Introduced Version
HOUSE BILL No. 1148
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 8-1-29.1; IC 36-1-3-8.
Synopsis: Local government telecommunications. Prohibits a political
subdivision from controlling, owning, or operating facilities for
providing cable, telecommunications, and information services unless
the political subdivision: (1) conducts an inquiry into the availability
of services from other providers in the area; (2) holds a public hearing;
and (3) determines the costs and benefits of the proposed facilities.
Prohibits a political subdivision that provides services from requiring
a nonsubscriber to pay any of the costs of providing the services.
Prohibits a political subdivision from providing a subsidy to a person
to provide services in an area without first conducting an inquiry into
the availability of services in the area. Specifies the procedures that a
political subdivision may use in conducting an inquiry into the
availability of services. Requires a political subdivision that provides
services to comply with antitrust laws. Allows a political subdivision
to issue bonds to finance the capital costs of facilities for providing
services. Establishes remedies for a person aggrieved by an action of
a political subdivision that provides services.
Effective: July 1, 2005.
Lutz J, Koch, Mahern
January 6, 2005, read first time and referred to Committee on Local Government.
Introduced
First Regular Session 114th General Assembly (2005)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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HOUSE BILL No. 1148
A BILL FOR AN ACT to amend the Indiana Code concerning
utilities and transportation.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 8-1-29.1; (05)IN1148.1.1. -->
SECTION 1. IC 8-1-29.1 IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2005]:
Chapter 29.1. Provision of Cable, Telecommunications, and
Information Services by Local Units
Sec. 1. As used in this chapter, "person" means an individual, a
corporation, a partnership, a limited liability company, an
association, or another entity organized under the laws of any
state.
Sec. 2. As used in this section, "political subdivision" has the
meaning set forth in IC 36-1-2-13. The term includes any entity:
(1) owned, operated, or controlled by a political subdivision;
or
(2) in which a political subdivision otherwise has an interest,
whether direct or indirect.
Sec. 3. (a) As used in this chapter, "services" refers to:
(1) cable service (as defined in 47 U.S.C. 522(6));
(2) telecommunications service (as defined in 47 U.S.C.
153(46)); or
(3) information service (as defined in 47 U.S.C. 153(20)).
(b) The term includes:
(1) advanced services (as defined in 47 CFR 51.5);
(2) broadband service; and
(3) Internet Protocol enabled services;
however classified by the Federal Communications Commission.
Sec. 4. (a) This section does not apply to a political subdivision
that provides services in an area in the political subdivision's
jurisdiction on June 30, 2005. However, after June 30, 2005, a
political subdivision described in this subsection may not:
(1) provide services, or extend any facilities for the provision
of services, in an area not served by the political subdivision
on June 30, 2005; or
(2) provide additional services in any area served by the
political subdivision on June 30, 2005;
without complying with this section.
(b) After June 30, 2005, a political subdivision may not, by
adopting an ordinance or a resolution or taking any other action,
authorize the political subdivision to construct, control, own,
operate, or otherwise have an interest in, any facility for providing
services in a designated area in the political subdivision's
jurisdiction unless the political subdivision does the following:
(1) Determines, after conducting an inquiry under section 6 of
this chapter, that there is not a person that:
(A) provides the desired services at the time of the political
subdivision's inquiry under section 6 of this chapter; or
(B) intends to provide the desired services not later than
nine (9) months after the date of the political subdivision's
inquiry under section 6 of this chapter;
in the designated area.
(2) Holds a public hearing on the political subdivision's
proposal, subject to the requirements of IC 5-14-1.5.
(3) Not less than thirty (30) days before a public hearing
under subdivision (2), and subject to subsection (c), prepares
and makes available for public inspection a report, including
all underlying work papers and related documents, estimating
the total costs and benefits of constructing, controlling,
owning, operating, or otherwise having an interest in, the
proposed facility. A report under this subdivision must
include an analysis of the costs and benefits of the political
subdivision's proposal for a three (3) year period beginning on
the date the political subdivision first incurs costs or receives
benefits related to the proposal. Benefits that must be
reported under this subdivision include any revenues to be
derived from the operation of the facility. Costs that must be
reported under this subdivision include:
(A) personnel costs;
(B) costs of acquiring, installing, maintaining, repairing, or
operating any plant or equipment; and
(C) an appropriately allocated part of the costs of any
jointly used personnel, plants, or equipment.
