any incidental works. A district shall not acquire, construct, improve, or maintain any work owned by another public agency unless that other public agency gives its written consent.
(m) Convert existing overhead electric and communications facilities, with the consent of the public agency or public utility that owns the facilities, to underground locations pursuant to Chapter 28 (commencing with Section 5896.1) of Part 3 of Division 7 of the Streets and Highways Code.
(n) Provide emergency medical services pursuant to the Emergency Medical Services System and the Prehospital Emergency Medical Care Personnel Act, Division 2.5 (commencing with Section 1797) of the Health and Safety Code.
(o) Provide and maintain public airports and landing places for aerial traffic, in the same manner as an airport district formed pursuant to the California Airport District Act, Part 2 (commencing with Section 22001) of Division 9 of the Public Utilities Code.
(p) Provide transportation services.
(q) Abate graffiti.
(r) Plan, design, construct, improve, maintain, and operate flood protection facilities. A district shall not plan, design, construct, improve, maintain, or operate flood protection facilities within the boundaries of another special district that provides those facilities unless the other special district gives its written consent. A district shall not plan, design, construct, improve, maintain, or operate flood protection facilities in unincorporated territory unless the board of supervisors gives its written consent. A district shall not plan, design, construct, improve, maintain, or operate flood protection facilities within a city unless the city council gives its written consent.
(s) Acquire, construct, improve, maintain, and operate community facilities, including, but not limited to, community centers, libraries, theaters, museums, cultural facilities, and child care facilities.
(t) Abate weeds and rubbish pursuant to Part 5 (commencing Section 14875) of the Health and Safety Code. For that purpose, the board of directors shall be deemed to be a “board of supervisors” and district employees shall be deemed to be the “persons” designated by Section 14890 of the Health and Safety Code.
(u) Acquire, construct, improve, maintain, and operate hydroelectric power generating facilities and transmission lines, consistent with the district’s water supply and wastewater operations. The power generated shall be used for district purposes, or sold to a public utility or another public agency that generates, uses, or sells electrical power. A district shall not acquire hydroelectric power generating facilities unless the facilities’ owner agrees.
(v) Acquire, construct, improve, maintain, and operate television translator facilities.
(w) Remove snow from public streets, roads, easements, and rights-of-way. A district may remove snow from public streets, roads, easements, and rights-of-way owned by another public agency, only with the written consent of that other public agency.
(x) Provide animal control services pursuant to Section 30501 of the Food and Agricultural Code. Whenever the term “board of supervisors,” “county,” “county clerk,” or “animal control officer” is used in Division 14 (commencing with Section 30501) of the Food and Agricultural Code, those terms shall also be deemed to include the board of directors of a district, a district, the general manager of the district, or the animal control officer of a district, respectively. A district shall not provide animal control services in unincorporated territory unless the county board of supervisors gives its written consent. A district shall not provide animal control services within a city unless the city council gives its written consent.
(y) Control, abate, and eradicate pests, in the same manner as a pest abatement district, formed pursuant to Chapter 8 (commencing with Section 2800) of Division 3 of the Health and Safety Code. A district’s program to control, abate, or eradicate local pine bark beetle infestations shall be consistent with any required plan or program approved by the Department of Forestry and Fire Protection.
(z) Construct, maintain, and operate mailboxes on a district’s property or rights-of-way.
(aa) Provide mail delivery service under contract to the United States Postal Service.
(ab) Own, operate, improve, and maintain cemeteries and provide interment services, in the same manner as a public cemetery district, formed pursuant to the Public Cemetery District Law, Part 4 (commencing with Section 9000) of Division 8 of the Health and Safety Code.
(ac) Finance the operations of area planning commissions formed pursuant to Section 65101.
(ad) Finance the operations of municipal advisory councils formed pursuant to Section 31010.
(ae) Acquire, own, improve, maintain, and operate land within or without the district for habitat mitigation or other environmental protection purposes to mitigate the effects of projects undertaken by the district.
(af) If a private person or entity is unable or unwilling to deploy broadband service, construct, Construct, own, improve, maintain, and operate broadband facilities and to provide broadband services. For purposes of this section, broadband has the same meaning as in subdivision (a) of Section 5830 of the Public Utilities Code. The district shall first make a reasonable effort to identify a private person or entity willing to deploy service. The authority granted by this subdivision shall expire when A district shall comply with Article 12 (commencing with Section 53167) of Chapter 1 of Part 1 of Division 2 of Title 5 when providing broadband services pursuant to this subdivision. If the district later determines that a private person or entity is ready, willing, and able to acquire, construct, improve, maintain, and operate broadband facilities and to provide broadband services, and to sell those services at a comparable cost and quality of service as provided by the district. At that time, the district shall district, the district may do one of the following:
(1) Diligently transfer its title, ownership, maintenance, control, and operation of those broadband facilities and services at a fair market value to that private person or entity.
(2) Lease the operation of those broadband facilities at a fair market value to that private person or entity.

