U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

69–010 

" ! SENATE 110TH CONGRESS

2d Session 

REPORT

2008

110–330 

Calendar No. 707 

COMMUNITY BROADBAND ACT OF 2007 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 1853 

APRIL 22, 2008.—Ordered to be printed 


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(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

DANIEL K. INOUYE, Hawaii, Chairman 

TED STEVENS, Alaska, Vice-Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

THOMAS CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

JOHN MCCAIN, Arizona 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

MARGARET CUMMISKY, Staff Director and Chief Counsel 

LILA HELMS, Deputy Staff Director and Policy Director 

JEAN TOAL EISEN, Senior Advisor and Deputy Policy Director 

CHRISTINE KURTH, Republican Staff Director and General Counsel 

PAUL J. NAGLE, Republican Chief Counsel 

MIMI BRANIFF, Republican Deputy Chief Counsel 


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Calendar No. 707 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–330 

COMMUNITY BROADBAND ACT OF 2007 

APRIL 22, 2008.—Ordered to be printed 

Mr. INOUYE, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 1853] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 1853) to promote competition, to 

preserve the ability of local governments to provide broadband capability and services, and for other purposes, having considered the 

same, reports favorably thereon with amendments, and recommends that the bill (as amended) do pass. 

PURPOSE OF THE BILL

The purpose of S. 1853 is to promote universal and affordable access to broadband by preserving the ability of municipal governments to provide advanced telecommunications capability and services. 

BACKGROUND AND NEEDS

Widespread broadband deployment can promote economic development, enhance public safety, and increase educational opportunities for millions of Americans. As a result, communities across the 

country are eager to bring the economic and social benefits of 

broadband infrastructure to their citizens. Within the past several 

years, hundreds of cities have launched community broadband initiatives, either with private partners or on their own. These efforts 

have an historical analogue from the last century: When the private sector fell short of providing electric services in some areas of 

the country, community leaders stepped forward to form their own 

municipal electric utilities. 

In some areas of the country, however, community broadband efforts have been blocked or stymied by State or local laws restrictVerDate Aug 31 2005 22:22 Apr 23, 2008 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR330.XXX SR330

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ing the ability of municipalities to provide telecommunications or 

telecommunications services. In practice, these laws can leave some 

rural and remote communities without broadband service. Other 

municipalities may find their broadband service limited to already 

available commercial options, which may fall short of community 

need. Many of these laws followed in the wake of the Supreme 

Court decision in Nixon v. Missouri Municipal League, holding that 

the Telecommunications Act of 1996 did not preempt a specific 

State statute prohibiting political subdivisions from providing telecommunications. 451 U.S. 125 (2004). 

The Community Broadband Act of 2007 will support efforts of cities and towns across the country to ensure faster, more affordable 

broadband service for their citizens. The bill would prohibit State 

or local regulations or requirements that prevent a municipality 

from offering advanced telecommunications capability or services to 

any person, or public or private entity. The bill, however, would 

prevent a municipality from using its regulatory authority to discriminate against competing private providers. In addition, the bill 

would require a municipality offering high-speed Internet services 

to comply with Federal and State telecommunications laws and 

regulations that apply to all such providers. 

SUMMARY OF PROVISIONS

S. 1853, the Community Broadband Act of 2007, would promote 

broadband service by preserving the ability of municipalities to provide advanced telecommunications capability and services. 

The bill would bar State and local governments from adopting 

new legal measures or enforcing existing legal measures that would 

prohibit or have the effect of prohibiting municipal governments 

from providing broadband services. At the same time, the bill 

would encourage the development and use of public-private partnerships to further the deployment of these services. The bill also 

would set forth notice requirements to ensure that the public has 

adequate information to evaluate prospective public broadband deployments and that the private sector has an opportunity to put 

forward alternative approaches. Finally, the bill would ensure that 

public providers of broadband services are treated on an equal footing with respect to ordinances, rules, and policies that apply to private providers of broadband services. 

LEGISLATIVE HISTORY

In the 109th Congress, H.R. 5252, the Communications Opportunity, Promotion, and Enhancement Act of 2006, included Title V, 

a section to establish the framework under which local governments may offer broadband capability or services to the public. The 

bill (as amended) was reported favorably by the Commerce Committee by a vote of 15–7. 

On July 23, 2007, Senator Lautenberg, for himself and Senators 

Inouye, Kerry, McCain, McCaskill, Smith, Snowe, and Stevens, introduced S. 1853, a bill to preserve the ability of local governments 

to provide broadband capability and services. 