Costs under this subdivision do not include the costs of
providing any subsidy permitted under section 5 of this
chapter.
(c) If a political subdivision complies with subsection (b) and
authorizes the political subdivision to construct, control, own,
operate, or otherwise have an interest in, any facility for providing
services, the political subdivision shall determine the cost of
preparing the report required under subsection (b)(3). As soon as
practicable after the political subdivision receives revenues from
the authorized facility, the political subdivision shall use the
revenues to reimburse the treasury of the political subdivision for
the cost of the report.
Sec. 5. (a) This section does not apply to costs associated with
public, educational, or governmental access facilities (as defined in
47 U.S.C. 522(16)).
(b) A political subdivision that owns, operates, controls, or
otherwise has an interest in facilities for the provision of services
may not require a person that does not subscribe to the services to
pay any of the costs incurred by the political subdivision in
providing the services.
(c) A political subdivision may not provide a subsidy or an
incentive to any person to provide services in a designated area in
the political subdivision's jurisdiction unless the political
subdivision first determines, after conducting an inquiry under
section 6 of this chapter, that there is not a person that:
(1) provides the desired services at the time of the political
subdivision's inquiry under section 6 of this chapter; or
(2) intends to provide the desired services (as defined in
section 6(b) of this chapter) not later than nine (9) months
after the date of the political subdivision's inquiry under
section 6 of this chapter;
in the designated area.
(d) This section does not prevent a person from receiving any
incentives or tax credits for which the person otherwise qualifies
under IC 6-1.1-12.1, IC 6-3.1-4, IC 6-3.1-9, IC 6-3.1-11, IC 6-3.1-13,
IC 6-3.1-24, or IC 6-3.1-26.
Sec. 6. (a) As used in this section, "designated area" refers to an
area that is:
(1) within the jurisdiction of a political subdivision; and
(2) designated by a political subdivision under section 4(b) or
5(c) of this chapter to receive desired services.
(b) As used in this section, "desired services" refers to any
services that a political subdivision seeks to make available in the
designated area under section 4(b) or 5(c) of this chapter.
(c) A political subdivision may conduct the inquiry required
under section 4(b)(1) or 5(c) of this chapter by sending by certified
mail a written request to each person that provides services in any
area in the jurisdiction of the political subdivision. A written
request under this subsection must inquire as to whether the
person:
(1) provides the desired services; or
(2) intends to provide the desired services not later than nine
(9) months after the date of the political subdivision's written
request under this subsection;
in the designated area.
(d) The political subdivision may determine that there is not a
person that provides or intends to provide the desired services in
the designated area if the political subdivision's inquiry under
subsection (c) results in any of the following:
(1) The political subdivision does not receive a written
response to any of the requests sent under subsection (c)
within sixty (60) days of the date the requests were
postmarked.
(2) The political subdivision:
(A) receives one (1) or more responses to a request under
subsection (c) that indicates that the persons responding
provide the desired services in the designated area at the
time of the request; and
(B) determines that no person responding actually
provides the desired services in the designated area.
(3) The political subdivision:
(A) receives one (1) or more responses to a request under
subsection (c) that indicates that the persons responding
intend to provide the desired services in the designated
area not later than nine (9) months after the date of the
political subdivision's written request under subsection (c);
and
(B) determines, after the appropriate amount of time, that
no person responding actually provided the desired
services in the designated area not later than nine (9)
months after the date of the political subdivision's written
request under subsection (c).
Sec. 7. A political subdivision that:
(1) provides services; or
(2) owns, operates, controls, or otherwise has an interest in
facilities for the provision of services;
as permitted under this chapter, shall comply with any applicable
state or federal antitrust laws.
Sec. 8. (a) The legislative body of a political subdivision may
adopt a resolution for the issuance of bonds, at one (1) time or
periodically, to finance the capital costs of facilities for the
provision of services as permitted by this chapter. The resolution
authorizing the bonds must:
(1) describe the purpose for which the indebtedness is to be
created; and
(2) specify the total dollar amount of the bonds to be issued.
(b) Bonds issued under this section shall be secured by and paid
for solely out of the revenues generated by the political subdivision
in providing services as permitted under this chapter.