SEC. 4.

 Section 61105 of the Government Code is amended to read:

61105.
 (a) The Legislature finds and declares that the unique circumstances that exist in certain communities justify the enactment of special statutes for specific districts. In enacting this section, the Legislature intends to provide specific districts with special statutory powers to provide special services and facilities that are not available to other districts.
(b) (1) The Los Osos Community Services District may borrow money from public or private lenders and lend those funds to property owners within the district to pay for the costs of decommissioning septic systems and constructing lateral connections on private property to facilitate the connection of those properties to the district’s wastewater treatment system. The district shall lend money for this purpose at rates not to exceed its cost of borrowing and the district’s cost of making the loans. The district may require that the borrower pay the district’s reasonable attorney’s fees and administrative costs in the event that the district is required to take legal action to enforce the provisions of the contract or note securing the loan. The district may elect to have the debt payments or any delinquency collected on the tax roll pursuant to Section 61116. To secure the loan as a lien on real property, the district shall follow the procedures for the creation of special tax liens in Section 53328.3 of this code and Section 3114.5 of the Streets and Highways Code.
(2) (A) (i) Except as otherwise provided in this paragraph, on and after January 1, 2007, the Los Osos Community Services District shall not undertake any efforts to design, construct, and operate a community wastewater collection and treatment system within, or for the benefit of, the district. The district shall resume those powers on the date specified in any resolution adopted pursuant to subdivision (l) of Section 25825.5.
(ii) Upon resuming the powers pursuant to subdivision (i), the Los Osos Community Services District may continue the program to offset assessments or charges for very low or low-income households with funding sources, including, but not limited to, grants, adopted pursuant to subdivision (g) of Section 25825.5. If the county has not implemented that program, the Los Osos Community Services District may adopt a program that complies with subdivision (g) of Section 25825.5 to offset assessments or charges for very low or low-income households. The Los Osos Community Services District shall not include in an assessment or charge an amount to cover the costs to the county in carrying out the offset program.
(B) Nothing in this paragraph shall affect the district’s power to do any of the following:
(i) Operate wastewater collection and treatment facilities within the district that the district was operating on January 1, 2006.
(ii) Provide facilities and services in the territory that is within the district, but outside the prohibition zone.
(iii) Provide facilities and services, other than wastewater collection and treatment, within the prohibition zone.
(C) Promptly upon the adoption of a resolution by the Board of Supervisors of the County of San Luis Obispo requesting this action pursuant to subdivision (i) of Section 25825.5, the district shall convey to the County of San Luis Obispo all retained rights-of-way, licenses, other interests in real property, funds, and other personal property previously acquired by the district in connection with construction projects for which the district awarded contracts in 2005.
(c) The Heritage Ranch Community Services District may acquire, construct, improve, maintain, and operate petroleum storage tanks and related facilities for its own use, and sell those petroleum products to the district’s property owners, residents, and visitors. The authority granted by this subdivision shall expire when a private person or entity is ready, willing, and able to acquire, construct, improve, maintain, and operate petroleum storage tanks and related facilities, and sell those petroleum products to the district and its property owners, residents, and visitors. At that time, the district shall either (1) diligently transfer its title, ownership, maintenance, control, and operation of those petroleum tanks and related facilities at a fair market value to that private person or entity, or (2) lease the operation of those petroleum tanks and related facilities at a fair market value to that private person or entity.