On October 30, 2007, the Committee held an executive session at 

which S. 1853 was considered. The Committee adopted two amendments proposed by Senator Ensign. The first would preclude the 

use of Federal funds to assist a public provider in the event of 


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bankruptcy or termination of a project. The second would provide 

private sector entities with the opportunity to bid to provide advanced telecommunications services. The bill, as amended, was approved by voice vote. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

S. 1853—Community Broadband Act of 2007 

S. 1853 would likely preempt state and local laws in 15 states 

that would ban, or have the effect of banning, the provision of 

broadband services by public entities, including municipalities. Before public entities may provide broadband service, the bill would 

require them to publish notice of their intent to offer such services, 

including detail of the types of services to be provided. The bill also 

would require public entities to allow private bids for those services. CBO estimates that enacting S. 1853 would have no significant impact on the federal budget, but it would impose mandates 

on state and local governments. 

The preemption, as well as the notification and bidding requirements, would be intergovernmental mandates as defined in the Unfunded Mandates Reform Act (UMRA), but CBO estimates that the 

costs of those mandates would be small and would not exceed the 

threshold established in UMRA ($66 million in 2007, adjusted annually for inflation). The bill would benefit public entities in some 

states by allowing them to offer broadband services. The bill contains no new private-sector mandates as defined in UMRA. 

The CBO staff contacts for this estimate are Susan Willie (for 

federal costs) and Elizabeth Cove (for the impact on state and local 

governments). The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

S. 1853 would expand the availability of broadband access. The 

number of persons covered by this legislation should be consistent 

with current levels of individuals affected. 

ECONOMIC IMPACT

S. 1853 would increase the affordability of broadband service for 

consumers and commercial use. 

PRIVACY

S. 1853 is not expected to have an adverse effect on the personal 

privacy of any individuals that will be impacted by this legislation. 


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PAPERWORK

S. 1853 has minimal or no impact on current paperwork levels. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 would establish the short title of the Act as ‘‘Community Broadband Act of 2007’’. 

Section 2. Local government provision of advanced telecommunications capability and services 

Section 2 would bar State or local governments from prohibiting 

any public provider from providing advanced telecommunications 

capability or services using advanced telecommunications capability to any person or any public or private entity. 

Section 3. Safeguards 

Subsection (a) would prohibit any public providers from biasing 

themselves over competing providers with respect to ordinances, 

rules, and policies, including those relating to access to public 

rights-of-way, permitting, performance bonding, and reporting. 

Subsection (b) would provide that the bill does not exempt any 

public providers from any Federal communications law or regulation that applies to all providers of advanced telecommunications 

capability or services. 

Section 4. Public-private partnerships encouraged 

Section 4 would encourage each public provider that intends to 

provide advanced telecommunications capability or services to consider the potential benefits of a public-private partnership prior to 

doing so. 

Section 5. Public input and private sector opportunity to bid 

Subsection (a) would require that before a public provider may 

provide advanced telecommunications capability or services, either 

directly or through a public-private partnership, a public provider 

must publish notice of its intention to do so; generally describe the 

capability or services to be provided and proposed coverage area; 

identify any special capabilities or services to be provided in lowincome areas or other demographically or geographically defined 

areas; provide local citizens and private-sector entities with an opportunity to be heard on the costs and benefits of the project and 

potential alternatives to the project; and provide private-sector entities with an opportunity to bid to provide such capability or services. 

Subsection (b) would make clear that subsection (a) does not 

apply to contracts or arrangements under which a public provider 

is providing advanced telecommunications capability or services as 

of the date of enactment. Subsection (b) also would make clear that 

subsection (a) does not apply to proposals that as of the date of enactment are in the request-for-proposals process, are in the process 

of being built, or have been approved by referendum. 


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Section 6. Exemptions 

Section 6 would make clear that the requirements of sections 3 

and 5 do not apply when a public provider provides advanced telecommunications capabilities or services other than to the public. 

Section 6 also would make clear that the requirements of sections 

3 and 5 do not apply during an emergency declared by the President, Governor of the State, or any other elected local official authorized by law to declare a state of emergency where the public 

provider is located. 

Section 7. Use of Federal funds 

Section 7 would prohibit the use of Federal funds by public providers if any project providing advanced telecommunications capability or services fails due to bankruptcy or is terminated by a public provider. 

Section 8. Definitions 

Section 8 would define ‘‘advanced telecommunications capability’’

consistent with its meaning in the Telecommunications Act of 1996 

and ‘‘public provider’’ as a State or political subdivision thereof, or 

an Indian tribe, or any agency or entity affiliated with a State, political subdivision, or Indian tribe. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee states that the bill as reported 

would make no change to existing law. 

Æ 


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