II

103D CONGRESS

2D SESSION S. 2195

To direct the Federal Communications Commission to require the reservation,

for public uses, of capacity on telecommunications networks, and for

other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 15 (legislative day, JUNE 7), 1994

Mr. INOUYE introduced the following bill; which was read twice and referred

to the Committee on Commerce, Science, and Transportation

A BILL

To direct the Federal Communications Commission to require the reservation, for public uses, of capacity on

telecommunications networks, 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 ‘‘National Public Tele5 communications Infrastructure Act of 1994’’.

6 SEC. 2. FINDINGS.

7 Congress finds the following:

8 (1) The United States Government has consist9 ently encouraged the development and dissemination
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1 of public telecommunications services in broadcast

2 and nonbroadcast technologies through, among other

3 things, the Public Broadcasting Act of 1967, the

4 Public Telecommunications Financing Act of 1978,

5 and the Public Telecommunications Act of 1992,

6 wherein Congress found that ‘‘it is in the public in7 terest for the Federal Government to ensure that all

8 citizens of the United States have access to public

9 telecommunications services through all appropriate

10 available telecommunications distribution tech11 nologies. . . ’’.

12 (2) The Government has a compelling interest

13 in ensuring that all citizens of the United States

14 have access to noncommercial governmental, edu15 cational, informational, cultural, civic, and charitable

16 services through all appropriate telecommunications

17 networks.

18 (3) New telecommunications technologies will

19 enhance the ability of schools, libraries, local govern20 ments, public broadcast institutions, and nonprofit

21 organizations to deliver and receive noncommercial

22 governmental, educational, informational, cultural,

23 civic, and charitable services throughout the United

24 States.
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1 (4) It is in the public interest that these entities

2 be granted access to capacity on telecommunications

3 networks for the purpose of disseminating and re4 ceiving noncommercial governmental, educational,

5 informational, cultural, civic, and charitable services

6 throughout the United States.

7 (5) It is necessary and appropriate that these

8 entities have access, without charge, to the capacity

9 on telecommunications networks to enable the public

10 to have affordable access to the governmental, edu11 cational, informational, cultural, civic, and charitable

12 services provided by such entities.

13 (6) Telecommunications services, including

14 cable television programming, basic telephone serv15 ice, and telecommunications services not yet avail16 able, are likely to become an increasingly pervasive

17 presence in the lives of all Americans.

18 (7) Most Americans are currently served by

19 telecommunications networks that lack sufficiently

20 open architecture, sufficient capacity, and adequate

21 nondiscriminatory access terms necessary to provide

22 open access to a diversity of voice, video, and data

23 communications.

24 (8) Private telecommunications carriers are

25 likely to control access to telecommunications net-
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1 works that lack sufficiently open architecture, suffi2 cient capacity, and adequate nondiscriminatory ac3 cess terms. Without narrowly tailored governmental

4 intervention, the existence of these private ‘‘gate5 keepers’’ is likely to restrict access to these net6 works.

7 (9) Private telecommunications carriers respond

8 to marketplace forces, and therefore are most likely

9 to exclude those members of the public and institu10 tions with the fewest financial resources, including

11 but not limited to small town and rural residents,

12 low income people, minorities, individuals with dis13 abilities, the elderly, and noncommercial organiza14 tions such as schools, libraries, public broadcasters,

15 and nonprofit community and civic organizations.

16 (10) To facilitate widespread public discourse

17 on a range of public concerns between and among all

18 Americans, the Government has a compelling inter19 est in providing broad access to telecommunications

20 networks for a diversity of voices, viewpoints, and

21 cultural perspectives, including access for members

22 of the public whose voices are most likely to be ex23 cluded by private telecommunications carriers.

24 (11) Assuring access to a diversity of voices,

25 viewpoints, and cultural perspectives over tele-
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1 communications networks benefits all members of

2 the public who use telecommunications networks to

3 disseminate or receive information.

4 (12) Government support and encouragement of

5 a diversity of voices, viewpoints, and cultural per6 spectives over telecommunications networks furthers

7 a compelling governmental interest in improving

8 democratic self-governance, and improving and fa9 cilitating local government services and communica10 tion between citizens and elected and unelected pub11 lic officials.

12 (13) Telecommunications networks make sub13 stantial use of public rights-of-way in real property

14 and in spectrum frequencies.

15 (14) Because of the Government’s compelling

16 interest in ensuring broad and diverse access to tele17 communications networks for the purposes of dis18 seminating and receiving noncommercial educational

19 and informational services, and in exchange for the

20 use of public rights-of-way accorded telecommuni21 cations networks, it is appropriate for Congress

22 (through the assertion of concurrent Federal juris23 diction over rights-of-way held or controlled by State

24 or local governments) to require that owners and op-
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1 erators of telecommunications networks reserve ca2 pacity on such networks for public use.