(d) The Wallace Community Services District may acquire, own, maintain, control, or operate the underground gas distribution pipeline system located and to be located within Wallace Lake Estates for the purpose of allowing a privately owned provider of liquefied petroleum gas to use the underground gas distribution system pursuant to a mutual agreement between the private provider and the district or the district’s predecessor in interest. The district shall require and receive payment from the private provider for the use of that system. The authority granted by this subdivision shall expire when the Pacific Gas and Electric Company is ready, willing, and able to provide natural gas service to the residents of Wallace Lake Estates. At that time, the district shall diligently transfer its title, ownership, maintenance, control, and operation of the system to the Pacific Gas and Electric Company.
(e) The Cameron Park Community Services District, the El Dorado Hills Community Services District, the Golden Hills Community Services District, the Mountain House Community Services District, the Rancho Murieta Community Services District, the Salton Community Services District, the Stallion Springs Community Services District, and the Tenaja Meadows Community Services District, which enforced covenants, conditions, and restrictions prior to January 1, 2006, pursuant to former Section 61601.7 and former Section 61601.10, may continue to exercise the powers set forth in former Section 61601.7 and former Section 61601.10.
(f) (1) The Bel Marin Keys Community Services District may enforce all or part of the covenants, conditions, and restrictions for a tract, and assume the duties of the architectural control committee, to the extent that a tract’s covenants, conditions, and restrictions authorize an architectural control committee. Before the district can enforce covenants, conditions, and restrictions, and assume the duties of an architectural control committee, for a tract, the board of directors shall:
(A) Receive a written request from the board of directors of the tract’s property owners’ association or homeowners’ association, with a petition signed by not less than a majority of the property owners of the parcels within the tracts covered by those associations, requesting the district to enforce the covenants, conditions, and restrictions for that tract and assume the duties of the architectural control committee for that tract, if an architectural control committee is called for in the covenants, conditions, and restrictions.
(B) Conduct a public hearing on the question, after giving mailed notice to each affected property owner of the date, time, and location of the meeting.
(C) Submit an application to the local agency formation commission pursuant to Section 56824.10, specifying the exact nature and scope of the intended services to be provided by the district.
(D) Receive the approval of the local agency formation commission, pursuant to Article 1.5 (commencing with Section 56824.10) of Chapter 5 of Part 3 of Division 3 of Title 5, which may include completion terms deemed appropriate by the commission, to enforce covenants, conditions, and restrictions for a tract, and to assume the duties of the architectural control committee for that tract.
(E) Adopt an ordinance assuming the power to enforce covenants, conditions, and restrictions for a tract, and to assume the duties of the architectural control committee for that tract, provided that the ordinance requires:
(i) The property owners within the tract to finance the enforcement of the covenants, conditions, and restrictions, and the duties of the architectural control committee.
(ii) The tract’s property owners’ association or homeowners’ association to indemnify the district for the costs of any litigation, settlements, injuries, damages, or judgments arising from enforcement of the covenants, conditions, and restrictions, and the district’s duties as the architectural control committee.
(2) The Bel Marin Keys Community Services District may, by ordinance, divest itself of the power undertaken under this subdivision.
(g) The Bear Valley Community Services District, the Bell Canyon Community Services District, the Cameron Estates Community Services District, the Lake Sherwood Community Services District, the Saddle Creek Community Services District, the Wallace Community Services District, and the Santa Rita Hills Community Services District may, for roads owned by the district and that are not formally dedicated to or kept open for use by the public for the purpose of vehicular travel, by ordinance, limit access to and the use of those roads to the landowners and residents of that district.