(c) A political subdivision shall not pay the origination,
financing, or other carrying costs associated with the issuance of
bonds under this section from the political subdivision's general
fund or other enterprise funds.
(d) Bonds issued under this section must contain a statement, on
the face of each bond, that the political subdivision issuing the bond
is not obligated to pay the principal or interest on the bond except
as provided in this section.
Sec. 9. (a) A person that:
(1) is affected by a political subdivision's alleged violation of
this chapter; and
(2) seeks:
(A) compensation from the political subdivision for the
alleged violation; or
(B) equitable relief, including a restraining order or an
injunction, from the alleged violation;
may not file a court action unless the person first files a written
complaint with the political subdivision in accordance with this
section.
(b) A political subdivision that:
(1) provides services; or
(2) owns, operates, controls, or otherwise has an interest in
facilities for the provision of services;
as permitted under this chapter, shall adopt an ordinance
establishing a procedure for the filing and resolution of complaints
concerning the political subdivision's provision of services or
facilities.
(c) The procedure established by a political subdivision under
subsection (b) must:
(1) permit any person to file a complaint concerning the
political subdivision's provision of services or facilities,
including a:
(A) subscriber of services provided by the political
subdivision; or
(B) person that provides, or has provided a notice of
intention to provide, any services in an area in the political
subdivision's jurisdiction;
(2) establish an expedited process that requires the political
subdivision to:
(A) hold a hearing on the complaint, unless the parties to
the proceeding waive the right to a hearing; and
(B) issue a final decision on the matter;
not later than forty-five (45) days after the complaint is filed;
(3) stay any proposal approved by the political subdivision
under section 4 of this chapter pending:
(A) the political subdivision's resolution of a complaint
concerning the proposal; and
(B) the completion of any subsequent court proceeding
concerning the proposal; and
(4) provide that the political subdivision's failure to issue a
decision within the time allowed under subdivision (2) is
considered an adverse decision for purposes of appeal.
(d) A person aggrieved by a political subdivision's resolution of
a complaint under this section may, regardless of the amount in
controversy, appeal the political subdivision's decision in a court
having jurisdiction. The court shall consider the matter de novo.
(e) The party prevailing in any action filed under this section is
entitled to recover the costs of the complaint and action, including
reasonable attorney's fees as determined by the court.
SOURCE: IC 36-1-3-8; (05)IN1148.1.2. -->
SECTION 2. IC 36-1-3-8 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2005]: Sec. 8. (a) Subject to subsection (b), a
unit does not have the following:
(1) The power to condition or limit its civil liability, except as
expressly granted by statute.
(2) The power to prescribe the law governing civil actions
between private persons.
(3) The power to impose duties on another political subdivision,
except as expressly granted by statute.
(4) The power to impose a tax, except as expressly granted by
statute.
(5) The power to impose a license fee greater than that reasonably
related to the administrative cost of exercising a regulatory power.
(6) The power to impose a service charge or user fee greater than
that reasonably related to reasonable and just rates and charges
for services.
(7) The power to regulate conduct that is regulated by a state
agency, except as expressly granted by statute.
(8) The power to prescribe a penalty for conduct constituting a
crime or infraction under statute.
(9) The power to prescribe a penalty of imprisonment for an
ordinance violation.
(10) The power to prescribe a penalty of a fine as follows:
(A) More than ten thousand dollars ($10,000) for the violation
of an ordinance or a regulation concerning air emissions
adopted by a county that has received approval to establish an
air program under IC 13-17-12-6.
(B) More than two thousand five hundred dollars ($2,500) for
any other ordinance violation.
(11) The power to invest money, except as expressly granted by
statute.
(12) The power to order or conduct an election, except as
expressly granted by statute.
(13) The power to:
(A) provide any services described in IC 8-1-29.1-3; or
(B) construct, control, own, operate, or otherwise have an
interest in any facility for providing any services described
IC 8-1-29.1-3;
in an area in the political subdivision's jurisdiction, except as
provided in IC 8-1-29.1.
(b) A township does not have the following, except as expressly
granted by statute:
(1) The power to require a license or impose a license fee.
(2) The power to impose a service charge or user fee.
(3) The power to prescribe a penalty.