3 (15) The least restrictive means to ensure that

4 those members of the public whose voices are most

5 likely to be excluded from telecommunications net6 works can access those networks is to require those

7 networks to reserve a portion of their capacity for

8 that access.

9 (16) It is in the public interest that reserved

10 network capacity for public use be accompanied by

11 funding to facilitate use of such capacity to provide

12 noncommercial governmental, educational, informa13 tional, cultural, civic, and charitable services for the

14 public.

15 SEC. 3. PUBLIC RIGHTS-OF-WAY.

16 Title VII of the Communications Act of 1934 (47

17 U.S.C. 601 et seq.) is amended by adding at the end the

18 following new section:

19 ‘‘SEC. 714. PUBLIC RIGHTS-OF-WAY.

20 ‘‘(a) DEFINITIONS.—As used in this section:

21 ‘‘(1) The term ‘telecommunications network’

22 means any group of facilities that has been granted

23 the right to occupy any public right-of-way to trans24 mit or carry telecommunications for the public, and

25 provides the consumer or end user the opportunity
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1 to choose from a range of telecommunications that

2 are available contemporaneously to the public. A ter3 restrial radio or television broadcast station licensed

4 pursuant to Title III shall not be considered a tele5 communications network by reason of its use of its

6 assigned spectrum.

7 ‘‘(2) The term ‘public right-of-way’ means any

8 right-of-way, including use of the electromagnetic

9 spectrum, that is held or otherwise controlled by

10 Federal, State, or local governments on behalf of the

11 public, and is used in the transmission or carriage

12 of telecommunications.

13 ‘‘(3) The term ‘telecommunications’ means

14 communications of any form transmitted or carried

15 by any means, including analog or digital electro16 magnetic signals.

17 ‘‘(b) REQUIREMENT FOR RESERVED CAPACITY.—

18 Within 365 days after the date of enactment of this sec19 tion, the Commission shall promulgate regulations to re20 quire owners and operators of telecommunications net21 works to reserve, for public uses, capacity on such net22 works for use free-of-charge by eligible entities. The re23 served capacity shall be considered public property subject

24 to disposition pursuant to regulations promulgated by the

25 Commission, and the owner or operator of any affected
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1 telecommunications network shall have no control over,

2 and no liability for, the communications content of such

3 capacity.

4 ‘‘(c) RESERVATION OF CAPACITY.—

5 ‘‘(1) AMOUNT OF CAPACITY TO BE RE6 SERVED.—The Commission shall presume that a

7 reservation under this section of 20 percent of the

8 capacity of a telecommunications network is appro9 priate, but may require a reservation of a lower

10 amount or an amount to be phased-in not exceeding

11 20 percent, upon consideration of the type of tech12 nology used by the network, barriers to accessing the

13 network, and such other factors as the Commission

14 considers appropriate. Telecommunications networks

15 shall not be required to reserve public capacity in ex16 cess of that required under this paragraph.

17 ‘‘(2) TEMPORARY REDUCTIONS.—If the Com18 mission determines that any portion of the amount

19 of public capacity that a telecommunications net20 work is required to reserve under this section will go

21 unused, the Commission may temporarily reduce the

22 reserved amount by such unused portion. During the

23 period when the reserved public capacity of a tele24 communications network is temporarily reduced, an

25 eligible entity described in subsection (d) may re-
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1 quest use of any of the portion by which such re2 served capacity was reduced and the Commission

3 shall, within 30 days after the request, provide suffi4 cient capacity to meet the request.

5 ‘‘(3) QUALITY.—The quality of telecommuni6 cations capacity reserved for public uses under this

7 section shall be equivalent to the best quality of

8 available capacity of the affected telecommunications

9 network in all respects, including accessibility, chan10 nel positioning, interconnection access rights, net11 work capabilities, and such other factors as the

12 Commission considers appropriate.

13 ‘‘(4) REDUCTION OR ELIMINATION OF OBLIGA14 TIONS.—The Commission may reduce or eliminate

15 obligations upon a telecommunications network im16 posed under this subsection, if the Commission de17 termines on the record after notice and opportunity

18 for comment, that, throughout its entire service

19 area, such network has clearly sufficient open archi20 tecture, capacity, and nondiscriminatory access

21 terms to ensure that economic and technological bar22 riers to access by eligible entities describe in sub23 section (d) are eliminated.

