II

107TH CONGRESS

1ST SESSION S. 1126

To facilitate the deployment of broadband telecommunications services, and

for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 28, 2001

Mr. BROWNBACK (for himself and Mr. ENZI) introduced the following bill;

which was read twice and referred to the Committee on Commerce,

Science, and Transportation

A BILL

To facilitate the deployment of broadband

telecommunications services, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Broadband Deploy5 ment and Competition Enhancement Act of 2001’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress makes the following find8 ings:

9 (1) In 2001, some broadband service providers

10 are pervasively regulated, and some offering func-
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1 tionally equivalent services are not significantly reg2 ulated.

3 (2) Common carrier regulation is being ex4 tended inappropriately to new broadband services

5 being deployed by incumbent local exchange carriers,

6 while no regulation is applied to new broadband

7 services being deployed by local cable television com8 panies.

9 (3) There should be deregulatory parity in the

10 provision of broadband services.

11 (4) Broadband services and broadband service

12 providers should be subject to little or no regulation,

13 as there are no monopoly providers of such services

14 and regulation of a nascent service inhibits the de15 velopment of a competitive market.

16 (5) Facilities used to provide broadband serv17 ices, such as packet switching, are widely available

18 in the market place and should therefore not be con19 sidered a network element, which common carriers

20 must make available to other providers. Access

21 should continue for essential facilities.

22 (6) It is important for the economic develop23 ment of the United States that all areas of the coun24 try receive the benefits of access to high speed Inter25 net and the deployment of broadband services.
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1 (7) Common carrier regulation will not induce

2 the deployment of broadband services, but will re3 tard it.

4 (8) Both Federal and State regulatory agencies

5 have followed a regulatory scheme with respect to

6 broadband services, and this pattern must be re7 versed.

8 (b) PURPOSES.—The purposes of this Act are as fol9 lows:

10 (1) To accelerate the deployment of broadband

11 services to all parts of the United States.

12 (2) To achieve deregulatory parity among pro13 viders of broadband services.

14 (3) To reduce regulation of broadband services

15 by the Federal Government and the States.

16 SEC. 3. DEPLOYMENT OF BROADBAND SERVICES.

17 (a) IN GENERAL.—Part II of title II of the Commu18 nications Act of 1934 (47 U.S.C. 251 et seq.) is amended

19 by adding at the end the following new section:

20 ‘‘SEC. 262. DEPLOYMENT OF BROADBAND SERVICES.

21 ‘‘(a) OPT-IN.—This section applies to an incumbent

22 local exchange carrier only if the local exchange carrier

23 provides written notice to the Commission of its decision

24 to comply with the provisions of this section.
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1 ‘‘(b) NEXT GENERATION BROADBAND DEPLOY2 MENT.—

3 ‘‘(1) IN GENERAL.—An incumbent local ex4 change carrier shall not be subject to the require5 ments of section 251(c) with respect to any optical

6 fiber facility, or any technology of like functionality,

7 in the local exchange carrier’s network that is used

8 to provide service to residential customers; and

9 ‘‘(A) that is or was—

10 ‘‘(i) deployed where no outside tele11 phone distribution plant previously existed;

12 or

13 ‘‘(ii) deployed from any structure or

14 premise to a customer premises; and

15 ‘‘(B) if the facility is capable of providing

16 advanced service.

17 ‘‘(2) RIGHTS OF WAY.—Any provider of facili18 ties referred to in paragraph (1) shall have the duty

19 to coordinate and cooperate with other local ex20 change carriers to provide access to rights of way

21 consistent with section 251(b)(4).

22 ‘‘(3) ACCESS TO EXISTING COPPER LOOP.—

23 Nothing in this subsection shall preclude the Com24 mission or a State from requiring that an incumbent
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1 local exchange carrier provide an existing copper

2 loop to another local exchange carrier upon request.

3 ‘‘(c) COMPETITION ENHANCEMENT.—

4 ‘‘(1) IN GENERAL.—Notwithstanding section

5 2(b), or any other provision of law, an incumbent

6 local exchange carrier shall not be subject to the re7 quirements of—

8 ‘‘(A) section 251(c), except as provided in

9 paragraph (2) of this subsection, with respect

10 to its packet switching capability, or any suc11 cessor technology; or

12 ‘‘(B) section 251(c) with respect to the re13 sale of advanced service or high-speed Internet

14 access service.