(h) Notwithstanding any other provision of law, the transfer of the assets of the Stonehouse Mutual Water Company, including its lands, easements, rights, and obligations to act as sole agent of the stockholders in exercising the riparian rights of the stockholders, and rights relating to the ownership, operation, and maintenance of those facilities serving the customers of the company, to the Hidden Valley Lake Community Services District is not a transfer subject to taxes imposed by Part 11 (commencing with Section 23001) of Division 2 of the Revenue and Taxation Code.
(i) The El Dorado Hills Community Services District and the Rancho Murieta Community Services District may each acquire, construct, improve, maintain, and operate television receiving, translating, or distribution facilities, provide television and television-related services to the district and its residents, or authorize the construction and operation of a cable television system to serve the district and its residents by franchise or license. In authorizing the construction and operation of a cable television system by franchise or license, the district shall have the same powers as a city or county under Section 53066.
(j) The Mountain House Community Services District may provide facilities for television and telecommunications systems, including the installation of wires, cables, conduits, fiber optic lines, terminal panels, service space, and appurtenances required to provide television, telecommunication, and data transfer services to the district and its residents, and provide facilities for a cable television system, including the installation of wires, cables, conduits, and appurtenances to service the district and its residents by franchise or license, except that the district may not provide or install any facilities pursuant to this subdivision unless one or more cable franchises or licenses have been awarded under Section 53066 and the franchised or licensed cable television and telecommunications services providers are permitted equal access to the utility trenches, conduits, service spaces, easements, utility poles, and rights-of-way in the district necessary to construct their facilities concurrently with the construction of the district’s facilities. The district shall not have the authority to operate television, cable, or telecommunications systems, except as provided in Section 61100. unless a private person or entity is unable or unwilling to deploy broadband service, construct, own, improve, maintain, and operate broadband facilities and to provide broadband services. For purposes of this section, broadband has the same meaning as in subdivision (a) of Section 5830 of the Public Utilities Code. The district shall first make a reasonable effort to identify a private person or entity willing to deploy service. The district shall comply with Article 12 (commencing with Section 53167) of Chapter 1 of Part 1 of Division 2 of Title 5 when providing broadband services pursuant to this subdivision. The authority granted by this subdivision shall expire when a private person or entity is ready, willing, and able to acquire, construct, improve, maintain, and operate broadband facilities and to provide broadband services, and to sell those services at a comparable cost and quality of service as provided by the district. At that time, the district shall either diligently transfer its title, ownership, maintenance, control, and operation of those broadband facilities and services at a fair market value to that private person or entity, or lease the operation of those broadband facilities at a fair market value to that private person or entity. The district shall have the same powers as a city or county under Section 53066 in granting a franchise or license for the operation of a cable television system.

SEC. 5.

 Section 10001.5 is added to the Public Utilities Code, to read:

10001.5.
 A municipal corporation that provides broadband services shall comply with the requirements of Article 12 (commencing with Section 53167) of Chapter 1 of Part 1 of Division 2 of Title 5 of the Government Code.

SEC. 6.

 Section 12801.5 is added to the Public Utilities Code, to read:

12801.5.
 A district that provides broadband services shall comply with the requirements of Article 12 (commencing with Section 53167) of Chapter 1 of Part 1 of Division 2 of Title 5 of the Government Code.

SEC. 7.

 Section 16461.10 is added to the Public Utilities Code, to read:

16461.10.
 A district that provides broadband services shall comply with the requirements of Article 12 (commencing with Section 53167) of Chapter 1 of Part 1 of Division 2 of Title 5 of the Government Code.