24 ‘‘(5) EFFECT ON FRANCHISE FEE COLLEC25 TION.—Nothing in this section is intended to affect
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1 the power of any franchising authority to collect a

2 franchise fee authorized under section 622.

3 ‘‘(d) ALLOCATION OF CAPACITY.—

4 ‘‘(1) ELIGIBLE ENTITIES.—The following enti5 ties are the entities eligible for access to the public

6 capacity reserved under this section:

7 ‘‘(A) State, local, and tribal governments

8 and their agencies.

9 ‘‘(B) Accredited educational institutions

10 open to enrollment by the public.

11 ‘‘(C) Public telecommunications entities.

12 ‘‘(D) Public and nonprofit libraries.

13 ‘‘(E) Nonprofit organizations described

14 under section 501(c)(3) of the Internal Revenue

15 Code of 1986 that are formed for the purpose

16 of providing nondiscriminatory public access to

17 noncommercial educational, informational, cul18 tural, civic, or charitable services.

19 ‘‘(2) TERMS AND CONDITIONS OF ACCESS.—

20 Such eligible entities shall have access to such public

21 capacity at no charge (for installation or service) if

22 using such capacity only for the provision of edu23 cational, informational, cultural, civic, or charitable

24 services directly to the public without charge for

25 such services. Telecommunications capacity allocated
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1 pursuant to this section shall not be sold, resold, or

2 otherwise transferred in consideration for money or

3 any other thing of value.

4 ‘‘(3) ALLOCATION.—The Commission shall de5 termine appropriate mechanisms and guidelines for

6 allocating such public capacity. In so doing, the

7 Commission shall establish block allocations to

8 State, local, or tribal governments for redistribution

9 among eligible entities pursuant to telecommuni10 cations plans submitted by State, local, or tribal gov11 ernments, and ensure that the intent of Congress, as

12 expressed in section 396(a), is served.

13 ‘‘(4) TRANSITION.—The Commission, as tele14 communications network capacity expands, shall pro15 vide for a transition within a reasonable period of

16 time from requirements under sections 335, 611,

17 and 615 to requirements under this section.

18 ‘‘(e) PUBLIC TELECOMMUNICATIONS INFRASTRUC19 TURE FUND.—

20 ‘‘(1) ESTABLISHMENT.—Within 365 days after

21 the date of enactment of this section, the Commis22 sion shall promulgate regulations to establish a Pub23 lic Telecommunications Infrastructure Fund to pro24 vide eligible entities described in subsection (d) with

25 economic support to use the capacity reserved on
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1 telecommunications networks under this section to

2 provide noncommercial governmental, educational,

3 informational, cultural, civil, and charitable services

4 for the public. Such regulations shall provide a

5 mechanism for financing the Public Telecommuni6 cations Infrastructure Fund by means of—

7 ‘‘(A) contributions, on a competitively neu8 tral basis, by owners and operators of tele9 communications networks (including those regu10 lated under titles II, III and VI, except that

11 nothing in this subsection may be construed as

12 affecting the power of any franchising authority

13 to collect a franchise fee authorized under sec14 tion 622);

15 ‘‘(B) contributions from a designated por16 tion of any universal service fund, as may be es17 tablished under this Act;

18 ‘‘(C) contributions from such other sources

19 as the Commission may determine to be suffi20 cient and appropriate for such purposes; or

21 ‘‘(D) any combination of the contributions

22 described in subparagraphs (A), (B), and (C).

23 ‘‘(2) CONTENT OF REGULATIONS.—The regula24 tions promulgated under this subsection shall—
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1 ‘‘(A) provide that contributions to the Pub2 lic Telecommunications Infrastructure Fund

3 shall begin no later than 365 days after pro4 mulgation of the regulations;

5 ‘‘(B) determine appropriate mechanisms

6 and guidelines for allocating the funds collected

7 pursuant to this subsection to such State, local,

8 or tribal governments as the Commission con9 siders appropriate;

10 ‘‘(C) establish guidelines for the distribu11 tion of such funds by State, local, or tribal gov12 ernments to provide eligible entities described in

13 subsection (d) with sufficient economic support

14 to use the network capacity reserved under this

15 section to provide noncommercial governmental,

16 educational, informational, cultural, civic, and

17 charitable services for the public; and

18 ‘‘(D) require that each State, local, or trib19 al government authorized to distribute funds

20 pursuant to subparagraph (C) establish a public

21 advisory commission that—

22 ‘‘(i) shall be composed of members

23 representing the interests of eligible enti24 ties described in subsection (d); and
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1 ‘‘(ii) shall ensure that the funds are

2 distributed to a broad cross section of eli3 gible entities in accordance with the guide4 lines established pursuant to subparagraph

5 (C).’’.

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