15 ‘‘(2) COLLOCATION.—

16 ‘‘(A) IN GENERAL.—An incumbent local

17 exchange carrier has the duty to provide col18 location at its central offices in accordance with

19 the rules of the Commission established in ac20 cordance with section 251(c)(6) for equipment

21 to be used in the provision of advanced service.

22 ‘‘(B) REMOTE TERMINAL.—Neither the

23 Commission nor a State may require collocation

24 for equipment for the provision of advanced

25 service inside a remote terminal where no space
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1 for collocation of such equipment is available.

2 Collocation of advanced service equipment in

3 the remote terminal shall not include collocation

4 inside or within any equipment, components, or

5 facilities located inside the remote terminal.

6 ‘‘(d) BUILD-OUT REQUIREMENT.—

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (3), an incumbent local exchange carrier or

9 affiliate shall be capable of providing advanced serv10 ice to all of its local exchange service customers in

11 a State not later than 5 years after the date of en12 actment of the Broadband Deployment and Competi13 tion Enhancement Act of 2001, thereafter within 30

14 days of a bona fide request by any such local ex15 change service customer.

16 ‘‘(2) MEANS OF ADDRESSING REQUIREMENT.—

17 An incumbent local exchange carrier or affiliate may

18 use any technology, service, or combination of serv19 ices to meet the requirement in paragraph (1).

20 ‘‘(3) EXEMPTION.—An incumbent local ex21 change carrier or affiliate is exempt from the re22 quirement in paragraph (1) if the provision of ad23 vanced service to a customer is not both technically

24 and economically feasible.
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1 ‘‘(e) PRICING FLEXIBILITY FOR RETAIL ADVANCED

2 SERVICE.—

3 ‘‘(1) INAPPLICABILITY OF GOVERNMENTAL

4 REGULATION.—The rates, terms, and conditions of

5 retail advanced service offered by an incumbent local

6 exchange carrier or its affiliates to subscribers are

7 not subject to Federal, State, or local regulation.

8 ‘‘(2) CONSTRUCTION.—Nothing in this sub9 section shall be construed to affect the obligations of

10 a Bell operating company under section 272(c).

11 ‘‘(f) ENFORCEMENT.—

12 ‘‘(1) FAILURE TO BUILD-OUT.—If an incum13 bent local exchange carrier cannot comply with sub14 section (d)(1) as of the date specified in that sub15 section, subsections (c) and (e) shall no longer apply

16 to such carrier as of that date.

17 ‘‘(2) NONCOMPLIANCE WITH LOOP PROVI18 SIONING AND COLLOCATION RULES.—

19 ‘‘(A) IN GENERAL.—Except as provided in

20 paragraph (3), subsections (c) and (e) shall

21 cease to apply to an incumbent local exchange

22 carrier as of the date on which a State makes

23 a final and nonappealable determination, based

24 on clear and convincing evidence and in re-
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1 sponse to a complaint filed by another local ex2 change carrier, that—

3 ‘‘(i) the incumbent local exchange car4 rier has willfully and materially failed to

5 comply with the rules of the Commission

6 with respect to collocation or loop provi7 sioning; and

8 ‘‘(ii) such failure has caused material

9 harm to the complaining carrier’s ability to

10 compete.

11 ‘‘(B) BURDEN OF PROOF.—The burden of

12 proof in a complaint under subparagraph (A)

13 shall be on the complainant.

14 ‘‘(3) REINSTATEMENT.—

15 ‘‘(A) IN GENERAL.—An incumbent local

16 exchange carrier to which subsections (c) and

17 (e) have ceased to apply because of a deter18 mination by a State under paragraph (2) may

19 petition the State for a reinstatement of the ap20 plication of subsections (c) and (e) to such car21 rier.

22 ‘‘(B) DETERMINATION.—If a State that

23 makes a determination described in paragraph

24 (2) subsequently makes a final determination

25 that the carrier concerned has complied fully
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1 with the rule with which the carrier was found,

2 under paragraph (2), not to have complied, the

3 application of subsections (c) and (e) to the car4 rier shall be reinstated as of the date of that

5 subsequent final determination.

6 ‘‘(C) FAILURE OF STATE TO ACT WITHIN

7 90 DAYS.—For purposes of subparagraph (B),

8 a State that fails to make a determination on

9 a petition filed under subparagraph (A) within

10 90 days of the date of the filing of the petition

11 shall be deemed to have made a determination

12 that the carrier concerned is in full compliance

13 with the rules of the Commission with respect

14 to collocation or loop provisioning.

15 ‘‘(g) DEFINITIONS.—In this section:

16 ‘‘(1) INCUMBENT LOCAL EXCHANGE CAR17 RIER.—The term ‘incumbent local exchange carrier’

18 has the meaning given that term in section 251(h).

19 ‘‘(2) CUSTOMER PREMISES.—The term ‘cus20 tomer premises’ means a customer’s physical prop21 erty and any adjacent easements.

22 ‘‘(3) PACKET SWITCHING CAPABILITY.—The

23 term ‘packet switching capability’ has the meaning

24 given that term in section 51.319(c)(4) of title 47,
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1 Code of Federal Regulation, as that section is in ef2 fect as of June 1, 2001.

3 ‘‘(4) REMOTE TERMINAL.—The term ‘remote

4 terminal’ means a point in a local exchange carrier’s

5 network, not including a central office, where the

6 electronic capability to provide advanced service is

7 deployed.

8 ‘‘(5) ADVANCED SERVICE.—The terms ‘ad9 vanced service’ and ‘high-speed Internet access serv10 ice’ mean any service or combination of services that

11 consists of, or includes, the offering of a capability

12 to transmit information using a packet switched or

13 successor technology downstream from a provider to

14 a consumer at a generally rated speed of 364 or

15 kilobits per second or higher.’’.

16 SEC. 4. AMENDMENT.

17 Section 251(c)(3) of the Communications Act of 1934

18 (47 U.S.C. 251(c)(3)) is amended by adding at the end

19 the following: ‘‘An incumbent local exchange carrier shall

20 not be required to convert to a network element or com21 bination of network elements any special access circuit

22 being provided on June 1, 2001.’’.

23 SEC. 5. REGULATORY PARITY.

24 (a) IDENTIFICATION OF DISPARATE REGULATORY

25 TREATMENT OF ADVANCED SERVICE.—Not later than 6
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1 months after the date of the enactment of this Act, the

2 Federal Communications Commission shall identify in its

3 regulations any requirements or obligations that result in

4 different or disparate treatment among various types of

5 providers of advanced service and high-speed Internet ac6 cess service or among different technologies used to pro7 vide such service.

8 (b) TERMINATION OF APPLICABILITY.—Not later

9 than one year after the date of the enactment of this Act,

10 the Commission shall modify its regulations in order to

11 eliminate each difference and disparity in treatment iden12 tified under subsection (a) unless the Commission deter13 mines that such difference or disparity in treatment

14 should continue to apply in the public interest.

15 (c) BIENNIAL REVIEW.—In every biennial review

16 conducted pursuant to section 11 of the Communications

17 Act of 1934 (47 U.S.C. Sec. 161), the Commission shall—

18 (1) make a determination as to whether or not

19 a difference or disparity in treatment, if any, that

20 continues to apply under subsection (b), or under

21 this subsection after subsequent review under this

22 subsection, should continue to apply in the public in23 terest; and

24 (2) if the Commission determines that such dif25 ference or disparity in treatment should not continue
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1 to apply in the public interest, modify its regulations

2 in order to eliminate such difference or disparity in

3 treatment.

4 (d) ADVANCED SERVICE DEFINED.—In this section,

5 the terms ‘‘advanced service’’ and ‘‘high-speed Internet ac6 cess service’’ have the meanings given those terms in sec7 tion 262(h)(4) of the Communications Act of 1934, as

8 added by section 2 of this Act.

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